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Wood v. Secretary Florida Department of Corrections

United States District Court, N.D. Florida, Panama City Division

May 22, 2019

STORM PATRICK WOOD, Petitioner,
v.
SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE

         This cause is before the court on Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (ECF No. 1). Respondent filed an answer and relevant portions of the state court record (ECF No. 23). Petitioner filed a reply (ECF No. 31).

         The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful consideration of all issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is entitled to a conditional grant of the writ on one of his claims.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 23).[1] Petitioner was charged in the Circuit Court in and for Bay County, Florida, No. 2008-CF-3762, with one count of Driving Under the Influence (“DUI”) Manslaughter (Count I), one count of Felony Driving While License Suspended or Revoked (“DWLS”) Causing Death (Count II), and one count of Aggravated Fleeing to Elude a Law Enforcement Officer Causing Death (Count III) (Ex. A at 29-30). Following a jury trial, Petitioner was found guilty as charged of Counts I and II (Ex. A at 78-80, Exs. E, F, G). On August 11, 2009, the trial court adjudicated Petitioner guilty of DUI Manslaughter and Felony DWLS (Ex. A at 86-90). Petitioner was sentenced to fourteen (14) years in prison on Count I, with pre-sentence jail credit of 264 days, and five (5) years of probation on Count II, to run consecutive to the prison sentence on Count I (Ex. A at 86-90, Ex. D).

         Petitioner, through counsel, appealed the judgment to the Florida First District Court of Appeal (“First DCA”), No. 1D09-4281 (Exs. H, I). The First DCA affirmed the judgment per curiam without written opinion on September 1, 2010, (Ex. J). Wood v. State, 43 So.3d 699 (Fla. 1st DCA 2010) (Table). The mandate issued September 17, 2010 (id.).

         On November 16, 2010, Petitioner filed a motion to modify/reduce sentence, pursuant to Rule 3.800(c) of the Florida Rules of Criminal Procedure (Ex. K at 120- 23). The state circuit court summarily denied the motion on November 22, 2010 (id. at 124).

         On November 22, 2011, Petitioner, through counsel, filed a motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. K at 128-47). Petitioner filed an amended motion on March 9, 2012 (id. at 156-77), and a second amended motion on April 9, 2012 (id. at 178-200). In an order rendered April 11, 2013, the state circuit court struck four of Petitioner's claims as facially insufficient, without prejudice to Petitioner's filing an amended motion within thirty (30) days (Ex. N at 642-43). Petitioner filed a third amended motion on May 13, 2013, and an amended version of the same motion (to cure an oath deficiency) on May 30, 2013 (id. at 695-717). The state circuit court summarily denied the third amended Rule 3.850 motion on November 25, 2013 (id. at 720-35). Petitioner appealed the decision to the First DCA, No. 1D14-95 (Ex. O at 861- 62, Ex. R). The First DCA affirmed the circuit court's denial of Grounds 2 through 7, but reversed the court's decision as to Ground 1, and remanded the case for an evidentiary hearing on that claim (Ex. W). Wood v. State, 143 So.3d 493 (Fla. 1st DCA 2014). The circuit court held an evidentiary hearing on Ground 1 (Ex. Q). The court denied Ground 1 in an order rendered on July 10, 2015 (id. at 923-34). Petitioner appealed the decision to the First DCA, No. 1D15-3702 (Ex. X). The First DCA affirmed per curiam without written opinion on November 9, 2016, with the mandate issuing February 8, 2017 (Ex. AA). Wood v. State, 208 So.3d 1164 (Fla. 1st DCA 2016) (Table).

         On February 13, 2017, Petitioner filed a motion to correct illegal sentence in the state circuit court, pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. BB at 1-3). The circuit court summarily denied the motion in an order rendered on March 6, 2017 (id. at 17). Petitioner appealed the decision to the First DCA, No. 1D17-1191 (id. at 18). The First DCA affirmed per curiam without written opinion on June 7, 2017 (Ex. CC). Wood v. State, 227 So.3d 575 (Fla. 1st DCA 2017) (Table). The mandate issued July 6, 2017 (id.).

