Opinion
No. 1D20-3362
04-20-2022
STATE of Florida, Appellant, v. Clark MACKENDRICK, Appellee.
Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellant. Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellee.
Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellant.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellee.
Per Curiam.
The State seeks review of an order granting postconviction relief following an evidentiary hearing. Because the trial court erred in concluding that defense counsel's performance was deficient or prejudiced the defense, we reverse.
I.
After a jury found Appellee guilty of capital sexual battery and lewd or lascivious molestation of his daughter, he was sentenced to life in prison. On appeal, this court affirmed Appellee's conviction and sentence without opinion. Mackendrick v. State , 182 So. 3d 642 (Fla. 1st DCA 2016) (table).
In his subsequent motion for postconviction relief, Appellee claimed, among other things, that defense counsel was ineffective for failing to object when the trial court allowed a video of the Child Protection Team (CPT) interview to go to the jury room during deliberations (claim three), failing to move to redact inadmissible collateral crime allegations from the video of the CPT interview played for the jury (claim four), and failing to retain and present an expert witness to refute the state expert's testimony that the victim's physical examination was not inconsistent with the victim's allegations (claim five). The trial court held an evidentiary hearing on these three claims.
At the hearing, Appellee called Dr. William Anderson, a forensic pathologist and a former deputy chief medical examiner. Dr. Anderson testified that he had reviewed the trial testimony of the CPT examiner, who concluded that it was a positive examination for evidence of sexual abuse even though there were no physical findings. He opined that this conclusion was inconsistent with the history given to the CPT examiner of repeated penile penetration over a period of time because he would have expected to see hymenal atrophy. Although he conceded that it was not impossible for there to be no injury, Dr. Anderson testified that it was highly improbable and that—absent some physical indication of hymenal atrophy—he would investigate the history provided by the victim because the jury would have to determine whether the CPT diagnosis of sexual trauma was based on an unreliable history.
Appellee took the stand and testified that defense counsel never discussed retaining an expert. Based on what he currently knew, he claimed that he would have demanded that counsel retain an expert if counsel had discussed the matter with him and that he or his family would have provided defense counsel with the resources to retain an expert. In addition, Appellee testified that defense counsel did not discuss with him the possibility of redacting the CPT video recording of the victim's statements and that, if counsel had discussed redacting the video, he would have demanded that references to uncharged abuse allegations regarding "Stormy" and "Sabrina" be redacted from the video. Finally, Appellee testified that the CPT video was given to the jury to view during its deliberations and that defense counsel did not inform him that Florida law did not allow CPT videos to go into the jury room. He claimed that if counsel had properly advised him about Florida law on this matter, he would have wanted counsel to object to the CPT video going to the jury room.
Defense counsel testified that she was privately retained to represent Appellee at trial and presented the defense theory that Appellee did not commit the offenses and that the victim had been coached by her mother, who had gone through a bitter divorce from Appellee. Counsel further testified that Appellee agreed for the video to go back to the jury room and that it was the defense's desire that the CPT video go back to the jury room during deliberations because there were specific things in the video that she felt hurt the victim's credibility. Specifically, counsel noted that the victim in the video downplayed the violence of the abuse and stated that the victim's mother and the mother of the victim's cousin colluded to get Appellee in trouble by falsely accusing Appellee of touching the victim's cousin. Counsel also noted that the victim claimed in the video to have disclosed the abuse to her friend, L.F., who in turn disclosed that she too had been abused by Appellee. However, counsel was able to impeach this statement at trial by calling L.F., who testified that the victim's statement was not true. She further testified that she did not seek to redact references to "Stormy" and "Sabrina" during the CPT interview after she and Appellee went over the tape and determined that it needed to come in. Counsel added that redacting that video would delay the trial and that Appellee "wanted to get it over with."
Finally, counsel testified that she discussed the matter of hiring an expert with Appellee and his family and that Appellee's family could not afford an expert to address the victim's lack of injuries. However, she did consult over the phone with two gynecologists, who both told her that it would not be unusual for the victim's physical examination to be unremarkable given the passage of time. She explained that she could not provide records to these doctors because they had not been hired and she did not want to hire doctors who would only confirm the CPT examiner's testimony. As a result, counsel decided that a more effective strategy was to cross-examine the CPT examiner by attacking the credibility of the victim's history, which the CPT examiner conceded served as the basis for her opinion given the lack of physical findings.
