Larzelere, Virginia Gail:
White; age 38 at crime (DOB 12-27-1952); murder of white male (her
husband) about age 40 in Edgewater near Daytona Beach on 3-8-1991;
sentenced on 5-11-1993.
On March 8, 1991, Larzelere hired a
man to murder her third husband in Edgewater, Florida, so she could
collect $2.1 million in insurance. Larzelere took out seven separate
insurance policies on her husband the year before his death.
LARZELERE, Virginia Gail (W/F)
Volusia County, Seventh Judicial
Circuit, Case# 91-2561CFAES
Sentencing Judge, Trial: The
Honorable John W. Watson, III
Attorney, Trial: John Wilkins – Private
Attorney, Direct Appeal: Christopher S. Quarles – Assistant Public
Attorney, Collateral Appeals: David D. Hendry
Date of Offense: 03/08/91
Date of Sentence: 05/11/93
Date of Resentence: 08/01/08
Circumstances of Offense:
Larzelere was married to the victim, Norman
Larzelere, who was a dentist. Virginia
was the office manager for Norman’s practice. During the afternoon of
03/08/91, a masked gunman entered the dental office. The gunman
chased Norman down and shot him with a shotgun and then fled. Norman
died shortly after being shot. A patient, a dental assistant, and
Virginia were all present in the office at the time of the shooting.
Virginia and her son, Jason, were
charged with the murder. The State theorized that Virginia and Jason
conspired to kill Norman in order to cash in a $2 million life
insurance policy and $1 million in assets.
The following evidence was
presented by the state at trial. Two different men presented
testimony stating that they had engaged in affairs with Virginia and
that she had asked them to assist her in killing her husband. Two
additional witnesses, Steven Heidle and
Kristen Palmieri, received immunity and
testified to various incriminating statements and actions made by
Jason and Virginia concerning the murder. Heidle
and Palmieri testified that the night
before the murder, Virginia sent Jason to pick up documents from a
storage unit. Those documents included Norman’s life insurance
policies and will. They also said that Virgina
said to Jason after the murder, “Don’t worry, you’ll get your $200,000
for taking care of business.” Heidle and
Palmieri said that Virginia told both of
them that Jason screwed up by showing up at Norman’s practice half an
hour late. If Jason had arrived on time, it would have been 12:30
p.m. and the dental assistant, as well as the patient, would not have
been present. The two witnesses said that Virginia told them to get
rid of a .45 handgun and a shotgun by encasing them in concrete and
disposing of them in a creek. In the days after the murder, the two
witnesses said that Virginia and Jason reenacted the murder, with
Virginia playing the role of the victim and Jason playing the role of
the gunman. The shotgun was recovered from the creek, but no
conclusive determination was made as to whether it was the weapon used
in the murder.
Virginia gave several different
versions of the murder in her testimony to the police. Both the
descriptions of the gunman and the getaway car changed. The patient
who witnessed the murder heard the victim say just after he was shot,
“Jason, is that you?”
Over the six years before the
murder, Virginia took out seven different life insurance policies on
the victim. In the six months before the murder, she doubled the
amount payable from $1 million to $2 million. The victim helped to
obtain these policies, but Virginia was dominant in pursuing the
policies. Virginia also gave false statements and
information in order to get the policies. Additionally, Virginia
filed a fraudulent will designating her as the sole heir to the estate
shortly after the murder. The will was submitted on the same day that
one of the biggest insurance policies went into effect.
was 18-years-old at the time of the slaying by the masked gunmen. He
was acquitted of the first-degree murder charge and accepted a $75,000
insurance settlement in 1994.
05/24/91 Indicted as
Count I: First-Degree
08/17/92 Jury returned
guilty verdicts on all counts of the indictment and recommended death
by a vote of 7-5
05/14/93 Sentenced as
Count I: First-Degree
Murder – Death
02/28/08 FSC vacated the
sentence of death and remanded for a new sentencing proceeding
08/01/08 Resentenced to
life in prison with the possibility of parole in 25 years.
Florida Supreme Court –
676 So. 2d 394
03/28/96 FSC affirmed
conviction and sentence
08/12/96 Mandate issued
United States Supreme Court
– Petition for Writ of Certiorari
519 U.S. 1043; 117 S. Ct. 615; 136
L. Ed. 2d 539
State Circuit Court – 3.850
08/31/00 Amended motion
01/14/03 Second amended
03/24/05 Death sentence
overturned and remanded for resentencing
Florida Supreme Court –
04/11/05 Appeal filed by
the State of Florida
02/28/08 Trial Court’s
decision affirmed; FSC remands for new sentencing hearing
04/21/08 Mandate issued
Florida Supreme Court –
Petition for Writ of Habeas Corpus
01/30/06 Petition filed
02/28/08 Petition denied
03/14/08 Motion for
04/03/08 Motion for
04/21/08 Mandate issued
Factors Contributing to the
Delay in Imposition of Sentence:
The 3.850 Motion was pending in the
Circuit Court for over seven years.
The Direct Appeal was filed to the
Florida Supreme Court on 05/21/93. Issues that were raised included
whether the trial judge improperly limited the defense’s impeachment
of a witness and whether the trial judge erred in admitted selected
portions of taped statements and in refusing the request to introduce
the complete statements. The Florida Supreme Court found all of the
issues either harmless or without merit. The Court affirmed the
conviction and death sentence on 03/28/96.
filed a Petition for Writ of Certiorari to the United States Supreme
Court on 10/09/96, which was denied on 12/16/96.
A 3.850 Motion was filed to the
Circuit Court on 11/25/97. The motion was amended twice on 08/31/00
and 01/14/03. On 03/24/05, Larzelere’s
death sentence was overturned and ordered for resentencing by Judge
Watson, who claimed that Larzelere’s
lawyers did not present important evidence during the original penalty
phase. Judge Watson concluded that Larzelere’s
attorneys did not spend enough time preparing for the penalty phase
and noted her jury did not hear evidence about her mental health
issues and sexual abuse as a child.
On 04/11/05, the State of Florida
filed a 3.850 Appeal of the trial court’s decision to vacate
Larzelere’s death sentence in the Florida
Supreme Court. On 02/28/08, the Florida Supreme Court released its
opinion affirming the trial court’s order insofar that it vacates
Larzelere’s death sentence and remands for
a new sentencing proceeding before a jury. The Florida Supreme Court
issued a mandate in this case on 04/21/08.
Larzelere filed a Petition for Writ of Habeas Corpus to the
Florida Supreme Court. This Habeas petition was denied on 02/28/08.
Larzelere filed a Motion for Rehearing on
03/14/08 which was denied on 04/03/08. The Florida Supreme Court
issued a mandate in this case on 04/21/08.
On 08/01/08, the Circuit Court
resentenced Larzelere to life in prison
with the possibility of parole in 25 years.
Virginia Larzelere was
well off, even by coastal Florida's relatively high standards. Her
husband Norman was a successful Daytona Beach dentist, and Virginia
enjoyed a beautiful home, expensive cars, a yacht and an airplane.
But the good times came to an
abrupt end on March 8, 1991, when a masked gunman broke into Norman's
office and killed him with a shotgun blast to the chest.
In the murder investigation that
ensued, police quickly discovered that the Larzelere family was
anything but ordinary. It appeared that the couple financed their
lavish lifestyle by funneling narcotics through Norman's dental
practice, and both engaged in numerous extramarital affairs. Digging
deeper, the cops also uncovered a two-million dollar life insurance
policy that Virginia had taken out on her husband.
Then, the Larzelere's live-in
help, Steve Heidel, came forward with the exact location of the murder
weapon. Heidel told police that Virginia and her son, Jason, had asked
him to dispose of the weapon following the shooting.
On May 5, 1991, both Virginia and
Jason were charged with first-degree murder in the death of Norman
Larzelere. At her trial, prosecutors described Virginia as an
opportunist looking to cash in on her husband's hefty life insurance
policy. The defense, however, argued that Steve Heidel was the actual
mastermind behind the murder.
In the end, the jury sided with
prosecutors and sentenced Virginia to death. In a separate trial seven
months later, Jason Larzelere was acquitted on all charges.
