Supreme Court of Florida
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No. SC15-1276
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PAUL DUROUSSEAU,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 31, 2017]
PER CURIAM.
Paul Durousseau appeals an order of the Fourth Judicial Circuit Court
denying his motion to vacate his conviction of first-degree murder and sentence of
death, filed pursuant to Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons discussed below, we
affirm the circuit court’s denial of postconviction relief but vacate Durousseau’s
sentences and remand for resentencing in light of Hurst v. Florida, 136 S. Ct. 616
(2016), as interpreted by Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016).
STATEMENT OF FACTS
We discussed the facts of this case in our opinion on direct appeal. See
Durousseau v. State, 55 So. 3d 543, 548-50 (Fla. 2010). Paul Durousseau was
sentenced to death for the murder of Tyresa Mack. In 1999, Mack’s sister and
stepfather found Mack’s body in her apartment. She was naked from the waist
down, and a white cord was wrapped around her neck. Durousseau’s DNA was
found inside Mack’s vagina. In 2003, Durousseau was indicted on five counts of
first-degree murder for the deaths of five women. The similar methodology of the
crimes caused investigators to conclude that Mack was one of Durousseau’s
victims. Durousseau was arrested for Mack’s murder.
In 2007, Durousseau was found guilty of the first-degree murder of Mack.
After the penalty phase, the jury voted ten to two to impose a death sentence. The
trial court found four aggravating factors: (1) Durousseau was previously
convicted of a felony involving the use or threat of violence; (2) the murder was
committed while the defendant was engaged in the commission of a robbery or
sexual battery; (3) the murder was committed for pecuniary gain; and (4) the
murder was especially heinous, atrocious, or cruel. The trial court did not find any
statutory mitigating circumstances, but it did find sixteen nonstatutory mitigating
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circumstances.1 Ultimately, the trial court sentenced Durousseau to death. Id. at
550. On December 9, 2010, this Court rejected all of Durousseau’s claims2 on
direct appeal. Id. at 564, cert. denied, 132 S. Ct. 149 (2011).
1. The trial court found the following sixteen nonstatutory mitigators: (1)
Durousseau was raised in a broken home (little weight); (2) Durousseau was raised
without the benefit of his natural father and lost the love and support of his
stepfather at an early age (little weight); (3) Durousseau grew up in poverty and
came from a deprived background (little weight); (4) Durousseau was raised in a
violent neighborhood and was exposed to violence and the threat of violence to his
person on a daily basis (little weight); (5) Durousseau personally witnessed his
stepfather physically abuse his mother (moderate weight); (6) Durousseau was
beaten as a means of discipline as a child (little weight); (7) Durousseau worked
continuously through his adult life (little to moderate weight); (8) Durousseau
enlisted and served in the United States Army for approximately six years
(moderate weight); (9) Durousseau has supported his two children and is a loving
and caring father (little weight); (10) Durousseau has been a loving, respectful son
to his mother and cared for her during several periods of illness and incapacitation
(moderate weight); (11) Durousseau has been a good brother to his siblings and to
other family members, helping to care for and watch over his cousins (moderate to
significant weight); (12) Durousseau saved his cousin’s life and his brother’s life
(moderate weight); (13) Durousseau has the support of family and friends who
continue to love him (little weight); (14) Durousseau has alcohol abuse issues on
both the maternal and paternal sides of his family; despite this, Durousseau has
never abused alcohol or illicit drugs (very little weight); (15) society can be
protected by a life sentence without parole (very little weight); (16) Durousseau
has exhibited good behavior during the trial of this cause (little weight).
2. Durousseau raised the following claims on direct appeal: (1) the trial
court erred in admitting Williams rule evidence of the two other murders; (2) the
trial court erred in denying Durousseau’s motion for judgment of acquittal of
felony murder with robbery as the underlying offense and that the evidence is
legally insufficient to support the pecuniary gain aggravator; (3) the trial court
erred in rejecting an expert’s opinion testimony regarding mental mitigation in
favor of conflicting lay testimony; (4) the evidence was insufficient to support a
first-degree murder conviction; and (5) the trial court erred in denying
Durousseau’s motion to declare Florida’s capital sentencing scheme
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On October 1, 2012, Durousseau filed a motion for postconviction relief in
the circuit court. Durousseau raised two claims in his postconviction motion: (1)
that counsel was ineffective for failing to request additional physical and
psychiatric testing; and (2) that counsel was ineffective for failing to conduct a
meaningful voir dire. However, before the evidentiary hearing, Durousseau
abandoned his first claim. On April 9, 2015, the postconviction court began an
evidentiary hearing that lasted two days. Ultimately, the postconviction court
denied Durousseau’s claim that counsel had failed to secure additional physical
and mental testing. Durousseau appealed to this Court, arguing that trial counsel
was ineffective because she failed to conduct meaningful voir dire. While his
appeal was pending in this Court, the United States Supreme Court decided Hurst
v. Florida, 136 S. Ct. 616 (2016), holding that Florida’s death penalty sentencing
statute violated the Sixth Amendment. In light of Hurst v. Florida, Durousseau
filed supplemental briefing, arguing that his death sentence should be vacated.
