Darius Mark Kimbrough #1353

Darius Mark Kimbrough

Executed November 12, 2013 06:18 p.m. EST by Lethal Injection in Florida

33rd murderer executed in U.S. in 2013
1353rd murderer executed in U.S. since 1976
7th murderer executed in Florida in 2013
81st murderer executed in Florida since 1976

Since 1976 Date of Execution State Method Murderer
(Race/Sex/Age at Murder-Execution) Date of
Birth Victim(s)
(Race/Sex/Age at Murder) Date of
Murder Method of
Murder Relationship
to Murderer Date of
Sentence

1353
(33)
11-12-13 FL Lethal Injection Darius Mark Kimbrough
B / M / 18 - 40
12-04-72 Denise Collins
W / F / 28
10-03-91 Beating None 12-09-94

Summary:
Denise Collins was discovered in her bathroom by paramedics. She was nude, semiconscious, and covered in blood. The sliding glass door on her second-floor apartment was partially open, and there were ladder impressions on the ground under the balcony. Collins was rushed to the hospital but died shortly thereafter. DNA evidence showed that the semen taken from the bed sheets matched Kimbrough, and some of the pubic hairs matched his. However, additional pubic hairs from another unidentified black male and a Caucasian male were also found. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough. A workman at the apartment complex identified Kimbrough as the man who had watched him put away a ladder in the complex at the time of the murder. The crime went unsolved until Kimbrough was arrested for raping a 22-year-old woman in March 1992. He was sentenced to 10 1/2 years for burglary and sexual battery. DNA from that attack was then used to connect him to the Collins assault.

Citations:
Kimbrough v. State, 700 So. 2d 634 (Fla. 1997). (Direct Appeal)
Kimbrough v. State, 886 So. 2d 965 (Fla. 2004). (PCR)
Kimbrough v. Sec'y, DOC, 565 F.3d 796 (11th Cir. Fla. 2009). (Habeas)

Final / Special Meal:
Two slices of pizza, fried green tomatoes, fried chicken, chicken gizzards, chocolate-chip ice cream and fruit punch.

Final Words:
None.

Internet Sources:

Florida Department of Corrections

DC Number: 374123
Name: KIMBROUGH, DARIUS
Race: BLACK
Sex: MALE
Hair Color: BLACK
Eye Color: BROWN
Height: 5'09"
Weight: 237 lbs.
Birth Date: 12/04/1972
Aliases: DARIUS KIMBROUGH, DARIUS MARQUTTA KIMBROUGH, JEFFREY KIMBROUGH

Current Prison Sentence History:
03/09/1992 BURGLARY ASSAULT ANY PERSON 12/15/1993 ORANGE 9202630 10Y 6M 0D
03/09/1992 SEX BAT/INJURY NOT LIKELY 12/15/1993 ORANGE 9202630 10Y 6M 0D
10/03/1991 1ST DG MUR/PREMED. OR ATT. 12/09/1994 ORANGE 9210868 DEATH SENTENCE
10/03/1991 BURGLARY ASSAULT ANY PERSON 12/09/1994 ORANGE 9210868 SENTENCED TO LIFE
10/03/1991 SEX BAT/ WPN. OR FORCE 12/09/1994 ORANGE 9210868 SENTENCED TO LIFE

Incarceration History: 12/19/1994 to 11/12/2013

Reuters News

"Florida executes man convicted of 1991 rape and murder." (Tue Nov 12, 2013 7:53pm EST)

Nov 12 (Reuters) - Florida executed a convicted rapist and murderer on Tuesday in the first of two executions scheduled across the United States. Darius Kimbrough, who had been convicted of a 1991 sexual assault and murder, was pronounced dead at the state prison in Starke, Florida, at 6:18 p.m. EST (2318 GMT), 18 minutes after lethal injection procedure got underway.

The execution of Kimbrough, which followed the rejection of his final appeal by the U.S. Supreme Court, was the 33rd in the United States this year. It was to be followed later in the evening by the execution in Texas of Jamie McCoskey, who was convicted of kidnapping a couple in 1991 in Houston, raping the woman and stabbing her fiancé to death.

Kimbrough, 40, was sentenced to die for killing Denise Collins, an aspiring artist, after he broke into her Orlando, Florida, apartment and sexually assaulted her. She was found barely alive on her bathroom floor in October 1991. Collins died days later of head injuries suffered in a beating that broke her jaw and fractured her skull.

The Sun-Sentinel

"Darius Kimbrough, who killed Orange County woman, is executed," by Susan Jacobson. (8:28 p.m. EST, November 12, 2013)

STARKE — Rapist and killer Darius Kimbrough, who spent nearly 19 years on death row for the murder of an Orange County woman, died by lethal injection Tuesday evening at Florida State Prison as relatives of victim Denise Collins watched. Kimbrough answered, "No, sir," when asked whether he wanted to make a statement. The 40-year-old killer blinked as he lay on a gurney just before the deadly chemicals began to flow through his body at 6:01 p.m. For 17 minutes, he lay motionless. A doctor then shined a light in his eyes, placed a stethoscope to his chest and pronounced him dead at 6:18. Kimbrough was covered with a white sheet, his feet to the witnesses, who watched through a long, horizontal pane. Aside from an occasional cough, no one made a sound.

Orange-Osceola State Attorney Jeff Ashton was among the witnesses. He was one of two prosecutors on the case early in his career. On his left sat his co-counsel, Ted Culhan. To his right was Riggs Gay, the Orange County sheriff's detective who investigated the killing. Annette Collins, the victim's only sibling, thanked the investigators and prosecutors in a news conference after the execution. Collins said she and her mother were grateful that justice had been served. Her mom, Diane Stewart, described the execution as very peaceful and quiet — "not at all what he deserved." Stewart, with tears in her eyes, said Kimbrough "went out a lot cleaner and neater" than her daughter. Stewart and Collins traveled from New Jersey to watch Kimbrough die.

Hours before the execution, the condemned prisoner ate his last meal and visited with a chaplain and family members. Kimbrough requested a final meal of two slices of pizza, fried green tomatoes, fried chicken, chicken gizzards, chocolate-chip ice cream and fruit punch. He ate most of it about 9:45 a.m., Department of Corrections spokeswoman Jessica Cary said. Kimbrough was visited by a chaplain and by his mother, three aunts, a cousin and a friend, Cary said. She described his demeanor as calm.

He was convicted in July 1994 of first-degree murder, sexual battery and burglary. A judge sentenced him to death in December of that year after a jury recommended, 11-1, that he die for killing Collins, 28. Kimbrough was two months shy of his 19th birthday in October 1991 when he climbed a ladder to Collins' second-floor balcony at Carousel Club Apartments on Rio Grande Avenue south of Orlando, broke in through a sliding-glass door and attacked her in her bedroom. He broke Collins' jaw and skull during the struggle. She died the next day in a hospital after life support was disconnected.

An aspiring graphic artist and fashion designer, Collins had moved to the complex about two months before she was killed because it was affordable and allowed her two cats. The crime went unsolved until Kimbrough was arrested for raping a 22-year-old woman in March 1992 in the Conway neighborhood. He was sentenced to 101/2 years for burglary and sexual battery. DNA from that attack connected him to the Collins assault. Two weeks before her murder, Collins complained to management at her apartment complex that someone was following her, making lewd comments and threatening to hurt her if she called police.

Miami Herald

"Florida inmate executed for killing of Orlando woman," by Tamara Lush. (Associated Press Tuesday, 11.12.13)

STARKE, Fla. -- A man convicted in the 1991 sexual assault and murder of an aspiring artist in Orlando was executed Tuesday by injection. Darius Kimbrough was pronounced dead at 6:18 p.m. at the Florida State Prison in Starke, officials said. He did not make any statement, telling officials "No, sir" when asked if he had any last words.

Kimbrough was condemned to die for the October 1991 killing of 28-year-old Denise Collins, who was attacked in her apartment as she slept. Experts testified at Kimbrough's 1994 trial that blood and semen samples taken from Collins' bed were compatible with the defendant's DNA.

Collins' mother and sister were among 24 witnesses, including news media, who attended the execution. Her mother, Diane Stewart, said the last 22 years have been "horrendous" while the family waited for the legal appeals to play out. "This is well deserved," Stewart told reporters. "Let's see if we can pick ourselves up a little more and get on with our life." The sister, Annette Collins, said the execution was a numbing experience but also a relief. "I'm just happy that Denise received justice. Wherever she is, I hope she is smiling down," she said.

It was the second time a new mix of drugs was used in Florida since the previous execution in mid-October. Kimbrough was not a plaintiff in a lawsuit by other inmates who have argued the use of the new drug mix should be halted as unconstitutional. The execution Tuesday appeared to go smoothly, with no apparent movements or unusual activity by Kimbrough. In October, the state Supreme Court denied Kimbrough's appeal, rejecting the argument from Kimbrough's lawyers that he shouldn't be executed because the jury recommendation wasn't unanimous. The U.S. Supreme Court rejected Kimbrough's final appeal late Tuesday afternoon.

Earlier Tuesday, Kimbrough ate his last meal including pizza, fried chicken, fried green tomatoes and chocolate chip ice cream. Kimbrough also met with a chaplain, his mother, three aunts, a cousin and a friend.

After Collins was killed, a neighbor at her Orlando complex told detectives he had seen a man near her apartment next to a ladder by the apartment's balcony. The neighbor later identified Kimbrough, then 19, as the man from a picture lineup. A maintenance man at the complex also said Kimbrough had watched him putting away a ladder in the complex around the time of the murder. Kimbrough was found guilty at his 1994 trial, during which experts testified that blood and semen samples taken from Collins' bed were compatible with the defendant's DNA.

Florida first used the new lethal injection drug mix during the execution of William Happ on Oct. 15. Death row inmates in Florida are seeking to stop the use of the new drug mix, asking federal courts to declare the procedure unconstitutional. Kimbrough is not one of the plaintiffs in the suit. Attorneys for the inmates who filed the suit say the use of the sedative midazolam hydrochloride won't prevent excruciating pain and suffering when the next two drugs are administered. Use of the mix would be a form of cruel and unusual punishment, thus violating the condemned prisoner's rights, according to the complaint.

Tampa Tribune

"Florida inmate executed for killing of Orlando woman." (ASSOCIATED PRESS Updated: November 12, 2013 at 08:10 PM)

STARKE – A man convicted in the 1991 sexual assault and murder of an aspiring artist in Orlando was executed Tuesday by injection. Darius Kimbrough was convicted of sexually assaulting Denise Collins as she slept and then beating her to death. Darius Kimbrough was pronounced dead at 6:18 p.m. at the Florida State Prison in Starke, officials said. He did not make any statement, telling officials “No, sir” when asked if he had any last words.

Kimbrough was condemned to die for the October 1991 killing of 28-year-old Denise Collins, who was attacked in her apartment as she slept. Experts testified at Kimbrough’s 1994 trial that blood and semen samples taken from Collins’ bed were compatible with the defendant’s DNA.

Collins’ mother and sister were among 24 witnesses, including news media, who attended the execution. Her mother, Diane Stewart, said the last 22 years have been “horrendous” while the family waited for the legal appeals to play out. “This is well deserved,” Stewart told reporters. “Let’s see if we can pick ourselves up a little more and get on with our life.” The sister, Annette Collins, said the execution was a numbing experience but also a relief. “I’m just happy that Denise received justice. Wherever she is, I hope she is smiling down,” she said.

It was the second time a new mix of drugs was used in Florida since the previous execution in mid-October. Kimbrough was not a plaintiff in a lawsuit by other inmates who have argued the use of the new drug mix should be halted as unconstitutional. The execution Tuesday appeared to go smoothly, with no apparent movements or unusual activity by Kimbrough. In October, the state Supreme Court denied Kimbrough’s appeal, rejecting the argument from Kimbrough’s lawyers that he shouldn’t be executed because the jury recommendation wasn’t unanimous. The U.S. Supreme Court rejected Kimbrough’s final appeal late Tuesday afternoon.

