Cleo Douglas LeCROY, Petitioner, v. Richard L. DUGGER, etc., Respondent; Cleo Douglas LeCroy, Appellant, v. State of Florida, Appellee, 727 So. 2d 236

PER CURIAM. Cleo LeCroy appeals an order of the trial court denying relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const. We affirm the denial of rule 3.850 relief, and we deny the writ. The facts of these murders are set out fully in our opinion on direct appeal. See LeCroy v. State, 533 So.2d 750 (Fla.1988). John and Gail Hardeman were camping in a remote area of Palm Beach County on January 4, 1981, when LeCroy robbed and killed John and, because Gail happened on the scene, robbed and killed her also.

LeCroy and his brother, Jon, were indicted for the murders and tried separately. Jon was acquitted and LeCroy was convicted of two counts of first-degree murder (felony murder for killing John, and premeditated murder for killing Gail) and two counts of robbery with a firearm. The jury recommended life for the murder of John and death by a seven-to-five vote for the murder of Gail. The court sentenced LeCroy to life imprisonment for the murder of John and death for the murder of Gail based on three aggravating circumstances, two statutory mitigating circumstances, and no nonstatutory mitigating circumstances.

The court sentenced LeCroy to consecutive thirty-year terms on the robbery counts, with consecutive three-year mandatory minimum terms for use of a firearm. We affirmed the convictions and sentences after determining that LeCroy’s age at the time of the crime, i.e., seventeen years old, did not require reversal of the death sentence. Before LeCroy filed any postconviction motions, Governor Martinez signed a death warrant on May 17, 1990, and LeCroy filed a petition for a writ of habeas corpus in this Court. We granted a stay of execution to allow LeCroy to seek postconviction relief.

He filed a rule 3.850 motion in the trial court in December 1990 and at the same time filed an amended habeas petition in this Court. The trial court denied the rule 3.850 motion without an evidentiary hearing, and LeCroy now appeals that denial. LeCroy also seeks relief under his pending habeas petition. I. RULE 3.850 MOTION LeCroy first claims that the trial court erred in summarily denying rule 3.850 relief without attaching portions of the record to its order. This issue has already been decided adversely to the defendant. See Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (“To support

summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.”). The trial court stated its rationale for denying each claim. We find no error. LeCroy next claims that the trial court erred in failing to grant an evidentiary hearing on three allegations: violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), misleading evidence, and ineffective assistance of trial counsel. We disagree.

The trial court addressed this claim at length and concluded: The burden is on the Defendant to make at least a prima facie showing that individually or cumulatively this “evidence” would have, within a reasonable probability, changed the outcome of his trial. His speculation and conjecture about what the letters and notes and opinions and cryptic references may suggest is not sufficient to warrant an evidentiary hearing, much less relief. The evidence in this case was overwhelming. The Defendant not only confessed to killing the Hardemans to the police, but he confessed to Carol Hundley and Roger Slora.

A plethora of physical and circumstantial evidence corroborated those confessions and further established the Defendant’s guilt. Based on the wealth of evidence against him, there is no reasonable probability that his conviction and sentence of death would have been different had the State disclosed or defense counsel discovered the evidence alleged by Defendant in this claim. The trial court properly applied the law governing the withholding of evidence under Brady, the use of misleading evidence under Giglio v.

United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find no error. LeCroy next claims that the trial court erred in failing to grant an evidentiary hearing on his claim that trial counsel was ineffective in failing to investigate and present mitigation. We disagree.

The standard for determining whether an evidentiary hearing is required on an ineffectiveness claim is as follows: A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief. A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.

The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant. The test for determining whether counsel has been ineffective was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and is set forth in our opinion in Maxwell v. Wainwright[, 490 So.2d 927 (Fla.1986)]: A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components.

First, a claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied. Kennedy v.

State, 547 So.2d 912, 913-14 (Fla.1989) (citations omitted). In the present case, the trial court addressed this claim at length and concluded: [T]his- Court finds that the Defendant has failed to make even a prima facie showing of prejudice which would warrant an evi-dentiary hearing, much less relief. Most of the allegations made by the Defendant were wholly conclusory without any basis in fact.

