IN THE SUPREME COURT OF FLORIDA CASE NO. SC

Transcription

1 Filing # E-Filed 01/16/ :35:49 AM JUSTIN CURTIS HEYNE, Appellant, v. IN THE SUPREME COURT OF FLORIDA CASE NO. SC RECEIVED, 01/16/ :38:46 AM, Clerk, Supreme Court STATE OF FLORIDA, Appellee. / ON APPEAL FROM THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA INITIAL BRIEF OF THE APPELLANT Eric Calvin Pinkard Florida Bar No Assistant CCRC Office of the Capital Collateral Regional Counsel - Middle Region 3801 Corporex Park Drive - Suite 210 Tampa, Florida x116 Pinkard@ccmr. state, fl.us support@ccmr. state. fl.us

2 TABLE OF CONTENTS TABLE OF CONTENTS ii TABLE OF CITATIONS iv CASES iv OTHER AUTHORITY v STATEMENT OF THE CASE STATEMENT OF THE FACTS AT TRIAL STATEMENT OF POSTCONVICTION FACTS (1) Evidence concerning Mr. Heyne's statement (2) Evidence concerning the search of Mr. Heyne's K-Swiss shoe Box (3) Evidence concerning additional mitigation evidence SUMMARY OF THE ARGUMENT ARGUMENT CLAIM I THE LOWER COURT ERRED IN DENYING THE APPELLANTS POSTCONVICTION CLAIM THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS HIS STATEMENT TO THE POLICE. CLAIM II MR. HEYNE'S COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS THE EVIDENCE SEIZED BY THE POLICE FROM A BOX LOCATED IN ROZANNE LARABIE'S ATTIC. CLAIM III MR. HEYNE'S COUNSEL WAS INEFFECTIVE DURING THE PENALTY PHASE BY FAILING TO LOCATE AVAILABLE LAY WITNESSES TO PROVIDE TESTIMONY THAT MR. HEYNE HAD TAKEN LARGE QUANTITIES OF COCAINE AND ALCOHOL IN CLOSE PROXIMITY TO THE TIME OF ii

3 THE HOMICIDES AND FURTHER FAILED TO PRESENT A TOXICOLOGY EXPERT. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE iii

4 TABLE OF CITATIONS CASES Bean v. State, 752 So.2d 644 (Fla. 5th DCA 2000) Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct (1981) Heyne v. State, 88 So.3d 113 (Fla. 2012) , 5, 19, 22, 29, 31, 36 Illinois v. Rodriguez, 497 U.S. 177 (1990) Kelly v. State. 77 So.3d 818 (Fla. 4th DCA 2012) King v. State, 79 So.3d 236 (Fla. 1st DCA 2012) Laurito v. State, 120 So.3d 203 (Fla. 5th DCA 2013) McKenzie v. State, 125 So.3d 906 (Fla. 4th DCA 2013) Miranda v. Arizona, 384 U.S. 436, 16 L.Ed 2d 694, 86 S.Ct (1966).. 20, 24, 27 Moss v. State, 60 So.3d 540 (Fla. 4th DCA 2011) Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447 (2009) , 31 Ross v. State, 45 So.3d 403 (Fla. 2010) Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490 (1984) Sochor v. State, 883 So.2d 766 (Fla. 2004) , 29, 34 Spencer v. State, 615 So.2d 688 (Fla. 1993) State v. Dahlen, 209 Or.App 110, 146 P.3d 359 (2006 ) iv

5 State v. Miyasato, 805 So.2d 818 (Fla. 2nd DCA 2001) State v. Schultz, 388 So.2d 1326 (Fla. 4th DCA 1980) State v. Soto, 954 So.2d 688 (Fla. 4th DCA 2007) Stephens v. State, 748 So.2d 1028, 1033 (Fla, 1999) , 29, 34 Strickland v. Washington, 466 U.S. 668 (1984) , 24, 28, 31, 32, 37, 38 Twilegar v. State, 42 So. 3d 177 (Fla. 2010) United States v. Hughes, 921 F.Supp. 656 (D. Ariz. 1996) United States v. Taft, 769 F. Supp (D.Vt. 1991) Ward v. State, 88 So.3d 419 (Fla. 4th DCA 2012) OTHER AUTHORITY Art. I, 9, Fla. Const U.S. Const. Amend. IV, U.S. Const , 32 U.S. Const. Amend. V, U.S. Const , 21, 24 U.S. Const. Amend. VI, U.S. Const v

6 STATEMENT OF THE CASE On April 25, 2006 a Grand Jury in Brevard County, Florida, issued an indictment charging Justin Heyne with three counts of premeditated murder for the March 30, 2006, shooting deaths of Benjamin Hamilton, Sarah Buckoski, and Ivory Hamilton. (ROA ). The State issued a Notice of Intent to Seek the Death Penalty on June 2, (ROA-469). On August 4, 2009, the jury returned a verdict of guilty of premeditated murder on all three counts of the indictment. (ROA ). After the penalty phase the jury returned advisory sentences recommending a life sentence as to count one of the indictment, a death sentence by a vote of 8-4 as to count two of the indictment, and a death sentence by a vote of 10-2 as to count three of the indictment. (ROA ). On December 17, 2009, the circuit court judge imposed a life sentence as to count one and two of the indictment, and a death sentence as to count three. (ROA ). On December 17, 2009, Mr. Heyne filed a notice of appeal. (ROA 1209). On appeal this Court affirmed all three convictions for first degree murder and the death sentence for the death of Ivory Hamilton. Heyne v. State, 88 So.3d 113 (Fla. 2012). On October 26, 2013, Mr. Heyne filed a motion for postconviction relief under Fla. R. Crim. P (PC-ROA ). On August 6, 2014, the lower court entered a written order denying all of Mr. Heyne's 1

