SC07-771 – Ronald Palmer Heath v. State of Florida

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State: Florida

Docket No: SC07-771

Case Date: 01/29/2009

Preview:Supreme Court of Florida
____________ No. SC07-771 ____________ RONALD PALMER HEATH, Appellant, vs. STATE OF FLORIDA, Appellee. [January 29, 2009] PER CURIAM. Appellant Ronald Palmer Heath seeks review of an order which denied him postconviction relief under Florida Rule of Criminal Procedure 3.851. Heath challenged his capital murder conviction for which a sentence of death was imposed. This Court possesses jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. I. FACTS AND PROCEDURAL HISTORY Guilt and Penalty Phases A jury convicted Ronald Palmer Heath of the first-degree murder of Michael Sheridan, armed robbery, conspiracy to commit uttering a forgery, conspiracy to

commit forgery, forgery (seven counts), and uttering a forgery (seven counts). See Heath v. State, 648 So. 2d 660, 662-63 (Fla. 1994). For the murder of Sheridan, the jury recommended the death penalty by a vote of ten to two. See id. at 663. Following that recommendation, the trial court sentenced Heath to death for the murder. See id. 1 In its opinion affirming the imposition of the death penalty, the Court detailed the facts surrounding the murder: Heath and his younger brother, Kenneth, drove to Gainesville to visit some of Heath's friends. On May 24, 1989, the brothers went to the Purple Porpoise Lounge in Gainesville where two of Heath's friends worked as waitresses. Sometime during the evening the brothers struck up a conversation with Sheridan, a traveling salesman who had come to the lounge for drinks and dinner. Sheridan bought the brothers a drink and inquired if they ever got high or had any marijuana. Heath suggested to Kenneth that they take Sheridan somewhere and rob him; Kenneth agreed. The trio left the bar in Kenneth's vehicle, which Heath drove to an isolated area of Alachua County. After parking on a dirt road, all three got out of the car and smoked marijuana. Heath made the hand motion of a pistol and asked Kenneth, "Did you get it?" Kenneth retrieved a small-caliber handgun from under the car seat, pointed it at Sheridan, and told him that he was being robbed. Sheridan balked at giving the brothers anything. Heath told Kenneth to shoot Sheridan. When Sheridan lunged at Kenneth, Kenneth shot him in the chest. Sheridan sat down, saying "it hurt." As Sheridan began to remove his possessions, Heath kicked him and stabbed him in the neck with a hunting knife. Heath attempted to slit Sheridan's throat, but was unable to complete the 1. Heath was sentenced to life imprisonment as a habitual offender for the armed-robbery conviction. See id. With regard to the convictions for conspiracy to commit forgery and conspiracy to commit uttering a forgery, Heath was sentenced to six months with credit for time served. See id. With regard to the forgery and uttering-a-forgery convictions, Heath was sentenced to consecutive sentences of ten years as a habitual offender. See id.

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task with the dull knife and could only saw at Sheridan's neck. Heath then instructed Kenneth to kill Sheridan with the gun, and Kenneth shot him twice in the head. The brothers moved the body further into the woods. After returning to the Purple Porpoise, the brothers took Sheridan's rental car to a remote area, removed some items, and burned the car. The next day the brothers used Sheridan's credit cards to purchase clothes, shoes, and other items at a Gainesville mall. . . . The brothers returned to Jacksonville and tossed the handgun into the St. John's River. The handgun was never recovered. Heath eventually returned to the trailer which he shared with Powell [his girlfriend] in Georgia. A medical examiner was dispatched to the scene of the murder on May 30, 1989, to examine the body, which was in a moderately advanced state of decomposition. The examiner estimated that death had occurred three to ten days earlier and that death was caused by multiple gunshot wounds and a sharp force injury to the neck. Several weeks after the murder, Heath was arrested at his trailer for using the stolen credit cards. Powell granted the officers permission to search the trailer and her car. The officers discovered some of the clothes purchased in Gainesville and Sheridan's watch. Both brothers were indicted for the first-degree murder and armed robbery of Sheridan. . . . Kenneth entered into a plea agreement wherein he pled guilty to the charges and agreed to testify about Sheridan's murder. Kenneth was sentenced to life imprisonment without eligibility for parole for twenty-five years for the murder conviction. Heath's trial commenced on November 5, 1990. The primary evidence linking Heath to the crime was the testimony of Kenneth, Heath's possession of a watch which could be traced to Sheridan through its serial number, and Heath's possession of certain merchandise acquired in Gainesville with Sheridan's stolen credit cards. Id. at 662. In imposing the death sentence, the trial court found two aggravating factors: (1) Heath had been convicted of a prior violent felony (second-degree murder), and

