SC06-1998 – Rory Enrique Conde v. State of Florida

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State: Florida

Court: Supreme Court

Docket No: sc06-1998

Case Date: 02/11/2010

Plaintiff: SC06-1998 – Rory Enrique Conde

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC06-1998
RORY ENRIQUE CONDE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[February 11, 2010]
PER CURIAM.
This case is before the Court on appeal from an order denying Rory E.
Conde‟s first motion to vacate his first-degree murder conviction and sentence of
death under Florida Rule of Criminal Procedure 3.851after an evidentiary hearing.
Because the order concerns postconviction relief from a capital conviction for
which a sentence of death was imposed, this Court has jurisdiction.  See Art. V, §
3(b)(1), Fla. Const.  We affirm the postconviction court‟s order denying relief.
I.                                                                                   FACTS AND PROCEDURAL HISTORY
The facts of the underlying crime are set out in this Court‟s opinion on
Conde‟s direct appeal, Conde v. State, 860 So. 2d 930 (Fla. 2003).  We summarize

them here only briefly.  On January 13, 1995, Conde picked up Rhonda Dunn, a
prostitute, and took her to his apartment.  After engaging in sexual relations, Conde
followed her out of the room and strangled her to death.  Conde then drove to
another location and left her body on the side of the road.  Conde had done the
same on five prior occasions to five other prostitutes.  This series of murders was
preceded by the breakup of Conde‟s marriage, which occurred when his wife
discovered that Conde was using the services of prostitutes.  Conde was arrested in
June 1995, after fire rescue personnel discovered a woman, naked and bound in
duct tape, trapped in his apartment.  Conde later confessed to all six murders and
stated that after each murder, he knelt over the deceased body and verbally blamed
the victim for his marital problems.
Conde was charged with the first-degree murder of all six victims.  The
counts were severed and his first trial, held in October 1999, was for Dunn‟s
murder.  The trial court permitted the State to introduce Williams1 rule evidence of
the other five murders.  The jury found Conde guilty of first-degree murder and
recommended the death penalty by a nine-to-three vote.  The trial court imposed a
1.  Williams v. State, 110 So. 2d 654 (Fla. 1959) (permitting introduction of
evidence of other crimes in particular circumstances).
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sentence of death, finding three aggravating circumstances,2 one statutory
mitigating circumstance,3 and five nonstatutory mitigating circumstances.4  Conde,
860 So. 2d at 937-38.  On direct appeal, Conde raised thirteen claims.5  This Court
affirmed.  See id. at 959.   Conde then filed the present rule 3.851 motion, wherein
2.  The trial court found the following aggravators: (1) heinous, atrocious, or
cruel (HAC); (2) cold, calculated, and premeditated (CCP); (3) and prior violent
felony.
3.  The trial court found the following statutory mitigator: Conde had no
significant history of prior criminal activity (moderate weight).
4.  The nonstatutory mitigation was as follows: (1) Conde‟s positive
influence on family despite adversity (moderate weight); (2) his good employment
background (moderate weight); (3) his relationship with his children (given
moderate weight); (4) Conde‟s mental and emotional problems (given little
weight); and   (5) his status as model inmate (little weight).
5.  Conde alleged error in the guilt phase, arguing that the trial court erred
when it (1) denied his cause challenges to prospective jurors; (2) granted the
State‟s motion to strike a prospective juror for cause; (3) denied Conde‟s motion
for judgment of acquittal; (4) admitted Williams rule evidence of the other five
murders; (5) admitted certain testimony concerning other crimes, a police officer‟s
warning to the victim about “the Tamiami strangler,” and Conde‟s alleged flight at
the time of his arrest; (6) failed to limit certain prosecutorial comments during the
guilt-phase opening and closing arguments; and (7) denied Conde‟s motion to
suppress his confession.
Conde also alleged error in the penalty phase, claiming that the trial court
erred by (8) finding the CCP and HAC aggravators; (9) rejecting certain mitigating
circumstances; (10) allowing the admission of details regarding Conde‟s prior
violent felony and allowing prosecutorial arguments regarding collateral crimes;
(11) excluding mitigation testimony from a jail chaplain on the basis of a discovery
violation; (12) imposing a disproportionate death sentence; and (13) not
recognizing Florida‟s capital sentencing scheme as unconstitutional.
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he raised seven claims.6  The postconviction court conducted a Huff7 hearing and
then held an evidentiary hearing.8  The postconviction court ultimately denied
relief on all grounds and this appeal followed, wherein Conde raises five claims.9
6.  Conde argued that (1) certain public records were withheld from him; (2)
application of rule 3.851 violated his rights because he could not file shell motions;
(3) his counsel was ineffective for failing to object to prosecutorial comments in