7 postconviction claims. (PC-ROA ). On September 4, 2014 Mr. Heyne filed a notice of appeal. (PC-ROA ). STATEMENT OF THE FACTS AT TRIAL On direct appeal, this Court summarized the guilt and penalty phase facts of Mr. Heyne' s case, as they were known at that time, as follows: On March 30, 2006, Sarah Buckoski returned to her home with her five year old daughter, Ivory Hamilton, to find Heyne and Ivory's father, Benjamin Hamilton, engaged in a verbal dispute. The dispute centered on money Heyne owed to Benjamin and took place in the master bedroom, a 12by 13 foot room in which law enforcement later discovered drug paraphernalia and several pounds of marijuana. Heyne worked with Benjamin and was temporarily residing with Benjamin, Sarah, and Ivory in Titusville, Florida. Heyne was 24 years old. Benjamin and Sarah were 26 and 24, respectively. As the argument escalated, Heyne began to feel disrespected. He started to walk away when he heard Benjamin cock a 9-mm gun. Heyne left, retrieved a.38 special from his room and then returned to the master bedroom to continue the argument with Benjamin. The two argued while holding their respective guns but did not point them at one another while arguing. Heyne pushed Benjamin onto the bed. At some point during the dispute, Ivory entered the room, prompting Benjamin to drop the 9-mm. Heyne picked up Benjamin's 9mm. Benjamin told Ivory to leave the room, and turned to walk out. In the sentencing order, the trial court detailed the shootings as follows: "Benjamin Hamilton was shot at a distance of no more than four or five feet. At that point Sarah Buckoski dove to the floor on the far side of the bed near the wall and started screaming. The defendant shot her next. She was shot one time, but the bullet passed through her arm before it entered the center of the back of the head. At that point Ivory began to pull on the defendant's shorts and the defendant shot her one time in the head at point blank range". 2

8 When law enforcement arrived at the scene, Benjamin was struggling for air on the bed, Sarah was on the floor next to the bed in a fetal position screaming, and Ivory was lying on the floor without a pulse. An autopsy revealed that just prior to her death, Ivory was slapped in the face in a manner violent enough to cause a rupture of the blood vessel beneath the skin. A bullet fired from Heyne' s.38 special was found in her skull. After the shootings, Heyne ran out of the back door with his gun in a pillowcase and with marijuana and cocaine he took from the master bedroom. Heyne called a friend, Roxanne Larabie, and asked her to pick him up. Larabie testified that Heyne admitted to shooting Benjamin and Sarah and when she asked about Ivory, Heyne "just looked at me and said she was gone."larabie helped Heyne obtain new clothes identical to the ones he was wearing. When they arrived at Larabie's house, Heyne washed the new clothes in an effort to make them appear worn. He removed his old shoes and clothes, wrapped up his gun in the pillowcase, and put all of the items in a box in Larabie's attic. Law enforcement retrieved the items and discovered bloodstains matching Benjamin's DNA profile on Heyne's pants and pillowcase. Heyne was apprehended and questioned regarding the murder and a video tape of the interrogation was played for the jury at trial. Initially, Heyne denied that he was in the house at the time of the murder. But when an investigating officer interrupted the interrogation with news that Heyne' s gun, bloodied clothes, and pillowcase were discovered in a box in Larabie's attic, Heyne confessed to shooting Benjamin and Sarah and acknowledged seeing Ivory "go down." At the time, Heyne could not remember shooting Ivory and repeatedly denied he would have shot her on purpose. However, he acknowledged shooting the 9-mm and the.38 special and directed the interrogating officer as the officer drew a diagram of the room depicting the placement of Heyne and all three victims during the shootings. Heyne said his argument with Benjamin began as a non-violent confrontation in which Benjamin never threatened him or pointed his gun in Heyne' s direction. At trial, Heyne advanced the theory that he shot Benjamin and Sarah in self-defense, specifically suggesting in closing argument that Sarah may have been trying to access a shotgun under the bed. As for Ivory, 3

9 Heyne argued that the evidence supported an accidental shooting. The prosecution attempted to foreclose the possibility of self- defense and accident, relying heavily on the diagram drawn during Heyne's interrogation to show that the relative positioning of Heyne and the victims precluded either scenario. Ultimately, the jury found Heyne guilty of first-degree premeditated murder of all three victims. At the penalty phase, Heyne presented mitigating testimony from former educators, family members, and evaluating psychologists. His former educators attested to Heyne' s status as a special education student, and his family members testified that he was a caring but difficult child. Dr. Joseph Wu testified that imaging from a PET scan showed damage to Heyne's temporal and parietal lobes, evidencing learning difficulties, causing problems regulating aggression and impulse, and making addiction to alcohol and drugs more likely. Dr. Wu also testified that imaging was consistent with a history of traumatic brain injuries and specifically noted two concussions Heyne suffered as a child, another head injury when Heyne was incarcerated in 2004, and a slow processing speed relative to his IQ score of 88. Dr. William Riebsame diagnosed Heyne with ADHD and possible bipolar disorder - as well as cocaine and alcohol use and dependence at the time of the offense. Dr. Riebsame also discussed Heyne' s history of impulsivity, including two documented suicide attempts. Dr. Reibsame revealed that Heyne had confessed to shooting Ivory, whom Heyne said was crying and pulling on his shorts after he shot Benjamin. The jury recommended life imprisonment for the murder of Benjamin, the death penalty for the murder of Sarah by a vote of eight to four, and the death penalty for the murder of Ivory by a vote of ten to two. The trial court followed the jury's recommendation of death for the murder of Ivory but sentenced Heyne to life imprisonment for the murders of Benjamin and Sarah. For the murder of Ivory, the trial court found three aggravators: (1) Heyne was previously convicted of a felony involving the use or threat of violence (great weight); (2) the murder was especially heinous, atrocious, or cruel (HAC) (great weight); and (3) the victim was less than twelve years of age (great weight). The trial court found the following mitigators: (1) Heyne 4

