text:
    Melvin Douglas HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3793
    District Court of Appeal of Florida, First District.
    June 13, 2018
    Andy Thomas, Public Defender, Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant was convicted of driving under the influence causing death, driving under the influence causing serious personal injury, and driving under the influence causing property damage. Although Appellant was charged and found guilty of vehicular homicide and driving without a valid license, the State dismissed those counts. Appellant was sentenced to a lengthy term of imprisonment. The charges were based on a traffic accident in which the State's expert witness testified Appellant was driving approximately 79 miles per hour when he drove into the victims' car. The impact of the accident killed one 13-year-old victim and seriously injured another young victim.

The tragic events began twelve hours after Appellant was released from the county jail. Appellant struck a vehicle but did not stop, and the driver of that car pursued Appellant in an attempt to obtain his tag number. Appellant then ran a stop sign, hit a guard rail, and crashed into the victims' car, causing the death and injuries. Appellant's blood test showed .90 milligrams of methamphetamine and .10 milligrams of amphetamine per liter of his blood.

The State presented the expert testimony of Dr. Bruce Goldberger, Director of Toxicology and Chief of the Division of Forensic Medicine at the University of Florida College of Medicine. The defense objected to Dr. Goldberger's testimony, arguing that the evidence was not admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

During the pretrial Daubert hearing, Dr. Goldberger testified that methamphetamine impacts on human physiology have been known for "more than a century," but most studies analyzing amphetamine and methamphetamine are "case-type" studies, because doctors cannot ethically give human subjects impairing doses of amphetamine or methamphetamine. He testified that epidemiologic studies have been conducted of drug impacts on traffic accidents. Dr. Goldberger published four books, including the "Handbook of Workplace Drug Testing," which contained a chapter on methamphetamines. Dr. Goldberger testified that if he is informed of details from before, during, and after a crash, including any relevant blood samples tested for drug consumption, he can form an accurate opinion on whether that person was impaired.

He further testified that he had utilized this analytical method "maybe thousands of times," and it is a method commonly accepted in the field of forensic toxicology.

Dr. Goldberger testified that there is no set amount of amphetamine that would necessarily constitute impairment. He testified that a person who had been incarcerated for "a period of time" with no access to amphetamines would have no tolerance to the substance upon leaving incarceration.

Dr. Goldberger testified that he tested Appellant's blood sample and that "this concentration is a very significant ... [i]ndividuals will die as a consequence of ingesting this much methamphetamine." Based on his tests and studies of the effects of methamphetamine on the body and on a person's driving, many of the details of the episode-speeding, running a stop sign, crashing into a guardrail, rear-ending a car, having dilated pupils, glassy eyes, rambling speech, cottonmouth, being restless and scratching himself in a hospital bed-were consistent with someone who was impaired by methamphetamine. Dr. Goldberger testified that the method proposed by the State-whereby the prosecutor would pose a hypothetical situation identical to the facts of the present case, and he would testify as to whether those facts were consistent with someone impaired by methamphetamine-was a method that is generally accepted in the field of forensic toxicology. The trial court found the testimony proffered by the State was relevant and necessary to assist the jury in understanding the issue, and that the method proposed by Dr. Goldberger was admissible under Daubert .

At trial, Dr. Goldberger testified that the facts in evidence were consistent with impairment caused by the ingestion of methamphetamine. He also testified that, because giving test subjects impairing amounts of methamphetamine is "too dangerous," there is not a generally accepted method of extrapolation to determine time of ingestion for methamphetamine and the time within which impairment would occur. On cross-examination, Dr. Goldberger testified that he could not determine whether the ingestion of the drug occurred two, five, or eight hours before the crash.

The State submitted into evidence Appellant's certified driving record, to which Appellant objected, asserting the record was prejudicial under section 90.403, Florida Statutes. The trial court ruled that the record of active suspensions of Appellant's driver's license (with previous convictions redacted) was relevant to prove that Appellant drove while he knew his license was suspended. The partially redacted driving record was admitted into evidence over Appellant's objection.

Appellant asserts reversible errors based on the admission of Dr. Goldberger's testimony under Daubert , the admission of Appellant's redacted driving record, and the evidence of his release from county detention shortly before the traffic accident. We hold that the trial court did not commit reversible error in any of these three evidentiary decisions.

First, the trial court did not abuse its discretion in allowing Dr. Goldberger to answer the hypothetical propounded by the prosecuting attorney, as this expert testimony was not pure opinion testimony under section 90.702, Florida Statutes. We have previously noted that " '[p]ure opinion' testimony is based only on clinical experience and training; in contrast, the cornerstone of section 90.702 is relevance and reliability based on scientific knowledge. See Daubert, 509 U.S. at 590, 113 S.Ct. 2786 (explaining that "the subject of an expert's testimony must be 'scientific knowledge' ")."

Booker v. Sumter Cty. Sheriff's Office/N. Am. Risk Servs. , 166 So.3d 189, 194 (Fla. 1st DCA 2015). Section 90.702, Florida Statutes, requires that to admit expert testimony involving "scientific, technical, or other specialized knowledge" to help juries decide a "fact in issue," the trial court must determine if "(1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case."

Here, we conclude that the expert witness relied on ample data-"more than a century" of medical data and observation-regarding the impact of methamphetamine on human beings; thus, the first statutory factor was met. Further, the expert witness' opinion was based on sufficient facts or data, as the blood tests, crash data, lay testimony, and other evidence provided that foundation. Thus, the third statutory factor was met, in our view.

We must next determine whether the witness' testimony was the "product of reliable principles and methods," the second statutory factor. Frederick v. Swift Transp. Co. Inc., 591 F.Supp.2d 1149, 1151-52 (D. Kan. 2008) (expert testimony of chief medical examiner of Georgia regarding amount of methamphetamine present in urine properly admitted, based on witness' methodology, reliance of toxicology analysis, "Drug Abuse Handbook" and "Disposition of Toxic Drugs and Chemicals in Man," and underlying data, despite lack of information based on amount in blood). Dr. Goldberger testified that his methodology of determining whether a set of facts was consistent with methamphetamine impairment was commonly accepted in his field, and testified that this method was based on published studies by him and other professionals in his field, and at trial he applied those methods to the facts of this case. Therefore, we conclude that his expert testimony was admissible under Daubert , and the trial court did not abuse its discretion in admitting his testimony.

