SC04-2380 – Leonardo Franqui v. State Of Florida

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Supreme Court » 2007 » SC04-2380 – Leonardo Franqui v. State Of Florida

State: Florida

Court: Supreme Court

Docket No: sc04-2380

Case Date: 05/03/2007

Plaintiff: SC04-2380 – Leonardo Franqui

Defendant: State Of Florida

Preview:Supreme Court of Florida
No. SC04-2380
LEONARDO FRANQUI,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
No. SC06-36
LEONARDO FRANQUI,
Petitioner,
vs.
JAMES R. MCDONOUGH, etc.,
Respondent.
[May 3, 2007]
PER CURIAM.
Franqui appeals an order of the circuit court denying his motion to vacate his
conviction of first-degree murder and sentence of death filed 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 expressed
below, we affirm the circuit court’s order denying postconviction relief and deny
Franqui’s habeas petition.
FACTS AND PROCEDURAL HISTORY
The facts of this crime are set forth in our opinion from Franqui’s direct
appeal after resentencing, Franqui v. State, 804 So. 2d 1185 (Fla. 2001) (Franqui
II).  For the purposes of these proceedings, we note that Franqui was convicted of
first-degree murder of a law enforcement officer, armed robbery, aggravated
assault, two counts of grand theft, and two counts of burglary following the
robbery of Kislak National Bank in North Miami.   Id. at 1189-90.  Franqui was
sentenced to death by the trial court after a jury recommended a death sentence by
a vote of nine to three.   Id. at 1190.  Franqui’s convictions were affirmed on his
first direct appeal but his case was remanded for resentencing.  See Franqui v.
State, 699 So. 2d 1332, 1333 (Fla. 1997) (Franqui I).  After a new penalty phase,
Franqui was again sentenced to death after a jury recommendation for death by a
vote of ten to two.   Franqui II, 804 So. 2d at 1190.  In sentencing Franqui to death,
the judge found three aggravating circumstances,1 no statutory mitigating
1.   The trial court found the following aggravators:  prior conviction for a
capital or violent felony (great weight); the murder was committed during the
course of a robbery and for pecuniary gain (merged) (great weight); and the murder
- 2 -

circumstances,2 and four nonstatutory mitigating circumstances.3   Id. at 1191.  In
his second direct appeal to this Court, Franqui raised six claims for relief.  Id.  This
Court rejected all six claims and affirmed Franqui’s death sentence.  Id. at 1199.
Franqui filed a rule 3.851 petition for postconviction relief on April 7, 2003,
raising eighteen claims for relief.4   The trial court granted an evidentiary hearing
was committed to avoid arrest and hinder law enforcement and the victim was a
law enforcement officer (merged) (great weight).   Franqui II, 804 So. 2d at 1191
n.2.
2.   The trial court considered but rejected the age mitigators, and found no
other statutory mitigators.  Id. at 1191 n.3.
3.   The trial court found the following four nonstatutory mitigating
circumstances:  Franqui’s relationship with his children (little weight); his
cooperation with authorities (little weight); that his codefendants only received life
sentences (little weight); and his self-improvement and faith while in custody
(some weight).  Id. at 1191 n.4.
4.   Franqui raised the following postconviction claims to the trial court:   (1)
the procedure for the assignment of trial judges in Dade County criminal cases is
inherently unfair, particularly in Franqui’s case; (2) the circumstances surrounding
Franqui’s waiver of his right to testify show that the waiver was involuntary and
unknowing; (3) the circumstances surrounding his confession make Franqui’s
statement unreliable, illegal and inadmissible; (4) the trial court denied Franqui the
right to obtain evidence from a material, relevant witness; (5) Franqui was denied
due process when the second sentencing court allowed his statement to be admitted
into evidence but failed to permit the defense to present evidence on the confession
issues; and (6) trial counsel was ineffective for [a] making no effort to litigate the
suppression of Franqui’s statement despite ample and compelling evidence for
suppression; [b] failing to pursue Franqui’s right to obtain evidence from a
material, relevant witness; [c] failing to present witnesses; [d] resentencing counsel
failed to litigate Franqui’s filed suppression motion apparently because both he and
the judge mistakenly believed that the confession issue had already been litigated
and lost in the Florida Supreme Court; [e] resentencing counsel failed to challenge
- 3 -

