Wilson v. State, 3D98-3388.

• Decision Date: 15 March 2000
• Docket Number: No. 3D98-3388.,3D98-3388.
• Citation: 753 So.2d 683
• Parties: Barrington WILSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

753 So.2d 683

Barrington WILSON, Appellant, v. The STATE of Florida, Appellee.

No. 3D98-3388.

District Court of Appeal of Florida, Third District.

March 15, 2000.

Rehearing Denied April 19, 2000.

Leonard J. Cooperman, Miami, for appellant.

Robert A. Butterworth, Attorney General, and Christine E. Zahralban, Assistant Attorney General, for appellee.

Before GODERICH and SORONDO, JJ., and NESBITT, Senior Judge.

SORONDO, J.

Barrington Wilson, defendant, appeals his convictions and sentence on three counts of armed sexual battery with force, one count of burglary with an assault or battery and one count of robbery with a firearm. Defendant raises five issues on appeal. We find four of them worthy of discussion.

The defendant's first claim is one of ineffective assistance of trial counsel. Although such a claim is cognizable on direct appeal where the right to relief is apparent on the face of the record, see Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987)

; Caison v. State, 695 So.2d 872 (Fla. 3d DCA 1997), we do not find this to be such a case. As will become apparent from our analysis of the other issues raised, this was an extremely complex case which required numerous strategic decisions on the part of defense counsel. These decisions were made all the more difficult by the defendant's disruptive behavior. Accordingly, we reject the defendant's arguments on this claim of error without prejudice to his pursuing it by way of rule 3.850 of the Florida Rules of Criminal Procedure.

Next, we consider the trial court's refusal to excuse several jurors for cause. We agree with the state that this issue has not been properly preserved for review. In Trotter v. State, 576 So.2d 691 (Fla.1990), the Florida Supreme Court held that in order to properly preserve for review the denial of a challenge for cause the party must do the following:

Under Florida law, "[t]o show reversible error, a defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted." Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla.1989). By this we mean the following. Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.

Id. at 693 (footnotes omitted); Jones v. State, 660 So.2d 291 (Fla. 2d DCA 1995). In this case, the defendant asked for and received two additional peremptory challenges for a total of twelve. When his final request for a third additional peremptory challenge was denied, he did not identify which prospective juror he would excuse if granted the additional strike. This issue was therefore not preserved for review.

Even if the issue had been properly preserved, we find no merit in the defendant's motion to excuse juror Barbosa for cause—the juror defendant now asks us to infer his lawyer would have stricken with the requested peremptory challenge. Nor do we find any merit in the defendant's motions to strike prospective jurors Twist and McGuire for cause. As acknowledged by defendant, both of these prospective jurors definitively stated that they could be fair. Having the best vantage point for gauging the veracity of their responses, the trial judge believed them. "[T]he trial court's determination of juror competency will not be overturned absent manifest error." Foster v. State, 679 So.2d 747, 752 (Fla.1996); Mills v. State, 462 So.2d 1075 (Fla.1985). Likewise, we find no merit in the motions to strike prospective jurors Jimenez, Perez, and Vanegas for cause. The Florida Supreme Court addressed a similar issue to that raised by defendant in Cook v. State, 542 So.2d 964 (Fla.1989). The Court stated:

With the large influx of persons of Hispanic origin, it can now be expected that many jury venires in south Florida will contain persons who do not use textbook English grammar. However, it is the ability to understand English rather than to speak it perfectly which is important. After an extensive colloquy, the trial judge was satisfied that [the jurors in question] had an adequate comprehension of English to serve fairly on the jury. We are in no position to say that he was wrong.

Id. at 970 (citation omitted). As in Cook, the trial judge in this case spoke with the prospective jurors and determined that they understood the English language sufficiently well to serve on the jury. On this record, we are not in a position to dispute her conclusions.

We proceed to discuss the defendant's claim that the trial court failed to conduct a proper Faretta¹ hearing when the defendant sought to discharge his court-appointed attorney. Midway through his trial the defendant, for the first time, asked the court to discharge his attorney. The exchange was the following:

DEFENDANT: It's exactly about what I got to talk about, the attorney. I would like [my attorney] dismissed of my case, on various grounds.

