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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:06-cv-20182-PAS.
For ALBERT HOLLAND, JR., Petitioner - Appellant-Cross Appellee: Todd Gerald Scher, Law Office of Todd G. Scher, PL, DANIA BEACH, FL.
For STATE OF FLORIDA, Respondent - Appellee-Cross Appellant: Lisa-Marie Lerner, Leslie Teresa Campbell, Attorney General's Office, WEST PALM BEACH, FL.
Before ED CARNES, Chief Judge, and MARCUS and WILLIAM PRYOR, Circuit Judges.
MARCUS, Circuit Judge
A Florida court convicted Albert Holland of murder and sentenced him to death for the fatal shooting of police officer Scott Winters. The district court issued a writ of habeas corpus on the ground that Holland's right to represent himself was violated. To obtain a writ under 28 U.S.C. § 2254(d)(1) (2012), Holland must show that the Florida Supreme Court's denial of his claim was contrary to or an unreasonable application of clearly established Supreme Court law. He does not. Consistent with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Florida Supreme Court reasonably determined that, because of his serious mental disabilities, Holland did not knowingly and voluntarily waive his right to counsel. Accordingly, we reverse the district court's grant of habeas relief.
Holland appeals three other claims the district court rejected. We too find they lack merit. Holland argues that the Florida Supreme Court unreasonably applied harmless error analysis to the admission of both an inaudible videotape and a mental health expert's opinion about whether a firearm had been hidden. We conclude that both errors were harmless because they did not have a " substantial and injurious effect or influence" on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quotation omitted). As the record amply reveals, the interrogating officer testified to the contents of the videotape and an investigating officer made similar comments about the gun's location. Holland also claims that he received ineffective assistance because his trial counsel failed to object to a number of improper statements made by the prosecution during closing arguments. The district court found federal relief was procedurally barred because Holland did not exhaust this claim in state court. While we conclude that exhaustion does not bar Holland's claim, we affirm because the Florida Supreme Court's determinations that counsel performed adequately and that Holland suffered no prejudice were reasonable. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finally, Holland says that his custodial confession should have been suppressed because he talked to police after he asked for a lawyer. In denying relief because Holland initiated the conversation with the detective, the Florida Supreme Court did not unreasonably apply Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Accordingly, we remand to the district court with instructions to reinstate Holland's conviction and sentence.
The facts relevant for this appeal begin with the observation that Holland suffered a serious brain injury in October 1979, when another inmate in a federal prison knocked him unconscious. The beating left Holland with a slowly resolving concussion, facial fractures, and three weeks of post-traumatic amnesia. In the early 1980s, Holland was arrested and charged with robbery in Washington, D.C. Holland's attorney described him as " clearly a homeless individual, and disheveled, and incoherent, and not able to interact with me in any way, shape, or meaningful form, at all." " In the early meetings, . . . he would have nothing to say, but would rock in a chair with his hands folded. I remember, distinctly, that he would drool." The United States prosecutor agreed with defense counsel that Holland was not legally culpable because he had been insane. The court found Holland was not guilty of the
robbery by reason of insanity, based on testimony from a doctor that Holland suffered from a mental defect or disease that interfered totally with his ability to appreciate the wrongfulness of his conduct or conform his behavior to the requirements of law. He was placed in Saint Elizabeth's Hospital, and he saw at least six doctors during his time there. At Saint Elizabeth's, doctors first diagnosed him with " schizophrenia, undifferentiated type, and Organic Amnestic Syndrome," which indicates a significant memory impairment. A second evaluation discontinued the Organic Amnestic Syndrome diagnosis but did not alter the schizophrenia diagnosis. Still, some of Holland's doctors suggested that he suffered less from schizophrenia and more from " organic psychosis" tied to his brain injury. At Saint Elizabeth's, Holland was treated with Thorazine, an antipsychotic, and Cogentin to deal with side effects. Holland escaped from Saint Elizabeth's, and thereafter was charged with a new robbery. With the agreement of an attorney for the United States, a different judge found Holland not guilty by reason of insanity a second time and again sent him to Saint Elizabeth's. He absconded from the hospital yet again in May 1986.
Four years later, after smoking a rock of crack cocaine, Holland attacked and brutally beat Thelma Johnson in Pompano Beach, Florida, on July 29, 1990. Holland ran off when a witness intervened, leaving the victim semi-conscious and with severe head injuries. Police searched for the assailant and K-9 patrol officer Scott Winters of the Pompano Beach Police Department found Holland. Witnesses saw the two struggling. Holland grabbed Winters's gun and fatally shot him in the groin and lower stomach. See Holland v. State (Holland II), 773 So.2d 1065, 1068 (Fla. 2000) (per curiam).
