Filing # 19879256 Electronically Filed 10/27/2014 04:54:02 PM
RECEIVED, 10/27/2014 18:04:28, John A. Tomasino, Clerk, Supreme Court
IN THE SUPREME COURT OF FLORIDA
STATE OF FLORIDA
500 South Duval Street
Tallahassee, Florida 32399-1927
Case No.: SC14-770
L.T. No.: 2004-CF-4525
THOMAS BEVEL
Appellant,
v.
STATE OF FLORIDA,
Appellee.
PETITION FOR WRIT OF HABEAS CORPUS
____
/s/ Frank Tassone___________
FRANK J. TASSONE, JR. ESQ.
Fla. Bar. No.: 165611
1833 Atlantic Boulevard
Jacksonville, FL 32207
Phone: 904-396-3344
Fax: 904-396-0924
Attorney for Appellant
1
JURISDICTIONAL STATEMENT
This Court has jurisdiction over this Petition for Writ of Habeas
Corpus under original jurisdiction, as this case is a death penalty case. The
instant Petition accompanies Appellant’s Initial Brief requesting relief from
the lower tribunal’s order on the denial of Appellant’s 3.851 Motion for
Postconviction Relief.
FACTS UPON WHICH PETITIONER RELIES
On April 8, 2004, Defendant was indicted on two counts of first
degree murder and one count of attempted murder. (1 R 9-10). Defendant
was tried on these charges from August 22, 2005 through August 25, 2005.
On August 26, 2005, the jury returned a verdict, finding Defendant guilty of
two counts of first degree murder and guilty of one count of attempted
murder. (2 R 381-386).
On or about September 7, 2005, by a vote of 8 to 4, the jury
recommended a sentence of death for the First Degree Murder of Garrick
Stringfield. (3 R 522). The jury, by a vote of 12 to 0, recommended a
sentence of death for the First Degree Murder of Phillip Sims. (3 R 523).
The Defendant was sentenced to life in prison for the attempted murder of
Feletta Smith. The Circuit Court ordered the Defendant be sentenced to
death for the murder of Stringfield, a sentence of death to be run
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consecutively for Sims, and a sentence of life imprisonment for the
attempted murder of Smith also to run consecutively. (3 R 605-627)
In count one for the murder of Stringfield, the trial court found and
assigned very great weight to the following aggravator: the Defendant had
been previously convicted of a felony involving the use and/or threat of
violence to a person. (3 R 610-17). In count two for the murder of Sims, the
trial court found and assigned great weight to the following aggravators: the
Defendant had been previously convicted of a felony involving the use
and/or threat of violence to a person; the crime for which the defendant is to
be sentenced was committed for the purpose of avoiding or preventing a
lawful arrest. (3 R 610-17).
The trial court found mitigating factors and assigned the following
weight: that the Defendant has religious faith (minimal weight); Defendant
confessed to his involvement in the crimes charged (very little weight);
Defendant exhibited good jail conduct (very little weight); Defendant’s IQ
of 65 (little weight); Defendant had a difficult childhood due to the loss of
his parents, however it was not proven that he was abused; defendant
struggling with the death of his mother (little weight) (3 R 619-21).
Mr. Bevel’s direct appeal counsel filed his Initial Brief on November
2, 2006, and raised the following claims:
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1. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY FAILING
TO STRIKE FOR CAUSE A JUROR WHO FAVORED LAW
ENFORCEMENT.
2. THE TRIAL COURT ERRED IN FINDING THAT THE AGGRAVATING
FACTORS OUTWEIGHED THE MITIGATING CIRCUMSTANCES.
3. APPELLANT’S DEATH SENTENCE IS DISPROPORTIONATE,
EXCESSIVE, AND INAPPROPRIATE AND IS CRUEL AND UNUSUAL
PUNISHMENT IN VIOLATION OF ARTICLE I, SECTION 17 OF THE
FLORIDA CONSTITUTION AND THE EIGHT AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION.
4. THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE
APPELLANT’S MOTION TO DECLARE 921.141 FLORIDA
STATUTES UNCONSTITUTIONAL BECAUSE A JURY, NOT A
JUDGE, MUST MAKE A UNANIMOUS BEYOND A REASONABLE
DOUBT
DETERMINATION
AS
TO
DEATH
PENALTY
ITS
WEIGHING
AGGRAVATORS.
5. THE
TRIAL
COURT
AGGRAVATING
ERRED
FACTORS
IN
AND
THE
OF
THE
MITIGATING
CIRCUMSTANCES FOUND IN APPELLANT’S CASE.
6. THE
TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING
PHOTOGRAPHIC
EVIDENCE
WHICH
WAS
GRUESOME
AND
UNDULY PREJUDICIAL.
