Opinion
Case No. 5D19-2265
02-14-2020
Michael MCGHEE, Appellant, v. STATE of Florida, Appellee.
Michael McGhee, Milton, pro se. No Appearance for Appellee.
Michael McGhee, Milton, pro se.
No Appearance for Appellee.
LAMBERT, J. Michael McGhee appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of grounds two, three, four, and five of his motion without further comment. As to the remaining grounds one and six, we reverse and remand for an evidentiary hearing.
McGhee was convicted after trial of burglary of a dwelling with an assault or battery. The jury separately found that McGhee "did actually possess a firearm during the commission of [this] crime and discharged the firearm." The jury also found McGhee guilty of: (1) aggravated assault, with the special finding that McGhee possessed and discharged a firearm during this offense, (2) tampering with a witness to hinder communication with a law enforcement officer, and (3) battery (domestic violence).
On direct appeal, McGhee argued that the trial court erred in denying his motion for judgment of acquittal on the burglary charge because the evidence showed that he actually resided in the apartment where the alleged burglary was committed. At trial, the court described the State's evidence on this count as "bare," but it ultimately denied the motion. McGhee also argued that on the face of the record, his attorney rendered ineffective assistance as to the burglary count for failing to request the optional "third element" contained in Florida Standard Jury Instruction in Criminal Cases 13.1 relative to his affirmative defense that he had a right or license to enter the apartment because he lived there and thus could not have burglarized his own residence. Lastly, McGhee argued on direct appeal that his multiple convictions for burglary with an assault or battery, aggravated assault, and misdemeanor battery violated double jeopardy.
As to the burglary of a dwelling conviction, our court affirmed, but we specifically did so without prejudice to McGhee to file an appropriate motion under Florida Rule of Criminal Procedure 3.850. McGhee v. State , 133 So. 3d 1137, 1138 (Fla. 5th DCA 2014).
McGhee's convictions for aggravated assault and for simple battery, which are not pertinent to the instant appeal, were reversed with directions that the trial court enter a corrected judgment deleting those convictions. Id. at 1138–39, disapproved of by Tambriz-Ramirez v. State , 248 So. 3d 1087 (Fla. 2018).
BACKGROUND
The victim in this case was McGhee's longtime girlfriend. They had lived together for several years in various apartments. The burglary charge here stemmed from McGhee's act early one morning of breaking into the apartment where the two had been residing over the previous three or four weeks. McGhee had not stayed at the apartment the night before; and, unbeknownst to him, his girlfriend had taken his key to the apartment off his keyring. McGhee first tried to get into the apartment that morning but was unsuccessful. He then requested his girlfriend to open the door, but she would not. McGhee broke a window to get in; and thereafter a physical altercation ensued with his girlfriend, during which at least one gun shot was fired inside the apartment. McGhee then left the premises.
The girlfriend called law enforcement and provided a written statement at the scene. She advised them that McGhee did not live with her in the apartment and that he had shot a gun inside the apartment and had also used the gun, as well as his fists, to hit her. The girlfriend made no mention in this statement that anyone else had been in the apartment that morning.
At trial, the girlfriend's testimony differed significantly from her written statement. She denied that she had broken up with McGhee, instead explaining that they "were still dating, but I was planning on breaking up with him." Also contrary to her written statement, the girlfriend did not testify that the two were no longer living together. Instead, she provided an equivocal response that "[McGhee] hadn't been to the house in like a day or so. He had stayed out the night before." Although the girlfriend indicated that she was planning on breaking up with McGhee, she testified that she had never told him so and that McGhee was not aware of it.
The girlfriend also testified that at the time of the altercation there was another man in the apartment. She denied seeing McGhee with a gun that morning and, instead, testified that it was this other man who had the gun. The girlfriend did, however, testify that McGhee repeatedly punched her during this incident.
The prosecutor then decided to use the girlfriend's earlier written statement that she gave the police to impeach her trial testimony. The prosecutor questioned the girlfriend about the statement, pointing out to her that, among other things, she had written that McGhee no longer lived with her, pistol-whipped her in the head, and threatened to return with an assault weapon to shoot up the apartment, and that she had never mentioned in the written statement that another man was present that morning or that it was this man who had the gun. The State's unfettered use of this witness statement at trial is the crux of ground one of McGhee's instant rule 3.850 motion.