After Collins was killed, a neighbor at her Orlando complex told detectives he had seen a man near her apartment next to a ladder by the apartment’s balcony. The neighbor later identified Kimbrough, then 19, as the man from a picture lineup. A maintenance man at the complex also said Kimbrough had watched him putting away a ladder in the complex around the time of the murder. Kimbrough was found guilty at his 1994 trial, during which experts testified that blood and semen samples taken from Collins’ bed were compatible with the defendant’s DNA.

Florida first used the new lethal injection drug mix during the execution of William Happ on Oct. 15. Death row inmates in Florida are seeking to stop the use of the new drug mix, asking federal courts to declare the procedure unconstitutional. Kimbrough is not one of the plaintiffs in the suit. Attorneys for the inmates who filed the suit say the use of the sedative midazolam hydrochloride won’t prevent excruciating pain and suffering when the next two drugs are administered. Use of the mix would be a form of cruel and unusual punishment, thus violating the condemned prisoner’s rights, according to the complaint.

Wikipedia

Following is a list of inmates executed since Florida resumed executions in 1979:

1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.

2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.

3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.

4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.

5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.

6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..

9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.

22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.

26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.

27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.

28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.

29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.

34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.

35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.

36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.

41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor

62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon

63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules

64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy

65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.

66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis

67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr

68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons

69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park

70. Manuel Valle 28 September 2011 lethal injection Louis Pena

71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers

72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer

73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott

74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.

75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson

76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan

77. William Edward Van Poyck 12 June 2013 lethal injection Ronald Griffis

78. John Errol Ferguson 05 August 2013 lethal injection Livingstone Stocker, Michael Miller, Henry Clayton, John Holmes, Gilbert Williams, and Charles Cesar Stinson

79. Marshall Lee Gore 01 October 2013 lethal injection Robyn Novick (also killed Susan Roark but was executed for killing Novick)

80. William Frederick Happ 15 October 2013 lethal injection Angie Crowley

81. Darius Kimbrough 12 November 2013 Lethal Injection Denise Collins

ProDeathPenalty.Com

The victim, Denise Collins, was found nude and semi-conscious in her bathroom by paramedics;?she was covered with blood. The sliding glass door to her second floor apartment was partially open, and there were some ladder impressions under the balcony. Collins was rushed to the hospital, where she died soon thereafter. The officers took semen evidence from the bed sheets, took blood evidence from the victim, and found pubic hairs in the bed and in a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis.

A resident of the apartment complex named Lee told officers that he had twice seen a man in the vicinity of the apartment and had seen a ladder on the apartment's balcony. Officers were unsuccessful in searching for the man, but later Lee identified Kimbrough from a picture lineup. A workman in the complex identified Kimbrough as a man who had watched him putting away a ladder in the complex around the time of the murder. The DNA evidence showed that the semen taken from the bed sheets was compatible with Kimbrough's, and some of the pubic hairs matched his. There were, however, additional pubic hairs from another unidentified black man and a caucasian male. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough's. The medical examiner testified at trial that the victim had a fractured jaw and fracturing around her left temple. The cause of death was hemorrhaging and head injury in the brain area resulting from blunt injury to the face. There was also evidence of vaginal injury, including tears and swelling consistent with penetration. There were bruises on her arms.

The defense's theory suggested that the victim's ex-boyfriend had committed the crime since he was with the victim shortly before, had used a ladder before at her apartment, had a key, and had beaten her previously. The evidence of prior beating was excluded. In the sentencing order, the judge listed three aggravators: prior violent felony, committed during the course of a felony, and heinous, atrocious, or cruel. To support the prior violent felony aggravator, the judge cited Kimbrough's prior convictions for both burglary of a dwelling with battery therein and sexual battery. The court found that the murder here was committed during sexual battery or attempt to commit sexual battery, citing DNA evidence and bruising, as well as evidence that the victim and defendant did not know each other. The heinous nature of the crime was supported by the size of the victim, the three blows to her head causing fracture by blunt force, evidence of a struggle (the room was in disarray), and the amount of blood found around the room. The judge considered age as a statutory mitigator (Kimbrough was nineteen), but rejected it because there was no evidence establishing that he was immature or impaired. The court considered the following nonstatutory mitigation: Kimbrough had an unstable childhood, maternal deprivation, an alcoholic father, a dysfunctional family, and a talent for singing. The court found that the mitigation did not temper the aggravators.

Denise Collins was an aspiring artist at the time of her death. She went to high school in Titusville and attended colleges in Boston. She got a job at Kinko's in Orlando after earning a fine arts degree, but she wanted to be a graphic artist. She loved cats and was "big-hearted," said her mother. "She had a very pleasing personality. She was outgoing and laid-back," Stewart said. "She was very pretty, a very attractive girl." Collins spent her last evening listening to CDs at a friend's apartment along with other friends, including Gary Boodhoo, her former boyfriend. She returned to her apartment at night, and detectives believe she was attacked sometime between midnight and 4 a.m. the next day.

"He lived 22 years too long and too well and he's going to go out clean and easy, and he doesn't deserve it," said Diane Stewart, Collins' mother, in a recent telephone interview. "She didn't go out that way, and he doesn't deserve what he's getting. He should go out the way she did. That's how we feel." Stewart, who lives in New Jersey, said she planned to attend the execution with Collins' sister. Boodhoo recalled Collins as a loving person who did work in painting, drawing and collages. "There was such a beauty to her work, her personality, her relationship with others," Boodhoo said. "I'm just glad he's going to die ... I couldn't be happier about it. He's the worst kind of human being there is."

Florida Commission on Capital Cases

KIMBROUGH, Darius Mark (B/M)
DC# 374123
DOB: 12/04/72

Ninth Judicial Circuit, Orange County Case# 92-10868
Sentencing Judge: The Honorable Dorothy J. Russell
Attorneys, Trial: Patricia Cashman & Kelly Sims – Assistant Public Defenders
Attorney, Direct Appeal: George D.E. Burden – Assistant Public Defender
Attorneys, Collateral Appeals: Robert T. Strain & Carol Rodriguez – CCRC-M
Date of Offense: 10/03/91
Date of Sentence: 12/09/94

Circumstances of Offense: Darius Kimbrough was convicted of burglary, sexual battery, and the murder of Denise Collins, which occurred on 10/03/91. Denise Collins was discovered in her bathroom by paramedics. She was nude, semiconscious, and covered in blood. The sliding glass door on her second-floor apartment was partially open, and there were ladder impressions on the ground under the balcony. Collins was rushed to the hospital but died shortly thereafter.

A resident of the apartment complex, told police that he had seen a man near the apartment and had seen a ladder leaning on the apartment’s balcony. Police had trouble locating the man Lee had described, but Lee later identified Kimbrough from a picture lineup. A workman at the apartment complex identified Kimbrough as the man who had watched him put away a ladder in the complex at the time of the murder. Police took semen evidence from the bed sheets, blood evidence from Collins’ body, and found pubic hairs in the bed and on a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis. The DNA evidence showed that the semen taken from the bed sheets matched Kimbrough’s, and some of the pubic hairs matched his. However, additional pubic hairs from another unidentified black male and a Caucasian male were also found. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough’s.

The medical examiner testified that the cause of death was hemorrhaging and head injury to the brain caused by blunt trauma to the face. There were bruises on her arms and evidence of vaginal injury, including tears and swelling consistent with penetration.

Current Prison Sentence History:

03/09/1992
BURGLARY ASSAULT ANY PERSON
12/15/1993
ORANGE
9202630
10Y 6M 0D

03/09/1992
SEX BAT/INJURY NOT LIKELY
12/15/1993
ORANGE
9202630
10Y 6M 0D

10/03/1991
1ST DG MUR/PREMED. OR ATT.
12/09/1994
ORANGE
9210868
DEATH SENTENCE

10/03/1991
BURGLARY ASSAULT ANY PERSON
12/09/1994
ORANGE
9210868
SENTENCED TO LIFE

10/03/1991
SEX BAT/ WPN. OR FORCE
12/09/1994
ORANGE
9210868
SENTENCED TO LIFE

10/03/91 Indicted as follows: Count I: First-Degree Murder, Count II: Burglary, Count III: Sexual Battery.
07/01/94 Jury returned guilty verdicts on all counts of the indictment.
11/09/94 Jury recommended death by a vote of 11-1.
12/09/94 Sentenced as follows: Count I: First-Degree Murder – Death, Count II: Burglary – Life, Count III: Sexual Battery – Life

Appeal Summary:

Florida Supreme Court – Direct Appeal
FSC# 84989
700 So.2d 634
01/11/95 Appeal Filed.
08/21/97 Conviction and Sentence Affirmed.
11/20/97 Mandate Issued.

United States Supreme Court – Petition for Writ of Certiorari
USSC# 97-7576
523 U.S. 1028, 118 S.Ct. 1316
01/16/98 Petition Filed.
03/23/98 Petition Denied.

State Circuit Court – 3.850 Motion
CC# 92-10868
07/30/98 Motion Filed.
04/26/02 Motion Denied.

Florida Supreme Court – 3.850 Appeal
FSC# 02-1158
886 So. 2d 965 (Fla. 2004)
05/24/02 Appeal Filed.
06/24/04 3.850 Denial Affirmed.
08/31/04 Rehearing Denied.
09/30/04 Mandate

Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 03-228
886 So. 2d 965 (Fla. 2004)
02/10/03 Habeas Filed.
06/24/04 Habeas Denied.
08/31/04 Rehearing Denied.
09/30/04 Mandate

United States District Court, Middle District – Petition for Writ of Habeas Corpus
USDC# 05-265
02/22/05 Habeas Filed.
02/27/08 Habeas denied.

United States Court of Appeals, 11th Circuit – Habeas Appeal
USCA# 08-11421
565 F.3d 796
06/09/08 Appeal filed.
04/15/09 Appeal denied.

United States Supreme Court – Petition for Writ of Certiorari
USSC# 09-6344
130 S.Ct. 574
09/09/09 Petition filed.
11/09/09 Petition denied.

Case Information:

On 01/11/95 Kimbrough filed a Direct Appeal to the Florida Supreme Court. The Court found that the trial court did not abuse its discretion in allowing DNA evidence; in failing to find age as a statutory mitigator; and, prohibiting defense testimony that the victim’s ex-boyfriend had beaten her during their relationship. The Court also found that the death sentence was not disproportionate to the crime, and that substantial evidence supported the finding that the murder was committed during the course of sexual battery. The Court affirmed his conviction and sentence on 08/21/97.

Kimbrough filed a Petition of Writ of Certiorari to the United States Supreme Court on 01/16/98 and was denied on 03/23/98.

Kimbrough filed a 3.850 Motion to the Circuit Court on 07/30/98, which was denied on 04/26/04.

Kimbrough filed a 3.850 Appeal to the Florida Supreme Court on 05/24/02, and on 06/24/04, the FSC affirmed the denial of the 3.850 Motion. The mandate was issued on 09/30/04.

Kimbrough filed a Habeas Corpus to the Florida Supreme Court on 02/10/03, which was denied on 06/24/04. The mandate was issued on 09/30/04.

On 02/22/05, Kimbrough filed a Petition for Writ of Habeas Corpus to the United States District Court, Middle District. Kimbrough’s Habeas Petition was denied on 02/27/08 and dismissed with prejudice.

On 06/09/08, Kimbrough filed a Habeas Appeal in the United States Court of Appeals, 11th Circuit. This Appeal was denied on 04/15/09.

Kimbrough filed a Petition for Writ of Certiorari to the United States Supreme Court on 09/09/09. This petition was denied on 11/09/09

Kimbrough v. State, 700 So. 2d 634 (Fla. 1997). (Direct Appeal)

Procedural Posture

Appellant challenged an order from the Circuit Court in and for Orange County (Florida), affirming appellant's convictions for first-degree murder, burglary of a dwelling, sexual battery, and the appellant's death sentence.

Overview

Appellant was convicted of first-degree murder, burglary of a dwelling, sexual battery, and was sentenced to death. Appellant raised numerous issues on appeal, but the court affirmed his sentence finding substantial evidence supported the verdict and sentence. First, the court held that ample evidence demonstrated that the killing was premeditated and a felony murder, the jury was properly charged on both offenses, and the evidence supported either theory. Second, appellant was properly barred from admitting evidence under the reverse Williams-rule because he failed to show how the victim's boyfriend's prior bad acts were relevant. Third, it was proper to charge the jury on the aggravators because abundant evidence showed that the murder unnecessarily torturous to the victim. Fourth, a prospective juror was properly excused for cause over appellant's objection because the prospective juror repeatedly expressed strong reservations about her ability to be impartial on the death penalty issue. Fifth, ample evidence supported a finding that the murder was committed during the course of a sexual battery.

