Case No.: 22-6868
`
`October 2022, Term
`
`IN THE SUPREME COURT OF THE UNITED STATES
`
`
`BILLY LEON KEARSE,
`
`Petitioner,
`
`vs.
`
`SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
`
`Respondent.
`
`APPENDIX TO BRIEF IN OPPOSITION
`
`CAPITAL CASE
`
`ASHLEY MOODY
`ATTORNEY GENERAL OF FLORIDA
`
`CAROLYN M. SNURKOWSKI*
`Associate Deputy Attorney General
`Florida Bar No. 158541
`
`OFFICE OF THE ATTORNEY GENERAL
`PL-01, The Capitol
`Tallahassee, FL 32399-1050
`carolyn.snurkowski@myfloridalegal.com
`capapp@myfloridalegal.com
`Telephone (850) 414-3300
`
`COUNSEL FOR RESPONDENT
`
`28
`
`

`

`INDEX TO APPENDIX
`
`State Postconviction Court's August 30, 2005 Order Denying Amended
`A.
`Motion to Vacate Judgments of Conviction and Sentence.
`
`29
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`

`

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`IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
`IN AND FOR ST. LUCIE COUNTY, FLORIDA
`
`STATE OF FLORIDA
`
`Vs.
`BILLY LEON KEARSE,
`
`f
`
`FELONYDIVISION
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`ORDER DENYING AMENDED MOTION TO VACATE
`JUDGMENTS OF CONVICTION AND SENTENCE
`
`THIS CAUSE came before the Court on the Defendant's Motion to Vacate
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`Judgments of Conviction and Sentenceinitially filed on October 3, 2001, and Amended
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`Motion to Vacate Judgments of Conviction and Sentencefiled on March 1, 2004, pursuant
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`to Florida Rules of Criminal Procedure 3.850 and 3.851. The Court finds and determines
`
`hte
`
`ee
`
`as follows:
`
`PROCEDURAL HISTORY
`
`Billy Leon Kearse was convicted of robbery with a firearm andfirst degree murder
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`for shooting Fort Pierce police officer, Danny Parrish. Following the jury’s recommendation,
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`the trial court sentenced Kearse to death for the first degree murder. On appeal, the
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`Supreme Court of Florida affirmed the convictions but vacated the death sentence and
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`remanded for resentencing becauseoferrors that occurred during the penalty phase of the
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`trial. Kearse v. State, 662 So. 2d 677 (Fla. 1995).
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`On remandin 1996, a second penalty phase was conductedin Indian River County
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`because of a venue change during theoriginaltrial. The jury unanimously recommended
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`Page 1 of 38
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`

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`that Kearse be sentenced to death. Thetrial court found two aggravating circumstances,
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`one statutory mitigating circumstance, and some non-statutory mitigating factors.’ The
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`court sentenced Kearseto death after determining that the mitigating circumstances were
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`“neither individually nor collectively, [] substantial or sufficient to outweigh the aggravating
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`circumstances.” The sentence of death was affirmed on appeal. Kearse v. State, 770 So.
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`2d 1119, 1123 (Fla. 2000). Kearse petitioned the United States Supreme Court for
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`certiorari. Thepetition was denied on March 26, 2001.
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`On October3, 2001, Kearsefiled an unverified, unsworn postconviction motion that
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`wasdismissed without prejudice on November 26, 2001. Kearse filed a motion seeking
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`reinstatement of his postconviction motion. The trial court dismissed the request but
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`granted Kearse 60 days to comply with the oath requirement.
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`Instead of complying with
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`the oath requirement, Kearsefiled an appeal. During the pendencyof the appeal Kearse
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`filed another Rule 3.850 motion that was dismissed without prejudice pending resolution
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`of the appeal. The appeal wasvoluntarily dismissed on June 13, 2002.
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`Kearserefiled his postconviction motion on June 21, 2002, collaterally attacking the
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`1991 guilt phase and the 1996 penalty phase.