10 suffers from a mental illness (great weight); (2) Heyne has brain damage and brain deficits (great weight); (3) Heyne had a problem with substance abuse and dependence (moderate weight); (4) Heyne had an impaired capacity to appreciate the criminality of his conduct or conform it to the requirements of the law (moderate weight); (5) Heyne was under the influence of a mental or emotional disturbance (little weight); (6) Heyne was a good, caring father to a handicapped son (very little weight); (7) Heyne cared for and helped elderly neighbors when he was a child (very little weight); (8) Heyne gave his flannel jacket to a homeless person (very little weight); (9) Heyne protected younger, weaker children when he was a child (very little weight); (10) Heyne played football and other sports as a child and was devastated when he could no longer play (very little weight); ( 11) Heyne was recommended to receive in-patient psychiatric treatment at age five but did not receive treatment (moderate weight); (12) Heyne has a history of suicide attempts and self and self-destructive behavior (moderate weight); and (13) Heyne exhibited good behavior during trial (some weight). Heyne v. State, 88 So.3d 113 (Fla. 2012). STATEMENT OF POSTCONVICTION FACTS In the postconviction proceedings, Mr. Heyne presented evidence to establish three claims for postconviction relief: (1) Mr. Heyne's counsel was ineffective for failing to file a motion to suppress the statement taken from him on the basis that it was obtained in violation of the United States Constitution because Mr. Heyne invoked his right to counsel during custodial interrogation and requested that the questioning stop. (PC-ROA 374); 5

11 (2) Trial counsel was ineffective for failing to file a motion to suppress the evidence found inside a box in Roxanne Larabie's attic on the ground that the evidenced was seized without a search warrant in violation of the Fourth Amendment to the United States Constitution. (PC-ROA 379); and (3) Mr. Heyne's counsel was ineffective during the penalty phase by failing to locate available lay witnesses to provide testimony that Mr. Heyne had taken very large quantities of cocaine and alcohol in close proximity in time to the homicides and further had failed to present a toxicology expert to testify as to the effects the extensive drug and alcohol use had on Mr. Heyne at or around the time of the homicides. (PC-ROA 382). (1) Evidence concerning Mr. Heyne's statement: At the postconviction evidentiary hearing the transcript of the statement Mr. Heyne gave to the police was entered into evidence. (PC-ROA ). During the interrogation the following exchange took place, post Miranda: Q. So how are we going to handle this now - A. I don't know. Put me in a jail cell. Q. After you being accused? A. I'll get a lawyer and well go through court. And spend thousands of dollars on an innocent man. So that's how we re going to handle it. And if I'm convicted, and they convict me, then I do my time and sit and they let me fry. 6

12 PC-ROA The detective questioning Mr. Heyne did not comply with his request to be taken to a jail cell and did not stop questioning him or provide him with counsel. Instead, the detective exerted considerable effort to talk Mr. Heyne out of his invocation of his right to counsel and his request to be taken to a jail cell (the interrogation took place at the Titusville Police Department). (PC-ROA 1007). The comments from the detective after Mr. Heyne invoked his right to counsel and requested he be taken to be taken to a jail cell are as follows: Q. Well, that's - - that's what I don't want to see happen to you, you know, I don't want you to be perceived - - (PC-ROA 1076) Q. Because there's a difference, you know. A. But how much money did they have in their account for a lawyer? Q. No, it doesn't have anything to do with that, let me explain something to you. What happens is, there is a difference between intentional murder, and there's manslaughter. Okay? (PC-ROA 1078). Q. So how do we explain the statements of the witnesses that have put you there, and have indicated that you were involved in this? A. Well, I'll see them at trial. Q. I know you'll see them at trial, but do you want the whole thing to play out badly for you? (PC-ROA 1086). 7

13 Q. Well, let's just say this much, okay. Everything indicates right now that you're guilty, okay? A. That's fine. Q. All right, but let's - - let's think about this. Okay? Let's say this plays out in court, and you continue to say that: I didn't do this. I didn't do that. And by the time we're done, everything indicates that, and then it comes down to sentencing, all right. Well, do you want to be convicted of homicide, or do you want to be found guilty of manslaughter? (PC-ROA 1088, 1089). Mr. Heyne maintained his innocence until the detective showed him a K-Swiss shoe box, which the police had located at Roxanne Larabie's house. (PC-ROA 1114). A photograph of the shoe box was entered into evidence at the evidentiary hearing. (PC-ROA 1003). It contained clothing and a gun wrapped in tape. (PC-ROA ). Upon seeing the box, he confessed. (2) Evidence concerning the search of Mr. Heyne's K-Swiss shoe Box: Two former officers with the Titusville Police Department testified at the postconviction evidentiary hearing concerning the facts and circumstances surrounding the seizure and search of the K-Swiss shoe box. as follows: Former Titusville Police Officer Joel Hunter testified about the K-Swiss box Q. At some point in time on that day did you become involved in the search of the residence of Roxanne Larabie? 8

