Paul Durousseau v. State of Florida

Supreme Court of Florida

______________

No. SC15-1276

______________

PAUL DUROUSSEAU,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[January 31, 2017]

PER CURIAM.

Paul Durousseau appeals an order of the Fourth Judicial Circuit Court

denying his motion to vacate his conviction of first-degree murder and sentence of

death, filed pursuant to Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons discussed below, we

affirm the circuit court’s denial of postconviction relief but vacate Durousseau’s

sentences and remand for resentencing in light of Hurst v. Florida, 136 S. Ct. 616

(2016), as interpreted by Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016).

STATEMENT OF FACTS

We discussed the facts of this case in our opinion on direct appeal. See

Durousseau v. State, 55 So. 3d 543, 548-50 (Fla. 2010). Paul Durousseau was

sentenced to death for the murder of Tyresa Mack. In 1999, Mack’s sister and

stepfather found Mack’s body in her apartment. She was naked from the waist

down, and a white cord was wrapped around her neck. Durousseau’s DNA was

found inside Mack’s vagina. In 2003, Durousseau was indicted on five counts of

first-degree murder for the deaths of five women. The similar methodology of the

crimes caused investigators to conclude that Mack was one of Durousseau’s

victims. Durousseau was arrested for Mack’s murder.

In 2007, Durousseau was found guilty of the first-degree murder of Mack.

After the penalty phase, the jury voted ten to two to impose a death sentence. The

trial court found four aggravating factors: (1) Durousseau was previously

convicted of a felony involving the use or threat of violence; (2) the murder was

committed while the defendant was engaged in the commission of a robbery or

sexual battery; (3) the murder was committed for pecuniary gain; and (4) the

murder was especially heinous, atrocious, or cruel. The trial court did not find any

statutory mitigating circumstances, but it did find sixteen nonstatutory mitigating

-2-

circumstances.1 Ultimately, the trial court sentenced Durousseau to death. Id. at

550. On December 9, 2010, this Court rejected all of Durousseau’s claims2 on

direct appeal. Id. at 564, cert. denied, 132 S. Ct. 149 (2011).

1. The trial court found the following sixteen nonstatutory mitigators: (1)

Durousseau was raised in a broken home (little weight); (2) Durousseau was raised

without the benefit of his natural father and lost the love and support of his

stepfather at an early age (little weight); (3) Durousseau grew up in poverty and

came from a deprived background (little weight); (4) Durousseau was raised in a

violent neighborhood and was exposed to violence and the threat of violence to his

person on a daily basis (little weight); (5) Durousseau personally witnessed his

stepfather physically abuse his mother (moderate weight); (6) Durousseau was

beaten as a means of discipline as a child (little weight); (7) Durousseau worked

continuously through his adult life (little to moderate weight); (8) Durousseau

enlisted and served in the United States Army for approximately six years

(moderate weight); (9) Durousseau has supported his two children and is a loving

and caring father (little weight); (10) Durousseau has been a loving, respectful son

to his mother and cared for her during several periods of illness and incapacitation

(moderate weight); (11) Durousseau has been a good brother to his siblings and to

other family members, helping to care for and watch over his cousins (moderate to

significant weight); (12) Durousseau saved his cousin’s life and his brother’s life

(moderate weight); (13) Durousseau has the support of family and friends who

continue to love him (little weight); (14) Durousseau has alcohol abuse issues on

both the maternal and paternal sides of his family; despite this, Durousseau has

never abused alcohol or illicit drugs (very little weight); (15) society can be

protected by a life sentence without parole (very little weight); (16) Durousseau

has exhibited good behavior during the trial of this cause (little weight).

