author: KELLUM, Judge.

text:
    STATE of Alabama v. Frank M. KERLEY
    Frank M. Kerley v. State of Alabama
    CR-16-0740
    Court of Criminal Appeals of Alabama.
    December 15, 2017 Rehearing Denied February 2, 2018 Certiorari Denied March 16, 2018
    Alabama Supreme Court 1170444
    Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant/cross-appellee State of Alabama.
    William R. Myers, Birmingham; and Robert G. Boliek, Jr., Birmingham, for appellee/cross-appellant Frank M. Kerley.
   KELLUM, Judge.

The State of Alabama appeals the circuit court's order granting Frank M. Kerley's Rule 32, Ala. R. Crim. P., petition for postconviction relief on one of the claims in Kerley's petition. Kerley cross-appeals the circuit court's denial of the other two claims raised in his petition.

Facts and Procedural History

In 2014, Kerley was convicted of one count of first-degree sexual abuse of M.L. and one count of first-degree sexual abuse of J.H. See § 13A-6-66(a)(1), Ala. Code 1975. The trial court sentenced Kerley to five years' imprisonment for each conviction. This Court affirmed Kerley's convictions and sentences on direct appeal in an unpublished memorandum issued on April 10, 2015. Kerley v. State (No. CR-13-1628), 213 So.3d 611 (Ala. Crim. App. 2015) (table).

This Court issued a certificate of judgment on September 18, 2015.

In our unpublished memorandum affirming Kerley's convictions and sentences, this Court set out the evidence presented at trial by the State:

"The record indicates the following pertinent facts. Kerley was married to E.K., the mother of J.H. and M.L., and lived with E.K., J.H., and M.L. in Jefferson County. E.K. was a nurse and worked the night shift in a hospital on weekends. While E.K. worked, Kerley would keep M.L. and J.H. at home.
"M.L. testified that on her ninth birthday-January 2, 2002-the first incident of sexual abuse by Kerley occurred. M.L. and Kerley were lying on the sofa watching television together when Kerley began to 'rub ... his penis against [her] butt.' (R. 43.) M.L. indicated that they were both clothed and that Kerley told her that 'this is what dads and daughters did on their ninth birthday.' (R. 44.) E.K. was at work and Kerley and M.L. were alone in the house at the time this incident occurred.
"M.L. testified that, on multiple occasions, Kerley would enter her bedroom to read her a bedtime story. Inside the bedroom, Kerley would 'grind his penis on [M.L.'s] vagina area.' (R. 45.) At first, Kerley touched M.L. while she wore clothes but the abuse progressed to the point where M.L. was unclothed. Kerley told M.L. that it was 'really hot' in the room and told M.L. to undress, making 'it seem like it was part of the bedtime story.' (R. 45.) Kerley used his hands to touch M.L.'s breasts and vagina. Kerley also penetrated M.L.'s vagina with his fingers.
"M.L. testified that Kerley had his clothes on when these incidents first began; however, as the abuse progressed, Kerley would sometimes not wear any pants or underwear. Kerley would tell M.L. to hold his penis. M.L. testified that she did as Kerley asked because she did not know what else to do. M.L. indicated that these incidents continued until she was 12 years old. M.L. did not tell anyone about the abuse because Kerley threatened to kill M.L.'s family if she ever disclosed the abuse.
"J.H. was 8 years old and had her own bedroom down the hall from M.L. when Kerley began abusing J.H. J.H. testified that she would be asleep in her room and would be awakened by Kerley touching her breasts and vagina with his fingers; the touching occurred both over and underneath J.H.'s clothing. After Kerley touched J.H., he would tell her that she 'was loved.' (R. 86.) J.H. testified that Kerley would touch her a couple of times each month. These incidents ended when J.H. was either 12 or 13 years old and moved in with her father to escape Kerley's abuse. When J.H. moved, she wrote E.K. a letter and explained that she no longer wanted to live with E.K. anymore. J.H. did not tell anyone about the abuse because Kerley said that E.K. would be angry at her. M.L. and J.H. eventually confided the abuse to each other and the two contacted the police."

Although Kerley did not testify on his own behalf at trial, he called two witnesses in his defense, and, through their testimony as well as through cross-examination and argument, Kerley denied the sexual-abuse allegations, asserted that M.L. and J.H. had made up the allegations against him at the urging of their mother, who was fighting Kerley for custody of M.L.'s and J.H.'s half sister at the time M.L. and J.H. had made the allegations against him in September 2010, and attacked M.L.'s and J.H.'s credibility, including presenting evidence impeaching portions of M.L.'s and J.H.'s testimony. For example, Kerley presented evidence indicating that the layout of the house that he shared with E.K., M.L., and J.H., was not as M.L. had testified; that he and M.L. were not alone in the house on her ninth birthday, as M.L. had testified; and that M.L. and J.H. had lived with their father for several months in the summer of 2003, contrary to their testimony that they had spent only two weeks with their father that year.

On September 19, 2016, Kerley, through counsel, timely filed the instant Rule 32 petition. He filed an amendment on December 21, 2016, and a second amendment on March 24, 2017. In his petition and amendments, Kerley alleged that his trial counsel was ineffective for allegedly: (1) not requesting a unanimity instruction; (2) not calling his brother to testify and not eliciting testimony from his sister that M.L. had recanted her allegations of sexual abuse; and (3) not calling to testify Kerley's adult daughter to refute M.L.'s testimony that she was abused on her ninth birthday. On January 13, 2017, the State filed a response and a motion to dismiss Kerley's petition and first amendment, arguing that the claims raised therein-claims (1) and (2), as set out above-were insufficiently pleaded and meritless.

On March 15, 2017, the circuit court conducted an evidentiary hearing on Kerley's petition. On March 29, 2017, the circuit court issued an order granting Kerley's Rule 32 petition and setting aside his convictions and sentences on the ground that his trial counsel had been ineffective for not requesting a unanimity instruction, claim (1), as set out above; the circuit court found that claims (2) and (3), as set out above, had no merit. On April 25, 2017, both the State and Kerley filed motions to reconsider the circuit court's judgment. The circuit court did not issue a ruling on either motion; therefore, both motions were denied by operation of law 30 days after the circuit court's March 29, 2017, order. See, e.g., Loggins v. State, 910 So.2d 146, 148-49 (Ala. Crim. App. 2005). On April 7, 2017, and May 5, 2017, respectively, the State and Kerley filed notices of appeal.

Standard of Review

"[W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.' " Boyd v. State, 913 So.2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim. App. 1992) ). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). Additionally, "where a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, the ore tenus standard's presumption of correctness does not apply to the trial court's factual findings and it is the duty of the appellate court to judge the evidence de novo." Ex parte Horn, 718 So.2d 694, 705 (Ala. 1998).

Likewise, where a trial court makes its judgment based on the "cold trial record," no presumption of correctness applies to the trial court's findings, and the appellate court must review the evidence de novo. Ex parte Hinton, 172 So.3d 348, 353 (Ala. 2012).

" 'The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.' Davis v. State, 9 So.3d 514, 519 (Ala. Crim. App. 2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). '[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.' Wilson v. State, 644 So.2d 1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that '[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.' "

Wilkerson v. State, 70 So.3d 442, 451 (Ala. Crim. App. 2011).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his or her counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. "To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances." Ex parte Lawley, 512 So.2d 1370, 1372 (Ala. 1987). " 'This court must avoid using "hindsight" to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance.' " Lawhorn v. State, 756 So.2d 971, 979 (Ala. Crim. App. 1999) (quoting Hallford v. State, 629 So.2d 6, 9 (Ala. Crim. App. 1992) ). "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id."It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

"In order to succeed on a claim of ineffective assistance of counsel, a petitioner must meet both prongs of the standard set out in Strickland." Davis v. State, 184 So.3d 415, 430 (Ala. Crim. App. 2014). "Because both prongs of the Strickland test must be satisfied to establish ineffective assistance of counsel, the failure to establish one of the prongs is a valid basis, in and of itself, to deny the claim," and a reviewing court need not " 'address both components of the inquiry if the [petitioner] makes an insufficient showing on one.' " Clark v. State, 196 So.3d 285, 303 (Ala. Crim. App. 2015) (quoting Strickland, 466 U.S. at 697 ).

Analysis

I.

