McGhee v. State, Case No. 5D19-2265

• Decision Date: 14 February 2020
• Docket Number: Case No. 5D19-2265
• Citation: 307 So.3d 815
• Parties: Michael MCGHEE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

307 So.3d 815

Michael MCGHEE, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D19-2265

District Court of Appeal of Florida, Fifth District.

Opinion filed February 14, 2020

Michael McGhee, Milton, pro se.

No Appearance for Appellee.

LAMBERT, J.

Michael McGhee appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of grounds two, three, four, and five of his motion without further comment. As to the remaining grounds one and six, we reverse and remand for an evidentiary hearing.

McGhee was convicted after trial of burglary of a dwelling with an assault or battery. The jury separately found that McGhee "did actually possess a firearm during the commission of [this] crime and discharged the firearm." The jury also found McGhee guilty of: (1) aggravated assault, with the special finding that McGhee possessed and discharged a firearm during this offense, (2) tampering with a witness to hinder communication with a law enforcement officer, and (3) battery (domestic violence).

On direct appeal, McGhee argued that the trial court erred in denying his motion for judgment of acquittal on the burglary charge because the evidence showed that he actually resided in the apartment where the alleged burglary was committed. At trial, the court described the State's evidence on this count as "bare," but it ultimately denied the motion. McGhee also argued that on the face of the record, his attorney rendered ineffective assistance as to the burglary count for failing to request the optional "third element" contained in Florida Standard Jury Instruction in Criminal Cases 13.1 relative to his affirmative defense that he had a right or license to enter the apartment because he lived there and thus could not have burglarized his own residence. Lastly, McGhee argued on direct appeal that his multiple convictions for burglary with an assault or battery, aggravated assault, and misdemeanor battery violated double jeopardy.

As to the burglary of a dwelling conviction, our court affirmed, but we specifically did so without prejudice to McGhee to file an appropriate motion under Florida Rule of Criminal Procedure 3.850. McGhee v. State , 133 So. 3d 1137, 1138 (Fla. 5th DCA 2014).¹

BACKGROUND—

The victim in this case was McGhee's longtime girlfriend. They had lived together for several years in various apartments. The burglary charge here stemmed from McGhee's act early one morning of breaking into the apartment where the two had been residing over the previous three or four weeks. McGhee had not stayed at the apartment the night before; and, unbeknownst to him, his girlfriend had taken his key to the apartment off his keyring. McGhee first tried to get into the apartment that morning but was unsuccessful. He then requested his girlfriend to open the door, but she would not. McGhee broke a window to get in; and thereafter a physical altercation ensued with his girlfriend, during which at least one gun shot was fired inside the apartment. McGhee then left the premises.

The girlfriend called law enforcement and provided a written statement at the scene. She advised them that McGhee did not live with her in the apartment and that he had shot a gun inside the apartment and had also used the gun, as well as his fists, to hit her. The girlfriend made no mention in this statement that anyone else had been in the apartment that morning.

At trial, the girlfriend's testimony differed significantly from her written statement. She denied that she had broken up with McGhee, instead explaining that they "were still dating, but I was planning on breaking up with him." Also contrary to her written statement, the girlfriend did not testify that the two were no longer living together. Instead, she provided an equivocal response that "[McGhee] hadn't been to the house in like a day or so. He had stayed out the night before." Although the girlfriend indicated that she was planning on breaking up with McGhee, she testified that she had never told him so and that McGhee was not aware of it.

The girlfriend also testified that at the time of the altercation there was another man in the apartment. She denied seeing McGhee with a gun that morning and, instead, testified that it was this other man who had the gun. The girlfriend did, however, testify that McGhee repeatedly punched her during this incident.

The prosecutor then decided to use the girlfriend's earlier written statement that she gave the police to impeach her trial testimony. The prosecutor questioned the girlfriend about the statement, pointing out to her that, among other things, she had written that McGhee no longer lived with her, pistol-whipped her in the head, and threatened to return with an assault weapon to shoot up the apartment, and that she had never mentioned in the written statement that another man was present that morning or that it was this man who had the gun. The State's unfettered use of this witness statement at trial is the crux of ground one of McGhee's instant rule 3.850 motion.

