JOSEPH GREEN BROWN, APPELLANT/PETITIONER,
v.
STATE OF FLORIDA, APPELLEE/RESPONDENT
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Joseph Green Brown, sentenced to death for first-degree murder in 1974, sought post-conviction relief based on newly recanted testimony from the state's key witness and claims of ineffective assistance of counsel. The Florida Supreme Court affirmed the trial court's denial of relief, holding that the recanted testimony presented no new facts not previously discoverable and that counsel's performance met constitutional standards.
The court denied relief on all grounds. The recanted testimony was not newly discovered because the perjury issue was discoverable at the previous evidentiary hearing and counsel could have raised it then. Counsel's performance was not ineffective because: (a) counsel had access to available impeaching statements and used other means to impeach Floyd; and (b) the decision not to present mitigation evidence was a tactical choice within counsel's discretion, particularly given counsel's reasonable belief that such evidence would contradict the alibi defense.
[1] A writ of error coram nobis is not available when the alleged newly discovered facts were known or could have been known by the exercise of due diligence at the time of t…
[2] A decision by defense counsel to present or withhold mitigation evidence at sentencing is a tactical decision within counsel's discretion.
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Join FLexlaw to unlock all legal intelligence“The facts upon which the petition [for writ of error coram nobis] is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.”
Establishes the legal standard for writ of error coram nobis requiring newly discovered facts unknown and undiscoverable through diligence
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Join FLexlaw to unlock all legal intelligenceBrown was convicted of first-degree murder and sentenced to death in 1974. The state's key witness, Ronald Floyd, provided testimony implicating Brown…
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PER CURIAM.
Joseph Green Brown was convicted of first-degree murder and sentenced to death in 1974. We affirmed his conviction and sentence. Brown v. State, 381 So. 2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981). Subsequently we denied his petition for writ of habeas corpus. Brown v. Wainwright, 392 So. 2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). Brown filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, which the trial court denied following an evidentiary hearing limited in scope to his claim of ineffective assistance of counsel. Brown now appeals the denial of his motion for post-conviction relief. He moves for a stay of execution and petitions for a writ of error coram nobis.
As grounds for the writ, Brown contends that facts have been brought to light which were unknown at the time of trial and which could not have been known by counsel through the exercise of due diligence. Brown has secured a videotape deposition of the state’s key witness against him, now recanting his trial testimony implicating Brown in the murder for which he was convicted and sentenced. The witness, Ronald Floyd, states that his motivation for testifying against Brown was Brown’s willingness to testify against Floyd in a separate case, along with alleged threats by the Tampa Police Department and State Attorney’s Office that he would be prosecuted for the crime with which Brown was charged unless he testified against Brown. Floyd states that in return for his testimony he was promised that he would not be prosecuted for the murder and that he would receive favorable consideration in a separate case in which he was charged. Brown contends that this new evidence is of such a vital nature that, had it been known to the trial court, it conclusively would have prevented entry of the judgment. We would be more amenable to Brown’s position had we not previously remanded to the trial court for an evidentiary hearing on the issue of the truthfulness of Floyd’s statements in a previous affidavit recanting his trial testimony and vindicating Brown.
The first time Floyd recanted, Brown’s counsel secured a post-trial affidavit from him stating that his trial testimony was false and that it was given in return for a prosecutorial offer of favorable consideration. This Court granted Brown’s motion to remand for an evidentiary hearing. At that hearing, Floyd reaffirmed his trial testimony as to Brown’s involvement in the murder. The issue of whether Floyd’s retraction was caused by fear of prosecution for perjury, which Brown now raises, was discoverable by defense counsel at that hearing. Counsel failed at the time of the hearing to object to admonitions from the court regarding perjury and did not bring up the issue on appeal. The perjury issue therefore was known or could have been known to Brown’s counsel and is not now cognizable under application for writ of error coram nobis. We have reviewed the transcript of Floyd’s recent recantation of October 4, 1983. We find nothing new which has not or could not have been considered and ruled upon by the trial court during the first evidentiary hearing. As we stated in Hallman v. State, 371 So. 2d 482, 485 (Fla.1979),
[t]he facts upon which the petition [for writ of error coram nobis] is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So. 2d 706 (1944).
The application for writ of error coram nobis is denied.
At the hearing on Brown’s 3.850 motion, the issue of ineffective assistance of counsel at the guilt and sentencing phases of the trial was examined in depth. We have reviewed the record and find that the trial court’s finding that counsel was not ineffective is supported by competent substantial evidence.
