Supreme Court of Florida
____________
No. SC20-155
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DONTAE R. MORRIS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
April 8, 2021
PER CURIAM.
Dontae Morris appeals the denial of his initial postconviction
motion filed under Florida Rule of Criminal Procedure 3.851. 1 For
the reasons explained below, we affirm the postconviction court’s
denial of Morris’ claims.
I. BACKGROUND
Morris was convicted of two counts of first-degree
premeditated murder for the murders of Officer David Curtis and
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Officer Jeffrey Kocab and one count of escape while being
transported. Morris v. State, 219 So. 3d 33, 36 (Fla. 2017). On
direct appeal, this Court described the facts as follows:
Morris was convicted and sentenced to death on two
counts for the first-degree premeditated murders of
Officer David Curtis and Officer Jeffrey Kocab. The
evidence at trial established that on June 29, 2010, at
about 2:13 a.m., Officer Curtis pulled over a red Toyota
Camry in Hillsborough County for not displaying an
automobile tag. Cortnee Brantley was the driver, and
Dontae Morris was in the passenger’s seat. The dashcam
video from Officer Curtis’ patrol car was played for the
jury at trial. The transcript of that video includes a
discussion in which Morris identifies himself to Officer
Curtis, disclosing his name, age, and birthdate. The
transcript continues with a discussion between Officer
Curtis and Ms. Brantley about the missing tag on the
vehicle, and Ms. Brantley states that the tag was stolen.
Officer Curtis returned to his patrol car, entered
Morris’ name in his in-car computer, and discovered that
there was a warrant out for Morris. He called for backup,
and Officer Kocab pulled up and parked behind Officer
Curtis’ parked patrol car. Then both officers approached
the passenger side of the parked Camry. Officer Curtis,
with Officer Kocab standing right behind him at the
passenger side of the vehicle, asked Morris to exit the
vehicle. Morris exited the vehicle as if he was
surrendering but instead grabbed a gun and shot both
officers in the head. The approximate time for the
homicides of Officers Curtis and Kocab was 2:18 a.m.
This interaction is captured in the dashcam video in the
following way:
[Officer Curtis]: —you know anything about it?
[The Defendant]: The warrant?
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[Officer Curtis]: Yeah.
[The Defendant]: I ain’t got no warrant.
[Officer Curtis]: Okay. Step over here. Turn around
and step and put your hands behind your back.
(Shots fired.)
[Brantley]: Baby—Babe.
The remaining portion of the video captures
panicking individuals tending to the injured officers and
performing CPR. Both officers were transported to
Tampa General Hospital where they were later
pronounced dead. The officers’ autopsies confirmed that
both officers died of fatal gunshot wounds to the head.
Furthermore, an expert in the field of firearms analysis
and identification concluded that both of the projectiles
removed from the bodies of Officer Curtis and Officer
Kocab were fired from the same firearm.
Immediately following the shooting, Morris fled the
scene, running on foot northbound. Four days after the
homicides, Morris turned himself in.
On the front seat of Officer Curtis’ patrol vehicle,
detectives found Officer Curtis’ notepad and Cortnee
Brantley’s driver’s license. On the notepad, Officer Curtis
had noted the name and birthdate of the passenger as it
was provided to him when he asked the passenger to
identify himself. Additionally, in Officer Curtis’ car, the
mobile dispatch terminal, or in-car computer, indicated
Dontae Morris’ name, his identifying information, and a
photograph of him. Morris’ birth certificate was entered
into evidence and matched the name and birthdate that
the passenger of the Camry in the dashcam video
provided to Officer Curtis.
Temika Jones testified that she saw Morris, whom
she knew as “Quelo,” on the day of the murders in the
morning. She remembered that he was wearing a dark
blue vest with a white shirt underneath, dark khaki
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shorts, and white sneakers or tennis shoes. Ms. Jones
also testified that Morris called her around 2 a.m. Later
that day, detectives interviewed Ms. Jones. When the
detectives showed her a photograph, which was a still
photo from the dashcam video, she identified the
individual in the photo as Morris. She testified that it
looked like Morris because of the head shape and outfit
and because he had on the same clothing that he had on
that morning when she saw him.
Additionally, two witnesses testified that they saw a
black male running northbound from the scene of the
incident. Ynalia Keen lived in a bottom floor apartment
near where the traffic stop took place. She testified that
on the night of the incident, she had stepped out of her
apartment to get snacks from a gas station, and, when
she heard the gunshots, she rushed back inside. From
inside her apartment, looking through a front window
that looks out onto the street, she saw a black male
running on the sidewalk towards her apartment building,
then into the apartment complex, cutting through the
middle of the parking lot, and jumping a small fence.
When she could not see him through the front window,
Ms. Keen went to the kitchen to look through the window
at the back of the apartment, where she saw him jump
another, taller, chain-link fence.
The next day, on June 30th, Detective Charles
Massucci interviewed Ms. Keen. Ms. Keen identified
Morris’ photograph from a photographic lineup. Ms.
Keen also wrote the following statement: “Seen him on
the back road with a group of people. He had ran by my
house when the people was shot. Seen him at the Shell
store.”
