Thompson v. State

273 So.3d 1069

Norman J. THOMPSON, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-403

District Court of Appeal of Florida, First District.

April 22, 2019

Rehearing Denied July 1, 2019

Norman James Thompson, pro se, Appellant.

Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.

Rowe, J.

Norman Thompson was convicted in 2013 for the sexual battery of a six-year-old girl and sentenced to life imprisonment. After his judgment and sentence were affirmed, Thompson v. State , 174 So.3d 453 (Fla. 1st DCA 2015), Thompson moved for postconviction relief, raising multiple claims of ineffective assistance of counsel. The postconviction court summarily denied his motion, and this appeal follows. We affirm.

Facts¹

The investigation that led to Thompson's arrest began when a homeless man named Dwayne Lampley reported to police that a mother was prostituting her six-year-old daughter (S.G.) for drugs and money. Lampley was a drug addict who would go to the mother's residence to do drugs. Lampley described the house as a "crack house" where the children (S.G. and her younger brother) were neglected. The children were frequently unclean, without clothing, and hungry because they didn't have enough food. Lampley witnessed at least seven men, including Thompson (whom he knew as "NJ"), "mess" with S.G. He did not see Thompson physically molest the child but recalled once seeing Thompson give S.G. a bath. He also saw Thompson grab the child on her thigh and then chase her upstairs. Lampley reported the child's living conditions to the police after S.G. asked Lampley to help her and her mother.

S.G., who was living with her grandmother at the time, was interviewed by an investigator from the Department of Children and Families. S.G. initially denied any abuse. But S.G.'s grandmother suspected that the child had denied the abuse out of fear. The grandmother's suspicions arose from her discovery of an unusual discharge in the child's underwear during a visit months before DCF began its investigation of the mother. When the grandmother learned that DCF was investigating potential abuse, she asked her granddaughter if anyone had touched her other than her family. S.G. told her grandmother that "NJ" and two other men had touched her. She said that "NJ" would lie on top of her and "wiggle." S.G. added that "NJ" was her "boyfriend" but that she was not supposed to tell her mother about their relationship. The grandmother knew that "NJ" had rented one of the rooms in her daughter's house for a time.

Following S.G.'s disclosures to the grandmother, the grandmother took S.G. to a second interview with the Child Protection Team. During the interview, S.G. recounted her sexual battery by three men, including one called "NJ." S.G. stated that "NJ" placed his "weenie" on her "coochie." S.G. picked all three men out of a lineup and identified Thompson as "NJ." Thompson was arrested and charged with sexual battery on a child less than the age of twelve.

At trial, S.G.'s mother admitted to a long-term addiction to crack cocaine and recalled that Thompson would come to her house to do drugs. Thompson also lived in the house for a short period of time. S.G. never reported abuse to the mother, and the mother never saw Thompson physically abuse S.G. The mother did, however, recall once walking in on Thompson giving S.G. a bath. When she confronted him about it, Thompson insisted that it was not "a big deal" and he "was just urinating." Another night, she saw Thompson in S.G.'s bedroom crouched beside the bed holding S.G. in his arms. The mother noted that both Thompson and S.G. were clothed at the time. Thompson claimed he was comforting S.G. after waking from a bad dream. The mother recalled another instance where she found candy, unopened children's movies, children's toys, and a douche in Thompson's suitcase.

S.G.'s interview with the Child Protection Team was played for the jury. S.G. also testified via a prerecorded video. At the time of her perpetuated testimony, she was in first grade. S.G. testified that when she lived with her mother, men would come over to "smoke." "NJ" would bring her candy and snacks and told her that he was her "boyfriend." "NJ" once told her to get on the bed, then got on top of her and put his "weenie" in her. S.G. used anatomical dolls to demonstrate what "NJ" did to her.

In the video of S.G.'s perpetuated testimony, defense counsel cross-examined S.G. The child could not recall seeing "NJ's" "private part," or seeing Thompson or her mother without clothes. She did not tell her mother about the bad things happening to her, but she did tell her grandmother. S.G. did not recall talking to police or other officials with uniforms or badges.

The jury returned a verdict finding Thompson guilty as charged. Thompson was sentenced to life imprisonment and designated a sexual predator. Following the summary denial of his motion for postconviction relief, Thompson appealed to this Court.