We now address the two other evidentiary rulings. A trial court's admission or exclusion of evidence generally is reviewed for an abuse of discretion. San Martin v. State , 717 So.2d 462, 470-71 (Fla. 1998). Florida Statutes provide further guidance: "Relevant evidence is evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. (2016). "All relevant evidence is admissible, except as provided by law." § 90.402, Fla. Stat. (2016). "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2016). " 'Relevant evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters.' " State v. Blackwell , 787 So.2d 963, 965 (Fla. 1st DCA 2001) (quoting State v. Andres , 552 So.2d 1151, 1153 (Fla. 3d DCA 1989) ).

Evidence of Appellant's release from jail twelve hours before the accident was relevant to prove a material fact-that he recently ingested methamphetamine and was impaired when he ran into the victim's car at a high rate of speed. Ratushinak v. State, 517 So.2d 749, 751 (Fla. 4th DCA 1987) (evidence that defendant stated he had been recently released from jail was relevant, as sexual-battery victim testified perpetrator made this comment during crime, thus, testimony tended to prove identity). The time when Appellant ingested the methamphetamine was relevant to proving that he was impaired when the accident occurred, an element of DUI manslaughter. § 316.193(3), Fla. Stat. (2016). The trial court correctly admitted this evidence.

Appellant further argues that evidence of his driving record, which contained multiple license suspensions, was not relevant to prove that he knowingly drove without a license on the day of the accident. We disagree. A driving record showing a license suspension is sufficient to prove that a defendant had notice that his or her license was suspended. See Anderson v. State , 87 So.3d 774, 780 (Fla. 2012) (stating "the State sufficiently proved knowledge by verifying that the DHSMV sent notice of Anderson's license suspension .... [The State] entered into evidence the driving record of Anderson ...."). Appellant argues that the record showing that his license was suspended "was irrelevant as to whether on August 17th[2014], the date of the offense, Appellant was driving without a valid license." But the driving record tended to prove a material fact to a charge of driving while license suspended and that Appellant knew his license was suspended. The trial court did not abuse its discretion in admitting the partially redacted evidence.

The judgment on appeal is AFFIRMED .

Jay and M.K. Thomas, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Fr. Vincenzo RONCHI, Petitioner, v. STATE of Florida and Loren Tim Burton, Respondents.
    Case No. 5D18-194
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018 Rehearing and Rehearing En Banc Denied July 2, 2018
    Kevin W. Shaughnessy, Caroline M. Landt, and Meagan L. Martin, of Baker & Hostetler, Orlando, for Petitioner.
    Aramis D. Ayala, State Attorney Ninth Judicial Circuit of Florida, and Jenny R. Rossman, Chief, Sex Crimes Unit, and Cherish Renee Adams, Sex Crimes Unit, Assistant State Attorneys, Orlando, for Respondent, State of Florida.
    No Appearance for Respondent, Loren Tim Burton.
   PER CURIAM.

Father Vincenzo Ronchi, a Catholic priest, seeks certiorari review of an order requiring him to testify in a criminal case regarding certain communications that took place during the Sacrament of Reconciliation (commonly referred to as "Confession"). We have jurisdiction. Concluding that the trial court's order contravenes Florida's Religious Freedom Restoration Act ("FRFRA"), we grant the petition.

In June 2017, Loren Burton was charged in a four-count information with committing sexual offenses against a minor. The charged offenses were alleged to have occurred when the alleged victim was seven years old and when she was thirteen years old. The record reflects that the criminal investigation of Burton commenced after the alleged victim, then seventeen years old, disclosed to her mother that she had been sexually abused by Burton.

In August 2017, the State filed a notice of intent to introduce child hearsay statements at trial pursuant to section 90.803(23), Florida Statutes (2017). That statute permits the introduction of out-of-court statements made by a child victim with a physical, mental, emotional, or developmental age of sixteen or less that describe any act of sexual abuse against the child provided that, inter alia, the time, content, circumstances or the statement provide sufficient safeguards of reliability.

Here, the State alleged that when the alleged victim was fifteen years old, she disclosed to Ronchi that Burton had sexually abused her.

Upon being served a witness subpoena, Ronchi filed a Motion for Protective Order Limiting Testimony. In his motion, Ronchi alleged that the State intended to question him regarding communications that may have taken place between a penitent and Ronchi during the Sacrament of Reconciliation. The motion further alleged that requiring Ronchi to testify as to any aspect of a Confession would violate the "sacred seal of the Catholic Sacrament of Reconciliation" and, as such, would violate Ronchi's constitutional rights under the First Amendment to the United States Constitution. Ronchi further alleged that any such communication would be privileged under section 90.505, Florida Statutes (2017). Ronchi contended that the Catholic Church forbids a priest from disclosing any aspect of a penitent's communication during the Sacrament of Reconciliation and, indeed, is sanctionable by excommunication from the Church. Ronchi subsequently filed a supplement to his motion, alleging that the coercion of his testimony would violate FRFRA ( §§ 761.01-.061, Fla. Stat. (2017) ).

In its written response, the State proffered that the alleged victim, now an adult, had waived any privilege attached to her prior communications with Ronchi regarding Burton. The State further argued that the only evidence it had to corroborate the alleged victim's anticipated trial testimony was her prior statement to Ronchi. The State contended that based on the alleged victim's waiver, her communications with Ronchi were no longer privileged under section 90.505. Finally, the State argued that it had a compelling interest in the successful prosecution of child sexual abuse and that the least restrictive means to further this strong governmental interest was to compel Ronchi's testimony. In a supplemental written response, the State proffered that it would produce evidence that during a conversation between Ronchi, the alleged victim's mother, and a friend of the mother's, Ronchi had acknowledged the alleged victim's disclosure of sexual abuse to him.

The trial court subsequently conducted an evidentiary hearing. At the hearing, the mother's friend testified that during a conversation between her, the alleged victim's mother, and Ronchi, Ronchi acknowledged that the alleged victim had previously disclosed to him that she had been molested by Burton. This conversation took place shortly after the alleged victim had disclosed the sexual abuse to her mother. The alleged victim's mother appeared to have a different recollection of the conversation. In response to the court's question as to whether Ronchi had acknowledged that the alleged victim had previously disclosed the abuse to him, the mother testified "[N]ot directly, but it could be understood from the conversation."

Ronchi did not testify at the evidentiary hearing, but did present the testimony of Father Joseph Waters, both a priest and a judicial vicar in the Catholic Church. Waters was examined extensively about his affidavit that had previously been filed with the court. In his affidavit, Waters averred that a Catholic priest is prohibited from disclosing any aspect of a penitent's communication during the Sacrament of Reconciliation including but not limited to, the penitent's participation in the Sacrament, the nature of the confession, the priest's mental impressions of the confession, and the priest's communications to the penitent during Reconciliation, even if disclosure is agreed to by the penitent. Reverend Waters further opined that violations of the Sacrament are considered among the most grave violations of Church law and would subject a priest to excommunication from the Church.

