IN THE DISTRICT COURT OF APPEAL, FIRST DISTRICT
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
ON APPEAL FROM THE DENIAL OF A POSTCONVICTION MOTION IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA.
Luke Newman, P.A.
308 McDaniel Street
Tallahassee, Florida 32303
Fla. Bar ID 0859281
TABLE OF CITATIONS
Gore v. State, 846 So. 2d 461 (Fla. 2003)…………………………………………15
Johnson v. State, 921 So. 2d 490 (Fla. 2005)……………………………………..15
Jones v. State, 591 So. 2d 911 (Fla. 1991)………………………………………..16
Jones v. State, 709 So. 2d 512 (Fla. 1998)………………………………………..16
Maxwell v. Wainwright, 490 So. 2d 927 (Fla. 1986)…………………………12, 15
Peterka v. State, 890 So. 2d 219 (Fla. 2004)………………………………………15
Robinson v. State, 770 So. 2d 1167 (Fla. 2000)…………………………………..16
Stephens v. State, 748 So. 2d 1028 (Fla. 1999)……………………………….12, 16
Strickland v. Washington, 466 U.S. 668 (1984)………………………………12, 15
Constitutional Provisions, Rules Statutes and Other Authorities, Page(s)
Section 784.041, Florida Statutes…………………………………………………..2
Section 810.02, Florida Statutes……………………………………………………2
Fla. R. Crim. P. 3.850…………………………………………………………passim
Fla. R. App. P. 9.140………………………………………………………………12
Fla. R. App. P. 9.210………………………………………………………………18
Art. V, § 4, Fla. Const………………
This is an appeal of the denial of a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion was denied following an evidentiary hearing. After a trial, the defendant was convicted of burglarizing a dwelling in Tallahassee, Florida. The alleged burglary took place during the course of a domestic dispute with the dwelling’s tenant. The tenant was XXXXXXXXXX wife who also had a child with XXXXXXXXXX. XXXXXXXXXX trial counsel was informed that there existed evidence which tended to indicate XXXXXXXXXX was an invitee at the dwelling. Trial counsel failed to present this evidence, which could have established a complete defense to burglary. XXXXXXXXXX was convicted. XXXXXXXXX filed a postconviction motion alleging that his trial attorney was unconstitutionally ineffective. The circuit court, applying an incorrect and more onerous legal standard, denied the motion.
Appellant, the Defendant in the lower tribunal, will be referred to herein as “the Defendant” or by name. Appellee, the State of Florida, will be referred to as “the State.”
The Record on Appeal is contained in one (1) original volume. The record in this appeal has been supplemented with the record from the Defendant’s direct appeal. There are six (6) such supplemental volumes. References to the original volume of the record will be cited using the abbreviation “R” followed by the appropriate page number(s). References to the supplemental volumes will be cited using the abbreviation “SUPP” followed by the appropriate volume and page number(s).
STATEMENT OF THE CASE AND OF THE FACTS
A. Nature of the Case
This is an appeal of a Circuit Court order denying the Defendant’s motion for postconviction relief which was filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. (R: 81-84). The denial was entered following an evidentiary hearing. (R: 97).
B. Course of Proceedings Below and Statement of the Facts
The Defendant was arrested by the Tallahassee Police Department and charged with aggravated battery in 2008. (R: 2); (SUPP1: 6).
Initially an affordable bond was set and the bond was posted by the Defendant. Subsequently the State filed the burglary charge and filed a notice indicating an intent to seek enhanced penalties. (SUPP1: 189). The State subsequently sought and obtained an increased bond of seventy five thousand dollars ($75,000). (SUPP1: 200). The Defendant could not post this bond and he remained incarcerated in the county jail. (R: 2); (SUPP1: 219).
The Defenant eventually moved to reduce this bond amount. (SUPP1: 215-216). The Defenadant’s motion to that effect was denied. (R: 2).
While in jail, the Defendant’s telephone calls were monitored by the Assistant State Attorney assigned to prosecute him. Eventually that Assistant State Attorney took specific steps to revoke the Defendant’s telephone privileges at the jail. (SUPP1: 215-216). When the Defendant was eventually sentenced; he had been at the jail for the preceding three hundred and eighteen (318) days. There are indications in the record that the Defendant spent some of that time in solitary confinement. (R: 2); (SUPP5: 25).
The Defendant was charged by information with burglary with person assaulted  and domestic battery by strangulation . The Defendant entered a plea of not guilty. Eventually the law firm of XXXXXXXXXX and XXXXXXXXXX filed a Notice of Appearance indicating they would be defending the Defendant. (R: 3); (SUPP1: 218).