Virginia Larzelere lone woman on state's death row
By Ron Word - Associated Press Writer
October 06, 2004
Virginia Larzelere, the lone woman on Florida's death row, continues
to proclaim her innocence in the 1991 slaying of her husband Norman,
who was gunned down by a masked man.
"I was not a
decent daughter, sister, mother or wife; however I am not guilty of
taking Norm's life," Larzelere, 50, said in a letter to The Associated
Press. The Edgewater dentist was her fourth husband. They were
together five years before he was murdered March 8, 1991.
and two executions have emptied the state's death row of women --
except for Larzelere.
She is in a tiny
cell at Lowell Correctional Institution south of Gainesville waiting
for Volusia County Circuit Judge John W. Watson III to rule on her
Her appeal claims
the charges filed against her in her indictment and arrest warrant
were different than those described to the jury who convicted her of
murder in 1992. She also claims her trial lawyer was ineffective, said
David Hendry, an attorney with the Capital Collateral Regional Counsel
who now represents her.
"There are a whole
lot of issues," Hendry said.
Snurkowski, a criminal appeals attorney for the state attorney
general's office, would only say "Jurors convicted her."
She was convicted
of first-degree murder Feb. 24, 1992. Her son, Jason, who was accused
of being the triggerman, was acquitted by a jury on Sept. 21, 1992.
"I did not aid,
abet or procure Jason or any unknown person to kill Norman," she said.
Hendry called the
murder "an unsolved case."
"It goes down as a
murder mystery," he said.
Hendry said he
believes he's made a good case for Watson to order a new trial. Watson
could also grant a new sentencing hearing or deny her appeals.
At the time of the
trial, Larzelere's attorney, Jack Wilkins, was having financial
problems and eventually ran afoul of the federal government.
"He went to prison
and she went to death row," Hendry said.
Supreme Court, in an unanimous ruling on March 29, 1996, turned down
her initial appeal, rejecting an argument that sentencing her to death
was too stiff a punishment compared to the treatment of others in the
Besides her son's
acquittal, the state granted immunity to two other suspected
conspirators in exchange for their testimony.
"We find that the
evidence establishes beyond question that (Larzelere) was the
dominating force behind this murder and that she was far more culpable
than the state's two key witnesses," the justices wrote.
the only woman on Florida's death row through a series of
In the past year,
Aileen Wuornos, a serial killer convicted in the deaths of six men
along the roads of central Florida, was executed after firing her
attorneys and dropping all her appeals.
Ana Cardona, 40,
on death row for killing her toddler in the "Baby Lollipops" case, was
granted a new trial by the Florida Supreme Court last July.
originally sentenced to death for killing a man in a sensational
videotaped slaying in Daytona Beach, was sentenced to life in prison
after she was granted a new trial in 1995.
Judy Buenoano, 54,
was executed on March 30, 1998, for the poisoning death of her
attracted a group of supporters and even has a "Help Virginia" Web
site dedicated to her case.
A friend, Jan
Thomas, of Union, N.H., keeps Larzelere informed about the case. She
said Larzelere suffers from severe health problems, including heart
and lung disease and has asthma.
"Ginny and I have
been writing letters to one another for 61/2 years now and she and I
have become 'sisters of the heart,'" Thomas wrote in a letter to The
Associate Press. "I am the 'big sister' who is always looking to
protect Ginny from more disappointment."
Supreme Court of Florida
State v. Larzelere
STATE of Florida, Appellant/Cross-appellee,
Virginia LARZELERE, Appellee/Cross-appellant.
Virginia Gail Larzelere, Petitioner,
Walter A. McNeil, etc., Respondent.
Nos. SC05-611, SC06-148.
February 28, 2008
Bill McCollum, Attorney General, Tallahassee, FL,
Kenneth S. Nunnelley, Senior Assistant Attorney General, and Barbara
C. Davis, Assistant Attorney General, Daytona Beach, FL, for
Appellant/Cross-Appellee/Respondent.Bill Jennings, Capital Collateral
Regional Counsel, and David Dixon Hendry, Assistant CCRC, Middle
Region, Tampa, FL, for Appellee/Cross-Appellant/Petitioner.
The State of Florida appeals an order of the
circuit court granting in part Virginia Gail Larzelere's motion for
postconviction relief under Florida Rule of Criminal Procedure 3.850,
in which the trial judge vacated Larzelere's sentence of death and
ordered a new sentencing proceeding. Larzelere cross-appeals the
trial court's order, asserting that the trial judge erroneously denied
her motion to vacate her conviction for first-degree murder, and
petitions this Court for a writ of habeas corpus. We have
jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the
reasons expressed below, we affirm the trial court's order and deny
the petition for writ of habeas corpus.
I. FACTS AND PROCEDURAL HISTORY
Larzelere was convicted of first-degree murder on
February 24, 1992. This Court set forth the facts of this case on
direct appeal as follows:
The appellant was married to Norman Larzelere (the
victim), a dentist, and she worked as the office manager for his
dentistry practice. On March 8, 1991, at approximately one o'clock
in the afternoon, a masked gunman came into the victim's dental
office, chased the victim, shot him with a shotgun, and fled. The
victim died within a short time after being shot. At the time of the
shooting, a dental assistant, a patient, and the appellant were in the
The appellant and her adult son, Jason Larzelere,
were charged with the victim's murder. The State's theory was that
the appellant and Jason conspired to kill the victim to obtain
approximately $2 million in life insurance and $1 million in assets.
Jason and the appellant were tried separately. The appellant was
The State presented the following evidence at the
appellant's trial. Two men testified that they had affairs with the
appellant during her marriage to the victim and that the appellant
asked them to help her have her husband killed. Two other witnesses,
Kristen Palmieri and Steven Heidle, were given immunity and testified
to a number of incriminating actions and statements made by the
appellant and Jason regarding the murder. Specifically, their
statements reflected that the night before the murder the appellant
sent Jason to a storage unit to pick up documents, which included the
victim's will and life insurance policies; that the appellant told
Jason after the murder, “Don't worry, you'll get your $200,000 for
taking care of business”; that the appellant told both witnesses that
Jason was the gunman and that he “screwed up ․ he was supposed to be
there at 12:30, but he was a half hour late, so [the dental assistant]
and a patient were there. That's why I had to fake a robbery.”;
that the appellant directed the two witnesses to dispose of a shotgun
and a .45 handgun by having them encase the guns in concrete and dump
them into a creek; and, that, in the days following the murder, Jason
and the appellant reenacted the murder, with Jason playing the role of
the gunman and the appellant playing the role of the victim. With
Heidle's assistance, police recovered the guns from the creek but were
unable to conclusively determine whether the shotgun was the murder
Additional testimony reflected that the appellant
gave several conflicting versions of the murder to police, with
differing descriptions of the gunman and the vehicle in which he left.
The patient who was present at the time of the murder heard the
victim call out just after he was shot, “Jason, is that you?”
It was further established that over the six-year
period preceding the murder, the appellant obtained seven different
life insurance policies on the victim and that within the six months
preceding his death, the appellant doubled the total amount payable on
his life from over $1 million to over $2 million. Although the
victim assisted in obtaining these policies, it was shown that the
appellant was the dominant motivator in securing the policies. In
addition, evidence was introduced to show that the appellant gave
false information and made false statements to obtain the policies (in
securing the policies she falsely represented to several insurance
agents that pre-existing policies had been cancelled, did not exist,
or were being replaced by the new policy). Further, soon after the
victim's death, the appellant filed a fraudulent will, which left the
victim's entire estate to the appellant. The fraudulent will was
prepared on the same date one of the largest insurance policies on the
victim's life became effective.
In her defense, the appellant presented evidence in
an attempt to show that her inconsistent versions of the murder were
due to her state of mind due to the distress of having just lost her
husband; that the victim assisted in obtaining all of the insurance
policies; that the appellant's lovers did not think she was serious
about having her husband killed; that Heidle and Palmieri were not
believable and perjured themselves; and that Heidle and Palmieri were
unable to obtain incriminating statements from the appellant after
they had been requested to do so by police.
