Norman J. Thompson v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-403
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NORMAN J. THOMPSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.
April 22, 2019
ROWE, J.
Norman Thompson was convicted in 2013 for the sexual
battery of a six-year-old girl and sentenced to life imprisonment.
After his judgment and sentence were affirmed, Thompson v.
State, 174 So. 3d 453 (Fla. 1st DCA 2015), Thompson moved for
postconviction relief, raising multiple claims of ineffective
assistance of counsel. The postconviction court summarily denied
his motion, and this appeal follows. We affirm.
Facts 1
The investigation that led to Thompson’s arrest began when a
homeless man named Dwayne Lampley reported to police that a
mother was prostituting her six-year-old daughter (S.G.) for drugs
and money. Lampley was a drug addict who would go to the
mother’s residence to do drugs. Lampley described the house as a
“crack house” where the children (S.G. and her younger brother)
were neglected. The children were frequently unclean, without
clothing, and hungry because they didn’t have enough food.
Lampley witnessed at least seven men, including Thompson
(whom he knew as “NJ”), “mess” with S.G. He did not see
Thompson physically molest the child but recalled once seeing
Thompson give S.G. a bath. He also saw Thompson grab the child
on her thigh and then chase her upstairs. Lampley reported the
child’s living conditions to the police after S.G. asked Lampley to
help her and her mother.
S.G., who was living with her grandmother at the time, was
interviewed by an investigator from the Department of Children
and Families. S.G. initially denied any abuse. But S.G.’s
grandmother suspected that the child had denied the abuse out of
fear. The grandmother’s suspicions arose from her discovery of an
unusual discharge in the child’s underwear during a visit months
before DCF began its investigation of the mother. When the
grandmother learned that DCF was investigating potential abuse,
she asked her granddaughter if anyone had touched her other than
her family. S.G. told her grandmother that “NJ” and two other
men had touched her. She said that “NJ” would lie on top of her
and “wiggle.” S.G. added that “NJ” was her “boyfriend” but that
she was not supposed to tell her mother about their relationship.
The grandmother knew that “NJ” had rented one of the rooms in
her daughter’s house for a time.
Following S.G.’s disclosures to the grandmother, the
grandmother took S.G. to a second interview with the Child
1 We take judicial notice of this Court’s records in Thompson’s
direct appeal. See Floyd v. State, 257 So. 3d 1148, 1153 n.* (Fla.
1st DCA 2018).
2
Protection Team. During the interview, S.G. recounted her sexual
battery by three men, including one called “NJ.” S.G. stated that
“NJ” placed his “weenie” on her “coochie.” S.G. picked all three
men out of a lineup and identified Thompson as “NJ.” Thompson
was arrested and charged with sexual battery on a child less than
the age of twelve.
At trial, S.G.’s mother admitted to a long-term addiction to
crack cocaine and recalled that Thompson would come to her house
to do drugs. Thompson also lived in the house for a short period of
time. S.G. never reported abuse to the mother, and the mother
never saw Thompson physically abuse S.G. The mother did,
however, recall once walking in on Thompson giving S.G. a bath.
When she confronted him about it, Thompson insisted that it was
not “a big deal” and he “was just urinating.” Another night, she
saw Thompson in S.G.’s bedroom crouched beside the bed holding
S.G. in his arms. The mother noted that both Thompson and S.G.
were clothed at the time. Thompson claimed he was comforting
S.G. after waking from a bad dream. The mother recalled another
instance where she found candy, unopened children’s movies,
children’s toys, and a douche in Thompson’s suitcase.
S.G.’s interview with the Child Protection Team was played
for the jury. S.G. also testified via a prerecorded video. At the time
of her perpetuated testimony, she was in first grade. S.G. testified
that when she lived with her mother, men would come over to
“smoke.” “NJ” would bring her candy and snacks and told her that
he was her “boyfriend.” “NJ” once told her to get on the bed, then
got on top of her and put his “weenie” in her. S.G. used anatomical
dolls to demonstrate what “NJ” did to her.
