Opinion
Case No. 5D18-2786
10-11-2019
George FIELDS, Appellant, v. STATE of Florida, Appellee.
Matthew J. Troccoli, of Law Offices of Matthew Troccoli, P.A., Miami, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
Matthew J. Troccoli, of Law Offices of Matthew Troccoli, P.A., Miami, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, J.
George Fields appeals from a final order denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. For the following reasons, we affirm.
In May 2010, Fields shot and killed Rayshon Kenerly. He was indicted for first-degree murder with a firearm and was later convicted after trial of the lesser-included offense of second-degree murder with a firearm. Fields was sentenced to serve life in prison with a twenty-five-year mandatory-minimum provision. His direct appeal of this conviction and sentence was affirmed by this court without opinion. Fields v. State , 181 So. 3d 505 (Fla. 5th DCA 2015).
Fields then timely filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, in which he raised four grounds for relief. He asserted that his trial counsel rendered constitutionally ineffective assistance by: (1) failing to object to and essentially conceding to a self-defense jury instruction that, in Fields's view, incorrectly instructed the jury that he had a duty to retreat before using deadly force; (2) failing to file a pretrial "Stand Your Ground" motion to dismiss under section 776.032(1), Florida Statutes (2010), arguing that he was immune from prosecution because his use of deadly force was justified; (3) failing to call Fields's brother, Terry Fields ("Terry"), to testify as a witness at trial; and (4) failing to move for a mistrial due to the alleged misconduct of one of the jurors. The postconviction court held an evidentiary hearing on the third ground, at which Fields, his brother, and his trial counsel testified. The court then entered the final order now under review, denying all grounds raised in the motion. In this appeal, Fields is challenging the denial of grounds one, two, and three.
The altercation that led to Kenerly's death was over money allegedly owed to him by Terry, who ran a car detailing business that was owned by Fields. Kenerly believed that Terry owed him $20 for some car detailing work that he had done, and he arranged to meet with Fields and his brother to collect his money. Fields and Terry drove to meet Kenerly; at which point, Terry handed Kenerly $10. Kenerly was upset about not being paid in full; and, shortly thereafter, he made several heated phone calls to Terry, demanding the additional $10. During one of these calls, Kenerly allegedly threatened to kill Terry.
Fields and Terry decided to meet again with Kenerly. They left home and drove back to the same location. Kenerly was still present at this site and was accompanied by his brother, Jerome Kenerly. Trial testimony conflicted over what happened next. Fields testified that Terry exited the car and that as he and Kenerly were about to get into a fight, Fields saw Kenerly reach towards his back pocket to remove what Fields perceived to be a gun. Fields warned Kenerly to get his hand out of his pocket, to no avail. Fearing that his brother was about to be shot and being in fear himself, Fields pulled out his own gun and shot Kenerly several times, resulting in his death.
Contrary to Fields's testimony, the State presented evidence that as Fields and his brother were driving up to the eventual site of the shooting, Fields already had his gun sticking out of the car window. Then, after stopping his vehicle, Fields exited with gun in hand, approached Kenerly, and shot him seven times, including twice when Kenerly was lying on the ground. Additionally, the State presented evidence that Kenerly never removed his gun from his back pocket. Fields also gave a statement to law enforcement, which was admitted into evidence at trial, in which he told them that he shot Kenerly with Kenerly's gun. Fields later explained to the jury that he had lied to the police because, as an eight-time convicted felon, he could not lawfully possess a firearm.
Fields's sole defense was that his use of deadly force in killing Kenerly was justified in his defense of Terry. As previously mentioned, his trial counsel did not file what is commonly referred to as a Stand Your Ground pretrial motion to dismiss under section 776.032(1), Florida Statutes (2010). This statute provides a person with immunity from criminal prosecution if he or she uses such force as permitted under sections 776.012, 776.013, or 776.031, Florida Statutes, which, pertinent here, could include Fields's use of deadly force in defending his brother.
Instead, Fields's claim of self-defense was presented to the jury. On this issue, the jury was instructed as follows:
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which George Lee Fields is charged if the death of Rayshon Kenerly resulted from the justifiable use of deadly force.
"Deadly force" means force likely to cause death or great bodily harm.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1. imminent death or great bodily harm to himself or another.
