FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Broward County,
Ilona M. Holmes, Judge - Case No. 062005CF016477A88810 And An
Original Proceeding - Habeas Corpus
A. Dupree, Capital Collateral Regional Counsel, and Suzanne
Myers Keffer, Chief Assistant Capital Collateral Regional
Counsel, Southern Region, Fort Lauderdale, Florida, for
Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie
Lerner and Ilana Mitzner, Assistant Attorneys General, West
Palm Beach, Florida, for Appellee/Respondent
Kurt Patrick, a prisoner under sentence of death, appeals an
order denying his motion for postconviction relief filed
under Florida Rule of Criminal Procedure 3.851. Patrick also
petitions this Court for a writ of habeas corpus. We have
jurisdiction. See art. V, § 3(b)(1), (9), Fla.
Const. For the reasons that follow, we affirm in part and
reverse in part the postconviction court's denial of
Patrick's postconviction motion and remand for an
evidentiary hearing on one claim. We grant Patrick's
petition for writ of habeas corpus, which raises a valid
claim under Hurst v. Florida, 136 S.Ct. 616 (2016),
and Hurst v. State (Hurst), 202 So.3d 40
(Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017).
2009, Patrick was convicted of the kidnapping, robbery, and
first-degree murder of Steven Schumacher. Patrick v.
State, 104 So.3d 1046, 1054 (Fla. 2012). On direct
appeal, we affirmed his convictions and sentences, including
a sentence of death for the murder, and summarized the
guilt-phase evidence as follows:
Eric Kurt Patrick was recently released from prison and
homeless when he met Steven Schumacher at Holiday Park during
a rain shower when both men took shelter under a pavilion.
Schumacher invited Patrick to lunch, then to stay with him at
his home until Patrick was back on his feet. On the night of
Sunday, September 25, 2005, Patrick beat Schumacher to death.
Patrick left Schumacher's apartment and took
Schumacher's truck and parked it at the Tri-Rail station.
Patrick withdrew approximately $900 from Schumacher's
bank account using his ATM card in three separate
transactions. Patrick was arrested after a separate,
unrelated encounter with Deputy Kurt Bukata. Patrick [later]
confessed to beating Schumacher, stated that he was afraid
Schumacher was dead, and that he didn't mean to kill him.
. . . .
On the night of the murder, Patrick and Schumacher drank
beers and went to bed. Patrick gave Schumacher a massage,
then they both lay naked in bed. According to Patrick,
Schumacher attempted anal sex, which Patrick refused. Patrick
stated that Schumacher was "riding up on [him] squeezing
[him]." After Patrick told him to stop, Schumacher
stopped but tried again later. Patrick then explained that he
"cut loose on [Schumacher]."
Patrick admitted and the evidence verified that Patrick beat
Schumacher in the bedroom, beginning in the bed. He began
hitting Schumacher with his fists but also beat him with a
wooden box because his hands hurt so badly. Schumacher's
nose was broken and his face was cut. He was hit so hard that
his teeth were broken. Patrick then tied up Schumacher using
a telephone cord at the base of the bed, then taped his mouth
when Schumacher yelled for help. Patrick did not want
Schumacher "to go to the law" on him. Patrick put
Schumacher in the bathtub on his side where Schumacher was
later found dead.
Jenny Scott and Robert Lyon, Schumacher's friends,
usually saw him daily. They last saw Schumacher on [Sunday, ]
September 25, 2005 . . . . Scott did not hear from Schumacher
[after that time, ] and she also noticed his truck was
missing. When Scott went to check on Schumacher on Tuesday,
he did not answer so she called the Sheriff's Department.
Deputy James Snell responded to Scott's call. They both
went into the apartment and saw that the bedroom was dark and
disarrayed. Both Deputy Snell and Scott saw blood stains
throughout the room. At that point, Scott ran out of the
apartment. Deputy Snell found Schumacher's body in the
bathtub. The body was very bloody and the hands and ankles
were bound in the back; the head and face were taped, with
the face resting on the drain. The pants were pulled down
although still on the body. The body was cold and stiff and
the blood had pooled. The ankles were bound with torn sheets
and a knotted lamp cord. The wrists were bound by a telephone
cord and tape. There was bruising on an elbow, the chin, and
the top of the head. The tape on the head went both
horizontally and vertically and there was a pillow case
folded over the mouth under the tape. The tape seemed to be
one continuous piece. Deputy Snell informed Scott that
Schumacher was dead. Scott then provided the police with a
description of Patrick.
The deputies found no evidence of forced entry into the
apartment. Additionally, they discovered that the air
conditioning was set at sixty degrees so all the windows had
condensation on them. In the kitchen trash, the deputies
found tape matching that used on Schumacher's face.
Schumacher's wallet was in the living room. There were
bloody footprints on the tile, a large blood stain on the
bedroom carpet, and blood spatter on the dresser and wall.
The bedroom lamp was cracked and missing its cord. A cord was
in the bed under the sheets. There was blood spatter on the
sheets and headboard. Teeth were found in the bedclothes. A
broken box with blood on it was under the dresser.
Deputy Kurt Bukata ran into Patrick at a gas station and
arrested him on an outstanding warrant. Patrick had injuries
on his knuckles and was carrying a duffel bag. Patrick also
had some abrasions on his upper body. Bukata inventoried the
duffel bag and found blood-stained boots, jeans, briefs, and
socks. . . . DNA tests identified Schumacher's blood on
Id. at 1053-54.
jury recommended a death sentence by a vote of seven to five.
The trial court followed the jury's recommendation,
finding seven aggravators and sixteen nonstatutory mitigating
circumstances. On appeal, this Court struck one
aggravator (cold, calculated, and premeditated) but affirmed
the death sentence, finding the consideration of this
aggravator harmless error. Id. at 1055, 1068.
Patrick's death sentence became final in 2013.
Patrick v. Florida, 571 U.S. 839 (2013).
Patrick timely filed his initial motion for postconviction
relief under Florida Rule of Criminal Procedure 3.851,
followed by a corrected motion, raising seven claims with
subparts. Patrick later sought leave to amend his
rule 3.851 motion to add a Hurst v. Florida claim.
The postconviction court accepted the amendment and, after an
evidentiary hearing on certain claims, denied the motion in
its entirety. As to the Hurst v. Florida claim, the
postconviction court noted that this Court had not yet
determined whether the holding in that case would have
retroactive effect and denied the claim without prejudice to
Patrick's filing a future motion on the same grounds once
this Court resolved the retroactivity issue in then-pending
appealed the denial of his rule 3.851 motion and filed a
petition for writ of habeas corpus with this Court,
requesting relief under Hurst v. Florida and
Hurst. In his appeal, Patrick argues that the
postconviction court erred with respect to the following
claims: (1) that he is entitled to a new penalty phase under
Hurst v. Florida; (2) that trial counsel was
ineffective for failing to contest Patrick's
Miranda waiver and the voluntariness of his
confession; (3) that trial counsel was ineffective for
failing to raise a Frye challenge to shoeprint
evidence or otherwise contest its credibility; (4) that trial
counsel was ineffective for failing to investigate and
present certain mitigation evidence at Patrick's penalty
phase; and (5) that trial counsel was ineffective for failing
to adequately question or challenge two jurors during voir
dire. We find no reversible error in the postconviction
court's procedural ruling that Patrick's Hurst v.
Florida claim was premature, as it was presented to the
postconviction court before this Court decided the
retroactivity of that decision and Hurst in
Mosley v. State, 209 So.3d 1248, 1276 (Fla. 2016).
However, as explained below, we grant Patrick a new penalty
phase under Hurst v. ...