Outcome

Appellant's numerous challenges to his conviction and death sentence were denied because ample evidence supported the verdict and sentence. The court found it was proper to charge the jury on the relevant aggravators because abundant evidence showed that the murder was unnecessarily torturous to the victim.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Darius Mark Kimbrough. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Kimbrough was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one. The victim, Denise Collins, was found nude and semiconscious in her bathroom by paramedics; she was covered with blood. The sliding glass door to her second floor apartment was partially open, and there were some ladder impressions under the balcony. Collins was rushed to the hospital, where she died soon thereafter.

The officers took semen evidence from the bedsheets, took blood evidence from the victim, and found pubic hairs in the bed and in a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis. A resident of the apartment complex--Lee--told officers that he had twice seen a man in the vicinity of the apartment and had seen a ladder on the apartment's balcony. Officers were unsuccessful in searching for the man, but later Lee identified Kimbrough from a picture lineup. A workman in the complex-Stone--identified Kimbrough as a man who had watched him putting away a ladder in the complex around the time of the murder. The DNA evidence showed that the semen taken from the bedsheets was compatible [636] with Kimbrough's, and some of the pubic hairs matched his. There were, however, additional pubic hairs from another unidentified black man and a caucasian male. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough's.

The medical examiner testified at trial that the victim had a fractured jaw and fracturing around her left temple. The cause of death was hemorrhaging and head injury in the brain area resulting from blunt injury to the face. There was also evidence of vaginal injury, including tears and swelling consistent with penetration. There were bruises on her arms. The defense's theory suggested that the victim's ex-boyfriend--Gary Boodhoo--had committed the crime since he was with the victim shortly before, had used a ladder before at her apartment, had a key, and had beaten her previously. The evidence of prior beating was excluded.

In the sentencing order, the judge listed three aggravators: prior violent felony, committed during the course of a felony, and heinous, atrocious, or cruel (HAC). To support the prior violent felony aggravator, the judge cited Kimbrough's prior convictions for both burglary of a dwelling with battery therein and sexual battery. The court found that the murder here was committed during sexual battery or attempt to commit sexual battery, citing DNA evidence and bruising, as well as evidence that the victim and defendant did not know each other. HAC was supported by the size of the victim, the three blows to her head causing fracture by blunt force, evidence of a struggle (the room was in disarray), and the amount of blood found around the room. The judge considered age as a statutory mitigator (Kimbrough was nineteen), but rejected it because there was no evidence establishing that he was immature or impaired. The court considered the following nonstatutory mitigation: Kimbrough had an unstable childhood, maternal deprivation, an alcoholic father, a dysfunctional family, and a talent for singing. The court found that the mitigation did not temper the aggravators.

Kimbrough presents eight issues on appeal: (1) the evidence was legally insufficient to support the verdict; (2) it was error to prohibit introduction of defense testimony about other crimes or bad acts; (3) it was an abuse of discretion for the judge not to find the statutory mitigator of age at the time of the offense; (4) the death sentence was disproportionate and there was an improper weighing of mitigators; (5) there was an erroneous instruction on and finding of HAC; (6) it was error to excuse for cause one qualified juror over defense objection; (7) it was error to find that the murder was committed during sexual battery; and (8) section 921.141, Florida Statutes (1993), is unconstitutional. We find no merit to Kimbrough's arguments.

We have conducted an independent review of the entire record before us, and find competent and substantial evidence to support the juries' verdict and sentence. We therefore reject Kimbrough's contention in issue 1 that the evidence at trial was legally insufficient to support the verdict, but we briefly address three of the points he raises in this issue: Kimbrough argues that the evidence was insufficient because it was all circumstantial, that the DNA evidence was inadmissible for lack of a proper Frye inquiry, 1 and that there was insufficient evidence of premeditation.

We have established that circumstantial evidence is not a bar to conviction: Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse. State v. Law, 559 So. 2d 187, 188 (Fla. 1989) (citations omitted). There is substantial, [637] competent evidence supporting the jury's guilty verdict.

Kimbrough's argument that the DNA evidence is inadmissible is also without merit. In Correll we wrote: When scientific evidence is to be offered which is of the same type that has already been received in a substantial number of other Florida cases, any inquiry into its reliability for purposes of admissibility is only necessary when the opposing party makes a timely request for such an inquiry supported by authorities indicating that there may not be general scientific acceptance of the technique employed. Correll v. State, 523 So. 2d 562, 567 (Fla. 1988); see also Henyard v. State, 689 So. 2d 239, 248 (Fla. 1996); Washington v. State, 653 So. 2d 362, 365 (Fla. 1994); Robinson v. State, 610 So. 2d 1288, 1291 (Fla. 1992). Here, there was no timely request for an inquiry as required by Correll. Thus, we find no abuse of discretion in allowing the evidence at trial.

Kimbrough also argues that there was insufficient evidence of premeditation. The jury was instructed on both premeditated and felony murder. Also, the judge specifically ruled that the allegations were sufficient to support either charge. The circumstances surrounding this killing provide ample evidence in support of either theory upon which the jury could have based its verdict. We find no merit to this argument.

Kimbrough's contention in issue 2 is that the trial judge erred by prohibiting defense testimony about other crimes or bad acts committed by Boodhoo, the victim's exboyfriend. Kimbrough sought to introduce evidence that Boodhoo had beaten the victim during the course of their relationship. The defense argued that it was relevant to the defense theory that Boodhoo had actually committed the murder, not Kimbrough. Kimbrough claims it was error to exclude the evidence, as it was properly within the scope of the Williams rule. Evidence of other crimes or acts is admissible if it is found to be relevant for any purpose, save that of showing bad character or propensity. See Williams v. State, 110 So. 2d 654 (Fla. 1959); § 90.404, Fla. Stat. (1991). The State points to this Court's decision in State v. Savino, where we said: When the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, we have required a close similarity of facts, a unique or "fingerprint" type of information, for the evidence to be relevant. State v. Savino, 567 So. 2d 892, 894 (Fla. 1990); see also Drake v. State, 400 So. 2d 1217, 1219 (Fla. 1981)(holding that a general similarity is not enough to establish identity through this type of evidence; to be relevant facts must show points of similarity so unusual as to point to the defendant). Although in this case the evidence is "reverse Williams-rule evidence" (evidence offered by a defendant), it requires the same showing of relevance as evidence offered by the prosecution. See, e.g., Charles W. Ehrhardt, Florida Evidence § 404.9 at 157-58 (1996 ed.). The judge allowed substantial discussion of the issue (the issue takes up over thirty pages of the record), and ultimately concluded, "I don't think that's relevant enough. I don't think it's similar enough. I don't think there's anything about [the earlier incident] that even approaches this." The judge also considered the remoteness in time and place of the earlier incident alleged by the State. We find no abuse of discretion. This issue is without merit.

We reject Kimbrough's contention in issue 3 that it was error for the trial judge not to find Kimbrough's age as a statutory mitigator. We discussed the age mitigator in Ellis v. State, 622 So. 2d 991 (Fla. 1993). There we said: Whenever a murder is committed by one who at the time was a minor, the mitigating factor of age must be found and weighed, but the weight can be diminished by other evidence showing unusual maturity. It is the assignment of weight that falls within the trial court's discretion in such cases. Id. at 1001. Here, the defendant was not a minor--he was nineteen at the time of the offense. The trial court may find or decline to find age as a mitigating factor in respect [638] to a defendant who is nineteen depending upon the circumstances of the particular case. See, e.g., Merck v. State, 664 So. 2d 939, 942 (Fla. 1995); Peek v. State, 395 So. 2d 492, 498 (Fla. 1980). Thus, there was no abuse of discretion in failing to find the factor as a statutory mitigator here. This issue is without merit.

Kimbrough contends in issue 4 that his death sentence is disproportionate. There are three aggravators present: prior violent felony, committed during the course of a felony, and HAC. There was no statutory mitigation and weak nonstatutory mitigation. Kimbrough's death sentence is not disproportionate to other similar cases. See, e.g., Geralds v. State, 674 So. 2d 96 (Fla. 1996) (upholding the death sentence where there were two aggravators and weak mitigation); Taylor v. State, 630 So. 2d 1038 (Fla. 1993) (upholding the death sentence where there were three aggravators and evidence of mental retardation in mitigation). This issue is without merit.

Kimbrough's contention in issue 5 that the trial court erred both in instructing the jury on HAC and in finding the factor proven is without merit. The record contains voluminous evidence of suffering. The trial court gave extensive consideration to this factor in the sentencing order: On October 3, 1991, the Defendantentered the second-story apartment of the victim, Denise Collins, as she lay in bed alone late at night. The victim was a 28-year old female, 5 feet 4 inches tall, 112 pounds who lived in that apartment alone. The evidence indicates that the Defendant used a ladder to climb onto the balcony and get through the sliding glass door. He raped Ms. Collins. She had contusions on her upper arms and left side of face. The evidence presented by the Medical Examiner, Dr. Thomas Hegert, was that there were a minimum of three blows to the head, one of which would have rendered her unconscious. Her skull was fractured by a blunt force. There was blood on the wall as well as the bed, the carpet, and numerous items strewn throughout the room indicating a struggle. The Medical Examiner could not say in what sequence the blows to her head were inflicted, but that the one that fractured her skull would have rendered her unconscious. If she were rendered unconscious immediately, perhaps this crime would not be so hideous. The Medical Examiner, naturally, cannot determine which blow was first because they were all too close in time; however, there is other evidence that this crime involved quite a struggle. There was blood all over the room. The victim was still alive when she was found by the paramedics on the floor. She even sat up at one point when law enforcement was there. She regurgitated. Heroic efforts were made to save her life; however she died at the hospital about 12 hours after the attack. There was semen found on the bottom sheet of Ms.Collins' bed. It was matched to the Defendant through DNA.

The last moments of Denise Collins['] life were a nightmare. First, she discovered a stranger in her bedroom, then she was raped by that stranger. After that she was beaten, and her head was banged against the wall. She had to be in unspeakable fear and pain. Although no exact time period over which this hideous crime occurred has been established, based on the activities that took place and the extent of blood splattered throughout the room it was not quick. This is a thorough analysis supporting the factor, and clearly satisfies the standard Kimbrough himself quotes from Buenoano v. State: "[A] homicide is especially heinous, atrocious or cruel when 'the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies--the conscienceless or pitiless crime which is unnecessarily torturous to the victim.'" 527 So. 2d 194, 199 (Fla. 1988) (quoting State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973)). We find no error.

We disagree with Kimbrough's contention in issue 6 that the trial court erred in excusing a juror for cause over defense objection. The standard for determining whether a prospective juror may be excused for cause because of his or her views of the death penalty is whether the juror's [639] views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the juror's instructions and oath. Castro v. State, 644 So. 2d 987, 989 (Fla. 1994). It is within the trial court's discretion to determine if a challenge for cause is proper, and a trial court's determination of juror competency will not be overturned absent manifest error. See Mills v. State, 462 So. 2d 1075, 1079 (Fla. 1985). On her jury questionnaire, the prospective juror expressed strong reservations about her ability to be impartial as to the death penalty issue. During voir dire, she stated that she was personally acquainted with two people on death row: one was a former schoolmate, the other was the father of her oldest child. She repeatedly expressed uncertainty about serving on a death penalty case, and she said her relationship with the two death row inmates would make it difficult for her. At one point, the following exchange took place: [Prosecutor]: Do you feel like you at this point can be completely fair and impartial in judging issues of the death penalty in Orange County having had a personal relationship with people who were [on death row]? Juror: No. No. [Prosecutor]: You don't think you can? Juror: No. Although the prospective juror did respond in the affirmative to a question by the defense attorney asking if she could follow the oath she would be administered and apply the law as instructed by the judge, she had clearly expressed uncertainty several times during the interview. Based on our complete review of the voir dire of this juror, we do not find that the trial court abused its discretion in excusing this juror for cause.

