Cox v. State

• Citation: 407 So.2d 633
• Decision Date: 08 December 1981
• Docket Number: No. 80-1971,80-1971
• Parties: Richard Edward COX, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 633

407 So.2d 633

Richard Edward COX, Appellant, v. The STATE of Florida, Appellee.

No. 80-1971.

District Court of Appeal of Florida, Third District.

Dec. 8, 1981.

Bennett H. Brummer, Public Defender and Alan M. Medof, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

Before BARKDULL, SCHWARTZ and BASKIN, JJ.

SCHWARTZ, Judge.

The defendant Cox appeals from the denial of a Fla.R.Crim.P. 3.850 motion to vacate his conviction on the asserted ground of ineffective assistance of counsel. At Cox's 1973 robbery trial in the Dade County Criminal Court of Record, his assistant public defender ¹ did not object to extensive testimony by the investigating police officers that he remained silent when arrested and asked about his involvement in the offense. ² Notwithstanding, this court reversed Cox's conviction for a new trial in a delayed Baggett v. Wainwright, 229 So.2d 239 (Fla.1969) appeal ³ which was decided on March 21, 1978. Cox v. State, 361 So.2d 168 (Fla.3d DCA 1978). On this issue, the court stated:

The appellant contends that he was deprived of his constitutional right against self-incrimination when the State was permitted to elicit testimony at trial from the arresting officers concerning his silence while in custody. We agree and reverse on the authority of Bennett v. State, 316 So.2d 41 (Fla.1975). ⁴ )

Rehearing was denied on May 5, 1978. On July 28, 1978, the supreme court, resolving a pervasive conflict which had existed among the district courts of appeal, held in Clark v. State, 363 So.2d 331 (Fla.1978) that, while any reference to post-arrest silence per se constitutes reversible error, a contemporaneous objection and motion for mistrial were absolutely required to preserve the issue for appellate review. Since Cox's attorney had not taken these steps, the supreme court held in State v. Cox, 372 So.2d 1114 (Fla.1979):

The decision of the District Court of Appeal, Third District, in Cox v. State, 361 So.2d 168 (Fla.3d DCA 1978), which is in direct conflict with our recent decision of Clark v. State, 363 So.2d 331 (Fla.1978), is hereby quashed, and this cause is remanded for further proceedings consistent with our decision in Clark.

Accordingly, we entered an order on the supreme court mandate affirming the conviction. Cox v. State, 374 So.2d 1140 (Fla.3d DCA 1979). Cox then brought the present 3.850 motion claiming that the failure timely to make the pertinent objection at trial-which would have unquestionably secured a new trial if then requested-amounted to a breach of his sixth amendment right to the reasonably effective assistance of counsel. We agree with the trial court's rejection of this position.

In our view, the undisputed circumstances of this case do not satisfy the requirement which is the underlying basis of any claim of ineffective assistance, that the attorney have been "guilty" of a

specific omission or overt act (which) was a substantial and serious deficiency measurably below that of competent counsel.

Knight v. State, 394 So.2d 997, 1001 (Fla.1981). In making this determination, it is obvious that the actions in question must be gauged by the law prevailing at the time they occurred, Blatch v. State, 389 So.2d 669, 672-73 (Fla.3d DCA 1980), and that

counsel will (not) be judged ineffective by a standard based on hindsight. United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976). Nor does this standard mean that counsel is to be judged ineffective by virtue of his failure to anticipate future developments in the law. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Davis v. Wainwright, 547 F.2d 261 (5th Cir. 1977).

Meeks v. State, 382 So.2d 673, 675-76 (Fla.1980). Accord, e.g., Knight v. State, supra, at 394 So.2d 1003; Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981), and cases cited. We conclusively-and perhaps uniquely-know from our own reversal of the same judgment which is now sought to be vacated that this principle is directly applicable here. It was simply not necessary in 1973 to object to testimony concerning the defendant's invocation of his Miranda rights to preserve the point for appellate purposes. In 1967, we had squarely so held in Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), and had rather consistently maintained that position ⁵ through and including Cox v. State itself. See also, e.g., Weiss v. State, 341 So.2d 528 (Fla.3d DCA 1977); Davis v. State, 342 So.2d 987 (Fla.3d DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977); Smith v. State, 342 So.2d 990 (Fla.3d DCA 1977); but see, Mansfield v. State, 338 So.2d 857 (Fla.3d DCA 1976), cert. dismissed, 342 So.2d 1102 (Fla.1977). It was not until Clark was decided within weeks of Cox that it was revealed that the law of Florida was to the contrary of this position. ⁶ Surely counsel cannot be held to a degree of insight and foresight greater than that of many judges of the court of appeal of the district in which he practices-however misguided they are only later revealed to have been.