14 A. The residence where she resided, yes, sir. Q. And in that small conversation did you obtain some information about some evidence that she felt might be inside her house? A. Yes, sir, I did. Q. Okay. What was that evidence? A. She said she had, Justin had come to the house in an excited state and said, made some comments, and then apparently went around the house, exterior and interior of the House. (PC-SUPP-ROA ). Q. Did she identify the shoebox specifically as a K-Swiss box? A. I don't recall she said it was a K-Swiss box, but I believe she might have made mention that it was. Q. Were you looking specifically for a K-Swiss box in your search? A. Yes Sir, I was. Q. Did she say that Mr. Heyne had brought that box to her residence? A. That is correct sir. Q. Did she ever tell you that she had ever been in possession of that box? A. Not that I can recall. Q. Did she ever tell you she had touched that box? A. Not that I can recall at this point. (PC-SUPP-ROA 161) Q. Did she tell you that she thought the box might be in the attic? A. Yes sir. Q. Did she tell you why she thought the box might be in the attic? A. I believe she said he went into the attic after he got a shower. (PC-SUPP- ROA 163). 9

15 Q. And when you located the box in the attic, was the box, did the box have a lid on it? A. Do you mean was it closed? Q. Was it closed, yes. A. Yes, that's correct. Q. And when you located the box in the attic, did you look inside the box? A. Yes, I did. Q. Ok, And what did you find in the box? A. A handgun and some clothes. (PC-SUPP-ROA 164). Q. Did you ever obtain a search warrant before searching the box? A. No, sir, I personally did not. (PC-SUPP-ROA 169). Former Titusville Police Officer Jeffrey Watson testified concerning the K-Swiss Box as follows: Q. Later, after finding the brown box, did you have some further conversation with Roxanne larabie and did she tell you about a K-Swiss shoebox? A. Yes, sir, she did. Q. And what did she say about the K-Swiss shoebox? A. That there could possibly be evidence inside the box. Q. Did she say that she had gone to the mall with Mr. Heyne and that he had bought the shoes, came outside, that's when she first saw the box? A. Yes, sir. 10

16 (PC-SUPP-ROA 177) Q. And at some point in time did Officer Hunter find the box? A. Yes, sir, he did. Q. When he found the box, did you hear something unusual? A. Yes, sir, I could hear Officer Hunter making very excited utterances that he had found the box and he was jumping up and down in the attic. Q. When you first saw the box, had Officer Hunter already opened it? A. I do not recall if he had already opened it. I'm assuming he did. Q. At some point in time did you look inside the box? A. yes, sir. Q. And when did that occur? A. Downstairs in the garage. (PC-SUPP-ROA 179) Q. Okay, Did Roxanne Larabie ever say that she had touched the box? A. Not that I recall sir. (PC-ROA-181). Q, Were you ever told by Roxanne Larabie that she had any personal effects inside the K-Swiss box? A. No, sir. (PC-SUPP-ROA 182). Q. (Proffer after court sustained a hearsay objection) Officer Watson ever tell you that she exercised any control over this K-Swiss box? A. She never indicated that sir. (PC-SUPP-ROA 186). 11

17 (3) Evidence concerning additional mitigation evidence: At the postconviction evidentiary hearing Mr. Heyne presented several witnesses who provided testimony regarding additional mitigation evidence that was not introduced at the penalty phase or Spencer 1 hearing of Mr. Heyne's trial proceedings. Dr. Richard Carpenter testified and was accepted by the court as an expert in forensic psychology. (PC-SUPP-ROA 39). Dr. Carpenter stated he examined Mr. Heyne and reviewed records in the case including statements from lay witnesses concerning his drug and alcohol use at or near the time of the homicide. Dr. Carpenter diagnosed him with ADHD, which is attention deficit hyperactivity disorder, bipolar disorder not otherwise specified, polysubstance dependence, and personality disorder not otherwise specified with borderline personality traits. (PC-SUPP-ROA 40). Addressing Mr. Heyne's consumption of drugs and alcohol on the day of and days before the homicide, Mr. Heyne informed Dr. Carpenter that, two days before murder, he woke up around noon, he began to smoke marijuana laced with cocaine, and he was also snorting cocaine. (PC-SUPP-ROA 43). Around 5:00 p.m. on that day he was drinking and did more cocaine. (PC-SUPP-ROA 43). He was up that night until around 5:00 a.m. (PC-SUPP-ROA 43). Mr. Heyne said he went 1 Spencer v. State, 615 So.2d 688 (Fla. 1993). 12

18 to work at the family business restoring a convenience store, worked all day, and took around two more grams of cocaine. (PC-SUPP-ROA 44). He went to MJ s, a bar, with his friends and did more cocaine. (PC-SUPP-ROA 44). He then went to Ronnie Peterson's house and had about five grams of cocaine. (PC-SUPP-ROA 44). He then went to Darren Wratchford's house and did around three more grams. (PC-SUPP-ROA 44). Dr. Carpenter relied upon Mr. Heyne's statements to him, corroborated by several witness statements provided to him by CCRC-Middle investigator Carlos Rodriguez. (PC-SUPP-ROA 45). Witness Ronnie Peterson stated that he was with Mr. Heyne at MJ's bar in the early morning hours on the day of the homicide and he witnessed Mr. Heyne consume about five grams of cocaine from the time the bar closed until about 3:00 a.m. (PC-SUPP-ROA 44). Witnesses Darren Wratchford and Christina Mandley provided statements that Mr. Heyne had been at their house in the early morning hours on the day of the homicide and drank Captain Morgan rum drinks and did more cocaine. (PC-SUPP-ROA 47). Tammy Vick provided a statement that around an hour and a half before the shootings Mr. Heyne came to her place of employment, a restaurant, and consumed lines of cocaine in her presence. (PC-SUPP-ROA 45). Dr. Carpenter testified that it is important to attempt to obtain corroborating eye-witness statements of drug and alcohol abuse. (PC-SUPP-ROA 47). He stated 13

