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Supreme Court of Florida
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No. SC20-155 ____________ DONTAE R. MORRIS, Appellant, vs. STATE OF FLORIDA, Appellee. April 8, 2021 PER CURIAM. Dontae Morris appeals the denial of his initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851.^1 For the reasons explained below, we affirm the postconviction court’s denial of Morris’ claims. I. BACKGROUND Morris was convicted of two counts of first-degree premeditated murder for the murders of Officer David Curtis and
- We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Officer Jeffrey Kocab and one count of escape while being transported. Morris v. State , 219 So. 3d 33, 36 (Fla. 2017). On direct appeal, this Court described the facts as follows:
counts for the first-degree premeditated murders of^ Morris was convicted and sentenced to death on two Officer David Curtis and Officer Jeffrey Kocab.evidence at trial established that on June 29, 2010, at The about 2:13 a.m., Officer Curtis pulled over a red ToyotaCamry in Hillsborough County for not displaying an automobile tag. Cortnee Brantley was the driver, and Dontae Morris was in the passenger’s seat.video from Officer Curtis’ patrol car was played for the The dashcam jury at trial.discussion in which Morris identifies himself to Officer The transcript of that video includes a Curtis, disclosing his name, age, and birthdate.transcript continues with a discussion between Officer The Curtis and Ms. Brantley about the missing tag on the vehicle, and Ms. Brantley states that the tag was stolen. Officer Curtis returned to his patrol car, entered Morris’ name in his in-car computer, and discovered thatthere was a warrant out for Morris. He called for backup, and Officer Kocab pulled up and parked behind OfficerCurtis’ parked patrol car. Then both officers approached the passenger side of the parked Camry.with Officer Kocab standing right behind him at the Officer Curtis, passenger side of the vehicle, asked Morris to exit the vehicle.surrendering but instead grabbed a gun and shot both Morris exited the vehicle as if he was officers in the head.homicides of Officers Curtis and Kocab was 2:18 a.m. The approximate time for the This interaction is captured in the dashcam video in the following way: [Officer Curtis]: —you know anything about it? [The Defendant]: The warrant?
shorts, and white sneakers or tennis shoes. Ms. Jones also testified that Morris called her around 2 a.m.that day, detectives interviewed Ms. Jones. When the Later detectives showed her a photograph, which was a stillphoto from the dashcam video, she identified the individual in the photo as Morris. She testified that it looked like Morris because of the head shape and outfitand because he had on the same clothing that he had on that morning when she saw him. Additionally, two witnesses testified that they saw a black male running northbound from the scene of the incident.near where the traffic stop took place. Ynalia Keen lived in a bottom floor apartment She testified that on the night of the incident, she had stepped out of herapartment to get snacks from a gas station, and, when she heard the gunshots, she rushed back inside.inside her apartment, looking through a front window From that looks out onto the street, she saw a black malerunning on the sidewalk towards her apartment building, then into the apartment complex, cutting through the middle of the parking lot, and jumping a small fence.When she could not see him through the front window, Ms. Keen went to the kitchen to look through the windowat the back of the apartment, where she saw him jump another, taller, chain-link fence. The next day, on June 30th, Detective Charles Massucci interviewed Ms. Keen.Morris’ photograph from a photographic lineup. Ms. Keen identified Ms. Keen also wrote the following statement: “Seen him on the back road with a group of people.house when the people was shot. Seen him at the Shell He had ran by my store.” The other witness, Alfred Thompson, was walking northbound on the street where the traffic stop took place.car had two occupants sitting in the front seat, a black As he walked past the Camry, he noticed that the female in the driver’s side and a black male in thepassenger’s side. He also saw the officer in his vehicle at that time. After Mr. Thompson passed the cars, he heard
