Opposition Brief — Harvey v. Florida (No. 06-1368)

FILED

} JUN 22 2007

Case No. 06-1368 OFFICE OF THE CLERK

SUPREME CQUAT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

RE A A A RR SR

HARCLD LEE HARVEY, Petitioner,

Vv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

BRIEF OF RESPONDENT IN OPPOSITION

BILL McCOLLUM

ATTORNEY GENERAL

CELIA TERENZIO*

Bureau Chief, Criminal Appeals

OFFICE OF THE ATTORNEY GENERAL

1515 North Flagler Drive, 9" Floor

West Palm Beach, FL 33401

(561) 837-5000

*Counsei of Record

Ta

QUESTIONS PRESENTED

]. WHETHER CERTIORARI REVIEW IS

WARRANTED TO REVIEW A _ STATE

COURT’S RULING WHICH IS MERELY AN

APPLICATION OF LONG STANDING

PRECEDENT FROM THIS COURT

Il. WHETHER CERTIORARI REVIEW IS

WARRANTED TO REVIEW A _ STATE

COURT’S RULING WHICH IS MERELY AN

APPLICATION OF LONG STANDING

PRECEDENT FROM THIS COURT

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

QUESTION |

CERTIORARI REVIEW IS NOT

WARRANTED AS THE STATE COURT’S

DETERMINATION WAS PREMISED ON AN

APPLICATION OF STRICKLAND _v.

WASHINGTON, AND FLORIDA v. NIXON;

THE DECISION BELOW DOES CONFLICT

WITH ANY OTHER FEDERAL OR STATE

CASE OPINION AND THE FLORIDA

SUPREME COURT’S FACTUAL FINDINGS

ARE SUPPORTED BY THE RECORD

(CLAIMS I and II restated)

QUESTION II

CERTIORARI REVIEW IS_ NOT

WARRANTED AS THE STATE COURT’S

DETERMINATION REASONABLY APPLIED

THE STANDARDS SET FORTH IN

STRICKLAND IN DETERMINING THAT

TRIAL COUNSEL'S DECISION TO FOREGO

ONE AVENUE OF MITIGATING EVIDENCE

IN ORDER TO PURSUE ANOTHER WAS

REASONABLE. (CLAIM III restated)

CONCLUSION

TABLE OF AUTHORITIES

Cases

Asay v. State,

769 So. 2d 974 (Fla.2000)

Bartlett v. Stephenson ,

535 U.S. 1301 (2002)

Butz v. Glover Livestock Commission C.,

411 U.S. 182 (1973)

Chevron U.S.A.., Inc. v. Sheffield ,

471 U.S. 1140 (1985)

Commonwealth v. Gorby,

909 A.2d 775 (Pa. 2006)

Daniels v. Woodford,

428 F.3d 1181 (9th Cir. 2005)

Florida v. Nixon,

543 U.S. 175 (2004)

Floyd v. State,

497 So. 2d 1211 (Fla. 1986)

Goeders v. Hundley,

59 F.3d 73 (8th Cir. 1995)

Hale v. Gibson,

227 F.3d 1298 (10th Cir. 2000)

Hargrave v. State,

366 So. 2d | (Fla. 1978), cert. denied, 444 U.S. 919,

62 L. Ed. 2d 176, 100 S. Ct. 239 (1979)

Harvey v. State,

656 So. 2d 1253 (Fla. 1995)

Harvey v. State,

529 So. 2d 1083 (Fla. 1988)

Harvey v. State,

946 So. 2d 937 (Fla. 2004)

Hildwin v. Dugger,

654 So. 2d 107 (Fla.1995)

Hughes v. United States,

258 F.3d 453 (6th Cir. 2001)

Johnson v. Armontrout,

961 F.2d 748 (8th Cir. 1992)

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387 (1923)

T

Nguyen v. Reynolds,

13] F.3d 1340 (10th Cir. 1997)

Phillips v. State,

476 So. 2d 194 (Fla. 1985)

Powell v. Nevada,

511 U.S. 79 (1994)

Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70 (1955)

Rockford Life Insurance Co. v. Illinois

Department of Revenue

482 U.S. 182 (1987)

Roe v. Flores-Ortega,

528 U.S. 470 (2000)

Rogers v. State,

511 So. 2d 526 (Fla. 1987)

Rompilla v. Beard,

545 U.S. 374 (2005)

Rose v. State.

