The Commission on Capital Cases updates this information regularly

The Commission on Capital Cases updates this information regularly. This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes.

QUINCE, Kenneth Darcell (B/M)

AKA: Rasikh Abdul-Hakim

DC# 075812

DOB: 02/10/59

Seventh Judicial Circuit, Volusia County Case# 80-48-CC

Sentencing Judge: The Honorable S. Foxman

Attorney, Trial: Howard B. Pearl – Assistant Public Defender

Attorney, Direct Appeal: James R. Wulchak – Assistant Public Defender

Attorney, Collateral Appeals: Peter J. Cannon & Carol Rodriguez – CCRC-M

Date of Offense: 12/28/79

Date of Sentence: 10/21/80

Circumstances of the Offense:

On 12/30/79, the body of an 82-year-old female was found lying on the floor of her bedroom. The detective who found the body, Detective Larry Lewis, surveyed bruises on the victim’s forearm and under her ear, a small abrasion on the pelvic area, and dried blood under the victim’s nose.

During the autopsy, it was discerned that the cause of death was strangulation. Two lacerations on the victim’s head were found and attributed to a sharp edge, either from an instrument or the lip of furniture. The lacerations could have rendered the victim unconscious. It was determined that the sexual assault occurred prior to the victim’s death, but it could not be determined if the victim was conscious at the time of the assault.

Several fingerprints were found around a window in the house. This window was determined to be the point of entry for the assailant. The fingerprints found around the window were compared to Kenneth Quince’s and were found to be a match. Quince was arrested at his home, which was two blocks away from the scene. After being questioned by police, Quince admitted to the following events. Quince claimed he had been in the house several years earlier when he had mowed the lawn for the victim. He stated that he had burglarized the home believing that no one was home. While Quince was in the house, Ms. Bowdoin opened the door of her bedroom. Both saw each other, and then Ms. Bowdoin proceeded to shut and lock her bedroom door. Quince then pushed his way through the door, which knocked Ms. Bowdoin onto the floor. Ms. Bowdoin stood up and started screaming. Quince attempted to silence her by grabbing her by the throat and shaking her. He then pushed her to the floor. Quince then began looking for valuables again and found a tape player, a radio, and a ring. When Quince was leaving the house, he stepped on Ms. Bowdoin’s stomach. During this questioning, Quince denied any knowledge of the sexual assault.

During later questioning, when confronted with forensic evidence, Quince admitted to the sexual assault, but refused to discuss the details. Later, when questioned by psychologists, Quince admitted that, when Ms. Bowdoin fell to the floor her nightgown ended up around her waist, which revealed her legs and pelvic area. He claimed this sexually aroused him and resulted in his decision to rape Ms. Bowdoin.

Trial Summary:

01/17/80 Indicted as follows:

Count I: First-Degree Murder

Count II: Sexual Battery

Count III: Burglary of an Occupied Dwelling

08/11/80 Defendant entered a guilty plea and waived his right to have an advisory jury impaneled to recommend sentence

10/21/80 Sentenced as follows:

Count I: First-Degree Murder – Death

Count II: Sexual Battery – Dismissed

Count III: Burglary of an Occupied Dwelling – Death

Appeal Summary:

Florida Supreme Court – Direct Appeal

FSC# 59,954

414 So. 2d 185

11/24/80 Appeal filed

03/04/82 FSC affirmed conviction and sentence

05/27/82 Rehearing denied

06/29/82 Mandate issued

United States Supreme Court – Petition for Writ of Certiorari

USSC# 82-5096

459 U.S. 895

07/22/82 Petition filed

10/04/82 Petition denied

State Circuit Court – 3.850 Motion

CC# 80-48-CC

07/05/83 Motion filed

04/30/84 Motion denied

Florida Supreme Court – 3.850 Appeal

FSC# 65,407

477 So. 2d 535

06/04/84 Appeal filed

09/05/85 FSC affirmed trial’s court denial of 3.850 motion

11/19/85 Rehearing denied

12/26/85 Mandate issued

United States Supreme Court – Petition for Writ of Certiorari

USSC# 85-6365

475 U.S. 1132

02/14/86 Petition filed

04/21/86 Petition denied

United States District Court, Middle District – Petition for Writ of Habeas Corpus

USDC# 86-685

08/11/86 Petition filed

12/14/87 Petition denied

12/23/87 Motion to amend the judgment

01/20/88 Amendment to the motion

12/21/88 Petition was denied

United States Court of Appeals, Eleventh Circuit – Habeas Appeal

USCA# 89-3048

01/18/89 Appeal filed

09/21/89 USDC’s opinion was vacated and remanded to USDC

State Circuit Court – 3.850 Motion

CC# 80-48-CC

05/30/89 Motion filed

11/06/89 Motion denied

United States District Court, Middle District – Petition for Writ of Habeas Corpus