The trial court ultimately entered a written order granting Ronchi's motion for protective order, in part, and denying the motion, in part. In its order, the trial court found that the communications between Ronchi and the alleged victim had occurred within the Sacrament of Reconciliation. This finding is supported by the record. The trial court then focused almost exclusively on the application of Florida's Evidence Code in ruling on Ronchi's motion. Specifically, the trial court determined that: (1) the communications between Ronchi and the alleged victim were privileged under section 90.505, (2) the privilege could be asserted by both Ronchi and the alleged victim, and (3) Ronchi had partially waived the privilege during his conversation with the alleged victim's mother and her friend to the extent that he disclosed the identity of the penitent and that "the subject of the disclosure was sexual abuse." The court concluded that Ronchi must respond to the subpoena and could be questioned about "the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse." However, the trial court granted the motion for protective order "as to the content of any other communications between [Ronchi] and the victim during the Sacrament of Reconciliation, and [Ronchi's] impressions, actions or omissions as they relate to communications made during the Sacrament of Reconciliation."

Although the trial court focused on whether the communications between Ronchi and the alleged victim were privileged under section 90.505 and whether that privilege had been waived, we believe that this case is controlled by the application of FRFRA. The Florida Supreme Court has declared that the protection afforded to the free exercise of religiously motivated activity under FRFRA is broader than that afforded by the decisions of the United States Supreme Court. Warner v. City of Boca Raton , 887 So.2d 1023, 1032 (Fla. 2004). Because the protections afforded an individual under FRFRA are broader than those afforded under the Free Exercise Clause of the First Amendment to the United States Constitution, it is unnecessary for us to address Ronchi's argument that his constitutional rights have been violated by the trial court's order.

FRFRA expressly provides that the government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. § 761.03(1), Fla. Stat. (2017).

A substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. Warner , 887 So.2d at 1033. In the instant case, the record establishes that if Ronchi complies with the State's demand that he testify as to his communications with the alleged victim during the Sacrament of Reconciliation, Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court's order can only be upheld if the State establishes that coercing Ronchi's testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.

Here, it is undisputed that the State has a compelling governmental interest in prosecuting sex offenses perpetrated against children. See Grady v. State , 701 So.2d 1181, 1182 (Fla. 5th DCA 1997) ("We find the charged offense in the instant case, ..., falls within [the] category of crimes where the state has a compelling interest in protecting underage persons from being sexually abused or exploited.").

However, we disagree with the State's contention that coercing Ronchi to testify regarding communications that occurred during the Sacrament of Reconciliation, in contravention of his sincerely held religious beliefs, would be the least restrictive means to further its compelling governmental interest of prosecuting Burton. First, as the State acknowledges, the testimony of Ronchi would, at most, be corroborative evidence. There is no allegation that Ronchi was a witness to any sexual abuse. Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events. Third, pursuant to section 90.803(23), the State could seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse to Ronchi.

Because we conclude that the trial court's order contravenes FRFRA, we grant the petition and quash the trial court's order to the extent that it required Ronchi to "respond to the subpoena and ... be questioned about the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse."

PETITION GRANTED.

TORPY and EVANDER, JJ., concur.

ORFINGER, J., concurs, with opinion.

ORFINGER, J., concurs.

I concur entirely with the majority opinion. I write separately to express my view that the trial judge erred by concluding that Father Ronchi waived the clergy privilege by allegedly disclosing certain information to the victim's family.

There is no doubt that the statement made by the alleged victim to Father Ronchi during Confession was privileged. Thus, the issue that must be determined is whether the clergy member can waive the privilege. To answer this question, one must examine two statutes-sections 90.505 and 90.507, Florida Statutes (2017). Section 90.505(2) and (3) recognizes that the clergy privilege belongs to the person seeking spiritual advice. "The privilege does not belong to the member of the clergy, but the clergy may claim the privilege on behalf of the holder." 1 Fla. Prac., Evidence § 505.3 (2018 ed.). This is consistent with section 90.507, which provides that the person who has the privilege waives it by voluntary disclosure. See 1 Fla. Prac., Evidence § 507.1 (2018 ed.) ("If the person to whom the privileged communication was made, e.g., a psychotherapist or a lawyer, discloses the information without the authority from the client or patient, the privilege is not waived because the holder did not make or consent to the disclosure."). Thus, to me, it is clear that while the clergy can assert the privilege, only the penitent can waive it.

Even assuming, without deciding, that Father Ronchi disclosed privileged information to the alleged victim's family, his actions could not waive the privilege.

      Fla. R. App. P. 9.030(b)(2)(A). Certiorari relief is appropriate when an order departs from the essential requirements of the law and causes material injury to the petitioner that cannot be remedied on appeal. See Martin-Johnson v. Savage , 509 So.2d 1097, 1100 (Fla. 1987) ; see also Nussbaumer v. State , 882 So.2d 1067, 1071-72 (Fla. 2d DCA 2004) (holding that appellate court had jurisdiction over pastor's petition for writ of certiorari regarding his claim of clergy communications privilege over records relating to his counseling of defendant in child molestation prosecution; pastor did not have adequate remedy by appeal because he was not party to criminal proceeding, so only way he could test court's order to compel him to testify, other than by certiorari, was to risk contempt citation and then appeal if cited for contempt).

      Section 90.803(23), Florida Statutes, provides:
      90.803. Hearsay exceptions; availability of declarant immaterial
      (23) Hearsay exception; statement of child victim.-
      (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 16 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
      1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
      2. The child either:
      a. Testifies; or
      b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).
      (b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
      (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

      Section 90.505(2), Florida Statutes (2017) provides that a person "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual advisor."

      Furthermore, Florida courts adhere to the long-standing principle of judicial restraint that favors avoiding a constitutional question when the case can be decided on statutory, or nonconstitutional, grounds. See In re Holder , 945 So.2d 1130, 1133 (Fla. 2006).