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(2) the murder was committed during the course of an armed robbery. See id. at 663. With regard to mitigation, the trial judge found one statutory mitigating circumstance--that Heath was under the influence of an extreme mental or emotional disturbance as a result of his consumption of alcohol and marijuana-- and two nonstatutory mitigating circumstances--that Heath demonstrated good character in prison, and that codefendant Kenneth Heath received a life sentence. See id. Direct Appeal In his direct appeal, Heath raised the following issues: (1) the trial court erred when it overruled Heath's objection to a comment by the State during opening statements which reflected on Heath's right to remain silent; (2) the trial court erred when it permitted testimony with regard to Sheridan's good character; (3) the trial court erred when it admitted the testimony of cellmate Wayburn Williams, which addressed Heath's plans to escape from pretrial detention; (4) the trial court erred when it ruled that the testimony of Heath's employer was irrelevant; (5) the trial court improperly excluded a statement that Heath made to his girlfriend as he unpacked his luggage upon his return from Florida; (6) the trial court erred when it sentenced Heath to death because he was no more culpable than his brother Kenneth, who received a life sentence; (7) the trial court erred when it read to the jury an unconstitutionally vague instruction with regard to the

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heinous, atrocious, and cruel aggravating circumstance; (8) the trial court erred when it sentenced Heath as a habitual offender for the crime of armed robbery; and (9) the habitual felony offender statute is unconstitutional because it violates due process and equal protection. See id. at 663-66. This Court denied relief on all claims and affirmed Heath's convictions and sentences. See id. at 666. 2 Postconviction Proceedings On August 2, 2004, Heath filed his initial rule 3.851 motion. On April 18, 2005, Heath filed an amended rule 3.851 motion which raised twenty claims. 3

2. The Court concluded that the State impermissibly commented on Heath's right to remain silent during opening statements, but held that the error was harmless beyond a reasonable doubt. See id. at 663. 3. The claims presented were based on ineffective assistance of counsel: (I) during the penalty phase for the failure to develop Kenneth Heath's testimony; (II) during the guilt phase for the failure to develop Kenneth's testimony; (III) during the guilt phase for the failure to present voluntary intoxication as a defense and offer evidence that Heath was intoxicated as a mitigating circumstance; (IV) during the guilt phase for the failure to advise Heath of the availability of the voluntary intoxication defense; (V) during the penalty phase for the failure to raise as a mitigating circumstance the fact that Heath suffers from severe antisocial personality disorder; (VI) during the guilt phase for the failure to request a jury instruction on the voluntary intoxication defense; (VII) during the guilt phase for the failure to call witnesses to demonstrate that Heath acted under the domination of Kenneth; (VIII) during the penalty phase for the failure to call witnesses to demonstrate that Heath acted under the domination of Kenneth; (IX) during the guilt phase for the failure to call material witnesses; (X) during the guilt phase for the failure to ensure that Heath was present during all pretrial motion hearings and the allocution hearing; (XI) during the penalty phase for the failure to challenge the "committed in the course of a felony" aggravating circumstance, which constitutes an impermissible "doubler"; (XII) during the guilt phase for the failure to request a special verdict form which would require the jury to choose between premeditated -5-

