Opinion
No. 4D99-2252.
Opinion filed March 8, 2000.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. No. 95-004641CF10A.
Darryl Hall, Belle Glade, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Gentry Denise Benjamin, Assistant Attorney General, West Palm Beach, for appellee.
Appellant's rule 3.850 motion, alleging that his counsel was ineffective for failing to depose and call as a witness the Broward sheriff's DNA expert, was denied without a hearing. Appellant alleges that the expert would have testified as to the absence of his DNA on the victim or in any relevant area. The state argues that the decision not to call the DNA expert was a trial strategy decision. Normally, trial strategy decisions cannot be determined under the circumstances in this case without an evidentiary hearing. Evans v. State, 737 So.2d 1167 (Fla. 2d DCA 1999) (citing Guisasola v. State, 667 So.2d 248 (Fla. 1st DCA 1995)). Nor do we agree with the state that this can be resolved without an evidentiary hearing on the state's theory that the DNA expert would have been cumulative to the testimony of the sexual assault nurse practitioner who examined the victim after the alleged sexual battery and found no semen or signs of genital trauma. There is a significant difference between what a nurse might observe with the naked eye and what DNA testing might reveal. We therefore reverse and remand for further proceedings.
WARNER, C.J., and KLEIN J., concur.
SHAHOOD, J., dissents with opinion.
This case does not warrant an evidentiary hearing. I agree with appellee's position that the DNA expert's testimony would have been cumulative to that of the testimony of the sexual assault nurse practitioner who examined the victim after the incident.
I agree with the majority and recognize that there is a significant difference between what a nurse might observe with the naked eye and what DNA testing might reveal. The record in this case however, indicates that the sexual assault nurse practitioner performed a thorough examination of the person and clothing of the victim including taking eighteen swabs or specimens from the victim and her clothing. She then testified that there was no evidence of semen. I then accept appellant's position that the DNA witness' testimony would have also been negative as to the presence of semen.
Counsel's failure to call the DNA witness and present cumulative testimony cannot be deemed to be ineffective assistance of counsel, thereby requiring an evidentiary hearing.See Valle v. State, 705 So.2d 1331 (Fla. 1997) (citing Card v. State, 497 So.2d 1169, 1176-77 (Fla. 1986)).
I would affirm the trial court's order.