The other witness, Alfred Thompson, was walking
northbound on the street where the traffic stop took
place. As he walked past the Camry, he noticed that the
car had two occupants sitting in the front seat, a black
female in the driver’s side and a black male in the
passenger’s side. He also saw the officer in his vehicle at
that time. After Mr. Thompson passed the cars, he heard
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two gunshots coming from behind him from the direction
of the police car and the other vehicle, and he hid behind
another car; he did not see the individual who fired the
shots. Thereafter, Mr. Thompson saw a black male run
northbound (on the same sidewalk he was walking on),
go through an apartment complex, and jump a chain-link
fence.
Just north of the crime scene, detectives found
footprints on the bottom part of the large fence at the
perimeter at the back of the apartment complex and also
found a piece of a zipper that was torn off from an article
of clothing attached to the top of that fence.
On the night of the murders, Morris called Ashley
Price and confided in her regarding the murders. Ms.
Price went to the Tampa Police Department on June 30,
the next day, and spoke with Officer Kevin Durkin. She
testified that she knew Morris as “Quelo” and that Morris
called her more than once in the early morning hours of
June 29. When she answered a call from Morris around
3:30 a.m., he asked for a ride, but she did not give him
one. She spoke with him on the phone again at around
noon that day, and Morris told Ms. Price “that he did it,”
telling her to watch the news about the police officers.
Ms. Price also testified that Morris told her the following:
that he shot the officers to get away from them, that he
was out of the car when he shot the officers, that there
were two officers, that he shot them in the head, that he
referred to them as “crackers,” that he got the gun from
under the seat, that he gave the officer his name, that the
officer had gone back to run his name, that he was afraid
that he had a warrant, that he was the passenger in the
car, and that he was going to try to go to Jacksonville.
Detective Charles Massucci confirmed that between
the time of the murders and the afternoon of June 30,
there were no releases from the Tampa Police
Department about the facts of the case to the press or to
the media concerning this subject matter that Ms. Price
discussed.
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The red Toyota Camry was located at an apartment
complex on the morning of June 29, the same day as the
crime, roughly nine-and-a-half hours after the crime
itself. This apartment complex was located about 2.8
miles from the crime scene. The building in which Ms.
Brantley, the driver, was located was about 500 yards
from where the Camry was parked. Pursuant to a search
warrant, the red Camry was seized and searched. DNA
analysis showed the blood found on the exterior
passenger side rear door matched that of Officer Curtis.
Ms. Brantley was escorted to Tampa Police Department
headquarters and was interviewed. During the
approximately six-and-a-half hour interview, detectives
asked Ms. Brantley more than once to identify the front
seat passenger in the Camry during the stop, but she
never identified him.
Additionally, cell phone records were presented at
trial for cell phones associated with Morris and Ms.
Brantley. Based on testimony regarding the cell records,
cell towers, mapping, and diagrams, the cell phone use
placed Morris and Ms. Brantley at or near the scene of
the crime at the time of the incident. And the testimony
revealed phone calls made in the minutes before and
after the murders of the two officers from the cell phone
associated with Morris.
Following the State’s case, the defense rested
without presenting any evidence or witnesses.
Thereafter, the jury returned guilty verdicts for two
counts of first-degree premeditated murder and one
count of escape while being transported.
At the penalty phase, the State presented evidence
that, on March 13, 2013, Morris was convicted of the
first-degree murder and attempted robbery with a firearm
of Rodney Jones and that Morris had been sentenced to
life in prison without the possibility of parole for that
conviction. The State also presented four victim impact
statements from family members of Officers Curtis and
Kocab. In mitigation, Morris presented the testimony of
his mother, two cousins, and his aunt. On November 19,
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2013, the jury recommended the death penalty by a vote
of twelve to zero on both counts.
At the subsequent Spencer [v. State, 615 So. 2d 688
(Fla. 1993)] hearing, the defense presented mental health
mitigation with expert testimony from Dr. Valerie
McClain, an expert in forensic psychology and
neuropsychology. Dr. McClain reviewed Morris’ prior
mental health records from Dr. Lamar Ingulli, which
included memory testing and IQ testing. Dr. McClain
diagnosed Morris with major depression with psychotic
features and borderline intellectual functioning but not
intellectually disabled. She testified that Morris had
deficiencies in verbal comprehension, such as word
knowledge and processing speed.
Then the State presented rebuttal mental health
expert testimony and additional victim impact testimony.
Dr. Emily E. Lazarou, an expert in the area of forensic
psychiatry, testified that she reviewed Dr. McClain’s
depositions, Dr. Ingulli’s medical records, and Morris’
school records, and opined that Morris was in the
average range of intellectual functioning with an IQ of at
least 100 to 110.
Morris, 219 So. 3d at 36-40 (footnote omitted).
After the presentation of mitigating and aggravating factors,
the trial court sentenced Morris to death in accordance with the
jury’s unanimous recommendations on both counts. 2 On direct
2. The trial court found the following aggravators were proven
beyond a reasonable doubt and accorded them respective weight:
(1) the defendant was previously convicted of another
capital felony or of a felony involving the use or threat of
use of violence to a person (great weight); (2) the capital
felony was committed for the purpose of avoiding or
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preventing a lawful arrest or effecting an escape from
custody (did not weigh or consider because merged with
law enforcement officer aggravator); and (3) the victim of
the capital felony was a law enforcement officer engaged
in the performance of his official duties (great weight).
