IN THE SUPREME COURT OF FLORIDA CASE NO. SCI2-337 JASON WHEELER, Appellant, v. Capital Postconviction Case Lower Tribunal No. 2005-CF-377-01 STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF FIFTH JUDICIAL CIRCUIT FOR LAKE COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT Mark S. Gruber Florida Bar No. 0330541 Maria Perinetti Florida Bar No. 0013837 CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION 3801 Corporex Park Drive, Suite 210 Tampa, Florida 33619 813 740 3544 Counsel for Appellant
Transcript
IN THE SUPREME COURT OF FLORIDA CASE NO. SCI2-337
JASON WHEELER, Appellant, v. Capital Postconviction Case
Lower Tribunal No. 2005-CF-377-01 STATE OF FLORIDA, Appellee.
ON APPEAL FROM THE CIRCUIT COURT OF FIFTH JUDICIAL CIRCUIT FOR LAKE COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT Mark S. Gruber Florida Bar No. 0330541 Maria Perinetti Florida Bar No. 0013837 CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION 3801 Corporex Park Drive, Suite 210 Tampa, Florida 33619 813 740 3544 Counsel for Appellant
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TABLE OF CONTENTS TABLE OF CONTENTS ....................................................................................... ii
TABLE OF AUTHORITIES .................................................................................. v
REQUEST FOR ORAL ARGUMENT .................................................................. 1
CLAIM I TRIAL COUNSEL PROVIDED PREJUDICIAL INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO OBJECT TO TESTIMONY REGARDING ALLEGED DOMESTIC VIOLENCE AGAINST HECKERMAN ....................................................................................................... 15 CLAIM II TRIAL COUNSEL PROVIDED PREJUDICIAL INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO INTRODUCE EVIDENCE TO SUPPORT THEIR ARGUMENT THAT WHEELER’S STATEMENTS TO CORRECTIONS OFFICER RICHARD BROWN WERE NEITHER RELIABLE NOR VOLUNTARY AND SHOULD BE SUPPRESSED ........... 18 CLAIM III INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE RENDERS WHEELER’S SENTENCE OF DEATH UNRELIABLE ....................................................................................................... 23
Deficiency, Strategy and Prejudice ...................................................................... 53
CLAIM IV WHEELER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL’S FAILURE TO MAKE SPECIFIC OBJECTIONS TO VICTIM IMPACT EVIDENCE AND FAILURE TO OBJECT TO THE PROSECUTOR’S COMPARATIVE WORTH ARGUMENT ......................... 57 Victim Impact Evidence ........................................................................................ 60
Specific Objections Defense Counsel Could Have Made to the Victim Impact Evidence .................................................................................................................. 63 Trial Counsel Rendered Ineffective Assistance By Failing To Object To Improper Phase Closing Argument Penalty ....................................................... 68 Fundamental Error and Strickland Prejudice .................................................... 77
Strategy and Prejudice .......................................................................................... 82
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CLAIM V TRIAL COUNSEL PROVIDED PREJUDICIAL INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO ASSERT THE PSYCHOTHERAPIST-PATIENT PRIVILEGE ON BEHALF OF WHEELER OR OBJECT TO THE TESTIMONY OF DR. PEREZ .............. 84 CLAIM VI FLORIDA’S LETHAL INJECTION METHOD OF EXECUTION IS CRUEL AND UNUSUAL PUNISHMENT AND WOULD DEPRIVE MR. WHEELER OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW IN VIOLATION OF THE FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION................................................................................................... 91 CLAIM VII FLA. STAT. 945.10 PROHIBITS MR. WHEELER FROM KNOWING THE IDENTITY OF THE EXECUTION TEAM MEMBERS, DENYING HIM HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS AND CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION ............................................................... 92 CLAIM VIII MR. WHEELER’S EIGHTH AMENDMENT RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT WILL BE VIOLATED AS DEFENDANT MAY BE INCOMPETENT AT TIME OF EXECUTION ................................ 94 CLAIM IX CUMULATIVE ERROR DEPRIVED THE DEFENDANT OF THE FUNDAMENTALLY FAIR TRIAL GUARANTEED UNDER THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS ........................................... 95 CONCLUSION ....................................................................................................... 96
CERTIFICATE OF SERVICE ............................................................................ 97
CERTIFICATE OF COMPLIANCE .................................................................. 98
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TABLE OF AUTHORITIES Booth v. Maryland, 482 U.S. 496 (1987), 107 S.Ct. 2529 (1987) ........................... 58
Burgos v. State, 865 So. 2d 622 (Fla. 3d D.C.A. 2004) ..................................... 15, 18
California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002). ......................................................................................................... 93
Ring v. Arizona, 536 U.S. 584 (2002) ........................................................................ 8
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005)....................................... 91
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Salazar v. State, 90 S.W. 3d 330 (Texas 2002) ....................................................... 66
Scarboro v. State, 832 So. 2d 930 (Fla. 3d D.C.A. 2002). ...................................... 15
Sochor v. State, 883 So.2d 766 (Fla. 2004) ............................................................. 11
State v. Cumbie, 380 So.2d 1031 (Fla.1980) ........................................................... 74
State v. Gunsby, 670 So. 2d 920 (Fla. 1996) ........................................................... 95
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) ......... 10, 18, 81, 95
Travaglia v. Dept. of Corrections, 699 A.2d 1317 (Pa. Commw. Ct. 1997) .......... 93 Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590 (1958) ................................................... 91
Wheeler v. Florida, 130 S.Ct. 178 (2009) ................................................................. 8
Wheeler v. State, 4 So. 3d 599 (Fla. 2009) ...................................................... Passim
Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527 (2003).......................................... 11
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REQUEST FOR ORAL ARGUMENT
Undersigned counsel for the Appellant respectfully requests the opportunity
to present oral argument pursuant to Fla.R.App.P. 9.320. This is a capital case, the
resolution of the issues presented will determine whether Wheeler will live or die,
and a complete understanding of the complex factual, legal and procedural history
of this case is critical to the proper disposition of this appeal.
JURISDICTIONAL STATEMENT
This is a timely appeal from the trial court’s final order denying an original
motion for postconviction relief from a judgment and sentence of death. This
Court has plenary jurisdiction over death penalty cases. Art. V, § 3(b)(1), Fla.
Const.; Orange County v. Williams, 702 So. 2d 1245 (Fla. 1997).
STATEMENT OF THE CASE AND OF THE FACTS
The facts of the case are recited at Wheeler v. State, 4 So. 3d 599, 601-02
(Fla. 2009). In summary, on the morning of February 9, 2005, Lake County
deputies Wayne Koester, William Crotty, and Thomas McKane responded to a 911
call in a rural area of Lake County. Upon arrival, Deputy Crotty observed Sara
Heckerman, Wheeler’s live in girlfriend and the mother of his children, with facial
bruises and a gash on her head. Ms. Heckerman did not testify at the trial. Based
on his observations and discussion with Ms. Heckerman, Deputy Crotty made a
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decision to arrest Wheeler. When Wheeler was not immediately located, the
deputies called in a K-9 unit and a helicopter to assist in the search.
Deputy Crotty testified that he was talking with Heckerman next to his
patrol car when he heard three shots. As he stood by the passenger side of the
patrol car, he saw Deputy Koester running up the driveway, bleeding from what
looked like birdshot wounds to his face. Deputy Crotty then saw Wheeler chasing
Deputy Koester with a shotgun pointed at Deputy Koester’s back. Crotty raised
his gun and was intending to shoot the defendant as soon as Koester was clear from
his path. However, before that could happen, the suspect turned the shotgun from
Koester and shot Crotty in the leg. R16, 1532.1
1References to the direct appeal record are in the form “R [volume number], [page number].” References to the record of the postconviction proceedings are in the form “PC-R [volume number], [page number].
As Deputy Koester was still
running toward the patrol cars, Crotty managed to fire one shot at the suspect, who
moved off in to the cover of the woods. R16, 1533. Crotty testified that he had lost
sight of Deputy Koester immediately following Crotty being shot in the leg and his
first shot at the defendant as Koester was running toward the patrol car, and did not
see him again until after he had emptied his clip at the fleeing defendant. R16,
1538. After emptying his clip, Crotty once again saw Deputy Koester, this time on
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his knees on the ground, where he collapsed on his face. R16, 1540. According to
the medical examiner, the last and fatal shot was with birdshot pellets that entered
Deputy Koester’s head above his left eye and lodged in his brain. Wheeler v. State,
4 So. 3d 599, 602 (Fla. 2009).
The search for Wheeler continued for several more hours with both a
helicopter and tracking dogs. Another officer eventually located Wheeler lying on
the ground in a densely-wooded area near a lake. Upon being detected, Wheeler
stood up and screamed several times for the officer to kill him and then appeared to
go for a weapon. In response, the officer fired shots at Wheeler, which resulted in
Wheeler’s permanent paralysis. Wheeler had a speaker wire wrapped around his
neck and reported to another officer that he had tried to kill himself. A shotgun,
which later proved to be the murder weapon, was found nearby. Wheeler v. State,
4 So. 3d 599, 601 (Fla. 2009)
On February 23, 2005, a grand jury returned an indictment for Jason
Wheeler on one count of first degree murder for the murder of Deputy Wayne
Koester, two counts of attempted first degree murder, and two counts of battery on
a law enforcement officer. R1, 10-11.
Wheeler was represented by Assistant Public Defenders William
Grossenbacher and Liza Hammond. Mr. Grossenbacher, the first chair on
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Wheeler’s case, had previously second chaired two capital cases that went to trial.
PC-R22, 4111-12. Wheeler’s was only the second case that Hammond second
chaired, and she was not yet death penalty qualified to be a first chair. The two
worked together on all aspects of the case, but Mr. Grossenbacher had more to do
with presenting the guilt phase and Ms. Hammond had more to do with the penalty
phase. There was only one investigator working in the Public Defender’s Office,
and neither Grossenbacher nor Hammond could recall anything that he did on
Wheeler’s case. Id. 4193-94. Much of the investigation, such as finding witnesses
and obtaining records, was conducted by the attorneys themselves. Id.
The guilt phase trial was tried before the Honorable T. Michael Johnson
from May 15-19, 2006, resulting in a verdict of guilty on all counts. R15, 1708-11.
The penalty phase trial took place on May 23-24, 2006. This Court summarized
the penalty phase this way:
Evidence at the penalty phase showed that after his arrest, Wheeler was hospitalized and under guard at the Orlando Regional Medical Center due to his gunshot wounds. While there, he told a detention center guard, Richard Brown, that he had been arguing with Heckerman on the day of the murder and his main intention was “to go after” Heckerman. He told Brown that he did not like people on his property and would have shot anyone he found there. Wheeler reported to Brown that when he came out of the woods with his shotgun, he saw deputies stringing crime scene tape, and
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that he “had a choice”-”I could either run or I could go out in a blaze of glory.” Wheeler also described to Brown how he tried to escape on the dirt bike, jumped into the water, and later tried to retrieve his shotgun. Brown said Wheeler expressed some remorse to the nurses and to his pastor while in the hospital. The state presented victim impact evidence through Deputy Koester’s family members. The gist of the testimony of all of Deputy Koester’s family members was that he was a hard worker whose mother died when he was a young teen. He dropped out of school in the ninth grade but Deputy Koester later graduated from the police academy and served as a police officer in Umatilla, Florida, where he obtained certification to teach law enforcement. He was a dedicated family man and was a great dad to his children from his first marriage as well as to his stepchildren in his second marriage. He participated in many family functions, was a loving husband, brother and father, as well as an asset to the community as a deputy, Little League coach, and member of the National Guard. Finally, Sheriff Chris Daniels testified that Deputy Koester was in fact a sworn Lake County Deputy Sheriff. The State also presented fifty-four victim and family photographs mounted on four poster boards, depicting Deputy Koester in different settings with family members, serving in the National Guard, coaching, and at other functions. The defense presented the mitigation testimony of two of Wheeler’s friends, his pastor, and several of his family members including his mother, half sisters, aunt, uncle, and adoptive father. The net of this testimony was that Wheeler was never abused and lived a normal, happy childhood. Wheeler was a wonderful father, brother, friend, and nephew who worked hard and was remorseful for these crimes. After the doublewide mobile home Wheeler and Heckerman lived in was heavily damaged
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by hurricanes in 2004 and Wheeler lost his job, Wheeler was under a lot of stress, resulting in heavy methamphetamine use that changed his personality. Wheeler’s stress was also the result of Heckerman’s failure to take care of their children, her abuse of Wheeler, and her damage to repairs Wheeler had made on the doublewide. Wheeler’s aunt testified on cross-examination that she had told police after the murder that several years prior to the incident, Wheeler said that Heckerman would call the police one day and, when they came and started shooting at him, he would take down as many as he could before they got him. The jury recommended a sentence of death by a vote of ten to two. After the Spencer hearing, the trial court entered its sentencing order on October 23, 2006, in which it found three aggravators. The court found that that the murder was cold, calculated, and premeditated (CCP) and gave that aggravator great weight. The trial court also found that the murder was committed for the purpose of avoiding or preventing a lawful arrest, and gave this aggravator great weight. See § 921.141(5)(e), Fla. Stat. (2005). The trial court recognized that where the victim is a law enforcement officer, that aggravator may not be doubled with the other statutory aggravators that are based on the same evidence. Thus, the trial court combined in this one “avoid arrest” aggravator two other statutory aggravators-that the victim was a law enforcement officer engaged in official duties and that the murder was committed to disrupt or hinder the enforcement of law. See § 921.141(5)(g), (j), Fla. Stat. (2005). Finally, the trial court found in aggravation that Wheeler was previously convicted of a violent felony, based on his convictions of the contemporaneous violent felonies involving the other victims in this case. See § 921.141(5)(b), Fla. Stat. (2005). This aggravator was given some weight in the sentencing order. . .
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In mitigation, the trial court found and accorded some weight to the statutory mitigator that the murder was committed while Wheeler was under the influence of extreme mental and emotional disturbance. See § 921.141(6)(b), Fla. Stat. (2005). The court also found in mitigation that Wheeler’s capacity to conform his conduct to the requirements of law was substantially impaired, and accorded it some weight. See § 921.141(6)(f), Fla. Stat. (2005). Other mitigators were also found and given “minimal” to “some” weight. The court concluded that “the aggravating circumstances far outweigh the mitigating circumstances,” and sentenced Wheeler to death in accord with the jury’s ten-to-two sentencing recommendation.
Wheeler v. State, 4 So. 3d 599, 602-04 (Fla. 2009)(footnotes omitted).
Mr. Wheeler raised the following issues on direct appeal: 1. Whether the
victim impact evidence became such a feature of the penalty phase that it denied
due process, fundamental fairness, and a reliable jury recommendation; 2.
Whether the prosecutor’s remarks were improper and inflammatory and tainted the
jury during the penalty phase, rendering the entire process fundamentally unfair;
3. Whether the trial court reversibly erred in denying Wheeler’s request for a
special guilt phase jury instruction on heat of passion; 4. Whether Florida’s
capital sentencing scheme and penalty phase jury instructions shifted the burden of
persuasion to the defense, and whether they placed a higher burden on the defense
to obtain a life sentence than on the State to obtain a death sentence by creating a
presumption that death is appropriate and requiring mitigation to outweigh the
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aggravation in order to obtain a life sentence; and 5. Whether Florida’s death
penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).