In the video of S.G.’s perpetuated testimony, defense counsel
cross-examined S.G. The child could not recall seeing “NJ’s”
“private part,” or seeing Thompson or her mother without clothes.
She did not tell her mother about the bad things happening to her,
but she did tell her grandmother. S.G. did not recall talking to
police or other officials with uniforms or badges.
The jury returned a verdict finding Thompson guilty as
charged. Thompson was sentenced to life imprisonment and
designated a sexual predator. Following the summary denial of
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his motion for postconviction relief, Thompson appealed to this
Court.
Analysis
We review the summary denial of a postconviction motion de
novo. Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st DCA 2015). We
affirm the summary denial of a motion alleging claims of
ineffective assistance of counsel where the claims are legally
insufficient or conclusively refuted by the record. Crumitie v.
State, 842 So. 2d 271, 273 (Fla. 1st DCA 2003). To raise a legally
sufficient claim, the movant must allege that counsel’s
performance was outside the range of reasonable professional
assistance, and there is a reasonable probability that the outcome
would have been different but for counsel’s deficient performance.
Curran v. State, 229 So. 3d 1266, 1268-69 (Fla. 1st DCA 2017)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). If a
legally sufficient claim is raised, “the trial court must attach
portions of the record that conclusively refute the claim[] in order
to properly issue a summary denial.” Ortiz v. State, 968 So. 2d 681,
684 (Fla. 1st DCA 2007). Because there was no evidentiary
hearing in this case, we accept the factual allegations as true to
the extent they are not refuted by the record. Nordelo v. State, 93
So. 3d 178, 186 (Fla. 2012). Here, Thompson raised twelve 2 claims
of ineffective assistance of counsel, all of which are either legally
insufficient or conclusively refuted by the record.
Thompson argued that his defense counsel was ineffective for
failing to challenge Lampley’s affidavit, which was used to
establish probable cause for Thompson’s arrest. Thompson
asserted that Lampley did not write the affidavit and was not
administered an oath, therefore the affidavit was invalid. The
trial court denied this claim because Thompson failed to allege
what he believed defense counsel should have done to challenge
the validity of Lampley’s affidavit. Assuming Thompson intended
2In his postconviction motion, Thompson raised a thirteenth
claim of cumulative error. Because Thompson did not argue
cumulative error in his initial brief, we cannot consider the claim.
See Williams v. State, 845 So. 2d 987 (Fla. 1st DCA 2003).
4
to argue counsel was ineffective for failing to move to dismiss the
charges for a lack of probable cause, “an indictment or information
may not be dismissed by a trial court on the ground that the police
unlawfully arrested the defendant based on no probable cause.”
State v. Spencer, 443 So. 2d 1086, 1086 (Fla. 3d DCA 1984).
Moreover, the record reflects that the arrest warrant was
supported by sufficient probable cause. “Unlike the burdens of
proof in a criminal trial, the obligation to establish probable cause
in an affidavit may be met by hearsay, by fleeting observations, or
by tips received from unnamed reliable informants whose
identities often may not lawfully be disclosed, among other
reasons.” Johnson v. State, 660 So. 2d 648, 654 (Fla. 1995)
(citations omitted). Here, the arrest affidavit indicates that it was
based not only on Lampley’s affidavit, but also the detective’s
independent investigation of the alleged crimes. That
investigation included listening to S.G.’s recorded interview,
during which the child named Thompson as one of the men who
sexually battered her. Because the arrest warrant was supported
by probable cause, any challenge based on the credibility of
Lampley’s affidavit would have been meritless. Counsel cannot be
deemed ineffective for filing a meritless motion. Lugo v. State, 2
So. 3d 1, 21 (Fla. 2008). Therefore, the trial court properly denied
this claim.
Thompson next claimed that his defense counsel was
ineffective for failing to object to the jury composition where the
State struck every African-American juror from the jury panel.
