Acker v. State

787 So. 2d 77, 2001 WL 228060
CourtDistrict Court of Appeal of Florida
DecidedMarch 9, 2001
Docket2D99-3665
StatusPublished
Cited by3 cases

This text of 787 So. 2d 77 (Acker v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acker v. State, 787 So. 2d 77, 2001 WL 228060 (Fla. Ct. App. 2001).

Opinion

787 So.2d 77 (2001)

James Charles ACKER, Appellant,
v.
STATE of Florida, Appellee.

No. 2D99-3665.

District Court of Appeal of Florida, Second District.

March 9, 2001.
Rehearing Denied April 27, 2001.

*78 James E. Felman, Stuart C. Markman, and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

James Acker appeals from a final order denying his motion for postconviction relief after evidentiary hearing regarding his convictions for two counts of first-degree murder. He contends that his trial counsel's failure to develop a coherent theory of defense, introduction of damaging evidence, and delivery of a closing argument harmful to Acker constituted ineffective assistance of counsel. We agree and, accordingly, reverse and remand for a new trial.

Following a jury trial, Acker was convicted of two counts of first-degree murder. His conviction was affirmed on direct appeal. Acker filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, stating as a ground for relief the ineffectiveness of his trial counsel, Simson Unterberger. The trial court denied the motion regarding several aspects of the claim without a hearing and granted a hearing as to the remaining ineffective assistance grounds. Following a hearing, the trial court entered an order denying Acker's motion for postconviction relief as to all grounds.

This case involves a double murder that took place the night of January 10, 1991, at a Tampa apartment complex. Brandon Snider was stabbed to death and his roommate, Robert Carter, was shot in their apartment. A neighbor told investigators she saw two people leaving the apartment after the murders occurred—one bearded man with long hair and a second person who could have been either a woman or a man. That neighbor and several others then saw three men cross the parking lot of the apartment complex and get into a light-colored Ford sedan. The eyewitnesses were able to describe in detail only the bearded man with long hair.

Analysis showed fingerprints found in blood in the apartment belonged to a man named Patrick Hannon. Based on the fingerprint identification, Hannon was arrested and charged with the murders. He was later identified as the long-haired, bearded man the neighbors had seen at the apartment complex. Shortly after Hannon's arrest, Ron Richardson was identified as one of the other two perpetrators and was also charged with two counts of first-degree murder. No physical evidence connected Acker with the crimes.

Hannon was brought to trial in July 1991. During Hannon's trial, Richardson entered into a plea agreement with the State that required him to testify against Hannon and identify the third person who participated in the murders. At the time Richardson entered into the plea deal, it was known that the gun used in the murders had belonged to Ron Richardson's brother, Mike Richardson. It was also known that the eyewitnesses saw the murderers drive away from the crime scene in a car that was the same make, model, and color as Mike Richardson's car. Further, it was known that Mike Richardson was with Hannon and Ron Richardson the night of the murders.

Ron Richardson claimed that the unknown third person involved in the murders was not his brother but Acker. In exchange for his cooperation, the two counts of first-degree murder against Ron Richardson were reduced to a single count of accessory after the fact. As a result of *79 the plea deal, he served just fourteen months in prison. Acker was arrested the same day the jury returned a verdict in Hannon's trial.

Attorney Unterberger was appointed to represent Acker in the guilt phase of his trial. At the postconviction hearing, Unterberger testified that at the outset of Acker's trial there were three theories of defense possible, given the circumstances of the case: (1) Acker was not with Hannon and Ron Richardson at all on the night of the offense; (2) Acker was with Hannon and Ron Richardson that night but was not present at the scene of the crime; or (3) Acker was present at the scene of the crime but was not one of the killers. Unterberger admitted that at the commencement of the trial he had not made a decision as to which theory of defense he would pursue.

Unterberger claimed that he considered arguing in connection with the first or the second theory that the third person at the apartment was not Acker but Ron Richardson's brother, Mike Richardson. Unterberger acknowledged he was aware that no physical evidence connected Acker to the crime scene and the only testimony that Acker had been the third murderer would come from Ron Richardson. He knew that the car that the murderers drove away from the crime scene was Mike Richardson's car and that the gun that was used in the murders had belonged to Mike Richardson. In a case that involved a brutal stabbing, Unterberger knew Hannon, Ron Richardson, and Mike Richardson worked together at a slaughterhouse. Unterberger also knew Mike Richardson had admitted he was with Hannon and Ron Richardson the night of the murders. After Ron Richardson's arrest, Mike Richardson for the first time claimed that Acker was also with them that night.

The State's theory of the case, as laid out in its opening statement, was that Hannon, Ron Richardson, and Acker went to the apartment and that Hannon and Acker committed the murders. Unterberger responded to the State's opening by conceding in his opening statement that there was evidence Acker was in fact the third killer:

There are three participants, shall we say, three people involved in the sense that three people go to this apartment and three people exit the apartment. He's [referring to the prosecutor] clearly correct, that two of those people are Ron Richardson and Hannon. There's certainly some evidence that will indicate that the third person was Mr. Acker.

Unterberger did not follow up this statement with any indication that Acker was not the third person involved in the murders. Unterberger did not suggest in his opening statement that Acker was not guilty. Nor did Unterberger ever suggest the third person might have been Mike Richardson.

In the State's case in chief, the physical evidence and medical testimony presented did not connect Acker to the murders. The eyewitnesses at the apartment complex did not identify Acker as one of the men they saw that night.

Pam Deimund, a neighbor at the apartment complex, originally told police she saw one man and one person who might have been either a man or a woman come out of the victims' apartment. At Acker's trial, Deimund changed her account and testified that the second person she saw was a man with shoulder-length brown hair. She did not identify Acker as this man. There was testimony that on the date of the murders Acker had shoulder-length brown hair. Although Deimund's testimony was inconsistent with both her earlier statements to investigators and her *80 testimony at Hannon's trial that she had not focused on the second person and did not recall the length of that person's hair, Unterberger did not cross-examine her regarding the inconsistency.

The State relied heavily on Ron Richardson's testimony. Ron Richardson admitted that: (1) he was with his brother Mike and Hannon the night of the murders; (2) the gun used in the murders had belonged to his brother; and (3) the car driven to the apartment complex belonged to his brother.

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Bluebook (online)
787 So. 2d 77, 2001 WL 228060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acker-v-state-fladistctapp-2001.