The Court denied relief. In addition this Court decided sufficiency and
proportionality adversely to the defendant. Wheeler v. State, 4 So. 3d 599 (Fla.
2009). The United States Supreme Court denied certiorari on October 5, 2009.
Wheeler v. Florida, 130 S.Ct. 178 (2009).
Wheeler filed a Motion to Vacate Judgment and Sentence pursuant to
Fla.R.Crim.P. 3.851 on September 14, 2010, later supplemented by an amendment,
wherein he raised ten claims for relief. The first six of these were predicated on
claims of ineffective assistance of counsel (with a subclaim of newly discovered
evidence based on postconviction drug testing of the bandages used to treat
Wheeler at the scene). The issues were summarized by the postconviction court
this way:
The Defendant raises the following issues in his 3.851 motion. First, Defendant contends that trial counsel was ineffective during the guilt phase when they failed to object to testimony regarding high-powered rifles and tree stands. Second, Defendant asserts that trial counsel was ineffective during the guilt phase when they failed to object to testimony regarding alleged domestic violence against Ms. Heckerman. Third, Defendant complains that trial counsel was ineffective for failing to introduce evidence to support their argument that Defendant’s statements to Corrections Officer Richard Brown were neither reliable, nor voluntary and should have been
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suppressed. Fourth, Defendant asserts that trial counsel’s ineffective representation during the penalty phase coupled with newly discovered evidence obtained from forensic testing render Defendant’s sentence of death unreliable. * * * Defendant raises the following sub issues. First, trial counsel was ineffective during the penalty phase when they failed to conduct a reasonably competent mitigation investigation and when they failed to present all available mitigation at the penalty phase. Second, the Defendant contends that there is newly discovered evidence. * * * Fifth, Defendant argues that trial counsel was ineffective during the penalty phase due to counsel’s failure to make specific objections to victim impact evidence and trial counsel’s failure to object to the prosecutor’s comparative worth argument. Sixth, Defendant contends that trial counsel was ineffective during the penalty phase when they failed to assert the psychotherapist-patient privilege on behalf of the Defendant or to object to the testimony of Dr. Raphael Perez. Seventh, Defendant maintains that Florida’s lethal injection method of execution is cruel and unusual punishment and would deprive Defendant of due process and equal protection of the law. Eighth, Defendant asserts that section 945.10, Florida Statutes (2005) which prohibits Defendant from knowing the identity of the execution team members, consequently, denies him his constitutional rights. Ninth, Defendant complains that his Eighth Amendment right against cruel and unusual punishment will be violated as he may be incompetent at time of execution. Tenth, Defendant contends that cumulative error deprived him of a fundamentally fair trial.
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PC-R 6, 1015-16.
The court conducted an evidentiary hearing on claims one through six on
July 26, July 27, September 23, and November 28, 2011, and ultimately denied
relief on all of the claims by a written order dated January 24, 2012. Order
denying relief located at PC-R 6, 1010-91. Wheeler presented eight witnesses at
the evidentiary hearing. The State presented one witness. Specific facts relating to
each of Mr. Wheeler’s claims for relief and the lower court’s rulings on them are
discussed below. This appeal of the lower court’s denial of relief follows.2
STANDARDS OF REVIEW
Claims of ineffective assistance of counsel are governed by Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To establish deficiency under
Strickland, the defendant must prove that counsel’s performance was unreasonable
under “prevailing professional norms.” Morris v. State, 931 So.2d 821, 828
(Fla.2006) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To establish
prejudice, the defendant must prove that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
2The first claim for relief raised below concerning hearsay testimony about purported high powered rifles and tree stands is not pursued here and the claims are renumbered accordingly.
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different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct.
2052). Both prongs of the Strickland test present mixed questions of law and fact.
For this reason, the Court employs a mixed standard of review—deferral to the
factual findings of the circuit court that are supported by competent, substantial
evidence, but de novo review of legal conclusions. See Sochor v. State, 883 So.2d
766, 771–72 (Fla. 2004).
In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527 (2003), the United States
Supreme Court held that “Strickland does not establish that a cursory investigation
automatically justifies a tactical decision with respect to sentencing strategy.
Rather a reviewing court must consider the reasonableness of the investigation said
to support that strategy.” Wiggins v. Smith, 539 U.S. 510, 527 (2003). “[S]trategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness.” Id. at 521 (quoting Strickland, 466 U.S. at 690-91).
Prejudice, in the context of claims of penalty phase ineffective assistance of
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counsel, is shown where, absent the deficient performance, there is a reasonable
probability that the balance of aggravating and mitigating circumstances would
have been different or the deficiencies substantially impair confidence in the
outcome of the proceedings. Lynch v. State, 2 So.3d 47, 70 (Fla. 2008); Floyd v.
State, 18 So. 3d 432, 453 (Fla. 2009).
SUMMARY OF ARGUMENT
Mr. Wheeler’s first claim for relief is that defense counsel provided
prejudicial ineffective assistance when they failed to object to testimony regarding
alleged domestic violence against Sara Heckerman, Wheeler’s live in girlfriend
and the mother of his children. Wheeler was not charged with domestic violence
and Ms. Heckerman did not testify at trial. There was no contention that the police
were not acting within the scope of their duties when these offenses occurred.
The second claim for relief is that trial counsel provided prejudicial
ineffective assistance when they failed to introduce evidence to support their
argument that Wheeler’s statements made when he was in the hospital and under
heavy sedation were neither reliable nor voluntary and should be suppressed.
During the postconviction evidentiary hearing collateral counsel presented the
testimony of an eminent doctor specializing in neurology and psychiatry who
described the effects of the medications Wheeler was receiving at the time and
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concluded that his statements were unreliable.
The third claim generally asserts ineffective assistance of penalty phase trial
counsel. Collateral counsel presented extensive testimony from lay and expert
witnesses, including Sara Heckerman, about Mr. Wheeler’s behavior and mental
condition leading up to the time of the crime. The common thread here is to show
that Wheeler’s actions were the result of a convergence of a number of
increasingly destructive trends, the most significant being a slide into an out-of-
control psychotic, or at least psychosis-like, methamphetamine frenzy, likely
amplified by underlying bipolar disorder. By contrast, trial counsel’s strategy was
to blame Wheeler’s behavior almost exclusively on stress caused by job loss and
damage to his home, and to his undeniably dysfunctional relationship with Ms.
Heckerman. The nightmarish effects of his accelerating and untreated drug
addiction were never brought out. Strikingly, trial counsel did not take the obvious
step of obtaining a drug panel from the bloody bandages that were used to treat
Wheeler right at the time of the crime, which indeed did show that Wheeler was
under the influence of methamphetamine and other drugs. As a result, the
sentencing court wrongly dismissed allegations that Wheeler’s drug addiction had
a causative relationship to his actions.
Wheeler’s fourth claim returns to issues about victim impact evidence and
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improper prosecutorial argument that were addressed in the direct appeal
proceedings. Wheeler did not get relief at the time because counsel had failed to
preserve the issue by making the appropriate contemporaneous motions and
objections. These issues are now ripe for review within the context of Strickland
ineffectiveness.
Wheeler’s fifth claim, the last one to be considered at the postconviction
evidentiary hearing, is that defense counsel rendered ineffective assistance by
failing to uphold the psychotherapist privilege that existed between him and the jail
psychiatrist, Dr. Perez. Although Wheeler’s treatment was a routine part of his
duties and Dr. Perez never conducted a forensic evaluation of Wheeler, he was
called as a rebuttal witness by the prosecution and provided very damaging
testimony against his erstwhile patient. Defense counsel did nothing to assert the
privilege.
The remaining claims were summarily denied. They were that Florida’s
lethal injection scheme is unconstitutional, that the identities of the members of the
execution team should be disclosed, that Wheeler may be incompetent at the time
of execution, and that cumulative error warrants relief. Wheeler seeks review of
all of these claims for relief.
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ARGUMENT
CLAIM I
TRIAL COUNSEL PROVIDED PREJUDICIAL INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO OBJECT TO TESTIMONY REGARDING ALLEGED DOMESTIC VIOLENCE AGAINST HECKERMAN.
At trial, Deputy McKane, Sergeant Christopher Lee Cheshire, and Deputy
Crotty all referred to Heckerman as a “victim.” R12, 1038, 1077; R14, 1527.
Deputy Crotty described Heckerman’s injuries, including a visible bruise under her
eye, a bruise on the bridge of her nose, and a partial gash on her head. R14, 1521.
He also stated that he asked Deputy Koester and Deputy McKane to “tape some of
the areas off that the victim said that she had been a victim of a crime in for a
crime scene.” Id. at 1527. Trial counsel did not object to any of the above
testimony. As noted above, Ms. Heckerman did not testify at trial.
This case is analogous to Burgos v. State, 865 So. 2d 622 (Fla. 3d D.C.A.
2004). See also, Porter v. State, 715 So. 2d 1018 (Fla. 2d D.C.A. 1998); Scarboro
v. State, 832 So. 2d 930 (Fla. 3d D.C.A. 2002). In Burgos, officers responded to a
domestic violence call and, when they attempted to arrest him, Burgos kicked and
punched the officers, attempted to obtain one of the officer’s handguns, and
attempted to use one of the officer’s radios as a weapon. Burgos, 865 So. 2d at
16
623. Burgos was charged with resisting an officer without violence, depriving an
officer of means of protection, and battery on a law enforcement officer, but he
was not charged with domestic battery. Id. Unlike Wheeler’s trial counsel,
Burgos’ trial counsel moved to exclude all mention of domestic violence against
his girlfriend, but the motion was ultimately denied, and the officers were able to
testify about the victim’s injuries and hysterical demeanor and that the victim said
that Burgos hit her. Id. at 623-24. Burgos sought a new trial on the ground that the
evidence relating to the uncharged domestic battery offense was not relevant to the
crimes charged. Id. at 624. The State argued that the evidence regarding the
domestic battery “was properly admitted because it was necessary to adequately
describe the events leading up to the offense charged and because it was
inextricably intertwined with the charged offenses.” Id. at 624. The appellate
court held that the testimony in question was not necessary to understand the
officers’ encounter with the defendant, and that “[t]he officers’ presence was
sufficiently explained by their testimony that they were dispatched to the trailer
park and that during their investigation Burgos was identified as a suspect of the
investigation.” Id. at 624. The appellate court further held that “[t]he testimony
regarding the domestic violence battery also was not inextricably intertwined with
defendant’s altercation with the officers as there was a ‘clear break’ between the
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incident and defendant’s confrontation with the officers.” Id. at 624.
Much like the defendant in Burgos, Wheeler was not charged with domestic
battery, sexual battery, or any other offense in which Heckerman was a victim.
The testimony in question related to uncharged crimes. The alleged incident
between Wheeler and Heckerman concluded long before the officers arrived, and it
was not inextricably intertwined with the charged offenses. It did not have any
relevance to the case at hand, and it was not necessary to explain the officers’
presence on Wheeler’s property.
In addition to being irrelevant to the charged offenses, this evidence was
inadmissible under Fla. Stat. § 90.404 (2) (a), which states, in relevant part, that
“evidence of other crimes, wrongs, or acts . . . is inadmissible when the evidence is
relevant solely to prove bad character or propensity.” Trial counsel also could
have objected under Fla. Stat. § 90.403, which states:
Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
Furthermore, Deputy Koester’s testimony in which he asked the other deputies to
tape off the areas where Heckerman said she had been a victim of a crime, as well
as any other reference to Heckerman as a “victim,” was inadmissible hearsay under
Fla. Stat. § 90.404. Trial counsel agreed that there may have been a basis for them
18
to object to this sort of testimony, and they did not recall any strategic reason for
not objecting to this testimony. PC-R22, 4139, 4199.
Trial counsel’s failure to object prejudiced Wheeler and deprived him of a
fair trial. Strickland, 466 U.S. at 687. The testimony regarding the domestic
violence incident and Heckerman’s injuries unnecessarily confused the jury and
would have led the jury to believe that Wheeler had a propensity for violence.
Although the testimony may have had some probative value concerning the
uncharged incident involving Wheeler and Heckerman, it had absolutely no
probative value in the case for which Wheeler was on trial. In the Burgos case, the
appellate court granted relief because they held that there was no way for the court
to know whether the error was harmless. Burgos, 865 So. 2d at 624. Similarly, in
the case at hand, there is no way for this Court to know to what extent this
testimony tainted both the guilt phase and the penalty phase. There is a reasonable
probability that, but for trial counsel’s failure to object, the results of the
proceeding would have been different. Strickland, 466 U.S. at 694. Therefore,
Wheeler is entitled to relief.
CLAIM II
TRIAL COUNSEL PROVIDED PREJUDICIAL INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO INTRODUCE EVIDENCE TO SUPPORT THEIR ARGUMENT THAT
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WHEELER’S STATEMENTS TO CORRECTIONS OFFICER RICHARD BROWN WERE NEITHER RELIABLE NOR VOLUNTARY AND SHOULD BE SUPPRESSED.
Subsequent to his arrest, Wheeler was hospitalized due to his gunshot
wounds. Wheeler, 4 So. 3d at 602. This Court summarized statements Wheeler
allegedly made to detention center guard, Richard Brown, who was guarding him
at the Orlando Regional Medical Center [hereinafter ORMC]:
[Wheeler] told a detention center guard, Richard Brown, that he had been arguing with Heckerman on the day of the murder and his main intention was “to go after” Heckerman. He told Brown that he did not like people on his property and would have shot anyone he found there. Wheeler reported to Brown that when he came out of the woods with his shotgun, he saw deputies stringing crime scene tape, and that he “had a choice”- “I could either run or I could go out in a blaze of glory.” Wheeler also described to Brown how he tried to escape on the dirt bike, jumped into the water, and later tried to retrieve the shotgun.
Wheeler, 4 So. 3d at 602.
Wheeler moved to suppress, arguing inter alia that he had invoked his right
to remain silent and his right to counsel, and he was in custody. R3, 437-39. The
motion alleged that the tapes made by Officer Brown indicated that he was
engaged in interrogating Wheeler. Wheeler further argued that the statements were
made while Wheeler was “under the influence of painkillers and other drugs
20
supplied by the hospital, and were therefore neither reliable nor voluntary, and
should be suppressed for that reason.” Id. at 438.
The hearing on the motion is reported at R7, 150-200. Officer Brown
testified and defense did not call any witnesses. The motion was denied. R3, 598-
602. The court found:
[T]here is no evidence to support the Defendant’s contention that his being under medication made his comments involuntary. The only argument set forth by counsel was the fact that after listening to the news reports on television, the Defendant would ask Officer Brown about what happened. This is insufficient to demonstrate that the Defendant’s ability to think clearly was affected in such a way that his statements were involuntary . . .
R3, 601-02.
Defense counsel said that at the time of the hearing on the motion to
suppress, he did not know whether or not all of the allegations in the motion were
true because the defense had not conducted a full investigation regarding the
reliability and voluntariness of Wheeler’s statements to Officer Brown. Defense
counsel did not obtain Wheeler’s medical records from ORMC until after the
motion was filed and the hearing was held. PC-R22, 4136; PC-R16, 2990-94.
Officer Clayton, who also was assigned to guard Wheeler at ORMC, was not
deposed until nearly three weeks after the motion hearing. PC-R22, 4125-29.