on four claims:  whether the waiver of his right to testify was voluntary, whether
counsel was ineffective for failing to prosecute a motion to suppress his
confession, whether counsel was ineffective for failing to present relevant
witnesses at a hearing on Franqui’s motion to suppress, and whether counsel was
ineffective for failing to litigate the involuntary nature of his confession to the
sentencing jury.  The trial court ultimately denied postconviction relief on all
claims.  Franqui now appeals that decision to this court, raising eight claims of trial
court error.  He has also filed a petition for writ of habeas corpus in this Court.
Franqui was also sentenced to death for the first-degree murder of Raul
Lopez during the robbery of a check-cashing business in Hialeah (the “Hialeah
murder”).  Franqui v. State, 699 So. 2d 1312, 1315 (Fla. 1997).  On direct appeal,
this Court found error regarding the admission of evidence but found that error to
be harmless and affirmed Franqui’s convictions and sentences, including his death
sentence.   Id.  Franqui subsequently filed a 3.851 motion for postconviction relief
the voluntariness of Franqui’s confession to the jury; [f] resentencing counsel
failed to challenge the constitutionality of Florida’s death penalty scheme; [g]
failing to file a motion to dismiss the charges against Franqui based on patent
deficiencies in the indictment; [h] failing to present neutral reasons for exercising a
peremptory challenge against panel member Diaz, resulting in that juror being
seated; [i] failing to preserve patent trial court error in preventing a defense strike
against prospective juror Andani; [j] failing to litigate Franqui’s request for
individual voir dire and motion to sequester; [k] failing to preserve patent trial
court error in allowing the State to peremptorily challenge prospective juror
Pascual; [l] failing to object to the prosecutor’s misstatement of the law in closing;
and [m] appellate counsel’s failure to raise the issue of prosecutorial misconduct.
- 4 -

in that case.  That motion was also denied by the trial court and review by this
Court is pending in a separate appeal.
POSTCONVICTION CLAIMS
1.   Ineffective Assistance of Trial Counsel
Franqui alleges that his trial counsel, Eric Cohen, was ineffective for failing
to litigate the motion to suppress Franqui’s confession, failing to present mental
health mitigation and evidence of coercion at Franqui’s resentencing, and for
conduct during voir dire regarding two potential jurors.
Based upon the United States Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), this Court has held that for ineffective
assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.  A court
considering a claim of ineffectiveness of counsel need not make a
specific ruling on the performance component of the test when it is
clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted).
Because both prongs of the Strickland test 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 competent, substantial evidence, but
- 5 -

reviewing the circuit court’s legal conclusions de novo.  See Sochor v. State, 883
So. 2d 766, 771-72 (Fla. 2004).
There is a strong presumption that trial counsel’s performance was not
ineffective.  See Strickland, 466 U.S. at 690.   “A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”   Id. at 689.  The
defendant carries the burden to “overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’ ”
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).   “Judicial scrutiny of
counsel’s performance must be highly deferential.”  Id.  In Occhicone v. State, 768
So. 2d 1037, 1048 (Fla. 2000), this Court held that “strategic decisions do not
constitute ineffective assistance of counsel if alternative courses have been
considered and rejected and counsel’s decision was reasonable under the norms of
professional conduct.”  We have also explained that where this Court has
previously rejected a substantive claim on the merits, counsel cannot be deemed
ineffective for failing to advance the same claim in the trial court.   Melendez v.
State, 612 So. 2d 1366, 1369 (Fla. 1992).
A.  Failure to Litigate the Motion to Suppress Franqui’s Confession
- 6 -

Franqui raised a number of claims in the trial court involving an assertion
that trial counsel did not properly litigate a motion to suppress Franqui’s
confession.  Prior to the guilt phase in the instant trial, defense counsel agreed to
the trial court’s use of the transcripts from a hearing on a similar suppression
motion filed in the Hialeah murder case.  Upon review, we find no fault with the
lower court’s conclusion that trial counsel’s decision to stipulate to the use of the
transcripts from the Hialeah case hearing was reasonable.5
After being detained and questioned, Franqui gave two separate statements
to the police on the same day regarding both the instant crime and the Hialeah
murder, and trial counsel ultimately moved to suppress both confessions in each
case.  However, the evidentiary hearing on the motion to suppress the Hialeah
statement occurred a little more than one year prior to the hearing on the instant
motion to suppress.  The record of the hearing in the Hialeah case indicates that the
focus of that hearing was on both the circumstances of the instant crime and
statement as well as the Hialeah crime and confession.  The testimony from all of
the witnesses presented at that hearing, Franqui included, focused on both
statements:  the officers detailed when Franqui was read his rights during the day
and in relation to which crime, and defense counsel Cohen questioned each of
5.   Inasmuch as Franqui claims that original trial counsel did not take any
action at the suppression hearing in the instant case, this claim is clearly refuted by
the record; accordingly, this claim will be treated as if Franqui asserts that the
assistance trial counsel did provide was ineffective.
- 7 -

