& SC12-2619 Pablo Ibar v. State of Florida and Pablo Ibar v. Julie L. Jones, etc.

Supreme Court of Florida
____________
No. SC12-522
____________
PABLO IBAR,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC12-2619
____________
PABLO IBAR,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[February 4, 2016]
PER CURIAM.
Pablo Ibar appeals an order of the circuit court denying his motion to vacate
his convictions of first-degree murder and sentences of death filed under Florida
Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas
corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
In this case, there was a lack of physical evidence connecting Ibar to the
triple murders. Ibar’s DNA was not found on a blue t-shirt recovered from the
crime scene which was allegedly used to partially cover the face of the perpetrator
whom the State claimed to have been Ibar. Ibar never confessed to the crime as he
steadfastly proclaimed his innocence, presented an alibi as to his whereabouts, and
has always maintained his innocence.
The crux of the State’s case was a grainy video of the murders taken by a
video surveillance camera installed in the home of Casmir Sucharski, who was one
of the victims. Ibar was identified as one of the perpetrators from photographs
distilled from this videotape. Consequently, identification was key.
Initially, Ibar was tried with codefendant Seth Penalver, but the first trial
ended with a hung jury. Thereafter, Penalver, in a separate trial, was convicted of
committing these murders and sentenced to death. This Court reversed Penalver’s
murder convictions based on numerous errors, Penalver v. State, 926 So. 2d 1118,
1137-38 (Fla. 2006), and Penalver was acquitted on retrial. An essential part of
Penalver’s defense was the assertion that he was not the subject in the videotape
and in support of this he utilized an expert in forensic anthropology. In Ibar’s trial,
Ibar’s private defense attorney, Kayo Morgan, failed to present a facial
-2-
identification expert or forensic anthropologist despite Ibar’s request and his
defense lawyer’s agreement to do so. At the postconviction evidentiary hearing,
Ibar’s attorney, who detailed a litany of personal and professional issues that were
occurring at the time of trial, testified that he did not understand “why [he] failed
in this absolutely critical feature of the case” in not having a facial identification
expert testify, among other failings.
As this record bears out, there was simply no excuse for the numerous
deficiencies and failures of Ibar’s defense attorney. None of the failures can be
attributed to strategic moves nor could remotely constitute acceptable conduct for
an attorney defending a first-degree murder charge with the death penalty being
sought. Under any definition of “deficient performance,” Morgan could not be
deemed to be functioning as defense counsel must perform to fulfill his or her
crucial obligations to the defendant under the Sixth Amendment. While there were
numerous deficiencies in performance, the most salient was the failure of trial
counsel to present a facial identification expert to explain the physical differences
between Ibar and the perpetrator alleged to have been him in the video, and to
demonstrate that the quality of the images were so poor that they were inadequate
to make a reliable identification. As we more fully explain, Ibar has established
prejudice, given the relatively weak case against Ibar with no physical evidence
linking him to the crime, the critical role of his identification derived from the
-3-
video, and the errors we previously identified in Ibar’s direct appeal. Simply put,
we cannot and do not have confidence in the outcome of this trial. Accordingly,
we reverse the trial court’s denial of postconviction relief and remand for a new
trial.
BACKGROUND
The facts of this case are set forth in Ibar’s direct appeal of his first-degree
murder convictions and sentences of death:
On August 25, 1994, Pablo Ibar and Seth Penalver were
charged with three counts of first-degree murder, one count of
burglary, one count of robbery, and one count of attempted robbery.
Penalver and Ibar were initially tried together. The first jury trial
ended with a hung jury. Ibar and Penalver were eventually tried
separately. Both Ibar and Penalver were ultimately convicted and
sentenced to death.
On Sunday, June 26, 1994, a Palm Beach County police officer
discovered a Mercedes SL convertible on fire on a road twelve miles
south of South Bay. The car was registered to Casmir Sucharski,
owner of a nightclub called Casey’s Nickelodeon. The officer who
discovered the car notified the Miramar Police Department. A
Miramar police officer went to Sucharski’s home to tell him that his
car had been found. The officer knocked on the door and received no
answer. He stuck his card in the door and left.
The next morning, Monday, June 27, 1994, Marie Rogers’
mother reported her missing to the Broward County Sheriff’s
Department. Rogers had gone to Casey’s Nickelodeon on Saturday,
June 25, 1994, with her friend, Sharon Anderson, and did not return
home. Deputy Christopher Schaub went to Casey’s Nickelodeon and
learned that Sucharski left the club early Sunday morning with Rogers
and Anderson. Schaub then went to Sucharski’s residence.