Analysis

We review the summary denial of a postconviction motion de novo. Flagg v. State , 179 So.3d 394, 396 (Fla. 1st DCA 2015). We affirm the summary denial of a motion alleging claims of ineffective assistance of counsel where the claims are legally insufficient or conclusively refuted by the record. Crumitie v. State , 842 So.2d 271, 273 (Fla. 1st DCA 2003). To raise a legally sufficient claim, the movant must allege that counsel's performance was outside the range of reasonable professional assistance, and there is a reasonable probability that the outcome would have been different but for counsel's deficient performance. Curran v. State , 229 So.3d 1266, 1268-69 (Fla. 1st DCA 2017) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). If a legally sufficient claim is raised, "the trial court must attach portions of the record that conclusively refute the claim[ ] in order to properly issue a summary denial." Ortiz v. State , 968 So.2d 681, 684 (Fla. 1st DCA 2007). Because there was no evidentiary hearing in this case, we accept the factual allegations as true to the extent they are not refuted by the record. Nordelo v. State , 93 So.3d 178, 186 (Fla. 2012). Here, Thompson raised twelve² claims of ineffective assistance of counsel, all of which are either legally insufficient or conclusively refuted by the record.

Thompson argued that his defense counsel was ineffective for failing to challenge Lampley's affidavit, which was used to establish probable cause for Thompson's arrest. Thompson asserted that Lampley did not write the affidavit and was not administered an oath, therefore the affidavit was invalid. The trial court denied this claim because Thompson failed to allege what he believed defense counsel should have done to challenge the validity of Lampley's affidavit. Assuming Thompson intended to argue counsel was ineffective for failing to move to dismiss the charges for a lack of probable cause, "an indictment or information may not be dismissed by a trial court on the ground that the police unlawfully arrested the defendant based on no probable cause." State v. Spencer , 443 So.2d 1086, 1086 (Fla. 3d DCA 1984). Moreover, the record reflects that the arrest warrant was supported by sufficient probable cause. "Unlike the burdens of proof in a criminal trial, the obligation to establish probable cause in an affidavit may be met by hearsay, by fleeting observations, or by tips received from unnamed reliable informants whose identities often may not lawfully be disclosed, among other reasons." Johnson v. State , 660 So.2d 648, 654 (Fla. 1995) (citations omitted). Here, the arrest affidavit indicates that it was based not only on Lampley's affidavit, but also the detective's independent investigation of the alleged crimes. That investigation included listening to S.G.'s recorded interview, during which the child named Thompson as one of the men who sexually battered her. Because the arrest warrant was supported by probable cause, any challenge based on the credibility of Lampley's affidavit would have been meritless. Counsel cannot be deemed ineffective for filing a meritless motion. Lugo v. State , 2 So.3d 1, 21 (Fla. 2008). Therefore, the trial court properly denied this claim.

Thompson next claimed that his defense counsel was ineffective for failing to object to the jury composition where the State struck every African-American juror from the jury panel. The trial court properly summarily denied this claim as legally insufficient. Postconviction relief predicated on the failure to raise a Neil³ objection cannot be granted unless counsel's error resulted in a jury that was not impartial. Carratelli v. State , 961 So.2d 312 (Fla. 2007) ; Pryear v. State , 243 So.3d 479, 483-83 (Fla. 1st DCA 2018). Thompson failed to allege that the jury selected was not impartial. He was given an opportunity to amend this claim but failed to remedy the defect. See Nelson v. State , 977 So.2d 710, 711 (Fla. 1st DCA 2008) (" Spera [v. State , 971 So.2d 754 (Fla. 2007),] does not impose on trial courts or court personnel the nearly impossible burden to ... explain why the claims are insufficient or how to cure the insufficiency."). Thus, the trial court properly denied this claim.

In his next claim, Thompson argued that his defense counsel was ineffective for failing to investigate the case and adequately prepare for trial. Thompson asserted that if counsel had spent more time with him, counsel would have learned information, which if used at trial, would have led to a different outcome. This claim was properly denied. Thompson claimed that counsel would have learned that the State's witnesses were tampered with to give false and misleading statements, and S.G.'s testimony was coached. But he gave no further details about who was tampering with the witnesses or facts to support his claim that S.G. was coached. The conclusory nature of these allegations rendered this...