ANALYSIS
Durousseau alleges that (1) his counsel was ineffective during voir dire, and
(2) his death sentence violates Hurst v. Florida. We first reject Durousseau’s claim
unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). Durousseau, 55 So.
3d at 550.
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that his trial counsel, Ann Finnell, was ineffective during voir dire.3 We then hold
that Durousseau’s death sentence is unconstitutional under Hurst v. Florida.
Ineffective Assistance of Counsel
First, Durousseau argues that Finnell was ineffective for asking more
collective questions than individual questions. Second, Durousseau argues that the
postconviction court erred in finding that Finnell was not ineffective for failing to
inquire further of, and move to strike, two specific jurors and one alternate juror.
We reject both arguments.
In accordance with Strickland v. Washington, 466 U.S. 668 (1984), we
review claims of ineffective assistance of counsel as follows:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Long v. State, 118 So. 3d 798, 805 (Fla. 2013) (quoting Bolin v. State, 41 So. 3d
151, 155 (Fla. 2010)). Additionally,
3. In light of our decision that Hurst v. Florida requires us to vacate
Durousseau’s death sentence, we decline to address Durousseau’s argument that
Finnell was ineffective because she failed to adequately inquire of the venire
members about their attitudes toward aggravating and mitigating factors affecting
the imposition of the death penalty and did not sufficiently question the voir dire
with the specific aggravators and mitigators that applied to Durousseau.
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[t]here is a strong presumption that trial counsel’s performance was
not deficient. See Strickland, 466 U.S. at 690. “A fair assessment of
attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. The defendant carries
the burden to “overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. “[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been considered and
rejected and counsel’s decision was reasonable under the norms of
professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048
(Fla. 2000). Furthermore, where this Court previously has rejected a
substantive claim on the merits, counsel cannot be deemed ineffective
for failing to make a meritless argument. Melendez v. State, 612 So.
2d 1366, 1369 (Fla. 1992).
In demonstrating prejudice, the defendant must show a
reasonable probability that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
Long, 118 So. 2d at 805-06 (parallel citations omitted).
Because both prongs of the Strickland test present mixed questions of
law and fact, this Court employs a mixed standard of review,
deferring to the circuit court’s factual findings that are supported by
competent, substantial evidence, but reviewing the circuit court’s legal
conclusions de novo.
Shellito v. State, 121 So. 3d 445, 451 (Fla. 2013) (citing Mungin v. State, 79 So.
3d 726, 737 (Fla. 2011); Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004)).
With respect to claims that counsel was ineffective during voir dire, the
“[e]ffective assistance of trial counsel includes a proficient attempt to empanel a
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competent and impartial jury through the proper utilization of voir dire, challenges
to venire members for cause, and the proper employment of peremptory challenges
to venire members.” Nelson v. State, 73 So. 3d 77, 85 (Fla. 2011). The test for
competency and impartiality is whether a juror is capable of placing any bias aside
and is willing to render a verdict recommendation based exclusively on the
evidence and instruction of law presented at trial. Id.
In reviewing an attorney’s performance, we must be highly deferential and
make every effort to “eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. In light of
the challenges in evaluating counsel’s performance, we must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. If the defendant fails to make a showing of one
Strickland prong, it is not necessary to analyze whether the defendant satisfies the
other prong. Id. at 691-692.
To establish deficiency, a defendant must first specifically identify acts or
omissions of counsel that were manifestly outside the wide range of reasonably
competent performance under prevailing professional norms. Lynch v. State, 2 So.
