State of Florida v. Andrew King ( 2021 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-4166
_____________________________
STATE OF FLORIDA,
Appellant,
v.
ANDREW KING,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.
September 9, 2021
KELSEY, J.
Based on one argument among sixteen raised in Appellee’s
postconviction motion alleging ineffective assistance of trial
counsel, the postconviction court vacated Appellee’s convictions
and three consecutive life sentences. The jury had convicted him
of first-degree murder of an adult woman and her full-term,
unborn quick child, and armed burglary. We reverse.
I. Rule 3.850 Standards.
A movant invoking Florida Rule of Criminal Procedure 3.850
must establish both deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficiency
prong requires a showing that no reasonably competent lawyer
would have performed in the challenged manner; in other words,
that counsel’s errors were “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id.; see also Skrandel v. State, 830 So. 2d 109, 115
(Fla. 4th DCA 2002). The prejudice prong requires a showing that
but for counsel’s deficient performance, it is reasonably probable
that the jury would have reached a more favorable verdict.
Strickland, 466 U.S. at 694.
In deciding a 3.850 motion, the trial court should make “every
effort” to “eliminate the distorting effects of hindsight.” Id. at 689.
The trial court’s reasoning and decision must be supported by
competent, substantial evidence. See Sochor v. State, 883 So. 2d
766, 771–72 (Fla. 2004). While we defer to the trial court’s
conclusions supported by such competent, substantial evidence,
our deference is neither blind nor absolute. We do not defer to
findings unsupported by such evidence. See id. at 772–73.
We review de novo the court’s legal conclusions on deficient
performance and prejudice. Id. at 781. While we respect very much
the trial court’s detailed assessment of this complex case, our
application of the governing legal principles on the record
presented leads us to conclude that the trial court’s decision was
not supported by competent, substantial evidence. Appellee did not
demonstrate either deficient performance or prejudice.
II. Proceedings Below.
These convictions resulted from Appellee’s third trial on the
same charges. The same trial judge presided over the three trials
within a fifteen-month span from June of 2012 to September of
2013. Appellee had the same two very experienced defense lawyers
in all three trials. In the first two trials, the State sought the death
penalty, and the trials ended with hung juries. To avoid a twelve-
2
person capital jury in the third trial, Appellee asked the State to
drop the death penalty claim, and the State did.
Appellee did not testify at any of his trials or at the 3.850
hearing, but his defensive theory was that his then on-and-off
girlfriend, who lived with the victim, committed the murder and
staged the scene to frame him. The six-person jury in the third trial
convicted Appellee as charged, after deliberating less than two
hours. Appellee raised only a Williams-rule argument on his direct
appeal, and we per-curiam affirmed Appellee’s judgments and
sentences. King v. State, 156 So. 3d 1080 (Fla. 1st DCA 2015)
(Table).
Appellee’s 3.850 motion was pro se, but his new postconviction
counsel adopted it and argued for Appellee at a hearing before
another judge, not the one who had tried the case. 1 The sole
argument on which the postconviction court granted relief was
number ten: that Appellee’s trial counsel was ineffective for failing
to introduce evidence of a “temperature discrepancy” between the
inside and outside of the house where the murder occurred. 2
1 Postconviction motions often go before a judge other than the
trial judge. There is nothing wrong with that, although it leaves
the postconviction court unable to make credibility determinations
of trial witnesses.
2 Appellee’s pro-se motion under Rule 3.850 also raised the
following arguments, which the trial court rejected and which
Appellee did not appeal or cross-appeal: 1) failure to move to
dismiss the indictment, 2) failure to move to suppress the
testimony of the State’s jailhouse informant, 3) failure to object to
certain of the State’s comments in closing as prejudicial, 4) failure
to object to the State’s closing comments disparaging the
credibility of defense counsel and the plausibility of the defensive
theory, 5) failure to object to the State’s closing comments on
Appellee’s silence, 6) failure to object to the State’s use of a prior
inconsistent statement by Appellee’s mother as substantive
evidence, 7) defense counsel’s stipulation to the State’s
introduction of cellphone records that the State had not provided
to the defense, 8) failure to call three witnesses to impeach the
girlfriend’s testimony, 9) failure to object to prejudicial evidence
3
III. The Lead-Up and the Murder.
The murder likely occurred between 4:00 and 8:00 a.m. on
Tuesday, June 8, 2010, in Arlington, on the southeast side of
Jacksonville. Because the evidence developed at trial is necessary
to evaluate the prejudice prong of Strickland—i.e., whether
counsel’s alleged deficiency reasonably could have made a
difference in the outcome—we set out the relevant facts at some
length. This is especially necessary when the defense is that
another person committed the murder, because the analysis
involves the comparative likelihood of guilt of two persons rather
than the defendant alone. 3
Since March of 2010, Appellee’s girlfriend had a full-time day
job, and also had been attending night classes to become a medical
assistant, which she described as an aide “below a nurse.” The
classes lasted four to five hours a night, Monday through
Thursday.