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`Nine public records hearings were
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`conducted through December2003.’ Kearsefiled his amended postconviction motion on
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`*‘Aggravating circumstances - (1) the murder was committed during a robbery (Officer
`Parrish’s firearm); and (2) the murder was committed to avoid arrest and hinder law enforcement
`and the victim was a law enforcementofficer engagedin the performanceofofficial duties (merged
`into one factor). Statutory mitigating circumstance - Kearse's age. Non-statutory mitigating factors
`- Kearse exhibited acceptable behaviorat trial, Kearse had a difficult childhood and this resulted
`in psychological and emotional problems, and Kearse entered the adult penal system at a very
`early age. Kearse, 770 So. 2d at 1123.
`
`? Public records hearings were conducted on January 30, 2002; April 1, 2002; January 3,
`2003; February 18, 2003; June 9, 2003; July 18, 2003; September 13, 2003; November12, 2003;
`and December 12, 2003.
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`Page 2 of 38
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`March 1, 2004. Several status hearings were conducted in 2004, followed by a case
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`management conference on August 18, 2004. An evidentiary hearing was granted on:
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`Claim H(A ) (1) 9] 4-6; Claim II(A) (3) 8; Claim li(A) (7) Ff] 12-13; Claim II(A) (8) ¥ 14;
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`Claim II(A) (9) §f 15; Claim II(A) (11) I] 17-22; Claim II(A) (12) If] 23-24, Claim II(A) (13)
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`q 25; Claim II(C) (2) 931; Claim I(D); Claim II; and Claim IV.
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`°
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`On December 14, 2004, prior to scheduling the evidentiary hearing, the case was
`reassigned to Judge Dan L. Vaughn dueto the retirement of Judge Marc A. Cianca. On
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`March 1, 2005, the case was reassigned back to Judge Marc A. Cianca when he qualified
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`to serve as a seniorjudge.
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`The evidentiary hearing was conducted overfive days on April 18, 19, 20, & 21,
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`2005; and on May 25, 2005, to accommodate an expert witness.
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`At the evidentiary hearing, both parties presented witnesses. Kearse called
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`defense counsel, Robert Udell; neuropsychologist, Dr. Barry Crown; psychologist, Dr. Alan
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`Friedman; neuropharmacologist, Dr. Jonathan Lipman; attorney, Robert Norgard;
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`psychiatrist, Richard Dudley; CCRC investigators, Stacy Brown and Nicholas Atkinson;
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`uncle, John Kearse; childhood friend, Demetrious Soloman; cousin, Fabian Butler; citizen
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`complaint witnesses, Tracey Davis, Charles Pullen, and Eric Jones; defenseinvestigator,
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`Anne Evans; and neurologist, Dr. Thomas Hyde.
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`The State called forensic
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`neuropsychologist, Dr. Daniel Martell. On August 8, 2005, the parties submitted written
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`post-hearing memoranda.
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`3 The Defendant did not numberthe sub-claims in his motion. The Court adopted sub-claim
`and issue numbers for reference purposesat the conclusion of the case management conference.
`The J numbers refer to paragraphs in the Defendant's Amended Motion.
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`Page 3 of 38
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`FACTS OF THE CASE
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`The Florida Supreme Court found the following facts:
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`After [police officer Danny] Parrish observed Kearse driving in the wrong
`direction on a one-way street, he called in the vehicle license number and
`stopped the vehicle. Kearse was unable to produce a driver's license, and
`instead gave Parrish several alias names that did not match anydriver's
`license history. Parrish then ordered Kearse to exit the car and put his
`hands on top of the car. While Parrish was attempting to handcuff Kearse,
`ascuffle ensued, Kearse grabbed Parrish's weapon andfired fourteen shots.
`Thirteen of the shots struck Parrish, nine in his body and four in his
`bullet-proof vest. A taxi driverinthe vicinity heard the shots, saw a dark blue
`vehicle occupied by a black male and female drive away from the scene, and
`called for assistance on the police officer's radio. Emergency personnel
`transported Parrish to the hospital where he died from the gunshotinjuries.
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`The police issued a be-on-the-lookout (BOLO)for a black male driving a dark
`blue 1979 Monte Carlo. By checking the license plate that Officer Parrish
`had called in, the police determined that the car was registered to an address
`in Fort Pierce. Kearse wasarrested at that address. After being informed
`of his rights and waiving them, Kearse confessed that he shot Parrish during
`a struggle that ensuedafter thetraffic stop.
`
`Kearse v. State, 662 So.2d 677, 680 (Fla. 1995).
