MIDDLETON v. State of Fla.

• Decision Date: 23 July 2010
• Docket Number: No. 1D09-48.,1D09-48.
• Parties: Roy Howard MIDDLETON, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

41 So.3d 357

Roy Howard MIDDLETON, Jr., Appellant, v. STATE of Florida, Appellee.

No. 1D09-48.

District Court of Appeal of Florida, First District.

July 23, 2010.

COPYRIGHT MATERIAL OMITTED.

Michael R. Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, J.

Appellant Roy Howard Middleton, Jr., challenges the denial of a post-conviction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, finding that Middleton has satisfied what is commonly referred to as the "prejudice" prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

FACTUAL & PROCEDURAL BACKGROUND

In this appeal, we consider for the second time a denial of Middleton's rule 3.850 claim for ineffective assistance of counsel. Originally, an Escambia County grand jury returned an indictment charging Middleton with first-degree murder. Subject to a capital prosecution, appellant proceeded to trial, where he was legally entitled to a 12-person panel. After deliberations began, but before the verdict was announced, the State moved to strike juror Foster, who had failed to disclose (when asked) he had previously been convicted of a felony. The court granted the State's motion and removed Foster from the panel.

The trial court then asked Middleton whether he wished to proceed with just 11 jurors, or, in the alternative, replace Foster on the jury with a previously-dismissed alternate juror. Defense counsel, however, did not inform appellant or the trial court of a third option—that Middleton could move for a mistrial on the ground that a juror had been discharged during deliberations. Appellant ultimately decided to proceed with an 11-person jury, which convicted him of the lesser-included offense of second-degree murder.

Middleton brought a rule 3.850 motion alleging ineffective assistance of counsel, arguing, inter alia, that counsel was ineffective in failing to move for a mistrial after the State uncovered Foster's criminal record. After an evidentiary hearing on the issue, the trial court denied the claim. In case number 06-3378, we affirmed without discussion the trial court's denial of five post-conviction claims, but held that trial counsel was ineffective for failing to advise appellant of his option to move for a mistrial. See Middleton v. State, 984 So.2d 522, 522 (Fla. 1st DCA 2007) (Middleton I). Because the post-conviction court failed to make a credibility determination on Middleton's hearing testimony that he would have chosen to move for a mistrial had counsel advised him of the option, the court remanded the case for the limited purpose of making such a finding. See id. at 522-23.

On remand, the parties provided memoranda on the issue of whether appellant would have moved for a mistrial had he been given the option. Middleton submitted an affidavit from trial counsel, who believed appellant would have moved for a mistrial. The trial court issued an order concluding that appellant "has demonstrated that he would have requested a mistrial when it was discovered that juror Foster needed to be removed from his jury, had he known that a mistrial was an available option." The court nonetheless refused to grant relief, finding that Middleton "failed to demonstrate a reasonable probability that the outcome of a new trial would have been any different in light of the weight of the evidence." In this appeal, Middleton squarely raises the issue of whether the certain grant of a mistrial satisfies the prejudice requirement of Strickland.

ANALYSIS

In reviewing a ruling on a claim for ineffective assistance of counsel, we defer to the trial court's findings on factual issues, but review de novo the court's ultimate conclusions on the deficiency of performance and prejudice. See Bruno v. State, 807 So.2d 55, 61 (Fla.2001) (citing Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999)). Neither party now disputes that defense counsel's performance was deficient, leaving appellant to establish that "the deficient performance prejudiced the defense. ..." Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (requiring defendant to show "that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable"). Stated differently, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694, 104 S.Ct. 2052.

The State relies largely on the Third District decision in State v. Stirrup, asserting that the "crucial test is whether counsel's errors ... had an effect on the judgment of conviction." 469 So.2d 845, 847-48 (Fla. 3d DCA 1985) (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052). To that end, the State argues, the "likelihood of a different outcome in a `mini-proceeding' (e.g., motion for mistrial) ... is [not] what is contemplated by the term `proceeding' as used in Strickland." Stirrup, 469 So.2d at 848. This case thus presents the question whether "Strickland's use of `the proceeding' means that a defendant must demonstrate that the decision by a different factfinder at a different trial would likely have been an acquittal, or whether, at least in some situations, the denial of a significant procedural right ... is sufficient to satisfy the prejudice prong of Strickland." United States v. Ramsey, 323 F.Supp.2d 27, 39 (D.D.C.2004).

