Robards v. State, SC15–1364

214 So.3d 568

Richard Todd ROBARDS, Appellant,

v.STATE of Florida, Appellee.

No. SC15–1364

Supreme Court of Florida.

[April 6, 2017]

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Raheela Ahmed, Maria Christine Perinetti, and Donna Ellen Venable, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake, Assistant Attorney General, Tampa, Florida, for Appellee

PER CURIAM.

Richard Todd Robards, also known as Damien Robards, appeals an order of the circuit court denying his motion to vacate judgment of two first-degree murder convictions and sentences of death filed under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from sentences of death, we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the postconviction court's order to the extent that it denies Robards relief based upon his claim of ineffective assistance of guilt phase counsel, but grant Robards a new penalty phase proceeding pursuant to Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), petition for cert. filed , No. 16–998 (U.S. Feb. 13, 2017).

FACTS AND PROCEDURAL BACKGROUND

Trial and Direct Appeal Proceedings

Robards was found guilty of two counts of first-degree murder for the 2006 deaths of Frank and Linda Deluca. Robards, the couple's personal trainer, murdered them during the course of a robbery in which he stole personal belongings of the Delucas, including a safe containing more than $88,000. The Delucas died of multiple sharp force wounds, and their home was set on fire after they were murdered. The facts of the offenses are set forth in detail in this Court's opinion affirming Robards' convictions and sentences on direct appeal. See Robards v. State , 112 So.3d 1256 (Fla. 2013).

The guilt phase of the trial took place from May 18 to May 21, 2010. The guilt phase was followed by a brief penalty phase on May 25, 2010, during which the State presented testimony from Linda Deluca's sister, and the defense presented character evidence about Robards' personal and professional life using testimony from family members, friends, fellow inmates, and former clients. Id. at 1263. The jury recommended the death penalty for each murder by a vote of seven to five. After three Spencer ¹ hearings, during which mental health mitigation was offered, the trial court sentenced Robards to death. The facts revealed during the Spencer hearings were explained at length on direct appeal, and the sentencing proceeded as follows:

In its sentencing order, the court found that four aggravating circumstances were proven by the State beyond a reasonable doubt and assigned each one of them great weight: (1) Robards was convicted of a prior capital felony (based on the contemporaneous murder of the second victim); (2) Robards committed each murder for pecuniary gain; (3) Robards committed each murder while engaged in a commission of a robbery (merged with pecuniary gain); and (4) each murder was especially heinous, atrocious, or cruel (HAC).

Although the jury did not receive evidence of mental health mitigation, the trial court weighed the evidence that was presented at the Spencer hearing and considered as statutory mitigation the following: (1) whether Robards suffered from an extreme mental or emotional disturbance; and (2) whether Robards suffered from an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The court rejected both of these statutory mitigating circumstances and explained its rationale in its sentencing order. The trial court did weigh Robards' mental health as a nonstatutory mitigating circumstance.

The trial court considered a total of twelve nonstatutory mitigating circumstances. The trial court rejected Robards' argument that Florida's budgetary crisis was a reason for not imposing the death penalty and his argument that the closeness of the jury's vote was a reason for not imposing the death penalty. Of the remaining ten mitigating circumstances, the trial court gave each one some weight: (1) family history; (2) no plan to murder; (3) good general conduct while in custody; (4) capacity to form positive relationships; (5) remorse and potential for rehabilitation; (6) traumatic injury based on PET scan and PET scan brain image comparison; (7) effect of steroids on brain injury and effect of steroids generally; (8) use of prescribed steroids, interactions with other prescribed drugs, and withdrawal; (9) mental health issues; and (10) history of steady employment. All of the trial court's findings were as to each murder.

Id. at 1264–66.

On direct appeal, Robards raised four issues: (1) whether penalty phase counsel provided ineffective assistance; (2) whether a seven-to-five vote recommending death was unconstitutional; (3) whether the trial judge departed from judicial neutrality in suggesting that the State pursue the prior capital felony aggravating circumstance; and (4) whether improper comments by the prosecutor during closing argument warranted a new trial. Ultimately, this Court rejected all claims raised and affirmed Robards' convictions and sentences of death. See Robards , 112 So.3d at 1273.

Postconviction Proceedings

Robards filed a timely motion for postconviction relief raising six claims: (1) trial counsel was ineffective in failing to object to or attempt to suppress testimony, evidence, or prosecutorial argument regarding his offer to "make a deal" with Detective Anthony Monte and any statements related to that offer; (2) trial counsel failed to diligently, timely, and reasonably investigate mitigation evidence; (3) trial counsel's failure to object to prejudicial remarks during the prosecutor's closing argument constituted ineffective assistance of counsel; (4) the combination of the procedural and substantive errors during the guilt and penalty phases deprived Robards of a fair trial; (5) section 945.10, Florida Statutes (2006), which prohibits a defendant from knowing the identity of the execution team members, is unconstitutional; and (6) Robards may be incompetent at the time of execution. Following a Huff ² hearing, the circuit court granted an evidentiary hearing on claims one and two. During the evidentiary hearing, the court heard testimony from guilt phase counsel, Larry Hoffman; penalty phase counsel, Richard Watts; two medical experts who testified during the Spencer hearings, Dr. Joseph Wu and Dr. Robert Berland; former assistant public defender, Ronald Eide; and two of Robards' acquaintances.

Following the evidentiary hearing, the circuit court denied Robards' motion for postconviction relief in its entirety. Robards appeals the denial of his motion raising three issues: (1) trial counsel was ineffective for failing to object to or attempt to suppress the testimony, evidence, or prosecutorial argument regarding Robards' offer to make a deal; (2) trial counsel failed to diligently, timely, and reasonably investigate the mitigation evidence and make an adequate penalty phase presentation to the jury; and (3) cumulative error deprived Robards of a fair trial. Additionally, Robards claims that he is entitled to relief based on the United States Supreme Court's decision in Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), as well as this Court's decisions in Hurst and related cases.

We affirm the denial of relief as to Robards' ineffective assistance of guilt phase counsel claim, but because we conclude that Robards is entitled to a new penalty phase proceeding under Hurst , we decline to address his claims regarding the ineffective assistance of penalty phase counsel and cumulative error.

ANALYSIS

Ineffective Assistance of Guilt Phase Counsel

To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and the defendant was prejudiced by counsel's deficiency such that there is a reasonable probability the result of the proceeding would have been different absent the error.

Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test present mixed questions of law and fact. Thus, we employ a mixed standard of review, deferring to the trial court's factual findings that are supported by competent, substantial evidence, and reviewing the trial court's legal conclusions de novo. See Sochor v. State , 883 So.2d 766, 771–72 (Fla. 2004).

"Judicial scrutiny of counsel's performance must be highly deferential." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. Further, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ " Id. (quoting Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ). Moreover, a court "need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied." Maxwell v. Wainwright , 490 So.2d 927, 932 (Fla. 1986).

Robards argues that guilt phase trial counsel rendered deficient performance for failing to object to or attempt to suppress testimony, evidence, and prosecutorial argument regarding Robards' offer to make a deal with Detective Monte. The record reflects that Robards made a phone call from the Pinellas County Jail to Detective Monte on August 15, 2006, and left him the following voicemail message, which was introduced into evidence during the State's case-in-chief:

Detective Monte, this is

...