Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Morrison

Supreme Court of Florida

November 16, 2017

STATE OF FLORIDA, Appellant, Cross-Appellee,
v.
RAYMOND MORRISON, JR., Appellee, Cross-Appellant.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         An Appeal from the Circuit Court in and for Duval County, Henry Elisha Davis, Judge - Case No. 161997CF000991AXXXMA

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellant/Cross-Appellee.

          Linda McDermott of McClain & McDermott, P.A., Estero, Florida, for Appellee/Cross-Appellant.

          PER CURIAM.

         This is an appeal from an order entered on Raymond Morrison, Jr.'s, postconviction motion to vacate his conviction of first-degree murder and sentence of death, and related convictions and sentences, filed under Florida Rule of Criminal Procedure 3.851. The State appeals the postconviction court's order to the extent that it granted Morrison a new guilt phase and penalty phase based on ineffective assistance of counsel. Morrison cross-appeals the postconviction court's order to the extent that it denied four of his postconviction claims and declined to conduct a cumulative error analysis. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We reverse the portion of the postconviction court's order granting Morrison a new guilt phase, but we affirm the portions of the postconviction court's order granting Morrison a new penalty phase and denying Morrison's other asserted grounds for postconviction relief. We also reject Morrison's claim of guilt phase cumulative error.

         I. BACKGROUND

         In 1998, Morrison was convicted of "first-degree murder for the January 8, 1997, killing of Albert Dwelle, which occurred during the course of a robbery upon Dwelle in his apartment in Duval County, " and "armed robbery with a deadly weapon and burglary of a dwelling with intent to commit a battery, with an assault or battery on Dwelle." Morrison v. State, 818 So.2d 432, 437 (Fla. 2002). On direct appeal, this Court set out the facts of the crimes:

