Opinion
Case No. 4D00-912.
Opinion filed October 3, 2001.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Cynthia G. Angelos, Judge; L.T. Case No. 93-842CFA.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Susan Odzer Hugentugler, Assistant Attorney General, Ft. Lauderdale, for appellee.
Appellant's convictions of first degree murder, burglary of a dwelling with a deadly weapon, and dealing in stolen property were affirmed in Akins v. State, 694 So.2d 847 (Fla. 4th DCA), dismissed, 705 So.2d 7 (Fla. 1997). He then moved for post-conviction relief, alleging that his trial counsel was ineffective because he allowed a biased juror to sit. Although the trial court found counsel deficient, the court denied relief because appellant did not demonstrate prejudice. We conclude that this was a structural defect which entitles appellant to a new trial without a showing of prejudice.
In his trial appellant challenged a juror for cause because her answers demonstrated that she would have trouble applying the presumption of innocence and because she admitted that she had been influenced by what she had read about the case in the newspaper. The trial court denied the challenge for cause, but the next day, the state suggested that the juror should be removed and replaced by one of the alternate jurors. The court agreed, but at that point defense counsel, after consulting with appellant, declined the offer. On direct appeal we concluded that the juror should have been removed for cause, explaining:
During voir dire, defense counsel asked Kennedy whether Akins, as he sat in the courtroom that day, was guilty or not guilty. Kennedy responded that she did not know. When asked whether she could presume Akins to be innocent, she responded in the affirmative but added that she believed in capital punishment and stated that she was tired of everything being blamed on race, although she recognized that there is a race discrimination problem in this country. Kennedy stated that she had not heard anything about the case so she did not know whether Akins was innocent; she could not form an opinion without knowing more. Upon further questioning as to whether she had a problem with the presumption of innocence, Kennedy responded, "Well, Like the gentleman said where there's fire there's —."
The defense moved to excuse Kennedy for cause because she could not accept the concept of the presumption of innocence. A colloquy followed during which Kennedy informed the court that she had read about the case in the newspaper. As to whether she had a problem with the presumption of innocence, Kennedy stated, "Well, I sort of feel like other people do that if they're here they're here for a reason." She initially stated that she did not know whether the newspaper stories about the case would affect her judgment, but then admitted that they might. Kennedy conceded that she would have difficulty accepting the concept that Akins was presumed innocent because she remembered the case being quite bad.
Id. at 848.
Although we held that the trial court should have granted appellant's challenge for cause to this juror because of her inability to apply the presumption of innocence, her inability to be fair and impartial, and her uncertainty as to whether she would be free from the influence of the newspaper article she had read about the case, we concluded that the issue had been waived.
After we affirmed, appellant moved for post-conviction relief arguing that his counsel was ineffective for permitting this biased juror to sit. Appellant's original trial counsel could not be located to testify at the hearing on appellant's motion for post-conviction relief; however, the prosecutor in the trial had overheard what had occurred and had written it down. He testified that, after the trial court offered to replace the biased juror, defense counsel asked appellant whether appellant wanted "to have potentially an issue on appeal, or do you want potentially a better juror." Appellant responded that he wanted an issue on appeal and his counsel then rejected the offer. Appellant testified at the hearing that it was his counsel who accepted the panel, not appellant, and that he did not understand what an issue on appeal was at the time of trial.
Generally, under Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on a claim of ineffective assistance of counsel, defendant must establish: (1) counsel made errors so serious that counsel is not functioning as counsel guaranteed by the sixth amendment; and (2) the deficient performance prejudiced the defense. In the present case the trial court found that counsel was deficient in regard to the biased juror, satisfying the first prong of the test, but that appellant did not demonstrate prejudice, i.e., that the result of the proceeding would have been different. Id. at 694.
In Arizona v. Fulminante, 499 U.S. 279, 309 (1991), the United States Supreme Court held that certain "structural defects in the constitution of the trial mechanism" are not subject to harmless error analysis. Prejudice is presumed. The Court gave the following examples:
The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial. Since our decision in Chapman, [ 386 U.S. 18 (1967)] other cases have added to the category of constitutional errors which are not subject to harmless error the following: unlawful exclusion of members of the defendant's race from a grand jury, . . . the right to self-representation at trial, . . . and the right to public trial. [citations omitted.]