Some history of Middleton I, drawn from our files, informs our analysis. Before issuing the opinion in Middleton I, this court promulgated an order directing the parties to respond to the following question:

[W]hether the requirement for demonstrating prejudice, i.e., a showing that `the result of the proceeding would have been different' ... would be satisfied in this case if appellant established that the trial court was required to declare a mistrial on the juror issue or whether prejudice could only be demonstrated if appellant established a reasonable probability that the result of a new trial following the mistrial would have been different.

We ultimately remanded the case. The opinion established both the parameters of the remand and the panel's thinking in terms of the issue remaining for decision:

[A]lthough appellant testified during the evidentiary hearing that he would have chosen the option of moving for a mistrial rather than proceeding with eleven jurors had counsel informed him of such, the trial court made no express credibility determination with respect to this testimony. If appellant had moved for mistrial, the trial court would have had to grant the motion under the case law. As such, we remand the case to the trial court to determine whether appellant has demonstrated the requisite prejudice pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Middleton I, 984 So.2d at 522-23 (emphasis supplied).

The panel's use of the introductory phrase "as such" to establish the breadth of the remand may only be interpreted to refer to the previous sentence noting that appellant would have been entitled to a mistrial, had counsel moved for the same. Accordingly, we interpret Middleton I — and the order we issued preceding the opinion—to provide that appellant would demonstrate prejudice by showing that he would have requested, and the trial court would have granted, a mistrial. By implication, then, Middleton I has already determined that the mistrial would suffice and no inquiry into the likely outcome of a new trial would be required.

The trial court's interpretation, respectfully, virtually nullified the remand. One could ask, and appellant certainly does, why would we remand for a credibility determination as to Middleton's sincerity in seeking a mistrial if he could not thereby establish the requisite prejudice? We perhaps did not have to limit the scope of our mandate, but we did. In our view, the first panel directed only consideration of Middleton's credibility, thereby signaling it had already resolved the issue upon which the trial court denied relief. We know, of course, that "`questions of law actually decided on appeal ... govern the case in the same court and the trial court, through all subsequent stages of the proceedings.'"

Tatum v. State, 27 So.3d 700, 704 (Fla. 3d DCA 2010) (citing State v. McBride, 848 So.2d 287, 289, 291 (Fla. 2003)). Having observed no change in the relevant factual circumstances, we are not inclined to offer a competing determination on a legal question upon which this court has already passed.

We turn next to the asserted tension between Stirrup and appellant's present argument. We have noted with interest another Third District decision applying the Stirrup rule, Vaz v. State, 626 So.2d 1022 (Fla. 3d DCA 1993). There, the appellant alleged ineffectiveness in his attorney's failure to object to the trial court's allowance of only fifteen minutes of closing argument. See id. at 1022. Counsel for Vaz' codefendant, who preserved an objection on the same grounds, was vindicated by Adams v. State, 585 So.2d 1092, 1094 (Fla. 3d DCA 1991), which held that fifteen minutes for closing argument was "simply not enough and deprived appellant of a fair trial." Recognizing (but not disturbing) its holding in Stirrup, the court held that Vaz had satisfied the prejudice prong of Strickland. See Vaz, 626 So.2d at 1023. Because the test for prejudice under Stirrup was "whether counsel's errors had an effect on the judgment of conviction," 469 So.2d at 847-48, and Vaz' codefendant had already established the error, entitling the codefendant to a new trial, then, the court reasoned, "it is now apodictic that the result of the proceeding would have been different, i.e., a reversal of the conviction...." See Vaz, 626 So.2d at 1023.

We find Vaz significant...