Opinion
2014-CF-1509-A
07-03-2019
STATE OF FLORIDA, Plaintiffs, v. JOSHUA E. JONES, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF AFTER EVIDENTIARY HEARING AND ORDER GRANTING STATE'S MOTION TO STRIKE THE TESTIMONY OF NICK ZISSIMOPULOS
THIS CAUSE is before the Court on the Defendant's Motion for Post-Conviction Relief, filed on October 16, 2017. The State filed a Response to the Defendant's Motion on November 27, 2017. See attached State's Response to Defendant's Motion for Postconviction Relief. After reviewing the Defendant's Motion and the State's Response, the Court set an evidentiary hearing on the Defendant's Motion. The evidentiary hearing was held on May 9, 2019. Present at the hearing was the Defendant, represented by Attorney Joshua Silverman, Assistant State Attorney Jennifer Kipke, and Nick Zissimopulos, a witness for the Defendant. The Court, having considered the Defendant's Motion and State's Response, the evidence presented at the evidentiary hearing, the court file, and being otherwise duly advised in the premises, finds as follows:
The Defendant was originally charged, by Information, with sexual battery upon a person under twelve years of age (Count I) and two counts of lewd or lascivious molestation of a child under twelve years of age and defendant eighteen years of age or older (Counts II and III). See attached Information. The Defendant proceeded to trial on all counts. On September 10, 2015, the Defendant was found guilty, as charged, on all Electronically Filed Marion Case # 14CF001509AX 07/03/2019 04:48:55 PM counts. See attached Verdicts. Immediately following the pronouncement of the verdicts, the Defendant was sentenced by the Court, through the predecessor judge, the Hon. Willard Pope, to life in prison on all counts, to be served concurrently. See attached Judgment and Sentence documents. The Defendant was designated a sexual predator. The Defendant appealed and the Fifth District per curiam affirmed the Defendant's judgment and sentence. Jones v. State, 203 so. 3d 173 (Fla. 5th DCA 2016) (Table).
In the instant Motion, the Defendant raises two grounds for relief claiming he was denied effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Court established a two-pronged standard for determining whether counsel provided legally ineffective assistance. A defendant must point to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. Second, the defendant must establish prejudice by “show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. The court “must indulge a strong presumption that counsel's conduct fell within the range of reasonable professional assistance.” Id.
The defendant bears the burden of satisfying both the performance and prejudice prongs, and ultimately must show a reasonable probability that, but for counsel's errors, the defendant would not have been found guilty at trial. Id. The defendant must establish a prima facie case of ineffective assistance of counsel based upon a legally valid claim; mere conclusory allegations are insufficient to meet this burden. See Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989).
Ground One
In his first ground, the Defendant claims his trial counsel, Mr. Charles Holloman, was ineffective because he failed to object to the victim's testimony about occasions when the Defendant gave the victim's mother her prescribed seizure medication. According to the Defendant, “[t]he clear, unmistakable and unavoidable conclusion from this evidence was that the Defendant intentionally drugged [the victim's] mother with a controlled substance” and, the State was required to file a Williams Rule notice prior to offering evidence of other crimes, wrongs, or acts. For the reasons set out herein, the Defendant's claim is without merit.
During the Defendant's trial, the victim, the victim's grandmother, and the Defendant testified regarding the victim's mother's seizure condition and the medication she took to control the seizures. First, the victim testified on direct examination that her mother has a seizure condition for which she takes medication. See attached Trial Transcript, p. 49-50. The victim testified that, if the Defendant was at work, she would give her mother the medication; but, if the Defendant was not working, he would give the victim's mother the medication. Id. at 50. When the victim gave her mother the medication, “[s]he would be normal. She might have one seizure, but she wouldn't have as many as if she didn't take it.” Id. When the Defendant gave the victim's mother her medication, “[i]t was like she was a zombie. She would just fall asleep and you wouldn't be able to wake her up.” Id. at 51. The victim further testified that there were occasions when the Defendant would give her mother the medication and, ‘‘[the victim] would try to wake her up so she would eat dinner or something, and she wouldn't wake up.” Id. The victim testified that there were occasions when the Defendant was sexually assaulting her wherein the victim's mother was in the same room and even in the same bed while the incidents were occurring. Id. And, during those occasions, the Defendant had given the victim's mother her medication. Id.