Larzelere v. State, 676 So.2d 394, 398-99
(Fla.1996) (footnote omitted). After Larzelere waived the
presentation of mitigation evidence, the jury recommended the sentence
of death by a seven-to-five vote. The trial judge followed the
jury's recommendation and imposed the death penalty, finding two
aggravating factors: (1) the capital felony was committed for
financial gain; and (2) the capital felony was committed in a cold,
calculated, and premeditated manner without any pretense of moral or
legal justification (CCP). The trial judge found no statutory
mitigating factors, but he did find the following nonstatutory
mitigating factors: (1) Larzelere had the ability to adjust and
conform to imprisonment-assigned marginal weight; and (2) Larzelere
was not the shooter-assigned insignificant weight due to the judge's
finding that Larzelere was the mastermind behind the killing.
Larzelere appealed, raising fifteen claims.1
This Court affirmed Larzelere's conviction and sentence. Id. at 408.
On August 31, 2000, Larzelere filed an amended
motion for postconviction relief, raising fourteen claims, many of
which contained numerous subparts.2
Later, Larzelere amended her motion, raising two additional claims.3
After a Huff4
hearing, the trial court summarily denied many of Larzelere's claims
and scheduled others for an evidentiary hearing. State v. Larzelere,
No. 91-2561-CFAES (Fla. 7th Cir. Ct. order filed December 14, 2001)
(Postconviction Order I). After the evidentiary hearing, the trial
court issued a written order denying Larzelere's motion to vacate her
conviction but granting her motion to vacate her sentence because the
trial court found that Larzelere's counsel had provided ineffective
assistance during the penalty phase. State v. Larzelere, No.
91-2561-CFAES (Fla. 7th Cir. Ct. order filed March 24, 2005)
(Postconviction Order II).
The State now appeals the trial court's award of a
new penalty phase. Larzelere cross-appeals, raising three claims:
(1) the postconviction trial court erred when it denied Larzelere's
claim that the trial court's jury instructions constituted a
constructive amendment or fatal variance to the indictment; (2) trial
counsel was conflicted and ineffective during the guilt phase; and
(3) the cumulative effect of procedural and substantive errors
deprived Larzelere of a fundamentally fair trial.
Larzelere also filed a petition for a writ of
habeas corpus with this Court, raising two claims: (1) she was denied
effective assistance of appellate counsel because appellate counsel
failed to raise on direct appeal the meritorious issue that the trial
court's jury instructions and the State's closing argument constituted
a constructive amendment or fatal variance to the indictment; and (2)
the cumulative effect of procedural and substantive errors deprived
Larzelere of a fundamentally fair trial.
For the reasons discussed below, we affirm the
trial court's order denying Larzelere's motion to vacate her
conviction but vacating her death sentence and ordering a
resentencing, and deny Larzelere's petition for a writ of habeas
II. THE STATE'S APPEAL
The State asserts that the trial court erred in
granting Larzelere a resentencing due to her counsel's ineffectiveness
because Larzelere prevented her counsel from investigating potential
mitigation evidence. We find no error and affirm the trial court's
In her motion for postconviction relief, Larzelere
alleged that her penalty-phase counsel was ineffective for failing to
conduct a reasonable background investigation and that had counsel
investigated, they would have unearthed substantial mitigating
evidence which could have been presented to the jury or the trial
court. She further alleged that her waiver of mitigation was invalid
because defense counsel failed to conduct an adequate penalty-phase
investigation and hence could not advise her regarding the
ramifications of waiving mitigation.
In order to prevail on a claim of ineffective
assistance of counsel, a defendant must show that trial counsel's
performance was deficient and that the deficient performance
prejudiced the defendant so as to deprive the defendant of a fair
trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 123
S.Ct. 2527, 156 L.Ed.2d 471 (2003) (reaffirming Strickland two-prong
analysis for claims of ineffective assistance of counsel). As to the
first prong, the defendant must establish 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,
104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1072
(Fla.1995). For the second prong, the reviewing court must determine
whether there is a reasonable probability that but for the deficiency
the result of the proceeding would have been different. “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable.” Id. at 687, 104 S.Ct. 2052.
The postconviction trial court received eleven days
of testimony. Regarding counsel's alleged ineffectiveness during the
penalty phase, Larzelere called her trial attorneys, John Wilkins and
John Howes, to testify regarding their representation of Larzelere.
She called William Lasley, Jason Larzelere's defense attorney, to
compare and contrast his representation of Jason to Wilkin's and
Howe's representation of Larzelere, and attorney Donald Robert West,
an expert witness regarding ineffective assistance of counsel claims,
to further critique her counsel's performance. Larzelere called Gary
McDaniel, the investigator originally hired by Wilkins to investigate
her case, and Dr. Harry Krop, a psychologist consulted by Wilkins
after the jury recommendation, to testify about counsel's preparation
of mitigation evidence. Larzelere also called Dr. Bill E. Mosman, an
expert psychologist, and numerous family members to testify regarding
what mitigation could have been presented had defense counsel
investigated thoroughly. The State called Dr. Harry Albert McClaren,
an expert forensic psychologist, to rebut Dr. Mosman's testimony.
After considering this evidence, the trial court
found that Larzelere's on-the-record waiver of the presentation of
mitigation evidence did not preclude consideration of her ineffective
assistance of counsel claim. The trial court found that Larzelere's
waiver could not have been made knowingly and intelligently because
her counsel was unable to adequately advise her regarding potential
mitigation. The trial court also found that counsel's performance
during the penalty and sentencing phases was deficient because
counsel did not spend sufficient time preparing for
the penalty phase, never sought out Defendant's background, never
sufficiently followed-up on the investigator's report outlining the
abuse and family history, and never interviewed Defendant's family
members. Counsel did not obtain informed mental health evaluations
of Defendant sufficiently in advance of the penalty phase. Counsel
presented no mitigation evidence to the jury, and only the testimony
of two jail guards and limited information regarding former spousal
abuse to the Court. Due to this lack of investigation, counsel was
unable to advise Defendant as to the potential mitigation.
Postconviction Order II at 32-33. Finally, the
trial court found that Larzelere satisfied her burden of demonstrating
prejudice because, given the seven-to-five death recommendation, the
trial court could not find that the evidence of Larzelere's childhood
sexual abuse and family history “would not have tilted the balance in
favor of a recommendation of life.” The trial court further
explained that a life recommendation likely would have been followed
by the sentencing judge.5
Because both prongs of the Strickland test present
mixed questions of law and fact, this Court employs a mixed standard
of review, deferring to the circuit court's factual findings that are
supported by competent, substantial evidence, but reviewing the
circuit court's legal conclusions de novo. See Sochor v. State, 883
So.2d 766, 771-72 (Fla.2004). We agree with the trial court's
determination in all respects. Competent, substantial evidence
supports the trial court's finding that Larzelere's waiver was not
made knowingly and intelligently because Wilkins and Howes did not
investigate possible mitigation sufficiently before Larzelere waived
her right to present penalty-phase evidence. The record also
supports the conclusion that their deficient penalty-phase performance
This Court has held that a defendant may waive the
presentation of mitigation evidence so long as her waiver is
knowingly, voluntarily, and intelligently made. Deaton v. Dugger, 635
So.2d 4, 8 (Fla.1993) (citing Henry v. State, 613 So.2d 429
(Fla.1992)). In State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002),
this Court explained that “[a]lthough a defendant may waive
mitigation, he cannot do so blindly; counsel must first investigate
all avenues and advise the defendant so that the defendant reasonably
understands what is being waived and its ramifications and hence is
able to make an informed, intelligent decision.” In Lewis, this
Court found that the defendant's waiver was not knowingly,
voluntarily, and intelligently made where his counsel had never sought
out Lewis's background information and never interviewed other members
of Lewis's family; therefore, he was unable to advise Lewis as to
potential mitigation which these witnesses and records could have
offered. The only witness who was available and willing to testify
in favor of the defendant was a mental health expert who had merely
talked with Lewis and had not yet reached a diagnosis because he did
not have sufficient information.
Id. at 1113-14. This holding that counsel must
investigate mitigation before concurring with a defendant's decision
to waive mitigation follows the United State Supreme Court's reasoning
in Wiggins v. Smith, 539 U.S. at 522-23, 123 S.Ct. 2527 (“[O]ur
principal concern in deciding whether [trial counsel] exercised
‘reasonable professional judgmen[t],’ is not whether counsel should
have presented a mitigation case. Rather, we focus on whether the
investigation supporting counsel's decision not to introduce
mitigating evidence of Wiggins' background was itself reasonable.”