675 So. 2d at 572

Smith v. Phillips,

455 U.S. 209, 71 L. Ed. 2d 78,

102 S. Ct. 940 (1981)

State v. Lara,

581 So. 2d 1288 (Fla.1991)

Strickland v. Washington,

466 U.S. 668 (1984)

Teague v. Scott,

60 F.3d 1167 (Sth Cir. 1995)

United States v. Cronic,

466 U.S. 648 (1984)

Virgil v. Dretke,

446 F.3d 598 (Sth Cir. 2006)

Wiggins v. Smith,

539 U.S. 510 (2003)

28 U.S.C. §1257

Case No.

IN THE SUPREME COURT OF THE UNITED STATES

HAROLD LEE HARVEY, Petitioner,

v.

STATE OF FLORIDA, Respondent.

OPINIONS BELOW

The opinion below has been reported as Harvey v. State,

946 So.2d 937 (Fla. 2004), and Harvey v. State, 656 So.2d 1253

(Fla. 1995).

JURISDICTION

Petitioner is seeking jurisdiction pursuant to 28 U.S.C.

§1257. Although this is the appropriate provision, the

requirements of same have not been met.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondent accepts as accurate Petitioner’s statement

regarding the applicable constitutional provisions involved.

STATEMENT OF THE CASE AND FACTS

Respondent rejects petitioner’s statement of the facts as

they are incomplete and argumentative. Respondent relies on the

facts as recounted below from the direct appeal, the facts

recounted in the two postconviction appeals from the Florida

Supreme Court, and those facts that appear in the argument

section of this response.

The Florida Supreme Court recounted the evidence as

follows:

On February 23, 1985, Harold Lee Harvey met

with Scott Stiteler, his codefendant at trial, and

drove to the home of William and Ruby Boyd,

intending to rob them. Upon their arrival, Stiteler

knocked on the front door. In the meantime,

Harvey grabbed Mrs. Boyd as she was walking

around from the side of the house and took her

into the house where Mr. Boyd was located.

Harvey had a pistol and Stiteler was holding

Harvey's AR-15 rifle which had recently been

converted into an automatic weapon. Harvey and

Stiteler told the Boyds they needed money. Mr.

Boyd then went into the bedroom and got his

wallet. Sometime during the course of the

robbery, Harvey and Stiteler exchanged guns so

that Harvey now had possession of the automatic

weapon. After getting the money from the Boyds,

Harvey and Stitéler discussed what they were

going to do with the victims and decided they

would have to kill them. Sensing their impending

danger, the Boyds tried to run, but Harvey fired

his gun, striking them both. Mr. Boyd apparently

died instantly. Harvey left the Boyds’ home but

reentered to retrieve the gun shells. Upon hearing

a, i

Mrs. Boyd moaning in pain, he shot her in the

head at point blank range. Harvey and Stiteler

then left and threw their weapons away along the

roadway.

On February 27, 1985, Harvey was stopped for a

driving infraction in Okeechobee County and

subsequently placed under arrest for the Boyds'

murders.' He was read his Miranda rights at that

time. He was then transported to the Okeechobee

County Sheriff's Department and again read the

Miranda warning. Harvey was questioned and

interrogated, and after speaking with his wife,

gave a statement in which he admitted his

involvement in the Boyds' murders.

Harvey v. State, 529 So.2d 1083, 1084 (Fla. 1988) (footnote

omitted). The penalty phase evidence resulted in the finding of

the following aggravating and mitigating factors:

Finally, Harvey attacks the imposition of the

death penalty on the premise that there was

insufficient evidence to support three of the four

aggravating circumstances which were found by

the trial judge.* Thus, he disputes the findings

that the murders were (1) especially heinous,

atrocious and cruel, (2) were committed for the

purpose of avoiding lawful arrest, and (3) were

committed in a cold, calculated and premeditated

manner. In determining whether the

circumstances of heinous, atrocious and cruel

applies, the mind set or mental anguish of the

victims is an important factor. Phillips v. State,

476 So.2d 194 (Fla. 1985). Both victims in this

case were elderly persons who had been accosted

in their home. They became aware of their

he,

impending deaths when Harvey and Stiteler

discussed the necessity of disposing of witnesses.