Anderson’s car was in the driveway but no one answered the door.
Schaub found a Miramar Police Department business card in the door
-4-
and a blue T-shirt on the porch. He peered inside and saw three
bodies.
The police identified the individuals found in the residence as
Sucharski, Rogers, and Anderson. All three died of gunshot wounds.
Because Sucharski had recently installed a video surveillance camera
in his home, there was a videotape of the actual murders. The tape
revealed that on Sunday, June 26, 1994, at 7:18 a.m., two men entered
through the back sliding door of Sucharski’s home. The intruder
alleged to be Ibar initially had something covering his face, but he
eventually removed it. The other intruder, alleged to be Seth
Penalver, wore a cap and sunglasses, which were never removed, and
carried a firearm. The videotape showed that one of the intruders had
a Tec–9 semiautomatic handgun with him when he entered the home.
The other intruder displayed a handgun only after he went into
another room and left the camera’s view. At one point, the intruder
alleged to be Penalver hit Sucharski with a Tec-9 in the face, knocked
him to the floor, and beat him on the neck, face, and body. This
attack on Sucharski lasted for nearly twenty-two minutes. The man
later identified as Ibar shot Sucharski, Rogers, and Anderson in the
back of the head. The intruder alleged to be Penalver then shot
Anderson and Sucharski in the back.
During this time, the intruders searched Sucharski’s home.
They rummaged through the home and entered the bedrooms and the
garage. Sucharski was searched and his boots removed. Sucharski
struggled and was repeatedly hit by both intruders. The intruders
were seen putting things in their pockets. The State presented
evidence that Sucharski kept ten to twenty thousand dollars in cash,
carried a gun, and owned a Cartier watch. The watch was not found
and Sucharski’s gun holster was empty.
Police took frames from the videotape and produced a flyer that
was sent to law enforcement agencies. Three weeks after the murders,
the Miramar police received a call from the Metro-Dade Police
Department informing them that they had a man in custody on a
separate and unrelated charge who resembled the photo on the flyer.
The man in custody at the Metro-Dade Police Department was Pablo
Ibar. Ibar was interviewed by Miramar investigators. He told police
he lived with his mother, and that on the night of the murders he had
-5-
been out with his girlfriend, whom he called both Latasha and
Natasha.
Ibar actually lived with several friends in a rented home on Lee
Street in Hollywood, Florida. One of his roommates was Jean
Klimeczko. Klimeczko initially identified Ibar and Penalver as the
men on the videotape. Klimeczko told police that early on the
morning of the murders, Ibar and Penalver rushed into the Lee Street
home, grabbed a Tec-9 that was kept at the house, and left. At the
second trial, however, Klimeczko had no memory of his earlier
statements. Other witnesses who had given earlier statements to
police that the men in the photo looked like Ibar and Penalver also
denied making identifications.
The jury found Ibar guilty on each charge.
Ibar v. State, 938 So. 2d 451, 457-58 (Fla. 2006) (footnotes omitted), cert. denied,
549 U.S. 1208 (2007). After a penalty phase with a jury recommendation of death,
the trial court sentenced Ibar to death concluding that the aggravators outweighed
the mitigators. Id.On direct appeal,1 we outlined the evidence against Ibar:
1. Ibar raised the following claims on direct appeal:
(1) whether certain out-of-court statements were “statements of
identification” as contemplated by section 90.801(2)(c), Florida
Statutes (1995); (2) whether the trial court erred in admitting witness
testimony for the purpose of impeaching that testimony; (3) whether
the trial court erred in admitting the transcript of testimony given by a
deceased witness in a prior trial; (4) whether the trial court erred in
allowing the State to introduce hearsay evidence and certain expert
testimony; (5) whether the trial court erroneously precluded the
admission of evidence regarding third-party motive and animosity and
reputation evidence; (6) whether the trial court erred in allowing the
admission of evidence regarding a live lineup; (7) whether the
-6-
In addition to the statements of [Roxana] Peguera, [Marlene] Vindel,
[Maria] Casas, and [Jean] Klimeczko identifying Ibar, which Ibar
concedes was proper as impeachment evidence but not substantive
evidence, there were other witnesses and items of evidence from
which the jury could conclude that Ibar was one of the perpetrators of
this triple homicide. First, there was a videotape of the murders. The
perpetrator identified as Ibar removed his disguise and his face was
visible on the videotape. This videotape was played for the jury.
Gary Foy, one of Sucharski’s neighbors, testified that he saw two men
leaving in Sucharski’s Mercedes-Benz. He stated that he did not get a
good look at the driver of the car, but he got a good look at the
passenger. Foy identified Ibar as the passenger in the Mercedes.