them in great detail, including asking them to specify at which points Franqui
supposedly agreed to keep talking without counsel present.  Thus, the underlying
circumstances relating to the issues Franqui is now claiming were not fully
explored in the instant hearing were in fact comprehensively explored during the
previous hearing in the Hialeah case in front of the same judge and with the same
parties.  As defense counsel Cohen explained to the court in agreeing to the
stipulation for use of the transcripts, any testimony and cross-examination of
Officers Crawford, Rivers and Smith was likely to be “identical.”6   Under these
circumstances, defense counsel could have reasonably concluded that requiring
these officers to be called again was unnecessary and potentially
counterproductive.   Given the comprehensive nature of the first hearing in the
Hialeah case on a statement taken the exact same day arising out of the same
interrogation and involving all of the same parties, being heard in front of the same
judge, we find no error in the postconviction court’s conclusion that Cohen acted
reasonably in stipulating to the use of the prior testimony of Rivers, Crawford and
Smith at the hearing on the instant motion to suppress.
6.   In addition, Cohen did assert a claim at the suppression hearing relating
to Detective Naboot overhearing a conversation between Franqui and his wife in
which he told her that he shot at the officer but his was not the fatal bullet.  Cohen
would not stipulate to any testimony in this regard and instead deposed Naboot and
was granted a separate suppression hearing on the issues raised.
- 8 -

Franqui asserts further, however, that despite the comprehensive nature of
the prior hearing, trial counsel was ineffective at the instant suppression hearing for
failing to present evidence of Franqui’s mental illness and expert testimony on
coerciveness.  First, Franqui argues that trial counsel should have presented
evidence of his supposed mental illness at the suppression hearing to demonstrate
that Franqui was not capable of making a valid waiver of his rights when making
his confession.  He asserts that defense counsel should have presented a letter from
Dr. Jethro Toomer to trial counsel Cohen, which Cohen received during the period
between the trial court’s denial of the motion to suppress in the Hialeah case and
the hearing on the motion to suppress in the instant case.  This letter makes a
number of findings based on two meetings between Dr. Toomer and Franqui,
including observations of personality disorganization, overall mental confusion and
spotty memory.  The letter stated that Franqui suffers from extreme mental and
emotional disturbance and severe impairment of cognitive functioning, and
concluded by characterizing Franqui as an individual “whose behavior is
characterized by a pervasive pattern of instability” with resulting behavior that is
“impulsive, irrational, maladaptive and self-destructive.”
At the evidentiary hearing below, Cohen testified that he did not utilize this
information at the suppression hearing because Dr. Toomer had been retained
solely for use at the penalty phase and also because, throughout their relationship,
- 9 -

Cohen did not observe any signs of mental impairment in Franqui that would cause
him to conclude that Franqui was incompetent during his police questioning.
We find no error in the trial court’s conclusion that counsel’s actions were
reasonable and did not constitute ineffectiveness under Strickland.  First, assuming
Cohen believed his client, Franqui’s testimony from the Hialeah suppression
hearing indicates that he understood his rights, that he wished to invoke them, and
that he only gave the statements he did due to police misconduct, including blatant
abuse and coercion.  In other words, Franqui’s testimony at the suppression
hearing asserted no waiver was given and raised no issues of mental competency.
Rather, his testimony at the suppression hearing directly contradicted that of the
police, affirmatively asserting that he understood his rights and invoked them, but
that his invocation was ignored and that he was abused and coerced by the police
into giving a confession.  Franqui does not suggest how this prior testimony could
have been utilized during the instant suppression hearing had Cohen adopted a new
strategy claiming that Franqui was incompetent.
In addition, as noted above, Cohen testified at the postconviction evidentiary
hearing that he had observed no mental problems with Franqui.   He also stated that
Dr. Toomer had been called as a witness during the penalty phase in the Hialeah
trial six months prior to the suppression hearing in the instant case; the same trial
- 10 -

