SC09-262 – Donald William Dufour v. State of Florida

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State: Florida

Docket No: SC09-262

Case Date: 02/03/2011

Preview:Supreme Court of Florida
____________ No. SC09-262 ____________ DONALD WILLIAM DUFOUR, Appellant, vs. STATE OF FLORIDA, Appellee. [February 3, 2011] REVISED OPINION PER CURIAM. This case is before the Court on appeal from an order concluding that Donald William Dufour is not mentally retarded pursuant to Florida Rules of Criminal Procedure 3.203 and 3.851. The final order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, and we therefore have jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution. We affirm the order of the postconviction court. FACTS AND PROCEDURAL HISTORY Background and the Direct Appeal Proceedings

Several homicides produced Dufour`s incarceration. In early September of 1982, the body of Zack Miller was found in an orange grove in Orlando. As the investigation of Miller`s death was proceeding, Dufour was involved in the robberies and murders of Daniel King and Earl Wayne Peeples in Jackson, Mississippi, in October of 1982. See Dufour v. State, 453 So. 2d 337, 338 (Miss. 1984). After being detained in Mississippi on the charges related to the King and Peeples murders, Dufour was arrested by Florida law enforcement officers for the first-degree murder of Miller. While the capital proceedings related to the Miller death progressed, Dufour pled no contest to the murder of Edward Wise, which had occurred in Orlando on July 4, 1982, and was sentenced to life imprisonment. A capital jury unanimously found Dufour guilty of the murder of Zack Miller and recommended the death penalty, which the trial court imposed in 1984. See Dufour v. State, 495 So. 2d 154, 157 (Fla. 1986) (Dufour I).1 On direct appeal, this Court affirmed the conviction and sentence. See 495 So. 2d at 156. The Court detailed the circumstances surrounding the Miller murder as follows:

1. In sentencing Dufour to death, the trial court found no mitigating circumstances and four aggravating circumstances: (1) Dufour was previously convicted of another capital felony; (2) the murder was committed while Dufour was engaged in the commission of an armed robbery; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (4) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. See Dufour v. State, 905 So. 2d 42, 49 (Fla. 2005) (Dufour III). -2-

State witness Stacey Sigler, [Dufour`s] former girlfriend, testified that on the evening of September 4, 1982, the date of the murder, [Dufour] announced his intention to find a homosexual, rob and kill him. He then requested that she drop him off at a nearby bar and await his call. About one hour later, [Dufour] called Sigler and asked her to meet him at his brother`s home. Upon her arrival, [Dufour] was going through the trunk of a car she did not recognize, and wearing new jewelry. Both the car and the jewelry belonged to the victim. [Dufour] had met the victim in the bar and driven with him to a nearby orange grove. There, [Dufour] robbed the victim and shot him in the head and, from very close range, through the back. Telling Sigler that he had killed a man and left him in an orange grove, he abandoned the victim`s car with her help. According to witness Robert Taylor, a close associate of [Dufour], [Dufour] said that he had shot a homosexual from Tennessee in an orange grove with a .25 automatic and taken his car. Taylor, who testified that he had purchased from [Dufour] a piece of the stolen jewelry, helped [Dufour] disassemble a .25 automatic pistol and discard the pieces in a junkyard. State witness Raymond Ryan, another associate of [Dufour], also testified that [Dufour] had told him of the killing, and that [Dufour] had said anybody hears my voice or sees my face has got to die. Noting [Dufour`s] possession of the jewelry, Ryan asked him what he had paid for it. [Dufour] responded[,] You couldn`t afford it. It cost somebody a life. Ryan further testified that he had seen [Dufour] and Taylor dismantle a .25 caliber pistol. Henry Miller, the final key state`s witness, testified as to information acquired from [Dufour] while an inmate in an isolation cell next to [Dufour]. In return for immunity from several armed robbery charges, Miller testified that [Dufour] had told him of the murder in some detail, and that [Dufour] had attempted to procure through him witness Stacey Sigler`s death for $5,000. Id. at 156-57.