      We would also suggest that authorizing Ronchi to testify that the alleged victim had made a prior disclosure of sex abuse to him, but precluding him from testifying as to the details of that disclosure, would raise significant concerns as to Burton's constitutional right to confront and cross examine the witnesses against him.


author: PALMER, J.

text:
    Kimberly M. RAMSEY and Delmas Ramsey, Jr., as Personal Representatives of the Estate of Delmas Ramsey, III, Appellants, v. DEWITT EXCAVATING, INC. and David E. Gubbins, Sr., Appellees.
    Case No. 5D17-311
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 15, 2018
    Andrew B. Greenlee, of Andrew B. Greenlee, P.A., Sanford and Michael B. Scoma, of Scoma Law Firm, Clermont, for Appellants.
    Sharon C. Degnan and Sebastian C. Mejia, of Kubicki Draper, Orlando, for Appellees.
   PALMER, J.

Kimberly and Delmas Ramsey, Jr., as personal representatives of the Estate of Delmas Ramsey, III (their deceased son), appeal the final summary judgment entered by the trial court, ruling that workers' compensation immunity barred their liability claims against David Gubbins and DeWitt Excavating, Inc. (DeWitt). We affirm as to DeWitt, but reverse as to Gubbins.

The industrial accident resulting in Ramsey's death took place while Ramsey was working for DeWitt and with Gubbins, a fellow employee. The parents' complaint alleged that Gubbins and DeWitt were liable for operating a cement-mixing pug mill while Ramsey was still inside of the mixing box, causing his death. DeWitt and Gubbins filed a motion seeking the entry of summary judgment in their favor, arguing that the parents' wrongful death claims were barred by workers' compensation immunity. The court granted the motion, and this appeal followed.

The party moving for summary judgment

bears the burden of establishing that, based on the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other material as would be admissible in evidence on file, there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Summary judgment evidence must be considered in the light most favorable to the non-moving party, and if the record raises the possibility of any genuine issue of material fact or even the slightest doubt that an issue might exist, summary judgment is improper.

Penton Bus. Media Holdings, LLC v. Orange County, 236 So.3d 495, 497 (Fla. 5th DCA 2018) (citations omitted) (internal quotation marks omitted). A final order entering a summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

In R.L. Haines Construction, LLC v. Santamaria, we summarized the law relating to workers' compensation immunity, explaining that "employers in compliance with the Workers' Compensation Law are immune from their employees' common law negligence actions for damages arising from work-related injuries." 161 So.3d 528, 530 (Fla. 5th DCA 2014) (citing Bakerman v. Bombay Co., Inc., 961 So.2d 259, 262 (Fla. 2007) ). However, section 440.11(1)(b) of the Florida Statutes (2013) creates an exception to workers' compensation immunity as to employers and employees acting in furtherance of the employer's business. The statute reads, in relevant part, as follows:

440.11 Exclusiveness of liability.-
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability ... except as follows:
....
(b) When an employer commits an intentional tort that causes the injury or death of the employee . For purposes of this paragraph, an employer's actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
....
2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when the employee is acting in furtherance of the employer's business and the injured employee is entitled to receive benefits under this statute. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or ... with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death ....

§ 440.11(1)(b) 2., Fla. Stat. (2013) (emphasis added).

Not finding these statutory exceptions applicable, the trial court ruled that the parents' wrongful death claims were barred by immunity. The parents contend that the trial court erred in so ruling, asserting first that the record contains genuine issues of material fact as to whether DeWitt (through Gubbins) committed an intentional tort causing Ramsey's death. We disagree.

Three elements must be proved to establish the intentional tort exception to worker's compensation immunity, and the failure to prove any one of the elements will prevent the exception from applying. Gorham v. Zachry Indus., Inc., 105 So.3d 629, 633 (Fla. 4th DCA 2013). The elements are:

1) employer knowledge of a known danger ... based upon prior similar accidents or explicit warnings specifically identifying the danger that was virtually certain to cause injury or death to the employee;
2) the employee was not aware of the danger ... because it was not apparent; and
3) deliberate concealment or misrepresentation by the employer ... preventing employee from exercising informed judgment as to whether to perform the work.

Id. Here, the trial court properly ruled that the record contains no evidence indicating that Ramsey was not aware of the danger involved in cleaning the pug mill, holding that "the record evidence establishes it would be impossible for [Ramsey] to be unaware of the risks of injury from the pug mill because such danger was readily apparent especially since he had worked in or around the machine many times in the past" and "there are some types of machines that are so obviously inherently dangerous that the danger would be obvious to anyone working in the vicinity [and] the pug mill is just such a machine." Accordingly, summary judgment was properly entered in favor of DeWitt. See Vallejos v. Lan Cargo S.A., 116 So.3d 545, 556 (Fla. 3d DCA 2013) ; List Indus., Inc. v. Dalien, 107 So.3d 470, 474 (Fla. 4th DCA 2013).

The parents also assert that the trial court erred when it entered summary judgment in favor of Gubbins on their gross negligence claim, arguing that the record does not demonstrate that they cannot overcome his defense of workers' compensation immunity. We agree.

In order to establish that Gubbins acted with gross negligence when he turned on the pug mill while Ramsey was still inside, the parents were required to present evidence as to each of the following three elements:

1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril [;]
2) knowledge or awareness of the imminent danger on the part of ... [Gubbins;] and
3) an act or omission [on the part of Gubbins] that evinces a conscious disregard of the consequences.

Vallejos, 116 So.3d at 552 ; accord Pyjek v. ValleyCrest Landscape Dev., Inc., 116 So.3d 475, 477 (Fla. 2d DCA 2013). When viewed in the light most favorable to the parents, the evidence of record indicated that Gubbins directed Ramsey into the pug mill for cleaning and later activated the pug mill without utilizing any of the safety systems or the "thumbs up" signal system normally utilized by the pug mill workers or otherwise checking to see if Ramsey was still inside. If a jury so found, Gubbins could be determined to have been grossly negligent. See Boston ex rel. Estate of Jackson v. Publix Super Mkt., Inc., 112 So.3d 654 (Fla. 4th DCA 2013). Accordingly, the trial court erred in entering summary judgment against the parents on their gross negligence claim.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER and LAMBERT, JJ., concur.


author: Per Curiam.

text:
    William Greggory MARKHAM, Appellant, v. NORTH FLORIDA EVALUATION AND TREATMENT CENTER, Appellee.
    No. 1D18-1069
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Appellee.
   Per Curiam.

We treat Appellee's "response" to the initial brief as a confession of error. However, we decline to accept the concession, and we affirm. See Perry v. State , 808 So.2d 268, 268 (Fla. 1st DCA 2002) (a confession of error is not binding upon an appellate court, and it is the practice of the appellate courts not to accept erroneous concessions by the state) (citations omitted).

