Filed: Mar. 18, 2015
Latest Update: Mar. 18, 2015
Summary: PER CURIAM . This is the second appeal from denials of Johnnie Floyd's motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In Floyd v. State, 129 So.3d 1214 , 1215 (Fla. 1st DCA 2014), we reversed in part the denial of the motion, and directed the trial court to address on remand whether counsel's performance was "deficient for failing to object to the state's questions regarding appellant's post-arrest silence," noting that because "the appellant's
Summary: PER CURIAM . This is the second appeal from denials of Johnnie Floyd's motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In Floyd v. State, 129 So.3d 1214 , 1215 (Fla. 1st DCA 2014), we reversed in part the denial of the motion, and directed the trial court to address on remand whether counsel's performance was "deficient for failing to object to the state's questions regarding appellant's post-arrest silence," noting that because "the appellant's ..
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PER CURIAM.
This is the second appeal from denials of Johnnie Floyd's motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In Floyd v. State, 129 So.3d 1214, 1215 (Fla. 1st DCA 2014), we reversed in part the denial of the motion, and directed the trial court to address on remand whether counsel's performance was "deficient for failing to object to the state's questions regarding appellant's post-arrest silence," noting that because "the appellant's defense at trial was self-defense, the state's highlighting of the fact that he exercised his right to remain silent and did not volunteer information could have been prejudicial." On remand, the trial court again denied relief. We now reverse and remand for a new trial.
"[T]o prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance was deficient — i.e., unreasonable under prevailing professional norms; and (2) that the deficiency prejudiced the defense — i.e., that there is `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' `A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Jones v. State, 998 So.2d 573, 582 (Fla. 2008) (citations omitted). Although an evidentiary hearing was held on remand, the trial court failed to address the question we had identified as crucial on the issue of ineffective assistance. Our own, independent review of the record of the evidentiary hearing reveals, however, that there is no competent, substantial evidence from which the trial court could conclude that trial counsel's failure to object to the line of questioning we quoted in our prior opinion in this matter1 was a reasonable tactical choice.2
Trial counsel's performance was deficient. "Commenting on the defendant's exercise of his right to remain silent is serious error." Rimmer v. State, 825 So.2d 304, 322 (Fla.2002).3 The line of questioning at issue "clearly constituted comments on the appellant's right to remain silent." Floyd, 129 So.3d at 1215. At the evidentiary hearing, trial counsel testified he believed the prosecutor's questions were improper comments on Mr. Floyd's silence but that his failure to object was motivated by not wanting to annoy the jury or give the appearance of attempting to hide something from the jury. His stated rationale for not objecting does not square, however, with the fact that he did make two other objections (one without apparent merit and one to admission of inconsequential evidence) during cross-examination of Mr. Floyd.
As we indicated in our prior opinion, there is a reasonable probability that, but for counsel's failure to object, the result of the proceeding would have been different. The state was proceeding on the premise that a "discrepancy between an exculpatory story at trial and silence at time of arrest gives rise to an inference that the story was fabricated somewhere along the way, perhaps to fit within the seams of the State's case." Doyle v. Ohio, 426 U.S. 610, 616, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).4 "Not only is evidence of silence at the time of arrest generally not very probative of a defendant's credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest." United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (concluding "the respondent's silence during police interrogation lacked significant probative value and that any reference to his silence under such circumstances carried with it an intolerably prejudicial impact"). There is every reason to believe the objections would have been sustained if they had been made.
Mr. Floyd relied on a theory of self-defense. His credibility was key to the jury's determination whether he acted in self-defense. Even trial counsel testified that his client was prejudiced because the prosecutor was allowed to ask him "Why not talk to the police if what you are saying is true" and emphasize that Mr. Floyd did not want to talk to the police at the time of his arrest (or afterward).
Reversed and remanded.
BENTON, WETHERELL, and SWANSON, JJ., concur.