Klimeczko testified that at some point both Penalver and Ibar came to
the residence on Lee Street in a big, black, shiny new car. Although
[Ian] Milman denied that he had ever positively identified Ibar as the
person in the still photograph made from the videotape, he did say that
the person in the photograph resembled Ibar. Moreover, the trial
judge admitted as substantive evidence Milman’s grand jury
testimony in which he positively identified Ibar. [Melissa] Munroe’s
statement placing Ibar and Penalver together during the weekend of
the murder was also admitted as substantive evidence. On the issue of
identification, the jury also heard evidence from Kimberly San and
David Phillips that placed Ibar and Penalver in the Mercedes. Both
Peguera and her mother testified that the person in the photograph
resembled Ibar. We conclude that any error in admitting some of
these identification statements as substantive evidence rather than as
impeachment evidence was harmless error.
Id. at 463. Significantly for our analysis in this case, we found error in allowing
certain identification testimony to be admitted in evidence but concluded that it
was “harmless.” Having concluded that there was no reversible error demonstrated
integrity of the trial was affected by references to certain evidence
denying Ibar due process; [and] (8) whether the death penalty in this
case violates the Florida and Federal Constitutions.
Id. at 459.
-7-
on appeal, we affirmed Ibar’s convictions of first-degree murder and his sentences
of death. Id. at 457.
Ibar thereafter filed his initial motion for postconviction relief, raising claims
of ineffective assistance of trial counsel, due process violations including Brady v.
Maryland, 373 U.S. 83 (1963), and a claim under Ring v. Arizona, 536 U.S. 584(2002).2 Following an evidentiary hearing, the trial court denied Ibar
postconviction relief. In addition to appealing the denial of relief, Ibar filed a
petition for a writ of habeas corpus and for extraordinary relief.
ANALYSIS
Ibar claims that his guilt-phase counsel provided ineffective assistance as a
result of numerous deficiencies in performance and asserts that the deficiencies
resulted in prejudice. Ineffective assistance of counsel claims are evaluated in
accordance with the Supreme Court’s decision in Strickland v. Washington, 466
U.S. 668 (1984). “[T]he test when assessing the actions of trial counsel is not how,
in hindsight, present counsel would have proceeded.” Bradley v. State, 33 So. 3d
664, 671 (Fla. 2010). To succeed on a claim that trial counsel was ineffective, a
defendant must establish two criteria:
2. Ibar raised a claim under Ring v. Arizona, 536 U.S. 584 (2002), which
has now been applied in Florida by the United States Supreme Court in Hurst v.
Florida, 136 S. Ct. 616 (2016). Because we are granting a new trial, we need not
address this claim.
-8-
First, counsel’s performance must be shown to be deficient.
Strickland[, 466 U.S. at 687]. Deficient performance in this context
means that counsel’s performance fell below the standard guaranteed
by the Sixth Amendment. Id. When examining counsel’s
performance, an objective standard of reasonableness applies, id. at
688, and great deference is given to counsel’s performance. Id. at
689. The defendant bears the burden to “overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). This Court has made clear that “[s]trategic
decisions do not constitute ineffective assistance of counsel.” See
Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). There is a
strong presumption that trial counsel’s performance was not
ineffective. See Strickland, 466 U.S. at 669.
Second, the deficient performance must have prejudiced the
defendant, ultimately depriving the defendant of a fair trial with a
reliable result. [Id.] at 689. A defendant must do more than speculate
that an error affected the outcome. Id. at 693. Prejudice is met only if
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. at 694. Both deficient performance
and prejudice must be shown. Id.Id. at 671-72.
Ineffective assistance claims are examined under a mixed standard of review
because the performance and prejudice elements of Strickland present mixed
questions of law and fact. Bradley, 33 So. 3d at 672. Postconviction courts hold a
superior vantage point with respect to questions of fact, evidentiary weight, and
observations of the demeanor and credibility of witnesses. See Cox v. State, 966
So. 2d 337, 357-58 (Fla. 2007). As a result, this Court defers to the postconviction
court’s factual findings so long as those findings are supported by competent,
-9-
substantial evidence. See Bradley, 33 So. 3d at 672. However, this Court reviews
the postconviction court’s legal conclusions de novo. Id. Deficiency and prejudice
are mixed questions of law and fact, so this Court reviews those findings de novo.
Frances v. State, 143 So. 3d 340, 349 (Fla. 2014).
