Rogers v. StateRogers v. State
Robert A. Butterworth, Atty. Gen., Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
We have for review the trial court‘s denial of appellant‘s motion for postconviction
It is also apparent that counsel was unprepared to challenge the testimony of another state‘s witness, codefendant Mary Cobb, by reason of counsel‘s having failed to have the tape recording of her pretrial deposition transcribed. Despite appellant‘s heavy reliance upon this dereliction, however, appellant failed to produce evidence, at his rule 3.850 evidentiary hearing, that the witness Cobb‘s trial testimony differed in any respect from her deposition testimony. Since apрellant failed to either produce a transcription of Cobb‘s deposition, or the tape, or to prove that the tape recording was lost or destroyed, making it impossible to produce a transcript, we are left to speculate or to “presume” that the transcript would have been favorable to the appellant. This we deсline to do. We know of no authority for finding a dereliction on the part of counsel for failure to present evidence of impeachment, without a showing that the unpresentеd evidence would indeed have been impeaching.
Appellant also relies on counsel‘s failure to move for a judgment of acquittal. It is clear, however, that the evidence presented during the state‘s case-in-chief was sufficient, if believed by the jury, to place appellant at the scene of and fully participating in the crimes. There is no showing that a motion for judgment of acquittal had any likelihood of success. Further, during the defense portion of the case, appellant testified, admitting his presence and participation in the offenses but attempting a defense based on “entrapment,” in which he contended that he was compelled to “go along” with the crimes at the instigation of his сodefendant Abbott, which he did in order not to jeopardize his status as a confidential informant working for the local law enforcement authorities.2
While it may be apparent, in hindsight, that the entrapment defense might have been ill-suited to the facts, since appellant admitted that no law enforcement officer
Finally, we have considered the contention that appellant‘s counsel was incaрacitated by reason of intoxication during the trial. There was testimony by the Chief Assistant Public Defender that attorney Moore‘s reputation in the legal community was “that he was an alсoholic.” The witness acknowledged, however, that his assistant, a highly respected trial attorney who represented one of appellant‘s codefendants, told him that while he attended appellant‘s trial because he was worried about Moore‘s ability, Moore nevertheless “handled himself excellently.” The defense investigator hired by Moore, who had served with Moore in the Air Force, testified that Moore drank frequently, including during pretrial and the trial. When asked if he could tell whether Moore was intoxicated, he said that he did not rеmember ever seeing Moore completely sober. He admitted, however, that he never came in close contact with Moore during the trial, and never smelled his breath. Thе prosecutor at appellant‘s trial testified that he did not notice any evidence of drinking or intoxication on Moore‘s part during the trial, and that he thought Moore had donе an adequate to good job in defending appellant. He felt that Moore had taken “an unviable defense” and done an extremely good job with it.
While any evidence of thе use of intoxicants during a trial is extremely disturbing to this court, we do not feel that the evidence below rises to the level required to establish that Moore drank during the trial, or if he did, that he was in any way incapacitated by the consumption of alcohol. We find no abuse of discretion in the trial court‘s denial of relief on this ground.
In the landmark case of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the court set forth the following standard for determining ineffective assistance of counsel requiring reversal:
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so sеrious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced thе defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cаnnot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
While the trial court perhaps misstated the test under the above decision when he found that any errors or omissions by counsel “did not result in the [alteration] of the outcome of the final verdict,” he also found that “no substantial prejudice was occasioned by Mr. Moore‘s dereliction, if any, and the court will therefore deny the motions.” Upon consideration of the matters above discussed, аs well as other arguments raised by counsel, we conclude that appellant failed to carry the burden of demonstrating errors so serious as to deprive the defendant of а fair trial, or a trial whose result is reliable.
The order denying postconviction relief is therefore
AFFIRMED.
SMITH, JOANOS and ZEHMER, JJ., concur.