Following the evidentiary hearing, the trial court entered an order granting Appellee's motion for postconviction relief as to claims three, four, and five. As to claim three, the court found that (1) the trial transcript demonstrated that everyone in the courtroom—with the possible exception of the prosecutor—was unaware that the law prohibited the CPT video from going to the jury room; and (2) defense counsel was ineffective for failing to object when the trial court allowed the CPT video to go to the jury room during deliberations because this created a real danger that the victim's statements would be unfairly given more emphasis than other evidence and testimony. As to claim four, the court found that (1) defense counsel's explanation for not moving to redact the CPT video was not reasonable where there was plenty of time before trial for defense counsel to have successfully redacted the video without causing any delay; and (2) Appellee was prejudiced by defense counsel's inaction because the jury was informed that Appellee engaged in additional acts of sexual abuse. As to claim five, the court found that (1) it was unreasonable for defense counsel to expect an unretained doctor, who had not reviewed any documents, to give a valid opinion over the phone about whether the victim would have exhibited signs of abuse; (2) Appellee presented testimony refuting defense counsel's testimony that Appellee and his family could not afford an expert; (3) defense counsel was ineffective for failing to obtain the services of an expert to refute the state expert's testimony; and (4) Appellee was prejudiced by defense counsel's failure to obtain an expert like Dr. Anderson in a close he-said/she-said case where the victim's credibility was the key issue. This appeal followed.
II.
On a motion for postconviction relief alleging ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, i.e., it fell outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance prejudiced the defense, i.e., there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" where "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has cautioned:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time. Because of the difficulties inherent in making evaluations, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
Id. at 689 (citations omitted). When the trial court rules on an ineffective assistance of counsel claim after an evidentiary hearing, the appellate court must defer to the trial court's findings of fact to the extent they are supported by competent substantial evidence, but reviews de novo the trial court's ultimate conclusions as to whether counsel's performance was deficient and prejudiced the defendant. Bruno v. State , 807 So. 2d 55, 62 (Fla. 2001).
A.
The State asserts that the trial court erred in granting Appellee's third postconviction claim that defense counsel was ineffective for failing to object when the trial court allowed a video of the CPT interview to go to the jury room during deliberations. The Florida Supreme Court has held that videotaped out-of-court interviews with child victims are not allowed into the jury room during deliberations because of the "real danger that the child's statements will be unfairly given more emphasis than other testimony." Young v. State , 645 So. 2d 965, 967 (Fla. 1994). However, any error in allowing a videotape to go to the jury room is not fundamental and must be preserved by objection. Id. at 968. This court has recognized that "[t]rial counsel can be deemed ineffective for failing to object to a videotaped CPT interview being sent to the jury room during deliberations where this omission results in prejudice." Martin-Godinez v. State , 290 So. 3d 144, 146 (Fla. 1st DCA 2020). To establish prejudice, it is not enough for the defendant to show that he would have received a new trial on direct appeal if defense counsel had preserved the issue in the trial court; rather, the defendant must establish that the result of the trial proceeding would have been different. Ruiz v. State , 108 So. 3d 694, 696 (Fla. 2d DCA 2013).
At the evidentiary hearing, defense counsel testified that it was the defense's desire that the CPT video go back to the jury room during deliberations because there were specific things in the video that she felt hurt the victim's credibility. In other words, defense counsel explained that she made a strategic or tactical decision to allow the CPT video to go back to the jury room because she felt that it was potentially beneficial to the defense. Appellee made no attempt to challenge the reasonableness of this explanation other than to assert that allowing the CPT video to go to the jury room during deliberations was prohibited by Young . However, Young does not stand for the proposition that defense counsel can never have a sound tactical reason for not objecting to a CPT video being sent to the jury room during deliberations. Accordingly, Appellee failed to establish as a matter of law that defense counsel's performance so "fell outside the broad range of professionally acceptable performance" that it was constitutionally deficient. Furthermore, Appellee failed to establish as a matter of law that the result of the trial proceeding would have been different had defense counsel objected to the CPT video being sent to the jury room. It is not enough for Appellee to argue that he would have received a new trial on direct appeal if defense counsel had preserved the issue. Accordingly, we conclude that the trial court erred in granting Appellee's third postconviction claim.
B.