The trial court properly summarily denied this claim as legally
insufficient. Postconviction relief predicated on the failure to raise
a Neil 3 objection cannot be granted unless counsel’s error resulted
in a jury that was not impartial. Carratelli v. State, 961 So. 2d 312(Fla. 2007); Pryear v. State, 243 So. 3d 479, 483-83 (Fla. 1st DCA
2018). Thompson failed to allege that the jury selected was not
impartial. He was given an opportunity to amend this claim but
failed to remedy the defect. See Nelson v. State, 977 So. 2d 710,
711 (Fla. 1st DCA 2008) (“Spera [v. State, 971 So. 2d 754 (Fla.
2007),] does not impose on trial courts or court personnel the
nearly impossible burden to . . . explain why the claims are
3 State v. Neil, 457 So. 2d 481 (Fla. 1984).
5
insufficient or how to cure the insufficiency.”). Thus, the trial court
properly denied this claim.
In his next claim, Thompson argued that his defense counsel
was ineffective for failing to investigate the case and adequately
prepare for trial. Thompson asserted that if counsel had spent
more time with him, counsel would have learned information,
which if used at trial, would have led to a different outcome. This
claim was properly denied. Thompson claimed that counsel would
have learned that the State’s witnesses were tampered with to give
false and misleading statements, and S.G.’s testimony was
coached. But he gave no further details about who was tampering
with the witnesses or facts to support his claim that S.G. was
coached. The conclusory nature of these allegations rendered this
claim legally insufficient. Mohr v. State, 17 So. 3d 1249, 1249 (Fla.
2d DCA 2009). Thompson also claimed that had counsel
adequately prepared for trial, he would have learned that the State
edited the videos shown at trial to exclude a portion of the video
during which S.G. allegedly recanted and the portion containing
defense counsel’s cross-examination of S.G. However, this
allegation is refuted by Thompson’s own admission that the trial
transcript showed those portions of the video were played for the
jury. Thompson further contended that counsel would have
learned other relevant information to aid in his defense, including
the fact that Thompson was an acquaintance of S.G.’s family, and
Lampley was a police informant. That Thompson was an
acquaintance of S.G.’s family does not create reasonable doubt as
to his guilt. And he failed to explain how discovery of Lampley’s
status as a police informant would have changed the outcome of
the case. Thompson did not establish that there was a reasonable
probability the result of the trial would have been different had the
jury heard this information. See Strickland, 446 U.S. at 694.
Accordingly, the trial court properly denied this claim.
Thompson next claimed that his defense counsel was
ineffective for failing to object to the playing of edited versions of
the recorded videos. He contended that the videos played for the
jury omitted the portion of the Child Protective Team interview
where S.G. allegedly recanted and the cross-examination portion
of S.G.’s perpetuated testimony. However, Thompson conceded
that the trial transcript shows these portions of the videos were
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played for the jury. As the record conclusively refutes this claim,
the trial court properly denied it. See Crumitie, 842 So. 2d at 273.
Next, Thompson claimed that his defense counsel was
ineffective for failing to object to what he argued were two
instances of false testimony. He essentially raised two Giglio 4
claims, both of which the trial court denied as legally insufficient.
To allege a legally sufficient Giglio claim, a defendant must
demonstrate that the trial testimony was false, the prosecutor
knew it was false, and the testimony was material. Clemmons v.
State, 1 So. 3d 1256, 1256 (Fla. 4th DCA 2009). Thompson alleged
that the detective gave false testimony regarding S.G.’s
identification of Thompson at a photo-line up. But he failed to
allege that the detective deliberately lied, that the prosecutor
knew the detective lied, or that defense counsel had reason to
believe the detective lied. Id. Although Thompson was given an
opportunity to amend this claim to remedy the pleading
deficiencies, he failed to do so. See Nelson, 977 So. 2d at 711(“Although a trial court in its discretion may grant more than one
opportunity to amend an insufficient claim, Spera does not
mandate repeated opportunities.”). Thompson also asserted that
Lampley provided false testimony in that his trial testimony was
inconsistent with his deposition testimony. However, inconsistent
testimony does not equate to false testimony. Moreover, counsel’s
performance with respect to Lampley was not deficient, as the
record reflects that he cross-examined Lampley about these
inconsistencies. As both legally insufficient and conclusively
refuted by the record, the trial court properly denied this claim.