19 that the drug and alcohol consumption by Mr. Heyne would lead him to be even more impaired at the time of the homicides and would strengthen the notion that he was operating under extreme emotional disturbance. (PC-SUPP-ROA 48). Dr. Carpenter also reviewed the video-tape of Mr. Heyne's statement to the police, and the fact he was falling asleep at the police station, which he stated appeared to be "crashing" from the drug and alcohol binge and confirmed and added credibility to the statements of Mr. Heyne and the lay-witnesses that he had in fact been on a drug and alcohol binge close to the time of the homicides. (PC-SUPP-ROA 51). Dr. Daniel Buffington testified and was accepted by the court as an expert witness in the field of forensic pharmacology and toxicology. (PC-SUPP-ROA 66). He testified that he reviewed the record and interviewed Mr. Heyne. Based on this, he testified that Mr. Heyne had consumed large quantities of marijuana, cocaine, and alcohol in the 48 hour period prior to the homicide. (PC-SUPP-ROA 67). He reviewed the statements of Ronnie Peterson, Darren and Christina Wratchford, and Tammy Vick concerning Mr. Heyne's marijuana, cocaine and alcohol use prior to the homicides. (PC-SUPP-ROA 69). Those witnesses verified that Mr. Heyne had consumed multiple grams of cocaine and alcohol and marijuana and had been up with sleep deprivation in the hours leading up to the homicides. (PC-SUPP-ROA 70). The use of cocaine leading up to the homicide 14

20 would have created a binging effect with significantly complicating psychiatric side effects. (PC-SUPP-ROA 72). Darren Wratchford testified that he became friends with Mr. Heyne because his ex-wife worked at MJ's bar. (PC-SUPP-ROA 128). In the early morning hours of March 30, 2006, Mr. Heyne came over to his house where he lived with his wife Christina Wratchford. (PC-SUPP-ROA 128). He saw Mr. Heyne consume between 2-grams to an 8-ball of cocaine in his living room, then leave the house at approximately 3:00 A.M. (PC-SUPP-ROA 129). Mr. Heyne did not sleep while he was at the house. (PC-SUPP-ROA 130). No one from Mr. Heyne's legal team ever contacted him at the time of the trial. (PC-SUPP-ROA 131). Christina Wratchford testified that she saw Mr. Heyne at her residence during the early morning hours on March 30, 2006, approximately 3:00 a.m. (PC-SUPP-ROA 135). She witnessed Mr. Heyne consume at least two grams of cocaine and left the next day when the sun came up. (PC-SUPP-ROA 136). She also saw Mr. Heyne drinking alcohol the evening before March 30, (PC-SUPP-ROA 137). No one from Mr. Heyne's legal team contacted her at the time of the trial. (PC-SUPP-ROA 138). Tammy Vick testified that she knew Mr. Heyne because her daughter, Amanda Hatchcock, dated him. (PC-SUPP-ROA 141). She saw Mr. Heyne in the early afternoon of March 30, 2006, at Durango's Steakhouse, her place of 15

21 employment. (PC-SUPP-ROA 142). Mr. Heyne picked her up on that day and they went for a short drive, and during that time he consumed a large baggie of cocaine. (PC-SUPP-ROA 142). He then dropped her off at the restaurant. (PC-SUPP-ROA 142). No one from Mr. Heyne's legal team ever contacted her at the time of the trial. (PC-SUPP-ROA 142). 16

22 SUMMARY OF THE ARGUMENT Claim One: Mr. Heyne's counsel was ineffective for failing to file a motion to suppress the statement taken from him on the basis it was obtained in violation of the Fifth and Sixth Amendments to the United States Constitution as it is clear from the record that Mr. Heyne unequivocally invoked his right to counsel and requested to be taken to a jail cell where questioning would stop. Instead of fulfilling his duty to protect Mr. Heyne's constitutional rights, the interrogating detective violated them and obtained an unlawful confession. Since the confession was an essential component of the State's case against Mr. Heyne, prejudice has been established and the lower court erred in denying the claim. Claim Two: Mr. Heyne's counsel was ineffective for failing to file a motion to suppress the evidence found inside a K-Swiss shoe box in Roxanne Larabie's attic. The record establishes that Larabie specifically told the police that she saw Mr. Heyne with the K-Swiss box and she never indicated any possession or co-ownership in the box or its contents. Accordingly, she had no standing to consent to the search of the box she said belonged to Mr. Heyne and Mr. Heyne alone. Prejudice is established for counsel's deficient performance in failing to suppress the evidence found in the box as its contents were a major component of the state's case and led to Mr. Heyne's confession. The lower court erred in denying this claim. 17

23 Claim Three: Mr. Heyne's counsel was ineffective for failing to investigate and present available mitigating evidence concerning Mr. Heyne's consumption of drugs and alcohol in close proximity in time to the homicides. This deficient performance by counsel lead to the sentencing judge and this Court concluding that Mr. Heyne had not established the two statutory mental health mitigators during the penalty phase. Thus, the deficient performance of counsel was prejudicial and the lower court erred in denying the claim. 18