The girlfriend rented a small house of about 700 square feet.
In April, she allowed the victim to move in, in exchange for
babysitting and housekeeping services during the many hours a
day when the girlfriend was at work or school. The victim, who was
pregnant, was the paternal aunt of the girlfriend’s two-year-old
son, who also lived at the house. There was some evidence of a
contentious relationship between the victim and the girlfriend,
concerning the unsolved murder of the informant’s father,
11) failure to object to the State’s prejudicial opening comments on
Appellee’s mental state, 12) failure to object to the State’s closing
argument that a motive for the killing was established, 13) failure
to object to prejudicial hearsay testimony from the lead detective
and the girlfriend about the victim’s fear of Appellee, 14) failure to
object to improper opinion testimony from the girlfriend that she
believed Appellee was responsible for breaking into the home and
re-arranging things, 15) failure to object to hearsay testimony from
the lead detective concerning the content of text messages sent
among several witnesses, and 16) cumulative error.
3 In addition, our detailed analysis may facilitate any further
review for future state and federal courts.
4
including an incident in May when the victim hit the girlfriend in
the head.
Appellee moved into the home after the victim did. The two
had a contentious relationship. The victim did not like Appellee,
was often rude and malicious toward him, and tried to convince
the girlfriend to leave him. Appellee demanded that the girlfriend
choose between him and the victim, because he would not stay
while the victim was living there. Given the ultimatum, the
girlfriend chose to keep the victim there. Appellee blamed the
victim for coming between him and his girlfriend. He moved in
with his mother only five blocks away.
Shortly after that, on May 12, Appellee committed criminal
mischief at the house, which he admitted, and for which he was
placed on probation. Appellee had been asking the girlfriend to
return his laptop computer, which she refused to do and told him
(falsely) that it was gone, which made him angry. The girlfriend,
her son, the victim, and a third person—whom Appellee
erroneously thought was another of the girlfriend’s boyfriends—
were in the house. The front door was not locked, and Appellee still
had keys to the house. Appellee came to the house armed with a
claw hammer and demanded entry, which was refused. Appellee
flew into a rage, kicked through the wooden panel at the bottom of
the front door, and used the hammer to break the glass in the front
door, sticking his head through the opening.
Police were called. Appellee waited for them without fleeing,
and admitted guilt. He was found guilty of criminal mischief and
ordered to stay away from the residence. Nevertheless, he and the
girlfriend resumed their intimate relationship. About two weeks
after that incident and two weeks before the murder, on May 24,
the girlfriend suffered a miscarriage.
On June 4, Appellee brought a lawn mower to the girlfriend’s
house and mowed the grass. He also cut a hole in the drywall for
the dryer vent. The girlfriend later testified that the tool he used
to cut the hole had “teeth” on it. No such tool was ever found.
On June 6, two days before the murder, the girlfriend had to
take the victim to the hospital because the victim was experiencing
5
labor pains, which turned out to be a false alarm. Appellee stayed
at the house babysitting for the girlfriend’s child while the two
women were at the hospital. They returned home late, and the
following morning, June 7, the two women had a fight in which the
victim stated she wanted to leave.
Later that day when the girlfriend was going to her night class
after working her day job, the victim called the girlfriend and told
her that her son (the girlfriend’s) had received a large number of
ant bites and needed to go to the hospital. The girlfriend went
home, picked up her son and the victim, and headed to the
emergency room. The victim insisted on stopping to eat first, which
irritated the girlfriend. Ultimately, after they waited for several
hours without being seen at the emergency room, the boy seemed
better, so they went home and put him to bed. By then it was after
eleven o’clock. Around midnight, Appellee came to the home and
took out the trash, which apparently was not unusual. At 1:05
a.m., there was a phone call from the girlfriend’s phone to a man
who lived in Palatka, and evidence later indicated that the victim
had called him using the girlfriend’s phone because she wanted to
leave Jacksonville and go back home to Palatka.
A little before 1:00 a.m., Appellee had received on his phone
evidence that the girlfriend had sent a topless picture of herself to
another previous boyfriend. Appellee’s mother later testified that
she saw Appellee at her house at 1:00 a.m. with his phone, and he
told her about this picture. This news set off an exchange of tense
texting and phone calls between Appellee and the girlfriend. The
girlfriend was also irritated that Appellee had not returned a baby
bed, saying they would need it for the victim very soon. Around
3:26 a.m., Appellee texted the girlfriend that he was going to leave
his keys to her house at the end of her driveway, “so that I don’t
get accused of something I didn’t do.” He also texted that he was
already walking through the neighborhood. The girlfriend later
testified that the victim advised her not to go outside, but the
girlfriend checked the driveway anyway and the keys were not
there.