The victim's grandmother testified at trial that the victim's mother first started suffering from seizures in 2010, while the victim's mother was married to the Defendant. Id. at 66-67. The victim's grandmother further testified that she saw a difference between when the victim's mother was given her medication and when she was not on the medication. “When she [the victim's mother] was on her medicine, she-numerous times I've [the victim's grandmother] seen her completely knocked out. I mean knocked out.” Id. at 67. The victim's grandmother tried to wake up the victim's mother after she had taken her medication but she was not successful and the victim's mother would be out for “probably a few hours.” Id. The victim's grandmother addressed her concerns about the medication with the Defendant but the Defendant said, “he was just giving her the medicine that's supposed to be given to her.” Id. at 68.
The Defendant also testified about the victim's mother seizure condition and the medication she takes for the seizures. The Defendant denied that anyone other than him gave the victim's mother any medication. Id. at 185-86. The Defendant further testified that the victim's mother would never be “out” when on the medication; but rather, “[s]he was fine. It [the medication] worked like it was supposed to.” Id. at 186.
At the evidentiary hearing, the Defendant testified that he was “amazed” by the victim and her grandmother's testimony that he had “drugged” the victim's mother prior to him sexually assaulting the victim because he had not heard that accusation prior to the trial. See attached Evidentiary Hearing Transcript, p. 13. However, on cross- examination, the Defendant admitted he had viewed the video of the victim's statement given while at Kimberly's Center at least two times prior to his trial. Id. at 16-19. And, during the victim's statement, the victim advised the child protection team interviewer that the Defendant “had given [the victim's] mother seizure medication that rendered her unconscious during times that she [the victim] alleged [the Defendant] sexually abused her.” Id. at 18.
“Evidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is ‘inextricably intertwined' with the underlying crime.” Shively v. State, 752 So.2d 84 (Fla. 5th DCA 2000). Evidence is “inextricably intertwined” if the evidence is necessary to adequately describe the crime, provide an account of the crime, establish the entire context of how the crime arose, and to adequately describe the events leading up to the crime. See Downs v. State, 40 So.3d 49 (Fla. 5th DCA 2010). Here, testimony that the Defendant gave the victim's mother her seizure medication which caused the victim's mother to become unconscious was necessary to establish that the Defendant was able to sexually assault the victim while the mother was in the same room and, at times, the same bed. This testimony was inextricably intertwined with the crimes for which the Defendant was charged and, therefore, relevant. Because the evidence was relevant, Mr. Holloman's performance was not deficient in failing to object to the admission of this testimony. Moreover, there is no reasonable probability that, had Mr. Holloman objected to the testimony, the Court would have sustained the objection and excluded said testimony. Therefore, the Court finds that Mr. Holloman was not ineffective for failing to object to the victim's testimony about occasions when the Defendant gave the victim's mother her prescribed seizure medication. The Defendant's first ground for relief is without merit.
Ground Two
In his second ground, the Defendant claims Mr. Holloman was ineffective because he questioned the Defendant regarding his violation of probation based on the Defendant's cocaine use. The Defendant claims that he consented to Mr. Holloman questioning him about the specific nature of his prior felony conviction but he did not consent to Mr. Holloman questioning him about the fact that the Defendant violated his probation by using cocaine. For the reasons set out herein, the Defendant's claim is without merit.
During the Defendant's trial, prior to the Defendant testifying on his own behalf, the Court conducted a colloquy with the Defendant to confirm the Defendant's decision to testify was knowing and voluntary. The Court advised the Defendant that, if he testified on his own behalf, the State would be permitted to offer impeachment evidence and ask the Defendant if he had been previously convicted of a felony or a crime of dishonesty and, if so, how many times. See attached Trial Transcript, p. 163. The Court specifically advised the Defendant that the State would not be permitted to go into the nature of the Defendant's prior convictions unless the Defendant denied that he had prior convictions. Id. Mr. Holloman then engaged in his own colloquy with the Defendant regarding his decision to question the Defendant as to the specific nature of the Defendant's prior convictions.