On January 9, 1997, the dead body of eighty-two-year-old Dwelle was found on the floor of his bedroom by service personnel from Meals on Wheels. An autopsy revealed numerous injuries on the body of Dwelle, including contusions and abrasions to the head, chest, arms, and hand. According to the medical examiner, Dwelle died from loss of blood due to two lethal knife wounds to the throat. One was a stab wound to the left side of the neck which penetrated to the depth of almost five inches, perforating the esophagus and nicking the cervical vertebrae. A second wound to the neck was described as an incised wound across the front of the throat. As a consequence, Dwelle aspirated the blood caused by the knife wounds to his neck.
Dwelle was disabled for many years, having suffered a stroke during a bout of typhoid fever at age six or seven. He could not use his left hand or arm, he could hardly stand up and walk, and he needed assistance to bathe, dress, and cook. Meals on Wheels delivered his meals once a day.
Investigation by police revealed that Morrison had visited his girlfriend, Sandra Brown, on January 8, 1997. Brown lived at the Ramona Apartments in an upstairs apartment directly across from Dwelle's apartment. Morrison spent the afternoon of January 8, 1997, socializing with Brown and her uncle at Brown's apartment. At some point in the late afternoon or early evening, Brown and Morrison walked to the local convenience store to buy some beer. Brown paid for the beer with money she had just received for babysitting. To her knowledge, Morrison did not have any money. They returned to Brown's apartment where they drank the beer with Brown's uncle. Brown's uncle later left to return to his own home. At about 9 p.m., Morrison prepared two steaks and placed them in the oven to cook. He then told Brown that he was going to take the trash out. He did not return to Brown's apartment and was not seen again by Brown until the next day at a different location. On that occasion, Morrison apparently avoided contact with Brown, who was attempting to talk to him to find out why he had left so abruptly the previous night.
Morrison was arrested on January 10, 1997, [at approximately 3:30 p.m.] by Officer Anthony Richardson, on a warrant for failure to pay child support. Immediately upon arrest, Morrison asked Richardson if "this [his arrest] was about that old man." Richardson told him that he was being arrested for failure to pay child support but that some homicide detectives also wanted to talk to him, so Richardson was taking him to the homicide office of the Jacksonville Sheriff's Office. Richardson then advised Morrison of his constitutional rights. Morrison learned that Richardson, in addition to being a police officer, was also a pastor in a local church. On the way to the police station, Morrison and Richardson discussed religion and Morrison's need to get his life in order. Richardson then turned Morrison over to homicide detectives Terry Short and T.C. Davis.
During a lengthy interview about the Dwelle murder, Morrison told Short that he wanted to talk to Richardson again. Short paged Richardson and Richardson returned to the police station to talk with Morrison. On the morning of January 11, 1997, and following a discussion with Richardson, Morrison gave a written statement [at approximately 1:30 a.m.] detailing his involvement in the death of Albert Dwelle. The text of Morrison's written statement seen by jurors is as follows:
On Wednesday 01-08-97 at approximately 9:00 PM I had been smoking crack with Big Man. I ran out of crack and had no money. I went to Apt. 68 and sat on the steps. I was drinking a beer. I wanted a cigar. I knocked on the door of Apt. # 64. The man came to the door and I ask him for a cigar. He started telling me he couldn't let me come in. I ask for a light for the cigar he gave me. He went back into his bed room to get me a light. I follow him to the bed room. He reached into his shirt pocket hanging on a chair by the bed and handed me a light. I put the lighter back on the chair. I saw money in the shirt pocket. I reached over and grabbed a few bills out of his shirt pocket. He saw me take the money. He got a knife from somewhere and began swinging it at me. I tried to grab him to defend myself and also not to hurt him. I grabbed him by the arm and turned him around so he was facing away from me. He was thrusting the knife back over his shoulders at me. I was holding his right arm and he was still thrashing the knife trying to cut me. While he was trying to cut me the knife accidentally cut across his throat. I didn't know at the time that it had cut him. I was still holding him and he got even wilder thrusting the knife and I guess he got cut again. That's when I saw he was cut.
I laid him down on the floor and picked up the knife. I left the apartment and went to another part of the complex where I hid the knife under a brick.
I then went to Big Mans house and got him to take me to the Chevron. We got gas and he took me to Marietta. When we got to Marietta I bought some drugs with the money I took from the old man. I then went back to Ramona Park where Big Man dropped me off and he went home. I saw my uncle Cap and I got in the car with him. I stayed with Cap until Friday morning and continued smoking dope and drinking till then. Police picked me up Friday after noon.
Morrison also said he took the victim's money and spent it on drugs and prostitutes. In addition, Morrison was seen shortly after the murder attempting to sell silver coins, similar in size and appearance to coins owned by Dwelle and missing from Dwelle's apartment after the murder. Finally, Morrison led the detectives to the knife that he said he used to kill the victim.

Id. at 437-39 (second alteration in original).

         The jury unanimously recommended the death penalty by a vote of twelve to zero and the trial court sentenced Morrison to death. Id. at 439. The trial court found and gave weight to four aggravating factors: (1) Morrison was previously convicted of a felony involving the use or threat of violence to the person-great weight; (2) the murder was committed while he was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit the crime of armed robbery or burglary with an assault or both-great weight; (3) the murder was especially heinous, atrocious, or cruel-great weight; and (4) the victim of the capital felony was particularly vulnerable due to an advanced age or disability-great weight. Id. Although the trial court found no statutory mitigation, it found and gave weight to eight nonstatutory mitigators: (1) good jail conduct in that Morrison presented no danger to the police when arrested, cooperated with the police during his detention, and led police to the murder weapon-some weight; (2) there would be no parole or other release from prison from a life sentence for first-degree murder-some weight; (3) Morrison cooperated with the police-some weight; (4) Morrison abused alcohol and cocaine and most likely used the robbery proceeds to purchase more alcohol and cocaine-some weight; (5) Morrison was employed-some weight; (6) Morrison has only borderline intellectual ability, and when combined with alcohol and drug abuse, it results in bad judgment-great weight; (7) Morrison has a positive family background and character, and assumed some responsibility for management of the home at an early age-some weight; and (8) Morrison adjusted well to incarceration, albeit with a record of an escape conviction-some weight. Id. at 439-40.