2. Durousseau raised the following claims on direct appeal: (1) the trial

court erred in admitting Williams rule evidence of the two other murders; (2) the

trial court erred in denying Durousseau’s motion for judgment of acquittal of

felony murder with robbery as the underlying offense and that the evidence is

legally insufficient to support the pecuniary gain aggravator; (3) the trial court

erred in rejecting an expert’s opinion testimony regarding mental mitigation in

favor of conflicting lay testimony; (4) the evidence was insufficient to support a

first-degree murder conviction; and (5) the trial court erred in denying

Durousseau’s motion to declare Florida’s capital sentencing scheme

-3-

On October 1, 2012, Durousseau filed a motion for postconviction relief in

the circuit court. Durousseau raised two claims in his postconviction motion: (1)

that counsel was ineffective for failing to request additional physical and

psychiatric testing; and (2) that counsel was ineffective for failing to conduct a

meaningful voir dire. However, before the evidentiary hearing, Durousseau

abandoned his first claim. On April 9, 2015, the postconviction court began an

evidentiary hearing that lasted two days. Ultimately, the postconviction court

denied Durousseau’s claim that counsel had failed to secure additional physical

and mental testing. Durousseau appealed to this Court, arguing that trial counsel

was ineffective because she failed to conduct meaningful voir dire. While his

appeal was pending in this Court, the United States Supreme Court decided Hurst

v. Florida, 136 S. Ct. 616 (2016), holding that Florida’s death penalty sentencing

statute violated the Sixth Amendment. In light of Hurst v. Florida, Durousseau

filed supplemental briefing, arguing that his death sentence should be vacated.

ANALYSIS

Durousseau alleges that (1) his counsel was ineffective during voir dire, and

(2) his death sentence violates Hurst v. Florida. We first reject Durousseau’s claim

unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). Durousseau, 55 So.

3d at 550.

-4-

that his trial counsel, Ann Finnell, was ineffective during voir dire.3 We then hold

that Durousseau’s death sentence is unconstitutional under Hurst v. Florida.

Ineffective Assistance of Counsel

First, Durousseau argues that Finnell was ineffective for asking more

collective questions than individual questions. Second, Durousseau argues that the

postconviction court erred in finding that Finnell was not ineffective for failing to

inquire further of, and move to strike, two specific jurors and one alternate juror.

We reject both arguments.

In accordance with Strickland v. Washington, 466 U.S. 668 (1984), we

review claims of ineffective assistance of counsel as follows:

First, the claimant must identify particular acts or omissions of the

lawyer that are shown to be outside the broad range of reasonably

competent performance under prevailing professional standards.

Second, the clear, substantial deficiency shown must further be

demonstrated to have so affected the fairness and reliability of the

proceeding that confidence in the outcome is undermined.

Long v. State, 118 So. 3d 798, 805 (Fla. 2013) (quoting Bolin v. State, 41 So. 3d

151, 155 (Fla. 2010)). Additionally,

3. In light of our decision that Hurst v. Florida requires us to vacate

Durousseau’s death sentence, we decline to address Durousseau’s argument that

Finnell was ineffective because she failed to adequately inquire of the venire

members about their attitudes toward aggravating and mitigating factors affecting

the imposition of the death penalty and did not sufficiently question the voir dire

with the specific aggravators and mitigators that applied to Durousseau.

-5-

[t]here is a strong presumption that trial counsel’s performance was

not deficient. See Strickland, 466 U.S. at 690. “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. The defendant carries

the burden to “overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial

strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101

(1955)). “Judicial scrutiny of counsel’s performance must be highly

deferential.” Id. “[S]trategic decisions do not constitute ineffective

assistance of counsel if alternative courses have been considered and

rejected and counsel’s decision was reasonable under the norms of

professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048

(Fla. 2000). Furthermore, where this Court previously has rejected a

substantive claim on the merits, counsel cannot be deemed ineffective

for failing to make a meritless argument. Melendez v. State, 612 So.

2d 1366, 1369 (Fla. 1992).

In demonstrating prejudice, the defendant must show 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.

Long, 118 So. 2d at 805-06 (parallel citations omitted).

