Lanier v. State, 96-2631
| Decision Date | 04 March 1998 |
| Docket Number | No. 96-2631,96-2631 |
| Court | Florida District Court of Appeals |
| Parties | 23 Fla. L. Weekly D610 Ruel LANIER, Appellant, v. The STATE of Florida, Appellee. |
Bennett H. Brummer, Public Defender and Ray Taseff and Beth C. Weitzner, Assistant Public Defenders, for appellant.
Robert A. Butterworth, Attorney General and Sandra S. Jaggard, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and NESBITT, JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN and SORONDO, JJ.
As we did in Jones v. State, 466 So.2d 301 (Fla. 3d DCA 1985)(en banc), approved, 485 So.2d 1283 (Fla.1986), we sua sponte consider this case en banc because the proposed majority panel opinion directly conflicted with several of our prior decisions concerning both (a) the role of the trial court in assessing the evidence before it in post-conviction proceedings, e.g., McDonald v. State, 249 So.2d 77 (Fla. 3d DCA 1971); Cash v. State, 207 So.2d 18 (Fla. 3d DCA), appeal dismissed, cert. dismissed, 211 So.2d 209 (Fla.1968); see generally Horatio Enters. v. Rabin, 614 So.2d 555 (Fla. 3d DCA 1993), and (b) the principles, as established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which govern claims of ineffective assistance of trial counsel. E.g., Adams v. State, 669 So.2d 284 (Fla. 3d DCA 1996); State v. Oisorio, 657 So.2d 4 (Fla. 3d DCA 1995), approved, 676 So.2d 1363 (Fla.1996); Martinez v. State, 655 So.2d 166 (Fla. 3d DCA 1995); Barclay v. Singletary, 642 So.2d 583 (Fla. 3d DCA 1994), review denied, 651 So.2d 1192 (Fla.1995); Eason v. State, 632 So.2d 191 (Fla. 3d DCA 1994); State v. Stirrup, 469 So.2d 845 (Fla. 3d DCA 1985), review denied, 480 So.2d 1296 (Fla.1985).
On the merits, we conclude that the appellant has not demonstrated that the trial judge erred in finding, after an evidentiary hearing, that the second, or "prejudice," prong of Strickland had not been satisfied--that is, that, but for "counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 669, 104 S.Ct. at 2055-56, 80 L.Ed.2d at 682; see Cole v. State, 700 So.2d 33, 36 (Fla. 5th DCA 1997), and cases cited.
Like the trial judge, we do not reach the issue of whether Lanier satisfied the first, or "performance," prong of Strickland.
Affirmed.
I am in complete agreement with the majority opinion and believe that the facts and law involved in this case strongly require an affirmance of the trial court's holding in this matter. Accordingly, I am writing this concurrence, which was originally written as a dissent to the proposed majority opinion of the three-judge panel, to express the reasons underlying my position.
On June 19, 1991 at approximately 10:00 p.m., Kimberly Van Buskirk ("the victim") was driving home with her children. She pulled into her driveway, exited her station wagon, and opened the hatchback. The victim heard her son scream and turned to see a man run toward her. The man grabbed her purse. There was a struggle over the purse and the victim was pushed into the hatchback. During the struggle, the victim was able to observe the assailant's face. The assailant took the victim's purse and the victim saw the perpetrator run to the street and get into the passenger side of a light-colored car. The car sped away in the direction of Bob-O-Link Drive which connects to Miami Gardens Drive.
The victim immediately called police. She provided the police dispatcher with a description of the assailant. She described the perpetrator as being an African American male, at least six feet tall, and weighing in excess of 230 pounds. She reported that the assailant's car was a light-colored Chevrolet Caprice, or Impala. The victim also informed the police of the car's direction of travel. The dispatcher radioed the information to area police.
Soon thereafter the police observed a light-colored 1978 Chevrolet Caprice automobile on N.W. 67th Avenue, in the area of American High School. The car made a U-turn and turned into the parking lot of American High School. After driving through the lot, the car pulled back out onto the roadway. The police stopped the car on the corner of Miami Gardens Drive and N.W. 67th Avenue. Jose Rodriguez, ("Rodriguez"), was the driver of the Caprice and Ruel Lanier, ("the Defendant"), sat in the passenger seat. The police detained Rodriguez and the Defendant.
The police drove the victim past the light-colored Caprice where the Defendant was detained. The victim identified the Defendant as the perpetrator and identified the Chevrolet Caprice as the car used in the crime. Many of the items taken from the victim were recovered at several locations between the victim's home and the detained car. For example, her wallet was recovered on Bob-O-Link Drive, and a credit card and lipstick case were found at the American High School lot. Rodriguez and the Defendant were arrested.