Holland was first tried, convicted, and sentenced to death in 1991. During that trial, Holland's disruptive behavior led to his removal from the courtroom. On direct appeal, the Florida Supreme Court reversed his conviction because admission of testimony about a psychiatric examination of Holland violated his right to counsel and his right against self-incrimination. See Holland v. State (Holland I), 636 So.2d 1289 (1994) (per curiam).
On remand, the trial court appointed Kenneth Delegal to represent Holland in the second trial. After about a year, this representation terminated when Delegal was confined to a mental health facility. Delegal eventually was arrested on drug and domestic violence charges and died of a drug overdose during Holland's retrial. The trial court then appointed James Lewis, who shared office space with Delegal, to assume representation of Holland because Lewis had some familiarity with the case. Evan Baron, appointed alongside Delegal to serve as penalty phase counsel, continued to represent Holland as well.
Before the second trial began, at a September 15, 1995, hearing, Lewis told the court Holland had refused to see or speak to him. Holland expressed severe suspicion of Lewis, his lawyer: " it's like he's sneaking around like a little mouse." Holland in turn informed the court that he believed Lewis and jail authorities had taped a visit between Holland and his father through a sprinkler head. Indeed, Holland thought Lewis was using his father to convince him to keep Lewis as his attorney. Holland did not believe that his father's trip was cut short by an approaching hurricane, and " if [Lewis] will lie about something, little petty like that, he's going to do some other things on the bigger issue." Holland told the court that, when he tried to call his father, " the lady
wouldn'tt let me call . . . because everybody works together."
Holland's paranoid suspicions went deeper. Holland also told the trial court, " They're trying to get something on me. . . . Seems like I'm always being taped." " I got microphones in my cell, too. But if I'm going to try to find them, I got to tear the light off the wall." Holland worried about surveillance because " I talk to invisible people . . . [b]ut it may be dealing with my case." When assured by the court that he was not being taped in his cell or during visits with his father or attorney, Holland responded, " betrayal will lurk." He continued, " everybody at the bar where all the lawyers drink at know about my case. Everybody knows everything. My strategy, anything that's going to be going on."
Also before the second trial began, Holland's counsel, Lewis, filed a motion alleging Holland was incompetent to stand trial. At a hearing conducted on October 9, 1995, Lewis explained that Holland had indicated he was having suicidal tendencies and had asked to see a psychiatrist or " possibly be prescribed some type of psychotropic medication." The trial court authorized three mental health experts to examine Holland for competence to stand trial and directed that a psychiatrist evaluate Holland to determine whether he needed psychotropic medication.
On December 14, 1995, the trial court followed up with a hearing to determine Holland's competency to stand trial. Two mental health experts who interviewed Holland testified that he was competent, while a third said he met the criteria for competency but believed the ultimate conclusion was for the finder of fact. One psychologist specializing in clinical neuropsychology, Dr. Lee Bukstel, told the trial court about Holland's treatment for schizophrenia at Saint Elizabeth's Hospital. Bukstel also said that a jail psychiatrist had recently diagnosed Holland with an unspecified psychotic disorder and anti-social personality disorder. That psychiatrist prescribed Haldol, an anti-psychotic, though Bukstel said Holland had refused to take it. Another mental health expert testified at the competency hearing that Haldol calms patients with emotional problems, but that people often act out when they stop taking medication. According to Bukstel, Holland appeared psychologically stable, though he noted that Holland's statements to the court about secret tape-recording showed unrealistic suspicions and paranoia. Bukstel explained that Holland complained of " pain and tension" in his head and " burning in [his] mind." Holland reported depression, anxiety, nervousness, crying, agitation, decreased initiative, social avoidance of people, and increased dependency on others, as well as difficulties with concentration, decisionmaking, and memory. Bukstel concluded that Holland's symptoms were consistent with one or more mental disorders. Still, Bukstel joined the other mental health experts in opining that Holland's mental problems did not prevent him from meeting Florida's statutory criteria for competence to stand trial: Holland's psychological disorders did not keep him from understanding the legal proceedings and possible penalties, from communicating with his attorney, from testifying relevantly, or from manifesting appropriate courtroom behavior.
After hearing testimony from the mental health experts, the trial court found Holland competent to stand trial based on the statutory standards. Still, the trial court noted that it had " heard Mr. Holland raise some concerns that gave the Court some question as to his mental status." The court also observed that Holland's behavior during his first trial led to his removal,
though Holland had not acted out so far during retrial proceedings.