The State contends that the circuit court erred in granting Kerley relief on the ground that his trial counsel was ineffective for not requesting a unanimity instruction. Specifically, the State argues that because Kerley did not call his trial counsel to testify at the evidentiary hearing he necessarily failed to prove that his counsel's decision not to request a unanimity instruction was deficient and was not the result of reasonable trial strategy. The State also argues that, even if counsel's decision could be considered deficient performance, it caused no prejudice to Kerley because, according to the State, under the circumstances in this case, any error in the jury's not being given a unanimity instruction was harmless.

Kerley argues, on the other hand, that his failure to call his trial counsel to testify at the evidentiary hearing is not fatal to this claim of ineffective assistance of counsel because, he says, counsel's conduct in not requesting a unanimity instruction in the face of both specific and generic evidence of sexual abuse " 'was so outrageous that no competent attorney would have engaged in it.' " (Kerley's brief, p. 21 (quoting State v. Gissendanner, [Ms. CR-09-0998, October 23, 2015] --- So. 3d ----, ---- (Ala. Crim. App. 2015), quoting in turn, Sanders v. State, 346 S.W.3d 26, 34 (Tex. App. 2011) ). Kerley also argues that he was prejudiced by counsel's failure to request a unanimity instruction because, he says, in a case involving both specific and generic evidence of sexual abuse it is impossible to know on which incidents-the specific or the generic-the jury's verdict was based.

This Court has recognized that "[i]t is extremely difficult, if not impossible, to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record." Broadnax v. State, 130 So.3d 1232, 1255 (Ala. Crim. App. 2013). However, it is unnecessary for this Court to determine whether Kerley's failure to call his trial counsel to testify at the Rule 32 hearing is fatal to this particular claim of ineffective assistance of counsel because, even if it was not, we nonetheless conclude that the circuit court erred in granting Kerley relief on this claim.

Generally, Alabama follows a strict-election rule, by which the State must elect the offense on which it will proceed "[w]here the evidence discloses two or more offenses growing out of distinct and separate transactions." R.L.G. v. State, 712 So.2d 348, 355 (Ala. Crim. App. 1997), aff'd, 712 So.2d 372 (Ala. 1998) (internal quotation marks omitted). However, the strict-election rule does not apply in cases of sexual abuse of children by a resident abuser that involve purely generic evidence, i.e., "evidence of sexual abuse perpetrated upon a young child so often and in so many locations 'by an abuser residing with the child ... that the young child loses any frame of reference in which to compartmentalize the abuse into "distinct and separate transactions," ' " or that involve a combination of both specific and generic evidence. Shouldis v. State, 38 So.3d 753, 761 n.4 (Ala. Crim. App. 2008) (quoting R.L.G., 712 So.2d at 356 ). In those cases, the either/or rule applies: "The 'either-or' rule provides that the prosecution must elect which single act it is relying [on] for a conviction or else the trial judge must give a specific unanimity instruction." R.A.S. v. State, 718 So.2d 117, 119 (Ala. 1998).

"[T]he 'either/or' rule ... as that rule is modified for generic evidence [provides that] where the evidence of more than one incident of sexual molestation to a child victim by a resident child molester is purely generic and where 'there is no reasonable likelihood of juror disagreement as to particular acts, and the only question [for the jury] is whether or not the defendant in fact committed all of [the incidents],' the trial court should instruct the jury that it can find the defendant guilty only if it unanimously agrees that he committed all the incidents described by the victim."

R.L.G., 712 So.2d at 367 (emphasis omitted). Moreover:

"In cases, such as this one, that involve both generic and specific evidence, where evidence of multiple culpable acts is adduced to prove a single charged offense, jury unanimity must be protected. Therefore, in such a case, the defendant is entitled either to have the State elect the single act upon which it is relying for a conviction or to have the court give a specific unanimity instruction. If the State chooses not to elect the specific act, the trial court must instruct the jury that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, thereby assuring a unanimous verdict on one criminal act."

R.A.S., 718 So.2d at 122 (footnote omitted).

The either/or rule is clearly applicable in this case. Thus, we agree with the circuit court that trial counsel should have either requested that the State elect a specific instance of sexual abuse or requested that the trial court give the jury a unanimity instruction and that counsel's failure to do so constituted deficient performance. However, our analysis does not end with a finding of deficient performance. We must also determine whether that deficient performance actually prejudiced Kerley. We conclude that it did not.

In R.L.G., supra, this Court recognized that an error under the either/or rule may be harmless in certain circumstances:

"Although the trial court erred, we conclude that it is harmless error. In [ People v.] Jones, [51 Cal.3d 294, 270 Cal.Rptr. 611, 792 P.2d 643 (1990),] the court observed that '[s]ome cases found harmless any error in failing either to select specific offenses or [to] give a unanimity instruction, if the record indicated the jury resolved the basic credibility dispute against defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.' 51 Cal.3d at 307, 270 Cal.Rptr. at 617, 792 P.2d at 649 (emphasis in original; citing People v. Moore, 211 Cal.App.3d 1400, 1415-16, 260 Cal.Rptr. 134 (1989) ; People v. Winkle, 206 Cal.App.3d [822,] at 828-30, 253 Cal.Rptr. 726 [ (1988) ] ; People v. Schultz, 192 Cal.App.3d 535, 539-40, 237 Cal.Rptr. 513 (1987) ; People v. Deletto, 147 Cal.App.3d 458, 466, 470-73 & n.10, 195 Cal.Rptr. 233 (1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 542 (1984) ). For example, in Winkle, the victim testified that the defendant, her uncle, had molested her regularly each week; the prosecution made no election and no unanimity instruction was given. The court concluded that no prejudice resulted. Because the defendant made only a weak attempt to assert an alibi defense, the ultimate question for the jury was the defendant's credibility and the verdict necessarily implied that the jury unanimously believed the victim.
"We find further guidance in Covington [v. State, 703 P.2d 436, modified on rehearing, 711 P.2d 1183 (Alaska Ct. App. 1985) ], although the court addressed the issue under a standard different from our harmless error standard. There, the court observed:
" 'In a case where discrete incidents of sexual abuse are charged together in a single count, and impeaching and contrary evidence of differing weight is offered to rebut the several incidents, a real possibility exists that individual jurors will reject some incidents, based upon an evaluation of the impeaching and contrary evidence, but accept other incidents as proven. In such a case, the twelve jurors may agree that the defendant committed at least one of the incidents, but be in general disagreement as to which incident that was.'
" 711 P.2d at 1185. The court then noted that the victim, who was 18 years' old at the time of trial, was unable to differentiate between the various acts committed against her by her father from the time she was 9 or 10 years' old, including sexual intercourse, 'practically every night,' 703 P.2d at 438. The appellant denied the sexual intercourse, and 'no impeaching or contrary evidence was more applicable to one incident than another.' 711 P.2d at 1185. The court found that, upon these circumstances, each juror was confronted with the straight question of credibility and that the jury's guilty verdict established that it accepted the victim's testimony and concluded that the appellant was guilty beyond a reasonable doubt. The court concluded that 'the record unequivocally establishes that the trial court's error in not requiring the state to elect among incidents, or alternatively, in failing to provide a curative instruction, did not appreciably affect any verdict against [the appellant].' 711 P.2d at 1185. Compare State v. Fitzgerald, 39 Wash.App. 652, 694 P.2d 1117 (1985) (error in permitting a jury to consider multiple incidents of sexual assault against the same victim charged in a single count, in the absence of an election by the prosecution or a clarifying instruction, was not harmless, in light of conflicting testimony of the victims as to various incidents of sexual abuse)."

712 So.2d at 368 (footnote omitted).

We recognize that R.L.G. was a case involving purely generic evidence, while this case involves a combination of both specific and generic evidence. However, that does not preclude a finding of harmless error. Harmless-error analysis is a fact-specific inquiry, requiring a reviewing court to examine the entire record in the cause to determine whether "the error complained of has probably injuriously affected substantial rights of the parties." Rule 45, Ala. R. App. P. In cases involving purely generic evidence, this Court has found the failure to give the jury a unanimity instruction to be harmless in some circumstances, see R.L.G., supra, but not harmless in other circumstances, see Shouldis, supra. In cases involving both specific and generic evidence, we can certainly envision circumstances in which the failure to give a unanimity instruction would not be harmless, but under the circumstances in this case, it was.