MR. HOLLOMAN: I'm going to-it's-I'm going to ask him how many times he's been convicted of a felony, which is the way to ask it. And he's going to say once. And then what I'm going to do is-I'm making a tactical
decision here for appellate geniuses out there because I don't want them to infer that he's some sort of previous child molester or something like that.
So even though we're not required to disclose the underlying nature of what the offense was, I'm going to specifically ask him what that offense was. And if Ms. Kipke wants to-you want to go into it, that opens the door of course, you know, for her to march into that.
And I'm doing that based on just so the record's real clear my 30-plus years of experience because I've had some success doing that in the past, although it's not the traditional way to do things.
I've, uh-I've seen a lot of juries come-come out with guilty whether I've been the prosecutor or whether I've been defense attorney. And one of the things they're always wondering about is oh, that felony must have been a child molester before or something like that.
So, you know, who knows. Litigation is a very (unintelligible) fooler [sic] concept, and who knows who's got the right answers. I guess it's kind of like a big laboratory within limits. And-and that's what I'm doing.
Do you agree with that as a trial strategy? Because you have the right to say-if she asks you how many times have you been convicted of a felony, your answer is once, and we don't have to go any further than that.
Do you-do you want to stop there, or do you want to tell them what that felony was?
THE DEFENDANT: I can tell them what the felony was.
THE COURT: Okay. All right.
MR. HOLLOMAN: And, Judge, I've also told him, and he's listening real well now, that there are never any guarantees whether a defendant testifies or not testifies. No, there never can be any guarantees in a trial because nobody knows what a given jury will do on a particular day.
I've also explained to him his right to call witnesses and present evidence in his behalf. It appears that after consideration and deliberation with him, that appears to be his free and voluntary decision to take the stand.
So there's not any other evidence that we will be presenting that we foresee right now unless there's some sort of issues that get raised on cross-examination of him.
THE COURT: All right.
Mr. Jones, you've indicated you agree with Mr. Holloman's strategy on this to inform the jury of the nature of your prior conviction?
THE DEFENDANT: Yes, sir, I agree.
THE COURT: All right.See attached Trial Transcript, p. 164-67.
The record is clear that Mr. Holloman made a strategic decision to disclose the nature of the Defendant's prior conviction to the jury so that the jury would not infer that the Defendant's prior conviction was for a child molestation offense. And, the record is also clear that the Defendant agreed with this decision.
During the Defendant's trial, almost immediately after Mr. Holloman began directexamination of the Defendant-and, notably, before Mr. Holloman questioned the Defendant about his prior conviction-the Defendant himself testified that he had previously spent time in jail and on probation for a prior conviction. The Defendant's direct-examination occurred as follows:
BY MR. HOLLOMAN:
Q. If we can get you to slide up there to the microphone.
And look at the jury as you're talking because they have to be able to understand, and that always aids and assists, okay?
A. Okay.
Q. Let me get you to introduce yourself to the jury by stating your full name for the record.
A. I'm Joshua Jones. J-O-S-H-U-A, J-O-N-E-S.
Q. And, uh, how are you employed?
A. I'm employed by my father. We own our own company.
Q. And how long have you been employed there?
A. Uh, 35 years.
Q. And what do you do?
A. I'm a supervisor.
Q. Do you have any kids or anything like that?
A. I have two children and three stepchildren.
Q. Okay.
Now, when did you first meet [the victim's] mom?
A. I met her mother, uh, 2008. Early 2008 right when I got out of jail.
Q. What was that getting out of jail for?
A. Uh, I was in there for a criminal mischief charge.
Q. And was that the underlying felony that we were talking about that you had been convicted of before?
A. Yes, sir, it is.
Q. Okay.
And, uh, so where did you meet her at?
A. I met her through my sister. My sister and the mother of [the victim] were best friends at one time.
Q. And where were you living at the time?
A. Uh-
Q. After you got out?
A. When I got out, I was living with my father because part of my probation was six months of house arrest. Uh, I lived there for three months and then moved to Belleview to move in with [the victim's] mother at a mutual house three months after.
Q. Did you successfully complete your probation?
A. Yes, I completed probation, six months of house arrest. And I completed that.
Q. Did you violate that at any time or anything?
A. No, I did not violate the house probation, but I did violate a felony charge on technical.
Q. What was that technical?
A. Uh, dirty urine for a VOP.
Q. And what do you mean by “dirty urine”?
A. Uh, that I had cocaine in my system.
Q. Okay.
Did you ever receive any treatment for that?