After a Huff 4 hearing, the trial court granted an evidentiary hearing on nine of the claims and denied the remainder. 5 A primary focus of the evidentiary hearing involved the recanted testimony of Kenneth Heath, the key witness for the State during Heath's trial, and Heath's codefendant, who shot Sheridan three times. During the evidentiary hearing, Kenneth recounted that on the night of the murder he informed Heath that Sheridan wanted to smoke marijuana. Heath responded to Kenneth that they could rob Sheridan, and Kenneth agreed. Kenneth and Heath, before leaving the bar,

murder and felony murder; (XIII) during the penalty phase for the failure to request a special verdict form which would require the jury to specify the aggravating factors found; (XIV) for the failure to assert that the indictment was insufficient because it failed to specify the aggravating circumstances upon which the State intended to rely; and (XV) for the failure to file motions to preserve challenges with regard to aggravating circumstances, jury override, and unanimous verdicts. The remaining claims raised were: (XVI) Kenneth's recanted testimony constitutes newly discovered evidence which, if introduced during the penalty phase, would have produced a life sentence for Heath; (XVII) Kenneth's recanted testimony constitutes newly discovered evidence which, if introduced during the guilt phase, would have resulted in Heath's conviction for a lesser-included offense; (XVIII) the State committed a violation under Brady v. Maryland, 373 U.S. 83 (1963); (XIX) the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and Blakely v. Washington, 542 U.S. 296 (2004), require that Heath receive a new penalty phase; and (XX) section 921.141, Florida Statutes (1989), is unconstitutional. 4. Huff v. State, 622 So. 2d 982 (Fla. 1993). 5. The postconviction court found that claims related to the failure to call witnesses and the failure to have Heath present at all hearings were insufficiently pled and denied these claims without prejudice.

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discussed eliminating Sheridan as a witness. Prior to their departure from the bar, Sheridan expressed doubts about leaving with the brothers because he had a morning meeting; however, Sheridan was ultimately convinced to join the brothers. The three left the bar together and drove in Kenneth's car to a remote area. While they were standing at the back of the car preparing to smoke, Heath used hand gestures to inquire whether Kenneth had the gun that the brothers carried in the vehicle. When Kenneth said "no," Heath indicated to Kenneth that he should retrieve the gun from the car. After doing so, Kenneth pointed the gun at Sheridan and told him that he was being robbed. Sheridan initially believed the brothers were joking and said, "You're kidding, right?" Heath then told Kenneth to shoot Sheridan. Kenneth told Sheridan, "Look, I don't want to shoot you. Just take your wallet off and remove your jewelry and stuff." Heath again told Kenneth to shoot Sheridan. Sheridan lunged at Kenneth, and Kenneth shot him in the chest. Sheridan took a couple of steps backward and sat down. Heath told Sheridan to remove his jewelry and when Sheridan did not move quickly enough, Heath removed Sheridan's jewelry, watch, and wallet. Heath then asked Sheridan where a particular bracelet was, saying, "Give us the bracelet, we'll get you to a hospital, we'll get you some help." When Sheridan did not respond, Heath kicked him. Heath told Kenneth to "shoot him again, to make sure he was

