Dwayne Irwin Parker, Appellant, vs. State

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Later in the proceedings, the judge noted that there were people present in the courtroom whom he believed to be connected to Parker based on eye contact and body language between Parker and those individuals. The judge stated that "security issues jump to mind." Counsel explained that the African-American man seated behind counsel table was the investigator for Capital Collateral Regional Counsel and had no personal connection to Parker other than his professional investigation of the case.


Parker subsequently filed a motion to disqualify the judge, citing the security-related issues and the judge's concern over his dangerousness. Parker also cited the judge's conclusion that an African-American male seated near defense counsel made "security issues jump to mind." The judge denied the motion as legally insufficient. Parker claims that his due process rights were violated by the judge's denial of his motion to disqualify.


A motion to disqualify is governed substantively by section 38.10, Florida Statutes (2005), and procedurally by Florida Rule of Judicial Administration 2.330.


See Cave v. State, 660 So. 2d 705, 707 (Fla. 1995). 5 The rule provides that a motion to disqualify shall show that "the party fears that he or she will not receive












5. The rule governing the disqualification of trial judges was previously numbered Florida Rule of Judicial Administration 2.160. It was renumbered as






2.330 in September 2006. See In re Amendments to the Fla. Rules of Judicial Admin.--Reorganization of the Rules, 939 So. 2d 966 (Fla. 2006). Thus, the discussions in the pre-2006 cases cited refer to the previous numbering of the rule.







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a fair trial or hearing because of specifically described prejudice or bias of the judge" or that the judge is either an interested party to the matter, related to an interested party, related to the counsel, or "is a material witness for or against one of the parties to the cause." Fla. R. Jud. Admin. 2.330(d). The standard of review of a trial judge's determination on a motion to disqualify is de novo. Chamberlain




v. State, 881 So. 2d 1087, 1097 (Fla. 2004). Whether the motion is legally sufficient is a question of law. Barnhill v. State, 834 So. 2d 836, 843 (Fla. 2002).


In ruling on a motion to disqualify, a court is limited to determining the legal sufficiency of the motion itself and may not pass on the truth of the facts alleged.


Fla. R. Jud. Admin. 2.330(f); see also MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1339 (Fla. 1990). The term "legal sufficiency" encompasses more than mere technical compliance with the rule and the statute. The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well- founded fear that he or she will not receive a fair trial at the hands of that judge.


See Fla. R. Jud. Admin. 2.330(d)(1). Further, this fear of judicial bias must be objectively reasonable. See State v. Shaw, 643 So. 2d 1163, 1164 (Fla. 4th DCA 1994). The subjective fear of a party seeking the disqualification of a judge is not sufficient. See Kowalski v. Boyles, 557 So. 2d 885 (Fla. 5th DCA 1990). Rather, the facts and reasons given for the disqualification of a judge must tend to show







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"the judge's undue bias, prejudice, or sympathy." Jackson v. State, 599 So. 2d 103, 107 (Fla. 1992); see also Rivera v. State, 717 So. 2d 477, 480-81 (Fla. 1998).


Where the claim of judicial bias is based on very general and speculative assertions about the trial judge's attitudes, no relief is warranted. McCrae v. State, 510 So. 2d 874, 880 (Fla. 1987).


This is not a situation where the defendant was prejudiced by the jury viewing him in restraints, because this was a postconviction proceeding without a jury. The issue is whether the judge's heightened security measures and expressed concerns for the safety of those in the courtroom were an objective indicator of the judge's undue bias or prejudice toward Parker. The judge, who was the sentencing judge in Parker's trial, presided over Parker's postconviction proceeding in a courtroom in the civil division where the judge was currently assigned. The judge stated that the courtroom was extremely insecure and that he was deferring to the deputy who believed these measures were necessary. The defense did not challenge these statements, but instead indicated that the seating arrangement would hamper counsel's ability to communicate with Parker during the hearing.


Based on this assertion, counsel was allowed to move counsel table close to the jury box where Parker was seated; Parker was given a pen and paper to communicate further with counsel; and counsel was allowed to stand next to the jury box during the proceedings when necessary. In addition, defense counsel and







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Parker were allowed private consultations during breaks in the proceedings. As to the judge's comments about "people in [the court room] that I don't know that I know are connected to [Parker] that [cause] security issues [to] jump to my mind," this was in the context of discussing the defense's renewed objection to the security measures imposed. The judge used the defense investigator as an example of the possible security risks in the insecure courtroom.


We do not find the judge's heightened concern for safety to be a legally sufficient basis for his recusal from Parker's case. Thus, Parker is not entitled to relief on this claim.