         Petitioner filed the instant federal habeas action on June 16, 2017 (ECF No. 1).

         II. STANDARD OF REVIEW

         Federal courts may grant habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254. Section 2254(d) provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (2011).

         The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate test was described by Justice O'Connor as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the “clearly established Federal law, ” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is “clearly established” only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (“We have explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions.” (internal quotation marks and citation omitted)).

         After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is “contrary” only if either the reasoning or the result contradicts the relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S.Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants: “Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court.” (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

         If the “contrary to” clause is not satisfied, the federal habeas court next determines whether the state court “unreasonably applied” the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was “objectively unreasonable” in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam). In applying this standard, the Supreme Court has emphasized:

When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as “a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, supra, at 102-103, 131 S.Ct. 770 (internal quotation marks omitted).

Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).

         Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The “unreasonable determination of the facts” standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable application” clause, the federal court applies an objective test. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (holding that a state court decision based on a factual determination “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.”). Federal courts “may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance.” Brumfield v. Cain, ___ U.S. ___, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356 (2015) (quotation marks omitted).

         When performing review under § 2254(d), the federal court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court's factual finding and, when guided by the AEDPA, “conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence”). Neither the Supreme Court nor the Eleventh Circuit has interpreted how § 2254(d)(2) and § 2254(e)(1) interact in the context of fact-based challenges to state court adjudications. See Cave v. Sec'y for Dep't of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit has declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate court's summary affirmance, where it found that the validity of the state court decision was not premised on the trial court's unreasonable fact finding, and that the petitioner failed to demonstrate “by clear and convincing evidence that the record reflect[ed] an insufficient factual basis for affirming the state court's decision.” Gill, 633 F.3d at 1292.

         Only if the federal habeas court finds that the petitioner satisfied § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claim. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28 U.S.C. § 2254(a). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

         Within this framework, the court will review Petitioner's claims.

         III. PETITIONER'S CLAIMS

         A. Ground One: “Defense counsel rendered ineffective assistance of counsel by failing to retain an independent accident reconstruction expert.”

         The factual basis for Petitioner's charges (DUI Manslaughter and DWLS Causing Death) was that Petitioner was driving a motorcycle when it crashed, killing his passenger, Robin Arnett (Ex A at 29-30). Petitioner alleges the State presented circumstantial evidence that he was the driver of the motorcycle (ECF No. 1 at 5- 6).[2] He alleges his theory of defense was that Ms. Arnett was driving the motorcycle at the time of the accident (id. at 6). Petitioner contends defense counsel was ineffective for failing to present testimony from an accident reconstruction expert (id.). Petitioner alleges he presented testimony from an accident reconstruction expert at the post-conviction evidentiary hearing (id.). Petitioner alleges the expert testified that he would have testified at trial that Ms. Arnett was driving the motorcycle (id.). Petitioner alleges defense counsel's decision not to retain an expert was unreasonable (id.). Petitioner alleges the result of trial would have been different if trial counsel had presented testimony from an expert (id.).

         Respondent asserts, without conceding or waiving an exhaustion defense, that it “appears” Petitioner exhausted this claim by presenting it as Ground 1 of his third amended Rule 3.850 motion (ECF No. 23 at 27 n.4). Respondent contends the state court adjudicated the merits of the claim (id. at 17-28). Respondent contends Petitioner has not shown that the state court's denial of the claim was contrary to or an unreasonable application of clearly established federal law, or that it rested upon an unreasonable determination of the facts in light of the evidence presented (id. at 28-30).

         1. Clearly Established Federal Law

         The standard for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To obtain relief under Strickland, Petitioner must show (1) deficient performance by counsel and (2) a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 687-88. If Petitioner fails to make a showing as to either performance or prejudice, he is not entitled to relief. Id. at 697.

