SC03-1815 – Anthony Lamarca v. State Of Florida

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SC03-1815 – Anthony Lamarca v. State Of Florida - Corrected Opinion

State: Florida

Court: Supreme Court

Docket No: sc03-1815

Case Date: 04/20/2006

Plaintiff: SC03-1815 – Anthony Lamarca

Defendant: State Of Florida – Corrected Opinion

Preview:Supreme Court of Florida
No. SC03-1815
ANTHONY LAMARCA,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
No. SC04-847
ANTHONY LAMARCA,
Petitioner,
vs.
JAMES R. McDONOUGH, etc.,
Respondent.
[April 20, 2006]
CORRECTED OPINION
PER CURIAM.
Anthony Lamarca appeals an order of the circuit court denying a motion for
postconviction relief under Florida Rule of Criminal Procedure 3.851 and petitions

this Court for a writ of habeas corpus.  We have jurisdiction.  See art. V, § 3(b)(1),
(9), Fla. Const.  For the reasons explained below, we affirm the circuit court’s
order denying Lamarca’s 3.851 motion and deny Lamarca’s petition for a writ of
habeas corpus.
FACTS
On November 6, 1997, Anthony Lamarca was convicted of first-degree
murder for the death of his son-in-law, Kevin Flynn.  He elected to represent
himself during the penalty phase and waived the presentation of mitigating
evidence.  The jury recommended a sentence of death by a vote of eleven to one,
and the trial judge sentenced him accordingly.  This Court upheld that sentence on
direct appeal.  Lamarca v. State, 785 So. 2d 1209 (Fla.), cert. denied, 534 U.S. 925
(2001).   The following facts are relevant to Lamarca’s 3.851 motion and habeas
petition.
On December 2, 1995, Anthony Lamarca met his daughter and son-in-law,
Tonya and Kevin Flynn, at a neighborhood bar.  Lamarca had recently been
released from prison for a 1984 conviction for kidnapping and attempted sexual
battery with a weapon.  See Lamarca v. State, 515 So. 2d 309 (Fla. 3d DCA 1987).
Lamarca asked Tonya to borrow the keys to her car, but Kevin refused and offered
to drive Lamarca home instead.   The two left the bar.
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Later that night, Lamarca returned to the bar alone and told Tonya that she
had to pick up Kevin at Joseph Lamarca’s home.  Joseph Lamarca is Anthony
Lamarca’s father.  When they arrived at the otherwise unoccupied house, Lamarca
raped Tonya.  He then appeared from a back room with a rifle in his hand and told
Tonya that he was going to kill himself.   He instructed her to stay put until she
heard gunshots.  After he left the room, Tonya fled to a nearby phone booth and
reported that she heard shots being fired at a nearby residence.  She gave the police
Joseph Lamarca’s address.  When the police arrived at Joseph’s house, they
discovered that the front door looked as though it had been kicked in, and after
obtaining Joseph’s permission to search the residence, they found a rifle.
The police began searching for Anthony Lamarca.  One detective arrived at
Anthony Lamarca’s trailer and spotted Kevin’s body through a window.  Upon
entering the trailer, he found Kevin’s body on the bedroom floor, bullet casings
matching the rifle recovered from Joseph’s residence, and blood splattered
throughout the house.  Lamarca was eventually arrested in Washington where he
was living with Lori Galloway and her adult son, Darren Brown.  Lori and
Lamarca corresponded frequently while Lamarca was in prison, and they were
married shortly after Lamarca’s arrest for the murder of Kevin.   The marriage
ended before Lamarca’s trial.
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At trial, Brown testified on the State’s behalf.  He claimed that Lamarca
arrived in Washington unannounced, carrying very few belongings.  In addition,
James Hughes, Lamarca’s former fellow inmate, testified that Lamarca told him in
July 1995 that Lamarca was planning to kill Lamarca’s son-in-law because the
son-in-law had raped Lamarca’s daughter.  Hughes had charges pending against
him in Charlotte County at the time Lamarca’s trial took place.    Jeremy Smith also
testified for the State, claiming that Lamarca arrived at Smith’s home on the night
of December 2, 1995, and said, “I did it.   I killed him.”  Smith asked who he had
killed, and Lamarca said, “Kevin . . . it really sucked, but I had to do it.”  Smith
testified that he lent Lamarca a shirt to wear that night, even though he and
Lamarca were obviously different sizes.  Smith testified further that he did not
know whose shirt he gave Lamarca because “there were lots of clothes in the
house.”  At the time Lamarca’s case was being investigated, Smith was waiting to
be sentenced for violating probation.  After the evidence and arguments had been
presented, the jury convicted Lamarca of first-degree murder.
At the penalty phase, Lamarca requested to represent himself and refused to
present any mitigating evidence.  The trial judge appointed Lamarca’s penalty
phase counsel as standby counsel.  At the court’s request, Lamarca’s penalty phase
counsel made a statement of the mitigation she would have presented if Lamarca
had not waived his right to counsel and to present mitigation.  This mitigation
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included, among other things, mental health mitigation from Dr. Glenn Caddy as
well as testimony from Lori Galloway regarding Lamarca’s positive characteristics
and his kindness toward Lori and her children.  Lamarca’s penalty phase counsel
stated that she also would have presented testimony from Lamarca’s family
members, but Lamarca was adamant that they not participate.  The jury voted
eleven to one to impose the death penalty, and the trial court agreed with this
recommendation.  The court found one aggravating factor, prior convictions for the
violent felonies in 1984, and determined that the mitigating evidence did not
outweigh this factor.1  The trial court sentenced Lamarca to death.
This sentence was upheld on direct appeal.  Lamarca, 785 So. 2d 1209. 2
1.   The trial court recognized that Lamarca had knowingly and voluntarily
waived his right to present mitigating evidence; yet, it still gave good-faith
consideration to the mitigation in the record.  It found (1) insufficient evidence that
Lamarca was subject to extreme mental or emotional disturbances; (2) Lamarca’s
age of forty was not mitigating; (3) the circumstance that Lamarca was drinking
and angry at his daughter on the day of the offense was unestablished; (4)
insufficient evidence of Lamarca’s work record; (5) Lamarca was generally well-
behaved at trial, but this warranted very little weight; (6) Lamarca suffered from
drug and alcohol abuse, as well as psychological problems, but this warranted very
little weight.
2.   On direct appeal, this Court made a number of findings that are relevant
to Lamarca’s postconviction appeal.  It rejected Lamarca’s claim that the trial court
abused its discretion by admitting evidence surrounding Lamarca’s sexual conduct
with his daughters.  This Court found Tonya’s testimony relevant to establish
Lamarca’s motive for killing Kevin (i.e., to have Tonya for himself).  It also
rejected Lamarca’s claim that the trial court abused its discretion in refusing to
consider proffered mitigating evidence.  This Court found that “[p]roffered
evidence is merely a representation of what evidence the defendant proposes to
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Lamarca’s rule 3.851 amended motion for postconviction relief contained
twenty-three claims.3  The trial court considered twenty-two claims during a five-
present and is not actual evidence.  Because [Lamarca] waived the presentation of
mitigating evidence, he cannot subsequently complain on appeal that the trial court
erred in declining to find mitigating circumstances . . .                                  .”  Lamarca, 785 So. 2d at
1216 (citations omitted).  Finally, this Court found that the death penalty was
proportionate even though only one aggravating factor was present.  This Court
determined that the aggravator was significant, since it was based on a prior
conviction for two violent felonies, and that there was no mitigation.  This Court
also found it significant that Lamarca committed this murder soon after being
released from prison for his first two felonies.
3.   The motion filed by the Capital Collateral Regional Counsel (CCRC)
presented twenty-three claims.  Two of these were rejected at a case management
conference held immediately before the May 29, 2003, evidentiary hearing, and
one claim was added to these after this conference.   Seventeen of these claims
involve ineffective assistance of counsel.   The CCRC claimed that defense counsel
was ineffective for (1) failing to ascertain that the defendant was incompetent to
proceed or psychologically unstable or both during both the guilt and penalty
phase; (2) failing to move to suppress the .22 caliber rifle discovered at the
residence of Lamarca’s father; (3) failing to effectively cross-examine Tonya
Flynn regarding inconsistent statements in regard to the events surrounding the
sexual battery; (4) failing to move for a continuance when the attorneys knew they
were unprepared for trial; (5) failing to take a second deposition of Tonya Flynn
and Tina Lamarca; (6) failing to cross-examine Darren Brown; (7) failing to
present Lori Galloway’s testimony to rebut the State’s argument that Lamarca’s
flight to Washington showed consciousness of guilt; (8) failing to present the
testimony of James Zaccagnino; (9) failing to present the testimony of Steven
Slack to rebut Tonya’s testimony; (10) failing to effectively impeach Jeremy Smith
with his prior conviction concerning dishonesty; (11) failing to effectively cross-
examine the State’s ballistics expert, Dominic J. Denio; (13) failing to effectively
impeach Jeremy Smith on his drug use and not providing an expert witness to do
this; (14) failing to present expert testimony to establish the significance of the lack
of DNA evidence supporting Tonya’s claims of sexual battery; (15) advising Philip
Cohen, Lamarca’s public defender in Pasco County, not to proceed against the
charges of sexual battery even though the State’s case was weak; (16) failing to
obtain a brain scan to detect Lamarca’s possible brain damage; (17) failing to
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day evidentiary hearing.4  In an order dated September 12, 2003, the trial court
denied all of Lamarca’s claims.    For the reasons explained below, we affirm the
trial court’s order and deny Lamarca’s petition for writ of habeas corpus.
3.851 MOTION FOR POSTCONVICTION RELIEF
We begin by addressing Lamarca’s claims for postconviction relief.  When
reviewing a motion for postconviction relief following an evidentiary hearing, this
Court defers to the trial court’s findings of fact as long as these findings are
adequately investigate evidence for mitigation; and (23) failing to effectively argue
that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona,
536 U.S. 584 (2002).  Claims (5), (11), (15), and (16) were not considered in the
trial court’s final order either because they were not supported by the record or
because they were neither supported at the evidentiary hearing nor sufficient to
merit relief as a matter of law.  Two of these ineffective assistance claims, i.e., (7)
and (8), include an allegation that the State violated Brady v. Maryland, 373 US.
83 (1963), or Giglio v. United States, 405 U.S. 150 (1972), by knowingly
presenting false testimony in regard to witnesses.  Finally, six claims involve
allegations other than ineffective assistance of counsel.  These included: (12)
Brady and Giglio violations for not disclosing Jeremy Smith’s alleged deal with
the State; (18) unconstitutional death sentence because only one aggravator is
present; (19) unconstitutional death sentence because sole aggravator is prior
violent felony involving the use of a knife, when the sentence on this prior violent
felony was vacated because the jury never specifically found that the knife was
used; (20) prosecutorial misconduct in the State’s improper argument that a knife
was used; (21) unconstitutional death sentence in light of Ring v. Arizona, 536
U.S. 584 (2002); and (22) that lethal injection constitutes cruel and unusual
punishment.  Claims (21) and (22) were orally denied at the case management
conference held prior to the evidentiary hearing.
4.   The evidentiary hearing took place at two separate times.  On May 29,
2003, the trial court conducted a four-day evidentiary hearing in which it heard
most of the testimony regarding Lamarca’s claims.  On June 27, 2003, the court
heard additional testimony.  It issued its order on September 12, 2003.
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supported by competent, substantial evidence.  Rodriguez v. State, 919 So. 2d
1252, 1268-69 (Fla. 2005).  We affirm the trial court’s denial of each claim.
Lamarca has failed to overcome the strong presumption that his counsel rendered
effective assistance as required by Strickland v. Washington, 466 U.S. 668 (1984).
Moreover, he has failed to establish either a Brady or a Giglio violation.  Finally,
his sentence is not unconstitutional, nor did the trial court abuse its discretion by
allowing the prosecutor who represented the State in Lamarca’s trial to conduct the
evidentiary hearing.  We address each of these claims below.
Ineffective Assistance of Counsel Claims
Most of the claims Lamarca raises in his postconviction motion allege
ineffective assistance of counsel.  Lamarca claims his trial counsel was ineffective
for failing to contact Dr. Glenn Caddy to perform an additional psychological
evaluation to determine if Lamarca was competent to represent himself in the
penalty phase; failing to file a motion for continuance before trial; failing to file a
motion to suppress the rifle seized from Joseph Lamarca’s residence; failing to call
key witnesses; failing to effectively cross-examine key state witnesses; failing to
present mitigating evidence in the penalty phase; and failing to impeach Jeremy
Smith with evidence of his prior misdemeanor.  We affirm the trial court’s denial
of each claim.
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Standard of Review
When considering claims of ineffective assistance of counsel, this Court
applies the following standard:
An ineffective assistance claim has two components: A petitioner
must show that counsel’s performance was deficient, and that the
deficiency prejudiced the defense.  To establish deficient
performance, a petitioner must demonstrate that counsel’s
representation “fell below an objective standard of reasonableness.”
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citation omitted) (quoting Strickland
v. Washington, 466 U.S. 668, 688 (1984)).    The prejudice prong of the analysis
“requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”  Strickland, 466 U.S. at 687.  Failing
to establish either prong results in a denial of the claim.  Ferrell v. State, 918 So. 2d
163, 170 (Fla. 2005).    When reviewing these claims, we defer to the trial court’s
findings of fact regarding the credibility of witnesses and the weight assigned to
the evidence, but we review the performance and prejudice prongs de novo.
Windom v. State, 886 So. 2d 915, 921 (Fla. 2004) (citing Stephens v. State, 748
So. 2d 1028, 1034 (Fla. 1999)).  Lamarca has failed to satisfy the Strickland
standard in any of his claims.
Failure to Inquire into Lamarca’s Competence
Lamarca claims that defense counsel was deficient for failing to order an
additional psychological evaluation when Lamarca informed counsel that he
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planned to represent himself during the penalty phase.  This claim rests largely on
the testimony of Dr. Glenn Caddy, who testified at the evidentiary hearing that
Lamarca became incompetent after hearing his daughter, Tonya Flynn, testify at
trial that he raped her.  Caddy testified that Tonya’s testimony triggered Lamarca’s
posttraumatic stress disorder (PTSD) to the point that Lamarca became
incompetent to represent himself, and Lamarca’s act of banging his head against
the glass during a meeting with his penalty phase counsel confirmed this.
In rejecting this claim, the trial court concluded that “the uncontroverted
testimony of [Lamarca’s defense attorneys] reflects that the defendant acted
rationally, consulted them about his case, and was of sound mind prior to and
during trial.”  This conclusion is supported by competent, substantial evidence, and
Lamarca has not presented evidence sufficient to refute it.
Defense counsel investigated Lamarca’s mental health status well before
trial by hiring Dr. Michael Maher to conduct a psychological evaluation and by
contacting Dr. Caddy numerous times before trial on Lamarca’s behalf.  At
Lamarca’s request, defense counsel arranged a meeting with Lamarca and Dr.
Caddy before the penalty phase and followed up on this meeting with numerous
phone calls.  The trial court also found Lamarca competent to represent himself in
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the penalty phase after conducting a valid Faretta inquiry.5    See Weaver v. State,
894 So. 2d 178, 193 (Fla. 2004) (recognizing that the focus of the Faretta inquiry is
to determine whether the defendant is competent to waive his right to counsel, not
whether a defendant is competent to conduct legal representation), cert. denied,
125 S. Ct. 2297 (2005).
Not only is the trial court’s order supported by competent, substantial
evidence, but the evidence Lamarca offers to refute it is also insufficient.  The trial
court’s order states that Dr. Caddy was “not a particularly credible witness.”  This
Court “recognize[s] and honor[s] the trial court’s superior vantage point in
assessing the credibility of witnesses.”  Stephens v. State, 748 So. 2d 1029, 1034
(Fla. 1999), cited in Davis v. State, 915 So. 2d 95, 130-31 (Fla. 2005).
Furthermore, the mere fact that Lamarca banged his head against the glass is not
sufficient to establish that his attorneys were ineffective for failing to request a
mental health evaluation.  In Koon v. Dugger, 619 So. 2d 246, 250 (Fla. 1993), we
denied an ineffectiveness claim based on defense counsel’s decision not to require
a mental health evaluation even though a defendant was “prone to courtroom
outbursts.”  Because “nothing in the record suggest[ed] that [the defendant] lacked
the ability to consult with his attorney or that he lacked a factual understanding of
the proceeding against him,” his counsel was not ineffective for failing to obtain an
5.   Faretta v. California, 422 U.S. 806 (1975).
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additional competency evaluation.  Id.   The same analysis applies here.  The trial
court’s finding is supported by competent, substantial evidence; therefore, we
affirm the trial court’s order denying this claim.  See Windom, 886 So. 2d at 924-
26 (rejecting ineffectiveness claim for failure to call mental health experts, in part
because the record did not support the testimony of the experts who testified at the
evidentiary hearing).
Failure to File a Motion for Continuance
Lamarca next claims that his attorneys were ineffective for failing to file a
motion for continuance before trial.  The trial court determined that the evidence
Lamarca offered to show counsel was unprepared (i.e., two handwritten notes
dated weeks before trial) was not “sufficient corroborative evidence” to outweigh
defense counsel’s credible testimony that each attorney was prepared for his or her
respective phase of the trial.   We affirm the trial court’s denial of this claim.
Failure to File a Motion to Suppress
Lamarca also asserts that his counsel was deficient for not filing a motion to
suppress the .22 caliber rifle seized from Joseph Lamarca’s home.  Lamarca’s
defense counsel testified that filing a motion to suppress would have been frivolous
because Lamarca lacked standing to contest a search of his father’s, i.e., Joseph
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Lamarca’s, residence,6 and Lamarca presented no evidence to rebut this.  Defense
counsel is not deficient for failing to abide by a defendant’s request when the
request violates an ethical rule.  Lee v. State, 204 So. 2d 245, 249 (Fla. 4th DCA
1967) (recognizing that an attorney’s refusal to file a frivolous appeal at the
defendant’s request did not warrant relief in a postconviction proceeding).
Therefore, this claim is without merit.
Moreover, the record establishes that defense counsel discussed the decision
not to file the motion with Lamarca in advance, and Lamarca agreed with this
decision.  It is well established that “[s]trategic decisions do not constitute
ineffective assistance if alternative courses of action have been considered and
rejected.”   Whitfield v. State, 30 Fla. L. Weekly S759, S760 (Fla. Nov. 3, 2005)
(quoting Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1998)).  Therefore,
Lamarca has failed to establish that his counsel was deficient for failing to file the
motion to suppress.
Failure to Call Key Witnesses
Lamarca next argues that his counsel was ineffective for failing to call Lori
Galloway, James Zaccagnino, Steven Slack, and Suzanne Livingston to testify on
6.   The Rules of Professional Conduct support defense counsel’s position.
Rule 4-3.1 of the Florida Rules of Professional Conduct prohibits an attorney from
“bring[ing] or defend[ing] a proceeding, or assert[ing] or controvert[ing] an issue
therein, unless there is a basis for doing so that is not frivolous.”   The comment
following the rule defines a frivolous action, in part, as one in which the lawyer is
“unable . . . to make a good faith argument on the merits of the action taken.”
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Lamarca’s behalf.  Defense counsel testified that the decision not to present each
of these witnesses was a tactical decision made well in advance of trial.  This
testimony was either uncontroverted or substantiated by other evidence.