Phone and text records later showed that Appellee’s texts
continued until 3:49 a.m. The girlfriend stopped responding to
Appellee’s texts around 2:00 a.m. Appellee texted the girlfriend’s
6
aunt, with whom he was friends, at 2:00 a.m. He said he really
needed to talk to her. She did not respond. The last outgoing phone
call from the girlfriend’s phone was to another man (the one to
whom she had sent the topless photo) at 3:25 a.m.
The girlfriend testified that she went to bed about 4:00 a.m.,
setting ten alarms on her phone to ensure she would wake up for
work. She put the phone, plugged into its charger, on her pillow.
She put her glasses on her nightstand. There is no evidence of any
texts or calls initiated by, or answered by, the girlfriend or the
victim between approximately 4:05 a.m. and 10:25 a.m. on June 8.
Appellee called the girlfriend’s cell phone at 3:12, then called
the landline phone at 3:18, 3:20, and 3:22. None of these calls was
answered. His last text to her was at 3:49 a.m. He did not call or
text the girlfriend between 3:49 and 5:28 a.m. Between 5:28 and
5:38 a.m., he called her three times using *67 (to block incoming
caller identification). At 5:44, he called again, without using *67.
She did not answer any of these calls. He made no calls between
5:44 and 8:02 a.m.
Appellee’s mother, a school-bus driver, testified that after she
had talked to him at 1:00 about the topless photo, he was not at
her house at 3:30 when she got up to make coffee. At about 5:00
when she left for work, he was at her house on the couch where he
routinely slept, appeared to be sleeping, and was fully covered up;
she kept the house cold inside. When she got home at 8:00, he was
again not home, so she called him at 8:19. He arrived within two
to three minutes, and asked to use her washing machine to wash
some of his clothes—something she testified he had never done
before.
Appellee texted the girlfriend’s aunt at 9:06 a.m. and called
her at 9:08. There was no indication from the aunt’s testimony that
Appellee knew anything about the murder. Appellee texted a
friend at 8:02, saying he was at work, which a detective later
testified was false. The record does not establish the time at which
Appellee would have learned from someone else that the victim
had been killed.
7
The girlfriend testified that she awoke around 10:00 a.m. even
though it was a workday and she had set multiple alarms on her
phone to ensure that she got up on time. She noticed that her
phone and glasses had been moved and were not within reach
where she had put them. She saw two pieces of yellow rope on her
bedroom floor (a nylon fish stringer with a sharp piece of metal on
one end and a loop on the other), which she had never seen before;
and part of one of her t-shirts on the bed pillow next to hers. She
found her phone and glasses in the living room. She took pictures
of the rope and her torn t-shirt with her phone.
The girlfriend called out to the victim, who was sleeping on
her left side at her usual place on a love seat in the living room.
The victim’s face was uncovered and her right arm was outside of
the cover as well. The victim did not respond, which the girlfriend
said was normal for the victim. The girlfriend checked on her son,
who was still sleeping. She testified that she did all of this without
realizing that the victim was dead, and without noticing the
victim’s visible injuries and blood.
At 10:25, the girlfriend called her aunt and told her what she
had seen, suggesting Appellee was trying to scare her, which the
girlfriend later testified Appellee had previously tried to do. The
girlfriend’s aunt suggested she check to see if her car was still
there, so when her son got up, the girlfriend got her car keys from
an end table within inches of the victim’s head, and went outside
to check her car. She saw that the landline phone wire was cut and
the cable was unhooked (not cut). Appellee used to work for a cable
company and had installed her cable for her.
The outside laundry room door at the back of the house was
ajar. The door from the laundry room into the kitchen was also
open. Appellee’s keys to the house were on the dryer. She took
more pictures and sent them to her aunt. When she went back
through the kitchen into the living room, her son was asking the
victim to turn on cartoons, but the victim did not respond. The
girlfriend testified that at this point she saw something dark
coming from the victim’s mouth, which she thought was drool or
food, because the victim often ate pudding or candy before falling
asleep. The girlfriend then pulled the covers off of the victim and
saw that she appeared to be dead.
8
She called her aunt first, who told her to call 911, which she
did at 10:50 a.m. She first reported a break-in and told the 911
operator that a rope and cloth had been left near her, before
reporting that her friend would not wake up and had blood “all
over her face.” The operator asked if rescue was needed, and the
girlfriend said she thought the victim was dead, and that Appellee
had done it. During the 911 call she said that she had found her
phone in the laundry room, but at trial she testified she found it
on the kitchen table in the dining area.
First responders arrived by 10:57, and the girlfriend, holding
her son, was outside hysterically shouting something that sounded
like an intruder had gone out a back window. Two responders
briefly entered the house, saw that the victim was dead, and went
back outside. A second team of several officers conducted a
protective sweep of the house. Because the goal was to make sure
no one was hiding under the piles of clothes and other significant
clutter in the house, an officer admitted at trial that it was possible
that they disturbed items in the house. There was no evidence of
forced entry at any door or window.