However, the use of deadly force is not justifiable if you find:
1. George Lee Fields initially provoked the use of force against himself, unless:
a. The force asserted toward the defendant or another was so great that he reasonably believed that he or another was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on Rayshon Kenerly.
....
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.
The underlying bases or predicates asserted by Fields in the first two grounds of his rule 3.850 motion for relief due to ineffective assistance of counsel are, according to Fields, "nearly identical." In his first argument, Fields contends that, under the facts of the case, he had no duty to retreat before using deadly force and that, therefore, his counsel should have objected to the aforementioned jury instruction that required he exhaust every reasonable means to escape before using deadly force. Fields asserts that not only was the instruction erroneous, it was especially prejudicial to him because he did not try to retreat before shooting Kenerly. Fields argues in his second ground for relief that he was prejudiced when counsel did not file a Stand Your Ground motion to dismiss. Fields contends that this motion, if filed, would have been granted because, based on the facts of the case, he had no duty to retreat and his use of deadly force in shooting Kenerly was justified. Fields separately asserted in this second ground that his trial counsel incorrectly advised him that, as a convicted felon, he was prohibited from filing a motion for immunity from prosecution under section 776.032.
For an ineffective assistance of counsel claim to be successful, a defendant must establish both deficient performance by counsel and prejudice as a result. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The deficient performance prong in Strickland requires a showing that the lawyer's particular acts or omissions were outside the broad range of reasonably competent performance under prevailing professional standards such that "counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. The second, or prejudice, prong under Strickland requires that a defendant show that his or her counsel's deficient performance so affected the fairness and reliability of the proceeding that confidence in the outcome of the trial is undermined. Id. Stated simply, a defendant must demonstrate that there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. As we explain below, Fields is not entitled to relief because his counsel's performance was not deficient.
Critical to understanding Fields's first ground for relief is the specific language that was contained in the 2010 version of section 776.012, Florida Statutes (2010), which was in effect when he shot and killed Kenerly. Fields correctly points out that in 2010, this statute did not require that a person retreat before using deadly force. In pertinent part, the statute read:
[A] person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony ....
At the time, there was a bit of an anomaly in the law because a separate statute, section 776.013(3), Florida Statutes (2010), provided that a person who was not engaged in unlawful activity had the right to stand his or her ground with deadly force and without a duty to retreat, if the person reasonably believed such force was necessary to prevent death or great bodily harm to himself or herself or another. In contrast, section 776.012 did not have this "unlawful activity" proscription. In 2014, the Florida legislature amended section 776.012, to read consistently with section 776.013, that for a person to be able to use deadly force without a duty to retreat, he or she must not be engaged in criminal activity. However, because Fields's use of deadly force occurred in 2010, the pre-2014 version of section 776.012 applies. See Miles v. State , 162 So. 3d 169, 171–72 (Fla. 5th DCA 2015) (holding that under the pre-2014 version of section 776.012, a defendant was allowed to raise a Stand Your Ground defense even if he or she had been engaged in unlawful activity at the time of the offense and irrespective of the "unlawful activity" prohibition found in section 776.013(3) ).
Fields thus contends that his counsel was ineffective for conceding to the use of this erroneous jury instruction as it improperly contained a requirement that he had a duty to retreat before using deadly force. Fields submits that he was prejudiced by his counsel's inaction because he admittedly did not attempt to retreat before shooting Kenerly.
In denying this first ground, the postconviction court found that counsel was not ineffective because the trial court had properly instructed the jury. It held that under section 776.041(2), Florida Statutes (2010), Fields did have a duty to retreat before using deadly force here because the State had presented competent evidence at trial that Fields was the initial aggressor in the altercation that resulted in Kenerly's death. Section 776.041, titled "Use of force by aggressor," specifically provides in pertinent part that
[t]he justification described in the preceding sections of this chapter is not available to a person who:
....
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant ....
In State v. Floyd , 186 So. 3d 1013 (Fla. 2016), our supreme court explained that section 776.041's language that the "justification described in the preceding sections of this chapter is not available to a person" refers to a person's use of such force under sections 776.012–.013 and 776.031–.032, regarding the defense of the person, the defense of others, the person's right to stand one's ground, and the associated immunities. Id. at 1020. The court further held that if there is an evidentiary question at trial as to whether a defendant was the initial aggressor, then the standard jury instruction applying this statute accurately and correctly instructs that if the jury finds that the defendant was the initial aggressor, then the defendant first had a duty to use all reasonable means of escaping from the danger prior to using deadly force. Id. at 1021–22.