Morris, 219 So. 3d at 39-40. The trial court also found the following
mitigators:
(1) Morris was prematurely born to a sixteen-year-old,
unwed mother (minimal weight); (2) Morris’ father was
murdered when he was two years old (no weight);
(3) Morris was raised by his maternal grandmother
during his early years, but her health was fragile and she
could not and did not adequately care for him (minimal
weight); (4) Morris’ mother did not bond with her child
because she suffered severe postpartum depression and
was a child herself (moderate weight); (5) Morris started
to bond with his step-grandfather, but he became a crack
addict and left the family (minimal weight); (6) Morris was
raised without a father or any other male role model
(moderate weight); (7) Morris’ mother subsequently gave
birth to two more children, and she eventually married
their father (minimal weight); (8) Morris’ mother
attempted to make a home with a supportive family
(minimal weight); (9) Morris’ mother grew tired of the
limited success of her efforts to integrate Morris into her
new family, and Morris felt more and more isolated,
alone, rejected, and left out (minimal weight); (10) Morris
had to watch his siblings receive support and affection of
a father, support he never had (minimal weight); (11) 14-
year-old Morris assumed the role of man of the house
and source of support for his siblings when his mother
left her husband, and Morris suffered with his mother
through a long and bitter divorce (minimal weight); (12)
after the divorce, the family moved in with another man,
and he and Morris competed for the role of man of the
house and father to his siblings, and Morris was asked to
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leave the home (moderate weight); (13) the family conflict
was encouraged by Morris’ former stepfather, who
undermined and sabotaged the discipline of Morris and
his siblings (moderate weight); (14) Morris lived for a
period of time with his paternal grandparents, but they
failed to control or discipline him, and he showed signs of
deteriorating school work and social and behavioral
turmoil (minimal weight); (15) Morris was close to his
aunt and his cousins, who were positive influences and a
healthy support system for him, but they moved during
the time of his family’s turmoil (minimal weight);
(16) Morris’ early teen years were unstable, and he was
uprooted multiple times, attending five different schools
and living in various relatives’ homes over a two-year
period (minimal weight); (17) when Morris became
involved in the juvenile justice system, his mother
obtained counseling for him, and she also petitioned
juvenile authorities and the court system to get more
stringent treatment programs for him (moderate weight);
(18) his mother’s requests were refused, and she was told
Morris’ offenses were not serious enough, and he got no
meaningful help or guidance during this critical juncture
in his development (moderate weight); (19) Morris has
maintained a supportive relationship with his child
(moderate weight); (20) Morris has maintained a caring
and supportive relationship with his cousins and other
family members even while in jail (minimal weight);
(21) Morris has expressed remorse for killing (minimal
weight); and (22) the above circumstances cumulatively
established general mitigating evidence that provides
reasons the death penalty is not appropriate (moderate
weight).
Id. at 40.
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appeal, we affirmed Morris’ convictions and sentences of death. Id.
at 46. The United States Supreme Court denied certiorari on
November 13, 2017. Morris v. Florida, 138 S. Ct. 452 (2017).
On November 6, 2018, Morris filed a postconviction motion
pursuant to Florida Rule of Criminal Procedure 3.851. He raised 7
claims, and the circuit court granted an evidentiary hearing on
most of Morris’ claims on June 10, 2019, but reserved ruling on
Morris’ cumulative error claim and Brady 3 claim. During the
evidentiary hearing, the postconviction court heard testimony from
Morris’ trial counsel, Karen Meeks and Christopher Boldt; mental
health experts who had testified at trial as well as new mental
health experts; Ashley Price and James Baird (Price’s former
partner); and Marcus Oglesby, a friend of Morris’ who claimed to
have seen him the night of the murders. On December 30, 2019,
the postconviction court entered an order denying Morris’
postconviction motion as to all claims. This appeal followed.
3. Brady v. Maryland, 373 U.S. 83 (1963).
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II. ANALYSIS
Morris now appeals the denial of relief, arguing that the
postconviction court erred in denying his initial postconviction
motion claims, including claims of (A) newly discovered evidence,
(B) ineffective assistance of counsel during the guilt phase of the
trial, (C) ineffective assistance of counsel during the penalty phase
of the trial, (D) cumulative error, and (E) a Brady violation. We
address each claim in turn.
A. Newly Discovered Evidence
Morris first argues that the postconviction court erred in
denying his claim of newly discovered evidence showing Ashley
Price lied when testifying against Morris at trial. Specifically, Morris
submits the testimony of James Baird, an inmate who was in a
relationship with Price around the time of Morris’ arrest and trial,
that Price testified against Morris because she was pressured by the
State and law enforcement and that Morris never confessed to her.
We affirm the denial of this claim.
To successfully claim newly discovered evidence, a defendant
must meet the two requirements set forth by this Court in Jones v.
State, 709 So. 2d 512, 521-22 (Fla. 1998). “First, in order to be
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considered newly discovered the evidence ‘must have been
unknown by the trial court, by the party, or by counsel at the time
of trial, and it must appear that defendant or his counsel could not
have known [of it] by the use of diligence.’ ” Id. at 521 (alteration in
original) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-
25 (Fla. 1994)). “Second, the newly discovered evidence must be of
such nature that it would probably produce acquittal on retrial.”
Id.
Under the second prong, the reviewing court 4 must “evaluate
the ‘weight of both the newly discovered evidence and the evidence
which was introduced at trial.’ ” Id. (quoting 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.
4. This Court “review[s] the trial court’s findings on questions
of fact, the credibility of witnesses, and the weight of the evidence
for competent, substantial evidence” and reviews the application of
the law to the facts de novo. Green v. State, 975 So. 2d 1090, 1100
(Fla. 2008).