Like trial counsel in Lewis, Wilkins and Howes did
not seek information regarding Larzelere's childhood and background.
Wilkins could not remember any specific actions taken to investigate
mitigation. He could only remember that he and Howes “were jointly
pursuing whatever it was we were pursuing.” Each of Larzelere's
three sisters testified that Wilkins and Howes did not interview them
on the topic of mitigation. Yet, all three of the sisters stated
that had they been asked, they would have testified during the penalty
phase that Larzelere was sexually abused by her father William
“PeeWee” Antley. Jason and Jessica Larzelere, two of Larzelere's
children, testified that counsel did not explain the concept of
mitigation to them and that they would have testified during the
penalty phase about Larzelere being physically abused by a prior
husband if asked. Jason testified that he tried to contact Wilkins
after learning the role of mitigation in a first-degree murder case
from his attorney William Lasley but that Wilkins would not take his
call. Not only did Wilkins and Howes not interview family members
about Larzelere's background, they discounted the portions of
McDaniel's investigative report that documented Larzelere's father's
alcoholism, possible child abuse, and possible spousal abuse.6
Wilkins could not remember if he asked Larzelere about the abuse
mentioned in McDaniel's report, and Howes could not remember if he
asked Don Carpenter, the investigator who was hired to replace
McDaniel, to “reinvestigate” potential mitigation.
Unlike the attorneys in Lewis who consulted a
mental health expert before allowing Lewis to waive the presentation
of mitigation evidence, Wilkins and Howes did not retain Dr. Krop to
examine Larzelere until after the jury recommended death. Dr. Krop
testified that he had done over 1500 first-degree murder evaluations
in his career and that “this case was the only case that I've ever
been involved in when I was asked to get involved after the jury had
already come back with its recommendation.” Donald West testified
that there is “probably no worse timing” than to hire an expert after
the jury recommendation because “at that point, all you can do is ask
the court to override ․ a jury's recommendation which, by law, the
court is required to give great weight.” Howes testified that he did
not know why Dr. Krop was not retained early in the representation
because he did not become Larzelere's counsel of record until around
the time jury selection began. Wilkins first could not remember why
he did not contact Dr. Krop before the recommendation but later
explained that he did not contact Dr. Krop sooner because he did not
suspect that Larzelere had been abused, and he did not feel that it
was worth looking for the needle in the haystack until after the death
Ordinarily, counsel is not considered deficient
where counsel has made a strategic decision. However, “strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support
the limitations on investigation.” Wiggins, 539 U.S. at 528, 123
S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).
Counsel would have seen a reason to consult a mental health expert
regarding Larzelere had counsel interviewed her family members or
otherwise pursued the investigator's report. As Dr. McClaren
explained, “When you're talking to [Larzelere], boy she's easy to
believe, but when you're out of the situation and start looking at all
those other conflicting things ․ there are many inconsistencies.”
The trial court correctly concluded that counsel was deficient for
failing to obtain an informed mental health evaluation of Larzelere in
advance of the penalty phase.
The record also supports the trial court's finding
that counsel's performance did not improve upon retaining Dr. Krop.
Wilkins and Howes failed to provide Dr. Krop with the investigator's
report, Claude Murrah's trial testimony, or Harry Mathis's deposition,
all of which would have alerted Dr. Krop to the possibility of sexual
and physical abuse. According to Dr. Krop, Wilkins told him that no
family members were available to assist in his evaluation. In State
v. Coney, 845 So.2d 120, 129 (Fla.2003) (quoting trial court's order),
this Court held that trial counsel's “hurried preparation” for a
mental health evaluation was ineffective assistance of counsel, where
defense counsel “furnished little or no background information to the
doctors, did not attend the evaluations, and did not believe it was
his responsibility to explain to the doctors the meaning of statutory
mitigation factors under the law.” In the instant case, counsel did
not give Dr. Krop the investigator's report, Murrah's testimony, or
Mathis's deposition, and neither Wilkins nor Howes attended when Dr.
Krop was deposed by the State.7
Given this evidence, we find that the trial court
did not err in concluding that Larzelere's waiver was not made
knowingly and intelligently and that trial counsel was deficient for
failing to sufficiently investigate potential mitigation.
Finally, we agree that Larzelere satisfied her
burden of demonstrating prejudice. Dr. Mosman, the defense's expert,
and Dr. McClaren, the State's expert, evaluated Larzelere for purposes
of the postconviction hearing, and both concluded that she was
sexually abused as a child by her father and her uncle, that she was
physically abused as an adult, and that, while not psychotic, she
suffers from personality disorders, including narcissistic and
histrionic personality disorders, which help explain her relationship
troubles and cunning, manipulative behavior. Dr. Mosman further
diagnosed Larzelere as suffering from post-traumatic stress disorder
and features of obsessive compulsive disorder. Although Dr. McClaren
disagreed, Dr. Mosman opined that the statutory mitigating factors of
extreme emotional disturbance and substantially impaired capacity to
conform conduct were applicable to Larzelere's crime. Dr. Mosman
also suggested numerous nonstatutory mitigating factors were
applicable, but again Dr. McClaren disputed some of these.8
Larzelere's three sisters testified at the
evidentiary hearing and confirmed that Larzelere had been sexually
abused by their father from around age five until around age thirteen.
The sisters stated that they did not realize that testimony
regarding their common childhood could have helped Larzelere's defense
and that they would have testified about the sexual abuse during the
penalty phase had they been asked to do so by defense counsel.
Larzelere's older two children, Jason and Jessica Larzelere, testified
at the evidentiary hearing that Larzelere's first husband, Harry
Mathis, physically abused Larzelere and Jason and that as children
they were sexually abused by their grandfather. Jessica explained
that she would have testified on her mother's behalf and begged the
judge and jury to spare her mother's life if given the opportunity.
Likewise, Jason stated that he would have been willing to testify on
his mother's behalf after his acquittal on September 22, 1992, and
would have begged the judge and jury to spare his mother.
The State argues that we should not find that
Larzelere was prejudiced because this “mitigation” evidence would have
been more harmful than helpful to her case. The State explains that
if the defense had presented a mitigation case, the State would have
called Harry Mathis to testify that Larzelere attempted to murder him
and would have presented evidence that Larzelere allowed her children
to be sexually abused by their grandfather and involved Jason in
cocaine trafficking. While we agree that the State could have
presented rebuttal evidence during the penalty phase, this does not
change our conclusion that Larzelere was prejudiced by her counsel's
Based on the foregoing, we affirm the trial court's
holding that Larzelere is entitled to a new sentencing proceeding
because her trial counsel was ineffective for failing to investigate
and prepare for the penalty phase.
III. LARZELERE'S CROSS-APPEAL
Larzelere cross-appeals, asserting that she is
entitled a new guilt-phase trial because: (1) the postconviction
trial court erred when it denied Larzelere's claim that the trial
court's jury instructions constituted a constructive amendment or
fatal variance to the indictment; (2) trial counsel was conflicted
and ineffective during the guilt phase; and (3) the cumulative effect
of procedural and substantive errors deprived Larzelere of a
fundamentally fair trial.