Appellant argues that this case is controlled by Ungerbuehler v. State , 729 So.2d 954 (Fla. 1st DCA 1998), in which this Court reversed an order authorizing medical treatment, finding that the state presented "absolutely no evidence that the multidisciplinary team deemed the treatment to be necessary, as required by section 916.107(3)(a), Florida Statutes." Id. at 954. This Court found that the only person to testify, the psychiatrist, "did not indicate that she spoke on behalf of the multidisciplinary team, nor was there testimony that the psychiatrist had discussed the necessity of medication with the treatment team." Id. at 955. In contrast, here, after testifying that he was requesting multiple medications for use in treating Appellant, and that Appellant would be observed for side effects and treated accordingly, the psychiatrist testified that the treatment team was "in agreement" with "this protocol." We find that this testimony is sufficient to support the lower tribunal's order.

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


author: Per Curiam. Bilbrey, J., concurring.

text:
    Esther ASH, Appellant, v. John CAMPION, Appellee.
    No. 1D15-4165
    District Court of Appeal of Florida, First District.
    June 28, 2018
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
    Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, and Harold E. Patricoff of Shutts & Bowen LLP, Miami, for Appellee.
    Lewis, J., concurs; Makar, J., concurs in result with opinion; and Bilbrey, J., concurs with opinion.
    ON MOTION FOR CLARIFICATION OR, IN THE ALTERNATIVE, FOR REHEARING

      Judge Bilbrey was substituted for an original panel member in this proceeding after the initial opinion issued.

   Per Curiam.

We deny Appellee's alternative motion for rehearing, but grant clarification of our prior opinion. The order of contempt is reversed, and the cause is remanded to the trial court for further proceedings. See Young v. Wood-Cohan , 727 So.2d 322 (Fla. 4th DCA 1999) (reversing and remanding criminal contempt for further proceedings where insufficient notice was provided); H.K. Dev., LLC v. Greer , 32 So.3d 178, 186 (Fla. 1st DCA 2010) (reversing and remanding order of civil contempt for "findings as to actual damages and entry of an order tailoring any sanctions accordingly").

Makar, J., concurring in result.

I concur as to the relief granted, which is to remand and allow for the remedy of compensatory damages for civil contempt as initially contemplated and ordered by the trial court, payable to the husband due to the wife's violations of the mutual injunction. H.K. Dev., LLC v. Greer , 32 So.3d 178, 184 (Fla. 1st DCA 2010) (noting that monetary sanctions cannot be construed as criminal in nature if "the moneys are ordered to be paid, not to the fisc, but to a private party"). A remand is appropriate for cases in this procedural posture, where an appellate panel cannot agree on whether actual damages were established thereby allowing for an evidentiary hearing. See id. at 186 (remanding "for findings as to actual damages and entry of an order tailoring any sanctions accordingly"). To that extent, I concur in a remand consistent with Greer . Double jeopardy principles may prevent another criminal contempt charge for the same conduct, but nothing prevents the pursuit of a compensatory, civil contempt order under the circumstances.

Bilbrey, J., concurring.

I fully concur in granting clarification but not rehearing. Had I been on the initial panel in the case, I might have decided differently. The original majority and dissenting opinions both raise good points and I agree that this is a close call. But I believe my predecessor's opinion in this case is entitled to deference, and since I do not perceive the decision to reverse as a "substantial departure from established law," I do not think rehearing is appropriate. See Gretna Racing, LLC v. Dep't of Bus. and Prof'l Reg. , 178 So.3d 15, 31 n. 10 (Fla. 1st DCA 2015) (on motion for rehearing) (Bilbrey, J., concurring). Clarification is appropriate, however, because the original opinion would have reversed without providing either a possible remedy for Appellee to be compensated for his actual losses, including attorney's fees, if a finding of civil contempt was contemplated by the trial court, or an opportunity by the trial court to punish Appellant for her outrageous conduct if a finding of criminal contempt was intended.


author: PER CURIAM

text:
    STATE of Louisiana v. Landon D. QUINN
    No. 2016-KP-1285
    Supreme Court of Louisiana.
    March 13, 2018
   PER CURIAM

After the jury could not reach a verdict in relator's first trial, the jury in relator's second trial found him guilty of two counts of second degree murder in connection with the 2009 shooting deaths of Matthew Miller and Ryan McKinley. On the night of the shooting, an eyewitness told police that they would not find any shell casings because the shooter used a revolver. The following day, the eyewitness identified relator as the shooter from a photographic lineup. The eyewitness testified at both trials and unequivocally identified relator as the shooter.

The convictions were affirmed on appeal. State v. Quinn , 12-0689 (La. App. 4 Cir. 8/21/13), 123 So.3d 320, writ denied , 13-2193 (La. 3/14/14), 134 So.3d 1195. After direct review was completed, relator sought post-conviction relief on the ground that, inter alia, counsel rendered ineffective assistance at the second trial by failing to utilize a statement obtained from the eyewitness by a defense investigator. Specifically, the eyewitness told the defense investigator that the shooter's hair was shorter than that depicted in a booking photograph taken at the time of relator's arrest around 24-48 hours after the shootings. The defense investigator memorialized his interview with the eyewitness in an affidavit that was provided to counsel, who represented relator in his second trial but did not utilize the affidavit or call the investigator to testify.

The district court granted relator a new trial after conducting an evidentiary hearing. The district court found that counsel at relator's second trial were in possession of the affidavit and that the defense investigator would have made a compelling witness who could have challenged the strength of the eyewitness identification. The court of appeal denied the state's writ application. State v. Quinn , 16-0150 (La. App. 4 Cir. 6/10/16) (unpub'd). The court of appeal found that the affidavit "strongly suggests that the defendant was mistakenly identified as the perpetrator." Quinn , 16-0150, p. 2. For the following reasons, we find that the courts below erred in those determinations.

"The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions." Missouri v. Frye , 566 U.S. 134, 138, 132 S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012). The United States Supreme Court has long recognized that the right to counsel is the right to the effective assistance of counsel. See McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970) (citing Reece v. Georgia , 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) ; Glasser v. United States , 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Avery v. Alabama , 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940) ; Powell v. Alabama , 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ). Claims of ineffective assistance of counsel are generally governed by the standard set forth by the Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court in State v. Washington , 491 So.2d 1337, 1339 (La. 7/18/86).

