State v. Anthony M. Jackson , 2016 Fla. App. LEXIS 17109 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant/Cross-Appellee,
Case No. 5D15-1524
v.
ANTHONY MARKIECE JACKSON,
Appellee/Cross-Appellant.
________________________________/
Opinion filed November 10, 2016
3.850 Appeal from the Circuit
Court for Orange County,
Wayne C. Wooten, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Roark Wall,
Assistant Attorney General, Daytona
Beach, for Appellant/Cross-Appellee.
Paula C. Coffman, Orlando, for
Appellee/Cross-Appellant.
COHEN, J.
The State appeals the order granting Anthony Markiece Jackson’s motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. 1 Jackson was
convicted of attempted first-degree murder with a firearm, robbery with a firearm, and
aggravated battery with a firearm, and sentenced to thirty years’ imprisonment. The
1Jackson cross-appeals only the summary denial of his “stand your ground” claim.
No appeal was taken from the summary denial of the other claims raised. We affirm the
summary denial of the “stand your ground” claim without further comment.
postconviction court vacated Jackson’s sentence and ordered a new trial based on the
ineffectiveness of Jackson’s trial counsel. We reverse.
On the night of August 31, 2007, Jackson entered Arnold Felix’s taxi cab and
requested a short ride to a residential neighborhood. When the cab arrived at the
destination, Jackson handed Felix a debit card for payment, but the card was declined.
Felix’s and Jackson’s versions of what happened next differ. At trial, Felix claimed that
when he informed Jackson that the card was declined, Jackson told him he had a second
card. Jackson then sprayed Mace into his eyes. Felix reached into the back seat and
grabbed Jackson, and Jackson shot him twice in the neck. Realizing he was shot, and
fading in and out of consciousness, Felix pressed an emergency button in the cab to notify
emergency responders. Jackson fled, taking with him Felix’s wallet and cell phone, along
with the keys to the cab.
Jackson testified that he had attended a high school football game earlier in the
evening and had taken a gun for protection, along with a box of ammunition, Mace, and
latex gloves. 2 After the game, Jackson went to Universal Studios and later decided to
take a cab home. Jackson testified that the cab doors unlocked when the cab stopped at
the destination, but that Felix locked the doors because his debit card was declined and
Felix refused to allow him to leave. 3 He also testified that he had an additional credit card
but claimed he never presented it to Felix because “it never crossed [his] mind.” Jackson
claimed Felix became aggressive, grabbed and choked him, and threatened to kill him.
2Jackson claimed, somewhat incredibly, that he needed the gloves because he
had a cousin who dealt drugs.
3Felix testified that the doors automatically lock during the ride and are only
unlocked after the fare has been collected.
2
which opened the door to damaging testimony that effectively undermined his claim of
self-defense. The postconviction court held an evidentiary hearing solely on the issue
raised in claim J. The court granted Jackson’s motion for postconviction relief, finding that
Jackson’s counsel was ineffective for raising the insanity defense because it was
unsupported by the evidence and opened the door to damaging testimony.
Initially, the State argues that Jackson’s rule 3.850 motion was procedurally
barred. It contends that the issue of ineffective assistance of counsel was raised and
decided in the initial appeal and is, thus, the law of the case. Yet, the scope of review on
direct appeal differs from the scope of review for a rule 3.850 postconviction motion. A
finding that Jackson did not show error apparent on the face of the record to obtain relief
on direct appeal would not preclude a finding of ineffective assistance of counsel after an
evidentiary hearing on a rule 3.850 motion. See Clarke v. State, 102 So. 3d 763, 764-65
(Fla. 4th DCA 2012); Allen v. State, 100 So. 3d 747, 748 (Fla. 2d DCA 2012).
The State also argues that claim J was untimely because it raised an entirely new
claim more than two years after issuance of the appellate mandate. See Fla. R. Crim.