judge found substantial problems with Toomer’s credibility.7   In fact, in the
Hialeah sentencing order, issued some six months prior to the suppression hearing,
the trial court expressly rejected Dr. Toomer’s credibility and his opinions.  The
trial court questioned Dr. Toomer’s “leap” from a diagnosis of borderline
personality disorder to the conclusion that Franqui was acting under the influence
of “extreme mental or emotional disturbance.”  The trial court concluded that
“every piece of evidence presented in this trial, penalty phase and sentencing
7.   Records from the Hialeah case indicate that defense counsel called Dr.
Toomer during the penalty phase, when he testified as an expert in forensic
psychology.  This was in November of 1993, well before the suppression hearing
in the instant case, which occurred in May of 1994.  In addition to meeting with
Franqui three times, Dr. Toomer testified that he reviewed various records
extensively, met with members of Franqui’s family, and gathered information
about his background.  Dr. Toomer’s testimony basically reflects what was
contained in his letter to Cohen, expounding upon it to illustrate that Franqui has
suffered these problems since childhood.  Dr. Toomer then discussed the “Revised
Beta Exam,” which indicated that Franqui’s IQ was “less than 60.”  Dr. Toomer
explained that this particular test relied on nonverbal intelligence, that it was a
standard IQ test, and that he scored the test, a task he is trained to do.  Franqui’s
score indicated that he is in the “retarded range.”  Dr. Toomer concluded his
testimony by stating that the “extreme emotional disturbance” mitigator applied to
Franqui, and also that his chronological age did not reflect his mental age.
On cross-examination, Dr. Toomer confirmed that he had testified for
defendants between fifteen and twenty times in previous trials.  The State spent a
lot of time going through statements Dr. Toomer made in previous trials and
diagnoses he had given, as well as the fact that he had no other version of the facts
in the instant case other than what Franqui had told him and that he had not read
any police reports about the incident.  The State also pointed out inconsistencies
between Franqui’s own testimony and the conclusions reached and testified to by
Dr. Toomer, including the fact that the hospital records from Franqui’s accident as
a teenager do not indicate that he lost consciousness.  The State asked Dr. Toomer
about the results of Franqui’s Wechsler Test, which indicted he had a full-scale IQ
score of 83.
- 11 -

hearings, with the exception of Dr. Toomer’s testimony, definitely establishes that
Mr. Franqui is not mentally retarded.”
Considering all of these circumstances, we find no error in the
postconviction court’s conclusion that deficient performance by defense counsel
has not been established given Strickland’s presumption that trial counsel’s
performance was not ineffective.  See Strickland, 466 U.S. at 689 (“A fair
assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.”).  There is competent, substantial evidence in the record to support these
rulings by the postconviction court.
Franqui next argues that trial counsel was ineffective for failing to present
expert testimony at the suppression hearing regarding the effect of police coercion
during interrogations.  Franqui’s witness at the postconviction evidentiary hearing
below, Dr. Meisner, testified as an expert in police interrogations and confessions,
expressing the opinion that coercion could have played a role in Franqui’s
confession.  However, this witness also explained that there was only one expert
who routinely gave testimony in this field in the early 1990s; furthermore, there
was no showing that such an expert was known to or readily available to defense
counsel at the time of Franqui’s trial.  In addition, trial counsel is granted great
- 12 -

latitude in decisions regarding the use of expert witnesses.  Thus, we find no error
in the lower court’s conclusion that deficient performance has not been established
pursuant to a Strickland analysis for failing to call an expert on interrogation tactics
at the suppression hearing, given that the use of experts in this area of the law was
relatively new and unexplored at the time of Franqui’s trial.
B.   Resentencing
Franqui claims that trial counsel was ineffective for failing to relitigate the
suppression of his confession during his resentencing (penalty phase) trial.  We
find no error in the trial court’s rejection of the argument that trial counsel was
ineffective for failing to present this issue to the resentencing jury.  Since such
evidence would presumably have been used to cast doubt upon the admissibility or
veracity of Franqui’s confession to establish his guilt, it would not have been
relevant to sentencing issues or admissible in the sentencing phase.   See Way v.
State, 760 So. 2d 903, 916 (Fla. 2000) (“[T]his Court has previously rejected the
argument that evidence that would serve only to create a lingering doubt of the
defendant’s guilt is admissible as a nonstatutory mitigating circumstance.”) (citing
Preston v. State, 607 So. 2d 404, 411 (Fla. 1992); King v. State, 514 So. 2d 354,
358 (Fla. 1987)).  Franqui has made no showing in this appeal of the relevancy of
such evidence for purposes of sentencing.
- 13 -

Franqui also alleges that trial counsel was ineffective for failing to present
Dr. Toomer’s letter to the resentencing court.  However, this claim was not raised
in the trial court, nor was there any type of similar claim in which Franqui alleged
error for failing to present the Toomer letter to the resentencing jury or judge as a
means of establishing mental health mitigation.  Accordingly, this claim is
procedurally barred as an argument raised for the first time on appeal to this Court.
See Griffin v. State, 866 So. 2d 1, 11 n.5 (Fla. 2003) (finding that postconviction
claim raised for the first time on appeal was procedurally barred).
In addition, the record from Franqui’s resentencing indicates that, regardless
of any procedural bar, he is entitled to no relief.  First, trial counsel Cohen testified
at the evidentiary hearing that, while the primary reason he had Dr. Toomer
evaluate Franqui was in preparation for the penalty phase, Cohen and Franqui
jointly agreed to not present the letter at resentencing.  The resentencing record
reflects a specific discussion about Dr. Toomer’s letter report:
THE COURT:  All right.  I’ll allow you to make arguments later.
Any other evidence or testimony on the behalf of Mr. Franqui?
MR. COHEN:  No, your Honor.
THE COURT: All right. You had indicated the last time you were
considering presenting the former testimony of one of the doctors, you
and Mr. Franqui have agreed not to present that?
MR. COHEN: Unfortunately, Judge, the situation is that we have not
been able to find a report. But based on our conversations previously,
I don’t think that there’s anything in that report that we would be
- 14 -

