Paragraph five reads: "On January 23, 2003, Petitioner filed a pro se motion for post conviction relief (Rule 3.850 motion) pursuant to Fla. R. Crim. P. 3.850, raising fourteen[ 2 ] ineffective assistance of counsel claims, not including the sub-claims, and one claim of police misconduct. Resp. Ex. G at 1-108.[ 3 ] Petitioner filed a motion to supplement and/or amend the Rule 3.850 motion (first supplemental 3.850 motion) on February 2, 2004, raising additional ineffectiveness claims based on: (1) counsel's failure to fully investigate and present evidence and expert testimony that Corp was under the influence of Zoloft, which affected his ability to premeditate the murder; (2) counsel's failure to limit the presentation of gruesome photographs of the victim, which inflamed the jury; (3) counsel's failure to object to the reliability of the State's ballistics expert and failure to secure an expert to counter the State's expert; (4) counsel's failure to properly preserve for review the court's denial of his motion for judgment of acquittal; (5) counsel's opening the door to the admission of testimony by Dr. Krop which undermined Corp's credibility; (6) counsel's failure to request a jury instruction on involuntary intoxication; and (7) the cumulative effect of counsel's errors. Id. at 109-62. On October 26, 2004, Petitioner filed a second supplemental 3.850 motion, raising ground eight: counsel was ineffective for conceding Corp's guilt during the voir dire proceedings without first consulting with Corp. Id. at 163-70."
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100831d67
CORP. v. SEC., FLA. DEPT. OF CORR.
JOHN D. CORP, Petitioner,
v.
SEC., FLA. DEPT. OF CORR., et al., Respondents.
Case No. 3:07-cv-652-J-34TEM.
United States District Court, M.D. Florida, Jacksonville Division.
August 31, 2010.
ORDER
MARCIA MORALES HOWARD, District Judge.
I. Status
Petitioner John D. Corp, who is proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (Petition) (Doc. #1) under 28 U.S.C. § 2254 on July 12, 2007, pursuant to the mailbox rule. Petitioner challenges a 2000 state court (Duval County, Florida) judgment of conviction for first degree murder on the following grounds: (1) trial counsel was ineffective for failing to investigate and advance the defense of involuntary intoxication; (2) trial counsel was ineffective for failing to object or file a motion in limine to limit the excessive presentation of gruesome photographs; (3) trial counsel was ineffective for failing to object to the reliability of the State's ballistics expert (Peter Panzica Lardizabal) and for failing to present a defense expert to counter the prejudicial testimony of Lardizabal; and (4) trial counsel was ineffective for failing to request a special jury instruction on involuntary intoxication.
Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Answer in Response to Order to Show Cause (Response) (Doc. #13).[ 1 ] On July 31, 2007, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. #4), admonishing Petitioner regarding his obligations and giving Petitioner a time frame in which to submit a reply. Petitioner submitted a brief in reply on June 4, 2008. See Petitioner's Reply/Traverse to Respondents' Response to Petition for Writ of Habeas Corpus (Reply) (Doc. #21). This case is ripe for review.
II. State Court Procedural History
On April 1, 1999, John David Corp was charged in Duval County, Florida, with first degree murder. Resp. Ex. A at 9-11, Indictment. At the conclusion of the trial, a jury found Corp guilty of first degree murder. Id. at 349, Verdict; Resp. Ex. B, Transcript of the Trial Proceedings (Tr.) at 982. The court adjudged him guilty in accordance with the verdict and sentenced him to life imprisonment. Resp. Ex. A at 355-60, Judgment.
On appeal, Petitioner, through counsel, filed a brief, in which he argued that the trial judge erred in denying the motion for judgment of acquittal as to the element of premeditation because the State failed to rebut the overwhelming evidence that Corp was unable to form a premeditated intent based on his clinical depression, alcohol and drug abuse and dissociative experience at the time of the shooting. Resp. Ex. C. The State filed an Answer Brief. See Resp. Ex. D. On February 6, 2002, the appellate court affirmed Corp's conviction and sentence per curiam. Corp v. State, 805 So.2d 1107 (Fla. 1st DCA 2002); Resp. Ex. E. The mandate issued on February 22, 2002. Resp. Ex. F.
