McIntosh v. State

941 So. 2d 1, 2006 Fla. App. LEXIS 12341, 2006 WL 2061284
CourtDistrict Court of Appeal of Florida
DecidedJuly 26, 2006
DocketNo. 2D04-3777
StatusPublished

This text of 941 So. 2d 1 (McIntosh 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
McIntosh v. State, 941 So. 2d 1, 2006 Fla. App. LEXIS 12341, 2006 WL 2061284 (Fla. Ct. App. 2006).

Opinion

ALTENBERND, Judge.

James McIntosh appeals a final order denying his motion for postconviction relief in which he raised seven grounds of inef[2]*2fectiveness of counsel. We conclude that two of the grounds involve deficient performance by his trial counsel. Although the issue is close, we also conclude that Mr. McIntosh has established the degree of prejudice that warrants a new trial in this case. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Mr. McIntosh was charged with attempted first-degree murder for the stabbing of eighteen-year-old Kenneth Brooks. At trial, Mr. McIntosh alleged that he stabbed Mr. Brooks in the neck with a pocketknife in self-defense. Our record contains the transcript of the testimony presented at Mr. McIntosh’s trial.

Mr. Brooks was a friend of Sharon McCall, who apparently had a relationship with Mr. McIntosh’s brother, John Avery. About a week before this incident, Mr. Brooks lost $80 while visiting Ms. McCall at Mr. Avery’s apartment. When he realized that he had lost his money, Mr. Brooks immediately returned to look for it. The money could not be found, and Ms. McCall and Mr. Avery denied any knowledge of it. Mr. Brooks became angry and left, promising to return the following week for the money.

Mr. Brooks returned the following Saturday evening at approximately 10 or 11 p.m. Mr. Brooks, Ms. McCall, and Mr. McIntosh each testified to the events that followed, but each description varied considerably. Each agreed, however, that Mr. Avery answered the door first, refused to give Mr. Brooks any money, and slammed the door in Mr. Brooks’ face. After a short time, Mr. Brooks returned and knocked or kicked at the door again. This time, Mr. McIntosh answered the door.

Mr. McIntosh was about fifty-five years old on the day of the incident. At trial, he testified that he was at the house because he knew that Mr. Brooks had been threatening Mr. Avery and Ms. McCall. According to Mr. McIntosh, Ms. McCall had told him that Mr. Brooks carried a gun. Mr. McIntosh claimed that when he answered the door, he too told Mr. Brooks to leave and slammed the door in his face. This time Mr. Brooks immediately started beating on the door again. Mr. McIntosh claimed that he did not call the police because the house had no telephone.

Mr. McIntosh opened the door again and stepped out onto the front porch. Although Mr. Brooks testified that Mr. Avery and Ms. McCall also stepped outside and participated in the affray, Mr. Avery did not testify and Ms. McCall claimed that she and Mr. Avery remained inside and did not witness the altercation. According to Mr. Brooks, Mr. McIntosh pushed him backwards, whereupon Mr. Brooks grabbed Mr. McIntosh by the waist. The two were physically struggling when Mr. McIntosh stabbed Mr. Brooks.

According to Mr. McIntosh, Mr. Brooks attacked him, and at some point pushed away and reached behind his back. Mr. McIntosh thought that Mr. Brooks was reaching for a gun. Mr. McIntosh testified he then pulled out a small pocketknife and stabbed Mr. Brooks once in the neck. Mr. McIntosh, Ms. McCall, and Mr. Avery quicWy left the area, ignoring Mr. Brooks’ calls for help. Mr. McIntosh and Ms. McCall both testified that they heard Mr. Brooks state that he was only trying to reach for a beeper. Mr. Brooks admitted that he had a beeper on his person when the stabbing occurred.

Mr. Brooks’ stab wound was less than three-fourths of an inch across, but rendered him partially paralyzed. He identified Mr. McIntosh as the person who stabbed him. Mr. McIntosh was arrested a few days later. He initially denied any [3]*3involvement in the events leading up to the stabbing. No knife was ever recovered.

Based upon this evidence, the jury corn victed Mr. McIntosh of the lesser-included offense of attempted second-degree murder. He was sentenced to life imprisonment. We affirmed Mr. McIntosh’s judgment and sentence on direct appeal. McIntosh v. State, 819 So.2d 767 (Fla. 2d DCA 2002).

Mr. McIntosh filed a timely motion for postconviction relief, alleging seven grounds of ineffective assistance of counsel. After an evidentiary hearing on six of the grounds, the circuit court denied the motion. We affirm the denial of grounds two through five and ground seven without further comment. We reverse, however, the denial of grounds one and six.

In ground one, Mr. McIntosh asserted that his trial counsel was ineffective for failing to object when, during recross-examination of Mr. McIntosh, the prosecutor pulled out his own personal knife to demonstrate his theory that Mr. McIntosh did not have time to pull the knife in self-defense and thus must have come prepared to fight. Although the knife Mr. McIntosh had used was described as an ordinary pocketknife, the prosecutor pulled out a “long, white butterfly knife” about eight to ten inches long. Defense counsel did not object, even ‘though no knife was in evidence and the demonstration knife was three times larger than an ordinary pocketknife. Indeed, at the post-conviction hearing, defense counsel did not even recall the prosecutor doing this, although the prosecutor admitted that he had done so.

The prosecutor’s knife, of course, was not introduced into evidence, and there is no indication that he ever apprised the trial court or defense counsel of his intent to use it. The knife that the prosecutor used was not one that a man might ordinarily carry on his person for utility purposes; it was the kind of knife that an aggressor would take to a fight, and quite possibly it was an illegal concealed weapon. Even if the prosecutor’s personal knife had been admitted into evidence, it would not have been a proper demonstrative exhibit. See, e.g., Chamberlain v. State, 881 So.2d 1087, 1102 (Fla.2004); Brown v. State, 550 So.2d 527 (Fla. 1st DCA 1989) (holding demonstrative exhibits may be used to aid in the jury’s understanding only if they are accurate and reasonable reproductions of the object involved). There was no evidence that the prosecutor’s knife was an accurate and reasonable reproduction of the one actually used by Mr. McIntosh. In fact, Mr. McIntosh’s testimony at the evidentiary hearing, which was unrefuted, was that the knife produced by the prosecutor was significantly different and significantly larger than the knife he used during the incident.

Defense counsel was given another chance to address the prosecutor’s actions when the jury returned from deliberations to ask: ‘What happened to the knife? And what are its dimensions?” Defense counsel did not request that the trial court clarify to the jury that the knife used by the prosecutor was not evidence and was not intended to replicate the knife Mr. McIntosh actually used. Rather, defense counsel permitted the trial court to instruct the jury as follows:

As I told you yesterday afternoon, you’ve heard all of the evidence you’re going to hear and seen all of the evidence you’re going to see. This is it. So you must base your deliberations on what you have seen and heard. So please return to the jury room and deliberate your verdict.

The State’s theory of this case was essentially that Mr. McIntosh had been [4]*4called to the house to protect the occupants and that he came prepared to do battle with Mr. Brooks. Thus, the State argued that Mr. McIntosh did not have time to pull his pocketknife in the heat of the battle, to open it, and to strike Mr.

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Bluebook (online)
941 So. 2d 1, 2006 Fla. App. LEXIS 12341, 2006 WL 2061284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintosh-v-state-fladistctapp-2006.