GROUND ONE: LIMITING INSTRUCTION
McGhee argued in the first ground of his motion for postconviction relief that his trial counsel was ineffective for failing to request that the trial court give a limiting instruction to the jury as to the proper use of the girlfriend's prior written statement. He argued that because his girlfriend's prior written statement to the police was inconsistent with her trial testimony, this statement could only be considered by the jury for impeachment purposes, and not as substantive evidence of his guilt. See Santiago v. State , 652 So. 2d 485, 486 (Fla. 5th DCA 1995) (holding that a State witness's prior inconsistent statements may be used for impeachment but cannot be considered as substantive evidence against a defendant); accord Joyce v. State , 664 So. 2d 45, 46 (Fla. 3d DCA 1995). To be entitled to postconviction relief based on ineffective assistance of trial counsel, McGhee must establish under the familiar Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standards that his counsel's performance was deficient and, second, that the deficient performance prejudiced the defense.
McGhee argued that counsel's omission in not seeking the limiting instruction as to the prior inconsistent statement was not only deficient, see Walter v. State , 272 So. 2d 180, 182 (Fla. 3d DCA 1973) (recognizing that where prior statements are admitted solely for impeachment purposes and not as substantive evidence, jury should be so instructed at the time of admission of the impeaching statements), but that this omission was prejudicial to him under Strickland because, as a result, the State was able to not only use this statement, given almost immediately after the incident, for impeachment purposes, but also as substantive evidence that McGhee was not living at the apartment at the time and had fired a gun inside the apartment during the incident. McGhee argued that this error was especially prejudicial to him since his girlfriend's trial testimony was exculpatory as it tended to show that, at the time of the purported burglary, McGhee was not in possession of a gun and that he still resided with her at the apartment. See Whetstone v. State , 778 So. 2d 338, 342 (Fla. 1st DCA 2000) (recognizing that "[o]ne cannot commit the crime of burglary of his own premises"), receded from on other grounds by Jones v. State , 790 So. 2d 1194 (Fla. 1st DCA 2001).
Section 90.107, Florida Statutes (2011), provides that "[w]hen evidence that is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, is admitted, the court, upon request, shall restrict such evidence to its proper scope and so inform the jury at the time it is admitted." (emphasis added). McGhee is thus correct that his counsel could and should have requested this instruction. See Walter , 272 So. 2d at 182. He is also correct that the consequence of his counsel's failure to request a limiting instruction as to the use of the girlfriend's prior inconsistent statement was that this statement was placed before the jury by the State as substantive evidence that McGhee committed an armed burglary of this dwelling. See Miller v. State , 780 So. 2d 277, 279 (Fla. 3d DCA 2001) (holding that the issue as to whether the trial court improperly allowed the State, under the guise of impeachment, to rely upon pretrial inconsistent statements as substantive evidence of guilt was not preserved for review because there was no specific, contemporaneous objection to such use nor a request for a limiting instruction).
In summarily denying this ground of the motion, the postconviction court found that McGhee had not established that counsel's failure to request this limiting instruction prejudiced him. To uphold the court's summary denial of this claim, it must have been either legally insufficient or conclusively refuted by the record attachments to the order. See Fla. R. Crim. P. 3.850(f)(5) ; see also Franqui v. State , 59 So. 3d 82, 95 (Fla. 2011) ; Peede v. State , 748 So. 2d 253, 257 (Fla. 1999). Our standard of review of claims made under rule 3.850 that have been summarily denied is de novo. State v. Coney , 845 So. 2d 120, 137 (Fla. 2003).
In finding that McGhee failed to show prejudice, the court necessarily determined that McGhee did not "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. We conclude that the record attachments to the denial order do not conclusively negate McGhee's ineffectiveness of counsel claim in this ground. McGhee's primary, if not sole, defense to the burglary charge was that he was still residing in the apartment with his girlfriend at the time and, therefore, could not have burglarized his own residence. See Whetstone , 778 So. 2d at 342. The court's record attachments to its order primarily address whether McGhee was in possession of a firearm, the gunshot in the apartment, and the confrontation between McGhee and his girlfriend, including that McGhee had punched her, but not whether McGhee was still residing with her on the morning of the purported burglary.
To be clear, the failure of trial counsel to request a limiting instruction does not summarily equate to ineffective assistance. It may constitute trial strategy. See , e.g. , Johnson v. State , 135 So. 3d 1002, 1017 (Fla. 2014). However, an evaluation of trial strategy of an allegedly-ineffective trial counsel typically requires a postconviction evidentiary hearing. See White v. State , 226 So. 3d 349, 351 (Fla. 5th DCA 2017). Because the records attached to the instant denial order do not conclusively refute McGhee's claim for relief nor otherwise show that counsel's failure to request a limiting instruction was trial strategy, reversal for an evidentiary hearing on ground one is required.
