IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
April 6, 2018
VANESSA MUSSON )
)
Petitioner, )
)
v. ) Case No. 2D17-1208
)
STATE OF FLORIDA, )
)
Respondent. )
________________________________ )
BY ORDER OF THE COURT:
Upon consideration of the motion for rehearing and/or clarification filed by
the respondent on January 5, 2018,
IT IS ORDERED that the respondent's motion for rehearing and/or
clarification is granted. The opinion dated December 22, 2017, is withdrawn and the
attached opinion is substituted therefor. No further motions for rehearing will be
considered.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VANESSA MUSSON, )
)
Petitioner, )
)
v. ) Case No. 2D17-1208
)
STATE OF FLORIDA, )
)
Respondent. )
___________________________________)
Opinion filed April 6, 2018.
Petition Alleging Ineffective Assistance
of Appellate Counsel. Pasco County;
Mary M. Handsel, Judge.
Vanessa Musson, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius Demps,
Assistant Attorney General, Tampa,
for Respondent.
VILLANTI, Judge.
In her petition filed under Florida Rule of Appellate Procedure 9.141(d),
Vanessa Musson raises two grounds alleging ineffective assistance of appellate
counsel. We grant the petition in part and deny it in part.
A jury found Ms. Musson guilty of simple battery,1 aggravated battery,
kidnapping with intent to inflict bodily harm or terrorize, grand theft of a motor vehicle,
and armed robbery. She appealed her judgment and sentences, and this court
reversed the kidnapping conviction, describing the facts as follows:
In the late afternoon of September 14, 2012, Bobbie Jo
Curtis and her son, Bryan Curtis, tied seventy-one-year-old
Joseph Bruno to a chair inside his house, repeatedly
threatened him, beat him severely, took his handgun and
van keys, and robbed him of his personal property. At some
point during the commission of these crimes, Ms. Curtis
decided to enlist the aid of her friend Ms. Musson.
Depending on one's view of the evidence, Ms. Musson's role
upon arriving at Mr. Bruno's house was either (a) limited to
assisting the Curtises with packing and disposing of Mr.
Bruno's van and, at some point, battering [the victim's] well-
meaning neighbor who came inside the house to investigate
what was happening or (b) actively participating in nearly the
entire enterprise, including Mr. Bruno's beating, armed
robbery, and kidnapping.
At trial neither Mr. Bruno nor the neighbor could positively
state whether Ms. Musson had any interaction with Mr.
Bruno, nor could they describe her involvement with the
robbery. Ms. Curtis and Ms. Musson did not testify. Bryan
Curtis, who had reached a prior plea agreement with the
State, testified as a State witness. Mr. Curtis provided the
only trial testimony about the details of the robbery, the
aggravated battery of Mr. Bruno, and Ms. Musson's
participation in these crimes. Mr. Curtis claimed that early
on in the robbery, after binding Mr. Bruno to the chair, his
mother left in Mr. Bruno's van to pick up Ms. Musson.
According to Mr. Curtis, Ms. Musson arrived at the house
while he was still gathering Mr. Bruno's effects and while Mr.
Bruno was still conscious. Mr. Curtis testified that Ms.
Musson emptied Mr. Bruno's wallet, found a debit card, and
demanded that Mr. Bruno tell her his personal identification
number. Mr. Curtis recounted that when Mr. Bruno refused,
Ms. Musson proceeded to threaten and strike Mr. Bruno
repeatedly with a baseball bat. According to Mr. Curtis, Ms.
1The State charged Ms. Musson with aggravated battery in this count, but
the jury found her guilty of the lesser-included offense of battery.
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Musson also struggled with the neighbor, striking him on the
head with a hammer while the three of them (Ms. Musson,
Ms. Curtis, and Mr. Curtis) were loading Mr. Bruno's property
into the van. Finally, Mr. Curtis stated that the three of them
fled the house together in Mr. Bruno's van.
Ms. Musson recalled a quite different version of events in her
video-recorded police interview, which was presented to the
jury. Ms. Musson admitted she arrived at Mr. Bruno's house
at Ms. Curtis' behest, entered the kitchen, helped load Mr.
Bruno's effects into his van, struck a neighbor (because, she
claimed, he attacked her), and drove the van away from the
house. However, Ms. Musson maintained she never
participated in any violence against Mr. Bruno because,
according to Ms. Musson, she was never aware that Mr.
Bruno was even in the house.
To support her theory of defense and undermine Mr. Curtis'
credibility, Ms. Musson sought to introduce the testimony of
Twila Baccile. Ms. Baccile had, at some point, while being
transported in a police van, engaged in a conversation
through a grate with a man she believed to be Mr. Curtis.
She claimed that they discussed these crimes during the
ride. Ms. Baccile would have testified Mr. Curtis made
statements to her that he was "going to blame it all [on]
Vanessa . . . [and] come to court and . . . point fingers at
Vanessa." Ms. Baccile would have further testified that Mr.
Curtis told her that he had "threatened Vanessa's life," that
Ms. Musson was "an easy target," and that he "was going to
blame it on Vanessa because she was outside."
The trial court ruled that Ms. Baccile's testimony was
inadmissible hearsay as it was offered "for the truth of the
matter asserted, because the truth of the matter asserted is
he plans to blame it all on her."
Musson v. State, 184 So. 3d 575, 577-78 (Fla. 2d DCA 2016) (alterations in original)
(footnotes omitted). We held that the trial court abused its discretion by ruling that Ms.