At another pretrial hearing (on March 22, 1996) Holland again complained at length about his attorneys and asked to " go through this procedure of self-representation." The trial court said it would conduct a Faretta inquiry, whereupon it asked Holland about his educational experience -- " a GED" -- and his legal training. Holland replied, " Well, from what I've seen in the evidence, Ray Charles could come in here and represent himself and Stevie Wonder, so I don't need too much legal training to do all that." The trial court questioned Holland about his ability to select a jury, make legal objections, and examine witnesses. Holland exhibited little familiarity with the process and said he had no training. Holland offered that he wouldn't violate any rules but admitted he did not know the rules he could violate. At this point, the trial court stopped the inquiry and ruled that " Holland does not have any specific legal training, is not familiar with the rules of evidence, nor trial procedures, is not familiar with how a trial is conducted, even though he's sat through them in the past." In a written order, the court denied the defendant's motion to represent himself, finding that Holland was incapable of doing so.
At still another pretrial hearing (conducted on August 2, 1996) on a defense motion to authorize an MRI of Holland to scan for brain damage, Holland again asked the trial court either to remove his attorneys or to allow him to represent himself. The Court conducted still another Faretta inquiry, discussing with Holland his education, training, and knowledge of legal rules and procedures. Holland repeatedly interrupted the trial court as it ruled that Holland was " not able to adequately appropriately represent himself . . . [n]or to comply with the Court's order, nor with applicable rules of evidence, rules of criminal procedure, as well as case law."
On August 26, 1996, Holland's counsel moved to withdraw on the ground that Holland thought he would be better off handling the case on his own. This time, at considerable length, the trial court explained its past refusal to allow Holland to represent himself. The court recounted that " Holland has suffered an injury to the head and was hospitalized at Saint Elizabeth's in Washington D.C. while he was incarcerated approximately . . . ten, twelve years ago." Holland " obtained a GED since he's been incarcerated." He " obviously sat through his prior first degree murder trial, but that is not exactly correct, because due to Mr. Holland's behavior Mr. Holland was removed from that courtroom and watched that proceeding on closed-circuit television." Therefore, Holland had " previously demonstrated . . . his inability to follow the Court's orders and decorum required to be in a courtroom." Holland also failed to demonstrate the legal knowledge and skills required to present his own case. Finally, Holland's lawyer had filed a notice of intent to rely on the defense of insanity, which " touches upon his mental condition and ability to understand the nature as well as the complexity of this case." With this background, the trial court stated that it would conduct a dual Nelson and Faretta inquiry to determine whether Holland's counsel
should be discharged and whether Holland could represent himself.
Reading from notes, Holland began by asking the court " how much time am I going to have, because you always rush me, because I feel you're biased against me and you never give me enough time to talk." Holland said the judge was working in collusion with his attorneys and the prosecution. " [E]verything [that] has been going on with you, Your Honor, and my attorneys shows there is impropriety. There is some monkey business going on here. Underhandedness." " [A]ny reasonable person can tell that I'm not going to get a fair trial. If they knew all of the facts, everything that you're doing. It's all a money thing and all a convicting thing. You made up your mind. You want to be the only judge to send somebody to the electric chair with [the prosecutor]." Holland complained about one of his attorneys, Baron, stating that " [i]t's just a sham because he's supposed to be giving me effective assistance of counsel when he's trying to help the prosecution." He accused his lawyer Lewis of " trying to provoke me, looking real crazy at me, trying to get me to respond to him." He said that, because of their previous connection to Delegal, he knew Lewis and Baron were smoking crack. " All they did was make a good hustle. . . . They made a little extra in the pocket helping a friend cover up and helping the prosecution at the same time, and everybody is happy." At one point, Holland asked the judge, " Are you listening . . . or are you drinking coffee?" Holland's soliloquy focused almost exclusively on his suspicions about his attorneys and the court, not on a desire to represent himself or an explanation of why he knowingly and voluntarily sought to give up the right to counsel.
Wrapping up, Holland referred to the outline of notes he had read, saying " I used to hide them . . . I know they look at them, shake them. . . . I know they have bugs. . . . I used to carry these to work out, check out, I have all of my papers in my pocket." When asked about his first trial, Holland said that officials had not turned on the monitor to allow him to watch the closed-circuit feed after he was removed from the courtroom -- " [i]t was a bunch of show." The trial court concluded that Lewis and Baron were qualified and able to represent Holland effectively. The court refused to allow Holland to represent himself, citing " his lack of formal legal training, lack of understanding of both the criminal law as well as procedures, his alleged defense or defense actually, of insanity and the complexity of this case," with " approximately 180 witnesses listed." Holland's response: " All of you working together. . . . Bald-faced liars."
On September 18, 1996, on the eve of retrial, Holland still again complained about his attorneys and sought to represent himself. The court replied, " these are issues the Court previously addressed, previously ruled on. There is nothing new." Holland responded that " I wasn't found competent then, I was found competent now, and I'm literate and I'm understanding and I would like to voluntarily do my own defense." The court responded that it had " found you competent several months ago and entered it's [sic] order. . . . Motion to represent yourself is denied."