Because both prongs of the Strickland test present mixed questions of

law and fact, this Court employs a mixed standard of review,

deferring to the circuit court’s factual findings that are supported by

competent, substantial evidence, but reviewing the circuit court’s legal

conclusions de novo.

Shellito v. State, 121 So. 3d 445, 451 (Fla. 2013) (citing Mungin v. State, 79 So.

3d 726, 737 (Fla. 2011); Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004)).

With respect to claims that counsel was ineffective during voir dire, the

“[e]ffective assistance of trial counsel includes a proficient attempt to empanel a

-6-

competent and impartial jury through the proper utilization of voir dire, challenges

to venire members for cause, and the proper employment of peremptory challenges

to venire members.” Nelson v. State, 73 So. 3d 77, 85 (Fla. 2011). The test for

competency and impartiality is whether a juror is capable of placing any bias aside

and is willing to render a verdict recommendation based exclusively on the

evidence and instruction of law presented at trial. Id.

In reviewing an attorney’s performance, we must be highly deferential and

make every effort 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.” Strickland, 466 U.S. at 689. In light of

the challenges in evaluating counsel’s performance, we must “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. If the defendant fails to make a showing of one

Strickland prong, it is not necessary to analyze whether the defendant satisfies the

other prong. Id. at 691-692.

To establish deficiency, a defendant must first specifically identify acts or

omissions of counsel that were manifestly outside the wide range of reasonably

competent performance under prevailing professional norms. Lynch v. State, 2 So.

3d 47, 56-57 (Fla. 2008). Counsel will not be deemed deficient where her actions

constituted a strategy within the bounds of professional norms. Occhicone, 768

-7-

So. 2d at 1048 (concluding it was a reasonable strategy to not present additional

evidence at trial to ensure the defendant would have the first and last word during

closing argument). “The issue is not what present counsel or this Court might now

view as the best strategy, but rather whether the strategy was within the broad

range of discretion afforded to counsel actually responsible for the defense.” Id. at

1049.

First, Durousseau argues that Finnell was ineffective for asking more

collective questions than individual questions that would have led to an informed

method of exercising juror challenges. We affirm the postconviction court’s

finding that Finnell’s collective questioning did not prejudice Durousseau.

Durousseau suggests that he may have been prejudiced by trial counsel’s

failure to ask individual questions of the venire members or by counsel’s failure to

follow up with additional questions. Specifically, Durousseau hypothesizes that

Finnell lacked a complete understanding of the jury in light of her failure to ask

more individual questions. Durousseau likewise hypothesizes that as a

consequence, Finnell’s jury strikes were based on incomplete information. We

have previously rejected ineffective assistance claims like these.

To show prejudice, [the defendant] argues that [his trial counsel]

could possibly have learned more about the jurors’ views and used his

peremptory challenges in a different manner to obtain a more defense-

friendly jury. Such speculation fails to rise to the level of ineffective

assistance under Strickland.

-8-

Johnson v. State, 921 So. 2d 490, 503-04 (Fla. 2005) (footnote omitted). We have

likewise rejected “alleg[ations] that if counsel had ‘followed up’ during voir dire

with more specific questions, there would have been a basis for a for-cause

challenge” as “mere conjecture.” Reaves v. State, 826 So. 2d 932, 939 (Fla. 2002);

see also Wade v. State, 156 So. 3d 1004, 1033 (Fla. 2014) (“Wade’s claim that

‘there would have been a basis for a for cause challenge if counsel had followed up

during voir dire with more specific questions is speculative.’ ” (quoting Green v.

State, 975 So. 2d 1090, 1105 (Fla. 2008))).

Durousseau’s arguments are likewise conjectural and speculative.

Durousseau asserts that Finnell’s failure to ask sufficient individual questions

precluded her from obtaining the information necessary to make intelligent use of

juror challenges. Durousseau does not identify what information individual

questioning would have revealed, nor how that information could have changed his

jury make-up or lead to a different result. Accordingly, we affirm the

postconviction court’s finding that Durousseau did not suffer any prejudice.

