FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Citrus County, Richard A.
Charles Washer, Cross City, pro se.
Moody, Attorney General, Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona Beach, for Appellee.
Washer appeals the denial of his motion for postconviction
relief. Washer was convicted of discharging a firearm from a
vehicle, shooting into a dwelling, fleeing and attempting to
elude, and five counts of aggravated assault with a firearm.
This Court affirmed those convictions on appeal. Washer
v. State, 234 So.3d 776 (Fla. 5th DCA 2017).
subsequently moved for postconviction relief, alleging four
grounds of ineffective assistance of trial counsel. The lower
court summarily denied Washer's motion. On appeal, this
Court reversed and remanded for an evidentiary hearing on
grounds one and two, in which Washer alleged ineffective
assistance based on counsel's failure to: (1) request a
self-defense jury instruction, and (2) investigate and
present GPS data related to his theory of self-defense.
Washer v. State, 252 So.3d 858, 858-59 (Fla. 5th DCA
2018). Following the evidentiary hearing on grounds one and
two, the lower court denied Washer's motion. We reverse
and remand for a new trial on all counts except the fleeing
and attempting to elude charge.
charges against Washer stemmed from a domestic violence
incident involving Washer's estranged wife, daughter,
stepson, and stepson's friends. At trial, every witness
except Washer testified that Washer drove to his wife's
home and punctured his stepson's friend's car tire
with a knife. Washer's stepson confronted Washer outside
the home and struck Washer multiple times with an axe
handle. According to the State's witnesses,
Washer drove away from the home but returned shortly
thereafter and fired multiple gunshots into the home.
Washer's recitation of events, he denied damaging the
or driving away from the home after being hit with the axe
handle. He did not deny firing gunshots into the home, but
instead asserted that he was assaulted from behind without
provocation and discharged the gun in self-defense.
order to have been successful on his ineffective assistance
of counsel claim, Washer was required to demonstrate
deficient performance by his trial counsel and prejudice as a
result. See Strickland v. Washington, 466 U.S. 668,
evidentiary hearing, related to ground one, Washer's
counsel testified that he thought Washer had a
"bad" self-defense case, so he opted to present a
diminished capacity defense instead. Further, counsel
testified that he believed a pure self-defense instruction
would not be available based on the evidence presented.
However, on cross-examination counsel acknowledged that he
argued self-defense during his closing argument. He explained
that he did not ask the trial court for a self-defense jury
instruction because the "instruction for self-defense is
awful." Counsel testified that in his experience,
sometimes the better strategy is to argue to a jury without
the use or benefit of corresponding jury instructions.
lower court denied Washer relief on ground one, finding that
counsel made a strategic decision not to ask for the
self-defense instruction based on the evidence presented at
trial and could not have requested a self-defense jury
instruction in good faith. It ruled that the greater weight
of the evidence showed that counsel could not have argued for
the instruction "and not looked like a buffoon in front
of the jury and in front of this court."
reject the lower court's finding that counsel's
failure to request the self-defense instruction was a
reasonable defense strategy. "[S]trategic decisions do
not constitute ineffective assistance of counsel if
alternative courses have been considered and rejected and
counsel's decision was reasonable under the norms of
professional conduct." Occhicone v. State, 768
So.2d 1037, 1048 (Fla. 2000) (citations omitted). We can
fathom no sensible, strategic reason for counsel to argue
self-defense during Washer's closing argument but opt not
to request a self-defense jury instruction. See Kruse v.
State, 222 So.3d 13, 17 (Fla. 4th DCA 2017) (reversing
for new trial where defense counsel elicited testimony from
defendant and third party that victim was aggressor and
defendant's closing argument could have reasonably
comported to self-defense theory; the court was "hard
pressed to surmise what possible strategic reason counsel had
to not request a self-defense jury instruction").
Counsel's assessment that the instruction is
"awful" is insufficient.
no witnesses disputed that Washer was hit multiple times with
an axe handle, and Washer testified that he fired in
self-defense from that attack, had counsel requested the
self-defense instruction, contrary to the lower court's
finding, Washer would have been entitled to it. See
Wagers v. State, 199 So.3d 1116, 1117 (Fla. 5th DCA
2016) ("If there is any evidence to support a theory of
self-defense, the trial court should give the requested
instruction 'however flimsy the evidence is which
supports that theory . . . or however weak or improbable
[the] testimony may have been.'" (quoting Arthur
v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998))).