         The focus of inquiry under the performance prong of Strickland is whether counsel's assistance was reasonable considering all the circumstances and under prevailing professional norms.” Strickland, 466 U.S. at 688-89, 691. “The petitioner's burden to prove, by a preponderance of the evidence, that counsel's performance was unreasonable is a heavy one.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)). “Judicial scrutiny of counsel's performance must be highly deferential, ” and courts should make every effort to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. “[T]here are no ‘absolute rules' dictating what reasonable performance is . . . .” Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (quoting Chandler, 218 F.3d at 1317). Indeed, “‘[a]bsolute rules would interfere with counsel's independence-which is also constitutionally protected-and would restrict the wide latitude counsel have in making tactical decisions.'” Id. (quoting Putman v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001)).

         Professionally competent assistance includes a duty to conduct a reasonable investigation. See Strickland, 466 U.S. at 690-91. The Supreme Court has emphasized that only when counsel's choices are made after a “thorough investigation of law and facts relevant to plausible options” are those choices “virtually unchallengeable.” Id. at 690. When, however, “strategic choices [are] made after less than complete investigation [they] are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91. Thus, at bottom, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances. . . .” Id. at 691. This means that when a court assesses the attorney's decision not to investigate, it “must consider . . . whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

         If the record is not complete regarding counsel's actions, “then the courts should presume that what the particular defense lawyer did at trial-for example, what witnesses he presented or did not present-were acts that some lawyer might do.” Jones, 436 F.3d at 1293 (citing Chandler, 218 F.3d at 1314-15 n.15). “Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Counsel's performance is deficient only if it is “outside the wide range of professional competence.” Jones, 436 F.3d at 1293 (citing Strickland, 466 U.S. at 690); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was “not entitled to error-free representation”).

         As to the prejudice prong of the Strickland standard, Petitioner's burden of demonstrating prejudice is high. See Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). To establish prejudice, Petitioner must show “that every fair-minded jurist would conclude ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Jones v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014) (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence in the outcome, ” not that counsel's conduct more likely than not altered the outcome of the proceeding. Id. (citation omitted). And Petitioner must show that the likelihood of a different result is substantial, not just conceivable. Williamson v. Fla. Dep't of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (citing Richter, 562 U.S. at 112). “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. The prejudice assessment does “not depend on the idiosyncracies [sic] of the particular decisionmaker, ” as the court should presume that the judge or jury acted according to law. Id. at 695.

         Finally, when a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S.Ct. at 788. As the Richter Court explained:

The standards created by Strickland and § 2254(d) are both “highly deferential, ” and when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Id. (citations omitted).

         2. Federal Review of State Court Decision

         Petitioner presented this claim as Ground 1 of his third amended Rule 3.850 motion (Ex. N at 699-700). The circuit court held an evidentiary hearing on this claim (Ex. R). The circuit court adjudicated Ground 1 as follows:

Ground One of Amended Motion for Postconviction Relief
According to the Defendant, at trial the State's theory was that the Defendant was driving the motorcycle at the time of the accident, whereas the defense's theory was that the victim Arnett was driving the motorcycle. He complains that while the State presented evidence to support its theory, trial counsel failed to present compelling evidence to support his defense, and, more specifically, failed to present an accident reconstruction expert who would have refuted the testimony of the State witnesses, and opined that the victim was the driver. The Defendant alleges that had trial counsel sought to retain an accident reconstruction expert, such an expert would have been willing and available to testify at trial. He further alleges that he has since retained accident reconstruction expert John Buchanan, who, after conducting an independent reconstruction of the accident, concluded in his report that the victim was driving the motorcycle at the time of the accident. During postconviction discovery, the Defendant produced a copy of Buchanan's report.[FN 1] See State's Motion for Postconviction Discovery (with attached report). The Defendant claims that trial counsel's failure in this respect was deficient and resulted in prejudice for purposes of Strickland v. Washington, 104 S.Ct. 2052 (1984).
[FN 1: His Amended Motion made reference to Buchanan's report but did not attach a copy of it.]
Evidentiary Hearing
At the evidentiary hearing, the Defendant presented the testimony of Buchanan, who was retained to conduct an independent accident reconstruction analysis for the Defendant's case. (ET 8). In conducting his analysis, he reviewed the traffic homicide report, photographs from the scene of the accident, deposition transcripts, and the trial transcripts. (ET 9).[FN 2] He was tendered as an expert at the evidentiary hearing by the Defendant's postconviction counsel without objection from the State. (ET 8).
[FN 2: Citations to the transcript of the evidentiary hearing will appear as “ET, ” followed by the appropriate page number, e.g., (ET 3).]
Buchanan first testified with respect to some of the inconsistencies in Sergeant Guilford's testimony he had listed in his report. Buchanan noted that at trial, Sergeant Guilford had stated that he initially observed two motorcycles (including the Defendant's) traveling between 90 to 100 miles per hour. (ET 10). However, Buchanan noted that 100 miles per hour is about “146 feet per second, ” and that Sergeant Guilford had said he was 150 yards away at the time. (ET 10). Thus, Sergeant Guilford only would have had “one to two-tenths of a second” to observe them and “it was at night time.” (ET 10). In light of these factors, Buchanan opined that it would have been “virtually impossible” for Sergeant Guilford to see how many persons were on the motorcycles or which lanes they were in. (ET 11). Also according to Buchanan, Sergeant Guilford initially stated that the motorcycle he was following was doing “bumper cars” to pass other motorcycles, but he later changed his testimony at trial and stated that the motorcycle in question merely went in between the other motorcycles. Moreover, Sergeant Guilford also changed his testimony about how long it took him to arrive at the scene of the crash because, according to Buchanan, Sergeant Guilford was trying to make it look like he was “a lot closer” to the Defendant's motorcycle than he actually was. (ET 21). In this connection, Buchanan also pointed to inconsistencies between Sergeant Guilford's testimony and the CAD notes, which for him indicate that he did not “roll up on this crash.” (ET 22).
Next, Buchanan turned his attention to Corporal Chapman's investigation of the crash. Buchanan stated that the motorcycle should have been examined to determine what gear it was in at the time of the crash, but opined that the motorcycle was in first gear at the time. (ET 17). Buchanan went on to explain that the motorcycle being in first gear would be consistent with the victim Arnett having been the driver, as with her lack of knowledge “she would not be able to shift.” (ET 18). Buchanan also took issue with Corporal Chapman's measurements and calculations in reconstructing the crash. (ET 27, 28).

         Finally, Buchanan testified that based on his review of the evidence in the instant case, it was his opinion that the victim Arnett was driving the motorcycle at the time of the accident and that the Defendant was the passenger. He explained:

At the time that [the motorcycle] struck the sidewalk and went down the passenger, the male passenger was ejected at that point as the bike went down and he took a different departure angle, he did not strike the sign that she and the motorcycle struck. She is holding on to the bars as the bike goes down, the front of the bike, the front left of the bike is where we have all the damage that struck the sign. She's holding onto the bars, she and the motorcycle strike the sign. That's why she didn't go as far as he did, he didn't hit anything.

         (ET 23-24). Buchanan concluded as follows:

[W]hen the bike went down he was ejected immediately because the passenger has nothing to hold onto on these [sic] type of bikes so they're just back there with their arms flailing. So as soon as the bike goes down he goes off. Driver[s have] their hands gripped around the bars and their legs as they go down around the tank so they're going to stay with the bike a lot longer. [The Defendant] was closer to the bike because he didn't strike the sign. The bike ricocheted off and the reason he wasn't right up with the bike because the coefficient of friction for the bike is less than a tumbling body is. A tumbling body decelerates faster than a bike sliding on its plastic. So a bike is going to go further. Everything when they go down is moving at the same speed. And that is just the drag factors or objects that they strike that changes their distance that they're going to travel. So she was with the bars and the front of the bike hit, in my opinion, one hundred percent consistent that she was holding onto the bars and was the driver.
(ET 29-30).
On cross-examination, the State questioned Buchanan about the alleged inconsistencies in Sergeant Guilford's testimony. For many of the alleged inconsistencies, the State was able to get Buchanan to acknowledge that trial counsel McCarthy addressed them, and on several occasions he conceded that she did not need the assistance of an accident reconstruction expert to point them out for the jury. (ET 32-45). The State also cross-examined Buchanan on his opinion that the victim Arnett was the driver. Buchanan had stated in his report that a driver of a motorcycle is going to stay with the motorcycle a lot longer than the passenger when it goes down because the driver is holding on to the handlebars and the passenger is not. When the State pointed out on cross that the Defendant ended up further down the road than the victim, which would be consistent with him having been the driver, Buchanan stated that his “departure angle” was consistent with him not hitting anything and getting “ejected immediately” when the motorcycle hit the curb, and the victim not getting ejected and staying with the bike longer until she hit the street sign. (ET 49-50). Buchanan explained that the Defendant's “departure angle” was based on where he hit the sidewalk and his final rest position; in turn, the Defendant's final rest position was based on Buchanan's opinion that the Defendant would not have been not able to move after the crash in light of the injuries he had sustained. (ET 51). However, Buchanan conceded that he is not a doctor who could give a medical opinion on whether he could have moved. (ET 53, 54). Buchanan also conceded that both the left handlebar and the Defendant's left wrist were broken. (ET 54-55). As for the victim's injuries, Buchanan acknowledged that she was cut up the middle by the street sign, but claimed that that was not as a result of getting ejected and flying into the street sign, but rather as a result of her “sliding along the ground with the bike down” and being “directly behind the bike, sliding, as she's got the bars.” (ET 55).
The State then presented the testimony of the Defendant's trial counsel McCarthy at the evidentiary hearing. The State questioned her about every alleged inconsistency in Sergeant Guilford's testimony that Buchanan had listed in his report, except for the last one.[FN 3] The first inconsistency involved Sergeant Guilford's original observation of the Defendant's motorcycle, in which he only saw it for a “split second” at a distance of 450 feet and at night, but was still able to estimate its speed as 90-100 m.p.h., and to determine that a female was a passenger on the Defendant's motorcycle as he could see her hair in the wind. However, McCarthy testified at the evidentiary hearing that on cross-examination she asked him “a lot of questions about that, ” and further indicated that she did not need the assistance of an accident reconstruction expert to cross-examine him with regard to this inconsistency. (ET 61).
[FN 3: The last inconsistency in Buchanan's report involved the amount of time it took Sergeant Guilford to arrive at the crash scene. According to his report, Sergeant Guilford testified that he came upon the crash scene and called it in to his dispatch, but the CAD report actually showed that there was “over a one minute delay from the time received until his arrival.” This inconsistency appears to be related to the fifth inconsistency listed in Buchanan's report, which also involved the amount of time it actually took Sergeant Guilford to arrive at the crash scene.]
The second inconsistency involved Sergeant Guilford's inability to see the occupants' faces, or to get the color, make, model or tag number for the Defendant's motorcycle even though he testified that at one point he was only 25 feet away. However, McCarthy testified that she “extensively” cross-examined Sergeant Guilford on this inconsistency, and did not need the help of an accident reconstruction expert. (ET 61). The third inconsistency involved Sergeant Guilford first stating that the Defendant's motorcycle played “bumper cars” with the other motorcycles in order to pass them, but later stating that no contact was actually made. However, McCarthy testified that she got Sergeant Guilford to clarify that the Defendant's motorcycle did not actually make contact with the other motorcycles but was rather just weaving through them. (ET 61-62) She did not need the help of an accident reconstruction expert. (ET 62).