Second, Durousseau argues that the postconviction court erred in finding

that Finnell was not ineffective for failing to exhaust all of her peremptory

challenges, failing to request additional challenges, and failing to challenge the

jury panel. We again affirm the postconviction court’s findings in denying these

claims.

-9-

The postconviction court found that Durousseau did not identify any

prospective juror that would have been better qualified to sit on the jury than the

jury eventually seated. Durousseau’s argument on appeal contains the same defect.

We have held that this defect is fatal to this type of claim of ineffective assistance

of counsel. See, e.g., Peterson v. State, 154 So. 3d 275, 282 (Fla. 2014) (“Peterson

does not point to any particular venire member [who] would have been better

qualified to serve in place of a seated juror.”). Accordingly, we affirm the

postconviction court’s finding.

Durousseau also specifically argues that Finnell should have further inquired

into three of the potential jurors: (1) alternate juror Markley, (2) juror Norrie, and

(3) juror Cummins. The postconviction court rejected Durousseau’s ineffective

assistance of counsel claims regarding Finnell’s questioning and challenging of

these jurors. We likewise affirm the postconviction court’s findings with regard to

these three jurors.

As to juror Markley, the postconviction court found that Finnell’s actions

did not prejudice Durousseau because juror Markley was an alternate juror and

never deliberated in Durousseau’s trial. We agree. Assuming that further

questioning would have revealed information demonstrating, for instance, juror

Markley’s bias against Durousseau, “prejudice can be shown only where one who

was actually biased against the defendant sat as a juror.” Carratelli v. State, 961

- 10 -

So. 2d 312, 324 (Fla. 2007) (emphasis added); see also Dillbeck v. State, 964 So.

2d 95, 102 (Fla. 2007) (upholding a postconviction court’s finding, which stated,

“Two of the complained of jurors were alternates only who did not participate in

the jury’s verdict. Dillbeck cannot show prejudice based on alternate jurors [who]

never served.”) Because juror Markley served only as an alternate juror, we affirm

the postconviction court’s finding.

As to jurors Norrie and Cummins—who served on Durousseau’s jury and

deliberated as to his guilt and punishment—we likewise affirm the postconviction

court’s findings that Finnell was not deficient for her allegedly insufficient

questioning of these two jurors. Durousseau does not identify the particular

information that further questioning of these two jurors would have revealed, and

so cannot demonstrate that this undiscovered information would have produced

grounds to disqualify either juror. As we earlier noted, a postconviction movant

cannot demonstrate counsel’s ineffectiveness with speculative assertions that

further questioning of a juror during voir dire could have developed more

information that may have disqualified the juror. See Wade, 156 So. 3d at 1033;

Green, 975 So. 2d at 1105; Johnson, 921 So. 2d at 503-04; Reaves, 826 So. 2d at

939.

Durousseau also argues that Finnell was ineffective for failing to strike

alternate juror Markley and jurors Norrie and Cummins from the jury. The

- 11 -

postconviction court also rejected this claim, and we affirm. A postconviction

movant “must demonstrate that [a particular juror] was actually biased, not merely

that there was doubt about [the juror’s] impartiality.” Owen v. State, 986 So. 2d

534, 550 (Fla. 2008). Durousseau does not allege that any of the three were

actually biased and thus prejudiced Durousseau at trial. Rather, Durousseau

merely raises the possibility that alternate juror Markley and jurors Norrie and

Cummins might have deserved a for-cause challenge, and counsel was ineffective

for failing to strike these potentially problematic jurors. Accordingly, we affirm

the postconviction court’s rejection of this claim. Id.

Durousseau also argues that we should not apply the “actual bias” standard

in this case because Finnell’s failure to better inquire of jurors is responsible for

Durousseau’s inability to point to specific information about juror bias. We reject

this contention because it is the postconviction movant’s responsibility to

demonstrate juror bias, irrespective of the alleged failures of trial counsel. See,

e.g., Boyd v. State, 200 So. 3d 685, 699 (Fla. 2015). Once the postconviction

movant identifies the juror’s bias, the movant must identify the manner in which

trial counsel was deficient by failing to uncover information during voir dire that

would have demonstrated the bias. See id. Accordingly, we reject Durousseau’s

argument and determine that we appropriately apply the “actual bias” standard in

this case.