In addition, the State asserts that the trial court erred in granting Appellee's fourth postconviction claim that defense counsel was ineffective for failing to move to redact inadmissible collateral crime allegations regarding "Stormy" and "Sabrina" from the video of the CPT interview played for the jury. Defense counsel can be deemed ineffective for failing to object to the admission of uncharged acts of molestation. Rodriguez-Olivera v. State , 328 So. 3d 1080, 1086 (Fla. 2d DCA 2021) ; Botto v. State , 307 So. 3d 1006, 1010 (Fla. 5th DCA 2020) ; Curran v. State , 229 So. 3d 1266, 1269 (Fla. 1st DCA 2017). However, the victim's statements in the CPT video did not assert that Appellee committed any actual acts of molestation against "Stormy" and "Sabrina." In fact, the victim conceded to the CPT interviewer that she did not really know if Appellee had done anything to "Stormy" or "Sabrina." Under these circumstances, Appellee failed to establish as a matter of law that defense counsel's failure to redact the victim's references to "Stormy" and "Sabrina" constituted deficient performance or prejudiced Appellee. Accordingly, we conclude that the trial court erred in granting Appellee's fourth postconviction claim.
C.
Finally, the State asserts that the trial court erred in granting Appellee's fifth postconviction claim that defense counsel was ineffective for failing to retain and present an expert witness to refute the state expert's testimony that the victim's physical examination was not inconsistent with the victim's allegations. The United States Supreme Court has explained that "strategic decisions—including whether to hire an expert—are entitled to a ‘strong presumption’ of reasonableness," noting that "[d]efense lawyers have ‘limited’ time and resources, and so must choose from among ‘countless’ strategic options." Dunn v. Reeves , ––– U.S. ––––, 141 S. Ct. 2405, 2410, 210 L.Ed.2d 812 (2021). It has further cautioned that " Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense" and that "[i]n many instances, cross-examination will be sufficient to expose defects in an expert's presentation." Harrington v. Richter , 562 U.S. 86, 111, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
At the evidentiary hearing, defense counsel testified that she consulted over the phone with two gynecologists, who both told her that it would not be unusual for the victim's physical examination to be unremarkable given the passage of time. Although the trial court found that it was unreasonable for counsel to consult unretained doctors who had not reviewed any records, defense counsel explained that she could not provide records to these doctors because they had not been hired and that she did not want to hire doctors who would only confirm the CPT examiner's testimony. Defense counsel was not required to retain experts that she reasonably believed would not provide beneficial testimony. See Hamilton v. Lee , 707 F. App'x 12, 16 (2d. Cir. 2017) (holding that "in light of the risks involved in calling a competing expert who may have corroborated the state's expert's views, trial counsel's decision [not] to call a defense expert was a reasonable strategic choice"); Samatar v. Clarridge , 225 F. App'x. 366, 372 (6th Cir. 2007) (explaining that "in many criminal cases trial counsel's decision not to seek expert testimony ‘is unquestionably tactical because such an expert might uncover evidence that further inculpates the defendant’ ").
Contrary to the trial court's conclusion, defense counsel's consultation with two gynecologists over the phone did not constitute deficient performance as a matter of law. See Newmiller v. Raemisch , 877 F.3d 1178, 1199–1200 (10th Cir. 2017) (rejecting defendant's claim that defense counsel's phone calls with two pathologists, without providing them with any medical reports, were "woefully inadequate" and not expert "consultations" in any meaningful sense, explaining that "neither Strickland nor any other clearly established Supreme Court law requires a particular method of consultation"). Moreover, defense counsel was not required to continue contacting experts until she found one, like Dr. Anderson, willing to testify against the state's expert. See Flick v. Warren , 465 F. App'x 461, 465 (6th Cir. 2012) ("Effective assistance does not require counsel to continue contacting experts until he found one, like Dr. Uscinski, willing to testify against the prosecution's theory of the case."). Instead, defense counsel reasonably could conclude that the more effective strategy was to cross-examine the state's expert by attacking the credibility of the victim's history, which the expert conceded served as the basis for her opinion given the lack of physical findings, as well as getting the expert to concede that one would expect to see evidence of injury in cases of acute repetitive trauma.
Because Appellee failed to establish as a matter of law that defense counsel's performance was deficient, it is not necessary to reach the issue of prejudice. See Stewart v. State , 801 So. 2d 59, 65 (Fla. 2001) ("[B]ecause the Strickland standard requires establishment of both [deficient performance and prejudice] prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong."). Accordingly, we conclude that the trial court erred in granting Appellee's fifth postconviction claim.
III.
Given Appellee's failure to establish deficient performance or prejudice as a matter of law, the trial court erred in concluding that defense counsel was ineffective as alleged in claims three, four, and five of Appellee's postconviction motion. To the extent Appellee asserts that he was entitled to postconviction relief based on cumulative error, that claim is without merit. Accordingly, we reverse the trial court's order granting postconviction relief.
REVERSED .
Osterhaus, Kelsey, and Jay, JJ., concur.