In his claim for ineffective assistance of counsel, Ibar identifies numerous
deficiencies, particularly in that trial counsel failed to procure a facial
identification expert.3 The unrefuted testimony as to the reasons for these multiple
failures came from Ibar’s own defense lawyer, Kayo Morgan. Although we do not
simply accept trial counsel’s concession that he was deficient in performance, the
details of his testimony overwhelmingly bear this out.
As to the issue of facial identification experts, Morgan recalled that Dr.
Iscan, Penalver’s expert witness, testified at Ibar and Penalver’s joint trial that the
3. Ibar also claims that his trial counsel were ineffective in failing to: (1)
procure Dr. Mehmet Iscan to testify that Penalver could not be reliably identified
in the surveillance video; (2) procure the assistance of an eyewitness identification
expert to demonstrate the unreliability of Gary Foy’s identification of Ibar; (3)
introduce testimony from a civil engineer that the perpetrator was two and one half
to three and one half inches shorter than Ibar; (4) effectively investigate and
prepare alibi witnesses; (5) procure and utilize a private investigator; (6) elicit from
Detective Manzella that the Tec-9 from the Lee Street home did not match the
ballistics of the murders; (7) interpose all necessary objections to the inadmissible
trial testimony of Mimi Quinones, Maria Casas, Marlene Vindel, Roxana Peguera,
George McEvoy, and Gary Foy; and (8) seek instructions limiting the jury’s
consideration of out-of-court statements and prior testimony to impeachment and
directing the jury to cautiously evaluate all eyewitnesses’ identification testimony
and identifying factors to consider in determining reliability of identification.
- 10 -
facial features of the individual in the video did not comport with the same
indicators of Penalver, and consequently, Dr. Iscan was unable to make a definitive
identification that the perpetrator in the video was Penalver. Morgan testified that
prior to the joint trial, Dr. Iscan told him that it was even less likely that Ibar was
the perpetrator. During the joint trial, counsel for Penalver requested Morgan to
stay away from Dr. Iscan, and Morgan honored that request.
After the joint trial resulted in a hung jury, Morgan became involved with a
drug addict who became pregnant with his child. Although Morgan was sick with
reoccurring bouts of pneumonia and other complications, he dedicated himself to
the woman. Morgan’s personal life impacted his practice. In January 1999, during
the time of jury selection in Ibar’s case, Morgan was charged with aggravated
battery on the woman. Morgan was in emotional and physical pain, suffering from
extreme duress, and “was not there” mentally. As Morgan explained during the
postconviction evidentiary hearing, his whole concern was the woman, her plight,
and the health of their child.
In defending Ibar, Morgan knew it was of upmost importance for the defense
to draw issues with the witness identification infirmities. From the beginning,
Morgan knew it was incumbent upon him to have a forensic anthropologist or a
facial identification expert, which was “vital” to attack the unreliability of the
identification. Recognizing that Dr. Iscan’s testimony “had to be” in Ibar’s case,
- 11 -
Morgan attempted to have Dr. Iscan meet with Ibar, but Dr. Iscan was out of the
country. Morgan recalled consulting with two other forensic anthropologists, but
they were unable to work for indigent fees. Ibar told Morgan that he wanted a
“forensic thing,” but, despite Morgan’s understanding of the critical nature of such
evidence, Morgan talked Ibar out of it.
In January 1999, per Morgan’s request, Barbara Brush entered her
appearance as Ibar’s second-chair and penalty phase counsel. Morgan intended for
Brush to take some of the load off of him. As a result, Brush participated in the
trial every day unless she was covering for Morgan elsewhere. Delegating the
garnering of expert witnesses to Brush, Morgan instructed Brush that the defense
needed forensic anthropologist Dr. Anthony Falsetti. On January 31, 2000, less
than three months before Ibar’s separate trial was to begin, Morgan faxed Brush a
note which said as follows:
We spoke about getting monies approved for experts. Here are three
we can start with. . . . We will also need the anthropol[o]gist, [Dr.]
Falsetti, who can establish discrepancies in the culprit and Ibar. . . .
As usual I have put my back to the wall. We need to move ASAP.
Defense counsel obtained an order that provided payment for expert fees to Dr.
Falsetti and listed Dr. Falsetti as a potential witness. While Morgan denied having
any contact with Dr. Falsetti himself, Brush’s billing statement reveals that about a
month after the fax, Brush had a twelve-minute telephone conference with Dr.
Falsetti. No other contact was apparently made.
- 12 -
Despite this limited contact with Dr. Falsetti, Morgan understood that
presenting Dr. Falsetti’s perspective to the jury was “vital”—the “heart of the
case”—that he did not understand how he did not “perfect” the participation of Dr.