We reject Kimbrough's contention in issue 7 that it was error for the trial court to find that the murder was committed during the course of a sexual battery. Kimbrough makes two arguments: (1) there was no proof that asexual battery occurred, and (2) there was no proof that the murder was committed during the sexual battery. Both of these arguments are without merit. There is ample evidence that the sexual activity evidenced through the DNA samples was nonconsensual. There was evidence that Kimbrough snuck into the victim's apartment by using the ladder outside her balcony, there were multiple bruises all over the victim's body, there was vaginal injury, there was blood on her bed, there was blood on the wall and carpet of her bedroom, and there was evidence of a struggle throughout her apartment. There is ample evidence to support the conclusion that a sexual battery occurred. See Gilliam v. State, 582 So. 2d 610, 612 (Fla. 1991) (common-sense inference from the facts presented was that victim struggled with her assailant and suffered before she died, supporting HAC aggravator); Swafford v. State, 533 So. 2d 270, 277 (Fla. 1988) (the victim's mental state may be evaluated in accordance with a common-sense inference from the circumstances). Kimbrough's argument that it is impossible to tell whether the murder actually occurred during the sexual battery is also without merit. The battery and the murder were clearly part of the same criminal episode. See Roberts v. State, 510 So. 2d 885, 888 (Fla. 1987) (Although "it is clear from the record that the murder did not occur 'during' the actual sexual battery . . . the murder . . . and subsequent sexual battery and kidnapping . . . were part of the same criminal episode."); Jefferson v. State, 128 So. 2d 132, 137 (Fla. 1961) ("It is a homicide committed during the perpetration of a felony, if the homicide is part of the res gestae of the felony."). Because there was competent and substantial evidence to support this aggravator, we will not overturn the trial court's finding. See Swafford, 533 So. 2d at 277 (When an aggravating circumstance has been established, "the finding should not be overturned unless there is a lack of competent, substantial evidence to support it.").

Finally, Kimbrough's contention in issue 8 that section 921.131, Florida Statutes (1993), is unconstitutional has no merit. We reject this claim without discussion. See, e.g., Foster v. State, 679 So. 2d 747, 752 (Fla. 1996). Accordingly, we affirm the convictions and sentence. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.

Kimbrough v. State, 886 So. 2d 965 (Fla. 2004). (PCR)

Procedural Posture

Defendant challenged the decision of the Circuit Court in and for Orange County (Florida), which denied his motion for postconviction relief under Fla. R. Crim. P. 3.850 that was filed after he was convicted of first degree murder and sentenced to death and after the court affirmed the conviction and sentence on direct appeal. Defendant also filed a petition for a writ of habeas corpus.

Overview

Defendant's convictions related to the murder and sexual assault of a victim. Affirming the denial of defendant's Rule 3.850 motion and denying his petition for habeas relief, the court held that (1) defendant's Ake claim was properly denied because defense counsel weighed the mitigation evidence that the mental health experts could have presented against the potential risks of having them testify and made a strategic decisions to exclude mental mitigation evidence; (2) the summary denial of several challenged claims without an evidentiary hearing was proper because, inter alia, there was no basis in the record for alleging that trial counsel's decision not to voir dire an expert witness for the State constituted deficient performance and it was clear that counsel's failure to rehabilitate an African-American juror during voir dire would have failed; and (3) Florida's death penalty scheme was not unconstitutional under Apprendi or Ring, especially where the trial court found a violent felony aggravator, and defendant's claim that his Eighth Amendment right would be violated as he may be incompetent at the time of execution was not ripe until the Governor issued a death warrant.

Outcome

The court affirmed the denial of defendant's post-conviction relief motion and denied his petition for a writ of habeas corpus.

PER CURIAM.

Darius Mark Kimbrough appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. 1 We affirm the circuit court's order denying Kimbrough's rule 3.850 motion, and we deny Kimbrough's petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Kimbrough was convicted of first-degree murder on July 1, 1994, and was sentenced to death on December 9, 1994. His conviction and sentence were affirmed by this Court on direct appeal. The relevant facts as taken from the opinion on direct appeal are: Kimbrough was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one. The victim, Denise Collins, was found nude and semi-conscious in her bathroom by paramedics; she was covered with blood. The sliding glass door to her second floor apartment was partially open, and there were some ladder impressions under the balcony. Collins was rushed to the hospital, where she died soon thereafter.

The officers took semen evidence from the bedsheets, took blood evidence from [969] the victim, and found pubic hairs in the bed and in a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis. A resident of the apartment complex--Lee--told officers that he had twice seen a man in the vicinity of the apartment and had seen a ladder on the apartment's balcony. Officers were unsuccessful in searching for the man, but later Lee identified Kimbrough from a picture lineup. A workman in the complex--Stone--identified Kimbrough as a man who had watched him putting away a ladder in the complex around the time of the murder. The DNA evidence showed that the semen taken from the bedsheets was compatible with Kimbrough's, and some of the pubic hairs matched his. There were, however, additional pubic hairs from another unidentified black man and a caucasian male. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough's. The medical examiner testified at trial that the victim had a fractured jaw and fracturing around her left temple. The cause of death was hemorrhaging and head injury in the brain area resulting from blunt injury to the face. There was also evidence of vaginal injury, including tears and swelling consistent with penetration. There were bruises on her arms. The defense's theory suggested that the victim's ex-boyfriend--Gary Boodhoo--had committed the crime since he was with the victim shortly before, had used a ladder before at her apartment, had a key, and had beaten her previously. The evidence of prior beating was excluded.

Kimbrough filed a rule 3.850 motion on July 30, 1998, and an amended motion on March 10, 2000, raising twenty claims. 2 [970] The court held a Huff 3 hearing on September 22, 2000. At the hearing, Kimbrough dropped three of his claims, 4 and the court granted an evidentiary hearing on three other claims. 5 On April 26, 2002, after an evidentiary hearing, the court issued a detailed twenty-seven-page order denying Kimbrough 3.850 relief on all of his claims. This appeal followed. Kimbrough appeals the denial of relief on claim nineteen and the denial of an evidentiary hearing on claims two, four, six, seven, and eighteen. Kimbrough also petitions this Court for a writ of habeas corpus.

I. AKE CLAIM

Kimbrough alleges that his trial counsel was ineffective and deprived him of the expert mental health assistance required by Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985). He alleges that defense counsel was ineffective for failing to call mental health experts, for failing to provide mental health experts with sufficient background information, and for failing to present statutory and nonstatutory mitigating evidence. The State argues that the two experienced defense attorneys in this case provided extensive background evidence to the jury and hired two well-qualified experts to examine Kimbrough prior to the penalty phase. The State argues that trial counsel made a reasonable strategic decision not to present expert testimony during the penalty phase. Testimony from the evidentiary hearing on this claim is summarized below.

Testimony of Defense Counsel

Kimbrough was represented at trial by two attorneys, Patricia Cashman and Kelly Sims. Both Sims and Cashman are [971] very experienced in capital cases. Cashman testified that Dr. Eric Mings, a forensic criminal psychologist, was retained to conduct a psychological evaluation of Kimbrough and was originally listed as a defense witness. On February 11, 1994, prior to trial, Cashman filed a notice striking Mings from the witness list. Mings was removed from the list quickly so that the State could not depose him. Although she could not recall all of the reasons she had for striking Mings from the witness list, she stated that one of the reasons she struck Mings was because of the things Mings said about Kimbrough being a "psychopathic deviant" and the fact that she thought such testimony would hurt him in front of the jury. Cashman testified that the decision not to call Mings was a joint decision, made by her and Sims, and stated that before making such a decision she would have asked Mings whether he thought he could be helpful as a witness. At the hearing, Cashman reviewed a note she wrote while preparing for the Kimbrough trial. The note reflected that Kimbrough denied having any problems, had relatives in Tennessee, was raised by his stepfather, and had no history of abuse. The "worst thing that happened to him" was that his cousin was killed at the age of sixteen. Kimbrough won talent show trophies for singing and had an intelligence quotient (IQ) of seventy-six, which was in the fifth percentile on the Wechsler Adult Intelligence Scale test (WAIS). He had an MMPI (Minnesota Multiphasic Personality Inventory) which was valid, but defensive. The note also stated that there was a spike on "scale four, psychopathic deviant 6 endorsing items consistent with family discord, other scales normal." She did not recall what exactly Mings told her about the psychopathic deviate scale. Cashman had defended a number of cases prosecuted by Jeff Ashton, the prosecutor in this case, and was familiar with him and his trial tactics. She stated that Ashton liked to use a spike on scale four of the MMPI "to make my client look really dangerous and make the jury scared of him and want to kill him."

In addition to Mings, Cashman retained Dr. Robert Berland, a forensic psychologist, to conduct a pretrial evaluation of Kimbrough. Cashman apparently retained Berland in an attempt to find an expert who might be more favorable to Kimbrough for mental health mitigation purposes. Although Berland thought there were mental health issues which could have been presented at the penalty phase, he thought they would be difficult to present to the jury. Cashman chose not to put Berland on the stand because she thought he would testify that Kimbrough had "hidden craziness." She was concerned that the prosecution would portray Kimbrough as faking mental illness and noted that Berland's intelligence testing, which gave Kimbrough an IQ of ninety-four, placed him in the normal range of intelligence. Cashman was aware that the cutoff for mental retardation was seventy and that seventy-six reflected a low IQ. Cashman testified that she always ensured the mental health experts she retained had adequate background information on her clients. She recalled that Kimbrough's family members were not particularly cooperative in this case.

Kelly Sims, Cashman's cocounsel, was certain that he had telephone conversations with Mings prior to the time Cashman wrote the note that was found in Kimbrough's file. Sims stated that his practice at the time was not to write notes that could prove harmful to his client because he thought they could fall into the wrong hands. Although he said Cashman was better at taking notes than he was, "she was specifically never going to put anything down that may hurt her client." Sims explained any absence of notes from Cashman is evidence "that something bad happened because she is a prolific note-taker." He did not recall any specific reasons for striking Mings from the witness list but said, "[I] know we must have talked about it and I was in agreement with it." Sims further stated that if he had thought striking Mings was a mistake, he would have relisted him. Sims testified that he thought Berland was retained as a second opinion to try to develop some mental health issues. He did not recall whether retaining Berland was his idea or Cashman's. Sims testified that there was nothing in the public defender file that would tell him why Berland was not used but stated that the decision would have been made based on what Berland was going to testify to at trial.

With regard to waiving potential mental health mitigation, Sims testified that while others may have had input on the decision, ultimately it was his choice and his decision. He did not remember discussing with Kimbrough the decision not to present mental health mitigation. Sims testified that he did not want any record discussion of the issue and said, "I just did not want to bury any hope for Mark Kimbrough later down the line. And I think that's what Ashton was trying to do. And that's not my job to help clean up the State's case." Sims stated: "I know that in my relationship with Mr. Kimbrough I had laid out everything that we did and talked about the pros and cons of it and thought I would make some coherent cohesive argument about why we had to do A, B, or C and spent hours talking about it." But, Sims thought he did not have a very good level of communication with Kimbrough. When asked about the theme of any mitigation defense, Sims stated: I recall that the theme was thread bare, that the main theme was that it didn't seem Mark had all that high of an IQ with respect to just dealing with figuring out problems in his life. It seemed like he had a lot of people that loved him and a lot of family that embraced him and that kind of can be contra to finding good mitigation going because people were kind of, I mean, his family wanted him and wanted to help him and I guess there was a little bit of, back when he was a teen, I can recall that some of the family members saying we wanted him to live with us and they said, no, we want him to live with us. I know he was a skilled singer. He had gifts to share in that field. But as far as being able to show physical abuse or sexual abuse and some kind of brain injury or organic brain dysfunction, I don't recall us having any of that.