As set forth above, M.L. testified to a specific incident of sexual abuse on her ninth birthday and the State also presented generic evidence of other incidents of abuse occurring over the next several years. J.H. testified that Kerley first abused her when she was eight years old and that he continued to do so until she moved in with her father several years later. Kerley denied the allegations of sexual abuse and he attacked the credibility of both M.L. and J.H. at trial. The only true question for the jury in this case was the victims' credibility, and Kerley admits that. At trial, Kerley argued to the jury that the case "boil[ed] down to did [the victims] tell the truth," (Record on Direct Appeal, R. 240), and, at the Rule 32 evidentiary hearing, Kerley argued that "the single largest issue is the credibility of these two girls." (R. 21.) Because Kerley denied all the allegations against him and the only true issue before the jury in this case was the credibility of the victims:

"There was absolutely no rational basis by which the jury could have found that [Kerley] committed one of the incidents but not the others. Any juror believing that one incident took place would have unquestionably believed that all the incidents took place. Thus, we can say that no rational juror could have had a reasonable doubt as to any of the incidents alleged. By returning guilty verdicts, the jurors must necessarily have unanimously rejected [Kerley's] defense, and by believing the victim[s], unanimously found that all the incidents occurred. We must conclude that, under these circumstances, the jury in fact unanimously agreed on the act forming the basis of the verdicts. Moreover, [Kerley's] rights to notice of the charges against him, to the opportunity to formulate a defense, and to be convicted only upon sufficient proof were not injuriously affected."

R.L.G., 712 So.2d at 369. See, e.g., State v. Ashkins, 357 P.3d 490, 502, 357 Or. 642, 662-63 (2015) (holding that the failure to give a unanimity instruction in a case involving both specific and generic evidence was harmless where the defendant denied that the sexual acts occurred, attacked the victim's credibility, and maintained that the victim was influenced by her mother and grandmother because "nothing in the defense theory called into question [the victim's] description of any particular occurrence" and "there was nothing to indicate that, in evaluating the evidence to determine if those offenses had been committed, the jury would have reached one conclusion as to some of the occurrences but a different conclusion as to others"); Anderson v. State, 337 P.3d 534, 543 (Alaska Ct. App. 2014) (holding that the failure to give a unanimity instruction was harmless where the charges were based on "factually distinct" acts of sexual abuse, but the defendant asserted a "blanket defense" denying all the allegations, because even if "it was logically possible that the jurors might believe that the State had proved some of these acts of sexual contact but not others ... it was not a reasonable probability, given the way [the] case was litigated"); and Baker v. State, 948 N.E.2d 1169, 1179 (Ind. 2011) (holding that the failure to give a unanimity instruction in a case involving both specific and generic evidence was harmless where "the only issue was the credibility of the alleged victims [and t]he only defense was to undermine the young women's credibility by, among other things, pointing out inconsistencies in their statements, and advancing the theory that they were lying").

Thus, although we agree with the circuit court that trial counsel should have requested either that the State elect a specific instance of abuse or that the trial court give a unanimity instruction to the jury, we do not agree with the circuit court's finding that Kerley was prejudiced by counsel's failure to do so. Under the circumstances in this case, the lack of either an election by the State or a unanimity instruction was harmless and, therefore, counsel's failure to request either an election or a unanimity instruction was harmless. Because counsel's deficient performance was harmless, Kerley has not satisfied his burden of proving that he was prejudiced as required by Strickland. "Harmless error does not rise to the level of the prejudice required to satisfy the Strickland test." Gaddy v. State, 952 So.2d 1149, 1160 (Ala. Crim. App. 2006). Therefore, the circuit court erred in granting Kerley relief on this claim of ineffective assistance of counsel and its judgment in that regard must be reversed.

II.

Kerley contends that the circuit court erred in denying his other two claims of ineffective assistance of counsel-that his counsel was ineffective for not calling his brother to testify and not eliciting testimony from his sister that M.L. had allegedly recanted her allegations of sexual abuse and for not calling to testify Kerley's adult daughter to refute M.L.'s testimony that she was abused on her ninth birthday.

At the Rule 32 evidentiary hearing, Kerley called his sister and his brother to testify. Kerley's sister, who also testified at trial, testified at the hearing that on "Easter Sunday of 2010," M.L. told her that Kerley "never touched [her] and [J.H.] or abused [them] in any way" and that their mother had "told [them] to say that." (R. 9.) She also stated that she told Kerley's counsel about M.L.'s "recantation." (R. 10.) Kerley's brother testified at the hearing that "on Easter in 2010," M.L. told him that Kerley " 'never did anything to us,' that [their mother] told us to say that." (R. 16.) He also testified that he spoke with Kerley's counsel about M.L.'s statements.

Because Kerley did not raise the claim regarding his daughter until after the evidentiary hearing, Kerley did not call his daughter to testify at the hearing, although he did attach to his second amendment raising this claim an affidavit from his daughter in which she averred that she and her sister had spent all day and all night at Kerley's home on M.L.'s ninth birthday and that M.L. and J.H. were "never left unattended." (C. 114.)

As noted previously in this opinion, Kerley did not call his trial counsel to testify at the Rule 32 hearing, and his failure to do so is fatal to these particular claims of ineffective assistance of counsel. As already noted, "[i]t is extremely difficult, if not impossible, to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record." Broadnax v. State, 130 So.3d 1232, 1255 (Ala. Crim. App. 2013). This is so because there is a presumption that counsel acted reasonably and that presumption " ' "is like the 'presumption of innocence' in a criminal trial," ' and the petitioner bears the burden of disproving that presumption." Stallworth v. State, 171 So.3d 53, 92 (Ala. Crim. App. 2013) (quoting Hunt v. State, 940 So.2d 1041, 1059 (Ala. Crim. App. 2005), quoting in turn, Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) ). "When a record is silent as to the reasons for an attorney's actions we must presume that counsel's conduct was reasonable."

Hooks v. State, 21 So.3d 772, 793 (Ala. Crim. App. 2008). " 'If the record is silent as to the reasoning behind counsel's actions, the presumption of effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim.' " Davis v. State, 9 So.3d 539, 546 (Ala. Crim. App. 2008) (quoting Howard v. State, 239 S.W.3d 359, 367 (Tex. Crim. App. 2007) ).

Decisions regarding what witnesses to call to testify "are typically considered strategic decisions, and do not constitute per se deficient performance." Reeves v. State, 226 So.3d 711, 750 (Ala. Crim. App. 2016). " 'Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.' " Johnson v. State, [Ms. CR-05-1805, September 28, 2007] --- So.3d ----, ---- (Ala. Crim. App. 2007) (opinion on return to remand), judgment vacated on other grounds by Johnson v. Alabama, 582 U.S. ----, 137 S.Ct. 2292, 198 L.Ed.2d 720 (2017) (quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) ). See also Oliver v. State, 435 So.2d 207, 208-09 (Ala. Crim. App. 1983) ("The decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel.").

The burden was on Kerley to prove by a preponderance of the evidence that his counsel's decisions not to question his sister at trial about M.L.'s alleged recantation, not to call his brother to testify about M.L.'s alleged recantation, and not to call his daughter to refute M.L.'s allegation of abuse on her ninth birthday were not the result of reasonable strategy. However, because Kerley did not call his trial counsel to testify at the evidentiary hearing, the record is silent as to the reasons for counsel's actions in this regard. Where " 'the record is silent as to the reasoning behind counsel's actions, the presumption of effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim.' " Davis, 9 So.3d at 546 (citations omitted).

We note that Kerley argues that counsel's decisions "def[y] logic" and, therefore, "cannot be regarded as trial strategy," particularly in a case involving a resident abuser. (Kerley's brief, p. 38.) However, there could be any number of strategic reasons for not calling particular witnesses in any given case. As the State correctly points out, "[a]s a matter of trial strategy, counsel could well decide not to call family members as witnesses because family members can be easily impeached for bias." State v. Gissendanner, [Ms. CR-09-0998, October 23, 2015] --- So. 3d ----, ---- (Ala. Crim. App. 2015) (quoting Bergmann v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995) ). Moreover, counsel could have decided not to elicit testimony about M.L.'s alleged recantation because the testimony at trial indicated that M.L. first made the allegation of sexual abuse against Kerley in September 2010, five months after Kerley's sister and brother claimed that M.L. had recanted the allegation. Indeed, in their affidavits, which Kerley attached to his first amendment, both Kerley's sister and brother stated that when M.L. made the statements to them on Easter in 2010 they thought she was referring to different allegations against Kerley that M.L. had made to the Department of Human Resources and that had been investigated and dismissed.

