Terrero v. State
| Decision Date | 12 March 2003 |
| Docket Number | No. 3D02-172.,3D02-172. |
| Citation | 839 So.2d 873 |
| Parties | Nelson Louis TERRERO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and SHEVIN and RAMIREZ, JJ.
Nelson Louis Terrero appeals the trial court's denial of his motion for postconviction relief following an evidentiary hearing. We reverse because trial counsel's failure to call an exculpatory witness constituted ineffective assistance of counsel.
Terrero was charged and convicted of one count of armed robbery and sentenced to thirty years in prison. He filed a motion for postconviction relief alleging that trial counsel was ineffective for failing to call exculpatory witness Marsha Firestone at trial. At an evidentiary hearing, Terrero's trial counsel testified that she deposed Marsha Firestone who had viewed a photographic line-up that included a picture of Terrero. Firestone stated that the person she saw commit the robbery was not in that group of photographs. Counsel then decided that Firestone would be called as a defense witness at trial. However, counsel filed a speedy trial demand without first ascertaining Firestone's availability to testify. The case was set for trial on August 13, 1997, and counsel subsequently discovered that Firestone would be unavailable to testify until August 20. Counsel testified that she decided not to seek a continuance so as to ensure that Firestone could testify at trial because of inconsistencies in Firestone's statements concerning this case.
Firestone testified at the hearing that she was standing directly in front of the house when the robbery took place. Although she did not get a very good look at the robbers, she was able to observe that they were both African-Americans. When a police detective subsequently showed her a group of photographs which included a photograph of Terrero, she told the detective that the man she saw holding the gun during the robbery was not in that group of photographs. She stated that each man in the group of photographs had a distinctive Hispanic look, and that the man she had seen commit the crime did not have such a look.
The trial court denied the motion for postconviction relief finding that Terrero's claim must be denied because, absent extraordinary circumstances, failure of counsel to call a witness is not ground for collateral attack. The trial court further found that Firestone was unavailable to testify at trial, that trial counsel made a tactical decision not to delay the trial, and that Firestone's testimony would not have cast doubt on Terrero's guilt.
In a motion for rehearing, Terrero attached Firestone's sworn statement that once she was able to observe him at the hearing, she saw that his body type was different from the man who had committed the robbery. The trial court denied the motion for rehearing.
The sole evidence against Terrero was the testimony of the robbery victim. Under any circumstance, Firestone must be viewed as a crucial witness because her testimony could have created a reasonable doubt about the identification of Terrero as the perpetrator of the crime. Firestone was a disinterested witness who lived three houses away from the scene of the robbery. Despite inconsistencies in her testimony, she must be viewed as crucial to the defense...
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Kenon v. State, 1D02-3675.
...For instance, courts have identified such circumstances where there is no "corroborating evidence of guilt," Terrero v. State, 839 So.2d 873 (Fla. 3d DCA 2003); where the State's case is weak or entirely circumstantial and the witness' testimony would have cast doubt on the only evidence li......
- Ondrejack v. Ondrejack
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Morrison v. State, 1D03-697.
...investigated the possibility of additional witnesses whose credibility could not have been easily challenged. Cf. Terrero v. State, 839 So.2d 873, 875 (Fla. 3d DCA 2003) (holding that "failure to call a disinterested witness to a crime where identification is an issue and there is no corrob......
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Jones v. State, 3D03-2756.
...This Court has held that failure to call exculpatory witnesses constitutes ineffective assistance of counsel. Terrero v. State, 839 So.2d 873 (Fla. 3d DCA 2003); Majewski v. State, 487 So.2d 32 (Fla. 1st DCA 1986). Here, as in Gillard v. State, 697 So.2d 896 (Fla. 1st DCA 1997), the witness......