The fourth inconsistency involved Sergeant Guilford's identification of the victim as the passenger, with him initially stating that she was wearing a helmet and later testifying at trial that she was not. However, McCarthy explained that at trial, she established that Sergeant Guilford during his deposition had stated that he could see the victim's hair sticking out of the back of her helmet, when in fact neither the Defendant nor the victim were wearing helmets. McCarthy believed that the inconsistency was “a big deal” and so she “kept bringing it up.” (ET 62). She brought it up in her opening and closing statements, and she also cross-examined Sergeant Guilford on it. (ET 62). She indicated that she was able to get Sergeant Guilford to acknowledge the inconsistency to the jury. (ET 62). She stated that she did not need an accident reconstruction expert to find the inconsistency regarding the helmets. (ET 62-63).
The fifth inconsistency involved the time it took Sergeant Guilford to arrive at the crash scene. According to Buchanan, at trial, Sergeant Guilford testified that he only lost sight of the motorcycle prior to the crash for 10 seconds, but at another point in his testimony he said one minute, and at his deposition he stated a few minutes. She [McCarthy] “just kept laboring the point that he had changed his testimony, it couldn't be a few seconds and he finally admitted that it was longer.” (ET 63). She stated that she did not need an accident reconstruction expert to assist her in bringing out that inconsistency. (ET 63). The sixth inconsistency involved Sergeant Guilford stating in his deposition that it was apparent that the Defendant was driving because the male was closer to the motorcycle at the accident scene, whereas at trial the only reason he gave that the female was the passenger was that she was wearing jeans.[FN 4] With respect to this alleged inconsistency, the State asked McCarthy if she cross-examined Sergeant Guilford about “adding facts at trial that he previously had not testified to.” (ET 64). McCarthy said, “Yes, especially about the clothing because he just came up with new testimony in the trial about what she was wearing.” (ET 64). McCarthy also got Sergeant Guilford to acknowledge that that was the first time that he had mentioned what the victim was wearing. (ET 64). Again, she indicated that she did not need an accident reconstruction expert. (ET 64).
[FN 4: In his report, Buchanan actually said it was during the deposition that Sergeant Guilford made reference to the female wearing jeans, but from the context of the relevant paragraph in the report it appears Buchanan actually meant that Sergeant Guilford's reference to the female wearing jeans was made during trial. See State's Motion for Postconviction Discovery (with attached report).]
McCarthy's testimony at the evidentiary hearing then turned to Corporal Chapman's testimony. She noted that Corporal Chapman was not able to give an expert opinion on who the driver was. As a result, she did not believe that she needed to hire an independent accident reconstruction expert, explaining, “The burden was on the State to prove that Mr. Wood was the one driving, so since Corporal Chapman couldn't say one way or the other I didn't believe the state had enough proof.” (ET 64). She further explained that in her closing statement to the jury, her “theory of the events” was as follows: “My theory was that Corporal Chapman couldn't say who was driving and he was the only one that had [an] expert opinion so . . . there was no one that could really say.” (ET 65). McCarthy also indicated that she pointed out to the jury that the State had promised scientific evidence but was unable to do so. (ET 65).
On cross-examination, the Defendant got McCarthy to acknowledge that at trial, there was not an expert who was able to testify definitively as to who was the driver of the Defendant's motorcycle at the time of the crash. (ET 66). The Defendant also got her to acknowledge that had Buchanan testified at trial, he would have been able to give an expert opinion that the victim Arnett was the driver. (ET 66).
Discussion
In the instant case, the Defendant claims that his trial counsel McCarthy was ineffective for failing to call an accident reconstruction expert as an expert witness. In order for him to obtain postconviction relief from the Court on his claim, he must satisfy the two-prong test set forth in Strickland v. Washington, 104 S.Ct. 2052 (1984). He first must identify particular acts or omissions by counsel that are outside the broad range of reasonable assistance under prevailing professional standards. Id. at 2066. Second, he must also demonstrate prejudice, a reasonable probability that, but for trial counsel's error, the result in the case would have been different. Id. at 2068. A reasonable probability is one sufficient to undermine confidence in the outcome of the case. Id. With respect to the use of expert witnesses, under Florida law, trial counsel is granted “great latitude in decisions regarding the use of expert witnesses.” Franqui v. State, 965 So.2d 22, 31 (Fla. 2007), cert. denied, 128 S.Ct. 2443 (2008). See also Taylor v. State, 120 So.3d 540, 549 (Fla. 2013), cert. denied, 134 S.Ct. 1009 (2014) (quoting Franqui). The defendant has the burden of proving a claim of ineffective assistance of counsel at an evidentiary hearing on a Rule 3.850 motion. Pennington v. State, 34 So.3d 151, 154 (Fla. 1st DCA 2010).
