ROBERT LEE GARDNER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Lee Gardner appealed his jury conviction for robbery on two grounds: ineffective assistance of counsel for failing to present alibi witnesses and investigate fully, and improper use of an Allen charge to encourage jury deliberation. The appellate court affirmed the conviction, finding counsel's decisions were reasonable trial tactics and the Allen charge was properly given.
The court held that counsel's decisions not to call alibi witnesses and not to pursue certain investigative avenues were reasonable tactical decisions not subject to attack, and no actual prejudice was shown. The Allen charge was properly given under Florida law and met the criteria for a balanced charge that emphasized the jury should resolve differences only 'if possible.'
[1] A trial court's use of an "Allen" charge to encourage a deadlocked jury to reach a verdict is permissible when the charge is balanced and emphasizes that jurors should re…
[2] Failure to present alibi witnesses or conduct further investigation may constitute reasonable, tactical trial strategy, not ineffective assistance of counsel, if the deci…
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Join FLexlaw to unlock all legal intelligence“Defense counsel's determination not to pursue certain avenues of investigation which he found to be irrelevant to the present case, or felt would not be fruitful, was also a matter of trial tactic and strategy not open to attack.”
Establishes that investigative decisions by trial counsel are within tactical discretion and not subject to ineffective assistance claims absent a showing of actual prejudice.
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Join FLexlaw to unlock all legal intelligenceGardner was convicted of robbery by jury verdict. Two eyewitnesses positively identified Gardner as the robber on three separate occasions: at the cri…
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HENDRY, Judge.
These consolidated appeals result from appellant’s jury conviction for robbery. Appellant seeks reversal of the conviction and sentence on the grounds that 1) his court-appointed counsel was ineffective in that he failed to present alibi witnesses and properly investigate the case, and 2) the trial court erred in giving the deadlocked jury an “Allen” charge over defense counsel’s objection and motion for mistrial. Ground one arises from the denial of appellant’s Rule 3.850 motion to vacate judgment following an evidentiary hearing; ground two is a direct appeal to this court.
The state has responded to each of the appellant’s points and further counters that the asserted omissions were not substantial. Appellant’s primary complaint, defense counsel’s failure to call alibi witnesses, was shown at the evidentiary hearing on appellant’s Rule 3.850 motion to be a reasonable, tactical decision that placing the thirty-eight year old appellant’s sixteen year old common-law wife, or her younger sister on the stand would have an adverse psychological impact on the jury. Defense counsel’s determination not to pursue certain avenues of investigation which he found to be irrelevant to the present case, or felt would not be fruitful, was also a matter of trial tactic and strategy not open to attack. Washington v. State, 397 So. 2d 285 (Fla. 1981); Robinson v. State, 378 So. 2d 1346 (Fla. 3d DCA 1980).
Appellant has not alleged, nor does the record show, any actual prejudice resulting from the asserted errors of his counsel. Two eyewitnesses to the robbery positively identified the appellant as the robber on three separate occasions: at the crime scene, at a live line-up, and at trial.
We find that the record clearly sustains the findings of the court below that counsel’s decisions were tactical in nature; that the testimony of the eyewitness was credible; and that the appellant received a fair trial.
The record also shows that trial counsel competently and diligently represented appellant, and this representation, in our view, met the standard for effective assistance of counsel enunciated by the Florida Supreme Court in Knight v. State, 394 So. 2d 997 (Fla. 1981). See also Meeks v. State, 382 So. 2d 673 (Fla. 1980).
Appellant next claims that the trial court erred in giving the jury an “Allen” 1 charge. The use of an Allen charge for deadlocked juries was recently approved by the Florida Supreme Court in Spaziano v. State, 393 So. 2d 1119 (Fla. 1981); see also State v. Bryan, 290 So. 2d 482 (Fla. 1974).
In the present case, when the jury was unable to reach a decision after several hours of deliberation, the court gave the approved charge found in Standard Jury Instruction 2.21, specifically emphasizing that the jury was to resolve their differences only “if possible.” The court thus gave a balanced charge meeting the criteria set forth in State v. Bryan, supra. Cf. Kozakoff v. State, 323 So. 2d 28 (Fla. 4th DCA 1975), cert. denied, 336 So. 2d 1184 (Fla. 1976) (trial judge’s remarks during voir dire examination demanding that the jury reach a verdict prejudiced defendant’s right to a hung jury).
We conclude that the defendant has failed to demonstrate prejudicial error and affirm the conviction and sentence below.
Affirmed.
. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
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Kelley v. State, 486 So. 2d 578 (Fla. 1986)…rned was not coerced, Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), and that the instructions were “balanced,” encouraging neither acquittal nor conviction. State v. Bryan, 290 So. 2d 482 (Fla.1974); Gardner v. State, 405 So. 2d 470 (Fla. 3d DCA 1981). At this point it may be helpful to consider the actual instructions which appellant here attacks: I would ask that you give it your full consideration. It is an important case. If you fail to reach a verdict, there is no .reaso…
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Orestes Rodriguez v. State, 462 So. 2d 1175 (Fla. 3d DCA 1985)…oses of appeal. The state’s first position is without merit. The [*1177] instruction given in the instant case was not the “balanced” type approved by the Florida Supreme Court in State v. Bryan, 290 So. 2d 482 (Fla.1974). See also Gardner v. State, 405 So. 2d 470 (Fla. 3d DCA 1981). Rather, the instruction could have only led the jurors to believe that they were required to return a verdict, thereby prejudicing the defendant’s right to a hung jury. Bryan, 290 So. 2d at 484; Nelson v. State, 438 So. 2d 1060 (…1 / 2
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Warren v. State, 498 So. 2d 472 (Fla. 3d DCA 1986)…ven. See, e.g., Rose v. State, 425 So. 2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 86 L.Ed.2d 706 (1983); Spaziano v. State, 393 So. 2d 1119 (Fla.1981), aff'd, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Gardner v. State, 405 So. 2d 470 (Fla. 3d DCA 1981); Peak v. State, 363 So. 2d 1166 [*476] (Fla. 3d DCA 1978), cert. denied, 373 So. 2d 460 (Fla.), cert. denied, 444 U.S. 970, 100 S.Ct. 642, 62 L.Ed.2d 384 (1979). As previously indicated, however, this standard charge has since bee…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allen v. United States, 164 U.S. 492 (U.S. 1896)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- State v. Bryan, 290 So. 2d 482 (Fla. 1974)
- Spaziano v. State, 393 So. 2d 1119 (Fla. 1981)
- Washington v. State, 397 So. 2d 285 (Fla. 1981)
- Kozakoff v. State, 323 So. 2d 28 (Fla. 4th DCA 1975)
- Robinson v. State, 378 So. 2d 1346 (Fla. 3d DCA 1980)