In the early morning of August 24, 1990, Danny Rolling broke through the back door of an apartment in Gainesville, Florida, shared by two University of Florida students, Sonya Larson and Christina Powell, carrying an automatic pistol and a Marine Corps K-Bar knife. Over the next three days he killed both of them, Christa Hoyt, and then Tracy Paules and Manuel Taboada. Two weeks later he was running into the woods near Ocala from sheriff’s deputies after an armed robbery, and a tracking dog led them to his campsite. It took the Gainesville Homicide Task Force more than two years to charge him with the student murders, and the evidence that made the case against him at the penalty trial came largely from what he told investigators, and a fellow inmate who acted as his “mouthpiece,” in January and February 1993.
On February 15, 1994, the day his trial was to begin, Rolling pleaded guilty to all five murders. The jury recommended death on each count, and the Supreme Court of Florida’s opinion of March 20, 1997, the central document here, sets out the killings one by one and affirms the five death sentences. The 2002 opinion rejected his post-conviction appeal, and the Eleventh Circuit’s opinion of February 9, 2006, rejected his claim that his four lawyers had failed him by delaying a motion to move the trial out of Alachua County.
The other five opinions show the rest of the legal machinery a case like this sets in motion. Three concern the robberies, burglaries and thefts he committed in Marion and Hillsborough counties in 1990, and whether he was competent when he pleaded guilty to some of them. Two concern the State’s effort, under Florida’s law against criminals profiting from their crimes, to put a lien on anything he or the writer Sondra London earned from his story, his artwork and his belongings. The last, decided on October 18, 2006, turned down his challenge to Florida’s lethal injection procedure; he was executed a week later, on October 25.
Because Rolling pleaded guilty, no jury ever decided whether he committed the murders, and the 1997 opinion’s account of them is drawn from the penalty-phase evidence, including his own statements and those relayed through the fellow inmate, who was a witness hoping for his own freedom or a lighter sentence, as one of the later opinions discusses. His confession in writing to three killings in Shreveport, Louisiana, is not part of this record. The 1997 opinion spells Manuel Taboada’s first name “Manual.”
These are public records of Florida’s appellate courts and the Eleventh Circuit. The five students keep their names, and so do the lawyers, judges, psychologists, investigators and Sondra London, who was a party to one appeal in her own name. We have given initials to the fellow inmate and a second inmate witness, the man who was with Rolling when deputies found him in the woods near Ocala, a homeowner whose house he burglarized, and a juror whose seating he challenged.
The Caselaw Access Project text of the nine opinions is printed complete and in date order. Some scanning damage survives in the captures, including “Mm” and “Ms” for “him” and “his” in the 1997 opinion, a stray “⅛” in the name of a grocery store, and an accented “Ñolas” for an assistant public defender. We closed words the printer had split across lines only where the whole word appears elsewhere, and nothing has been spell-checked.
Danny H. ROLLING, Appellant, v. STATE of Florida, Appellee.
No. 91-2351.
District Court of Appeal of Florida, Fifth District.
May 14, 1993.
Rehearing Denied June 9, 1993.
Howard Babb, Public Defender, and Billy H. Ñolas, Sp. Asst. Public Defender, Ocala, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
After pleading guilty at arraignment, appellant was convicted of one count each of robbery with a firearm, possession of a firearm by a convicted felon and fleeing a police officer, and was sentenced as a violent habitual offender to life imprisonment. There are three issues on appeal, only one of which warrants discussion. The issue that concerns us is whether the record contained substantial competent evidence that appellant was competent when he pled guilty.
Important to our consideration is that this was an uncounseled plea. Appellant expressly and repeatedly waived counsel for his first appearance and arraignment. After repeating the waiver at arraignment and expressing the desire to plead guilty, the trial judge conducted a proper hearing, found the waivers to have been executed freely and voluntarily by an alert, intelligent defendant, and accepted appellant’s plea of guilty to all three charges. Sentencing was then set for November 8,1990. Thereafter, appellant decided to accept counsel. Through counsel, appellant filed motions for continuance of sentencing for completion of a psychological evaluation and for a confidential expert to determine his competence both at the time of the offense and to stand trial. The trial court granted both motions and appointed Dr. William Corwin, as a confidential expert for the defense, to examine appellant.
Appellant subsequently moved to withdraw his guilty pleas on the ground that he was incompetent to understand their significance and consequences. Thereafter, the trial court appointed Rodney Poetter, Ph. D., and Gary Honickman, Ph.D., to determine whether appellant was mentally competent on September 17, 1990 when he pled guilty and to determine if he was competent to proceed to sentencing.
On May 30 and 31, 1991, the trial court conducted a hearing to determine whether appellant was legally competent when he pled guilty. There were four witnesses on this issue: Judge John Futch, who accepted appellant’s guilty pleas; Dr. Corwin; and Drs. Poetter and Honickman. Also considered was the transcript of the plea hearing.
Judge Futch handled appellant’s arraignment on September 17, 1990 and recalled it in part because appellant waived counsel and pled guilty to a serious felony, which he considered somewhat unusual. Accordingly, he gave the matter special attention. He observed nothing extraordinary about appellant. The answers appellant gave were pertinent; he was talkative, but not inappropriately so; and he did not exhibit any inappropriate behavior. He indicated he understood the charges, the possible penalties and the consequences of pleading guilty. There was no indication appellant might want an attorney. Appellant did and said nothing that raised any question in the judge’s mind about his competency.
In evaluating appellant’s competency, Dr. Corwin, who is board certified by the American Board of Forensic Psychiatry, considered background information concerning appellant, his jail and medical files, and the transcript of the plea colloquy of September 17, 1990. He considered three diagnoses: antisocial personality disorder, schizoid-type personality and psychosis. He concluded appellant suffers from schizoid-type psychosis. Dr. Corwin said he would need more observation to be more specific, but thought appellant’s psychosis was schizophrenic in partial remission because of anti-psychotic medication (Thorazine) that was prescribed for appellant by Dr. Robin Miller, the prison psychiatrist. He did not believe appellant was faking because he responded to the Thorazine. Dr. Corwin testified that a psychotic person may have periods of lucidity.and may also be rational in some areas but not in others. He could not say whether appellant was lucid on September 17, but believed the transcript revealed he was too eager to plead guilty which indicated appellant was not able to assess accurately his circumstances. He also found the plea consistent with appellant’s pattern of self-mutilation — the need to hurt himself. Dr. Corwin testified that to a reasonable degree of psychiatric certainty appellant was not competent when he pled guilty on September 17, 1990.
Dr. Honickman is a doctor of clinical psychology. He saw appellant three times in early 1991 — on February 22, March 5 and March 22. Honickman gave appellant five tests: the WAIS-R; the WRAT-R; Weschler Memory Scales; the Beck Depression Inventory; and the MMPI, a personality inventory. The first four tests showed appellant was borderline retarded and suffering from severe depression. He found appellant’s MMPI profile invalid because he thought several of the clinical scale scores were too high. He, therefore, did not believe appellant was psychotic as the scores suggested; instead, he thought appellant exaggerated his personal concerns, either as a cry for help or an attempt to solicit sympathy from his evaluators. He admitted that if appellant’s MMPI profile were valid, it would be consistent with a severely psychotic individual. Although he acknowledged that records are more important in a retrospective evaluation of competency than when evaluating present competency, the only record he reviewed was a transcript of the plea colloquy. Honickman also agreed that appellant’s jail and medical records, which contained observations closer in time to the plea, were, if true, consistent with the MMPI profile. Honickman acknowledged there were several things he could have done to check whether the MMPI profile was valid but that he did not do any of them. Dr. Honickman admitted he could not say to a reasonable degree of psychological certainty whether appellant was psychotic on September 17. He concluded, nevertheless, that he had enough information to form an opinion about appellant’s competency on September 17, 1990 and opined that appellant was competent.
Dr. Poetter reviewed appellant’s jail medical file but no other background information. He relied on Dr. Honickman’s testing and his own observations of appellant. He described appellant as quite lucid and coherent. Poetter initially testified he diagnosed appellant as suffering from antisocial personality disorder (which is inconsistent with psychosis), alcohol abuse in remission, mixed substance abuse (marijuana and crack cocaine) in remission and adjustment disorder with depressed mood. However, under questioning by defense counsel, Poetter admitted that under the relevant criteria he could not support his diagnosis of antisocial personality and withdrew it on the stand. Nevertheless, Poetter affirmed his conclusion that appellant is not psychotic. He testified he could evaluate appellant’s competency on September 17 to a reasonable degree of psychological certainty, and concluded that appellant was competent on September 17, 1990, understood what was happening and understood the consequences of his plea.
On June 19, 1991, the trial court denied appellant’s motion to withdraw his guilty plea, finding that the plea was entered voluntarily and knowingly, and that appellant had an adequate opportunity to consult with counsel but chose not to do so. The trial court found that appellant had a rational and factual understanding of the proceedings, and that he understood the charges, the seriousness of the penalties he faced and the consequences of his guilty plea. The court ruled that on September 17, 1990 appellant was competent to proceed without counsel and enter a guilty plea.
In seeking to reverse the competency ruling of the lower court, appellant relies mainly on Mason v. State, 489 So.2d 734, 737 (Fla.1986), where the supreme court suggested it would be a violation of due process to base a finding of competency on pure speculation. This is not such a case, however. None of the experts testified that appellant’s competency at the plea hearing could not be determined to a reasonable degree of professional certainty. Appellant’s expert testified that he was psychotic at the time of his examination, that he was probably psychotic on September 17, and that the record of the September 17 proceedings showed he was not competent when he pled guilty. The other experts testified that he was not psychotic at the time of the competency hearing and that nothing suggested to them that he was psychotic or incompetent when he pled guilty. Unquestionably, the expert testimony that appellant was not psychotic at the relevant times is weak and these witnesses were effectively impeached by appellant’s counsel. This goes to the weight of the evidence, however. There was evidence upon which to base the competency finding.
We find wisdom in prior statements of our supreme court that a guilty plea should be set aside where there is doubt that an uncounseled defendant was competent when he entered the plea. Eckles v. State, 180 So. 764, 766 (Fla.1938). In this case, however, a thorough hearing was conducted so that the question of competency could be fully explored, and the lower court found appellant was competent to plead guilty. See Hill v. State, 473 So.2d 1253 (Fla.1985).
Although not raised initially, appellant has brought to our attention, by way of supplemental authority, the recent decision of our supreme court in Ashley v. State, 614 So.2d 486 (Fla.1993). That decision applies to this case. Because appellant pled guilty at arraignment, the state attorney had not yet generated a notice of intent to seek treatment of appellant as a habitual offender or violent habitual offender. By failing to give appellant such notice prior to acceptance of his plea, the state was not entitled to seek habitual offender status for appellant. Accordingly, as in Ashley, the cause is remanded to the trial court for resentencing under the sentencing guidelines.
CONVICTIONS AFFIRMED; CAUSE REMANDED FOR RESENTENCING.
COBB, HARRIS and GRIFFIN, JJ., concur.
§ 812.13(2)(a), Fla.Stat.
§ 790.23, Fla.Stat.
§ 316.1935, Fla.Stat.
The remaining two issues have no merit. Specifically, we reject appellant's claim that the trial court did not conduct an adequate inquiry into appellant’s waiver of the right to counsel. See Fla.R.Crim.P. 3.172(c). Judge Futch’s dialogue was not deficient for failing to explain to appellant what a lawyer might do for him if he had one. Appellant immediately informed the court of his desire to waive counsel and to plead guilty; thus the issue of whether appellant had sufficient information to weigh his ability to represent himself in defense of the charges, as in the cases relied on by appellant, was not relevant here.
Miller was deceased at the time of the hearing, but his records were admitted into evidence. He, too, diagnosed appellant as psychotic.
Danny ROLLING, Appellant, v. STATE of Florida, ex rel. Robert A. BUTTERWORTH, Attorney General, and Rodney W. Smith, State Attorney in and for the Eighth Judicial Circuit of Florida, Appellees.
No. 93-1968.
District Court of Appeal of Florida, First District.
Jan. 6, 1994.
Richard L. Rosenbaum, Fort Lauderdale and Daniel Aaronson of the law firm of Benjamin & Aaronson, Fort Lauderdale; and Arlene C. Huszar, Florida Institutional Legal Services, Inc., Gainesville, for appellant.
Robert A. Butterworth, Atty. Gen., George Waas, Asst. Atty. Gen., Tallahassee; and Rodney W. Smith, State Atty., Gainesville, for appellees.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Danny Rolling has appealed from a non-final order granting a temporary injunction against the disbursement of the proceeds obtained from any recounting of a crime, issued pursuant to Florida Statutes section 944.512. This statute imposes a lien in favor of the State of Florida upon the proceeds payable to a convicted felon or anyone on his behalf from any literary, cinematic or other account of the crime for which the felon was convicted. The statute provides expressly that the lien shall attach at the time of the conviction in county or circuit court. There is no provision in the statute for a temporary injunction prior to a conviction.
Appellant asserts a number of grounds for reversing this injunction. The first of these is the constitutional invalidity of section 944.512, based upon a theory that this statute is an improper prior restraint upon constitutionally protected speech. We decline to reach this constitutional question because there are other grounds upon which to dispose of this ease. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688, rehearing denied mem., 297 U.S. 728, 56 S.Ct. 588, 80 L.Ed. 1011 (1936); The Florida Bar v. Rayman, 238 So.2d 594, 596 (Fla.1970) (well-established rule requires disposition of cases without deciding the constitutional questions whenever possible).
The constitutional argument is relevant, however, to the statutory construction argument raised by Mr. Rolling. The State asserts that this statute is constitutional under the standard established in Simon & Schuster v. Members of the Board of the New York State Crime Victims Board, — U.S. -, 112 S.Ct. 501,116 L.Ed.2d 476 (1991), in part because the lien does not attach until after a conviction. In Simon & Schuster the United States Supreme Court struck down New York’s “Son of Sam law” because it was not narrowly drawn to serve the compelling state interest in compensating victims from the fruits of the crime. One of the grounds for finding that statute overbroad was that the New York lien attached to all accounts of crimes, whether or not the author had been convicted or even accused of the wrongdoing. The State argues that the Florida statute is valid under the reasoning of Simon & Schuster because the lien does not attach until there has been a conviction. Yet the State also asserts that they can freeze these assets by way of a temporary injunction until the hen can attach at the time of a conviction. These positions are inconsistent.
The statute expressly provides that there is no hen until there has been a conviction. Under the State’s own arguments that fact is key to the constitutionality of the statute. The State’s right to the hen is contingent upon the conviction of Mr. Rolling of the crimes for which he has been indicted. Therefore, there can be no temporary injunction prior to conviction. There is no legal right to an injunction when the right to recover is contingent upon some future event hke the outcome of a separate lawsuit. See Oxford International Bank & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 874 So.2d 54, 56 (Fla. 3d DCA 1979), cert. dismissed mem., 383 So.2d 1199 (Fla.1980) (“granting of injunctive relief is improper when a plaintiffs right to recover is contingent upon a future event, i.e., here, appellee’s successful prosecution of its suit ... ”).
Because this temporary injunction purports to control the proceeds of recountings of “all crimes,” including those for which Mr. Rolling has not yet been convicted, it must be vacated. Therefore, we need not decide at this time whether any future more narrowly drawn injunction could pass constitutional muster, what county or counties would be the proper venue(s) for seeking the lien under section 944.512, or whether there is a sufficient factual basis in this case to support such an injunction.
Accordingly, the order granting the temporary injunction is VACATED.
ZEHMER, C.J., DAVIS, J., and SHIVERS, Senior Judge, concur.
We note that the State took the position in its Answer Brief that the constitutional question was not as significant as Appellant argued in the Initial Brief, and Appellee used this to justify a complete reorganization of the issues presented in the argument section. This is inappropriate. An Appellee should address the issues in the same order as they are presented in the Initial Brief so that the court can be certain which arguments are being addressed. See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1122 (Fla.1984) ("answer briefs should be prepared in the same manner as the initial brief, so that the issues before the Court are joined”).