To prevail on such a claim, a defendant must first show that "counsel's representation fell below an objective standard of reasonableness." Strickland , 466 U.S. at 687-88, 104 S.Ct. at 2064 The Supreme Court further noted that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error has no effect on the judgment." Id. , 466 U.S. at 691, 104 S.Ct. at 2066. Additionally, the Court reasoned "[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Id. , 466 U.S. at 691-92, 104 S.Ct. at 2067. Thus, the Strickland court held that the "defendant must [also] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. , 466 U.S. at 694, 104 S.Ct. at 2066. The court further explained that in making a determination of ineffectiveness of counsel, "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. , 466 U.S. at 696, 104 S.Ct. at 2053-54.

At the heart of the present case is a purported difference in relator's hairstyle as it appeared at the time of the shootings and 24-48 hours later at the time of his arrest. Notably, a t-shirt over the shooter's head concealed his hair and the lower portion of his face at the time of he shootings. The eyewitness, however, indicated that he recognized relator by his nose, eyes, and cheekbones, which were exposed through the neck hole of the shirt. He also indicated that he could perceive beneath the covering that relator's hair was short and tight to his head. In a booking photograph taken 24-48 hours after the shootings, however, relator's hair had short twists. Relator contends counsel's failure to use this discrepancy to impeach the eyewitness's credibility constituted ineffective assistance. Under the circumstances presented here, we disagree with relator's contention.

The first trial began on July 29, 2010. The eyewitness testified that he was in his truck talking on the phone when he saw two white males walking in the area. After the males walked past his vehicle, the eyewitness saw someone else "run up the street real quick" and point a gun at the men. He described that this person-the shooter-had a t-shirt covering his head like a mask, with the shirt covering "the top part of the head, and down, and across like the top part of his mouth." The shooter's cheeks, eyes, and nose were exposed through the neck hole, and he approached from the same direction that the two males had been walking. The eyewitness unequivocally identified relator as the shooter. In describing his lineup identification, the eyewitness stated that what stood out were relator's nose, high cheekbones, and eyes. On cross-examination, defense counsel asked the eyewitness whether relator had the same hairstyle then as he had at trial, to which he replied, "No, he did not." On redirect, the state asked the eyewitness what relator's hairstyle looked like during the shooting. The eyewitness stated that he could tell relator had a short hairstyle because the t-shirt was pulled tight and the lighting was good where the incident occurred. As noted above, the jury was unable to reach a verdict in the first trial.

Relator was retried on June 14, 2011. The eyewitness testified similarly at the second trial as he had at the first. He again identified relator as the shooter and described the neck part of the t-shirt as exposing his eyes, cheeks, and nose. On cross-examination, he stated that the shirt "went across the top part of [the shooter's] mouth," and he agreed with defense counsel that he would have seen "essentially above the upper lip to the forehead." Defense counsel also elicited testimony wherein the eyewitness admitted his own criminal history. On redirect, the eyewitness again stated that the distinctive characteristics of relator's face were "[h]is cheekbones, his nose, his eyes, his eyebrows." Neither the state nor defense questioned the eyewitness about the shooter's hairstyle at this trial. Before resting, the state introduced video footage and still photographs from a public crime camera located outside the convenience store the victims visited immediately before the shootings. The state contended this evidence showed relator lurking outside the store just before the shooting. This evidence was not presented to the jury in the first trial. Notably, the person depicted on the crime camera wore his hair in short twists.

There appears to be little dispute that counsel had received the affidavit and should have been aware of its content. Although the state speculates as to why counsel might have strategically decided not to utilize the affidavit or call the defense investigator to testify, it is clear that the affidavit was relevant to the eyewitness identification and no error is apparent in the district court's determination that counsel erred under Strickland 's first prong in not utilizing this information. It is not as readily apparent, however, that there is a substantial likelihood of a different outcome, as required under Strickland 's second prong, if counsel had used this information. The United States Supreme Court cautioned in Harrington v. Richter , 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) as follows:

In assessing prejudice under Strickland , the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is reasonably likely the result would have been different. This does not require a showing that counsel's actions more likely than not altered the outcome, but the difference between Strickland 's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable.

Richter , 562 U.S. at 111-12, 131 S.Ct. at 791-92 (internal citations and quotation marks omitted).

Here, the eyewitness identified relator from a photographic lineup and testified at two trials. At all times, the eyewitness was adamant that relator was the shooter. He highlighted relator's eyes, eyebrows, nose, and high cheekbones as the distinctive characteristics leading to his identification. He correctly told the police that they would find no shell casings. The surveillance footage from a nearby business also confirmed the eyewitness's account that the shooter ran up with his head and lower face obscured by a white t-shirt, leaving the neck hole to expose the portion of the shooter's face the eyewitness described. It is also significant that the affidavit does not indicate that the eyewitness said the person in the booking photo was not the shooter; the eyewitness simply indicated that the shooter had shorter hair.

Finally, we note that a person with short twists in his hair appears on the surveillance video, and relator had short twists in his hair when arrested 24-48 hours after the shootings. While the affidavit may call into question the eyewitness's ability to accurately discern the style of hair beneath a t-shirt worn over it, the likelihood of a different result if that information had been used at trial appears conceivable but not substantial, and is insufficient to undermine confidence in the outcome of the second trial. Therefore, we reverse the district court's ruling that granted relator a new trial and we reinstate relator's convictions and sentences.

REVERSED

JOHNSON, C.J. dissents and assigns reasons.

I cannot find the district court abused its discretion in granting the defendant's application for post-conviction relief and ordering a new trial. In my view, defense counsel failed to investigate, research, or properly prepare defendant's case in light of the obvious problems with the identification of defendant as the perpetrator. Thus, I would affirm the ruling of the district court granting defendant a new trial.


text:
    STATE of Louisiana v. Leroy JACKSON
    No. 2016-KP-1100
    Supreme Court of Louisiana.
    May 1, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT PARISH OF ORLEANS
   PER CURIAM

Defendant was found guilty of armed robbery and two counts of attempted armed robbery based solely on his identification by the two victims, Adrian Maldonado and Wilson Vargas, and an eyewitness to the crimes, Anibal Maldonado. The offenses were committed on August 15, 2009, by three armed men. Two of the men wore masks. Defendant was identified as the unmasked man after the witnesses collaborated with an officer to make a computerized composite of a dark-skinned man with short hair and a distinctive hairline. A detective proposed placing defendant in a photographic lineup based on the composite. The three witnesses then each identified defendant from a photographic lineup.