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Id. (citations omitted).
Morris’ claim fails the first prong of Jones because he has not
demonstrated that the evidence was unavailable at trial and could
not have been discovered with due diligence. See Dailey v. State,
279 So. 3d 1208, 1215 (Fla. 2019) (holding that evidence related to
impeachment of a key witness could have been discovered by due
diligence where the defendant proffered documents that were
created around the time of trial and no other explanation for why
they were not discovered was given). Morris does not allege that the
defense team was unable to obtain Baird’s testimony prior to trial
and offers no explanation as to why Baird, who was in a
relationship with Price at the time of trial and was the father of her
unborn child, was not contacted by trial counsel. His only
contention is that Baird “made it clear during his evidentiary
hearing that he did not view it possible to reveal any of this
information prior to these postconviction proceedings,” but Baird
only testified that he did not come forward with this information
because he did not know Morris or his attorneys. This does not
establish that Baird was unavailable or that trial counsel was
unable to discover his evidence. See Kormondy v. State, 154 So. 3d
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341, 350-53 (Fla. 2015) (rejecting a claim that trial counsel
discovered new evidence of witnesses who purported to incriminate
a suspect based on conversations they had prior to trial when the
fact of communication between witnesses and the suspect was
established on record prior to the postconviction proceedings).
Moreover, this is not a situation where a witness later recants
testimony, meaning that the recantation is newly available. See
Davis v. State, 26 So. 3d 519, 528 (Fla. 2009) (“Regardless of the
time span from the time of trial to the discovery of the new
testimony, recanted testimony cannot be ‘discovered’ until the
witness chooses to recant.”). The first prong of Jones has not been
met.
Additionally, even if the testimony of Baird did meet the first
prong of Jones, it is not likely to produce an acquittal upon retrial
and fails the second prong. As the State correctly notes, Baird’s
testimony regarding Price’s alleged prior statements constitute
hearsay and could only be admissible to impeach Price. See
§ 90.801, Fla. Stat. (2020) (defining hearsay); § 90.608, Fla. Stat.
(2020) (providing for impeachment of a witness by introduction of
prior inconsistent statements). To the extent Baird’s testimony
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casts doubt on Price’s motives for testifying or presents evidence of
State influence, the impeachment value of this testimony is
overcome by the rehabilitation of Price at the evidentiary hearing,
namely Price’s testimony that the police did not pressure her and
her insistence that she did not discuss her involvement in the case
with Baird. See Merck v. State, 260 So. 3d 184, 198-99 (Fla. 2018)
(holding that the evidentiary value of a testimony related to a key
witness’ bias or motive would be overcome by potential
rehabilitation, so the proffered evidence probably would not produce
acquittal upon retrial). Further, when considered cumulatively,
Baird’s testimony about Price’s prior statements does not overcome
the weight of evidence presented against Morris at trial. In addition
to the testimony given by Price, the following evidence was
presented at trial: (1) dashcam footage of the shooting; (2) Officer
Curtis’ notepad with Morris’ name and identifying information
found in the passenger seat of the patrol car; (3) testimony of
Temika Jones identifying Morris in a photograph taken from the
dashcam; (4) testimony of Ynalia Keen identifying Morris in a
photographic lineup as the black man she saw running northbound
from the scene of the incident; (5) testimony of Alfred Thompson
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that he saw a black female and black male sitting in the Camry
before he heard gunshots and saw a black male run northbound
and jump a chain-link fence; (6) footprints and a portion of a torn
zipper at a nearby chain-link fence; and (7) cell phone records
placing Brantley and Morris at or near the scene of the crime at the
time of the incident. Morris, 219 So. 3d at 37-39. And the
postconviction court found Baird’s testimony to not be credible in
light of Price’s testimony refuting Baird’s claims. See Hurst v. State,
18 So. 3d 975, 993 (Fla. 2009) (“[W]e will not substitute our
judgment for that of the trial court on questions of fact, credibility
of witnesses, or the weight to be given to the evidence by the trial
court.”). Therefore, Morris has failed to establish that this
testimony from Baird would probably produce acquittal on retrial,
and we affirm the postconviction court’s denial of this claim.
B. Ineffective Assistance of Counsel During the Guilt Phase
Morris next argues that the postconviction court erred in
denying his claim that trial counsel was ineffective during the guilt
phase of the trial for (1) failing to conduct a reasonable investigation
and present evidence that could have meaningfully challenged the
State’s case; (2) failing to prevent the jury from seeing inflammatory
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evidence, specifically the dashcam footage of officers attempting to
revive their colleagues; (3) failing to object to the use of racial slurs
at trial; and (4) failing to obtain a working video of a November 10,
2011, jail visit. Because Morris has not established both deficiency
and prejudice with regard to any of these claims, we affirm the
denial of relief.
To succeed in a claim of ineffective assistance of counsel, the
defendant must prove two things: “[f]irst, the defendant must show
that counsel’s performance was deficient,” and “[s]econd, the
defendant must show that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Regarding the performance prong, “[j]udicial scrutiny of counsel’s
performance must be highly deferential,” and the appropriate
standard is “reasonableness under prevailing professional norms.”
Id. at 688-89. “A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment.” Id. at 690. Moreover, counsel’s “strategic decisions do
not constitute ineffective assistance of counsel if alternative courses
have been considered and rejected and counsel’s decision was
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reasonable under the norms of professional conduct.” Occhicone v.