Because Kerley failed to call his trial counsel to testify at the evidentiary hearing, the record is silent as to the reasoning for counsel's actions. Kerley failed to prove that his counsel's decisions not to question his sister at trial about M.L.'s alleged recantation, not to call his brother to testify about M.L.'s alleged recantation, and not to call his daughter to refute M.L.'s allegation of abuse on her ninth birthday constituted deficient performance. Therefore, the trial court properly denied these claims of ineffective assistance of counsel.

III.

Kerley also contends that the cumulative effect of counsel's errors prejudiced him. Although we question whether this argument was properly raised by Kerley in the circuit court, it is nonetheless meritless.

"Other states and federal courts are not in agreement as to whether the 'cumulative effect' analysis applies to Strickland claims. As the Supreme Court of North Dakota noted in Garcia v. State, 678 N.W.2d 568, 578 (N.D. 2004) :
" 'Garcia argues that even if trial counsel's individual acts or omissions are insufficient to establish he was prejudiced, the cumulative effect was substantial enough to meet Strickland's test. See Williams v. Washington, 59 F.3d 673, 682 (7th Cir. 1995) ("In making this showing, a petitioner may demonstrate that the cumulative effect of counsel's individual acts or omissions was substantial enough to meet Strickland's test"); but see Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990) ("cumulative error does not call for habeas relief, as each habeas claim must stand or fall on its own").'
"See also Holland v. State, 250 Ga.App. 24, 28, 550 S.E.2d 433, 437 (2001) ('Because the so-called cumulative error doctrine is inapplicable, each claim of inadequacy must be examined independently of other claims, using the two-prong standard of Strickland v. Washington.' (footnote omitted)); Carl v. State, 234 Ga.App. 61, 65, 506 S.E.2d 207, 212 (1998) ('Georgia does not recognize the cumulative error rule.'); Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998) ('Not surprisingly, it has long been the practice of this Court to individually assess claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Hoots v. Allsbrook, 785 F.2d 1214, 1219 (4th Cir. 1986) (considering ineffective assistance claims individually rather than considering their cumulative impact.)').
"We can find no case where Alabama appellate courts have applied the cumulative-effect analysis to claims of ineffective assistance of counsel. However, the Alabama Supreme Court has held that the cumulative effect of prosecutorial misconduct necessitated a new trial in Ex parte Tomlin, 540 So.2d 668, 672 (Ala. 1988) ('We need not decide whether either of the two errors, standing alone, would require a reversal; we hold that the cumulative effect of the errors probably adversely affected the substantial rights of the defendant and seriously affected the fairness and integrity of the judicial proceedings.'). Also, in Ex parte Bryant, [951] So.2d [724] (Ala. 2002), the Supreme Court held that the cumulative effect of errors may require reversal."

Brooks v. State, 929 So.2d 491, 514 (Ala. Crim. App. 2005).

Assuming, without deciding, that cumulative error applies to claims of ineffective assistance of counsel, "[t]he correct rule is that, while, under the facts of a particular case, no single error among multiple errors may be sufficiently prejudicial to require reversal under Rule 45, [Ala. R. App. P.,] if the accumulated errors have 'probably injuriously affected substantial rights of the parties,' then the cumulative effect of the errors may require reversal." Ex parte Woods, 789 So.2d 941, 942-43 n.1 (Ala. 2001) (emphasis added). In this case, we have found only a single error by counsel-counsel's failure to either request that the State elect a specific instance of abuse or request that the trial court give the jury a unanimity instruction. We found, however, that Kerley failed to prove that counsel committed any errors relating to his other claims of ineffective assistance of counsel. Because there was only one error, there can be no cumulative error.

Conclusion

For the reasons stated in Parts II and III of this opinion, we affirm that portion of the circuit court's judgment denying Kerley relief on his claims that his counsel was ineffective for not presenting testimony from certain witnesses. For the reasons stated in Part I of this opinion, we reverse that portion of the circuit court's judgment granting Kerley Rule 32 relief, and we remand this cause for the circuit court to reinstate Kerley's convictions and sentences. No return to remand need be filed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

      This Court may take judicial notice of its own records, and we do so in this case. See Nettles v. State, 731 So.2d 626, 629 (Ala. Crim. App. 1998), and Hull v. State, 607 So.2d 369, 371 n.1 (Ala. Crim. App. 1992).

      The one-year limitations period in Rule 32.2(c) expired on September 18, 2016, which was a Sunday. Therefore, pursuant to Rule 1.3(a), Ala. R. Crim. P., Kerley had until September 19, 2016, to timely file his petition.

      The second amendment was filed after the circuit court had conducted an evidentiary hearing. However, the State did not object to the second amendment in the circuit court and the court addressed the claim raised therein in its order.

      In its order, the circuit court found that "the testimony at trial described several occasions of generic incidents of sexual abuse and at least one incident describing a specific act of sexual abuse against each victim, M.L. and J.H." (C. 17.) The State does not dispute this finding in its initial brief on appeal, but untimely does so for the first time in its reply brief. Therefore, for purposes of this appeal, we accept the circuit court's finding that the instant case involves both specific and generic evidence of sexual abuse.

      Kerley further argues that the harmless-error doctrine cannot apply to claims of ineffective assistance of counsel because such claims necessarily include, as an element, the requirement of prejudice, thus precluding a finding that counsel's ineffectiveness could be harmless. However, Kerley misapprehends the nature of the State's argument regarding harmless error. The State does not argue that counsel's ineffectiveness was harmless. Rather, the State argues that even if counsel's performance was deficient, that deficient performance was harmless, thus resulting in no prejudice under Strickland.

      In its order, the circuit court found that J.H.'s testimony recalling the first incident of sexual abuse when she was eight years old was a specific incident of abuse. See note 4, supra.

      We take judicial notice that in 2010, Easter was on April 4, 2010.

      At trial, M.L. testified that she had told a friend about the abuse when she was 12 years old and that she had written on the Internet about being the victim of molestation. However, the record indicates that the first time M.L. actually accused Kerley of sexual abuse was in September 2010.

      "Recant" is defined as "to withdraw or renounce prior statements or testimony formally or publicly." Black's Law Dictionary 1459 (10th ed 2014) (emphasis added). M.L. could not have recanted her allegation of sexual abuse against Kerley before she made it.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold Lee HARVEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC17-790
    Supreme Court of Florida.
    November 15, 2018
    Ross B. Bricker of Jenner & Block, LLP, Chicago, Illinois, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner and Donna M. Perry, Assistant Attorneys General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

Harold Lee Harvey, Jr., appeals the summary denial of his successive postconviction motion to vacate his sentences of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Because we find that the record conclusively demonstrates that Harvey is not entitled to relief, we find that the postconviction court properly summarily denied Harvey's motion.

Harvey was convicted in 1986 for the murders of Ruby and William Boyd. His crimes are detailed in Harvey v. State , 529 So.2d 1083 (Fla. 1988). We affirmed Harvey's convictions and sentences. Id. His death sentences became final on February 21, 1989, when the United States Supreme Court denied certiorari review. See Harvey v. Florida , 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989). We denied habeas relief in Harvey v. Dugger , 656 So.2d 1253 (Fla. 1995), and affirmed the denial of Harvey's initial postconviction motion in Harvey v. State , 946 So.2d 937, 940 (Fla. 2006). In the instant appeal, Harvey argues that the postconviction court erred in denying his intellectual disability claim without an evidentiary hearing and in denying his claim for relief under Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State , 202 So.3d 40 (Fla. 2016).

A postconviction court's decision on whether to grant an evidentiary hearing on a postconviction motion is a pure question of law, reviewed de novo. Mann v. State , 112 So.3d 1158, 1162 (Fla. 2013). "If the motion, files and records in the case conclusively show that the movant is entitled to no relief, the motion may be denied without an evidentiary hearing." Fla. R. Crim. P. 3.851(f)(5)(B).

Harvey's motion was filed December 20, 2016. Harvey, who had never before raised an intellectual disability claim, argues that his claim was timely because he filed two months after this Court decided Walls v. State , 213 So.3d 340 (Fla. 2016). We have previously held that a similarly situated defendant's claim was untimely because he failed to raise a timely intellectual disability claim under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). See Rodriguez v. State , 250 So.3d 616 (Fla. 2016). Accordingly, the record conclusively shows that Harvey's claim is untimely, and he is not entitled to relief.