In desperation, the Boyds tried to run away, but

Harvey shot both of them. When Harvey later

came back into the house and realized that Mrs.

Boyd was not yet dead, he fired his gun into her

head at point blank range. See Hargrave v. State,

366 So.2d 1 (Fla. 1978), cert. denied, 444 U.S.

919, 62 L. Ed. 2d 176, 100 S. Ct. 239 (1979). We

find these facts sufficient to support a finding that

both murders were especially heinous, atrocious

and cruel.

We also find that the murders were committed

for the purpose of avoiding lawful arrest. The test

is whether the dominant motive behind the

murders is to eliminate witnesses who can testify

against the defendant. Floyd v. State, 497 So.2d

1211 (Fla. 1986). Both Harvey and Stiteler were

known by their victims, and they discussed in the

Boyds' presence the need to kill them to avoid

being identified.

Finally, the facts support the finding that the

murders were committed in an especially cold,

calculated and premeditated manner. Rogers v.

State, 511 So.2d 526, 533 (Fla. 1987). That

Harvey and Stiteler planned the robbery in

advance and even cut the phone lines before

going over the bridge to the Boyds’ home would

not, standing alone, demonstrate a prearranged

plan to kill. However, once the Boyds were under

their control, they openly discussed whether to

kill the Boyds. These murders were undertaken

only after the reflection and calculation which ts

contemplated by this statutory aggravating

o@a

circumstance. See Rogers v. State, 511 So.2d

526, 533 (Fla. 1987), cert. denied, 484 U.S. 1020,

108 S. Ct. 733, 98 L. Ed. 2d 681 (1988). We hold

that the trial judge did not err by concluding that

there were insufficient mitigating circumstances

to outweigh the aggravating circumstances.°

* Harvey concedes the propriety of the finding that

the murder was committed while he was engaged

in the commission or the attempt to commit

robbery or burglary.

* The judge found as a mitigating circumstance that

Harvey had a low IQ and poor educational and

social skills.

Td, at 1087.

REASONS FOR DENYING THE WRIT

CERTIORARI REVIEW IS NOT

WARRANTED AS THE STATE COURT’ S

DETERMINATION WAS PREMISED ON

AN APPLICATION OF STRICKLAND v.

WASHINGTON, AND FLORIDA v. NIXON;

THE DECISION BELOW DOES CONFLICT

WITH ANY OTHER FEDERAL OR STATE

CASE OPINION AND THE FLORIDA

SUPREME COURT’ S FACTUAL FINDINGS

ARE SUPPORTED BY THE RECORD

(CLAIMS | and II restated)

In his initial claim, Harvey urges this court to extend the

per se rule of United States v. Cronic, 466 U.S. 648, (1984) to

sixth amendment claims involving a trial counsel's strategic

decision to allow a “biased juror” to serve in a capital case. In

support thereof, he alleges that a conflict exists among the lower

federal courts as to whether there should be a presumption of

"actual prejudice" when the alleged deficient performance of

counsel involves jury selection. Harvey also claims that Florida

v. Nixon, 543 U.S. 175 (2004), requires that counsel must confer

with his client prior to conceding guilt, and failure to do so

requires a finding of per se prejudice. He concludes with arguing

that because the Florida Supreme Court erroneously applied the

well established rule of Strickland v. Washington, 466 U.S. 668

(1984), instead of Cronic, certiorari review is required. Harvey

is incorrect.

First, there is no conflict among the lower federal courts

regarding whether Strickland applies in the context of voir dire.

Without a doubt, Strickland applies to strategic decisions

regarding jury selection. The issue does not expose a question of

unsettled federal law. This claim turns completely on its specific

facts, which are of no interest to anyone other than the parties

-6-

to this litigation, and which are of insufficient importance to

justify granting the writ. See Bartlett v. Stephenson , 535 U.S.

1301, 1304 (2002) (issues with few, if any, ramifications

beyond the presenting case do not satisfy any of the criteria for

exercise of certiorari jurisdiction). . There is no proper basis for

certiorari review.

