Hills v. State

78 So. 3d 648, 2012 Fla. App. LEXIS 162, 37 Fla. L. Weekly Fed. D 140
CourtDistrict Court of Appeal of Florida
DecidedJanuary 11, 2012
DocketNo. 4D10-1383
StatusPublished
Cited by9 cases

This text of 78 So. 3d 648 (Hills 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
Hills v. State, 78 So. 3d 648, 2012 Fla. App. LEXIS 162, 37 Fla. L. Weekly Fed. D 140 (Fla. Ct. App. 2012).

Opinion

WARNER, J.

This case presents a very rare incidence where ineffective assistance of counsel is apparent on the face of the record. Trial counsel failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes. Although the trial court tried to salvage a bad situation, the damage was irreparable, as counsel continued to perform ineffectively. We are compelled to reverse.

The state filed an information against appellant in St. Lucie County, Florida, alleging four counts: count I for sexual battery by digital penetration of A.W.G., a child under 12 by a perpetrator 18 or older, for incidents that occurred between November 19, 1997, and November 18, 1998; count II for sexual battery by oral penetration of or union with A.W.G., a child under 12 by a perpetrator 18 or older, during the same time period; count III for lewd or lascivious molestation of D.A.R., a victim 12 to 16, for incidents that occurred between December 1, 2003, and December 31, 2003; and, count IV for lewd or lascivious molestation of D.A.R., a victim 12 to 16, for incidents that occurred between August 29, 2005, and May 4, 2007.

At jury selection on February 8, 2010, the trial judge read all four counts to potential jurors. The jury was chosen and sworn, and the court asked if the attorneys had any motions, to which defense counsel Stephen Fromang responded, “No, I’m going to go back and ... take a good hard look at it now.” The next morning, Mr. Fromang filed a Motion to Sever Counts III and IV, stating that he thought the state had nolle prossed them, and because of this, he was not ready to proceed on those counts and had not conducted discovery.

The court expressed its irritation with Mr. Fromang and admonished him for filing the motion so late. Fromang responded, “I didn’t — I just was telling you, Judge, it didn’t coalesce, but when it did, I — I—I presented it to the Court.” Fromang stated that he had based his assumption that the state had nolle prossed the counts on the fact that D.A.R. had recanted her story in a letter and said she didn’t want to be involved in the trial. The state maintained, however, that D.A.R. had never recanted and that Mr. Fromang was “aware that she’s always been involved in the picture.” Mr. Fromang admitted that he never took her deposition, nor had he ever received a nolle prosse from the state.

The prosecutor suggested that Mr. Fro-mang ask for a mistrial on those two counts and waive jeopardy so that the court could sever counts III and IV. Mr. Fromang immediately agreed. The court then asked the prosecutor how she wished to proceed, and she responded that she believed that counts I and II were interre[651]*651lated to counts III and IV. The court then suggested that the Williams1 Rule might provide a basis for allowing the charges in counts III and IV to be inserted in counts I and II. The prosecutor had not pursued admission of the testimony of victim D.A.R. through the Williams Rule, because the counts were never severed. The court discussed with the prosecutor the similarities between the crimes to determine whether this would cure the prejudice to the state if severance were granted.

The judge then began to ask Mr. Fro-mang if he was making a motion to sever, but then stated that the court “can’t have anything to do with your decision.” Mr. Fromang requested a mistrial, but the court prompted Mr. Fromang on waiving double jeopardy on counts III and IV, and Mr. Fromang immediately moved for the waiver. The court then asked Mr. Fro-mang if he would waive the ten-day notice requirement for Williams Rule evidence, and Mr. Fromang readily agreed to do so. See § 90.404(2)(d)l., Florida Statutes. Turning to the prosecutor, the court then discussed the theories under which the second victim’s testimony would be admitted, suggesting that it could be admissible to show the chronology of why A.W.G. came forward with her accusations, which occurred after she found out that D.A.R., her sister, had been molested by appellant.

Mr. Fromang insisted that D.A.R. would, if put on the stand, recant her previous story and state that Appellant had never touched her. The judge asked Mr. Fromang why he would wish to sever if he believed that D.A.R. would testify in favor of appellant, and he responded “it’s an advantage to me — I’m not saying it’s not, but — but when I saw this, uh, where the Rule says we have the option to sever if we can, and I admit it’s not timely, I agree with that.” The judge expressed his concern that he had already read all four counts to the jury, so the judge and the attorneys discussed the appropriate way to inform the jury about the change, since, as the court said, “it’s pretty obvious that they’re ... aware of four counts.” The court believed, however, that if D.A.R.’s testimony was admissible as Williams Rule evidence, this would cure any prejudice of informing the jury of the D.A.R. charges against the defendant. The court decided not to mention the other charges to the jury again.

A.W.G. testified that the first incident with appellant occurred when A.W.G. was 11, when appellant touched her legs and inserted a finger into her vagina. Following this incident, appellant would offer to take A.W.G. home from baseball practices and games, but appellant would stop at his house before taking her home. A.W.G. claimed this was when the sexual encounters occurred, beginning with a hug, but not “a regular hug,” and then oral sex. A.W.G. did not say anything to anybody about the incidents but remembers it happening about 50 times. On cross-examination, Mr. Fromang, in attacking the credibility of A.W.G.’s memory, suggested that “it could have been 200” incidents, and A.W.G. agreed that it could have been. A.W.G. stated that the encounters stopped when she was 16 or 17. Mr. Fromang did not object to these statements, which referred to incidents that occurred outside the November 1997 to November 1998 timeframe alleged in the information. A.W.G. did not report the incidents with appellant until June of 2007, when she did so “out of concern” for her sisters, specifically D.A.R., who had told her of her own encounters with defendant.

Immediately prior to the proffer of D.A.R.’s testimony, the state presented [652]*652several cases in support of admissibility of the Williams Rule evidence. Mr. Fro-mang stated that he had no contrary case law, since “that’s ... black letter stuff.” Following D.A.R.’s statements, Mr. Fro-mang conducted a cross-examination and questioned her prior inconsistent statements recanting this testimony. Mr. Fro-mang then stated that “we have some people out there that would come in and contradict that.” The court ruled that such testimony would “just go[] to the weight of the evidence ... [rjather than its admissibility.” Mr. Fromang responded, “Bingo. I know.” Mr. Fromang did not object to the court’s finding that D.A.R.’s testimony was admissible. The court instructed the jury at that point that they would be hearing evidence of other acts that should be considered only “for the limited purpose of proving motive, opportunity, intent, preparation, plan, knowledge or the absence of mistake or accident on the part of the Defendant.”

During the proffered testimony and D.A.R.’s testimony to the jury, D.A.R. stated that when she was thirteen, appellant asked for a hug and proceeded to touch D.A.R.’s buttocks and breasts until D.A.R. told him to stop and began crying. Then in 2006, when D.A.R. was sixteen years old and living with appellant, D.A.R. was lying in bed, when D.A.R.

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Cite This Page — Counsel Stack

Bluebook (online)
78 So. 3d 648, 2012 Fla. App. LEXIS 162, 37 Fla. L. Weekly Fed. D 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hills-v-state-fladistctapp-2012.