two gunshots coming from behind him from the direction of the police car and the other vehicle, and he hid behindanother car; he did not see the individual who fired the shots.northbound (on the same sidewalk he was walking on), Thereafter, Mr. Thompson saw a black male run go through an apartment complex, and jump a chain-link fence. Just north of the crime scene, detectives found footprints on the bottom part of the large fence at theperimeter at the back of the apartment complex and also found a piece of a zipper that was torn off from an article of clothing attached to the top of that fence. On the night of the murders, Morris called Ashley Price and confided in her regarding the murders.Price went to the Tampa Police Department on June 30, Ms. the next day, and spoke with Officer Kevin Durkin.testified that she knew Morris as “Quelo” and that Morris She called her more than once in the early morning hours ofJune 29. When she answered a call from Morris around 3:30 a.m., he asked for a ride, but she did not give him one.noon that day, and Morris told Ms. Price “that he did it,” She spoke with him on the phone again at around telling her to watch the news about the police officers.Ms. Price also testified that Morris told her the following: that he shot the officers to get away from them, that hewas out of the car when he shot the officers, that there were two officers, that he shot them in the head, that hereferred to them as “crackers,” that he got the gun from under the seat, that he gave the officer his name, that the officer had gone back to run his name, that he was afraidthat he had a warrant, that he was the passenger in the car, and that he was going to try to go to Jacksonville. Detective Charles Massucci confirmed that between the time of the murders and the afternoon of June 30, there were no releases from the Tampa PoliceDepartment about the facts of the case to the press or to the media concerning this subject matter that Ms. Pricediscussed.
2013, the jury recommended the death penalty by a vote of twelve to zero on both counts. At the subsequent Spencer [ v. State, 615 So. 2d 688 (Fla. 1993)]mitigation with expert testimony from Dr. Valerie hearing, the defense presented mental health McClain, an expert in forensic psychology and neuropsychology.mental health records from Dr. Lamar Ingulli, which Dr. McClain reviewed Morris’ prior included memory testing and IQ testing.diagnosed Morris with major depression with psychotic Dr. McClain features and borderline intellectual functioning but notintellectually disabled. She testified that Morris had deficiencies in verbal comprehension, such as word knowledge and processing speed. Then the State presented rebuttal mental health expert testimony and additional victim impact testimony.Dr. Emily E. Lazarou, an expert in the area of forensic psychiatry, testified that she reviewed Dr. McClain’sdepositions, Dr. Ingulli’s medical records, and Morris’ school records, and opined that Morris was in the average range of intellectual functioning with an IQ of atleast 100 to 110.
Morris , 219 So. 3d at 36-40 (footnote omitted). After the presentation of mitigating and aggravating factors, the trial court sentenced Morris to death in accordance with the jury’s unanimous recommendations on both counts.^2 On direct
beyond a reasonable doubt and accorded them respective weight:^ 2.^ The trial court found the following aggravators were proven (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat ofuse of violence to a person (great weight); (2) the capital felony was committed for the purpose of avoiding or
preventing a lawful arrest or effecting an escape fromcustody (did not weigh or consider because merged with law enforcement officer aggravator); and (3) the victim of the capital felony was a law enforcement officer engagedin the performance of his official duties (great weight).