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On direct appeal, Dufour raised sixteen issues. See id. at 157-64.2 This Court denied fifteen of the claims, but held that the trial court erroneously found that the murder had been committed for the purpose of avoiding a lawful arrest because the evidence failed to establish the requisite proof of intent. See id. at 163. Nevertheless, this Court upheld the sentence of death based on the three remaining aggravating factors and the complete lack of mitigation. See id. Postconviction Proceedings

2. Dufour advanced that (1) the trial court erred in denying his motion to suppress evidence seized during a search of his residence; (2) the testimony of Henry Miller should have been suppressed; (3) the trial court erred in denying several motions for mistrial; (4) the trial court abused its discretion in limiting the cross-examination of state witness Robert Taylor; (5) the trial court erred in allowing a detective to read into evidence portions of a statement made by Robert Taylor in 1982; (6) a mistrial was required after certain comments in the prosecutor`s closing argument impermissibly directed the attention of the jurors to Dufour`s decision to not testify; (7) the trial court committed reversible error in finding Dufour`s absence during a pretrial motions hearing voluntary and conducting the hearing in his absence; (8) the trial court erred in denying his motions for a continuance; (9) the trial court erred in declining to impose sanctions for an alleged violation by the prosecution of the provisions of Florida Rule of Criminal Procedure 3.220(b)(3); (10) the trial court erred in forcing Dufour to wear leg shackles during the trial; (11) the trial court erred in denying Dufour`s motion for mistrial; (12) the trial court erred in denying Dufour`s proposed special instructions on the jury`s sentencing recommendation; (13) the trial court erred during the penalty phase by admitting into evidence extensive details of the Mississippi murders committed by Dufour; (14) the trial court erred in denying Dufour`s motion to strike death as a possible penalty because the charging indictment had failed to allege the aggravating factors possibly subjecting him to the death penalty; (15) the trial court erred in finding that the avoid arrest aggravating factor was established; and (16) the trial court erred in finding that the cold, calculated, and premeditated aggravating circumstance was established. See Dufour I, 495 So. 2d at 157-64. -4-

In 1992, Dufour filed an initial motion pursuant to Florida Rule of Criminal Procedure 3.850, and he amended the motion in 2001. See Dufour v. State, 905 So. 2d 42, 50 (Fla. 2005) (Dufour III). Dufour raised multiple claims, but only one is tangentially relevant to the present appeal--whether the failure of the courtappointed psychiatrist to conduct appropriate tests for organic brain damage and mental illness violated due process. See id. In 2003, the circuit court denied Dufour`s motion, and Dufour appealed the order to this Court, asserting ten issues. See id.3 In addition, Dufour filed a petition for a writ of habeas corpus that presented four issues. See id.4

3. Dufour contended that (1) his counsel rendered ineffective assistance by failing to investigate and present a defense of voluntary intoxication and in failing to strike jurors during the guilt phase; (2) his penalty phase counsel rendered ineffective assistance; (3) he received an inadequate mental health evaluation; (4) he was prejudiced by the cumulative impact of improper evidence; (5) his trial counsel was ineffective in failing to object when the sentencing jury was misled by comments, questions, and instructions that inaccurately diluted the jury`s sense of responsibility for their role in the sentencing process; (6) the State committed fundamental error by destroying exculpatory physical evidence; (7) Florida`s death penalty statute was unconstitutional; (8) section 921.141(5), Florida Statutes (1981), was facially vague and overbroad; (9) the rule prohibiting Dufour`s lawyers from interviewing jurors was unconstitutional; and (10) the combination of procedural and substantive errors cumulatively deprived him of a fair trial. See id. at 50 n.1. 4. Dufour asserted that (1) his appellate counsel rendered ineffective assistance during his direct appeal; (2) the cold, calculated, and premeditated jury instruction was unconstitutionally vague and overbroad; (3) his death sentence was unconstitutional because the jury did not render a verdict on each element of the capital offense; and (4) the combination of procedural and substantive errors cumulatively deprived Dufour of a fair trial. See id. at 50 n.2. -5-

