Downs v. State, Case No. 5D16-3535.

• Decision Date: 01 September 2017
• Docket Number: Case No. 5D16-3535.
• Citation: 227 So.3d 694
• Parties: Jason Scott DOWNS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

227 So.3d 694

Jason Scott DOWNS, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D16-3535.

District Court of Appeal of Florida, Fifth District.

Opinion filed September 1, 2017

Rehearing Denied October 9, 2017

Jason S. Downs, Melbourne, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Jason Downs was charged with showing obscene material to a minor (count one), forcing or enticing a minor to commit a lewd or lascivious act (count two), and knowingly committing a lewd or lascivious act in the presence of a minor (count three). The evidence against Downs consisted of the child victim's allegations of what occurred while Downs was babysitting the victim. Downs was acquitted of count one, but he was convicted of counts two and three. His convictions were affirmed on direct appeal. Downs v. State, 823 So.2d 789 (Fla. 5th DCA 2002).

Downs now appeals from the denial of his motion for postconviction relief timely filed pursuant to Florida Rule of Criminal Procedure 3.850.¹ Downs's motion raised four grounds of ineffective assistance of his trial counsel: (1) counsel's failure to assert a defense theory; (2) counsel's failure to investigate or call exculpatory witnesses; (3) counsel's advice to reject a favorable plea offer; and (4) counsel's refusal to allow Downs to testify on his own behalf. The postconviction court summarily denied grounds one and two, and denied grounds three and four after an evidentiary hearing. Because the record attachments do not conclusively refute the claims made in grounds one and two, we reverse and remand for an evidentiary hearing or for record attachments conclusively refuting those claims. We affirm the denial of grounds three and four without further discussion.

In ground one of his motion, Downs argued that his trial counsel never interviewed him or asked for his version of events, did not interview or investigate the State's witnesses, and did not present a defense theory at trial. Downs claimed that counsel's sole strategy "was to preserve the opportunity to twice speak in closing arguments, the so-called argument ‘sandwich.’ "² Downs relies on Cole v. State, 700 So.2d 33 (Fla. 5th DCA 1997), in which this Court disapproved of the same trial strategy and found that counsel's performance was per se deficient.³

The postconviction court noted that Downs's counsel told him that the trial strategy "was to not call any witnesses for the defense and to not perform any sort of pretrial investigation," but Downs retained him anyway. The court found that counsel pursued the defense that the victim fabricated the allegations to gain his mother's attention. The court found that although counsel did not depose or investigate the State's witnesses, counsel was aware of their statements prior to trial based on the child victim hearsay hearing and "vigorously argued against the admissibility of those hearsay statements." The court also found that counsel effectively cross-examined the State's witnesses and noted the lack of physical evidence against Downs. Counsel also successfully moved to exclude a videotaped interview with the victim, obtained a judgment of acquittal on count one, and secured a downward departure, youthful offender sentence and a withhold of adjudication. Thus, based on the totality of the representation, the court summarily denied this claim, finding that Downs failed to demonstrate prejudice.

As an initial matter, "[a] client's acquiescence in trial counsel's conduct does not necessarily insulate the lawyer's performance from judicial review in a postconviction proceeding." Evans v. State, 737 So.2d 1167, 1168 (Fla. 2d DCA 1999). Thus, the postconviction court's finding that Downs knew about counsel's trial strategy and "nevertheless retained him for representation" is unavailing. In addition, the record attachments do not conclusively refute Downs's claim that counsel pursued a blanket trial strategy and failed to interview or depose the State's witnesses. The court acknowledged that Downs's counsel did not investigate or depose the State's witnesses but concluded that counsel effectively cross-examined the witnesses and noted the lack of physical evidence against Downs. However, these findings do not refute Downs's claim that his counsel failed to investigate his defense theory that he could not have committed the crimes. Therefore, we reverse and remand ground one either for attachment of records conclusively refuting this claim or for an evidentiary hearing.

In ground two, Downs alleged ineffective assistance of trial counsel for failing to investigate, interview, or depose any defense witnesses. Specifically, Downs claimed that his trial counsel should have deposed his parents and his prior girlfriend, all of whom would have corroborated his defense that he was never alone with the victim. Downs also argued that counsel was ineffective for failing to depose or investigate the victim's sister. He argued that he was prejudiced by this failure because counsel was unable to corroborate his defense theory. Thus, he claimed that because of trial counsel's deficiency, he was found guilty of crimes that he did not commit.

"[F]ailure to investigate or call an exculpatory witness ‘presents a prima facie showing of entitlement to relief, subject to rebuttal by evidence from the record or testimony at an evidentiary hearing.’ " Honors v. State, 752 So.2d 1234, 1235–36 (Fla. 2d DCA 2000) (quoting Prieto v. State, 573 So.2d 398, 399 (Fla. 2d DCA 1991) ). Downs alleged that the...