Pro. 3.850(b) (requiring that a motion be brought within two years of the judgment and
sentence becoming final absent exceptions). The motion for postconviction relief that was
timely filed alleged that counsel erred in failing to present additional evidence in support
of the insanity defense. Claim J took the opposite approach, claiming ineffective
assistance of counsel in raising an insanity defense at the outset. Although the State’s
argument that the amendment was untimely appears to have merit, it is of no avail
because the State did not raise the issue in the lower court. 5 Cf. Cook v. State, 638 So.
5 The irony of the State’s failure to raise this issue below in an ineffective
assistance of counsel case is not lost on us.
4
which opened the door to damaging testimony that effectively undermined his claim of
self-defense. The postconviction court held an evidentiary hearing solely on the issue
raised in claim J. The court granted Jackson’s motion for postconviction relief, finding that
Jackson’s counsel was ineffective for raising the insanity defense because it was
unsupported by the evidence and opened the door to damaging testimony.
Initially, the State argues that Jackson’s rule 3.850 motion was procedurally
barred. It contends that the issue of ineffective assistance of counsel was raised and
decided in the initial appeal and is, thus, the law of the case. Yet, the scope of review on
direct appeal differs from the scope of review for a rule 3.850 postconviction motion. A
finding that Jackson did not show error apparent on the face of the record to obtain relief
on direct appeal would not preclude a finding of ineffective assistance of counsel after an
evidentiary hearing on a rule 3.850 motion. See Clarke v. State, 102 So. 3d 763, 764-65
(Fla. 4th DCA 2012); Allen v. State, 100 So. 3d 747, 748 (Fla. 2d DCA 2012).
The State also argues that claim J was untimely because it raised an entirely new
claim more than two years after issuance of the appellate mandate. See Fla. R. Crim.
Pro. 3.850(b) (requiring that a motion be brought within two years of the judgment and
sentence becoming final absent exceptions). The motion for postconviction relief that was
timely filed alleged that counsel erred in failing to present additional evidence in support
of the insanity defense. Claim J took the opposite approach, claiming ineffective
assistance of counsel in raising an insanity defense at the outset. Although the State’s
argument that the amendment was untimely appears to have merit, it is of no avail
because the State did not raise the issue in the lower court. 5 Cf. Cook v. State, 638 So.
5 The irony of the State’s failure to raise this issue below in an ineffective
assistance of counsel case is not lost on us.
4
Jackson and prepared a report finding that “[Jackson] was sane at the time of the offense
and it is my opinion he did not meet the insanity criteria.” Later, when the State moved to
have its own experts appointed to examine Jackson and included Dr. Danziger as one of
those experts, Manuel did not object because she did not remember that Dr. Danziger
had previously evaluated Jackson. The prior communication between Jackson and Dr.
Danziger was protected by the attorney-client privilege, and Manuel should have objected
to the State’s appointment of Dr. Danziger as its expert.
At trial, Manuel introduced the insanity defense through the testimony of Dr.
Charles English, a clinical psychologist. The postconviction court determined that,
“Despite having no evidence of insanity, counsel decided to pursue an insanity defense
which had no hope of succeeding and, in fact, led to damaging testimony against the
Defendant.” While it is true that Dr. English did not parrot the Florida legal standard for
insanity, sometimes referred to as a modified M’Naghten standard, 9 Dr. English testified
that Jackson “had a psychotic breakdown that caused him to believe the victim was going
to kill him.” He also testified that Jackson was delusional and was hallucinating at the time
of the shooting. Dr. English opined that Jackson was temporarily insane at the time of the
incident. While the State’s experts disagreed with Dr. English, and the jury did not accept
Jackson’s insanity defense, the postconviction court’s conclusion that no evidence of
insanity was presented is not supported by the record.
must be true for experts privately retained for a similar purpose without the assistance of
the trial court.”).
9 Under Florida law, the defendant must show that he or she suffers from mental
illness, which caused the defendant either to not know what he or she was doing or to not
understand that the conduct was wrong. § 775.027, Fla. Stat. (2007).