On January 23, 2003, Petitioner filed a pro se motion for post conviction relief (Rule 3.850 motion) pursuant to Fla. R. Crim. P. 3.850, raising fourteen[ 2 ] ineffective assistance of counsel claims, not including the sub-claims, and one claim of police misconduct. Resp. Ex. G at 1-108.[ 3 ] Petitioner filed a motion to supplement and/or amend the Rule 3.850 motion (first supplemental 3.850 motion) on February 2, 2004, raising additional ineffectiveness claims based on: (1) counsel's failure to fully investigate and present evidence and expert testimony that Corp was under the influence of Zoloft, which affected his ability to premeditate the murder; (2) counsel's failure to limit the presentation of gruesome photographs of the victim, which inflamed the jury; (3) counsel's failure to object to the reliability of the State's ballistics expert and failure to secure an expert to counter the State's expert; (4) counsel's failure to properly preserve for review the court's denial of his motion for judgment of acquittal; (5) counsel's opening the door to the admission of testimony by Dr. Krop which undermined Corp's credibility; (6) counsel's failure to request a jury instruction on involuntary intoxication; and (7) the cumulative effect of counsel's errors. Id. at 109-62. On October 26, 2004, Petitioner filed a second supplemental 3.850 motion, raising ground eight: counsel was ineffective for conceding Corp's guilt during the voir dire proceedings without first consulting with Corp. Id. at 163-70.
Concluding that the first supplemental 3.850 motion was "facially insufficient as a matter of law" for Corp's failure to include an oath in accordance with Fla. R. Crim. P. 3.850(c), the trial court, on January 12, 2006, did not address the claims raised in that supplemental motion. Id. at 526-27. Thus, addressing only the claims raised in the original Rule 3.850 motion and the second supplemental 3.850 motion, the court denied those motions. Id. at 526-47. Petitioner filed a motion for rehearing on January 20, 2006, id. at 664-701, which the trial court denied on April 21, 2006. Id. at 705.
Petitioner appealed the denial, see id. at 707-08, and filed a brief, arguing that the trial court erred by summarily denying the first supplemental motion as facially insufficient without addressing the merits of the claims presented, see Resp. Ex. J. The State filed a notice that it would not file an answer brief. Resp. Ex. K. On March 1, 2007, the appellate court affirmed the denial per curiam. See Corp v. State, 954 So.2d 29 (Fla. 1st DCA 2007); Resp. Ex. L. The mandate issued on May 3, 2007. Resp. Ex. M.
III. One-Year Limitations Period
The Petition is timely filed within the one-year period of limitations. See 28 U.S.C. § 2244(d); Response at 4-5.
IV. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this Court can "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004), an evidentiary hearing will not be conducted.
V. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (AEDPA), the review "is `greatly circumscribed and highly deferential to the state courts.' Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002)." Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007). - [Section] 2254(d) allows federal habeas relief for a claim adjudicated on the merits in state court only if the state court adjudication[[ 4 ]] resulted in a decision that was: "(1) . . . contrary to, or involved an unreasonable[[ 5 ]] application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . 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); Marquard, 429 F.3d at 1303.[[ 6 ]] The phrase "clearly established Federal law," as used in § 2254(d)(1), encompasses only the holdings, as opposed to the dicta, of the United States Supreme Court as of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. ____, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)); Osborne v. Terry, 466 F.3d 1298, 1305 (11th Cir. 2006).
Id. at 1208-09.
"AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with `clear and convincing evidence.' §2254(e)(1)." Schriro, 550 U.S. at 473-74. This presumption of correctness applies equally to factual determinations made by state trial and appellate courts." Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (footnote omitted) (citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
VI. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective assistance of counsel. That right is denied when a defense counsel's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citations omitted). The Eleventh Circuit has captured the essence of an ineffectiveness claim: - The clearly established federal law for ineffective assistance of counsel claims was set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, first, "the defendant must show that counsel's performance was deficient . . . [which] requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. Second, the defendant must show that counsel's deficient performance prejudiced him. Id. That is, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.