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`POSTCONVICTION MOTION
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`In his motion, the Defendant raises nine claims for relief, five claims involve
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`ineffective assistance of counsel. A defendant alleging ineffective assistance of counsel
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`must satisfy the two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984).
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`First, the defendant must demonstratethat his attorney's performance wasso deficient that
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`his attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment of
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`the United States Constitution.
`
`/d., at 687. Second, the defendant must establish that
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`there is a reasonable probability but for counsel’s deficient performance the outcome of
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`the proceedings would have beendifferent. A “reasonable probability” has been defined
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`as a probability sufficient to undermine confidencein the outcomeof the proceedings./d.,
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`Page 4 of 38
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`at 694.
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`In the context of ineffectiveness during the penalty phaseofa trial, the defendant
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`must establish that there is a reasonable probability that but for counsel’s errors the
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`defendant would have probably received a life sentence. Hildwin v. Dugger, 654 So. 2d
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`107, 109 (Fla. 1995).
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`Findings of Fact - Counsel and Mental Health Experts
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`Robert G. Udell, Esq., represented Kearse during the guilt phase andfirst penalty
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`phase in 1991, and during the second penalty phase in 1996. At the time of the guilt
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`phase, Udell had been doing capital postconviction and defense workin Florida for about
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`ten years. Prior to 1991, Udell had represented four or five defendants facing the death
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`penalty. Udell has attended the Life Over Death seminar annually since the seminar has
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`been required for appointment to capital cases. Udell is the most experienced capital
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`defense lawyerin the 19" Judicial Circuit.
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`In addition, Udell has represented more than
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`80 homicide defendants.
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`The trial court denied Udell’s motion for co-counsel during the guilt phase and initial
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`penalty phase. Udell did not have co-counsel during the second penalty phase. Udell
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`used two investigators for trial preparation and support, Jeff Chandler and Anne Evans.
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`Udell retained psychologist, Dr. Fred Petrilla, to prepare mental health mitigation in
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`both penalty phases.
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`In addition, neuropharmocologist, Dr. Jonathan Lipman, washired
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`to assist defense counselin the second penalty phase. During his evaluation, Dr. Lipman
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`consulted with clinical psychologist, Dr. Alan Friedman; neuropsychologist, Dr. Lawrence
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`Levine; and neurosurgeon, Dr. Bennett Blumenkoff .
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`Page 5of 38
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`Shetans
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`

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`CLAIM |
`
`THE DEFENDANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND EQUAL
`PROTECTION BECAUSE PUBLIC RECORDSHAVE BEEN WITHHELD BY AN AGENCYIN
`VIOLATION OF CHAPTER 119, FLORIDA STATUTES.
`
`Kearse claims that the Fort Pierce Police Department
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`failed to turn over public
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`records related to witness information for Jesse Morales, and a crime scene videotape
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`recorded from the perspective of two witnesses’ apartments. The Court finds this claim
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`legally insufficient. Examination of the record reveals that these records were listed in
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`paragraphs9 and 11 of Kearse’s Notice of Outstanding Public Recordsfiled on June 17,
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`2003. Subsequent to the notice, the Court conducted four additional public records
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`hearings. Public records held by the Fort Pierce Police Department were the subject of the
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`last two hearings.
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`In the November 13, 2003, hearing, the police department represented
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`that the videotape was not missing, but that the tape had not beenlisted on the evidence
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`sheet or entered into evidence, thus there was no videotape to produce. (See November
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`13, 2003, public records hearing transcript, starting on page 8.) Collateral counsel did not
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`inquire into, or object to this testimony.
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`In addition, during both the November 13, and
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`December 12, 2003, hearings collateral counsel advised the Court that all of the public
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`records requested, with the exception of one personnelfile, had been accounted for or
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`received. An order was entered on December12, 2003, reflecting collateral counsel's
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`representation of the status of the public records requested. Collateral counseldid notfile
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`anothernotice of outstanding public records and did not move to compel the production
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`of any public records. Thus, Kearse fails to demonstrate that the Fort Pierce Police
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`Department withheld public records in violation of Chapter 119, Florida Statutes.