21
Additionally, trial counsel rendered deficient performance by failing to hire
a medical expert to review Wheeler’s medical records and testify at the motion
hearing. PC-R22, 4129, 4137. The defense did not present an expert or any other
evidence at the hearing to support their assertion that Wheeler was under the
influence of painkillers or other drugs when he made the statements to Officer
Brown.
James Merikangas, M.D. is an eminent physician specializing in neurology
and psychiatry, with over forty years of experience. PC-R21, 3969-70. He
reviewed various records, including the records of Wheeler’s hospitalization at
ORMC for gunshot wounds, the sworn statements of Officer Brown, a recording
that was allegedly made by Officer Brown of Wheeler, police reports and any other
documentary evidence that could be relevant to his evaluation of the case. Def. Ex.
11; PC-R 21, 3995; PC-R13-15, pp. 2371-2989. He concluded that:
[M]y opinion is that he was most likely in a state of delirium at the time of these alleged statements for a number of reasons. He had been treated with large doses of narcotics and was at the time receiving Oxycodone, which is a potent narcotic, in a lower dose than he had been on before. So he was in a state of narcotic withdrawal. He also had been given sedatives. He was given lorazepam, which is a benzodiazepine anti-anxiety tranquilizing drug, which has a very long half-life, which was in his body at the time of these statements,
22
amounting to a form of chemical intoxication. He had lost a great deal of blood and that the concentration of his blood hematocrit was 26.6, I believe, when normally it was 45, indicated that he didn’t have enough blood to properly oxygenate his brain. He’d also had a lung collapse and a chest tube, reducing the oxygen to his brain. And during his hospitalization he had infections and fevers as high as 104 degrees, which is a very high fever. All these things taken together make it very unlikely that he was of sound mind and able to act in a way that would make him competent for such things as signing a will or executing any kind of binding document. And if I were asked to consult on this case whether this man was competent to handle his own affairs, under those circumstances I would have to say no.
PC-R21, 3978.
Dr. Merikangas also considered Officer Brown’s statement that Wheeler was
speaking gibberish:
I refer mainly to Mr. Brown’s own statement that Wheeler was speaking gibberish, which appears in his sworn testimony. And that speaking gibberish is one of the signs of someone who’s suffering from a delirium of the effects of these drugs, injuries, fevers, withdrawal, and the fact that Mr. Wheeler had been intoxicated on methamphetamine at the time of the shootings and was probably in some drug-induced state of withdrawal at the time of these statements. Therefore, I believe they were unreliable.
Id. at 350.
The trial court said it denied the motion to suppress because the defense did
23
not present any evidence to suggest that Wheeler’s statements were unreliable in
voluntary. R3, 598-99. The State used the statements to prove CCP. R15, 1751.
Likewise, the trial court remarked in its sentencing order that “the Defendant’s
comments about his choice to run or die in a blaze of glory supports the conclusion
that the decision to shoot Deputy Koester was a result of calm, cool reflection and
heightened premeditation.” R5, 898.
The postconviction court denied this claim. PC-R6, 1032-41. The court’s
analysis is very fact based, but its focus is on the accuracy of the defendant’s
statements, not whether they were voluntarily given. There is a reasonable
probability that if trial counsel had presented credible evidence to support their
argument that the statements he made to Officer Brown were neither reliable nor
voluntary, the Motion to Suppress Defendant’s Statements would have been
granted, and Wheeler would have received a life sentence. For these reasons,
Wheeler is entitled to a new penalty phase trial.
CLAIM III
INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE RENDERS WHEELER’S SENTENCE OF DEATH UNRELIABLE.
The postconviction court broke down this claim this way:
A. Failure to conduct a reasonably competent mitigation investigation
24
and failure to present all available mitigation: (1) failure to identify and call witness Michael Minton; (2) failure to call known witnesses Sara Heckerman and David Dugan; (3) failure to prepare Dr. Olander to testify, or in the alternative, failure to
call a different penalty phase expert; (4) failure to have the Defendant’s bandages tested for methamphetamine:
and;
B. Newly Discovered Evidence:
(1) a newly discovered evidence claim that illicit methamphetamine in the Defendant’s blood could be quantified [sic] as illicit rather than pharmaceutical.
PC-R6, 1042.
The common thread in this claim is to show that Wheeler’s actions were the
result of a convergence of a number of increasingly destructive trends, the most
significant being a slide into an out of control psychotic, or at least psychosis-like
methamphetamine frenzy. By contrast, trial counsel’s strategy was to blame his
behavior almost exclusively on job stress and his undeniably dysfunctional
relationship with Sara Heckerman, and the full extent of his accelerating and
untreated drug addiction was never brought out.
Penalty Phase Trial
This Court summarized the mitigation testimony presented by the defense
25
during Wheeler’s penalty phase trial this way:
The defense presented the mitigation testimony of two of Wheeler’s friends, his pastor, and several of his family members including his mother, half sister, aunt, uncle, and adoptive father. The net of this testimony was that Wheeler was never abused and lived a normal, happy childhood. Wheeler was a wonderful father, brother, friend, and nephew who worked hard and was remorseful for these crimes. After the doublewide mobile home Wheeler and Heckerman lived in was heavily damaged by the hurricanes in 2004 and Wheeler lost his job, Wheeler was under a lot of stress, resulting in heavy methamphetamine use that changed his personality. Wheeler’s stress was also the result of Heckerman’s failure to take care of their children, her abuse of Wheeler, and her damage to repairs Wheeler had made on the doublewide.
Wheeler, 4 So. 3d at 602-03.
At trial, Dr. Olander, said that Wheeler was experiencing chronic
methamphetamine abuse. R16, 1899. The court was critical of the lack of
information the defense provided regarding Wheeler’s drug abuse:
Through the testimony of several witnesses, Mr. Wheeler established that sometime before the killing of Deputy Koester and the shooting of the other deputies, he had used drugs, more specifically, methamphetamine. No one was able to quantify exactly what impact this had on Mr. Wheeler’s behaviors on the day of the killing. . . . Dr. Olander concluded that the Defendant “chronically used meth” but did not describe the source of her information, how much he used around the day of the
26
homicide, or how much he generally used or how often.
R5, 921-22. The trial court also expressed skepticism about Dr. Olander’s failure
to review pertinent information. R5, 912-13. Regarding the statutory mitigator
that “[t]he defendant committed the crime while under the influence of extreme
mental and emotional disturbance,” the sentencing court stated:
After conducting her analysis, Dr. Olander opined that this mitigator was present. This Court has, as stated above, grave concerns regarding the process by which she reached this conclusion, but concludes that it cannot totally dismiss her testimony but neither can it provide it great weight.
R5 at 913-14.
Mitigation Evidence Presented at the Postconviction Evidentiary Hearing Lay Witnesses The following lay witnesses, who associated with Wheeler around the time
of the offense, would have provided information regarding Wheeler’s behavior and
drug use leading up to February 9, 2005. These witnesses would have been
available to testify at the penalty phase trial or speak with Dr. Olander.
Michael Minton
Michael Minton met Wheeler in 2001 or 2002 while they were working
together for Burford’s Tree Service. R20, 3647. Minton described Wheeler when
they first met as great guy, a good friend, and an honest person. They spent a lot of
27
time together hanging out, running around, watching television, and playing video
games. They drank and smoked marijuana together when they first met, but
Minton does not recall Wheeler using methamphetamine during that time. There
were woods in the area near where Wheeler lived, and there were bears and other
wild animals in the woods. It was common for individuals who lived in the area,
including Minton and Wheeler, to carry shotguns loaded with birdshot to protect
themselves from these animals. PC-R20, 3647-48.
In 2004 or 2005, a hurricane came through Lake County and damaged
Wheeler’s home. Wheeler received a substantial insurance settlement as a result of
this damage. Minton’s home was also damaged by the hurricanes, and he and
Wheeler stayed with a mutual friend. Wheeler’s drug use increased after the
hurricanes, and according to Minton “[t]hat’s when the methamphetamine came
into play.” PC-R20, 3651. Methamphetamine was readily available in Lake
County and a lot of people who worked with Minton and Wheeler used
methamphetamine. There were methamphetamine labs in the area. Wheeler
formed a “grand scheme” to rebuild his house with methamphetamine. PC-R20,
3655. He hired drug users to help him rebuild his house, and he paid them in
methamphetamine instead of cash. By early 2005, a lot of progress had been
made, but at one point, the building started to not make sense. PC-R20, 3656.
28
Things were getting “a little crazy,” and people were tearing up the house instead
of helping rebuild it. Id. Minton explained how Wheeler and the other
methamphetamine users who were working on the house perceived their work:
Well, with the drug itself, it’s sort of, you know - you get a little spun out, as it’s called, where you’re not really accomplishing nothing. But you’re going through the motions and you feel like you are. You know, you’re nailing things on the wall and you’re doing things, but nothing up to a code or two, whatever it should be.
PC-R20, 3663. Wheeler’s house got to be “completely crazy,” and “off the wall.”
Id. Both Minton and Wheeler used methamphetamine “a lot” in late 2004/early
2005, but Wheeler used more methamphetamine than Minton because Wheeler had
more money than Minton. They used both “crank” and “ice”, which are two
different types of methamphetamine. Wheeler was snorting and smoking
methamphetamine. They often stayed awake for long periods of time, as much as
five to seven days or longer, as a side effect of the methamphetamine. PC-R20,
3653.
Wheeler changed when he started using methamphetamine. His behavior
was erratic, paranoid, and irrational. He developed a temper and overreacted to
situations. He thought Heckerman was always running around on him, and that
people were stealing from him. He installed a safe in the wall, which he replaced
several times because he thought someone might know the combination. He
29
thought the police were watching him. PC-R20, 3659.
Minton described Wheeler’s relationship with his girlfriend, Sara
Heckerman, as “poison” and “exhausting.” PC-R20, 3662. When he first met
them, Wheeler and Heckerman had an “average” relationship. Their relationship
became worse over time, and “once the drugs came into play, it got sort of crazy.”
Id., 3662. As Wheeler used more drugs, they fought more. Mainly, Heckerman
was the aggressor. She broke things, threw things, and tore things up. When she
attacked Wheeler, he reacted by pushing her off or trying to restrain her. Wheeler
was trying to rebuild the house, and Heckerman would make a point to tear apart
what was getting built. PC-R20, 3662.
Minton testified about the last time he saw Wheeler, a couple of days before
February 9, 2005:
He looked up at me. You know, he had been crying and he was a shell of who he was. And it really hit me at this moment. He looked like a broken man. He was a shell of who he was that I seen. It really made an impression on me. And then after that the shooting had taken place.
PC-R20, 3665.
At the time of Wheeler’s trial, Minton was starting to get clean. PC-R20,
3666. Wheeler’s attorneys did not speak with him prior to Wheeler’s trial. Id.,
3671. He spoke with Dr. Smith about Wheeler during postconviction, and he
30
would have been willing to testify at trial and speak with an expert about Wheeler
prior to his trial. Id.
Sara Heckerman
Sara Heckerman first met Wheeler in May of 1998 when she was seventeen
years old and living in McClure, Ohio. PC-R20, 3673. He was a little arrogant,
but he was a sweetheart, and she was drawn to him. He was honest, and he was
trusting of other people. He had a lot of friends, and he was fun to be around. He
was also really good with her daughter, Hannah, even before she and Wheeler were
together as a couple. They took Hannah fishing, swimming, and to the park.
Although Wheeler drank and smoked marijuana when they first met and
Heckerman smoked marijuana, neither one of them used methamphetamine. PC-
R20, 3673-75.
After being friends for few months, Wheeler and Heckerman began dating.
They moved in together in February of 1999. Their daughter, Ivy, was born on
February 11, 2000. When Ivy was born, Wheeler bought her a new crib, Hannah a
new bed, and Heckerman a new king-sized bed. Their son, Jason, was born on
March 3, 2003. Wheeler was a good father, and the children loved him.
Heckerman testified about the kinds of things Wheeler used to do with his
children:
31
He played with them all the time. They used to like to sleep with him on the couch. He used to take Baby J riding in the truck. Baby J loved to be in the truck. They would go to the springs. We went to Busch Gardens, Universal Studios. We did a lot of family activities. We went to friends’ house having cookouts.
PC-R20, 3677.
Wheeler and Heckerman began using methamphetamine while they were
still living in Ohio. At first, they only used methamphetamine on the weekends.
When they started using methamphetamine, their relationship changed. She started
physical fights with Wheeler by throwing things at him, pushing him, and
screaming at him. When Wheeler began using methamphetamine, he became more
aggressive and he would hold her down during these fights, but he did not hit her.
PC-R20, 3677-78.
Wheeler and Heckerman moved to Florida in October of 2000. Wheeler
worked and Heckerman stayed at home with the children. For a time, they stopped
using methamphetamine because they were “trying to do the right thing.” PC-R20,
3681.
At first glance, the area around their home, which was “way out in the
woods,” was great, but “it turned out to be a giant drug hole.” PC-R20, 3680.
There was a lot of methamphetamine in the area, and there were methamphetamine
labs. Soon, Wheeler and Heckerman started using methamphetamine again, and
32
Wheeler was using more drugs than he was using before they left Ohio. As
Wheeler’s drug use increased, he became “really arrogant and obnoxious toward
everybody.” PC-R20, 3682. His fights with Heckerman became more physical
than verbal. At times, Heckerman was the aggressor; other times, Wheeler was the
aggressor where he was not in the past. Id.
Lake County was hit by hurricanes in 2004. After the hurricanes, Wheeler
worked over one hundred hours in seven days helping to restore power. On the
eighth day, he did not hear his wake-up call and his company fired him for not
showing up to work. Although he tried, he was unable to find another job.
Wheeler’s home was also damaged by the hurricanes. There was severe
damage to the exterior walls, holes in the roof, a collapsed ceiling, and water
damage. PC-R20, 3685. Their son, Jason, had asthma when he was born, and it
became worse as a result of the mold growing in the house. When they received
money from FEMA they were able to purchase a camper, which they kept on their
property. PC-R20, 3685-87
From October of 2004 until Wheeler’s arrest in February of 2005, Wheeler
and Heckerman used drugs on a daily basis. Wheeler used a lot of
methamphetamine, cocaine, ecstasy, crack, marijuana, and opiates. He mixed
these drugs with alcohol. On a typical night he consumed a 20-pack of beer by
33
himself, and he drank a half gallon of Captain Morgan rum each week.
Heckerman used a lot of drugs also, including morphine, Oxycontin,
methamphetamine, marijuana, and Klonopin. PC-R20, 3689-91. The
methamphetamine kept them awake for long periods of time, sometimes going as
long as two weeks with only an hour or so of sleep. Id. Heckerman admitted to
putting Klonopin, an anti-anxiety medication, into Wheeler’s drink a couple of
times without his consent to make him go to sleep. Id.
Heckerman explained that she and Wheeler used different kinds of
methamphetamine, which produce different effects. Anhydrous methamphetamine
has a tendency to exacerbate existing “psych issues.” Crystal meth, or “ice,” is of
a higher quality, and “amps” the user up and keeps them up longer. Red
phosphorus is a “dirty kind of dope” with an orangish color and a horrible odor.
The method that one ingests methamphetamine also produces different effects: “If
you eat enough of it, it will give you the same effects of eating it as taking ecstasy.
If you snort a lot of it, I guess it keeps you up longer. If you smoke a lot of it, it
makes you delusional.” PC-R20, 3690. Wheeler smoked, ate, and snorted
methamphetamine. Id.