Gaskin v. Sec'y, Dep't of Corr., 494 F.3d 997, 1002 (11th Cir. 2007) (per curiam). Since both prongs of the two-part Strickland test must be satisfied to show a Sixth Amendment violation, "a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa." Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010) (citation omitted).
A state court's adjudication of an ineffectiveness claim is accorded great deference. - The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").
Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009); see also Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004) ("In addition to the deference to counsel's performance mandated by Strickland, the AEDPA adds another layer of deferencethis one to a state court's decisionwhen we are considering whether to grant federal habeas relief from a state court's decision.").
VII. Findings of Fact and Conclusions of Law
A. Ground One
Petitioner claims that trial counsel was ineffective because he failed to investigate and advance the defense of involuntary intoxication. See Petition at 6-6B. Respondents contend that Petitioner's claim for relief is procedurally barred. See Response at 7-9. As acknowledged by the parties, Petitioner raised this claim in his first supplemental 3.850 motion. Resp. Ex. G at 114-30. Since the motion did not contain an oath, the state court found: - The Defendant's Supplemental Motion for Post-Conviction Relief filed on February 5, 2004, is facially insufficient as a matter of law. Fla. R. Crim. P. 3.850(c); Groover v. State, [703 So.2d 1035] (Fla. 1997); Schofield v. State, 710 So.2d 169 (Fla. 1st DCA 1998); Pavey v. State, 720 So.2d 563 (Fla. 2d DCA 1998).[[ 7 ]] Accordingly, the claims raised in the Supplemental Motion shall not be addressed in this Order.
Id. at 526-27.
Within eight days[ 8 ] of the state court's decision, Petitioner, in an attempt to cure the oath deficiency, see id. at 692, filed a motion for rehearing on January 20, 2006. Id. at 664-701. The court denied the motion for rehearing without explanation as to whether it was based on procedural reasons or on the merits. Id. at 705. While acknowledging that Petitioner attempted to cure the oath error, see Response at 8, Respondents argue that it appears that the trial court denied the motion for rehearing because Petitioner also presented new arguments in support of each ground for relief, thus declining to address the merits of those claims. See id. at 9 n.8 ("The motion for rehearing was not merely a re-submission of the amended motion for postconviction relief.").
On appeal, see id. at 707-08, Petitioner filed a brief, arguing that the trial court erred by summarily rejecting the claims raised in his first supplemental motion as facially insufficient without addressing the merits of those claims, see Resp. Ex. J. The State did not file an answer brief, and the appellate court affirmed the denial per curiam. Since the basis of the trial court's denial of the motion for rehearing is not clear, this Court finds that Respondents' procedural default argument is unavailing. Therefore, this Court will address the merits of the claim.
As ground one now before this Court, Petitioner claims that Randall Erler (defense counsel) was ineffective based upon his failure to investigate and present evidence that Corp was under the influence of Zoloft at the time of the murder. Petitioner alleges that he had been taking Zoloft "irregularly (only when he felt he needed it)" and had not been warned by Dr. Gary Bernard of the serious side effects which could occur, particularly when taken in combination with alcohol. Petition at 6B. He states that Dr. Bernard had diagnosed him with major depression in May of 1997 and had prescribed three hundred milligrams of Zoloft per day. Id. at 6A. He argues: - If counsel had obtained another qualified psychiatric expert knowledgeable on the subject of involuntary intoxication, the expert could have offered testimony that Mr. Corp was temporarily rendered legally insane at the time he committed the murder of Melissa Rodriguez. Furthermore, the expert witness would have testified that Mr. Corp could not tell right from wrong at the time he committed the murder, thus meeting Florida's test for insanity and completely relieving Mr. Corp of all criminal responsibility for his actions because of his involuntary intoxication.
Id. at 6B.
In evaluating the performance prong of the Strickland ineffectiveness inquiry, the Court recognizes that there is a strong presumption in favor of competence. The inquiry is "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. "[H]indsight is discounted by pegging adequacy to `counsel's perspective at the time' . . . and by giving a `heavy measure of deference to counsel's judgments.'" Rompilla v. Beard, 545 U.S. 374, 381 (2005) (citations omitted). Thus, Petitioner must establish that no competent attorney would have taken the action that counsel, here, chose. United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003).