Over and over again, the Defendant claimed that a wealth of evidence was available that defense counsel should have presented; yet, in many circumstances, the Defendant failed to detail the nature and/or source of that evidence. Nor has the Defendant come forward with proof of any additional evidence that counsel failed to discover.

As the Defendant conceded, defense counsel presented the testimony of numerous family members that the Defendant was “a nice boy from a nice family.” Now, without affidavits or other proof, the Defendant claimed there was a plethora of evidence available to show that his family members were abusive and neglectful.... This Court finds that the Defendant has failed to plead specific facts which would warrant an evidentiary hearing.

Even were his conclusory allegations sufficient, this Court finds that the Defendant has failed to “demonstrate a deficiency on the part of counsel which is detrimental to [him].” Counsel had the Defendant evaluated pretrial for sanity and competency by Drs. Romanos and Silversmith, and by Susan LaFehr, the jail psychologist. Counsel then had those same experts appointed to evaluate the Defendant for penalty phase mental mitigation. In addition, he had Susan LaFehr and a private investigator appointed for the penalty phase in general. This Court finds, contrary to the Defendant’s assertion that Ms.

LaFehr was provided with significant background material upon which to make a competent mental health evaluation. Moreover, this Court finds significant the trial judge’s endorsement during the trial of Ms. LaFehr as a competent mental health expert. As for that evidence sufficiently detailed by the Defendant which he claimed should have been admitted, this Court finds that such evidence would not have, within a reasonable probability, had an effect on the sentence. The Defendant committed a brutal double murder, but received only one death recommendation and sentence.

Besides the fact that he committed these murders during the commission of a robbery, the jury specifically found that he premeditated the murder of Gail Harde-man. Such a finding was undoubtedly based on the Defendant’s own confession that he killed Gail Hardeman to eliminate her as a witness to her husband’s murder. The three aggravating factors in this case are very strong. Weighed against these aggravators was substantial evidencé of the Defendant’s youth and immaturity, his lack of a significant prior history or criminal activity, and other allegedly redeeming qualities.

Yet, despite this mitigation, the jury still recommended death for the murder of Gail Hardeman, and this court still imposed a sentence of death. Given the circumstances of this murder, and the weight of the aggravating factors, there is no reasonable probability that the recommendation or sentence would have been different had counsel presented what little evidence is detailed by Defendant. The record shows that the trial court properly applied the law. We find no error. LeCroy claims that trial counsel was ineffective in the guilt phase in a number of ways.

The trial court addressed this claim at length and concluded: This Court finds that the Defendant has failed to establish a prima facie case for relief. “Many of these claims are exactly the type of hindsight second-guessing that Strickland condemns, and even those matters asserted as significant omissions would have been mere exercises in futility, with no legal basis.” Phillips v. State, 608 So.2d 778, 782 (Fla.1992).

For example, there would have been no legal basis to admit Jon’s polygraph results; hearsay statements like those in Jon’s letter to his father or those overheard by Ellett; evidence of John Hardeman’s financial status and character; or the lack of charges against Detective Welty, where the State informed trial counsel prior to trial that it was not going to prosecute Welty. Numerous other allegations of deficient conduct were nothing more than concluso-ry claims that “other” unspecified evidence should have been developed, or was available and should have been used.

For example, the Defendant faulted counsel for failing to hire a forensic communications expert to test the accuracy of the State’s transcription of his taped confessions. Yet, the Defendant presented nothing to show that the tapes were, in fact, mistran-scribed or not authentic.... “A defendant may not simply file a motion for posteonviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing.

The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.” Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). The Defendant has failed to satisfy his burden. Singularly or cumulatively, the allegations of deficient conduct that are sufficiently pled, even if taken as true, would not have, within a reasonable probability, affected the outcome of this case.