Falsetti at Ibar’s trial, that he “failed in this absolutely critical feature of the case,”
and that not having a forensic expert was a “significant omission” and not a
strategic decision. Moreover, Morgan did not inform the judge about the extent of
his sickness or about all of the problems in his life in seeking a continuance.
Morgan concluded that he was “defective” in his representation of Ibar.
In April 2000, Ibar’s separate trial commenced. Morgan suffered from
recurring bouts of pneumonia, breathlessness, depression, recurring sinusitis,
bronchitis-like asthma, fatigue, insomnia, nausea, and fluctuating weight.
Morgan’s medical problems worsened as Ibar’s trial progressed. In addition,
Morgan was involved in a custody situation regarding his daughter, and Morgan
wanted to focus on saving his daughter’s mother from her plight. Morgan claimed
he could not withdraw from the case because of a promise he made to Ibar’s
mother.
Morgan acknowledged that during his opening statement he told the jury
they would see significant distinctions between the perpetrator and Ibar, including
differences with their hairlines and eyes and that Ibar had a cut on his eye which
was not seen in the video. Morgan explained that his mind was not fully working
- 13 -
throughout Ibar’s trial, that he conducted poor cross-examinations, that he looked
for shortcuts, and that it was difficult to concentrate. After the jury rendered its
verdict, Morgan was hospitalized. He did not attend Ibar’s sentencing.
Dr. Falsetti testified at the evidentiary hearing that in 2000, facial
recognition was accepted in Florida courts for the comparisons of photographs of
an unknown to a known on a case-by-case basis by anthropologists and
anthropometrists. Dr. Falsetti was certain that he did not consult in Ibar’s case in
2000 and that he never received any material from either Morgan or Brush relating
to the case. Dr. Falsetti stated that had he been contacted then, there would have
been no reason why he would not have been willing to provide his services on
identification issues.
Facial identification expert Raymond Evans testified at the evidentiary
hearing that his work in facial identification is based upon scientific principles and
is accepted as a valid and reliable scientific discipline within the scientific
community—and was so recognized in 2000. Evans explained that because poor
images have some resemblances to a referenced image, lay persons—who are
generally unable to factor in discoloration, distortion, or other factors—may be
lulled into believing that the images have to be depicting the same person.
Evans found the crime scene images distilled from the surveillance
videotape had very poor quality and lighting and very low resolution. Evans
- 14 -
maintained that the images were not adequate to make a reliable identification. In
comparing the facial proportions of Ibar with the perpetrator alleged to have been
him, Evans found discrepancies with their respective jaw lines, right eyebrows, the
width of the mouths, and dorsal ridge shape. Although he was not able to
completely exclude Ibar because of general similarities, Evans opined that it is not
possible to conclude that the perpetrator and Ibar are the same person because of
the noted differences.
Deficiency
Ibar claims that his trial counsel were deficient for failing to procure a facial
identification expert or forensic anthropologist to establish the difficulty in being
able to positively identify Ibar as one of the perpetrators in the crime surveillance
video and photo distillations and to show the physical discrepancies between Ibar
and the perpetrator. After carefully reviewing the record, we conclude that trial
counsel Morgan was deficient for failing to present a facial identification expert to
challenge the State’s charge that Ibar was the perpetrator seen in the videotape
committing the murders at the Sucharski residence.4 This videotape, and the
4. Ibar did not call second-chair counsel Brush to testify at the evidentiary
hearing. As Brush dealt with Dr. Falsetti, we acknowledge the possibility that
Brush’s testimony could have provided insight into the circumstances surrounding
Dr. Falsetti to support a finding that the decision made was “sound trial strategy.”
See Gore v. State, 964 So. 2d 1257, 1269 (Fla. 2007). However, the relationship
between Morgan and Brush was such that Brush acted under Morgan’s direction
and it was clear that Morgan was ultimately responsible to ensure that Dr. Falsetti
- 15 -
images distilled therefrom, were instrumental to the State’s case. Even as early as
the investigation, the police questioned numerous people who knew Ibar and
showed them photographs created from the video to determine whether they
identified the person in the photo as somebody who resembled Ibar. The jury
watched the video—which was of very poor quality—and heard about countless
improper lay witness identifications of Ibar based on these images. While defense
counsel objected to this type of identification evidence being used as substantive
evidence, a point to which we generally agreed on direct appeal, defense counsel
did not present other substantive evidence to challenge this important piece of
evidence, even though he knew it was successfully used in Ibar’s codefendant’s
trial. See Ibar, 938 So. 2d at 463 (holding that the trial court erred in allowing
several prior identifications to be considered as substantive evidence).
