Barnett v. State

• Decision Date: 12 November 2015
• Docket Number: No. 1D13–6137.,1D13–6137.
• Citation: 181 So.3d 534
• Parties: Elliott BARNETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

181 So.3d 534

Elliott BARNETT, Appellant,

v.STATE of Florida, Appellee.

No. 1D13–6137.

District Court of Appeal of Florida, First District.

Nov. 12, 2015.

Rehearing Denied Jan. 8, 2016.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.

ROWE, J.

Appellant, Elliott Barnett, appeals his convictions for first-degree murder and attempted armed robbery. Barnett argues that defense counsel's failure to request an alibi instruction was ineffective assistance of counsel apparent on the face of the record or, in the alternative, the failure to give the instruction resulted in fundamental error. Because Barnett failed to meet the heavy burden to prove either of these errors, we affirm.

Facts

The charges in this case arose from the shooting death of William McFaline. The State presented the testimony of two co-defendants, Rasean Vann and Chequial Williams, to show that Barnett along with Vann and Williams planned to rob McFaline after McFaline purchased marijuana from his supplier. The State's theory was that Vann accompanied McFaline to purchase marijuana from McFaline's supplier on the other side of town. Unbeknownst to McFaline, Vann was sending text messages to Williams, relaying their location so Barnett and Williams could rob McFaline after the drugs were in his possession. The drug buy fell through, but Vann, Williams, and Barnett decided to continue with the plan to rob McFaline. While McFaline and Vann were parked at an apartment complex, Barnett approached McFaline's car, pulled his gun, and discharged his weapon multiple times. McFaline died as a result of one of the gunshot wounds.

The defense's theory was that Appellant was never involved in the planning or robbery of McFaline. Appellant admitted that he was with Vann on the afternoon of the shooting, but he testified that they parted ways around 3:00 p.m. He testified that he spent the remainder of the afternoon with his cousin, Chris Simmons, and that he and Simmons were playing basketball in a park during the time of the shooting. Appellant also presented the testimony of three alibi witnesses who corroborated his testimony that he was at the park during the shooting. Simmons testified that at one point in the evening, he saw Vann's car at the park, but he could not see who was in the car. Although defense counsel filed a notice of intent to present an alibi defense, presented alibi witnesses, and argued to the jury that Barnett had an alibi for the time of the shooting, defense counsel failed to request the standard jury instruction on the alibi defense. The jury found Barnett guilty of first-degree murder and attempted armed robbery. This timely appeal follows.

Ineffective Assistance of Counsel

Barnett argues that defense counsel's failure to request the alibi jury instruction constitutes ineffective assistance of counsel on the face of the record because there was no reasonable tactical explanation for counsel's failure to request this instruction and Barnett was prejudiced by the exclusion of the instruction. Claims of ineffective assistance of counsel are rarely addressed on direct appeal because they normally turn on questions of fact and both sides are entitled to present relevant evidence at an evidentiary hearing. Hills v. State, 78 So.3d 648, 652 (Fla. 4th DCA 2012). In order to prevail on such a claim, an appellant must demonstrate "ineffectiveness on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct." Morales v. State, 170 So.3d 63, 67 (Fla. 1st DCA 2015).

Barnett relies on the decisions in Shedd v. State, 137 So.3d 456 (Fla. 4th DCA 2014), and Capiro v. State, 97 So.3d 298 (Fla. 4th DCA 2012), to support his argument that counsel's failure to request an alibi instruction constitutes ineffective assistance of counsel on the face of record because the alibi defense was Barnett's primary defense. However, we find that Shedd and Capiro are distinguishable from the present case because those cases dealt with the omission of jury instructions for affirmative defenses.^* See Shedd, 137 So.3d at 459 (failing to request the jury instruction on the prescription defense where Shedd's defense to charges of possession of prescription medication was that he was legally holding his mother's pills for safekeeping while operating her vehicle); Capiro, 97 So.3d at 300–01 (failing to request a jury instruction on the good faith defense to theft where Capiro's entire defense was that he did not have the requisite intent to commit theft because he had a good faith belief he was entitled to spend the funds at issue). Here, Barnett's alibi defense was that he was not present when McFaline was shot; it was not that he had a valid excuse or justification for shooting McFaline. Thus, the decisions in Shedd and Capiro are distinguishable from the present case.

This case does not present one of the rare incidents where ineffectiveness is apparent from the face of the record. Compare Martinez v. State, 761 So.2d 1074, 1078 n. 2 (Fla.2000) (stating that defense counsel's failure to request a jury instruction on alibi did not present ineffectiveness "apparent on the face of the record," notwithstanding several witnesses' testimony that supported the alibi defense), and Jackson v. State, 120 So.3d 147, 147 n. 1 (Fla. 4th DCA 2013) (indicating that a claim that defense counsel was ineffective for failing to request an alibi instruction would be more properly raised in a post-conviction motion), with Jackson v. State, 970 So.2d 346, 347 (Fla. 2d DCA 2007) (holding that there was ineffective assistance of counsel on direct appeal where complete defense to revocation of probation was available but not raised by counsel and there was "no plausible strategic reason for" counsel to allow defendant to admit violation of probation resulting in a five-year prison sentence). Counsel could have had a tactical reason for failing to request the alibi instruction. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) ("[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct."). Although the trial court did not instruct the jury on Barnett's alibi defense, it did provide instructions on excusable and justifiable homicide. If counsel had requested the alibi instruction, Barnett would not have been entitled to either of those instructions. Moyer v. State, 558 So.2d 1045 (Fla. 5th DCA 1990) (affirming denial of justifiable use of deadly force...