At the time Corp committed the murder on March 16, 1999, voluntary intoxication was a defense available to negate the specific intent to commit the offense. Pooler v. State, 980 So.2d 460, 464 n.3 (Fla. 2008) (citing Gardner v. State, 480 So.2d 91 (Fla. 1985)), cert. denied, 129 S.Ct. 255 (2008). However, the law changed in 1999 when Florida Statutes section 775.051 abolished the voluntary intoxication defense for offenses committed after its effective date of October 1, 1999.[ 9 ] See Ivanovic v. McNeil, No. 08-62068-CIV, 2010 WL 520601, at *13 n.14 (S.D. Fla. Feb. 10, 2010); see also Fla. Std. Jury Instr. (Crim.), § 3.6(d), "Voluntary Intoxication" (given only for offenses occurring before October 1, 1999). The statute provided: - Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense proscribed by law. Evidence of a defendant's voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not admissible to show that the defendant was insane at the time of the offense, except when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s. 893.02.
Fla. Stat. § 775.051 (1999) (emphasis added). Thus, the statute contained an exception that applies "when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s. 893.02." Id. This "exception is essentially a codification of the involuntary intoxication defense previously acknowledged" by Florida's Fourth District Court of Appeal. Montero v. State, 996 So.2d 888, 891 (Fla. 4th DCA 2008) (per curiam), rev. denied, 15 So.3d 581 (Fla. 2009) (citation omitted); see Cobb v. State, 884 So.2d 437, 438 (Fla. 1st DCA 2004) (per curiam) ("The Legislature expressly limited the use of an intoxication defense to those circumstance[s] where the defendant's lack of specific intent or insanity is attributable to the use of a prescription medicine `pursuant to a lawful prescription.'").
Here, Respondents argue that involuntary intoxication is not an established defense in Florida. See Response at 10. However, Florida's Fourth District Court of Appeal has consistently recognized the defense of involuntary intoxication. See Montero, 996 So.2d 888; Lucherini v. State, 932 So.2d 521 (Fla. 4th DCA 2006); Brancaccio v. State, 698 So.2d 597 (Fla. 4th DCA 1997), cert. denied, 534 U.S. 1022 (2001); Boswell v. State, 610 So.2d 670 (Fla. 4th DCA 1992). Additionally, relying upon Brancaccio and Florida Statutes section 775.051, other Florida courts followed the Fourth District Court of Appeal's lead. See Stimus v. State, 995 So.2d 1149, 1150-51 (Fla. 5th DCA 2008); Sluyter v. State, 941 So.2d 1178, 1180 (Fla. 2nd DCA 2006); Cobb, 884 So.2d at 439; Miller v. State, 805 So.2d 885, 887 (Fla. 2nd DCA 2001).
In Mora v. State, 814 So.2d 322 (Fla. 2002), the Florida Supreme Court considered a claim that the trial court had erroneously refused to give a jury instruction on involuntary intoxication at the petitioner's trial in 1997. The petitioner's argument that he was entitled to an involuntary intoxication jury instruction was based on what the court described as "a line of cases from the Fourth District recognizing an involuntary intoxication defense." Id. at 329 (citations omitted). Assuming, without deciding, that the defense of involuntary intoxication existed in Florida, the court ruled that Mora was not entitled to such a jury instruction since there was no evidence suggesting that he was under the influence of any gases or drugs at the time of the shootings. Id. at 330. The court specifically stated: "In so deciding, we do not need to reach the issue of whether the defense of involuntary intoxication exists in Florida." Id.; see Vaivada v. State, 870 So.2d 197, 198 (Fla. 1st DCA 2004) (per curiam) ("We decline to address the issue of whether the defense of involuntary intoxication exists under Florida law[.]") (citations omitted).[ 10 ]
Accordingly, as a preliminary matter, it is not clear that the defense of involuntary intoxication existed at the time of Corp's trial in July of 2000. While such a defense is supported by case law in the state circuit courts, in 2002, the Florida Supreme Court expressly declined to consider whether the defense existed under Florida law. Nevertheless, in addressing the merits of Petitioner's claim for relief, this Court will assume that involuntary intoxication was an available potential defense at the time of Corp's trial.