COURT: You want him dismissed?

DEFENDANT: Yes.

COURT: And what is it that you are requesting as part of the dismissal?

DEFENDANT: I'm requesting for new counsel.

COURT: Oh, you want another attorney?

DEFENDANT: Yes, ma'am.

COURT: Okay, what is it that [your attorney] is or is not doing, that you would like him dismissed?

DEFENDANT: Your Honor, he hasn't spoken to me about the law, and he just agreed to it, so I prefer that he state his reasons why he feels he should be dismissed off the case.

(Emphasis added). The court then asked defense counsel why he wished to be discharged. Counsel indicated that he was not moving to withdraw but acknowledged that representing his client was a very difficult endeavor and that it appeared that the defendant had lost faith in him. Having heard from both the defendant and counsel, the court concluded that defense counsel's performance had been "not only adequate but exemplary." She indicated that she would not discharge defense counsel.

Consistent with his behavior throughout the trial, the defendant refused to remain silent after the trial judge's rulings and added the following:

DEFENDANT: [My lawyer], since he was appointed as my counsel, he has only come to see me twice, in this period of time.

And every visit, he has never told me defense strategy, or anything at all, except that he thinks that I'm stuck, he says, in the place where they got me situated.

He already tells me, that he was going to lose this case, you know, from the beginning.

The defendant then embarked on a prolonged narrative wherein he accused his lawyer of saying that he (counsel) was not making enough money to represent defendant adequately; that the judge and the prosecutor were involved in a conspiracy against defendant; that he (defendant) was, in fact, guilty, and that counsel would put money into the defendant's commissary account if the defendant would plead guilty. Counsel was given an opportunity to respond and he denied the allegations. He conceded that he had offered to make a deposit into the defendant's commissary account but not as a condition of a plea. He further agreed that he had told defendant that he was extremely busy and consequently could not visit the jail as often as defendant would like but that he was preparing the case for trial.² Finally, he suggested to the court that he had communicated to defendant the difficulties of the case from the defense perspective.³

We begin by noting that the trial judge was not obligated to conduct a Nelson inquiry in this situation. In Haugabook v. State, 689 So.2d 1245 (Fla. 4th DCA 1997), the Fourth District Court of Appeal concurred with the Second District Court of Appeal's decision in Dukes v. State, 503 So.2d 455 (Fla. 2d DCA 1987), and held that a Nelson inquiry need not be conducted when the motion to discharge counsel is made only after the trial has begun. This Court reached the same conclusion in Harris v. State, 747 So.2d 1070 (Fla. 3d DCA 2000).

Regardless of this, in what appears to have been an abundance of caution, the trial court conducted the inquiry. After hearing from both the defendant and his attorney a second time on this same issue, the court again denied the request to discharge counsel. The defendant now argues that he is entitled to a reversal of his conviction because the trial judge failed to conduct a proper Faretta hearing.

In Howell v. State, 707 So.2d 674 (Fla.), cert. denied, 524 U.S. 958, 118 S.Ct. 2381, 141 L.Ed.2d 747 (1998), the Supreme Court of Florida held:

In Hardwick v. State, 521 So.2d 1071 (Fla.1988), this Court adopted the procedure announced in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), to be followed when a defendant complains that his appointed counsel is providing him with ineffective representation. When this occurs, the trial judge is required to make a sufficient inquiry of the defendant to determine whether or not appointed counsel is rendering effective assistance to the defendant. However, the trial judge's inquiry can only be as specific as the defendant's complaint. Lowe v. State, 650 So.2d 969 (Fla.1994). Here, the trial court made an adequate inquiry into Howell's complaints of ineffectiveness and properly determined them to be without merit. Because Howell never requested to represent himself, he was not entitled to an inquiry on the subject of self-representation under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Id. at 680 (emphasis added). As in Howell, the judge in this case conducted the correct, albeit unnecessary, inquiry and concluded that defense counsel's performance was "not only adequate but exemplary." As in Howell, the defendant in this case never asked to represent himself, indeed he specifically requested the appointment...