NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JABE IRA CARNEY, )
)
Appellant, )
)
v. ) Case No. 2D13-3956
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed February 11, 2015.
Appeal from the Circuit Court for Manatee
County; Thomas Krug, Judge.
Howard L. Dimmig, II, Public Defender, and
J.L. "Ray" LeGrande, Special Assistant
Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Timothy A. Freeland,
Assistant Attorney General, Tampa, for
Appellee.
CASANUEVA, Judge.
Jabe Ira Carney challenges the denial of his motion, and amended motion,
for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, in
which he raised nine grounds for relief. Five of these grounds were pursued on appeal.
We affirm the order denying postconviction relief as to all grounds and write only to
address Carney's fifth ground for relief, involving counsel's failure to object to Carney's
mother testifying as a State witness in shackles and jail garb.
Carney was involved in a single-vehicle crash on February 5, 2006, near
the north bound Skyway Bridge toll booth. All three occupants were thrown from the
vehicle and one died. The State charged Carney as the driver. He entered a no
contest plea to driving while license revoked, habitual traffic offender, and went to trial
on the remaining charges of DUI manslaughter, driving while license suspended and
causing death, and two counts of driving under the influence (property damage or
personal injury). Carney's defense was that he was not the driver at the time of the
accident. He was convicted as charged on all counts except one count of driving under
the influence with property damage or personal injury, which was reduced to driving
under the influence. He was sentenced to a total of fifteen years' imprisonment.
Carney's fifth ground for postconviction relief alleged that counsel was
ineffective for failing to object to his mother testifying while shackled, handcuffed, and in
jail attire because, even though she was called as a State witness, Carney suffered
unfair prejudice due to his familial relationship with the witness. Applying the two-prong
test from Strickland v. Washington, 466 U.S. 668, 686-87, 694 (1984),
[a] party seeking postconviction relief based on ineffective
assistance of counsel must show (1) counsel's specific acts
or omissions were "so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment" and (2) prejudice by "show[ing] that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." . . . "The benchmark for judging any
claim of ineffectiveness must be whether counsel's conduct
so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced
a just result."
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State v. Richardson, 963 So. 2d 267, 270 (Fla. 2d DCA 2007) (second alteration in
original) (citations omitted).
At the postconviction hearing, Carney's counsel admitted that his failure to
object was not a strategic decision; rather, it simply did not occur to him to object
because Carney's mother was called as a State witness. There was no allegation that
Carney's mother posed a threat to the security of the courtroom. The postconviction
court found that even when a witness is called by the State, the negative influence
caused by shackles and jail attire may in fact hurt a defendant "in so far as the witness
is conceived to be associated with [the defendant]." (Quoting Commonwealth v. Brown,
305 N.E. 2d 830, 834 (Mass. 1973).) Nonetheless, the court concluded that based on
the substance of the mother's testimony and the other evidence introduced against
Carney, the result of the trial would have been the same even if Carney's mother had
been unshackled and dressed in nonjail attire. We agree with the postconviction court
on both points.
"[A]s a general rule, it is error for the trial court to compel a defense
witness to appear in jail or prison clothing if the defendant objects." Hayes v. State, 140
So. 3d 1106, 1108 (Fla. 1st DCA 2014); see also Mullins v. State, 766 So. 2d 1136,
1137 (Fla. 2d DCA 2000). Some states have extended this general rule to all witnesses
in criminal cases, whether for the prosecution or for the defense. See State v. Kuchera,
969 A.2d 1052, 1055 (N.J. 2009); State v. Rodriguez, 45 P.3d 541, 542 (Wash. 2002).
Florida has not adopted such a rule and, in several cases, has rejected
claims of prejudice resulting from State witnesses appearing in jail or prison garb. In
Hedrick v. State, 6 So. 3d 688 (Fla. 4th DCA 2009), the Fourth District agreed with the
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trial court that the defendant was not prejudiced by the appearance of his co-defendants
in shackles and prison garb and further concluded that defense counsel's decision not
to object was reasonable. In that case, the co-defendants were brought in by the State
only as a "demonstrative exhibit" to show the relative height of the co-defendants and
Hedrick. Id. at 694. The co-defendants' involvement in the crime was not disputed, and
Hedrick's theory was that he was there but did not participate in the crime. Id. Further,
Hedrick's "[t]rial counsel testified that he felt this actually helped the defendant because
the [S]tate was relying on prisoners to make its case." Id.
In Tompkins v. State, 386 So. 2d 597 (Fla. 5th DCA 1980), the defendant
was accused of committing a sexual battery against another inmate while incarcerated
at Sumter Correctional Institution. In that case, the Fifth District found:
[A]ppellant's contention that his right to a fair trial was
prejudiced by the trial court's permitting [S]tate's witnesses
to appear in prison attire is without merit. If there was any
prejudice, it was against the [S]tate, since the fact of the
[S]tate's witnesses' inmate status would affect the credibility
of their testimony against the defendant.
Id. at 599.
There is a dearth of case law addressing whether prejudice may result
against a defendant when a witness called by the State appears in shackles and jail
garb and that witness is known to be closely associated with the defendant. While it is
true that a State witness's inmate status will most often prejudice the State, if anyone,
because of the impact on the witness's credibility, see Tompkins, 386 So. 2d at 599; it is
also true that the witness's inmate status may hurt the defendant "in so far as the
witness is conceived to be associated with him," Brown, 305 N.E. 2d at 834 (emphasis
added).
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In Hayes, 140 So. 3d at 1108, the First District "agree[d] with the majority
of jurisdictions and [found] that as a general rule, it is error for the trial court to compel a
defense witness to appear in jail or prison clothing if the defendant objects." In doing
so, the court noted that cases from other jurisdictions have concluded that "jail garb may
'undermine[] the witness' credibility,' or the jury may believe the defendant is 'guilty by
association' with the incarcerated witness." Id. (alteration in original) (emphasis added)
(quoting Hightower v. State, 154 P.3d 639, 641 (Nev. 2007)). We conclude that this
injury of guilt by association may result in prejudice to the defendant regardless of
whether the witness is called by the State or the defendant where, as here, the
defendant is perceived to be closely associated with the witness. Thus, under the facts
of this case, we find that counsel's failure to object to Carney's mother appearing in
shackles and jail garb constituted deficient performance.
Nonetheless, in light of the substance of the mother's testimony and the
strong evidence introduced against Carney at trial, we agree with the postconviction
court that the result would have been the same even if Carney's mother had not been
shackled and dressed in jail attire. Carney has thus failed to establish ineffective
assistance of counsel because the prejudice prong of Strickland has not been met. See
Richardson, 963 So. 2d at 270. Accordingly, we affirm.
Affirmed.
WALLACE and SLEET, JJ., Concur.
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