7. THE
TRIAL COURT ERRED IN ALLOWING THE CONFESSION OF
THE APPELLANT.
8. WHETHER
OR NOT THE TRIAL COURT ERRED IN ADOPTING
VIRTUALLY VERBATIM THE PROPOSED FINDINGS OF FACTS AND
CONCLUSIONS OF LAW SUBMITTED BY THE STATE.
9. APPELLANT’S
MENTAL AGE WAS UNDER THAT OF AN
EIGHTEEN YEAR OLD ADOLESCENT AND THEREFORE THE
DEATH PENALTY WAS INAPPROPRIATE.
This Court denied Mr. Bevel’s direct appeal and affirmed his convictions
and sentence of death on March 20, 2008. Bevel v. State, SC05-2213. The
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Court appointed post-conviction counsel. Mr. Bevel timely filed a Motion to
Vacate his Judgment and Sentences and then an Amended 3.851 motion,
which was denied in a 14-page order that did not specifically discuss any of
the witnesses or exhibits presented in the postconviction hearing, or the
mitigating factors that were presented in postconviction.
This Petition is filed along with Appellant’s Initial Brief to the Florida
Supreme Court regarding the trial court’s denial of his Amended Motion for
Postconviction Relief.
NATURE OF RELIEF SOUGHT
Appellant requests this Honorable Court reverse his convictions and
sentences and remand to the trial court for a new trial.
ARGUMENT:
PETITIONER’S DIRECT APPEAL COUNSEL WAS INEFFECTIVE
IN FAILING TO RAISE A CLAIM OF FUNDAMENTAL ERROR
DUE TO THE PROSECUTOR’S COMMENTS IN GUILT AND
PENALTY PHASE CLOSING ARGUMENTS.
Direct Appeal counsel's ineffectiveness is appropriately raised in a
petition for writ of habeas corpus. State v. Knight, 866 So.2d 1195 (Fla.
2003). In order to grant habeas relief based on ineffectiveness of counsel,
this Court must determine first, whether the alleged omissions are of such
magnitude as to constitute a serious error or substantial deficiency falling
measurably outside the range of professionally acceptable performance and,
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second, whether the deficiency in performance compromised the appellate
process to such a degree as to undermine confidence in the result. Patton v.
State, 878 So. 2d 368 (Fla. 2004).
In this case, the prosecutor’s gross misconduct throughout
Defendant’s trial, at both the guilt and penalty phases, made the proceedings
presumptively unreliable and unfair. Because the prosecutor’s comments
were so improper and egregious, Appellant’s direct appeal counsel’s
omission of this issue was of such magnitude that it constitutes serious error
or substantial deficiency falling measurably outside the range of
professionally acceptable performance.
Given the prosecutor’s numerous improper and egregious remarks to
the jury in guilt and penalty closing and obvious golden rule violations,
failing to allege such an obvious claim is outside the range of professionally
acceptable performance. This omission by appellate counsel compromised
the appellate process to such a degree as to undermine confidence in the
correctness of the result. Therefore, a new trial should be granted because a
verdict of guilty would not have been obtained without the error.
See
Bonifay v. State, 680 So. 2d 413 (Fla. 1996)
Each example of prosecutorial misconduct will be discussed
individually, with the appropriate record citations where applicable.
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1.) The State Committed Prosecutorial Misconduct by
making repeated attacks on Defendant’s character in an
attempt to convince the jury to convict Defendant for
reasons other than alleged guilt.
The prosecution made inadmissible references to the Defendant’s
character during the penalty phase of trial.
Pursuant to Florida Statute
Section 90.404 (1), evidence of a person’s character or a trait of character is
inadmissible to prove conformity. During the penalty phase, the prosecutor
suggested that the jury look to and judge Mr. Bevel’s character in
determining his sentence. (13 R 1583). The prosecutor further prejudiced
Mr. Bevel’s penalty phase when stating, “Doesn’t that show his true
character?” (13 R 1596). Immediately after the character reference, the
prosecution described an unrelated incident when Mr. Bevel was a twelveyear-old child. The prosecution was clearly attacking Mr. Bevel’s character
to show conformity to the crime herein. The prosecution again makes an
inadmissible character reference. “Because that’s what you need to focus
on, his true character.” (14 R 1622). Direct Appeal counsel failed to raise
this claim thereby prejudicing Mr. Bevel.
2.) The State Committed Prosecutorial Misconduct by
making numerous improper statements during closing
arguments in an attempt to inflame the mind and
passions of the jury.