3d 47, 56-57 (Fla. 2008). Counsel will not be deemed deficient where her actions
constituted a strategy within the bounds of professional norms. Occhicone, 768
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So. 2d at 1048 (concluding it was a reasonable strategy to not present additional
evidence at trial to ensure the defendant would have the first and last word during
closing argument). “The issue is not what present counsel or this Court might now
view as the best strategy, but rather whether the strategy was within the broad
range of discretion afforded to counsel actually responsible for the defense.” Id. at
1049.
First, Durousseau argues that Finnell was ineffective for asking more
collective questions than individual questions that would have led to an informed
method of exercising juror challenges. We affirm the postconviction court’s
finding that Finnell’s collective questioning did not prejudice Durousseau.
Durousseau suggests that he may have been prejudiced by trial counsel’s
failure to ask individual questions of the venire members or by counsel’s failure to
follow up with additional questions. Specifically, Durousseau hypothesizes that
Finnell lacked a complete understanding of the jury in light of her failure to ask
more individual questions. Durousseau likewise hypothesizes that as a
consequence, Finnell’s jury strikes were based on incomplete information. We
have previously rejected ineffective assistance claims like these.
To show prejudice, [the defendant] argues that [his trial counsel]
could possibly have learned more about the jurors’ views and used his
peremptory challenges in a different manner to obtain a more defense-
friendly jury. Such speculation fails to rise to the level of ineffective
assistance under Strickland.
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Johnson v. State, 921 So. 2d 490, 503-04 (Fla. 2005) (footnote omitted). We have
likewise rejected “alleg[ations] that if counsel had ‘followed up’ during voir dire
with more specific questions, there would have been a basis for a for-cause
challenge” as “mere conjecture.” Reaves v. State, 826 So. 2d 932, 939 (Fla. 2002);
see also Wade v. State, 156 So. 3d 1004, 1033 (Fla. 2014) (“Wade’s claim that
‘there would have been a basis for a for cause challenge if counsel had followed up
during voir dire with more specific questions is speculative.’ ” (quoting Green v.
State, 975 So. 2d 1090, 1105 (Fla. 2008))).
Durousseau’s arguments are likewise conjectural and speculative.
Durousseau asserts that Finnell’s failure to ask sufficient individual questions
precluded her from obtaining the information necessary to make intelligent use of
juror challenges. Durousseau does not identify what information individual
questioning would have revealed, nor how that information could have changed his
jury make-up or lead to a different result. Accordingly, we affirm the
postconviction court’s finding that Durousseau did not suffer any prejudice.
Second, Durousseau argues that the postconviction court erred in finding
that Finnell was not ineffective for failing to exhaust all of her peremptory
challenges, failing to request additional challenges, and failing to challenge the
jury panel. We again affirm the postconviction court’s findings in denying these
claims.
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The postconviction court found that Durousseau did not identify any
prospective juror that would have been better qualified to sit on the jury than the
jury eventually seated. Durousseau’s argument on appeal contains the same defect.
We have held that this defect is fatal to this type of claim of ineffective assistance
of counsel. See, e.g., Peterson v. State, 154 So. 3d 275, 282 (Fla. 2014) (“Peterson
does not point to any particular venire member [who] would have been better
qualified to serve in place of a seated juror.”). Accordingly, we affirm the
postconviction court’s finding.
Durousseau also specifically argues that Finnell should have further inquired
into three of the potential jurors: (1) alternate juror Markley, (2) juror Norrie, and
(3) juror Cummins. The postconviction court rejected Durousseau’s ineffective
assistance of counsel claims regarding Finnell’s questioning and challenging of
these jurors. We likewise affirm the postconviction court’s findings with regard to
these three jurors.
As to juror Markley, the postconviction court found that Finnell’s actions
did not prejudice Durousseau because juror Markley was an alternate juror and
never deliberated in Durousseau’s trial. We agree. Assuming that further
questioning would have revealed information demonstrating, for instance, juror
Markley’s bias against Durousseau, “prejudice can be shown only where one who
was actually biased against the defendant sat as a juror.” Carratelli v. State, 961
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So. 2d 312, 324 (Fla. 2007) (emphasis added); see also Dillbeck v. State, 964 So.
2d 95, 102 (Fla. 2007) (upholding a postconviction court’s finding, which stated,
“Two of the complained of jurors were alternates only who did not participate in
the jury’s verdict. Dillbeck cannot show prejudice based on alternate jurors [who]
never served.”) Because juror Markley served only as an alternate juror, we affirm
the postconviction court’s finding.
