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 Duval County. Steven B.
Michael Lloyd Worrell, pro se, Appellant.
Moody, Attorney General, and Julian E. Markham, Assistant
Attorney General, Tallahassee, for Appellee.
Worrell was convicted on seven counts of sexual battery
against two young girls. Worrell filed a postconviction
motion alleging six reasons that his trial counsel was
ineffective, which the postconviction court summarily denied.
On appeal, we affirm the summary denial, but write to address
Worrell's claim that counsel was ineffective for failing
to present the testimony of two doctors who would have
supported his defense.
prevail on an ineffectiveness claim, a defendant must show
that counsel's performance was deficient and prejudicial;
counsel's errors must have been so serious that the Sixth
Amendment's guarantee of counsel was not satisfied and
the defendant was deprived of a fair trial. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). If a
defendant asserts ineffectiveness due to counsel's
failure to call, interview, or investigate witnesses, he must
allege the testimony that could have been elicited from the
witness and how the failure to elicit this testimony caused
prejudice. See Nelson v. State, 875 So.2d 579, 583
(Fla. 2004). If this claim is legally sufficient, an
evidentiary hearing is required unless it is conclusively
refuted by the record. See Franqui v. State, 59
So.3d 82, 95 (Fla. 2011).
claimed that counsel should have called Dr. Neidigh, who had
conducted a psychosexual evaluation of Worrell and would have
testified that he had no propensity to molest children.
Worrell also claimed that counsel should have called Dr.
Kirk, who would have testified that he had treated Worrell,
unsuccessfully, for erectile dysfunction, thus rendering
dubious the victims' allegations.
it will be necessary to hold an evidentiary hearing to
determine why trial counsel did not call a particular
witness." Terrell v. State, 9 So.3d 1284,
1288-89 (Fla. 4th DCA 2009). However, summary denial is
appropriate when the record shows that the defendant knew of
potential witnesses and told the trial court that he did not
wish to call additional witnesses. See McIndoo v.
State, 98 So.3d 640, 641 (Fla. 4th DCA 2012)
("Because his sworn motion indicates that he was aware
of the witness and that witness's testimony prior to
trial, the colloquy to the court conclusively refutes his
claim that his attorney failed to call a known witness
against the appellant's wishes. He is bound by his
answers to the court."). Similarly, in Terrell,
the defendant told the trial court that he did not wish to
call additional witnesses and had not asked counsel to call
or locate any before making contrary claims in his
postconviction motion. 9 So.3d at 1287. The Fourth District
found that the claims were properly denied summarily because
"the defendant assured the court that there were no
other witnesses he wanted to call in his defense" and is
"bound by his sworn answers during the colloquy."
Id. at 1289. At trial, the court asked Worrell if he
wished to call any additional witnesses and Worrell named
two-neither being Drs. Neidigh or Kirk-but stated that they
were unfortunately unavailable. On appeal, he "admits
that during trial . . . he had neglected to recollect that
Drs. [Neidigh and Kirk] and others should have been called as
additional witnesses for his defense." As defendants
cannot go behind their colloquy statements, we cannot permit
them to do so by asserting that they simply forgot about
potential witnesses during trial and now, in postconviction
proceedings, remember them and their potential testimony.
had the record not conclusively refuted Worrell's claims,
he would not be entitled to an evidentiary hearing. Dr.
Neidigh's potential expert opinion testimony as to
Worrell's propensities or characteristics is not
admissible. Section 90.405, Florida Statutes, governs the
admission of character evidence and "does not permit
evidence of character to be made by opinion." Wyatt
v. State, 578 So.2d 811, 813 (Fla. 3d DCA 1991). In
Wyatt, the defendant faced allegations similar to
Worrell and intended to call a clinical psychologist "to
testify that the defendant does not fit the profile of a
pedophile," the trial court excluded the testimony, and
the Third District held that "the defendant sought to
introduce evidence of his character through the expert
opinion of a psychologist, which is not permitted by the
statute." Id. at 812-13. Our rules of evidence
would not have permitted Dr. Neidigh to opine on whether he
believes Worrell has the characteristics of a child molester.
As to Dr. Kirk, who Worrell claims could have testified that
he suffered from erectile dysfunction, the postconviction
court found that any potential deficiency cannot be found to
have prejudiced Worrell. Given that Worrell and his wife both
testified as to this issue, the two victims did not know each
other and gave extremely similar accounts of their
experiences of Worrell bringing them to a hotel to have sex,
and other evidence presented, such as a hotel owner's
testimony that Worrell often rented a room in the most
private area of the hotel, we agree with the postconviction
court that there is not a reasonable probability that Dr.
Kirk's testimony would have changed the outcome of the
claim that counsel was ineffective for failing to present two
witnesses is conclusively refuted by the record, and we
decline to permit defendants to go behind their
representations to the trial court by asserting a lapse in
memory. Even had Worrell's claims not been refuted by the
record, summary denial was proper. Therefore, we affirm the
denial of his postconviction motion.
Osterhaus, and ...