Barnett v. State

181 So. 3d 534, 2015 Fla. App. LEXIS 16920, 2015 WL 7008166
District Court of Appeal of Florida·Decided November 12, 2015·No. No. 1D13-6137·Published·Cited by 6 cases

Opinion

ROWE, J.'

.Appellant, Elliott Barnett, appeals his convictions for first-degree murder and attempted armed robbery. Barnett argues that defense counsel’s failure to request an alibi instruction was ineffective assistance of counsel apparent on the face of the record, or, in the alternative, the failure to give the instruction resulted in fundamental error. Because Barnett failed to meet [536]*536the heavy burden to prove either of these errors, we affirm.

Facts

The charges in this case arose from the shooting death ‘of William McFaline. The State presented the testimony of two co-defendants, Rasean Vann ' and Chequial Williams, to show that Barnett along'with Vann and Williams planned to rob McFa-line after McFaline purchased marijuana from his supplier. The State’s theory was that Vann accompanied McFaline to purchase marijuana from McFaline’s supplier on the other .side of town. Unbeknownst to McFaline, Vann was sending text messages to Williams, relaying their location so Barnett and Williams could rob McFa-line after the drugs were in his possession. The drug. buy fell .through, but Vann, Williams,,and Barnett.decided to continue with the plan to' rob McFaline. While McFaline and Vann were parked, at an apartment complex, Barnett approached McFaline’s ear, pulled his gun, and discharged his weapon multiple times. McFaline died as a result of one of the gunshot wounds.

The defense’s theory was that Appellant was never involved in the planning or robbery of McFaline. Appellant admitted that he was with Vann on the afternoon of the shooting, but he testified that they parted ways around 3:00 p.m. He testified that he spent the remainder of the afternoon with his cousin, Chris Simmons, and that he and Simmons were playing basketball in a park during the time of the shooting. Appellant also presented the testimony of three alibi witnesses who corroborated his testimony that he was at the park during the shooting. Simmons testified that at one point in the evening, he saw Vann’s car at the park, but he could not see who was in the car. Although defense counsel filed a notice of intent to present an alibi defense, presented alibi witnesses, and argued to the jury that Barnett had an alibi for the. time of the shooting, defense counsel failed to request the standard jury instruction oh the alibi defense. The jury found Barnett guilty of first-degree murder and attempted armed robbery. This timely appeal follows.

Ineffective Assistance of Counsel

Barnett argues that defense counsel’s failure to- request the alibi jury instruction constitutes ineffective assistance of counsel on the face of the record because there was no reasonable tactical explanation for counsel’s failure to request this instruction and Barnett was prejudiced by the exclusion of the instruction. Claims of ineffective assistance of counsel are rarely addressed on direct appeal because they normally turn on questions of fact and both sides are entitled to present relevant evidence at an evidentiary hearing. Hills v. State, 78 So.3d 648, 652 (Fla. 4th DCA 2012). In order to prevail on such a claim, an appellant must demonstrate “ineffectiveness on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct.” Morales v. State, 170 So.3d 63, 67 (Fla. 1st DCA 2015).

Barnett relies on the decisions in Shedd v. State, 137 So.3d 456 (Fla. 4th DCA 2014), and Capiro v. State, 97 So.3d 298 (Fla. 4th DCA 2012), to support his argument that counsel’s failure to request an alibi instruction constitutes ineffective assistance of counsel on the face of record because the alibi defense was Barnett’s primary defense. However, we find that Shedd and Capiro are distinguishable from the present case because those cases dealt with the omission of jury instructions for affirmative defenses.

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Barnett v. State, 181 So. 3d 534, 2015 Fla. App. LEXIS 16920, 2015 WL 7008166 (Fla. Ct. App. 2015).

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