closing arguments; (4) his counsel was ineffective for failing to investigate
mitigating evidence involving Dan Bazaro, a chaplain at the jail where Conde was
held after his arrest, and for failing to sufficiently prepare and use family members
in Colombia, and Conde‟s rights under Ake v. Oklahoma, 470 U.S. 68 (1985),
were violated; (5) counsel was ineffective for failing to sufficiently address the
witness disinterest that resulted from the retracted plea agreement; (6) Florida‟s
death penalty is unconstitutional; and (7) lethal injection and electrocution are
cruel and unusual punishments and Conde is entitled to the protection of
international treaties.
7.  Huff v. State, 622 So. 2d 982, 983 (Fla. 1993) (requiring a hearing in
postconviction cases “for the purpose of determining whether an evidentiary
hearing is required and to hear legal argument relating to the motion.”).
8.  During the Huff hearing, Conde withdrew claim 1 (public records).  The
postconviction court summarily denied claim 2 (3.851 shell motions), part of claim
4 (ineffectiveness in investigating mitigation), claim 5 (plea offer fallout), and
claims 6 and 7 (death penalty and methods of execution unconstitutional).
However, Conde presented extensive testimony during the evidentiary hearings
that addressed some of the summarily denied claims, including claim 4
(ineffectiveness of counsel regarding Chaplain Bazaro) and claim 5 (witness
disinterest resulting from the retracted plea offer), because they were interrelated.
9.  Conde argues that the postconviction court erred in denying the
following five claims: (1) counsel was ineffective for failing to preserve the record
on appeal and object to certain prosecutorial comments made at trial; (2) the
postconviction court erred in denying Conde‟s use of an expert‟s testimony as to
counsel‟s ineffectiveness; (3) counsel was ineffective for failing to discover
Chaplain Bazaro; (4) counsel was ineffective for failing to properly address the
negative impact on possible mitigation that resulted from the plea agreement
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II.                                                                                       APPLICABLE STANDARDS
Pursuant to the United States Supreme Court‟s decision in Strickland v.
Washington, 466 U.S. 668 (1984), we have 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.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986).  This requires that the
defendant show that “counsel made errors so serious that counsel was not
functioning as the „counsel‟ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687.  Next, the reviewing court must determine whether
there is a reasonable probability that, but for the deficiency, the result would have
been different.  Id. at 694.   “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”  Id.
Under the Strickland standard, the Court employs a mixed standard of
review, deferring to the postconviction court‟s factual findings that are supported
retraction; and (5) Florida‟s death penalty sentencing procedures are
unconstitutional.  We deny relief on all of the claims.
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by competent, substantial evidence, but reviewing legal conclusions de novo.
Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).
III.                                                                                   ISSUES ON APPEAL
First, Conde contends that trial counsel was ineffective for failing to object
to several allegedly improper prosecutorial statements made during closing
arguments.    The postconviction court summarily denied this claim, stating that the
“[d]efendant cannot show prejudice pursuant to Strickland, supra.”  We find that
the prosecutor‟s comments were insufficient to undermine confidence in the
outcome as required under the Strickland prejudice standard.  See Maxwell, 490
So. 2d at 932; see also Hitchcock v. State, 755 So. 2d 638, 643 (Fla. 2000) (“Any
error in prosecutorial comments is harmless if there is no reasonable probability
that those comments affected the verdict.” ) (citing King v. State, 623 So. 2d 486,
487 (Fla.1993)).   “Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim.”  Strickland,
466 U.S. at 700.  Having reviewed this claim, we find that Conde has failed to
demonstrate that trial counsel was ineffective under Strickland .  Accordingly, we
affirm the postconviction court‟s denial of relief.
In his second claim, Conde argues that the postconviction judge
erred by not allowing Conde‟s expert to testify to the prevailing norms of effective
representation in capital cases relevant to Conde‟s proceeding.  Because we resolve
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the ineffectiveness issues in this case based on the prejudice prong of Strickland,
we decline to address this issue.  Accordingly, we deny relief on this claim.
In his third claim, Conde argues that his trial counsel was deficient in failing
to timely discover and introduce the testimony of Chaplain Bazaro.  Bazaro
allegedly would have testified that Conde confided to him that Conde had been
sexually abused as a child.  Conde alleges that this testimony would have refuted
the State‟s claim that he recently fabricated his claims of abuse.  We affirm the
