McComb v. State
174 So. 3d 1111
| Fla. Dist. Ct. App. | 2015Background
- Arthur McComb was convicted of aggravated battery with a deadly weapon after a physical altercation with his roommate, Heath Stenson, over a television.
- The parties gave competing accounts: Stenson said McComb struck him with a heavy flashlight; McComb said Stenson attacked first and he hit back after grabbing the flashlight.
- Both parties and third parties placed calls to 911; the trial court excluded one 911 recording (no abuse of discretion was found on appeal).
- At the charge conference, the trial court agreed to give a jury instruction on justifiable use of deadly force and discussed the nondeadly-force instruction, but the court ultimately omitted the nondeadly-force instruction when charging the jury.
- Defense counsel did not object to the omission; McComb appealed, arguing ineffective assistance of counsel for failing to object and secure the nondeadly-force instruction.
Issues
| Issue | Plaintiff's Argument (McComb) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether defense counsel was ineffective for failing to object to omission of the justifiable nondeadly-force instruction | Counsel's failure was unreasonable and deprived McComb of a viable defense because evidence left it ambiguous whether force used was deadly or nondeadly | No specific contention preserved at trial; court had instructed on deadly force and omission went unobjected | Court reversed: failure was ineffective assistance apparent on the face of the record; new trial ordered |
| Whether exclusion of a 911 recording was an abuse of discretion | McComb argued recording should have been admitted | State argued exclusion was proper | Court found no abuse of discretion and affirmed that evidentiary ruling |
Key Cases Cited
- Caruthers v. State, 721 So. 2d 371 (Fla. 2d DCA 1998) (when evidence does not establish as a matter of law whether force was deadly, the jury must decide deadliness)
- Stewart v. State, 672 So. 2d 865 (Fla. 2d DCA 1996) (nature of force, not merely use of a weapon, determines whether force is deadly)
- Michel v. State, 989 So. 2d 679 (Fla. 4th DCA 2008) (failure to request nondeadly-force instruction can constitute ineffective assistance when instruction supplies defense to the evidence)
- Forget v. State, 782 So. 2d 410 (Fla. 2d DCA 2001) (ineffective-assistance claims appearing on the face of the record may be addressed on direct appeal)
- Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987) (recognition that direct-appeal review of ineffective assistance is appropriate when record plainly demonstrates deficiency)