Parenthetically, this Court notes its dismay that there was apparently not even an evidentiary hearing on the sufficiency of the grounds for a temporary injunction. The trial court's order did not address the State’s likelihood of success on the merits. Nor did the trial court rule upon the likelihood of success of the defendant’s affirmative defense that the contract attached to the verified complaint had been repudiated and was not valid. The State conceded at oral argument that in the absence of that contract there was no basis for the lien or the temporary injunction. The trial court also apparently never tested the sufficiency of the affidavit filed in support of the verified complaint, notwithstanding the fact that some of the facts were clearly not within the personal knowledge of the affiant.
Danny Harold ROLLING, Appellant, v. STATE of Florida, Appellee.
No. 91-03694.
District Court of Appeal of Florida, Second District.
Sept. 28, 1994.
Richard Escobar of Richard Escobar, P.A., Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Patricia E. Davenport, Asst. Atty. Gen., Tampa, for appellee.
[OPINION BY THREADGILL, Judge. type=majority]
THREADGILL, Judge.
This is a consolidated appeal from four separate trials for robberies and aggravated assaults, and burglaries and thefts in Hills-borough County. The appellant, Danny Harold Rolling, challenges his convictions and sentences as a habitual violent felony offender in each case. We affirm all the convictions. We reverse the sentences imposed for the three robberies and one attempted robbery at the Save ⅛ Pack grocery store (circuit case no. 91-01932). We also reverse the sentences imposed for the burglary and theft at the Rio residence (circuit case no. 91-14200). We affirm all other sentences.
The appellant was convicted of three robberies and one attempted robbery, all of which were committed with a firearm, at the Save ⅛ Pack grocery store on September 2, 1990. He was sentenced as a habitual violent felony offender to three consecutive life sentences for the robberies and a consecutive thirty-year sentence for attempted robbery. The minimum mandatory portion of each sentence was also imposed consecutively; thus, he received three consecutive fifteen-year minimum mandatory sentences followed by a ten-year minimum mandatory sentence for a total minimum mandatory sentence of fifty-five years.
In Palmer v. State, 438 So.2d 1 (Fla. 1983), the supreme court construed section 775.021(4), Florida Statutes (1981), to authorize consecutive sentencing for offenses not committed during a single criminal transaction or episode. The court reversed consecutive three-year minimum mandatory sentences imposed for thirteen armed robbery convictions when a man brandished a pistol simultaneously at the twenty-five to thirty people who were present and ordered them all to throw their money and valuables on the floor.
The appellant committed the robberies at Save ⅛ Pack in a similar manner by pointing a gun simultaneously at the four cashiers and one by one demanding money from them. Three of the cashiers were able to open their registers and give him money. The fourth cash register would not open. As there was no significant interruption in time and place among the robberies and attempted robbery, it was error to impose consecutive sentences.
We reverse the minimum mandatory sentences for the same reason. In Daniels v. State, 595 So.2d 952 (Fla.1992), the supreme court held that a trial court lacks discretion to stack minimum mandatory sentences as a habitual felony offender where the offenses arise from a single criminal episode.
The appellant was also convicted of burglarizing the home of R.R., Jr. on September 7, 1990, and stealing his Ford Mustang with a key taken during the burglary. The theft commenced during the burglary when the appellant formulated the intent to steal the car and equipped himself with the means of stealing it. As the burglary and theft occurred during a single criminal episode, Palmer and Daniels dictate that concurrent sentences and concurrent minimum mandatory sentences be imposed.
We therefore reverse the sentences for the robberies and attempted robbery at Save ’n Pack and remand with directions to impose the sentences and minimum mandatories concurrently. We also reverse the sentences for the burglary and theft at the Rio residence and remand with directions to impose the sentences and minimum mandatories concurrently. The appellant need not be present for resentencing. We otherwise affirm the convictions and sentences.
Reversed in part; affirmed in part.
DANAHY, Á.C.J., and LAZZARA, J., concur.
Circuit Court Case no.: 91-01932.
Circuit Court Case nos.: 91-05620, 91-5621, and 91-14200.
§§ 812.13(1) and (2)(a) and 777.04(1), Fla.Stat. (1989).
§ 775.084(4)(b)l., Fla.Stat. (1989).
Danny ROLLING, Appellant, v. STATE of Florida, Appellee.
No. 93-1766.
District Court of Appeal of Florida, Fifth District.
June 2, 1995.
Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, and Daniel Aaronson of Benjamin & Aaronson, P.A., Fort Lauderdale, and Arlene C. Huszar, of Florida Institutional Legal Services, Inc., Gainesville, for appellant.
Nina E. Vinik, Miami, Amicus Curiae for American Civil Liberties Union Foundation of Florida, Inc.
Robert A. Butterworth, Atty. Gen., and Harry F. Chiles and George Waas, Asst. Attys. Gen., Tallahassee, for appellee.
[OPINION BY COBB, Judge. type=majority]
COBB, Judge.
Danny Rolling was convicted in Marion County of robbery with a firearm, possession of a firearm by a convicted felon and fleeing or eluding a law enforcement official. He appeals from an order purportedly imposing a lien in favor of the state on any proceeds received by him from any literary, cinematic or other account of these offenses.
We do not reach the constitutional issue. We simply quash the action of the trial court, which purported to grant a “lien” in a closed criminal case based upon section 944.512, Florida Statutes (1993). Subsection (1) of that statute provides:
A lien prior in dignity to all others shall exist in favor of the state upon royalties, commission, proceeds of sale, or any other thing of value payable to or accruing to a convicted felon or a person on his behalf, including any person to whom the proceeds may be transferred or assigned by gift or otherwise, from any literary, cinematic, or other account of the crime for which he was convicted. A conviction shall be defined as a guilty verdict by a jury or judge, or a guilty or nolo contendere plea by the defendant, regardless of adjudication of guilt. The lien shall attach at the time of the conviction in county or circuit court. In the event of an appeal, the funds will be held in the Revolving Escrow Trust Fund of the Department of Legal Affairs until the appeal is resolved. (Emphasis added).
In the instant case there are no “royalties, commissions, proceeds of sale, or any other thing of value payable to or accruing to” Rolling or to anyone else as a result of his criminal activity in Marion County, and it is highly improbable that there ever will be. There is no “literary, cinematic, or other account” of such Marion County crimes, either currently or prospectively. The statute provides that any such lien “shall attach at the time of conviction....” While that point in time may serve as a benchmark in respect to competing claims once a res exists for attachment of a lien, in the interim there is
no lien and no justiciable issue for resolution by the Circuit Court of Marion County. As observed by Justice Ellis in the case of Case v. Texas Co., 115 Fla. 668, 156 So. 137, 141 (1934):
It is axiomatic that a lien cannot exist until the amount for which it is security is ascertained or capable of ascertainment. It is a charge upon property for the payment or discharge of a debt or duty. 17 R.C.L. 596; 37 C.J. 311.
Moreover, even assuming the existence of a res, any such lien attaches automatically under the statute, leaving the action of the trial judge in the instant case superfluous. At such time as something of value accrues to Rolling as a result of his criminal activities in Marion County, the constitutionality of section 944.512 may be raised in an appropriate action, presumably via declaratory judgment or attempted enforcement of the lien.
We decline to enter an advisory opinion as to the constitutionality of section 944.512.
QUASHED.
HARRIS, C.J., and DAUKSCH, J., concur.
Danny Harold ROLLING, Appellant, v. STATE of Florida, Appellee.
No. 83638.
Supreme Court of Florida.
March 20, 1997.
Rehearing Denied June 12, 1997.
Nancy A. Daniels, Public Defender; and Nada M. Carey, David A. Davis, Paula S. Saunders and Michael Wasserman, Assistant Public Defenders, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, and Carolyn Snurkowski, Assistant Attorney General, Tallahassee, for Appellee.
[OPINION BY PER CURIAM. type=majority]
REVISED OPINION
PER CURIAM.
Danny Harold Rolling, a prisoner under sentence of death, pled guilty to the murders of five college students — Sonya Larson, Christina Powell, Christa Hoyt, Manual Taboada and Tracy Paules — and other related charges. He now appeals the trial court’s imposition of five death sentences after adjudicating him guilty of each of the murders and holding a penalty phase proceeding pursuant to section 921.141(1), Florida Statutes (1995). We have jurisdiction under article V, section 3(b)(1), of the Florida Constitution. For the reasons expressed below, we affirm the imposition of the death sentences.
FACTS OF THE CASE
The record reflects that in the early morning hours of August 24, 1990, Danny Rolling, armed with both an automatic pistol and a Marine Corps K-Bar knife, broke through the rear door of an apartment shared by college students Sonya Larson and Christina Powell. Upon entering the apartment, Rolling observed Christina Powell asleep on the downstairs couch. He stood over her briefly, but did not awaken her.
Rolling then crept upstairs where he found Sonya Larson asleep in her bedroom. After pausing to decide with which young woman he desired to have sexual relations, he attacked Ms. Larson as she lay in her bed, stabbing her first in the upper chest area. He then placed a double strip of duct tape over her mouth to muffle her cries and continued to stab her as she unsuccessfully attempted to fend off his blows. During the attack, she was stabbed on her arms and received a slashing blow to her left thigh. Ms. Larson maintained consciousness for less than a minute and died as a direct result of the stab wounds inflicted by Rolling.
After killing Ms. Larson, Rolling returned to the downstairs of the apartment where Ms. Powell remained asleep. He pressed a double strip of tape over her mouth and taped her hands behind her back. Rolling cut off her clothing and undergarments with the K-Bar knife and sexually battered Ms. Powell, threatening her with the knife. Thereafter, Rolling forced her to lie facedown on the floor near the couch and stabbed her five times in the back, causing her death. Rolling posed the bodies of the victims and left the apartment.
Approximately forty-two hours later, during the evening hours of Saturday, August 25, Rolling broke into the apartment of college student Christa Hoyt, located about two miles away from the first crime scene, by prying open the sliding glass door with a screwdriver. Armed with the same automatic pistol and K-Bar knife, Rolling waited in the living room for the arrival of Ms. Hoyt, a young woman into whose bedroom he had peeked a few days earlier. When Ms. Hoyt eventually returned home at about 11 a.m., Rolling surprised her from behind, placing her in a choke-hold and subduing her after a brief struggle. He taped her mouth and her hands and then led her into her bedroom where, after cutting and tearing off her clothing and undergarments, he forced her onto her bed, threatened her with his knife, and sexually battered her. Rolling subsequently turned Ms. Hoyt facedown in her bed and stabbed her through the back, rupturing her aorta and killing her. Just as he had done with his first two victims, Rolling posed the body of his third victim and left the apartment.
A little over a day later, at approximately 3 a.m. on August 27, Rolling entered a third apartment, occupied by roommates and college students Tracy Paules and Manuel Taboada. Again, Rolling broke into the apartment by prying open the double-glass sliding door with the same screwdriver he used to enter Ms. Hoyt’s apartment. Armed with the same pistol and knife, Rolling crept into one of the bedrooms where he found Manny Taboada asleep. Rolling attacked Taboada, stabbing him in the solar plexus and penetrating his thoracic vertebra. Taboada was awakened by the blow and struggled to fight off his assailant. Rolling repeatedly stabbed him on the arms, hands, chest, legs and face and eventually killed him.
Hearing the commotion caused by the struggle, Tracy Paules approached Taboada’s bedroom and, catching a glimpse of Rolling, fled to her room where she attempted to lock her door. Rolling, who was covered with Taboada’s blood, followed Ms. Paules and broke through her bedroom door. Rolling subdued her, taped her mouth and her hands, and cut or tore off her t-shirt. He sexually battered her and threatened her with his knife before turning her over on the bed and killing her with three stabbing blows to her back. Finally, Rolling cleaned and posed the body of Tracy Paules and left the apartment.
PROCEDURAL POSTURE
This ease originated in the Eighth Judicial Circuit Court in and for Alachua County. On November 15, 1991, the grand jury of Alachua County indicted appellant, Danny Rolling, for these serial murders. He was charged with five counts of first-degree murder, three counts of sexual battery, and three counts of armed burglary of a dwelling with a battery. On June 9, 1992, Rolling entered a plea of not guilty on all counts. Subsequently, on February 15,1994, the day set for trial, Rolling changed his plea to guilty on all counts. The trial court accepted Rolling’s plea after reviewing with him the factual basis for it and adjudicated him guilty on all counts.
A penalty phase proceeding was held, and the jury recommended that Rolling be sentenced to death for each murder by a vote of twelve to zero. The trial court followed the jury’s advisory recommendation and sentenced Rolling to death for each homicide, finding four aggravating circumstances applicable to each homicide: (1) Rolling had been previously convicted of a violent felony; (2) each murder was cold, calculated, and premeditated; (3) each murder was heinous, atrocious, or cruel; (4) each murder was committed while Rolling was engaged in the commission of a burglary or sexual battery. The trial court found as statutory mitigating factors that (1) Rolling had the emotional age of a fifteen-year-old; and (2) Rolling committed the crimes while under the influence of extreme mental or emotional disturbance. As for nonstatutory mitigators, the trial court found: (1) Rolling came from a dysfunctional family where he suffered physical and mental abuse during his childhood, and this background contributed to his mental condition at the time of the offenses; (2) Rolling cooperated with law enforcement officers by confessing and entering a guilty plea on all counts, thereby saving the criminal justice system time and expense; (3) Rolling felt remorse for his actions; (4) Rolling’s family has a history of mental illness; and (5) Rolling’s ability to conform his conduct to the requirements of law was impaired because of his mental illness.
Rolling raises six claims of error on appeal: (1) the trial court abused its discretion in denying his motion for a change of venue and thereby violated his Sixth Amendment right to be fairly tried by an impartial jury because pervasive and prejudicial pretrial publicity so infected the Gainesville and Alachua County community that seating an impartial jury there was patently impossible; (2) the trial court erred in denying Rolling’s motion to suppress his statements which were obtained in violation of his Sixth Amendment right to counsel; (3) the trial court erred in denying Rolling’s motion to sever and conduct three separate sentencing proceedings; (4) the trial court erred in denying Rolling’s motion to suppress physical evidence seized from his tent because the warrantless search and seizure violated his reasonable expectation of privacy under the Fourth Amendment; (5) the trial court erred in finding as an aggravating circumstance that the homicide of Sonya Larson was especially heinous, atrocious, or cruel; and finally (6) the trial court erred by giving an invalid and unconstitutional jury instruction on the heinous, atrocious, or cruel aggravating circumstance. We now address each issue in turn.
CHANGE OF VENUE
Rolling and his defense counsel made a deliberate and strategic choice not to file a motion for a change of venue at any time during the three years Rolling awaited trial for these offenses because they believed he could be fairly tried by an impartial jury in Gainesville. Instead, contrary to the dictate of Florida Rule of Criminal Procedure 3.240(c), which requires that a change of venue motion be filed no less than ten days before trial, Rolling waited until the sixth day of jury selection to request a change of venue for the first time, when defense counsel admitted to the court: “I have to swallow my pride and admit that I was incorrect in my original opinion that this case could be fairly tried here.” The trial court subsequently denied the motion after a hearing.
Rolling now argues on appeal that the trial court erred in denying his motion for a change of venue because the record shows the pretrial publicity in this case during the three and a half years between the time the murders occurred in August 1990 and Rolling’s guilty plea in February 1994 was so pervasive and prejudicial that this Court must presume as a matter of law that the venire, as well as the actual members of the jury, were biased against him. Rolling points also to the responses of certain prospective and actual jurors during voir dire as further evidence that the entire Gainesville and Alachua County community had been victimized by Rolling’s crimes and harbored an inherent prejudice and animosity against him.
To the contrary, the State, while candidly acknowledging that this case generated massive pretrial publicity, maintains that the three and one-half years between the crimes and the trial served to distance the community from most of the media coverage surrounding Rolling’s case, and, even assuming otherwise, the publicity was not presumptively prejudicial because it consisted of “straight news stories,” relating “cold, hard facts.” Moreover, the State contends that “[bjeyond a doubt the trial court undertook extraordinary measures to ensure jurors who sat were fair and impartial,” and “all jurors who served affirmatively and unequivocally stated that they could put aside any prior knowledge and decide the ease based solely on the evidence presented at trial.” Upon thorough review of the record in this case, we agree with the State.