State, 768 So. 2d 1037, 1048 (Fla. 2000). Further, to prevail under
the prejudice prong, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. Specifically, a “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
1. Failure to Investigate and Present Evidence that Would Have
Meaningfully Challenged the State’s Case
Morris argues that the postconviction court erred in denying
his claim that trial counsel was ineffective for failing to challenge
the State’s case in the following ways: (1) failing to present evidence
of checks cashed in 2008 by someone impersonating Dontae
Morris, (2) failing to challenge Price’s testimony by presenting
evidence of her continuing child custody issues, relationship with
the Tampa Police Department (TPD), financial struggles, and
violation of probation charges; (3) failing to call Marcus Oglesby as a
witness to contradict the identification of Morris based on his
clothes the day of the shooting; and (4) failure to present text
messages that showed Cortnee Brantley and Morris had broken up
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the day of the shooting and Morris was pursuing other women.
These pieces of evidence, Morris contends, would have cast doubt
on the identification of the passenger of the vehicle as himself.
Because the decision not to present these pieces of evidence was a
reasonable choice by trial counsel, we agree with the postconviction
court and affirm the denial of relief.
First, Morris has not established that trial counsel was
ineffective for failing to present the evidence of worthless checks
cashed in his name while he was in prison in 2008. Trial counsel
testified that they considered an imposter defense to which the
checks would have been valuable, but Morris “did not want this
type of issue explored at trial.” Because trial counsel considered
this course of action and ultimately deferred to the defendant’s
wishes, Morris has not established that counsel was ineffective.
See Occhicone, 768 So. 2d at 1048 (affirming the postconviction
court’s denial of ineffective counsel claim where trial counsel
testified that they considered presenting the evidence in question
and decided against it because they felt they had presented enough
evidence to the jury through cross-examination and that closing
arguments were more important); see also Derrick v. State, 983
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So. 2d 443, 460 (Fla. 2008) (“[A] defendant’s wishes can be a valid
consideration in deciding on an appropriate trial strategy.”).
Morris also has not shown that counsel was deficient or that
prejudice resulted from trial counsel’s cross-examination of Ashley
Price, specifically by failing to challenge Price by bringing up her
pending child dependency proceedings, financial problems, or
violation of probation charge. Morris contends that these pieces of
evidence show that Price was predisposed to give in to pressure by
TPD to falsely testify against Morris. Various details of these
circumstances were already presented to the jury including: (1) the
existence of a pending dependency case, (2) Price’s financial motive
to cooperate with the police, and (3) that Price had been convicted
of a felony three times and had an open case. See Gregory v. State,
224 So. 3d 719, 733-34 (Fla. 2017) (holding that trial counsel was
not deficient for failing to further impeach the defendant’s fellow
inmates where trial counsel had impeached inmates with prior
convictions and reduction of prison exposure based on testimony).
Any further impeachment of Price would have been largely
cumulative and failing to present cumulative evidence is not
ineffective assistance of counsel. See Card v. State, 497 So. 2d
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1169, 1176 (Fla. 1986) (concluding that counsel was not ineffective
for failing to present further evidence of impeachment where
counsel had thoroughly cross-examined and attempted to discredit
the witness). While trial counsel did testify that she was not aware
of some specific details of Price’s situation, namely that Price’s
children were not living with her and the eviction notice on her
apartment, trial counsel also testified that her strategy was to
discredit Price as a person with whom Morris would have shared a
confession, and she attempted to do so. Morris has not
demonstrated counsel was ineffective.
As to trial counsel’s decision not to call Marcus Oglesby as a
witness to rebut testimony as to what Morris was wearing at the
time of the murder, Morris has similarly not established deficiency
or prejudice. “This Court has . . . consistently held that a trial
counsel’s decision to not call certain witnesses to testify at trial can
be reasonable trial strategy.” Everett v. State, 54 So. 3d 464, 474
(Fla. 2010) (concluding that a decision to not call a witness based
on concern over the witness’ credibility was not deficient). As
discussed above, trial counsel testified that they considered
pursuing an imposter defense, but it was discouraged by Morris.
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Further, trial counsel testified that they had concerns over
Oglesby’s credibility and that his testimony could have been used to
corroborate that of Temika Jones, precisely the opposite goal of
calling him to testify in the first place. Accordingly, the decision to
not call Oglesby was an alternative course chosen for strategic
reasons, and Morris has not established deficiency.
Finally, Morris has not proven that counsel was ineffective for
failing to present text messages to the jury that allegedly showed
that Morris and Cortnee Brantley had broken up so Morris would
not have been with Brantley the evening of the murder. The
postconviction court determined that trial counsel’s testimony that
the text messages reflected that Brantley and Morris were just
having a “spat” was credible, and there is competent evidence to
support that finding. Other text messages from that evening
showed Morris and Brantley expressing loyalty to one another.
Further, given these other text messages, it seems reasonable for
trial counsel not to pursue this argument, and almost certain that
the outcome would not have been different were these text
messages introduced at trial.