Detectives then started photographing the scene. They found
the back door open, two pieces of yellow rope like a “fish stringer”
separated by a few feet on the floor of the girlfriend’s bedroom, a
kitchen knife on the floor, a piece of the girlfriend’s yellow t-shirt
on the pillow next to the girlfriend’s, and the sheath of a fish fillet
knife on the top bunk in the boy’s room next to a sippy cup. The
only blood they found was on the victim’s body and on the love seat
under her upper torso. A second sweep the next day turned up
another piece of the girlfriend’s yellow t-shirt in the bathroom.
At trial, the defense presented evidence that the pictures the
girlfriend took and sent to her aunt differed from the pictures
detectives took, suggesting the girlfriend had moved items
(including the sippy cup) after she took her pictures, in an effort to
frame Appellee. The defense also pointed out that investigators
failed to check drains in the house for evidence of blood, failed to
test for fingerprints in obvious places like the back door and the
keys found on the dryer, and failed to look for the missing knife or
any other evidence in a shed behind the house or in the girlfriend’s
9
car parked outside. The defense argued that although Appellee
washed some clothes the morning of the murder, the shoes he had
been wearing were not washed or cleaned, and bore no evidence of
blood or anything else incriminating.
When police went to apprehend Appellee, they initially went
to the wrong house, across the street from his mother’s. He was
outside on his porch the whole time, watching them. He made no
attempt to flee.
Appellee’s mother reported to police that a fish fillet knife was
missing from her house, and she believed she had just used it
within the previous few days, after June 4 (when Appellee mowed
the girlfriend’s lawn and cut a hole for the dryer vent). At trial, she
admitted it might have been the previous Memorial Day holiday
when she last used it—before June 4. She also testified that she
used to fish, and the yellow fish-stringer rope looked like one that
had been on her front porch just recently but had gone missing.
The defense argued that Appellee could have used the rope to tie
his lawnmower down when driving to the girlfriend’s house
(presumably in the vehicle shown in evidence pictures, a Chevy
Blazer SUV, although the picture showed tread separating from a
front tire, which Appellee mentioned in a June 5 text message).
Defense counsel argued Appellee could have used the fish fillet
knife to cut a hole in the wall for the dryer vent. The girlfriend
disagreed, testifying that Appellee had used a small saw with teeth
to cut the hole. The tool used to cut the dryer hole was never found.
Appellee’s mother also identified the knife sheath found at the
murder scene as the one missing from her house. Appellee’s DNA
was the major contributor to the DNA on the knife sheath and the
rope, while none of the girlfriend’s DNA could be identified on
those items. The t-shirt had DNA from both Appellee and the
girlfriend on it.
At trial, the State presented testimony from a jailhouse
informant, who said Appellee had confessed in full to him,
including details not available to the public. This informant
claimed that Appellee had told him he put a pillow over the victim’s
face during the murder, but no such pillow was ever found, and
there was no forensic evidence indicating that a pillow had been
10
used. The informant said he made notes of what Appellee told him,
then destroyed the notes, but then prepared a summary for
prosecutors. The defense vigorously impeached him based on his
destruction of his purported notes, as well as on his prior felony
convictions and his motive to help the State for favorable
treatment (though none had been offered at that time). The
defense also suggested the informant had accessed Appellee’s legal
papers, including police reports, kept in his cell (though the two
did not share a cell but were housed in the same pod).
The medical examiner testified that the victim was killed by
multiple stab wounds with a blade consistent with that of a fish
fillet knife. He owned and used one and was quite familiar with its
characteristics. The stab wound that likely happened first
penetrated downward behind the victim’s upward (right) ear over
10 centimeters (3.9 inches) deep, nearly severing the victim’s
spinal column. This would have rendered her unable to defend
herself or to call out, except for perhaps a brief sound or two. A
second major stab wound entered on the back of the victim’s
upward (right) arm and penetrated nearly ten inches through the
chest into the lung, severing major arteries. The medical examiner
testified that the victim would have died in “a large number of
seconds to a small number of minutes.”
The medical examiner had testified in the second trial that
there were no blowfly eggs on the body, and that the absence of
blowflies or larvae was not unusual because blowflies do not
always come to a body, especially one indoors; and their arrival
time is not precise in any event. Blowfly evidence was not elicited
in the third trial.
The victim’s full-term baby girl was removed from her
mother’s body during the autopsy. The medical examiner testified
that the baby was perfectly normal and would have lived if her
mother had not first died.
IV. The Temperature Issues.
Appellee’s girlfriend called 911 at 10:50 a.m., and police
arrived at 10:57. The back door from the laundry room to the
outside, which was at the very back corner of the house, was open
11
far enough that a person could walk through it, and the door
between the laundry room and kitchen was also open. There was
no official weather information in evidence to establish the area’s
temperatures during the relevant time of the previous night
through the afternoon’s investigation.