It is a well-settled principle under our caselaw that a criminal trial may be held in a county other than that designated by the constitution or by statute if prejudice in the proper county makes it impossible for a defendant, like Danny Rolling, to secure a fair trial by an impartial jury there. Such prejudice may warrant a change of venue when widespread public knowledge of the case in the proper county causes prospective jurors there to judge the defendant with great disfavor because of his character or the nature of the alleged offense. When this occurs, the defendant’s right, under the United States and Florida Constitutions, to a fair trial by an impartial jury is protected by moving the trial from the proper, but partial county, to an impartial one. Manning v. State, 378 So.2d 274, 276 (Fla.1979)
In McCaskill v. State, 344 So.2d 1276 (Fla.1977), we set out the test for determining whether a change of venue is required because of prejudice in the proper county:
The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.
Id. at 1278 (quoting Kelley v. State, 212 So.2d 27, 28 (Fla. 2d DCA 1968)).
The trial court in its discretion must determine whether a defendant has raised such a presumption of prejudice under this standard. Manning, 378 So.2d at 276. On appeal, however, the appellate court has “the duty to make an independent evaluation of the circumstances.” Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). In exercising its discretion, a trial court must make a two-pronged analysis, evaluating: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).
Of course, as the trial court properly noted in its order here, pretrial publicity is normal and expected in certain kinds of cases, like this one, and that fact standing alone will not require a change of venue. Provenzano, 497 So.2d at 1182. Rather, in evaluating the nature and effect of any pretrial publicity on the knowledge and impartiality of prospective jurors, the trial court must consider numerous factors, such as: (1) the length of time that has passed from the crime to the trial and when, within this time, the publicity occurred, Oats v. State, 446 So.2d 90, 93 (Fla.1984); (2) whether the publicity consisted of straight, factual news stories or inflammatory stories, Provenzano, 497 So.2d at 1182; (3) whether the news stories consisted of the police or prosecutor’s version of the offense to the exclusion of the defendant’s version, Manning, 378 So.2d at 275; (4) the size of the community in question, Copeland v. State, 457 So.2d 1012, 1017 (Fla.1984); and (5) whether the defendant exhausted all of his peremptory challenges. Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978).
The second prong of the analysis requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire. If voir dire shows that it is impossible to select jurors who will decide the case on the basis of the evidence, rather than the jurors’ extrinsic knowledge, then a change of venue is required. Copeland, 457 So.2d at 1017. The ability to seat an impartial jury in a high-profile ease may be demonstrated by either a lack of extrinsic knowledge among members of the venire or, assuming such knowledge, a lack of partiality. ' Oats, 446 So.2d at 93.
To be qualified, jurors need not be totally ignorant of the facts of the case nor do they need to be free from any preconceived notion at all:
To hold that the mere existence of any preconceived notion as to the guilt of the accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642—43, 6 L.Ed.2d 751 (1961). Thus, if prospective jurors can assure the court during voir dire that they are impartial despite their extrinsic knowledge, they are qualified to serve on the jury, and a change of venue is not necessary. Davis, 461 So.2d at 69. Although such assurances are not dispositive, they support the presumption of a jury’s impartiality. Copeland, 457 So.2d at 1017.
In some instances, the percentage of prospective jurors professing an extrinsic knowledge of the ease or a fixed opinion has been used to determine whether pervasive community prejudice exists. However, even where a substantial number of prospective jurors admit a fixed opinion, community prejudice need not be presumed. For instance, in Murphy, the United States Supreme Court evaluated these percentages as follows:
In the present case, by contrast, 20 of 78 persons questioned were excused because they indicated an opinion as to petitioner’s guilt. This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.
421 U.S. at 803, 95 S.Ct. at 2037-38 (footnote omitted). Consistent with the Murphy rationale, courts of this state have found in other cases, where similar percentages of prospective jurors voiced a bias during voir dire, that a change of venue was not required because the partiality of certain individual venire members did not reflect a pervasive prejudice infecting the entire community. See Provenzano; Copeland; see also Pitts v. State, 307 So.2d 473 (Fla. 1st DCA 1975).
In this case, the trial court’s order, which we find to be supported by the record, details the meticulous jury selection and screening process which it employed in an effort to ultimately seat a jury able to impartially recommend an appropriate sentence. Here, the court individually reviewed each of the 1233 responses filed by prospective jurors and, prior to voir dire, summarily excused over 800 of those summoned because they were either exempt or legally ineligible to serve or otherwise demonstrated some “hardship” requiring exeusal. The trial court, in its own words, used a “strict standard of acceptance ... in determining which jurors should be retained” and “excused those who claimed to have a state of mind that would render them unable to be impartial either to the State or the Defendant.”
Moreover, panels of twenty to twenty-four prospective jurors were questioned in two phases. The first round of questioning focused on attitudes regarding the death penalty and exposure to pretrial publicity. The second round of questioning addressed all other matters. Prospective jurors heard only the responses of others placed on the same panel, and did not observe the questioning and responses of other panels. In both phases, prospective jurors were reminded that they could respond to the questions privately to the court and counsel outside the presence of other panel members. The record reflects that throughout the process, the trial court gave the attorneys wide latitude in questioning prospective jurors. The court also liberally granted Rolling’s challenges for cause, often over the State’s objection, and allotted Rolling six additional peremptory challenges after he exhausted his initial twenty.
Finally, the trial court analyzed the pretrial publicity in this case as follows:
Another factor to be viewed by the Court in a case with this degree of pretrial publicity is the nature of the publicity itself. Publicity, in and of itself, is not sufficient grounds for change of venue. The publicity must be hostile publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). An analysis of the publicity given this case by the local media shows that, while the media has kept the public apprised of all court procedures which have not been held in camera, the approach of the local media has been objective, not directed toward inflaming the citizens or suggesting to them the penalty that ought to be imposed in this case. The most inflammatory item of pretrial publicity was that written, not by a journalist local to the area, but by a columnist for the Miami Herald. Indeed, in a story involving one of the interviews conducted out of state, the lead to the story indicated that the evidence from the interviewee might well support the Defendant’s position with respect to the penalty that should be imposed. The tenor of the presentation was that the interview showed that there may be evidence supporting the mitigating factors which the defense might raise. To further protect the Defendant from hostile pretrial publicity, photographs of the victims and the crime scenes were not released to the public, and have not been published. Some of the pretrial publicity was favorable to the position of the Defendant, rather than hostile to the Defendant. There was one significant issue, not hostile to the Defendant, but opposing the imposition of the death penalty. A number of local ministers had written publicly, urging the State Attorney to offer the Defendant the opportunity to plead to the offenses in return for sentences to life imprisonment. They presented various reasons for their position, including a general opposition to the death penalty itself, the fiscal savings which would result from entry of a plea of guilty, and the like. The Gainesville Sun published responses from readers reacting to the letter. In the publication, the responses were presented effectively on both sides of the issue.
The trial court then found that the publicity, although pervasive, was not so hostile as to inflame the community in general and further found that the pretrial publicity did not so prejudice prospective jurors that they could not evaluate impartially those factors which were to be evaluated in determining the penalty to be imposed in a capital case.
As to the first prong of our analysis, it is undisputed that the brutal slaying of five young students deeply affected the college community of Gainesville, Florida and generated overwhelming local and national media attention. While the amount of media coverage in this case makes it unique, the extent of publicity it received was certainly not surprising or unwarranted given the circumstances of this case. Indeed, in light of the fact that Rolling chose not to request a change of venue pretrial, it appears that even he was not concerned or otherwise disturbed by the extent or nature of the coverage at any time during the three years he awaited trial.
Likewise, the trial court’s order denying Rolling’s request for a change of venue reflects a candid and legally grounded review of the media attention this ease received. Because we find the trial court’s evaluation of the media coverage in this ease to be consistent with our own review of the record, we reject Rolling’s claim that the pretrial publicity presumptively prejudiced the entire Alachua County community against him.
We also find unpersuasive Rolling’s related assertion that the responses of both prospective and actual jurors during voir dire further demonstrated a real, community-wide prejudice and animosity toward him. Not surprisingly, of course, every member of the venire had some extrinsic knowledge of the facts and circumstances surrounding this ease. Also as expected, the responses of certain prospective jurors showed that their knowledge of the case prevented them from sitting impartially on the jury. Nevertheless, the animus toward Rolling expressed by these individuals reflected nothing more than their own personal beliefs or opinions. Contrary to Rolling’s assertions, we find no reason to believe that certain prospective jurors who voiced a bias against Rolling — none of whom sat on Rolling’s jury — somehow spoke for the entire Alachua County community.
We also must reject Rolling’s claim that the responses of actual jurors demonstrated a community-wide bias against him because we find it to be completely contrary to the evidence in the record. Rolling never challenged for cause any member of his actual jury based on bias or any other grounds; and the trial court found credible the assurances of every member of Rolling’s jury that they could lay aside their extrinsic knowledge of the case and recommend a penalty based only upon the evidence presented in court.
As to the second prong of our analysis, we must determine whether any difficulty encountered in selecting a jury in this case reflected a pervasive community bias against Rolling which so infected the jury selection process that it was impossible to seat an impartial jury in Alachua County. Jury selection in this case was no small task. In fact, the process spanned a three-week period. Nevertheless, we do not believe the sheer length of this selection process indicates that impartial jurors could not be found. Rather, the amount of time it took to select a jury was largely attributable to the trial court’s extensive and deliberate efforts to ensure that the jurors selected were, without a doubt, impartial and unbiased.
After meticulously culling the initial pool down to those venire members who were not obviously biased or otherwise ineligible to serve, the trial court allowed the parties wide latitude in questioning prospective jurors so that open animosity, as well as more subtle, unconscious prejudices, could be detected. When the responses of prospective jurors raised even the slightest concern that they perhaps could not sit impartially, the court liberally granted Rolling’s challenges for cause — resolving even questionable eases in favor of the defendant. In addition, the court gave Rolling six additional peremptory challenges as a further safeguard to ensure juror impartiality.
Once again, critical to the issue here is that the trial court found credible the assurances of all the members of Rolling’s jury that they could lay aside their extrinsic knowledge of the case and recommend a penalty based only upon the evidence presented in court; and Rolling never challenged for cause any member of his actual jury based on bias or any other grounds. Rather than revealing a pervasive community bias against him as Rolling suggests, the intricate jury selection process employed in this case and the responses of actual jurors during questioning shows that it was possible to seat an impartial jury in Alachua County. In this regard, we must commend the trial court for employing a jury selection process with ample safeguards. Consequently, because we find that the trial court’s system was an effective one which produced an impartial jury, we affirm the trial court’s denial of Rolling’s motion for a change of venue. Neither the pretrial publicity in this case nor the lengthy jury selection process evidenced a community bias so pervasive as to make it impossible, under any circumstances, to seat an impartial jury in Gainesville.
SUPPRESSION OF CONFESSIONS
Next, Rolling claims the trial court erred in denying his pretrial motion to suppress statements he made to Gainesville Homicide Task Force investigators on January 18, 1993, January 31, 1993, and February 4, 1993, and all other written and oral statements to a fellow inmate, B.L. These statements were admitted against Mm at Ms penalty phase proceeding.
On appeal, Rollmg challenges the trial court’s findings that (1) Ms statements to L. and law enforcement officers did not violate Ms right to counsel because L. was not acting as a de facto state agent and, (2) that the assistant state attorney’s involvement in the interrogations was not unetMcal and did not warrant suppression of Rolling’s statements. Specifically, Rolling maintains that law enforcement officers and prison officials knowingly exploited the relationsMp between himself and fellow inmate B.L. such that L. was acting as a de facto government agent when he elicited inculpato-ry statements from Rolling. Consequently, he argues, the statements were inadmissible at Ms sentencing trial pursuant to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), and Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). Alternatively, Rollmg asserts that Ms statements must be suppressed because the Homicide Task Force, which interviewed Rollmg in January and February of 1993, served as the alter ego of assistant state attorney Jim Nilón, whose authorization and orchestration of the interrogations without notifying Rolling’s defense counsel prior to the meetings constituted a serious breach of ethics in violation of the Rules Regulating the Florida Bar 4-4.2 and 4-5.3.
B.L. befriended Rolling shortly after Rolling arrived at Florida State Prison to await trial for the Gainesville homicides. During this time, Rolling made several statements to L. alluding to his involvement in the homicides. Armed with this information, L. believed he could benefit financially by (1) selling this information to Sondra London, Rolling’s fiance and biographer or, (2) obtaining his freedom or a reduced sentence by becoming a prosecution witness against Rolling. L.’s attorney, Mr. Link, contacted the State Attorney on L.’s behalf to determine whether L. could obtain a deal from the State in exchange for Rolling’s statements and information about the student murders. L. was informed, through his attorney, that the State would not enter into any kind of agreement with L. for information he might have about Rolling or the murders.
On several occasions between July 1992 and December 1992, Task Force investigators spoke with L., who initiated each meeting, but continually refused L.’s requests to receive some kind of benefit or inducement for the information he claimed to have about the homicides. Nevertheless, L. remained steadfast in his belief that he could benefit personally from Rolling’s statements. When Rolling returned to FSP in December 1992 after spending six months in the mental health facility at Chattahoochee, L. continued to tap Rolling for information about the Gainesville murders while they were together in “general population” and after they individually were moved into the “protective management” program at the prison pursuant to independent requests by each of them to be placed there because of safety concerns. During this time, Rolling decided that he wanted to assist L. in his plan to strike a deal or receive some benefit from the State for the statements Rolling had made to him about the homicides. In an effort to enhance L.’s bargaining position with the State, Rolling made L. his “confessor” — instructing L. to write out in his own handwriting each of Rolling’s written statements about the homicides and then return the originals to Rolling to be destroyed.
On January 17,1993, L. advised prison officials that Rolling desired to talk with Task Force investigators about the Gainesville murders. After verifying with Rolling directly that he wished to speak with law enforcement officers, Task Force investigators went to FSP to interview Rolling on the next day, January 18. Before the interview, investigators made it clear to Rolling that they could not and would not meet Rolling’s conditions for the interview — one of which was L.’ release for his assistance in obtaining Rolling’s statements about the crimes — and also reminded Rolling that he had invoked his right to counsel and his lawyer “would not be happy” if he spoke with them. At this point, discussions concerning the format for the interview itself broke down and investigators did not talk with Rolling about the homicides on January 18.
In the days following the aborted interview, L. initiated numerous contacts with prison authorities to further discuss the possibility of making a deal with the State in exchange for testimony or information about statements Rolling allegedly had made to him. Prison authorities forwarded the information to the Homicide Task Force, which responded with a letter to prison authorities instructing them to (1) merely listen to L. and refrain from instructing him in any way; (2) refrain from initiating any contact with L. or Rolling; (3) treat any request by L. or Rolling as they would a request from any other inmate; and (4) tape record any meetings initiated by L..
Shortly thereafter, Rolling advised prison authorities that he again wished to talk with officers investigating the student murders. Prior to interviewing Rolling about the homicides on January 31, 1993, Task Force investigators discussed with him at great length the format for the interview. It was agreed that L. could serve as Rolling’s “mouthpiece” during the interview, and Rolling would verify the accuracy of each of L.’s statements. Moreover, investigators reminded Rolling that he had invoked his right to counsel and reiterated to both Rolling and L. once again that they could not promise L. any type of benefit for the information Rolling might relate — through L. — about the homicides. Rolling and L. agreed to the format for the interview and Rolling confirmed that he wanted to waive his right to counsel and talk to investigators without his attorney. Rolling’s subsequent statement to Task Force investigators on January 31, made after a valid waiver of his right to counsel, was audiotaped; and the February 4 statement, also preceded by a valid waiver, was videotaped. B.L. served as Rolling’s “mouthpiece” and Rolling confirmed the accuracy of L.’s statements during these interviews.
In Massiah, the United States Supreme Court announced for the first time that the Sixth Amendment prohibits law enforcement officers from interrogating a defendant after his or her indictment and in the absence of counsel. Consequently, statements “deliberately elicited” from a defendant after the right to counsel has attached and in the absence of a valid waiver are rendered inadmissible and cannot be used against the defendant at trial. 377 U.S. at 206, 84 S.Ct. at 1203. Nevertheless, incriminatory statements by a defendant will not be excluded merely because the statements are made after judicial proceedings have been initiated and in the absence of a valid waiver. Rather, law enforcement officials must do something that infringes upon the defendant’s Sixth Amendment right.