In state collateral proceedings below, Harvey raised an

issue of ineffective assistance of counsel based on trial counsel's

failure to strike alternate juror Brunetti. Harvey alleged that she

should have been stricken based on her statements that she did

not think she could be impartial at the guilt phase because she

was aware, through a newspaper article, that Harvey confessed

to the double murders.' Harvey was granted an evidentiary

hearing on the issue. In upholding the denial of relief the Florida

Supreme Court explained as follows:

Harvey's trial counsel, who had previously

worked on many other capital cases, testified that

because of the strong evidence of guilt and the

fact that Harvey's motion to suppress the

confession had been denied, he had concluded

that there was no chance of obtaining an acquittal.

While he had no independent recollection of juror

Brunetti, upon reviewing the transcript he

concluded that her responses indicated that she

was receptive to psychological testimony. In the

course of her testimony, she had observed that

while the death penalty was a deterrent to the

person sentenced, she did not "necessarily believe

- that two wrongs made a right." Harvey's counsel

' The information uncovered by Brunetti was strictly

factual and was information that was properly admitted at trial.

(Pet. App. C, 43a).

a Pe

expressed the opinion that it was reasonable

strategy to accept juror Brunetti and concentrate

on the penalty phase.

We hold that there was competent and substantial

evidence to support the lower court's finding that

defense counsel made a reasonable decision not

to challenge Brunetti based on his strategy of

attempting to find jurors likely to recommend a

life sentence instead of the death penalty.

(Pet. App. C, 43a-44a). Respondent asserts that the state courts’

determination was a correct determination under the applicable

law, 1.e., Strickland. Indeed the reasonableness of the ruling was

underscored by this Court's more recent decision in Nixon.

In rebuttal Petitioner attempts to create "conflict" among

federal courts by alleging that the Sixth Circuit decision in

Hughes v. United States, 258 F. 3d 453, 463 (6th Cir. 2001),

stands for the proposition that Cronic applies in sixth

amendments claims involving juror bias. He further alleges that

the Fifth, Eighth, and Tenth Circuits are in express conflict with

Hughes.’ Harvey misreads Hughes.

First, Hughes, a non-capital case, rendered four years

before Nixon, does not stand for the proposition that Cronic

should apply in claims of juror bias. In fact, to the contrary, the

court therein applied Strickland in granting relief. Hughes , 258

> Harvey specifically references Virgil v. Dretke, 446

F.3d 598, 612 (5" Cir. 2006) ineffective assistance of counsel

claims regarding performance at voir dire requires an analysis

under the two prongs of Strickland); Hale v. Gibson, 227 F.3d

1298, 1319 (10" Cir. 2000\same); Johnson v. Armontrout, 961

F.2d 748, 755-56 (8" Cir. 1992)(same).

3

F.3d at 463.° The court explained:

Under Strickland v. Washington, 466 U.S. 668,

687 (1984), finding ineffective assistance of

counsel requires first finding that counsel's

performance was objectively unreasonable under

the Sixth Amendment, and second, that counsel's

deficient performance prejudiced defendant.

"Judicial scrutiny of counsel's performance must

be highly deferental." Id. at 689.

Counsel is also accorded particular deference

when conducting voir dire. An attorney's actions

during voir dire are considered to be matters of

trial strategy. Nguyen v. Renolds, 131 F. 3d

1340, 1349 (10th Cir. 1997) (citing Teague v.

Scott, 60 F. 3d 1167, 1172 (Sth Cir. 1995)). A

strategic decision is shown to be so ill-chosen that

it permeates the entire trial with obvious

unfairness.

ld., 457. The Court then framed the issue as follows:

Petitioner's "claim of ineffective assistance of

counsel is grounded in the claim that counsel

failed to strike a biased juror. To maintain a claim

that a biased juror prejudiced him, however,

[Petitioner] must show that the juror was actually

biased against him." Goeders v. Hundley, 59 F.3d

73, 75 (8th Cir. 1995) (citing Smith v. Phillips,

455 U.S. 209, 215, 71 L. Ed. 2d 78, 102 S. Ct.

940 (1981)).

* In fact, the opinion does not even cite to Cronic.

my

Id. (emphasis added). In granting relief therein, the court

determined that because the juror was biased* and because

counsel did not address the bias in any manner, the failure to do

sO was objectively unreasonable under Strickland. Id., at 460.

Clearly, Hughes is not in conflict with any of the other circuits on

this issue. To the contrary, it is clear that Strickland is applicable

when assessing trial strategy involving voir dire. There is no

conflict among the circuits, and review must be denied.