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2. Inflammatory Dashcam Footage
Morris next claims that trial counsel was ineffective during the
guilt phase of the trial because they allowed the presentation of the
roughly two minutes of dashcam footage that showed other officers
attempting to revive the victims but has not established that this
decision was deficient performance under Strickland. Trial counsel
did object to the admission of the entire dashcam video prior to
trial. See Carroll v. State, 815 So. 2d 601, 613-14 (Fla. 2002)
(concluding that trial counsel was not deficient for acquiescing to
admission of autopsy photos where trial counsel had objected to
most of the autopsy photos). Once part of the dashcam video was
shown, trial counsel had strategic reasons for wanting the two
minutes in question to be shown to the jury, namely record
preservation and to show that the crime scene’s integrity was in
question. Cf. Wade v. State, 156 So. 3d 1004, 1019-20 (Fla. 2014)
(holding that trial counsel was not deficient for failing to object to
the use of photographs of a codefendant using the victims’ bank
card because trial counsel made a strategic decision not to object
based on the theory that the codefendant alone was responsible for
the murder). Because trial counsel made a strategic decision to
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allow the full dashcam video to be played for the jury once it was
submitted to evidence, we conclude counsel was not deficient.
3. Use of Racial Slurs
Morris also claims that trial counsel was ineffective during the
guilt phase for failing to object to the use of the racial slur “cracker”
3 times during the trial but has not established prejudice resulting
from trial counsel’s action. It is not clear that even if trial counsel
had filed a motion in limine to exclude the use of the term that it
would have been granted. Price’s testimony was that Morris used
the term “cracker” to describe the men he shot, so the term itself
was probative of identifying a victim. The term was further
probative of Price’s credibility as the race of the officers was not yet
released to the public. This Court has previously upheld the
admission of testimony including racial slurs attributed to a
defendant where the racial slur itself had probative value. Phillips
v. State, 476 So. 2d 194, 196 (Fla. 1985) (concluding that it would
not be error to admit testimony from a fellow inmate where
testimony included racial slurs attributed to defendant where
testimony discredited defendant’s alibi and provided context to an
incriminating admission). Moreover, 3 instances of the term
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“cracker” used as a descriptor do not inject the kind of racial
animus into a trial that would call into question the soundness of
the verdict like a trial counsel directly appealing to racial dynamics
in the case. Cf. State v. Davis, 872 So. 2d 250, 253-54 (Fla. 2004)
(finding the soundness of the verdict was in question when trial
counsel admitted to his own racial bias in discussing racial
prejudice with potential jurors during voir dire). Accordingly,
Morris has failed to establish that prejudice resulted from his trial
counsel’s failure to object to the use of the term “cracker.”
4. November 10, 2011, Jail Visit Video
Morris next argues that trial counsel was deficient for failing to
obtain a working video of a November 10, 2011, jail visit from
Morris’ mother in which Morris exhibited paranoid behavior and
stated he was hearing voices. Shortly after this visit, Morris was
put under direct observation. Morris contends failure to submit
this video to Dr. McClain resulted in a misdiagnosis of manic
depression with temporary psychosis instead of schizophrenia and
that failure to present the video to the jury prevented the jury from
understanding the context of Morris’ statement, “I repent for
killing,” made under direct observation. However, Morris has not
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established that deficiency or prejudice resulted from trial counsel’s
failure to obtain a copy of this video.
First, Morris has not demonstrated that trial counsel’s failure
to show a working video to Dr. McClain resulted in prejudice. As
the postconviction court noted, Dr. McClain did not testify that the
video would have changed her diagnosis or her testimony at trial;
she only testified that her “interactions with defense counsel with
regard to the issue of competency specifically would have been
different” and “further exploration of the potential psychotic
disorder and the onset of that would be very important.” Further, if
Dr. McClain had changed her testimony, it could have been
rebutted by additional expert testimony just as it was in the trial
and postconviction evidentiary hearing by Dr. Lazarou’s testimony.
See Turner v. State, 143 So. 3d 408, 418 (Fla. 2014) (finding that
the second prong of Strickland was not satisfied where new mental
health expert testimony was undermined by more convincing
rebuttal evidence from another mental health expert). Therefore,
and especially in light of the evidence shown at trial, Morris has not
demonstrated that the outcome of the proceedings would have been
different if Dr. McClain had access to this video.
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Second, Morris has not demonstrated that trial counsel was
deficient for not obtaining a working copy of the jail visit video and
showing it to the jury to challenge Morris’ statement, “I repent for
killing.” The trial court had precluded trial counsel from submitting
lay or expert testimony of Morris’ mental state of mind at the time of
this statement, so counsel reasonably concluded that his mental
state could not be addressed by providing more evidence from the
direct observation records. Morris, 219 So. 3d at 42. Further, trial
counsel believed that further evidence of the direct observation
records would open the door to other prejudicial evidence, for
example, Morris describing himself as a “young buck child
molester,” while under observation. Trial counsel is not deficient for
failing to present evidence where he reasonably concludes that
evidence may ultimately be more prejudicial. See Hall v. State, 212
So. 3d 1001, 1018 (Fla. 2017) (concluding that counsel was not
deficient for choosing not to present evidence that could be
interpreted by the jury as an attempt to blame the victim because it
would be prejudicial). Thus, trial counsel’s conclusion that offering
this video to the jury would open the door to further bad acts
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without actually impeaching the deputy who testified as to Morris’
statements was a reasonable strategic decision and not deficient.
5. Cumulative Effect
Morris also claims that the cumulative result of the deficiency
of his trial counsel and resulting prejudice warrants relief. Because
we conclude that counsel’s performance during the guilt phase was
not deficient, we also reject this claim. Accordingly, because Morris
has not demonstrated his counsel acted deficiently during the guilt
phase of his trial and prejudice resulted, we affirm the
postconviction court’s denial of relief with respect to the preceding
claims.
