Stephens v. State, 92639.

CourtUnited States State Supreme Court of Florida
Writing for the CourtPARIENTE, J.
Citation748 So.2d 1028
PartiesJames E. STEPHENS, Jr., Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. 92639.,92639.
Decision Date24 November 1999

748 So.2d 1028

James E. STEPHENS, Jr., Petitioner,
STATE of Florida, Respondent

No. 92639.

Supreme Court of Florida.

November 24, 1999.

Rehearing Denied January 27, 2000.

748 So.2d 1029
David R. Gemmer, St. Petersburg, Florida, for Petitioner

Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Patricia A. McCarthy, Assistant Attorney General, Tampa, Florida, for Respondent.


We have for review State v. Stephens, 707 So.2d 758 (Fla. 2d DCA 1998), based on direct and express conflict with Grossman v. Dugger, 708 So.2d 249 (Fla.1997), as to the standard of appellate review for ineffective assistance of counsel claims. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

After a thorough review of the applicable state and federal law governing ineffective assistance of counsel claims, we have concluded that not only is there conflict between the Second District's decision and this Court's opinion in Grossman, but that Grossman conflicts with our earlier decision in Rose v. State, 675 So.2d 567 (Fla. 1996), on the appellate standard of review. We find that we must recede from our decision in Grossman and adhere to our prior decision in Rose, which is consistent with the precedent of United States Supreme Court and other federal courts on the standard of review for Sixth Amendment ineffective assistance of counsel claims.


In this case, Stephens was convicted of battery of a law enforcement officer and resisting arrest without violence. The theory of the defense was that Stephens was a victim of police brutality and that his resistance was self-defense.

To advance this theory it was necessary for defense counsel to impeach the officers' testimony with evidence that Stephens'

748 So.2d 1030
large thigh bruise was inflicted by the officers at the time of the incident. An eyewitness, Lisa Stewart, testified that the officers "jerked" Stephens by the arm out of the car, "slammed" him against the rear of the car, and "threw" him to the ground, where one officer held his foot on the side of Stephens' face and another held his knee on Stephens' leg. A coworker of Stephens testified that he did not observe a bruise on Stephens' leg prior to his arrest, but that after his arrest Stephens showed him a large bruise on his thigh and told him that the police caused it

William Robb testified that he picked up Stephens from jail, took photographs of a large thigh bruise, and drove him to see Dr. L. Michael Weiss for treatment. Robb testified that he took the photographs on March 6, "right after he was released from jail before he went to see Dr. Weiss." After defense counsel moved to admit the photographs into evidence, the State objected, arguing that the photographs did not accurately portray Stephens' bruise immediately following his arrest because they were taken after his release from jail on March 8. Defense counsel initially assured the judge that the photographs were taken on March 6, and the judge admitted the photographs into evidence. However, on cross-examination, Robb clarified that he took the photographs on March 8.

Dr. Weiss testified that the photographs accurately depicted the bruise that he examined on March 8 and that the bruise appeared to be less than one day old. Dr. Weiss opined that if the bruise had been older than one day it would have appeared less swollen and a lighter color. Dr. Weiss conceded on redirect examination that the bruise could have been older than he suspected. Dr. Weiss also testified that Stephens told him that the officers inflicted the bruise.

In the State's rebuttal, Dr. Abraham Wilks, the emergency room physician who treated Stephens, testified that Stephens arrived at the hospital with scrapes on his face and elbow and a large bruise on his thigh. Dr. Wilks explained that the bruise depicted in the defense photographs was at least one day old because of its diffuse discoloration. Dr. Wilks also testified that the bruise was consistent with someone "repeatedly smack[ing] him with a board or object like a flashlight" but that he was unable to state with certainty how the injury occurred.

Stephens was convicted of battery and resisting an officer without violence. Within four weeks of his convictions, Stephens filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, predicated upon ineffective assistance of trial counsel. The evidentiary hearing on the motion was conducted before the same judge that presided over Stephens' trial.

In his motion and at the hearing, Stephens claimed that if his trial counsel had properly presented the bruise evidence, the jury could have concluded that, contrary to the testimony of the officers, the bruise was inflicted by the officers during the struggle at the scene of the arrest. The trial judge granted Stephens' motion and ordered a new trial. The trial judge's order reads, in pertinent part, as follows:

The Defendant also contends that [trial counsel] was ineffective for failing to accurately inform the jury of the correct date that the photographs in evidence were taken. [Trial counsel] failed to correct the witness, Mr. Robb, who testified that the photographs were taken on March 6, rather than on March 8. The State argues that the Assistant State Attorney, Ms. Lynn Flagler, corrected the date on cross-examination of Mr. Robb. However, the State's argument that this cured [trial counsel's] deficiency is not persuasive.
Dr. Wilks testified to the age of the Defendant's bruise as being at least over one (1) day old, by looking at the photographs of the bruise which were taken on March 8, and not from his notes or his independent recollection of his physical
748 So.2d 1031
examination of the Defendant. This is evident when Dr. Wilks testified that the photographs were similar to the injury that the Defendant had when he examined him, and then went further to point out to the jury that the yellow discoloration seen in the photographs supported his opinion that the bruise was at least one (1) day old. Since these photographs were taken two (2) days after the incident, then at the time Dr. Wilks examined the Defendant, the bruise was conceivably fresh and not at least (1) day old. [Trial counsel] was ineffective for failing to recognize that Dr. Wilks was testifying from the photographs and failing to communicate this crucial error to the jury.

This error was further compounded when the Assistant State Attorney confirmed with Dr. Wilks that the yellow discoloration that he pointed out to the jury on the photographs would not have been present if the bruise was recent. This deficiency on [trial counsel's] part conceivably prejudiced the Defendant by allowing Dr. Wilks' testimony to adversely affect the outcome of the verdict for the Defendant.

This Court adopts the State's Response in part, refuting the Defendant's claim concerning [trial counsel's] failure to interview and present witnesses, his failure to procure and secure the photographs taken at the jail, his failure to protect the Defendant during the plea colloquy on counts three (3) and four (4) of the Information and during post-trial proceedings, and incorporates and attaches it and its exhibits to this Order.

Further, this Court finds that the Defendant is entitled to relief on his claim that his counsel..., was ineffective in presenting Dr. Wilks' medical testimony to the jury and that this prejudiced the Defendant to the extent that the Defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

(Citations to the record omitted.)

The Second District reversed the order granting a new trial and explained its decision as follows:

A review of the attachments to the trial court's ruling on the 3.850 motion, together with the record of the evidentiary hearing, reveals that there was indeed confusion concerning when Stephens received the bruises depicted in the photographs. Stephens' counsel probably was less than effective in presenting this evidence or in cross-examining Dr. Wilks. Nevertheless, to prevail on a 3.850 motion, the defendant must prove not only that his attorney made errors so serious that he could not be said to have been acting truly as his "counsel," the defendant must also establish that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Rose v. State, 675 So.2d 567, 569 (Fla. 1996) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Our assessment of the evidence leads us to the conclusion that any alleged, deficiency on the part of Stephens' counsel did not affect the fairness and reliability of the trial so as to undermine confidence in the outcome. See Kennedy v. State, 547 So.2d 912 (Fla.1989). Our conclusion is only bolstered by the extremely weak nature of Stephens' questionable police brutality defense, which was uncorroborated by any other evidence.

Stephens, 707 So.2d at 759 (emphasis supplied).


The State takes the position, and we agree, that the "competent substantial evidence" standard announced in Grossman applies to the trial court's factual findings. However, as the State argues, an "appellate court is not required to accord particular...

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