Even beyond this, it might well be argued that at the time it was affirmatively in the client's best interest that counsel actually refrain from objecting. Then, Bennett v. State, 316 So.2d 41 (Fla.1975), as now, Clark v. State, supra, at 363 So.2d 335; Barnes v. State, 375 So.2d 40 (Fla.3d DCA 1979), a reference to the right to silence was reversible without regard to whether it was otherwise harmful. Contra, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). "Lying back" without objecting therefore gave the defendant two bites at the apple. If he were acquitted in the first trial, fine; if not, he would win (as Cox did) an "automatic" new trial on appeal. In fact, it was largely to eliminate this entirely one-sided gamble that Clark was decided as it was. See Clark v. State, supra, at 363 So.2d 335. ⁷ But, again, Clark was rendered five years after Cox's trial and three months after he won his short-lived reversal. Before its appearance, the "no-objection" rule was so well-established in this district that the Dade County public defender's office, of which trial counsel was a member, argued in Williams v. State, 366 So.2d 817, 819 (Fla.3d DCA 1979), cert. denied, 375 So.2d 912 (Fla.1979) that defense counsel so relied upon it and indeed had such a "vested interest" in its existence that Clark should not be retroactively applied. Under all these circumstances, it appears as a matter of law that counsel's inaction at trial did not then ⁸ in any sense or in any manner render his representation of the defendant constitutionally ineffective.

For this reason, ⁹ the order under review is

Affirmed.

1 Of course, it no longer matters that his lawyer was assigned rather than retained. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Vagner v. Wainwright, 398 So.2d 448 (Fla.1981).

2 The actual testimony was as follows:

Q. (Assistant State Attorney): What did you do next?

A. (Detective Albert LaVoie, Dade Co. Public Safety Department): After I placed him under arrest I advised him of his constitutional rights. I have a card in my wallet and I read the card to him. He acknowledged each right and stated that he did not want to talk to me....

Q. Is this the man who was driving the automobile?

A. (Officer Ralph Hamilton, Dade Co. Public Safety Department): Yes, sir.

Q. All right, what happened next?

A. He gave Officer LaVoie a Florida driver's license and he asked Officer LaVoie if he was speeding and Officer LaVoie said 'No, you were not speeding. You are a suspect in an armed robbery that occurred in Miami Springs a few minutes ago,' and at this time the defendant did not say anything else.

3 An earlier appeal from the sentences only resulted in the vacation of a five year sentence for possession of a firearm during the commission of the robbery. Cox v. State, 300 So.2d 64 (Fla.3d DCA 1974).

4 The decision was a per curiam opinion of a two-judge majority consisting of Justice Boyd of the Florida Supreme Court and retired Judge Carroll, both sitting as Associate Judges. Judge Kehoe dissented "for the reasons set forth in ... Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976)." 361 So.2d at 169.

5 In those pre-en banc days, the exceptions were dependent upon the make-up of the respective panel which decided the particular case.

6 The defendant argues here that Clark simply restated the contemporaneous objection requirement in accordance with an established principle which had been applied in Florida to similar situations at least since State v. Jones, 204 So.2d 515 (Fla.1967). Thus, it is said, counsel should be held to have known about it in 1973. While this approach may satisfy the classic Blackstonian view that courts merely explore, discover and then announce what the law is and always has been, see Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), it is not in accordance with the realities which surrounded the issue before Clark was decided. State v. Jones involved only prosecutorial comment during final argument on the defendant's failure to take the stand. On the other hand, our decision in Jones v. State concerned the present issue of testimonial reference and was cited with obvious approval by the supreme court in Bennett v. State, 316 So.2d 41, 42 (Fla.1975). The diverse conclusions which might be drawn from these judicial clues, see discussion in Clark v. State, 336 So.2d 468, 470-72 (Fla.2d DCA 1976), led to a large number of directly conflicting cases on the issue, most of them-including Cox-holding that no objection was required. See cases collected, Tsavaris v. Scruggs, 360 So.2d 745, 758-59 (Fla.1977) (Adkins, J., dissenting from denial of rehearing). The problematical nature of even the supreme court's ultimate resolution of the question is evidenced by the facts that Justice Adkins, the...