Most of Buchanan's report, and ensuing testimony at the evidentiary hearing, focused on inconsistencies that Buchanan had found in Sergeant Guilford's testimony at trial, from when Sergeant Guilford first spotted the Defendant's motorcycle to when he arrived at the crash scene. This is understandable since Sergeant Guilford was the State's key witness at trial, insofar as he was the only witness who was able to testify to seeing the victim Arnett on the back of the Defendant's motorcycle as a passenger just before the crash. However, at trial, Sergeant Guilford testified as a lay witness, not as an expert, and certainly none of the inconsistencies that Buchanan pointed out involved specialized knowledge that would require the opinion of an expert. Rather, the inconsistencies merely involved the details of Sergeant Guilford's observations as an eyewitness, and included such matters as Sergeant Guilford initially being able to see how many persons were on the motorcycles or which lanes they were in, even though he was 150 yards away and they were traveling about 100 miles per hour; Sergeant Guilford's inability to get the color, make, model or tag number for the Defendant's motorcycle even though he testified that at one point he was only 25 feet away; whether the Defendant's motorcycle was playing “bumper cars” with the other motorcycles in order to pass them; whether or not the victim was wearing a helmet; the amount of time it actually took Sergeant Guilford to arrive at the crash scene; and whether Sergeant Guilford otherwise added facts to his trial testimony that he had previously not testified to. Notably, as indicated, at the evidentiary hearing, McCarthy testified that she did in fact cross-examine Sergeant Guilford on the inconsistencies listed in Buchanan's report, and that she did not need the assistance of an accident reconstruction expert to that end. The trial transcript confirms that at trial McCarthy questioned Sergeant Guilford at length about the inconsistencies during cross-examination, and that McCarthy also pointed out the inconsistencies to the jury during her opening and closing statement. (TT 27-28, 66-92, 300-302).[FN 5]
[FN 5: Citations to the trial transcript will appear as “TT, ” followed by the appropriate page number, e.g., (TT 3).]
Accordingly, the Court finds that the Defendant's trial counsel McCarthy did not render a deficient performance under the first prong of Strickland for not seeking the assistance of an accident reconstruction expert in order to point out inconsistencies in the trial testimony of Sergeant Guilford. As noted, the inconsistencies pointed out by Buchanan all involved matters that clearly would be well within the province of a competent criminal defense lawyer, so her determination that she did not need an accident reconstruction expert to find inconsistencies in Sergeant Guilford's testimony was a reasonable strategic decision, see Chavez v. State, 12 So.3d 199, 208 (Fla.), cert. denied, 130 S.Ct. 501 (2009) (“Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.”), and well within the “great latitude” that counsel is afforded in “decisions regarding the use of expert witnesses.” See Franqui, 965 So.2d at 31. See also Taylor, 120 So.3d at 549 (quoting Franqui). Because there is no deficient performance under the first prong of Strickland, it is not necessary for the Court to address the second prong. See Strickland, 104 S.Ct. at 2069. However, in passing, the Court would note that since McCarthy ably brought out the inconsistencies during her crossexamination [sic] of Sergeant Guilford, and in her opening and closing statement, there is no possible prejudice under the second prong of Strickland. Thus, the Court concludes that the Defendant's trial counsel McCarthy did not render ineffective assistance of trial counsel in this respect and that the Defendant has failed to carry his burden. See Pennington, 34 So.3d at 154.
To be sure, Buchanan's report and testimony at the evidentiary hearing did not merely involve inconsistencies that Buchanan had found in Sergeant Guilford's eyewitness testimony at trial, as his report and testimony also concerned Corporal Chapman's investigation, and, notably, concluded with his expert opinion that the victim Arnett was the driver of the motorcycle at the time of the crash. In this connection, the Defendant in his Post-Evidentiary Hearing Memorandum points out that while Corporal Chapman was not able to give an expert opinion that the Defendant was the driver at the time of the crash, Corporal Chapman otherwise still indicated to the jury that the Defendant was the driver.[FN 6] The Defendant thus urges that Buchanan's expert opinion that the victim Arnett was the driver would have “completely refuted Corporal Chapman's testimony.” Moreover, he points out that he would have had the benefit of expert testimony specifically opining that the victim was the driver, rather than merely being left to argue that Corporal Chapman was unable to give an expert opinion on the issue.
[FN 6: At trial Corporal Chapman stated that he could only make a “reasonable assumption” about who was driving the motorcycle at the time of the accident. (TT 157).]
At the evidentiary hearing, McCarthy explained why she decided that she did not need opinion testimony from an accident reconstruction expert at trial. She testified that her theory of the case during trial was that the State did not have enough proof against the Defendant. As she explained, “The burden was on the state to prove that Mr. Wood was the one driving, so since Corporal Chapman couldn't say one way or the other I didn't believe the State had enough proof.” (ET 64). Since Corporal Chapman could not give an expert opinion on who the driver was, she decided that she did not need to hire an accident reconstruction expert. (ET 64).