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The prosecution tried to inflame the minds and passions of the jury
during the guilt and penalty phases of Defendant’s trial by repeatedly
referring to the murders as “brutal” and “savage.” This type of language
used by the prosecution in the guilt and penalty phases of Defendant’s trial
has been condemned by the Florida Supreme Court. For example, in Urbin
v. State, the Court reversed a Defendant’s death sentence because the
prosecution’s comments to the jury were full of “emotional fear” and efforts
to dehumanize the Defendant. The Court stated the prosecution had used the
word “executed” or “executing” at least nine times, and described the
Defendant as a “ruthless killer” among other things. Urbin v. State, 714
So.2d 1178 (Fla. 1998); See also Brooks v. State, 762 So. 2d 879 (Fla.
2000).
In the instant case, the prosecution referred to the murder as being
“brutal” and the victims as being “brutally and savagely shot” during the
guilt phase of trial. (11 R 1113, 1114, 1149). Trial counsel failed to object
to this language during the guilt phase. Counsel did not file or argue a
motion in limine to limit inflammatory language designed to appeal to
emotions rather than reason until immediately prior to the penalty phase. (1
R 387). The court granted counsel’s motion to limit inflammatory language,
however the prosecution once again referred to the crime as a “brutally and
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savagely kill.” (13 R 1600).
Over trial counsel’s objection, the court
allowed the comment, reasoning that the prosecution was describing the
brutality of an “act” rather than the brutality of the murder. (14 R 1606).
This issue was ripe for direct appeal; however, Direct Appeal counsel failed
to raise this claim thereby prejudicing Mr. Bevel.
3.) The Stated Committed Prosecutorial Misconduct when it
violated the “Golden Rule” by creating an imaginary
script to explain the impact of the crime on Feletta
Smith.
The Florida Supreme Court condemns prosecutorial comments when
they go “far beyond the evidence in emotionally creating an imaginary
scripts demonstrating the victim was shot while pleading for his life.” Urbin
v. State.
The Urbin Court further held the prosecution’s comments
constituted a subtle “golden rule” argument by literally putting imaginary
words into the victim’s mouth, i.e. “Don’t hurt me. Take my money, take
my jewelry. Don’t hurt me,” whereby the prosecution attempted to create,
arouse, and inflame the sympathy, prejudice, and passions of the jury to the
detriment of the accused. Id. Barnes v. State, 58 So.2d 157 (Fla. 1951),
Garron v. State, 528 So. 2d 359 (1988).
In the instant case, the prosecution’s conduct was similar to that
condemned in Urbin. For example, the prosecutor states, “And the first
time, [Feletta Smith] had ever been to Mr. Stringfield’s home, the night, the
9
morning that she will regret for the rest of her life. A night, morning that
has changed her forever. Not just physically but mentally too.” (14 R
1608). The prosecutor went on to describe the impact on Feletta Smith as
“forever traumatizing.” (14 R 1610). The prosecutor then posed a question
to the jury, asking the jury to step into the shoes of Feletta Smith, “…how
has her life forever been changed?” (14 R 1610). These comments are
analogous to Urbin and its progeny where the prosecutor’s comments create
sympathy with imaginary scenarios. Direct Appeal counsel failed to raise
these issues, and, had he done so, Mr. Bevel’s outcome would have been
different.
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CONCLUSION:
Direct Appeal counsel was deficient in his performance by failing to
raise claims of Prosecutorial Misconduct in the guilt and penalty phase
closing arguments. These omissions and deficiencies by appellate counsel
compromised the appellate process to such a degree as to undermine
confidence in the correctness of the result. Therefore, a new trial should be
granted because a verdict of guilty would not have been obtained without
this error.
RESPECTFULLY SUBMITTED,
TASSONE & DREICER, LLC.
___/s/ Frank Tassone__________
FRANK TASSONE, ESQUIRE
Fla. Bar. No.: 165611
1833 Atlantic Boulevard
Jacksonville, FL 32207
Phone: 904-396-3344
Fax: 904-396-0924
Attorney for Appellant
11
CERTIFICATE OF COMPLIANCE AND AS TO FONT
I HEREBY CERTIFY that this brief is submitted by Appellant,
using Times New Roman, 14 point font, pursuant to Florida Rules of
Appellate Procedure, Rule 9.210. Further, Appellant, pursuant to Florida
Rules of Appellate Procedure, Rule 9.210(a)(2), gives Notice and files this
Certificate of Compliance as to the font in this immediate brief.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been sent via
e-service and electronic mail to [email protected]; Assistant
Attorney General Steve White, Esq. at [email protected], and
Assistant State Attorney Bernie De la Rionda, [email protected] on this 27th
day of October, 2014.
RESPECTFULLY SUBMITTED,
TASSONE & DREICER, LLC.
__/s/ Frank Tassone___________
FRANK TASSONE, ESQUIRE
Fla. Bar. No.: 165611
1833 Atlantic Boulevard
Jacksonville, FL 32207
Phone: 904-396-3344
Fax: 904-396-0924
Attorney for Appellant
12