Heckerman described how the drug use affected her own personality. She
was easily aggravated. Although she had a propensity for violence even without
34
the drugs, the drugs sometimes made her more violent. She suffered from bipolar
disorder and depression, and the drugs made her more depressed. The drugs
affected her memory in that she can remember things that happened, but she
cannot remember how much time passed between events because the days spun
together when she stayed up for weeks at a time. The lack of sleep made her feel
delusional, and she felt like she was going crazy. PC-R20, 3690-91
In addition to the changes she observed in herself, she also noticed changes
in Wheeler. He went from keeping his moustache trimmed to having hair all over
his face. He would not cut his hair, and when he did it was in a crazy way that
made no sense, such as one time when he shaved his head except for his bangs,
which he stood straight up in the air and referred to himself as a pineapple. PC-
R20, 3695. His tone of voice was deeper and more aggravated. He started
spending more time by himself in the woods, where he carried guns. When he was
around people, he was more aggressive and obnoxious toward everyone who
talked to him. He did not pay as much attention to the children as he used to. Id.,
3697. The fights between Wheeler and Heckerman became much more frequent
and a lot more violent, with Wheeler acting as the aggressor.
Wheeler also began to act very paranoid all the time. PC-R20, 3697. He
swore that there was somebody out in the woods or around the house, or that the
35
police were watching him, but Heckerman never saw any of these people.
Heckerman once found him on the roof with a listening device so that he could
hear people coming down the road. He wore the listening device in the woods, and
he sat in a recliner in a yard behind the camper with the listening device on his
head. PC-R20, 3698. He was also starting to install surveillance equipment in the
new house so that he could see everybody and always know what was going on.
He also accused Heckerman of doing things that she did not do, such as breaking
into his safe and stealing his drugs and money. Id., 3699.
Repairs began on the house in December of 2004. The insurance paid
$50,000 for the damage to the house and FEMA paid approximately $2,000. Id. at
70-71. The money went into Wheeler’s mother’s account, and she wired it to them
as they needed it. Wheeler and his friends worked on the house around the clock.
A lot of the people who were helping Wheeler work on the house were drug users,
and he paid them with methamphetamine. During their breaks, they got high and
drank. Wheeler was not really eating. He would go weeks without sleeping at all,
and when he would sleep for a couple of hours he would swear that he had just
slept for the entire day. Wheeler never finished the house. By February of 2005,
the whole interior of the house besides the walls was unfinished. He wired the
house four times, and he re-hung the drywall multiple times. PC-R20, 3701-06.
36
By the early part of 2005, Wheeler and Heckerman fought on a daily basis.
PC-R20, 3705. The fights had become mostly physical, and the violence was more
severe. During construction, Heckerman and her children lived in the camper, and
at some point Wheeler moved into the house. She tried to avoid him because every
time they looked at each other, they would start fighting. The noise from the
construction was loud: an air compressor, the stereo blaring all night, and a lot of
yelling. The house had turned into a party house, and Wheeler was having people
over who he would not have associated with when they first moved to Florida,
buying drugs from Wheeler and getting high at all hours of the night. She told
Wheeler that she did not like the people and things that her children were being
exposed to, and this is something that they fought about all the time. One time, she
broke new windows that he just installed because she wanted her phone that he had
locked in the house. PC-R20, 3702. During another fight in late January/early
February 2005, Heckerman tried to hit Wheeler with a boat oar and missed after
she attempted to kill herself by taking 45 Klonopins and some morphine. PC-R20,
3710-13.
Approximately three weeks before February 9, 2005, Heckerman took the
children to Deland to get away from Wheeler and escape the drama, chaos, and
screaming at her house. A couple of days later, Wheeler picked them up because
37
their daughter, Ivy, wanted to come home. PC-R20, 3707. The next day, their two
pit bulls got loose and attacked a neighbor’s horse.
One of the dogs ended up getting shot and the other one ended up running home. And over my Nextel I told Jason that when he found the other dog he needed to get rid of her because it wasn’t the first time that she attacked a horse and we were going to end up with a lawsuit eventually. And when I pulled up into our driveway, I watched Jason pick her up by the back of the neck and slit her throat.
PC-R20, 3707. She had never seen him do anything like that before.
Wheeler treated Heckerman differently after the incident with the dog. He
was mean to her all the time. He would not let her take the vehicles when she left
the home, and any time she wanted to go anywhere she had to carry her children
down a dirt road. PC-R20, 3708.
In early February of 2005, Heckerman hid three of Wheeler’s guns, but she
was unable to find the fourth gun. She explained why she hid the guns:
Because he had began to wave them around the yard like they were toys and threatening to shoot me and kill me and everything. He was starting to make everybody that was still around the house very uncomfortable. I was starting to believe he was really going to kill me.
PC-R20, 3712. Dale and David Dugan saw her hide the guns, and Heckerman
believes that one of them returned the guns to Wheeler. Id.
The weekend before February 9, 2005, Wheeler and Heckerman went to
38
Daytona with David Dugan and Monica Zakresky. They used a lot of drugs that
weekend, and Wheeler used ecstasy, cocaine, methamphetamine, and alcohol.
When they returned home, Heckerman found yet another stolen truck in the
backyard, which she figured Wheeler had stolen during the day of their Daytona
trip that he was missing. This led to a physical fight, which culminated in
Heckerman trying to stab Wheeler with a butcher knife and stabbing holes in the
door and tailgate of his truck. PC-R20, 3714.
On February 8, 2005, Wheeler and Heckerman fought for the last time. PC-
R20, 3709-10. They had been fighting about the fact that he was putting money
into the house and things kept turning up missing because he would disappear in
the middle of the night and leave the house wide open. She woke up in the middle
of the night, and Wheeler was gone again. When he showed up at 6:30 or 7:00
a.m., he appeared high. She had been using pills. Heckerman went outside and
asked him for some money to go to the store and get the children something to eat.
When she returned home they began fighting in the front yard. Wheeler grabbed
Heckerman by the hair and throat and yanked her out of the truck. In the process
of fighting, he ripped off her shirt. He tied her up with a dog chain with her hands
behind her back and a shotgun to her head and told her he was going to kill her.
Their children woke up and came outside, and Wheeler’s friend, who was present
39
and screaming at them to stop fighting, took the children away, leaving him alone
with Heckerman. The fight moved to the camper, where he tied her up twice and
she got away from him. The third time he hog-tied her with the cord from a space
heater, and he raped her. Heckerman explained that this fight was very different
from the fights they had in the past, and he never would have done these kinds of
things when they were first together. PC-R20, 3714-16.
Jason had never actually punched me before. I had never felt like I was fighting for my life when it came to him, but I was that day . . .I didn’t even know him anymore . . He was a monster.
Id.
After the fight, Wheeler left on a dirt bike and Heckerman got her children
back. She and the children ended up at a hotel in Deland with David Dugan and
Monica Zakresky. Sometime after dark, Dugan drove Wheeler’s truck back to the
house to exchange it for his own truck, and Heckerman stayed at the hotel with
Zakresky and the children. When Dugan returned to the hotel on the morning on
February 9, 2005, they agreed that she would come back to Lake County and call
the police on Wheeler so that he could get help.
Shortly after sunrise on February 9, 2005, Dugan took Heckerman to a
friend’s house in Lake County. She wanted to go to the camper to make sure
Wheeler was sleeping before she called the police so that everybody involved
40
would be alright. When she arrived at the camper, she saw that Wheeler was
asleep on the couch right inside the camper door, wearing camouflage pants, a
black pullover, and Dickie work boots. Wheeler did not wake up while she was
there, and she did not tell him that she was going to call the police that day. PC-
R20, 3721.
After leaving the camper, Heckerman walked five minutes back to her
friend’s house and called the non-emergency line for the Umatilla Police
Department. A recording of the call that ensued was introduced as Def. Ex 1.
Heckerman told the dispatcher that she needed an officer to come because her “old
man has lost it” and “it’s not him.” PC-R20, 3722-23. She warned that Wheeler
was sleeping and that if the officers came out with sirens and he heard them, he
would get up. She further informed the dispatcher that he was a “big boy so you
might want to send more than one” officer, that he was “very violent,” and that she
was concerned for everyone’s safety. Id.
Approximately five minutes after Heckerman called the police, Officer
Crotty arrived at Paulette’s house, followed by two other officers. She tried to
provide the officers with information, but every time she talked, she “pretty much
got told to shut up.” The officers left and went to Wheeler’s property while she
stayed at Paulette’s house. Officer Crotty returned a few minutes later and
41
informed her that Wheeler was no longer asleep in the camper and they could not
locate him, so they needed her to come out to the property. Heckerman did not
want to go back to the property because she was afraid of Wheeler, and she
informed Officer Crotty that “there was no way in hell I was getting in that car and
going out to the house until they knew where Jason was.” PC-R20, 3727-28. They
argued for a few minutes before Officer Crotty grabbed her by the arm, pushed her
into the back seat of the police car, and took her out to the property.
When they arrived at Wheeler’s property, the police cars were lined up in a
row. Officer Crotty and Heckerman walked to the front end of the first car, where
he asked her where some tire tracks on the property were from. She responded
loudly, “I don’t know, probably from a truck that was out here. There’s all kind of
stolen shit out here.” PC-R20, 3728-30. As soon as she said that, she heard a
gunshot coming from the far end of the driveway that went to the front end of the
police car. She ran and curled up under the wheel well in the last car, which was
running. While she hid under the car, she heard screaming and gunshots, and she
saw feet, but she could not identify Wheeler. Id.
After the gunfire stopped, Officer Crotty talked Heckerman into coming out
from underneath the car, and they and Officer McKane went across the street to an
abandoned house to wait for backup. Officer Crotty drove Heckerman and Officer
42
McKane out in a police car. Panicked and traumatized, Heckerman was taken to a
command center near her home where, a couple of hours later, she provided a
written statement to law enforcement. Shortly thereafter, she was Baker Acted
after getting into a heated argument with a couple of the officers about them not
taking her to see her children and leaving the command center. PC-R20, 3732-33.
At the time of Wheeler’s trial in May of 2006, Heckerman had been at the
Lake County Jail across the street from the courthouse for approximately one
month, during which time she was not using drugs. Heckerman recalled first
meeting with Mr. Grossenbacher at the Lake County Jail for approximately three
minutes.
He asked me if I had any information on the case. And I proceeded to tell him about Jason and his drug problem. And he told me he wasn’t looking to defend Jason that way.
PC-R20, 3735. She also saw his attorneys at a deposition on March 16, 2006 at the
Public Defender’s Office. If Wheeler’s attorneys had asked her to testify at his
trial, she would have been willing to testify to everything that she testified to at the
evidentiary hearing. She spoke with Dr. Smith twice during postconviction, and
she would have been willing to speak with an expert prior to trial.
David Dugan
Dave Dugan was friends with Wheeler for several years prior to Wheeler’s
43
arrest, and he was the last person to see Wheeler awake prior to his encounter with
police on February 9, 2005. He said that when he first met Wheeler, he was a
good, hard working, generous person. After the hurricanes in 2004, Wheeler
started using drugs constantly, and he became paranoid, delusional, and irritable.
He stated that he had known the Defendant for 7-9 years and lived with the
Defendant in 2005. Dugan testified that he was helping with the construction of
the Defendant’s house and saw him every day. He witnessed the Defendant using
a wide variety of drugs including marijuana, methamphetamine, pills, alcohol,
ecstasy, and, on one or two occasions, crack cocaine. Dugan stated that the
Defendant used every day. Dugan testified that the Defendant would hear things
that were not there, speak with people who were not there, and would see things
that were not there. The postconviction court did not find Dugan to be a credible
witness due to his felony convictions, but his testimony was entirely consistent
with that of the other witnesses in the case.
Expert Witnesses
Robert Smith, Ph.D.
Robert Smith, Ph.D is a clinical psychological and a certified addiction
specialist with extensive experience and training. He was hired by CCRC in the
spring of 2010 to conduct a chemical dependency assessment and a mental health
44
assessment of Wheeler. He met with Wheeler at Union Correctional Institution
three times, for a total of thirteen hours, on July 19, 2010, November 8, 2010, and
March 28, 2011. During those meetings, Dr. Smith conducted a standardized
psychosocial evaluation, a mental status examination, and a diagnostic review and
evaluation related to both mental illness and the use of alcohol and drugs. He also
considered collateral sources and reviewed various documents regarding Wheeler.
He interviewed Wheeler’s mother and several of Wheeler’s friends, including
Robert Shaddy, Monica Zakresky, David Dugan, and Michael Minton; his
neighbor, Paulette McKinnon; Sara Heckerman; and his adoptive father, Raymond
Wheeler, and he was present during the testimony of Minton and Heckerman at the
evidentiary hearing.
The most straightforward diagnoses for Wheeler, which are supported by
collateral sources as well as Wheeler’s self-report, are his addictions: alcohol
dependency, marijuana dependency, and methamphetamine dependency, all of
which are currently in remission. PC-R20, 3764, 3818. Wheeler first started
experimenting with alcohol and marijuana at age twelve. Once he learned that he
was adopted and he and his stepfather began having conflict, his use of substances
escalated dramatically, and he began experimenting with cocaine, pills, ecstasy,
and LSD. By the time he was seventeen years old, he was using cocaine fairly
45
frequently. He first used methamphetamine around the age of 22 or 23, after
which time his drug addiction progressed very rapidly. The influx of funds from
the settlement for his house being damaged by the hurricanes gave Wheeler and
Heckerman unlimited access to alcohol and drugs, and his use of
methamphetamine became daily. PC-R20, 3769.
Addiction is influenced by genetics, as well as psychological and
environmental risk factors. Wheeler has a family history of addiction, and he
inherited a genetic trait through no fault of his own that put him at risk for
addiction. Environmental factors also contributed to Wheeler’s addiction:
And when we look at Jason, we have his father that abused alcohol. His adopted father abused alcohol. The community in which he lived, his peers abused alcohol and drugs. And so it became something that seemed to be acceptable and part of life.
PC-R20, 3772.
Although all of the drugs that Wheeler was using were addictive, the most
highly addictive was methamphetamine. Methamphetamine is a stimulant that
causes the brain to act in a very rapid-fire fashion and releases adrenaline, causing
the body to prepare for fight or flight. A person can become psychologically
addicted to methamphetamine after the first or second use; a physiological
dependence would typically take a couple of weeks to develop. Wheeler used
46
crank, which has the most impurities, and glass and crystal methamphetamine,
which are purer, more potent, and produce a longer-lasting high. He swallowed
and snorted methamphetamine at times, but he preferred to smoke it, which
produces a quick, intense high. Wheeler was dependent on methamphetamine,
meaning that he reached a point where, due to chemical changes within his body,
he required more of the drug in order to get the desired effect. He never received
treatment for his addictions, and as an individual in an environment that was filled
with drugs, it would have been nearly impossible for him to overcome his
addiction on his own. PC-R20, 3772-84.
Dr. Smith’s diagnosis of Wheeler also includes bipolar disorder, and
Wheeler has been diagnosed by the Department of Corrections with a depressive
disorder and bipolar disorder. PC-R20, 3764, 3778, 3828. He is being treated at
Union Correctional Institution with medications that are typically given to patients
who have severe mental illness with psychotic features, including a variety of
antidepressants and antipsychotics. PC-R20, 3764, 3768. Dr. Smith described the
symptoms of bipolar disorder.
