FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Alleging Ineffective Assistance of Appellate Counsel. Pasco
County; Mary M. Handsel, Judge.
Vanessa Musson, pro se.
Jo Bondi, Attorney General, Tallahassee, and Cornelius Demps,
Assistant Attorney General, Tampa, for Respondent.
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.
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
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,
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.
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 ...