24 ARGUMENT CLAIM I THE LOWER COURT ERRED IN DENYING THE APPELLANTS POSTCONVICTION CLAIM THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS HIS STATEMENT TO THE POLICE. Ineffective assistance of counsel claims present mixed questions of law and fact. This Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by substantial evidence, but reviewing the circuit court's legal conclusions de novo. Sochor v. State, 883 So.2d 766 (Fla. 2004); Stephens v. State, 748 So.2d 1028, 1033 (Fla, 1999). This Court stated in its opinion affirming Mr. Heyne's convictions and death sentence that Heyne was apprehended and questioned regarding the murder, and a videotape of the interrogation was played for the jury at trial. Initially, Heyne denied that he was at the house at the time of the murder. But when an investigating officer interrupted the interrogation with news that Heyne's gun, bloodied clothing, and pillowcase were discovered in a box in Larabie' s attic, Heyne confessed to the shooting Benjamin and Sarah and acknowledged seeing Ivory "go down". Heyne at 117. This Court also stated that Id. The prosecution attempted to foreclose the possibility of self defense and accident, relying heavily on the diagram drawn during Heyne' s interrogation to show that the relative positioning of Heyne and the victims precluded either scenario. 19

25 The opinion of the Court establishes that Mr. Heyne was subjected to custodial interrogation and the police elicited statements from him that were essential in order for the state to obtain the convictions and death sentence which are the subject of these postconviction proceedings. Pursuant to clearly established federal law, and Florida law, the statements of Mr. Heyne and the diagram drawn by Mr. Heyne should not have been introduced into evidence at his trial as a timely filed motion to suppress by defense counsel would have precluded their introduction and use by the state at both the guilt and penalty phase. In the transcript of the interview of Mr. Heyne conducted by Detective Espozito of the Titusville Police Department, was introduced at the evidentiary hearing and demonstrated that the following exchange took place: Q. So how are we going to handle this now- A. I don't know. Put me in a jail cell. Q. After you being accused? A. I'll get a lawyer and we'll go through court. And spend thousands and thousands of dollars on an innocent man. So that's how we re going to handle it. And if I'm convicted, and they convict me, then I do my time and sit and they let me fry. (PC-ROA 1076, emphasis added). In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed 2d 694, 86 S.Ct (1966), the Court held that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning. 20

26 Furthermore, if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct (1981). The above excerpt from the transcript establishes that Mr. Heyne unequivocally invoked his right to counsel afforded to him by clearly established law from the United States Supreme Court. He stated he wished to immediately be taken to a prison cell so he could hire an attorney to challenge his case in court. Additionally it is clear he asked that questioning cease - to be taken to his cell where the interrogating officer would not be present - and no further questioning would take place. Thus, he invoked his rights under the Sixth and Fifth Amendments to the United States Constitution. But the interrogation did not stop. After Mr. Heyne invoked his right to counsel and right to remain silent, the questioning continued unabated. His responses provided the state with the centerpiece of the case against him in terms of convicting him of the first degree murders and in imposing the death sentence for the shooting of lvory Hamilton. Virtually the entire rendition of the facts in Mr. Heyne's case in the direct appeal opinion focused on information obtained after he had invoked his right to counsel and right to remain silent. The diagram he was asked to draw after he invoked his right to an attorney and right to remain silent 21

27 was used by the state to negate the claims of self defense and provided information on the HAC aggravating circumstance found by the trial judge. In the denial of the appeal on the issue of whether the lower court erred in failing to grant a motion for judgment of acquittal, this Court stated: the evidence concerning the shooting of Benjamin was sufficient to support a finding of premeditation and was inconsistent with any other reasonable inference. Specifically, the prosecution presented the following evidence, much of which derives from Heyne's statement to law enforcement. Heyne at 118 (emphasis added). This Court made similar statements of reliance on the statement elicited from Mr. Heyne in upholding the murder convictions for Sarah and Ivory. Id. at The transcript of the statement further established that after Mr. Heyne invoked his right to Counsel, the arresting officer made repeated attempts to try and talk him out of it as follows: Q. Well, that's - - that's what I don't want to see happen to you, you know, I don't want you to be perceived - - (PC-ROA 1076) Q. Because there's a difference, you know. A. But how much money did they have in their account for a lawyer? Q. No, it doesn't have anything to do with that, let me explain something to you. What happens is, there is a difference between intentional murder, and there's manslaughter. Okay? (PC-ROA 1078). 22

28 Q. So how do we explain the statements of the witnesses that have put you there, and have indicated that you were involved in this? A. Well, I'll see them at trial. Q. I know you'll see them at trial, but do you want the whole thing to play out badly for you? (PC-ROA 1086). Q. Well, let's just say this much, okay. Everything indicates right now that you're guilty, okay? A. That's fine. Q. All right, but let's - - let's think about this. Okay? Let's say this plays out in court, and you continue to say that: I didn't do this. I didn't do that. And by the time we're done, everything indicates that, and then it comes down to sentencing, all right. Well, do you want to be convicted of homicide, or do you want to be found guilty of manslaughter? (PC-ROA 1088, 1089). In Strickland v. Washington, 466 U.S. 668 (1984), the Court held that counsel has a "duty to bring such skill and knowledge as will render the trial a reliable adversarial testing process." Strickland requires a defendant to plead and prove (1) unreasonable attorney performance, and (2) prejudice. The prejudice prong is met if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. See also Porter v. McCollum, 558 U.S. 30, 130 S.Ct

29 (2009) (explaining that the Court does not require proof that counsel's deficient conduct more likely than not altered the outcome of his penalty proceeding, but rather that he establish a probability sufficient to undermine confidence in [that] outcome. 558 U.S. at 44, 130 S.Ct. at (2009), quoting Strickland). Both the Fifth Amendment to the United States Constitution and Article I, section 9 of the Florida Constitution provide that persons shall not be compelled to be a witnesses against themselves in any criminal matter. Moss v. State, 60 So.3d 540, 542 (Fla. 4th DCA 2011); Ross v. State, 45 So.3d 403, 412 (Fla. 2010). Under well-settled principles of Miranda, once a suspect unequivocally invokes his right to counsel, all interrogation must cease." McKenzie v. State, 125 So.3d 906, 907 (Fla. 4th DCA 2013). The suspect is "not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police." Moss, 60 So. 3d at Florida courts have recognized that a claim for ineffective assistance of counsel arises when counsel fails to seek the suppression of a defendant s statement to law enforcement on the grounds that the interviewing officer failed to honor an unequivocal request for a lawyer. Laurito v. State, 120 So.3d 203 (Fla. 5th DCA 2013). 24