submitting to the Court.
THE COURT: I just want to make sure there’s not a claim later that
not finding the report in some way --
MR. COHEN: No.
THE COURT: --prevented you from making an effective presentation
or prevents me from making an appropriate sentence. Does the State
have a copy of the report?
MR. COHEN: We don’t have the report present now but obviously we
reviewed the report previously and the doctor did testify at the
sentencing hearing of what we refer to as the Hialeah case. So we’re
well aware of contents and the findings of the doctor. And it’s our
decision not to present that evidence to the jury and I don’t see any
reason why that decision would change in presenting any evidence to
the Court.
THE COURT: All right. Have you spoken to Mr. Franqui with about
[sic] that?
MR. COHEN: We mentioned it briefly the other day.  I don’t think he
has any different feelings about that.
THE COURT: Mr. Franqui, do you agree with Mr. Cohen’s decision
not to have me consider the testimony or the report of that doctor?
MR. FRANQUI: Yes, your honor.
THE COURT:  Is there anything Mr. Franqui would like to say?
MR. COHEN:  I don’t believe so, Your Honor.
MR. FRANQUI:  No, your Honor.
- 15 -

Thus, the record reflects that Cohen and Franqui made a joint, strategic decision
not to present this evidence at resentencing.8   We find no error in the trial court’s
conclusion that Franqui is not entitled to relief on this claim.   See Occhicone, 768
So. 2d at 1048.
C.  Voir Dire
Franqui next asserts error in defense counsel’s actions during jury selection.
His argument, however, is unclear: first, Franqui takes issue with the lower court’s
dispensation of this claim as a Batson-Neil issue;9 Franqui argues that since both
he and juror Diaz were both Hispanic males, there was no need for trial counsel to
articulate a race-neutral reason as a basis for a preemptory strike of Diaz when the
State objected.  He asserts that the issue for this Court to decide is whether a race-
neutral reason must be given by a defendant when he wishes to strike a juror of his
own race, gender and ethnicity.  In addition, Franqui appears to assert an
ineffective assistance of counsel claim for not objecting to the trial court’s failure
to strike juror Andani.10   In the postconviction court Franqui asserted that
8.   We have already discussed the fact that the trial court had both
considered and rejected Dr. Toomer’s opinion testimony as presented at sentencing
in the Hialeah murder.
9.   See Batson v. Kentucky, 476 U.S. 79 (1986); State v. Neil, 457 So. 2d
481 (Fla. 1984).
10.   When Cohen challenged this particular juror, the State objected, but
Cohen failed to respond and juror Andani was seated.
- 16 -

counsel’s delay in presenting neutral reasons beyond his bare dislike of Diaz
resulted in the seating of a juror whose ability to be fair was subject to questio       n.
Regarding Andani, Franqui argued that counsel failed to preserve trial cou               rt error
in disallowing a defense strike since, when the State challenged the strike, defens      e
counsel declined to be heard.
We find no error in the trial court’s denial of relief on this claim since
Franqui has shown neither deficient performance nor prejudice.  First, as the court
below noted, we addressed the seating of these two jurors in Franqui I.   Regarding
Diaz, we held that “the trial court did not abuse its discretion in striking Franqui’s
peremptory challenge.”  Franqui I, 699 So. 2d at 1335.  This Court further ruled:
“We also reject Franqui’s contention that the trial court erred in refusing to permit
him to challenge prospective juror Andani.”  Id. at 1335 n.6.  We conclude that
Franqui should not be permitted to relitigate these claims under the guise of
ineffective assistance of counsel when the same issues were resolved against him
on appeal.  Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995) (“It is also not
appropriate to use a different argument to relitigate the same issue.”) (citing
Medina v. State, 573 So. 2d 293, 295 (Fla. 1990)).   In addition, Franqui has made
no showing of any prejudice that could have resulted from defense counsel’s
alleged deficiencies on these jury issues.
2.   Judicial Assignment
- 17 -

