McCree v. Secretary, Department of Corrections
| Decision Date | 10 September 2009 |
| Docket Number | Case No. 6:07-cv-1078-Orl-31GJK. |
| Citation | 663 F.Supp.2d 1316 |
| Parties | Ronard McCREE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Stephen J. Langs, Tracy Nicole Dacruz, Federal Public Defender's Office, Orlando, FL, for Petitioner.
Ann M. Phillips, Kellie Anne Nielan, Mary G. Jolley, Office of the Attorney General, Daytona Beach, FL, for Respondents.
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. Section 2254 (Doc. No. 5). Respondents filed a response to the petition for writ of habeas corpus (Doc. No. 9), and Petitioner filed a reply to the response (Doc. No. 13). On April 13, 2009, this Court found that an evidentiary hearing was necessary with respect to two of Petitioner's claims. (Doc. No. 14.) Counsel was appointed to represent Petitioner, and the hearing was held on June 29, 2009.
Upon thorough review of the record and consideration of counsel's arguments at the hearing, the Court finds that Petitioner's trial counsel rendered ineffective assistance and the writ of habeas corpus must be issued.
On May 13, 2003, Petitioner was charged with one count of second-degree felony murder and one count of attempted robbery with a mask. (App. A at 1-2.) Petitioner pled not guilty. A jury trial was held August 27 and 28 of 2003. The State called as witnesses, among others, Ronda Allen ("Allen"), Deputy Joseph Ring ("Deputy Ring"), and Detective James Russell ("Detective Russell"). Detective Russell was the lead detective in the criminal investigation.
Allen testified that on February 9, 2003, she was living in a mobile home in Taft, near Orlando, Florida, and dating Deputy Ring. (App. B at 113-14.) She had agreed to lease the mobile home to Donald Chancy ("Chancy"). Id. at 114. Chancy came by the mobile home that afternoon to sign the lease and pay Allen $1,050 for rent and a security deposit. Id. at 114-15. Chancy paid in cash. Id. at 115.
At approximately 9 p.m. that same day, Allen testified, she and Deputy Ring drove her 2001 Chevy Blazer to a nearby convenience store to make a copy of the lease. Id. at 115-16. When they returned to the mobile home, Allen turned off the ignition, picked up her purse, and opened the car door. Id. at 120. As she did so, a man wearing a black mask and gloves grabbed her and said, Id.
According to Allen, the man shook her and twisted her neck. Id. at 120. After a short struggle, she heard Deputy Ring yell, "Orange County Sheriff, freeze!" Id. at 121. The man released his grip, and she fell to the ground. Id. at 121-22. Allen then heard a gunshot. Id. at 122. Allen looked up and saw two people at the end of her driveway, approximately twenty feet away. Id. at 122. She said that the two people, who appeared to have something covering their faces, ran to their car after the gunshot. Id. at 123-24. The car then sped away Id. at 124.
Allen testified that she heard additional gunshots and saw the man and Deputy Ring fall to the ground, struggling over the gun. Id. at 125-26. Deputy Ring yelled out in pain, and he told Allen to call 911. Id. at 126, 128.
Deputy Ring's testimony at trial largely mirrored that of Allen. When he realized that Allen was being attacked, he got out of the SUV with his off-duty weapon, a .40 caliber Glock pistol, in its holster. Id. at 167-68. He saw a white car at the end of the driveway with both front doors open and two individuals standing outside the car, one on each side. Id. at 169. The car was about twenty feet away. Id. at 186. The car's dome light and headlights were on, and it appeared that the two individuals were wearing masks. Id. at 170. He yelled, "Orange County Sheriff's Department!" and pointed his gun in their direction. Id. However, he quickly turned his attention to Allen, who was struggling with her assailant. Id. at 171-72.
Deputy Ring testified that he again announced himself as law enforcement to the person attacking Allen. Id. at 172. Allen then fell to the ground, and her attacker started to come at him. Id. at 172-73. He fired at the attacker, hitting him in the chest. Id. at 173. The two struggled for the gun and fell to ground. Id. at 174. As they went to the ground, he fired his gun, accidentally shooting himself in the left thigh. Id. at 174. The man landed on top of him, and Deputy Ring shot him again. Id. After the struggle ended, Deputy Ring instructed Allen to call 911. Id. at 178. The man he shot, who was subsequently identified as Brian Turner, died at the scene.
On cross-examination, Deputy Ring stated that he met Allen after she complained to police that her neighbor, Angel Perez ("Perez"), was harassing her. Id. at 183-84. According to subsequent testimony, Perez was the person who referred Chancy to Allen as a potential tenant for the mobile home. Id. at 365.