When applying the law to the facts of this case, it is clear

that the Florida Supreme Court’s decision was correct. In

explicitly rejecting the proposition that Cronic should apply to

Strategic decisions involving concessions of guilt in a capital

case, this Court recognized the significance of the penalty phase

and the particular considerations that arise which are unique to

capital cases. This Court explained:

Cronic recognized a narrow exception to

Strickland's holding that a defendant who asserts

ineffective assistance of counsel must

demonstrate not only that his attormey's

performance was deficient, but also that the

deficiency prejudiced the defense... We illustrated

just how infrequently the "surrounding

circumstances [will] justify a presumption of

ineffectiveness" in Cronic itself...

Nixon, 543 U.S. at 190-191 (2004).

Similar to the concerns facing counsel in Nixon, counsel

4

The juror stated she could not be fair due to her

personal relationships with police officers and detectives in a

case where the victim was a federal marshal, who had been

robbed at gunpoint.

-10-

herein was also focusing his efforts on saving Harvey's life due

to the overwhelming evidence of his guilt. Harvey confessed on

tape that he shot the elderly defenseless couple because they

recognized him during the robbery. The decision to kill them

was discussed in front of them. When they attempted to escape,

Harvey shot them both. He also admitted that they returned to

the scene to collect incriminating evidence. When he heard the

female victim moaning, he shot her again. Harvey v. State , 529

So. 2d 1083, 1084 (Fla. 1988). Because of this very damaging

evidence, counsel left with very limited strategic choices,

reasonably focused most of his efforts on the penalty phase and

simply conceded guilt. Herein, counsel sought to retain jurors,

including Ms. Brunetti, who would be amenable to the type of

mental health mitigating evidence that was to be presented at the

penalty phase. That strategy was reasonable under Nixon.

Simply because the strategy also encompassed jury selection,

does not somehow take the analysis away from Strickland. See

Nguyen v. Reynolds, 131 F.3d 1340(10th Cir. 1997)(recognizing

that counsel's actions during voir dire are a matter of trial

strategy). Harvey's attempt to expand Cronic must be denied

Harvey also asks this Court to apply the per se rule of

Cronic and recede from Strickland in those instances where

counsel fails to first consult with the defendant regarding a

strategy involving a concession of guilt. Harvey's claim is not

supported by the law or the record in this case.”

In Nixon this Court explicitly rejected the suggestion that

Cronic should apply when counsel fails to discuss such a strategy

* The record does not support Harvey’s claim that no such

consultation took place. Counsel testified that he does not

remember the specifics in this case, however, he would be

shocked to learn that he did not discuss the strategy with Harvey.

Harvey did not offer any contrary evidence.

oe.

with a defendant. Since Strickland, the law is clear that counsel

always has a duty to discuss potential strategies with the

defendant. Nixon, 543 U.S. at 178. A failure to do so is a factor

to be considered when assessing the reasonableness of counsels’

actions. Id. Harvey's request for an explicit rule requiring trial

counsel to confer with their client prior to conceding guilt or else

prejudice would be presumed, would completely undermine this

Court's ruling in Nixon, Strickland and Roe v. Flores-Ortega 528

U.S. 470 (2000)(refusing to impose any bright line requirements

on counsel, finding that to be inconsistent with Strickland).

Harvey does not offer any sound reason to alter the well

established rule of Strickland or its progeny, Nixon.

The Florida Supreme Court, in properly reviewing this

issue under the two-prong standard as explained in Strickland,

found Harvey to have suffered no prejudice considering the great

weight of the evidence against him.

By stating that Harvey and Stiteler had a

conversation in which they discussed the plan to

commit murder, trial counsel conceded that

Harvey acted with premeditation and, therefore,

conceded Harvey's guilt of first-degree murder...

However, because Harvey has failed to

demonstrate prejudice based on _ counsel's

concession of guilt, we need not address the

deficiency prong of Strickland, and we deny

3.850 relief on this issue. See Strickland v.

Washington, 466 U.S. at 697, 104 S.Ct. 2052

(holding there is no need for a court deciding an

ineffective assistance of counsel claim to address

both prongs of the inquiry if there as (sic) been an

insufficient showing on one prong). In order to

establish prejudice, a defendant must demonstrate

that there is a reasonably (sic) probability that the

result of the proceeding would have been

ae

different, but for counsel's unprofessional error.

