Thomas v. State

• Decision Date: 21 June 2013
• Docket Number: No. 2D12–1218.,2D12–1218.
• Citation: 117 So.3d 1191
• Court: Florida District Court of Appeals
• Parties: Clodis Kiwan THOMAS, Appellant, v. STATE of Florida, Appellee.

117 So.3d 1191

Clodis Kiwan THOMAS, Appellant,

v.STATE of Florida, Appellee.

No. 2D12–1218.

District Court of Appeal of Florida, Second District.

June 21, 2013.

Clodis Kiwan Thomas, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Clodis Kiwan Thomas appeals the order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Without further comment, we affirm the denial of claims five, six, seven, eight, and nine, and we reject Thomas's claim that the postconviction court committed fundamental error by taking judicial notice of the trial transcripts. However, because of the procedural irregularities in this case, including the postconviction court's failure to consider Thomas's unrefuted testimony before denying claims one through three after an evidentiary hearing, we must reverse those claims and remand for a second evidentiary hearing. We also reverse in part the summary denial of claim four.

Ineffective assistance based on failure to call witnesses

In claims one through three, Thomas alleged that his counsel was ineffective for failing to call three witnesses at trial who Thomas claimed would have provided testimony relevant to his theory of self-defense: ¹

• Bernice Rambert would have testified that the victim threatened Thomas, charged after him, and attempted to punch him.

• Richey McDonald would have testified that he videotaped Thomas's approaching the residence where the victim was visiting, thereby refuting the victim's testimony that the video camera may not have been on. Mr. McDonald also would have testified that the victim became upset upon seeing Thomas approach.

• Dr. Arun D. Jagoo would have testified that due to burns that Thomas suffered prior to the incident in question Thomas was in a great deal of pain and was therefore unable to fight back when the victim attacked him.

In denying claims one through three after an evidentiary hearing, the postconviction court noted that none of the three witnesses testified at the hearing, “rendering speculative the alleged substance of their possible testimony.” The court went on to hold that “an allegation of ineffective assistance of counsel for failure to call a witness will fail where the defendant does not present any supporting evidence at the evidentiary hearing from the witness the defendant claims would be helpful,” citing Gore v. State, 846 So.2d 461, 469–70 (Fla.2003). Additionally, the court held that “the substance of such a witness'[s] testimony is a fact-based issue ... and thus a defendant effectively waives his allegation by failing to present evidence when given the opportunity to do so,” citing Ferrell v. State, 918 So.2d 163, 173 (Fla.2005).

In reviewing a postconviction court's ruling after an evidentiary hearing, we must defer to the court's factual findings “to the extent that they are supported by competent, substantial evidence,” but we must review “de novo the application of the law to those facts.” Mungin v. State, 932 So.2d 986, 998 (Fla.2006).

We recognize that where a defendant makes an affirmative decision not to present evidence on his claims at an evidentiary hearing, the claims may be deemed waived. See Ferrell, 918 So.2d at 173–74 (holding that where postconviction counsel informed the court that the defense “decided not to proceed with” the presentation of witnesses at an evidentiary hearing, appellant waived his claim); Gore v. State, 24 So.3d 1, 13–14 (Fla.2009) (relying on Ferrell and holding that appellant waived his penalty-phase ineffective assistance of counsel claims where he made it clear he was not interested in pursuing such claims and he “did not ‘care’ ” about an evidentiary hearing). Additionally, where trial counsel testifies at an evidentiary hearing and the defendant fails to present any evidence rebutting counsel's testimony, the defendant's claim may fail. See Gore, 846 So.2d at 469–70 (holding that where trial counsel was the only witness at evidentiary hearing and he testified about his efforts to call witnesses on defendant's behalf, defendant's failure to present any testimony to support his allegations resulted in a failure to prove ineffective assistance claim).

But neither of those factual scenarios exist in this case. Here, there is nothing in the record indicating that Thomas affirmatively waived the presentation of the witnesses. Rather, Thomas asserted in his initial brief that he asked postconviction counsel to secure the attendance of the various witnesses, and attached to Thomas's initial brief were letters he wrote to his postconviction counsel reflecting the same. There was no explanation provided by postconviction counsel at the evidentiary hearing as to why the witnesses were not called. An additional distinction in this case is that trial counsel failed to appear at the evidentiary hearing because the State failed to issue a subpoena for his attendance.

Although the postconviction court had Thomas's unrefuted testimony regarding the substance of the witnesses' testimony and how their testimony would have aided his theory of self-defense, the postconviction court denied the claims solely on the basis that the witnesses did not testify at the hearing.

Generally, a defendant has the burden to present evidence at a postconviction evidentiary hearing, and once he does so, even if only through the presentation of his own testimony, the State must present contradictory evidence. See Williams v. State, 974 So.2d 405, 407 (Fla. 2d DCA 2007); Pennington v. State, 34 So.3d 151, 154–55 (Fla. 1st DCA 2010). Further, if a defendant's testimony is unrefuted and the postconviction court has not articulated a reason to disbelieve the defendant, the court cannot choose to disregard the defendant's testimony. See, e.g., Williams, 974 So.2d at 407–08 (noting that postconviction court did not attribute defendant's lack of credibility to his demeanor or any inconsistent actions and thus court did not articulate any reason for finding appellant's testimony not credible); Beasley v. State, 964 So.2d 213, 216–17 (Fla. 2d DCA 2007) (holding that postconviction court's findings were not supported by competent, substantial evidence where postconviction court chose not to believe appellant's testimony even though it was unrefuted); Matton v. State, 872 So.2d 308, 312 (Fla. 2d DCA 2004) (holding that postconviction court had no evidence whatsoever upon which to base a finding that appellant knowingly and voluntarily waived his right to previously accrued gain time where appellant's testimony was unrefuted); Feldpausch v. State, 826 So.2d 354, 356 (Fla. 2d DCA 2002) (finding that because there was no conflicting testimony that required postconviction court to assess credibility of different witnesses, postconviction court erred by rejecting testimony of attorney simply because it did not wish to believe him).²

However, we recognize that the facts of this case are not typical. The first problem here is that there is no indication that the postconviction court actually considered Thomas's unrefuted testimony before denying the claims. The postconviction court simply did not cite any reasons for disregarding Thomas's testimony.

We acknowledge that at the evidentiary hearing, Thomas testified about discussions he had had with trial counsel in regard to calling Bernice Rambert and Dr. Jagoo to testify at trial. Although portions of Thomas's testimony suggest that trial counsel may have had strategic reasons for not calling both of those witnesses, we decline to adopt such inferences based on the few comments Thomas made, especially because trial counsel did not appear at the hearing to provide his own explanation.³

The...