Exclusion of Witnesses




Parker also claims that he was denied a fair evidentiary hearing because he was precluded from presenting testimony from four witnesses. The witnesses included medical examiner Dr. Bell, Detective Cerat who took the photographs of the bullet and was present at the autopsy conducted by the medical examiner, the trial prosecutor Michael Satz, and Dr. Ronald Wright. At the case management conference prior to the evidentiary hearing, the State moved to strike these witnesses, arguing that their testimony had no bearing on counsel's ineffectiveness in not obtaining experts in the fields of photography and tool marking. The State also argued that the issue of whether the bullet had been switched or the photographs manipulated had been fully litigated at trial. Parker's counsel argued







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that the testimony of Dr. Bell and Detective Cerat were relevant to proving prejudice from trial counsel's failure to present a photography expert to dispute the accuracy of the bullet photographs admitted at trial.6 The trial court granted the State's motion to strike the witnesses.



We find that the trial court did not abuse its discretion in excluding these witnesses as their testimony was not relevant to the issue on remand, i.e., whether counsel rendered ineffective assistance for not obtaining and presenting testimony from experts in the fields of tool marking and photography. See Parker, 904 So. 2d at 376. While the two excluded witnesses took the photographs in question, Parker never explained how their testimony would have a bearing on counsel's failure in this regard. Parker simply stated that the testimony of these witnesses was relevant to the prejudice prong, without further explanation. Moreover, in light of our resolution of Parker's claim of ineffective assistance regarding the bullet evidence, the testimony of these witnesses would only have changed the outcome of that claim had the witnesses recanted their trial testimony or admitted that they tampered with the bullet evidence. Parker ascribed no such relevancy to their testimony. Thus, we find no merit to Parker's claim that he was denied a full and fair evidentiary hearing by the trial court.












6. Parker's postconviction counsel admitted that she did not intend to call the prosecutor as a witness at the hearing. Counsel offered no argument or explanation as to Dr. Wright.







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PENALTY PHASE INEFFECTIVE ASSISTANCE OF COUNSEL




Parker also claims that counsel provided ineffective assistance during the penalty phase of his trial for failing to investigate and present mitigating evidence relating to his mental health and his difficult childhood. The trial court denied relief on this claim, stating that it found "little difference between the penalty phase presentation at trial and the postconviction presentation." The court also found the testimony of the mental health experts who testified at the postconviction hearing was not credible. For the reasons explained below, we conclude that Parker has demonstrated both prongs of the Strickland standard for ineffective assistance of counsel during the penalty phase of trial and is entitled to a new penalty phase proceeding.


During the penalty phase, Parker's counsel presented five mitigation witnesses: two investigators who worked for the public defender's office, Parker's mother, Parker's accomplice in the robbery, and one mental health expert. These witnesses testified that Parker's childhood was chaotic and dysfunctional. His father abandoned the family when Parker was only a few months old; his mother was frequently hospitalized for serious mental problems; he spent his childhood in a series of foster homes; he was physically and ***ually abused; and he has a long history of alcohol abuse and violent behavior. The State criticized the penalty phase testimony of the investigators for not being first-hand knowledge and







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criticized the testimony of the mental health expert because he relied almost entirely on Parker's self-reported history and did not corroborate this information by interviewing collateral sources. In sentencing Parker to death, the trial court found no statutory or nonstatutory mitigators had been established. Parker, 641 So. 2d at 377. The sentencing order found "nothing in the Defendant's character or record to be in mitigation" and found "[n]o mitigating circumstances, statutory or otherwise, apply to the Defendant."


Also important to Parker's claim of ineffective assistance by penalty phase counsel is the fact that on direct appeal this Court concluded that the evidence presented at the penalty phase was not enough to support the establishment of any nonstatutory mitigators. Id. We stated that the trial court "gave ample consideration to all of the evidence that Parker submitted in mitigation . . . but found that the facts alleged in mitigation were not supported by the evidence." Id.


On postconviction appeal, however, we determined that Parker was entitled to an evidentiary hearing on this claim because it "appears that there is significant information that was never presented to the trial court which expounds upon both the abuse Parker suffered as a child and [his] mental infirmities." Parker, 904 So. 2d at 378.