7
rendered ineffective assistance of counsel in Jackson’s case. 7 As the trial judge noted,
however, an attorney’s testimony is not dispositive of the issue. See Breedlove v. State,
692 So. 2d 874, 877 n.3 (Fla. 1997).
Central to the postconviction court’s decision was its conclusion that Jackson’s
insanity defense effectively negated his claim of self-defense. The defenses of insanity
and self-defense can be presented together if the evidence of insanity helps to explain
why the defendant believed his or her life was in imminent danger. See, e.g., Martin v.
State, 110 So. 3d 936, 939 (Fla. 1st DCA 2013); Wallace v. State, 766 So. 2d 364, 371
(Fla. 3d DCA 2000). The presentation of potentially inconsistent defenses becomes
problematic, though, when the presentation of one defense effectively negates the other
defense. But cf. Hannon v. State, 941 So. 2d 1109, 1139 (Fla. 2006) (finding no ineffective
assistance of counsel for failure to present additional defense when that defense was
inconsistent with defendant’s primary defense).
In contemplation of presenting an insanity defense, Manuel initially had Dr. Jeffrey
Danziger appointed to evaluate Jackson’s mental health. 8 Dr. Danziger examined
7 Manuel testified that the error she most regretted was allowing Jackson’s family
to influence her decisions. She testified that they pressured her to pursue an insanity
defense, which clouded her judgment. Manuel stated that the family was in her office
constantly, and they insisted that she present the insanity defense. However, the record
demonstrates that Jackson was in regular communication with his family and acquiesced
to the decisions made by Manuel. Jackson, in fact, requested Manuel to pursue the
insanity defense.
8 According to the record, Dr. Danziger was appointed pursuant to Florida Rule of
Criminal Procedure 3.216, but this rule does not apply to defendants represented by the
Public Defender’s Office. Nevertheless, this Court has reasoned that the same attorney-
client privilege created by rule 3.216 applies to all experts retained specifically to aid in
the preparation of defense at trial. See Manuel v. State, 162 So. 3d 1157, 1160 (Fla. 5th
DCA 2015) (“The rule contemplates that mental health experts appointed by the trial court
for the purpose of determining the competency of indigent or partially indigent defendants
are beholden to the attorney-client privilege. Although not expressly stated, the same
6
Jackson and prepared a report finding that “[Jackson] was sane at the time of the offense
and it is my opinion he did not meet the insanity criteria.” Later, when the State moved to
have its own experts appointed to examine Jackson and included Dr. Danziger as one of
those experts, Manuel did not object because she did not remember that Dr. Danziger
had previously evaluated Jackson. The prior communication between Jackson and Dr.
Danziger was protected by the attorney-client privilege, and Manuel should have objected
to the State’s appointment of Dr. Danziger as its expert.
At trial, Manuel introduced the insanity defense through the testimony of Dr.
Charles English, a clinical psychologist. The postconviction court determined that,
“Despite having no evidence of insanity, counsel decided to pursue an insanity defense
which had no hope of succeeding and, in fact, led to damaging testimony against the
Defendant.” While it is true that Dr. English did not parrot the Florida legal standard for
insanity, sometimes referred to as a modified M’Naghten standard, 9 Dr. English testified
that Jackson “had a psychotic breakdown that caused him to believe the victim was going
to kill him.” He also testified that Jackson was delusional and was hallucinating at the time
of the shooting. Dr. English opined that Jackson was temporarily insane at the time of the
incident. While the State’s experts disagreed with Dr. English, and the jury did not accept
Jackson’s insanity defense, the postconviction court’s conclusion that no evidence of
insanity was presented is not supported by the record.
must be true for experts privately retained for a similar purpose without the assistance of
the trial court.”).
9 Under Florida law, the defendant must show that he or she suffers from mental
illness, which caused the defendant either to not know what he or she was doing or to not
understand that the conduct was wrong. § 775.027, Fla. Stat. (2007).