A. Constructive Amendment Claim
Larzelere's argument that she is entitled to a new
trial because the trial court's jury instructions and the State's
closing arguments constituted a constructive amendment or a fatal
variance to the indictment is procedurally barred because it could
have been raised on direct appeal. See Harvey v. Dugger, 656 So.2d
1253, 1256 (Fla.1995) (“[I]ssues that could have been, but were not,
raised on direct appeal are not cognizable through collateral
attack.”). In her petition for a writ of habeas corpus, Larzelere
properly raises her appellate counsel's failure to raise this
preserved issue on direct appeal. We consider the issue in that
B. Ineffective Assistance of Guilt-Phase Counsel
1. Ineffectiveness Due to Conflict of Interest
Larzelere argues that the trial court erred in
denying her claim that Wilkins operated under a conflict of interest
and was ineffective because he pursued his own financial and legal
interests to the detriment of Larzelere's defense. Larzelere
believes that Wilkins was conflicted because he could not have her
declared indigent for purposes of costs without drawing attention to
his impermissible contingency fee contract and because he did not want
his eventual payment to be impacted by a claim by the county against
any insurance proceeds collected by Larzelere. Larzelere asserts
that Wilkins performed deficiently in that he failed to have her
promptly declared indigent for costs, failed to consult and hire
needed defense experts, and fired his investigator in an effort to
This Court has explained that Florida follows the
legal principles set forth in Cuyler v. Sullivan, 446 U.S. 335, 100
S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Strickland, when analyzing an
ineffective assistance of counsel claim based on a purported conflict
[I]n order to establish an ineffectiveness claim
premised on an alleged conflict of interest the defendant must
“establish that an actual conflict of interest adversely affected his
lawyer's performance.” A lawyer suffers from an actual conflict of
interest when he or she “actively represents conflicting interests.”
To demonstrate an actual conflict, the defendant must identify
specific evidence in the record that suggests that his or her
interests were compromised. A possible, speculative or merely
hypothetical conflict is “insufficient to impugn a criminal
conviction.” “[U]ntil a defendant shows that his counsel actively
represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance.”
Sliney v. State, 944 So.2d 270, 279 (Fla.2006)
(citations omitted) (quoting Cuyler, 446 U.S. at 350, 100 S.Ct. 1708).
Prejudice is presumed where an actual conflict is shown to have
adversely affected a client's representation. Cuyler, 446 U.S. at
349-50, 100 S.Ct. 1708. The question of whether a defendant's
counsel labored under an actual conflict of interest that adversely
affected counsel's performance is a mixed question of law and fact.
Sliney, 944 So.2d at 279. Accordingly, this Court applies a mixed
standard of review, deferring to the lower court's factual findings
but reviewing its ultimate legal conclusions de novo. Coney, 845
So.2d at 133.
In considering whether Wilkins operated under an
actual conflict as defined by Cuyler, the trial court found that
Wilkins' contract and investigator McDaniel's contract were not
contingency fee arrangements and that the insurance proceeds would be
sufficient to cover fees and costs as outlined in the contracts.
Thus, the trial court held that Larzelere “provided nothing but mere
speculation” that Wilkins failed to hire experts or seek indigency
status because he wanted to maximize the amount of insurance proceeds
he would receive. Postconviction Order II at 21. We affirm the
trial court's denial of relief on this claim. We agree that
Larzelere did not demonstrate that her counsel had an actual conflict
of interest because she failed to “identify specific evidence in the
record that suggests that ․ her interests were impaired or
compromised” for the benefit of her attorney. Herring v. State, 730
So.2d 1264, 1267 (Fla.1998); see also Brown v. State, 894 So.2d 137,
159 (Fla.2004) (finding defendant failed to prove actual conflict
where trial court made factual finding that counsel did not attempt to
gain proprietary interest in defendant's life story, recordings, and
poetry until after close of representation and defendant “did not
identify specific evidence in the record that suggested that his
interests were impaired or compromised for the benefit of the lawyer
or another party”).
Wilkins testified that his contract, which was
signed by Larzelere and her sister, Jeanette Atkinson, provided for a
$100,000 retainer, $3000 per day while in trial, and costs. Wilkins
believed that he would be able to collect his fee and costs against
any of Larzelere's and Atkinson's assets, but anticipated that he
likely would be paid from the insurance proceeds. Wilkins admitted
that there was a risk of nonpayment. However, he consulted trusted
civil attorneys regarding Atkinson's likelihood of collecting on the
insurance policies, and they informed him that her chances of
collecting a “good portion” of the two to three million dollars were
“substantial.” This appraisal alleviated Wilkins' doubts enough for
him to take the case under these terms.9
Rodney Lilly, one of the consultants, testified at the evidentiary
hearing and confirmed that he told Wilkins that the insurance case was
“worth pursuing, even on a contingency fee basis” because the insurer
would have to prove fraud in the inducement to avoid paying the
policies, a difficult claim to prove. Lilly's assessment of the
insurance case implies that it would likewise be worth pursuing the
criminal case in hopes of being paid from the insurance proceeds.
Moreover, Gladys Jackson, Wilkins' office manager and bookkeeper at
the time of Larzelere's case, testified that she did not recall ever
telling Wilkins that a requested action, such as taking a deposition,
could not be done in the Larzelere case due to insufficient funds.
Thus, Larzelere did not prove that Wilkins failed to hire experts and
have her declared indigent because of a financial conflict resulting
from the fee arrangement and Wilkins' personal financial problems.
She did not prove that Wilkins had an interest in not hiring experts,
other than that which any attorney paid by a client or third party
would have, because he believed his costs would be paid.
As for investigator McDaniel's contract, Wilkins
testified that he did not ask Volusia County to pay the investigative
expenses because McDaniel agreed to be privately retained and paid
from the insurance proceeds. McDaniel first testified that he was to
be paid from Wilkins' retainer, but he later testified, consistent
with Wilkins' testimony, that he was hired directly by Larzelere,
Jason, and Atkinson, and was to be paid from the insurance proceeds.
McDaniel admitted that he agreed to be paid “as the money came in”
from the insurance policies. The record also refutes Larzelere's
suggestion that Wilkins fired McDaniel in order to minimize costs.
McDaniel testified that Wilkins and Howes would not pay for him to go
to California to interview Norman Karn and Ronald Lee Hayden, state
witnesses, as he requested to do. However, McDaniel acknowledged
that he and his company were terminated for not following Wilkins' and
Howes' instructions, rather than due to a dispute over expenses.
This evidence supports the trial court's finding that Larzelere failed
to prove that McDaniel was fired due to a financial conflict of
interest. Further, even if the decision to fire McDaniel was purely
financial, Larzelere did not demonstrate that this act was adverse to
her representation because the evidence shows that Wilkins and Howes
hired another investigator, Don Carpenter, to continue McDaniel's
Overall, Larzelere failed to show that any interest
her attorney may have had in minimizing costs was an actual, not
merely potential, conflict that adversely affected her representation.
2. Non-Conflict of Interest Ineffectiveness
Larzelere also argues that her counsel was simply
ineffective. In order to prevail on a claim of ineffective
assistance of counsel, a defendant must show that trial counsel's
performance was deficient and that the deficient performance
prejudiced the defendant so as to deprive the defendant of a fair
trial. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Both
prongs of the Strickland test generally present mixed questions of law
and fact, requiring this Court to employ a mixed standard of review,
deferring to the circuit court's factual findings that are supported
by competent, substantial evidence, but reviewing the circuit court's
legal conclusions de novo. See Sochor, 883 So.2d at 771-72.
Larzelere presented a great deal of evidence
regarding Wilkins' alcohol use. She also presented evidence that he
was engaging in tax evasion and money laundering on behalf of other
clients while acting as her counsel. She presented evidence that
Wilkins may have been having financial difficulties at that time and
that he answered a complaint by The Florida Bar just days before
giving his closing argument in the guilt phase of her trial.
However, to prove that counsel acted deficiently, a defendant “must
identify particular acts or omissions of the lawyer that are shown to
be outside the broad range of reasonably competent performance under
prevailing professional standards.” Dufour v. State, 905 So.2d 42,
51 (Fla.2005) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932
(Fla.1986)). The only specific errors alleged are that Wilkins
failed to consult or hire certain expert witnesses that might have
assisted the defense. Larzelere argues that Wilkins was ineffective
because, while intoxicated and distracted by financial and legal
problems, he made the following prejudicial errors: (a) he failed to
consult a mental health expert regarding both phases of the trial;
(b) he failed to consult and call a concrete expert and failed to
introduce a report of the Federal Bureau of Investigation regarding
the concrete samples; (c) he failed to consult and call an insurance
expert to testify that Dr. Larzelere's life insurance coverage was
reasonable given the family's circumstances; and (d) he failed to
consult and call a handwriting expert to examine Dr. Larzelere's will.
After reviewing the record, we find no error in the
trial court's determination that Larzelere failed to demonstrate that
Wilkins was ineffective for not calling such expert witnesses.