Fla. Std. Jury Instr. (Crim) 3.6(f).
Thus, in determining whether the postconviction court erred in holding that Fields's trial counsel was not ineffective, we must first address whether the complained-of jury instruction was a correct instruction of the law and gave the jury sufficient guidance to allow it to reach a verdict based on the evidence before it. See id. at 1018–19 (noting that jury instructions need not be academically perfect, but they must be sufficient to provide adequate guidance to enable the jury to arrive at a verdict based on the law as applied to the evidence before it (citing State v. Bryan , 287 So. 2d 73, 75 (Fla. 1973) )). If so, Fields's counsel's failure to object to the instruction would not constitute deficient performance.
Here, the jury was instructed that Fields was justified in using deadly force against Kenerly if he reasonably believed it necessary to prevent imminent death or great bodily harm to himself or another. Second, the instruction made no mention of Fields's status as a convicted felon in the context of his ability to justifiably use deadly force. Third, the only caveat contained in the instruction was that the use of deadly force was not justifiable if Fields was the initial aggressor, unless the force being used against him or another was so great that he reasonably believed that he or another was in imminent danger of death or great bodily harm, and he had exhausted every reasonable means to escape the danger other than by using deadly force. Put differently, if the jury did not believe Fields to be the initial aggressor, then the instruction, as given, allowed the jury to find that Fields was justified in his use of deadly force to defend his brother and thereafter to acquit him. Because the evidence at trial presented a jury question as to whether Fields was the initial aggressor, we conclude that the instruction was appropriate under Floyd and that it provided the jury with sufficient guidance as to the law to apply to the evidence before it. Accordingly, we agree with the postconviction court that Fields has not shown in ground one of his motion that his counsel was ineffective in failing to object to the jury instruction.
Fields's second ground for relief in his motion and his appeal is that his trial counsel was ineffective for not filing a pretrial motion to dismiss under section 776.032, arguing that he was immune from criminal prosecution for his justifiable use of deadly force. Much like in the first ground of his motion, Fields asserts that his use of deadly force against Kenerly was justified under the 2010 version of section 776.012. Therefore, he reasons that had his counsel filed the motion, it would have been granted and the criminal prosecution against him would have terminated. Fields also argues that his counsel incorrectly advised him that he was unable to file this Stand Your Ground motion because he was a convicted felon.
Although the postconviction court did not set this ground for an evidentiary hearing, Fields's postconviction counsel actually questioned Fields's trial counsel under oath at the hearing held on ground three of his motion why he did not file this pretrial Stand Your Ground motion. As the court wrote in denying this ground, trial counsel testified that because Fields initially lied to law enforcement that he shot Kenerly with Kenerly's gun and also told them that Kenerly had his gun out during the incident, which was not supported by the physical evidence, and with Fields being a convicted felon, he did not reasonably believe that the trial court would have granted the motion to dismiss, if filed.
It appears that Fields is correct that his counsel's position that a convicted felon could not pursue this type of motion was flawed because the 2010 version of section 776.012(1) did not preclude a convicted felon from using a firearm in the defense of another. However, the dispositive issue before us is whether it was likely that such a motion to dismiss, if filed, would have been granted. If not, then Fields is not entitled to relief under Strickland because, by definition, his counsel's performance was not deficient by the failure to file what essentially would have been a meritless motion. See Teffeteller v. Dugger , 734 So. 2d 1009, 1023 (Fla. 1999) (holding that "[t]rial counsel cannot be deemed ineffective for failing to raise meritless claims or claims that had no reasonable probability of affecting the outcome of the proceeding").
In its order, the postconviction court specifically found that, had the Stand Your Ground motion to dismiss been filed, it would have been denied. It attached to the denial order court records from trial that, in addition to trial counsel's testimony at the rule 3.850 hearing, conclusively support its determination that a pretrial motion to dismiss based upon the applicable Stand Your Ground law, if filed, would have been denied by the trial court. Accordingly, because Fields has not shown error in the postconviction court's analysis or its ruling, or otherwise demonstrated under Strickland that his trial counsel was ineffective, we affirm the denial of the second ground of his motion.