While the initial postconviction appeal was pending, Dufour filed a motion for postconviction relief that sought a determination of mental retardation pursuant to Florida Rule of Criminal Procedure 3.203. Correspondingly, Dufour filed a motion requesting this Court to relinquish jurisdiction to the circuit court. We denied the motion to relinquish jurisdiction without prejudice to Dufour filing a motion seeking relief under rule 3.203 within sixty days after his pending postconviction and habeas proceedings became final. See Dufour v. State, Nos. SC03-1326 & SC04-232 (Fla. Apr. 14, 2005) (unpublished order). On the same day, we issued a decision that affirmed the circuit court`s denial of Dufour`s motion for postconviction relief and denied his habeas petition. See Dufour III, 905 So. 2d at 48. In accord with this Court`s order, Dufour filed a timely motion pursuant to Florida Rules of Criminal Procedure 3.203 and 3.851 that asserted his conviction and sentence of death are contrary to the reasoning and holding in Atkins v. Virginia, 536 U.S. 304 (2002), which established that the Eighth Amendment prohibits the execution of the mentally retarded. Moreover, Dufour contended that section 921.137, Florida Statutes (2004), violates both the United States Constitution and the Florida Constitution. The circuit court appointed two expert psychologists to evaluate Dufour: Dr. Harry McClaren on behalf of the State and Dr. Valerie McClain on behalf of the defense. Dufour retained Dr. Denis Keyes as

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an expert, and the State presented the expert testimony of Dr. Sidney Merin, who had previously testified on behalf of the State during the 2002 postconviction hearing. The circuit court conducted an evidentiary hearing during which the evidence presented established Dufour`s deplorable and difficult childhood. When Dufour was two years old, his family moved from New York to Orlando, Florida. Before moving to Florida, Dufour`s father was afflicted by polio and was also injured in an accident that required a steel plate to be placed in his head. The resulting physical disability impacted his demeanor, and Dufour`s father developed depression. Thereafter, Dufour`s father became an alcoholic, spending most of his days drunk and releasing the anger he felt for his life on his family through physical abuse. As a result, Dufour witnessed domestic violence throughout his childhood and was the victim of physical abuse by his father. Dufour`s father died while Dufour was a teenager, and his mother remarried. In maintaining the new household, Dufour`s mother assigned the children chores, such as doing their own laundry, cleaning their room, cooking lunch, and washing the dishes. Dufour and his older brothers would also perform yard work and mow the grass. Dufour was able to accomplish each of these tasks. Dufour also possessed a license to drive and was able to drive without limitation. He appeared to understand the various traffic signals, although his friends sometimes

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characterized him as a poor driver. Additional evidence indicated that Dufour had participated in legal proceedings concerning a forfeiture of a vehicle purportedly owned by Dufour. With regard to the ability of Dufour to maintain a home and provide selfcare, throughout his life, Dufour has primarily resided with his parents, brothers, and friends. For example, Dufour and his former girlfriend, Stacy Sigler, decided to reside in an apartment together. Although in conflict with other evidence, Sigler testified that Dufour leased the apartment and handled the rent. Sigler testified that while she was at work, Dufour decorated the apartment for her. She further stated that Dufour possessed the ability to maintain a clean kitchen, but that their kitchen would not pass a white glove test. She testified that Dufour was able to select his own apparel and dress appropriately. In addition, Dufour was able to independently accomplish proper hygiene activities daily, such as brushing his teeth and showering. The evidence also established that Dufour possessed the ability to be selfsufficient and live independently of his friends and family. After committing the capital offenses in Mississippi, Dufour obtained food and secured boarding and lodging unaided by others. See Dufour v. State, 453 So. 2d 337, 339 (Miss. 1984). Specifically, Dufour negotiated with management at a boarding house that he would care for an elderly invalid who resided there in exchange for board and