- 12 -

Durousseau has failed to demonstrate that his counsel was ineffective during

voir dire. Accordingly, we reject his ineffective assistance of counsel claims.

Hurst v. Florida & Hurst

In Hurst v. Florida, the United States Supreme Court held that Florida’s

capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment

requires a jury, not a judge, to find each fact necessary to impose a sentence of

death. A jury’s mere recommendation is not enough.” 136 S. Ct. at 619.

Durousseau’s death sentence was imposed under an unconstitutional capital

sentencing statute. Hurst v. Florida and Hurst apply retroactively to Durousseau,

whose sentence became final in 2010. See Mosley v. State, 41 Fla. L. Weekly

S629 (Fla. Dec. 22, 2016). The remaining question is whether the Hurst error was

harmless beyond a reasonable doubt.

A Hurst error is capable of harmless error review. See Hurst, 202 So. 3d at

67. Here we determine that the Hurst error during Durousseau’s penalty phase

proceeding was not harmless beyond a reasonable doubt. As this Court explained

in Hurst:

The harmless error test, as set forth in Chapman [v. California,

386 U.S. 18 (1967),] and progeny, places the burden on the state, as

the beneficiary of the error, to prove beyond a reasonable doubt that

the error complained of did not contribute to the verdict or,

alternatively stated, that there is no reasonable possibility that the

error contributed to the conviction.

- 13 -

Hurst, 202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.

1986)). The Court further discussed the lens through which harmless error should

be evaluated:

Where the error concerns sentencing, the error is harmless only if

there is no reasonable possibility that the error contributed to the

sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).

Although the harmless error test applies to both constitutional errors

and errors not based on constitutional grounds, “the harmless error

test is to be rigorously applied,” DiGuilio, 491 So. 2d at 1137, and the

State bears an extremely heavy burden in cases involving

constitutional error. Therefore, in the context of a Hurst v. Florida

error, the burden is on the State, as the beneficiary of the error, to

prove beyond a reasonable doubt that the jury’s failure to

unanimously find all the facts necessary for imposition of the death

penalty did not contribute to Hurst’s death sentence in this case. We

reiterate:

The test is not a sufficiency-of-the-evidence, a correct

result, a not clearly wrong, a substantial evidence, a more

probable than not, a clear and convincing, or even an

overwhelming evidence test. Harmless error is not a

device for the appellate court to substitute itself for the

trier-of-fact by simply weighing the evidence. The focus

is on the effect of the error on the trier-of-fact.

DiGuilio, 491 So. 2d at 1139. “The question is whether there is a

reasonable possibility that the error affected the [sentence].” Id.

Hurst, 202 So. 3d at 68 (alteration in original). Regarding the right to a jury trial, it

must be clear beyond a reasonable doubt that a rational jury would have

unanimously found that there were sufficient aggravating factors and that the

aggravating factors outweighed the mitigating circumstances. See id. at 44.

- 14 -

In the present case, the jury did not make any of the requisite factual

findings beyond a reasonable doubt. Rather, the jury only issued a

recommendation of death by a vote of ten to two. Further, although the

aggravating circumstance of a prior violent felony was found unanimously by

virtue of Durousseau’s previous murder convictions, whether this aggravating

circumstance was sufficient to impose death requires a unanimous jury

determination. Hurst, 202 So. 3d at 44. Moreover, there is no way of knowing if

the jury found any of the other three aggravating circumstances unanimously or, if

any aggravators were unanimously found, whether the jury also unanimously

found those aggravators sufficient to qualify for a death sentence. Further, we

cannot conclude that the two jurors who voted to recommend life found that the

aggravation outweighed the mitigation.