Testimony from an expert on the subject matter of facial identification was
certainly admissible. Dr. Iscan testified on behalf of Penalver in the joint trial
which lead to a hung jury, and in Penalver’s separate trial after the defendants were
would testify at Ibar’s trial. Further, based on the billing statement, Brush’s only
contact with Dr. Falsetti was a brief telephone conversation. As Dr. Falsetti
testified, Dr. Falsetti kept consultation records when he received materials and was
asked for an opinion. As it pertained to Ibar, he did not have any consultation
records and never rendered an opinion regarding whether or not the person in the
photograph is consistent with Ibar.
- 16 -
severed from each other, after which Penalver was acquitted. Dr. Iscan, referring
to the same video at issue in this case, testified that
because of the poor quality of the video and the lighting conditions, he
could not reach a positive conclusion about whether the individual in
the video was Penalver. Dr. Iscan noted that there were discrepancies
in the lower half of the face which led him to lean to a conclusion that
the individual on the tape was not Penalver.
Penalver, 926 So. 2d at 1125-26 (footnote omitted). Morgan, Ibar’s trial counsel,
who was suffering from significant personal issues at the time of trial, was
certainly aware of the importance of Dr. Iscan’s expert testimony. In comparing
Ibar to Penalver, Dr. Iscan told Morgan that it was even less likely that Ibar was
one of the perpetrators.
Ibar presented an alibi defense at trial, which was that he was not at the
Sucharski residence at the time of the murders; instead, the defense presented that,
at that time, he was with Tonya Quinones in her home. The calling of a facial
identification expert, therefore, would not have been inconsistent with Ibar’s alibi.
Gary Foy’s identification of Ibar as the passenger in Sucharski’s vehicle leaving
Sucharski’s home on the morning of the murders was strong evidence presented by
the State to suggest that Ibar was one of the perpetrators inside of the home at the
time of the murders.5 Challenging the video by way of a facial identification
5. We note that Foy was impeached with his prior statement to the police
that he “didn’t pay that close of attention” when he drove by Sucharski’s home,
- 17 -
expert to point out problems with the video and the purported identifications of
Ibar was necessary in the face of Foy’s testimony.
In light of the foregoing, we conclude that Morgan’s performance fell below
the standard guaranteed by the Sixth Amendment. We emphasize that in
conducting our review of Morgan’s performance we do not rely on his admission
that he was defective but rather on his complete failure to pursue the important
defense that Ibar was not the perpetrator of the crime through discrediting the
videotape and the State’s evidence as to that identification. See Harris v. Dugger,
874 F.2d 756, 761 n.4 (11th Cir. 1989) (“[A]dmissions of deficient performance by
attorneys are not decisive.”). Ibar has therefore “overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’ ” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
Prejudice
Having found that Morgan was deficient, we must decide whether Ibar has
shown that there is a reasonable probability that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” See id. at 694.
Prejudice is not determined by a “more likely than not” standard but rather is
that his tinted windows were rolled up at the time, that he was looking into the
vehicle from an angle, and that the sun was behind them.
- 18 -
expressed in terms of undermining confidence in the outcome. See Porter v.
McCollum, 558 U.S. 30, 44 (2009); see also Wheeler v. State, 124 So. 3d 865, 873
(Fla. 2013); Jennings v. State, 123 So. 3d 1101, 1113 (Fla. 2013); Alcorn v. State,
121 So. 3d 419, 425 (Fla. 2013). We conclude that Ibar has met this burden.
Raymond Evans, Ibar’s postconviction expert, opined that the crime scene
images were not adequate to make a reliable identification due to the lack of
quality of the images created from the videotape. Finding discrepancies in the
facial proportions of Ibar with that of the perpetrator alleged to have been him,
Evans opined that it is not possible to conclude that the perpetrator and Ibar are the
same person. This type of testimony could have been extremely powerful to
undercut the State’s reliance on the videotape.
Moreover, there was a lack of any DNA or physical evidence linking Ibar’s
involvement to the murders. The videotape reveals that the perpetrator, alleged to
have been Ibar, at one point removed a t-shirt that had been partially covering his
face. See Ibar, 938 So. 2d at 458 (“The intruder alleged to be Ibar initially had
something covering his face, but he eventually removed it.”); State v. Ibar, No.
94CF13062 (Fla. 17th Jud. Cir. Ct. Aug. 28, 2000) (Sentencing Order at 3) (noting
that Ibar “was observed on the videotape, removing a shirt that had been partially
covering his face”). This t-shirt was later discovered on Sucharski’s porch and was
tested for DNA. Notably, although the shirt contained blood, hair, and cellular
- 19 -
material on the collar, none of the evidence obtained from the shirt was consistent
with Ibar’s DNA. In fact, Ibar was excluded as the source of the DNA derived
from small amounts of blood obtained from the t-shirt cutting, the hairs taken from
the t-shirt were not consistent with Ibar’s hair standards, and there was no match
between a partial profile and Ibar as to the cellular material of the t-shirt’s collar
and the left and right underarm.