Trial counsel said nothing more to the jury than

what Harvey said during his confession to police.

The evidence against Harvey was overwhelming

even without counsel's admission that Harvey

committed first-degree murder. We cannot say,

given all of the evidence introduced at trial, there

is a reasonable probability that, but for any errors

by counsel, the result of the proceeding would

have been different, i.e., that our confidence in

the outcome has been undermined.

Harvey v. State, 946 So.2d 937, 943-944 (Fla. 2006). The

Florida court's decision is squarely in line under both Strickland

and Nixon. Harvey has not shown otherwise.

Because the petition presents nothing more than the

application of long-standing precedent, and has little

significance except for the" parties to this litigation,” review

must be denied. Rockford Life Insurance Co. v. Illinois

Department of Revenue, 482 U.S. 182, 184, n. 3 (1987); Butz

v. Glover Livestock Commission C., 41] U.S. 182 (1973)

(dissenting opinion); Powell v. Nevada 511 U.S. 79, 86-7

(1994) (Thomas, J., dissenting); Chevron U.S.A., Inc. v.

Sheffield, 471 U.S. 1140 (1985) (Stevens, J., on denial of

certiorari); Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 79 (1955); see also, Layne & Bowler Corp. v.

Western Well Works, Inc., 261 U.S. 387 (1923) ("... it is very

important that we be consistent in not granting the writ of

certiorari except in cases involving principles the settlement of

which is of importance to the public as distinguished from the

parties ....").

CERTIORARI REVIEW IS NOT

WARRANTED AS THE STATE COURT’ S

DETERMINATION REASONABLY APPLIED

THE STANDARDS SET FORTH IN

STRICKLAND IN DETERMINING THAT

TRIAL COUNSEL'S DECISION TO FOREGO

ONE AVENUE OF MITIGATING EVIDENCE

IN ORDER TO PURSUE ANOTHER WAS

REASONABLE. (CLAIM III restated)

In his final claim, Harvey asserts that the Florida Supreme

Court failed to adhere to this Court's directives under Strickland

v. Washington, 466 U.S. 684 (1984) (and emphasized more

recently in Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla

v. Beard, 545 U.S. 374 (2005)) in declining to find trial counsel

ineffective for what Harvey contends was a complete disregard

of certain mitigation evidence. Had trial counsel not abandoned

the investigation into petitioner's mental health, he would have

unearthed material that may have swayed the jury, or, at the very

least, impacted the findings of four of five statutory aggravators

accepted by the trial court. This position is meritless. The

Florida court's opinion clearly complied with the analysis

required by Strickland and its progeny. Moreover, the findings

of the state courts are supported by the record. See Bartlett v.

Stephenson , 535 U.S. 1301, 1304 (2002) (issues with few, if

any, ramifications beyond the presenting case do not satisfy any

of the criteria for exercise of certiorari jurisdiction). There is no

basis for review.

® (1) the murder was committed while engaged in a

robbery or burglary; (2) it was heinous, atrocious, and cruel; (3)

it was committed for the purpose of avoiding lawful arrest, and

(4) it was committed in a cold, calculated, and premeditated

manner. (Pet. App. B, 26a).

» 24

On appeal, the Florida court found trial counsel's

investigation to be adequate and reasonable. In Harvey v. State,

946 So.2d 937 (Fla. 2004), the court engaged in a Strickland

analysis, finding trial counsel to have acted on a sound and

reasonable trial strategy.

While in hindsight counsel could have pursued a

different penalty phase strategy, the strategy

counsel employed was not unreasonable and did

not fall outside the broad range of competent

performance “under prevailing professional

norms." Strickland, 466 U.S. at 688, 104 S.Ct.

2052. In considering a claim of ineffective

assistance of counsel, we must fairly assess trial

counsel's performance at the time of trial based on

the information he had. "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.

Harvey has not demonstrated that trial counsel

was deficient in his investigation of possible

mental health mitigation. This Court has found

counsel's performance to be deficient where

counsel "never attempted to meaningfully

investigate mitigation" although substantial

mitigation could have been presented. Rose v.

State, 675 So.2d at 572; *947 see also Hildwin v.