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`Page 6 of 38
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`CLAIM Il
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`No ADVERSARIAL TESTING OCCURRED DUE TO THE CUMULATIVE EFFECTS OF
`INEFFECTIVE ASSISTANCE OF COUNSEL, THE WITHHOLDING OF EXCULPATORY OR
`IMPEACHMENTMATERIAL, NEWLY DISCOVERED EVIDENCE, AND IMPROPERRULINGS
`OF THE TRIAL COURT.
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`The Defendant's second claim involves four sub-claims. Thefirst sub-claim raises
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`thirteen issues of ineffective assistance of counsel.
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`Claim Il (A): Ineffective Assistance of Counsel:
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`Finding of Fact - Theory of the case
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`The theory of the defense’s case wasthat Kearsekilled Officer Parrish during 15
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`secondsof rage and that the murder was not premeditated. Kearse confessed that he shot
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`Parrish during a struggle that ensuedafter a traffic stop. There was notrue claim ofself-
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`defense where Kearse’s confessions and Rhonda Pendlieton's eye witness testimony
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`provided no evidencethat Parrish was the aggressor and no evidencethat Parrish abused
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`Kearse during thetraffic stop.
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`Claim II (A) (1) {J 4-6 - Counselfailed to vigorously advocate his client’s
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`Kearse claims that counsel was ineffective for failing to vigorously advocate his
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`client’s position. Kearse contends that Udeli’s commentsto the press before the 1991 trial
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`and subsequent apology,Udell’s statement at deposition, and Udell’s repeated qualification
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`of motions demonstrated that Udell “had given up all hopefor his client.”
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`In 1991, Udell commented to the pressthat he fully anticipated Kearse to be found
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`guilty of first degree murder.
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`({ROA 207).* Udell’s remarks were printed in the Stuart
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`‘Citations to the record will be referenced as follows: 1991 record on appeal 1ROA, 1996
`record on appeal 2ROA,supplements to the record 1S or 2S, and postconviction record PCR.
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`Page 7 of 38
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`Newsin the Martin and St. Lucie county editions. The case wasbeingtried in Indian River
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`County and it was determined that the comments were not carried in the Indian River
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`paper. (1ROA 208-16). Udell recognized that the comments could be seen as “throw(ing]
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`in the towel” and apologized to the Court, the State, Kearse, and Kearse’s mother. Further,
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`Udell discussed the matter fully with Kearse and inquired, along with this Court, as to
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`whether Kearse wished Udell to continue representing him. Kearse asserted he had
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`confidence in Udell and wanted him to remain as counsel. Udell advised the Court of his
`level of preparation in support of his advocacy of Kearse. Udell subsequently represented
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`Kearse at the 1991 guilt and penalty phases, and at the second penalty phase in 1996.
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`(1ROA 207-16; PCR 289-90; State’s PCR Ex. 5)
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`At the evidentiary hearing Udell acknowledged that the commentsto the press were
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`not the “smartest thing” he had ever done. Nonetheless, the record shows that Udell
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`fought for Kearse throughout all phases of this case.
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`(PCR 289-90). The record
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`establishes Udell had mental health experts and investigators appointed. He sought
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`suppression of physical evidence, Kearse’s statements, and prior convictions. Further, he
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`movedto have the death penalty statute declared unconstitutional and to preclude use of
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`certain aggravation. (1ROA 68-177, 2207-14, 2216-24, 2225-47, 2451-52, 2455, 2457-58,
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`2462-63, 2474, 2497-98, 2523-25, 2538-41, 2542-45, 2546-49, 2555-57, 2560-61, 2565-
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`66, 2573-81, 2611-35, 2616, 2623, 2631, 2633-35, 2637). The suppression and death
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`penalty motions were resolved against Kearse. Udell cross-examined witnesses, argued
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`against the felony murdertheory, as well as premeditation, and asserted there had been
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`no robbery. (1ROA 1648-50, 1708-09, 1777-83, 1785-1812, 1829-39).
