Kilgore v. State

55 So. 3d 487 (Fla. 2010)



Counsel cannot be found ineffective for failing to provide cumulative evidence.


Defendant was convicted of capital murder and sentence of death. He filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 38.50 to challenge his capital murder conviction. The motion for postconviction relief was denied by the district court. The case was appealed to the Supreme Court of Florida.  The defendant also filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel.


Should the motion for postconviction relief and the petition for writ of habeas corpus be granted?




The court affirmed the trial court's denial of the motion for postconviction relief. It denied relief on defendant's petition for writ of habeas corpus. First, on his motion for postconviction relief, defendant failed to demonstrate ineffective assistance of counsel due to counsel's failure to adequately investigate and prepare the defense. Defendant failed under the second prong of Strickland to allege how he was prejudiced by counsel's alleged failures. Second, trial counsel made a reasonable strategic decision not to request individual voir dire with regard to issues of race and homosexuality. Third, no Brady violation occurred. Fourth, competent, substantial evidence clearly supported the postconviction court's finding that defendant was not mentally retarded. Although defendant scored 67 on one IQ test, evidence revealed that the score was unreliable. Three scores of 74, 75, and 76 appeared to be the scores most representative as to whether defendant possessed subaverage general intellectual functioning. Fifth, Fla. R. Crim. P. 3.203, which specified the procedure for raising mental retardation as a bar to a death sentence, was constitutional. Finally, defendant failed to meet his burden on any of his claims of ineffective assistance of counsel in his habeas petition.

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