Although Fulminante involved a direct appeal, in Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court applied the principle on post-conviction relief. In such cases, the second prong of Strickland need not be satisfied. Prejudice is presumed. Williams v. Taylor, 529 U.S. 362 (2000).
This court recently authorized post-conviction relief, without a showing of prejudice, where counsel misadvised the defendant about his right to a jury trial, and the case was tried non-jury. Abrams v. State, 777 So.2d 1205 (Fla. 4th DCA 2001) (citing McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998) (counsel failed to advise that defendant had right to jury trial)).
The Sixth Circuit has very recently concluded that allowing a biased juror to sit, which is what occurred in the present case, is a structural defect which does not require a showing of prejudice under Strickland. Hughes v. U.S., ___ F.3d ___, 2001 WL 761343 (6th Cir., Jul. 9, 2001). See also, Quintero v. Bell, ___ F.3d ___, 2001 WL 726271 (6th Cir., Jun. 29, 2001) (defense counsel's failure, in an escape prosecution, to object to seven jurors who had previously served on a jury that had convicted defendant's co-escapees, was a structural defect from which prejudice would be presumed).
The dissent states that appellant's "lawyer fairly told him his legal alternatives." We disagree. Counsel's advice that appellant could have "potentially an issue on appeal" was bad advice. By declining the invitation to remove the objectionable juror, appellant waived the issue on appeal. This court so found in Akins. The trial court found as a matter of fact that trial counsel's performance was deficient.
Nor do we agree with the dissent's suggestion that allowing the seating of a juror such as this one is not necessarily reversible error. The dissent disputes that this juror was biased. It is well-settled, however, that a juror who has difficulty with the presumption of innocence raises doubts as to "whether she could be unbiased." Hamilton v. State, 547 So.2d 630, 633 (Fla. 1989). It is equally well settled that this type of error cannot be harmless. Hill v. State, 477 So.2d 553 (Fla. 1985), quoted in Akins.
As to the dissent's criticism of the opinion in Hughes, and its reliance on the dissenting opinion in Hughes, we note that the Hughes dissent did not disagree with the legal analysis of the majority opinion. The dissent in Hughes was only concerned with whether the failure to strike the juror was a strategic decision of counsel and would have remanded for an evidentiary hearing on that issue. The dissent recognized that a new trial was in order if counsel's decision to not strike the juror was not strategic.
We therefore reverse with directions to grant appellant's motion to vacate his conviction.
WARNER, J., concurs.
FARMER, J., dissents with opinion.
I am unable to accept the assertion that defendant has satisfied either of the two requirements necessary to establish a claim of ineffective assistance of trial counsel. Strickland v. Washington, 466 U.S. 668 (1984). Under the first requirement, defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688. Defendant must then show, secondly, a reasonable probability that without an error by counsel the outcome would have been different. 466 U.S. at 694.
Looking first at the requirement of deficient performance, I do not think it clear that counsel's performance necessarily fell below an objective standard of reasonableness. When defendant was offered the chance to remove the offending juror and substitute one with whom defendant had no difficulty, his lawyer fairly told him his legal alternatives: he could accept a "better" juror, or he could roll the dice with an appellate or post conviction issue of the juror sitting on his case. Advised of these alternatives, defendant voluntarily decided to forego the perfect remedy of replacing a juror undesirable to him with another juror who was unobjectionable.
The majority seems to suggest that counsel should also have told defendant that he would lose on appeal because the failure to take the trial judge's offer would be deemed a waiver of the issue on appeal. I think the majority misreads what counsel was overheard to say. He simply outlined what the options were — take a certain offer or take a chance later — to illustrate that defendant was being offered a complete and certain cure for an undesirable juror and that any alternative was at best uncertain. That did correctly state the choice he faced. It did not purport to assess the odds of success as to the alternative.