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`Thus, the Court finds no prejudice to the outcomeof the proceeding due to Udell’s
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`Page 8 of 38
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`commentsto the pressin light of Udell’s advocacy and the evidence developedattrial that
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`Kearsekilled an officer, who was performinghis lawful duties at a traffic stop, during the
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`course of which Kearse grabbed the officer's gun and shot him 14 times. This was
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`confirmed by physical evidence, eye-witness testimony, and Kearse’s confession. See
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`Kearse v. State, 662 So.2d 677, 680 (Fla. 1995). (1ROA 1028-29, 1093 1128, 1135, 1138,
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`1140, 1153-54, 1186-87, 1190-91, 1196-97, 1204-05, 1219-21, 1224-31, 1248, 1251-59,
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`1285-87, 1294-1304, 1310-17, 1387-95, 1400-02, 1426-36, 1452-53, , 1457-70, 1485-99,
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`1537-60, 1600-04, 1617, 1627-29; S1ROA for confessions).
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`In Dwayne Rahming’s pre-trial deposition, Udell was overheard commenting that
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`Kearse’s case was“just a bad case” and “you can't change bad cases.” At the evidentiary
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`hearing, Udell expiained that this was a “bad case” because you had a black defendant,
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`recently released from prison, charged withkilling a police officer after taking the victim's
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`gun and emptying 14 bullets into him. Coupled with Kearse’s confessions and Rhonda
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`Pendleton’s eye-witness corroboration, these facts made a “bad case”for the defense.
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`(PCR 291-92). The Court finds Udell’s explanation credible and in light of Udell's
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`representation of Kearse throughoutall phases of this case and the evidence presented
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`at trial, supra, the Court finds no prejudice to the outcomeof the proceeding due to Udell’s
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`comments during the deposition.
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`In addition, Kearse claims that Udell repeatedly qualified his motions indicating that
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`the arguments were not the most compelling. Kearse claims the Motion in Limine, Motion
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`for Continuance, Motion for Mistrial, and Motion for Judgment of Acquittal were not
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`vigorously argued.
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`(1 ROA 1119-20, 1350-58, 1650, 1743; 2 ROA 137, 141). The Court
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`has reviewed the context of Udell’s arguments on the motions and finds Udell’s arguments
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`Page 9 of 38
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`to be candid representationsto the trial court made outside of the presenceofthe jury, not
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`fatalistic comments concerning the outcome of the case. Thus, the Court finds no deficient
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`performance of counsel in Udell's representation on the motions and no prejudice to the
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`outcome of the proceedingin light of the overwhelming evidencepresentedattrial, supra.
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`Claim II (A) (2) {| 7 - Counsel failed to cross-examine Rhonda Pendleton and
`John Boler during the second penalty phase on guilt phase testimony that
`wasinconsistent with prior sworn statements and depositions.
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`Kearse claims that counsel was ineffective for failing to cross-examine eye
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`witnesses during the second penalty phase on guilt phase testimony that wasinconsistent
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`with prior sworn statements and depositions. Kearse contends that becausethe testimony
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`of Rhonda Pendleton and John Boler was read into the record, Udell could not challenge
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`these witnesses on their testimony concerning how Kearse was holding the gun and
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`Kearse’s position relative to Parrish at the time of the shooting. Kearse aversthat the jury
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`was misled by the reading of the testimony. However, Kearse does not explain what the
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`inconsistencies in the testimonyare, how the inconsistenciesin the testimony are material
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`to the outcome of the proceedings, or how the jury was misled by the reading of the
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`testimony. And, Kearse doesnot claim that the testimony was inadmissible.
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`Further,
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`the record is clear that Udell challenged the unavailability of these
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`witnesses, moved for a continuance to obtain Pendleton’s appearance, and objected to the
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`reading of the testimony. All of Udell’s challenges were denied.
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`(2ROA 1352-61, 1624-
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`26). Later, Udell found Pendleton and questioned her at length. (2ROA 1930-71). Thus,
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`the Court finds this claim legally insufficient where there is no showing that counsel was
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`deficient or that the proceedings were prejudiced.
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`Page 10 of 38
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`Claim II (A) (3) 7 8 - Counselfailed to cross-examine Derrick Dickerson and
`Rhonda Pendleton at the motion to suppress hearing.
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`Kearse claims that counsel was ineffective for failing to cross-examine Derrick
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`Dickerson and Rhonda Pendleton at the motion to suppress hearing. Kearse contends
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`that he lived with Derrick Dickerson, had a relationship with Rhonda Pendleton, and that
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`the police coerced Dickerson and Pendleton to consent to a search of the residence where
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`Kearse was arrested. Kearse avers that he hada reasonable expectationofprivacy at the
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`Dickerson home and therefore the evidence should have been suppressed.