Franqui’s next argument asserts that he was denied due process of law when
the same trial judge presided over his two death cases.  The trial court dismissed
this claim without an evidentiary hearing.  As explained in the order denying relief,
The facts are not in dispute.   [Franqui] was charged in four separate
cases (including two separate first-degree murder cases), all of which
were pending at the same time.  By administrative order, the first case
was assigned (randomly) to a felony trial division.  So long as that
case remained open and pending (i.e., not resolved by plea, trial, or
dismissal), all subsequently-filed cases involving that same defendant
were assigned to the same trial division.  As a result of this
administrative procedure, all of [Franqui’s] cases were assigned to a
single judge.   [Franqui] argues this procedure is inherently unfair.
The lower court concluded that this claim was procedurally barred since, under
prevailing Florida law, Franqui should have raised this claim prior to trial.  In
addition, the trial court held that a judge is not subject to disqualification in a case
simply because that judge has made adverse rulings against the defendant in the
past or because the judge has previously heard some of the facts of the case.
Franqui did not allege ineffective assistance of counsel for failure to insist
upon a different judge in the instant case; rather, Franqui claimed that his due
process rights were violated by reason of the administrative procedures invoked in
this case.11   The lower court correctly concluded that this claim is procedurally
11.   Inasmuch as Franqui claims that trial counsel was ineffective for failing
to pursue joinder of the instant case with the Hialeah case, we conclude this claim
is insufficiently pled.  Franqui’s entire argument in this appeal is one sentence
contained in a footnote:   “Whether a motion to consolidate should have been filed
- 18 -

barred because it was not properly asserted before trial.  Further, Wild v. Dozier,
672 So. 2d 16 (Fla. 1996), establishes that this Court has exclusive jurisdiction to
review administrative orders making judicial assignments.  Id. at 17 (“[W]e
conclude that this Court has exclusive jurisdiction to review judicial
assignments.”).
Franqui also claims that his due process rights were violated because the
same judge sentenced him to death in both of Franqui’s murder cases.  This
argument, however, is refuted by the record.  While the same judge did initially
sentence Franqui to death in the Hialeah case and the instant case, ultimately
Franqui’s death sentence for this crime was reversed by this Court.   See Franqui I,
699 So. 2d at 1333.  A different trial judge subsequently presided over Franqui’s
resentencing and issued the death sentence that was later affirmed on direct appeal.
See Franqui II, 804 So. 2d 1189.  Thus, the same judge did not issue the two death
sentences now pending.
3.   State’s Subpoena of Eric Cohen
Franqui claims it was improper for the State to invoke the use of an
investigatory subpoena to compel defense counsel to appear for questioning in the
prosecutor’s office prior to the postconviction evidentiary hearing.  Section 27.04,
Florida Statutes (2006), provides as follows:
is an issue, which speaks to whether the defense counsel was ineffective in not so
filing.”  See  Appellant’s Initial Brief at 58 n.29.
- 19 -

The state attorney shall have summoned all witnesses required
on behalf of the state; and he or she is allowed the process of his or
her court to summon witnesses from throughout the state to appear
before the state attorney in or out of term time at such convenient
places in the state attorney’s judicial circuit and at such convenient
times as may be designated in the summons, to testify before him or
her as to any violation of the law upon which they may be
interrogated, and he or she is empowered to administer oaths to all
witnesses summoned to testify by the process of his or her court or
who may voluntarily appear before the state attorney to testify as to
any violation or violations of the law.
While we may agree with Franqui that this statute, giving prosecutors the powers
necessary to investigate crimes, should not be used as a discovery tool to compel
defense counsel to testify ex parte in postconviction proceedings, we find no error
in the trial judge’s treatment of the issue as asserted in this case.  We conclude that
the record conclusively demonstrates that no harm resulted from the State’s pretrial
questioning of defense counsel or the failure of the State to notify postconviction
counsel of this questioning.  In other words, while it may appear that the State
abused its authority under the statute, Franqui has not demonstrated that the State
was provided information that it was not otherwise entitled to in defending
Franqui’s assertions of ineffectiveness of counsel.
4.   Improper Prosecutorial Conduct
Franqui next takes issue with the trial court’s denial of relief on his claim of
fundamental error in the prosecutor’s improper remark in the State’s closing: “If
the aggravation is always stronger, always more powerful in your hearts and
- 20 -

minds, the Judge is going to tell you it’s your obligation that you should vote to
recommend for death.”  As the trial court correctly noted, this Court did address
several improper comments made at Franqui’s trial on the direct appeal after
resentencing and found no reversible error.  Further, even though it was not
specifically challenged on direct appeal, we addressed the comment at issue in this
claim:
At oral argument, Franqui’s appellate counsel also argued that the
State misstated the law during closing argument in commenting, “[I]f
the aggravation is always stronger, always more powerful in your
hearts and in your minds, the Judge is going to tell you it’s your
obligation that you should vote to recommend for the death penalty.”
No objection was made to this comment at trial, nor was this issue
raised in Franqui’s brief.   Nevertheless, we take this opportunity to
caution prosecutors to avoid using language instructing the jury that it
has a duty or obligation to recommend death.  See Urbin v. State, 714
So. 2d at 411, 421 (Fla. 1998); Garron [v. State], 582 So. 2d [353,]
359 [(Fla. 1989)].
Franqui II, 804 So. 2d at 1194 n.8.
We also agree with the postconviction court that this claim is procedurally
barred since it could have been raised as fundamental error on direct appeal.
Further, Franqui has not established that the comment constitutes the fundamental
error necessary to overcome the lack of preservation by trial counsel.   See
Robinson v. State, 520 So. 2d 1, 7 (Fla. 1988) (“Our cases also have long
recognized that improper remarks to the jury may in some instances be so
prejudicial that neither rebuke nor retraction will destroy their influence, and a new
- 21 -