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lodging. See id. When Dufour learned that he had been implicated in the Mississippi homicides, he arranged to change his identity by having his dark hair cut and dyed blond. See id. Thereafter, he remained in seclusion at the boarding house to avoid detection by law enforcement for approximately two weeks until he eventually left the premises and was ultimately arrested. See id. In the view of Dufour`s stepsister, Dufour was not mentally retarded and possessed intelligence equal to her own. During Dufour`s teenage years, his stepsister observed him reading and believed that he could interpret the material. This was in contrast to Dufour`s older brother John, who was described by family members as intellectually slow and who attended a school that assisted profoundly mentally retarded students who engaged in aggressive, violent behavior, or physically acted out in class. Despite his stepsister`s observations of his reading ability, other evidence demonstrated that Dufour had an abysmal academic performance in school. Initially established by his performance in first grade, this fact was further proven by his many failing grades throughout his education. For instance, he had to repeat the second grade due to his academic performance, and he still did not accomplish passing grades during his second attempt. In light of his poor grades, he was socially promoted, or placed for the rest of elementary school. The term placed indicated that although the student advanced to the next grade level, the

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student had not successfully achieved the curricular requirements to be promoted. In addition, Dufour was enrolled in basic classes, which were the lowest level of coursework in his school. However, other evidence suggested that this poor performance in school could be related to other factors, such as Dufour`s deplorable conditions at home, sexual abuse, and frequent abuse of alcohol and other narcotics. For example, Dufour informed a mental health expert that he spent the majority of his time in high school selling and consuming drugs instead of focusing on academics. The evidence demonstrated that Dufour still struggles with proper spelling and grammar. As an adult, Dufour would read children`s books to his friend`s children, but struggled with some of the words. In addition, various materials purported to be authored by Dufour contained misspellings and grammatical errors. Despite these difficulties, Dufour successfully completed medical requests in prison for a special diet and medicine to treat Hepatitis C, with which he was diagnosed. However, there was conflicting evidence as to whether Dufour engaged the assistance of others in completing these requests. The evidence further indicated that Dufour possesses proficiency in mechanical projects. In junior high, Dufour earned his highest grades in physical education and shop. After two years in junior high school, Dufour transferred to a vocational school. Subsequently, while incarcerated during the 1970s for a

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burglary conviction, Dufour obtained his General Educational Development (GED) diploma and completed a small engine repair course. In addition to successfully completing the course, Dufour served as an aide to the instructor of the course. Dufour also assisted in organizing and teaching a motorcycle repair course at the correctional institution. Dufour displayed other mechanical skills as a youth by refurbishing a motorcycle. In addition to his mechanical skills, testimony established that Dufour possessed street smarts, which is a shrewd awareness of how to survi ve as a result of living or working in a difficult environment. Dufour was also described as possessing the ability to easily persuade and interact with people. With regard to Dufour`s health, he began to abuse drugs and alcohol from a very young age. According to his older brother, if Dufour was awake, he was using alcohol or drugs. When bringing his father alcohol, Dufour would sip from the beer. He would also take beer from the refrigerator while his parents slept. By the third grade, Dufour would consume a six-pack of beer. By the fourth grade, he began abusing marijuana daily. Starting in the fifth grade, he experimented with inhalants such as toluene and glue on a daily basis. In junior high, his drug use escalated to include many psychedelic and sedative drugs. Dufour`s brother recalled that Dufour`s arm would be covered in scars or infected from injecting various types of narcotics into his veins with a needle.