30 Whether a suspect has invoked the right to counsel is an objective inquiry that requires at a minimum some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. Davis v. United States, 512 U.S. 452, , 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). "A statement either is such an assertion [of the right to counsel] or it is not." Smith v. Illinois, 469 U.S. 91, 97-98, 105 S.Ct. 490, 494 (1984). This is an objective determination that will look to the understanding of a reasonable officer in light of the circumstances. Davis at In this inquiry, the court does not consider the totality of the circumstances of the interrogation. Smith at In fact, it is error to consider any statements subsequent to the request other than to resolve the question of the waiver. Id. at In this case the lower court ruled that the statement made by Mr. Heyne to the interrogating detective was not an unambiguous and unequivocal request for counsel. The lower court found that Mr. Heyne's statement was not a request for counsel or a request to terminate questioning at all. Detective Espozito asked the defendant how they were going to handle the situation. The Defendant responded by stating what would happen if he were arrested for a crime he did not commit. He stated that he would hire a lawyer, they'd go through court, thousands of dollars would be spent on an innocent man, and if he were convicted, he would do his time and fry. Defendant was not asking to have a lawyer present during the interview. Nor was he asking to terminate the interview. He was merely predicting what would happen in the future if he were arrested for the murders. A reasonable officer who 25

31 heard the defendant make this statement would not believe he was invoking his right to counsel or his right to remain silent. (PC-ROA ). The lower court's ruling is refuted by the transcript of the interrogation. The detective asked Mr. Heyne "how are we going to handle this now." Now means now, not at some point in the future. Mr. Heyne stated he wanted (now) to be placed in a cell where "Ill get a lawyer and we ll go through court." Just because he opined he didn't know in the future whether he would be convicted, and the trial would be an expensive trial, does not mean he did not want an attorney then, which he clearly said. Furthermore, there is no justification for the lower court's finding that, in order to invoke his right to counsel, Mr. Heyne would have to ask for a lawyer to be present at the police station. To the contrary, it suffices that he requested to be brought to another place (a prison cell) where he would get a lawyer. Also, his request to be taken to a prison cell, away from the police station interview, is a request that the questioning stop. Mr. Heyne's responses can be reasonably construed to be an expression of a desire for the assistance of an attorney. A review of other cases concerning the words spoken by a defendant during custodial which have been viewed as an unequivocal request for counsel support the position that Mr. Heyne did invoke his right to counsel. State v. Soto,

32 So.2d 688 (Fla. 4th DCA 2007) (finding that defendant's statement during custodial interrogation, "I can't make a phone call or nothing," to be a clear and unambiguous request for a lawyer); Bean v. State, 752 So.2d 644, 646 (Fla. 5th DCA 2000) (viewing the statement "I should be able to talk to a lawyer" as an unequivocal request for counsel). State v. Dahlen, 209 Or.App 110, 146 P.3d 359, (2006 ) (holding question "when can I call an attorney?' to be an unequivocal request for counsel); United States v. Hughes, 921 F.Supp. 656, (D. Ariz. 1996) (finding question Can I call a lawyer? in response to the defendant being advised of his Miranda rights to be an unequivocal assertion of defendants right to counsel); United States v. Taft, 769 F. Supp. 1295, (D.Vt. 1991) (holding that question "can we call - use your phone to call and attorney?" constituted an unequivocal request for counsel). In this case Mr. Heyne was not asking a question about getting an attorney. He affirmatively said he wanted to get a lawyer. Mr. Heyne's statement was more unequivocal than the above examples where the courts ruled that a mere question by the defendant as to whether he could call or speak to an attorney must be construed to be an expression of a desire for the assistance of an attorney. The transcript of the interrogation establishes that counsel for Mr. Heyne engaged in deficient performance for failing to file a motion to suppress the statement obtained from Mr. Heyne. This Court's strong reliance on Mr. Heyne's 27

33 statements in affirming his conviction and death sentence establishes prejudice. Accordingly, both prongs of Strickland have been met. The lower court erred in denying this claim. 28

34 CLAIM II MR. HEYNE'S COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS THE EVIDENCE SEIZED BY THE POLICE FROM A BOX LOCATED IN ROZANNE LARABIE'S ATTIC. Ineffective assistance of counsel claims present mixed questions of law and fact. This Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by substantial evidence, but reviewing the circuit court's legal conclusions de novo. Sochor, Stephens. After the shootings, Mr. Heyne ended up at the residence of Roxanne Larabie. He placed various items, including a gun and clothing, inside of a box which he hid in her attic. Larabie called the police and informed the arriving officer what she had seen regarding the gun and that Heyne had admitted to shooting Benjamin and Sarah and that Ivory was "gone". Heyne at She and the officer looked for the box in the house and the officer ultimately found it in the attic. He searched the contents of the box without a warrant and then showed the box to Mr. Heyne as he was being interrogated by Detective Espozito Id. at 117. Nowhere in the record was it established that Roxanne Larabie had any common ownership in the box. She had no actual or apparent authority to consent to a search of the box. At the evidentiary hearing the two police officers who 29

