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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2429%3A3. Public record. Not legal advice.