C. Ineffective Assistance of Counsel During the Penalty Phase
Morris next argues that the postconviction court erred by
denying his claim that his trial counsel was ineffective for failing to
adequately investigate and present mitigation evidence at the
penalty phase of his trial, specifically that trial counsel failed to
order a full psychosocial evaluation and obtain key mental health
evidence, failed to present all available mental health evidence to
the jury, and failed to present evidence of a neurocognitive
dysfunction entirely. Because Morris has not established deficiency
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or prejudice as required under Strickland, we affirm the
postconviction court’s denial of relief.
“For a defendant to establish that he was prejudiced by trial
counsel’s failure to investigate and present mitigation, the
defendant ‘must show that but for his counsel’s deficiency, there is
a reasonable probability he would have received a different
sentence. To assess that probability we consider “the totality of the
available mitigation evidence—both that adduced at trial, and the
evidence adduced in the [postconviction] proceeding”—and
“reweig[h] it against the evidence in aggravation.” ’ ” England v.
State, 151 So. 3d 1132, 1138 (Fla. 2014) (alterations in original)
(quoting Dennis v. State, 109 So. 3d 680, 695 (Fla. 2012)). As to the
penalty phase in this case, we need not address prejudice, because
Morris has not established that trial counsel’s performance was
deficient.
First, Morris has not shown that trial counsel was deficient for
failing to order a full psychosocial evaluation and present evidence
related to Morris’ family background. Morris relies on the fact that
Dr. Richard Cunningham, an expert retained during postconviction
proceedings, was able to interview many family members and
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present evidence of familial dysfunction that impacted Morris’
development during the postconviction proceedings because it
shows that evidence could have been obtained by defense counsel.
This claim, however, minimizes the fact that Morris was
uncooperative during the preparation for the penalty phase and
discouraged his family from cooperating as well. Trial counsel,
while under a duty to investigate mitigation evidence, is limited by
how much evidence a defendant wishes to present and his
cooperation with the investigation. See Simmons v. State, 105
So. 3d 475, 516-17 (Fla. 2012) (Polston, C.J., concurring in part
and dissenting in part) (“Essentially, as the trial court ably
explained, we are considering an ineffectiveness of counsel claim
‘raised by a Defendant who repeatedly chose to ignore the advice of
his qualified lead-counsel and chose—with his family’s support—to
limit mitigation evidence because it would cast him and/or his
family in a negative light.’ However, capital defendants have the
right to limit the mitigation evidence presented during the penalty
phase. See [Boyd v. State, 910 So. 2d 167, 189-90 (Fla. 2005)].”).
Further, this case is not similar to cases in which this Court found
a counsel deficient for failing to present mitigation evidence due to
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counsel’s own neglect or choice not to act because Morris’ counsel
did attempt to obtain mitigation evidence to present. See, e.g.,
Williams v. State, 987 So. 2d 1, 12-14 (Fla. 2008) (holding that trial
counsel was ineffective for failing to present evidence of a mental
health expert’s report where trial counsel testified that he deemed it
unnecessary to present the report to the judge at a Spencer hearing
because the jury recommended a life sentence, but the judge had a
history of overriding jury recommendations). Morris’ trial counsel
testified that many family members were contacted about testifying
or providing statements, but that with few exceptions, none
cooperated, and Morris himself was uncooperative in providing
information. Despite this, the jury was able to find the existence of
22 mitigating circumstances, most of which related to Morris’
upbringing and family. Accordingly, Morris has not demonstrated
that trial counsel was deficient for failing to obtain more evidence.
Next, Morris has not demonstrated that trial counsel was
deficient for failing to present mental health evidence to the jury.
The postconviction court found credible the testimony of trial
counsel that both Dr. McClain and Dr. Ingulli had advised that
there was a strong likelihood of an antisocial personality disorder
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diagnosis and that their opinions might be more harmful than
helpful if presented to the jury. This Court has repeatedly held that
“defense counsel is entitled to rely on the evaluations conducted by
qualified mental health experts.” Hernandez v. State, 180 So. 3d
978, 1013 (Fla. 2015) (quoting Stewart v. State, 37 So. 3d 243, 251-
52 (Fla. 2010)). Further, trial counsel did consider presenting
mental health evidence to the jury but testified that they were
concerned that the evidence would open the door to more negative
evidence so decided against it. “Strategic decisions do not
constitute ineffective assistance if alternative courses of action have
been considered and rejected.” Rutherford v. State, 727 So. 2d 216,
223 (Fla. 1998) (quoting State v. Bolender, 503 So. 2d 1247, 1250
(Fla. 1987)) (holding that trial counsel did not err in deciding not to
present mental health mitigation and choosing instead to focus on
“humanization” of the defendant); see also Lebron v. State, 135
So. 3d 1040, 1065-66 (Fla. 2014) (concluding counsel’s decision not
to present mental health evidence because it would open the door to
unfavorable testimony about defendant’s antisocial personality
disorder was a reasonable, strategic decision). Accordingly, Morris
has not demonstrated deficiency.
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Finally, Morris has not demonstrated that trial counsel was
deficient for failing to retain an expert to order further neurological
tests. Contrary to Morris’ statement of events, the postconviction
court found credible the testimony of trial counsel that Dr. Ingulli
did not express any concerns about Morris’ testing results and
indicated that there were no signs of brain damage or
abnormalities. Trial counsel further had Dr. McClain review Dr.