Therefore, the trial court properly denied this claim.
Defense counsel testified that he did not call Lori Galloway to testify
because she had made inconsistent and highly incriminating statements to an
investigator hired by the public defender’s office, and these statements were
substantiated by the investigator’s report.  We affirm the trial court’s decision.  See
Marquard v. State, 850 So. 2d 417, 427-29 (Fla. 2002) (denying ineffective
assistance claim for failing to call a witness when defense counsel reasonably
feared the witness would implicate the defendant in the crime).
The decision not to call James Zaccagnino and Steven Slack to testify was
likewise a reasonable strategy.  At the evidentiary hearing, defense counsel
testified that he chose not to call these witnesses because he did not believe either
of them was credible.  He believed Zaccagnino’s hearing difficulties and
significant prison record made him a poor witness.  Furthermore, counsel thought
the uncontroverted fact that Slack had been drinking when he spoke with Tonya
and that Slack contradicted himself in statements made to law enforcement officers
rendered him not credible.  These facts were substantiated at the evidentiary
hearing.  This claim was properly denied.  See Marquard, 850 So. 2d at 428-29
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(denying ineffective assistance claim for failing to call a witness when defense
counsel did not find the witness credible).
Finally, defense counsel testified that his decision not to call Suzanne
Livingston was strategic.  Livingston, the Forensic Services Director for the
Florida Department of Law Enforcement, performed DNA testing in regard to
Tonya’s sexual battery claim.  The report Livingston filed contained some
information that might have been useful in impeaching Tonya’s claims of sexual
battery, and Lamarca now alleges that defense counsel was deficient for not calling
her to testify at trial.
At the evidentiary hearing, counsel testified that he did not call Livingston to
testify because he did not want to open the door for the State to admit evidence that
would have bolstered Tonya’s testimony.   Before the guilt phase, defense counsel
had filed a pretrial motion in limine to prevent Tonya’s testimony.  The trial court
ruled that Tonya’s testimony would be admitted for the limited purpose of placing
the murder weapon in Lamarca’s possession.    Defense counsel testified at the
evidentiary hearing that he did not want to expand this limitation by admitting too
much evidence impeaching Tonya’s testimony.  Moreover, if defense counsel had
called Livingston to the stand, the State could have questioned her about other
aspects of her report, which contained highly incriminating evidence supporting
Tonya’s claim.  The trial court found that defense counsel knew the importance of
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Tonya’s sexual battery claim to Lamarca’s case.  In his closing argument, counsel
extensively argued the lack of DNA evidence supporting Tonya’s testimony.
Therefore, defense counsel was not deficient in failing to call an additional expert
to confirm this.
Failure to Effectively Cross-Examine Key State Witnesses
Lamarca claims his counsel was ineffective in failing to effectively cross-
examine Tonya Flynn and Darren Brown.7  As the trial court recognized, defense
counsel’s decision to limit the cross-examination of each of these witnesses was
reasonable trial strategy.
Defense counsel testified that he strategically limited his cross-examination
of Tonya and Darren in order to avoid opening the door to potentially
incriminating information that would not otherwise have been admissible.  As
explained above, the admissibility of Tonya’s testimony was limited to placing the
murder weapon in Lamarca’s possession.  Strategically, defense counsel did not
want to free the State from this limitation by impeaching Tonya’s credibility and,
7.   Lamarca also claimed his counsel was ineffective for failing to call the
State’s ballistics expert, Dominic Denio, to testify to the fact that gunpowder was
evident only on the passenger’s side door.   Lamarca failed to support this claim at
the evidentiary hearing, and the trial court appropriately dismissed it without
further consideration.  Even if Lamarca had raised it, it would have been without
merit because defense counsel’s decision not to call Denio was reasonable.  The
evidence presented at trial established that Tonya drove Lamarca to Joseph’s home
after Lamarca returned from shooting Kevin.  The gunpowder on the passenger’s
side door, then, could have incriminated Lamarca.
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thereby, allowing the State to introduce evidence to rehabilitate it.  Instead, in his
closing argument, defense counsel challenged the credibility of Tonya’s testimony.
As to Darren Brown, defense counsel limited his cross-examination because he
feared an aggressive cross-examination would bring out Brown’s earlier statement
that Lamarca had confessed to killing Kevin.
We have long recognized that strategic decisions by trial counsel are
“virtually unchallengeable.”   Downs v. State, 453 So. 2d 1102, 1108 (Fla. 1984);
see also Davis v. State, 915 So. 2d 95, 115 (Fla. 2005) (recognizing that “counsel
[i]s not ineffective in exercising his decision to discontinue further investigation
into matters that were already known to him and that he had strategically
determined should not be presented to the jury”), cert. dismissed, No. 05-8805
(U.S. Mar. 30, 2006).  The trial court’s denial of this claim is affirmed.
Failure to Present Mitigating Evidence in the Penalty Phase
Lamarca claims that his attorneys were ineffective for failing to present
evidence of mitigation in the penalty phase.  This claim is without merit.  First,
Lamarca represented himself during the penalty phase; therefore, he cannot claim
his trial counsel was deficient for decisions he made in conducting his defense
during this phase.  Second, as the trial court recognized, the “record is replete with
references to [Lamarca’s] decisions to waive mitigation” and “abundantly
demonstrates that [Lamarca’s penalty phase counsel] began preparing for the
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penalty phase many months prior to trial.”   Finally, even if this were not the case,
the trial court followed the procedures required to ensure Lamarca knowingly
waived his right to present mitigation.
In Koon, this Court recognized that defense counsel is not ineffective for
honoring a criminal defendant’s request that mitigating evidence not be presented
in his case if counsel adequately investigated the potentially mitigating factors.
619 So. 2d at 249-50.  To ensure that counsel has adequately investigated
mitigation, this Court requires defense counsel to “inform the court on the record
of the defendant’s decision [not to present mitigating evidence],” indicate whether
counsel believes mitigating evidence exists and, if so, briefly describe that
mitigating evidence to the court.  Id. at 250.  Then, the trial court must confirm
with the defendant that his counsel discussed the matter of mitigation with him and
that despite counsel’s recommendation, the defendant wishes to waive presentation
of mitigating evidence in the penalty phase.  Id.    Even though the trial court
accepted Lamarca’s request to represent himself, it still followed these procedures.
The trial court asked Lamarca’s penalty phase counsel to proffer the mitigating
evidence she would have presented on Lamarca’s behalf, and her statement
addressed the issues Lamarca now claims she was ineffective for not raising.  The
trial court required Lamarca to confirm his defense counsel’s assertion that he did
not want to present mitigation.  Lamarca intelligently responded to the trial court’s
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questions, reserving the right to cross-examine the State’s witnesses and making it
clear that he wanted to offer a closing statement.  We affirm the trial court's denial
of this claim.
Failure to Impeach Jeremy Smith with Evidence of Prior Misdemeanor
Lamarca fails to satisfy the prejudice prong of Strickland in his claim that
defense counsel was ineffective for not impeaching Smith with evidence of
Smith’s prior conviction for a misdemeanor.  The trial court found that Smith “was
already impeached on the basis of his prior criminal history” because on direct, he
testified to one felony conviction involving dishonesty.  The fact that defense
counsel failed to elicit an additional, lesser prior conviction does not require a
finding of ineffective assistance.  See Mansfield v. State, 911 So. 2d 1160, 1174
(Fla. 2005) (rejecting ineffectiveness claim based on failure to elicit federal
charges pending against State’s witness because the appellant failed to show how
the outcome would have been different if the witness’s full record had been
known).  Therefore, we affirm the trial court’s denial of this claim.
Prosecutorial Misconduct Claims
Lamarca makes a number of allegations that the State violated Brady and
Giglio.8  We affirm the trial court’s finding that Lamarca failed to establish either a
8.   Lamarca’s other claims of prosecutorial misconduct, i.e., that the
prosecutor displayed photographs to the jury in violation of a court order and that
the prosecutor improperly referred to the use of a knife in the commission of the
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Brady or a Giglio violation in regard to any of these claims.  As we explain below,
Lamarca did not establish that the prosecution suppressed either Lori or
Zaccagnino’s testimony.  He also did not establish that the State put forth false
testimony by presenting Brown, Hughes, and Smith as witnesses.  Finally, the
record does not support Lamarca’s claims that the State made deals with either
Smith or Hughes in exchange for their testimony.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme
Court held that a prosecutor’s suppression of evidence favorable to the accused
“violates due process where the evidence is material either to guilt or to
punishment.”  To establish a Brady violation, a defendant must establish three
elements: (1) the evidence at issue was favorable to the defendant, because it was
either exculpatory or impeaching; (2) the evidence was suppressed by the State;
and (3) the suppression resulted in prejudice.  Johnson v. State, 30 Fla. L. Weekly
S207, S212 (Fla. Mar. 31, 2005).  In Giglio v. United States, 405 U.S. 150, 153-54
(1972), the Supreme Court extended Brady to claims that a key state witness gave
false testimony that was material to the trial.  To establish a claim under Giglio, a
defendant must prove (1) the testimony given was false; (2) the prosecutor knew
offense for which Lamarca was previously convicted, are procedurally barred
because they could have been raised on direct appeal.  See Spencer v. State, 842
So. 2d 52, 60-61(Fla. 2003) (rejecting claims of prosecutorial misconduct because
the basis for the claims was reflected in the trial record and, therefore, the claims
should have been raised on direct appeal).
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the testimony was false; and (3) the statement was material.  Suggs v. State, 30 Fla.
L. Weekly S812, S813 (Fla. Nov. 17, 2005).  When reviewing these claims on
appeal, our standard of review is similar to that employed in ineffective assistance
of counsel claims.  We defer to the trial court’s findings of fact but independently
determine whether the facts are sufficient to establish the elements required in each
claim.  Id.  We agree with the trial court that Lamarca failed to establish the
elements required in either of these claims.
First, Lamarca failed to establish that the State suppressed either Lori’s or
Zaccagnino’s testimony.    The uncontroverted evidence presented at the
evidentiary hearing establishes that defense counsel was aware of both witnesses’
testimony.  See Johnson, 30 Fla. L. Weekly at S212 (“The State cannot be said to
have suppressed evidence that the defendant himself had knowledge of.”).  At the
evidentiary hearing, Lamarca’s penalty phase counsel testified that she was aware
Lori had made statements contradicting Brown’s testimony, but defense counsel
chose not to call Lori to testify because she had made contradictory and
incriminating statements to the defense investigator that could have been elicited
on cross-examination.  In addition, Lamarca’s guilt phase counsel testified that he
knew Zaccagnino would testify against Hughes; however, defense counsel did not
find Zaccagnino credible enough to put on the stand.   Therefore, Lamarca failed to
establish the second prong of Brady in respect to these claims.  See id.
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Lamarca also failed to establish that either Brown, Hughes, or Smith
testified falsely or that the State knew their testimony was false.  Consequently,
Lamarca has failed to establish either the first or the second prong of Giglio in
regard to these claims.  See Gorby v. State, 819 So. 2d 664, 679 (Fla. 2002)
(denying Giglio claim because appellant failed to establish that the witness
presented false testimony or that the State knew the witness’s testimony was false).
The fact that Lori’s testimony at the evidentiary hearing contradicted Brown’s
testimony at trial does not establish that Brown’s testimony was false.  As the trial
court recognized, Lori gave statements contradicting her testimony to the defense
investigator before trial, and this earlier statement was consistent with other
testimony presented at trial.9  Similarly, the fact that Zaccagnino, a convicted felon
and a close friend of Lamarca, contradicted Hughes’ testimony is not sufficient to
establish that Hughes’ testimony was false, nor does the fact that Smith could not
have lent his shirt to Lamarca contradict Smith’s trial testimony that Smith lent a
shirt to Lamarca.  At trial, Smith was questioned about the fact that it would have
been impossible for Lamarca to fit into Smith’s clothing, and Smith responded that
9.    Lori’s earlier statement was that Lamarca was on the run.  She later
denied making this statement; however, it was contained in the defense
investigator’s report, which was included as an exhibit in the record.  This
statement was also consistent with Detective Kennedy’s testimony that, within
hours of the incident, he saw Lamarca walking shirtless along a road in Pasco
County and that Lamarca ran when he saw the marked police vehicle.
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he did not know whose shirt he lent Lamarca because “there were lots of clothes in
the house.”  We affirm the denial of these Giglio claims.
Finally, the record does not support Lamarca’s claim that the State
suppressed deals made with either Hughes or Smith in exchange for their
testimony.  The trial court’s order denying these claims is supported by competent,
substantial evidence.  While the record shows that the attorneys working on
Hughes’ and Smith’s respective trials were aware that each defendant participated
in Lamarca’s trial, the record refutes Lamarca’s allegations that either man’s
testimony in Lamarca’s case resulted from a deal with the State.  Because the
record contradicts Lamarca’s allegations that either man’s testimony was part of a
deal, we affirm the trial court’s denial of this claim.    See Mansfield, 911 So. 2d at
1178 (denying Giglio claim alleging witness lied by testifying that he did not
expect to receive any benefit from testifying because the “postconviction court
found there was no evidence that [the witness] was promised any benefit in
exchange for his testimony”).
The trial court found no evidence that Hughes received a benefit for
testifying in Lamarca’s case, and this finding is supported by competent,
substantial evidence.  The assistant state attorney who prosecuted Hughes’ case in
Charlotte County at the time of Lamarca’s trial testified at the evidentiary hearing
that he never made a deal with anyone in Pinellas County.  His handwritten notes
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indicate that he was aware Hughes was involved in a trial in Pinellas County but
that he never spoke with anyone in Pinellas County about securing a deal.  While
Hughes did receive a downward departure, there is no evidence this sentence was
promised to Hughes in advance or given in exchange for Hughes’ testimony in
Lamarca’s case.  In fact, the assistant state attorney assigned to Hughes’ Charlotte
County trial did not even participate in the negotiations regarding Hughes’ ultimate
sentence.   He was instructed to adhere to the State’s original offer, which was in
accordance with the office’s guidelines and not in accordance with any deal.  At
the evidentiary hearing, he testified that Hughes received a lesser sentence only
after tough negotiations between a public defender who had a reputation for
“mov[ing] cases” and an assistant state attorney with more authority than he to
negotiate pleas.
In regard to Smith’s trial, the record fails to establish that any benefit he
received from testifying at Lamarca’s trial came as the result of a deal.  While the
trial judge delayed Smith’s sentencing hearing in order to allow Smith’s defense
counsel to put forth evidence that Smith was participating in Lamarca’s trial,
Lamarca failed to put forth any evidence establishing that this benefit was
promised in advance or was part of a deal.  At the evidentiary hearing, Smith’s
defense counsel at this sentencing hearing testified that the trial judge did not agree
to lessen Smith’s sentence based on evidence that Smith participated in Lamarca’s
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trial.  Moreover, the transcript from the sentencing hearing confirms this.  While
both an assistant state attorney and a state investigator assigned to Lamarca’s case
testified at Smith’s sentencing hearing that Smith had cooperated in Lamarca’s
case, both also made it clear that their testimony at this hearing was not part of any
deal.   The assistant state attorney assigned to Lamarca’s case specifically stated on
the record at Smith’s sentencing hearing, “There’s no deal.  No wink of the eye or
anything with regard to Mr. Smith.  He’s here before Your Honor as a straight-up
plea as far as we’re concerned.”  Lamarca has not established that either Hughes’
or Smith’s testimony came as a result of a deal; therefore, we affirm the trial
court’s denial of this claim.
Unconstitutional Sentence
Lamarca claims that his death sentence is unconstitutional because it is
based on a single aggravator.  This claim is procedurally barred because this Court
addressed and rejected this claim on direct appeal when it determined that the
death penalty was a proportionate sentence.  Lamarca, 785 So. 2d at 1216-17; see
also Vining v. State, 827 So. 2d 201, 213 (Fla. 2002) (finding defendant’s claim
that death sentence is unconstitutional was procedurally barred because it could
have been raised on direct appeal).   Therefore, we deny this claim.
Error in Allowing Prosecutor to Represent the State at Evidentiary Hearing
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Finally, the trial court did not err in allowing the prosecutor who represented
the State during Lamarca’s trial to also represent the State at the evidentiary
hearing even though the prosecutor knew he would be called as a witness at this
hearing in regard to a Brady or Giglio claim.  In Scott v. State, 717 So. 2d 908, 910
(Fla. 1998), this Court held that rule 4-3.7 of the Rules Regulating the Florida Bar
does not prohibit an attorney from acting as both an attorney and a witness “where
the state attorney was called as a witness for the other side on a Brady claim in a
postconviction evidentiary hearing before a judge.”  Lamarca has not presented
any evidence that the prosecutor went beyond what is authorized in Scott;
therefore, we deny this claim.
PETITION FOR WRIT OF HABEAS CORPUS
Having denied Lamarca’s claims for postconviction relief, we now address
the four claims raised in his petition for writ of habeas corpus.  In this petition,
Lamarca claims his death sentence is unconstitutional under Ring v. Arizona, 536
U.S. 584 (2002); the trial court conducted an invalid inquiry under Faretta v.
California, 422 U.S. 806 (1975); he was denied the right to participate in jury
selection; and the trial court improperly dismissed  certain jurors for cause.  These
claims are without merit; therefore, we deny relief.
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Sentence Unconstitutional Under Ring
Lamarca’s claim that his death sentence is unconstitutional because Florida’s
death penalty scheme violates Ring is without merit.  Lamarca’s death sentence
became final when the United States Supreme Court denied his petition for writ of
certiorari on October 1, 2001.  This was before Ring was decided.  Both the United
States Supreme Court and this Court have held that Ring does not apply
retroactively.  See Schiro v. Summerlin, 542 U.S. 348, 358 (2004); Johnson v.
State, 904 So. 2d 400 (Fla. 2005).
Inadequate Faretta Inquiry
Lamarca’s claim that the trial court erred in allowing him to represent
himself during the penalty phase is also without merit.  The trial court followed the
requirements of Faretta v. California, 422 U.S. 806 (1975), when deciding that
Lamarca was competent to represent himself.  The fact that Lamarca made an
inappropriate or unwise statement to the jury does not negate the trial court’s
determination.  The uncontroverted testimony at the postconviction hearing as well
as the evidence presented at trial support the trial court's finding.
In Faretta, the United States Supreme Court recognized that “the Sixth
Amendment grants to each criminal defendant the right of self-representation,
regardless of consequences.”  State v. Bowen, 698 So. 2d 248, 250 (Fla. 1997).
Nevertheless, because the consequences can be severe, trial courts are required to
- 27 -