GROUND ONE: LIMITING INSTRUCTION—

McGhee argued in the first ground of his motion for postconviction relief that his trial counsel was ineffective for failing to request that the trial court give a limiting instruction to the jury as to the proper use of the girlfriend's prior written statement. He argued that because his girlfriend's prior written statement to the police was inconsistent with her trial testimony, this statement could only be considered by the jury for impeachment purposes, and not as substantive evidence of his guilt. See Santiago v. State , 652 So. 2d 485, 486 (Fla. 5th DCA 1995) (holding that a State witness's prior inconsistent statements may be used for impeachment but cannot be considered as substantive evidence against a defendant); accord Joyce v. State , 664 So. 2d 45, 46 (Fla. 3d DCA 1995). To be entitled to postconviction relief based on ineffective assistance of trial counsel, McGhee must establish under the familiar Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standards that his counsel's performance was deficient and, second, that the deficient performance prejudiced the defense.

McGhee argued that counsel's omission in not seeking the limiting instruction as to the prior inconsistent statement was not only deficient, see Walter v. State , 272 So. 2d 180, 182 (Fla. 3d DCA 1973) (recognizing that where prior statements are admitted solely for impeachment purposes and not as substantive evidence, jury should be so instructed at the time of admission of the impeaching statements), but that this omission was prejudicial to him under Strickland because, as a result, the State was able to not only use this statement, given almost immediately after the incident, for impeachment purposes, but also as substantive evidence that McGhee was not living at the apartment at the time and had fired a gun inside the apartment during the incident. McGhee argued that this error was especially prejudicial to him since his girlfriend's trial testimony was exculpatory as it tended to show that, at the time of the purported burglary, McGhee was not in possession of a gun and that he still resided with her at the apartment. See Whetstone v. State , 778 So. 2d 338, 342 (Fla. 1st DCA 2000) (recognizing that "[o]ne cannot commit the crime of burglary of his own premises"), receded from on other grounds by Jones v. State , 790 So. 2d 1194 (Fla. 1st DCA 2001).

Section 90.107, Florida Statutes (2011), provides that "[w]hen evidence that is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, is admitted, the court, upon request, shall restrict such evidence to its proper scope and so inform the jury at the time it is admitted." (emphasis added). McGhee is thus correct that his counsel could and should have requested this instruction. See Walter , 272 So. 2d at 182. He is also correct that the consequence of his counsel's failure to request a limiting instruction as to the use of the girlfriend's prior inconsistent statement was that this statement was placed before the jury by the State as substantive evidence that McGhee committed an armed burglary of this dwelling. See Miller v. State , 780 So. 2d 277, 279 (Fla. 3d DCA 2001) (holding that the issue as to whether the trial court improperly allowed the State, under the guise of impeachment, to rely upon pretrial inconsistent statements as substantive evidence of guilt was not preserved for review because there was no specific, contemporaneous objection to such use nor a request for a limiting instruction).

In summarily denying this ground of the motion, the postconviction court found that McGhee had not established that counsel's failure to request this limiting instruction prejudiced him. To uphold the court's summary denial of this claim, it must have been either legally insufficient or conclusively refuted by the record attachments to the order. See Fla. R. Crim. P. 3.850(f)(5) ; see also Franqui v. State , 59 So. 3d 82, 95 (Fla. 2011) ; Peede v. State , 748 So. 2d 253, 257 (Fla. 1999). Our standard of review of claims made under rule 3.850 that have been summarily denied is de novo. State v. Coney , 845 So. 2d 120, 137 (Fla. 2003).

In finding that McGhee failed to show prejudice, the court necessarily determined that McGhee did not "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. We conclude that the record attachments to the denial order do not conclusively negate McGhee's ineffectiveness of counsel claim in this ground. McGhee's primary, if not sole, defense to the burglary charge was that he was still residing in the apartment with his girlfriend at the time and, therefore, could not have burglarized his own residence. See Whetstone , 778 So. 2d...