The majority opinion takes issue with my conclusion this was a correct statement of the alternatives. In context, this was accurate, as far as it purported to go. It did not also purport to advise defendant as to the probabilities of prevailing on the issue on appeal (or, for that matter, on post-conviction relief). My point is that in context what the prosecutor heard was very likely only a fragment of a conversation. The part overheard was reasonably capable of being understood as merely a statement of the alternatives facing defendant during jury selection. If the juror were objectionable, all he had to do was accept the trial judge's offer and substitute jurors. I do not think it necessarily unreasonable merely to illustrate at that point that defendant was being given a perfect remedy for an undesirable juror.
Turning therefore to the second Strickland requirement of prejudice, it is important to recall the justification for the prejudice component of an ineffective-assistance-of-counsel claim. As the Strickland Court explained:
"The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
466 U.S. at 691-92. The "general requirement that the defendant affirmatively prove prejudice," 466 U.S. at 693, is related to the government's role in furnishing competent counsel. As the Court further explained:
"The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense."
The prejudice component is not a search for counsel errors that merely had some conceivable effect on the proceeding. 466 U.S. at 693. The inquiry is centered on whether counsel's error "undermines the reliability of the result of the proceeding" and is "sufficiently serious to warrant setting aside the outcome." 466 U.S. at 693. As the Court pointedly observed:
"It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" [e.s., c.o.]
Strickland, 466 U.S. at 689. More recently the Court added:
"[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel.' Rather, courts must `judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct,' and `[j]udicial scrutiny of counsel's performance must be highly deferential.'" [c.o., e.s.]
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The majority ignores virtually all of these restraints on the post-hoc search for prejudice in ineffective assistance of counsel claims. The majority make none of the required presumptions — in fact, indulging quite the opposite — and the assessment of defense counsel's performance in this case is anything but deferential.
I also question the epistemology of the repeated statements by the majority that the record shows beyond contradiction that the juror was in fact biased. To be sure, this case does not involve a potential juror who had direct knowledge of this defendant — prior knowledge, as it were — or one whose animus or hatred for the defendant was no secret. Instead we confront a stranger from the jury pool whose answers on voir dire examination merely called into question whether her general views were consistent with the current, correct view of the requisite impartiality.
The majority misunderstands my position. I have no idea whether this juror really harbored a true bias against all criminals, or merely some, or only defendant. The record does not purport to contain any such finding, either. The trial judge refused to remove her for cause when the issue was squarely raised, so he obviously did not believe that voir dire examination showed that she was in fact biased. When he did remove her, it was only because the State suggested it would eliminate an issue on appeal. I am confident that the majority does not really mean to suggest that they have resolved the question of the juror's inner thought processes on the basis of the "cold record" and find that she was in fact truly biased. That, of course, would be contrary to the trial judge's superior vantage and his on-the-scene factual resolution.
When on direct review of the conviction we concluded that the trial judge should have excused the juror for cause, we did not do so because the record established that she was in fact biased. Instead we quoted the well known principle that jurors should be removed for cause upon the quite lesser standard of any reasonable doubt as to impartiality. Akins v. State, 694 So.2d 847, 849 (Fla. 4th DCA 1997) ("In this case, juror Kennedy made several statements sufficient to call into question her ability to apply the presumption of innocence and render an impartial verdict."). Thus I do not agree that for purposes of this rule 3.850 motion alleging ineffective assistance of counsel, we should assume that counsel's performance led to the seating of an undeniably biased juror.
The majority concludes that the seating of a single juror whose impartiality may only be "reasonably doubted" constitutes a "structural defect" amounting to ineffective assistance of counsel per se without individualized proof of prejudice. In Strickland, the Court allowed for some counsel errors that could legally be presumed to result in prejudice. 466 U.S. at 692. The Court posed as examples:
"Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent."
466 U.S. at 692. The Court also added:
"One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. . . . [P]rejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" [c.o.]
466 U.S. at 692. More recently in Williams v. Taylor, 120 S.Ct. 1495 (2000), the Court said: "It is true that while the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims, there are situations in which the overriding focus on fundamental fairness may affect the analysis. Thus, on the one hand, as Strickland itself explained, there are a few situations in which prejudice may be presumed. And, on the other hand, there are also situations in which it would be unjust to characterize the likelihood of a different outcome as legitimate `prejudice.'" [e.s.] 120 S.Ct. at 1512. It is clear from these examples that the Court has not adopted the majority's framework of "structural error." The few examples in which prejudice need not be shown, or is initially presumed, all turn on a functional application to discrete circumstances.