The case proceeded to trial which took place in February of 2009. (SUPP3; 1). In its opening statement the State argued that the Defendant had never lived with his wife XXXXXXXXXX at the address on Coyote Creek where the alleged burglary had occurred. The State argued that The Defendant was living with his mother at the time of the burglary. (R: 3); (SUPP3: 46).
In his opening statement, defense counsel repeatedly argued that the Defendant stayed at the residence which was the scene of the burglary offense and that the Defendant had a right to be present. Defense counsel argued that The Defendant was allowed in the residence and that he normally stayed at that address. (R: 3); (SUPP3: 53-56).
Officer Jason Gaston of the Tallahassee Police Department testified that he and another officer responded to the Tallahassee address at approximately 4:00AM on April 27, 2008. Gaston stated that, when they arrived, he saw a woman (later identified as XXXXXXXXXX ), a man (later identified as the Defendant), and four children standing in front of a residence. Gaston testified that the children were pointing to XXXXXXXXXX and yelling, “that’s him”. Gaston testified that XXXXXXXXXX was extremely upset and was crying. Gaston testified that XXXXXXXXXX had obvious signs of a facial injury. (R: 3); (SUPP3: 59).
Gaston testified that he took written statements from XXXXXXXXXX, her son and her older daughter. Gaston testified that he also spoke to a little girl, but that he did not take a written statement from her. (R: 4); (SUPP3: 65).
Gaston stated that both the Defendant and XXXXXXXXXX had injuries, that he arrested the Defendant for aggravated battery, but that the Defendant had not been arrested for burglary and that he found no signs of forcible entry to the home. (R: 4); (SUPP3: 65-66).
The daughter testified that she was the 14-year-old daughter of XXXXXXXXXX and that XXXXXXXXXX was married to the Defendant. The daughter testified that she has a brother and two little sisters. The daughter testified that she was asleep on the couch of the residence when she awoke because the dog was barking. She testified that XXXXXXXXXX and the other children in the household were asleep in their rooms. (R: 4); (SUPP3: 66-70).
The daughter testified that, when she got up to see why the dog was barking, “I looked at the door and I saw him coming through the door.” She testified that “him” was The Defendant, who had previously lived with them, but that he was not living with them at the time. (R: 4); (SUPP3: 71).
The daughter testified that the Defendant went into XXXXXXXXXX’s bedroom and that subsequently she heard a commotion. The daughter testified that she went to XXXXXXXXXX’s bedroom and observed The Defendant holding XXXXXXXXXX in a choke hold around her neck. The daughter testified that she called the police. XXXXXXXXXX’s recorded 911 call was played for the jury. (R: 4); (SUPP3: 72; 77).
On cross examination the daughter was asked whether or not she heard The Defendant’s voice on the tape of the 911 call exclaiming that “Kira” let him in. After the State’s hearsay objection was overruled by the Court, the daughter testified that she didn’t remember. (SUPP3: 81) The daughter testified that her mother was married to The Defendant; that The Defendant let go of her mother before police arrived and that The Defendant never tried to leave the scene. (R: 4-5); (SUPP3: 85).
The daughter testified that “Kerria” was asleep in her room. The daughter testified that “Kira” did not let the Defendant in the house. Later the daughter testified that she did not know how The Defendant obtained entry into the house. (R: 5).
XXXXXXXXXX’s son, testified that he woke up hearing a commotion and that he went to his mother’s room where he saw The Defendant, “holding my mom by the collar of her shirt.” He testified that his mother was sad and upset. (R: 5); (SUPP3: 90; 92).
On cross examination the son testified that The Defendant had not told him how he got into the house and that he did not know how The Defendant had gotten into the house. The son testified he did not know if The Defendant had a key. The son testified that The Defendant is the father of his half-sister Sierra, who was nine years old. (R: 5); (SUPP3: 94).
XXXXXXXXXX testified that The Defendant was her husband and the father of her youngest child, Sierra, but that the two were not living together in April of 2008. (SUPP3: 122). XXXXXXXXXX stated that the night leading up to the incident, she went to a local bar with The Defendant’s sister in law. XXXXXXXXXX testified that The Defendant was at the bar when the two women arrived and that they all sat together. XXXXXXXXXX testified that The Defendant was living with his mother and left a little after midnight. (SUPP3: 122). XXXXXXXXXX testified that she left the bar around 1:30AM and drove to the home on Coyote Creek. XXXXXXXXXX testified that she lived at the Coyote Creek home with four children; (R: 5).