While the “deliberately elicited” standard is clearly satisfied when the police directly interrogate or question a defendant in some fashion, it also may be satisfied by less direct types of questioning. See State v. Wooley, 482 So.2d 595, 596 (Fla. 4th DCA 1986). Usually, determining whether the “deliberately elicited” standard has been met becomes an issue in cases, like this one, where incriminatory statements from a defendant were obtained through persons other than the police who allegedly acted as police informants or surrogates. In Massiah, for instance, the Court found that the state violated the defendant’s right to counsel where police officers concealed a radio transmitter on a codefendant’s person, arranged for the codefendant to meet the defendant in the codefendant’s car to discuss their pending case, and then listened to conversations incriminating the defendant via the transmitter. 377 U.S. at 206, 84 S.Ct. at 1203.
Similarly, in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Court concluded that police conduct met the “deliberately elicited” standard where law enforcement officers contacted a paid informant in jail with the defendant and advised the informant to be alert to any statements made by federal prisoners, but not to initiate any conversations or question the defendant regarding his offense. Id. at 274, 100 S.Ct. at 2189; but see Kuhlmann v. Wilson, 477 U.S. 436, 455, 106 S.Ct. 2616, 2628, 91 L.Ed.2d 364 (1986) (concluding that defendant’s right to counsel not violated under Henry where police placed informant in defendant’s cell because informant obeyed instructions not to question defendant, but merely to listen for information). Consistent with its decisions in Massiah and Henry, the Court found in Moulton that, even though it was the defendant who initiated the meeting, the defendant’s right to counsel nonetheless was violated where an undercover codefendant met with the defendant and actively obtained incriminating statements from him. 474 U.S. at 176-77,106 S.Ct. at 487.
On the whole, these cases demonstrate that the culpability of law enforcement is dependent upon the extent of their role in securing the confession indirectly. That is, a violation of a defendant’s right to counsel turns on whether the confession was obtained through the active efforts of law enforcement or whether it came to them passively. In Moulton, the Court emphasized that “passivity on the part of law enforcement” is the critical factor in this analysis:
[A] knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.
Id. at 176,106 S.Ct. at 487.
Florida courts also have focused on the role of law enforcement officers in determining whether a confession was obtained in violation of the defendant’s right to counsel. For instance, in Sikes v. State, 313 So.2d 436 (Fla. 2d DCA 1975), the district court held that voluntary statements made to prison authorities by an incarcerated defendant are not subject to the Massiah rule, concluding, “We cannot expect prison guards to wear earplugs at all times while in the performance of their duties.” Id. at 437. Likewise, in Muehleman v. State, 503 So.2d 310 (Fla.), cert. denied, 484 U.S. 882, 108 S.Ct. 39, 98 L.Ed.2d 170 (1987), we interpreted the “deliberately elicited” standard in terms of its plain meaning and found that the defendant’s right to counsel had not been violated because his statements were not a product of a “stratagem deliberately designed to elicit an incriminating statement.” Id. at 314 (quoting Miller v. State, 415 So.2d 1262, 1263 (Fla.1982)). See also Malone v. State, 390 So.2d 338, 339-40 (Fla.1980).
We turn now to the trial court’s order denying Rolling’s motion to suppress statements made to B.L. and law enforcement officers. A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978).
The record supports the trial court’s description of L.’s persistent attempts to strike a deal with the State even in the face of numerous responses from the State that no deal would be forthcoming. The record also supports the trial court’s conclusion that prison officials did not house Rolling and L. in close proximity to each other or grant L. privileges as a trustee in order to facilitate or encourage L. in his efforts to gain information from Rolling about the homicides. Rather, we find that prison officials acted in accordance with Department of Corrections policy and guidelines when they granted the independent requests of Rolling and L. to be placed in the “protective management” program.
Finally, we find that the record and relevant caselaw clearly support the trial court’s conclusion that Rolling’s right to counsel was not violated because B.L. was not acting as a government agent when he elicited incriminatory statements from Rolling or served as Rolling’s “mouthpiece” during the January 31 And February 4 interviews with Task Force investigators. As the trial court explained:
For the State to have violated a defendant’s Right to Counsel, the State must have taken some affirmative steps toward obtaining information in derogation of that right. Whether it be as blatant as the use of paid informant under a contingency agreement {Henry), or merely the intentional placing of an inmate in a certain location in order that the inmate may elicit conversations from a defendant, there must be some state action directed to obtaining statements of a defendant in the absence of his counsel. As pointed out above, the Defendant herein has failed to establish that there was any such state action. L. was at no time an agent of the State, nor was the state involvement such that L.’s actions with respect to the Defendant are in any way attributable to the State.
The repeated interactions between law enforcement and prison officials and B.L. were necessitated solely by L.’s refusal to take no for an answer and his own opportunistic strategy to somehow benefit from the relationship he cultivated with Rolling. Thus, we find that Rolling’s incriminatory statements to L. and the officers were in no way the product of “the State’s stratagem deliberately designed to elicit an incriminating statement” from him. Malone, 390 So.2d at 339. Accordingly, we affirm the trial court’s denial of Rolling’s motion to suppress on this ground.
Finally, we also find the trial court properly denied Rolling’s further claim that unethical conduct on the part of the state attorney warranted suppression of his statements. The trial court concluded:
As legal advisor to the law enforcement officers, he [Nilón] made himself available to render such advice as was appropriate under the circumstances. Mr. Nilón was careful to insure that he did not participate in any of the interviews with the Defendant, but was available to advise law enforcement officers should such advice be sought. The fact that Mr. Nilón was in geographic proximity to the site of the interview, rather than merely being available to render advice by telephone, does not rise to the level of violation of the Code of Professional Responsibility.
The record confirms, and Rolling does not argue to the contrary, that the prosecutor did not actually participate in the interrogations. By making himself available at FSP to investigators, with whom Rolling himself requested the meetings, Mr. Nilón was there to ensure that Rolling’s constitutional rights were not violated by any conduct of Task Force investigators who, unlike Mr. Nilón, were not lawyers or otherwise professionally trained in the law. Because the evidence in the record and inferences derived therefrom support the trial court’s finding that the prosecutor’s presence at the prison to render advice if needed did not violate the Rules of Professional Conduct, we affirm the trial court’s denial of Rolling’s motion to suppress on this ground as well. See McNamara.
SEARCH AND SEIZURE
As his third claim of error, Rolling contends that the trial court erred in denying his pretrial motion to suppress physical evidence seized from a totebag found inside a tent pitched in a wooded area owned by the University of Florida. Rolling argues that the warrantless search and seizure of these items violated his rights under article I, section 12 of the Florida Constitution and the Fourth Amendment of the United States Constitution.
Generally, the Fourth Amendment does safeguard against a warrantless entry into a person’s home for purposes of a routine felony arrest. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Where exigent circumstances exist, however, certain warrantless entries are permitted. Arango v. State, 411 So.2d 172 (Fla.), cert. denied, 457 U.S. 1140, 102 S.Ct. 2973, 73 L.Ed.2d 1360 (1982). The kinds of exigencies or emergencies that may support a warrantless entry include those related to the safety of persons or property, see Richardson v. State, 247 So.2d 296 (Fla.1971), as well as the safety of police. Jones v. State, 440 So.2d 570 (Fla.1983). Of course, a key ingredient of the exigency requirement is that the police lack time to secure a search warrant. Police may not enter and search for dangerous instrumentalities or other evidence, even if they have probable cause to believe it is on the premises or otherwise subject to removal or destruction, if they have time to obtain a warrant and then enter under that authority. Jennings v. State, 419 So.2d 750 (Fla. 2d DCA 1982); Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981). Moreover, an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists. Anderson v. State, 665 So.2d 281 (Fla. 5th DCA 1995).
The record reflects that Rolling was living in a tent pitched in a fenced, wooded area owned by the University of Florida when Deputy Merrill saw Rolling and a black male companion enter the woods through the fence gate at 1 a.m. on August 28, 1990, and called for back-up. There were an unusually large number of officers patrolling the area that night and early morning because of the discovery of three murder victims and recent bank robberies that remained unsolved. The officers followed Rolling and his cohort into the woods and, when within shouting distance, announced their presence. The black male, T.D., turned back to the officers but Rolling fled into the woods. Deputy Liddell chased Rolling off the path into denser woods but was unable to apprehend him. However, a canine tracking unit called to the area led police to Rolling’s campsite. As the officers approached the campsite, they found a raincoat and dye-stained money on the ground. Knowing that the bank across the street had been robbed the preceding day and the white male robber had been armed, the officers decided to secure the tent. After a search dog entered the tent and came out, Deputy Liddell followed department procedure and lifted the flaps of the tent to confirm it was empty. While doing so, he observed a tote bag sitting on top of more red-stained money. Fearing that the fleeing suspect may have returned to the tent for a gun, and concerned about the safety of officers at the scene, Liddell searched the bag for a weapon and found a gun box. He opened the box and discovered a blue steel Taurus handgun. He then called for a crime scene unit.
Crime scene investigators arrived at the campsite at approximately 1:30 a.m. and collected various items from the campsite and tent, including the tote bag with the weapon. Six days later, on September 4,1990, investigator Jack Smith inventoried the contents of the tote bag and found a screwdriver, duct tape and a dark ski mask. These items of evidence were turned over to the Florida Department of Law Enforcement and later admitted into evidence against Rolling at his sentencing trial.
Rolling argues that the trial court erred in denying his motion to suppress because officers were not justified in conducting a warrantless search of the interior of his tent. Rolling contends that once the dog entered the tent and found it empty, all exigencies dissipated. Any additional examination of the tent’s interior was nugatory in terms of officer safety, and even if there was a weapon in the tent, the officers could not be assured that the suspect in the woods was armed. Furthermore, because the campsite area was secured after the initial search of the tent and totebag until the crime scene unit arrived, it certainly could have remained secured until a warrant was obtained for a further search and seizure. Because officers were not acting pursuant to a warrant or a recognized exception to the warrant requirement, Rolling maintains the search and seizure of the tent and bag were unlawful. See Jones v. State, 648 So.2d 669 (Fla.1994). Moreover, the purported “inventory” search of the tote bag six days later was also unlawful, he argues. Consequently, Rolling contends that the physical evidence recovered from his totebag was improperly admitted against him at his sentencing trial and therefore he is entitled to a new sentencing proceeding.
In its order denying Rolling’s motion to suppress the physical evidence recovered from the totebag in his tent, the trial court first found that even though Rolling was a trespasser on university land, he had standing to challenge the search and seizure of items from his tent because he had a proprietary interest in the tent itself. The trial court further concluded, however, that the warrantless search and seizure of the physical evidence at issue here was reasonable in light of the exigent circumstances. The officers’ legitimate concern for their safety from an unapprehended individual who might be armed in the dark, heavily wooded area around the campsite “excused the officers from the requirement of obtaining a warrant.”
At the suppression hearing, Deputy Liddell testified that he initially searched the tote bag for weapons because he was concerned for officer safety. Additionally, he remained near the tent with the gun secured while waiting for the crime scene unit to arrive because of his continuing concern that the suspect might return to the tent to retrieve the weapon or still remain in the area armed with other weapons. Contrary to Rolling’s assertions, these exigent circumstances, i.e., the danger to police, which justified Deputy Liddell’s initial warrantless search of the tote bag for weapons, remained even after the crime scene unit arrived at the campsite. Thus, we find that the trial court’s conclusion that the warrantless search of Rolling’s tent and totebag was justified by exigent circumstances, i.e., danger to police, is supported by the record.
Furthermore, although the trial court’s order does not expressly address the propriety of Investigator Smith’s search of the contents of the totebag six days later, we find that it was a valid inventory search. An inventory search is a Fourth Amendment search and seizure, Elson v. State, 337 So.2d 959 (Fla.1976), but is unique in that its purposes are for the protection of property and persons rather than to investigate criminal activity. Miller v. State, 403 So.2d 1307 (Fla.1981). Contraband or evidence seized in a valid inventory search is admissible because the procedure is a recognized exception to the warrant requirement. Caplan v. State, 531 So.2d 88 (Fla.1988). The nature of this exception, however, is determined by the nature of the intrusion.
In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court discussed the protective, noncriminal basis of this particular intrusion and pointed out that the probable cause standard and the warrant requirement are not relevant to an inventory search analysis. The test is solely one of “reasonableness.” The reasonableness of a purported inventory search is dependent upon it being a true good-faith inventory search and not a subterfuge for a criminal, investigatory search. If the search is not, in fact, an inventory search, then it must be justified on some other basis. Fields v. State, 369 So.2d 603 (Fla. 1st DCA 1978).
Investigator Smith testified at the suppression hearing that his search of September 4, in which he itemized the contents of the totebag and cataloged the serial numbers on the red-stained money recovered from the campsite, was a “routine inventory” pursuant to his investigation of the bank robbery which occurred the night before police found Rolling’s campsite. Because we find that Smith’s inventory of the contents of the totebag meets the Opperman standard and was reasonable in light of the circumstances of this ease, we affirm the trial court’s denial of Rolling’s motion to suppress physical evidence recovered from his tent and totebag.
SEVERANCE
Rolling asserts that the trial court improperly joined these eases under Florida Rule of Criminal Procedure 3.150(a) for purposes of his sentencing trial. Consequently, he urges us to vacate his sentences, sever the three cases and remand for a fair determination of his sentence in three separate penalty proceedings.
The record reflects that Rolling killed Larson and Powell in their apartment on Friday, August 24 at approximately 3 a.m. About forty-two hours later, in an apartment two miles away, Christa Hoyt was murdered on Saturday, August 25 at around 11 a.m. Finally, on Monday, August 27, at around 3 a.m., Rolling killed Taboada and Paules in their apartment located in a complex about one mile from each of the first two crime scenes. Thus, within a seventy-two hour period, Rolling had stabbed to death five college students in their apartments, sexually battering three of his victims before killing them.
Initially, Rolling’s pretrial motion to sever was made solely on grounds that “[a] severance is necessary to promote a fair determination of the defendant’s guilt or innocence as to each count in the indictment.” Rolling did not argue pretrial that a severance was also warranted, should a penalty phase trial become necessary, in order to fairly determine the appropriate sentences for these crimes. Florida Rule of Criminal Procedure 3.150 states in pertinent part:
(a) Joinder of Offenses. Two or more offenses that are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses ... are based on the same act or transaction or on 2 or more connected acts or transactions.
Relying on our decisions in Bundy v. State, 455 So.2d 330 (Fla.1984), Wright v. State, 586 So.2d 1024 (Fla.1991), Fotopoulos v. State, 608 So.2d 784 (Fla.1992), Crossley v. State, 596 So.2d 447 (Fla.1992), and Ellis v. State, 622 So.2d 991 (Fla.1993), the trial court concluded that the instant offenses were connected by temporal and geographical association, the nature of the crimes, and the manner in which they were committed. The court explained:
From a review of those cases, the [Florida Supreme] Court discerns several rules to be applied to determine whether or not offenses are ‘connected’ for purposes of the rules of joinder. First, the Court found that ‘for a joinder to be appropriate the crimes in question must be linked in some significant way.’ Ellis, at [1000]. Two recognized ‘links’ were mentioned by the Court in its opinion: the fact that one crime is causally related to the other, and the fact that the crimes occurred “during a ‘spree’ interrupted by no significant period of respite.” Id. The Court then added that the general temporal and geographical proximity is not, in and of itself, a link, but is considered insofar as it “helps prove a proper and significant link between the crimes.” Citing Crossley.
In this case, based on the testimony present at the hearing, the [trial] [c]ourt finds no causal link between the offenses in the sense that one offense was used to induce someone to commit another. Fotopoulos. The [c]ourt finds, however, that the offenses charged at the three crime scenes are linked by a temporal continuity, not merely a temporal proximity. Temporal continuity is one of the ‘significant links’ recognized by the Supreme Court in Ellis as found in Bundy — although by a different name. The [c]ourt noted that the offenses in Bundy occurred “during a ‘spree’ interrupted by no significant period of respite.” It is apparent from the context and from the reference to “respite” that the word, “spree,” was meant to refer to a temporal continuity. From the factual information provided to the court at the hearing, the [c]ourt finds that the events were so linked as to constitute a single prolonged episode during which the deaths of five persons were effected.