Morris mitigators:, 219 So. 3d at 39-40. The trial court also found the following
(1) Morris was prematurely born to a sixteen-year-old,unwed mother (minimal weight); (2) Morris’ father was murdered when he was two years old (no weight); (3) Morris was raised by his maternal grandmotherduring his early years, but her health was fragile and she could not and did not adequately care for him (minimalweight); (4) Morris’ mother did not bond with her child because she suffered severe postpartum depression andwas a child herself (moderate weight); (5) Morris started to bond with his step-grandfather, but he became a crackaddict and left the family (minimal weight); (6) Morris was raised without a father or any other male role model (moderate weight); (7) Morris’ mother subsequently gavebirth to two more children, and she eventually married their father (minimal weight); (8) Morris’ motherattempted to make a home with a supportive family (minimal weight); (9) Morris’ mother grew tired of thelimited success of her efforts to integrate Morris into her new family, and Morris felt more and more isolated,alone, rejected, and left out (minimal weight); (10) Morris had to watch his siblings receive support and affection of a father, support he never had (minimal weight); (11) 14-year-old Morris assumed the role of man of the house and source of support for his siblings when his motherleft her husband, and Morris suffered with his mother through a long and bitter divorce (minimal weight); (12) after the divorce, the family moved in with another man,and he and Morris competed for the role of man of the house and father to his siblings, and Morris was asked to
appeal, we affirmed Morris’ convictions and sentences of death. Id. at 46. The United States Supreme Court denied certiorari on November 13, 2017. Morris v. Florida , 138 S. Ct. 452 (2017). On November 6, 2018, Morris filed a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.851. He raised 7 claims, and the circuit court granted an evidentiary hearing on most of Morris’ claims on June 10, 2019, but reserved ruling on Morris’ cumulative error claim and Brady^3 claim. During the evidentiary hearing, the postconviction court heard testimony from Morris’ trial counsel, Karen Meeks and Christopher Boldt; mental health experts who had testified at trial as well as new mental health experts; Ashley Price and James Baird (Price’s former partner); and Marcus Oglesby, a friend of Morris’ who claimed to have seen him the night of the murders. On December 30, 2019, the postconviction court entered an order denying Morris’ postconviction motion as to all claims. This appeal followed.
- Brady v. Maryland , 373 U.S. 83 (1963).
II. ANALYSIS
Morris now appeals the denial of relief, arguing that the postconviction court erred in denying his initial postconviction motion claims, including claims of (A) newly discovered evidence, (B) ineffective assistance of counsel during the guilt phase of the trial, (C) ineffective assistance of counsel during the penalty phase of the trial, (D) cumulative error, and (E) a Brady violation. We address each claim in turn. A. Newly Discovered Evidence Morris first argues that the postconviction court erred in denying his claim of newly discovered evidence showing Ashley Price lied when testifying against Morris at trial. Specifically, Morris submits the testimony of James Baird, an inmate who was in a relationship with Price around the time of Morris’ arrest and trial, that Price testified against Morris because she was pressured by the State and law enforcement and that Morris never confessed to her. We affirm the denial of this claim. To successfully claim newly discovered evidence, a defendant must meet the two requirements set forth by this Court in Jones v. State , 709 So. 2d 512, 521-22 (Fla. 1998). “First, in order to be
Id. (citations omitted). Morris’ claim fails the first prong of Jones because he has not demonstrated that the evidence was unavailable at trial and could not have been discovered with due diligence. See Dailey v. State , 279 So. 3d 1208, 1215 (Fla. 2019) (holding that evidence related to impeachment of a key witness could have been discovered by due diligence where the defendant proffered documents that were created around the time of trial and no other explanation for why they were not discovered was given). Morris does not allege that the defense team was unable to obtain Baird’s testimony prior to trial and offers no explanation as to why Baird, who was in a relationship with Price at the time of trial and was the father of her unborn child, was not contacted by trial counsel. His only contention is that Baird “made it clear during his evidentiary hearing that he did not view it possible to reveal any of this information prior to these postconviction proceedings,” but Baird only testified that he did not come forward with this information because he did not know Morris or his attorneys. This does not establish that Baird was unavailable or that trial counsel was unable to discover his evidence. See Kormondy v. State , 154 So. 3d