XXXXXXXXXX testified that, when she arrived home, The Defendant was in a car parked near the end of her street. XXXXXXXXXX testified that The Defendant began calling her cell phone and her home phone as well. XXXXXXXXXX testified that her son, unplugged the home phone and that she never invited The Defendant into the house. (R: 5-6).
XXXXXXXXXX testified that The Defendant came into her room, surprised her while she was sleeping, and choked her. XXXXXXXXXX testified that she bit The Defendant’s finger while his hand was over her mouth. XXXXXXXXXX testified that her oldest daughter opened her bedroom door and that her son came into the room before The Defendant let go of her. XXXXXXXXXX denied that she ever gave The Defendant permission to come into the house. (R: 6); (SUPP3: 128).
On cross examination XXXXXXXXXX testified that she never gave The Defendant permission to be in the house that night and that he did not live with her. (SUPP3: 128). XXXXXXXXXX testified that The Defendant had been to her house before and spent the night there. XXXXXXXXXX testified that The Defendant had previously stayed at the Coyote Creek house for a period of four or five days and that he was the father of Sierra. (R: 6); (SUPP3: 129-130; 133).
XXXXXXXXXX testified that she did not know whether The Defendant broke into the house but that she would assume he did because he did not have permission to be there that night. XXXXXXXXXX stated that she was not aware anyone had let The Defendant into the house but admitted that when The Defendant entered the house, she was asleep in her room. (R: 6); (SUPP3: 135; 142).
Following XXXXXXXXXX’s testimony both the State and the Defense rested. After hearing legal argument the Court struck the “remaining in” theory of burglary and ruled that the jury would be instructed only as to the “entry” theory of burglary. (R: 6); (SUPP4: 184).
During the defense closing argument it was argued that The Defendant had been in the house numerous times. It was argued that there were no signs of forcible entry to the residence. Defense counsel argued that The Defendant did not break into the residence. Defense counsel argued that there was no question that The Defendant had permission to be at the residence. (R: 6-7) (SUPP4: 244; 245; 247).
The State argued that The Defendant had no right to be at the residence. (R: 7); (SUPP4: 265).
The jury found The Defendant guilty as charged on both domestic battery by strangulation and burglary of a dwelling. (R: 7); (SUPP4: 279-280).
Following the guilty verdicts trial counsel filed an amended Motion for New Trial which asserted that new and material evidence had been discovered which probably would have changed the verdict if it had been introduced at trial. (SUPP1: 242-244). Trial counsel had become aware of a utility bill for the Coyote Creek residence which indicated the utilities at the home were in The Defendant’s name. At a hearing, trial counsel argued that the utility bill portrayed The Defendant’s right to be in the Coyote Creek residence which was superior to any other evidence which had been portrayed at trial. (R: 7); (SUPP1: 242).
At a hearing on the motion for new trial, trial counsel proffered that, had he known The Defendant’s name was on the utility bill, he would have used the evidence at trial. (SUPP5: 20-21). The Court found that there was no lack of due diligence on trial counsel’s behalf in obtaining the evidence. The Court found that the utility bill was consistent with evidence put forth at trial and was insufficient to sustain a Motion for New Trial. (R: 7); (SUPP5: 26-27). The Defendant was sentenced to fifteen (15) years’ incarceration on the burglary count. (SUPP1: 269-278).
The Defendant’s direct appeal was denied in a per curiam opinion issued by this court.
Postconviction counsel filed a verified motion for postconviction relief. (R: 2). The motion recounted the procedural history of The Defendant’s prosecution. (R: 1-7). The burglary conviction was challenged in the motion. The motion did not challenge the domestic battery conviction. The motion argued that The Defendant’s trial lawyer provided unconstitutionally ineffective assistance of counsel. The motion argued that counsel did so by failing to present evidence, in the form of a utilities statement, which would support the defense argument that The Defendant was an invitee at the dwelling. (R: 9). The motion identified the exculpatory utility statement as the disputed piece of exculpatory evidence. (9; 11). The motion argued the detrimental effect of trial counsel’s failure to introduce the utility statement. (R: 11).
The trial court issued an order to show cause. (R: 14). While awaiting a State response, postconviction counsel located utilities records which indicated the utilities at the Coyote Creek dwelling were in The Defendant’s name for a period of fifteen (15) months from March of 2007 to May of 2008. (R: 16-77). The State requested the motion be scheduled for a hearing. (R: 79).