As noted previously, the quality and quantity of evidence presented by the State simply would not have been undermined even if defense counsel had presented the evidence the Defendant claimed he should have presented. The trial court properly applied the law. We find no error. LeCroy alleges that his attorney was ineffective in failing to sufficiently question the venire about mental mitigation and the death penalty, and that the trial court erred in failing to grant an evidentiary hearing on this, claim. We disagree.

The trial court addressed this claim as follows: [T]he Defendant claimed ... that trial counsel rendered ineffective assistance by failing to question the venire about “their understanding of mental illness and how that relates to mitigation and their views on the death penalty.” Since the Defendant failed to allege, much less show, how trial counsel’s failure to question the jurors on these subjects prejudiced him, this claim is denied as legally insufficient. We'find no error. We find the remainder of LeCroy’s rule 3.850 claims to be procedurally barred or without merit. II.

HABEAS CORPUS LeCroy claims that appellate counsel should have raised the fact that LeCroy’s jury was selected according to a special dis-tricting plan that was ruled racially discriminatory in Spencer v. State, 545 So.2d 1352 (Fla.1989). The record shows, however, that LeCroy did not object on this basis at trial. This issue has already been decided adversely to the defendant. Nelms v. State, 596 So.2d 441 (Fla.1992). LeCroy claims that appellate counsel was ineffective for failing to raise the fact that the judge told the jury that if they did not reach a timely verdict they would be locked up. We disagree.

At the close of the State’s case-in-chief in the guilt phase, the parties agreed to forego sequestration, and the court commented to counsel for both sides: I am going to call in the jury and I am going to mention , to them the reason we are doing it is to avoid an overnight sequestration, but I am going to tell them that nobody is rushing them to a judgment. They are to take all of the time they want. The case is important to the State and to the Defense and there is a lot at stake there and I will ask them to be patient because they have been very patient, very attentive. Neither side objected.

The court subsequently commented to the jury: Then, I intend to recess for the day and come back the next morning, at which time I will read you the instructions. Now, the reason why I am telling you this is that it will become obvious.

Under Florida law, if a jury is required to go into an overnight recess after the deliberations have begun, under Florida law I am required to lock you up in a hotel, not lock you up but keep you sequestered in a hotel where you can’t separate, and with the permission of the State and the Defense we have agreed to avoid that possibility but it will take me about forty-five minutes to read the charges to you Friday morning. And if you come in at 9:00 o’clock, you will have the case by 10:00 and you can begin your deliberations at 10:00 o’clock and go to whenever.

Now, by telling you about this sequestration, I don’t mean for one moment to urge you to rush to judgment. We all want you to take your time, consider the evidence, weigh it and analyze it, apply it to the law that I gave you, because this ease is important to the State and it is important to the Defense and the stakes are very high. I don’t think I have to tell you about that. The record shows that the court’s reference to locking up the jury was innocuous when placed in context. We find no merit to this claim.

LeCroy next claims that appellate counsel was ineffective for failing to raise the trial court’s refusal to let LeCroy present as mitigating evidence the American Bar Association’s position concerning the age of capital defendants. We disagree. See, e.g., Johnson v. State, 660 So.2d 637, 646 (Fla.1995) (mitigating evidence must be “relevant to the defendant’s character or record, or to the circumstances of the offense”). We find no merit to this claim. We find the remainder of LeCroy’s habeas claims to be without merit.

Based on the foregoing, we affirm the denial of LeCroy’s rule 3.850 motion, and we deny his petition for writ of habeas corpus. It is so ordered. HARDING, C.J., and OVERTON, SHAW and WELLS, JJ., concur. ANSTEAD, J., concurs in part and dissents in part with an opinion, in which KOGAN, J., concurs. .The court found the following aggravating circumstances: (1) that LeCroy had a prior conviction for another capital felony (i.e., the contemporaneous murder of John); (2) the murder was committed in the course of a robbery; and (3) the murder was committed to avoid arrest. .

The court found the following statutory mitigating circumstances:

(1) LeCroy had no significant prior criminal history; and

(2) LeCroy was only seventeen years old at the time of the crime. .