make the defendant “aware of the dangers and disadvantages of self-representation,
so that the record will establish that ‘[the defendant] knows what he is doing and
that his choice is made with his eyes wide open.’”   Hernandez-Alberto v. State,
889 So. 2d 721, 729 (Fla. 2004) (quoting Faretta, 422 U.S. at 835).  When the trial
transcript reveals that the defendant is “literate, competent, and understanding” and
has been apprised of his rights, this Court will uphold the inquiry.  Smith v. State,
407 So. 2d 894, 900 (Fla. 1981) (quoting Faretta, 422 U.S. at 835); see also
Weaver v. State, 894 So. 2d 178, 192 (Fla. 2004) (recognizing that “[a] trial court
may not impose counsel on a ‘literate, competent, and understanding’ defendant
who has voluntarily waived his right to counsel”).  The penalty phase transcript
reveals that these requirements were met in Lamarca’s case.  The trial judge
informed Lamarca that he would be at a “great disadvantage” because he did not
have the legal training of the state attorney, and on numerous occasions the judge
expressed his disproval of Lamarca’s decision.  The judge questioned Lamarca
about his prior experience in the criminal justice system, recognizing that he had
participated in two jury trials prior to this penalty phase, and the judge also
considered Lamarca’s mental condition, noting that his interactions with Lamarca
during the many stages of trial indicated that Lamarca was intelligent and
competent.  In the end, the trial judge found that Lamarca was intelligent and that
he had knowingly and voluntarily asserted his right to represent himself.
- 28 -