The postconviction court also cogently noted in its order that Fields has not alleged that he would have presented evidence at a pretrial evidentiary hearing on a motion to dismiss different than what he presented at trial.
Fields next argues that the postconviction court erred in finding that he failed to prove that his counsel was ineffective for not calling his brother, Terry, to testify at trial. Fields asserts that based on the testimony presented at the rule 3.850 hearing, if Terry had been called to testify at trial, he would have established, among other things, that: (1) Kenerly was the aggressor, (2) Fields did not brandish a firearm upon arriving at the scene prior to the shooting, (3) Terry was in fear of Kenerly, (4) Fields was trying to act as a peacemaker by attempting to pay Kenerly the additional $10 owed, (5) Fields admonished Kenerly to remove his hand from his back pocket from where Kenerly was attempting to produce a firearm, and (6) Kenerly had a propensity for violence. Fields asserts that this testimony would have significantly buttressed his self-defense claim and, in all likelihood, would have resulted in an acquittal.
Fields's trial counsel was the final witness at the rule 3.850 hearing. Counsel explained that after consulting with Fields, he ultimately made a strategic decision not to call Terry as a witness. Counsel was concerned that Terry, who is also a convicted felon, had earlier given conflicting statements that he was not in fear of Kenerly at the time and that it was not Kenerly, but a different person, that he saw with a gun. Counsel also testified that Terry too lied to law enforcement about certain facts of this case. Counsel was additionally concerned that if he called Terry as a witness, Terry's testimony could undercut statements that Fields himself had previously provided to law enforcement, thus weakening Fields's claim of self-defense.
In denying this ground for relief, the postconviction court made extensive findings of fact, thoroughly detailed the testimony presented at this hearing from both Fields and his brother, and thereafter evaluated this testimony against the testimony given by Fields's trial counsel. The court specifically found that counsel's testimony on whether or not to call Terry as a witness was far more credible than that of either Fields or his brother, as it was entitled to do. See Moore v. State , 458 So. 2d 61, 61 (Fla. 3d DCA 1984) (recognizing that in a rule 3.850 evidentiary hearing, the trial court may reject the defendant's testimony in favor of conflicting testimony from trial counsel). The court also essentially found that any discrepancy between trial counsel's testimony and that of Fields and his brother on the underlying facts of the case, as well as counsel's decision not to call Terry as a witness, was resolved against Fields, a finding to which we must give great deference. See Riggins v. State , 830 So. 2d 920, 921 (Fla. 4th DCA 2002) (recognizing that "the trial court is in the best position to evaluate the credibility of witnesses" and that appellate courts are "obligated to give great deference to the findings of the trial court" (citing Porter v. State , 788 So. 2d 917, 923 (Fla. 2001) )).
Under Strickland , there is a strong presumption that trial counsel's performance was not ineffective and that a court's scrutiny of the attorney's performance "must be highly deferential." 466 U.S. at 689, 104 S.Ct. 2052. Here, the record readily shows that Fields's counsel evaluated the benefit versus the detriment in calling Terry as a witness and then made a strategic decision not to call Terry because, in his view, Terry's testimony could potentially undermine Fields's self-defense claim. Strickland cautions that a trial attorney's professional judgment on whether to call a witness at trial is typically not subject to postconviction second-guessing. 466 U.S. at 689–90, 104 S.Ct. 2052 ; see also Occhicone v. State , 768 So. 2d 1037, 1048 (Fla. 2000) ("[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." (citing Rutherford v. State , 727 So. 2d 216, 223 (Fla. 1998) ; State v. Bolender , 503 So. 2d 1247, 1250 (Fla. 1987) )); Kenon v. State , 855 So. 2d 654, 656 (Fla. 1st DCA 2003) ("Absent extraordinary circumstances, strategic or tactical decisions by trial counsel are not grounds for ineffective assistance of counsel claims.").
The postconviction court found that as to his claim that counsel was ineffective for failing to call Terry to testify at trial, Fields had failed to establish either prong required under Strickland . We conclude that no reversible error has been shown in this ruling.
AFFIRMED.
EDWARDS and EISNAUGLE, JJ., concur.