Opinion
Case No. 4D01-860.
Opinion filed November 13, 2002.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack H. Cook, Judge; L.T. No. 99-3333 CFA02.
Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
Richard E. Doran, Attorney General, Tallahassee, and Donna Hoffmann and Judy Hyman, Assistant Attorneys General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
We deny appellant's motion for rehearing, but write to discuss several issues raised therein.
Following his conviction for aggravated assault with a firearm, John Skrandel filed a motion for new trial asserting, among other things, ineffective assistance of trial counsel. More specifically, Skrandel alleged that his lawyer, Gordon Richstone, was ineffective in failing to call Dr. Carl Panzarella, Skrandel's ex-wife, Skrandel's son, and Skrandel himself in support of his self-defense theory. The trial court rejected Skrandel's contention that his lawyer had provided ineffective assistance of counsel, and Skrandel appealed to this court, arguing only that Richstone had been ineffective for failing to call Dr. Panzarella as his testimony would have confirmed that he acted only out of fear for himself and his son. We affirmed the trial court's ruling. See Skrandel v. State, 27 Fla. L. Weekly D1264 (Fla. 4th DCA May 29, 2002).
In our original opinion, we indicated that Skrandel was tried by jury. See Skrandel v. State, 27 Fla. L. Weekly D1264 (Fla. 4th DCA May 29, 2002). As Skrandel points out in his motion for rehearing, his conviction followed a bench trial.
First, we rejected Skrandel's contention that Panzarella would have added any support to his claim that he acted in defense of his son as Panzarella unequivocally testified at the hearing on Skrandel's motion for new trial that Skrandel's son was never in any danger. Then, we turned to Skrandel's claim that Panzarella would have supported his theory that he acted in self-defense. The evidence actually presented at Skrandel's trial was that although both Adams and Huseby argued with Skrandel, Adams alone came toward Skrandel during the argument. At the hearing on the motion for new trial, Panzarella testified that, prior to Skrandel drawing his gun, both Adams and Huseby, who was admittedly much larger than Skrandel, came toward Skrandel. Such testimony, we concluded, was sufficient to satisfy Strickland's prejudice prong, i.e., there was a reasonable probability that Panzarella's testimony would have affected the outcome. We found, however, that Skrandel could not satisfy Strickland's first prong — that counsel's performance was deficient.
In reaching this conclusion, we focused on the fact that Panzarella's testimony that both Adams and Huseby came at Skrandel was inconsistent with Skrandel's own testimony at the hearing on the motion for new trial:
At the hearing on the motion for new trial, Skrandel testified that Huseby walked out of the batting cage and toward his son before throwing the bat. According to Skrandel, it was Adams coming at him and his fear of Adams that caused him to pull his gun. Since Skrandel himself claimed that his fear was the product of Adams coming at him and that Huseby was no longer in the batting cage, we cannot accept Skrandel's appellate claim that the failure to call Panzarella "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Knowing that his client did not claim that both men came at him at the same time, defense counsel was not deficient in not calling Dr. Panzarella to establish this theory of self-defense, which would have been inconsistent with the testimony of every other eye-witness and inconsistent with the defendant's own version of events.
Skrandel, 27 Fla. L. Weekly at D1264. In his motion for rehearing, Skrandel challenges our finding that he could not satisfy Strickland's deficiency prong and argues that our decision was incorrect because (1) it is improper for a court to offer reasons or justifications for counsel's decisions that counsel himself did not offer and (2) that, even if this court were permitted to create a justification for defense counsel's decisions, defense counsel's failure to call either Panzarella or Skrandel himself was still not objectively reasonable. We write this opinion on rehearing to address these issues.
First, we readily admit that Attorney Richstone did not point to the discrepancy between Skrandel's version of events and Panzarella's version in support of his decision not to call Panzarella as a witness at trial. In assessing counsel's performance for purposes of an ineffective assistance of counsel claim, however, the standard is an objective one and not a subjective one. See Strickland, 466 U.S. at 688; see also Schwab v. State, 814 So.2d 402 (Fla. 2002). Thus, the focus is on what a reasonably competent lawyer, standing in the defendant's lawyer's shoes, would have been expected to do.
