Comer v. State, 98-883.

• Decision Date: 23 March 1999
• Docket Number: No. 98-883.,98-883.
• Parties: Billy COMER, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

730 So.2d 769

Billy COMER, Jr., Appellant, v. STATE of Florida, Appellee.

No. 98-883.

District Court of Appeal of Florida, First District.

March 23, 1999.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

Billy Comer appeals his conviction for burglary of a dwelling, during which a battery was committed (Counts One and Three); aggravated battery (Count Two); and resisting arrest without violence (Count Four). Comer contends that the trial court reversibly erred in failing to conduct an adequate Nelson¹ inquiry when he moved to discharge his court-appointed attorney, and in excluding defense witness Eddie Deveaux without conducting a proper Richardson² inquiry into the defense's discovery violation and without considering less restrictive sanctions. We find no abuse of discretion in the trial court's denial of Comer's motion to discharge counsel. Augsberger v. State, 655 So.2d 1202 (Fla. 2d DCA 1995). However, given the lower tribunal's failure to conduct an adequate Richardson inquiry, and the State's failure to demonstrate that the error is harmless beyond a reasonable doubt, we are constrained to reverse the judgment and sentence and remand for a new trial.

The Nelson Issue

Immediately prior to jury selection, Comer moved to discharge his court-appointed attorney, Mr. Ratzlaff, who was an assistant public defender. Comer complained that counsel was not rendering effective representation and was not communicating with him. In Nelson, 274 So.2d at 256 the defendant, who was found guilty of robbery, moved to vacate his judgment and sentence on the grounds that his court-appointed attorney had seen him on only one occasion, that counsel was a personal friend of the robbery victim, that the attorney had suggested that Nelson plead guilty, and that after refusing to plead guilty, Nelson asked the trial court (prior to the commencement of trial) to dismiss appointed counsel. The trial court acceded to Nelson's request to dismiss his attorney but refused his request to appoint a successor. As a result, Nelson had to stand trial without assistance of counsel. In the appeal, the Fourth District Court addressed the appropriate procedure to be followed by a trial court to protect an indigent's Sixth Amendment right to counsel in a criminal prosecution where, before the commencement of the trial, the defendant moves to discharge appointed counsel. Id. at 258. In language describing what henceforth became known as a Nelson inquiry, the district court set out the proper steps to be taken by the trial court:

[W]here a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his court appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute. See Wilder v. State, Fla.App. 1963, 156 So.2d 395, 397. If the defendant continues to demand a dismissal of his court appointed counsel, the trial judge may in his discretion discharge counsel and require the defendant to proceed to trial without representation by court appointed counsel.

Id. at 258-59. Concluding that Nelson's right to counsel was not adequately protected when he moved to discharge court-appointed counsel, the district court quashed the order on the motion to vacate and remanded with instructions to the trial court to grant the motion to vacate and to provide Nelson with a new trial as well as representation by court-appointed counsel. Id. at 259. The Supreme Court of Florida has approved the Nelson procedure. Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.),cert. den., 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988).

Comer contends that the trial court erred in failing to conduct an adequate Nelson inquiry once he put the court on notice of his complaints. After questioning by the trial court, Comer persisted in his claim and indicated that he would like to hire another lawyer because Comer's relatives "have a little money." The State correctly notes that Comer's request never triggered the requirements of Nelson, which requires trial courts to inquire into pretrial allegations of ineffective assistance of counsel "solely to determine if the defendant is entitled to other court-appointed counsel." Foster v. State, 704 So.2d 169, 172 (Fla. 4th DCA 1997); Branch v. State, 685 So.2d 1250 (Fla. 1996). Comer's comments indicate that his family was financially able and wished to hire private counsel, so that the trial court was not required to conduct any further inquiry with regard to a court-appointed successor.

Even assuming arguendo that Comer's allegations were to be addressed on their merits, we conclude that all of his claims were merely general and conclusory, i.e., facially insufficient, to require an inquiry under Nelson. First, Comer alleged that his lawyer had made hardly any "kind of arrangements." When pressed for details, Comer generally complained that his attorney had not let him know anything. These are mere conclusions. Davis v. State, 703 So.2d 1055, 1058-59 (Fla. 1997) (March 1994 motion alleging that defendant did not feel he was being adequately represented by court-appointed counsel and had not heard anything from him since November 1993 consisted of ambiguous, generalized expressions of dissatisfaction that did not rise to formal allegations of incompetence, and defendant's silence regarding his complaints after his attorney detailed the work he had done in this capital case led to reasonable belief that defendant felt that trial court had adequately addressed his concerns); Branch, 685 So.2d at 1252; Lowe v. State, 650 So.2d 969, 975 (Fla. 1994) ("As a practical matter, a trial judge's inquiry into a defendant's complaints of incompetence of counsel can be only as specific and meaningful as the defendant's complaint."); Parker v. State, 570 So.2d 1053 (Fla. 1st DCA 1990) (defendant's allegations that counsel would not meet with him and had failed to discuss legal implications of motions filed on his own behalf, and that counsel and he had personality conflict, lacked sufficient factual specificity). Second, Comer alleged that counsel had come to the jail only once. Without more, this allegation is insufficient. See Rosemond v. State, 433 So.2d 635, 636 (Fla. 1st DCA 1983)

(following convictions for three counts of conspiracy to sell cocaine, defendant's allegation in Rule 3.850 motion that defense counsel had consulted with him only seven times, for ten minutes each, was facially insufficient because brevity of consultation is not ground for post-conviction relief). Third, Comer alleged that when the jailers called at Comer's behest, his attorney did not want to talk to him on the telephone. When the trial judge informed Comer that his lawyer represented many clients and talked to them when he needed to, Comer conceded that he did not feel that counsel would not fully represent him. At the trial court's request, defense counsel responded that he had taken full discovery, had taken depositions, and had discussed the case with Comer in person and on the telephone a number of times so that the defense was prepared to go to trial. Given this record, we find no abuse of discretion in the lower court's handling of Comer's allegations.

The Richardson Issue

The State's informations comprised four counts. Count One charged Comer with unlawfully entering or remaining in Kimberly Crum's apartment residence with the intent to commit battery or some other offense, in the course of which he assaulted or battered Johnny "Jody" Dawson. Count Two alleged that Comer did unlawfully commit a battery upon Dawson by striking the victim with a board with exposed nails. Count Three alleged that Comer unlawfully entered or remained in Crum's apartment with the intent to commit a battery or some other offense, in the course of which he assaulted or battered Crum herself. Count Four alleged that Comer unlawfully resisted, obstructed, or opposed Patrolman Lee Langley in the lawful execution of a legal duty, i.e., while Langley was trying to arrest him. All of the charged offenses occurred on October 13, 1997.

The State's evidence indicated that on the day in question, Comer had called Crum (with whom Comer had a three-year-old son) and told her that he was getting out of jail. Comer had asked Crum: "Doesn't it feel like your heart just stopped?" During the evening of the same day, while Crum entertained guests at home, Comer suddenly broke through a window and entered the apartment without knocking on the door and without receiving permission. Dawson, who was a guest, headed toward the kitchen after hearing a window breaking. Dawson testified that, without provocation, Comer came around a corner and unexpectedly struck him on the head with a board, causing a wound that required twelve stitches. Crum and her guests fled outside and, 5-8 minutes later, observed Comer jumping a fence and heading back in the...