LeCroy raises sixteen issues, claiming error on the following points: (1) failure to .attach portions of the record to the order denying relief; (2) failure to grant an evidentiary hearing concerning Brady violations, misleading evidence, and ineffective assistance of trial counsel; (3) failure to hold an evidentiary hearing concerning trial counsel’s ineffectiveness in investigating and presenting mitigation; (4) failure to hold an evi-dentiary hearing concerning trial counsel's ineffectiveness in the guilt phase; (5) ineffectiveness of trial counsel in questioning the members of the venire concerning their views on the death penalty and mental illness; (6) failure to allow defense counsel to poll the jury; (7) the trial court failed to recognize mitigation; (8) the death penalty is unconstitutional; (9) the record' on appeal contained omissions and misnumbered pages; (10) the exclusion of testimony concerning Jon LeCroy’s role in the crimes; . (11) prose-cutorial misconduct; (12) gruesome photos; (13) no limiting instructions for the aggravating circumstances; (14) the cold, calculated, and premeditated aggravating circumstance is vague; (15) the juiy was given the wrong standard for judging expert testimony; (16) procedural and substantive trial errors. .

LeCroy raises six issues, claiming error on the following points: (1) ineffective assistance of appellate counsel ("IAAC”) for failing to raise an improper districting plan for selecting jurors;

(2) IAAC for failing to raise the fact that the trial court told the jury that if they did not return a timely verdict they would be locked up;

(3) IAAC for failing to raise the trial court’s refusing to let LeCroy raise mitigation;

(4) IAAC for failing to raise the trial court’s refusal to recognize mitigation that was presented; (5) exclusion of testimony concerning admissions of the codefendant;

(6) IAAC for failing to raise misleading instructions. .

In this claim, LeCroy made a number of allegations including the following: The State knew that witness Slora had read police reports concerning the crime but nevertheless the State presented his testimony, vouched for his credibility, and argued that he could only have learned the details from the murderer; .the State withheld evidence that it had agreed to help Slora in exchange for his testimony; the State withheld a letter the prosecutor wrote to Florida State Prison during the trial, requesting that informant Swanson be transferred from the county jail to a state facility so that he could earn gain time while he awaited LeCroy’s trial; Swanson wrote LeCroy a letter wherein Swanson claimed that he was threatened with arrest if he did not give a statement; the State failed to disclose a letter from the prosecutor to witness Freshour, advising him that he would be subject to service of process if he remained in the state after his testimony; there was a letter in the prosecutor’s files from LeCroy’s girlfriend relating his opinion that she has told the State all she knows about the case; and defense counsel found a handwritten letter in the State’s files from someone named "John” to someone named "Richard,” asking for Richard’s assistance in obtaining a chief investigator’s position. .

See, e.g., Hegwood v. State, 575 So.2d 170 (Fla.1991). . See, e.g., Routly v. State, 590 So.2d 397 (Fla.1991). . See, e.g., Kennedy v. State, 547 So.2d 912 (Fla.1989). . LeCroy claims that trial counsel was ineffective for failing to develop mitigating evidence in a number of ways, including the following: present mental health evidence through Drs.

Roma-nos and Silversmith and through school records of LeCroy's low mental age, his immaturity, his learning disability, his emotional disturbance, his compulsivity, his indecisiveness, and his insecurity; present evidence of his adjustment to jail; present evidence showing LeCroy had a diminished level of psychological functioning at the time of the offense; present evidence of Jon LeCroy’s guilt; present evidence of LeCroy's poor and abusive upbringing; and present evidence of the mental instability of LeCroy and other family members during the search for the Hardemans. .

LeCroy claims that counsel was ineffective in a number of ways including the following: failing to discover and use Jon's polygraph results; failing to present evidence that Jon gave police a rifle different from the one he had used the day of the murders; failing to present a letter Jon wrote his attorney asking him if he would get more time than his brother if convicted; failing to present evidence that LeCroy's parents favored Jon and changed their initial statement to police; and failing to present evidence of improper police tactics used to coerce statements from Jon and his parents. .

Claims 7-16 are procedurally barred. . Claim 6 is without merit. . Issues 4, 5 and 6 are without merit.