Prior to jury selection, Rolling orally objected to the joinder of the three crime scenes for penalty phase purposes on grounds that a severance was necessary to prevent a “carryover effect” of aggravating factors applicable to one crime scene from influencing the evaluation of aggravating factors applicable to another crime scene. After hearing arguments from the parties, the trial court denied this motion also in light of the fact that the statutory aggravators, as well as all of the mitigating evidence, would apply to all three of the crime scenes; and the jury would be given specific instructions as to the death of each victim and an opportunity to render five separate sentencing recommendations. Because the record and relevant caselaw support the trial court’s findings that these murders were properly joined under rule 3.150(a) for penalty phase purposes, we reject Rolling’s severance claim as being without merit.
THE HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR
Rolling argues that the trial court erred in finding the heinous, atrocious, or cruel aggravating circumstance as to the murder of Sonya Larson because there was no evidence that Ms. Larson, who was attacked in her sleep, anticipated her death or otherwise endured “extreme pain or prolonged suffering.” Elam v. State, 636 So.2d 1312 (Fla.1994).
The trial court’s sentencing order states in pertinent part:
Sonya Larson was killed in her own bed by multiple stab wounds.... The attack was characterized by the medical examiner as a “blitz” attack after which the victim would have remained alive for a period from thirty to sixty seconds. Despite the relative shortness of the event, the fact that many of the wounds were characterized as defensive wounds indicates that the victim was awake and aware of what was occurring. During all this time, the victim’s mouth was taped shut so that she could not cry out.
Contrary to Rolling’s assertion that there was no evidence that Ms. Larson endured “prolonged suffering” or “anticipated her death,” the record reflects the medical examiner testified that Ms. Larson sustained defensive wounds on her arms during Rolling’s attack and was awake between thirty and sixty seconds before losing consciousness and dying. Moreover, Rolling’s statement to police on January 31 is consistent with the medical examiner’s testimony and the trial court’s finding. Rolling told police he stabbed Ms. Larson and put duct tape over her mouth to muffle her cries. He explained that he continued to stab her as she fought and tried to fend off his blows.
Finally, as the State correctly notes, Rolling’s guilty plea to this murder on February 15, 1994, is supported by a factual basis which also shows that Rolling muffled Ms. Larson’s cries and that she sustained defensive wounds on her arms and left thigh.
Because the evidence in the record demonstrates that Ms. Larson was awake but disabled by the duct tape over her mouth while she struggled with her attacker, sustained several defensive wounds to her arms and leg, and did not die instantaneously, we find that the trial court properly found the heinous, atrocious, or cruel aggravator proved beyond a reasonable doubt. See Geralds v. State, 674 So.2d 96 (Fla.), cert. denied, — U.S. -, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996); Merck v. State, 664 So.2d 939, 943 (Fla.1995); Garcia v. State, 644 So.2d 59, 63 (Fla.1994); Dudley v. State, 545 So.2d 857, 860 (Fla.1989).
JURY INSTRUCTION
Rolling argues that the trial court erred in giving an unconstitutionally vague jury instruction as to the heinous, atrocious, or cruel (HAC) aggravating factor. Here, the trial court gave the following HAC jury instruction:
The crime for which the Defendant is to be sentenced was especially heinous, atrocious or cruel. Heinous means especially wicked or shockingly evil. Atrocious means outrageously wicked and vile. Cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.
In order for you to find a first-degree murder was heinous, atrocious or cruel, you must find that it was accompanied by additional acts that showed that the crime was conscious [sic] or pitiless, and was unnecessarily torturous to the victim.
Events occurring after the victim dies or loses consciousness should not be considered by you to establish that this crime was especially heinous, atrocious, or cruel.
As the State correctly explains, the instant instruction, which is similar in all material aspects to the instruction upheld by this Court in Hall v. State, 614 So.2d 473, 478 (Fla.1993), has been reaffirmed on numerous occasions. See Geralds v. State, 674 So.2d 96 (Fla.1996); Merck v. State, 664 So.2d 939, 943 (Fla.1996). Consequently, we reject Rolling’s claim that the trial court’s instruction to the jury on the ELAC aggravator was unconstitutional. We find that the jury in Rolling’s penalty phase trial received a specific instruction which fairly apprised the jurors of the definition of each term as well as the surrounding circumstances the State had to prove to support this aggravating factor.
PROPORTIONALITY
Finally, albeit not argued by Rolling on appeal, our review of the entire record in this case shows that death is the appropriate sentence for each of these brutal murders and is not disproportionate given the facts and circumstances of this ease. See Robinson v. State, 610 So.2d 1288 (Fla.1992); Coleman v. State, 610 So.2d 1283 (Fla.1992); Henderson v. State, 463 So.2d 196 (Fla.1985); Bundy v. State, 455 So.2d 330 (Fla.1985); Francois v. State, 407 So.2d 885 (Fla.1981).
Accordingly, we affirm Rolling’s sentences of death.
It is so ordered.
OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur.
ANSTEAD, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
[OPINION BY ANSTEAD, Judge, type=concurring-in-part-and-dissenting-in-part]
ANSTEAD, Judge,
concurring in part and dissenting in part.
I cannot concur in the majority’s conclusion that appellant was not entitled to a change of venue.
We have held that a change of venue is mandated when a record contains “evidence that a substantial number of the veniremen had lived in fear during a defendant’s ‘reign of terror.’ ” See Thomas v. State, 374 So.2d 508, 516 (Fla.1979). If ever those words had meaning, they have meaning here. This case, consistent with the change of venue from Tallahassee to Miami in Bundy v. State, 455 So.2d 330 (Fla.1984), involving similar horrifying circumstances, should not have been tried in the same college community so deeply scarred by its crimes. We are only fooling ourselves, and closing our eyes to what is obvious to all, when we deny the magnitude and depth of the fear and loss sustained by the Gainesville community as reflected in this record. A justice system asks too much when it asks a community so deeply torn asunder to decide the fate of the person admittedly responsible for the unspeakable crimes at issue.
There is an obvious and substantial qualitative difference between the task facing the citizens of Gainesville compared to this case being tried anywhere else in Florida. While any community or group of potential jurors would have difficulty being objective in a case of this nature, the community actually violated has been affected in a way profoundly unique because of its relationship to the crimes and the victims. Sometimes we ask too much. I fear we have done so here.
The trial court concluded that Rolling's impairment “did not rise to the level of being substantial, and is therefore not a statutory mitigating factor.” See § 921.141(6)(f), Fla.Stat. (1995).
Florida Rule of Criminal Procedure 3.240(c) states in full: A motion for change of venue shall be filed no less than 10 days before the time the case is called for trial unless good cause is shown for failure to file within such time.
Apparently, the public defender believed that Rolling had a better chance of receiving a fair trial in Gainesville, a community known as a liberal college town, than anywhere else in the state. See Initial Brief of Appellant at 133.
As a preliminaiy matter, the State contends that Rolling has, at least in part, waived any claim that the trial court erred in denying his motion for a change of venue because his motion was not timely. The State emphasizes that Rolling chose not to file a change of venue motion pretrial because he did not believe the pretrial publicity — which was available to him and of which he was fully aware — existed in such a quantity as to deny him a fair trial in Alachua County. The State argues that because Rolling waited until the sixth day of voir dire to request a change of venue, the news articles and other documentation of community feelings prior to February 15, 1994, when Rolling pled guilty to these offenses, are no longer germane to the issue, and thus we cannot consider that evidence in determining whether the trial court properly denied Rolling's motion. We agree that Rolling's deliberate strategy choice to proceed to trial in Gainesville despite the publicity indicates he did not believe it to be prejudicial at that time. We find, however, that Rolling’s motion filed after the first phase of voir dire preserved his claim for review on appeal. See Provenzano v. State, 497 So.2d 1177, 1183 (Fla.1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987) (finding defendant's oral motion for change of venue on first day of voir dire was timely and approving trial court’s denial of motion only after parties began to impanel a jury); Davis v. State, 461 So.2d 67, 69 n. 1 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985) (stating that ruling on change of venue should not be made prior to jury selection because impartial jury may be seated if trial court finds credible the assurances of prospective jurors that they can set aside extrinsic knowledge and decide case on the evidence); Manning v. State, 378 So.2d 274, 276 (Fla.1979) (approving procedure where ruling on defendant’s motion for change of venue is delayed until attempt has been made to select jury). We reiterate that our affirmance of the trial court’s order denying Rolling's motion is based on a review of all the evidence of pretrial publicity contained in the record. Moreover, our conclusion that this issue was properly preserved for review in no way suggests that a defendant should delay filing a motion for a change of venue, as Rolling did here.
Rolling argues extensively that the trial court’s award of additional peremptory challenges was insufficient in this case, because the court refused Rolling's request for a seventh one to peremptorily strike Ms. K., who sat as member of the jury. Rolling never challenged Ms. K. for cause at any time during the voir dire or otherwise stated for the record why he wished to strike Ms. K.. As with the other members of the jury, the court found credible Ms. K.'s assurances that she could put aside her extrinsic knowledge of this case and recommend a sentence based on the trial court’s instructions and the evidence presented in court. Thus, we reject Rolling’s argument that he was prejudiced by the trial court's failure to award him an additional peremptory challenge.
We reject the State's argument that these claims of error are not properly appealable to this Court under Krawczuk v. State, 634 So.2d 1070 (Fla.1994), and Robinson v. State, 373 So.2d 898 (Fla.1979), because they do not survive his guilty plea. Rollmg is not challenging the court's pretrial ruling as to the validity of his guilty plea, nor is he challenging the plea itself. To the contrary, Rolling challenges the court's pretrial denial of his motion to suppress as it pertains solely to the penalty phase proceedings. Here, Rolling’s statements to L. and law enforcement officers were offered at the penally phase to support three aggravating factors: in the course of a sexual battery; heinous, atrocious, or cruel; and cold, calculated, and premeditated. Rolling objected to the admission of these statements prior to opening statements and repeated his objection each time the evidence was introduced. Thus, this claim was properly preserved for our review.
Respectively; prohibiting a lawyer from communicating about the subject of a representation with a person known to be represented by counsel unless the lawyer has the consent of the other lawyer; holding a lawyer responsible for conduct of other persons that would be a violation of professional obligations if the other person was a lawyer where the lawyer orders or otherwise ratifies the conduct involved.
The United States Supreme Court has since clarified the Massiah rule in Patterson v. Illinois, 487 U.S. 285, 290-91, 108 S.Ct. 2389, 2393-94, 101 L.Ed.2d 261 (1988). In that case, the Court noted that, while the Sixth Amendment right to counsel attached with the filing of the indictment, police officers were not precluded from initiating questioning of the accused. Rather, the Court further explained in Patterson that the right to counsel must attach and be acknowledged by the accused before he or she receives the benefit of the Sixth Amendment protections set out in Massiah. Id.. See also Phillips v. State, 612 So.2d 557, 558 n. 2 (Fla.1992) (recognizing that under article I, section 9 of the Florida Constitution, "[r]egardless of when the right attaches, the defendant must still invoke the right in order to be protected"); Traylor v. State, 596 So.2d 957, 968 (Fla.1992) (reiterating that under article I, section 9 of Florida Constitution, the state may not initiate any crucial confrontation with a defendant once a lawyer has been requested or retained). We note, however, that the United States Supreme Court’s Patterson decision modifying the Massiah rule is not critical to the analysis of Rolling's claim in this case because he already was represented by counsel at the time of the alleged Sixth Amendment violation here. Thus, consistent with Patterson and our own caselaw. Rolling's Sixth Amendment right had attached and been sufficiently invoked.
The trial court granted Rolling's motion to suppress as to statements Rolling made to Florida Department of Law Enforcement agents on April 17, 1991. These statements were not admitted against Rolling at his sentencing proceeding.
In 1982, article I, section 12 of the Florida Constitution, relating to search and seizure, was amended: Searches and seizures. — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution. The underlined portions above constitute the 1982 amendment. See Fla.HJ.R. 31-H (1982). With the conformity clause amendment we are bound to follow the interpretations of the United States Supreme Court with respect to the Fourth Amendment and provide to Florida citizens no greater protection than those interpretations. Bernie v. State, 524 So.2d 988, 990-91 (Fla. 1988). In addition, article I, section 12 applies to both past and future United States Supreme Court decisions. Id. Nevertheless, when the United States Supreme Court has not previously addressed a particular search and seizure issue which comes before us for review, we are free to look to our own precedent for guidance. See State v. Cross, 487 So.2d 1056, 1057 (Fla.), cert. dismissed, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986).
Danny ROLLING, Sondra London, Appellant, v. STATE of Florida, ex rel. Robert A. BUTTERWORTH, Attorney General, and Rodney W. Smith, State Attorney in and for the Eighth Judicial Circuit of Florida, Appellee.
No. 98-498.
District Court of Appeal of Florida, First District.
Sept. 28, 1999.
Eric S. Block, Jacksonville; Richard L. Wilson, Orlando; and Richard L. Rosenbaum, of Law Offices of Richard L. Rosenbaum, Ft. Lauderdale, for Appellant.
Robert A. Butterworth Attorney General; George L. Waas, Assistant Attorney General, Tallahassee; and Rodney W. Smith, State Attorney, Gainesville, for Appellee.
[OPINION BY MINER, J. type=majority]
MINER, J.
Appellants Sondra London and Danny Rolling contest the lower court’s imposition of a lien against the proceeds derived from sale of Rolling’s personal property and against his other personal property on the grounds that section 944.512, Florida Statutes, is unconstitutional on its face and as applied. For the reasons explained below, we need not address the constitutional issues raised in the instant case, and we affirm the trial court’s order.
Appellant Rolling is a death-sentenced multiple murderer. Pursuant to section 944.512, Florida Statutes, in Count I of the complaint and sections 960.29 through 960.297 in Count II, the state sought imposition of a lien in the action below against Rolling’s property, especially the proceeds from sale of a book containing accounts of the crimes for which Rolling was convicted. Both of these statutory lien provisions apply to convicted offenders and provide for restitution to crime victims and the state. Following a bench trial, the court issued a final judgment finding that Rolling’s personal property, including his “art,” autographs, and the book recounting Rolling’s crimes, were being marketed for profit by London and that the marketability of these items stemmed directly from Rolling’s having committed the unspeakable crimes of which he was convicted. The court found that Rolling and London shared a special relationship, not only because she was Rolling’s fiancee and later “cyberspace” spouse, but also because in successive contracts Rolling granted to London all of his rights in virtually everything he thought, wrote, or otherwise created, e.g., his life story, drawings, and songs, and all the profits from the marketing of same. The court found that these contracts and London’s marketing of Rolling’s personal property, such as autographs and “art,” as serial killer memorabilia for her own economic gain evidenced Rolling’s intention to support London by assigning or transferring to her the profit from his crimes. Specifically the court found that the book “The Making of a Serial Killer” itself claimed to be an account of the crimes of which Rolling had been convicted written in Rolling’s own words and that London herself testified that she added nothing substantial to the book. Finally, the court concluded that London was acting on Rolling’s behalf with regard to marketing of the book and other personal property. The court found that a lien was appropriate under either statute and entered a lien in favor of the state as to all proceeds stemming from sale of Rolling’s personal property, including his “art” and autographs, and accounts of the crimes of which he was convicted, and as to Rolling’s personal property. Rolling and London were required to file an accounting with regard to same.
Relying primarily on Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991), appellants argued below and in the instant appeal that section 944.512, Florida Statutes, Florida’s so-called Son of Sam law, violates the First Amendment and is, therefore, unconstitutional both on its face and as applied to each of them. Appellants have not otherwise raised any issue with regard to the trial court’s findings and conclusions. In addition, although at oral argument counsel for both appellants admitted that the lien imposed also rests upon sections 960.29-297, in their briefs neither appellant has attacked the validity of the lien insofar as it relies on this alternative statutory basis.