Sims thought that a low IQ was a potential mitigator but noted that there are plenty of inmates on death row who have been found to have IQs similar to Kimbrough's. Moreover, Sims stated that part of his argument during the guilt phase was that Kimbrough would have been really dumb to rape and murder a girl in his own apartment complex, to let another person see him with a ladder, and to then watch the next morning while all of the crime scene investigators and detectives were there. Sims worried that if they presented the low IQ evidence, it might have led the jury to think, "Well, he might be a [973] dope, so he would do something that would [make it] easy to catch him."

Testimony of Prosecutor

[M]y experience generally is that when you ask for a definition of what does psychopathic mean, the definition you get is one of someone, you know, who lacks a well-developed conscience, you know, does not feel remorse, guilt, things of that general way. So it's something that it's hard to spin that as positive or sympathetic in my experience. Ashton stated that if he had known a scale four would come up, he would have used experts to characterize Kimbrough as dangerous. He would have gone into the characteristics of psychopathy, would have quoted some of the "less favorable descriptions of psychopaths," and would have equated psychopathy to antisocial personality disorder. He also stated he would have questioned expert witnesses about their knowledge of Kimbrough's prior criminal acts, both charged and uncharged, and would have asked about previous known acts of violence. As to a potential "remorse" mitigator, Ashton testified that "expressions of remorse, when you're in jail, after you've been caught and convicted, you know, are risk for argument of the insincerity of the supposed remorse." He further noted that the remorse argument opens the door to testimony as to the actions or conduct of the defendant that are inconsistent with remorse. Questions of character and the like generally open the door to questions about the full range of the defendant's possible misconduct. In this case, it might have opened the door for evidence that Kimbrough had previously been involved in a gang fight.

Testimony of Defense Investigator

The State called Barbara Pizarroz, the defense investigator. In the course of investigating Kimbrough's case, Pizarroz spoke with some twenty-two witnesses, obtained school and medical records, and spoke with Dr. Berland in an attempt to find some supporting data for brain damage. She met with Kimbrough's family members, friends, teachers, and coaches. Pizarroz traveled to Memphis as part of her investigation. She also met with Kimbrough on a number of occasions. She testified that for the most part he had a family who loved him. Pizarroz testified: For the most part, and I just don't want to get personal, but for the most part he has a family who just absolutely loves him. They spoke well of him, very caring. They were, you know, all totally devastated by this incident. And for the most part, you know, he had a family that absolutely loved him. But he was kind of shuffled from family member to family member, you know, when he was young. As far as his parents are concerned, that was a situation where Mark . . . learned as a young boy that he was fathered by someone other than who he believed to be his father. And then he became involved with another gentleman who was with his mom for, I don't know, six or eight years who took on a father figure. Prior to Kimbrough's trial, Pizarroz had worked on a number of cases with Berland, obtaining information that Berland needed to make his evaluation. In general, she was familiar with what information a mental health expert would need in a first-degree murder case. By the time she investigated the Kimbrough case, she had worked dozens and dozens of cases where the mental health aspect of a case was important. Pizarroz was also familiar with Mings and had supplied information to him for past evaluations.

Testimony of Mental Health Experts

Mings testified that a spike on scale four, psychopathic deviate, is not a formal DSM 7 diagnosis. He could not recall diagnosing Kimbrough with antisocial personality disorder, but it was possible that he discussed antisocial personality with Cashman as a possible diagnosis for Kimbrough. He stated that scale four of the MMPI measures traits which are found in persons with antisocial personality disorder but noted that such traits can also be found in normal people. Mings spent about eight hours with Kimbrough in testing and then another seven hours or so scoring the tests, reviewing background materials, and talking to attorneys. He requested an additional five hours for background material, and while he had no clear recollection, his impression was that he did not get much from Kimbrough and wanted to talk to other people to find out more details.

They are: a felony was committed while under the influence of extreme mental disturbance, felony committed while under the influence of extreme emotional disturbance, and mental is different than emotionally, capacity to appreciate the criminality of his conduct was substantially impaired, capacity to conform his conduct to the requirements of law was substantially impaired.Age of the defendant at the time of the crime clearly, clearly, multiple severe impairments in that area, these are the statutory ones. Mosman testified that his review of the record and applicable case law revealed some thirty nonstatutory mitigators that could have been argued to the jury. Mosman stated: The 30 are clearly a potential, an ability to be rehabilitated. There is a lack of family life that's separate. And background. [975] Those are not the same ones. To collapse them is a complete misunderstanding of what the mental health process and the development of the child is all about. There was history of neglect, disadvantage or deprived childhood, clearly educational deficits, emotional impairments, and results of any emotional disturbance. Those are separate and separately found in forensic materials and training in cases, emotional disturbance, even if not extreme. There is extreme mental or emotional disturbance which is separate again, mental impairments, both cognitively and intellectually in the record. It's right in the data base. Medical problems or history of injuries that is in the records, utilization, drugs or alcohol, previous contributions to the community or society. That was, is, and existed in the records. Psychological difficulties.

There is another one that's recognized and it's a tongue twister. It's called iatrogenises from the systems and it's spelled "iatrogenises." Forensically, that's described as systems aware of problems and fail to deal with it. And we'll get into what that means later. Remorse, positive confinement record, excuse me, and because I am testifying today and all of those record we would add another one, a good prison record. There is another one, behavior during trial. Those are disjunctive, not the same thing at all. Non anti-social personality, cannot be diagnosed, and that has to be a non-statutory mitigator in these types of situations. Can function in a structured environment. That's a separate one. Crime, itself, was out of character to the preincident situation Another one, he lost his cousin several years ago. Any impact that had on him. Failure to maintain relationship with family members that is in the records and it has been separately to be found mental health related non-statutory mitigators. Mild brain abnormality. I will say that again. Mild brain abnormality. M.V.D. mental, grew up without a father is separate from the background issue and lack of family life, educational difficulties, positive traits and I can't even read my handwriting here. Yes. I can. Mental and emotional handicaps, so those in a summary and while I understand some sound similar, they are actually different but the last one or two perhaps from a real technical mental health perspective, they are separate they enter play out on what was going on here so I think that if you count them up, that would be 30 non-statutory and 5 statutory from a mental health perspective. Mosman also testified that Kimbrough had an extreme emotional disturbance at the time of the crime due to various stressors which were acting on his life.

Mosman stated that Kimbrough's capacity to conform his conduct to the requirements of the law was substantially impaired. This impairment was based upon the lack of "stability" or "consistency" in Kimbrough's upbringing. During his upbringing, Kimbrough learned that if he had emotional needs he had to take care of them himself. In support of the statutory age mitigator, Mosman explained that "[a]ge has to do with mental age, developmental age, social age, intellectual age, moral age." Kimbrough rated a ten percentile rating "from all the years of academic functioning." His school records also reflected annual testing where "76 out of 100 of his same age peers were educationally much more sophisticated and skilled than he." [976] Mosman calculated that based on an IQ of seventy-six, Kimbrough had the intellectual efficiency of a thirteen-year-old child. Kimbrough's emotional age, his ability to relate and engage in mature interpersonal relationships, was also low.

On cross-examination, Mosman acknowledged that this was not the first time he had testified in a capital case that a defendant's mental age does not match his chronological age. He had previously testified that a thirty-eight-year-old man had the mental or developmental age of a fourteen-year-old. Mosman was not aware that this Court upheld the trial court's rejection of this proposed mitigator because his opinion was contradicted by the other twenty-five witnesses called by the defense during the penalty phase. He agreed that none of the various IQ test scores in this case placed Kimbrough in even the mild mental retardation range. Mosman noted that Pizarroz found notes from a long-term girlfriend of Kimbrough's who said that he was well-mannered and stated that Kimbrough was able to maintain relationships with "cousins, aunts, uncles, people that he met." Relying on this evidence, Mosman testified that a jury could conclude that the Collins rape and murder, followed by one other rape 8 was out of character for Kimbrough. Mosman referred to a Federal Bureau of Investigation manual describing the various types of rapes and concluded that Kimbrough's second rape fit the "expressions of relationship fantasies" category. On cross-examination, however, Mosman agreed that his testimony concerning relationship "fantasy rape" was made without having talked to Kimbrough about what he was thinking at the time he committed the rape. Mosman stated that mild brain abnormality might be found in the frontal lobe and "could have been argued." He thought the Weschler and MMPI tests could be used to argue brain damage or abnormality even though a PET scan rendered a normal reading. Although Mosman did not administer any tests to Kimbrough, he thought referrals could have been made to obtain additional testing. Mosman noted that Kimbrough exhibited no evidence of a conduct disorder prior to the age of fifteen, was not aggressive, was not a disciplinary problem in school, and behaved well with his family. Accordingly, Mosman said that antisocial personality disorder could not be diagnosed in this case.

On cross-examination, Mosman said that he has been called to testify in thirty to thirty-five homicide and capital postconviction cases in Florida since 1990. In each of these cases, Mosman was called by the defense. When asked about the underlying data to support his opinion that the statutory mental mitigators applied at the time of the crime, Mosman asserted that he relied upon Kimbrough's traditional level of functioning. However, Mosman agreed that he did not talk to Kimbrough's mother, his other relatives, his friends, or his girlfriend to see if Kimbrough was somehow disordered in his thoughts at the time of the Collins murder. Mosman said that he did not do so because "they would have, in all probability, no information on that issue at all."

In rebuttal, the State called Dr. Sidney Merin, a psychologist specializing in clinical psychology and neuropsychology. Merin conducted a court-ordered neurological and psychological examination of Kimbrough. He also reviewed background materials relating to Kimbrough and the [977] criminal proceedings against him. Merin interviewed and tested Kimbrough for just over six hours. He administered an IQ test and testified that Kimbrough had a full scale IQ of eighty-one, which is in the low average range. Merin thought that Kimbrough had a learning disability and that his "fund of information" was low. Merin also administered other tests which placed Kimbrough in the lower end of the average range. Merin stated: "I would conclude that he's probably in the low average range overall." Merin testified that tests performed on Kimbrough revealed a statistically significant elevation in the psychopathic deviate scale. As to the significance of this result, Merin stated: What you're more likely to say is this represents a significant degree of real rebelliousness in the personality, a significant degree of superficiality, an inclination not to become deeply, emotionally involved with others, although on the surface they can appear very nice. They make a good first impression. And after you talk with them a while, you begin to see what they're saying doesn't fit together, doesn't seem to - - it's not that it doesn't make sense, but it seems to be self-serving. Also found with people who have conflict with authority, who are manipulative, who are confidence people, who can act impulsively, who can defy the rules, who can be insensitive to the feelings of others, have a lot of difficulty with empathy. These are people who sometimes have a history of being under-achievers. Or, again, they may be impulsive, may have a tendency to blame their family for whatever occurs to them or blame other people for whatever occurs to them, although projection on this scale is not necessarily a prominent feature.

Merin testified that based on the results of all the tests he administered, he did not find that Kimbrough suffered from a serious emotional or mental disorder. However, he did find an Axis II, or behavioral disorder, and a general personality disorder with borderline and antisocial features. Merin also diagnosed a learning disability, which was due to Kimbrough's personality characteristics and not due to brain damage. As far as brain functioning, Merin said that he did not see any problems. Merin testified that he would not have found any statutory mitigating circumstances in this case. As a single nonstatutory mitigator, Merin might have found a borderline personality disorder which had its underpinnings possibly in Kimbrough's unstable early childhood. He noted, "that's a rather mild non-statutory." Merin did not find any evidence that Kimbrough suffered from an extreme mental or emotional disturbance at the time of the crimes and did not find any evidence that Kimbrough's capacity to appreciate the criminality of his conduct at the time of the crime was substantially impaired.

Merin did not find evidence to support a conclusion that Kimbrough's developmental or emotional age was less than his chronological age. Merin also did not agree that Kimbrough qualifies for a borderline intellectual functioning diagnosis, stating: Well, first of all, I don't agree with your definition of borderline because--I don't agree with it because he's got many areas where he's perfectly average. So I would not in any way--I would not in any way suggest that he has a borderline, whatever it was, diagnosis that you're referring to. And you asked which ones? Well, let's just take a look at it. I referred to them earlier. We can take a look at it again. Average vocabulary, average verbal abstraction [978] scores, average visual reasoning, average nonverbal comprehension skills and several of those are just a smidgin below average. So I would not in any way suggest that he's got that borderline intellectual deficit. If you're just gonna use a number--which doesn't really mean anything, any psychologist will tell you those IQ numbers don't mean anything, because next week it could change. What you look for are levels and the way it's distributed.