An evidentiary hearing was held before the circuit court. (R: 97). The State and Defendant entered multiple exhibits into evidence. (R: 102-107).
XXXXXXXXXX was the first witness called at the hearing. (R: 107). XXXXXXXXXX testified that she still lived at the Coyote Creek dwelling and that she moved into that address in 2007. XXXXXXXXXX’s original lease for the residence was entered into evidence. (R: 111). XXXXXXXXXX testified that, when she moved to Coyote Creek, the Defendant was not living with her because he was incarcerated. (R: 113). XXXXXXXXXX claimed that she used the Defendant’s name to open the utility account at the Coyote Creek dwelling because she had financial issues and could not use her own name. (R: 114). XXXXXXXXXX claimed that the Defendant had never lived at the Coyote Creek dwelling. (R: 115). The State admitted a written document in which the Defendant had confirmed he did not live at the Coyote Creek dwelling about five months prior to the offense. (R: 119).
On cross examination XXXXXXXXXX confirmed that she was married to the Defendant from 2001 to 2008. XXXXXXXXXX confirmed that she was receiving federal assistance to pay the rent at the Coyote Creek residence and that she was not supposed to have a convicted felon living with her at the residence. (R: 120). XXXXXXXXXX denied removing the Defendant’s name from the utilities account following his arrest for burglary of the dwelling. (R: 123).
The second witness called was the Defendant’s trial attorney. (R: 128). He testified that the defense was going to be that the Defendant normally stayed at the house he was charged with burglarizing. (R: 131). He testified that prior to the trial or during the trial Gardner had informed him that his (the Defendant’s) name was on the utility bill for the residence. (R: 133). The attorney recalled the Defendant telling him that he (the Defendant) had either paid the utilities or lived at the residence. (R: 134). The attorney confirmed that communication with the Defendant was difficult because of the Defendant’s isolation within the county jail. (R: 136). Throughout his testimony, the attorney equivocated on when exactly he learned of the existence of the utility statements. (R: 140-143). Had he possessed information regarding the utility bill, the attorney would have used it because it would have been an important piece of evidence to try and convince the jury that the Defendant had permission to be at the residence. (R: 144).
On cross examination the attorney confirmed that the utility bills would be important in a burglary defense. (R: 147). The Attorney confirmed that he had, in 2009, represented to the court that the Defendant had told him about the existence of the utility bill prior to the trial. (R: 149). The attorney confirmed that he was more familiar with the facts of the case in 2009 than he was at the time of the hearing in 2012. (R: 149). The attorney testified that he never obtained the bills and that, had he obtained them, he would have used them as evidence. (R: 147; 151).
Following the attorney’s testimony, the court heard argument (R: 156-168). Postconviction counsel specifically argued the different standards in ruling on a newly discovered evidence claim and an ineffective assistance of counsel claim. (R: 159-160). The court reserved ruling. (R: 168).
The circuit court rendered an order denying the postconviction motion. (R: 81-84). The circuit court denied the motion because it found that the utility bills would not have substantially changed the outcome of the trial. (R: 83).
A timely Notice of Appeal was filed. (R: 85). This appeal follows.
This court has jurisdiction to review a lower court’s final order denying a Rule 3.850 motion. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P. 9.140(b)(1)(D); Fla. R. Crim. P. 3.850(g).
D. Standard of review
Ineffective assistance of counsel claims present a mixed question of law and fact and, therefore, are subject to plenary review based upon the Strickland  test. Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986). Under this standard, appellate courts conduct an independent review of the trial court’s legal conclusions. Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999).
SUMMARY OF THE ARGUMENT
The Defendant argues that the lower court erred by denying his Rule 3.850 motion in applying an incorrect standard of law following an evidentiary hearing.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT APPLIED AN INCORRECT AND MORE STRINGENT LEGAL STANDARD IN CONSIDERING THE DEFENDANT’S POSTCONVICTION MOTION.
The Defendant’s original trial and sentencing took place in 2009. The Defendant was charged and tried for burglarizing a particular dwelling. The offense was alleged to have taken place during the course of a domestic dispute with the Defendant’s wife who lived at the dwelling. Prior to the Defendant being sentenced, the existence of one utility statement from the dwelling in the Defendant’s name was brought to the circuit court’s attention . (R: 7). Following the Defendant’s conviction, trial counsel had filed an Amended Motion for New Trial. Fresh off of the trial, the Defendant’s trial attorney argued that the existence of the utility bill portrayed the Defendant’s right to be in the disputed dwelling and was superior to any other evidence presented during the trial. (SUPP5: 21). Trial counsel informed the court, immediately after the trial, that he had been informed of the existence of the evidence prior to the trial. (SUPP5: 21). The trial court examined the issue at that time under the appropriate newly discovered evidence standard. The trial court, in 2009, finding the introduction of the utility statements would not change the outcome of the trial, denied the motion for new trial.