         Morrison raised twelve issues on appeal: (1) whether the trial court erred in failing to adequately address Morrison's request for new counsel prior to trial; (2) whether the trial court erred in excusing a venireperson for cause because he was unsure if he would be able to vote for a death sentence if selected as a juror; (3) whether the trial court erred in sustaining the peremptory strike of venirepersons who expressed some opposition to the death penalty, but who were not excusable for cause; (4) whether the prosecutor's remarks to the venire improperly minimized the State's burden of proof so as to violate Morrison's rights to a fair trial and to due process of law; (5) whether the prosecutor's remarks made during closing argument improperly shifted the burden of proof to the defense; (6) whether Morrison's statements to police, induced by a law enforcement officer's appeal to Morrison's religious beliefs, were voluntary, such that the trial court did not err in denying Morrison's motion to suppress; (7) whether the trial court erred in sustaining the State's objection to a question purportedly seeking to impeach the State's witness for having a self-interest; (8) whether the trial court improperly excluded testimony intending to impeach the State's witness based on an alleged reputation for dishonesty; (9) whether the trial court erred in denying Morrison's motion for judgment of acquittal as to first-degree murder and burglary; (10) whether the heinous, atrocious, or cruel aggravating circumstance statute is unconstitutionally vague and, therefore, its application in this instance is in error; (11) whether the statute and instruction for the aggravating circumstance that the victim of the capital felony "was particularly vulnerable due to advanced age or disability" is unconstitutionally vague and its application, in this instance, is an error; and (12) whether the imposition of the death penalty in this case is proportionate. Id. at 440 n.1. This Court affirmed Morrison's convictions and sentences. Id. at 458.

         On September 18, 2003, Morrison timely filed his motion for postconviction relief. On March 28, 2014, Morrison filed an amended postconviction motion raising eleven claims, many of which contained numerous subparts: (1) Morrison was denied the effective assistance of counsel at the guilt phase; (2) the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) Morrison was denied the effective assistance of counsel at the penalty phase; (4) newly discovered evidence establishes that Morrison's conviction and sentence violate the Constitution; (5) Morrison's death sentence violates the constitutional prohibition against cruel and unusual punishment because he is intellectually disabled; (6) the State intentionally destroyed exculpatory evidence; (7) counsel was ineffective for failing to ensure that Morrison had expert psychiatric assistance at the guilt phase and penalty phase; (8) counsel was ineffective for failing to object to the State's nonstatutory aggravators; (9) counsel was ineffective for failing to object to Morrison's absence from critical stages of the trial; (10) the trial court erroneously allowed the jury to hear evidence of a prior felony; and (11) cumulative error requires a new guilt phase and penalty phase. The postconviction court held an evidentiary hearing regarding Morrison's first nine claims on January 12-15, February 17-20, and March 18-19, 2015. Numerous lay and expert witnesses were presented during the ten-day evidentiary hearing.

         On September 18, 2015, the postconviction court entered an order granting Morrison a new guilt phase and penalty phase based on some of his claims of ineffective assistance of counsel, namely, subparts of claims one and three. State v. Morrison, No. 16-1997-CF-00991-AXXX-MA (Fla. 4th Cir. Ct. Sept. 18, 2015) (Postconviction Order). The postconviction court denied all of Morrison's remaining claims except for his claim of cumulative error, which it declined to rule on because it was granting Morrison a new trial. Id.

