Rolon v. State

• Decision Date: 12 October 2011
• Docket Number: No. 2D09–4809.,2D09–4809.
• Citation: 72 So.3d 238
• Parties: David ROLON, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

72 So.3d 238

David ROLON, Appellant,

v.STATE of Florida, Appellee.

No. 2D09–4809.

District Court of Appeal of Florida, Second District.

Oct. 12, 2011.

James Marion Moorman, Public Defender, and Joseph M. Bernstein, Special Assistant Public Defender, Bartow, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.VILLANTI, Judge.

After a jury convicted David Rolon of second-degree murder with a firearm, the trial court sua sponte granted him a new trial based on the ineffective assistance of his original trial counsel.¹ Despite its explicit finding that trial counsel provided ineffective assistance during the direct and cross-examination of Rolon at his first trial, the trial court nevertheless allowed the State to use Rolon's testimony from his first trial during its case-in-chief in the second trial. In these highly unusual circumstances, we conclude that the admission during the second trial of Rolon's testimony from his first trial violated Rolon's Sixth Amendment right to the effective assistance of counsel. Therefore, we reverse and remand for a third trial.

Rolon was charged with one count of second-degree murder after a dispute with his neighbor ended up with the neighbor shot dead on his own doorstep. At the first trial, Rolon's defense was that he did not have a gun, that a gun possessed by either the victim or the victim's friend went off during a struggle between Rolon and the victim, and that the victim's girlfriend had pinned the shooting on Rolon to protect her boyfriend and/or his friend.

Before the State called its final witness at the first trial, the trial court held a brief colloquy with Rolon concerning his right to testify. The court explained to Rolon that if he testified, the jury would be permitted to know whether he had been convicted of a felony and, if so, how many times. If he answered truthfully, the jury would never know the nature of the convictions. However, if he did not answer truthfully, the jury would learn the nature of the convictions. The court told Rolon that the decision to testify was entirely his but that he should discuss it with his lawyer. Rolon stated that he had no questions about his right to testify and that he understood his rights. The court did not question Rolon concerning whether he had, in fact, discussed the issue with his attorney, nor did it ask whether Rolon intended to testify.

The next morning, the State called its final witness and then rested. The trial court went directly into the defense case, and Rolon called his sister to testify. She testified that she saw another individual on the porch of the victim's house before the shooting. However, she also testified that Rolon told her that he had “turned the gun around on the other guy.”

The defense then called Rolon to the stand. The trial court did not conduct any further colloquy with Rolon prior to him taking the stand. During his testimony, Rolon testified that he and the victim got into a confrontation, that the victim reached for something in his pocket, that Rolon struggled with the victim over the item, and then “[s]omething just went pow on this side of my face right here.” Rolon testified that he did not know where the shot came from and thought that possibly it was meant for him. Rolon admitted that he ran away, hid from the police, and dyed his hair after the shooting.

Despite Rolon's testimony concerning his struggle with the victim and Rolon's sister's testimony concerning him turning the gun on the victim, defense counsel waived the jury instruction concerning the justifiable use of deadly force. In closing, defense counsel argued that there were several “reasonable” scenarios other than the one presented by the State that would explain the events that had occurred and thus the State had not proved its case beyond a reasonable doubt. Nevertheless, the jury returned a verdict of guilty.

Within the time for granting a motion for new trial, the trial court set a status hearing and sua sponte found that Rolon's counsel had been ineffective at the first trial. Concerning Rolon's testimony, the trial court specifically found that defense counsel's direct examination of Rolon was ineffective as a matter of law. The court noted that defense counsel elicited testimony that he had discussed the case with Rolon for less than five minutes. In addition, the court found that “[t]he unprepared Defendant obviously did not know what questions his counsel would ask him, and he made unsolicited prejudicial statements during direct and cross examination.” Concluding that Rolon “did not receive a fair and impartial trial” due to defense counsel's ineffectiveness, the trial court granted Rolon a new trial. The State elected not to appeal this ruling even though it had the authority to do so. See Fla. R.App. P. 9.140(c)(1)(C) (permitting the State to appeal orders granting a new trial).

