Keith v. State

46 So. 3d 85, 2010 Fla. App. LEXIS 14189, 2010 WL 3714290
CourtDistrict Court of Appeal of Florida
DecidedSeptember 24, 2010
DocketNo. 5D09-2938
StatusPublished
Cited by4 cases

This text of 46 So. 3d 85 (Keith 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
Keith v. State, 46 So. 3d 85, 2010 Fla. App. LEXIS 14189, 2010 WL 3714290 (Fla. Ct. App. 2010).

Opinion

ORFINGER, J.

Kenneth Keith appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, following an evidentiary hearing. We affirm, but write to address one issue.

Keith was convicted of two counts of sexual battery on a child less than twelve years of age. His convictions were affirmed on appeal. Keith v. State, 958 So.2d 944 (Fla. 5th DCA 2007) (Table). The charges against Keith arose after his daughter, M.K., born in 1984, came forward in 2000, alleging that Keith sexually molested her from when she was three or four years old until 1993, when she was in third grade and Keith and his wife, M.K.’s mother, divorced. Following the disclosure, M.K., then sixteen years old, was examined by a Child Protection Team (CPT) nurse. While the CPT report reflected that M.K. gave a history of penile/vaginal penetration by Keith, the examination revealed no signs of genital trauma. During the 2006 trial, Marilyn Barnes, a CPT pediatric nurse practitioner who did not author the CPT report, confirmed that the CPT report indicated there was no physical evidence of sexual abuse, including no evidence of any tear of M.K’s hymen. However, she indicated that a child can be sexually penetrated without damage to the hymen.

At the evidentiary hearing on the rule 3.850 motion, Keith’s trial counsel, Andrew Pozzuto, testified that the theory of Keith’s defense was to try to show that M.K. made up the allegations against Keith because she was upset that he had not seen her [87]*87since the divorce. Pozzuto believed that the CPT report, showing no physical evidence of penetration, called her credibility into question, particularly in light of M.K.’s admission that she had been sexually active with her boyfriend for a year prior to the CPT examination. Since there was no physical evidence to substantiate M.K’s claim of penile and digital penetration, Pozzuto saw no need to retain a medical expert. However, he said that he was surprised when, as he described it, Ms. Barnes testified at trial that a child’s hymen can “re-grow.”

Following the evidentiary hearing, the trial court entered a detailed order denying postconviction relief. The court ruled that Keith had not demonstrated that his defense was prejudiced, as he failed to offer any evidence at the postconviction hearing to contradict Ms. Barnes’s testimony.

Consistent with the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Florida Supreme Court held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

To prove the first prong, Keith must prove that counsel’s performance was unreasonable under “prevailing professional norms.” Morris v. State, 931 So.2d 821, 828 (Fla.2006) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). In other words, Keith must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687,104 S.Ct. 2052; see Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995). To establish the second prong, Keith must prove that there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 669. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687.

“Judicial scrutiny of counsel’s performance must be highly deferential,” and there is a strong presumption that trial counsel’s performance was not ineffective. Hurst v. State, 18 So.3d 975, 996 (Fla.2009) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from [88]*88counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Therefore, Keith carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

In the instant case, Pozzuto wanted the jury to hear from Ms. Barnes that there were no physical signs of sexual abuse. Understandably, Pozzuto believed that this lack of physical evidence of abuse was at odds with M.K’s claim that she had been penetrated by Keith, and had a year-long sexual relationship with her boyfriend. Thus, as part of his trial strategy, Pozzuto planned to argue to the jury that it was inconceivable that M.K. could claim digital and penile penetration by Keith and an active sexual relationship with her boyfriend, and yet have an intact hymen. But, this strategy suffered a serious blow, when, according to Pozzuto, Ms. Barnes testified that a hymen can regenerate.

However, we think that Pozzuto’s recollection mischaracterizes Ms. Barnes’s testimony. A careful reading of her testimony reveals that she did not testify that a hymen can regenerate. She simply stated that a child can be sexually penetrated without lasting signs of a tear in the hymen. This testimony, unanticipated by the defense, provided an explanation for M.K.’s intact hymen and offered the jury a way of reconciling M.K.’s testimony about penetration with the lack of physical evidence. Because Pozzuto did not anticipate this aspect of Ms. Barnes’s testimony, he did not have any evidence to rebut it.

The question here is whether Pozzuto was ineffective in failing to anticipate Ms. Barnes’s testimony, and more specifically, in failing to adequately challenge and rebut that testimony. At trial, Pozzuto did not object to Ms. Barnes’s testimony, which admittedly went beyond the findings of the CPT report. He also did not move to strike the testimony or for a mistrial, a Richardson1 hearing, or a continuance to obtain a defense expert to counter this surprise testimony.

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Bluebook (online)
46 So. 3d 85, 2010 Fla. App. LEXIS 14189, 2010 WL 3714290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-state-fladistctapp-2010.