7
The State called Dr. Danziger to rebut Dr. English’s testimony as a witness at trial.
Manuel’s only objection was to prohibit the State from mentioning that Dr. Danziger had
originally been retained by the defense. Manuel did not object to the fact that Dr.
Danziger’s report was based on information gained during the course of a confidential
interview. Dr. Danziger testified that Jackson said during the interview that he thought he
could not leave the cab, and he realized the police were on the way. Jackson told Dr.
Danziger that he knew he could be arrested and go to prison, so he tried to escape. He
said he pulled the trigger after realizing he could go to prison for having a firearm. This
version of events conflicted with Jackson’s theory of self-defense. Manuel failed to protect
Jackson’s attorney-client privilege and as a result allowed damaging, confidential
information to come into evidence. Manuel’s failure to preserve Jackson’s attorney-client
privilege constituted deficient performance of counsel.
Additionally, there is evidence from the postconviction hearing that despite her
years of experience, Manuel had an incorrect understanding of the burden of proof for the
insanity defense. At the hearing, Manuel appeared unaware that the burden of proof for
insanity is clear and convincing evidence. Manuel also testified that she believed a
burden-shifting framework applied to the insanity defense, although she later clarified that
she knew that insanity was an affirmative defense. 10
Based on Manuel’s failure to preserve Jackson’s attorney-client privilege, and her
misunderstanding of Florida law on insanity, we agree with the postconviction court that
Manuel rendered ineffective assistance of counsel under the first prong of Strickland. The
more difficult issue is whether Jackson established prejudice under the second prong of
10At trial, Manuel stated in her closing argument that the burden was on the State
to prove Jackson’s sanity beyond a reasonable doubt.
8
Strickland, which requires Jackson to demonstrate that but for the ineffective assistance
of counsel, there was a reasonable probability that the result at trial would have been
different. 466 U.S. at 694. In evaluating the prejudice prong, this Court has a duty to
conduct an independent review of the lower court’s legal conclusions, without particular
deference, to ensure the consistent application of constitutional principles across all
appellate cases. See Stephens v. State, 748 So. 2d 1028, 1031-34 (Fla. 1999)
(reaffirming an appellate court’s duty to scrutinize conclusions of law in the context of
ineffective assistance claims).
We find that Jackson did not establish prejudice because the evidence against him
was overwhelming, and his claim of self-defense was internally inconsistent. To be
justified in using deadly force, the person must “reasonably believe[] that . . . [deadly]
force is necessary to prevent imminent death or great bodily harm to himself or herself.”
§ 776.012(2), Fla. Stat. (2007). Jackson admitted that he got into the cab with a gun, a
box of ammunition, Mace, and latex gloves. He claimed that Felix became so enraged
over a ten-dollar fare that he locked Jackson in the car, and grabbed and strangled him—
although Jackson also acknowledged that Felix told him he was going to call the police.
Despite hearing the police sirens and knowing the police would be on the scene
momentarily, Jackson nonetheless shot Felix and took his wallet, cell phone, and keys to
the cab.
Jackson admitted that he fled the scene and that he buried the stolen items along
with his bloody clothes, hoping that the items would never be discovered. He offered no
explanation at trial for taking Felix’s cell phone or the keys to the cab. We do not believe,
given all of the incriminating evidence and the inconsistency between Jackson’s stated
9
motivation and his actions, that there is a reasonable probability that a jury would find that
Jackson’s use of force was justified.
We understand the postconviction court’s inclination to award Jackson a new trial
based on the admitted ineffectiveness of his trial counsel, but Strickland requires Jackson
to show that such errors prejudiced the result in this case. We have reviewed the record
exhaustively and are unable to conclude, given the overwhelming evidence of guilt, that
Jackson has met that burden. Thus, the court erred in vacating Jackson’s conviction.
REVERSED and REMANDED for reinstatement of Jackson’s conviction and
sentence.
LAMBERT, J., and LEMONIDIS, R., Associate Judge, concur.
10