trial should be granted despite the absence of an objection below . . .                 .”).  In fact, it
is apparent from our discussion that we considered this comment on direct appeal
and did not conclude that it constituted fundamental error.  We also note that
Franqui has not demonstrated that the jury was not properly instructed by the trial
court on this same issue.  For all of these reasons, we conclude relief on this claim
was properly denied.
5.   Florida’s Death Penalty is Unconstitutional
Franqui next asserts that Florida’s death penalty scheme is unconstitutional
under Ring v. Arizona, 536 U.S. 584 (2002).  However, both this court and the
United States Supreme Court have held that Ring does not apply retroactively.  See
Johnson v. State, 904 So. 2d 400 (Fla. 2005); Schriro v. Summerlin, 542 U.S. 348
(2004).   Franqui’s death sentence became final after the Court rejected his direct
appeal following resentencing in 2001; therefore, Franqui cannot rely on Ring to
find his death sentence unconstitutional.  See Washington v. State, 907 So. 2d 512,
514 (Fla.) (finding defendant not entitled to relief under Ring because Ring is not
applied retroactively), cert. denied, 126 S. Ct. 802 (2005).
PETITION FOR WRIT OF HABEAS CORPUS
1. Ineffective Assistance of Appellate Counsel
Consistent with the Strickland standard, to grant habeas relief based on
ineffectiveness of counsel, this Court must determine
- 22 -

first, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and,
second, whether the deficiency in performance compromised the
appellate process to such a degree as to undermine confidence in the
correctness of the result.
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman v. State,
761 So. 2d 1055, 1069 (Fla. 2000); Thompson v. State, 759 So. 2d 650, 660 (Fla.
2000).   In raising such a claim, “[t]he defendant has the burden of alleging a
specific, serious omission or overt act upon which the claim of ineffective
assistance of counsel can be based.”   Freeman, 761 So. 2d at 1069; see Knight v.
State, 394 So. 2d 997, 1001 (Fla. 1981); see also Rutherford v. Moore, 774 So. 2d
637, 643 (Fla. 2000).   “If a legal issue ‘would in all probability have been found to
be without merit’ had counsel raised the issue on direct appeal, the failure of
appellate counsel to raise the meritless issue will not render appellate counsel’s
performance ineffective.”   Id. (quoting Williamson v. Dugger, 651 So. 2d 84, 86
(Fla. 1994)).
A. Failure to Challenge Franqui’s Confession
Franqui claims that appellate counsel was ineffective for failing to challenge
the circumstances of Franqui’s confession on direct appeal.  This issue is
somewhat related to Franqui’s postconviction claim challenging trial counsel’s
effectiveness in seeking suppression of Franqui’s confession.  After a lengthy
hearing on Franqui’s motion to suppress, the trial judge concluded that Franqui’s
- 23 -

confession was not coerced and that his waiver of rights was both free and
voluntary.  Importantly, Franqui has not demonstrated in his habeas petition that, in
all probability, appellate counsel would have been successful in overturning the
trial court’s findings and rulings on direct appeal.  While Franqui testified at the
suppression hearing that he was coerced and that his confession was essentially
beaten out of him, this testimony was not found credible by the trial judge, who
instead credited the officers’ testimony that Franqui voluntarily waived his rights
and that he was not mistreated in any way.  Although the suppression hearing
revealed that Franqui was questioned over a lengthy period, the record also
demonstrates that he was given refreshment, allowed to take a break to speak with
his wife, was repeatedly informed of his rights on multiple occasions, and,
according to the State’s witnesses, appeared alert the entire time.
Based on the totality of the circumstances in the instant case, and the
existence of competent, substantial evidence to support the trial court’s rulings, we
cannot conclude that appellate counsel was ineffective for failing to challenge the
denial of the motion to suppress on appeal.   See Chavez v. State, 832 So. 2d 730,
748-49 (Fla. 2002) (finding that continual police custody of more than fifty-four
hours was not dispositive of whether or not to suppress a confession since the
defendant in that case was provided with frequent breaks, refreshment, and time
away from the police facility, and furthermore that the defendant consistently
- 24 -