A. Yes. I went through all the classes that Marion County offered me. I completed all the courses and got my certificates, and that was it.
Q. And what year was that?
A. Uh, 2-it-it was 2008, 2009. Took that long to complete everything that needed to be completed.
Q. Okay.Id. at 168-70. The Defendant then again brought up the fact that he was on probation when Mr. Holloman asked the Defendant about his marriage with the victim's mother.
The following occurred:
Q. . . . But before we turn to that, I mean how was this marriage with [the victim's] mom?
A. Uh, the first six months was [sic] fine. It was great. And then when I slipped up and violated my probation, uh, someone called the Probation Office on me and I violated. And I ended up doing eight months in the Marion County Jail and then released.
Upon being released is when I found out who called my Probation Officer because my wife told me at that time who it was.
Q. Okay.
Now, as a result of that, what-what problem did that cause?
A. That caused the problem between me and my mother-in-law.
Q. Okay.
A. She wanted nothing to do with the children. She didn't want nothing to do with her daughter at that time.Id. at 171-72.
The Defendant claims Mr. Holloman was ineffective because he questioned the Defendant about being on probation and his violation of probation; however, the Defendant was the first to mention anything about him having a prior conviction, serving time in jail, and being on probation. Mr. Holloman's questions to the Defendant did not call for a response that would have required the Defendant to disclose such information. Rather, the Defendant went beyond the scope of the questions posed to him to testify about such information. After the Defendant testified that he had served time in jail and was on probation, Mr. Holloman asked the Defendant clarifying questions so as not to mislead the jury. Indeed, after Mr. Holloman asked the Defendant if he successfully completed probation, the Defendant answered affirmatively, which required Mr. Holloman to ask specifically about the Defendant violating his probation because the Defendant's previous answer implied the Defendant had not violated his probation.
The general rule regarding impeachment by prior convictions is that the impeachment is limited to asking whether a witness has been previously convicted of a felony or a crime involving dishonesty, and if so, how many times. Rogers v. State, 964 So.2d 221 (Fla. 4th DCA 2007). There is an exception to this general rule. If a defendant attempts to characterize his prior convictions in a way favorable to his case at trial, or if the defendant attempts to mislead the jury about his prior convictions, “the state is entitled to inquire further regarding the convictions to attempt to dispel any misleading impression.” Id. at 223 (citing Ross v. State, 913 So.2d 1184 (Fla. 4th DCA 2005); Fotopoulos v. State, 608 So.2d 784 (Fla. 1992)). This is based on considerations of fairness and the truth-seeking function of a trial. Rogers, 964 So.2d at 223.
Here, because the Defendant's testimony could have been considered misleading regarding his prior conviction, his probation, whether he successfully completed or violated his probation, and the circumstances surrounding his violation of probation, the State would have been permitted to question the Defendant further about his prior conviction and probation. Because the State would have been permitted to so question the Defendant, Mr. Holloman's performance was not deficient by questioning the Defendant regarding his prior conviction and violation of probation and the fact that he violated his probation by using cocaine. Therefore, the Court finds Mr. Holloman was not ineffective by questioning the Defendant regarding his violation of probation based on the Defendant's cocaine use. The Defendant's second ground for relief is without merit.
Also before the Court is the State's Motion to Strike the Testimony of Nick Zissimopulos, filed with the Clerk on May 7, 2019. At the evidentiary hearing, the defense attempted to call Attorney Nick Zissimopulos to testify that, in his opinion, Mr. Holloman rendered ineffective assistance of counsel. The Court heard argument from the parties at the hearing and then orally granted the State's motion. See Casey v. State, 969 So.2d 1055 (Fla. 4th DCA2007).
The Court allowed Mr. Silverman, the Defendant's post-conviction counsel, to proffer the testimony of Attorney Zissimopulos.
Based on the foregoing, it is, ORDERED:
1. The Defendant's Motion for Post-Conviction Relief is DENIED. The Defendant may appeal this decision to the Fifth District Court of Appeal within 30 days of this Order's effective date.
2. The State's Motion to Strike the Testimony of Nick Zissimopulos is GRANTED.