The two victims expressed uncertainty, however, in their identifications to a defense investigator. Vargas told the investigator that the unmasked man was light-skinned with a distinctive hairline, and that he had picked out defendant from police photographs as a man who "looked a lot like the person who'd robbed [him]." When asked to express his certainty in the identification on a scale of one to ten, Vargas chose a five. Adrian Maldonado described the unmasked man as light-skinned with short hair, and expressed his confidence on the ten-point scale as a five. In addition, Adrian Maldonado stated that it was difficult to make an identification because "all black people look alike" to him.

Although the defense investigator provided these statements to defense counsel, he did not use them at trial. In addition, defendant's head was clean-shaven at the time of the crimes and had been since 2007, as evidenced by photographs and testimony presented at the evidentiary hearing. Furthermore, the witnesses described the unmasked robber as standing approximately five feet nine inches tall and weighing approximately 180 pounds. According to the arrest register, defendant stands five feet seven inches tall and weighs 152 pounds. Nonetheless, counsel conceded at the evidentiary hearing that he did not use the discrepancies between the robber's complexion, hair, height, and weight, and his client, and counsel was unable to recall why he failed to use the witnesses' statements to undermine their identifications.

After defendant was found guilty by the jury, the district court sentenced him to 50 years imprisonment at hard labor as a second-felony offender for armed robbery, and two terms of 24 years imprisonment at hard labor for attempted armed robbery, with the sentences to run concurrently and without benefit of parole, probation, or suspension of sentence. The court of appeal affirmed. State v. Jackson , 10-1633 (La. App. 4 Cir. 10/12/11), 76 So.3d 602, writ denied , 11-2528 (La. 3/30/12), 85 So.3d 116.

Defendant timely sought relief on collateral review on the ground of ineffective assistance of counsel. After conducting an evidentiary hearing, the district court granted defendant a new trial. In ruling, the district court emphasized the problematic nature of cross-racial identifications, and the strong indications here that the identifications were unreliable. A divided panel of the court of appeal granted the state's writ application and reinstated the convictions and sentences. The majority found that defendant had failed to carry his burden under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) of showing that he was prejudiced by counsel's error. State v. Jackson , 15-1358 (La. App. 4 Cir. 5/16/16) (unpub'd). Judge Jenkins dissented, emphasizing that the identification testimony presented by the state was the "sole evidence linking defendant to the crimes," and that defense counsel possessed statements from the two victims, which "conflict[ed], and even contradict[ed], the original police report narrative, the supplemental police report, and the victims' testimony." Id. , 15-1358, p. 3 (Jenkins, J., dissenting). Therefore, the dissent would deny the state's writ application and leave the district court's order that granted defendant a new trial intact. We agree with Judge Jenkins.

"The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions." Missouri v. Frye , 566 U.S. 134, 138, 132 S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012). The United States Supreme Court has long recognized that the right to counsel is the right to the effective assistance of counsel. See McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970) (citing Reece v. Georgia , 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) ; Glasser v. United States , 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Avery v. Alabama , 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940) ; Powell v. Alabama , 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ). Claims of ineffective assistance of counsel are generally governed by the standard set forth by the Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court in State v. Washington , 491 So.2d 1337, 1339 (La. 7/18/86).

To prevail on such a claim, a defendant must first show that "counsel's representation fell below an objective standard of reasonableness." Strickland , 466 U.S. at 687-88, 104 S.Ct. at 2064. The Supreme Court further noted that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error has no effect on the judgment." Id. , 466 U.S. at 691, 104 S.Ct. at 2066. Additionally, the Court reasoned "[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Id. , 466 U.S. at 691-92, 104 S.Ct. at 2067. Thus, the Strickland court held that the "defendant must [also] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. , 466 U.S. at 694, 104 S.Ct. at 2066. The court further explained that in making a determination of ineffectiveness of counsel, "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. , 466 U.S. at 696, 104 S.Ct. at 2053-54.

The state here suggests without evidence that the defense investigator may have pressured the witnesses to recant their identifications, mischaracterized what they said when transcribing it, or otherwise obstructed justice, State's brief at p. 12, and further speculates that counsel may have chosen not to use the information obtained by the investigator for that reason. Thus, the state, in essence, proposes that counsel might have acted strategically to conceal the investigator's misconduct rather than committed professional error. This conjecture does not merit serious consideration, and (if true) could provide further evidence of a failure in the representation. Instead, it seems clear counsel's representation fell below an objective standard of reasonableness. Counsel was provided with information that undermined the witness identifications, in a case that rested entirely on the witness identifications, but did not use it.

In addition, the state faults the district court for considering the strong indicia here that the identifications were unreliable, and further faults the court for seizing on the cross-racial nature of the identifications. Courts, however, have recognized that "centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect," and that, "[o]f all the various kinds of evidence[,] it is the least reliable, especially where unsupported by corroborating evidence." See, e.g., Jackson v. Fogg , 589 F.2d 108, 112 (2d Cir. 1978) ; see also United States v. Wade , 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) ("[T]he annals of criminal law are rife with instances of mistaken identification. [As] Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy.' "). Scholars and judges alike have commented that the inherent risk of misidentification is generally exacerbated by the compelling nature of eyewitness testimony: "there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says[,] 'That's the one!' " Elizabeth F. Loftus, Eyewitness Testimony 19 (1979). As Justice Brennan put it, "eyewitness identification evidence has a powerful impact on juries. Juries seem most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the defendant commit the crime." Watkins v. Sowders , 449 U.S. 341, 352, 101 S.Ct. 654, 661, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting). Furthermore, cross-racial identifications have, in the words of the Fifth Circuit, been "demonstrated to be particularly unreliable." Gonzales v. Thaler , 643 F.3d 425, 432 (5th Cir. 2011).

The only real question here is whether counsel's deficient performance prejudiced defendant. We find it clear that it did. The United States Supreme Court instructed in Harrington v. Richter , 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) as follows:

In assessing prejudice under Strickland , the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is reasonably likely the result would have been different. This does not require a showing that counsel's actions more likely than not altered the outcome, but the difference between Strickland' s prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable.

Richter , 562 U.S. at 111-12, 131 S.Ct. at 791-92 (internal citations and quotation marks omitted). Here, there are stark contrasts between the witnesses' descriptions of the robber's complexion, hair, height, and weight, and those characteristics of the defendant. Furthermore, the convictions rested solely on the witness identifications, which went virtually unchallenged at trial. The likelihood of a different result if that information had been used at trial in a case with no other evidence linking defendant to the crimes is more than conceivable; it is substantial. Therefore, we find it sufficient to undermine confidence in the outcome. We reverse the court of appeal and reinstate the district court's ruling that granted defendant a new trial. The matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

GUIDRY, Justice, dissents and assigns reasons.