Larzelere did not offer evidence of “what these experts would have
opined regarding the facts and circumstances” of her case, and given
the overwhelming evidence of Larzelere's guilt, even favorable
testimony by these sorts of experts would not have undermined our
confidence in the verdict. Postconviction Order II at 21.
a. Guilt-Phase Mental Health Expert
The trial court was correct in finding that
Larzelere was not prejudiced by not having the assistance of a
psychologist or psychiatrist during the guilt phase of her trial. A
mental health practitioner's evaluation of Larzelere's mental state
would not have significantly contributed to her defense because there
was no reasonable basis for arguing that this crime was a
second-degree murder. The State presented evidence that Larzelere
planned her husband's murder over a period of time. We agree that
there was competent, substantial evidence upon which the trial court
could conclude that no reasonable person could have found this to be a
spontaneous rather than a premeditated crime. Further, none of the
psychological experts called at the evidentiary hearing testified that
Larzelere was mentally incompetent.
b. Concrete Expert
The trial court did not err in holding that
Larzelere failed to prove that Wilkins was ineffective for not
consulting or hiring a concrete expert to testify regarding whether
the concrete encasing the alleged murder weapon matched the concrete
found in a cooking pot in Larzelere's basement. During the
evidentiary hearing, Larzelere called John M. Whelan II, a chemistry
graduate student at the University of South Florida, to testify
regarding the FBI's report about the concrete samples. The trial
court ruled that Whelan was not qualified to give an expert opinion on
concrete but allowed Larzelere to proffer Whelan's testimony.
Larzelere did not challenge on appeal the trial court's decision to
not admit Whelan's testimony, and therefore Whelan's testimony is not
before this Court. Larzelere has not shown counsel to be ineffective
for not calling a concrete expert because she had not demonstrated
what an individual qualified as a concrete expert would have testified
to in this case or how such testimony would cast doubt on her guilt.
Larzelere's claim that Wilkins should have called
the FBI agent who analyzed the concrete samples and introduced into
evidence the FBI's report that found that the samples could not be
conclusively matched is more fully developed in the record. While
Larzelere did not call the FBI agent, she did introduce the report
into evidence. The report summarizes the comparison of sample Q1,
which was a sample of the cement found in Larzelere's home, and sample
K1, which was a sample of the cement encasing the alleged murder
weapon recovered from a creek. The report states:
The Q1 and K1 cements differ in color, and exhibit
some difference in particle size distribution and mortar composition.
However, the K1 cement was exposed to potentially extreme weathering
conditions which can affect the comparative properties of the cement.
Although it is unlikely that weathering is responsible for the
differences observed between the Q1 and K1 cements in this case, it
[cannot] be totally eliminated as a possibility.
Neither party introduced this report into evidence
during trial, although during his closing argument, Wilkins argued
that the State failed to prove that the cement found in Larzelere's
home matched the cement encasing the alleged murder weapon.
Larzelere claims that effective counsel would have supported this
argument by calling the FBI agent and introducing the report.
Again, we agree that Larzelere has not demonstrated
prejudice. As William Lasley explained, evidence separating
Larzelere from the alleged murder weapon would have theoretically
aided her defense. However, the trial court correctly found that
defense counsel's extensive cross-examination of the State's informant
witnesses, Heidle and Palmieri, and his closing argument did challenge
the State's theory that the guns were encased in concrete and dumped
in a creek at Larzelere's direction. Given the totality of the
evidence, not introducing the indefinite report does not undermine
this Court's confidence in the verdict.
c. Insurance Expert
The trial court summarily denied Larzelere's claim
that Wilkins was ineffective for failing to consult and call an
insurance expert to testify that the Larzelere family had a reasonable
amount of life insurance coverage. The trial court held that such
testimony would not likely impact the verdict because the
reasonableness of the insurance coverage would not discount the
State's theory that Larzelere killed her husband to obtain the
insurance proceeds and because the State conceded during closing
argument that Dr. Larzelere participated in the acquisition of the
insurance policies. We find no reversible error.
During his representation of Larzelere, Wilkins
consulted two attorneys, Mr. Gibson and Mr. Lilly, whom he considered
to be experts in insurance. Lilly, who represented Larzelere's
sister, Jeanette Atkinson, in the insurance litigation, testified that
he prepared a chart explaining the relationships between the different
insurance policies for Wilkins' use in the criminal case. Wilkins
used these charts during his opening argument and asserted during both
his opening and closing arguments that the State's motive theory did
not make sense. He argued that the insurance policies were
reasonable for the family, that Dr. Larzelere made $600,000 a year and
let Larzelere buy anything that she wanted, and that Larzelere would
have made more money by divorcing Dr. Larzelere than by murdering him.
While Wilkins did not call a defense witness regarding the insurance
policies, he did cross-examine the insurance agents called by the
State. His performance was not unreasonable.
Moreover, the trial court properly denied this
claim because Larzelere did not demonstrate that she was prejudiced by
any failure to discredit the State's financial motive theory. The
State's first three witnesses, Norman Karn, Ronald Lee Hayden, and
Philip Langston, all testified that Larzelere approached them about
killing her husband. Karn, who dated Larzelere in early 1989,
testified that Larzelere “[i]n so many words” told him that she wanted
Dr. Larzelere dead. He also testified that Larzelere solicited his
friend Hayden to kill Dr. Larzelere. Hayden testified next and
confirmed that Larzelere asked him if he knew anyone who would kill
her husband because she was unable to divorce Dr. Larzelere and wanted
to marry Karn. Next, Langston, who met Larzelere in 1989 or 1990 and
became romantically involved with her, testified that on one occasion
Larzelere told him that she “had to get rid of Norm.” When he said
that he was not capable of murder, she asked if he knew anyone who
would kill Dr. Larzelere for $50,000.
d. Handwriting Expert
The trial court denied Larzelere's claim that
Wilkins was ineffective for failing to consult a handwriting expert to
examine Dr. Larzelere's will, which left his estate to Larzelere,
because there was no reasonable possibility that such evidence would
have changed the outcome of Larzelere's trial. We agree that
Larzelere was not prejudiced by her counsel's failure to call a
handwriting expert. Larzelere claims that such an expert could have
refuted the State's accusation that the will was forged. Yet, the
probative issue at trial was whether Dr. Larzelere knew that he was
signing a will when he signed the document, not whether he actually
A handwriting expert could not offer an opinion on whether Dr.
Larzelere knew that he was signing a will, and defense counsel did
call Leroy Mahler, the notary public who claimed to have witnessed Dr.
Larzelere's signature. We agree that Wilkins' failure to call a
handwriting expert was not prejudicial.
The record does not demonstrate any actual
conflict, other than the dual representation of Larzelere and Jason,
which Larzelere waived and this Court affirmed on direct appeal, or
any specific prejudicial deficiencies in counsel's performance.
Thus, we affirm the trial court's denial of this claim.
C. Cumulative Error
Larzelere argues that she is entitled to a new
trial due to her attorneys' joint representation of Larzelere's
codefendant, Wilkins' alcohol and drug abuse, his inexperience in
capital cases, his financial misdealings, his contingency fee contract
that dissuaded him from approaching the court for costs and expenses,
his failure to consult experts prior to trial, the circumstantial
nature of the case, and the constructive amendments and fatal
variances to the indictment. Larzelere's claim is without merit
because each of her arguments is either without merit or procedurally
barred. See Melendez v. State, 718 So.2d 746, 749 (Fla.1998)
(holding that where claims were either meritless or procedurally
barred, there was no cumulative effect to consider). This Court
found on direct appeal that the trial judge “met the burden of
assuring that appellant's [pretrial] waiver was made voluntarily,
knowingly, and intelligently,” and that he properly denied Larzelere's
post-trial motions to discharge counsel because she failed to show how
she would be prejudiced by counsel's continued dual representation of
Larzelere and Jason. Larzelere, 676 So.2d at 403. Also on direct
appeal, the Court found the evidence sufficient to support Larzelere's
conviction. Id. at 406. As for Larzelere's postconviction claims,
this Court has affirmed the trial court's holding that Larzelere's
claim that Wilkins was actually conflicted or ineffective due to his
alcohol and drug abuse, his financial misdealings, his alleged
contingency fee contract, and his failure to consult defense experts
is without merit and that her constructive amendment claim is
procedurally barred. Larzelere is not entitled to relief on the
basis of cumulative error.
