Boutwell v. State

530 So. 2d 1092, 1988 Fla. App. LEXIS 4130, 1988 WL 94261
CourtDistrict Court of Appeal of Florida
DecidedSeptember 15, 1988
DocketNo. 87-42
StatusPublished
Cited by2 cases

This text of 530 So. 2d 1092 (Boutwell 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
Boutwell v. State, 530 So. 2d 1092, 1988 Fla. App. LEXIS 4130, 1988 WL 94261 (Fla. Ct. App. 1988).

Opinion

WENTWORTH, Judge.

Appellant Boutwell appeals his conviction pursuant to a jury verdict on charges of first-degree murder and possession of a firearm during the commission of a felony, and sentences to consecutive terms of life and 15 years incarceration. He contends the trial court erred in failing to conduct an inquiry into the possibility of a conflict of interest as to counsel’s representation of both a state witness and appellant; that such representation denied him his Sixth Amendment right to effective assistance of counsel; and that the prosecutor improperly commented on appellant’s silence in violation of his Fifth Amendment rights. We affirm.

Appellant was charged by indictment on September 30, 1986 with first-degree mur[1093]*1093der, in violation of section 782.04, Florida Statutes, and possession of a firearm during commission of a felony, in violation of section 790.07(2), Florida Statutes. The trial court appointed counsel, who filed a motion in limine to prohibit the state from referring to or eliciting any testimony regarding his representation of Reuben Terrell Lewis in an unrelated case involving an armed robbery charge. Lewis was listed as a state witness in appellant’s case, and was expected to provide an alibi for Melvin Lindsey, who, the defense was to argue, actually committed the murder. The trial court ordered that no mention be made of counsel’s representation of Lewis in opening statements, and “before the questions be addressed at trial, that we would consider the matter based upon what has transpired at that point.”

The evidence established that the victim, Daryl James Gadson, was killed August 29, 1986 by a single shot fired from inside an automobile owned by appellant while Gad-son was standing in front of a nightclub talking with Steve Green. Eyewitnesses were unable to see who fired the shot because the vehicle had tinted windows and it was dark at the time of the shooting. Green testified that immediately after the shot he heard a voice from inside the automobile say, “I’m going to kill you,” followed by an obscenity, and recognized the voice as appellant’s. Green, however, had told police earlier that he recognized the voice as that of Melvin Lindsey.

Appellant’s girlfriend, Roxie Williams, testified that appellant had heavily armed himself the afternoon before the shooting and had stated that he was going to have to shoot Green. She stated that appellant tried to get Melvin Lindsey, his cousin, to kill Green, but Lindsey refused. She testified that appellant showed up twice the night of the shooting at a band rehearsal she attended, initially telling her that he had shot Green and later telling her that he had tried to shoot Green, but had missed and shot someone else. Artice Stromas corroborated Williams’ testimony, stating that Williams was at his residence for a band rehearsal the night of the shooting, and that she had talked to a visitor and then told Stromas that appellant had shot someone. Testimony also was presented that a search of appellant’s mobile home yielded a .22 caliber pistol that could have been the murder weapon. Mary Rials testified she saw appellant the night of the crime and heard him say he had “hurt three people.” She also testified that she saw appellant with a weapon in his possession the night of the crime, and saw him fire shots into his car window to gain access after locking his keys inside. Testimony was presented regarding two taped statements appellant gave to police. The statements were played for the jury. In the first, appellant stated he was in New Orleans the night of the crime. In the second, appellant stated he told police that he had paid an unnamed person $300 to kill Green, but that person accidentally killed someone else. At the close of the second statement, appellant also said “[sjomebody needs to do something about that boy Steve Green, before he makes somebody, you know, hurt somebody else, and get in all kinds of trouble, because he keeps doin’ folks life_”

The defense assertion that Melvin Lindsey committed the murder was supported by Green’s statement to police that he identified the voice coming from the perpetrator’s car as Lindsey’s. Three other witnesses testified that hard feelings existed between Lindsey and Green, and that Green had tried to have Lindsey arrested on the afternoon prior to the shooting. Lindsey testified, but the defense did not question him as to his whereabouts the evening of the shooting. Neither Lewis nor appellant testified.

During closing argument the prosecutor stated, “I haven’t heard a single witness take that stand that knows anything about what happened that night. I didn’t hear the defendant in his recorded statement in either one. ...” Defense counsel at this point moved for a mistrial on grounds that the state had improperly commented on the defendant’s failure to testify. The court denied the motion and the jury found appellant guilty as charged.

[1094]*1094Appellant’s motion in limine, supra, was not in terms or content sufficient to call to the attention of the trial court the conflict of interest issue argued here. The motion alleged only that the fact of defense counsel’s representation of both appellant and the state witness Lewis had no relevance, and that any mention of the dual representation would tend only to confuse the jury. At the hearing on the motion, defense counsel further argued that the dual representation was immaterial to appellant’s case. Counsel argued only that if he attempted to impeach Lewis by reference to a plea offer in Lewis’ case as Lewis’ true motivation for testifying in appellant’s case, and the state responded by eliciting testimony from Lewis as to defense counsel’s representation of him, the jury would have cause to question defense counsel’s sincerity in representing appellant. The trial court granted the motion in part, directing that no mention of the dual representation be made during opening statements, or prior to addressing the relevance of such testimony during the trial. The hearing on the motion in limine could not fairly be characterized as an inquiry into the conflict of interest in view of defense counsel’s assertion that the fact of his dual representation was immaterial to appellant’s case.

In Jefferson v. State, 440 So.2d 20 (Fla.1st DCA 1983), defense counsel, who represented two codefendants, simply objected to consolidation of the defendants’ cases. The court found the objection was insufficient to trigger the rule in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), requiring an inquiry when the possibility of a conflict of interest is “brought home” to the trial court. “When the trial court is not on notice of a possible conflict, a defendant must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Jefferson, at p. 23, citing Cuyler v. Sullivan, 446 U.S. 385, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), 100 S.Ct. at p. 1719. Here, appellant asserts that defense counsel’s performance was hampered by his fear that the state would elicit testimony from Lewis regarding the dual representation.

At trial, defense counsel chose not to question Lindsey as to his whereabouts the night of the crime. The state, therefore, did not call Lewis.

The record does not reflect, and appellant does not argue, that defense counsel advised Lewis to testify for the state at appellant’s trial in exchange for a plea offer in his own case.

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Related

Boutwell v. State
563 So. 2d 798 (District Court of Appeal of Florida, 1990)
Morgan v. State
550 So. 2d 151 (District Court of Appeal of Florida, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
530 So. 2d 1092, 1988 Fla. App. LEXIS 4130, 1988 WL 94261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boutwell-v-state-fladistctapp-1988.