ALONZO GUTIERREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2001-01-17
No. 2D00-3602
THREADGILL, A.C.J., and NORTHCUTT and SALCINES, JJ., concur.
778 So. 2d 372 Florida District Court of Appeal, Second District (2001) Positive Treatment
Cited by 4 cases

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Synopsis

Alonzo Gutierrez appealed the summary denial of his post-conviction motion for ineffective assistance of counsel. The appellate court reversed and remanded for further proceedings on his claim that trial counsel failed to call two witnesses who could have testified that he was not present at the shooting, while affirming his other ineffective assistance claims.


Holding

The court held that Gutierrez presented a facially sufficient claim of ineffective assistance of counsel regarding counsel's failure to call the two witnesses. The trial court's summary denial was improper because it failed to adequately consider whether their testimony would have created reasonable doubt and failed to attach record evidence supporting its findings regarding the witnesses' credibility and potential bias.


Headnotes

[1] A facially sufficient claim of ineffective assistance of counsel requires allegations that counsel's performance was deficient and that the deficient performance prejudic…

[2] The credibility of a witness is not automatically discredited by their own conviction for crimes arising from the same incident.

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Key Quotes

“Appellant has presented a facially sufficient claim alleging ineffective assistance of counsel.”

Establishes that the appellate court found Gutierrez satisfied the threshold requirement for raising an ineffective assistance claim.

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Facts & Procedural History

Gutierrez was convicted of one count of first-degree murder and three counts of attempted first-degree murder with a firearm. Passengers in a Chevrole…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Alonzo Gutierrez, challenges the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised several claims of ineffective assistance of trial counsel. We reverse and remand for further proceedings on appellant’s claim that counsel was ineffective for not calling two witnesses at trial. We affirm appellant’s other claims without discussion.

Appellant was convicted, after a jury trial, of one count of first-degree murder and three counts of attempted first-degree murder with a firearm. The victims were passengers in a Chevrolet Blazer that was fired upon by the occupants of a Ford Taurus. The key witness against appellant, Lucan Phillips, was an uncharged occupant of the Taurus who testified that appellant was one of the gunmen and was in the front passenger seat of the Taurus. The jury rejected appellant’s alibi defense.

In his motion for postconviction relief, appellant alleged that trial counsel was ineffective for failing to call Lorenzo Gutierrez and Pablo Gutierrez, occupants of the Taurus, to testify that appellant was not in the vehicle at the time of the shooting. According to appellant, Lorenzo and Pablo also would have corroborated the testimony of one of the occupants of the victims’ vehicle that Damian Flores was in the front passenger seat of the Taurus. Appellant alleged counsel was aware of these witnesses prior to trial. He further alleged that if counsel had called these witnesses, their testimony would have created a reasonable doubt as to his guilt and that the result of the trial would have been different. Appellant has presented a facially sufficient claim alleging ineffective assistance of counsel. See Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000).

The trial court found it doubtful that Lorenzo and Pablo’s testimony would have helped appellant, noting that Lorenzo was himself convicted of one count of first-degree murder and three counts of attempted first-degree murder arising out of the same incident and that Pablo pleaded to lesser charges. This would not, in itself, have discredited their testimony. It would have established them at the scene and in a position to know who was in the car. It also could be argued that they had nothing personally to gain from their testimony as opposed to Phillips, who was not charged in the incident. The trial court noted that, in his initial statement to the police, Lorenzo implicated appellant in the offenses. Such prior inconsistent statements could have been used to impeach Lorenzo if he had testified that appellant was not involved in the offense1 and would rebut appellant’s claim that the omission of Lorenzo’s testimony affected the outcome of the case. However, the trial court failed to attach those portions of the record indicating that Lorenzo had made such statements.

The trial court also found that if Lorenzo and Pablo had “testified that [appellant] was not in the vehicle at the time of the shooting, it lends nothing to the alibi defense asserted by [appellant], because nei ther Lorenzo nor Pablo was allegedly with [appellant] at his in-law’s house on the night in question.” We note, however, that if Lorenzo and Pablo had testified as appellant claims, while they may not have been able to testify to appellant’s actual whereabouts at the time of the offense, their testimony would certainly have bolstered his claim that he was not present at the shootings.

Finally, the trial court found that if either Lorenzo or Pablo had taken the stand, “their credibility would have been subject to attack by the State, particularly on issues of bias and interest.” One might speculate that Lorenzo and Pablo were related to appellant; however, the trial court, in its order, does not elaborate as to what their bias in favor of appellant might be, let alone attach any portions of the record that would demonstrate bias.

We reverse and remand for further proceedings on this claim, which may include an evidentiary hearing. If the trial court again concludes that summary denial is proper, it must attach those portions of the record which demonstrate appellant is not entitled to relief.

Reversed and remanded.

THREADGILL, A.C.J., and NORTHCUTT and SALCINES, JJ., concur. . See § 90.614(2), Fla.Stat. (1997).


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Citator

Cited By

  • Stokes v. State, 787 So. 2d 99 (Fla. 2d DCA 2001)
    …ified as to the victim’s identification of the perpetrator as “Ernest” with more credibility than the officer. The limited record before this court supports Stokes’s claim that his counsel’s omission was indeed prejudicial. See Gutierrez v. State, 778 So. 2d 372 (Fla. 2d DCA 2001). Whether this failure was a strategic decision cannot be determined from the record before this court. It is entirely possible that defense counsel may have made a viable strategic decision to rely on the officer’s statement rathe…
  • State v. Stokes, 848 So. 2d 1226 (Fla. 2d DCA 2003)
    …viction court summarily denied Mr. Stokes’s motion. On appeal, however, our court reversed, stating as follows: The limited record before this court supports Stokes’s claim that his counsel’s omission was indeed prejudicial. See Gutierrez v. State, 778 So. 2d 372 (Fla. 2d DCA 2001). Whether this failure was a strategic decision cannot be determined from the record before this court. It is entirely possible that defense counsel may have made a viable strategic decision to rely on the officer’s statement rathe…

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