agreed to waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966)); Walker
v. State, 707 So. 2d 300, 310-11 (Fla. 1997) (upholding voluntariness of confession
where the defendant was questioned for six hours during the morning and early
part of day, was provided with drinks and allowed to use the bathroom when he
wished, was never threatened with capital punishment, and was never  promised
anything other than that the officer would inform the prosecutor that the defendant
had cooperated).
Further, as the State correctly notes in response to Franqui’s alternative
argument, Franqui did not argue during trial that his confession should have been
suppressed because of the state of his mental health; accordingly, any claim based
on his mental health during interrogation was not preserved for review.   Perez v.
State, 919 So. 2d 347, 59 (Fla. 2005) (holding that, for an issue to be preserved for
appeal, the specific legal argument or ground to be argued on appeal must have
been presented to the lower court), cert. denied, 126 S. Ct. 2359 (2006).  In turn,
since the issue was not preserved, appellate counsel cannot be deemed ineffective
for failing to raise it.  Groover v. Singletary, 656 So. 2d 424, 425 (Fla. 1995).
B. Prosecutorial Misconduct
Although not specified in his brief, Franqui claims ineffective assistance of
appellate counsel for failing to challenge alleged improper prosecutorial comments
made at trial.  Given that the particular comments are not argued with any
- 25 -

specificity and there is no attempt to demonstrate that any alleged errors were
preserved for appeal, we find any such claim to be insufficiently pled and we deny
relief.  See Patton v. State, 878 So. 2d 368, 380 (Fla. 2004) (holding that
conclusory allegations are insufficient to properly state a claim).  We also note that
a similar issue was raised by counsel on appeal and we found similar comments to
be harmless in view of the overall circumstances of the case, including the trial
court’s instructions to the jury.   See Franqui II, 804 So. 2d at 1192-94.
C. Record of Confessions
Franqui raised a claim in his original 3.851 motion to the court below,
alleging that the circumstances surrounding his confession, including the officers’
election not to make an audio or visual recording of any portion of the
interrogation, make the defendant’s statement unreliable, illegal and inadmissible.
However, the trial court denied relief, finding the claim to be procedurally barred
while also noting that that there is no constitutional or other legal requirement that
police agencies record or preserve an oral confession.  In his habeas petition,
Franqui now argues that appellate counsel was ineffective for not raising the same
claim on direct appeal.  The record reflects that while Franqui did move to
suppress his confession, he did not argue that it should be suppressed because it
was not recorded.  As the State correctly notes, in order to preserve an issue
regarding suppression, Franqui must have raised to the trial court the same
- 26 -

argument he raises on appeal.   See Perez, 919 So. 2d at 349.  We agree that since
the issue was not preserved, appellate counsel cannot be deemed ineffective for
failing to raise it.  See Groover, 656 So. 2d at 425.
D. Testimony of Assistant State Attorney DiGregory
Franqui argues that appellate counsel was ineffective when he failed to raise
on direct appeal the trial court’s decision to prevent defense counsel Cohen from
calling Assistant State Attorney Kevin DiGregory as a witness.  Without providing
any legal basis for a claim of error or details regarding the failed attempt to call
DiGregory as a witness in the guilt-phase trial, Franqui argues that DiGregory
should have been asked a number of questions that Franqui now posits for the first
time in this proceeding.  Given the lack of specificity and legal basis regarding this
claim, as well as the hypothetical nature of the questions posed, we find this claim
to be insufficiently pled and deny relief.   See Patton, 878 So. 2d at 380.
E. Mitigation
Franqui claims that appellate counsel failed to sufficiently challenge the
resentencing court’s rejection of the fact that Franqui did not fire the fatal bullet as
nonstatutory mitigation.  This claim, however, is refuted by the record, which
reflects that appellate counsel did raise this argument in Franqui’s direct appeal
after resentencing, and the argument was expressly rejected by this Court.   See
Franqui II, 804 So. 2d at 1197 (“Under the particular facts in this case, we find that
- 27 -

the trial court did not err in considering, but ultimately rejecting, the fact that
Franqui did not fire the fatal bullet as a mitigating circumstance.”).
CONCLUSION
For the reasons stated, we affirm the circuit court’s denial of postconviction
relief and deny Franqui’s petition for a writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, 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 Dade County,
Kevin Emas, Judge - Case No. F92-2141B
And an Original Proceeding - Habeas Corpus
Mary Catherine Bonner, Fort Lauderdale, Florida,
for Appellant/Petitioner
Bill McCollum, Attorney General, Tallahassee, Florida and Sandra S. Jaggard,
Assistant Attorney General, Miami, Florida,
for Appellee/Respondent
- 28 -

Download sc04-2380.pdf