State v. Morris

1

STATE OF FLORIDA, Appellant, v. ROBERT JEAN MORRIS, Appellee.

No. 4D2023-0117

Florida Court of Appeals, Fourth District

March 6, 2024

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit Broward County; Marina Garcia-Wood, Judge; L.T. Case No 14-14141CF10A.

Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano Senior Assistant Attorney General, West Palm Beach, for appellant.

Marcia J. Silvers, Miami, for appellee.

FORST J.

The State timely appeals the grant of appellee Robert Jean Morris's ("Defendant") Florida Rule of Criminal Procedure 3.850 motion alleging ineffective assistance of trial counsel. We disagree with the trial court and reverse concluding that Defendant's alleged errors are insufficient to meet the high bar imposed by Strickland v. Washington, 466 U.S. 668 (1984).

Background

A. Defendant's Conviction

Defendant was convicted for second-degree murder with a firearm and possession of a firearm with the serial number removed. Defendant was represented by two experienced criminal defense attorneys. Fred Haddad represented Defendant as lead trial counsel, with Tarlika Navarro as cocounsel. The crux of the trial centered on whether Defendant had killed Omar Khan ("Victim") in self-defense. The following evidence was adduced at trial, including from Defendant's testimony.

On the day of Victim's death, Defendant and Victim met and entered Victim's vehicle. Defendant testified that he had wanted to buy Xanax from Victim because Defendant's cousin was interested in purchasing some and because Defendant knew Victim was a drug dealer since he had previously purchased Xanax from him. Defendant also acknowledged he was carrying a gun, explaining he did so for protection.

Defendant claimed that, after meeting up with Victim, Defendant realized he still owed Victim for a prior drug purchase. Defendant further contended that Victim had threatened him with a gun before over a drug debt, so Defendant wanted to reimburse Victim quickly. Thus, when they met up, Victim drove them to Defendant's bank so that Defendant could withdraw cash. Defendant deposited money into his account, which had a negative balance, but even after this deposit, Defendant allegedly did not have enough funds to reimburse Victim.

When Defendant returned to Victim's car without money (per Defendant), he and Victim started arguing. A police officer testified that a man who did not speak English (later identified as Y.L.) overheard what he characterized as an argument. However, no witness other than Defendant directly observed what happened in Victim's car. No witness testified to hearing any gunshots. The bank also did not have exterior cameras.

Defendant claimed that he was forced to shoot Victim in self-defense. Defendant alleged that Victim pulled out a gun and began to threaten him. Defendant stated that he managed to open the door in an attempt to exit the vehicle. He further testified that once the door was open, Victim grabbed him and refused to let him leave. Defendant maintained he grabbed Victim's gun, and then pulled his own gun out of his pocket and shot Victim twice. Other than Defendant's testimony about what happened in the car and Y.L. hearing what appeared to be an argument, there was no direct evidence supporting Defendant's version of events.

After Defendant shot Victim, a second witness saw Defendant crouching outside Victim's car and trying to hide a gun in his pants. Defendant then ran away from the bank, and as he reached the end of the parking lot, his cousin drove up in Defendant's car. Defendant jumped in the front seat, and the car sped off into a neighboring parking lot where one of the two men threw the gun from the car before speeding onto the main road.

At the same time, Victim stepped out of his car, disoriented. The second witness attempted to help him and offered to call for help, but Victim told the witness not to call the police. He then went into his car and drove toward his house, a short distance from the bank. Shortly after Victim left the bank, a motorist saw him driving erratically with his windows up, and the motorist began following Victim's car. The motorist saw Victim clip a passing car and testified that she never saw Victim throw a weapon out of the vehicle. After Victim finally made it home, a 911 call was made, and Victim died after EMTs took him to the hospital.

Meanwhile, one of the officers spotted Defendant's car heading in the opposite direction and conducted a traffic stop. Officers noticed that Defendant had tried to put on a shirt over the one which he had been wearing while making the bank deposit. Police eventually recovered the gun used to shoot Victim in the parking lot across from the bank. The gun's serial number appeared to have been removed. The police did not discover any other weapons.