Trial Court's Findings

In its order denying Kimbrough's 3.850 motion, the court devoted eight pages to the resolution of Kimbrough's Ake claim and set forth its factual findings. The court agreed that Cashman misunderstood the significance of the psychopathic deviate scale but noted that Sims, who understood the scale, concurred with striking Mings. The court held that the decision not to call Mings and Berland was a reasonable trial tactic. The court found that Kimbrough failed to establish that additional materials or preparation would have enabled Mings, Berland, or any other doctor to conduct a more thorough mental health evaluation or to provide mitigation testimony sufficient to outweigh any of the potential risks associated with their testimony. As to the potential mitigation found by Mosman, the court noted that he did not conduct any independent testing and that there were no witnesses at the evidentiary hearing who could have presented direct evidence regarding these potential mitigators. The court further concluded that many of the mitigators cited by Mosman would have been given little or no weight.

A. APPLICABLE LAW
1. Standard of Review
Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the test espoused in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In order to prevail, the defendant must first show that counsel's performance was deficient, which requires a showing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Second, the defendant must show that the deficient performance prejudiced the defense, which requires a showing "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Absent both showings, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. In reviewing counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In determining whether counsel's performance amounted to ineffective assistance, an appellate court must conduct an independent review of the trial court's legal conclusions while giving deference to the trial court's factual findings. Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999).

2. Ineffective Assistance of Counsel

The United States Supreme Court held in Ake that where an indigent defendant demonstrates to the trial judge that his sanity at the time of the offense will be a significant factor at trial, the State must "assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83. In Ragsdale v. State, 798 So. 2d 713 (Fla. 2001), this Court noted that "an attorney has a strict duty to conduct a reasonable investigation of a defendant's background for possible mitigating evidence." 798 So. 2d at 716 (quoting State v. Riechmann, 777 So. 2d 342, 350 (Fla. 2000)). The record in Ragsdale established that "counsel essentially rendered no assistance to Ragsdale during the penalty phase of trial." Ragsdale, 798 So. 2d at 716. The Court stated that "the record at the 3.850 evidentiary hearing conclusively establishes that counsel failed to investigate and present at the penalty phase an abundance of potential mitigating evidence." Id. At the evidentiary hearing, Ragsdale presented the live testimony of three siblings and the deposition testimony of two other siblings who testified as to Ragsdale's extensive history of abuse during his childhood. Id. The court stated:

Dr. Berland [the defense psychologist] concluded that Ragsdale was psychotic at the time of the offense, and thus the statutory mitigating circumstances of extreme mental or emotional disturbance and inability to conform to the requirements of law applied in the instant case. Dr. Berland also identified a list of nonstatutory mitigating factors including organic brain damage, physical and emotional child abuse, history of alcohol and drug abuse, marginal intelligence, depression, and a developmental learning disability. Id. at 718. Although the State's expert witness did not agree that Ragsdale was psychotic and had suffered organic brain damage, he offered no opinion as to the applicability of the statutory mental mitigators. The State's witness admitted that Ragsdale had a severe learning disability, that Ragsdale's IQ score was in the borderline retarded range, that Ragsdale's brain was impaired, and that Ragsdale had a personality disorder with paranoid features. Id. On this basis, the Court held that "the conclusion is inescapable that there was available evidence from experts which would have supported substantial mitigation but which was not presented during the penalty phase." Id. The Court distinguished Ragsdale from Cherry v. State, 781 So. 2d 1040 (Fla. 2000), and Asay v. State, 769 So. 2d 974, 988 (Fla. 2000). In Cherry, the Court denied an ineffective assistance of counsel claim because Cherry was uncooperative and precluded his counsel from investigating and presenting evidence in mitigation. In Asay, the Court affirmed the rejection of an ineffectiveness claim where the attorney was informed of the defendant's abusive background and, after contacting potential witnesses, made a strategic decision to forego the presentation of nonstatutory mitigation to avoid "opening the door to damaging cross-examination regarding [defendant's] violent past." Asay, 769 So. 2d at 988. The Court held that "defendant's attorney was not deficient where after receiving an initial unfavorable report from the examining psychologist the attorney decided to discontinue his investigation for mental mitigation evidence." Id. at 986; see also Jones v. State, 732 So. 2d 313, 320 n.5 (Fla. 1999) (affirming trial court's finding that counsel had made reasonable tactical decision to forego further investigation of mental health mitigation evidence after receiving initial unfavorable diagnosis); Correll v. Dugger, 558 So. 2d 422, 426 (Fla. 1990) (a mental health examination is not inadequate simply because a defendant is later able to find experts to testify favorably based on similar evidence).

B. APPLICATION OF LAW

Kimbrough asserted that defense counsel was ineffective for failing to call Mings and Berland, for failing to provide Mings [980] and Berland with sufficient background information, and for failing to present statutory and nonstatutory mitigating evidence. Although this Court conducts an independent review on questions of law, it must give deference to the trial court's factual findings.

1. Failure to call Dr. Mings or Dr. Berland

The court found that there was insufficient testimony presented at the evidentiary hearing to establish either deficient performance or prejudice on the part of defense counsel for failing to call Mings or Berland at trial. The court found that Cashman's repeated references to the "psychopathic deviant" scale suggest that she did not fully appreciate the significance of the MMPI results and may have thought the evidence was more harmful than it actually was. However, the court noted that Cashman's cocounsel, Kelly Sims, understood the meaning of the scale and stated that he also would not have presented the evidence. Cashman stated that there were mental health issues which could have been presented as mitigation but asserted that Berland would have found them difficult to present, and Cashman was concerned that the State would portray Kimbrough as someone who was faking mental illness. Sims was also concerned that Mings would testify that Kimbrough had no morals and would do whatever he wanted to do. He agreed that the defense could not risk opening the door to the introduction of a lot of bad information just to get in a small amount of helpful information. Testimony at the evidentiary hearing corroborated Cashman's concern that Ashton would have used the MMPI results to portray Kimbrough in a bad light. The court concluded that counsel's decision not to call Dr. Mings or Dr. Berland as witnesses was a reasonable trial tactic. We agree with the trial court. Cashman and Sims weighed the mitigation evidence Mings and Berland could have presented against the potential risks of having them testify. The strategic decision Cashman and Sims made not to have Mings and Berland testify at trial was a reasonable trial tactic and did not constitute deficient performance. See Griffin v. State, 866 So. 2d 1, 9 (Fla. 2003) (citing Ferguson v. State, 593 So. 2d 508 (Fla. 1992), and State v. Bolender, 503 So. 2d 1247, 1250 (Fla. 1987) (holding that "strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected")).

2. Failure to Provide Doctors With Sufficient Background Material

Kimbrough alleged that Mings and Berland were not provided sufficient background material to conduct a thorough mental health evaluation. The court held that the supporting facts required for an ineffective assistance of counsel claim in this respect are glaringly absent. No witnesses at trial could recall exactly what records were provided to, or withheld from, the defense experts. 9 Kimbrough did not establish that additional materials or preparation would have enabled Mings or Berland to conduct a more thorough [981] mental health evaluation. The court held that Kimbrough failed to meet his burden of proof. We agree with the trial court's denial of relief on this claim. To establish deficient performance, Kimbrough must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Kimbrough failed to meet his burden of proof in this case.

3. Other Mitigation Evidence

Dr. Mosman asserted at the evidentiary hearing that there were numerous statutory and nonstatutory mitigators which should have been presented at trial. The court noted that Mosman did not conduct any independent testing of Kimbrough and that there was no evidence presented to support the existence of the proposed mitigators or to establish the weight they would have carried if presented to the jury during the penalty phase. The court also concluded that many of the mitigators cited by Mosman would have been given little or no weight. On this basis, the court held that Kimbrough failed to meet his burden of proof. In support of his argument, Kimbrough cites Ragsdale. In Ragsdale, this Court held that counsel was ineffective when counsel presented no mitigation at the penalty phase, and the existence of an abundance of mitigators was undeniably shown at the evidentiary hearing. In this case, the mitigators presented by Mosman were based on speculation and conjecture and were rebutted by the State's expert witness. Additionally, the mitigators would have been given little or no weight by the court. The facts of this case are more similar to those in Asay where the Court affirmed the rejection of an ineffectiveness claim where defense counsel made a strategic decision to forego the presentation of nonstatutory mitigation to avoid opening the door to damaging cross-examination regarding the defendant's violent past. Asay, 769 So. 2d at 988. The Court held that the "defendant's attorney was not deficient where after receiving an initial unfavorable report from the examining psychologist the attorney decided to discontinue his investigation for mental mitigation evidence." Ragsdale, 798 So. 2d at 719. It is clear from the evidentiary hearing testimony in this case that mental health mitigation was investigated and counsel made a strategic decision not to present the mitigation. Counsel's actions in this case were not deficient, and Kimbrough's claims are without merit.

II. SUMMARY DENIAL OF CLAIMS

Kimbrough argues that the trial court erred when it denied an evidentiary hearing on five of the claims in his rule 3.850 motion. The State argues that the court properly denied the claims without a hearing.

A. APPLICABLE LAW
1. Standard of Review

This Court has repeatedly stated the standard of review for summary denial of a rule 3.850 claim: To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant's factual allegations to the extent they are not refuted by the record. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) (citation omitted). A movant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he or she alleges specific "facts which are not conclusively rebutted by the record and [982] which demonstrate a deficiency in performance that prejudiced the defendant." Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999) (quoting Roberts v. State, 568 So. 2d 1255, 1259 (Fla. 1990).

B. APPLICATION OF LAW
1. Claim Two

Kimbrough alleged he was denied the effective assistance of counsel when counsel failed to adequately challenge the credentials of Charles Badger, a Florida Department of Law Enforcement (FDLE) employee and expert witness for the State. At trial, the defense declined to voir dire Badger stating, "We're familiar with Mr. Badger." Kimbrough argues that without an evidentiary hearing he was unable to inquire as to counsel's reasons for not conducting voir dire as to Badger's credentials. The State argued that Kimbrough failed to show how the decision not to voir dire the witness actually prejudiced Kimbrough because he did not allege that Badger was actually unqualified or that any specific damaging facts could have been revealed through further questioning. The trial court stated that Kimbrough's allegations were conclusory and that Kimbrough failed to demonstrate what questions counsel should have asked or how those questions would have impeached Badger's credibility. The court held that Kimbrough failed to demonstrate either deficient performance or prejudice. The record in this case shows that Badger held a bachelor's degree, had been trained as a forensic serologist, and had been qualified to testify in Florida courts "twelve or thirteen times." There is no basis in the record for alleging that counsel's decision not to voir dire Badger constituted deficient performance. Kimbrough has failed to allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant. See Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999). Summary denial of this claim was proper.

2. Claim Four

Kimbrough alleged that his right to a jury composed of a cross-section of the community was violated by counsel's ineffectiveness during voir dire when counsel failed to rehabilitate Mattie Barnwell, one of the few African-Americans on the venire panel. Barnwell stated that she would do away with the death penalty and, although she understood it was part of the law in Florida, she would not be able to go along with the law and swear to follow it. Additionally, Kimbrough alleged that counsel failed to correct the state attorney's inaccurate statement that the juror would have to "take an oath swearing before God to follow the law of Florida," when in fact jurors may either swear or affirm. Kimbrough asserts that without an evidentiary hearing he was unable to inquire as to counsel's reasons for not conducting voir dire as to this juror in an effort to rehabilitate her. The court noted that the standard for determining whether a prospective juror may be excused for cause because of his or her views on the death penalty is whether those views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985). The court also noted that Kimbrough did not offer in his 3.850 motion any specific questions that could have been asked to rehabilitate the juror, and it was unlikely any attempt to do so would have been successful. Based on the statements made by Barnwell, it is clear that any attempt at rehabilitation would have failed. Counsel's performance was not deficient and summary [983] denial was proper. See Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999); see also Reaves v. State, 826 So. 2d 932 (Fla. 2002) (affirming summary denial of ineffective assistance claims where no challenge for cause would have been successful for named jurors and where claims that followup questions would have revealed a basis for cause challenges constituted mere conjecture).