The lead detective testified that she responded to the scene at
12:22 p.m., and did not enter the house that day. Instead, she went
directly to where other detectives had placed the girlfriend, and
took her to the station to be interviewed. She nevertheless testified
that her written report (which was not itself entered into evidence)
indicated the inside temperature was 70 degrees and the outside
temperature was between 75 and 78 degrees. She was not asked
to, and did not, explain when the temperature readings were made
or by whom, given that she did not enter the house until the
following day, June 9. Further, there was no evidence about how
someone arrived at these temperatures; i.e., whether by subjective
estimate or through some objective measurement.
In the second trial, a detective testified that the outside
temperature was in the 90s, but that testimony did not come into
the third trial. The postconviction court sua sponte resolved the
discrepancy between the second and third trial testimony in favor
of “finding” that the outside temperature was 75 to 78 degrees.
One of the evidence technicians, who took photographs mostly
inside the home around mid-day into early afternoon on the day of
the murder, testified that it was hot and they had to change gloves
frequently. This evidence technician took a picture of the
thermostat inside the home. The picture shows a digital display,
with the number “79” in large digits filling most of the screen. On
a level with the bottom of the numbers and to their left was the
word “TEMP.” Below both “TEMP” and “79,” and centered at the
bottom of the display, was the word “COOL.” Here is the picture:
12
No record evidence, neither photographic nor testimonial,
indicated where the thermostat was mounted. Nor was there any
evidence about how it functioned or whether it was functioning
properly at the time. There was no evidence establishing whether
the “79” on the display was indicating the existing interior
temperature or the temperature that would trigger the cooling
function to start. There was no evidence about whether the reading
was accurate, whether the air conditioning function was
operational, or whether it came on at any time while law
enforcement personnel were in the house.
There was also no scientific or expert evidence about what the
inside temperature should have been if the thermostat had been
set to avoid cooling, in light of the relevant variables including
actual outside temperatures the previous night and the morning
of the murder. In addition, evidence pictures showed that the back
half of the house was shaded with mature trees, but there was no
evidence or discussion about how factors such as shading or
insulation efficiency of the house would affect the inside
temperature, nor about how a door left open at the back corner of
this particular house would affect the temperature in the
remainder of the house in light of all other variables.
The thermostat picture was a trial exhibit admitted into
evidence in both earlier trials. In the first trial, defense counsel
asked the evidence technician if the thermostat was “set to” 79,
and she agreed; but in the second trial she testified simply that it
“was at” 79. In closing argument, defense counsel briefly
mentioned the thermostat only as an example of detailed police
work, and did not present any argument about a temperature
13
discrepancy. In the second trial, defense counsel argued in closing
that it could not have been 70 in the house if it was 90 degrees
outside and the doors were open. He did not mention the
thermostat.
At the beginning of the third trial, counsel for both parties
stipulated into evidence the previous trial exhibits, including the
picture of the thermostat. At the end of the trial, the judge
instructed the jury that items in evidence would go back to the jury
room with them and they could refer to the evidence. However,
other than questioning the detectives about the conditions they
encountered at the house, Appellee’s trial counsel did not ask
additional questions about the temperatures or the thermostat,
nor mention the temperatures in either opening or closing
argument.
V. The Postconviction Hearing.
In relevant part, Appellee’s postconviction counsel argued
that the thermostat picture would have supported Appellee’s
defensive theory that his girlfriend committed the murder and
then staged the murder scene to frame him. Counsel argued that
if, as the girlfriend maintained, the back door of the house had
been open for at least several hours before she woke up at 10:00, it
would have been warmer inside than the 70 degrees reflected in
the lead detective’s report. Postconviction counsel assumed,
without supporting evidence, that the thermostat picture meant
that the system had been set so that the air conditioning would not
come on until the inside temperature reached 79 degrees, and that
the weather conditions and other factors were such that the house
would have been warmer to a meaningful degree without the
girlfriend’s interference.
During testimony at the evidentiary hearing, postconviction
counsel asked one of Appellee’s trial lawyers if there had been any
reason to omit the picture of the thermostat in the third trial. He
said no. Trial counsel explained that he and his co-counsel had
originally considered the thermostat only potentially relevant to a
blowfly defense; i.e., that if the girlfriend’s story were true, there
would have been blowflies and probably larvae on the body by the
time the body was collected. But once the medical examiner
14
testified that there were no larvae on the body, and that blowflies
are not that predictable at all and it was not surprising that there
was no blowfly activity, that argument was no longer viable. So,
for strategic reasons, they did not believe the thermostat would
have helped them.
The postconviction court took the matter under advisement,
and then sua sponte ordered the State to file the trial transcripts
from the first two (capital) trials, which the State did. After
reviewing those earlier transcripts, the court entered the order on
appeal, addressing each of the sixteen issues. The court did not
hold a new hearing about the earlier transcripts (but neither did
the State move for rehearing afterwards). The court vacated all of
Appellee’s convictions and sentences based solely on the
temperature-discrepancy argument: “[T]his Court finds trial
counsel performed deficiently by failing to present any evidence or
argument regarding the inside/outside temperature discrepancy
and the seventy-nine degree thermostat setting at [Appellee’s]
third trial.” 4
The postconviction court relied upon the “evidence” that the
thermostat was “set to” 79 degrees, that it was 70 inside, and that
it was 75 to 78 degrees outside—sua sponte resolving in favor of
these lower outside temperatures the inconsistency between the
75/78-degree evidence and a detective’s earlier testimony that it
was in the 90s. The court concluded that because evidence of a
temperature discrepancy, including the thermostat picture, was
introduced in the first two hung-jury mistrials, and not in the third
trial (which is inaccurate, as noted above), that must have been
the reason the third jury reached a verdict and convicted Appellee.