Moreover, Lamarca presented no competent evidence to refute this finding.
The statement Lamarca relies on to assert his claim of incompetence was part of a
concise, well-articulated speech in which Lamarca declared that the jury wrongly
convicted him.   The fact that this argument was not wise legal strategy in the
penalty phase does not support Lamarca’s claim that the Faretta inquiry was
invalid.  See Weaver, 894 So. 2d at 193 (recognizing that the purpose behind the
Faretta inquiry is to determine whether the defendant is competent to waive his
right to counsel, “not whether [the defendant] is competent to provide an adequate
defense”).
Furthermore, Lamarca’s competence was an issue in a number of claims
raised at the evidentiary hearing upon postconviction review.  None of the
evidence presented at this hearing supports Lamarca’s claim that he was
incompetent or suicidal at trial.  In fact, even Dr. Caddy, the expert who testified
on Lamarca’s behalf at the evidentiary hearing, contradicted Lamarca’s assertion
that he was suicidal.  Dr. Caddy testified that Lamarca’s PTSD and prior prison
experience created in him a fierce instinct to protect himself and control the
situation.  He specifically stated:                                                    “Mr. Lamarca did not want to die.  He didn’t
want to die then, and over the last number of years he hasn’t wanted to die either,
but he felt his only vehicle to assert his sense of strength and ego was to do
- 29 -

