Defendant's Wavier of Right to Present Mitigation Does Not Relieve Trial Lawyer of Duty to Investigate
In Grim v. State, 971 So. 2d 85 (Fla. 2007), the Supreme Court of Florida explained:
"When evaluating claims that counsel was ineffective for failing to investigate or present mitigating evidence, this Court has phrased the defendant's burden as showing that counsel's ineffectiveness deprived the defendant of a reliable penalty phase proceeding." Henry v. State, 937 So. 2d 563 at 569 (Fla. 2006) (quoting Asay v. State, 769 So. 2d 974, 985 (Fla. 2000) (quoting Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1998))).
"However, along with examining what evidence was not investigated and presented, we also look at counsel's reasons for not doing so." Sliney v. State, 944 So. 2d 270, 281-82 (Fla. 2006).
Defendants have the right to waive presentation of mitigating evidence. E.g., Koonv. Dugger, 619 So. 2d 246 at 249 (Fla. 1993) ("We have repeatedly recognized the right of a competent defendant to waive presentation of mitigating evidence.").
However, as we recognized in Koon, 619 So. 2d at 250:
When a defendant, against his counsel's advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant's decision.
Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what the evidence would be.
The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel's recommendation, he wishes to waive presentation of penalty phase evidence. Grim, 971 So. 2d at 99-100.
The Court went on to explain:
We have recognized that a defendant's waiver of his right to present mitigation does not relieve trial counsel of the duty to investigate and ensure that the defendant's decision is fully informed. See, e.g., State v. Lewis, 838 So. 2d 1102, 1113 (Fla. 2002) ("Although 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."). Grim, 971 So. 2d at 100.