The postconviction court found it a “relatively convincing
defense” that the girlfriend committed the murder and then
4 The postconviction court noted the desire to “make[] clear
that counsel [were] not deficient in carrying out their duties at any
other point while representing Defendant during his three trials.
In fact, counsel’s prior representation resulted in two hung juries,
which highlights the skill, professionalism, and commitment trial
counsel exhibited during the course of representing Defendant.”
15
framed Appellee for it. The court described the girlfriend’s
testimony about her conduct on the morning of the murder
“borderline outlandish under the circumstances.” The court
further noted that “the various objects strewn about the house
suggesting Defendant was the perpetrator would be something you
would expect to find if someone was trying to frame someone else
for a crime.” The court found the temperature discrepancy “strong
physical evidence” that “may have very well” caused the jury to
come to a different conclusion, because “it would be impossible for
the inside temperature of the house to have been seventy degrees
when the thermostat was set to seventy-nine degrees and one of
the doors had been left open for hours to an outside temperature
in the mid-to-high seventies.” The court therefore concluded that
there was a reasonable likelihood that Appellee would have been
acquitted if his defense counsel had presented additional evidence
and argument about the temperatures and the thermostat. Thus,
the court found that the thermostat evidence alone was sufficient
to satisfy both the deficiency and the prejudice prongs of
Strickland. We will now explain why we respectfully disagree.
VI. Applying Strickland.
A. Lack of Competent, Substantial Evidence.
As noted above, we must defer to the postconviction court’s
findings of fact to the extent that they are supported by competent,
substantial evidence. On the other hand, we do not defer to
conclusions not rooted in competent, substantial record evidence,
or those that amount to speculation or assumptions. See Calhoun
v. State, 312 So. 3d 826, 846 (Fla. 2019) (rejecting “speculation and
conjecture” as a basis for relief where the effect of evidence is not
clear) (quoting Conner v. State, 979 So. 2d 852, 863 (Fla. 2007));
Holden v. Holden, 667 So. 2d 867, 869 (Fla. 1st DCA 1996) (noting
“guesses or assumptions” are not competent evidence to support a
factual conclusion); State v. Miller, 46 Fla. L. Weekly D1775, 2021
WL 3436343, at *3–4 (Fla. 5th DCA Aug. 6, 2021) (rejecting as
lacking competent, substantial evidentiary bases the trial court’s
conclusions about potential cell phone GPS data, where the record
lacked evidence that the data existed or that it would favor the
defendant). We find that postconviction counsel’s arguments
rested on assumptions, and on multiple facts not supported by
16
competent, substantial evidence. The same flaws flowed through
to the order under review, which also mistook the scope and import
of the evidence and argument in the first two trials.
As we have noted already, Appellee’s trial counsel did not
present argument about the thermostat picture and temperature
discrepancy in either of the first two (capital) trials. The records of
the first two trials show, to the contrary, that although the
thermostat picture was admitted into evidence in both trials,
counsel did not present argument about temperature discrepancy
in the first trial. In the second trial, counsel argued temperature
discrepancy based solely on the lead detective’s reported 70-degree
inside temperature and an evidence technician’s testimony about
the 90-degree outside temperature. The thermostat did not factor
into that argument. Therefore, the comparison of the third trial to
the first two was not supported by the record evidence.
On top of that factual misapprehension about arguments
made in the first two trials, the postconviction court stacked the
conclusion that the thermostat evidence is what caused the first
two juries to hang, resulting in mistrials. This is conjecture and
not supported by evidence. It is impossible to conclude to the
requisite level of evidentiary certainty that any one issue made the
difference between the earlier mistrials and the verdict in this
case. It could just as easily, or more likely, have been the difference
between a capital and a six-person jury, among other factors. This
part of the analysis partakes of inappropriate hindsight, which
cannot form a valid basis for postconviction relief. See Strickland,
466 U.S. at 689 (cautioning against the “distorting effects of
hindsight”).
