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Musson v. State

Florida Court of Appeals, Second District

December 22, 2017



         Petition Alleging Ineffective Assistance of Appellate Counsel. Pasco County; Mary M. Handsel, Judge.

          Vanessa Musson, pro se.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Cornelius Demps, Assistant Attorney General, Tampa, for Respondent.

          VILLANTI, Judge.

         In her petition filed under Florida Rule of Appellate Procedure 9.141(d), Vanessa Musson raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition in part and deny it in part.

         A jury found Ms. Musson guilty of aggravated battery, simple battery, kidnapping with intent to inflict bodily harm or terrorize, grand theft of a motor vehicle, and armed robbery. She appealed her judgment and sentences, and this court reversed the kidnapping conviction, describing the facts as follows:

In the late afternoon of September 14, 2012, Bobbie Jo Curtis and her son, Bryan Curtis, tied seventy-one-year-old Joseph Bruno to a chair inside his house, repeatedly threatened him, beat him severely, took his handgun and van keys, and robbed him of his personal property. At some point during the commission of these crimes, Ms. Curtis decided to enlist the aid of her friend Ms. Musson. Depending on one's view of the evidence, Ms. Musson's role upon arriving at Mr. Bruno's house was either (a) limited to assisting the Curtises with packing and disposing of Mr. Bruno's van and, at some point, battering [the victim's] well-meaning neighbor who came inside the house to investigate what was happening or (b) actively participating in nearly the entire enterprise, including Mr. Bruno's beating, armed robbery, and kidnapping.
At trial neither Mr. Bruno nor the neighbor could positively state whether Ms. Musson had any interaction with Mr. Bruno, nor could they describe her involvement with the robbery. Ms. Curtis and Ms. Musson did not testify. Bryan Curtis, who had reached a prior plea agreement with the State, testified as a State witness. Mr. Curtis provided the only trial testimony about the details of the robbery, the aggravated battery of Mr. Bruno, and Ms. Musson's participation in these crimes. Mr. Curtis claimed that early on in the robbery, after binding Mr. Bruno to the chair, his mother left in Mr. Bruno's van to pick up Ms. Musson. According to Mr. Curtis, Ms. Musson arrived at the house while he was still gathering Mr. Bruno's effects and while Mr. Bruno was still conscious. Mr. Curtis testified that Ms. Musson emptied Mr. Bruno's wallet, found a debit card, and demanded that Mr. Bruno tell her his personal identification number. Mr. Curtis recounted that when Mr. Bruno refused, Ms. Musson proceeded to threaten and strike Mr. Bruno repeatedly with a baseball bat. According to Mr. Curtis, Ms. Musson also struggled with the neighbor, striking him on the head with a hammer while the three of them (Ms. Musson, Ms. Curtis, and Mr. Curtis) were loading Mr. Bruno's property into the van. Finally, Mr. Curtis stated that the three of them fled the house together in Mr. Bruno's van.
Ms. Musson recalled a quite different version of events in her video-recorded police interview, which was presented to the jury. Ms. Musson admitted she arrived at Mr. Bruno's house at Ms. Curtis' behest, entered the kitchen, helped load Mr. Bruno's effects into his van, struck a neighbor (because, she claimed, he attacked her), and drove the van away from the house. However, Ms. Musson maintained she never participated in any violence against Mr. Bruno because, according to Ms. Musson, she was never aware that Mr. Bruno was even in the house.
To support her theory of defense and undermine Mr. Curtis' credibility, Ms. Musson sought to introduce the testimony of Twila Baccile. Ms. Baccile had, at some point, while being transported in a police van, engaged in a conversation through a grate with a man she believed to be Mr. Curtis. She claimed that they discussed these crimes during the ride. Ms. Baccile would have testified Mr. Curtis made statements to her that he was "going to blame it all [on] Vanessa . . . [and] come to court and . . . point fingers at Vanessa." Ms. Baccile would have further testified that Mr. Curtis told her that he had "threatened Vanessa's life, " that Ms. Musson was "an easy target, " and that he "was going to blame it on Vanessa because she was outside."
The trial court ruled that Ms. Baccile's testimony was inadmissible hearsay as it was offered "for the truth of the matter asserted, because the truth of the matter asserted is he plans to blame it all on her."

Musson v. State, 184 So.3d 575, 577-78 (Fla. 2d DCA 2016) (alterations in original) (footnotes omitted). We held that the trial court abused its discretion by ruling that Ms. Baccile's testimony was inadmissible hearsay because Mr. Curtis' statements to Ms. Baccile were offered to impeach his credibility as a witness and not as substantive evidence. Id. at 578. Because "[t]he trial in this case appeared to turn on one or two witnesses' recollection of events, " this court held that "Ms. Baccile's testimony about one witness' alleged bias or motive would be of vital relevance, " so the State could not establish that the error was harmless. Id. at 579. In footnote three, this court wrote, "For reasons that are not clear to us, on appeal, Ms. Musson only challenges the propriety of her kidnapping conviction." Id. at 578 n.3. Accordingly, this court reversed only Ms. Musson's kidnapping conviction.

         Ms. Musson then filed a petition alleging ineffective assistance of appellate counsel, asserting in ground one that her appellate counsel was ineffective for failing to argue that the trial court's abuse of discretion in excluding Ms. Baccile's testimony was harmful error as to all of her convictions. She asserted in ground two that her appellate counsel was ineffective for not filing a motion for rehearing or clarification to point out to this court that she argued in her amended initial brief that the error required reversal of her "convictions." She further asserted that if her appellate counsel had filed such a motion, this court would have "taken a ...

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