Opinion
Case No. 5D19-433
01-31-2020
STATE of Florida, Appellant/Cross-Appellee, v. Michael MILLER, Appellee/Cross-Appellant.
Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan and Wesley Heidt, Assistants Attorney General, Daytona Beach, for Appellant/Cross-Appellee. James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appellant.
Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan and Wesley Heidt, Assistants Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appellant.
COHEN, J.
The State of Florida appeals the postconviction court's order granting Michael Miller's Florida Rule of Criminal Procedure 3.850 motion for postconviction relief and granting Miller a new trial. We reverse.
Miller was convicted of lewd or lascivious molestation against a person 12 years of age or older but less than 16 years of age and lewd or lascivious battery. This Court affirmed his convictions. Miller v. State, 120 So. 3d 572 (Fla. 5th DCA 2013).
Miller subsequently filed a Rule 3.850 motion, alleging his trial counsel was ineffective in multiple respects, including, in part, for failing to: move to preserve the victim's clothing for independent DNA testing and conduct such tests; move to exclude evidence of the victim's clothing based on improper collection; cross-examine the State's DNA expert on the statistical implications of her testimony and DNA transfer; present a DNA expert to testify about DNA transfer and deficiencies in the State's DNA evidence; obtain cellphone GPS records; move to allow the jury to examine his car; cross-examine a deputy regarding whether he smelled urine on the victim's clothing; and cross-examine the victim or an investigator regarding efforts to retrieve a beer bottle. The postconviction court held an evidentiary hearing on many of Miller's claims.
Generally, to succeed on an ineffectiveness claim, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Decided the same day as Strickland, United States v. Cronic, 466 U.S. 648, 659–61, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), outlined three narrow circumstances under which the prejudice prong of Strickland will be presumed: (1) where the defendant is completely denied counsel at a critical stage of trial; (2) where counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; and (3) where counsel is called upon to render assistance under circumstances where competent counsel very likely could not render assistance.
For the second Cronic exception to apply, counsel's failure must be a complete failure to subject the prosecution's case to meaningful adversarial testing. Bell v. Cone, 535 U.S. 685, 686, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (holding that Cronic did not apply where defendant's argument was "not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points"). The Cronic presumption of prejudice is "reserved for situations in which counsel has entirely failed to function as the client's advocate." Florida v. Nixon, 543 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (holding that Cronic exception did not apply where counsel failed to obtain defendant's express consent to strategy of conceding guilt in capital trial).
In its order granting Miller's motion, the postconviction court presumed prejudice pursuant to Cronic, finding that Miller's counsel failed to subject the State's case to meaningful adversarial testing. For purposes of our review, it is unnecessary to detail the evidence presented during the evidentiary hearing. Rather, our review of the trial transcript reveals that the postconviction court's application of the second Cronic exception was error.
At trial, the alleged victim testified that she went to a friend's house to work on a school project. Contrary to what she told her mother, she had no ride home and instead, began walking home late at night. The victim's ex-boyfriend agreed to pick her up, so she started walking to a nearby restaurant to await his arrival. Her ex-boyfriend drove a red car, but she did not know the make. When a red car with tinted windows pulled up, the victim believed it was her ex-boyfriend's car and got in, only to realize the driver was Miller. The victim attempted to get out, and Miller allegedly grabbed her arm and restrained her.
The victim testified that Miller offered to take her home. First, he drove to Dodge's convenience store and purchased a beer while she waited in the car. When Miller returned to the car, the victim went into the store and purchased an iced tea. Miller next drove to a 7-Eleven, exited the car, and spoke with a man in front of the store. Miller then proceeded in the direction of the victim's house. He stopped on the side of the road before reaching that destination and asked the victim to recline her seat. When she refused, he put her seat down. The victim testified that she was afraid, causing her to urinate on herself; Miller then digitally and orally sexually assaulted her. Upon seeing a relative's truck drive by, the victim screamed, and Miller stopped. Miller threw the beer bottle from Dodge's out of the window, drove the victim closer to her home, and pushed her out of the car.