something.”  Lamarca has not established that the trial court erred in allowing him
to represent himself during the penalty phase.
Exclusion from Participating in Jury Selection
Lamarca also claims that his appellate counsel was ineffective for not
challenging the dismissal of jurors for cause at a sidebar conference where
Lamarca’s counsel was present.  To prevail on a claim of ineffective assistance of
appellate counsel in a habeas petition, Lamarca must show (1) specific errors or
omissions by appellate counsel that “constitute a serious error or substantial
deficiency falling measurably outside the range of professionally acceptable
performance,” and (2) that the “deficiency in performance compromised the
appellate process to such a degree as to undermine confidence in the correctness of
the result.”  Dufour v. State, 905 So. 2d 42, 70 (Fla. 2005) (quoting Pope v.
Wainwright, 496 So. 2d 798, 800 (Fla. 1986)).   Appellate counsel cannot be
declared ineffective for failing to raise a meritless claim.  State v. Knight, 866 So.
2d 1195, 1204 (Fla. 2003).
Lamarca’s claim is without merit because he has not established that his
constitutional right to meaningfully participate in jury selection was violated.  Jury
selection in his case occurred on November 3, 1997, after the 1996 amendments to
Florida Rule of Criminal Procedure 3.180(a)(4) took effect.  See Amendments to
Fla. Rules of Criminal Procedure, 685 So. 2d 1253, 1254-55 (Fla. 1996).  These
- 30 -