USDC# 86-685

09/21/89 Case remanded to USDC by USCA, Eleventh Circuit

10/26/90 Case was administratively closed

Florida Supreme Court – 3.850 Appeal

FSC# 77,610

592 So. 2d 669

03/18/91 Appeal filed

01/16/92 Case remanded to trial court for evidentiary hearing

02/17/92 Mandate issued

State Circuit Court – 3.850 Motion

CC# 80-48-CC

01/16/92 Case remanded to trial court for evidentiary hearing

12/15/92 Evidentiary hearing held

04/02/93 Trial court ruled there was no conflict of interest

Florida Supreme Court – 3.850 Appeal

FSC# 81,730

676 So. 2d 369

05/07/93 Appeal filed

03/07/96 FSC vacated trial’s court denial of the postconviction relief and remanded

the case for a new proceeding

07/10/96 Rehearing denied

08/09/96 Mandate issued

State Circuit Court – 3.850 Motion

CC# 80-48-CC

03/07/96 Motion remanded back to trial court by FSC

11/12/99 Motion denied

Florida Supreme Court – 3.850 Appeal

FSC# 89-960

732 So. 2d 1059

02/24/97 Appeal filed

04/08/99 FSC affirmed trial court’s denial of 3.850 motion

06/15/99 Rehearing denied

07/15/99 Mandate issued

United States District Court, Middle District – Petition for Writ of Habeas Corpus

USDC# 86-685

06/28/00 Case reopened

05/10/02 Petition denied

United States Court of Appeals – Habeas Appeal (from USDC)

USCA# 02-13371

360 F.3d 1259

06/25/02 Petition filed

02/18/04 USCA affirmed the denial of the petition

04/27/04 Rehearing denied

05/03/04 Mandate issued

United States Supreme Court – Petition for Writ of Certiorari

USSC# 04-5429

125 S.Ct.436, 160 L.Ed.2d 325

07/20/04 Petition filed

11/01/04 Petition denied

State Circuit Court – 3.202 Motion

CC# 80-48-CC

(Pending)

11/01/04 Motion filed

Warrants:

01/31/84 Death Warrant signed by Governor Chiles

02/08/84 Circuit Court granted a Stay of Execution

Clemency:

07/06/83 Clemency hearing held (denied)

Factors Contributing to the Delay in Execution of Sentence:

The delays in this case are the successive 3.850 Motions, which led to numerous 3.850 Appeals. In one instance, an evidentiary hearing held in the circuit court was procedurally flawed. The main issue that constituted the above delay was the possible conflict of interest regarding the trial defense attorney also being a special deputy sheriff.

Case Information:

Quince filed a Direct Appeal to the Florida Supreme Court on 11/24/80. He raised several issues in the appeal, mainly surrounding the judge’s ruling on aggravating and mitigating factors. Another issue raised was that a general sentence was improperly imposed on him for two separate offenses. The Court ruled that the death sentence could have been imposed only for the murder charge and not the burglary. The Court affirmed the sentence on 03/04/82. The rehearing was denied on 05/27/82 and the mandate was issued on 06/29/82.

Quince filed a Petition for Writ of Certiorari to the United States Supreme Court on 07/22/82. The Petition was denied on 10/04/82.

Quince filed a 3.850 Motion to the Circuit Court on 07/05/83. During the time that the motion was pending, Governor Chiles signed a death warrant for Quince on 01/31/84. The Circuit Court granted a Stay of Execution on 02/08/84. The 3.850 motion was denied on 04/30/84. Quince then filed a 3.850 Appeal to the Florida Supreme Court on 06/04/84. Many of the issues raised in the appeal by Quince were considered in the Direct Appeal and therefore were procedurally barred. The remaining issues surrounded the claim of ineffective assistance of counsel. The Court applied the two-part test described in Strickland v. Washington [1]. The Court ruled that Quince failed to meet the first part of the Strickland test. The Court affirmed the trial court’s denial of the 3.850 Motion on 09/05/85. The rehearing was denied on 11/19/85 and the mandate was issued on 12/26/85.

Quince filed a Petition for Writ of Certiorari to the United States Supreme Court on 02/14/86. The Petition was denied on 04/21/86.

Quince filed a petition for Writ of Habeas Corpus to the United States District Court (USDC), Middle District, on 08/11/86. The petition was denied on 12/14/87. A motion to amend the judgment was filed on 12/23/87. An amendment to the motion was filed on 01/20/88. The petition was denied on 12/21/88. Quince filed an appeal of the USDC’s denial to the United States Court of Appeals (USCA), 11th Circuit, on 01/18/89. On 09/21/89, the USCA vacated the USDC’s order and remanded the case. The USDC gave Quince 20 days to file an amended petition. On 10/26/90, the case was administratively closed by the USDC so that issues could be decided at the state level.