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`The recordis clear that police arrested Kearse at the Dickerson residence without
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`a warrant. However, the trial court found probable cause for the arrest due to exigent
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`circumstances. Therefore the physical evidence and Kearse’s confession remain
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`admissible. Kearse, 662 So. 2d at 684. Further, the record shows that Kearse admitted
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`that he did notlive at the Dickerson residence (1718 AvenueK)at the time ofthe arrest,
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`Kearse wasliving at his mother’s home (1611 North 19" Street), and Kearse did not have
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`
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`a romantic relationship with Pendleton. (1 ROA-T 104, 1484; 2ROA - T 1833-34; PCR
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`295-96). Thus, Kearsefails to demonstrate deficient performance and prejudice.
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`Claim Il (A) (4) 9 9 - Counselfailed to cross-examine Rhonda Pendleton
`concerning herrelationship with Kearse.
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`Kearse claims that counsel was ineffective for failing to cross-examine Rhonda
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`Pendleton concerning her relationship with Kearse. Kearse contends that Pendleton
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`testified that she was not Kearse’s girlfriend. Kearse avers that this testimony was of
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`questionable veracity but fails to allege any facts in support of this claim andfails to
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`demonstrate how this testimony could have been used for impeachment purposes.
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`Page 11 of 38
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`Further, this claim is in contradiction of Kearse’s statement to Udell that Kearse and
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`Pendleton were not dating.
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`(2ROA - T 1484, PCR 295-96.) Thus, the Court finds this
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`claim merely conclusory and legally insufficient. Kennedy v. State, 547 So. 2d 912, 913
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`(Fla. 1989).
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`Claim Il (A) (5) | 10- Counselfailed to challenge the veracity of State witness,
`Bruce Heinnsen.
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`Kearse claims that counsel wasineffective for failing to challenge the veracity of
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`State witness, Bruce Heinnsen. Kearse contends thatin his deposition Heinnsen indicated
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`that he had criminal convictions for theft and possessionof firearms, yet Heinnsen had also
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`served on a jury. Kearse does not allege any facts to show that Heinnsen wasuntruthful
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`at deposition or to demonstrate how challenging Heinnsen’'s testimony at deposition would
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`have changed the outcomeof the proceeding. Thus, the Court finds this claim merely
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`conclusory andlegally insufficient. Kennedy, 547 So. 2d at 913.
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`Claim Il (A) (6) J 11 - Counsel failed to consult with experts to rebut the
`testimonyof State experts in the areas of crime scene investigation, firearms,
`and medical examination.
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`Kearse claims that counsel wasineffective forfailing to consult with experts to rebut
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`the testimony of State experts in the areas of crime scene investigation, firearms, and
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`medical examination. However, Kearsefails to allege any facts to show what the defense
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`experts would have found or to demonstrate how the outcomeof the proceedings was
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`prejudiced by failure to consult with the experts. Thus, the Court finds this claim merely
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`conclusory andlegally insufficient. Kennedy, 547 So. 2d at 913.
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`Page 12 of 38
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`

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`Ciaim Il (A) (7) J] 12-13 - Counsel failed to request co-counsel prior to the
`second penalty phase resulting in inadequate preparation of witnesses.
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`Kearse claims that Udell failed to request co-counsel prior to the second penalty
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`phase resulting in inadequate preparation of witnesses. The Court relies onits analysis
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`in Claims il
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`(A)(8),
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`II], and IV,
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`infra, and finds no prejudice to the outcome of the
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`proceeding.
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`Claim II (A) (8) {| 14 - Counsel failed to adequately prepare Kearse and Pamela
`Baker to testify at the second penalty phase resulting in otherwise
`inadmissible testimony concerning Kearse’sincarceration on death row and
`Kearse’s juvenile infractions.
`
`Kearse claims that counsel wasineffectivefor failing to adequately prepare Kearse
`
`and Pamela Bakerto testify at the second penalty phase. As a result of counsel's
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`deficiencies, Kearse contends that he improperly disclosed that he alreadylived on death
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`row and that Bakertestified at length concerning Kearse’s juvenile infractions, facts that
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`were otherwise inadmissible.
