JACK HOUSTON BROOKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the claim of ineffective assistance of counsel for failing to call defense witnesses, as the allegations were sufficient and required further review.
[1] A claim of ineffective assistance of counsel based on the failure to call witnesses requires allegations identifying the prospective witnesses, the substance of their tes…
[2] A trial court must attach record portions conclusively refuting a claim of ineffective assistance of counsel or hold an evidentiary hearing when the claim is not conclusi…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of lewd acts with a child, with the victim's recanted testimony and DNA evidence presented at trial. He later filed a motion f…
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WOLF, Judge.
Brooks appeals from a final order summarily denying his rule 3.850 motion for post-conviction relief. He raised a number of grounds in his motion, only one of which requires an evidentiary hearing or attachment of portions of the record conclusively refuting the claim.
Appellant claimed that defense counsel had rendered constitutionally ineffective assistance by failing to call Christy Stewart or Linda Brooks as defense witnesses.
The trial court denied this claim at least in part because there had been no showing that counsel’s performance had been outside the wide range of reasonable professional assistance, or that the outcome of the trial would have been different.
The trial court did not, however, attach to its order denying relief any portions of the record supporting these conclusions.
We find in light of the limited evidence of defendant’s guilt at trial, and the critical nature of the evidence in controversy, that the trial court erred in summarily denying this claim. As to all other grounds raised by appellant in his motion, we affirm the trial court’s summary denial of relief.
Appellant was found guilty of committing a lewd and lascivious act in the presence of a child and committing a lewd or lascivious assault upon a child. The charges arose out of an alleged attack by appellant on his daughter’s half sister during an automobile trip to the victim’s cousin’s house.
At trial, the jury heard testimony from the victim’s cousin, the investigating officer, and the physician who examined the victim following the alleged attack. All testified that on the date of the alleged incident, the victim had related that appellant had sexually assaulted her. The victim was called as a court witness, and essentially testified that the whole story had been fabricated to get back at appellant for having slapped her and that she had been crying when she got to her cousin’s house that night only because appellant had slapped her. The only physical evidence presented at trial directly relating to appellant’s guilt were the victim’s clothes, including a body suit and a pair of shorts, and the results of DNA testing performed on one or more of these items. The victim’s clothes had been taken as evidence during the physical examination of her which occurred on the night of the alleged attack. A Florida Department of Law Enforcement (FDLE) crime lab analysis of these clothing items showed the presence of seminal fluid on both the body suit and the shorts. A preliminary DNA report completed by FDLE showed that the DNA profile taken from secretions on the fabric submitted for analysis matched appellant’s DNA profile. It is impossible to tell from the record before us whether the DNA match was made from the body suit or the shorts or both.
Appellant claimed in his motion that defense counsel had rendered constitutionally ineffective assistance by failing to call a single defense witness on behalf of appellant. Appellant specifically named two witnesses, Christy Stewart and Linda Brooks, whom he stated should have testified. According to the allegations made in the motion, Stewart would have testified that the victim had planned to wrongly accuse appellant of this crime, and Linda Brooks would have testified that she owned the semen-stained body suit allegedly found by police in the possession of the victim, that she had worn the body suit the day before the alleged incident, that the victim had “stolen” the body suit from the dirty clothes hamper at the Brooks’ residence on the day of the alleged incident, and that the victim had been wearing shorts and a blouse (not the body suit) when she left the Brooks’ residence on the night of the alleged incident. In support of his allegations in this regard, appellant attached to his motion an affidavit from Linda Brooks showing that she would have testified as he alleged in the motion. Appellant also specifically alleged in support of this claim that the body suit had been a major issue in this case and that without it only inconsistent hearsay statements would have remained as evidence which would have been legally insufficient by themselves to support a finding of guilt beyond a reasonable doubt. Appellant further alleged in support of this claim that “[c]oun-sel’s decision not to call any defense witnesses caused this Defendant to be found guilty of crimes that he did not commit” (emphasis in original). These allegations were adequate to state a legally sufficient ineffective assistance of counsel claim. This court has specifically held that posteonvietion ineffective assistance of counsel claims challenging an alleged failure by defense counsel to call witnesses favorable to the defense, must include the following allegations: “(1) the identity of the prospective witnesses; (2) the substance of the witnesses’ testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial.” Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993).
Appellant specifically identified who defense counsel should have called as witnesses, stated what those persons would have said had they been called, and explained that this omission prejudiced the outcome of the trial in that had these witnesses testified he would not have been found guilty.
The trial court’s denial of this claim without the requisite attachments showing why the omission of these witnesses’ testimony would have made no difference warrants a reversal either for attachment of those portions of the record demonstrating why the omission of these witnesses’ testimony would have made no difference, or for an evidentiary hearing. See Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Highsmith, supra.
BARFIELD, C.J., and LAWRENCE, J., concur.
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Darrel Schopper v. State, 790 So. 2d 471 (Fla. 5th DCA 2001)…ness, the substance of the witness’ testimony and explains how the omission of the testimony prejudiced the outcome. See, e.g., Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000); Jackson v. State, 711 So. 2d 1371 (Fla. 4th DCA 1998); Brooks v. State, 710 So. 2d 595 (Fla. 1st DCA 1998). In light of the fact that Schopper’s first trial resulted in a hung jury and Schop-per’s unexplained wealth appeared to be an important issue in the trial, we conclude that Schopper’s motion was facially sufficient in alleging…
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Wright v. State, 796 So. 2d 606 (Fla. 4th DCA 2001)…having failed to strike juror Cynthia King. We find that these two issues warrant an evidentiary hearing as they are facially sufficient and not refuted by the record. See e.g. Schopper v. State, 790 So. 2d 471 (Fla. 5th DCA 2001); Brooks v. State, 710 So. 2d 595 (Fla. 1st DCA 1998); Franco v. State, 777 So. 2d 1138 (Fla. 4th DCA 2001). The remaining issues are either legally insufficient or are conclusively refuted by the portions of the record provided. WARNER, FARMER and HAZOURI, JJ., concur.…
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Sookov v. State, 853 So. 2d 543 (Fla. 5th DCA 2003)…as Sookov and had agreed to testify. However, Sookov contends that counsel failed to interview, depose or subpoena this witness.1 These allegations adequately state a legally sufficient ineffective assistance of counsel claim. See Brooks v. State, 710 So. 2d 595, 597 (Fla. 1st DCA 1998). Sookov identified the prospective witnesses that trial counsel should have called and their whereabouts, stated the substance of the witnesses’ testimonies, and explained how the alleged omission prejudiced the outcome of t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)