As to jurors Norrie and Cummins—who served on Durousseau’s jury and
deliberated as to his guilt and punishment—we likewise affirm the postconviction
court’s findings that Finnell was not deficient for her allegedly insufficient
questioning of these two jurors. Durousseau does not identify the particular
information that further questioning of these two jurors would have revealed, and
so cannot demonstrate that this undiscovered information would have produced
grounds to disqualify either juror. As we earlier noted, a postconviction movant
cannot demonstrate counsel’s ineffectiveness with speculative assertions that
further questioning of a juror during voir dire could have developed more
information that may have disqualified the juror. See Wade, 156 So. 3d at 1033;
Green, 975 So. 2d at 1105; Johnson, 921 So. 2d at 503-04; Reaves, 826 So. 2d at
939.
Durousseau also argues that Finnell was ineffective for failing to strike
alternate juror Markley and jurors Norrie and Cummins from the jury. The
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postconviction court also rejected this claim, and we affirm. A postconviction
movant “must demonstrate that [a particular juror] was actually biased, not merely
that there was doubt about [the juror’s] impartiality.” Owen v. State, 986 So. 2d
534, 550 (Fla. 2008). Durousseau does not allege that any of the three were
actually biased and thus prejudiced Durousseau at trial. Rather, Durousseau
merely raises the possibility that alternate juror Markley and jurors Norrie and
Cummins might have deserved a for-cause challenge, and counsel was ineffective
for failing to strike these potentially problematic jurors. Accordingly, we affirm
the postconviction court’s rejection of this claim. Id.
Durousseau also argues that we should not apply the “actual bias” standard
in this case because Finnell’s failure to better inquire of jurors is responsible for
Durousseau’s inability to point to specific information about juror bias. We reject
this contention because it is the postconviction movant’s responsibility to
demonstrate juror bias, irrespective of the alleged failures of trial counsel. See,
e.g., Boyd v. State, 200 So. 3d 685, 699 (Fla. 2015). Once the postconviction
movant identifies the juror’s bias, the movant must identify the manner in which
trial counsel was deficient by failing to uncover information during voir dire that
would have demonstrated the bias. See id. Accordingly, we reject Durousseau’s
argument and determine that we appropriately apply the “actual bias” standard in
this case.
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Durousseau has failed to demonstrate that his counsel was ineffective during
voir dire. Accordingly, we reject his ineffective assistance of counsel claims.
Hurst v. Florida & Hurst
In Hurst v. Florida, the United States Supreme Court held that Florida’s
capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment
requires a jury, not a judge, to find each fact necessary to impose a sentence of
death. A jury’s mere recommendation is not enough.” 136 S. Ct. at 619.
Durousseau’s death sentence was imposed under an unconstitutional capital
sentencing statute. Hurst v. Florida and Hurst apply retroactively to Durousseau,
whose sentence became final in 2010. See Mosley v. State, 41 Fla. L. Weekly
S629 (Fla. Dec. 22, 2016). The remaining question is whether the Hurst error was
harmless beyond a reasonable doubt.
A Hurst error is capable of harmless error review. See Hurst, 202 So. 3d at
67. Here we determine that the Hurst error during Durousseau’s penalty phase
proceeding was not harmless beyond a reasonable doubt. As this Court explained
in Hurst:
The harmless error test, as set forth in Chapman [v. California,
386 U.S. 18 (1967),] and progeny, places the burden on the state, as
the beneficiary of the error, to prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the
error contributed to the conviction.
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Hurst, 202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.
1986)). The Court further discussed the lens through which harmless error should
be evaluated:
Where the error concerns sentencing, the error is harmless only if
there is no reasonable possibility that the error contributed to the
sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
Although the harmless error test applies to both constitutional errors
and errors not based on constitutional grounds, “the harmless error
test is to be rigorously applied,” DiGuilio, 491 So. 2d at 1137, and the
State bears an extremely heavy burden in cases involving
constitutional error. Therefore, in the context of a Hurst v. Florida
error, the burden is on the State, as the beneficiary of the error, to
prove beyond a reasonable doubt that the jury’s failure to
unanimously find all the facts necessary for imposition of the death
penalty did not contribute to Hurst’s death sentence in this case. We
reiterate:
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.
Hurst, 202 So. 3d at 68 (alteration in original). Regarding the right to a jury trial, it
must be clear beyond a reasonable doubt that a rational jury would have
unanimously found that there were sufficient aggravating factors and that the
aggravating factors outweighed the mitigating circumstances. See id. at 44.