While identification of Ibar as the perpetrator was the crux of the State’s
case, on direct appeal we held that the trial court “erred in allowing several of the
identification statements to be considered as substantive evidence.” Ibar, 938 So.
2d at 463. Specifically, at trial the State called police investigators to testify that
Roxana Peguera, Marlene Vindel, Maria Casas, and Jean Klimeczko had
previously confirmed the identity of the person in a photograph—created from the
video surveillance tape—as Ibar. Id. at 459-60. We concluded that these prior
identifications should not have been admitted as substantive evidence, but that the
errors were harmless. Id. at 460-64. In our harmless error analysis, we first relied
on the fact that the videotape of the murders was played for the jury, and we
referred to properly admitted identifications of Ibar based on the images. Id. at
463. Our harmless error analysis would have undoubtedly been different in this
case had the surveillance videotape and images been challenged by a facial
identification expert at trial.
- 20 -
There are also similarities between Ibar and Penalver’s case, where we
reversed Penalver’s convictions of three counts of first-degree murder and death
sentences, and remanded for a new trial because he was denied a fair trial by the
prejudicial admission of irrelevant and inadmissible evidence repeatedly elicited by
the State over objections. Penalver, 926 So. 2d at 1138. We reasoned that there
was little evidence offered against Penalver:
While the State presented circumstantial evidence regarding
Penalver’s involvement in the crime, only two pieces of direct
evidence tying Penalver to the murders were presented: a
photographic still taken from a grainy videotape depicting a person
alleged to be Penalver who was attired in a cap and sunglasses that
concealed his face; and a statement allegedly made by Penalver to
another inmate that he had a chance of being acquitted because he did
not remove his mask. In light of the scant evidence connecting
Penalver to this murder and the consequent importance of identifying
the individual depicted on the videotape in sunglasses and hat, we
conclude that the improperly admitted evidence and the State’s
suggestion that the defense tampered with or suborned perjury by an
identification witness meet the cumulative error requirements outlined
above and require reversal.
Id. We also expressed that there was no physical evidence tying Penalver to the
murders. Id. at 1125. Penalver later was acquitted in his retrial.
Similarly, “[i]n light of the scant evidence connecting” Ibar “to this murder
and the consequent importance of identifying the individual depicted on the
videotape,” alleged to have been Ibar, see id. at 1138, we conclude that trial
counsel’s deficiency, in failing to procure a facial identification expert, undermines
- 21 -
our confidence in Ibar’s trial.6 Accordingly, we reverse the trial court’s denial of
postconviction relief.7
CONCLUSION
For the reasons expressed above, we reverse the trial court’s denial of
postconviction relief. Ibar is entitled to a new trial.
It is so ordered.
LABARGA, C.J., and PARIENTE, POLSTON, and PERRY, JJ., concur.
QUINCE, J., dissents with an opinion, in which CANADY, J., concurs.
LEWIS, J., dissents.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
QUINCE, J., dissenting.
I agree that Morgan’s performance was deficient, but based on Ibar’s failure
to establish prejudice, I respectfully dissent from the majority’s decision to grant
6. Because Ibar is entitled to postconviction relief based solely on this
subclaim, we do not consider the other several trial counsel deficiencies raised by
Ibar, see supra at n.2.
7. Because we vacate Ibar’s first-degree murder convictions and sentences
of death and remand for a new trial, we do not address Ibar’s remaining claims
raised in his appeal of the denial of postconviction relief (claim of violations under
Brady and that the State failed to preserve the camera and VHS recorder), or those
contained in his habeas petition (claim that our harmless error analysis on direct
appeal was constitutionally inadequate, that we failed to address Ibar’s Sixth
Amendment claim, and claim of ineffective assistance of appellate counsel).
- 22 -
relief on Ibar’s claim of ineffective assistance of counsel based on Morgan’s
failure to procure a facial identification expert.
In order to establish prejudice, a defendant must show “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.’ ” Bradley, 33 So. 3d at 672(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). While a reasonable
probability need not be “more likely than not,” Strickland, 466 U.S. at 693, the
likelihood of a different result must be “substantial, not just conceivable.”
McQuitter v. State, 103 So. 3d 277, 280 (Fla. 4th DCA 2012) (quoting Harrington
v. Richter, 562 U.S. 86, 112 (2011)). I conclude that Ibar has not met this burden.