amendments recognize that when a defendant is physically present at a courtroom
proceeding, his right to participate in a sidebar conference is satisfied if he is given
a meaningful opportunity to participate through counsel.  See id. at 1254 n.2; see
also Fla. R. Crim. P. 3.180(a)(4), (b).
The requirements of this rule were satisfied in Lamarca’s case.  The record
reveals that Lamarca was physically present in the courtroom when the sidebar
took place and that he was given the opportunity to meaningfully participate
through his attorneys.  The court began the sidebar by asking Lamarca’s attorneys
if Lamarca waived his right to be present at the sidebar.  When counsel affirmed,
the court gave both the State and the defense an opportunity to object to each juror
the court suggested excusing, and after the sidebar ended, the court excused six
jurors in open court.  Neither Lamarca nor his trial counsel objected.
We recognize that before rule 3.180 was amended in 1996, this Court held
that rule 3.180 granted criminal defendants the right to be “physically present at
the immediate site where pretrial juror challenges are exercised.”  Coney v. State,
653 So. 2d 1009, 1013 (Fla. 1995).  This holding, however, was superseded by the
1996 amendments that took effect January 1, 1997.  See Amendments to the Fla.
Rules of Criminal Procedure, 685 So. 2d 1253, 1254 n.2, 1255 (Fla. 1996).  Rule
3.180(b) now recognizes that when a defendant is physically present at a
courtroom proceeding, his opportunity to meaningfully participate in this
- 31 -