An individual who vacillates between being very depressed and having very extended periods of mania where the individual has excessive energy, racing thoughts, impulsivity, and difficulty sleeping, sort of endless energy, and lots of creativity, a sense of grandiosity, and perhaps some narcissistic traits and then
47
will again cycle back down into long periods of depression.
PC-R20, 3765. Bipolar disorder is a genetic disorder, and Wheeler has a family
history of mental illness. Environmental stressors also may have contributed to
Wheeler developing bipolar disorder, including an absent biological father who is
an alcoholic, the discovery as a teenager that he was adopted by his stepfather, and
physical abuse at the hands of his stepfather. PC-R20, 3767.
There is also the issue of Wheeler presenting with long-standing delusions
and hallucinations, which were reported by all of the individuals Dr. Smith met
with. The effects of methamphetamine are heightened in individuals with bipolar
disorder, and methamphetamine exacerbates the symptoms of bipolar disorder.
Because the symptoms of bipolar disorder and methamphetamine abuse are the
same, it is difficult to sort out which symptoms are the result of bipolar disorder
and which are the result of methamphetamine use. PC-R20, 3777.
Wheeler’s psychotic symptoms were most likely the result of a
methamphetamine-induced psychotic disorder, a mental disease or defect which
Dr. Smith believes Wheeler suffered from at the time of the offense. PC-R20,
3765, 3792, 3794. Although the initial effects of methamphetamine use in a
person who has not used it before are positive and include hyper-alertness, greater
focus, and more energy, continued use leads to impairment in all functioning, and
48
may lead to permanent brain damage. PC-R20, 3779, 3786-87. Use over an
extended period of time mimics paranoid schizophrenia and causes delusions,
hallucinations, paranoia, and suspicion. PC-R20, 3774-75, 3793. It causes people
to become highly agitated, reactionary, and irritable, and it interferes with impulse
control. Methamphetamine causes individuals to misperceive what is going on
around them and overreact, often in an aggressive and violent manner. PC-R20,
3775, 3793.
Methamphetamine also interferes with sleep, and individuals such as
Wheeler can go days or weeks with little to no sleep. Dr. Smith described the
effects of sleep deprivation:
With sleep deprivation, basically what the studies have shown is if you take an individual and you prevent them from having REM sleep, which is the very deep sleep that’s sort or rejuvenating for all of us, what happens is the individual begins to become disoriented. They hallucinate. They become delusional. They become confused. Perception of time becomes difficult. And so that can occur just by someone not having sleep for several days.
PC-R20, 3786.
In the months leading up to Wheeler’s arrest on February 9, 2005, the
insurance settlement he received allowed him to use methamphetamine, alcohol,
and marijuana on a daily basis, in addition to any other drugs that were available,
49
including cocaine, ecstasy, opiates, and sedatives. Heckerman put Klonopin in his
food and drink on occasion to get him to sleep. Dr. Smith obtained information
about Wheeler’s drug use from collateral sources, including Heckerman and Dave
Dugan, and this information was corroborated by laboratory reports, which
indicated that he was positive for methamphetamine, as well as metabolites of
cocaine and opiates. As Wheeler’s drug use increased, his behavior deteriorated.
PC-R20, 3788-89. There were times in which people observed him talking to
people when there was no one there. They observed him being paranoid, going out
into the woods and looking for people, thinking that he heard things. His behavior
became bizarre.
He at one point was holding a satellite disk to the TV and was yelling at people in the house, Is the picture any better? Well, the TV was black because they didn’t have any power and the satellite wasn’t connected so there wasn’t any way to get a picture. But he was screaming at them, Look at it now, look at it now. There were other accounts that people gave in terms of him putting cameras up to monitor people, putting things in the safe, believing that Sara was having affairs, multiple affairs with many people, him threatening and challenging some people who were his best friends for years, not trusting them. So you see this very dramatic decline in behavior and this sort of challenging and threatening behavior because he’s suspicious of everyone around him.
PC-R20, 3789.
He engaged in obsessive-compulsive behavior, such as when he rewired the
50
house several times. He became increasingly aggressive and his sexual arousal and
desire for sex increased, traits which are associated with methamphetamine use.
Wheeler and Heckerman fell into a pattern of make-up sex following fights, sex for
drugs, and sex for money. PC-R20, 3790.
Dr. Smith believes that drugs played a crucial role in the fight between
Wheeler and Heckerman on February 8, 2005. They had both been using drugs
daily, and they had been awake for many days. They fought several times in the
weeks leading up to this event. The rape was a result of the hypersexuality that is
associated with methamphetamine use, as well as the overall deterioration of their
relationship.
On February 9, 2005, Wheeler was suffering from the intoxicating effects of
the substances he was using, in conjunction with “a substance-induced psychotic
disorder in which he was having both hallucinations and delusions and acting in
response to those false beliefs.” PC-R20, 3791-92. He was “paranoid, suspicious
of those around him, believing that people were plotting against him, acting in a
bizarre fashion, not sleeping, very reactive, impulsive, aggressive, and
experiencing hypersexuality.” Id. His actions were spontaneous and disorganized.
Wheeler was surprised to find law enforcement on his property, and he was not
prepared for the encounter. Although methamphetamine would have impaired
51
Wheeler’s higher-order thought, including decision making, reaction, and
considering consequences, as an individual who grew up with guns and has fired
them on numerous occasions, his ability to ratchet a gun and fire it on that day
would not have been impaired by his use of methamphetamine. PC-R20, 3798-99.
Dr. Smith found it significant that Wheeler’s response to the officers
shooting at him on February 9, 2005 was not normal. A person with average
intellect would flee and take evasive action to protect themselves in a situation
where others were shooting at them. Wheeler’s response was the opposite. He
appeared calm, and he walked toward the officers as they were shooting at him.
This behavior is consistent with the fact that Wheeler was “under the influence of
alcohol and drugs and that he is not reacting in a way that you would expect, but
rather the way someone who has a methamphetamine-induced psychosis to
respond.” PC-R20, 3796.
Although Dr. Smith spoke with Wheeler about what happened on February
9, 2005, neither Wheeler nor Dr. Smith was able to distinguish what was an actual
memory versus what Wheeler had been told. Although he does not remember
everything that he was thinking at the time, he knows that he heard Heckerman’s
voice and that he was angry. He shot first because he perceived that a police
officer was pointing a gun toward him. Based on a number of factors, Dr. Smith
52
would expect Wheeler to have some memory loss. His memory may have been
impaired by heavy methamphetamine use and lack of sleep. The trauma of the
event, as well as how quickly everything occurred, may also have affected his
memory. PC-R20, 3801.
Forensic Testing
Bruce Goldberger, Ph.D., a professor and director of toxicology at the
University of Florida in the College of Medicine in the departments of pathology
and psychiatry, was hired by CCRC-Middle to conduct some analyses of bloody
bandages that were used by the paramedics treating Wheeler at the scene. The
State and the Defense stipulated that the bandage came from Wheeler at the time
that he was shot in Lake County on February 9, 2005, and the chain of custody of
the bandage has been maintained. Dr. Goldberger’s laboratory performed gas
chromatography mass spectrometry analyses for methamphetamine and its
metabolite. GC-MS was available in 2004 and 2005. Both the top layer of the
bandage and the absorbent layer of the bandage tested positive for
methamphetamine. PC-R21, 3960-65.
Lauren Stainback is an analytic chemist and CEO of Triad Forensics
Laboratory, an independent forensics testing laboratory in North Carolina, which
was hired by CCRC in 2010 to conduct a standard nine drug screening of samples
53
from Wheeler’s case. Triad tested the sample using ultra high performance liquid
chromatography, a more sensitive test than GC-MS, which has been available
commercially since 2006. PC-R21, 3936-37, 3940-44, 3957-58. Cocaine
metabolites and opiate metabolites were detected in the sample, but were not
quantifiable. Id. They also detected amphetamine compounds, which they
determined were of an illicit nature, as opposed to prescription amphetamines. PC-
R21, 3946-48.
Deficiency, Strategy and Prejudice
Trial counsel rendered deficient performance for failing to investigate and
present mitigating evidence of Wheeler’s drug use around the time of the offense
and its effect on Wheeler. The sentencing order contains the finding that, although
Wheeler established at trial that he used drugs sometime before the shooting of the
deputies, there was a lack of information regarding how much Wheeler used
around the day of the homicide, how much he generally used or how often, and its
impact on Wheeler’s behavior on February 9, 2005. Dir. Vol. V, 921-22. That
information could have and should have been supplied through a reasonable
investigation by trial counsel. This evidence, which was lacking at trial, was
presented during postconviction through forensic experts, lay witnesses, and a
mental health expert.
54
Trial counsel said their strategy basically consisted of arguing that Wheeler
was a good person who was under the influence of drugs and suffering from an
extreme amount of stress at the time of the offense, which led to him doing
something that was out of character. PC-R22, 4140, 41499 Their strategy as far as
attacking the cold, calculated, and premeditated aggravator was that the crime was
not something planned, but that he was emotional and enraged. PC-R22, 4140.
The evidence that was presented at the evidentiary hearing could have and should
have been presented at trial in support of that strategy, but was not due to trial
counsel’s ineffectiveness.
Trial counsel’s failure to obtain the forensic testing that was done in
postconviction was a glaring and rather obvious deficiency. Wheeler’s attorneys
did not consider having the blood on Wheeler’s clothing or bandages tested to
determine whether there were drugs in his blood at the time of the offense. PC-
R22, 4201. As Wheeler has demonstrated, this testing would have provided
scientific evidence, which was lacking at trial, that Wheeler had illicit
methamphetamine compounds, cocaine metabolites, and opiate metabolites in his
blood on February 9, 2005.
Wheeler’s attorneys were also ineffective for failing to present the testimony
of Wheeler’s friends, who were around Wheeler in the months and days leading up
55
to the shootings, and could have testified about Wheeler’s drug use and the effect
that the drugs had on his behavior. As Wheeler demonstrated at the evidentiary
hearing, Minton, Heckerman, and Dugan could have testified that Wheeler’s drug
use increased dramatically after the 2004 hurricanes to the point where he was
using drugs, and especially methamphetamine, all day every day. The drug use
caused Wheeler to go from being a great guy to a person who his friends did not
even recognize.
Trial counsel also rendered deficient performance in that they failed to fully
develop mental health mitigation, and they failed to provide their mental health
experts with the information they needed to make an accurate diagnosis. Counsel
hired a series of mental health experts even though they did not think that Wheeler
suffered from “some major psychiatric problem.” PC-R22, 4206. Wheeler
informed Dr. Ward, who was the first mental health expert to examine Wheeler,
that during the three months prior to his arrest, he was on a methamphetamine
binge and using methamphetamine daily. PC-R21, 3893. Dr. Mason, who was
hired very late in the proceedings, concluded his report by saying that “the
influence of drug use may be considered as mitigating circumstances.” Defense
Exhibit 14. However, none of the experts hired by trial counsel spoke with any of
the lay witnesses who testified at the evidentiary hearing. PC-R22, 4203-05. The
56
defense ended up presenting Dr. Olander, who relied in large part on her interviews
with Wheeler, who claimed to have memory loss regarding the event, to go back to
the scene of the crime to obtain an understanding of Wheeler’s state of mind. R16,
1894-1917. Dr. Olander presented a superficial picture of Wheeler’s drug use and
its effect on his behavior, and the source of her information was unclear. As a
result, the trial court was left wanting more information.
In contrast to Dr. Olander’s testimony, in postconviction Dr. Smith
presented an in-depth picture of Wheeler’s drug addiction and its effect on his
mental state. Unlike the experts who evaluated Wheeler prior to trial, Dr. Smith
spoke with a number of Wheeler’s friends. He provided details about Wheeler’s
drug use and addiction that were lacking at trial and concluded that at the time of
the offense Wheeler was suffering from psychotic symptoms that were the result of
a bipolar disorder or coupled with a methamphetamine-induced psychosis.
The prejudice prong of Strickland is also met. First, the additional evidence,
which is discussed above, would have provided powerful mitigation. It would
have served as credible support for Dr. Olander’s conclusions, including her
opinion that the two statutory mental health mitigators existed. It would have
provided the court with substantial evidence regarding Wheeler’s drug use and the
specific effects that the drugs had on Wheeler. This additional information would
57
have helped to explain Wheeler’s actions on February 9, 2005.
Additionally, this evidence could have been used to counter the State’s
argument that the cold, calculated, and premeditated aggravating factor existed.
The additional evidence that has been uncovered by collateral counsel would have
established that Wheeler’s actions were a product of chronic drug addiction sliding
into methamphetamine psychosis.
Trial counsel’s failure to investigate and present mitigation constituted
deficient performance, which violated Wheeler’s Fifth, Sixth, Eighth, and
Fourteenth Amendment rights under the United States Constitution and
corresponding provisions of the Florida Constitution. The jury recommended
death by a vote of ten to two. There is a reasonable probability that if this
information had been presented to the jury at least four additional jurors would
have recommended a life sentence for Wheeler and he would have received a life
sentence. The prejudice is Wheeler’s sentence of death. For these reasons,
Wheeler is entitled to a new penalty phase trial.
CLAIM IV
WHEELER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL’S FAILURE TO MAKE SPECIFIC OBJECTIONS TO VICTIM IMPACT EVIDENCE AND FAILURE TO OBJECT TO THE PROSECUTOR’S COMPARATIVE WORTH ARGUMENT.
58
Victim impact evidence and improper prosecutorial argument about it were
the principal issues urged on direct appeal and were the almost exclusive topics of
discussion during the oral argument.3
The United States Supreme Court in Payne v. Tennessee, 501 U.S. 808, 111
S.Ct. 2597 (1991), held that where state law permits, the Eighth Amendment erects
no per se bar to the state presenting evidence about the victim, the impact of the
murder on the victim’s family, and argument on these subjects. Id. at 827.
Broadly speaking, Payne identified two constitutional bases for placing limitations
on victim impact evidence and argument. One is the Eighth Amendment. Booth v.
Maryland, 482 U.S. 496 (1987) 107 S.Ct. 2529 (1987) was an Eighth Amendment
Members of the Court repeatedly faulted
trial counsel for failing to preserve the issues for review in both the oral argument
and in the eventual opinion denying relief. The Court denied relief at that time at
least in part because the issues had not been properly preserved. However, trial
counsel’s failure to object or otherwise preserve error for appellate review now is
an appropriate line of collateral attack predicated on a claim of ineffective
assistance of trial counsel.
3A video recording of the oral argument can be viewed at http://www.wfsu.org/gavel2gavel/archives (October 7, 2008) (last checked, August 6, 2012).
59
case. Booth was partially overruled by Payne, which held that the Eighth
Amendment does not erect a per se bar to certain categories of victim impact
evidence. The Payne Court added this qualification:
Our holding today is limited to the holdings of Booth v. Maryland, and South Carolina v. Gathers, [citations omitted] that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing. Booth also held that admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case.
Payne, 501 U.S. at 852 n.2. In other words, the latter type of victim impact
evidence continues to remain barred on Eighth Amendment grounds under Booth.
The other constitutional basis for excluding certain types of victim impact
evidence is the Fourteenth Amendment Due Process clause. “In the event that
evidence is introduced that is so unduly prejudicial that it renders the trial
fundamentally unfair, the Due Process Clause of the Fourteenth Amendment
provides a mechanism for relief.” Payne 501 U.S. at 825, citing Darden v.