While the majority is concerned that some lay witness identifications were
improperly admitted, the jury’s verdict was also based on the proper and
compelling trial testimony of Gary Foy. Foy maintained that he saw two men
leaving in Sucharski’s vehicle, following behind him out of the neighborhood. Foy
got a good look at the passenger who was staring directly at him. Foy described
having “real good eye contact,” and identified Ibar as the passenger in Sucharski’s
vehicle. Additionally, the State played for the jury the videotape of the murders in
which the perpetrator removed a blue t-shirt to expose his face. Jurors were able to
decide for themselves whether Ibar was the perpetrator in the video. While the
- 23 -
majority is concerned that the DNA from the blue t-shirt was not a match for Ibar,
the jury was not. Instead, the jury convicted Ibar. Even if Morgan had secured a
different expert, the probability of a different outcome at trial is not substantial.
The majority notes that none of the experts involved in this case could
identify Ibar as the perpetrator in the State’s videotape with absolute certainty.
None of the experts could exclude Ibar as a potential match either. The expert
witness with whom Morgan spoke after Penalver’s trial, Dr. Iscan, only told
Morgan that in his opinion, Ibar was less likely than Penalver to be one of the
perpetrators in the video. Dr. Falsetti, the expert Morgan failed to retain at trial,
did not opine as to whether the perpetrator in the video could be Ibar. Given the
low quality of the video, none of the experts could have offered a conclusive
opinion as to the perpetrator’s identity that might have had a substantial effect on
the outcome at trial.
Although Ibar’s postconviction expert Raymond Evans opined that it was
impossible to say with certainty that Ibar and the perpetrator are the same person,
Evans further testified that he could not completely exclude Ibar as a potential
match because of the general similarities between them and the low quality of the
videotape. Evans described Ibar and the perpetrator as having similar bilateral
asymmetrical eyebrows and cheek bone widths. When Evans’ description of the
discrepancies is considered against his description of the similarities between Ibar
- 24 -
and the perpetrator, the likelihood that the outcome of Ibar’s trial may have been
different is only conceivable, not substantial. Furthermore, the trial court found
Ibar failed to establish that there was any generally accepted scientific field of
facial identification at the time of his trial. It is unclear how Morgan’s securing
such an expert could have made a difference in the outcome at trial.
The majority is also concerned that this Court’s harmless error analysis on
direct appeal regarding the improper identification statements would have been
different had Morgan secured a facial identification expert at trial. While the
majority may be correct, whether this Court would have made a different
determination on appeal has no bearing on prejudice. Prejudice is concerned only
with a reasonable probability of a different “result of the proceeding,” which Ibar
has failed to demonstrate. Strickland, 466 U.S. at 694.
Finally, the majority cites to Penalver’s case for the proposition that “scant
evidence” connects Ibar to this murder. See supra (quoting Penalver, 926 So. 2d at
1138). However, this Court was discussing Penalver, not Ibar, in the quoted
language. Id. Unlike Ibar, Penalver was not identified by Foy. There was “a
wealth of evidence that connected Ibar to this crime and indicated that he was one
of the intruders captured on videotape at the scene of the murders.” Ibar v. State,
938 So. 2d 451, 463, 466 (Fla. 2006). Therefore, the probability of a different
- 25 -
outcome had Morgan retained a facial identification expert is only conceivable at
best.
Ultimately, Ibar asks this Court to find a reasonable probability that the
outcome of his trial would have been different had trial counsel retained a facial
identification expert. Because the trial court found that Morgan failed to establish
the existence of any generally accepted scientific field of facial identification,
whether he retained such an expert seems to make little difference in Ibar’s case.
Ibar has not shown that an expert could have excluded him as a potential match for
the perpetrator. Ibar has only shown that trial counsel’s failure creates a
conceivable probability that the outcome could have been different. A conceivable
chance of a different outcome does not rise to the requisite level of reasonable
probability and is insufficient to warrant a finding of prejudice under Strickland.
Although I agree that trial counsel was deficient, I would affirm the trial
court’s denial of Ibar’s claim of ineffective assistance of counsel because Ibar has
not demonstrated prejudice under Strickland. Accordingly, I dissent.
CANADY, J., concurs.
- 26 -
Two Cases:
An Appeal from the Circuit Court in and for Broward County,
Jeffrey Richard Levenson, Judge - Case No. 061994CF013062B88810
And an Original Proceeding – Habeas Corpus
Benjamin Samuel Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman,
P.A., Miami, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell,
Assistant Attorney General, West Palm Beach, Florida,
for Appellee/Respondent
- 27 -