Sections 960.29-297 provide that upon petition by the state, its local subdivisions, crime victims, or other aggrieved parties, the court may enter a civil restitution lien against the “real or personal property” of a convicted offender. See § 960.291(7), .292(2), Fla. Stat. Such property “includes any real or personal property owned by the convicted offender, or that a person possesses on the convicted offender’s behalf, including, but not limited to, any royalties, commissions, proceeds of sale, or any other thing of value accruing to the convicted offender, or a person on the convicted offender’s behalf.” § 960.291(7), Fla. Stat. Thus, under the plain language of the statute, the lien encompasses items such as Rolling’s “art” and autographs and the proceeds therefrom. The lien also clearly applies to proceeds from the book accounting Rolling’s crimes. The court found that Rolling wrote the book with little assistance from London, and London did not establish entitlement to any percentage of the proceeds in her own right. The evidence of the agreements between London and Rolling regarding publishing and profit rights, their special relationship, and her sale of items of Rolling’s personal property support the court’s finding that London is receiving benefits on Rolling’s behalf and thus the lien attaches to the proceeds she has garnered from sale of Rolling’s property. See § 960.291(7), Fla. Stat. In addition, Rolling could not transfer his property to London to avoid the hen. See § 960.29, .295, Fla. Stat. Under the above analysis, the trial court’s imposition of the lien may be upheld solely under the cited provisions of Chapter 960 without reference to section 944.512. Thus, we need not address appellants’ challenges to the constitutionality of 944.512.
Accordingly, the trial court’s order is affirmed.
BENTON and BROWNING, JJ., CONCUR.
In addition to London and Rolling, two other defendants were named, but they did not file an answer in the action below and are not parties to this appeal.
See Rolling v. State, 630 So.2d 635 (Fla. 1st DCA 1994) (striking temporary injunction issued under section 944.512 because state’s right to lien contingent on conviction and Rolling not convicted at that time).
Apparently the two had a falling out of sorts which led to a "cyberspace” divorce in June of 1996 according to London in an interview with talk show hostess Jane Pauley in November, 1997.
Section 944.512(1) provides as follows: A lien prior in dignity to all others shall exist in favor of the state upon royalties, commissions, proceeds of sale, or any other thing of value payable to or accruing to a convicted felon or a person on his behalf, including any person to whom the proceeds may be transferred or assigned by gift or otherwise, from any literary, cinematic, or other account of the crime for which he was convicted. A conviction shall be defined as a guilty verdict by a jury or judge, or a guilty or nolo contendere plea by the defendant, regardless of adjudication of guilt. The lien shall attach at the time of the conviction in county or circuit court. In the event of an appeal, the funds will be held in the Revolving Escrow Trust Fund of the Department of Legal Affairs until the appeal is resolved.
Danny Harold ROLLING, Appellant, v. STATE of Florida, Appellee.
No. SC01-625.
Supreme Court of Florida.
June 27, 2002.
Rehearing Denied Aug. 23, 2002.
Baya Harrison, III, Monticello, FL, for Appellant.
Robert A. Butterworth, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Danny Harold Rolling, a prisoner under sentence of death, appeals the trial court’s denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the trial court’s order denying Rolling postconviction relief.
BACKGROUND
Rolling was charged with five counts of first-degree murder, three counts of sexual battery, and three counts of armed burglary of a dwelling with a battery, which occurred in Gainesville during August of 1990. This Court previously summarized the facts surrounding these crimes on direct appeal. See Rolling v. State, 695 So.2d 278, 281-82 (Fla.1997).
On June 9, 1992, Rolling entered a plea of not guilty on all counts. Subsequently, on February 15, 1994, the day set for trial, Rolling changed his plea to guilty on all counts. The trial court accepted Rolling’s plea after reviewing with him the factual basis for it and adjudicated him guilty on all counts. A penalty phase proceeding was held, and the jury recommended that Rolling be sentenced to death for each murder by a vote of twelve to zero. The trial court followed the jury’s recommendation and sentenced Rolling to death for each homicide. We affirmed Rolling’s sentences on direct appeal. See id. at 297. The United States Supreme Court denied Rolling’s petition for writ of certiorari on November 17, 1997. See Rolling v. Florida, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997).
Rolling filed his original 3.850 motion in November of 1998. In April of 1999, Rolling filed an amended 3.850 motion asserting two claims. Following a Huff hearing, the trial court held an evidentiary hearing on July 11-12 and July 15, 2000. Thereafter, the trial court entered a comprehensive, thirty-eight page order denying relief. This appeal follows.
ANALYSIS
On appeal, Rolling argues that the trial court erred in denying his claim alleging trial counsel were ineffective for failing to timely seek and procure a change of venue. Rolling’s argument that trial counsel were ineffective is essentially twofold. First, Rolling argues that trial counsel were ineffective for waiting until jury selection was underway to move for a change of venue, rather than seeking a venue change during the three years preceding trial. Second, Rolling argues that even after they belatedly filed a motion for change of venue, trial counsel failed to adequately support the motion and argue in favor of a venue change. Rolling contends that had trial counsel timely sought and sufficiently supported the motion, the trial court would have been required to grant a change of venue.
On direct appeal, this Court thoroughly addressed the issue of whether the trial court erred in denying Rolling’s motion for change of venue, which was ultimately filed by trial counsel. See Rolling, 695 So.2d at 283-88. In finding that the trial court did not err in denying Rolling’s motion for change of venue, we emphasized the meticulous jury selection procedure and screening process undertaken by the trial court. Moreover, we expressly rejected Rolling’s argument that the pretrial publicity presumptively prejudiced the entire Alachua County community against him, as well as his claim of actual prejudice. See id. at 285-88. In sum, we concluded:
[Bjecause we find that the trial court’s system was an effective one which produced an impartial jury, we affirm the trial court’s denial of Rolling’s motion for a change of venue. Neither the pretrial publicity in this case nor the lengthy jury selection process evidenced a community bias so pervasive as to make it impossible, under any circumstances, to seat an impartial jury in Gainesville.
Id. at 288.
This Court has repeatedly recognized that claims which were raised on direct appeal are proeedurally barred in postconviction proceedings. See, e.g., Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995). At the same time, we have also recognized that a claim of trial court error and a claim of ineffectiveness may arise from the same underlying facts, but the claims themselves are distinct and — of necessity — have different remedies. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001). Notwithstanding this distinction, based on the record in this case and our previous opinion thoroughly treating the venue issue and concluding that it was without merit, we find Rolling’s claim is procedurally barred.
However, even if Rolling’s claim were not barred, we would find it to be without merit. In order to prove an ineffective assistance of counsel claim, a defendant must establish two elements:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998); Rose v. State, 675 So.2d 567, 569 (Fla.1996). To establish prejudice, “[tjhe 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court’s legal conclusions, while giving deference, to the trial court’s factual findings. See id.
In denying relief, the trial court determined that Rolling had failed to satisfy either prong under Strickland. After thoroughly discussing the case history and posteonviction proceedings, the trial court concluded as follows:
While the defense team’s belief in the ability to choose their model jury in Gainesville may have changed because of their evaluation of the jurors during voir dire, it was certainly not an unreasonable one. The record is replete with evidence that these attorneys did everything in their power to ensure that the adversarial process functioned as it should in our system of justice. One need only peruse the index of pleadings to see the Herculean efforts of the defense attorneys to protect their client’s best interests. The index shows four pleadings relating to the grand jury; ten pleadings concerning protective orders; eight pleadings regarding public disclosure of materials and/or in camera inspections; eight pleadings relating to suppression of evidence; four pleadings regarding voir dire (including the motion for change of venue); five jury-related documents; and at least twenty-nine other motions. All told, the defense team filed in excess of seventy pleadings on Rolling’s behalf. While the Court is mindful that quantity does not necessarily reflect quality, this case is a textbook example of strategic thinking and careful planning by skilled defense attorneys whose reputations amongst other members of the Florida bar, such as Dave Davis, bespeak their effectiveness.
A glance through the motions for protective orders and motions to prohibit public disclosure is ample reminder that for three years, the defense team took every opportunity possible to bring to this Court’s attention the considerable publicity surrounding this case. It is difficult to fathom what else counsel could have done to make this jurist any more acutely aware of the circumstances of this case prior to jury selection. There is nothing counsel could have done in the voir dire process itself that would have increased this Court’s scrutiny of each venireman, heightened the Court’s observations, or increased the Court’s attention to the reasonable doubt standard to which each juror was held.
A survey such as suggested by Defendant would not have changed the responses of the potential jurors. The defense team members testified that although technically giving all the right answers during voir dire, they concluded that the potential jurors were affected at a deeper level than perhaps even the jurors themselves knew. The only way the team was able to arrive at such a conclusion was to stand eye-to-eye with them, observing facial expressions and hearing vocal inflections. None of this information would have emerged from a pen-and-pencil questionnaire, and the lawyers were not ineffective for failing to conduct such an exercise.
In the final analysis, the difficulty with the defense team’s case lay not in combating the extensive media coverage, but in the detailed confessions that came from the hand and mouth of their own client and the stark reality of the acts visited upon his victims. The jury selected received an abbreviated and condensed exposure to the horrific facts of this case. The evidentiary portion of the proceedings took two weeks, not the many months contemplated for a complete guilt phase trial. Any challenge to the integrity of the proceedings that occurred must be measured against the gravity of the offenses and the total absence of innocence, or even the thought of innocence, of Rolling in the minds of the advisory jury. That would occur no matter where this case was tried.
In essence, the challenge here is based upon the belief of the defense’s jury expert, Rolling’s trial lawyers, and now his postconviction counsel that the jury was prejudiced, and that this prejudice was unbeknownst even to the jury members themselves. This trial judge did not find that to be the case from listening to and watching these jurors. Nothing in the evidence presented at the hearing on the motion has moved the Court to find any lack of effort or thought on behalf of Defendant’s trial team. In essence, the plea is to grant relief because the defense attorneys did not foresee the jury prejudice they soon enough perceived and because when they did, the trial team could not convince the Court of the reality of a prejudiced jury. The reality being overlooked in this argument is the entire history of the voir dire and the events underlying it. Perhaps the jury simply believed, after a full consideration, that the aggravating circumstances were not outweighed by the mitigators presented on Rolling’s behalf.
For the reasons expressed below, we agree with the trial court’s denial of postconviction relief on this claim.
CHANGE OF VENUE
The decision of whether to seek a change of venue is usually considered a matter of trial strategy by counsel, and therefore not generally an issue to be second-guessed on collateral review. See, e.g., Buford v. State, 492 So.2d 355, 359 (Fla.1986) (“Counsel’s failure to move for a change of venue was a tactical decision and therefore not subject to attack.”). Further, this Court has reiterated that “strategic 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). The fact that Rolling’s collateral counsel might have moved for a change of venue earlier in the proceedings does not necessarily place trial counsel’s decision to forego that option outside the wide range of reasonably effective assistance. See Occhicone, 768 So.2d at 1048 (“Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions.”); Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) (“The standard is not how present counsel would have proceeded, in hindsight....”). “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.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
As noted above, Rolling argues that trial counsel were ineffective for failing to move for a change of venue earlier in the proceedings. At the postconviction evidentiary hearing, however, Rolling’s trial counsel testified that they made an informed tactical decision to initially attempt to have the case tried in Alachua County, notwithstanding the pretrial publicity surrounding the case. For instance, defense attorney Richard Parker testified that in the years preceding Rolling’s trial he believed it was in Rolling’s best interest to be tried in Alachua County. Based on years of experience and discussions with attorneys from throughout Florida as a member of the Death Penalty Steering Committee, Parker explained that Alachua County’s venire is generally viewed as being “more open-minded, more understanding, and more willing to consider life recommendations as opposed to death sentences.” Parker further explained that the defense’s strategy was to seat jurors who were especially willing to consider mental health mitigation. Parker reiterated that the defense team had several long discussions concerning venue, including the possibility of moving for a change of venue should it become necessary.
Attorneys Barbara Blount Powell and John Kearns also testified that the initial decision to attempt to try the case in Alachua County was a strategic decision based on their experience with juries in that county and the county’s general reputation among attorneys. In particular, Blount Powell testified that the initial venue decision was primarily based on the defense team’s belief that they needed an intelligent and open-minded jury that would consider mitigating circumstances. Although the defense was concerned with publicity, she noted that historically they had experienced good juries in Alachua County, which were intelligent and open-minded, and the defense team felt that an Alachua County jury would be most receptive to psychological testimony.
John Kearns similarly testified that based on his experience with the Death Penalty Steering Committee, there is a general reputation among both defense attorneys and prosecutors that Alachua County is a favorable venue for defense cases, including capital cases. When asked why the defense did not seek to change the venue from Alachua County prior to trial, Kearns explained:
It appeared that this was going to be a sentencing phase proceeding, and that — this was even before Mr. Rolling had entered his plea. And I was telling about balancing, that there was an extraordinary amount of publicity in the community concerning Mr. Rolling, but at the same time, from my own experience in handling capital cases in Alachua County, the general reputation Alachua County shares as being a favorable venue for these types of issues, the fact that the Gainesville Sun, the largest newspaper in this community, is very actively against the death penalty and devotes quite a bit of editorial space to that topic, and the fact that we know from experience, in looking at the results of death penalty litigation, at least from the northern part of the state where we can make comparisons, that this is a favorable venue to try and do capital litigation — once again, the make up of the community, because of the education and because of the high medical community itself of Gainesville, and considering the issues I was going to have to be arguing in mitigation, I had to weigh these factors.
I felt that, without knowing where we would go, and having no control over where we would go — as I’ve explained the only time the defense gets to elect, we have no control or say where we go other than that one situation' — ’that the question becomes: where do you go, can it be worse? I came to the conclusion, yes, it could be worse. So I thought we would — and at that time I felt we were probably as good as any place else being in Gainesville, Florida. And that was my conclusion, at least up until the beginning of trial.
Both Kearns and Blount Powell reiterated that the defense team weighed at length the pros and cons of venue remaining in Alachua County, before consensus on Alachua County was reached.
Further, Dr. Raymond Buchanan, who assisted the defense team at trial with media analysis and jury selection, acknowledged at the evidentiary hearing that he believed trial counsel’s initial decision concerning venue was reasonable. Dr. Buchanan testified that one of the first things to consider in a high profile case is venue and that he originally thought venue should be changed in this case. Despite his initial view toward venue, Dr. Buchanan subsequently agreed with trial counsel’s decision that Alachua County was the best place for Rolling’s trial. In a memorandum to Richard Parker dated May 3, 1993, Dr. Buchanan opined:
Normally, with this kind of media coverage, the defense would probably move for a change of venue. However, I strongly agree with your analysis. In spite of the media coverage, Gainesville is an excellent place for this trial. The traditional liberal trends in this county, along with the level of education, justifies this position. I can’t think of a better place in all of Florida to hear this particular case.
As voir dire unfolded, however, Dr. Buchanan testified that his view toward venue once again changed. Consequently, Dr. Buchanan advised the defense team that he believed a change of venue should be sought.
Despite coming “full circle” on the issue of venue, however, Dr. Buchanan testified at the postconviction evidentiary hearing that he believed there was an honest assumption on trial counsel’s part that they could find open-minded people in Alachua County to whom they could make their case. Dr. Buchanan further testified:
I think that they laid out the evidence, their intuitive, qualitative feelings about this, and I — you know, I found it to be sensible and reasonable, and at the time that I heard these things, it did sound reasonable. And, you know, when I put myself back in that time frame, knowing what we knew then, it was reason able. There was nothing unreasonable about it.
(Emphasis supplied.) This assessment was later reflected in the trial court’s decision denying postconviction relief.
As demonstrated above, trial counsel’s decision not to seek a change of venue earlier in the proceedings was a strategic decision based on their initial belief that trying the case in Alachua County provided the best opportunity of seating an intelligent and open-minded jury that would consider mitigating circumstances. Trial counsel’s decision was informed by years of experience with Alachua County juries in capital and noncapital cases.
