Jackson v. StateJackson v. State
This is an appeal from an order of the Circuit Court of the Fourteenth Judicial Circuit in and for Bay County denying a motion for post-conviction relief. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const.
Aрpellant, Carl Jackson, was charged with robbery, kidnapping, and two counts of first-degree murder. The crimes are described in more detail in our opinion in Jackson v. State,
At the conclusion of the sentencing phase of the trial, the jury recommended that appellant be put to death for both murders. The trial court concurred and imposed the death penalty, which this Court affirmed. Jackson I. Appellant thereafter filed in the circuit court, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, a motion for post-conviction relief alleging several infirmities in the conduct of his trial. The circuit court denied the motion and this appeal followed.
Three of the four issues argued by appellant аre matters that could or should have been raised on direct appeal, and so are not cognizable in this proceeding. Adams v. State,
The issue properly raised in this proceeding is appellant’s contention that the trial court erred in finding that he was afforded effective assistance of counsel at trial, sentencing, and appeal. First in the list of alleged errors and omissions is defense counsel’s “failure to adequаtely conduct discovery, investigate, and prepare in
Next in the list of alleged errors are the failure to timely object to the introduction of a fingerprint which appellant claims was not properly marked as his and counsel’s “ineffective” efforts to оbtain a change in venue. Both are attributed to his attorney’s “lack of experience and preparation.”
Defense counsel’s voir dire examination of potential jurors is faulted in several ways. Appellant argues that the issues of pre-trial publicity and racial bias were only cursorily and ineffectively delved into, and that сounsel’s Witherspoon inquiry was glaringly deficient. Also faulted are his counsel’s failure to request sequestered voir dire of certain prospective jurors and to ask for additional pеremptory challenges after using the forty allotted appellant.
The total “failure to investigate and present a defense” is a significant example of the inаdequate representation which he received, claims appellant. He argues that his lawyer was made aware of several individuals whose testimony might have provided an alibi defense, and that she failed to investigate and develop the same simply because an assistant state attorney assured her that the men in question would testify that they had not been with appellant at the relevant times. Finally, appellant notes that his counsel failed to request jury instructions on the effect of a jury recоmmendation of mercy and did not request a presentence investigation report before the trial court passed sentence.
In Knight v. State,
First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in DeCoster III [United States v. DeCoster,624 F.2d 196 (D.C.Cir. 1979)]: “To be ‘belоw average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsеl’s acts or omissions deviated from a checklist of standards.”624 F.2d at 215 . We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under thе circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must conсern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established.
Although appellant met the first requirement above, he failed to show that most of the omissions were serious deficiencies beyond what would be expected of competent counsel. His expert witness’ testimony that
The lack of objection to the labeling of the fingerprint also fails to convince us that counsel was inеffective. Even if we agreed that such was measurably below what is expected of competent attorneys, it certainly did not so prejudice appellant that he might otherwise not have been found guilty, since it was not disputed that his fingerprint was found at the scene.
The remainder of the alleged shortcomings may be dismissed in a similar manner. Thе “failure to investigate and present a defense” and to request instructions on the effect of a jury recommendation of mercy do not fall measurably below the standard expected of competent counsel. Although appellant is obviously dissatisfied with the result of the defense that was presented, we will not use the perfect vision of hindsight and label that defense incompetent. It was, under the circumstances, a reasonable strategy.
Defense counsel’s voir dire examination regarding pretrial publicity, racial bias, and imposition of the death penalty was not so lacking as to be considered incompetent. If it was deficient at all, it was not substantial еnough to demonstrate a prejudice to appellant so severe that it affected the outcome of the proceedings. The reeord shows that aрpellant’s guilt was clearly and convincingly demonstrated by more than adequate evidence. Any shortcomings in voir dire were not the conclusive and decisive factors in his conviction.
As the trial court noted in denying appellant’s rule 3.850 motion, a “textbook defense” is not the requirement here. The trial court heard the arguments in the 3.850 hearing, considered the expert testimony presented by both sides, and determined that the representation afforded appellant was adequate. None of the arguments raised convince us that said decision was unsubstantiated or incorrect, and so the trial court’s decision is affirmed.
It is so ordered.