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In the present case, the jury did not make any of the requisite factual
findings beyond a reasonable doubt. Rather, the jury only issued a
recommendation of death by a vote of ten to two. Further, although the
aggravating circumstance of a prior violent felony was found unanimously by
virtue of Durousseau’s previous murder convictions, whether this aggravating
circumstance was sufficient to impose death requires a unanimous jury
determination. Hurst, 202 So. 3d at 44. Moreover, there is no way of knowing if
the jury found any of the other three aggravating circumstances unanimously or, if
any aggravators were unanimously found, whether the jury also unanimously
found those aggravators sufficient to qualify for a death sentence. Further, we
cannot conclude that the two jurors who voted to recommend life found that the
aggravation outweighed the mitigation.
Accordingly, we conclude that the Hurst violation was not harmless, and
Durousseau is entitled to a new penalty phase. As we have done for other capital
defendants, we reject Durousseau’s argument that section 775.082(2), Florida
Statutes (2015), entitled him to be resentenced to life imprisonment. See Hurst,
202 So. 3d at 44, 63-66.
CONCLUSION
Because Durousseau’s death sentence was imposed in violation of the Sixth
Amendment right to a jury determination of every critical finding necessary for the
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imposition of the death sentence and Florida’s independent right to jury trial, and
because we conclude that the Hurst error is not harmless beyond a reasonable
doubt, we vacate Durousseau’s death sentence and remand for a new penalty
phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion, in which
POLSTON, J., concurs.
PERRY, Senior Justice, concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., concurring in part and dissenting in part.
I concur with the decision to affirm the denial of relief regarding
Durousseau’s conviction. But I dissent from the decision to require a new penalty
phase. As I have previously explained, Hurst v. Florida, 136 S. Ct. 616 (2016),
should not be given retroactive effect. See Mosley v. State, 41 Fla. L. Weekly
S629, 2016 WL 7406506 (Fla. Dec. 22, 2016) (Canady, J., concurring in part and
dissenting in part).
POLSTON, J., concurs.
PERRY, Senior Justice, concurring in part and dissenting in part.
I concur with the majority’s decision to affirm the postconviction court’s
denial of relief as it pertains to Durousseau’s convictions and determination that
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the Sixth Amendment requires that we vacate Durousseau’s death sentence.
However, because Florida law requires that Durousseau be sentenced to life in
prison as a consequence of his unconstitutional death sentence, I disagree with the
majority’s decision to remand for a new penalty phase proceeding instead of
remanding for imposition of a life sentence. See § 775.082(2), Fla. Stat. (2016).
As I explained fully in Hurst v. State, 202 So. 3d 40, 75-76 (Fla. 2016)
(Perry, J., concurring in part and dissenting in part), there is no compelling reason
for this Court not to apply the plain language of section 775.082(2), Florida
Statutes. Because the majority of this Court has determined that Durousseau’s
death sentence was unconstitutionally imposed, Durousseau is entitled to the clear
and unambiguous statutory remedy that the Legislature has specified:
In the event the death penalty in a capital felony is held to be
unconstitutional by the Florida Supreme Court or the United States
Supreme Court, the court having jurisdiction over a person previously
sentenced to death for a capital felony shall cause such person to be
brought before the court, and the court shall sentence such person to
life imprisonment as provided in subsection (1).
See § 775.082(2), Fla. Stat. (emphasis added). The plain language of the statute
does not rely on a specific amendment to the United States Constitution, nor does it
refer to a specific decision by this Court or the United States Supreme Court.
Further, it does not contemplate that all forms of the death penalty in all cases must
be found unconstitutional. Instead, the statute uses singular articles to describe the
circumstances by which the statute is triggered. Indeed, the statute repeatedly
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references a singular defendant being brought before a court for sentencing to life
imprisonment. I consequently cannot agree that the statute was intended as a fail-
safe mechanism for when this Court or the United States Supreme Court declared
that the death penalty was categorically unconstitutional. Cf. Hurst v. State, 202
So. 3d at 40 (Perry, J., concurring in part and dissenting in part).
An Appeal from the Circuit Court in and for Duval County,
Jack Marvin Schemer, Judge - Case No. 162003CF010182AXXXMA
Richard Adam Sichta of The Sichta Firm, LLC, Jacksonville, Florida; and Billy
Horatio Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Carine L. Mitz, Assistant Attorney General,
and Robert James Morris, III, Assistant Attorney General, Tallahassee, Florida,
for Appellee
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