Harvey also contends that he is eligible for Hurst relief. This Court has repeatedly held that Hurst relief does not extend to cases final before the United States Supreme Court decided Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See , e.g. , Hitchcock v. State , 226 So.3d 216, 217 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). Harvey's case became final when the United States Supreme Court denied certiorari review of our opinion on direct appeal on February 21, 1989. See Harvey v. Florida , 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989). Accordingly, the record conclusively demonstrates that he is not entitled to relief on this claim.

Based on the foregoing, we affirm the postconviction court's summary denial of Harvey's motion.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

I agree that Harvey is not entitled to relief on his intellectual disability claim because he "failed to raise a timely ... claim under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)." Per curiam op. at 907. However, as I have explained several times, I would apply Hurst retroactively to Harvey's case. See Hitchcock v. State , 226 So.3d 216, 222-23 (Fla.) (Pariente, J., dissenting), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; see also Asay v. State (Asay V ), 210 So. 3d 1, 32-36 (Fla. 2016) (Pariente, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017).

Applying Hurst to Harvey's case, the jury's nonunanimous recommendations for death by votes of eleven to one indicate that the Hurst error is not harmless beyond a reasonable doubt. Harvey v. State , 946 So.2d 937, 941 (Fla. 2006) ; see Davis v. State , 207 So.3d 142, 175 (Fla. 2016). In addition, as Justice Anstead argued and I agreed in 2006, Harvey's counsel failed to present significant evidence of mitigation:

[D]ue to counsel's blatant neglect in heeding the psychologist's advice, none of this powerful mitigating evidence was ever investigated, developed, or presented . As our death penalty jurisprudence makes clear, counsel's duty is to thoroughly investigate first, and then evaluate in order to develop a sound defense strategy. We have a clear breach of counsel's duty here and substantial prejudice as a result. In the face of an almost apologetic case for mitigation, the jury's recommendation for death was virtually a certainty.

Harvey , 946 So.2d at 951 (Anstead, J., concurring in part and dissenting in part, joined by Pariente, C.J.) (emphasis added). The "evidence of several important statutory mitigators and extensive nonstatutory mitigation" in Harvey's case included "numerous and serious mental problems, including organic brain damage ... growing out of the defendant's deprived and abusive childhood, and at least two major traumatic events." Id. Thus, Justice Anstead concluded:

I would hold that we cannot have confidence in the outcome of proceedings so infected by trial counsel's neglect and ineffectiveness. While counsel's neglect may ultimately have made no difference in the establishment of his guilt, the record in this case clearly establishes that the adversarial testing mandated by Strickland did not take place in the penalty phase proceedings of this case. We should remand for a new penalty phase, so that this essential adversarial testing can take place before a reasoned and informed judgment is rendered on life or death.

Id. at 952. Counsel's deficient representation, as explained by Justice Anstead, directly affected what we now know to be Hurst -relevant inquiries, specifically the weighing of aggravation and mitigation. See Hurst , 202 So.3d at 44.

Accordingly, I would apply Hurst to Harvey's case, vacate Harvey's sentences of death, and remand for a new penalty phase.

      This is true despite the fact that, in an opinion that never became final, we briefly vacated Harvey's convictions and remanded for a new trial in Harvey v. State , 28 Fla. L. Weekly S513, S513-15 (Fla. July 3, 2003) (citing Nixon v. Singletary , 758 So.2d 618 (Fla. 1995) ). In light of the United States Supreme Court's decision in Florida v. Nixon , 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), we withdrew that opinion on rehearing, rejected Harvey's ineffective assistance claim, and affirmed his death sentence. See Harvey v. State , 946 So.2d 937, 940 (Fla. 2006).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).


text:
    Albert A. A. CARTENUTO, III, et al., Appellants, v. JUSTICE ADMINISTRATIVE COMMISSION, Appellee.
    No. SC18-322
    Supreme Court of Florida.
    December 20, 2018
    Maria del Carmen Calzon of Law Offices of Maria del Carmen Calzon, P.A., Coral Gables, Florida, for Appellants
    Ana Cristina Martinez, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Justice Administrative Commission, Tallahassee, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion for attorney's fees. Because the order concerns certain fees incurred during a capital postconviction proceeding, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. See McClain v. Atwater , 110 So.3d 892, 893 n.1 (Fla. 2013). Based on the following, we reverse the circuit court's order and remand for a hearing to reconsider the proper statutory qualifications and determine reasonable attorney's fees.

FACTS AND PROCEDURAL HISTORY

Noel Doorbal is a death defendant represented by court-appointed private counsel. Since 2012, his lead attorney, or "registry attorney," has been Maria del Carmen Calzon, Appellant. At the time of her appointment, Calzon designated Albert A. A. Cartenuto, III, Appellant, as her "designated attorney" to provide assistance with Doorbal's case.

Calzon moved for attorney's fees in the circuit court on November 6, 2017. The Justice Administrative Commission (JAC)-the agency that manages the contracts of, and payments to, registry attorneys-objected to the billing, which totaled $12,010.00. In its written objection, JAC stated that these fees, combined with previously billed fees on this case, exceeded the $20,000.00 statutory cap set forth in section 27.711(4)(d), Florida Statutes (2017).

On December 12, 2017, the circuit court held a hearing on the motion for fees. At the fee hearing, the circuit court questioned Cartenuto about whether he met the statutory qualifications to be a designated attorney under section 27.704(2), Florida Statutes. Cartenuto responded that he did not meet the qualifications. Neither Cartenuto nor JAC offered any other evidence with regard to the qualifications. Accordingly, the circuit court orally denied the motion for attorney's fees to the extent that it included Cartenuto's fees as a designated attorney. As to Calzon's fees, the court orally granted the motion.

Two days later, on December 14, 2017, the circuit court entered an order granting the motion for Calzon's fees in the amount of $7,430.00. In the order, the circuit court found that the case was "unusual and extraordinary"; thus the fees could exceed the statutory cap pursuant to Makemson v. Martin County , 491 So.2d 1109 (Fla. 1986). The order, however, was silent as to Cartenuto's fees.

A few days later, on December 18, 2017, Calzon and Cartenuto filed a Verified Motion for Reconsideration of the denial of Cartenuto's fees (the Verified Motion). In the Verified Motion, Cartenuto argued that the circuit court applied the wrong statutory qualifications. The circuit court applied the current statutory requirements, which are more stringent than the requirements in force when Cartenuto became a designated attorney in 2012. Cartenuto contended that he satisfied the 2012 requirements, listing several cases as evidence of his qualifications. He explained that he was unprepared to address questions concerning his qualifications at the fee hearing, so he answered incorrectly.

Without a hearing, on February 9, 2018, the circuit court denied the Verified Motion in an order denying rehearing. In that order, the circuit court took issue with the amount of fees charged in this case. Then, it applied the current statutory qualifications again and noted Cartenuto's admission of his failure to satisfy the requirements at the fee hearing. For that reason, the circuit court denied the Verified Motion without making any other factual findings.

This appeal follows.

ANALYSIS

The issue is whether the circuit court improperly denied attorney's fees to Cartenuto as a designated attorney. This presents a mixed question of fact and law. This Court reviews legal determinations, such as the statutory requirements, de novo. McClain , 110 So.3d at 898. Whereas this Court reviews factual findings for competent, substantial evidence. Fla. Dep't of Fin. Servs. v. Freeman , 921 So.2d 598, 601 (Fla. 2006).

In part, this case turns on which designated attorney qualifications apply under section 27.704(2) : those in force when Cartenuto was appointed in 2012 or the current statutory qualifications. We conclude that the statute in force when Cartenuto was first appointed to the case in 2012 applies. Thus-based on the record here-the only evidence supports the conclusion that he was qualified.

