Kirkpatrick v. State

346 So.3d 687

Lance E. KIRKPATRICK, Appellant,

v.STATE of Florida, Appellee.

No. 1D21-683

District Court of Appeal of Florida, First District.

August 24, 2022

Rehearing Denied September 19, 2022

Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.

Rowe, C.J. Lance E. Kirkpatrick appeals an order summarily denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. Kirkpatrick raised nine claims of ineffective assistance of counsel and a claim of cumulative error. Finding no error, we affirm.

Facts

In 2012, the State charged Kirkpatrick with first-degree murder, burglary of a dwelling with an assault or battery, and sexual battery with a deadly weapon or great physical force. Kirkpatrick admitted that he killed the victim, but claimed that the murder was not premeditated. The State's theory was that Kirkpatrick entered the victim's home with the intent to rob her to pay off a drug debt, but then sexually assaulted and murdered her.

The State opened its case with testimony from the victim's husband. He recounted that he had worked a twenty-hour shift and tried to call his wife repeatedly, with no answer. When he returned home the morning after his shift ended, he found his wife naked, lying face down on the floor of their bedroom. Her wrists and ankles were bound with zip ties. She had extensive trauma to her face and had bruises on her breasts and her upper arms. He noticed that the front door was unlocked and that a statue near the door where the couple hid their spare key was overturned.

Next, the medical examiner testified. He explained that the victim's right ankle had a zip tie on it and there were zip ties on both of her wrists. Based on the bruising around the zip ties, the medical examiner concluded that the victim was bound before she died and that she struggled against her bindings. The victim suffered bruises to her shoulder, arm, left breast, and left ear. She had an abrasion on her chin. And she had multiple injuries to her head and eyes.

The medical examiner determined that the victim suffered severe blunt force trauma consistent with being hit multiple times with a pool cue found at the crime scene. The injuries to the victim's face suggested that she had been punched in the mouth. The victim also suffered a one-inch stab wound on her neck while she was alive, which punctured her jugular vein. The stab wound, along with blunt force trauma to her head, caused the victim's death. While there were no physical signs of trauma to the victim's vaginal or anal area, Kirkpatrick's DNA was found in both areas. His DNA was also found under the victim's fingernails and on the zip tie attached to the victim's wrist.

The State's forensic expert testified next. Five bullet holes were detected in the home. The expert determined that the gun shots were fired from the master bedroom, where the victim was found, and into the living room. The bloodstain patterns showed that most of the victim's injuries occurred while she was not standing.

Later, the State presented several witnesses to show Kirkpatrick's activities the night before the murder. These witnesses testified that Kirkpatrick and Terry Norris attended a house party that night and were using drugs. When they ran out of drugs, Norris gave Kirkpatrick about $200 to purchase more drugs. Kirkpatrick returned with only $40 worth of drugs.

Melissa Westmoreland testified that Kirkpatrick left the house party in her car. Westmoreland's car was seen in the victim's gated subdivision the day of the murder. The State also presented evidence that Kirkpatrick knew the victim and her husband and that he had stayed before at their home.

Brian Kieffer, Kirkpatrick's roommate, saw Kirkpatrick after the murder and commented on an injury he noticed on Kirkpatrick's hand. Kieffer testified that Kirkpatrick confessed to murdering someone. Kirkpatrick told Kieffer that he went to the victim's home and they fought. He stated that he shattered a pool cue on the victim, then the victim fired five shots at him from a different room in the home. Kirkpatrick confessed that he thought the victim was trying to escape when he heard the victim opening a window in the bedroom. He entered the bedroom, beat the victim, and stabbed her in the neck. Kirkpatrick told Kieffer that he left the house after killing the victim, but returned later to clean the home. Kirkpatrick stated that he did not take any items from the home so the victim's husband would be blamed for the murder.

After Kieffer testified, a detective confirmed that Kieffer knew details about the crime that had not been released to the public.

Defense counsel then moved for a judgment of acquittal. The trial court denied the motion.

Kirkpatrick then testified as the sole witness for the defense. He admitted that he attended the house party with Norris and Westmoreland and that he left the party to buy drugs. He returned with the drugs, but left again to buy pills. After buying the pills, he went to the victim's neighborhood. He claimed that the victim let him into her home. Because it was early in the morning, the victim went back to bed while Kirkpatrick tried to locate some items he had left in the house. When the victim woke up, she and Kirkpatrick had sex in the victim's bedroom.