IV. HABEAS CORPUS PETITION
Larzelere raises two claims in her habeas petition.
She argues that: (1) she was denied effective assistance of
appellate counsel because counsel failed to raise on direct appeal the
meritorious issue that the trial court's jury instructions and the
State's closing argument constituted a constructive amendment or fatal
variance to the indictment; and (2) the cumulative effect of
procedural and substantive errors deprived Larzelere of a
fundamentally fair trial.
A. Ineffective Assistance of Appellate Counsel
Claims of ineffective assistance of appellate
counsel are appropriately presented in a petition for a writ of habeas
corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000).
Consistent with the Strickland standard, to grant habeas relief based
on ineffectiveness of counsel, this Court must determine,
first, whether the alleged omissions are of such
magnitude as to constitute a serious error or substantial deficiency
falling measurably outside the range of professionally acceptable
performance and, second, whether the deficiency in performance
compromised the appellate process to such a degree as to undermine
confidence in the correctness of the result.
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986);
see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d
650, 660 (Fla.2000). In raising such a claim, “[t]he defendant has
the burden of alleging a specific, serious omission or overt act upon
which the claim of ineffective assistance of counsel can be based.”
Freeman, 761 So.2d at 1069. Claims of ineffective assistance of
appellate counsel may not be used to camouflage issues that should
have been presented on direct appeal or in a postconviction motion.
See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). “If a legal
issue ‘would in all probability have been found to be without merit’
had counsel raised the issue on direct appeal, the failure of
appellate counsel to raise the meritless issue will not render
appellate counsel's performance ineffective.” Id. (quoting Williamson
v. Dugger, 651 So.2d 84, 86 (Fla.1994)).
Larzelere argues that her appellate counsel erred
in not raising the claim that the trial court's reading of a
conspiracy instruction and the State's closing argument referencing
that instruction impermissibly expanded the grounds on which she could
be convicted from the charges set forth in her indictment. She
argues that she was embarrassed in her defense because she prepared to
defend against the theory that she hired or otherwise induced Jason to
shoot Dr. Larzelere, not that she aided and abetted unknown others in
a conspiracy to murder Dr. Larzelere. She further argues that this
issue would have been meritorious if raised on direct appeal.
Specifically, Larzelere asserts that the underlined instruction
defining conspiracy contained in the following excerpt should not have
If the defendant paid or promised to pay another
person or persons to commit a crime, the defendant must be treated as
if she had done all of the things the person who received or was
promised the payment did if, one, the defendant knew what was going to
happen, two, she made or promised the payment in exchange for the
commission, or promised to ․ commit the crime or to help commit the
crime, and three, the crime was committed by a co-conspirator.
To be a principal, the defendant does not have to
be present when the crime is committed.
In considering the application of this above
described instruction on principals to this case, the elements of the
limited definition of criminal conspiracy that you must determine have
been proven beyond a reasonable doubt are that, one, the intent of the
defendant and of the co-conspirator, was that the offense that was the
object of the conspiracy, to wit, first degree murder, would be
committed, and two, in order to carry out the intent, the defendant
and the co-conspirator agreed, conspired, combined, or confederated to
cause said offense to be committed, either by them or one of them, or
by some other co-conspirator.
It is not necessary that the agreement, conspiracy,
combination, or confederation to commit that offense be expressed in
any particular words, nor that words passed between the defendant and
It is not necessary that the defendant do any act
in the furtherance of the offense conspired.
It is a defense to a charge of criminal conspiracy
that a defendant, after conspiring with one or more persons to commit
the offense that was the object of the alleged conspiracy, persuaded
the alleged co-conspirators not to do so, or otherwise prevented
commission of the offense that was the object of the conspiracy.
The trial judge gave this disputed conspiracy
instruction because the standard principal-by-hire instruction uses
the term “co-conspirator.” The judge explained that he believed this
term should be defined to assist the jury in applying the
principal-by-hire instruction to the evidence. The defense objected
to the instruction and requested that any ambiguity or vagueness in
the principal-by-hire instruction be solved by editing paragraph three
of the instruction to read: “The crime was committed by Jason Eric
Larzelere.” The State objected to this proposal, arguing that it was
not required to prove that Jason was the shooter, but instead, the
jury could consider “whatever evidence has been presented in the case,
and determine whether or not the shooter was a co-conspirator of
Virginia Larzelere.” Later, the State prosecutor referenced the
conspiracy instruction in her closing argument.
We find that appellate counsel was not ineffective
for failing to raise this issue on direct appeal because the argument
is without merit. Neither the trial court's instructions nor the
State's closing argument impermissibly expanded the grounds on which
Larzelere could be convicted of first-degree murder.
The trial judge did not abuse his discretion by
rejecting the defense's proposed instruction or by instructing the
jury on the definition of conspiracy. Both Virginia Larzelere and
her son Jason Larzelere were indicted for the murder of Norman
Larzelere. The indictment alleged that “Virginia Gail Larzelere and
Jason Eric Larzelere did, on the 8th day of March, 1991, in Volusia
County, Florida, in violation of Florida Statute 782.04, form a
premeditated design to effect the death of NORMAN LARZELERE ․ by
shooting him with a firearm.” This indictment properly charges
Larzelere as a principal to the murder. Under Florida law, a person
who is charged in an indictment or information with commission of a
crime may be convicted on proof that she aided or abetted in the
commission of such crime. State v. Roby, 246 So.2d 566, 571
(Fla.1971) (citing Pope v. State, 84 Fla. 428, 94 So. 865 (1922);
Myers v. State, 43 Fla. 500, 31 So. 275 (1901)). To be convicted as
a principal for a crime physically committed by another, the defendant
must intend that the crime be committed and must do some act to assist
the other person in actually committing the crime. Terry v. State,
668 So.2d 954, 964-65 (Fla.1996) (citing Staten v. State, 519 So.2d
622, 624 (Fla.1988)). The State need not prove each codefendant's
guilt in order to convict a codefendant of being a principal to a
crime. See Potts v. State, 430 So.2d 900, 902 (Fla.1982) (“In order
to convict the aider-abettor it is not necessary to show that the
principal perpetrator was convicted of the same crime, nor is it even
necessary to show that he was convicted at all.”) Thus, the
indictment did not limit the State to the theory that Jason shot Dr.
Larzelere. Larzelere could be convicted as charged upon the State
proving beyond a reasonable doubt that she intended that Dr. Larzelere
be murdered and that she did some act to assist the person who
actually killed Dr. Larzelere. Accordingly, the trial court's
instructions were consistent with the broad scope of the indictment
and accurately presented the charges against Larzelere to the jury.
The instructions did not permit the jury to convict Larzelere upon
finding her guilty of conspiracy but only upon finding her guilty of
aiding and abetting murder. The instructions were not a constructive
amendment or fatal variance.
The State's closing arguments likewise were not
improper. Larzelere argues that the State modified its closing
argument to capitalize on the conspiracy instruction being read to the
jury. After reviewing the record, it appears that the State may have
revised its closing argument in light of the added jury instruction.11
However, again, the State was not limited by the indictment to
arguing that Jason was the shooter.
In conclusion, Larzelere's appellate counsel was
not ineffective for failing to raise the constructive amendment/fatal
variance claim on direct appeal because the claim is without merit.
See Rutherford, 774 So.2d at 643. This Court would not have found
any error in the trial court's instructions or the State's closing
argument had the claim been raised on appeal. Thus, Larzelere has
not shown that she is entitled to a new trial.
B. Cumulative Error
In her second habeas claim, Larzelere argues that
when considered cumulatively, the errors revealed in her direct
appeal, her postconviction motion, her postconviction appeal, and this
petition denied her a fundamentally fair trial. Larzelere's
cumulative error claim is without merit because each of her arguments
is either without merit or procedurally barred. See Melendez, 718
So.2d at 749. While we did find two errors in Larzelere's trial on
direct appeal, both errors were harmless. Larzelere, 676 So.2d at
401-02, 408. In this appeal, we have affirmed the trial court's
order granting Larzelere a new penalty phase and have found
Larzelere's guilt-phase postconviction claims to be without merit.