In certain capital collateral proceedings, qualified private counsel may represent defendants as registry attorneys. See § 27.710(1), Fla. Stat. Under the relevant statutes, a registry attorney may enlist a designated attorney for assistance on the case. See § 27.710(6). Like registry attorneys, designated attorneys may receive fees pursuant to the fee statute. § 27.711(4). A designated attorney, however, must also meet the qualifications of a registry attorney. § 27.710(6) ("[A registry attorney] may designate another attorney to assist him or her if the designated attorney meets the qualifications of this section."); see also § 27.710(2). The qualifications for registry and designated attorneys are set out in section 27.704(2). Prior to 2013, the statute stated:

A private counsel or public defender under contract with the regional counsel must have at least 3 years' experience in the practice of criminal law, and, prior to the contract, must have participated in at least five felony jury trials , five felony appeals, or five capital postconviction evidentiary hearings or any combination of at least five of such proceedings.

§ 27.704(2), Fla. Stat. (2012) (emphasis added). A 2013 amendment increased the qualifications for these attorneys, and the statute now reads:

A private counsel or public defender under contract with the regional counsel must not be disqualified pursuant to s. 27.7045; must have at least 3 years' experience in the practice of criminal law;
and, prior to the contract, must have participated in at least two capital trials or capital sentencing proceedings , five felony appeals, or five capital postconviction evidentiary hearings, or any combination of at least five of such proceedings.

§ 27.704(2) (emphasis added).

In his Verified Motion, Cartenuto stated that he became the designated attorney on Doorbal's case in 2012. Because Cartenuto began representation in 2012 and continued that representation through this fee dispute, we conclude that the contractual and statutory qualifications in force at the time of appointment apply to him. This reasoning is buttressed by the fact that both versions of the statute determine qualifications "prior to the contract." § 27.704(2). And the 2013 amendments did not take effect until July 1, 2013-the year after Cartenuto's designation and appointment. Ch. 2013-216, § 19, at 2613, Laws of Fla. Therefore, the 2012 version of section 27.704(2) applies and controls here.

The only record evidence supports Cartenuto's qualification under the 2012 statute, by demonstrating participation in "at least five felony jury trials." § 27.704(2), Fla. Stat. (2012). At the fee hearing, Cartenuto stated that he was a criminal trial lawyer and worked on "a number of jury trials in other matters that are not death penalty." In the Verified Motion, Cartenuto also affirmed that he worked on " 'at least' five felony jury trials." JAC offered no evidence to rebut these assertions. Moreover, the circuit court made no findings that would support rejecting Cartenuto's qualifications, except Cartenuto's erroneous-and promptly corrected-concession of disqualification. Therefore, no competent, substantial evidence supported the denial of Cartenuto's fees based on his lack of qualifications.

CONCLUSION

Accordingly, we reverse the circuit court's order and remand for reconsideration of the proper qualifications and a determination of reasonable attorney's fees.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

      Unless indicated otherwise, all statutory citations below are to Florida Statutes (2017).

      An exception exists for unqualified pro bono attorneys, who may serve "at the discretion of the capital collateral regional counsel." § 27.704(3). Therefore, for those unqualified designated attorneys attempting to become death qualified by assisting registry attorneys, they must participate pro bono. See id.

      The statute incorrectly states that these attorneys are "under contract with the regional counsel." § 27.704(2). Registry and designated attorneys are under contract with JAC. § 27.710(4).


author: LEWIS, J. LAWSON, J., specially concurring.

text:
    Antoine E. MCCLOUD, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-2011
    Supreme Court of Florida.
    December 20, 2018
    Howard L. "Rex" Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, C. Suzanne Beschard, Bureau Chief, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa, Florida, for Respondent
   LEWIS, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in McCloud v. State , 224 So.3d 842 (Fla. 2d DCA 2017). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in McCray v. State , 171 So.3d 831 (Fla. 1st DCA 2015). McCloud , 224 So.3d at 847. We have jurisdiction.

See art. V, § 3(b)(4), Fla. Const. This conflict concerns the proper interpretation of Florida's witness tampering statute: section 914.22, Florida Statutes (2014). For the reasons that follow, we approve the decision below and disapprove of the First District's precedent discussed in McCray .

FACTUAL AND PROCEDURAL BACKGROUND

This case presents a pure question of statutory interpretation; however, to the extent that the facts are relevant, the Second District sufficiently recited them:

The incident that gave rise to the witness tampering charge occurred on the morning of March 8, 2015. Mr. McCloud awoke to noise made by his six-year-old daughter [ (the younger daughter) ] in the living area of his home. Mr. McCloud began yelling at his daughter to play more quietly and threatened to spank her. The victim, who was the child's mother and Mr. McCloud's wife, also awoke and told Mr. McCloud to calm down. Upon being told to calm down, Mr. McCloud became angry, approached the victim, who was still in bed, and screamed at her to stop interfering with his attempts to discipline their daughter.
The victim testified that Mr. McCloud then pushed her in the chest and poked her in the forehead about two to three times. After he stopped pushing her, Mr. McCloud then left the bedroom. Upon his exit, the victim began shouting to her twelve-year-old daughter [ (the older daughter) ] to call for help. Mr. McCloud returned to the bedroom with a gun in his hand. He threatened to kill the victim if she ever took the children from him. Mr. McCloud then left the bedroom again and approached the older daughter, who was watching the incident unfold from the hallway outside of the bedroom. The victim testified that Mr. McCloud took the older daughter's cell phone out of her hands and said, "Are you going to call those people on me? Are you telling my daughter to call those people on me?" The victim also testified that at some point during the incident, Mr. McCloud took her cell phone and threw it to the ground, causing the battery to fall out.
The older daughter testified that upon hearing the victim shout for help, she left her bedroom and observed from the hallway that Mr. McCloud was on top of the victim, apparently holding her arms down for about twenty seconds. She also saw that the victim's phone was broken on the floor. The older daughter also testified that as she was standing in the hallway, Mr. McCloud approached her and grabbed her cell phone out of her hands. The older daughter stated that upon seizing her cell phone, Mr. McCloud stated, "You can't call the cops on me. You can't get my kids to call the cops on me."
Mr. McCloud took the stand in his own defense at trial. He testified that he never hurt the victim and that he took the phone from his older daughter as a form of punishment for her failure to clean the house. He further testified that at the time he took the phone from his older daughter, the phone's screen was black and that there was no phone call in progress.
At the close of the State's case, the defense moved for a judgment of acquittal. Defense counsel argued that the evidence was insufficient to sustain a conviction for witness tampering because under McCray, [171 So.3d at 832 ], the State was required to and failed to present evidence that "the victim [or witness] was attempting to contact law enforcement during the time of the incident." The trial court denied the motion, finding that the State's evidence was sufficient to present the case to the jury. The jury returned a verdict finding Mr. McCloud guilty of tampering with a witness as charged. It also found him guilty of simple battery, a misdemeanor in the first degree, and assault, a misdemeanor in the second degree.[n.1]
[n.1] Mr. McCloud does not challenge his convictions for battery and assault.

McCloud , 224 So.3d at 843-44.

McCloud appealed the denial of motion for judgment of acquittal to the Second District, relying upon the First District's precedent articulated in McCray . Id. The Second District rejected McCray , certified conflict with the decision, and affirmed McCloud's conviction for witness tampering. Id. at 847.

This review follows.

ANALYSIS

The issue central to the certified conflict is whether section 914.22(1)(e), Florida Statutes, requires the State to demonstrate that a witness attempted to contact law enforcement to prove its case in chief on witness tampering. Based on the plain language of the statute, we conclude that the statute does not designate an attempt to contact law enforcement as an element of the crime; accordingly, the Second District's interpretation below was correct.

