Rodriguez-Olivera v. State
| Decision Date | 13 October 2021 |
| Docket Number | Nos. 2D18-706,2D20-296,s. 2D18-706 |
| Citation | 328 So.3d 1080 |
| Parties | Armando RODRIGUEZ-OLIVERA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Laurie Marie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
Armando Rodriguez-Olivera appeals (1) his convictions for capital sexual battery and two counts of lewd or lascivious molestation and (2) the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons explained below, we reverse Mr. Rodriguez-Olivera's convictions and remand for a new trial.
Mr. Rodriguez-Olivera was charged for acts he allegedly committed during a family barbeque that was attended by twenty to thirty people, most of whom were related to Mr. Rodriguez-Olivera and the victim (M.S.) by blood or marriage. The incident occurred while several children and teenagers were watching movies in a small bedroom down the hall from a living room where the adults were gathered; by all accounts, the door to the bedroom was continuously open, the room was well lit, and the adults were frequently going into the room to check on their children.
On the evening in question, Mr. Rodriguez-Olivera was twenty years old, M.S. was eleven years old, and the other movie-watchers ranged in age from eight to sixteen years old. The incident wasn't reported to law enforcement until several months after it allegedly occurred. As a result, no physical or forensic evidence was introduced at trial and the State's case was based entirely on M.S.'s account of the incident.
After a trial that lasted a total of eight hours (inclusive of jury selection and instruction) over two consecutive days and following deliberations of less than forty-five minutes, a jury found Mr. Rodriguez-Olivera guilty on all charges. He was sentenced to life in prison without parole on the capital sexual battery count and concurrent terms of forty years in prison for each of the lewd or lascivious molestation counts.
Mr. Rodriguez-Olivera appealed his conviction; during the pendency of his direct appeal, this court relinquished jurisdiction to allow him to file a separate postconviction motion alleging ineffective assistance of counsel. The postconviction court summarily denied Mr. Rodriguez-Olivera's motion. Mr. Rodriguez-Olivera appealed the order denying his motion, and that appeal was consolidated with his existing direct appeal.
On direct appeal, Mr. Rodriguez argues that several errors occurred; because most errors were not properly preserved, he presents his argument primarily as one of fundamental error.1 With respect to three of the errors, he alternatively contends that he is entitled to a new trial because his counsel provided ineffective assistance that is apparent on the face of the record. Mr. Rodriguez-Olivera also argues that the cumulative effect of all the errors requires reversal.
By failing to object to the admission of highly prejudicial evidence and by failing to move for a mistrial when the jury heard such evidence, Mr. Rodriguez-Olivera's trial counsel provided ineffective assistance that is apparent on the face of this record.
While a new trial is warranted for that reason alone, the errors underlying the ineffective assistance claims—when considered cumulatively with the other errors—also operated to deprive Mr. Rodriguez-Olivera of a fair and impartial trial.
"[C]laims of ineffective assistance of counsel are not normally cognizable on direct appeal...." Forget v. State , 782 So. 2d 410, 413 (Fla. 2d DCA 2001). "They may be reviewable, however, on direct appeal where ‘the ineffectiveness is apparent from the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.’ " Marty v. State , 210 So. 3d 121, 125 (Fla. 2d DCA 2016) (quoting Blanco v. Wainwright , 507 So. 2d 1377, 1384 (Fla. 1987) ).
"To establish ineffective assistance of counsel a defendant ‘must show that counsel's performance was deficient’ and ‘that counsel's errors were so serious as to deprive the defendant of a fair trial.’ " Id. (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To establish deficient performance, "a defendant must show that counsel's performance ‘fell below an objective standard of reasonableness’ as measured by ‘prevailing professional norms.’ " Id . (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ). And to demonstrate that such deficient performance "prevented a fair trial, a defendant must show ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Id. (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ; see Alcorn v. State , 121 So. 3d 419, 425 (Fla. 2013) ().