Under the standard for ineffective assistance of counsel set out in Stricklandv. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), adopted by this court in Statev. Washington, 491 So.2d 1337, 1339 (La. 1986), a reviewing court must reverse a conviction if the defendant establishes his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and the inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. While defendant's trial counsel may have erred in failing to pursue at trial information provided earlier by the defense investigator, the defendant has failed to satisfy his burden of proving prejudice by any alleged error. As correctly noted by the court of appeal when it reversed the trial court's ruling granting the defendant a new trial, the record reveals each of the three robbery victims assisted the law enforcement sketch artist with the preparation of a composite sketch of the assailant. Each victim selected the defendant as his assailant in a photographic lineup. Moreover, each of the victims identified in open court the defendant as his assailant. In addition to the defendant's presence at trial, the composite sketch and photographic line-up were presented to the jury for their consideration of whether the victims' identifications were reasonable under the given facts. For these reasons, I would affirm the ruling of the court of appeal.

Crichton, J., additionally concurs and assigns reasons.

I agree with the majority opinion, and write separately only to note that this case presents unique facts that led to unreliable identifications made by the victim eyewitnesses. However, the case should not be interpreted to corrode the value of eyewitness testimony as competent direct evidence in Louisiana.

      Specifically, Vargas stated, "The third man was much lighter-skinned than the other two and also had short hair. I also remember that the light-skinned black man had a very distinctive hairline because it was very long, all down the sides of his face."

      A picture of defendant taken before 2007 was used in the photographic lineup. Additionally, defendant was the only individual in the lineup wearing a white sleeveless undershirt, as opposed to a short-sleeve shirt.


text:
    IN RE: Judge E. Jeffrey PERILLOUX
    NO. 2018-O-1083
    Supreme Court of Louisiana.
    June 29, 2018
    ORDER
   Considering the motion for interim disqualification filed by Judge E. Jeffrey Perilloux, and the concurrence thereto by the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Judge E. Jeffrey Perilloux, Fortieth Judicial District Court, Parish of St. John the Baptist, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const. art. V, § 25 (C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately.

NEW ORLEANS, LOUISIANA, this _____ day of ___________________, 2018.

FOR THE COURT:

/s/

JUSTICE, SUPREME COURT OF LOUISIANA


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-574876
    NO. 2018-BA-1197
    Supreme Court of Louisiana.
    July 17, 2018
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on June 28, 2018.

2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").

4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.

5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    IN RE: HARRIER TRUST
    NO. 18-CD-1090
    Supreme Court of Louisiana.
    July 13, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT FOR THE PARISH OF CALCASIEU
   PER CURIAM

GRANTED. The "Order Requesting the Supreme Court to Assign an Ad Hoc Judge" is vacated.

Acting pursuant to our supervisory authority under La. Const. art. V, § 5 (A), by separate administrative process and order, this court will appoint an ad hoc judge to hear the pending motion to recuse.

GENOVESE, J., recused.


text:
    IN RE: Judge Byron C. WILLIAMS
    NO. 2018-O-1000
    Supreme Court of Louisiana.
    July 2, 2018
    ORDER
   Considering the motion for interim disqualification filed by Judge Byron C. Williams, and the concurrence thereto by the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Judge Byron C. Williams, Criminal District Court, Parish of Orleans, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const. art. V, § 25 (C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately.

NEW ORLEANS, LOUISIANA, this _____ day of ___________________, 2018.

FOR THE COURT:

/s/

JUSTICE, SUPREME COURT OF LOUISIANA


text:
    Kevin COOLIDGE v. Austin BUTLER, dba Austin's Auto Salvage
    NO. 2018-C-0313
    Supreme Court of Louisiana.
    April 18, 2018
   Granted. See Order Attached.

Attachment

SUPREME COURT OF LOUISIANA

No. 2018-C-0313

KEVIN COOLEDGE

VERSUS

AUSTIN BUTLER, DBA AUSTIN'S AUTO SALVAGE

On Writ of Certiorari and/or Review

Office of Workers' Compensation,

No. 14-04586, District 1E;

Court of Appeal, Third Circuit, No. 16-937.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.

Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 18th day of April, in the year of our Lord, Two Thousand-Eighteen,

John Tarlton Olivier Clerk of Court


text:
    STATE of Louisiana EX. REL. Vernon WASHINGTON v. Darrell VANNOY, Warden Louisiana State Penitentiary
    NO. 2018-KH-0769
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    NOLA BOURBON, LLC v. Jorge RODRIGUEZ-FRANCO and Lillian Benitez
    NO. 2018-C-0817
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


text:
    STATE of Louisiana v. Jordan WILLIAMS
    NO. 2018-KH-0790
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Oviedo T. GOMEZ
    NO. 2018-KH-0792
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


author: GUIDRY, J., recused.

text:
    STATE EX REL. Simpson WRIGHT v. STATE of Louisiana
    NO. 2017-KH-0673
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Wright v. State, 15-0532 (La. 1/15/16), 182 So.3d 957.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Jacob Zachary KING
    NO. 2018-KH-0713
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Craytonia L. BADGER v. STATE of Louisiana
    NO. 2017-KH-0591
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


author: JOHNSON, C.J., would grant.

text:
    STATE EX REL. Johnny THOMPSON, Jr. v. STATE of Louisiana
    NO. 2017-KH-0600
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.
   JOHNSON, C.J., would grant.

CLARK, J., recused.

HUGHES, J., would grant.


author: WEIMER, J., recused.

text:
    STATE EX REL. Dallas TRAHAN v. STATE of Louisiana
    NO. 2017-KH-0613
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.
   WEIMER, J., recused.


text:
    STATE EX REL. Arthur Ray ROBINSON v. STATE of Louisiana
    NO. 2017-KH-0683
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Robinson v. State, 16-0265 (La. 3/14/16), 186 So.3d 650.


text:
    STATE of Louisiana v. Kirby HUNTER
    NO. 2018-KH-0706
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Cordero J. EWING v. STATE of Louisiana
    NO. 2017-KH-0723
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


text:
    STATE EX REL. Joseph AUSTIN v. STATE of Louisiana
    NO. 2017-KH-0722
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Austin v. State, 15-0031 (La. 3/24/16), 187 So.3d 980.


text:
    STATE EX REL. Dale Shonne SQUARE v. STATE of Louisiana
    NO. 2017-KH-0739
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


text:
    STATE of Louisiana v. Keith HERNANDEZ
    NO. 2018-KH-0789
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.