The Defendant made an ineffective assistance of counsel claim in a timely filed Rule 3.850 motion. (R: 8-9). The Defendant claimed his trial attorney provided ineffective assistance of counsel in failing to introduce utility statements which tended to establish a defense that he was a licensee in the property he was charged with burglarizing. (R: 9-11). The Defendant’s motion relied on the applicable constitutional authority in presenting this claim. (R: 8). During postconviction proceedings, the Defendant established that the dwelling had associated with it more than one dozen sequential, monthly utility statements in the Defendant’s name. (R: 16). It was also revealed that the Defendant and XXXXXXXXXX were not going through a divorce at the time of the offense as the State had argued, but that the dissolution petition had not even been filed until well after the offense. (R: 120; 156) compare (SUPP3: 46).
At the evidentiary hearing held on the postconviction claim, postconviction counsel specifically argued that the Defendant was not required to establish that the evidence would probably lead to a different result on a re-trial. (R: 159). Postconviction counsel specifically argued that the Defendant needed only to establish that confidence in the outcome had been undermined. (R: 159). Postconviction counsel specifically argued that the two standards were often conflated and pointed the circuit court to Johnson v. State, 921 So. 2d 490 (Fla. 2005). The circuit court reserved ruling in order to review the record. (R: 168).
The circuit court denied the motion because it found that the utility bills would not have substantially changed the outcome of the trial. (R: 83).
In so holding, the circuit court impermissibly applied the more stringent standard reserved for a newly discovered evidence claim.
In Strickland [v. Washington, 466 U.S. 668 (1984)], the United States Supreme Court held that to establish ineffective assistance, the defense must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. The Court went on to say that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Thus, for the defendant to prevail on an ineffective assistance claim, the alleged deficiency “must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined.” Peterka v. State, 890 So. 2d 219, 228 (Fla. 2004) (quoting Gore v. State, 846 So. 2d 461, 467 (Fla. 2003); see also Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986); (stating that to prevail on an ineffectiveness claim the defendant must demonstrate that counsel’s deficiency “so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined”)).
The explanation of what constitutes a reasonable probability under Strickland is important because otherwise, the test for prejudice in an ineffective assistance claim could be confused with the more stringent test for prejudice arising from newly discovered evidence. Newly discovered evidence warrants a new trial only if the evidence would probably produce a different result. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998); Jones v. State, 591 So. 2d 911, 915 (Fla. 1991). That test is outcome-determinative.
Johnson v. State, 921 So. 2d 490, 511-12 (Fla. 2005) (Pariente, C.J., specially concurring); and Robinson v. State, 770 So. 2d 1167, 1171 (Fla. 2000) (Anstead, J., specially concurring).
At the evidentiary hearing, postconviction counsel overtly argued that such a high burden should not be applied to an ineffective assistance of counsel claim. (R: 159-160). This court is charged with independently reviewing the trial court’s legal conclusions. Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999). The circuit court’s application of the more stringent standard constituted reversible error and should be remedied in this appeal.
The Defendant respectfully requests this Honorable Court reverse the trial court’s order and remand the case to the circuit court with instructions that he be afforded a new hearing at which the appropriate standard is considered.
/s/ Luke Newman
Luke Newman, P.A.
308 McDaniel Street
Tallahassee, Florida 32303
Fla. Bar ID 0859281
CERTIFICATE OF SERVICE
I hereby certify that a copy of foregoing has been provided to:
Office of the Attorney General
(sent via email to: firstname.lastname@example.org)
…on this twenty-ninth (29th) day of April, 2013.
/s/ Luke Newman
Fla. Bar No. 0859281
CERTIFICATE OF COMPLIANCE REGARDING FONT SIZE
Counsel for the Appellant hereby certifies, pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), that the type used in this brief is Times New Roman 14 point proportionally spaced font.
/s/ Luke Newman _________________________
Fla. Bar No. 0859281
 “XXXXXXXXXX” has been identified in the course of these proceedings using at least three (3) distinct surnames (XXXXXXXXXX, XXXXXXXXXX and XXXXXXXXXX). To avoid confusion, this brief will refer to her by her first name throughout.