35 located the box and searched its contents unequivocally stated that they were told by Roxanne Larabie that the K-Swiss shoe box belonged to Mr. Heyne, that he had brought it into the house, and that Ms. Larabie never possessed, touched, or had any common ownership in the box. (PC-SUPP-ROA 161, 181, 182, 186). The police had no basis to search the box without a warrant. They could have easily obtained a warrant as they did with a warrant to search the residence where the shootings had occurred. There were no exigent circumstances to justify not obtaining a search warrant to search the box that clearly belonged to Mr. Heyne and for which Roxanne Larabie had no mutual usage of or common control over. A third party cannot validly consent to a search of personal property belonging to another "unless there is evidence of both common authority and mutual usage of the property''. See Illinois v. Rodriguez, 497 U.S. 177 (1990); King v. State, 79 So.3d 236 (Fla. 1st DCA 2012) (the defendant's wife lacked the actual or apparent authority to consent to a search of a safe in the master bedroom closet, where she told the police she did not have a key to the safe); Kelly v. State. 77 So.3d 818 (Fla. 4th DCA 2012) (a live-in girlfriend lacked the actual or apparent authority to consent to a search to consent to a search of a backpack in the garage, which she specifically identified as belonging to the defendant); State v. Miyasato, 805 So.2d 818 (Fla. 2nd DCA 2001) (the defendant's mother lacked the actual or apparent authority to consent to a search of a desk in the bedroom the 30

36 defendant shared with his wife and son where the police did not determine the mother owned or used the desk or had regular access to its contents ); Ward v. State, 88 So.3d 419 (Fla. 4th DCA 2012). In Strickland v. Washington, 466 U.S. 668 (1984), the Court held that counsel has a "duty to bring such skill and knowledge as will render the trial a reliable adversarial testing process." Strickland requires a defendant to plead and demonstrate (1) unreasonable attorney performance, and (2) prejudice. The prejudice prong is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. See also Porter v. McCollum, 130 S.Ct. 447, (explaining that the Court does not require proof that counsel's deficient conduct more than likely altered the outcome of his penalty proceeding, but rather that he establish a probability sufficient to undermine confidence in that outcome. ) (quoting Strickland, at ). Counsel's performance was unreasonable in failing to file a motion to suppress which would have excluded key physical evidence introduced at trial against Mr. Heyne. The clothes contained blood stains that matched Benjamin Hamilton's DNA. The.38 special found inside the box was matched by FDLE to the bullet found inside of Ivory Hamilton. Heyne at 119, The introduction of this 31

37 evidence, seized by the police in violation of the Fourth Amendment, was highly prejudicial and meets the prejudice prong of Strickland. The evidence was further prejudicial in that it coerced Mr. Heyne to provide a confession after he was told by the police about the contents of the box. The lower court denied this claim on the basis that Mr. Heyne had abandoned the shoe box at Roxanne Larabie's house. (PC-ROA 494) However, the lower court's reliance on Twilegar v. State, 42 So. 3d 177, 193 (Fla. 2010), is misplaced. In that case the police came upon an abandoned campsite which appeared to be ransacked or vandalized. The police took possession of some items at the scene and told the people at the park when the resident returned they could come to the police station and claim the items. Ultimately, after a day and a half, no one did and the police conducted an inventory search on the items and discovered incriminating evidence. Twilegar at 195. That is an entirely different circumstance than in this case, where Roxanne Larabie told the police that the K-Swiss box belonged to Mr. Heyne. Clearly Mr. Heyne had made efforts to conceal the box and had not left it in a public place. As stated in State v. Schultz, 388 So.2d 1326 (Fla. 4th DCA 1980), abandonment of personal property is the intention to part with the property forever. Id. at Mr. Heyne clearly did not intend to part with the K-Swiss box forever, but had hidden it at Larabie s house to be retrieved at a later time. He knew Roxanne Larabie and had been to her 32

38 house before. On the day of the homicide he took a shower in her residence. Far from leaving the property in public view, Mr. Heyne had specifically attempted to remove the box from public view. The lower court erred in denying this claim. 33

39 CLAIM III MR. HEYNE'S COUNSEL WAS INEFFECTIVE DURING THE PENALTY PHASE BY FAILING TO LOCATE AVAILABLE LAY WITNESSES TO PROVIDE TESTIMONY THAT MR. HEYNE HAD TAKEN LARGE QUANTITIES OF COCAINE AND ALCOHOL IN CLOSE PROXIMITY TO THE TIME OF THE HOMICIDES AND FURTHER FAILED TO PRESENT A TOXICOLOGY EXPERT. Ineffective assistance of counsel claims present mixed questions of law and fact. This Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by substantial evidence, but reviewing the circuit court's legal conclusions de novo. Sochor, Stephens. At the penalty phase of Mr. Heyne's trial, Dr. Riebsame testified that, because of Heyne's mental disorders - ADHD and possible bipolar disorder - and self-reported drug and alcohol use at the time of the shootings, Heyne'S capacity to conform his conduct to the requirements of the law were substantially impaired. Specifically, Dr, Reibsame testified as follows: Q. What was Mr. Heyne's mental state at that point? Answer it from two points of view; one, the influence of alcohol and drugs and the effect on him and answer-address this, whether at the time of the shooting Mr. Heyne was under the influence of extreme mental or emotional distress, disturbance? A. I mean there is a mental disorder in Mr. Heyne's case he carries with him into every situation. So he carries the mental disorder into this angry confrontation with Mr. Hamilton over probably a number of issues. They have an angry confrontation. There are guns available to them, at least to Mr. Heyne. Mr. Heyne is relatively intoxicated. He has been doing cocaine for several hours. He has been drinking as 34