Standard of Review and Legal Standard

This Court undertakes de novo review for questions of statutory interpretation. E.g. , Polite v. State , 973 So.2d 1107, 1111 (Fla. 2007). The purpose of this endeavor is to effectuate the Legislature's intent because "legislative intent is the polestar that guides a court's statutory construction analysis." State v. J.M. , 824 So.2d 105, 109 (Fla. 2002) ; e.g. , In re Ginsberg's Estate , 50 So.2d 539, 542 (Fla. 1951) ("It is a fundamental rule in statutory construction that the intention of the Legislature in the enactment of a statute should be ascertained and effectuated."); Getzen v. Sumter Cty. , 89 Fla. 45, 103 So. 104, 107 (1925) ("The intent of organic or statutory provisions is the essence of the law."); State v. Patterson , 67 Fla. 499, 65 So. 659, 660 (1914) ("[L]egislative intent ... is the essence and vital force of the law."); State v. Atlantic Coast Line R.R. Co. , 56 Fla. 617, 47 So. 969, 984 (1908) ("In construing and applying a duly enacted statute, the valid legislative intent is the guiding star."); Curry v. Lehman , 55 Fla. 847, 47 So. 18, 20 (1908) ("[T]he primary rule of construction is to ascertain and give effect to that intent."); 48A Fla. Jur. 2d, Statutes § 116 (2014) ("The primary rule of statutory construction, and the ultimate goal in construing a statutory provision, is to give effect to legislative intent." (footnotes omitted) ); 2A Norman J. Singer, Statutes and Statutory Construction § 45:5 (7th ed. 2014) ("[T]he essential idea that legislative will governs decisions on statutory construction has always been the test most often declared by courts."); see also Heydon's Case , (1584) 76 Eng. Rep. 637 (Exch.) (detailing the traditional common law rule of legislative intent guiding statutory construction). In order to "discern legislative intent, this Court looks first to the plain and obvious meaning of the statute's text." Smith v. State , 204 So.3d 18, 21 (Fla. 2016) (quoting W. Fla. Reg'l Med. Ctr., Inc. v. See , 79 So.2d 1, 9 (Fla. 2012) ). If the statute is "clear and unambiguous," then this Court does not look beyond the plain language or employ the rules of construction to determine legislative intent-it simply applies the law.

Gaulden v. State , 195 So.3d 1123, 1125 (Fla. 2016) (quoting Borden v. E.-Eur. Ins. Co. , 921 So.2d 587, 595 (Fla. 2006) ).

Section 914.22(1)(e), Florida Statutes

In pertinent part, the witness tampering statute is clear and unambiguous:

(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
....
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense ....
....
commits the crime of tampering with a witness, victim, or informant.

§ 914.22(1)(e), Fla. Stat. To prove witness tampering under that plain language, therefore, the State must demonstrate that a defendant knowingly acted, threatened, or attempted either, with the specific intent to "[h]inder, delay, or prevent" a victim's communication to law enforcement with regard to a criminal offense. Id. ; see Taffe v. State , 232 So.3d 431, 433 (Fla. 4th DCA 2017) ; McCloud , 224 So.3d at 846 ; Gill v. State , 622 So.2d 92, 93 (Fla. 2d DCA 1993) ; see also McAlpin v. Crim. Justice Standards & Training Comm'n , 155 So.3d 416, 420 (Fla. 1st DCA 2014) ; cf. State v. Gray , 435 So.2d 816, 820 (Fla. 1983) (holding that the predecessor to this statute did not create a specific intent crime). The conflict here relates to whether the statute further requires the State to establish that the witness attempted to contact law enforcement during the commission of the underlying criminal offense. McCloud , 224 So.3d at 845. The Second District held below that the plain language of the statute does not include a witness's attempt to contact law enforcement as an element of the crime, id. at 845-46 ; whereas the First District, on nearly identical facts, came to the opposite conclusion in McCray , 171 So.3d at 832. Based on the plain language of section 914.22(1)(e), Florida Statutes -which is clear and unambiguous-we conclude that the First District misread the statute and improperly added an element to the offense in contravention of the plain language.

Nothing in the plain language of section 914.22(1)(e) indicates that the elements of witness tampering include a witness's attempt to contact law enforcement, either during or after the commission of the offense. See § 914.22(1)(e), Fla. Stat.; Taffe , 232 So.3d at 434 ; McCloud , 224 So.3d at 846. Rather, the plain language focuses on a defendant's actus reus and mens rea; it does not require any action on the part of a victim. "It is axiomatic that where the legislature has defined a crime in specific terms, the courts are without authority to define it differently." State v. Jackson , 526 So.2d 58, 59 (Fla. 1988). Instead of following this basic rule, the First District redefined the crime of witness tampering, adding an additional element. See McCray , 171 So.3d at 832. That was error.

McCloud attempts to salvage the First District's interpretation by looking to section 914.22's "knowingly" requirement for support. Without a witness's attempt to contact the police, as his contention goes, "the State is unable to show that a defendant had the intent to knowingly hinder, delay, or prevent communication about a crime to law enforcement." Initial Br. 12. Yet McCloud misreads the statute by rearranging its words. The Legislature did not define witness tampering with "knowingly" modifying the prohibited result of hindering, delaying, or preventing communication with law enforcement, as McCloud argues. The plain language of section 914.22(1)(e) makes clear that "knowingly" modifies acts of intimidation, threats, or physical force (among others). § 914.22(1)(e), Fla. Stat. This construction establishes that the act itself must be committed with "actual knowledge" or "voluntarily and intentionally." See Shaw v. State , 510 So.2d 349, 351 (Fla. 2d DCA 1987) ; see also O'Neill v. State , 684 So.2d 720, 722 n.5 (Fla. 1996). Because witness tampering is a specific intent crime, however, the statute separately requires that the knowing act be done "with intent to cause or induce" a witness to "[h]inder, delay, or prevent the communication" with law enforcement. § 914.22(1)(e), Fla. Stat. Clearly, the knowledge requirement does not apply to a defendant's intent to bring about the prohibited result of obstructing justice because those are two separate elements of the crime. By misreading section 914.22(1)(e), Florida Statutes, McCloud attempts to obfuscate the fact that it was his actions and intent to tamper-not the victim's or older daughter's responses-which were determinative here. Thus, McCloud's contentions cannot palliate the First District's misreading of the statute's plain language.

The Certified Conflict

In McCray , the First District addressed a similar fact pattern where the defendant broke the victim's phone during the commission of a battery. 171 So.3d at 832. Interpreting the plain language of section 914.22, the court stated that "it [wa]s necessary to present evidence that the victim was attempting to contact law enforcement during the time of the incident to support a conviction under this statute." Id. There was no explanation for this interpretation; rather, the First District merely applied its earlier reading of the statute. Id. (citing Thompson v. State , 153 So.3d 996, 997 (Fla. 1st DCA 2015) ). The court reasoned that the victim's testimony that she was "trying to call somebody" when the defendant broke her phone was insufficient to establish that she was attempting to contact law enforcement. Id. Due to the lack of evidence under its reading of the statute, the district court reversed the witness tampering conviction. Id. at 833.

Likewise, Thompson -which formed the basis of the First District's interpretation in McCray -followed the same format, except it cited Longwell v. State , 123 So.3d 1197, 1198 (Fla. 1st DCA 2013), as support. Thompson , 153 So.3d at 997. Longwell represented the first interpretation of the statute to include a witness's attempt to contact law enforcement as an element of the crime. 123 So.3d at 1198. The First District there also failed to explain why it read this requirement into the plain language. Id. Instead, the court quoted the statute, then it inexplicably stated its conclusion:

Based on our review of the record, we conclude that no evidence was presented establishing that [the victim] was attempting to contact law enforcement during the altercation with [the defendant]. The State accurately and candidly indicated that the evidence presented did not establish a prima facie case of guilt as to the tampering charge. Because [the victim] denies calling 911, and because no witnesses testified that [the victim] was attempting to contact law enforcement during the altercation, there is insufficient evidence as to an essential element of the crime.

Id. Nowhere in the First District's analysis is there any explanation for reading an additional element of the crime into section 914.22. See id. Notably, however, the Longwell court noted the State's concession that it failed to make a prima facie case for witness tampering. Id. Moreover, the victim there testified that her phone broke during the altercation because she dropped it, which contradicted her earlier statement that the defendant smashed the phone. Id. at 1197. Regardless of the First District's interpretation of the statute, the victim's testimony in Longwell controverted a witness tampering charge. Because the victim testified that her phone broke when she dropped it-and no other evidence was offered to demonstrate prevention of communication-there was no evidence of the defendant committing an act with the specific intent to hinder, prevent, or delay the victim's communication with law enforcement; therefore, the defendant did not violate the statute. See id. ; see also § 914.22(1)(e), Fla. Stat. Thus, despite the First District's misinterpretation, the court likely reached the correct result in Longwell , albeit for the wrong reason.

Conversely, the Second District below rejected the First District's precedent. McCloud , 224 So.3d at 845-46. According to the Second District, that interpretation "add[ed] another element to a crime that is otherwise clearly defined." Id. at 846. Instead, the district court held that the plain language of section 914.22(1)(e)"requires the State to prove that the accused knowingly took some action with the intent to hinder, delay, or prevent the witness from communicating information to law enforcement 'relating to [not during] the commission or possible commission of an offense.' " Id. (alteration in original) (quoting § 914.22(1)(e), Fla. Stat.). The court reasoned that Longwell , and its progeny, "contravenes the plain meaning of the statute," "lead[s] to absurd results," and "severely restricts the statute's applicability." Id.