Defendant was tried before a jury and was found guilty on both counts-second-degree murder with a firearm and possession of a firearm with the serial number removed. Defendant appealed the conviction, and this Court affirmed. Morris v. State, 232 So.3d 1031 (Fla. 4th DCA 2017) ("Morris I").

B. Defendant's Rule 3.850 Motion

Defendant then filed a rule 3.850 motion where he argued ineffective assistance of counsel, and the trial court held an evidentiary hearing.^[1]

At the hearing, Haddad and Navarro testified, both agreeing that as the lead attorney on the case, Haddad primarily controlled trial strategy. Haddad is an experienced criminal attorney. At the time of the hearing, Navarro, now Nunez-Navarro, was a sitting Circuit Judge for the Ninth Judicial Circuit.

Defendant raised four pertinent grounds in his motion.^[2]

1. Failing to Call Y.L. as a Witness

First, Defendant argued Haddad should have called Y.L. as a witness. Y.L. was the man whom an investigating officer testified had heard and viewed what appeared to be an argument. At trial, the prosecution pointed out in its closing that not a single witness heard gunshots, which made it likely that Victim's car door was not opened, directly contradicting Defendant's version of the events. Defendant argued that had Y.L. been called as a witness, he would have testified to hearing gunshots, which would have prevented the prosecution from making this "doors not opened" argument in closing.

At the post-conviction evidentiary hearing, Y.L. explained, through an interpreter, that he was at the bank on the date of Victim's death. When he arrived at the bank, he parked two spaces away from Victim's car and heard two men in that car "arguing"-they were "loud" and "it look[ed] kind of aggressive." However, as he only spoke Mandarin Chinese, he could not understand what the men were saying. Y.L. exited his car and walked towards the bank. While he was in the empty parking space between his car and Victim's car, and while he was facing directly opposite Victim's car, he heard two gunshots. He then saw Victim emerge from his car, walk toward the bank, and then return to his car and drive off. He explained that he saw Victim "screaming, and he look[ed] very painful, and he put his hand on his leg." He did not see Victim holding a gun.

Haddad explained that he chose not to call Y.L. because of his trial strategy. Haddad felt that the only important part of Y.L.'s testimony was that Y.L. had heard the arguing, not that Y.L. had heard the shots. Haddad also preferred that the information come out in cross-examination of the officer who questioned Y.L. as opposed to direct, as he could "lead" the officer during cross-examination. Haddad testified he was concerned that if he had put Y.L. on the stand, the prosecutor would be able to admit sympathetic evidence about the aftermath of Victim being shot.

The post-conviction court found that Haddad was deficient for not calling Y.L. as a witness. The post-conviction court determined that Y.L.'s testimony about gunshots would have caused the prosecution to alter its closing argument, which would have lessened the jury's view of Defendant as a liar. The post-conviction court also concluded that Defendant's selfdefense theory would have been furthered by Y.L.'s testimony about the heated argument. Finally, the post-conviction court found it "highly questionable" whether putting Y.L. on the stand would have caused the jury to sympathize with Victim.

2. Failing to Investigate Victim's Friend, J.W.

Second, Defendant argued that counsel was ineffective in how he handled J.W. J.W. was Victim's friend who had spoken to two detectives and provided a statement under oath that (1) he did not know Victim to possess any weapons; (2) Victim used to deal drugs a few years prior in Miami; (3) Victim was not a violent person; (4) Victim exchanged drugs with J.W. for favors; and (5) Victim stole J.W.'s Xanax the day before the shooting. Defendant claimed J.W. was an important witness because J.W. was the only witness whose testimony could support Defendant's claim that he met up with Victim to buy drugs.

Before trial, Haddad had initially set J.W. for a deposition, but noticed J.W. for the wrong address and J.W. did not appear. Haddad originally was not going to have J.W. testify, because another witness could have confirmed that Victim was selling Defendant drugs. But this witness overdosed prior to trial and died. After the preferred witness died, Haddad had a private investigator track down J.W., but Haddad decided against deposing him. Haddad reasoned that the statement which J.W. had given to the two officers was under oath and was sufficient, given that all of J.W.'s pertinent testimony was in the statement.

On the day of the trial, J.W. showed up to the courthouse, where Haddad claimed J.W. told...