Collateral counsel, in essence, first sought to have the trial court and now seeks to have this Court second-guess trial counsel’s initial decision about whether Rolling had a better chance, however slim it may have been, with a jury in Alachua County than with a jury in another part of Florida. We decline to do so. See Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir.1998) (declining to second-guess counsel’s “considered decision about whether Provenzano stood a better chance, however slim it may have been, with a jury in Orlando than with a jury in St. Augustine”). Although attorneys may differ as to venue strategy, we agree with the trial court’s conclusion that the decision in this case has not been demonstrated to have fallen outside the wide range of reasonable professional assistance. See Weeks v. Jones, 26 F.3d 1030, 1044 n. 13 (11th Cir.1994) (noting that counsel’s strategic decision not to seek a change of venue based upon his experience in that county was the type of decision the Supreme Court cautioned courts about questioning); see also Cox v. Norris, 133 F.3d 565, 573 (8th Cir. 1997) (holding that counsel’s tactical decision not to seek a venue change was reasonable because he believed other counties were prone to harsher sentences); Huls v. Lockhart, 958 F.2d 212, 214-15 (8th Cir.1992) (concluding that trial counsel were not ineffective for failing to seek a change of venue where counsel considered among other things their familiarity with the county where case was to be tried).
SUPPORT FOR CHANGE OF VENUE
Within this issue, Rolling also alleges that trial counsel were ineffective for failing to adequately support the motion for change of venue once filed at trial. Rolling contends that had trial counsel adequately supported the motion with sufficient evidence documenting the adverse pretrial publicity and the severe psychological impact the murders had on the Gainesville community, the trial court would have granted the change of venue. The record, however, refutes Rolling’s suggestion that trial counsel did not adequately support the motion for change of venue.
Prior to filing the motion for change of venue, trial counsel had repeatedly brought the issue of pretrial publicity to the trial court’s attention. Indeed, the trial court stressed in its order denying postconviction relief that
A glance through the motions for protective orders and motions to prohibit public disclosure is ample reminder that for three years, the defense team took every opportunity possible to bring to this Court’s attention the considerable publicity surrounding this case. It is difficult to fathom what else counsel could have done to make this jurist any more acutely aware of the circumstances of this ease prior to jury selection.
For example, trial counsel filed with their motion for individual, sequestered voir dire an exhibit consisting of over 400 newspaper articles regarding the murders published in The Gainesville Sun between August 29, 1990, and April 16, 1993. In addition, trial counsel filed a supplement to the motion for change of venue consisting of numerous news articles published in The Gainesville Sun, The Independent Florida Alligator, and The Florida Times-Union during the months preceding Rolling’s trial, as well as transcripts from news broadcasts which aired during this same time period.
Rolling’s additional suggestion that trial counsel were deficient for failing to conduct a community survey or study to determine the need for a venue change and to demonstrate to the trial court the impact the murders had on the Gainesville community was also rejected by the trial court. Although Dr. Buchanan acknowledged at the postconviction evidentiary hearing that a community survey might have been helpful as a “supplement,” he testified that actual voir dire questioning was a far better data collection process, enabling the defense team to see “eyeball to eyeball” the potential jurors and hear the “emotional tone of the response.” Further, as noted by the trial court, defense counsel attempted on a number of occasions to use questionnaires to gauge the feelings and beliefs of the potential jurors. Although generally prohibited by the trial court in written form, these questionnaires formed the “backbone” of the defense team’s voir dire questioning. Lastly, the trial court in this case undertook a meticulous jury selection process in order to seat an impartial jury and, having heard the responses of potential jury members, it is unlikely that the trial court would have given much weight to the type of community survey Rolling now contends was necessary.
PREJUDICE
Moreover, even assuming trial counsel were deficient for failing to timely seek and support the motion for change of venue, Rolling would not be entitled to relief unless he demonstrated prejudice from counsel’s alleged errors. Generally, under Strickland, to establish prejudice, “[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, 104 S.Ct. 2052. In Wike v. State, 813 So.2d 12 (Fla.2002), this Court recently explained:
When applying the prejudice prong to a claim that defense counsel was ineffective for failing to move for a change of venue, the defendant must, at a minimum, “bring forth evidence demonstrating that there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if [defense] counsel had presented such a motion to the court.”
Id. at 18 (quoting Meeks v. Moore, 216 F.3d 951, 961 (11th Cir.2000)). As noted previously, the trial court, when ultimately faced with the venue issue, was unquestionably well aware of the large amount of publicity surrounding this case from the early stages of the proceedings. Indeed, the trial court’s orders on disclosure, its order denying Rolling’s motion for change of venue, and the meticulous jury selection process employed by the trial court belie any suggestion that it was not mindful of the pretrial publicity. Further, Rolling failed to adduce any evidence at the postconviction evidentiary hearing that would undermine a finding that the trial court was sufficiently cognizant of the pretrial publicity when ruling on the motion for change of venue.
Moreover, this Court on direct appeal thoroughly addressed Rolling’s claim that the trial court erred in denying his motion for a change of venue. Based upon our independent evaluation of the circumstances, we rejected Rolling’s claim that the pretrial publicity was so pervasive and prejudicial that it must be presumed as a matter of law that the venire, as well as the actual members of the jury, were biased against him. In so doing, this Court concluded, “Because we find the trial court’s evaluation of the media coverage in this case to be consistent with our own review of the record, we reject Rolling’s claim that the pretrial publicity presumptively prejudiced the entire Alachua County community against him.” Rolling, 695 So.2d at 287. Additionally, we rejected Rolling’s claim that the responses of actual jurors demonstrated a community-wide bias against him, finding it to be “completely contrary to the evidence in the record.” Id. In sum, we concluded that “the intricate jury selection process employed in this case and the responses of actual jurors during questioning shows that it was possible to seat an impartial jury in Alachua County.” Id. at 288. Significantly, this Court reiterated on direct appeal that “our affirmance of the trial court’s order denying Rolling’s motion [for change of venue] is based on a review of all the evidence of pretrial publicity contained in the record.” Id. at 284 n. 4 (emphasis supplied).
Simply put, Rolling has not demonstrated any basis for this Court to re-evaluate its previous rejection of his claim alleging presumptive and actual prejudice on the part of jurors. In light of the amount of pretrial publicity presented at trial, appellate counsel’s strenuous argument on direct appeal as to venue, and this Court’s thorough examination of the issue, we find Rolling has failed to establish prejudice.
CONCLUSION
For the reasons stated above, we affirm the trial court’s denial of postconviction relief.
It is so ordered.
WELLS, C.J., and SHAW, ANSTEAD, PARIENTE,' LEWIS, and QUINCE, JJ., concur.
HARDING, J., concurs in result only.
These claims were: (1) trial counsel were ineffective for failing to timely seek and procure a change of venue; and (2) trial counsel were ineffective for failing to challenge particular jurors during voir dire. In his amended 3.850 motion, Rolling abandoned the additional twenty-nine claims which were raised in a summary fashion in his original motion.
Huff v. State, 622 So.2d 982 (Fla.1993).
To the extent Rolling alleges on appeal that trial counsel were ineffective due to an actual conflict of interest, we find his claim to be without merit. Rolling's argument is premised on the public defender's previous representation of two of the State's penalty phase witnesses, R.B. and B.L., in unrelated matters in 1977 and 1979, respectively. We conclude Rolling has failed to demonstrate that an actual conflict of interest existed that adversely affected counsel’s representation. See Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002).
On February 25, 1994, during the jury selection process, Rolling filed a motion for change of venue. Following a hearing on February 28, the trial court orally denied Rolling’s motion. Rolling's trial counsel renewed the motion immediately prior to the court empaneling the jury, and again as part of Rolling's motion for a new sentencing hearing. On May 20, the trial court entered a ten-page order explaining its reason for denying Rolling’s motion for change of venue.
Although it also believed Rolling’s claim was proeedurally barred, the trial court chose to address the merits of the claim to avoid the potential delay of remand if this Court were to find a procedural bar inappropriate and to give every opportunity for any superior court to have a full and complete record upon which to render its ruling. In overlooking the procedural bar, however, the trial court strictly confined its inquiry to whether trial counsel were ineffective for failing to timely appreciate the need for a change of venue or present additional evidence to support the motion eventually filed.
Rolling was represented at trial by four attorneys from the public defender's office. Three of Rolling’s trial attorneys, Richard Parker, Public Defender for the Eighth Judicial Circuit, John Kearns, chief assistant public defender, and Barbara Blount Powell, an assistant public defender, testified at the postconviction evidentiary hearing.
Dr. Buchanan's view was based in part upon his discussions with Rolling’s trial counsel, as well as with other attorneys practicing criminal law in the Gainesville area.
In a memorandum to Rolling's trial counsel dated February 22, 1994, Dr. Buchanan explained in part: I have now sat through most of the jury selection process as it relates to death qualification. To say the least, from the standpoint of the defense, the situation is both bleak and desperate. The Gainesville jurors are as good as everyone said they were. I don't believe we could find a better panel anywhere in the stale. These jurors are honest and good people. With a normal first degree murder case, these jurors would be excellent. From a general point of view, these jurors are not overly death prone and, in many cases, appear very open minded. I think that the right decision was made to try this case in Gainesville. Here is the problem and why we are in such desperate circumstances. Many of the jurors that I have seen, while not death prone in most cases, appear to clearly be "death prone” in this case. They struggle to be open minded, but they are having a very difficult time. I think we all understand that. There is a lot of pressure on these jurors to collectively represent the anger of the public concerning this case. They never admit to such pressure but, I think in a way, we all feel it. Thus, this jury pool, in this particular case, is very death prone. The general public feels that death is appropriate in this case, and you can see the steady influence of that general feeling on nearly every juror. Dr. Buchanan further explained the reasons for his change of view in a memorandum to Richard Parker dated February 25, 1994.
In addition, trial counsel relied on a study conducted by Michael J. Herkov, Ph.D., a professor of psychiatry at the University of Florida. The "Herkov Report,” as it was called, analyzed the effect that the murders had on the Gainesville community over a period of eighteen months, concluding that most of the emotional distress associated with the crimes abated over time.
At the hearing on the motion for change of venue, the trial court took judicial notice of this earlier filing.
The supplement filed on March 17, 1994, contained nine articles published in The Gainesville Sun between December 31, 1993, and February 25, 1994, fourteen articles published in The Independent Florida Alligator between January 1 and February 28, 1994, and eleven articles published in The Florida Times Union between January 1 and February 26, 1994. Trial counsel also filed transcripts of nineteen news broadcasts on WUFT-TV, Channel 5, which aired between January 1 and February 28, 1994, and twenty news broadcasts on WCJB-TV 20, which aired between January 6 and March 2, 1994. .Dr. Buchanan eventually recommended that a survey be conducted in the case, but he did so only after he became concerned during voir dire. Moreover, at the evidentiary hearing, Dr. Buchanan acknowledged that due to the limitations of questionnaires, he was not sure the perceived hostility of potential jurors would have emerged in an earlier survey.
Danny Harold ROLLING, Petitioner-Appellant, v. James V. CROSBY, Secretary of the Florida Department of Corrections, Respondent-Appellee.
No. 05-14252.
United States Court of Appeals, Eleventh Circuit.
Feb. 9, 2006.
Clyde M. Taylor, Jr. (Courh-Appointed), Tallahassee, FL, Baya Harrison, III, Monticello, FL, for Rolling.
Carolyn M. Snurkowski, Florida Atty. Gen., Tallahassee, FL, for Crosby.
Before BLACK, CARNES and PRYOR, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
The issue presented in this appeal is whether the Florida Supreme Court unreasonably concluded that the four attorneys for Danny Harold Rolling, a prisoner under sentence of death, deprived Rolling of effective assistance at the penalty phase of his trial when the attorneys delayed their filing of a motion for a change of venue. In November 1991, Rolling was indicted for the homicides of five college students and other related crimes that occurred in August 1990. Immediately before his trial in 1994, Rolling pleaded guilty to all the charges. The following day, jury selection began for the penalty phase of the trial. Several days later, Rolling’s attorneys became convinced that the jury was likely to recommend a sentence of death, so they moved for a change of venue. Rolling argues that his attorneys were ineffective for failing to move sooner for a change of venue and thep for providing inadequate support for the motion. The Florida Supreme Court concluded that Rolling’s attorneys reasonably delayed the filing of the motion based on their experienced judgment that the venue, the Well-educated community of Gainesville, was a favorable one for a capital trial and their delay did not prejudice Rolling. Because the determination of the Florida court that Rolling was not deprived of effective assistance of counsel was reasonable, we affirm the denial of Rolling’s petition for a writ of habeas corpus.
I. BACKGROUND
Between August 24 and August 27,1990, five college students were murdered in Gainesville, Florida. Rolling was indicted for the murders on November 15, 1991. On February 15, 1994, the day his trial was to begin, Rolling pleaded guilty to five counts of first-degree murder, three counts of sexual battery, and three counts of armed burglary of a dwelling with a battery. The trial court accepted the plea and adjudicated Rolling guilty on all counts. Intense media coverage surrounded the murders of the students and the indictment and trial of Rolling.
The day following Rolling’s guilty plea, jury selection commenced for the penalty phase of the trial. Six days into jury selection, Rolling filed a motion for a change of venue. Counsel for Rolling argued that, based on their perception of the jury venire, the jurors in Alachua County could not be impartial in Rolling’s case and a change of venue was necessary to preserve Rolling’s right to a fair and impartial jury. Counsel supplemented the motion with numerous newspaper articles and radio and television transcripts, and the trial court took judicial notice of the extensive pretrial publicity. After detailing the meticulous jury selection process and articulating its belief that the jurors selected were impartial, the trial court denied the motion for a change of venue.
The penalty phase of trial was held from March 7 through March 24, 1994. At the close of the trial, the twelve-member jury unanimously recommended a sentence of death for each murder. The trial court entered a written order sentencing Rolling to death on each of the five homicides.
Rolling appealed to the Florida Supreme Court and argued, among other things, that the trial court abused its discretion when it denied his motion for a change of venue. The Florida Supreme Court affirmed the sentence on March 20, 1997, Rolling v. State, 695 So.2d 278, 297 (Fla.1997), and the Supreme Court of the United States denied certiorari on November 17, 1997, Rolling v. Florida, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997).
On November 13, 1998, Rolling filed a motion for postconviction relief in the state trial court in accordance with Florida Rule of Criminal Procedure 3.850 and asserted thirty-one claims. On April 5,1999, Rolling filed an amended postconviction motion in the state court that abandoned all claims except two of ineffective assistance of counsel related to the penalty phase: (1) trial counsel were ineffective for failure to seek properly and obtain a change of venue, and (2) trial counsel were ineffective for failure to challenge biased and fearful venire persons during voir dire. The court held an evidentiary hearing from July 11 through July 15, 2000. At the close of the hearing, the court issued a thirty-eight page order that denied Rolling’s motion.
The court credited the testimony of Rolling’s trial attorneys that they made an informed tactical decision not to seek a change of venue because they believed that the educated and open-minded citizenry of Alachua County made it the best venue for the penalty phase of a capital case and found that the decision of the trial attorneys was reasonable. The court also found that trial counsel more than adequately supported their motion when they did move for a change of venue. Rolling appealed to the Florida Supreme Court, which affirmed the denial of postconviction relief. Rolling v. State, 825 So.2d 293 (Fla.2002).
The Florida Supreme Court identified Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling law and determined that Rolling’s claim of ineffective assistance failed on both elements of the Strickland test. See Rolling, 825 So.2d at 296-303. The state court determined that trial counsel made an informed tactical decision initially to try Rolling’s case in Alachua County, despite the pretrial publicity, and that initial decision to try the case in Alachua County did not “fall[ ] outside the wide range of reasonable professional assistance.” Id. at 301. The Florida Supreme Court also determined that trial counsel adequately supported the change of venue motion that was eventually filed during the jury selection process. Id. at 301-02. With regard to the prejudice element, the Florida Supreme Court determined that Rolling had failed to show any prejudice from counsel’s alleged errors. Id. at 302-03. The court noted that the trial court was “well aware of the large amount of publicity surrounding this case from the early stages of the proceedings” and Rolling’s argument that the trial court erred in denying the motion for a change of venue had been thoroughly addressed and rejected on direct appeal. Id. at 303.
On August 8, 2002, Rolling filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Florida. The district court denied relief on July 1, 2005, and Rolling appealed. •
Although Rolling, in his initial brief, argued both that trial counsel were ineffective and that the state courts erred when they determined, on direct appeal, that a change of venue was not mandated, Rolling later abandoned the second argument. At oral argument, counsel for Rolling waived the argument about the alleged errors of the Florida courts on direct appeal. Rolling’s counsel conceded that the only remaining argument on appeal involved the alleged ineffectiveness of his trial counsel.