Dugger, 654 So.2d 107, 109 (Fla.1995) (finding

that a woefully inadequate investigation failed to

reveal a large amount of mitigating evidence such

as prior psychiatric hospitalizations and statutory

mental health mitigators); State v. Lara, 581

So.2d 1288, 1289 (Fla.1991) (finding counsel

virtually ignored preparation for penalty phase).

This is not the case here. Consistent with the trial

court's factual findings, trial counsel conducted a

reasonable investigation into Harvey's mental

health background incor ted his findings

into a penalty phase strategy.

Trial counsel explained his strategy at the

evidentiary hearing. He chose to present Harvey

as a "good person.” Trial counsel wanted the jury

to see that these murders were inconsistent with

Harvey's character and were committed without

premeditation in the midst of a robbery gone

wrong. Trial counsel testified that he thought

about this strategy and decided to implement it

after the motion to suppress Harvey's statement

was denied. Trial counsel testified that he thought

it was important to carry a consistent theme

throughout both phases of the trial and believed

this was Harvey's best chance for a life sentence.

In cases where counsel did conduct a reasonable

investigation of mental health mitigation and then

made a strategic decision not to present this

information, this Court has affirmed the trial

court's finding that counsel's performance was not

deficient. See Asay v. State, 769 So.2d 974, 985

(Fla.2000). We agree with the trial court and find

that trial counsel's strategy was not unreasonable

under the circumstances and did not fall outside

the range of professional competent assistance.

Id., at 946-947. Despite Harvey's claims to the contrary, the

Florida Supreme Court recognized that trial counsel actually did

conduct an adequate mental health investigation. The Court

- 16-

found as follows:

Harvey alleges that trial counsel failed to fully

investigate his background for mental health

mitigation. The trial court found, however, that

trial sel_retained psychologist Dr. Fred

Petrilla, met and ate dinner with Harvey's parents

and siblings on two occasions, and obtained

Harvey's school records. The trial court also

found that Dr. Petrilla interviewed Harvey's

family and coworkers and that Dr. Petnilla was

given background maternal concerning Harvey.

These findings are supported by the record.

At the evidentiary hearing, trial counsel testified

that he was concerned with Harvey's mental

health and hired Dr. Petrilla for the purpose of

conducting a mental health evaluation. Counsel

indicated that he provided Dr. Petrilla with case

materials and medical records. Counsel testified

that neither Harvey nor Harvey's family gave him

any indication of possible mental health

mitigators, although they did inform counsel that

Harvey had been in a serious car accident when

he was sixteen years old. Trial counsel said it was

determined that Uarvey had never been

institutionalized.

Harvey argues that trial counsel was deficient

because he did not retain a psychiatrist as Dr.

Petrilla had recommended...Although Dr. Petrilla

suggested it, trial counsel testified at the

evidentiary hearing that he did not employ a

psychiatrist because he felt the jury might see

calling more than one mental health expert as

a

trying too hard to make an excuse for bad

behavior, especially given the fact that Harvey

had never Geen treated for mental illness.

Supra, at 945-946.(emphasis addded).

Harvey has not established a sufficient basis for review.

This case held true to the directives in Strickland The Florida

court's decision is supported by the record; does not present a

conflict’ nor involve an unsettled question of law. Although

Harvey directs this Court's attention to two decisions out of the

lower courts, these cases are largely irrelevant.’ In these cases,

trial counsel failed to conduct any sort of meaningful

investigation for mitigation. Petitioner's counsel, by contrast, did

conduct a meaningful and adequate investigation. The decision

to forego further mental health evaluation and concentrate solely

on developing Harvey as a "good person" was sound strategy, just

as the Florida court held. Review must be denied.

” Daniels v. Woodford, 428 F.3d 1181, 1203-04 (9" Cir.

2005); Commonwealth v. Gorby, 909 A.2d 775, 791 (Pa. 2006).

an

Conclusion

WHEREFORE based on the relevant case law and factual

findings, this Court must DENY certiorari review.

Respectfully submitted,

BILL McCOLLUM

ATTORNEY GENERAL

CELIA TERENZIO

Bureau Chief, Cnminal Appeals

OFFICE OF THE ATTORNEY GENERAL

1515 North Flagler Drive, 9" Floor

West Palm Beach, FL 33401

(561) 837-5000