Prior to the start of Rolon's second trial, he moved in limine to prevent the State from using his testimony from the first trial during its case-in-chief in the second trial. Rolon conceded that section 90.804(2)(a), Florida Statutes (2008), would generally permit the State to introduce his former testimony at his second trial. However, he argued that the use of his former testimony under these circumstances would infect the second trial with the same ineffectiveness that had tainted the first trial and would result in the denial of his Sixth Amendment right to counsel. After a hearing, the trial court denied the pretrial motion, finding that Rolon had voluntarily testified at his first trial. The court's order did not directly address Rolon's argument concerning the ineffectiveness of his prior counsel.

Immediately before the State sought to read the transcript of Rolon's former testimony during the second trial, defense counsel again objected to the State's use of that testimony. At that point, the trial court permitted defense counsel to call Rolon to testify concerning his preparation with his prior attorney. Rolon testified that he had spoken with his prior attorney for only about five minutes about the case before he was called to testify. The remainder of the time was spent with the attorney asking him for money. Rolon testified that he never discussed the pros and cons of testifying with his attorney. Rather, his attorney “just waited until the trial came, the trial started, and he put me on the stand.” At first, Rolon said that he did not recall the judge asking him whether he understood that the right to testify was his alone and that only he could make the decision whether to testify, but he later changed his mind and said that he did recall that question but that he didn't really understand what that meant. He also said that if he had fully understood his rights concerning testifying, he would not necessarily have done anything differently. Instead, he “would have had to take the time to decide that.” Based on this testimony, the trial court reaffirmed its pretrial ruling and permitted the State to read Rolon's testimony from his first trial during its case-in-chief in the second trial. Rolon was again convicted.

In this appeal, Rolon contends that the trial court abused its discretion by permitting the State to introduce his testimony from the first trial during its case-in-chief in the second trial under these unique circumstances. Rolon admits that the rules of evidence generally permit the introduction of testimony from a prior trial. However, he argues that in this situation, when the new trial was granted based on ineffective assistance of counsel that affected the defendant's trial testimony and when the State chose not to appeal the order granting the new trial, the use of the “tainted” testimony in the second trial violates both the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel and thus constitutes an abuse of discretion. We find no Fifth Amendment violation on the facts here; however, we agree that the court's ruling resulted in a violation of Rolon's Sixth Amendment right to counsel.

Fifth Amendment

Rolon contends that the introduction of his testimony from the first trial during the second trial violated his Fifth Amendment right against self-incrimination because his decision to testify at the first trial was solely the product of his counsel's ineffectiveness. On the facts here, we disagree.

“[T]he general evidentiary rule [is] that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings.” Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). However, there is no question that the Fifth Amendment is implicated when the State seeks to introduce a defendant's prior trial testimony during a retrial. See Barnes v. State, 970 So.2d 332, 339 (Fla.2007). The question of whether the Fifth Amendment bars the use of the defendant's testimony from the first trial during the second trial focuses on whether the defendant's testimony at the first trial was voluntary and whether its introduction at the second trial would mislead the jury or confuse issues. See State v. Mosley, 760 So.2d 1129, 1131 (Fla. 5th DCA 2000). Unless the defendant's prior testimony was involuntary or compelled in a constitutional sense, the use of that testimony in a subsequent trial does not violate the defendant's Fifth Amendment rights.

When a defendant raises a Fifth Amendment issue concerning the use of his prior testimony in the context of a claim of ineffective assistance of counsel, the essence of that claim is usually that the action or inaction of his attorney deprived him of his ability to intelligently choose whether to exercise or waive his Fifth Amendment right to testify in his own defense. See, e.g., Beasley v. State, 18 So.3d 473, 495 (Fla.2009). However, as with all other claims of ineffective...