341, 350-53 (Fla. 2015) (rejecting a claim that trial counsel discovered new evidence of witnesses who purported to incriminate a suspect based on conversations they had prior to trial when the fact of communication between witnesses and the suspect was established on record prior to the postconviction proceedings). Moreover, this is not a situation where a witness later recants testimony, meaning that the recantation is newly available. See Davis v. State , 26 So. 3d 519, 528 (Fla. 2009) (“Regardless of the time span from the time of trial to the discovery of the new testimony, recanted testimony cannot be ‘discovered’ until the witness chooses to recant.”). The first prong of Jones has not been met. Additionally, even if the testimony of Baird did meet the first prong of Jones , it is not likely to produce an acquittal upon retrial and fails the second prong. As the State correctly notes, Baird’s testimony regarding Price’s alleged prior statements constitute hearsay and could only be admissible to impeach Price. See § 90.801, Fla. Stat. (2020) (defining hearsay); § 90.608, Fla. Stat. (2020) (providing for impeachment of a witness by introduction of prior inconsistent statements). To the extent Baird’s testimony
that he saw a black female and black male sitting in the Camry before he heard gunshots and saw a black male run northbound and jump a chain-link fence; (6) footprints and a portion of a torn zipper at a nearby chain-link fence; and (7) cell phone records placing Brantley and Morris at or near the scene of the crime at the time of the incident. Morris , 219 So. 3d at 37-39. And the postconviction court found Baird’s testimony to not be credible in light of Price’s testimony refuting Baird’s claims. See Hurst v. State , 18 So. 3d 975, 993 (Fla. 2009) (“[W]e will not substitute our judgment for that of the trial court on questions of fact, credibility of witnesses, or the weight to be given to the evidence by the trial court.”). Therefore, Morris has failed to establish that this testimony from Baird would probably produce acquittal on retrial, and we affirm the postconviction court’s denial of this claim. B. Ineffective Assistance of Counsel During the Guilt Phase Morris next argues that the postconviction court erred in denying his claim that trial counsel was ineffective during the guilt phase of the trial for (1) failing to conduct a reasonable investigation and present evidence that could have meaningfully challenged the State’s case; (2) failing to prevent the jury from seeing inflammatory
evidence, specifically the dashcam footage of officers attempting to revive their colleagues; (3) failing to object to the use of racial slurs at trial; and (4) failing to obtain a working video of a November 10, 2011, jail visit. Because Morris has not established both deficiency and prejudice with regard to any of these claims, we affirm the denial of relief. To succeed in a claim of ineffective assistance of counsel, the defendant must prove two things: “[f]irst, the defendant must show that counsel’s performance was deficient,” and “[s]econd, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). Regarding the performance prong, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and the appropriate standard is “reasonableness under prevailing professional norms.” Id. at 688-89. “A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690. Moreover, counsel’s “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was
the day of the shooting and Morris was pursuing other women. These pieces of evidence, Morris contends, would have cast doubt on the identification of the passenger of the vehicle as himself. Because the decision not to present these pieces of evidence was a reasonable choice by trial counsel, we agree with the postconviction court and affirm the denial of relief. First, Morris has not established that trial counsel was ineffective for failing to present the evidence of worthless checks cashed in his name while he was in prison in 2008. Trial counsel testified that they considered an imposter defense to which the checks would have been valuable, but Morris “did not want this type of issue explored at trial.” Because trial counsel considered this course of action and ultimately deferred to the defendant’s wishes, Morris has not established that counsel was ineffective. See Occhicone , 768 So. 2d at 1048 (affirming the postconviction court’s denial of ineffective counsel claim where trial counsel testified that they considered presenting the evidence in question and decided against it because they felt they had presented enough evidence to the jury through cross-examination and that closing arguments were more important); see also Derrick v. State , 983
So. 2d 443, 460 (Fla. 2008) (“[A] defendant’s wishes can be a valid consideration in deciding on an appropriate trial strategy.”). Morris also has not shown that counsel was deficient or that prejudice resulted from trial counsel’s cross-examination of Ashley Price, specifically by failing to challenge Price by bringing up her pending child dependency proceedings, financial problems, or violation of probation charge. Morris contends that these pieces of evidence show that Price was predisposed to give in to pressure by TPD to falsely testify against Morris. Various details of these circumstances were already presented to the jury including: (1) the existence of a pending dependency case, (2) Price’s financial motive to cooperate with the police, and (3) that Price had been convicted of a felony three times and had an open case. See Gregory v. State , 224 So. 3d 719, 733-34 (Fla. 2017) (holding that trial counsel was not deficient for failing to further impeach the defendant’s fellow inmates where trial counsel had impeached inmates with prior convictions and reduction of prison exposure based on testimony). Any further impeachment of Price would have been largely cumulative and failing to present cumulative evidence is not ineffective assistance of counsel. See Card v. State , 497 So. 2d