3. Claims Six and Eighteen

Kimbrough alleged that counsel was ineffective (1) when, during voir dire, counsel failed to discover a juror's connection with the FDLE; and (2) when defense counsel failed to move for a mistrial after the State disclosed that the juror, Eddie Julian, had a connection with an FDLE employee. Julian's fiance worked in the FDLE crime lab, and Julian had taken courses in DNA. The State argued that these factors do not establish a reasonable probability that the outcome of the trial would have been different if these facts had been brought out on voir dire. At trial, defense counsel filed a motion for new trial and a motion to voir dire Julian. After a detailed hearing conducted August 8, 1994, at which Julian was thoroughly examined, the court denied the motion for new trial. As the postconviction court stated, "The underlying substance of this claim is clearly Mr. Julian's potential bias, an issue which could have been raised on direct appeal because it was thoroughly addressed at the conclusion of the trial." On this basis, the court rejected the claim as procedurally barred, finding that it could have been raised on direct appeal. To the extent Kimbrough seeks review of the substantive issue underlying his ineffective assistance of counsel claim, we agree. See Maharaj v. State, 684 So. 2d 726 (Fla. 1996) (holding that postconviction relief claims which either were raised or could have been raised on direct appeal were properly denied without an evidentiary hearing); see also Sireci v. State, 469 So. 2d 119, 120 (Fla. 1985) ("Claims previously raised on direct appeal will not be heard on a motion for post-conviction relief simply because those claims are raised under the guise of ineffective assistance of counsel."). As to Kimbrough's claim that counsel was ineffective, Kimbrough has failed to establish prejudice. Thus, summary denial was proper. See Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999).

4. Claim Seven

Kimbrough alleged that counsel was ineffective when counsel failed to move for a mistrial after the State made three improper closing arguments which implied that Kimbrough should have presented certain evidence but failed to do so. At trial, defense counsel objected to each of the three arguments, and the court sustained each objection. The court admonished the prosecutor after the second comment and objection, stating: "You have a tendency to make it like they've got a responsibility here. They don't and that's mistrial material. Don't do it." The court gave two curative instructions during closing argument to inform the jury that the defense was not required to put on evidence. After the jury was excused to deliberate, the court asked Kimbrough if he wanted to request a mistrial. Kimbrough stated that he had spoken with his counsel and agreed that it would not be a good idea to request a mistrial. Kimbrough asserts that without an evidentiary hearing he was unable to inquire as to counsel's reasons for not requesting a mistrial. In Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994), this Court stated: In order for the prosecutor's comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute [984] to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

The court in this case found that the curative instructions were sufficient to correct any misconception in the minds of the jurors, and further found that the comments were simply not prejudicial enough to warrant a mistrial. The court held that counsel's obligations were fulfilled by raising timely objections, and if a new trial had been granted, there is no reasonable probability that the outcome would have been different. Defense counsel timely objected in this case, and the court gave two curative instructions. Counsel then discussed with Kimbrough whether or not he wanted to request a mistrial, and Kimbrough stated that he did not want to request a mistrial. Kimbrough has failed to allege specific "facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant." Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999). Summary denial was proper.

III. HABEAS CORPUS CLAIMS

Kimbrough raises two claims in his petition for habeas corpus. He first argues that Florida's death sentencing statutes as applied are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002). This Court has previously declined to hold that Florida's death penalty scheme is unconstitutional on the basis of Apprendi or Ring. See Bottoson v. Moore, 833 So. 2d 693 (Fla.), cert. denied, 537 U.S. 1070, 154 L. Ed. 2d 564 (2002); King v. Moore, 831 So. 2d 143 (Fla.), cert. denied, 537 U.S. 1067, 154 L. Ed. 2d 556 (2002). Additionally, one of the aggravators in this case was a prior conviction for "burglary of a dwelling with a battery therein" and sexual battery. The prior violent felony aggravator alone clearly satisfies the mandates of the United States and Florida Constitutions. See Doorbal v. State, 837 So. 2d 940 (Fla.), cert. denied, 539 U.S. 962, 156 L. Ed. 2d 663, 123 S. Ct. 2647 (2003). This claim is without merit. Kimbrough next argues that his Eighth Amendment right against cruel and unusual punishment will be violated as he may be incompetent at the time of execution. Kimbrough notes that although a claim of incompetency to be executed cannot be asserted until a death warrant has been issued, federal law requires that, in order to preserve a competency to be executed claim, the claim must be raised in the initial petition for habeas corpus. Under Florida Rules of Criminal Procedure 3.811 and 3.812, the issue of competency for execution cannot be raised until the Governor has issued a death warrant. See, e.g., Cole v. State, 841 So. 2d 409, 430 (Fla. 2003); Brown v. Moore, 800 So. 2d 223, 224 (Fla. 2001). Kimbrough asserts that he raises this claim to preserve his ability to pursue a similar claim in the federal system. Kimbrough's concession that this issue is not yet ripe is accurate. Accordingly, this claim is without merit.

CONCLUSION For the reasons stated above, we affirm the lower court's denial of Kimbrough's rule 3.850 motion and deny Kimbrough's petition for a writ of habeas corpus. It is so ordered. WELLS, PARIENTE, LEWIS, QUINCE, CANTERO and BELL, JJ., concur. ANSTEAD, C.J., concurs specially with an opinion. CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J., specially concurring.

I concur in the majority opinion in all respects except for its discussion of the decision in Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002).

CANTERO, J., specially concurring.

I concur in the majority opinion. Moreover, regarding Kimbrough's claim that Florida's capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, 886 So. 2d 915, 2004 Fla. LEXIS 664, 29 Fla. L.Weekly S 191, S 197-203 (Fla. May 6, 2004), that Ring does not apply retroactively. WELLS and BELL, JJ., concur.

Kimbrough v. Sec'y, DOC, 565 F.3d 796 (11th Cir. Fla. 2009). (Habeas)

Procedural Posture

Petitioner, a death-row prisoner, petitioned for a writ of habeas corpus pursuant to 28 U.S.C.S. § 2254. The United States District Court for the Middle District of Florida denied the petition. On appeal, the prisoner challenged the decision of his state trial counsel not to present mental health mitigation testimony and evidence at his penalty phase as violating his Sixth Amendment right to effective assistance.

Overview

Upon review, the court of appeals concluded that the prisoner's trial counsel made a reasonable strategic decision when deciding not to present mental health evidence at the penalty phase. Trial counsel apparently chose not to have mental health experts testify at the prisoner's penalty phase out of a concern that the limited beneficial information they might have been able to present would have been outweighed by the risk of opening the door to the admission of more damaging information. Although counsel apparently misunderstood the significance of the psychopathic deviate scale as it related to the prisoner, the state prosecutor confirmed that he would have used the spike on this scale to convince the jury that the prisoner was dangerous. Counsel, who knew the prosecutor, testified she was concerned this would happen. Co-counsel testified that presentation of the prisoner's low IQ in mitigation would have been counterproductive to his guilt phase argument that the prisoner did not commit the crime because he would have been really dumb to rape and murder someone in his own apartment complex and then watch while law enforcement officials investigated the crime scene.

Outcome

The prisoner's petition was denied on appeal, as there was no error in the district court's decision.

PER CURIAM:

Darius Mark Kimbrough appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We granted Kimbrough's request for a certificate of appealability on the issue of whether the Florida Supreme Court's determination -- that it was a reasonable trial tactic for petitioner's trial counsel not to present mental health mitigation testimony and evidence at Kimbrough's penalty phase -- is contrary to or an unreasonable application of clearly established United States Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d).

I. Background

Kimbrough was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force. The facts pertinent to Kimbrough's crimes of conviction are recounted in the Florida Supreme Court's opinion on direct appeal. Kimbrough v. State, 700 So. 2d 634, 635-36 (Fla. 1997). The Florida Supreme Court summarized the trial court's penalty phase findings as follows: In the sentencing order, the judge listed three aggravators: prior violent felony, committed during the course of a felony, and heinous, atrocious, or cruel (HAC). To support the prior violent felony aggravator, the judge cited Kimbrough's prior convictions for both burglary of a dwelling with battery therein and sexual battery. The court found that the murder here was committed during sexual battery or attempt to commit sexual battery, citing DNA evidence and bruising, as well as evidence that the victim and defendant did not know each other. HAC was supported by the size of the victim, the three blows to her head causing fracture by blunt force, evidence of a struggle (the room was in disarray), and the amount of blood found around the room. The judge considered age as a statutory mitigator (Kimbrough was nineteen), but rejected it because there was no evidence establishing that he was immature or impaired. The court considered the following nonstatutory mitigation: Kimbrough had an unstable childhood, maternal deprivation, an alcoholic father, a dysfunctional family, and a talent for [798] singing. The court found that the mitigation did not temper the aggravators. Id. at 636.

Kimbrough was subsequently sentenced to death consistent with the jury's vote of eleven to one recommending imposition of the death penalty. 1 Kimbrough unsuccessfully appealed his conviction and sentence of death to the Florida Supreme Court, id., and the United States Supreme Court denied certiorari, Kimbrough v. Florida, 523 U.S. 1028, 118 S. Ct. 1316, 140 L. Ed. 2d 479 (1998).

Kimbrough filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, raising numerous claims regarding ineffective assistance of counsel, the constitutionality of Florida's death penalty, and the right to a fair and impartial jury. See Kimbrough v. State, 886 So. 2d 965, 969 n.2. (Fla. 2004). The state trial court held a hearing pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993), 2 and granted an evidentiary hearing on three of Kimbrough's claims, including his claim that he received ineffective assistance of counsel to the extent that his trial counsel did not provide a competent mental health professional to evaluate him. Id. at 970. After the evidentiary hearing, the state trial court denied Kimbrough relief on all of his claims brought pursuant to Rule 3.850, which the Florida Supreme Court affirmed on appeal. Id. at 984. The Florida Supreme Court also denied Kimbrough's petition for a writ of habeas corpus. Id. Kimbrough then filed the instant federal habeas corpus proceeding, which was denied in its entirety by the district court in Kimbrough v. Crosby, 2008 U.S. Dist. LEXIS 14280, 2008 WL 544867 (M.D. Fla. Feb 26, 2008). We granted Kimbrough's renewed application for a certificate of appealability as to the issue of whether the Florida Supreme Court's determination that Kimbrough did not receive ineffective assistance of counsel because his trial counsel failed to present any mental health evidence in the penalty phase of his trial was contrary to or an unreasonable application of Supreme Court precedent.

II. Standard of Review

Our review of Kimbrough's final state habeas petition is governed by the standards set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. For any claim adjudicated on the merits in state court, § 2254(d) allows federal habeas relief only where the state court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Because the state court adjudicated Kimbrough's claim of ineffective assistance of counsel on the merits, we review whether that decision was "contrary to" or "an unreasonable application" of federal law. A decision "contrary to" federal law contradicts the United States Supreme Court on a settled question of law or holds differently than did that Court on a set of materially indistinguishable facts -- in short, it is a decision "substantially different from the [Supreme Court's] relevant precedent . . . ." Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). A decision that unreasonably applies federal law identifies the correct governing legal principle as articulated by the United States Supreme Court, but unreasonably applies that principle to the facts of the petitioner's case, "unreasonably extends [the] principle . . . to a new context where it should not apply, or unreasonably refuses to extend [it] to a new context where it should apply." Id. at 407.

III. Discussion

In this habeas petition, Kimbrough challenges the Florida Supreme Court's conclusion that his trial counsel, Patricia Cashman and Kelly Sims, were not ineffective, but rather made a reasonable strategic decision when deciding not to present testimony from any mental health professional at the penalty phase of Kimbrough's trial. The Florida Supreme Court extensively described the testimony that was presented at Kimbrough's state post-conviction evidentiary hearing on this issue: Kimbrough was represented at trial by two attorneys, Patricia Cashman and Kelly Sims. Both Sims and Cashman are very experienced in capital cases. Cashman testified that Dr. Eric Mings, a forensic criminal psychologist, was retained to conduct a psychological evaluation of Kimbrough and was originally listed as a defense witness. On February 11, 1994, prior to trial, Cashman filed a notice striking Mings from the witness list. Mings was removed from the list quickly so that the State could not depose him. Although she could not recall all of the reasons she had for striking Mings from the witness list, she stated that one of the reasons she struck Mings was because of the things Mings said about Kimbrough being a "psychopathic deviant" and the fact that she thought such testimony would hurt him in front of the jury. Cashman testified that the decision not to call Mings was a joint decision, made by her and Sims, and stated that before making such a decision she would have asked Mings whether he thought he could be helpful as a witness.