         On appeal, the State argues that the postconviction court erred in finding that: (1) trial counsel was ineffective for failing to adequately challenge Morrison's written statement to the police detailing his involvement in the death of the victim; (2) trial counsel was ineffective for failing to adequately investigate and prepare for the guilt phase; and (3) trial counsel was ineffective for failing to adequately investigate and prepare for the penalty phase. On cross-appeal, Morrison argues that the postconviction court erred by denying his claims that: (1) the State withheld evidence in violation of Brady; (2) newly discovered evidence establishes that Morrison's conviction and sentence violate the Constitution; (3) Morrison's death sentence violates the constitutional prohibition against cruel and unusual punishment because he is intellectually disabled; and (4) trial counsel was ineffective for failing to challenge the prior violent felony aggravator during the penalty phase. In his fifth claim on cross-appeal, Morrison argues that he is entitled to a new guilt phase and penalty phase under a cumulative error analysis. Because we conclude that Morrison is entitled to a new penalty phase on the basis that trial counsel was ineffective for failing to adequately investigate and prepare for the penalty phase, we decline to address claim four of Morrison's cross-appeal or his claim of penalty phase cumulative error.

         II. THE STATE'S APPEAL

         A. Ineffective Assistance of Counsel Regarding Morrison's Written Statement to the Police

         The first issue presented in the State's appeal is whether the postconviction court erred in finding that trial counsel Ronald Higbee and Refik Eler[1] were ineffective for failing to adequately challenge the voluntariness and reliability of Morrison's written statement to the police detailing his involvement in the death of the victim. Specifically, the postconviction court found that trial counsel were deficient for failing to investigate Morrison's: (1) mental health at the time of the interrogation through mental health experts; (2) crack cocaine use within hours of his interrogation; and (3) propensity to take the blame for crimes he did not commit. The postconviction court further found that the failure to present such evidence at the motion to suppress hearing and the guilt phase resulted in prejudice. As explained below, the postconviction court erred in granting relief on Morrison's ineffective assistance of counsel claim regarding his written statement to the police.

         In order to obtain relief on a claim of ineffective assistance of counsel, "a defendant must establish deficient performance and prejudice." Gore v. State, 846 So.2d 461, 467 (Fla. 2003). Under the first prong, "the defendant must show that . . . counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. "[I]t is axiomatic that 'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' " Hurst v. State, 18 So.3d 975, 1008 (Fla. 2009) (quoting Strickland, 466 U.S. at 691). Under the second prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, . . . and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.

Id. at 693. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.

         Prior to the guilt phase, Morrison filed motions to suppress his statements to police as well as evidence discovered as the result of the interrogation by police about the victim's murder. Morrison contended that the interrogation by Detectives Short and Davis was unconstitutional because it continued after Morrison invoked his right to silence and his right to counsel and because his statements were obtained as the result of coercion, including the State's improper use of religion. An evidentiary hearing was conducted on November 13, 1997, regarding Morrison's motions to suppress. Morrison, Officer Richardson (a police officer and a pastor), Detective Short, Detective Davis, and Georgia Morrison (Morrison's mother) testified at the hearing, and Morrison and the State later introduced a stipulation regarding the testimony that Reginald "Fred" Austin (Morrison's uncle) would have presented at the hearing. Morrison testified at the hearing that he knew and understood his rights at the time of the interrogation and that he did not have any drugs or alcohol for thirteen hours prior to his arrest. Detectives Davis and Short testified at the hearing that they did not detect that Morrison was impaired or under the influence of alcohol or drugs at the time of his interview.

         The trial court subsequently issued its order denying the motion to suppress statements made to Detective Short (which included Morrison's written statement to the police), granting the motion to suppress statements made to Officer Richardson, and denying the motion to suppress the physical evidence. The trial court found in its order that Morrison never asked for an attorney, Morrison did not state or indicate that he did not wish to talk to Detective Short, the statements made to Detective Short were not the product of intimidation, Morrison gave the statements almost twenty-four hours after he last consumed alcohol or cocaine, and Morrison's behavior from the time of his arrest to the time he gave the statements showed that he was sober and rational. The trial court further found that the statements were made after a valid waiver of Miranda[2] rights.

