Visger v. State

953 So. 2d 741, 2007 Fla. App. LEXIS 5330, 2007 WL 1062845
CourtDistrict Court of Appeal of Florida
DecidedApril 11, 2007
DocketNo. 4D06-424
StatusPublished
Cited by8 cases

This text of 953 So. 2d 741 (Visger 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
Visger v. State, 953 So. 2d 741, 2007 Fla. App. LEXIS 5330, 2007 WL 1062845 (Fla. Ct. App. 2007).

Opinion

WARNER, J.

In denying appellant’s motion for postconviction relief, the trial court found, inter alia, that his counsel was not ineffective for advising appellant not to testify, as the revelation of his prior convictions [742]*742would outweigh the necessity for his testimony. Because appellant’s testimony was the only evidence supporting his defense to the burglary that he was invited into the home, counsel’s admitted theory of defense, we conclude that counsel’s advice was deficient under the particular facts of this case. We therefore reverse.

According to the state’s witnesses, Matthew Farmer was on the porch at the residence of his girlfriend, Michelle Engle-hartt, and her roommate, Jackie Heyer. The women were sleeping in the house, as was a friend, John Goodwin. Matthew had his girlfriend’s gun because of trouble earlier in the day when an ex-boyfriend attacked Jackie and threatened Michelle. Around 3:30 a.m., appellant, whom Matthew did not know, appeared asking for the ex-boyfriend and for some cocaine. When appellant saw Matthew had a gun, he tried to take it away by fighting with Matthew. Without appellant noticing, Matthew was able to unload the gun as appellant was choking him. Appellant then obtained control over the gun.

Appellant dragged Matthew inside the house and pistol-whipped Michelle and John, who were dozing on the couch, to wake them and ask them for cocaine. Michelle asked for her gun back, and appellant gave it to her. Matthew, who was sitting between Michelle and John, gave Michelle the bullet or clip he had removed from the gun, telling her he thought she would need it. Matthew and John then wrestled with appellant, trying to get him out of the house, but they were small and he was much larger. While appellant had both men in a headlock, Michelle threatened to shoot him if he did not leave. He lunged toward her and she shot him in the chest, seriously wounding him.

Michelle then ran to a local store to call the police, explaining that there was an intruder in her house whom she shot with her own gun. This call was not made until around 4:40 a.m. Michelle testified that she did not give appellant permission to enter her house. When police officers arrived at the scene, they found marijuana in the house.

Matthew also confirmed he never gave appellant permission to enter the house, or to hit him. After the shooting, Matthew climbed up on the roof, where he passed out. He said the police found him there around 8:30 or 9:00 in the morning. He understood Michelle and Jackie ran to a phone to call the police. Neither Jackie nor John testified at trial.

Appellant was appointed counsel and upon his first meeting, he explained his version of events to counsel. Appellant was walking home and saw a man — Matthew — shooting a gun and asked if he was trying to shoot him. They laughed and talked for a while, and then appellant asked Matthew if he knew where to get cocaine. Matthew said Michelle might know and invited him into the house. Matthew talked to Michelle about getting appellant some cocaine, and Matthew reloaded the gun. While they were talking, Matthew asked appellant his name. Appellant replied, “Tony Lee” — giving his first and middle names. Michelle’s ex-boyfriend was named David Lee, and Matthew thought appellant was one of David Lee’s cronies. According to appellant, Matthew — not Michelle — immediately shot him, point blank. That was all appellant remembered until being transported to the hospital. Appellant did not know David Lee at the time of the shooting but later met him while in jail and learned of his connection. At the evidentiary hearing on postconviction relief, counsel confirmed that appellant told him all of this, except for Matthew shooting him instead of Michelle. Nevertheless, counsel admitted knowing that, according to appellant, he [743]*743was invited into the house, and counsel also remembered appellant telling him about David Lee.

At trial, counsel put on no witnesses to support any defense. Instead he extensively cross-examined the state witnesses regarding conflicts in their testimony and prior inconsistent statements. He also attacked the state’s investigation of the case. In the end, appellant was convicted of burglary with a battery and simple battery.

In his motion for postconviction relief, appellant claimed counsel misadvised him that his testimony was not needed, and that if he did testify, the jury would learn of his prior conviction for aggravated battery. On the contrary, his testimony was needed because there was no way to put his version of events before the jury without it, particularly his invitation into the house, which would negate the burglary charge.

At the evidentiary hearing on the motion, counsel admitted that the theory of defense was that appellant was invited to enter Michelle’s home, in accordance with appellant’s version of the incident. He was under the impression at the hearing that neither Matthew nor Michelle testified at trial as to whether appellant was invited in, even though the trial transcript shows that each specifically stated appellant had no permission to enter the house. It was counsel’s belief that he could put the defense theory of consensual entry before the jury during closing argument, without any evidence to support it other than his argument that the state witnesses’ testimony was inconsistent and not credible. He also testified that he thought that the danger of placing appellant’s prior convictions before the jury far outweighed any necessity of the testimony to the defense. However, counsel did not know how many prior convictions appellant had. Counsel denied advising appellant that the jury would learn the nature of his prior convictions if he testified.

In its order denying the postconviction relief motion, among its factual findings the court noted that “[Counsel] testified that he advised Defendant not to testify because the jury may have found out about his prior convictions, which far outweighed the necessity of Defendant testifying.” The court found that trial counsel’s performance was not deficient in that his strategic decisions were reasonable, considering the totality of the circumstances. Moreover, the court found that even if counsel’s performance was deficient, appellant had not shown a reasonable probability that the outcome of the proceedings would be different. This appeal follows.

Most recently, our supreme court summarized the elements required to prove a claim of ineffective assistance of counsel in Morris v. State, 931 So.2d 821 (Fla.2006):

In order to establish a claim of ineffective assistance of counsel, a defendant must meet two requirements:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
953 So. 2d 741, 2007 Fla. App. LEXIS 5330, 2007 WL 1062845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/visger-v-state-fladistctapp-2007.