At the hearing, Cashman reviewed a note she wrote while preparing for the Kimbrough trial. The note reflected that Kimbrough denied having any problems, had relatives in Tennessee, was raised by his stepfather, and had no history of abuse. The "worst thing that happened to him" was that his cousin was killed at the age of sixteen. Kimbrough won talent show trophies for singing and had an intelligence quotient (IQ) of seventy-six, which was in the fifth percentile on the Wechsler Adult Intelligence Scale test (WAIS). He had an MMPI (Minnesota Multiphasic Personality Inventory) which was valid, but defensive. The note also stated that there was a spike on "scale four, psychopathic deviant 3 endorsing items consistent with family discord, other scales normal." She did not recall what exactly Mings told her about the psychopathic deviate scale. Cashman had defended a number of cases prosecuted by Jeff Ashton, the prosecutor in this case, and was familiar with him and his trial tactics. She stated that Ashton liked to use a spike on scale four of the MMPI "[t]o make my client look really dangerous and make the jury scared of him and want to kill him."

With regard to waiving potential mental health mitigation, Sims testified that while others may have had input on the decision, ultimately it was his choice and his decision. He did not remember discussing with Kimbrough the decision not to present mental health mitigation. Sims testified that he did not want any record discussion of the issue and said, "I just did not want to bury any hope for Mark Kimbrough later down the line. And I think that's what Ashton was trying to do. And that's not my job to help clean up the State's case." Sims stated: "I know that in my relationship with Mr. Kimbrough I had laid out everything that we did and talked about the pros and cons of it and thought I would make some coherent cohesive argument about why we had to do A, B, or [801] C and spent hours talking about it." But, Sims thought he did not have a very good level of communication with Kimbrough. When asked about the theme of any mitigation defense, Sims stated: I recall that the theme was thread bare, that the main theme was that it didn't seem Mark had all that high of an IQ with respect to just dealing with figuring out problems in his life. It seemed like he had a lot of people that loved him and a lot of family that embraced him and that kind of can be contra to finding good mitigation going because people were kind of, I mean, his family wanted him and wanted to help him and I guess there was a little bit of, back when he was a teen, I can recall that some of the family members saying we wanted him to live with us and they said, no, we want him to live with us. I know he was a skilled singer. He had gifts to share in that field. But as far as being able to show physical abuse or sexual abuse and some kind of brain injury or organic brain dysfunction, I don't recall us having any of that.

Sims thought that a low IQ was a potential mitigator but noted that there are plenty of inmates on death row who have been found to have IQs similar to Kimbrough's. Moreover, Sims stated that part of his argument during the guilt phase was that Kimbrough would have been really dumb to rape and murder a girl in his own apartment complex, to let another person see him with a ladder, and to then watch the next morning while all of the crime scene investigators and detectives were there. Sims worried that if they presented the low IQ evidence, it might have led the jury to think, "Well, he might be a dope, so he would do something that would [make it] easy to catch him."

Testimony of Prosecutor

The State called Jeffrey Ashton, the prosecutor at Kimbrough's trial. Ashton was familiar with Cashman and Sims. Ashton testified that an elevation on scale four, psychopathic deviate, was the one he hoped for on an MMPI. He stated: "It is the one which, just by its name, is most appealing to a prosecutor. Because, when you can argue to a jury that this man has a high psychopathic deviant [sic] scale, just those words alone are a wonderful argument for a jury." The words alone have a negative connotation. Ashton further stated: [M]y experience generally is that when you ask for a definition of what does psychopathic mean, the definition you get is one of someone, you know, who lacks a well-developed conscience, you know, does not feel remorse, guilt, things of that general way. So it's something that it's hard to spin that as positive or sympathetic in my experience.

Ashton stated that if he had known a scale four would come up, he would have used experts to characterize Kimbrough as dangerous. He would have gone into the characteristics of psychopathy, would have quoted some of the "less favorable descriptions of psychopaths," and would have equated psychopathy to antisocial personality disorder. He also stated he would have questioned expert witnesses about their knowledge of Kimbrough's prior criminal acts, both charged and uncharged, and would have asked about previous known acts of violence. As to a potential "remorse" mitigator, Ashton testified that "[e]xpressions of remorse, when you're in jail, after you've been caught and convicted, you know, are risk for argument of the insincerity [802] of the supposed remorse." He further noted that the remorse argument opens the door to testimony as to the actions or conduct of the defendant that are inconsistent with remorse. Questions of character and the like generally open the door to questions about the full range of the defendant's possible misconduct. In this case, it might have opened the door for evidence that Kimbrough had previously been involved in a gang fight. . . .

Testimony of Mental Health Experts

Mings testified that a spike on scale four, psychopathic deviate, is not a formal DSM diagnosis. He could not recall diagnosing Kimbrough with antisocial personality disorder, but it was possible that he discussed antisocial personality with Cashman as a possible diagnosis for Kimbrough. He stated that scale four of the MMPI measures traits which are found in persons with antisocial personality disorder but noted that such traits can also be found in normal people. Mings spent about eight hours with Kimbrough in testing and then another seven hours or so scoring the tests, reviewing background materials, and talking to attorneys. He requested an additional five hours for background material, and while he had no clear recollection, his impression was that he did not get much from Kimbrough and wanted to talk to other people to find out more details.

Dr. Bill Mosman, a forensic psychologist and practicing attorney from the Miami, Florida, area, testified regarding potential statutory and nonstatutory mitigators which were not introduced at trial. Mosman reviewed various materials provided by Berland, reviewed the work of Dr. Sidney Merin, the State's mental health expert, reviewed the sentencing transcript, reviewed school records, and had conversations with Berland. Mosman did not personally examine Kimbrough prior to testifying and did not administer any tests to Kimbrough. He reviewed the defense investigator's file and recognized that Pizarroz "did voluminous amounts of work." From his review of the materials, Mosman thought that "from a statutory point of view, there were 5 statutory mitigators that were available and well reasonably could have been argued. From a hyper technical point of view there were three, but two of those are disjunctive." As to the potential statutory mitigators, Mosman stated: They are a felony was committed while under the influence of extreme mental disturbance, felony committed while under the influence of extreme emotional disturbance, and mental is different than emotionally, capacity to appreciate the criminality of his conduct was substantially impaired, capacity to conform his conduct to the requirements of law was substantially impaired. Age of the defendant at the time of the crime clearly, clearly, multiple severe impairments in that area, these are the statutory ones. Mosman testified that his review of the record and applicable case law revealed some thirty nonstatutory mitigators that could have been argued to the jury. . . .

What you're more likely to say is this represents a significant degree of real rebelliousness in the personality, a significant degree of superficiality, an inclination not to become deeply, emotionally involved with others, although on the surface they can appear very nice. They make a good first impression. And after you talk with them a while, you begin to see what they're saying doesn't fit together, doesn't seem to-it's not that it doesn't make sense, but it seems to be selfserving. Also found with people who have conflict with authority, who are manipulative, who are confidence people, who can act impulsively, who can defy the rules, who can be insensitive to the feelings of others, have a lot of difficulty with empathy. These are people who sometimes have a history of being under-achievers. Or, again, they may be impulsive, may have a tendency to blame their family for whatever occurs to them or blame other people for whatever occurs to them, although projection on this scale is not necessarily a prominent feature. Merin testified that based on the results of all the tests he administered, he did not find that Kimbrough suffered from a serious emotional or mental disorder. . . . Merin testified that he would not have found any statutory mitigating circumstances in this case. As a single nonstatutory mitigator, Merin might have found a borderline personality disorder which had its underpinnings possibly in Kimbrough's unstable early childhood. He noted, "that's a rather mild non-statutory." Merin did not find any evidence that Kimbrough suffered from an extreme mental or emotional disturbance at the time of the crimes and did not find any evidence that Kimbrough's capacity to appreciate the criminality of his conduct at the time of the crime was substantially impaired. . . . Kimbrough, 886 So. 2d at 969-978. (original footnotes omitted).

Based on its review of the evidence presented at the Rule 3.850 post-conviction hearing, the Florida Supreme Court agreed with the trial court that Cashman and Sims's decision not to present any testimony from Dr. Mings or Dr. Berland during the penalty phase was a reasonable trial tactic. Id. at 980. In addition, the Florida Supreme Court concluded that Kimbrough failed to meet his burden in showing that his trial counsel did not provide sufficient background material to Dr. Mings and Dr. Berland. Id. at 981. Nor did Kimbrough meet his burden in presenting [804] evidence to support the existence of possible mitigation evidence suggested by Kimbrough's expert, Dr. Mosman. Id.

Ineffective assistance of counsel claims are governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (citing Strickland, 466 U.S. at 687). A defendant has the burden of establishing deficient performance by showing that "counsel's representation 'fell below an objective standard of reasonableness.'" Id. (quoting Strickland, 466 U.S. at The Supreme Court has not articulated specific guidelines for appropriate attorney conduct, but rather instructs that the standard is one of "reasonableness under prevailing professional norms." Id. As to claims of ineffective assistance of counsel at the penalty phase of the trial, "we consider whether counsel reasonably investigated possible mitigating factors and made a reasonable effort to present mitigating evidence to the sentencing court." Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006).

We have previously explained that a state court's determination that a decision of counsel is "tactical" is a question of fact that we review under a clear and convincing evidence standard. Gaskin v. Sec'y, Dept. of Corrections, 494 F.3d 997, 1003 (11th Cir. 2007). Moreover, the decision that counsel's tactical decision was reasonable, as the Florida Supreme Court concluded in this case, is a question of law we review de novo. Lawhorn v. Allen, 519 F.3d 1272, 1295 (11th Cir. 2008).

After thorough review of the Florida Supreme Court's decision and the evidentiary record in this case, we cannot say that it was contrary to or an unreasonable application of Supreme Court precedent for the Florida Supreme Court to conclude that Kimbrough's trial counsel made a reasonable strategic decision when deciding not to present mental health evidence at the penalty phase of Kimbrough's trial. From what Sims and Cashman recalled, they specifically and deliberately chose not to have either Dr. Mings or Dr. Berland testify at Kimbrough's penalty phase out of a concern that the limited beneficial information they might have been able to present would have been outweighed by the risk of opening the door to the admission of more damaging information. Although Cashman apparently misunderstood the significance of Dr. Mings's explanation of the psychopathic deviate scale as it related to Kimbrough, the state prosecutor confirmed that he would have used the spike on this scale to convince the jury that Kimbrough was dangerous. Cashman, who was familiar with the prosecutor at the time of the trial, testified she was concerned this would happen. Moreover, Sims testified that he did not recall that they had any evidence of physical or sexual abuse nor any evidence of brain injury or organic brain dysfunction that they could have presented. He also testified that the presentation of Kimbrough's low IQ in mitigation would have been counterproductive to his guilt phase argument that Kimbrough did not commit the crime because he would have been "really dumb" to rape and murder someone in his own apartment complex and then stand around the next day watching when law enforcement officials investigated the crime scene. See e.g., Stevens v. Zant, 968 F.2d 1076, 1083 (11th Cir. 1992) (concluding that trial counsel was not unreasonable [805] in deciding not to present mental health testimony at sentencing where counsel believed the potential harm from crossexamination outweighed any benefits of the expert's testimony). Because Kimbrough has not shown that his trial counsel's performance was deficient, we need not address whether such performance prejudiced him.

Accordingly, we find no error in the district court's dismissal of Kimbrough's petition for a writ of habeas corpus. PETITION DENIED.


Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
1353 (33)	11-12-13	FL	Lethal Injection	Darius Mark Kimbrough B / M / 18 - 40	12-04-72	Denise Collins W / F / 28	10-03-91	Beating	None	12-09-94