Jones v. State, 70836

Decision Date23 June 1988
Docket NumberNo. 70836,70836
Citation13 Fla. L. Weekly 403,528 So.2d 1171
Parties13 Fla. L. Weekly 403 Leo Alexander JONES, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Robert J. Link, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is an appeal from an order denying a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant was previously convicted of first-degree murder and sentenced to death, we have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

The facts surrounding the crime are set forth in our opinion on the direct appeal of appellant's conviction as follows:

The evidence at trial showed that on May 23, 1981, shortly after 1:00 A.M., Officer Thomas J. Szafranski was shot in his squad car at the intersection of 6th Street and Davis Street, Jacksonville, Florida. Officer Wilmouth was first on the scene. While Wilmouth waited for medical assistance to arrive a group of people came out of a nearby bar and approached him. One unidentified member of the group indicated that the shots had come from the two-story apartment building fronting the 6th and Davis Street intersection. Thereafter Wilmouth proceeded to investigate this building.

Officer Mundy had been informed of the incident by radio and quickly joined Wilmouth in the investigation. According to Mundy, the reputation of the apartment building in question was well travelled in law enforcement circles. Mundy entered the building fully aware that the vacant lower left apartment was a known "stash house" harboring drug users, vagabonds and other street criminals.

The two officers' search of the building's lower level produced nothing. However, Wilmouth informed Mundy that he had heard "shuffling" in the upper left apartment. Thereafter Mundy approached this apartment, knocked on the door, and proceeded to identify himself as a police officer. His repeated knocking, however, went unanswered. When Mundy continued to hear voices coming from within he entered the apartment; there he confronted appellant and appellant's cousin, Bobby Hammond, charging them both with attempted first-degree murder. During a cursory search of the apartment, assisting officers located several high-powered rifles, resting in plain view, but did not, at that time, disturb them.

Both appellant and Hammond were then transported to the Police Memorial Building. There, after being given repeated Miranda warnings by Officer Eason, appellant signed a statement incriminating himself and exonerating his cousin, Hammond.

Jones v. State, 440 So.2d 570, 572 (Fla.1983).

Appellant raised several grounds in his motion for postconviction relief. The court summarily denied all of the claims except for those which asserted the ineffective assistance of trial counsel. Following an evidentiary hearing, the court denied the balance of appellant's motion.

Appellant's trial lawyer was H. Randolph Fallin, an experienced criminal lawyer who had handled several death penalty cases. Appellant made wide-ranging charges of ineffectiveness against Fallin, but we will discuss only those which appear to us to be the most significant.

There were several allegations that Fallin failed to present available evidence which would have proven appellant's innocence.

The first issue deals with two alleged eyewitnesses to the shooting who were not called to testify at trial. One facet of appellant's defense was that rather than coming from his apartment, the fatal shot was actually fired from a vacant lot next door. To discount state evidence that the shots had come from the apartment building, Fallin put on witnesses who testified that the sound of the shot had come from the vacant lot between appellant's apartment and a tavern.

Appellant now claims that Fallin should have elicited the testimony of two alleged eyewitnesses to the shooting, Anderson and Spivey. They testified at the postconviction hearing that shortly after arriving at the scene during a round of drinking, they had seen the flash of a shot coming from the vacant lot. Anderson further testified that after the shot he had seen a man who was not appellant run from the side of the tavern and hide in a parked car that was later driven away by a woman. Anderson and Spivey said police took their names but did not interview them. Their names and addresses were among many others on the state's witness list, but neither side called them at the trial.

Fallin testified that he went to the neighborhood where the crime occurred several times and interviewed dozens of persons. Rather than hiring a professional investigator, he enlisted the aid of appellant's family members who were very helpful in locating potential witnesses and arranging for him to meet them. Fallin testified that he made several efforts to locate Anderson and Spivey but was unable to do so. However, he noted that even if he had interviewed Anderson and Spivey prior to the trial and they had told him what they had testified to at the postconviction hearing, he would not have considered their testimony significant. He believed their testimony would have been cumulative to more reliable witnesses. He further pointed out that Anderson's credibility would have been destroyed on cross-examination because if a man had run from the vacant lot and hidden in the car, he would have had to run past several policemen who were already on the scene.

Appellant also contends that Fallin should have located a Marion Manning, whose boyfriend, Glenn Schofield, was appellant's roommate and owned the guns used in the shooting. Appellant says Ms. Manning would have testified that Schofield was present at the time of the shooting and that shortly after the shots were fired he jumped into her car, which was parked nearby, and told her to drive away. Fallin testified that he had heard that Schofield was at the scene and had sought to talk to him at a jail in which Schofield was being held following an arrest for an unrelated crime. Schofield refused to discuss the case with Fallin and would not give him the name of the woman who was supposed to have been with him. Another witness at the postconviction hearing testified that she had given Marion Manning's name to Fallin, but Fallin emphatically denied this.

We find that there is sufficient evidence in the record to support the trial judge's conclusion that "counsel conducted a reasonable investigation using members of the Defendant's family to assist him in questioning many people in a neighborhood where there is a distrust of outsiders." The testimony of Anderson and Spivey would have been in large measure cumulative and at least somewhat unreliable because of their intoxicated condition. Accepting the judge's finding that h...

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13 cases
  • Jones v. State
    • United States
    • Florida Supreme Court
    • March 17, 1998
    ...1244 (Fla.1985), and affirmed the denial of his first 3.850 motion alleging ineffective assistance of trial counsel. See Jones v. State, 528 So.2d 1171 (Fla.1988). This Court then denied his second petition for writ of habeas corpus, wherein Jones alleged several procedurally barred claims ......
  • Marquard v. Secretary for Dept. of Corrections
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 10, 2005
    ...Trial counsel cannot be faulted for failing to call witnesses whose names are not disclosed by the Defendant. Jones v. State, 528 So.2d 1171, 1173 (Fla.1988) and Highsmith v. State, 617 So.2d 825, 826 (Fla. 1st DCA The Florida Supreme Court affirmed the findings and conclusions of the 3.850......
  • Mitchell v. Moore
    • United States
    • Florida Supreme Court
    • April 12, 2001
    ...246 (Fla.1993); State v. Johans, 613 So.2d 1319 (Fla.1993); Smith v. State, 598 So.2d 1063, 1066 (Fla.1992). 7. See, e.g., Jones v. State, 528 So.2d 1171 (Fla.1988) (declined to retroactively apply Haliburton v. State, 514 So.2d 1088 (Fla.1987), which held that police failure to comply with......
  • Jones v. Dugger, 89-3772
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 3, 1991
    ...after holding an evidentiary hearing on the ineffectiveness of counsel claim. The Florida Supreme Court affirmed. See Jones v. State, 528 So.2d 1171 (Fla.1988). Yet another petition for state habeas relief was subsequently denied. See Jones v. Dugger, 533 So.2d 290 (Fla.1988). Jones then fi......
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