During this time, Quince also filed a second 3.850 Motion to the Circuit Court on 05/30/89. The main issue within the motion was conflict of interest based on Harich v. State [2]. Quince’s defense attorney, Howard Pearl, served as a special deputy sheriff. The motion was denied on 11/06/89. Quince filed a motion to disqualify Judge S. James Foxman and a petition for rehearing on 11/20/89. The motion to disqualify the judge was based on a comment that Judge Foxman had made stating that out-of-state lawyers “look down their noses at us and tend to think we’re a bunch of rednecks.” At the time, an attorney from Washington, D.C., was representing Quince. The Motion and Petition were denied on 02/19/91. Quince filed an appeal of the Circuit Court’s denial of his 3.850 Motion to the Florida Supreme Court on 03/18/91. The main issues raised in the appeal were that the trial court erroneously ruled against Quince in his attempt to disqualify the judge and that the trial court had ruled on the 3.850 Motion without conducting an evidentiary hearing. The Court ruled that Quince’s motion to disqualify the judge was legally insufficient and found no error in the trial court’s decision. In regard to the absence of an evidentiary hearing, the Court referred to the Harich decision, in which the Florida Supreme Court directed the trial court to conduct an evidentiary hearing into the possibility of a conflict of interest and remanded the case to the trial court for an evidentiary hearing to be held on the matter. This opinion was rendered on 01/16/92. The mandate was issued on 02/17/92.

The Circuit Court held a consolidated evidentiary hearing for four defendants previously represented by Howard Pearl on 12/15/92-12/18/92. An order was issued on 04/02/93 stating there was no conflict of interest and again denying Quince’s 3.850 motion. Quince filed an appeal of the trial court’s decision to the Florida Supreme Court on 05/07/93. The Court ruled that the evidentiary proceedings were procedurally flawed which violated the appellant’s right to due process. The Court vacated the trial court’s order denying 3.850 relief and remanded the case for proceedings that dealt with each appellant’s claims individually. The rehearing was denied on 07/10/96 and the mandate was issued on 08/09/96.

Quince’s 3.850 Motion was remanded to the Circuit Court by the Florida Supreme Court, as stated above. Quince filed a motion to the Circuit Court to have Judge Foxman disqualified because he had been a witness in the previous evidentiary hearing. On 08/27/96, Judge Foxman recused himself. Quince filed a motion to recuse Judge Johnson, Judge Foxman’s replacement, and the court denied the motion. The 3.850 motion was denied on 11/12/96. Quince then filed a 3.850 Appeal in the Florida Supreme Court on 02/24/97. The issues raised in the appeal included the following issues: the trial court’s refusal to disqualify Judge Johnson, ineffective assistance of counsel, and conflict of interest due to the Howard Pearl issue. The Court found no error. The Court affirmed the trial court’s denial of the 3.850 Motion on 04/08/99. The rehearing was denied on 06/15/99 and the mandate was issued on 07/15/99.

Quince’s Petition for Writ of Habeas Corpus was reopened in the United States District Court, Middle District, on 06/28/00. The Petition was denied on 05/10/02.

On 06/25/02, Quince filed a Petition for Habeas Corpus to the United States Court of Appeals, which appealed the United States District Court’s decision to deny his petition. The USCA affirmed the denial of his Petition on 02/18/04.

On 11/01/04, Quince filed a 3.202 Motion to the Circuit Court, which is currently pending.

Institutional Adjustment:

DATE	DAYS	VIOLATION	LOCATION
12/22/80	30	FAILURE TO COMPLY	FLORIDA STATE PRISON
08/09/82	0	DISOBEYING ORDER	CENTRAL OFFICE
06/08/98	0	FIGHTING	UNION C.I.-MED.FAC.
06/17/98	0	POSS OF CONTRABAND	UNION C.I.
05/10/01	0	DISOBEYING ORDER	UNION C.I.
02/18/04	0	DISRESP.TO OFFICIALS	UNION C.I.
02/18/04	0	SPOKEN THREATS	UNION C.I.
02/23/04	0	POSS OF CONTRABAND	UNION C.I.

________________________________________________________________________

Report Date: 05/22/02 NMP

Approved: 05/30/02 WS

Updated: 04/22/09 AEH

[1] Quoting from Strickland v Washington: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (466 U.S. 668)

[2] Harich v. State dealt with the alleged conflict of interest in defense trial counsel, Howard Pearl, serving as a special deputy sheriff in addition to Harich’s defense counsel.