postconviction court‟s denial of relief.  This Court has already considered this
claim in another form.  In Conde‟s direct appeal, he alleged that the trial court
erred by excluding Chaplain Bazaro‟s testimony.  He raised the same substantive
reasons there that he raises now in the guise of an ineffective assistance claim.
This Court denied relief on direct appeal, explaining that “even if the trial court
erred in excluding the chaplain‟s testimony, the error was harmless beyond a
reasonable doubt under the standard set forth in State v. DiGuilio.”  Conde, 860
So. 2d at 958.  Because this Court has already held that the exclusion of Bazaro‟s
testimony was harmless error, Conde cannot establish prejudice in his ineffective
assistance of counsel claim.  See, e.g., Cox v. State, 966 So. 2d 337, 347-48 (Fla.
2007).  Accordingly, this claim is meritless.
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Conde next alleges that his trial counsel was ineffective for failing to convey
the negative impact on possible mitigation which resulted from a retracted plea
offer of life imprisonment and for failing to seek enforcement of the plea offer.
The postconviction court denied this claim.  We affirm that denial.  Though the
postconviction court originally denied an evidentiary hearing on this issue at the
Huff hearing, the court nevertheless received evidence at the evidentiary hearing
over the State‟s objection.  The postconviction court noted the testimony from the
evidentiary hearing claiming generally that once the plea offer was revoked, other
potential witnesses in the case lost interest and stopped volunteering to help the
defense team.  Id.  The postconviction court then denied relief because Conde had
not alleged which witnesses lost interest and failed to testify or allege what their
testimony would have been.  The court further held that the claim was refuted by
the record since coworkers as well as neighbors testified at trial on Conde‟s behalf.
Id.
In making an ineffective assistance of counsel claim, Conde was required to
“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.”  Maxwell, 490 So. 2d at 932.    Further, he had to show that some
deficiency “so affected the fairness and reliability of the proceeding that
confidence in the outcome is undermined.”  Id.  Conde has not done either.  He has
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not established what, if any, negative result occurred.  He has not established who
the additional witnesses were, what they would have testified to, or otherwise
established how any disinterest resulting from the retracted plea agreement
prejudiced him.  He has also failed to explain what information the additional
witnesses or additional evidence would have provided that was not already given
by the witnesses who did testify in his defense.
By failing to demonstrate that additional witnesses would have testified and
what those witnesses would have said, failing to explain how that testimony would
improve on the testimony that was given in his case, and failing to explain how the
additional testimony would interact with the other evidence and circumstances of
his case, Conde has also failed to establish that he suffered any prejudice from
counsel‟s alleged deficiencies.  These burdens of proof and of pleading were
Conde‟s to carry.  See Strickland, 466 U.S. at 687; see also Chavez v. State, 12 So.
3d 199, 213 (Fla. 2009) (“The defendant has the burden of affirmatively
establishing each prong of the Strickland standard.”).  Accordingly, because Conde
failed to establish prejudice under Strickland, we affirm the postconviction court‟s
denial of relief.
In Conde‟s final claim, he argues that the postconviction court improperly
denied his Ring v. Arizona, 536 U.S. 584 (2002), claim.  This claim is procedurally
barred as it was raised and rejected in Conde‟s direct appeal.  See Conde, 860 So.
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2d at 959 (“Conde asserts that Florida‟s capital sentencing scheme violates the
United States Constitution under the holding of  Ring v. Arizona . . .                   . We find that
Conde is . . . not entitled to relief on this claim.”).  Even if this claim were not
barred, this Court has consistently rejected Ring claims similar to those Conde
raises.  See, e.g., Doorbal v. State, 837 So. 2d 940, 963 (Fla. 2003).  Finally,
Conde‟s case involved the prior violent felony aggravator.  This Court has held
that this aggravator satisfies the requirements of Ring.  See, e.g., Rodgers v. State,
948 So. 2d 655, 673 (Fla. 2006).  Thus, we affirm the postconviction court‟s
rejection of this claim.
Conde has failed to demonstrate that he was prejudiced by any of the alleged
deficiencies below and is not entitled to the requested relief.  Accordingly, we
affirm the postconviction court‟s order denying Conde‟s 3.851 motion.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Dade County,
Jerald Bagley, Judge - Case No. F95-019816
Gustavo J. Garcia-Montes, Miami, Florida,
for Appellant
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Bill McCollum, Attorney General, Tallahassee, Florida, Sandra S. Jaggard and
Lisa A. Davis, Assistant Attorneys General, Miami, Florida,
for Appellee
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