Mr. Rodriguez-Olivera argues that his counsel was ineffective on the face of the record in three ways, which we address in turn below.
On two separate occasions at trial, the jury heard about uncharged acts of molestation Mr. Rodriguez-Olivera allegedly perpetrated upon M.S. First, on direct examination, child protective investigator Ashlee Harmon relayed what M.S. had told her about the underlying allegations. As she concluded her narrative, Ms. Harmon stated, "That was that incident, there was another as well." Mr. Rodriguez-Olivera's counsel objected. The trial court heard a proffer of Ms. Harmon's testimony concerning the second incident and agreed that she had referenced an uncharged crime. After conferring with Mr. Rodriguez-Olivera, defense counsel stated that he was "not seeking a mistrial based on my client, but I leave it to the court's discretion." The trial court then issued a curative instruction.
The next morning, the State played a video recording of the Child Protective Team (CPT) interview of M.S. The jury heard the following exchange between M.S. and Reanna Vinciguerra, the CPT case coordinator who interviewed M.S.;
After defense counsel objected, the trial court replayed the tape and engaged in extended colloquy with counsel for both sides as to whether that "second time" occurred on the night of the acts for which Mr. Rodriguez-Olivera was charged or on a later date when M.S., her father, Mr. Rodriguez-Olivera, and others were together for a quinceañera.
Ultimately, the trial court concluded that the testimony did not refer to the uncharged quinceañera incident but was "a different version" of the charged incident. This conclusion is negated by the record. Seven months before the trial, Ms. Vinciguerra (and three other witnesses, including Ms. Harmon) testified at a hearing on the State's motion to admit child hearsay. They explained that M.S. had accused Mr. Rodriguez-Olivera of two different instances of abuse which occurred on two different dates. Those witnesses uniformly related that the "second time" the abuse allegedly occurred was in connection with the quinceañera, when Mr. Rodriguez-Olivera "tried" to molest M.S. but was unsuccessful because M.S.'s father and others were present. The quinceañera incident was the subject of Ms. Harmon's trial testimony the preceding day, which the trial court had then emphatically concluded was "an uncharged incident." Despite this critical error, defense counsel—the same lawyer who attended the child hearsay hearing—did not move for a mistrial or request a curative instruction.
Mr. Rodriguez-Olivera has satisfied both prongs of the Strickland test. Counsel's failure to move for a mistrial after two witnesses successively referred to the same uncharged collateral crime constituted deficient performance. To establish deficient performance, a defendant must "overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ " Bradley v. State , 33 So. 3d 664, 671 (Fla. 2010) (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ). With respect to the first instance (Ms. Harmon's testimony), the State contends defense counsel affirmatively waived a mistrial as a matter of trial strategy. After conferring with Mr. Rodriguez-Olivera, counsel stated that he was "not seeking a mistrial based on my client, but I leave it to the court's discretion." Even if this is deemed a strategic decision to waive mistrial, nothing suggests that a sound trial strategy was behind counsel's failure to move for mistrial (or even request a curative instruction) after the second time a State witness mentioned an uncharged crime. To the contrary, "[w]e can conceive of no strategic reason for the decision," and for the reasons discussed below it is clear that Mr. Rodriguez-Olivera suffered prejudice from it. See Anderson v. State , 323 So.3d 833, 834-35 (Fla. 2d DCA July 30, 2021).
The improper admission of evidence of an uncharged crime "is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged." Straight v. State , 397 So....
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State v. Mackendrick
...counsel can be deemed ineffective for failing to object to the admission of uncharged acts of molestation. Rodriguez-Olivera v. State , 328 So. 3d 1080, 1086 (Fla. 2d DCA 2021) ; Botto v. State , 307 So. 3d 1006, 1010 (Fla. 5th DCA 2020) ; Curran v. State , 229 So. 3d 1266, 1269 (Fla. 1st D......