The focus of the hearing regarding the guilt phase of the trial was upon whether counsel was ineffective because he did not obtain and make use of statements of Floyd which contained information which would have cast doubt on Floyd’s credibility during cross-examination. In Brown v. State we remanded to the trial court for an evidentiary hearing on the issue of whether statements of Floyd were in the possession of the state and not produced for the defense. The trial court determined that counsel had access to all of the statements to which he was entitled and we affirmed. 381 So. 2d at 693. Applying the standard of Knight v. State, 394 So. 2d 997 (Fla.1981), we do not find that not using the statements to impeach Floyd amounted to an omission which was a “substantial and serious deficiency measurably below that of competent counsel.” Id. at 1001. Even if it did, we do not find that the omission was likely to affect the outcome of the proceedings. The record reflects that counsel used other means of impeaching Floyd. The remaining arguments relating to counsel’s ineffectiveness at the guilt phase of trial either involve trial tactics or fail to demonstrate any substantial and serious deficiency measurably below that of competent counsel under Knight.
The other issues raised concerning alleged trial errors either were or should have been raised and disposed of on direct appeal and are not proper for consideration via a post-conviction motion. Foster v. State, 400 So. 2d 1, 4 (Fla.1981).
The principal issue at the evidentiary hearing regarding the sentencing phase of the trial was whether trial counsel was ineffective in not introducing evidence in mitigation. The choice by counsel to present or not present evidence in mitigation is a tactical decision properly within counsel’s discretion. See, e.g., Armstrong v. State, 429 So. 2d 287, 290-91 (Fla.1983); Straight v. Wainwright, 422 So. 2d 827, 832 (Fla.1982), cert. denied sub nom., McCrae v. Florida, -U.S. -, 103 S.Ct. 2112, 77 L.Ed. 315 (1983).
Counsel indicated during the hearing on the 3.850 motion that, given his time and resource constraints, he felt it necessary to devote his energies to preparation for the guilt or innocence phase of the trial. He also testified that in his opinion the presentation of mitigation evidence was contradictory to the alibi defense. It is apparent that “[d]efense counsel viewed evidence of mitigating circumstances as fundamentally damaging to the integrity of his client’s case.” Straight v. Wainwright, 422 So. 2d 827, 832 (Fla.1982). Further, counsel testified that Brown was of no assistance whatsoever in pursuing mitigating evidence either prior to trial or during the weekend between the guilt and penalty phases. We find that under the totality of the circumstances at the time of trial, counsel was reasonably effective. See Meeks v. State, 382 So. 2d 673 (Fla.1980), cert. denied, — U.S. —, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983).
The remaining arguments relating to counsel’s ineffectiveness at sentencing are without merit. All of the alleged omissions fall under one or another prong of the Knight standard.
The other issues raised relating to alleged sentencing errors either were or should have been raised and disposed of on direct appeal and are not proper for consideration via a collateral motion. Washington v. State, 397 So. 2d 285 (Fla.1981); Hargrave v. State, 396 So. 2d 1127 (Fla.1981); and Witt v. State, 387 So. 2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).
The trial court’s denial of post-conviction relief is affirmed. The application for stay is denied. No motion for rehearing will be entertained.
It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.
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Hannon v. State, 941 So. 2d 1109 (Fla. 2006)…e id. at 691, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Counsel’s decision to not present mitigation evidence may be a tactical decision properly within counsel’s discretion. See Brown v. State, 439 So. 2d 872, 875 (Fla.1983) (“The choice by counsel to present or not present evidence in mitigation is a tactical decision properly within counsel’s discretion.”); Valle v. State, 705 So. 2d 1331, 1335 n. 4 (Fla.1997) (same); Gorham v. State, 521 So. 2d 1067,…1 / 2
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Quince v. State, 477 So. 2d 535 (Fla. 1985)…s in points considered on direct appeal where this Court found no error to have occurred.” In this case the choice as to whether to present certain mitigating evidence was a tactical decision within counsel’s discretion. Compare with Brown v. State, 439 So. 2d 872 (Fla.1983). All of counsel’s alleged deficiencies either are refuted by the record, involve tactical decisions, or involve actions not necessarily required of reasonably competent counsel. In his order denying the 3.850 motion, the trial court stat…
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Magill v. State, 457 So. 2d 1367 (Fla. 1984)…ng the defendant to present the testimony of numerous witnesses. The choice by counsel to present or not to present evidence in mitigation at the sentencing phase of trial is a tactical decision properly within counsel’s discretion. Brown v. State, 439 So. 2d 872 (Fla.1983). It cannot be said that the further presentation of mitigating evidence would have been beneficial to the defendant or that such mitigating evidence even existed. It is also asserted that counsel failed to contest the ruling of the court…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (18 total)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Adams v. Peat, 449 U.S. 1067 (U.S. 1980)
- Jarrett v. Jarrett, 449 U.S. 1067 (U.S. 1980)
- Brown v. Wainwright, 454 U.S. 1000 (U.S. 1981)
- Brown v. Louie L. Wainwright, 392 So. 2d 1327 (Fla. 1981)
- State v. Daley, 392 So. 2d 1327 (Fla. 1981)
- Brown v. State, 381 So. 2d 690 (Fla. 1980)