Wainwright, 477 U.S. 168 (1986). See infra. Unfortunately, aside from the
citation to Darden, the Supreme Court has not provided much guidance as to what
that standard means:
Given Payne’s sharp retreat from prior precedent, it is
60
surprising that neither the opinion of the Court nor any of the concurring opinions made a serious attempt to define or otherwise constrain the category of admissible victim impact evidence. Instead, the Court merely gestured toward a standard, noting that, ‘[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause . . . provides a mechanism for relief.’ That statement represents the beginning and end of the guidance we have given to the lower courts considering the admissibility of victim impact evidence in the first instance.
Kelly v. California, 129 S.Ct. 564 (2008) (Justice Stevens’ statement respecting the
denial of petitions for writs of certiorari) (citations omitted).
Victim Impact Evidence
On direct appeal this Court said:
During the entire presentation of victim impact evidence, Wheeler made no specific objections to any portion of the testimony or any particular aspect of the photographic evidence, although Wheeler renewed his general objection to presentation of any victim impact evidence. We conclude that the claim Wheeler now makes that the victim impact evidence was impermissibly made a feature of the penalty phase was not preserved by Wheeler’s general pretrial objections addressed to all victim impact evidence, where he made no specific objections to any of the evidence presented and failed to object below on the grounds argued here. . . . Moreover, in this appeal, Wheeler still fails to identify any specific error in admission of the victim impact testimony or photographs.
Wheeler v. State, 4 So. 3d 599, 606 (Fla. 2009).
61
Nevertheless this Court noted that a due process analysis parallels its
fundamental error doctrine. Thus, the Court proceeded to determine if
fundamental error or a violation of due process occurred in the admission of the
victim impact evidence in this case. Id. 607. The Court initially determined that
the testimony of four victim impact witnesses- the victim’s uncle, sister, the
victim’s first wife and mother of his two biological children, and that of his current
wife and mother of his stepchildren, which had been vetted outside the presence of
the jury, did not “constitute error, fundamental or otherwise.” Id. 607. That
determination appears to foreclose any argument that counsel’s failure to object
constituted ineffective assistance with regard to that particular evidence in this
proceeding. Nevertheless, Mr. Wheeler respectfully maintains that defense
counsel provided ineffective assistance when he did not object to the following
excerpt from the statement of the victim’s brother, Victor Koester, which was read
to the jury during the penalty phase:
Another troubled child in school; another domestic violence call that needs to be answered; another officer in trouble; another hurricane disaster that needs assistance. Wayne is no longer there to help.
R15, 1789. Counsel provided prejudicial ineffective assistance for failing to object
to the above statement, which gave the impression that, because Deputy Koester
was no longer there to assist, the needs of the community would not be met, or an
62
officer, a child, a victim of domestic violence, or hurricane victims would not be
assisted. Aside from the fact that such an implication is incorrect, it improperly
played on the jurors’ fears for themselves and their own families, as well as
sympathies for hypothetical victims who have nothing to do with Wayne Koester
or this case.
That said, with regard to a photographic montage presented by the
prosecution, the Court said:
Potentially more problematic is the State’s presentation of photographic montages depicting Deputy Koester in various settings in the community and with his family. The State presented fifty-four victim and family photographs mounted on four poster boards showing the victim in different settings such as with family members, holding babies, serving in the National Guard, and coaching. There is nothing in our case law or the victim impact statute that prevents the State from presenting photographs as part of its victim impact evidence and, as with victim impact evidence from witnesses, we have never drawn a bright line as to the number of permissible photographs that the State may present. In this case we conclude that neither fundamental error nor a due process violation has been demonstrated in this case by the number of photographs alone, where Wheeler has not identified any particular photograph or group of photographs that was impermissibly prejudicial so as to render the penalty phase fundamentally unfair. . . . In this case, the trial court accommodated every specific objection to victim impact evidence that was voiced by defense counsel. Because Wheeler has identified no reversible error committed by the trial court in admission of the victim impact evidence, we deny relief on this
63
claim. Wheeler v. State, 4 So. 3d 599, 608 (Fla. 2009). Wheeler contends that, not only
was counsel’s failure to object an instance of ineffective assistance appropriate for
consideration in postconviction proceedings, but that the Court’s disposition of this
aspect of his argument (failure to identify “reversible error”), contrasted with its
earlier finding that the testimony of the four victim impact witnesses did not
constitute error “fundamental or otherwise,” amounts to something of a red flag for
postconviction consideration.
Specific Objections Defense Counsel Could Have Made to the Victim Impact Evidence As noted by the lower court, CCRC did assert specific objections that trial
counsel could and should have made on Mr. Wheeler’s behalf.
Defendant argues that the following objections to the victim impact evidence could have been made by trial counsel. First, he argues that trial counsel should have objected to the overall number of photographs and should have requested the court to limit their number as well as the number of individuals depicted in the photographs. He contends that the State’s argument regarding the number of people affected by the victim’s death coupled with the number of photographs amounted to an aggravator. Second, he maintains that trial counsel should have objected to the number of victim impact photos that depicted children (44 out of 54 photos contained children). Defendant argues that the large percentage of photos depicting children created the impression that these children were victims. Third, Defendant asserts
64
that trial counsel should have objected to the photographs of Deputy Koester as a child. (Defendant asserts that the prejudicial effect outweighed the probative value.) Fourth, he asserts that trial counsel should have objected to the following statement read by Victor Koester during the penalty phase: “Another troubled child in school; another domestic violence call that needs to be answered; another officer in trouble; another hurricane disaster that needs assistance. Wayne is no longer there to help.” . . . Defendant asserts that, not only is that statement incorrect, but it improperly plays on the jurors’ fears for themselves as well as sympathies for hypothetical victims who have nothing to do with the victim or this case.
PC-R6, 1065 (order denying relief). Many of these objections could have been
made under Fla. Stat. § 90.403, which states in part:
Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
The most obvious objection would have been the overall number of
photographs, which this Court found to be “potentially problematic.” More
specifically, counsel could have asked the court to limit the number of
photographs, as well as the number of different individuals who were depicted in
the photographs. The State’s argument about the number of individuals who have
been affected by the crime, including the victim’s dozens of nieces and nephews,
was supported by the 54 victim impact photographs that were presented to the jury,
which included many of the victim’s nieces and nephews, along with other family
65
members. As the Court pointed out, although counsel objected to the State’s
argument about the number of individuals who have been affected by this crime,
they did not move for a mistrial. Id. at 610. Having heard the State’s argument
about the number of individuals who were affected and being presented with these
photographs, it would have been difficult for the jurors not to consider the number
of people who were affected by the death of Deputy Koester. The cumulative
effect of the State’s argument and the number of victim impact photographs and
the many people depicted in them amounted to an aggravator based on the number
of people who were affected.
Defense counsel should also have objected to the number of victim impact
evidence photographs that depicted children. Of the 54 photographs that were
presented, 44 contained children: sixteen of the eighteen photographs on the poster
board introduced as State’s Exhibit Three, sixteen of the twenty photographs on the
poster board introduced as State’s Exhibit Four, seven of the ten photographs on
the poster board introduced as State’s Exhibit Five, and five of the six photographs
on the poster board introduced as State’s Exhibit Six. His brother, Victor Koester
testified about the photographs, and identified the various nieces and nephews, as
well as the victim’s own children. R15, 1777-84. Much of this evidence was
cumulative, as several of the children appeared in multiple photographs. Id.
66
Although Wayne Koester was a grown man when he died, the large percentage of
victim impact photographs depicting children gave the impression that these
children were victims, and would have improperly appealed to the emotions of the
jurors, interfering with their ability to objectively weigh the aggravating and
mitigating factors. Wheeler asserts here that the posterboard montage amounted to
inadmissible “photographic eulogies.” See infra.
Many of the photographs in State’s Exhibit Four depict the victim himself as
a child. R15, 1779-80. There is precedent for reversal in cases where the
prejudicial effect of victim impact evidence that included the portrayal of the adult
victim as a child was found to outweigh its probative value. See Cargle v. State,
909 P.2d 806, 824-29 (Okla. Crim. App. 1995); Salazar v. State, 90 S.W. 3d 330
(Texas 2002). In Salazar v. State, the prosecution introduced a number of
photographs of the twenty year old victim as a child. Salazar, 90 S.W. 3d 330. In
holding that the prejudicial effect of these photographs outweighed their probative
value, the Court of Criminal Appeals of Texas found:
We agree with the court of appeals that the probative value of the video montage was minimal, but we disagree that the risk of unfair prejudicial was also slight. Nearly half of the photographs showed Jonathon Bishop as an infant, toddler or small child, but appellant murdered an adult, not a child. He extinguished Jonathon Bishop’s future, not his past. The probative value of the vast majority of these “infant-growing-into-youth”
67
photographs is de minimis. However, their prejudicial effect is enormous because the implicit suggestion is that appellant murdered this angelic infant; he killed this laughing, light-hearted child; he snuffed out the life of the first-grade soccer player and of the young boy hugging his blond puppy dog. The danger of unconsciously misleading the jury is high.
Id. at 337.
Florida Statutes Section 921.141(7) limits victim impact evidence to
evidence that demonstrates the victim’s uniqueness as a human being or the
resultant loss to the community by his death. Photographs of the victim as an
“infant-growing-into-youth” do not provide insight into his uniqueness as a human
being or the resultant loss to the community by his death, and therefore they do not
have any probative value. On the other hand, the prejudicial effect of these
photographs is enormous due to the implicit suggestion that Wheeler murdered the
equivalent of “this angelic infant; he killed this laughing, light-hearted child; he
snuffed out the life of the first-grade soccer player and of the young boy hugging
his blond puppy dog,” and there is a high danger that the jury could be
unconsciously misled. The prejudicial effect of these photographs, especially in
conjunction with the other photographs of children that were presented during the
penalty phase clearly outweighs their probative value, and defense counsel should
have objected to their introduction.
68
There was no reason for counsel not to have made the foregoing objections,
and by not doing so counsel provided prejudicial ineffective assistance. Defense
counsel admitted he was not specifically familiar with Payne. PC-R22, 4171,
4215. Counsel agreed that they did not make any specific objections regarding the
number or nature of the victim impact photographs or the statement by Victor
Koester, and they could not recall any reason for not having done so. PC-R, 4172-
73, 4217-18.
Trial Counsel Rendered Ineffective Assistance By Failing To Object To Improper Penalty Phase Closing Argument On direct appeal this Court observed that trial counsel “objected to only one
of the [prosecutor’s] alleged improper comments, and relied upon his general
pretrial motions in limine for preservation of his claims of error for the remaining
comments.” Wheeler, supra, at 609. However, “[t]he general pretrial motion in
limine does not constitute a contemporaneous objection to the prosecutor’s
arguments, and the record demonstrates that even the one objected-to comment
was not adequately preserved.” Id. at 609. With regard to the one purportedly
objected-to comment, the trial court ordered the prosecutor to clarify his argument
to the jury. This Court said that, “[n]o further objection was made after this
clarification, and no motion for mistrial was made. Because this objection was not
preserved, and no other specific objections were made to any of the other
69
arguments Wheeler cites on appeal, his claims are procedurally barred.” Id. at 610.
At the outset, Wheeler acknowledges that this Court ultimately concluded
that, with one exception addressed below, the arguments complained of on direct
appeal “constituted proper comment on the evidence and the law.” Wheeler v.
State, 4 So. 3d 599, 610 (Fla. 2009). Therefore they would not appear to present a
basis for a particularly persuasive claim of ineffectiveness in this proceeding.
Nevertheless, Wheeler respectfully reasserts his claim of ineffectiveness with
regard to counsel’s failure to object to those arguments for preservation purposes.
They were listed in Wheeler’s direct appeal brief as follows: comments on the
prosecutorial opinions of expertise, implying that the prosecutor had already
determined that this case warranted the death penalty R3, 581; R7, 55-56; arguing
incorrect law to the jury R3, 581; R7, 59; arguing that the jury may not consider
mercy R3, 581; R7, 61- 62; comments that the prosecutor was the representative of
the community R3, 581; R7, 62-64; argument of factors other than the statutory
aggravators in support of death, including victim impact, and that the jurors would
act differently had they been in the same situation as the defendant R2, 354; R3,
581; R7, 68; expressions of the prosecutor’s personal opinion as to the
appropriateness of the death penalty in this case (first motion, paragraph E, R2,
G3 R2, 356-357; R3, 581; R7, 68-71; argument that although there were rules to
limit the jurors’ emotions from entering their penalty decision, there was also
common sense and reason that they should instead use in considering the loss to
the victim’s family that the defendant’s choice had cost, R16, 1955-56; counting
for the jury the number of the victim’s family members, especially children,
affected. R16, 1956; asking the jury to weigh the victim’s choice to swear his oath
of office, put on a uniform against Wheeler’s choice was to “take them out;” R16
1972-73; personally asked the jury to do something that the law did not require, to
recommend unanimously “as one voice” a “manifest” decision, the only one that
could “do justice,” a sentence of death (R16, 1973).4
This Court did find that one portion of the prosecutor’s argument was
improper;
4The prosecutorial arguments cited here were generally the subject of boilerplate pretrial motions. Defense counsel failed to make contemporaneous objections to them. See Wheeler, 4 So.3d at 609. (“Wheeler objected to only one of the alleged improper comments, and relies upon his general pretrial motions in limine for preservation of his claims of error for the remaining comments. The general pretrial motion in limine does not constitute a contemporaneous objection to the prosecutor's arguments, and the record demonstrates that even the one objected-to comment was not adequately preserved.”); id. n.6 (“Section 90.104(1), Florida Statutes, was amended in 2003 to make a contemporaneous objection to admission or exclusion of evidence unnecessary in order to preserve the issue for appeal where a prior “definitive ruling” has been obtained. . . .This statute does not apply here because it does not apply to claims of error in prosecutorial argument.”). See infra.
71
One unobjected-to argument, however, did exceed the proper scope of closing argument when the prosecutor, quoting writer Joseph Epstein, argued:
“But within all this realm of choicelessness, we do choose how we will live. Either courageously or cowardly, or honorably or dishonorably, with purpose or a drift, we decide what’s important and tri-vial in life. We decide what makes us significant is either what we do or what we refuse to do. But no matter how indifferent the entire universe may be to these choices, these choices and decisions are ours to make. We decide. We choose. And as we decide and as we choose, our destinies are formed.”
That’s what I want you to look at as we walk through this case and these facts and these aggravating and mitigating circumstances. No specific objection was made to this argument, although just before penalty phase closing arguments, Wheeler had advised the trial judge that the prosecutor might attempt to argue that the jury could weigh victim impact evidence against the mitigators. Significantly, the prosecutor actually responded at that time that he did not intend to use victim impact evidence as an aggravator, but he “intended to use the victim impact as a contrast to the defendant’s mitigation of his life and his character.” The trial court was concerned whether such an argument would be proper and warned the prosecutor to couch his discussion of the victim impact evidence very circumspectly to avoid having it diminish defendant’s mitigation.
72
Under the limited scope of the victim impact statute in Florida, victim impact evidence is not to be used by the jury to compare, contrast or weigh the relative worth of the life of the victim against that of the defendant in deciding whether to recommend the death penalty. To the extent that the prosecutor’s argument urged the jury to compare the worth of the life of the victim against that of Jason Wheeler, the argument is erroneous. However, we conclude that reversal is not mandated because no contemporaneous objection was made, the error has not been shown to have deprived Wheeler of a fair penalty phase, and the error has not been shown to be so inflammatory that the jury’s advisory verdict could not have been obtained without it. See Derrick, 983 So.2d at 463. Nevertheless, we caution the State and its prosecutors to remain mindful of the limited purpose for which victim impact evidence may be introduced and to stay strictly within those parameters.