GROUND SIX: JURY INSTRUCTION
McGhee also urges that we reverse the postconviction court's summary denial of ground six of his motion. McGhee alleged that, under the circumstances of the case, his counsel was ineffective for failing to request that the court instruct the jury with the optional portion of Standard Jury Instruction 13.1 which, pertinent here, provides that in order to find a defendant guilty of burglary, the jury must find that the defendant was not licensed or invited to enter the structure. McGhee asserted, as he did on direct appeal, that his counsel was well aware that this primary, if not sole, defense to the burglary count was that he was licensed to enter the apartment because he lived there with his girlfriend at the time of the alleged burglary, as evidenced by counsel's closing argument when counsel told the jury that the State had failed to prove that McGhee had committed a burglary because the State had not proved that McGhee was not living in the apartment. McGhee argued that he was prejudiced by counsel's deficient performance because, absent this instruction, the jury had no way to find him not guilty of burglary of a dwelling, consistent with his primary defense.
Section 810.02(1)(b)1., Florida Statutes (2011), defines "burglary" to mean "[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter." At McGhee's trial, the court instructed the jury from Standard Jury Instruction 13.1:
To prove the crime of Burglary, the State must prove the following two elements beyond a reasonable doubt:
1. [McGhee] entered a structure owned by or in the possession of [the girlfriend].
2. At the time of entering the structure, [McGhee] had the intent to commit an offense in that structure.
The note on use in Standard Jury Instruction 13.1 provides that certain optional language contained within this instruction should be given if a defendant meets his or her burden of production of the affirmative defense that he or she has an invitation or license to enter the structure or conveyance. Here, if trial counsel had requested this portion of the instruction, McGhee's jury would have been instructed, consistent with this standard instruction, that:
It is a defense to the crime of Burglary if McGhee was licensed or invited to enter the structure. The State has the burden of proving beyond a reasonable doubt that McGhee was not licensed or invited to enter the structure.
Evidence was presented at trial through the testimony of McGhee's girlfriend that arguably showed that he was licensed to be at the apartment. As a result, McGhee was entitled to have the jury instructed on this affirmative defense and to have the jury determine this issue. See Pilafjian v. State , 210 So. 3d 738, 740 (Fla. 5th DCA 2017) ; Bryant v. State , 102 So. 3d 704, 706 (Fla. 1st DCA 2012).
In denying this ground of McGhee's motion, the court found that McGhee had not demonstrated that counsel's failure to request the above instruction prejudiced him. In support of this finding, the court cited in its order to Young v. State , 695 So. 2d 819 (Fla. 4th DCA 1997) (finding a jury could reasonably conclude that the defendant did not have permission to enter the house after the victim requested that the defendant return his key and was not allowed in after knocking), and thereafter both described and attached certain records from the trial that it found to have refuted McGhee's claim that he lived in the apartment at the time of the burglary.
Ironically, the decision in Young actually favors McGhee's argument here. Young involved a direct appeal where the defendant, like McGhee, was convicted of, among other things, armed burglary of a dwelling with assault or battery. Id. at 820. The issue on appeal in Young as to this conviction was whether the trial court erred in denying the defendant's motion for judgment of acquittal based on his affirmative defense that he had been "licensed or invited to enter or remain" in the victim's dwelling. Id.
The Fourth District Court found no error "because the question of Young's possessory interest in the victim's dwelling was properly submitted to the jury ." Id. (emphasis added). The court noted that although the evidence on this issue was not without conflict, the State presented sufficient evidence disproving Young's defense beyond a reasonable doubt. Id. In contrast, here, the question of McGhee's possessory interest in the apartment was not submitted, at all, to the jury for determination.
We agree with McGhee's arguments that his counsel was ineffective in failing to request this instruction and that, under Strickland , he was prejudiced. Counsel's omission negated McGhee's ability to have his sole theory of defense to the burglary charge considered by the jury. Because there was conflicting evidence at trial as to whether McGhee resided with his girlfriend at the time of the charged burglary, the issue should have been submitted to the jury with the proper instruction. As previously discussed, the record attachments to the order do not conclusively refute McGhee's claim that he was residing at the apartment at the time of the alleged burglary. Nor do they reveal a strategic reason for trial counsel to not have requested this instruction. Cf. Faulk v. State , 222 So. 3d 621, 623 (Fla. 1st DCA 2017) (holding that the trial court's failure to instruct the jury on the defendant's affirmative defense of consent to enter the victim's vehicle was fundamental error where the defendant was convicted of burglary of a conveyance and the failure to instruct deprived the defendant of his sole theory of defense). We therefore reverse the postconviction court's summary denial of ground six of McGhee's motion and remand for an evidentiary hearing.
McGhee did not raise a fundamental error argument in his direct appeal.
AFFIRMED, in part, REVERSED, in part, and REMANDED for an evidentiary hearing on grounds one and six of the postconviction motion.
EDWARDS and HARRIS, JJ., concur.