Under its correct reading of the statute's plain language, the Second District concluded that the State presented competent, substantial evidence to support McCloud's conviction for witness tampering. Id. Specifically, the testimony established that McCloud took the older daughter's cell phone and smashed the victim's phone. Id. As he grabbed the older daughter's phone, McCloud declared, "You can't call the cops on me. You can't get my kids to call the cops on me." Id. At some point, McCloud retrieved a handgun and threatened to kill the victim. Id. at 843. Based on that evidence, the district court concluded that McCloud "knowingly used physical force, intimidation, or a threat with the intent to hinder or prevent a communication by either the victim or the older daughter to law enforcement regarding the assault and battery." Id. at 846 ; see § 914.22(1)(e) Fla. Stat.

More recently, the Fourth District adopted the interpretation below. Taffe , 232 So.3d at 433 ("We reject this authority [ ( McCray , Thompson , and Longwell ) ] and instead adopt the Second District's holding in McCloud ."). Similar to the Second District's approach in McCloud , the Fourth District properly applied the statute as written:

In our view, there is simply nothing within the plain language of the witness tampering statute requiring the State to prove the witness was attempting to contact law enforcement when the threat was made.... Indeed, as outlined by the Second District, adopting the logic of the First District in this case would lead to an "absurd result."

Id. at 434.

In addition to its misinterpretation of the plain language, the First District's precedent does in practice lead to absurd results. One narrow exception to the plain meaning rule may be "made where a literal interpretation of a statute yields absurd results." Jackson , 526 So.2d at 59. Yet, in this scenario, the First District ignored the plain language to deploy a reading that yields absurd results rather than avoids them. See Taffe , 232 So.3d at 434 ; cf. Warner v. City of Boca Raton , 887 So.2d 1023, 1033 n.9 (Fla. 2004) ("[A] statutory provision should not be construed in such a way that it renders the statute meaningless or leads to absurd results."). Under the First District's interpretation of section 914.22, "a defendant could never be held criminally liable for witness tampering so long as the defendant ensures that the witness is unable to contact law enforcement at the time the threats are made." Taffe , 232 So.3d at 434. For instance, if a defendant kidnaps or murders a witness before an attempt to contact the police, then the State would almost never be able to prove its case in chief under McCray . See id. The facts of Taffe bear out this reality. The defendant there robbed and kidnapped a victim, holding him at gunpoint while discussing with his codefendants whether or not to murder the victim. Id. at 433. After a codefendant's cooler head prevailed, the men warned the victim that they would kill him and his family if he ever contacted the police before allowing him to leave. Id. At no point during that encounter was the victim ever able to contact law enforcement; thus, under the First District's interpretation in McCray , the defendant did not commit witness tampering-despite his clear violation of the statute's plain language-because the victim did not attempt to contact law enforcement with a gun to his head. Compare § 914.22(1)(e), Fla. Stat. (criminalizing threats of physical force to victims with the intent to prevent communication with law enforcement), with McCray , 171 So.3d at 832 ("[I]t is necessary to present evidence that the victim was attempting to contact law enforcement during the time of the incident to support a conviction ...."). An absurd result such as this cannot stand in the face of the Legislature's clear guidance and attempt to protect victims from threatening actions.

CONCLUSION

Accordingly, we approve the Second District's decision below in McCloud and disapprove the First District's line of precedent articulated in McCray .

It is so ordered.

PARIENTE, QUINCE, POLSTON, and LABARGA, JJ., concur.

CANADY, C.J., concurs in result.

LAWSON, J., concurs specially with an opinion, in which CANADY, C.J., concurs.

LAWSON, J., specially concurring.

I agree with the majority that the statutory construction issue presented by this case is answered by the unambiguous language of section 914.22, Florida Statutes (2014). I also agree that we should approve the decision on review, McCloud v. State , 224 So.3d 842 (Fla. 2d DCA 2017), and disapprove the conflict cases for the reasons explained in the majority's analysis of the plain language of that statute. I disagree with the majority's preliminary statement that in all cases "legislative intent" should be "the polestar that guides a court's statutory construction analysis," majority op. at 914(quoting State v. J.M. , 824 So.2d 105, 109 (Fla. 2002) ), for the reasons explained in Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 312-14 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part).

CANADY, C.J., concurs.

      Unrelatedly, the Second District vacated McCloud's sentence, remanding for a new sentencing hearing due to scrivener's and computation errors in the judgment and sentencing scoresheet. McCloud , 224 So. 3d at 844, 847.

      Our well-established polestar precedent is supported by Holly v. Auld , 450 So.2d 217 (Fla. 1984), which assumes that legislative intent is the guiding principle of our statutory interpretation analyses. Id. at 219 ("[I]t is not the court's duty or prerogative to modify or shade clearly expressed legislative intent in order to uphold a policy favored by the court."); id. ("The preamble and language of that enactment readily reveal the legislature's intent and its policy reasons."); id. at 220 ("Neither the language of the statute, nor the legislative intent discernable therefrom, admits of an interpretation which would limit the discovery privilege."). Also, the point of law often cited in Holly actually comes from A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157 (1931). There-nearly 100 years ago-we stated essentially the exact standard used here, beginning with intent as the polestar:
      The intention and meaning of the Legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.
      Id. at 159. Much of the disagreement on this point is a matter of semantics, better left for law review articles' "preoccupation with the choice between textualist and intentionalist theories of interpretation." See William S. Blatt, Missing the Mark: An Overlooked Statute Redefines the Debate Over Statutory Interpretation , 64 U. Miami. L. Rev. 641, 662 (2010). Many years ago, we correctly decided not to wade into that murky debate by collapsing the two into one. When the Legislature has clearly and unambiguously spoken, the resulting statute demonstrates legislative intent and we simply apply the plain language. E.g. , Streeter v. Sullivan , 509 So.2d 268, 271 (Fla. 1987) ; State v. Egan , 287 So.2d 1, 4 (Fla. 1973). And Florida judges are savvy enough to apply that simple, traditional rule like their predecessors have done for years.

      Section 914.22, Florida Statutes, applies to witnesses, victims, and informants alike. We use the terms interchangeably below.

      A specific intent crime is "an act when accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act." Linehan v. State , 442 So.2d 244, 247 (Fla. 2d DCA 1983), approved in result , 476 So.2d 1262 (Fla. 1985), receded from on other grounds by Coicou v. State , 39 So.3d 237 (Fla. 2010) ; see, e.g. , Frey v. State , 708 So.2d 918, 919 (Fla. 1998) ; Hentz v. State , 62 So.3d 1184, 1190 (Fla. 4th DCA 2011) ; see also Eric A. Johnson, Understanding General and Specific Intent: Eight Things I Know For Sure , 13 Ohio St. J. Crim. L. 521, 525 (2016) ("[A] crime will qualify as a specific-intent offense if it requires the state to prove that the defendant intended to 'achieve some additional consequence' beyond the commission of 'the proscribed act.' " (quoting People v. Hood , 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, 378 (1969) ) ); 21 Am. Jur. 2d, Criminal Law § 114 (2018) ("A 'specific intent' crime is one in which an act was committed voluntarily and purposely with specific intent to do something the law forbids; the defendant acts not only with knowledge of what he or she is doing, but also does so with the objective of completing some unlawful act.").

      Over the summer, it appears that the First District recognized its error and attempted to walk back its precedent. Frazier v. State , 250 So.3d 794, 797-99 (Fla. 1st DCA 2018). However, its previous holdings were clear, and we must correct that misinterpretation. See McCray , 171 So.3d at 833 ("Because there was no evidence that [the victim] was attempting to contact law enforcement, the trial court erred in denying [the defendant's] motion for judgment of acquittal. See Longwell [123 So.3d at 1198 ]. We, therefore, REVERSE the conviction for tampering with a victim or witness."). Moreover, the statute is not a general rule that changes based on the facts of the case, as the First District suggests, Frazier , 250 So.3d at 799 ; section 914.22, Florida Statutes, is a clear, unambiguous, and fixed definition of a crime that we must apply uniformly.

      The Second District reiterated its position in Williams v. State , 246 So.3d 529, 530-31 (Fla. 2d DCA 2018).