Wheeler v. State, 4 So.3d 599, 606-11 (Fla.2009).
This Court further explained its analysis in Wheeler when the opportunity
arose in Hayward v. State, 24 So.3d 17 (Fla. 2009):
However, we feel compelled to once again voice our disapproval of this type of prosecutorial comment comparing the life or choices of the victim with that of the defendant . . . As we did in Wheeler, we again hold that victim-defendant comparisons are improper and again “caution the State and its prosecutors to remain mindful of the limited purpose for which victim impact evidence may be introduced and to stay strictly within those parameters.”
Hayward, 24 So. 3d at 43. Wheeler’s claim here is that defense counsel rendered
ineffective assistance by failing to object to this argument. Defense counsel’s
73
failure to object to improper prosecutorial argument is an appropriate subject for
postconviction review. “[D]efense counsel has a duty to object to improper
comments by the State and to move for mistrial where required.” Eure v. State, 764
So. 2d 798, 801 (Fla. 2d DCA 2000) (reversing a conviction based on ineffective
assistance of counsel where counsel failed to object to clearly improper closing
arguments); Gordon v. State, 469 So. 2d 795, 796-98 (Fla. 4th DCA 1985)
(reversing a conviction based on ineffectiveness where counsel failed to object to
numerous improper comments of prosecutor). As Justice Pariente pointed out
during the oral argument in this case, given that Payne and progeny allow victim
impact evidence to be admitted under certain restrictions, the trial judge is required
to rely on defense counsel - who presumably has prepared the case and is familiar
with it - to articulate what restrictions should apply given the specific facts of the
case. Despite the trial court’s very explicit invitation outside the presence of the
jury to address the specifics of what the prosecutor announced that he was planning
to do, defense counsel chose to stand pat on a boiler plate motion that in effect said
only that Payne was wrong. This Court noted that not only had counsel failed to
make the appropriate contemporaneous objections but that “no motion for mistrial
was made.” The implication is that counsel could have preserved his objections if
he had made such a motion timely. He did not. See Clark v. State, 363 So.2d 331
74
(Fla.1978); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Eure v. State, supra, at
801 (“If we could determine that in any way the defense counsel’s failure to object
was a strategic move, we would not find ineffectiveness; however, in light of the
egregious arguments made by the prosecutor, we conclude that counsel’s failure to
object fell below any standard of reasonable professional assistance.”). Just like
with any other trial error, lawyers have a duty to object to improper comments
made during closing arguments. Murphy v. International Robotic Systems, Inc.,
766 So.2d 1010 (Fla. 2000) (discussing history of contemporaneous objection
rule).
The postconviction court “acknowledged that” this was “a difficult issue.”
PC-6, 1075. Nevertheless the court denied relief for two reasons. First, the court
found in essence that the erroneousness of the argument was obscure enough that
defense counsel could be forgiven for not recognizing it. “The undersigned
believes that while the Florida Supreme Court found the statement to be error, this,
in and of itself, is not proof that reasonably competent counsel would have made
an objection at the time.” Id. 1076. The court noted that there was a dissent on
whether the prosecutor’s argument was erroneous. The court said that with
“respect and deference to the Florida Supreme Court . . . there is no reference to
comparing the relative worth of the lives of Deputy Koester and Wheeler to arrive
75
at a penalty recommendation.” PC-R6, 1077. Wheeler disagrees with this analysis
and asserts that failure to object based on a misapprehension of the law constitutes
a deficiency cognizable under Strickland. The lower court’s reasoning would set
up a two tier ranking of errors, some of which would establish a deficiency where
counsel failed to object and others which would not due presumably due to their
legal sophistication or perhaps arguability. Undersigned counsel is unaware of any
authority establishing such a hierarchy of errors. Instead, there is a legion of cases,
consistent with common sense and Strickland itself, acknowledging that numerous
attorney deficiencies occur in virtually every capital trial, and that they should be
accepted as such and then reviewed under the prejudice, instead of the deficiency
prong of Strickland.
As its second basis for denying relief the court said that “any error has not
been shown to have deprived Wheeler of a fair penalty phase and was not so
inflammatory that the jury’s advisory verdict could not have been obtained without
it.” This appears to be a prejudice analysis although the word “prejudice” is not
used in this section of the court’s order. The court cited Gonzalez v. State, 990 So.
2d 1017 (Fla. 2008) in support of its conclusion. This is an excerpt from the lower
court’s order denying relief:
After Wheeler, the Florida Supreme Court has held similar arguments to be proper. Gonzalez. 990 So. 2d
76
1017. In Gonzalez the court held that it was proper to argue that great weight should be given to the aggravating circumstances that the murder was committed to avoid a lawful arrest, the victim was a law enforcement officer, and the murder was committed to hinder the enforcement of the laws. There the prosecutor held up the officer’s badge and explained what it symbolized. Later in the argument the prosecutor quoted George Bernard Shaw: “It is long and hard and painful to create a life. It is short and easy to steal the life that others have made.” The prosecutor then spoke about the life that the officer had made for himself and how it was taken. The Court found that this was proper argument.
PC-R6, 1077. The problem here is that if the court was conducting a prejudice
analysis, which admits the deficiency but considers its impact, it is inapposite to
cite authority that questions whether there was error in the first place. If the
prosecutor’s argument here was not error then there could be no deficiency for
failure to object to it and thus no reason to analyze prejudice. In any event,
Wheeler simply disagrees with the postconviction court’s view that the arguments
in Gonzales are “similar.” The fact is that the prosecutor here very clearly and
explicitly compared the lives and choices of the victim and the defendant. This
issue was settled on direct appeal and the postconviction court’s disagreement with
it was error. To the extent it was a factual determination at all – Wheeler would
contend that it was either a purely legal characterization of prosecutorial argument
or at most a mixed question -- it was an unreasonable determination of the facts in
77
light of the record. Beyond that, Wheeler would contend that the postconviction
court did not conduct any prejudice analysis at all, rather it merely re-asserted its
disagreement with this Court’s decision on direct appeal that the prosecutor’s
comparison argument was improper.
Fundamental Error and Strickland Prejudice
Wheeler’s appellate counsel was reduced to making the uphill argument that
the prosecutor’s comments constituted fundamental error due to trial counsel’s
failure to object. As this Court noted, the trial court went out of its way to allow
defense counsel to make the appropriate objections outside the presence of the
jury, but counsel simply failed to make them. With regard to the comparison
argument found to be improper, this Court concluded that “reversal is not
mandated because no contemporaneous objection was made, the error has not been
shown to have deprived Wheeler of a fair penalty phase, and the error has not been
shown to be so inflammatory that the jury’s advisory verdict could not have been
obtained without it.” “Reversal” in this context necessarily meant reversal
predicated on fundamental error.
Florida’s fundamental error doctrine allows the appellate court to review
unpreserved claims on the merits only if the alleged errors “reach down into the
validity of the trial itself to the extent that [the advisory verdict] could not have
78
been obtained without the assistance of the error.” Derrick v. State, 983 So.2d 443,
463 (Fla. 2008). The standard of prejudice for a postconviction ineffectiveness
claim, on the other hand, is a “reasonable probability” of a different result. The
fundamental error standard establishes a stringent “cannot do other” than reach a
different result. E.g. “[T]he error [allowing the prosecutor’s comparative worth
argument] has not been shown to be so inflammatory . . . that the jury’s advisory
verdict could not have been obtained without it.” Wheeler, 4 So.3d at 610. The
“could not” test of this excerpt is equivalent to fundamental error review, which
was the only review possible due to counsel’s failure to make the appropriate
contemporaneous objections. Thus the Court’s decision with regard to
fundamental error does not preclude relief under the Strickland test, which is the
more defense-friendly “reasonable probability” standard.
Wheeler acknowledges that the Gonzales case cited above does contain dicta
that would tend to equate the fundamental error standard with that of Strickland
prejudice, although it appears in a footnote explaining why certain claims were
deemed procedurally barred and therefore were not directly addressed in the text of
the opinion.5
5Although the question whether or not the fundamental error standard is the equivalent of Strickland prejudice was argued below, the postconviction court
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The three instances [of alleged improper prosecutorial argument] that are now procedurally barred were raised in Gonzalez’s direct appeal after his new penalty phase. Gonzalez first argued that while discussing Gonzalez’s duress argument, the prosecutor mocked the defense experts. This Court found that because counsel did not object, the claim was not preserved for appellate review. Gonzalez also argued that the prosecutor made an improper statement as he attempted to refute a mitigation argument offered by the defense. This Court found that the claim was not preserved because the objection at trial was not based on the same grounds as the grounds raised on direct appeal. The last argument raised by Gonzalez dealt with the prosecutor’s comments to the jury telling them to use their common sense in evaluating the evidence presented. This Court again found that the claim was not preserved because counsel failed to object. However, with regard to all three claims, this Court concluded, “Gonzalez has failed to demonstrate that the comments either individually or collectively amount to fundamental error so as to entitle him to any relief [citing Gonzalez, 786 So.2d at 569].” Because Gonzalez failed to show that the comments amounted to fundamental error on direct appeal, Gonzalez fails to demonstrate that counsel’s failure to object to the comments resulted in prejudice under Strickland.
Gonzalez v. State, 990 So. 2d 1017, 1028 n.8 (Fla. 2008) (citing Chandler v. State,
848 So.2d 1031, 1046 (Fla. 2003) (“Because Chandler could not show the
comments were fundamental error on direct appeal, he likewise cannot show that
trial counsel’s failure to object to the comments resulted in prejudice sufficient to
curiously did not address this section from Gonzales. It likewise did not address the issue in its order denying relief at all.
80
undermine the outcome of the case under the prejudice prong of the Strickland
test.”).
This can’t be right. The two standards should not be equated. Imagine a
case where all sorts of errors appear on the record and defense counsel did nothing
about it: no objections, no motions – nothing. Assume arguendo that the standard
for fundamental error is the same as that for prejudice under Strickland. Not only
can appellate counsel argue fundamental error, he should. One can then predict an
across the board procedural bar argument in postconviction proceedings for that
very reason – whether appellate counsel raised the arguments or not. Such an
argument would necessarily imply that there can be no viable postconviction claim
predicated on ineffective assistance of counsel for failing to act with regard to any
trial error whatsoever, either because the trial error was raised and decided
adversely to the defendant under the fundamental error doctrine and is therefore
procedurally barred, or because it could and should have been raised as such and is
therefore now procedurally barred as well. Yet this is manifestly not the case, trial
error type ineffectiveness claims predicated on failure to object, move for relief,
request particular instructions and so on are raised and decided on the merits in
81
postconviction proceedings all the time.6
In any event, plain English should suffice. If the result “could not” have
been obtained without the error, then now, once the error has been brought to light,
the outcome will necessarily be different. This is exactly the stringent standard
that Strickland rejected. “Even when the specified attorney error results in the
omission of certain evidence, the newly discovered evidence standard is not an apt
source from which to draw a prejudice standard for ineffectiveness claims. . . . The
result of a proceeding can be rendered unreliable, and hence the proceeding itself
unfair, even if the errors of counsel cannot be shown by a preponderance of the
evidence to have determined the outcome.” Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 2068 (1984).
See generally 6 A.L.R.4th 16 § 32[c]
“Not objecting to summation; untimely objection – meritorious underlying
contention – – no explanation – ineffectiveness established or hearing required.”
In Darden, supra, which the Supreme Court alluded to in Payne regarding
6If direct appeal counsel’s decision to raise a claim under the fundamental error standard amounts to a strategic gamble which might have the effect of foreclosing relief in postconviction proceedings under a more defense-friendly standard if the direct appeal court takes the issue up as potential fundamental error and decides it adversely to the defendant/appellant, then appellate counsel’s decision should be subject to ineffective assistance review in habeas proceedings. Appellate lawyers should also be apprised that they are taking that risk, which will likely be news to them.
82
due process/fundamental error analyses of alleged victim impact evidence and
argument, the Court found that the prosecutor’s remarks were objectionable and
improper, but found that they did not render the trial “fundamentally unfair,” in
part because “defense counsel made the tactical decision not to present any witness
other than petitioner. This decision not only permitted them to give their
summation prior to the prosecution’s closing argument, but also gave them the
opportunity to make a final rebuttal argument. Defense counsel were able to use
the opportunity for rebuttal very effectively, turning much of the prosecutors’
closing argument against them by placing many of the prosecutors’ comments and
actions in a light that was more likely to engender strong disapproval than result in
inflamed passions against petitioner.” In other words, the Darden Court’s
determination about whether the admission of certain improper victim argument
evidence warrants relief under the Due Process Clause according to Payne
depended on an evaluation of defense counsel’s effectiveness under typical
Strickland principles, i.e. counsel’s overall strategy. This is one way that Florida’s
fundamental error doctrine procedurally parts ways from a due process analysis.
Defense counsel’s strategy for failing to object, if any, can only be addressed in
postconviction proceedings, not on direct appeal via the fundamental error
doctrine.
83
Strategy and Prejudice
Darden was a case about bad prosecutorial argument during the trial’s guilt
phase, not the penalty phase, which makes it even less helpful with regard to
victim impact evidence and argument which necessarily occurs only during the
penalty phase. Among other reasons for caution in applying Darden due process
standards to a penalty phase ineffectiveness claim is that the law requires and the
guilt phase jurors are so instructed that the defendant should be found guilty of the
highest offense proven, whereas a penalty phase jury is never required to
recommend death. Thus an argument that evidence of guilt may be so
overwhelming that a defendant cannot be deprived of a fair trial by anything a
prosecutor says in argument does not apply to bad argument in the penalty phase.
Also the guilt phase jurors are repeatedly warned that their verdict must be based
on evidence which amounts to proof beyond a reasonable doubt. Penalty phase
jurors are told that the existence of aggravating circumstances must be proven a
reasonable doubt, but that their ultimate recommendation is reached by weighing
the aggravating circumstances against the mitigating circumstances, not by proof
of anything. That is at least partly what makes the comparative worth argument so
pernicious in the first place.
Unlike in Darden, the record does not reflect that Wheeler’s attorneys did
84
anything to turn the prosecutor’s comparative worth argument back on him or
generate strong disapproval of it. In fact, defense counsel avoided any mention of
it. R16, 1974-93 (defense closing argument). Nor did he obtain any other tactical
advantage such as the opportunity to make a rebuttal argument cited in Darden.
Each side was permitted one argument. The defense went second so defense
counsel would have had rebuttal if he had chosen to use it. Unlike Darden, there
was no reasonable strategy for counsel’s failure to object. Wheeler is entitled to
relief.
CLAIM V
TRIAL COUNSEL PROVIDED PREJUDICIAL INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO ASSERT THE PSYCHOTHERAPIST-PATIENT PRIVILEGE ON BEHALF OF WHEELER OR OBJECT TO THE TESTIMONY OF DR. PEREZ.