Ingulli’s data, and she also concluded that there was no significant
mitigation signs of significant brain damage. As discussed above,
this Court has repeatedly held that defense counsel is entitled to
rely on the reasonable opinions of its experts. Hernandez, 180
So. 3d at 1013-14. In Hernandez, we rejected a claim that counsel
was ineffective for failing to obtain further testing to confirm
suspected brain damage where one expert suspected possible brain
damage, but another expert was unable to make conclusive
findings. Id. Here, trial counsel similarly relied on the opinions of
two experts who told counsel they saw no signs of significant brain
damage. “[T]his Court has repeatedly held that a completely
reasonable investigation into mental health mitigation is not
rendered unreasonable simply because the defendant has now
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obtained the testimony of a more favorable mental health expert.”
Turner, 143 So. 3d at 417. Thus, Morris has not demonstrated
deficiency as to this claim.
Accordingly, we conclude that Morris has not shown that his
trial counsel was ineffective at the penalty phase of his trial and
affirm the postconviction court’s denial of relief.
D. Cumulative Error
Morris also claims he was denied a fundamentally fair trial
based on the cumulative effect of the errors that occurred. We
disagree. This Court has previously explained that where there is
deficient performance but we reject the individual claim for failure
to show prejudice, we conduct a cumulative review of
postconviction claims. See Craft v. State, 45 Fla. L. Weekly S293,
S297, 2020 WL 6788794, at *8 (Fla. Nov. 19, 2020). However,
where there is no deficient performance, there is no need to
consider cumulative prejudice. Brown v. State, 304 So. 3d 243, 271
(Fla. 2020) (affirming the circuit court’s denial of relief where the
defendant “has failed to show that trial counsel’s deficiencies,
individually or cumulatively, establish the prejudice required by
Strickland”). Accordingly, because we conclude that trial counsel’s
- 34 -
performance was not deficient, we reject Morris’ cumulative error
claim and affirm the postconviction court’s denial of relief.
E. Brady
Finally, Morris claims that the postconviction court erred by
summarily denying as procedurally barred his claim that the
prosecution withheld a working video of the November 10, 2011, jail
visit in violation of Brady v. Maryland, 373 U.S. 83 (1963). We
disagree and affirm the trial court’s denial of relief.
“An evidentiary hearing must be held on an initial 3.851
motion whenever the movant makes a facially sufficient claim that
requires a factual determination.” Matthews v. State, 288 So. 3d
1050, 1060 (Fla. 2019). “A court may summarily deny a
postconviction claim when the claim is legally insufficient,
procedurally barred, or refuted by the record.” Id.
First, as the postconviction court accurately noted, the
existence of the November 10 video was known to the defense team
prior to trial, so the claim is procedurally barred. A Brady claim is
procedurally barred if the defense knew of the evidence prior to trial
and could have addressed the discovery issue then. See Jimenez v.
State, 265 So. 3d 462, 481-82 (Fla. 2018) (rejecting a Brady claim
- 35 -
as procedurally barred where defendant had knowledge of a
predeposition interview because it was mentioned in discovery
materials and because defense counsel acknowledged the interview
during trial). Both parties acknowledge that the State provided
Morris with notice of six jail visitation videos in an amended notice
of discovery filed in April 2012 but that these videos were unable to
be downloaded or viewed due to a technical issue. The defense
should have addressed these issues before trial or during trial
through a Richardson 5 hearing for discovery violations. And in fact,
as alleged by Morris in his original motion, trial counsel appears to
have acknowledged the nonworking videos during trial preparation.
Accordingly, Morris’ Brady claim is now procedurally barred.
Further, even if Morris’ claim was not procedurally barred, it is
facially insufficient under Brady. “To establish a Brady violation,
the defendant has the burden to show that: (1) the evidence was
either exculpatory or impeaching; (2) the evidence was willfully or
inadvertently suppressed by the State; and (3) because the evidence
was material, the defendant was prejudiced.” Davis v. State, 136
5. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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So. 3d 1169, 1184 (Fla. 2014). However, “[t]here is no Brady
violation where the information is equally accessible to the defense
and the prosecution, or where the defense either had the
information or could have obtained it through the exercise of
reasonable diligence.” Peede v. State, 955 So. 2d 480, 497 (Fla.
2007) (quoting Provenzano v. State, 616 So. 2d 428, 430 (Fla.
1993)). Morris’ motion alleges that defense counsel had notice of
the existence of the jail visit videos and knew that they were unable
to view the videos. Reasonable diligence would seem to require that
defense counsel seek to obtain a working copy of the video after
learning that they were unable to download the video. Accordingly,
this claim is without merit, and we affirm the postconviction court’s
summary denial of relief.
III. CONCLUSION
For the reasons stated above, we affirm the postconviction
court’s denial of Morris’ claims.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
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An Appeal from the Circuit Court in and for Hillsborough County,
Michelle Sisco, Judge – Case No. 292010CF010203000AHC
Eric C. Pinkard, Capital Collateral Regional Counsel, Adriana
Cristina Corso, Ann Marie Mirialakis, and Nicole Engebretsen,
Assistant Capital Collateral Regional Counsel, Middle Region,
Temple Terrace, Florida,
for Appellant
Ashley B. Moody, Attorney General, Tallahassee, Florida, and
Marilyn Muir Beccue, Senior Assistant Attorney General, Tampa,
Florida,
for Appellee
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