         At the postconviction evidentiary hearing, Morrison presented the expert testimony of Dr. Hyman Eisenstein and Dr. Joseph Wu to address, in part, his mental health at the time of the interrogation. Dr. Eisenstein, a neuropsychologist, diagnosed Morrison with organic brain damage, intellectual disability, and a substance abuse disorder. Dr. Eisenstein found that Morrison's substance abuse, brain injuries, and premature birth contributed to his organic brain damage. Dr. Eisenstein also concluded that Morrison's substance abuse impairs his cognitive abilities and that Morrison would admit to crimes he did not commit. Dr. Wu, a psychiatrist, testified regarding a PET scan of Morrison's brain and found that he had abnormal brain metabolism consistent with someone who likely has significant impairment on IQ. Dr. Wu also found that Morrison had an abnormal pattern to his frontal lobe consistent with a head injury.[3] Morrison presented the testimony of Delores Tims (Morrison's acquaintance) in support of his crack cocaine use within hours of his interrogation. Tims testified that Morrison was using crack cocaine at the time of his arrest on January 10, 1997. Morrison also presented the testimony of Joseph Turner (Morrison's friend) and Terry Heatly (Morrison's cousin) in support of his propensity to take the blame for others' crimes. Turner testified that Morrison previously "confessed to a crime [he] did not commit, " and Heatly testified that Morrison "would hold drugs for drug dealers and admit the drugs were his when the police came around."

         We conclude that the postconviction court's finding of prejudice conflicts with the legal standard for prejudice established in Strickland. As explained previously, the postconviction court found that trial counsel were deficient for failing to investigate Morrison's mental health at the time of the interrogation, crack cocaine use within hours of his interrogation, and propensity to take the blame for crimes he did not commit. The postconviction court ultimately concluded that Morrison was prejudiced by trial counsels' deficient performance because "[i]t is reasonable to find this evidence, had it been presented, could have changed the outcome of the proceedings." (Emphasis added.) However, the postconviction court's finding of prejudice is inconsistent with the second prong of Strickland, which requires "[t]he defendant [to] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694 (emphasis added). Strickland defined "a reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id.

         The postconviction court did not determine whether the evidence presented at the postconviction evidentiary hearing would have led the trial court to suppress or the jury to disregard Morrison's written statement to the police had that evidence been presented at the motion to suppress hearing and the guilt phase. Therefore, before considering whether Morrison was prejudiced under Strickland by trial counsels' alleged deficient performance, we first determine whether Morrison has shown that the presentation of such evidence at the motion to suppress hearing and the guilt phase would have led the trial court to suppress or the jury to disregard Morrison's written statement.

         Morrison has not shown that the evidence presented at the postconviction evidentiary hearing would have led the trial court to suppress or the jury[4] to disregard Morrison's written statement to the police as involuntary. "In examining whether a defendant's confession may be used as evidence against him, '[t]he test is . . . one of voluntariness, or free will, which is to be determined by an examination of the totality of the circumstances surrounding the confession.' " Baker v. State, 71 So.3d 802, 814 (Fla. 2011) (alterations in original) (quoting Owen v. State, 862 So.2d 687, 695 (Fla. 2003)). "Moreover, '[t]o establish that a statement is involuntary, there must be a finding of coercive police conduct.' " Id. (alteration in original) (quoting Schoenwetter v. State, 931 So.2d 857, 867 (Fla. 2006)). "Thus, whether a confession is admissible depends on (1) whether the interrogating officers engaged in coercive activity, and (2) whether that activity was sufficient to overcome the free will of the defendant." Id. "[T]he salient consideration in an analysis of the voluntariness of a confession is whether a defendant's free will has been overcome." Blake v. State, 972 So.2d 839, 844 (Fla. 2007) (alteration in original) (quoting Black v. State, 630 So.2d 609, 614-15 (Fla. 1st DCA 1993)). The ultimate issue of voluntariness is a legal rather than factual question. McCloud v. State, 208 So.3d 668, 677 (Fla. 2016).

