State v. King

325 So.3d 313

STATE of Florida, Appellant,

v.Andrew KING, Appellee.

No. 1D19-4166

District Court of Appeal of Florida, First District.

September 9, 2021

Ashley Moody, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee; and Sheila Ann Loizos, Assistant State Attorney, Jacksonville, for Appellant.

S. Nicole Jamieson of the Law Office of S. Nicole Jamieson, Fernandina Beach; and Susanne K. Sichta, Jacksonville, for Appellee.

Kelsey, J.

Based on one argument among sixteen raised in Appellee's postconviction motion alleging ineffective assistance of trial counsel, the postconviction court vacated Appellee's convictions and three consecutive life sentences. The jury had convicted him of first-degree murder of an adult woman and her full-term, unborn quick child, and armed burglary. We reverse.

I. Rule 3.850 Standards.

A movant invoking Florida Rule of Criminal Procedure 3.850 must establish both deficient performance and prejudice. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficiency prong requires a showing that no reasonably competent lawyer would have performed in the challenged manner; in other words, that counsel's errors were "so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. ; see also Skrandel v. State , 830 So. 2d 109, 115 (Fla. 4th DCA 2002). The prejudice prong requires a showing that but for counsel's deficient performance, it is reasonably probable that the jury would have reached a more favorable verdict. Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

In deciding a 3.850 motion, the trial court should make "every effort" to "eliminate the distorting effects of hindsight." Id . at 689, 104 S.Ct. 2052. The trial court's reasoning and decision must be supported by competent, substantial evidence. See Sochor v. State , 883 So. 2d 766, 771–72 (Fla. 2004). While we defer to the trial court's conclusions supported by such competent, substantial evidence, our deference is neither blind nor absolute. We do not defer to findings unsupported by such evidence. See id . at 772–73.

We review de novo the court's legal conclusions on deficient performance and prejudice. Id . at 781. While we respect very much the trial court's detailed assessment of this complex case, our application of the governing legal principles on the record presented leads us to conclude that the trial court's decision was not supported by competent, substantial evidence. Appellee did not demonstrate either deficient performance or prejudice.

II. Proceedings Below.

These convictions resulted from Appellee's third trial on the same charges. The same trial judge presided over the three trials within a fifteen-month span from June of 2012 to September of 2013. Appellee had the same two very experienced defense lawyers in all three trials. In the first two trials, the State sought the death penalty, and the trials ended with hung juries. To avoid a twelve-person capital jury in the third trial, Appellee asked the State to drop the death penalty claim, and the State did.

Appellee did not testify at any of his trials or at the 3.850 hearing, but his defensive theory was that his then on-and-off girlfriend, who lived with the victim, committed the murder and staged the scene to frame him. The six-person jury in the third trial convicted Appellee as charged, after deliberating less than two hours. Appellee raised only a Williams -rule argument on his direct appeal, and we per-curiam affirmed Appellee's judgments and sentences. King v. State , 156 So. 3d 1080 (Fla. 1st DCA 2015) (Table).

Appellee's 3.850 motion was pro se, but his new postconviction counsel adopted it and argued for Appellee at a hearing before another judge, not the one who had tried the case.¹ The sole argument on which the postconviction court granted relief was number ten: that Appellee's trial counsel was ineffective for failing to introduce evidence of a "temperature discrepancy" between the inside and outside of the house where the murder occurred.²

III. The Lead-Up and the Murder.

The murder likely occurred between 4:00 and 8:00 a.m. on Tuesday, June 8, 2010, in Arlington, on the southeast side of Jacksonville. Because the evidence developed at trial is necessary to evaluate the prejudice prong of Strickland —i.e., whether counsel's alleged deficiency reasonably could have made a difference in the outcome—we set out the relevant facts at some length. This is especially necessary when the defense is that another person committed the murder, because the analysis involves the comparative likelihood of guilt of two persons rather than the defendant alone.³

Since March of 2010, Appellee's girlfriend had a full-time day job, and also had been attending night classes to become a medical assistant, which she described as an aide "below a nurse." The classes lasted four to five hours a night, Monday through Thursday.