The few instances of presumed prejudice relate uniquely to the Sixth Amendment guarantee of counsel, and the ability of counsel to perform the constitutional role when counsel has conflicting loyalties. A denial of counsel, and state interference with counsel's assistance, presumably result in prejudice not because they are "structural errors," but instead because they are "easy to identify and . . . easy for the government to prevent." Strickland, 466 U.S. at 692. In our case, however, any prejudice resulting from incomplete advice on whether to "strike" a prospective juror whom the trial judge has refused to excuse for cause is neither easy to identify nor easy to prevent. Nor is the fact that prejudice will actually result from such a juror serving on the jury "so likely that case-by-case inquiry into prejudice is not worth the cost."
It takes, of course, a unanimous verdict of the entire jury panel to convict. I suppose there are cases where an individual juror's views are so strong that they will conceivably infect those of all other jurors, but this does not strike me as one of them. Typically on direct review we do not treat the seating of a single juror who could have been peremptorily stricken as automatically reversible error. We require that such an error be preserved, which means that the defendant must have requested another peremptory challenge and finally objected to the composition of the jury. To treat such an error as the equivalent of, say, refusing a jury trial altogether, or trying the case without affording counsel, or trying the case before a judge who should have been disqualified, is to cheapen the careful restraints imposed by the Court as to when prejudice may be presumed and to invite countless repetitions of the scenario we face today. Here defendant was afforded a completely effective remedy for an undesirable juror, yet he unreasonably chose to reject the offer. Whether he did so because he really thought he stood a chance on post-conviction relief of getting a new trial years later is beside the point, and we will never know anyway. What we do know is that the record establishes with certainty that he, not his lawyer, is the one who decided to do so, while knowing that he had available an absolutely certain remedy for having his case heard with an objectionable juror on the panel. Any prejudice from this juror participating arises not from counsel but from defendant's own choice.
Peremptory challenges to jurors are a routine feature in criminal appeals. We do not very often require new trials on this issue, even when some appellate judges think the juror disqualified for cause. We still require a defendant to exercise a peremptory challenge or request an additional one just for that juror. Here the judge offered just such an additional challenge beyond those already allocated. Thus defendant was effectually given the chance to have the juror excused just as she would be for cause, and without any penalty to defendant and his bag of peremptory challenges. Defendant himself chose to reject the offer, not his lawyer. Why this should be thought ineffective assistance of counsel is not at all clear to me.
It is very difficult to believe that defendant was truly prejudiced by having this juror on the panel. From the record it seems far more likely that the result came from the evidence rather than because of this single juror. We almost never grant post conviction relief when a lawyer's decision at trial is strategic or tactical. Here it is the free and knowing, strategic and tactical decision of the defendant himself that we are using as the basis for a new trial on the theory that he was deprived of effective assistance of counsel.
I would not adopt Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), in Florida. I do not think much of the decision as authority for the kind of categorical decision the majority makes. It could end up affecting a number of convictions. There is a strong dissent in Hughes making the point that the record there does not dispel the presumption that it was a tactical decision not to dismiss a doubtful juror. In fact the assertion that the defendant asked counsel to object to the juror is apparently not supported by any evidence, not even an affidavit from defendant himself that he did so.
Moreover the majority's rationale in Hughes is hinged on the notion that it is not counsel's error to fail to object to a juror whose impartiality might be doubted — it is the duty of the trial judge to do so. That is not the rule in Florida, and I strongly doubt that it is constitutionally compelled. It neglects the many possible other reasons that might have led counsel to forego an objection — including, as the dissent recognized, that counsel may have known something about the juror that dissuaded him from doing so. Hughes, 258 F.3d at 465 ("[T]he silence by juror Orman in light of other additional questions on voir dire . . . is still further proof that perhaps counsel knew something about the juror of which we are not aware."). Nor has the Hughes majority explained with convincing logic why Strickland would allow for a broader category of "structural error" beyond the few examples set forth in the opinion.
I therefore respectfully dissent and would affirm.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.