In addition, the evidence of the 70-degree inside temperature
lacked a factual foundation. That figure came exclusively from the
lead detective’s report, but she testified that she did not enter the
house until the next day. Since she was not in the house on the
only relevant day, and there was no evidence of where the 70-
degree number came from, her testimony was not competent to
establish that inside temperature as fact. See Rivera v. State, 859
So. 2d 495, 507 (Fla. 2003) (affirming trial court’s exclusion of
witness testimony not based on personal knowledge, as not
competent to support postconviction relief). Because no other
17
evidence established the inside temperature that day, no factual
foundation supported the conclusion that it was 70 degrees inside
the house when law enforcement arrived. See Williams v. State,
257 So. 3d 1192, 1196 (Fla. 1st DCA 2018) (quoting section 90.604,
Florida Statutes, for the proposition that “a witness may not testify
to a matter unless evidence is introduced which is sufficient to
support a finding that the witness has personal knowledge of the
matter”).
Without competent evidence that the inside temperature was
70 degrees, the remaining record evidence established only that it
was hot inside the house. Another detective, an evidence
technician, testified that it was in the 90s outside and hot inside
the house as they were taking photographs and collecting
evidence. Further, no evidence or argument addressed other
related issues about the weather the night before and the morning
of the murder, nor the effect of other potentially relevant factors
such as shading and insulation and the open back door. The
defense did not have sufficient competent, substantial evidence to
establish the inside temperature, so there was no foundation for a
“temperature discrepancy” argument. Thus, the postconviction
court’s determinative conclusions about the inside and outside
temperatures lack an appropriate evidentiary basis.
The thermostat picture does not provide the necessary
competent, substantial evidence, because it is inconclusive. The
court’s conclusions that the thermostat was “set to” 79 degrees,
that the air conditioning would not come on until the interior
temperature reached 79, that the inside temperature was below
79, and the ultimate conclusion—that the girlfriend may have so
set the system to help the house warm up quickly—are all based
on assumptions about how the thermostat functioned. No evidence
of any kind, from a fact or expert witness, established how the
thermostat worked and what the display indicated. On its face, the
picture shows that the word “temp” is aligned with the “79,”
suggesting “79” indicates the temperature in the house. In fact,
Appellee stated in his pro-se 3.850 motion that the “79” indicated
the temperature inside the house, and he suggests the same in his
initial brief before us (while also arguing that the number reflects
a setting).
18
The lack of definitive evidence establishing the significance of
the “79” on the thermostat display, particularly in light of
incompetent or inconclusive evidence about inside and outdoor
temperatures, reduces the picture of the thermostat to the status
of inconclusive at best. Argument about it would have been
speculative. This does not constitute competent, substantial
evidence and does not support Appellee’s postconviction motion.
Cf. State v. Plummer, 228 So. 3d 661, 667–68 (Fla. 1st DCA 2017)
(finding competent, substantial evidence to support 3.850 relief
where armed-robbery defendant presented expert testimony at
postconviction evidentiary hearing conclusively demonstrating
that the weapon used in the robbery was an airsoft gun (a
nondeadly weapon) rather than a “true” BB gun (a deadly
weapon)—thus negating an element required to convict the
defendant of a first-degree felony).
B. Deficiency under Strickland.
We review the factual components of the postconviction
court’s deficiency conclusion for competent, substantial evidence;
and the legal conclusion of deficiency de novo. Sochor, 883 So. 2d
at 772. Counsel are not deficient under Strickland unless they
perform below minimum constitutional standards. 466 U.S. at 687;
see also Ponticelli v. State, 941 So. 2d 1073, 1094 (Fla. 2006)
(holding that deficiency under Strickland means counsel’s
performance fell “below an objective standard of reasonableness”).
Because the thermostat picture and argument about the
temperature discrepancy lack a legally sufficient evidentiary basis
under Strickland, we reverse the related finding that counsels’
performances were deficient. The thermostat picture was in
evidence in the third trial, but because it was inconclusive and
other evidence necessary to develop the temperature-discrepancy
defense was not competent or was nonexistent, counsel were not
deficient for failing to argue this theory in opening or closing. As
the postconviction court noted, Appellee’s trial counsel were very
highly experienced and performed admirably, and well within the
Strickland standards. The available evidence about the
thermostat and the inside and outside temperatures was
inconclusive at best. Working with what they had and refraining
19
from advancing arguments not supported by competent evidence,
counsel were not deficient.
C. Prejudice under Strickland.
Again for the prejudice prong of Strickland, our review is for
competent, substantial evidence as to facts, and de novo as to the
legal conclusion of prejudice. Sochor, 883 So. 2d at 772. Applying
these standards, we do not find that there is a “reasonable
probability” that the result would have been different if defense
counsel had been able to, and did, argue the temperature
discrepancy at trial.
The postconviction court reasoned that this argument would
have added weight to the defense theory that the girlfriend was
guilty of the murder, especially since the timeline and the evidence
of the girlfriend’s actions the morning of the murder were
“borderline outlandish under the circumstances.” We cannot
disagree with the court’s characterization of the evidence against
the girlfriend. She was on scene and alone with the victim; she had
had a very difficult several weeks and days leading up to the day
of the murder; she was likely sleep-deprived and exhausted; and
she had just been caught two-timing Appellee, resulting in a
drawn-out confrontation and argument by text and telephone into
the early morning hours. She had a history of conflict with the
victim and knew the victim wanted to move back to Palatka, which
would leave her without a free caretaker for her young son. The
jury readily could have concluded that the girlfriend killed the
victim in a fit of anger and frustration.
