JIMMY LEON MARROW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1998-08-07
No. 98-257
BARFIELD, C.J., and WOLF, J., concur.
715 So. 2d 1075 Florida District Court of Appeal, First District (1998) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this post-conviction relief case, the appellate court reversed the trial court's denial of one of three ineffective assistance of counsel claims, finding that the defendant's allegation that trial counsel failed to investigate and interview a potential witness named Chuck stated a facially sufficient claim requiring an evidentiary hearing or further record development.


Holding

The court held that the claim was facially sufficient because it identified the witness with sufficient specificity (Chuck, the co-defendant's close friend), described the substance of his potential testimony (similar physical appearance to the burglar description and friendship with the co-defendant), and explained how the omission prejudiced the trial (creating reasonable doubt about the co-defendant's credibility and the passer-by identification).


Headnotes

[1] A motion alleging ineffective assistance of counsel for failure to interview or investigate a witness is facially sufficient if it identifies the prospective witness, sta…

[2] The failure to call a witness can constitute ineffective assistance of counsel if the witness could have cast doubt on the defendant's guilt, and the defendant's motion i…

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Key Quotes

“In cases involving ineffective assistance of counsel based on counsel's alleged failure to investigate and to interview witnesses, a facially sufficient motion 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.”

Establishes the three-part test for ineffective assistance claims based on failure to investigate witnesses

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Facts & Procedural History

Appellant was convicted of burglary. A passer-by witness (Mr. Williams) identified appellant as the burglar. Appellant alleged he instructed his trial…

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Opinion of the Court
JOANOS, Judge.

JOANOS, Judge.

Appellant seeks review of an order denying his motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that one of appellant’s claims of ineffective assistance of counsel is facially sufficient, and the claim was not refuted by the portions of the record attached to the order. Therefore, we reverse solely with-regard to appellant’s claim that trial counsel was ineffective for failing to interview' and to investigate a potential witness.

“In cases involving ineffedtive assistance of counsel based on counsel’s alleged failure to investigate and to interview witnesses, a facially sufficient motion 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.” See Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993). See also Greeson v. State, 23 Fla. L. Weekly D1566 (Fla. 1st DCA June 22, 1998). In this regard, “the failure to call witnesses can constitute ineffective assistance of counsel if the witnesses may have been able to cast doubt' on the defendant’s guilt, and the defendant states in his motion the witnesses’ names and the substance of their testimony, and explains how the omission prejudiced the outcome of the trial.” See Jackson v. State, 711 So. 2d 1371, 23 Fla. L. Weekly D1472, D1473 (Fla. 4th DCA June 17, 1998), citing Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989). See also McCaskill v. State, 666 So. 2d 1049 (Fla. 1st DCA 1996); Thomas v. State, 639 So. 2d 1117, 1118 (Fla. 1st DCA 1994).

Appellant in this case alleged that he asked defense counsel to interview and to call as a witness an individual known as Chuck. The motion states that Chuck bears more similarity than does appellant to the description of the burglar which was given by Mr. Williams, a passer-by witness. The motion also states that appellant told defense counsel where Chuck’s mother lived, told counsel the co-defendant was dating Chuck’s sister at the time of the burglary, and told counsel that the co-defendant and Chuck were close friends. Appellant alleged that if Chuck had been called as a witness, his appearance and his testimony to the facts as alleged by appellant would have created a reasonable doubt in the minds of jurors as to the co-defendant’s credibility, and the passer-by identification of appellant as the burglar. The motion does not set forth the complete name of the potential witness, but it appears the witness was identified with sufficient specificity to permit defense counsel to locate and to interview him. Appellant alleged that he knew the co-defendant slightly, but Chuck was a close friend of the co-defendant. Appellant further alleged that the co-defendant’s friendship with Chuck, together with the co-defendant’s need to provide the state with a suspect to secure a plea agreement, furnished the motive for the co-defendant to identify appellant, rather than Chuck, as his accomplice in the burglary.

.We conclude the foregoing allegations are facially sufficient to require an evidentiary hearing or further attachment of portions of the record which conclusively refute the claim. The identity of the accomplice was the critical issue in the state’s case against appellant. Assuming that Chuck’s build is similar to the description given by the passer-by witness, and his testimony at trial established that he and the co-defendant are friends, there is a reasonable possibility that Chuck’s appearance at trial could have cast doubt on the identity of appellant as the accomplice in the burglary.

Accordingly, we reverse that portion of the order denying post-conviction relief as to appellant’s claim that his trial counsel was ineffective for failing to interview and to investigate a potential witness. This portion of the order is remanded either for attachment of further portions of the record which conclusively demonstrate that appellant is entitled to no relief, or for an evidentiary hearing. The trial court’s denial of the remaining claims of ineffective assistance of counsel is affirmed.

BARFIELD, C.J., and WOLF, J., concur.


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Citator

Cited By

  • Smith v. State, 815 So. 2d 707 (Fla. 1st DCA 2002)
    …onviction relief. We affirm the order except as to the claim based on counsel’s alleged failure to properly investigate and interview a potential defense witness. This was a facially sufficient claim in accordance with cases such as Marrow v. State, 715 So. 2d 1075 (Fla. 1st DCA 1998). Furthermore, this claim was not negated by the appellant’s plea, as the motion indicates that he would not have entered such a plea in the absence of the alleged failure. See Thom [*708] as v. State, 734 So. 2d 1188 (Fla. 1st DC…
  • Brown v. State, 892 So. 2d 1119 (Fla. 2d DCA 2004)
    …vide exculpatory version of events is sufficient to show prejudice); Devaney, 864 So. 2d at 88 (stating that counsel’s failure to call a witness who could have cast doubt on the defendant’s guilt constitutes ineffective assistance); Marrow v. State, 715 So. 2d 1075, 1075 (Fla. 1st DCA 1998) (same). We reverse and remand with directions to afford Brown a new trial on the charge of delivery of cocaine. Because counsel’s error did not affect Brown’s convictions for possession of cocaine and resisting an officer…
  • Bennett v. State, 838 So. 2d 633 (Fla. 1st DCA 2003)
    …failure to investigate and interview a witness, the claim must state the identity of the witness, the substance of the witness’ testimony, and an explanation of how the omission of this testimony prejudiced the outcome of the case. Marrow v. State, 715 So. 2d 1075 (Fla. 1st DCA 1998). In the instant case, Appellant identified the witness as the victim, attached a notarized affidavit of the victim stating that Appellant was not the person who stole his car, and she explained that she would not have entered a p…

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