Opinion
No. 98-4752.
Opinion filed October 4, 1999.
An appeal from the Circuit Court for Washington County, Russell A. Cole, Jr., Judge.
Pro se, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
Appellant, Darrell Monson (Monson), serving a sentence of fifteen years as an habitual offender for a burglary conviction, appeals the trial court's order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. As grounds for relief, Monson asserts seven claims of ineffective assistance of counsel, only two of which merit discussion. First, Monson alleges counsel was ineffective for failing to object to, or properly question during voir dire, three veniremen having various ties to law enforcement who were later seated as jurors, and as a result he was prejudiced because there is a reasonable probability the trial result would have been different had defense counsel properly conducted voir dire. Second, Monson alleges counsel advised him incorrectly of the permissible scope of cross-examination by the State regarding his prior criminal convictions if he chose to testify, and as a result he was prejudiced because the outcome of the trial would have been different had he testified as intended. These two claims are facially sufficient allegations of ineffective assistance of counsel that require the trial court to conduct an evidentiary hearing or attach to its order portions of the record that conclusively show Monson is not entitled to relief. Strickland v. Washington, 466 U.S. 668, 687 (1984); Smith v. State, 699 So.2d 629, 636 (Fla. 1997); Harich v. State, 484 So.2d 1239, 1240 (Fla. 1986); Jennings v. State, 685 So.2d 879, 880 (Fla. 2d DCA 1996). Because the trial court erred by failing to implement one of these two alternatives, we reverse.
As to the first ground, Monson alleges that during voir dire, venireman Pippin stated she had close friends who worked for the Sheriff's Office; venireman Laca stated she was related through her spouse to an employee of the State Attorney's Office prosecuting Monson's case; and venireman Peel stated he was an Inspector for the Parole and Probation Commission and personally knew Officer Bickers, a witness in the case. Monson was on probation at the time of the instant offense. Counsel did not peremptorily challenge any of these veniremen, nor did he conduct questioning to determine whether grounds existed to challenge any of these veniremen for cause.
When it is known that law enforcement officers may testify, veniremen should be questioned to determine whether there is any predisposition to give greater weight to the testimony of law enforcement officers. Smith, 699 So.2d at 636. The relevant inquiry is whether a venireman can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions of law given by the court. Id. A venireman must be excused for cause if any reasonable doubt exists as to whether he or she possesses an impartial state of mind. Id.; Bryant v. State, 656 So.2d 426, 428 (Fla. 1995). The record before this court is devoid of any questioning regarding possible bias in favor of law enforcement on the part of veniremen Pippin, Laca, or Peel. Counsel's failure to object to the seating of these three veniremen as jurors, without conducting a more extensive examination into possible bias, was facially deficient and prejudiced Monson. Because Monson's claim is not conclusively refuted by the record, we remand for an evidentiary hearing or attachment of additional portions of the record conclusively refuting this claim. Harich, 484 So.2d at 1240.
Addressing the second ground, Monson alleges that during the trial, he informed counsel he wanted to testify that he had not committed the burglary; that he was homeless; and that he had been living in the abandoned house near the burglarized home at the time of his arrest, rather than hiding there as suggested by the State. Counsel advised Monson not to testify, stating that if he did, the State could bring up his prior record and the details of his past crimes. Monson alleges that, but for counsel's advice, he would have testified.
Advice by defense counsel to a defendant that details of a defendant's past crimes would be presented to the jury if a defendant testifies constitutes deficient performance, falls below the level of competence which ensures a defendant a fair trial, and constitutes a sufficiently pleaded claim of ineffective assistance of counsel. Jennings, 685 So.2d at 880. Attempting to refute this allegation, the trial court entered its order determining that, had Monson testified, the State could have brought out similar fact evidence and his prior criminal record. The order further provided that "[g]iven the Defendant's prior criminal record, trial counsel's advice that the Defendant not testify is not ineffective assistance of counsel." The trial court misapprehends Monson's claim. Monson alleges trial counsel advised him that if he testified, details of his prior crimes would be presented to the jury. Monson's claim is not conclusively refuted by the record. We therefore remand for an evidentiary hearing or attachment of additional portions of the record conclusively refuting this claim. Harich, 484 So.2d at 1240.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
ERVIN and LAWRENCE, JJ., CONCUR.