In addition, the defense presented substantial physical
evidence casting doubt on the girlfriend’s innocence. The dead
victim lay with her face and right arm uncovered within only a few
feet of the girlfriend’s bedroom door. The landline phone that the
girlfriend said she tried to use was on the floor only a couple of feet
in front of the body. The girlfriend admitted she picked up her car
keys from the end table only inches away from the victim’s head.
She literally would have had to stand within inches of the victim’s
head and reach over it to retrieve her keys. The whole house was
so small, and the living space even smaller of course, that the
girlfriend was within scant feet of the victim’s body for the fifty
20
minutes between the time she claimed she woke up and when she
called 911. She claimed to have spent the first half of that time
walking around the house taking pictures of disturbed items, all
the time within feet of the body. She claimed to have noticed
something dark running out of the victim’s mouth, which she
thought was pudding or candy, but did not mention noticing a
gaping and bloody stab wound on the victim’s upward-facing, and
uncovered, right cheek; nor the stab wound on the exposed right
arm.
When the girlfriend finally called 911, she described the rope
and t-shirt first before disclosing that the victim was dead. She
wasted no time in identifying Appellee as the perpetrator. She told
the 911 operator she found her cell phone in the laundry room, but
testified later that she found it on the kitchen table in the dining
area. A witness testified that the girlfriend made statements to her
that were inconsistent with the girlfriend’s trial testimony,
including that she had rolled the body over before calling 911.
The defense ably demonstrated that the physical evidence at
the scene appeared to have been staged. The girlfriend’s cell-phone
pictures did not match evidence technicians’ photos of the interior.
The yellow fish-stringer rope, which would function properly only
as one continuous piece of rope with a gig at one end and a loop at
the other, was cut in two pieces; and the t-shirt appeared to have
been cut in two. There was a knife from her kitchen in the bedroom
as well. She claimed a sippy cup was on her nightstand when she
woke up but had not been there when she went to bed; but when
detectives arrived, a sippy cup was on the top bunk bed in her son’s
room immediately beside and aligned parallel to the knife sheath,
exactly as if someone carrying both items set them there to pick up
a child.
Even without defense counsel’s argument about the possible
temperature discrepancy, all of this is substantial evidence
supporting Appellee’s defensive theory that the girlfriend was the
perpetrator. This presented a fair jury question, and the jury
convicted Appellee after deliberating less than two hours. We
cannot conclude that there is a “reasonable probability,” as
required by Strickland, that the result of the trial would have been
21
different if defense counsel had presented argument that there
was a temperature discrepancy.
On the other side of the evidentiary scale, the State presented
substantial evidence of Appellee’s guilt. The jury had voluminous
witness testimony and records of text messages and phone calls
demonstrating both Appellee’s fixation on the girlfriend and very
strong dislike and resentment of the victim. The evidence of
Appellee’s recent rage-fueled criminal-mischief break-in added
weight. The communications on the night of the murder showed
that Appellee was again hurt and angry.
The timelines established two gaps of time during which
Appellee could have walked the short distance to the girlfriend’s
house and committed the murder. He would have known that the
girlfriend was a heavy sleeper and exhausted. Further, his own
mother provided evidence that Appellee reappeared at her house
two to three minutes after she called him at 8:19, wanting to wash
and then washing some of his clothes in her washing machine,
which he had never done before. The knife sheath and fish stringer
came from her house, where Appellee lived. Appellee had
experience as a cable technician and had installed cable at the
girlfriend’s rented house, and whereas the outside landline phone
wire was cut, the cable was merely disconnected.
Appellee texted the victim that he was leaving his keys on the
driveway, “so that I don’t get accused of something I didn’t do.” His
DNA was the only identifiable DNA on both the rope pieces and
the knife sheath. A jailhouse informant, despite the usual
handicaps attendant to testimony from a convicted felon with
something to gain, nevertheless provided very detailed
information corroborating several facts of the murder that would
not have been available to the public.
On balance, in light of the evidence of Appellee’s guilt and the
competent testimony that it was hot inside the house at the
relevant time, we cannot conclude that there is a reasonable
probability that arguing a temperature discrepancy to the jury
would have produced an acquittal. We therefore reverse the
postconviction court’s order vacating Appellee’s judgments and
22
sentences, and remand for further proceedings consistent with this
decision.
REVERSED and REMANDED.
ROBERTS and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Ashley Moody, Attorney General, and Virginia Harris, Assistant
Attorney General, Tallahassee; and Sheila Ann Loizos, Assistant
State Attorney, Jacksonville, for Appellant.
S. Nicole Jamieson of the Law Office of S. Nicole Jamieson,
Fernandina Beach; and Susanne K. Sichta, Jacksonville, for
Appellee.
23