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`Asto Kearse’sdisclosure that he already lived on death row,the recordis clear that
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`Kearse’s answer was unresponsive to Udell’s question about where Kearse had been
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`incarcerated prior to his 1991 arrestforkilling Officer Parrish. (2ROA-T 1833-34.) Thus,
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`Udell was not expecting Kearse to answer as he did. (PCR 296-97). Therefore, Kearse
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`has failed to demonstrate that Udell was deficient in preparing Kearseto testify.
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`With respect to Baker's testimony about Kearse’s juvenile infractions, at the
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`evidentiary hearing Udell explained that the evidence would comein eventually as a result
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`of the State’s right to cross-examine on mental mitigation testimony. So, finding Bakerto
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`be a good witnessin the past and Kearse’s biggest advocate, Udell prepared her with her
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`Page 13 of 38
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`Te
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`prior testimony, and permitted Bakerto testify in narrative form to underlying facts including
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`the juvenile infractions. ° Udell determined thatit would be better to bring the evidencein
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`on direct examination through a witness favorable to Kearse who could support the
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`testimony of other mental health experts. (PCR 296-99). Thus, the Court finds that Udell
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`considered alternatives and made a reasonable strategic decision in the presentation of
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`Baker's testimony.
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`Claim Il (A) (9) J 15 - Counselfailed to object to the prosecutor improperly and
`incorrectly introducing evidence that the Defendant’s MRI was normal.
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`Kearse claims that counsel was ineffective for failing to object to the prosecutor
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`improperly and incorrectly introducing evidence that Kearse’s MRI was normal. Kearse
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`contends that Udell did not clarify the meaning of the MRI results. The Court finds no
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`deficient performance or prejudice where penalty phase expert, Dr. Lipman, and
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`postconviction expert, Dr. Dudley, both characterized the MRI results as “normal” with
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`qualifications. And where Dr. Petrilla and Dr. Lipman testified to the meaning of the
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`“normal” MRI results during the second penalty phase. (2ROA 22, 25, 2237-38, 2254-57,
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`PCR 281-82, 574-77). Further, the Court relies on its analysis in ClaimsIll and IV,infra,
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`in finding no ineffective assistance of counsel and noineffective assistance of mental
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`health experts.
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`Claim II (A) (10) | 16 - Counselfailed to adequately address and argue the
`statutory mitigating factor of Kearse’s age at the time of the offense.
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`Kearse claims that counsel was ineffective for failing to adequately address and
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`argue the statutory mitigating factor of Kearse’s age at the time of the offense. Kearse
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`5 Baker's testimony is summarized in ClaimsIII and IV, infra.
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`Page 14 of 38
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`admits that his biological age was 18 years and 3 monthsat the time of the murderbut
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`contends that Kearse wasfunctioning at a substantially lower age due to his cognitive and
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`emotional impairments. © Kearse avers that although the issue of age was raised and
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`decided on direct appeal to the Supreme Court of Florida, Kearse seeks to preserve the
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`issue becausethe constitutionality of executing juvenile offenders was underreview by the
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`United States Supreme Court in Roper v. Simmons, 125 S. Ct. 1183 (2005), at the time
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`that Kearse’s amended motion wasfiled.
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`Kearse’s claim must be denied for two reasons. First, Kearse has merely recast the
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`issue of age mitigation which was raised and decided on direct appeal as a claim of
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`ineffective assistance of counselin orderto relitigate the claim. This is impermissible in
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`a collateral proceeding. Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995).
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`In addition,
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`Kearse hasfailed to show prejudice where he was not under18 years of age at the time
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`of the offense. Roper v. Simmons, 125 S. Ct. 1183 (2005). Therefore, Kearse’s claim is
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`both procedurally barred and legally insufficient.
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`Claim Il (A) (11) 99] 17-22 - Counselfailed to present evidenceat thequiltphase
`and second penalty phase of Officer Parrish’s prior misconduct and
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`difficulties in dealing with the public.
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`Kearse claims that counsel was ineffective during the guilt phase and the second
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`penalty phase forfailing to present evidence of Officer Parrish’s prior misconduct and
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`difficulties in dealing with the public. Kearse contendsthat Parrish hada history of dealing
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`with the public in a threatening and erratic mannerthat could have provoked Kearse during
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`® Significant testimony was presented at the second penalty phase to demonstrate that
`Kearse was functioning at a level below his chronological age. See summary of testimony in
`Claims II and IV,infra.