See Crumitie, 842 So. 2d at 273.
In his next claim, Thompson argued that his counsel was
ineffective for failing to impeach Lampley, whom Thompson
describes as the State’s “key witness.” The trial court properly
denied this claim because Thompson failed to establish either
deficient performance or prejudice. The record shows defense
counsel cross-examined Lampley about his known drug use and
4 Giglio v. United States, 405 U.S. 150 (1972), provides a
remedy where the State has knowingly presented perjured
testimony at trial.
7
unstable life and questioned him about the inconsistencies in his
story. Thompson did not suggest what line of testimony would
have been more effective in impeaching Lampley “or how the
failure to do so affected his trial.” See Mohr v. State, 17 So. 3d
1249, 1249 (Fla. 2d DCA 2009). Moreover, there is no reasonable
probability that impeaching Lampley would have changed the
outcome of the case in light of S.G.’s perpetuated testimony and
where Lampley never testified that he saw Thompson sexually
abuse the child. See Kormondy v. State, 983 So. 2d 418, 432-33
(Fla. 2007) (finding failure to impeach state witnesses was not
ineffective where there was sufficient evidence of guilt). Therefore,
the trial court properly denied this claim.
Thompson next claimed that his defense counsel was
ineffective for failing to call an expert witness to testify generally
about child sexual abuse. Defense counsel retained an
independent medical expert to examine S.G. and, although the
expert was under subpoena, defense counsel decided not to call the
expert at trial. The trial court properly denied this claim as
conclusively refuted by the record. During Thompson’s case-in-
chief, the court inquired whether Thompson agreed with counsel’s
decision not to call the independent medical expert. Thompson
indicated three times that he agreed with defense counsel’s
decision. “An appellant is not entitled to go behind sworn
representations made to the court in a postconviction proceeding.”
Davis v. State, 938 So. 2d 555, 557 (Fla. 1st DCA 2006).
Accordingly, this claim was properly denied.
Next, Thompson claimed that his defense counsel was
ineffective for failing to present evidence that there were “more
culpable” defendants. Thompson asserted there were two other
defendants, tried separately, who also abused the child. The trial
court denied this claim as legally insufficient, explaining “the
Court is unaware of any legally valid defense that would have
excused or mitigated the Defendant’s abuse of the child simply
because other persons may have also abused her.” We agree. That
there were two other men who may have also abused the child
would be irrelevant to the jury’s determination of whether
Thompson abused the child. Their actions, even if more “culpable,”
would not excuse or mitigate Thompson’s culpability. There is no
reasonable probability that such evidence would have changed the
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outcome of the trial. Spencer, 842 So. 2d at 61. Thus, the trial
court properly denied this claim.
Thompson next claimed that his defense counsel was
ineffective for failing to call him as a witness to testify on his own
behalf. The trial court denied this claim as conclusively refuted by
the record because Thompson indicated at trial that it was his
decision not to testify. Indeed, during a lengthy colloquy,
Thompson informed the trial court that he had sufficient time with
counsel to discuss his decision not to testify. He confirmed that
counsel had answered all his questions and that it was his own
decision not to testify. Thompson cannot now go behind his sworn
representations to claim that counsel was ineffective for failing to
call him as a witness. Davis, 938 So. 2d at 557. Moreover,
Thompson cannot demonstrate that his proposed testimony,
including hearsay that the grandmother coached S.G. and
Lampley was an unreliable witness, would have changed the
outcome of the trial. Because Thompson cannot go behind his
sworn representations and offered no facts to which he could have
testified that would have affected the outcome of the trial, the trial
court properly denied this claim.
Thompson also claimed that his defense counsel was
ineffective for failing to object to the giving of jury instructions on
the lesser-included crimes of attempted sexual battery and battery
because there was no evidence to support those charges. He
argued counsel’s failure to object to the jury instructions prevented
the jury from the possibility of exercising its pardon power. The
trial court properly denied this claim as legally insufficient
because it is the inclusion of lesser-included jury instructions that
allows the jury to exercise its pardon power. We also reiterate
that, as a matter of law, the possibility of a jury pardon cannot
form the basis for a finding of prejudice under Strickland. Johnson
v. State, 247 So. 3d 689, 697 (Fla. 1st DCA 2018) (quoting Sanders
v. State, 946 So. 2d 953, 960 (Fla. 2006)).