On July 10, 1991, the Defendant was charged with strong-arm robbery, and in June, 1991, a public defender was appointed to represent the Defendant. The public defender took discovery depositions and conducted an investigation. On October 15, 1991, the public defender filed a witness list. The list named two friends of the Defendant, Edward Sean Jackson ("Jackson"), and the driver of the car, Rodriguez. The State deposed Rodriguez and Jackson on November 7, 1991.
On January 6, 1992, Sy Gaer appeared as private counsel on behalf of the Defendant. The public defender turned the entire defense file over to Sy Gaer's associate, Diane Cuervo. Furthermore, the public defender spoke with Sy Gaer and informed him that "there were defense witnesses." In addition, the Defendant personally explained to Sy Gaer that Rodriguez and Jackson were available and that they should be called as alibi witnesses. Specifically, the Defendant states in his motion for postconviction relief:
Mr. Lanier thereafter informed Mr. Gaer that Jose Rodriguez and Edward Jackson should be called as alibi witnesses for the defense in this case. Mr. Lanier explained to Gaer that Rodriguez's testimony would establish that Mr. Lanier was in Rodriguez's company on the night of June 19, 1991, the date of the offense, that Mr. Lanier was not present at the site of the robbery and did not commit it, and that Mr. Lanier's presence in a car that was within two miles of the scene of the robbery on the night of the offense was for an entirely innocent purpose. Mr. Lanier further explained that Jackson's testimony would corroborate Rodriguez's testimony.
The case was called to trial on June 25, 1992, and a jury trial was held. Sy Gaer did not present either Rodriguez or Jackson on behalf of the defense. The theory of the defense was that the Defendant had been misidentified, as evidenced by inaccuracies in the descriptions of the Defendant provided by the victim. Defense counsel established that the victim initially reported that the perpetrator was over six feet tall and weighed over 230 pounds, but that the Defendant is only five feet nine inches tall and weighed 185 pounds at the time of the offense. After jury deliberation, the Defendant was found guilty of robbery and sentenced to a lengthy prison term due to his status as an habitual violent felony offender. The Defendant's conviction and sentence were affirmed by this court on direct appeal.
The Defendant submitted a motion for postconviction relief asserting that Sy Gaer and Diane Cuervo provided ineffective assistance of counsel because they failed to present the available alibi witnesses. More specifically, the "Supplement to Postconviction Motion" claimed that the alleged ineffectiveness of the Defendant's trial counsel was based upon the fact that the said trial counsel did not read the depositions of Rodriguez and Jackson which were contained within the public defender's file. In essence, the Defendant's theory, as contained in his motion, and as argued at the evidentiary hearing held by the trial court, relies on a domino-like type of reasoning: (1) Attorney Gaer did not read the depositions of Rodriguez and Jackson that were contained in the public defender's file; (2) accordingly, Gaer did not know of the nature of the testimony that Rodriguez and Jackson would be able to offer if called as defense witnesses; (3) consequently, Gaer did not call Rodriguez and Jackson as alibi witnesses on behalf of the Defendant at trial, thereby depriving the Defendant of having the jury hear the testimony of Rodriguez and Jackson and, presumably, according to the Defendant's theory, having a "reasonable doubt," created in the minds of the jurors. The motion was accompanied by an affidavit signed by Sy Gaer. Sy Gaer's affidavit stated that neither he nor his associate Diana Cuervo read the depositions of Rodriguez or Jackson. The trial court held an evidentiary hearing on the motion for postconviction relief. At the hearing, the public defender, Sy Gaer, and Diana Cuervo testified. Gaer and Cuervo reiterated the statements in Gaer's affidavit. Gaer stated that he relied entirely on a misidentification defense.
The depositions of Rodriguez and Jackson, which had been taken by the State on November 7, 1991, were introduced at the hearing. The transcript of the depositions reveal that Rodriguez testified that the Defendant was a passenger in his car at the time of the robbery. According to Rodriguez, he and the Defendant were on their way to pick up Jackson at American High School. Jackson testified at his deposition that he was attending class at the high school on the night of June 19, 1991. Jackson further testified that he "beeped" Rodriguez so that Rodriguez would come pick him up at the high school. The trial court also heard testimony from Rodriguez and...
To continue reading
Request your trial
-
Bowman v. State
...would have had a reasonable doubt respecting guilt. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Lanier v. State, 709 So.2d 112, 116 (Fla. 3d DCA 1998) (Levy, J., concurring) ("a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the dec......