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In addition to the drug and alcohol abuse, Dufour unsuccessfully attempted to establish that he suffered from organic and traumatic brain damage. Although there was some testimony with regard to incidents in which Dufour was injured, such as vehicular and physical accidents, none of this testimony established or substantiated that the accidents resulted in injury to his brain. Moreover, Dufour failed to present any evidence or medical records documenting any injuries to his brain. The evidence also developed Dufour`s employment history. He secured employment at roofing and painting companies but would only hold the position for a few months at a time. Further, Dufour`s former lover employed him as a chauffeur. At one point, a neighbor`s husband attempted to secure employment for Dufour working with drywall. However, when Dufour arrived at the construction site, it became apparent that he had no experience with drywall and he was terminated. Dufour`s brother also attempted to secure employment for Dufour as a yard assistant, but Dufour would often stop attending work. Other evidence established that Dufour`s difficulty in maintaining employment was a result of his dissatisfaction with the type of positions he obtained. In sum, Dufour failed to maintain stable employment. With regard to Dufour`s ability to maintain healthy relationships, as a child, Dufour was sexually abused by an adult man in his twenties. In seventh grade,

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Dufour began to engage in sexual relations with women. During junior high school, he engaged in alcohol-related sexual activities simultaneously with multiple, older sexual partners. When Dufour was in his late teenage years, his stepsister accused him of rape. When he was approximately sixteen years old, Dufour`s mother sent him to live with his older brother in Gainesville. Dufour became heavily involved in a predominantly homosexual party scene. During this period, one of his brother`s friends raped him. Dufour spent much of this time intoxicated and would exchange sexual favors for special favors from older men. For example, the older men would use Dufour to solicit younger boys. Later in life, he shared a romantic relationship with Stacy Sigler, which included Sigler working as a prostitute and sharing her proceeds with Dufour. Sigler and Dufour would have sex with multiple partners, including Dufour`s brothers. While with Sigler, Dufour planned and executed a trip for the couple to Houston, Texas. Sigler did not know who had booked the plane tickets, reservations, or other arrangements, and there was no evidence presented as to how the tickets were purchased. However, Dufour was in possession of the tickets and navigated the airport, such as finding the correct gate and flight for the duo. He also made all ground transportation arrangements, including paying for the transportation. Further, Dufour ushered Sigler to the locations that he wanted to visit without consulting others.

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Dufour presented testimony to establish that no property receipts or library records existed from Florida`s death row to indicate that Dufour utilized the lib rary resources or engaged in intellectual and strategic games. In addition, a death row inmate testified that Dufour required assistance in writing inmate requests for canteen supplies and appeared to have very poor hygiene. For instance, the inmate testified that Dufour did not understand that he had to wash his clothes. Instead, Dufour assumed that the sweat from his workouts cleaned his clothing. However, the State presented testimony with regard to contrasting property receipts which established that while incarcerated, Dufour possessed items such as paperback books, playing cards, a traditional dictionary, and a bible dictionary. Both defense experts, Dr. Keyes and Dr. McClain, concluded that Dufour was mentally retarded. Both state experts, Dr. Merin and Dr. McClaren, concluded that Dufour was not mentally retarded. The experts tested the intellectual functioning of Dufour and obtained the following scores: Dr. McClain--(a) Verbal IQ - 68; (b) Performance IQ - 72 (c) Full Scale IQ - 67; Dr. McClaren--(a) Verbal IQ - 65; (b) Performance IQ - 65; (c) Full Scale IQ - 62; Dr. Merin`s original test scores--(a) Verbal IQ - 85; (b) Performance IQ - 64; (c) Full Scale IQ - 74. Each of the experts reviewed and commented on the testing conducted by the other experts. With regard to Dr. Merin`s intelligence testing for the 2002

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proceeding, all of the experts noted that there were administration and scoring errors. Following the evidentiary hearing, the circuit court concluded that Dufour did not establish by either clear and convincing evidence or a preponderance of evidence that he was mentally retarded. Dufour now appeals that decision. ANALYSIS The Mental Retardation Determination Dufour challenges the circuit court`s determination that he is not menta lly retarded in accordance with the definition set forth in Florida Rule of Criminal Procedure 3.203 and section 921.137(1), Florida Statutes (2005). In 2001, the Legislature enacted section 921.137, which barred the imposition of death sentences on the mentally retarded and established a method for determining which capital defendants are mentally retarded. See

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