Petitioner argues that his trial "centered on his ability to premeditate the murder of his girlfriend, Melissa Rodriguez." Petition at 6A. Indeed, in the opening statement, defense counsel informed the jury that premeditation was "the key to this case." Tr. at 220. Premeditation may be inferred based on circumstantial evidence such as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide as committed, and the nature and manner of the wounds inflicted. See Miller v. State, 770 So.2d 1144, 1148 (Fla. 2000) (citations omitted).
At the trial, the following evidence was presented. Corp shot Ms. Rodriguez five times in the face with a .38 caliber revolver. Tr. at 276-77, 313-14. One shot was made with the weapon touching Ms. Rodriguez's forehead, id. at 315, and the others were between eight to twelve inches away from her face, id. at 318. The trajectory of the bullets was inconsistent with the weapon and Ms. Rodriguez being in one place while Corp fired the shots; "[s]omebody moved, either the shooter or the victim." Id. Additionally, Officer Lardizabal, a crime laboratory analyst assigned to the firearm and toolmark section of the Florida Department of Law Enforcement, testified regarding the type of revolver used by Corp and the effect of firing five successive shots at a target with all the shots in a small area: - It certainly would require deliberate action to bring the gun back into alignment with the relative target after each shot. The firearm will not just simply stay in place. It will move some, if not considerably, and so a conscious effort will have to be made to bring it back into alignment. Otherwise the gun will continue to move up with each successive shot so you have to return the firearm from recoil back to your intended target, if you want to reproduce an event.
Id. at 562.
Further, the evidence depicted previous difficulties between the parties sufficient to support a finding of premeditation. Detective Reddish testified that Petitioner had told him "this had been building up for quite a while." Id. at 364. Reddish stated that Corp had told him that he and Ms. Rodriguez had argued over a co-worker (later identified as James Scott Lipham) with whom Petitioner believed Ms. Rodriguez was flirting, which had severely upset and enraged him. Id. at 365, 370. Lipham testified that Corp wanted him to leave the house, stating, "I'm going to get my gun." Id. at 426-27. And, less than thirty minutes later, Corp shot Ms. Rodriguez five times in the face.
With respect to Corp's alcohol and drug consumption on the day of the murder, police officers, who had responded to the crime scene, testified that Corp was coherent, appropriately followed their commands, appeared to understand what was occurring, did not slur his words, did not stagger and did not smell of alcohol. Id. at 240-44, 254-55, 260. Officer Norton repeated Corp's statements for the jury: "I'm sorry. I should have shot myself with the gun. I'm getting the death penalty. I'm dead. Let me die." Id. at 261. Norton recalled that, while enroute to the police station that night, Corp commented on his driving, stating that he was following too closely, and then made the statement: "When someone keeps fing with you, you have to handle it this way, right?" Id. at 264. Based on his experience with DUI arrests, Norton testified that Corp was not severely intoxicated that night. Id. at 265.
Additionally, Detective Reddish, who interviewed Corp that evening, testified that while Corp told him he had been drinking beer and rum and had smoked a small amount of marijuana that night, he did not appear to be under the influence of drugs or alcohol. Id. at 361, 386-87. Reddish stated that Corp told him that the only drug that he was under the influence of was a small amount of marijuana, but that he had not taken any prescription drugs. Id. at 387. Reddish testified that Corp never told him that he was taking prescription medication. Id. at 411. While describing Corp as visibly upset and crying during the interview, Reddish noted he was "very cooperative" and able to answer questions coherently. Id. at 363-64, 381, 384, 412-13. When asked during the interview about mental illness, Corp told Reddish that he was not suffering from any type of mental illness. Id. at 364.