The girlfriend rented a small house of about 700 square feet. In April, she allowed the victim to move in, in exchange for babysitting and housekeeping services during the many hours a day when the girlfriend was at work or school. The victim, who was pregnant, was the paternal aunt of the girlfriend's two-year-old son, who also lived at the house. There was some evidence of a contentious relationship between the victim and the girlfriend, including an incident in May when the victim hit the girlfriend in the head.

Appellee moved into the home after the victim did. The two had a contentious relationship. The victim did not like Appellee, was often rude and malicious toward him, and tried to convince the girlfriend to leave him. Appellee demanded that the girlfriend choose between him and the victim, because he would not stay while the victim was living there. Given the ultimatum, the girlfriend chose to keep the victim there. Appellee blamed the victim for coming between him and his girlfriend. He moved in with his mother only five blocks away.

Shortly after that, on May 12, Appellee committed criminal mischief at the house, which he admitted, and for which he was placed on probation. Appellee had been asking the girlfriend to return his laptop computer, which she refused to do and told him (falsely) that it was gone, which made him angry. The girlfriend, her son, the victim, and a third person—whom Appellee erroneously thought was another of the girlfriend's boyfriends—were in the house. The front door was not locked, and Appellee still had keys to the house. Appellee came to the house armed with a claw hammer and demanded entry, which was refused. Appellee flew into a rage, kicked through the wooden panel at the bottom of the front door, and used the hammer to break the glass in the front door, sticking his head through the opening.

Police were called. Appellee waited for them without fleeing, and admitted guilt. He was found guilty of criminal mischief and ordered to stay away from the residence. Nevertheless, he and the girlfriend resumed their intimate relationship. About two weeks after that incident and two weeks before the murder, on May 24, the girlfriend suffered a miscarriage.

On June 4, Appellee brought a lawn mower to the girlfriend's house and mowed the grass. He also cut a hole in the drywall for the dryer vent. The girlfriend later testified that the tool he used to cut the hole had "teeth" on it. No such tool was ever found.

On June 6, two days before the murder, the girlfriend had to take the victim to the hospital because the victim was experiencing labor pains, which turned out to be a false alarm. Appellee stayed at the house babysitting for the girlfriend's child while the two women were at the hospital. They returned home late, and the following morning, June 7, the two women had a fight in which the victim stated she wanted to leave.

Later that day when the girlfriend was going to her night class after working her day job, the victim called the girlfriend and told her that her son (the girlfriend's) had received a large number of ant bites and needed to go to the hospital. The girlfriend went home, picked up her son and the victim, and headed to the emergency room. The victim insisted on stopping to eat first, which irritated the girlfriend. Ultimately, after they waited for several hours without being seen at the emergency room, the boy seemed better, so they went home and put him to bed. By then it was after eleven o'clock. Around midnight, Appellee came to the home and took out the trash, which apparently was not unusual. At 1:05 a.m., there was a phone call from the girlfriend's phone to a man who lived in Palatka, and evidence later indicated that the victim had called him using the girlfriend's phone because she wanted to leave Jacksonville and go back home to Palatka.

A little before 1:00 a.m., Appellee had received on his phone evidence that the girlfriend had sent a topless picture of herself to another previous boyfriend. Appellee's mother later testified that she saw Appellee at her house at 1:00 a.m. with his phone, and he told her about this picture. This news set off an exchange of tense texting and phone calls between Appellee and the girlfriend. The girlfriend was also irritated that Appellee had not returned a baby bed, saying they would need it for the victim very soon. Around 3:26 a.m., Appellee texted the girlfriend that he was going to leave his keys to her house at the end of her driveway, "so that I don't get accused of something I didn't do." He also texted that he was already walking through the neighborhood. The girlfriend later testified that the victim advised her not to go outside, but the girlfriend checked the driveway anyway and the keys were not there.

Phone and text records later showed that Appellee's texts continued until 3:49 a.m. The girlfriend stopped responding to Appellee's texts around 2:00 a.m. Appellee texted the girlfriend's aunt, with whom he was friends, at 2:00 a.m. He said he...