In his next claim, Thompson argued that his defense counsel
was ineffective for failing to object to what Thompson classified as
three improper arguments made by the State during its closing
argument. The trial court denied this claim as conclusively refuted
by the record. Our review of the record confirms there was nothing
9
improper about the State’s closing. With respect to the first
comment, Thompson asserted the prosecutor improperly
“vouched” for the credibility of State witnesses Lampley, S.G., and
S.G.’s mother. “Improper prosecutorial ‘vouching’ for the
credibility of a witness occurs where a prosecutor suggests that she
has reasons to believe a witness that were not presented to the
jury, or, stated differently, where the prosecutor implicitly refers
to information outside the record.” Jackson v. State, 89 So. 3d
1011, 1018 (Fla. 4th DCA 2012). Here, the prosecutor explained
why the jury should believe the witnesses based on the substance
of their testimony at trial. The prosecutor neither expressed
personal belief nor referred to information or knowledge outside
the record.
The second argument Thompson made in relation to this claim
was that the prosecutor made personal attacks on him. “It is
improper for a prosecutor to refer to the accused in derogatory
terms, in such manner as to place the character of the accused in
issue.” Pacifico v. State, 642 So. 2d 1178, 1183 (Fla. 1st DCA 1994)
(citation omitted). Thompson did not identify which of the
prosecutor’s comments amounted to a personal attack. This alone
is reason to deny his claim. Even so, there are only two comments
Thompson could be referencing: “You know, when you decide to
rape children in a crack house you’re going to get different versions
about what happened in that crack house because they’re all high
smoking crack every day” and the prosecutor’s argument that
Thompson, as a “human being addicted to crack cocaine,” would
not have had candy and toys in his bag for any other reason than
to entice the child. Viewed in context, these comments do not
amount to improper personal attacks on Thompson’s character,
but rather reasonable arguments based on the evidence presented
at trial that Thompson committed the sexual acts at a “crack
house” and S.G.’s testimony that “NJ” gave her candy and toys.
See Lubin v. State, 963 So. 2d 822, 824 (Fla. 4th DCA 2007) (noting
that when evaluating a prosecutor’s comment for impropriety, the
comment “should be examined in the context in which it is made”).
Any objection to the prosecutor’s arguments would have been
meritless, and counsel cannot be ineffective for the failure to raise
a meritless objection. Owen v. State, 986 So. 2d 534, 551 (Fla.
2008).
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Thompson also argued the prosecutor made a “golden rule”
argument, and defense counsel was ineffective for failing to move
for a mistrial. A golden rule argument is one that asks the jurors
to put themselves in the place of the victim or to imagine the pain
or fear of the victim. Pagan v. State, 830 So. 2d 792, 812 (Fla.
2002). Because the record shows that no such argument was made,
the trial court properly denied this claim as conclusively refuted
by the record. See Crumitie, 842 So. 2d at 273.
In his final claim, Thompson argued that his defense counsel
was ineffective for failing to timely move for a new trial. The trial
court properly denied this claim as legally insufficient. Although
Thompson specified the grounds that counsel should have raised
in a timely motion for new trial, Thompson failed to demonstrate
there was a reasonable probability that, had it been filed, the
motion would have been granted. Lamb v. State, 124 So. 3d 953,
957 (Fla. 2d DCA 2013). After being given an opportunity to
amend this claim, Thompson failed to remedy the pleading defect.
Nelson, 977 So. 2d at 711.
Because Thompson’s claims were legally insufficient or
conclusively refuted by the record, we affirm the trial court’s
summary denial of his motion for postconviction relief.
BILBREY and WINSOR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Norman James Thompson, pro se, Appellant.
Ashley Moody, Attorney General, and Sharon Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
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