We have likewise rejected her first alleged basis for a writ of habeas
corpus. Thus, there is no harmful guilt-phase error to consider
cumulatively. Larzelere is not entitled to a new trial on the issue
of her guilt.
For the reasons expressed above, we affirm the
trial court's order denying relief relative to Larzelere's conviction.
We also affirm the trial court's order insofar as it vacates her
death sentence and remands for a new sentencing proceeding before a
jury. Larzelere's petition for a writ of habeas corpus is denied.
It is so ordered.
guilt-phase claims were: (1) the trial court erroneously excluded two
witnesses that Larzelere proffered to impeach Heidle; (2) the trial
court erroneously denied Larzelere's motion for a mistrial based on
Palmieri's statement that Jason had used cocaine in her presence; (3)
the trial court erroneously failed to give the jury a number of
special instructions; (4) the trial court erroneously admitted only
selected portions of taped statements and refused Larzelere's request
to introduce the complete statements; (5) the trial court erroneously
denied Larzelere's motion to discharge counsel and various other
motions connected to that request; (6) the trial court erroneously
denied Larzelere's motion for a new trial based on allegations that
the jury had received extrajudicial information; (7) the trial court
erroneously denied Larzelere's motion for a new trial based upon juror
misconduct; (8) the trial court erroneously admitted bullets that
were found at Larzelere's residence; (9) the trial court erroneously
denied Larzelere's motion to dismiss the indictment based on her claim
that the State illegally intercepted a holding cell conversation
between herself and Jason, and that the trial court excluded testimony
of an investigator who recorded this “illegal” conversation; (10) the
trial court erroneously denied Larzelere's change of venue motion;
(11) the trial court erroneously denied Larzelere's motion for
acquittal based upon insufficient evidence; and (12) the trial court
erroneously admitted Jason's hearsay statements. Larzelere raised
three issues regarding the penalty phase: (1) the trial court
erroneously found duplicative aggravating factors-the murder was both
CCP and committed for financial gain; (2) Larzelere's death sentence
is disproportionate because Jason was acquitted and two other
participants in the murder were not prosecuted; and (3) Florida's
death penalty scheme is unconstitutional.
claims included: (1) the State knowingly presented perjured
testimony, presented misleading and deceptive jury arguments,
intimidated witnesses, and violated Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) newly discovered evidence
established Larzelere's innocence; (3) Larzelere was denied a fair
trial because her counsel had numerous conflicts of interest; (4)
Larzelere was denied effective assistance of counsel during the guilt
phase because trial counsel failed to adequately investigate and
prepare the defense case and challenge the State's case; (5)
Larzelere was denied her rights under Ake v. Oklahoma, 470 U.S. 68,
105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), at the guilt and penalty phases
because counsel failed to obtain an adequate mental health evaluation;
(6) the trial court committed fundamental error by giving an
unconstitutionally vague CCP jury instruction; (7) the penalty-phase
jury instructions improperly shifted the burden to Larzelere to prove
that death was inappropriate, and counsel was ineffective for failing
to object to these instructions; (8) the trial court's comments and
instructions diluted the jury's sense of responsibility toward
sentencing, and counsel was ineffective for failing to object to these
comments and instructions; (9) Larzelere was denied the effective
assistance of postconviction counsel because her lawyers were
prohibited from interviewing jurors to investigate the jury misconduct
that occurred during Larzelere's trial; (10) execution by
electrocution is cruel or unusual punishment or both; (11) execution
by lethal injection is cruel or unusual punishment or both; (12)
Larzelere may be incompetent at the time of execution; (13) Florida's
capital sentencing statute is unconstitutional on its face and as
applied; and (14) the cumulative effect of the procedural and
substantive errors in Larzelere's trial have deprived her of a
fundamentally fair trial.
supplemental claims were: (15) Florida's death penalty statute is
unconstitutional as applied to Larzelere on the basis of Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and
(16) Larzelere was embarrassed in her defense due to fatal variances
and constructive amendments of the indictment at trial.
v. State, 622 So.2d 982 (Fla.1993).
postconviction trial judge was the same judge who presided over
Larzelere's trial and sentencing.
report, dated June 7, 1991, stated that Larzelere provided him with
the following information:She describes the father as a chronic
alcoholic, sitting on the porch, drinking at home daily, with no
outside hobby or social interest. She was victimized emotionally and
physically, as were the other children. Without hesitation, client
states that she cursed him when he died, an obvious emotional response
to the victimization as an adolescent.․ She stated that JEANETTE
[Larzelere's sister] could give investigator an overview of
defendant's upbringing, except for the issues related to child abuse,
which is unspoken among family members. Client believes that all the
children were subjected to same.․Client attended and graduated from
Lake Wales High School in 1970, leaving home as a teenager to marry
state's witness HARRY MATHIS (2/19/70). She divorced MATHIS in the
city of Lake Wales in or around 1977 after seven miserable years of
marriage, during which she was a victim of frequent assaults inflicted
by her husband․ A review of the civil records should [indicate] an
extensive history of domestic assaults and child abuse involving
Jason, who was born in 1972, and Jessica in 1976.
notable in Coney is that defense counsel was found “plainly deficient”
in part because counsel failed to remedy the shortcomings of his
preparation “by seeking additional time and resources from the court
in preparation for the penalty phase.” 845 So.2d at 131 (quoting
trial court's order). Wilkins and Howes not only failed to request
additional time to prepare for the penalty phase but, rather, asked
the court to hold the penalty phase one week after the jury's verdict.
Mosman proposed the following nonstatutory mitigating factors that
could have been presented to the jury or trial court: (1) Larzelere
had the ability to be rehabilitated and function in prison; (2) she
had been physically and sexually abused and emotionally neglected;
(3) she suffered from an emotional disturbance and impairment; (4)
she did not commit a crime spree around the time of the murder; (5)
she had a disadvantaged and deprived childhood due to lack of friends
and social activities caused by her father's pedophilia; (6) there
was a multi-generational history of dysfunction and sexual abuse in
her family; (7) Larzelere had a good incarceration record and was a
low user of prison resources; (8) community and family support
systems had failed her; (9) she had a history of medical problems
such as Legionnaire's disease and pulmonary issues; (10) she had a
history of humanitarian and charitable contributions; (11) in her
childhood, she made efforts to shield her sisters from abuse; (11)
she had possible alcohol or drug abuse issues; (12) she had a
disabled son; and (13) she lost two children, who were adopted by Dr.
Larzelere's parents after the murder.
learned during his representation that all of Larzelere's property and
assets were “mortgaged to the hilt,” but he testified that even with
that knowledge, he remained confident that he would collect from the
State called Randall J. Hagge, an expert forensic document examiner,
who testified that the signature reading “Norman B. Larzelere” on the
alleged will was in the same handwriting as that found on documents
known to be signed “Dr. Norman Larzelere” by Dr. Larzelere.
change of theory from opening to closing was slight. During her
opening statement, the prosecutor argued that Larzelere hired or
otherwise procured her son Jason to shoot his adopted father Dr.
Larzelere. At no point during the State's case-in-chief did the
State suggest that someone other than Jason was the shooter. The
State solicited a great deal of testimony from Steven Heidle, a friend
of Jason Larzelere, and Kristen Palmieri, an employee of Dr.
Larzelere, regarding their involvement in covering up the murder but
asked comparatively few questions regarding their activities before
the murder. During closing argument, the prosecutor argued that the
evidence showed “complicity between Kristen Palmieri, Steven Heidle,
Jason, and Virginia through the phone calls.” The prosecutor made
two explicit references to the trial court's conspiracy instruction.
She briefly argued that Palmieri and Heidle “were co-conspirators with
Virginia Larzelere” because they knew that the murder was going to
happen and that if the jury found Heidle and Palmieri to have been
“participating with the knowledge of Virginia and in cahoots with
Virginia,” then the jury should consider their acts, her acts.
Ultimately though, the prosecutor still argued during closing that
while Heidle and Palmieri were participants in their own ways, “[t]he
evidence shows that Kristen Palmieri, however, was not the shooter.
Steven Heidle was not the shooter. That shooter was Jason
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE,
CANTERO, and BELL, JJ., concur.