proceeding can be satisfied “through counsel.”  Because jury selection in
Lamarca’s case occurred after the amendments took effect, this language applies to
his case.  See Carmichael v. State, 715 So. 2d 247, 248 n.1 (Fla. 1998)
(recognizing Coney applies only to those cases where the jury selection occurred
after Coney was issued and before the 1996 amendments took effect); see also
Rincon v. Crosby, No. 803CV1138T17MAP, 2005 WL 1705472 *1, *5 (M.D. Fla.
July 19, 2005) (denying habeas petition, in part, because Coney does not apply to a
trial that occurred in 1998).  Furthermore, even if Coney applied to Lamarca’s
case, Lamarca would still not be entitled to relief.  Neither Lamarca nor his trial
counsel timely objected to his absence at the sidebar; therefore, he has not
established that his right to be present was violated.  Neal v. State, 713 So. 2d
1002, 1003 (Fla. 1998) (denying defendant’s claim that Coney entitled him to a
new trial because neither “he [n]or his lawyer expressed any interest in [the
defendant] being present at the bench” during jury challenges).
In summary, Lamarca’s claim that his right to participate in jury selection
was compromised by the sidebar is without merit; therefore, appellate counsel
cannot be found ineffective for failing to raise this on appeal.  See Valle v. Moore,
837 So. 2d 905, 907-08 (Fla. 2002) (recognizing that appellate counsel cannot be
deemed ineffective for failing to raise a meritless claim).
- 32 -