II. STANDARD OF REVIEW
“We review de novo the district court’s dismissal of a [section] 2254 petition. We review the district court’s factual determinations for clear error .... An ineffective assistance of ... counsel claim presents a mixed question of law and fact, and we review such a claim de novo.” Clark v. Crosby, 335 F.3d 1303, 1307 (11th Cir.2003) (citations omitted).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), a federal district court may not grant the petition for a writ of habeas corpus of a state prisoner
... with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). “A state-court decision will ... be contrary to [the Supreme Court’s] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [those] cases.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). “A state-court decision will also be contrary to [the Supreme Court’s] clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [that] precedent.” Id. at 406, 120 S.Ct. at 1519-20. “[W]hen a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case, a federal court applying [section] 2254(d)(1) may conclude that the state-court decision falls within that provision’s ‘unreasonable application’ clause.” Id. at 409, 120 S.Ct. at 1521. The factual determinations of the state court “shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
The only issues that remain before us concern Rolling’s argument that he was deprived of effective assistance of counsel in violation of the Sixth Amendment. To prove ineffective assistance of counsel, Rolling had to establish “both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1318 (11th Cir.2005). To establish that counsel’s performance was deficient, Rolling had to prove “that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. To prove prejudice, Rolling had to establish “that there is 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.” Id. at 694, 104 S.Ct. at 2068.
Rolling challenges both the findings of fact and the application of federal law by the Florida courts. Rolling contends that the decision of the Florida Supreme Court was unreasonable with respect to both the delayed filing of his motion for a change of venue and the support provided for that motion. We address each argument in turn.
A. The Determination of the Florida Supreme Court That Trial Counsel Were Not Ineffective for Failure to File a Motion for Change of Venue Sooner Was Reasonable.
Rolling’s argument that his attorneys were ineffective for failing to move for a change of venue sooner is twofold. First, Rolling argues that the state court erred, as a factual matter, when it credited the testimony of his trial attorneys that they made an initial strategic decision to keep the trial in Alachua County because they believed it was the best venue for the trial. Second, Rolling argues that the state court determination that this strategy was reasonable was an unreasonable application of Strickland.
Rolling’s challenge to the factual findings of the state court fails. The factual findings of the state court, including the credibility findings, are presumed to be correct unless Rolling rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Three members of Rolling’s defense team and Dr. Buchanan, the jury expert, testified at the 3.850 hearing that they made a strategic decision to try Rolling’s ease in Alachua County, and the state court credited this testimony. Rolling asserts that the state court should not have credited the testimony of trial counsel because it was merely a cover-up for their mistake, but this bald assertion is insufficient to rebut the presumption of correctness attached to the credibility finding of the state court.
Rolling’s challenge to the determination of the Florida courts that trial counsel’s strategy was reasonable also fails. The review of counsel’s performance is deferential. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted). The state court applied this presumption to its review of trial counsel’s performance and found that the decision to keep Rolling’s case in Alachua County was reasonable. Rolling, 825 So.2d at 301.
We cannot say that the decision of the state court about the strategic choice of Rolling’s attorneys was unreasonable. Based on years of experience in criminal defense, Rolling’s attorneys believed the jury venire in Alachua County was more willing to consider a recommendation of a life sentence than other venues in Florida. The attorneys also believed that the jury venire, in this medical community, was more likely to consider favorably Rolling’s evidence in mitigation regarding mental health problems. The decision of the Florida courts that this strategy was sound was not unreasonable.
B. The Determination of the Florida Supreme Court That Trial Counsel Were Not Ineffective in Their Support of the Motion for Change of Venue Was Reasonable.
Rolling argues that, if trial counsel had presented more evidence of publicity, the trial court would have granted the motion, but Rolling’s argument fails on two grounds. First, Rolling has not established that the determination of the state court, that counsel’s performance fell within the “wide range of reasonable professional assistance,” Rolling, 825 So.2d at 301, was unreasonable. “The test for ineffectiveness is not whether counsel could have done more; perfection is not required.” Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir.1995). The Florida courts reasonably concluded that Rolling’s attorneys performed competently in moving for a change of venue based on their extensive filings related to pretrial publicity.
Second, Rolling has not established prejudice from counsel’s alleged failure to support the change of venue motion. To the contrary, the same judge presided at Rolling’s trial and the 3.850 hearing. After hearing the evidence presented at the 3.850 hearing, the court stated, “It is difficult to fathom what else counsel could have done to make this jurist any more acutely aware of the circumstances of this case prior to jury selection.” The statement of the state court belies the contention that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The determination that Rolling was not prejudiced by any errors of his trial counsel was not unreasonable. Rolling’s petition fails on both elements of his ineffective assistance of counsel claim.
IV. CONCLUSION
The denial of Rolling’s petition for a writ of habeas corpus is
AFFIRMED.
Danny Harold ROLLING, Appellant, v. STATE of Florida, Appellee.
No. SC06-1966.
Supreme Court of Florida.
Oct. 18, 2006.
Baya Harrison, Monticello, Florida and Clyde M. Taylor, Jr., Tallahassee, FL, for Appellant.
Charles J. Crist, Jr., Attorney General and Carolyn M. Snurkowski, Assistant Deputy General Counsel, Tallahassee, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Danny Harold Rolling, a prisoner under sentence of death and an active death warrant, appeals the circuit court’s order denying without an evidentiary hearing his successive motion for postconviction relief. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the circuit court’s order.
FACTS AND PROCEDURAL HISTORY
The execution of Danny Harold Rolling is set for October 25, 2006. The factual background and procedural history of this case are detailed in this Court’s opinion on Rolling’s direct appeal. See Rolling v. State, 695 So.2d 278, 281-83 (Fla.1997). After initially pleading not guilty, on February 15, 1994, the day Rolling’s trial was scheduled to begin, he pled guilty to five counts of first-degree murder, three counts of sexual battery, and three counts of armed burglary of a dwelling with a battery. Id. at 282. “A penalty phase proceeding was held, and the jury recommended that Rolling be sentenced to death for each murder by a vote of twelve to zero. The trial court followed the jury’s advisory recommendation and sentenced Rolling to death for each homicide.... ” Id. This Court affirmed Rolling’s sentences of death, id. at 278, and the United States Supreme Court denied his petition for writ of certiorari. Rolling v. Florida, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997).
Rolling first filed a Florida Rule of Criminal Procedure 3.850 motion for postconviction relief in November 1998, and filed an amended motion in April 1999, raising two claims. After conducting an evidentiary hearing, the trial court denied relief, and this Court affirmed. Rolling v. State, 825 So.2d 293, 294 (Fla.2002). Thereafter, Rolling sought federal habeas relief in the United States District Court for the Northern District of Florida. The district court denied relief on July 1, 2005, and Rolling appealed. On February 9, 2006, the Eleventh Circuit issued an opinion affirming the district court’s denial of Rolling’s petition for a writ of habeas corpus. Rolling v. Crosby, 438 F.3d 1296, 1298 (11th Cir.2006). The United States Supreme Court denied certiorari on June 26, 2006. Rolling v. McDonough, — U.S. -, 126 S.Ct. 2943, 165 L.Ed.2d 966 (2006).
On September 22, 2006, Governor Jeb Bush signed a death warrant authorizing Rolling’s execution. In response to the signing of the death warrant, Rolling filed his second 3.851 motion on October 4, 2006, which raised four claims. The State filed a response on October 6, 2006. On October 9, 2006, the trial court entered its order summarily denying all claims raised in the successive motion. This appeal follows.
LETHAL INJECTION
Rolling first argues that the trial court erred in denying Rolling’s claim that Florida’s method of execution by lethal injection violates Rolling’s right to be free of cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, and his right to free speech as guaranteed by the First Amendment. Rolling also argues that the trial court erred in denying Rolling’s motion to obtain public records from the Florida Department of Corrections and the Medical Examiner for the Eighth Judicial Circuit of Florida pertaining to autopsy and toxicology reports of persons executed in Florida by lethal injection and protocols used in the lethal injection process. This Court has explained:
Florida Rule of Criminal Procedure 3.850(d) provides that a defendant is entitled to an evidentiary hearing on postconviction claims for relief unless “the motion, files, and records in the case conclusively show that the movant is entitled to no relief.” Florida Rule of Criminal Procedure 3.851(f)(5)(B) applies the same standard to successive postconviction motions in capital cases. In reviewing a trial court’s summary denial of postconviction relief without an evidentiary hearing, this Court “must accept all allegations in the motion as true to the extent they are not conclusively rebutted by the record.” Hodges v. State, 885 So.2d 338, 355 (Fla.2004) (quoting Gaskin v. State, 737 So.2d 509, 516 (Fla.1999)). “To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” McLin v. State, 827 So.2d 948, 954 (Fla.2002) (quoting Foster v. Moore, 810 So.2d 910, 914 (Fla.2002)).
Rutherford v. State, 926 So.2d 1100, 1108 (Fla.), cert. denied, — U.S. -, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006). We find no error by the trial court under this standard.
Cruel and Unusual Punishment
In his first claim, Rolling argues that a research letter published in April 2005 in The Lancet presents new scientific evidence that Florida’s procedure for carrying out lethal injection may subject the inmate to unnecessary pain. See Leonidas G. Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412 (2005). He supports this claim with an affidavit from one of the study’s authors, Dr. David A. Lubarsky, asserting that Florida’s procedure is substantially similar to the procedures used in the other states evaluated in the study. Rolling ultimately asserts that the information in this study is new information not previously available to this Court when it decided Sims v. State, 754 So.2d 657 (Fla.2000).
The trial court summarily denied this claim and found that Rolling was not entitled to an evidentiary hearing on whether lethal injection, as administered in Florida, constitutes cruel and unusual punishment, stating that this Court determined in Sims, that lethal injection as administered by the Department of Corrections did not constitute cruel and unusual punishment. In Hill v. State, 921 So.2d 579 (Fla.), cert. denied, — U.S.-, 126 S.Ct. 1441, 164 L.Ed.2d 141 (2006), this Court addressed the same claim now asserted by Rolling and upheld the trial court’s summary denial of the claim. We again rejected such a claim in Rutherford v. State, 926 So.2d at 1113-14. As in those cases, we affirm the trial court’s summary denial of this claim in Rolling’s case.
First Amendment Claim
Rolling next asserts that the circuit court erred in denying an evidentiary hearing on his claim that the administration of pancuronium bromide violates his free speech rights as guaranteed by the First Amendment to the United States Constitution. Specifically, Rolling contends that the administration of pancuronium bromide, which paralyzes the muscles, violates his right to free speech because it renders him unable to communicate any feeling of pain that may result if the execution procedure is carried out improperly. Thus, Rolling’s claim is inextricably intertwined with his claim that there is a possibility that the first chemical, sodium pento-thal, will not be administered properly, leaving him wholly or partially conscious.
The circuit court summarily denied this claim. In Rutherford, this Court addressed the same claim and found that, because the defendant could not demonstrate that the chemicals involved in lethal injection would be administered improperly in his case, the defendant was not entitled to relief on this claim. 926 So.2d at 1114-15. Therefore, as in Rutherford, we find Rolling’s identical First Amendment claim to be without merit and find no error in the trial court’s denial applying our decision in Rutherford.
Public Records Claim
Rolling next argues that the circuit court erred in denying an evidentiary hearing on his claims arising from his public records requests. On September 28, 2006, Rolling filed a motion for production of additional public records to the Florida Medical Examiner’s Office of the Eighth Circuit of Florida and the Department of Corrections, and a motion for serological samples and for independent testing to the trial court. Rolling requested autopsy reports and toxicology studies performed on the sixteen individuals executed by lethal injection from 2000 to 2005 and all documents related to the Department of Corrections’ administration of lethal injection and Rolling’s own medical records. He also requested to have independent testing of post-execution blood samples of Arthur Rutherford, scheduled for execution on October 18, 2006. The State filed responses opposing each of these requests. On October 4, 2006, the trial court entered an order denying Rolling’s motion for production of additional public records and motion for serological samples and for independent testing because Rolling had served this public records request six days after Governor Bush signed Rolling’s death warrant on September 22, 2006. The trial court stated that Rolling was entitled to his own medical records as long as he complies with Department of Corrections regulations. Rolling then argued that the withholding of public records violates chapter 119, Florida Statutes, the Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 9 and 17 of the Florida Constitution. The circuit court denied this claim.
Florida Rule of Criminal Procedure 3.852(h)(3) applies to cases in which a mandate was issued prior to the effective date of the rule. The effective date of the rule was October 1, 1998, and this Court affirmed Rolling’s conviction and death sentence on March 20, 1997. The rule states:
Within 10 days of the signing of a defendant’s death warrant, collateral counsel may request in writing the production of public records from a person or agency from which collateral counsel has previously requested public records. A person or agency shall copy, index, and deliver to the repository any public record:
(A) that was not previously the subject of an objection;
(B) that was received or produced since the previous request; or
(C) that was, for any reason, not produced previously.
Fla. R.Crim. P. 3.852(h)(3) (emphasis added). Because there is no evidence in the record that Rolling has ever requested records from the Medical Examiner’s Office or the Department of Corrections before his September 28, 2006 request, we find that the trial court was correct in denying this claim without an evidentiary hearing. See also Rutherford, 926 So.2d at 1115-17 (denying the substantially same records request because the defendant failed to demonstrate that he had previously requested records concerning lethal injection in Florida, and reasoning that rule 3.852(h)(3) “is designed to allow an update of records previously requested”).
THE ABA REPORT
Rolling asserted a claim in the trial court that the American Bar Association report entitled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report, published September 17, 2006, constitutes newly discovered evidence proving that imposition of the death penalty is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. The trial court denied this claim. We recently addressed this issue in Rutherford v. State, Nos. SC06-1931 & SC06-1946, 940 So.2d 1112, 2006 WL 2884822 (Fla. Oct. 12, 2006), wherein we concluded that the ABA Report is not newly discovered evidence because it “is a compilation of previously available information related to Florida’s death penalty system and consists of legal analysis and recommendations for reform, many of which are directed to the executive and legislative branches.” Id., at 1117. We also held that nothing in the report would cause this Court to recede from its past decisions upholding the facial constitutionality of the death penalty, and that the defendant did not allege how any of the conclusions in the report would render his individual death sentence unconstitutional. Id., at 1118. For these same reasons, we affirm the circuit court’s summary denial of Rolling’s claim.
CONCLUSION
For the reasons explained above, we affirm the circuit court’s order denying Rolling’s successive motion for postconviction relief.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
.On direct appeal, Rolling raised the following six claims of error: (1) the trial court abused its discretion in denying his motion for a change of venue and thereby violated his Sixth Amendment right to be fairly tried by an impartial jury because pervasive and prejudicial pretrial publicity so infected the Gainesville and Alachua County community that seating an impartial jury there was patently impossible; (2) the trial court erred in denying Rolling's motion to suppress his statements which were obtained in violation of his Sixth Amendment right to counsel; (3) the trial court erred in denying Rolling’s motion to sever and conduct three separate sentencing proceedings; (4) the trial court erred in denying Rolling’s motion to suppress physical evidence seized from his tent because the warrantless search and seizure violated his reasonable expectation of privacy under the Fourth Amendment; (5) the trial court erred in finding as an aggravating circumstance that the homicide of Sonya Larson was especially heinous, atrocious, or cruel; and finally (6) the trial court erred by giving an invalid and unconstitutional jury instruction on the heinous, atrocious, or cruel aggravating circumstance.
The claims were as follows: (1) ineffectiveness of trial counsel regarding change of venue, and (2) ineffectiveness of trial counsel for failing to challenge three particular jurors during voir dire.
The claims were as follows: (1) access to the files and records pertaining to Rolling’s case in the possession of certain state agencies has been withheld in violation of chapter 119, Florida Statutes, the Eighth and Fourteenth Amendments to the United States Constitution, and articles 1, 9, and 17 of the Florida Constitution; (2) the existing procedure that the State of Florida utilizes for lethal injection violates the Eighth Amendment to the United States Constitution, as it constitutes cruel and unusual punishment; (3) the administration of pancuronium bromide violates Rolling's First Amendment right to free speech; and (4) newly discovered empirical evidence demonstrates that Rolling’s conviction and sentence of death constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.