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`Page 15 of 38
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`the traffic stop. Kearse avers that had counsel adequately investigated all of the
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`complaints against Parrish and obtained the documentation of Parrish’s deficient
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`performance, counsel could have undermined the State's theory that Parrish waskilled
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`without provocation duringthetraffic stop. However, Kearse doesnotallege any actual
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`provocation by Parrish during the traffic stop. And at the evidentiary hearing, Kearse
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`presented no evidence of actual provocation by Parrish during the traffic stop.
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`It is uncontested that during discovery Udell obtained copies ofcitizen complaints
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`filed against Parrish and that Udell did not obtain copies of Parrish’s personnelfile or
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`internal affairs file. (PCR 42-44, 48, 50.)
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`It is clear from the evidence presented at the
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`evidentiary hearing that Udell decided not
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`to pursue the strategy of vilifying the
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`officer/victim after
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`reviewing citizen complaints,
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`information obtained by defense
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`investigators on the citizens complaints, and interviews with someofthecitizensthatfiled
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`the complaints. Udell compared the strength of citizen complaint evidence against
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`Kearse’s confessions and Rhonda Pendleton’s eye witness testimony describing Parrish’s
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`conduct duringthe traffic stop where Pendleton testified that Parrish waspolite and did not
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`abuse Kearse, and where both Kearse and Pendleton reported that Parrish was going to
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`let Kearse leave on his own recognizanceif Kearse would give Parrish his correct name.
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`(1ROA 1458-70; 2ROA- T1641, 1660-63, 1847; PCR 42-57.)
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`Asto the citizen complaints, Udell acknowledged that the complaints revealed that
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`Parrish had been aggressivein the pastin dealing with citizens with someracial overtones.
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`However, Udell testified that he madea strategic decision not to use the complaintstovilify
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`Parrish because some complainants were unwilling to testify and the circumstancesof the
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`complaints were insufficient to overcome juror sympathy for the officer/victim. Udell
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`Page 16 of 38
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`reasonedthatthe jury waslikely to look at the complaints as part of an officer doinghis job,
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`recognizing that not everyoneis goingto like a police officer. Udell believed that this type
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`of evidence would backfire especially in Indian River County, a venue based on Udell’s
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`experience wherethe jury would be more sympathetic to the deceasedofficer. (PCR 52-
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`54, 56-57, 299-305.)
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`The Court finds Udell’s assessment of this complaint evidence credible and
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`reasonable where complaint witnesses, Tracey Davis and Eric Jones, testified at the
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`evidentiary hearing to complaints of Parrish’s misconduct during traffic stops, where the
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`complaints were investigated by the Fort Pierce Police Department, where the complaints
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`were determined to be unfounded, and where Davis and Jones ultimately paid traffic
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`citations issued by Parrish without contest. (PCR 375-399, & 880-926.) Further, the Court
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`finds Udell’s concern about the lack of credibility of complainant, Benjamin Lewis,
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`supportedby the facts that Lewis was detained by Parrish due to suspicious circumstances
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`and by Lewis’ confession that he had been arrested for murder, aggravated assault on a
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`police officer, and convicted of carrying a concealed firearm. And, the Court finds Udell’s
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`assessment that the Martin’s complaint was weak supported by the fact that the wife
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`admitted that her husband mayhaveprovoked anincident involving Parrish at the K-Mart,
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`and where Captain Price had investigated and exonerated Parrish.
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`(PCR 313-315.)
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`Therefore,in light of Udell’s consideration of alternatives, and absent stronger evidence
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`of Parrish's prior misconduct and absentevidence that Parrish abused Kearse during the
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`traffic stop in this case, the Court finds trial counsel's strategy not to pursue the victim
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`vilification defense reasonable. State v. Bolender, 503 So. 2d 1247, 1250 (Fla. 1987.)
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`During the evidentiary hearing, Kearse sought to admit evidenceof Parrish’s alleged
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`Page 17 of 38
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`racial bias in dealing with minority citizens. The Court permitted Kearse to proffer the
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`testimony of CCRC inve