Invalid Cause Challenges
Lamarca’s final claim is that his appellate counsel was ineffective for not
challenging the trial court’s decision to strike certain jurors for cause without
explicitly providing the statutory basis for these cause challenges.  Trial courts
have broad discretion in deciding whether to strike a juror for cause.  Busby v.
State, 894 So. 2d 88, 96 (Fla. 2004) (requiring a trial court to excuse a juror for
cause if any reasonable doubt exists regarding his ability to render an impartial
recommendation as to punishment), cert. denied, 125 S. Ct. 2976 (2005); Davis v.
State, 859 So. 2d 465, 473 (Fla. 2003) (quoting Fernandez v. State, 730 So. 2d 277,
281 (Fla. 1999), for the proposition that “[i]t is within a trial court’s province to
determine whether a challenge for cause is proper, and the trial court’s
determination of juror competency will not be overturned absent manifest error”).
Lamarca has failed to establish that the trial court abused its discretion here.  While
the court did not indicate which provision of section 913.03, Florida Statutes
(1997), justified its decision to strike each juror, the court allowed the State and
defense counsel the opportunity to object to the dismissals.  Moreover, even if
Lamarca is correct that the judge improperly dismissed these jurors, Lamarca has
not shown he was prejudiced by this decision.  In fact, one of the jurors whom
Lamarca now contests was excused at defense counsel’s request.  This claim is
without merit.
- 33 -

CONCLUSION
For the reasons explained above, we affirm the trial court’s order denying
relief in Lamarca’s motion for postconviction relief and deny the petition for writ
of habeas corpus.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and
BELL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
An Appeal from the Circuit Court in and for Pinellas County,
Brandt C. Downey, III, Judge - Case No. 95-20270 CFANO-I
And an Original Proceeding - Habeas Corpus
John W. Jennings, Capital Collateral Regional Counsel, Middle Region, Peter C.
Cannon and Daphney Gaylord, Assistant CCR Counsels, Tampa, Florida,
for Appellant/Petitioner
Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, and Scott A. Browne,
Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
- 34 -

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