At the evidentiary hearing, Parker presented testimony from numerous witnesses about his background and childhood. These witnesses fleshed out the







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"bare bones" presented at the penalty phase proceeding and provided a stark picture of Parker's chaotic childhood: he was in and out of a series of foster homes; he had a bizarre and unpredictable life with a schizophrenic mother who was committed to mental hospitals repeatedly; he suffered physical and ***ual abuse from his caretakers and from older children in the community; his education was disjointed because he attended over seventeen schools because he was moved from home to home; he has a poor academic record, a long history of substance abuse; and a record of violent and "crazy" behavior in school; Parker's father did not participate in his life, having abandoned Parker and his mother when Parker was an infant. Parker's trial counsel also testified that they had relied on the preliminary investigations by the public defender's investigators who discontinued their work when the case was reassigned from the public defender's office. Trial counsel admitted that they never requested school, employment, medical, or foster care records relating to Parker or medical records relating to his mother; nor were such background materials provided to the trial mental health expert. In fact, penalty phase counsel testified that he thought it was the doctor's responsibility to seek out this information. Counsel did not interview individuals other than Parker, his mother, and his ex-wife who could corroborate Parker's "horrific" childhood or background, even though this was the penalty phase defense strategy. Compare Burger v. Kemp, 483 U.S. 776, 794 (1987) (concluding that counsel's limited







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investigation was reasonable because he interviewed all witnesses brought to his attention, discovering little that was helpful and much that was harmful). The only investigator employed by Parker's trial counsel was asked to investigate the victim's background and guilt phase issues and never investigated anything related to Parker's background or family.


The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), at 93 (1989). Among the topics that counsel should consider presenting in mitigation are the defendant's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences. Id. 11.8.6, at 133. While trial counsel presented a "bare bones" rendition of some of these areas, it was not enough to establish mitigation even though there was a wealth of witnesses who were never interviewed and documents that were never sought that could have fleshed out and established the mitigating circumstances. The only investigation initiated by Parker's trial counsel was limited to the victim's background and possible guilt phase issues. In addition to this failure to conduct an adequate investigatation, Parker's counsel presented







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the information about his childhood and background through the hearsay testimony of the public defender investigators and not from first-hand sources.


The evidentiary hearing testimony of the mental health experts also establishes that counsel was ineffective in presenting mental health mitigating evidence during the penalty phase. Clinical psychologist Dr. Glenn Caddy, who also testified at Parker's penalty phase as a mental health expert, testified that he was given "quite sparse materials" related to Parker, and received no background records from counsel.7 Prior to his postconviction testimony, Dr. Caddy reviewed two volumes of documents relating to Parker. While Dr. Caddy testified that he would not have changed his opinion as to the statutory mental mitigators based on these new background materials, he did change his opinion as to the severity of Parker's mental and emotional impairment, which could have constituted nonstatutory mitigation. Further, he stated that had he known about the severity of the mother's mental illness and her medical history, he would have conducted a more thorough evaluation of this issue. He also testified that had he seen Parker's school records indicating significant behavioral and intellectual functioning problems, he would have recommended further evaluation and testing.












7. In fact, the State was able to disparage Dr. Caddy's trial testimony by eliciting that almost all of his information came from self-reports by Parker and a thirty-minute telephone conversation with Parker's mother.







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Three other mental health experts testified at the postconviction hearing.


These experts testified that Parker suffers from some level of neuropsychological impairment in his executive functioning ability, suffers from the effects of long- standing psychological deficits, and has a long history of behavioral disorders, and that his alcohol consumption exacerbates these problems. All three of the postconviction experts opined that the two statutory mental mitigators are applicable to Parker. The trial court discounted these opinions as "not credible."


However, even if we discount the opinions of the postconviction mental health experts as to the applicability of the statutory mental mitigators, these three experts presented uncontroverted evidence that Parker has some type of neuropsychological impairment that affects his executive brain functions. This was never presented at the penalty phase and would qualify as nonstatutory mitigation.


In summary, had all of these facts been fleshed out or properly presented at the penalty phase, the trial court's finding of no mitigation would not have been supported by the record. Accordingly, we conclude that Parker has met his burden under Strickland that counsel's performance as to mitigation evidence was deficient and that he was prejudiced by the deficient performance. Thus, he is entitled to a new penalty phase proceeding where a jury is presented with the available mitigating evidence and weighs it in the sentencing calculus.







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CONCLUSION




Accordingly, we affirm in part and reverse in part the trial court's order denying postconviction relief. We remand this cause to the trial court for a new penalty phase proceeding before a jury.



It is so ordered.


QUINCE, C.J., PARIENTE and LEWIS, JJ., and ANSTEAD, Senior Justice, concur.


WELLS, J., concurs in result only.


CANADY and POLSTON, JJ., did not participate.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.


An Appeal from the Circuit Court in and for Broward County,


Leroy Harold Moe, Judge ­ Case No. 89-8897 CF10A


Neal A. Dupree, Capital Collateral Regional Counsel, Suzanne Keffer, Assistant CCR Counsel, and Barbara L. Costa, CCRC Staff Attorney, Southern Region, Fort Lauderdale, Florida, for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee
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