final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Gadsden County. Barbara K.
Thomas, Public Defender, Kathleen Stover, Assistant Public
Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee.
THOMAS, C. JUDGE
collateral appeal, Appellant argues that his trial counsel
was ineffective under the Sixth Amendment to the United
States Constitution. Following a jury trial, Appellant was
convicted of two counts of capital sexual battery and
sentenced to life imprisonment, based on sexual intercourse
with a neighbor's ten-year-old daughter. After his
judgment and sentence were affirmed on direct appeal,
Appellant sought postconviction relief under Florida Rule of
Criminal Procedure 3.850, which was denied.
now challenges the postconviction court's denial of three
claims relating to his counsel's representation at trial,
as follows: (1) Failure to move to suppress testimony by an
investigator who entered Appellant's home without a
warrant; (2) failure to have the DNA evidence retested and
analyzed by an independent expert; and (3) failure to
demonstrate that Appellant's girlfriend could have been
the source of the DNA on Appellant's underwear. Because
we conclude that Appellant cannot show prejudice from any
purported deficient trial representation, we affirm the
judgment below denying postconviction relief.
victim's mother testified that Appellant had persuaded
her to move into a mobile home very near to his mobile home.
He was very kind, offering to make repairs to her previous
mobile home and otherwise appeared very "cool." On
the day of the crimes, Appellant visited her residence and
asked to borrow a movie, picking out "Chicken
Little." The victim's younger sister then pleaded
with her mother to be allowed to watch the movie with
Appellant at his mobile home. Finally relenting, but to
ensure that the younger sister was not alone at
Appellant's home, the mother directed the victim to also
go to Appellant's home. Unbeknownst to the mother,
however, the younger sister left Appellant's trailer, but
the victim did not return home for 20-30 minutes.
mother testified that when the victim returned home, she
appeared afraid and nervous, like a "deer caught in
headlights" and her "facial affect and body
language" were "completely different" than
before she went to Appellant's home. The mother testified
that the victim asked "how was her day going," and
that the victim had never before asked her such a question.
She immediately asked the victim what was wrong, and the
victim became even more nervous. She told her mother that
"she didn't want to ruin her day." She then
told her mother that Appellant had "messed with
impact on the mother was "shock," and she
immediately took the victim into a bedroom and asked more
specifically what happened. The victim told her that
Appellant had put his penis into her vagina and her anus. The
mother examined the victim and, after observing what appeared
to be injuries, immediately took her to the hospital.
they left for the hospital, however, Appellant came back to
their mobile home, saying he wanted to "fix the bathroom
and so forth." The mother pretended not to know what the
victim had reported to her.
as Appellant left, the Mother immediately took her daughter
to the hospital, where the victim was examined and
interviewed by the Child Protection Team. The mother
testified that the victim has since suffered nightmares and
attempted to hurt herself after the sexual crimes. She
testified that just before trial, the victim's suffering
had worsened and she was concerned she might have to
"institutionalize" the child.
victim, age eleven at the time of trial, testified to the
events, with the court reporter noting that she was making
"unintelligible noises" during her testimony. The
victim testified that she "did not want to talk
about" the assault, but she confirmed that her mother
had told her about "good" and "bad"
touches before the crimes occurred. She also confirmed that
her mother had told her that if anyone touched her in a
"bad" way, she should tell her mother. The victim
testified that she knew Appellant as "Juan," and
that no one else was with them in the mobile home after her
younger sister left. When asked if she would tell the jury
what happened in Appellant's mobile home, the child tried
to do so but then again made an "unintelligible
victim, referring to anatomical drawings, then testified that
she told her mother that Appellant did something
"bad" and "touched me in the privates."
She testified that Appellant was on top of her, he pulled her
clothes down, and put his penis in her vagina. She testified
that he then "made me turn on my side, and he did it on
the back." She clarified that Appellant sexually
assaulted her "butt." The victim testified that
Appellant gave her toilet paper after the assault. When she
was confused about what to do, Appellant used the toilet
paper to wipe her body. She then ran home to her mother. The
victim testified that she was taken to the hospital and the
Child Protective Team offices in Tallahassee. She testified
that she told them the "truth" and her testimony at
trial was the "truth."
victim identified Appellant through a photograph of how he
looked on the day of the crimes. The victim could not
identify Appellant at trial. She testified that Appellant was
the person who committed the crimes, that she knew him for a
"day or two," and that he "fixed things"
around the trailer. The victim confirmed that the events
occurred in Appellant's mobile home. She also testified
that no one else was in the mobile home when Appellant
assaulted her, and no one else committed the crimes.
cross-examination, defense counsel established that on the
day of the events, the victim was shown only one picture of
Appellant. Defense counsel also elicited testimony that the
victim had not volunteered the description of the events to
her mother, but that her mother had asked her what happened.
Defense counsel also successfully elicited a statement ...