         A review of the totality of the circumstances here confirms that Morrison voluntarily gave the written statement to the police. Morrison's written statement was not the product of improper coercion. Morrison was not threatened[5] or mistreated during the interrogation, and the police did not make any promises[6] to Morrison in exchange for his written statement. Although the police appealed to Morrison's religious beliefs, we conclude that their appeals were not so coercive as to render his written statement involuntary.[7] As the trial court found following the motion to suppress hearing, Morrison gave the written statement after validly waiving his Miranda rights. Morrison was advised of his Miranda rights at the time of arrest. Morrison was also advised of his Miranda rights when he arrived at the police station. At that time, Morrison signed a standard form attesting to the fact that he had been advised of his Miranda rights. Morrison was also reminded of his Miranda rights before he gave the written statement to the police. Although Morrison presented testimony at the postconviction evidentiary hearing regarding his mental health, the evidence is that Morrison clearly knew and understood his rights at the time of the interrogation, and Morrison has not shown otherwise. Morrison never asked for an attorney or stated or indicated that he did not wish to talk to Detective Short. Even accepting Tims' testimony, Morrison gave the written statement at least ten hours after he last consumed alcohol or cocaine and Morrison's behavior from the time of his arrest to the time he gave the written statement showed that he was sober and rational. Morrison never testified at the motion to suppress hearing or at the postconviction proceedings that he confessed to the police and was taking the blame for others, which would have contradicted his own testimony at the motion to suppress hearing that "he did not provide any inculpatory statements to [the] police." Morrison, 818 So.2d at 446. In any event, the testimony presented at the postconviction evidentiary hearing regarding Morrison's purported propensity to take the blame for others' crimes does not establish that Morrison did so in this case or render Morrison's written statement involuntary under the totality of the circumstances presented.

         Nor has Morrison shown that the evidence presented at the postconviction evidentiary hearing would have led the jury to disregard his written statement as unreliable. Morrison's written statement established that he knew the location of the murder weapon, which is consistent with the significant fact that "Morrison led the detectives to the knife that he said he used to kill the victim, " id. at 439, and the State presented evidence at trial that blood located on the blade of the knife matched the DNA of the victim. Morrison's written statement established that he knew that the victim's throat was sliced and stabbed with the victim's own knife, which was consistent with the evidence presented at trial. See id. at 437-39, 452. Morrison's written statement indicated that he went to the victim's apartment sometime after 9 p.m. on January 8, 1997. See id. at 438. Consistent with the written statement, Sandra Brown (Morrison's girlfriend) placed Morrison near the scene of the crime on the night of the murder. See id. Morrison's written statement also indicates that he stole money from the victim, which is consistent with the fact that "Morrison was seen shortly after the murder attempting to sell silver coins, similar in size and appearance to coins owned by [the victim] and missing from [the victim's] apartment after the murder." Id. at 439. Furthermore, immediately upon arrest, Morrison asked if the arrest "was about that old man." Id. at 438.

         Under these circumstances, Morrison cannot demonstrate prejudice such that our confidence in the outcome is undermined. We therefore reverse the postconviction court's granting of a new guilt phase on this issue.

         B. Ineffective Assistance of Counsel Regarding Trial Counsel's Guilt Phase Investigation

         The second issue presented in the State's appeal is whether the postconviction court erred in finding that trial counsel Eler was ineffective for failing to adequately investigate and prepare for the guilt phase. Specifically, the postconviction court found that trial counsel was deficient for failing to adequately investigate: (1) an alibi defense; (2) the State's timeline; (3) a voluntary intoxication defense; and (4) the victim's relationship with Brown. Of these four subclaims, the postconviction court only found that trial counsel's failure to present evidence at the guilt phase regarding the voluntary intoxication defense resulted in prejudice. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.