James Scott Lipham, Corp's friend and co-worker, testified that, on the day of the murder, he had stopped by the house that Corp shared with his girlfriend (Ms. Melissa Rodriguez) for ten or fifteen minutes and saw Corp drink two beers. Id. at 421, 432. Later, at approximately 8:30 p.m. that same evening, he went back to the house and saw Melissa and Corp. Id. at 422. Lipham estimated that, on a scale of one to ten with ten being severely intoxicated, Corp was a six; however, he was able to talk to him and was able to understand him. Id. at 423-24.
Lipham recalled that Melissa was in the kitchen cooking when he arrived. Id. at 424. During the visit, Lipham heard Melissa and Corp in the kitchen talking loudly; he also heard "a little bumping" and then heard Melissa say, "Scott, come get your boy out of here." Id. at 425-26. In response to Melissa's request, Lipham entered the kitchen and escorted Corp out of the kitchen. Id. at 426. At that point, Corp asked Lipham if he was ready to leave. Id. at 427, 444. According to Lipham, Corp commented that he was going to get his gun, and Melissa responded: "John, leave that thing alone." Id. After a few more minutes, Corp asked Lipham, "Are you about done with that beer yet?" Id. Annoyed at another indication that Corp wanted him to leave, Lipham prepared to leave. Id. at 428.
During the second visit with Corp and Melissa, Lipham had one beer and then left the house within ten to fifteen minutes. Id. at 429-30. Although Corp wanted him to leave the house, Lipham stated that, during the visit, Corp was not negative or aggressive towards him and no one seemed angry. Id. at 439, 445-46. Acknowledging that Corp's sudden request for Lipham to leave the house was uncharacteristic, id. at 446, Lipham testified that he did not flirt with Melissa and did not have any type of sex with her that night.[ 11 ] Id. at 430, 448. Lipham noted that she had not taken her panties or pants off in front of him. Id. at 431, 447. Lipham found out the next morning at work that Corp had killed Melissa. Id. at 432. He recalled that Corp had been taking antidepressants, such as Prozac and Zoloft, but that he had stopped taking the medication; he did not specify when Corp had stopped taking the medication. Id. at 433-34.
Dr. Krop, who testified for the defense, testified about Corp's alcohol and drug use on the day of the murder: - Specifically regarding the incident, [Corp] indicated that he had been drinking. After he got to his house he said it was his day off and that he had several shots of rum chased by beer. He said that he thought he had about ten to 12 shots of rum followed by an unknown quantity of beer. He also told me that he took three hundred milligrams Zol[o]ft. Zol[o]ft is an antidepressant that had been prescribed by his doctor from the Premiere Family Care. I don't remember the name of the doctor, but I know from looking at those records that I saw later that he was diagnosed with major depression in May of `97 so he was prescribed Zol[o]ft. He had been taking that medication close to two years at the time this incident happened and he had said that and I don't remember whether he told me at that session or later that unfortunately he didn't take the medication on a reliable basis, that he used it sometimes excessively for what he called recreational purposes and then sometimes he didn't take it at all. But on the day in question, he said he took three hundred milligrams Zol[o]ft.
Id. at 591-92 (emphasis added). Dr. Krop also noted that, in the third session, Corp told him that he had taken two Zoloft as opposed to three Zoloft. Id. at 622. Regarding Corp's mental state, Dr. Krop concluded: - My opinion as to his mental state was that as a result of his depression, alcohol, use of Zol[o]ft, and the highly charged emotional state that he was in that his capacity to form the intent to commit this crime was significantly impaired. That is he was not thinking rationally, his judgment was impaired, his thought processes were compromised, relating to the various diagnostic entities that I have referred to.
Id. at 629. However, Dr. Krop acknowledged that Corp's Duval County Jail medical records indicated that his last use of Zoloft was several months ago. Id. at 650-52. Dr. Krop explained: - I saw in his medical records the person who is prescribing Zol[o]ft for him had indicated he was not taking it on a consistent or reliable basis and I believe he either told me or someone else that he had used it recreationally and not the way it's supposed to be used. . . .
Id. at 653. In evaluating the effect of Zoloft in combination with alcohol, Dr. Krop stated that Zoloft "would contribute to the increased effects of the alcohol." Id. at 687.