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dead," and Kenneth shot Sheridan in the head. After that second shot, Heath repeated, "Shoot him again, shoot him again." According to Kenneth, after the shot to the head, Sheridan continued to look at him and even asked Kenneth what he was doing. When Kenneth fired the third shot, "the life went out of his eyes." The brothers moved Sheridan's body further back into the woods so that it would not be discovered and returned to Kenneth's vehicle. Heath then told Kenneth that he thought he might have dropped something and went back into the woods to look for it. Although Heath told Kenneth to wait in the car, Kenneth feared that someone might arrive because of the gunshots and, after a few minutes, went to see what Heath was doing. When Kenneth arrived at the place where Sheridan's body was located, he saw Heath kneeling down and sawing at Sheridan's throat with a knife. According to Kenneth, Heath "looked kind of lost and--like he was in ecstasy or something." Kenneth asked Heath what he was doing and "when I spoke, it was like I snatched him out of a trance or something. I mean, you know, he looked at me, you know, kind of crazy." The brothers then returned to the car and drove back to the Purple Porpoise. During cross-examination, the State reviewed Kenneth's prior sworn statement, and the following dialogue occurred: STATE: (reading from sworn statement) Did you say: "The knife wouldn't cut his throat, it was too dull?" KENNETH: After he had been shot three times.

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STATE: (reading from sworn statement) "So he stuck the knife in his throat and started cutting the throat like that." KENNETH: Yes, sir. STATE: (reading from sworn statement) "Any sounds from Michael Sheridan?" "What sounds?" "Like he was trying to swallow." Correct? KENNETH: Yes, sir. STATE: So Michael Sheridan was still alive at the time your brother was cutting his throat. He was still making noises. KENNETH: I don't think he was alive. He didn't bleed. STATE: Was he still trying to swallow? That's what you said. KENNETH: I said that he made sounds. I don't know if it was swallowing sounds or what-- STATE: Does a dead man make sounds? KENNETH: Sure. POSTCONVICTION COUNSEL: Object, your Honor. KENNETH: Actually, a dead man does make sounds. Kenneth testified that his recollection of the events from that night has never wavered. When asked about his prior testimony during the trial--i.e., that Heath stabbed Sheridan in the throat after he was shot in the chest, but before he was shot in the head--Kenneth testified, "Well, the truth is what I said at the trial and what I'm saying today. I spoke the truth at the trial. It appears to me that the statements that I made at the trial have been altered." With regard to the relationship between Kenneth and Heath, Kenneth testified, "My brother's the only person I ever feared." Kenneth also testified that when he was younger, Heath abused him both physically and sexually. Finally, Kenneth admitted that his mother wanted him (Kenneth) to try to save Heath's life.

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During the evidentiary hearing, Heath also called Dr. Darren Rothschild, a physician and psychiatrist who conducted a psychological evaluation of Heath; Heath's parents, Vivian and William; and Sheila Short, who worked as a correctional officer during Heath's trial. The State called Dr. Harry Krop, who evaluated Heath during his criminal trial, and one of Heath's trial attorneys. After the evidentiary hearing, the postconviction court issued an order that denied the remainder of the claims raised by Heath in his amended rule 3.851 motion. II. ANALYSIS Newly Discovered Evidence--Recanted Testimony Heath first contends that the postconviction court should have granted a new trial based upon the newly discovered evidence of Kenneth Heath's recanted testimony. This Court has addressed claims of newly discovered evidence and stated: [A] defendant must meet two requirements: First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones II).[ 6 ] Newly discovered evidence satisfies the second prong of this test if it "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his 6. Where the newly discovered evidence is relevant to the penalty phase, the evidence must be of such a nature that it would probably produce a life sentence recommendation. See Rutherford v. State, 926 So. 2d 1100, 1108 (Fla. 2006).

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culpability." Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla.1996) (Jones I)). In determining whether the evidence compels a new trial, the trial court must "consider all newly discovered evidence which would be admissible," and must "evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Jones v. State, 591 So. 2d 911, 916 (Fla. 1991). This determination includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence. Jones II, 709 So. 2d at 521 (citations omitted). When the trial court rules on a newly discovered evidence claim after an evidentiary hearing, we review the trial court's findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence. Melendez v. State, 718 So. 2d 746, 747-48 (Fla. 1998); Blanco v. State, 702 So. 2d 1250, 1251 (Fla. 1997). Green v. State, 975 So. 2d 1090, 1099-1100 (Fla. 2008). This Court has noted that recanted testimony is "exceedingly unreliable," and if a trial court is not satisfied that the recanted testimony is true, it has a duty to deny the defendant a new trial. Consalvo v. State, 937 So. 2d 555, 561 (Fla. 2006) (quoting Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994)). This Court is highly deferential with regard to a trial court's determination concerning the credibility of a recantation and will affirm such a determination if it is supported by competent, substantial evidence. See Archer v. State, 934 So. 2d 1187, 1196 (Fla. 2006).