         The Court as the finder of fact finds that McCarthy's testimony at the evidentiary hearing was credible, and further finds that her theory of the case-that the State did not have enough proof against the Defendant-was eminently reasonable in light of the instant facts and circumstances. As McCarthy correctly pointed out, the burden of proof was solely on the State at trial. Furthermore, it is clear that the State's case against the Defendant was somewhat weak in terms of physical evidence. At the evidentiary hearing, Buchanan himself noted that among other things, “trace evidence” of any jeans fibers on the motorcycle tank should have been collected during the crash investigation to determine who the driver was. (ET 25). Similarly, at trial, Corporal Chapman stated that he could not give an expert opinion on who the driver was, explaining that there was no DNA, in contrast to an automobile accident in which it is often possible to get DNA from the vehicle. (TT 157). Thus, McCarthy testified that she was able to point out to the jury that the State had promised scientific evidence but was unable to do so. (ET 65). The record confirms that she did this during her closing statement to the jury:

Did they present any scientific evidence to show you what happened? No. They asked, Corporal Chapman testified to you that he could not say scientifically who was riding that bike. He didn't know, he couldn't say. He's an accident reconstruction expert and he can't tell you who was driving, so there's no scientific evidence. He made some suppositions, he said through experience went this way or that way, but he could not give you scientific evidence that she died because Mr. Wood was driving and he couldn't even give you scientific evidence that Mr. Wood was the one driving, so the State did not give you any scientific evidence. There's nothing there.
(TT 299-300). Further, due to the relative paucity of physical evidence, and lack of expert testimony from the State, the State's case hinged in large part upon the credibility of Sergeant Gilford's [sic] eyewitness testimony, but as discussed, McCarthy was also able to point out to the jury numerous inconsistences in his testimony.[FN 7] In short, her theory of the case was wholly reasonable.
[FN 7: As discussed, she was able to do this without needing the assistance of an accident ...

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