Later, Kirkpatrick and the victim argued over whether Kirkpatrick had encouraged the victim's husband to cheat on her. Kirkpatrick said that the victim fired a gun at him, which caused him to grab a pool cue to defend himself. Kirkpatrick swung the pool cue at the victim while struggling for control of the gun. When he realized the victim was unconscious, he restrained the victim with zip ties. He assumed that a neighbor would call the police after hearing the gun shots, so he waited for them to arrive. Deciding that the zip ties would look bad to police, Kirkpatrick tried to cut them with a knife. The victim regained consciousness and struggled for the knife. He assumed that was when she was stabbed. When the police did not arrive, Kirkpatrick left the home.

The defense rested. The jury found Kirkpatrick guilty of first-degree murder, burglary of a dwelling, and sexual battery. The court sentenced him to three consecutive life sentences. This Court affirmed Kirkpatrick's convictions and sentences on direct appeal. Kirkpatrick v. State , 227 So. 3d 570 (Fla. 1st DCA 2017) (unpublished table decision).

Kirkpatrick timely filed a second amended postconviction motion collaterally attacking his convictions. The trial court summarily denied the motion. This timely appeal follows.

Standard of Review

Our review of the trial court's order summarily denying Kirkpatrick's postconviction motion is de novo. Anderson v. State , 303 So. 3d 596, 598 (Fla. 1st DCA 2020).

Analysis

Kirkpatrick argued in his postconviction motion that his trial counsel rendered ineffective assistance by failing to: (1) prepare for trial, (2) adequately prepare Kirkpatrick to testify, (3) impeach a witness, (4) present experts to reconstruct the events and testify about Kirkpatrick's state of mind, (5) present an expert witness on zip ties, (6) call a medical expert, (7) argue that no evidence supported the State's theory that Kirkpatrick ripped the victim's underwear, (8) make a facially sufficient motion for judgment of acquittal, and (9) object to improper comments during closing argument. Kirkpatrick also claimed cumulative error.

To prevail on a claim of ineffective assistance of counsel, Kirkpatrick had to show "(1) counsel's performance was outside the wide range of reasonable professional assistance; and (2) counsel's deficient performance prejudiced the outcome of the proceedings so that without the conduct, there was a reasonable probability that the outcome would have been different." Knowles v. State , 336 So. 3d 858, 860 (Fla. 1st DCA 2022) (citing Strickland v. Washington , 466 U.S. 668, 687–88, 690–92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). If Kirkpatrick failed to make the requisite showing on either prong, he would not be entitled to relief on that claim. Rizkkhalil v. State , 316 So. 3d 802, 804 (Fla. 1st DCA 2021).

Waiver

Kirkpatrick did not appeal the trial court's summary denial of five claims presented in his postconviction motion. Thus, we affirm the trial court's disposition of those claims without further discussion. See Watson v. State , 975 So. 2d 572, 573 (Fla. 1st DCA 2008) ("[W]hen a defendant submits a brief in an appeal from a summary denial of a postconviction motion, this Court may review only those arguments raised and fully addressed in the brief."). We review the trial court's disposition of the four remaining claims, which Kirkpatrick addresses in his brief.

Failure to Properly Advise Kirkpatrick About Testifying

Kirkpatrick argued that counsel was ineffective for failing to advise him that the prosecutor could impeach him if Kirkpatrick testified that he had never stolen from the victim. This claim fails because Kirkpatrick cannot show prejudice.

Before trial, the State moved to introduce evidence of the gun theft that occurred one month before the murder to show Kirkpatrick's motive to return to the victim's home to steal from her again. The trial court denied the motion.

At trial, during cross-examination, the prosecutor asked Kirkpatrick if he went to the victim's home with the intent to steal from her. He responded that he did not intend to steal from the victim and that he never had to steal from her. The prosecutor then renewed the motion to introduce evidence of the gun theft one month before the murder. The prosecutor argued that Kirkpatrick's testimony opened the door to admission of the prior theft. The trial court granted the motion and allowed the State to present evidence that Kirkpatrick stole a gun from the victim's home before the murder.

Kirkpatrick claims...