Holland asked yet again to represent himself before voir dire of the jury on the first day of retrial. Again the court refused, referencing its earlier rulings. Not dissuaded in any way, Holland made the same request on October 1, 1996, during jury selection, with the same results, and again on October 3 and October 8. The court said, " Mr. Holland, even my patience at some point ends. . . . I'm tired, candidly,
Mr. Holland, every time we come in the door, hearing the exact same speech from you. I've heard it. It's on the record. Your motions are denied and that's it." When the defendant pressed on, the court said, " Mr. Holland, you do not have the first idea, candidly, of how to properly represent yourself and that's it." Holland responded that " I can do better than what they are doing. . . . He who represents themselves has a fool for a client, and I'm that fool. I want to represent myself." The court was unmoved: " [t]he stakes are too great for you to represent yourself." Before Holland testified in the guilt phase, the court found that Holland knowingly and voluntarily waived his right against self-incrimination. The court also recognized that he had waived any argument that he could not be found guilty of lesser included offenses.
The jury convicted Holland of first-degree murder, armed robbery, attempted sexual battery, and attempted first-degree murder. Before the penalty phase began, Holland once more asked for his attorneys to be replaced. When this request was denied, Holland refused to speak with counsel or the court, choosing instead to read a book during all court proceedings outside the presence of the jury. Holland did not testify in the penalty phase or at the Spencer hearing.
The jury recommended the death penalty by a vote of eight to four. The trial court found three statutory aggravating circumstances: Holland was previously convicted of a felony involving the use or threat of violence to a person, Fla. Stat. § 921.141(5)(b) (2010); the capital felony was committed while Holland was engaged in the commission of, or in an attempt to commit, or flight after committing or attempting to commit the crime of robbery or an attempt to commit the crime of sexual battery or both, id. § 921.141(5)(d); and the crime was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, id. § 921.141(5)(e), which merged with the fact that the victim of the capital felony was a law enforcement officer engaged in the performance of his legal duties, id. § 921.141(5)(j). The trial court found no statutory mitigating circumstances. It did, however, find two nonstatutory mitigators, each of which received little weight: a history of drug and alcohol abuse and a history of mental illness.
In its sentencing memorandum, the court recognized Holland's history of mental illness, but gave it little weight as a mitigating factor because he " correctly argued caselaw and factual issues to the Court. . . . The defendant's active participation during his trial and volitional decision at times not to respond to the Court outside the presence of the jury, clearly establish his ability to participate, manipulate and engineer his actions." After weighing the evidence in aggravation and mitigation, the trial court sentenced Holland to death.
Holland appealed his conviction and sentence to the Florida Supreme Court, which affirmed. Holland II, 773 So.2d 1065. As for Holland's Faretta claim, the Florida Supreme Court identified Faretta and the principles relevant to the right of self-representation and concluded that the trial
court had not erred when it denied Holland's requests to represent himself:
In issue one, Holland claims that the trial court erred in denying him the opportunity to represent himself. The trial court conducted Faretta inquiries on at least two separate occasions to determine whether Holland was competent to represent himself. At the conclusion of the inquiries, the trial court denied Holland's request for self-representation.
As Holland points out, " a person need not be schooled in the law in order to competently elect to represent himself." Crystal v. State, 616 So.2d 150, 153 (Fla. 1st DCA 1993). See also Fla. R. Crim. P. 3.111(d) (" (3) Regardless of the defendant's legal skills or the complexity of the case, the court shall not deny a defendant's unequivocal request to represent him or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel." ). However, in Johnston v. State, 497 So.2d 863, 868 (Fla.1986), this Court stated that " [i]n determining whether a defendant has knowingly and intelligently waived his right to counsel, a trial court should inquire into, among other things: defendant's age, mental status, and lack of knowledge and experience in criminal proceedings." In Johnston, this Court concluded that " [t]he trial judge made the proper inquiry . . . and correctly concluded that the desired waiver of counsel was neither knowing nor intelligent, in part, because of Johnston's mental condition." Id. (emphasis added). See also Visage v. State, 664 So.2d 1101, 1101 (Fla. 1st DCA 1995).
A trial court's decision as to self-representation is reviewable for abuse of discretion. See id. at 1101. We conclude that the trial court did not abuse its discretion in denying Holland the right to represent himself. The record contains numerous instances of Holland's unstable mental condition, particularly his previous hospitalization at St. Elizabeth's. Additionally, the trial court was aware of the potential that Holland was going to rely on the insanity defense. Moreover, it is ...