When the police arrived at the trailer, they searched the crime scene and surrounding area, but the only masks or gloves found were those that had been worn by Brian Turner. Id. at 223. No weapon was found other than Deputy Ring's firearm. Id. at 223.
A bloodhound tracked a scent to a truck parked at a nearby bakery. Id. at 267-69. Inside the truck, police found Desha Turner, who later admitted that he was Brian Turner's cousin and had been a passenger in the white car that had been at the end of Allen's driveway—a Dodge Intrepid. Id. at 269-70, 307-09. He also admitted that Petitioner had been the driver of the car. Id.
Detective Russell testified that he was able to locate Petitioner through one of Petitioner's uncles approximately two and a half months after the incident occurred, and that Petitioner voluntarily agreed to an interview. Id. at 314-15. At the end of the interview, Petitioner was not placed under arrest. Id. at 315-316. The next day, Detective Russell obtained an arrest warrant for felony murder and served it on Petitioner. Id. at 317. Petitioner was placed under arrest and transported to the Sheriff's Office. Id. at 317-18. While under arrest, he gave a recorded statement to police concerning the events on the night of February 9, 2003. Petitioner's statement was played for the jury at trial. Id. at 319-38.
In the recorded statement, Petitioner stated that Desha and Brian Turner, along with two women, arrived at his home at approximately 8:00 p.m. in a white Dodge Intrepid, which Brian Turner was driving. Id. at 321. The five of them drove around town for awhile, and Petitioner was eventually dropped off at his apartment. Id. at 322. Later that night, the Turners returned to Petitioner's apartment without the women. Id. Petitioner got into the back seat of the Intrepid behind Brian Turner, who was driving. Id. at 323.
Petitioner told police that the three of them drove around town some more and then stopped at a 7-Eleven. Id. When they stopped at the store, Brian Turner asked Petitioner to switch places with him and drive the car, which he did. Id. at 324. Petitioner stated that Brian Turner received numerous calls on his cell phone that night, one of which was from someone who told Brian Turner about a "sweet lick," a phrase meaning "easy robbery" in street terminology. Id. at 324-25.
Petitioner said that after they left the 7-Eleven, Brian Turner told him where to drive but did not tell him why they were driving there. Id. at 325-26. Brian Turner's directions eventually led them to a trailer, where Brian Turner got out of the car and banged on the front door. Id. at 326-27. After no one answered, Brian Turner returned to the car and told Petitioner to drive off. Id. at 327. Shortly after Petitioner pulled out of the driveway and began driving north, a car passed in the other direction. Id. at 328. Brian Turner said, "There they go, there they go," and told Petitioner to turn around and go back. Id. at 329.
Petitioner drove back to the trailer, and Brian Turner again got out of the car. Id. at 330. Petitioner said he saw Brian Turner go up to a white woman who was getting out of an SUV. Id. He told police that he remained in the car with Desha Turner, but that he pulled up to see what Brian Turner was doing. Id. at 330-31. Petitioner said he then saw Brian Turner "tussling" with the lady, slapping her. Id. at 331. According to Petitioner, Desha Turner then got out of the car and said he was going to go help his cousin. Id. Petitioner saw Desha Turner run up to the SUV, stopping when a white man jumped out of the SUV and announced himself as a law enforcement officer. Id. at 331-32. When Petitioner saw the man reach for his gun, he said, he quickly drove off. Id. at 332. He said he heard approximately five gunshots while he was driving away. Id. at 333.
Petitioner told police that he later received a phone call from Desha, who said he was hiding in a truck. Id. at 333-35. Petitioner stated that he parked the white Intrepid in a Winn Dixie parking lot and took the two cell phones that were left in the car to Desha Turner's mother. Id. at 335-26. Petitioner told police that there were no firearms in the car that night. Id. at 336.
Upon the conclusion of Petitioner's recorded statement, Detective Russell testified that the police never found any masks or gloves in the surrounding area or in the white Intrepid, which was recovered from the Winn Dixie parking lot. Id. at 364-65. On cross-examination, Detective Russell admitted that, in addition to the information contained in his recorded statement, Petitioner had told police that he thought the reason Brian Turner wanted to go to Taft that night was to sell drugs to someone. Id. at 374.
Desha Turner testified on behalf of Petitioner.1 Id. at 406. He testified that he and Petitioner were good friends and had known each other for approximately eleven years, but that Petitioner had probably only met Brian...
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