"Courts must `indulge [the] strong presumption' that counsel's performance was reasonable and that counsel `made all significant decisions in the exercise of reasonable professional judgment.'" Id. [ Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc)](quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66). Therefore, "counsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken `might be considered sound trial strategy.'" Id. (quoting Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)).
If the record is incomplete or unclear about counsel's actions, then it is presumed that counsel exercised reasonable professional judgment. See id. at 1314-15 n. 15. Thus, the presumption afforded counsel's performance "is not . . . that the particular defense lawyer in reality focused on and, then, deliberately decided to do or not to do a specific act." Id. Rather, the presumption is "that what the particular defense lawyer did at trial — for example, what witnesses he presented or did not present — were acts that some reasonable lawyer might do." Id. (emphasis added).
Moreover, "[t]he reasonableness of a counsel's performance is an objective inquiry." Id. at 1315. For a petitioner to show deficient performance, he "must establish that no competent counsel would have taken the action that his counsel did take." Id. To uphold a lawyer's strategy, a court "need not attempt to divine the lawyer's mental processes underlying the strategy." Id. at 1315 n. 16.
Putman v. Head, 268 F.3d 1223, 1243-44 (11th Cir. 2001), cert. denied, 123 S.Ct. 278 (2002) (bold emphasis added). We believe that our finding in the original opinion that Skrandel's attorney did not render deficient performance in failing to call Dr. Panzarella, given the inconsistency between Skrandel's testimony that Adams alone came at him and Panzarella's testimony that both Adams and Huseby came at him, is consistent with the above-cited principles.
In his motion for rehearing, Skrandel has directed our attention to language from the Seventh Circuit's opinion in Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990). In that case, the court found that defense counsel's decision not to put on any witnesses in support of a viable self-defense theory fell outside the range of professionally competent assistance and reversed the defendant's conviction. In reaching this decision, the court wrote that "[j]ust as a reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer." Id. Skrandel would have us interpret this language as requiring a court to ignore an obvious justification for an attorney's trial decision because the lawyer did not offer the particular explanation. We believe that this interpretation is inconsistent with the objective standard of reasonableness. Regardless of what was going on in Attorney Richstone's mind at the time, the question is would any competent attorney do what he did (fail to call Panzarella). Under the circumstances, we believe that the answer to that question is "yes."
This brings us to the second argument advanced in Skrandel's motion for rehearing. Here, Skrandel contends that even if it is permissible for a court to create a justification for defense counsel's actions, it was not objectively reasonable for Richstone to call neither Panzarella nor Skrandel at trial. In his motion, Skrandel conceded that if he had testified at trial, then defense counsel's decision not to call Dr. Panzarella would probably have been objectively reasonable since their versions of events as to why Skrandel pulled a gun on Adams were different, i.e., Panzarella would have said that Adams and Huseby came at Skrandel while Skrandel himself would have testified that Adams alone came at him in the batting cage. According to Skrandel, however, since defense counsel advised him not to testify at trial, it was unreasonable for him to also fail to call Dr. Panzarella. A review of the record indicates that this "either or" argument was never made to the trial court. Instead, while before the trial court, Skrandel argued that his lawyer was ineffective for failing to call Panzarella, Skrandel's ex-wife, Skrandel's son, and Skrandel himself. In view of the evidence presented, it is unlikely that the outcome would have been different had Panzarella testified that two men came at Skrandel, and Skrandel himself testified that Adams alone came at him.
The transcript of the proceedings below indicates that the trial judge recognized the discrepancy between Skrandel's own testimony and Panzarella's testimony and even questioned Skrandel about it. Skrandel, however, never retreated from his argument that his lawyer had been ineffective for failing to call Panzarella, Skrandel's ex-wife, Skrandel's son, and Skrandel himself.
Accordingly, the conviction is AFFIRMED.
POLEN, C.J., STEVENSON and TAYLOR, JJ., concur.