Counsel's theory of defense, as detailed in her opening statement, was that the victim fabricated the assault to avoid getting in trouble for lying to her mother and returning home at a very late hour. Counsel cross-examined the victim in accordance with that theory, bringing up the fact that the victim testified that no parent was at her friend's house, so she could have been with anyone. Counsel established that upon realizing she had no ride home, the victim did not call her mother or brother to pick her up. Counsel elicited that even after the victim entered Miller's car and realized that the driver was not her ex-boyfriend, she did not call for help, despite having her cellphone and having called her mother and brother while in the car. Counsel also established that the car doors were not locked when Miller went into Dodge's or stood outside of 7-Eleven, such that she could have exited the car at either location. Counsel was able to get the victim to admit that when she went into Dodge's, Miller waited in the car, but she never asked store employees for help. Finally, counsel elicited that when the victim arrived home, her brother suspected that she had been with a boy, meaning that she would be in trouble.
Counsel objected to the State's introduction of the most harmful piece of evidence—the DNA sample from the victim's bra matching Miller's Y chromosome DNA profile—based on a chain of custody issue. She also moved to prevent the introduction of a recorded phone call between the victim's mother and Miller, in which Miller made contradictory statements about the night in question.
Counsel cross-examined the victim's brother about whether the victim ever told him she was in danger. She also asked him whether, when he saw someone push the victim out of the red car, he thought the victim had done something wrong; he replied affirmatively. Counsel questioned the victim's mother about whether the victim would have been in trouble for returning home late. She also cross-examined the physician's assistant, who conducted a forensic medical assessment of the victim, eliciting that the physician's assistant had never examined the victim prior to that assessment, was ignorant of the victim's medical history, and could not determine how the victim's injuries occurred. Additionally, counsel cross-examined an investigator regarding the recorded phone call.
In her closing argument, counsel urged that the State was unable to meet its burden of proof. She pointed to the uncertainties in the DNA evidence, including the absence of Miller's DNA on the victim's underwear, which would have been expected given the victim's allegations. She also reiterated the inconsistencies between the victim's testimony and behavior, among other things.
In its order granting Miller's motion, the postconviction court focused its analysis on counsel's failure to conduct independent DNA testing, hire a DNA expert, or understand aspects of the DNA evidence. It also noted that counsel did not move to exclude evidence of the victim's clothing based on improper collection procedures. The postconviction court pointed out that the cell phone GPS records would have established whether Miller stopped on the side of the road and whether the victim had, in fact, been at a friend's house. Finally, the postconviction court found that counsel did not investigate the presence of urine on the victim's clothing, the condition of Miller's car, or whether Miller threw the beer bottle out of the car.
Despite the postconviction court's list of counsel's shortcomings, as detailed, our review of the trial transcript reveals that counsel did not entirely fail to function as Miller's advocate or completely fail to subject the prosecution's case to meaningful adversarial testing. Cronic, 466 U.S. at 659–61, 104 S.Ct. 2039 ; see also Nixon, 543 U.S. at 189, 125 S.Ct. 551 ; Bell, 535 U.S. at 686, 122 S.Ct. 1843.
Because the postconviction court presumed prejudice, it made no findings related to the prejudice prong of Strickland. Accordingly, we remand for reconsideration of Miller's claims pursuant to the Strickland standard. See McQuitter v. State, 103 So. 3d 277, 280 (Fla. 4th DCA 2012) (reversing order denying motion for postconviction relief where postconviction court appeared to have utilized erroneous interpretation of Strickland standard in ruling on Rule 3.850 motion and remanding for consideration under appropriate standard).
Specifically, claims 1A, 1D, 1F, 1G, 2, 3A, 3B, 3D, 3E, 3F, 6, and 8. We note that Miller did not cross-appeal the postconviction court's denial of claims 1B, 1C, 1E, 3C, 4, 5, 7, and 9.
REVERSED AND REMANDED.
EVANDER, C.J., and GROSSHANS, J., concur.