Accordingly, we conclude that the Hurst violation was not harmless, and

Durousseau is entitled to a new penalty phase. As we have done for other capital

defendants, we reject Durousseau’s argument that section 775.082(2), Florida

Statutes (2015), entitled him to be resentenced to life imprisonment. See Hurst,

202 So. 3d at 44, 63-66.

CONCLUSION

Because Durousseau’s death sentence was imposed in violation of the Sixth

Amendment right to a jury determination of every critical finding necessary for the

- 15 -

imposition of the death sentence and Florida’s independent right to jury trial, and

because we conclude that the Hurst error is not harmless beyond a reasonable

doubt, we vacate Durousseau’s death sentence and remand for a new penalty

phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, J., concurs in part and dissents in part with an opinion, in which

POLSTON, J., concurs.

PERRY, Senior Justice, concurs in part and dissents in part with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

CANADY, J., concurring in part and dissenting in part.

I concur with the decision to affirm the denial of relief regarding

Durousseau’s conviction. But I dissent from the decision to require a new penalty

phase. As I have previously explained, Hurst v. Florida, 136 S. Ct. 616 (2016),

should not be given retroactive effect. See Mosley v. State, 41 Fla. L. Weekly

S629, 2016 WL 7406506 (Fla. Dec. 22, 2016) (Canady, J., concurring in part and

dissenting in part).

POLSTON, J., concurs.

PERRY, Senior Justice, concurring in part and dissenting in part.

I concur with the majority’s decision to affirm the postconviction court’s

denial of relief as it pertains to Durousseau’s convictions and determination that

- 16 -

the Sixth Amendment requires that we vacate Durousseau’s death sentence.

However, because Florida law requires that Durousseau be sentenced to life in

prison as a consequence of his unconstitutional death sentence, I disagree with the

majority’s decision to remand for a new penalty phase proceeding instead of

remanding for imposition of a life sentence. See § 775.082(2), Fla. Stat. (2016).

As I explained fully in Hurst v. State, 202 So. 3d 40, 75-76 (Fla. 2016)

(Perry, J., concurring in part and dissenting in part), there is no compelling reason

for this Court not to apply the plain language of section 775.082(2), Florida

Statutes. Because the majority of this Court has determined that Durousseau’s

death sentence was unconstitutionally imposed, Durousseau is entitled to the clear

and unambiguous statutory remedy that the Legislature has specified:

In the event the death penalty in a capital felony is held to be

unconstitutional by the Florida Supreme Court or the United States

Supreme Court, the court having jurisdiction over a person previously

sentenced to death for a capital felony shall cause such person to be

brought before the court, and the court shall sentence such person to

life imprisonment as provided in subsection (1).

See § 775.082(2), Fla. Stat. (emphasis added). The plain language of the statute

does not rely on a specific amendment to the United States Constitution, nor does it

refer to a specific decision by this Court or the United States Supreme Court.

Further, it does not contemplate that all forms of the death penalty in all cases must

be found unconstitutional. Instead, the statute uses singular articles to describe the

circumstances by which the statute is triggered. Indeed, the statute repeatedly

- 17 -

references a singular defendant being brought before a court for sentencing to life

imprisonment. I consequently cannot agree that the statute was intended as a fail-

safe mechanism for when this Court or the United States Supreme Court declared

that the death penalty was categorically unconstitutional. Cf. Hurst v. State, 202

So. 3d at 40 (Perry, J., concurring in part and dissenting in part).

An Appeal from the Circuit Court in and for Duval County,

Jack Marvin Schemer, Judge - Case No. 162003CF010182AXXXMA

Richard Adam Sichta of The Sichta Firm, LLC, Jacksonville, Florida; and Billy

Horatio Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,

Tallahassee, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Carine L. Mitz, Assistant Attorney General,

and Robert James Morris, III, Assistant Attorney General, Tallahassee, Florida,

for Appellee

- 18 -