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In the instant case, the postconviction court, in a well-written denial order, concluded that Kenneth's recanted testimony was unreliable for four reasons: First, Kenneth Heath's testimony is inconsistent with the medical examiner's trial testimony that the cause of death was gunshot and a sharp force injury to the neck. Second, Kenneth Heath's testimony is internally inconsistent. For instance, while Kenneth Heath claimed at the evidentiary hearing that the victim was dead at the time the defendant cut and stabbed at the victim's throat, Kenneth Heath did not recant his previous testimony that Michael Sheridan was making noises at the time Heath tried to cut this throat. While in the previous testimony at trial, Kenneth Heath described the sounds as "like he was trying to swallow," Kenneth Heath testified at the evidentiary hearing that he did not know if the sounds Mr. Sheridan was making were "swallowing sounds, or what." Nevertheless, according to Kenneth Heath, Michael Sheridan was still making sounds at the time the defendant stabbed him in the throat. This testimony directly contradicts his claim that Michael Sheridan was already dead when the defendant stabbed and sawed at his throat with a knife. Third, Kenneth Heath revealed his motivation for testifying for his brother during the collateral proceedings. When asked whether his mother wanted him to try to save Heath's life, he said, yes that "she doesn't want to see Ronnie die." Kenneth Heath had a motive to alter his trial testimony and this court believes it is appropriate to consider that motive as one factor in determining whether Kenneth Heath's "recanted" testimony as to the order of wounds is credible. Finally, Kenneth's Heath's demeanor on the witness stand and explanation for his changed testimony [i.e., that someone altered the court documents] belies any notion that his testimony as to the order of wounds is credible. As reflected in the procedural history, each of the postconviction court's findings is supported by the record. Further, it is indubitably more logical to assume that Kenneth changed his testimony based upon a request from his distressed mother than it is to claim that all court documents related to Heath's trial had somehow - 12 -

been altered. We conclude that that the trial court's finding with regard to the credibility of Kenneth's recantation is supported by competent, substantial evidence, and we affirm this determination. See Archer, 934 So. 2d at 1196. The postconviction court further concluded that even if Kenneth's testimony was credible, it was not of such nature that it would probably produce an acquittal. We agree. Regardless of whether Heath stabbed Sheridan in the throat while he was still alive or only after he was dead, Heath could still be convicted as a principal of either premeditated murder or first-degree felony murder. Section 777.011, Florida Statutes (1989), discusses the concept of a first-degree principal to a crime: Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such . . . . (Emphasis supplied.) See also Ferrell v. State, 686 So. 2d 1324, 1329 (Fla. 1996) (affirming first-degree murder conviction and death sentence where the defendant played an integral role in the crimes and in luring the victim to his death even though defendant did not pull the trigger). During the evidentiary hearing, Kenneth testified that while he and Heath were still at the Purple Porpoise, they discussed killing Sheridan after the robbery so there would be no witnesses. Thus, the brothers were contemplating murder

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even before they left the bar, and the murder of Sheridan was premeditated. See Perry v. State, 801 So. 2d 78, 84 (Fla. 2001) (" `Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.' This purpose to kill must exist for such a time before the homicide `to permit reflection as to the nature of the act to be committed and the probable result of that act.' " (quoting Green v. State, 715 So. 2d 940, 943-44 (Fla. 1998))). Further, the death of Sheridan occurred during the course of an armed robbery, thereby rendering the crime felony murder. See

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