The postconviction court summarized this claim this way:
Defendant argues that trial counsel was ineffective for failing to assert the psychotherapist- patient privilege on behalf of the Defendant or object to the testimony of Dr. Raphael Perez, the psychiatrist who evaluated the Defendant in the Seminole County Jail. Defendant contends that Dr. Perez would have been prohibited from testifying if trial counsel had invoked the psychotherapist- patient privilege. Defendant further notes that, pursuant to the American Academy of Psychiatry and the Law, Ethics Guideline for the Practice of Forensic Psychiatry (May 2005), when a treatment
85
relationship exists - even in a correctional setting - the usual psychiatric-patient duties apply. Defendant asserts that Dr. Perez’ testimony prejudiced him in several ways. Dr. Perez’ assessment that the Defendant was possibly malingering over memory loss undermined his assertion that he could not remember the events of February 9, 2005. Further, Dr. Perez’ testimony contradicted and undermined Dr. Olander’s testimony and could have led the jury to conclude that Defendant’s methamphetamine use did not impair his cognitive functioning.
PC-R6, 1078 (footnote omitted).
Raphael Perez, M.D. is a psychiatrist who was contracted with the Seminole
County Jail to provide services to inmates. He first came into contact with
Wheeler at the jail on April 13, 2005 for the purpose of evaluating Wheeler to see
whether he was in need of treatment for a mental illness. At the time, Wheeler was
being treated for depression and anxiety. He did not evaluate Wheeler for
competency or for the purpose of testifying in court. R16, 1935-37. Dr. Perez
testified on behalf of the State at the penalty phase of Wheeler’s trial. The
sentencing court relied heavily on his testimony both to support its view that
Wheeler was being deceptive about his memory of the events of the shooting and
to discredit the testimony of Dr. Olander. R5, 910-11. Dr. Perez also testified that
methamphetamine use enhances comprehension, reading, and memory. Id. at
1939. In other words, Dr. Perez’s testimony factored heavily into the sentencing
decision and was very damaging to Wheeler.
86
Trial counsel rendered deficient performance because they did not assert the
psychotherapist-patient privilege on behalf of Wheeler or otherwise object to Dr.
Perez’s testimony. Trial counsel could not think of any reason for wanting Dr.
Perez to testify, and they could not recall whether they considered raising a
psychotherapist-patient privilege on Wheeler’s behalf. PC-R22, 4170, 4215. The
State was critical of the fact that Dr. Olander was not “a doctor diagnosing a
patient,” as opposed to Dr. Perez, who was actually “treating [Wheeler] at the jail.”
R16, 1963.
Under Florida Statute § 90.503 (1)(c):
A communication between psychotherapist and patient is “confidential” if it is not intended to be disclosed to third persons other than: 1. Those persons present to further the interest of the patient in the consultation, examination, or interview. 2. Those persons necessary for the transmission of the communication. 3. Those persons who are participating in the diagnosis and treatment under the direction of the psychotherapist.
Under Florida Statute § 90.503 (2)(c), “A patient has a privilege to refuse to
disclose, and to prevent any other person from disclosing, confidential
communications or records made for the purpose of diagnosis or treatment of the
patient’s mental or emotional condition . . .” This privilege may be claimed by a
number or parties, including the patient, the patient’s attorney on the patient’s
87
behalf, and the psychotherapist on the patient’s behalf. Fla. Stat. § 90.503(3).
Furthermore, the courtroom testimony of mental health professionals who
are tasked with the treatment of inmates implicates ethical considerations and is in
direct conflict with the treatment goals to which these professionals are required to
aspire. When a treatment relationship exists, even in correctional settings, the
usual physician-patient duties apply. American Academy of Psychiatry and the
Law, Ethics Guidelines for the Practice of Forensic Psychiatry (May 2005),
https://www.aapl.org/ethics.htm (last visited August 7, 2012). The Ethics
Guidelines for the Practice of Forensic Psychiatry warn, “Treating psychiatrists
should therefore generally avoid acting as an expert witness for their patients or
performing evaluations of their patients for legal purposes.” Id.7
The postconviction court agreed that a psychotherapist-patient relationship
did exist in this case. PC-R6, 1080. The court denied relief, however, because it
7The credentials of Dr. Merikangas include chairmanship of the Standards and Ethics Committee of the American Neuropsychiatric Association. The postconviction court sustained an objection to his rendering an opinion about the propriety of Dr. Perez’s testifying at trial, but permitted a proffer. Dr. Merikangas said: “[I]t violates the principle of dual agency where a treating physician should not be an advocate in a forensic matter unless that is agreed to by the patient. It is a violation of doctor-patient confidentiality and may be a violation of the HIPAA rules, the current rules regarding medical confidentiality, to testify about the treatment of a patient in a setting which does not have to do with treatment.” PC-R21, 3985.
88
found that the exception to the privilege of section 90.503(4)(c) applied. Id. 1081.
The court’s analysis conflates the questions of disclosure and admissibility.
The existence of a privilege has nothing to do with “relevancy” or “admissibility.”8
8Note the following argument obviously does not apply in the common setting where an opposing party’s mental health expert conducts an evaluation as a part of the case. In accordance with relevant rules and statutes, the Guidelines also anticipate concerns regarding confidentiality and consent, and as such they require that “notice should be given to the evaluee of the nature and purpose of the evaluation and the limits of its confidentiality” and that “informed consent of the person undergoing the forensic evaluation should be obtained when necessary and feasible.” Id. Dr. Perez was not conducting a forensic evaluation.
As clearly stated in section 90.503(2), a “patient has a privilege to refuse to
disclose, and to prevent any other person from disclosing, confidential
communications or records.” The statute does not restrict the privilege to
disclosure at trial only. Instead, the statute grants the patient, Mr. Wheeler, the
right to prohibit his psychotherapist from revealing details of his treatment to any
other person whether during discovery or at trial. In Garbacik v. Wal-Mart
Transportation, LLC, 932 So.2d 500 (Fla. 5th DCA 2006), the court explained that
discovery could not be had simply because the patient’s psychological records
might be used for impeachment or “have some bearing” on the patient’s claims.
The court observed:
89
If we allowed an invasion of the privilege because the material could be used for impeachment purposes, we might just as well ignore the privilege in its entirety. If that were the law, there would be virtually no case where the report of a mental health professional could not be obtained by the opposing party. Section 90.503 would be useless.
Id. at 504. See also Cedars Healthcare Group, Ltd. v. Freeman, 829 So.2d 390,
(Fla. 3d DCA 2002) (holding that discovery order regarding production of
photographs violated the psychotherapist-patient privilege); Cohen v. Cohen, 813
So.2d 1060, 1061 (Fla. 4th DCA 2002) (quashing an order “compelling the
production of the psychiatric records of one of the defendants over his assertion of
the psychotherapist-patient privilege”). Thus, the privilege applies at all stages in
the proceeding without regard to issues of relevancy or admissibility.
Drawing an analogy between the psychotherapist-patient privilege and the
attorney-client privilege helps to illustrate the scope of the privilege. Section
90.502 provides:
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.
§ 90.502(2), Fla. Stat. (emphasis added). The statutory language used here,
describing the privilege, is exactly the same as that used in the psychotherapist-
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patient privilege statute. Yet, the State in this case would not argue that it could
obtain the notes of Mr. Wheeler’s attorneys in hopes of uncovering some relevant
and admissible information. Defense counsel should have objected or taken
whatever action was necessary to prevent disclosure of Dr. Perez’s evaluations.
The testimony of Dr. Perez prejudiced Wheeler is several ways. First, Dr.
Perez’s suggestion that Wheeler was “possibly malingering about memory loss”
undermined Wheeler’s claim that he had no memory of the events of February 9,
2005. Additionally, as compared with Dr. Olander’s testimony that Wheeler’s
chronic methamphetamine use impaired his cognitive functioning and contributed
to the mental health statutory mitigators, Dr. Perez’s testimony supported the
opposite conclusion that methamphetamine use actually enhances cognitive
function. In contrast to Dr. Olander’s finding that Wheeler suffered from impaired
frontal executive functioning, Dr. Perez found that Wheeler was functioning well
and his cognitive functions were intact. As defense counsel stated in penalty phase
closing arguments, “it almost sounded like [Dr. Perez] was saying
methamphetamine was good for you.” R16, 1990. As opposed to supporting the
statutory mental health mitigators, the jury was led to believe that
methamphetamine use actually gave Wheeler an advantage. There is a reasonable
probability that if trial counsel had objected to the testimony of Dr. Perez, he
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would not have been allowed to testify and four additional jurors would have voted
in favor of a life sentence, thus resulting in a life recommendation and a life
sentence.
CLAIM VI
FLORIDA’S LETHAL INJECTION METHOD OF EXECUTION IS CRUEL AND UNUSUAL PUNISHMENT AND WOULD DEPRIVE MR. WHEELER OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW IN VIOLATION OF THE FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.9
The Eighth Amendment to the United States Constitution prohibits the
“unnecessary and wanton infliction of pain,” Gregg v. Georgia, 428 U.S. 153, 173,
(1976) (plurality opinion), and procedures that create an “unnecessary risk” that
such pain will be inflicted. Cooper v. Rimmer, 379 F. 3d 1029, 1033 (9th Cir.
2004). The Eighth Amendment has been construed by the Supreme Court of the
United States to require that punishment for crimes comport with “the evolving
standards of decency that mark the progress of a maturing society.” Roper v.
Simmons, 543 U.S. 551, 561, 125 S. Ct. 1183 (2005) (quoting Trop v. Dulles, 356
U.S. 86, 100 01, 78 S. Ct. 590 (1958) (plurality opinion)). Executions that
9Counsel acknowledges that this claim is not supported by current case law.
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“involve the unnecessary and wanton infliction of pain,” Gregg, 428 U.S. at 173
(plurality opinion), or that “involve torture or a lingering death,” In re Kemmler,
136 U.S. 436, 447, 10 S. Ct. 930 (1890), are not permitted.
Florida’s present method of execution by lethal injection entails an
unconstitutional level of risk that it will cause extreme pain to the condemned
inmate in violation of the Eighth and Fourteenth Amendments of the U. S.
Constitution and the Florida Constitution prohibition against cruel and unusual
punishment.
CLAIM VII
FLA. STAT. 945.10 PROHIBITS MR. WHEELER FROM KNOWING THE IDENTITY OF THE EXECUTION TEAM MEMBERS, DENYING HIM HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS AND CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION.10
Section 945.10, Fla. Stat. (2006) exempts from disclosure under Section 24(a),
Article I of the Florida Constitution (the right to access public records):
(g) Information which identifies an executioner, or a person prescribing, preparing, compounding, dispensing, or administering a lethal injection.
10See preceding footnote.
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Federal courts have found that concerns that execution team members would
be publicly identified and retaliated against was an overreaction, supported only by
questionable speculation. California First Amendment Coalition v. Woodford, 299
F.3d 868 (9th Cir. 2002). Importantly, that court pointed out that numerous high
profile individuals are involved with the implementation of executions, including a
warden, a governor and judges, and there is a significant history of safety around
these publicly known officials. Id. at 882. Pennsylvania courts have likewise
found safety concerns as a basis for protecting the identity of execution witnesses
as wholly unsupported speculation. Travaglia v. Dept. of Corrections, 699 A.2d
1317, 1323 n.5 (Pa. Commw. Ct. 1997).
Moreover, the exemption violates Art. X, § 25(a), Fla. Const. The provision
generally known as Amendment 7, adopted in 2004 by Florida’s electorate, states:
In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
Art. X, § 25(a), Fla. Const. Amendment 7 thus provides an avenue for patients to
get access to records of a health care provider’s adverse medical incidents. See
Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 486 (Fla. 2008).
The exemption for the identity of the execution team members also conflicts
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with FL ST §381.026, the “Florida Patient’s Bill of Rights and Responsibilities.”
This statute states:
(4) (b) Information.-- 1. A patient has the right to know the name, function, and qualifications of each health care provider who is providing medical services to the patient.
Id. For the foregoing reasons Appellant is entitled to relief.
CLAIM VIII
MR. WHEELER’S EIGHTH AMENDMENT RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT WILL BE VIOLATED AS DEFENDANT MAY BE INCOMPETENT AT TIME OF EXECUTION.
A prisoner cannot be executed if the person lacks the mental capacity to
understand the fact of the impending death and the reason for it. Ford v.
Wainwright, 477 U.S. 399 (1986). The only time a prisoner can legally raise the
issue of his sanity to be executed is after the Governor issues a death warrant.
Until the death warrant is signed, the issue is not ripe. Martinez Villareal v.
Stewart, 523 U.S. 637 (1998) (respondent’s Ford claim was dismissed as
premature, not because he had not exhausted state remedies, but because his
execution was not imminent and therefore his competency to be executed could not
be determined at that time).
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CLAIM IX
CUMULATIVE ERROR DEPRIVED THE DEFENDANT OF THE FUNDAMENTALLY FAIR TRIAL GUARANTEED UNDER THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.
Cumulative error in the case at hand deprived Wheeler of his constitutional
right to a fundamentally fair trial, which is guaranteed under the Sixth, Eighth, and
Fourteenth Amendments. See Heath v. Jones, 941 F.2d 1126 (11th Cir. 1991);
Derden v. McNeel, 938 F.2d 605 (5th Cir. 1991). “[A] court hearing an
ineffectiveness claim must consider the totality of the evidence before the judge or
jury.” Strickland, 466 U.S. at 695-96. Cf. State v. Gunsby, 670 So. 2d 920 (Fla.
1996) (“[W]hen we consider the cumulative effect of the testimony presented at
the rule 3.850 hearing and the admitted Brady violations on the part of the State,
we are compelled to find, under the unique circumstances of this case, that
confidence in the outcome of Gunsby’s original trial has been undermined and that
a reasonable probability exists of a different outcome”), citing Cherry v. State, 659
So.2d 1069 (Fla.1995) (cumulative effect of numerous errors in counsel’s
performance may constitute prejudice); Harvey v. Dugger, 656 So.2d 1253
(Fla.1995) (same). This consideration is important here, where this motion raises
numerous separate claims based on counsel’s failure to object, among others.
Even if the Court is not persuaded that relief should be granted on any one of them,
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the Court must consider their cumulative effect.
CONCLUSION
Based on the foregoing, the circuit court improperly denied Mr. Wheeler
relief on his Rule 3.851 motion. Relief is warranted in the form of a new trial, a
new sentencing proceeding, or any other relief that this Court deems proper.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Initial Brief of
Appellant has been furnished by United States Mail, first class postage prepaid, to
all counsel of record and the Defendant on this 15th day of August, 2012.
_____________________ Mark S. Gruber Florida Bar No. 0330541 Maria Perinetti Florida Bar No. 0013837 CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION 3801 Corporex Park Drive, Suite 210 Tampa, Florida 33619 (813) 740-3544 Counsel for Appellant
Copies Furnished to: Kenneth Nunnelley Assistant Attorney General Office of the Attorney General 444 Seabreeze Blvd., Suite 500 Daytona Beach, FL 32118
Jason Wheeler DOC # 991988 Union Correctional Institution 7819 NW 228th Street Raiford, FL 32026
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CERTIFICATE OF COMPLIANCE
I hereby certify that a true copy of the foregoing Initial Brief of Appellant
was generated in Times New Roman, 14 point font, pursuant to Fla. R. App. 9.210
(a) (2).
____________________________ Mark S. Gruber Florida Bar No. 0330541 Maria Perinetti Florida Bar No. 0013837 CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION 3801 Corporex Park Drive, Suite 210 Tampa, Florida 33619 (813) 740-3544 Counsel for Appellant
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