Baccile's testimony was inadmissible hearsay because Mr. Curtis' statements to Ms.
Baccile were offered to impeach his credibility as a witness and not as substantive
evidence. Id. at 578. Because "[t]he trial in this case appeared to turn on one or two
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witnesses' recollection of events," this court held that "Ms. Baccille's [sic] testimony
about one witness' alleged bias or motive would be of vital relevance," so the State
could not establish that the error was harmless. Id. at 579. In footnote three, this court
wrote, "For reasons that are not clear to us, on appeal, Ms. Musson only challenges the
propriety of her kidnapping conviction." Id. at 578 n.3. Accordingly, this court reversed
only Ms. Musson's kidnapping conviction.
Ms. Musson then filed a petition alleging ineffective assistance of
appellate counsel, asserting in ground one that her appellate counsel was ineffective for
failing to argue that the trial court's abuse of discretion in excluding Ms. Baccile's
testimony was harmful error as to all of her convictions. She asserted in ground two
that her appellate counsel was ineffective for not filing a motion for rehearing or
clarification to point out to this court that she argued in her amended initial brief that the
error required reversal of her "convictions." She further asserted that if her appellate
counsel had filed such a motion, this court would have "taken a closer look at their
decision and seen that their decision should have encapsulated each one of the
charges against Ms. Musson and not just the kidnapping charge."
Analysis
To establish a claim of ineffective assistance of appellate counsel, a
petitioner must show that her appellate counsel performed deficiently and that "the
deficiency of that performance compromised the appellate process to such a degree as
to undermine confidence in the fairness and correctness of the appellate result." Downs
v. Moore, 801 So. 2d 906, 909-10 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d
1162, 1163 (Fla. 1985)). "[A] court deciding an actual ineffectiveness claim must judge
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the reasonableness of counsel's challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct." Strickland v. Washington, 466 U.S. 668,
690 (1984). In making this decision, this court must determine "whether, in light of all
the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance." Id. Under this test, we agree with Ms. Musson
that her appellate counsel unreasonably failed to argue that the trial court's error in
excluding the impeachment testimony was also harmful as to the simple battery
conviction and that this omission was deficient performance that undermines confidence
in the outcome of the appeal.
Deficient Performance
This court's records reflect that Ms. Musson's appellate counsel filed her
initial brief on January 30, 2015. That brief challenged only the sufficiency of the
evidence for the kidnapping conviction. The first paragraph of the statement of the case
and facts states the following:
This is an appeal from a conviction of simple battery on
Joseph Bruno, aggravated battery of David Ragon, grand
theft motor vehicle, kidnapping and robbery. Although Ms.
Musson continues to assert that she was not involved in
the battery of Mr. Bruno, this appeal is regarding the
conviction of the kidnapping. Specifically, the State failed
to prove by competent substantial evidence that Ms. Musson
was involved in the kidnapping of Mr. Bruno. Ms. Musson
was sentenced to life without parole on the conviction of the
charge of kidnapping.
(Emphasis added.)
Later that day, Ms. Musson's appellate counsel filed an amended initial
brief that added as issue one the trial court's error in excluding the impeachment
testimony. Appellate counsel offered no argument regarding how the error affected the
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individual verdicts, instead simply asserting: "The error and abuse of discretion by the
trial court allowed the testimony of the State's witness to go unchallenged and could
have changed the jury's verdict in this matter. Accordingly, the convictions of Ms.
Musson must be reversed and the matter remanded for a new trial." Notably, appellate
counsel refers to a single verdict but plural convictions. Ms. Musson's appellate counsel
did not alter or delete the first paragraph in the statement of the case and facts. And
even after this court issued its opinion pointing out in footnote three that "[f]or reasons
that are not clear to us, on appeal, Ms. Musson only challenges the propriety of her
kidnapping conviction," Ms. Musson's appellate counsel still did not file a motion for
rehearing to explain why he referred to Ms. Musson's "convictions" in issue one and
asserted that she was not involved in the simple battery but still only challenged her
kidnapping conviction. Musson, 184 So. 3d at 578 n.3. Accordingly, cumulatively,
counsel's omissions in advocating this issue were unreasonable under the "prevailing
professional norms" and constitute deficient performance. Strickland, 466 U.S. at 688
("The proper measure of attorney performance remains simply reasonableness under
prevailing professional norms."). If Ms. Musson's appellate counsel had intended to
challenge Ms. Musson's other convictions, the prevailing professional norms would have
required him to expressly do so; alternatively, if appellate counsel intended to challenge
only the kidnapping conviction, this decision was unreasonable.
Prejudice
The direct appeal record reflects that Ms. Musson's recorded interview
with the police was played for the jury. She admitted that Ms. Curtis called her and
asked for her help emptying a safe. Ms. Curtis told her that the homeowner was not
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there. Ms. Musson stated that the Curtises had piled things by the door and that she
moved them into the van. She consistently stated that she did not see the victim of the
kidnapping and simple battery. However, she admitted to stealing the victim's firearms
and his van, and she admitted that when the victim's neighbor approached her as she
was putting the victim's property into his van, she hit the neighbor with a firearm.
Thus, Ms. Musson admitted to aggravated battery of the neighbor and
grand theft of a motor vehicle. She also admitted to facts that constitute armed robbery.
Section 812.13, Florida Statutes (2012), states:
(1) "Robbery" means the taking of money or other property
which may be the subject of larceny from the person or
custody of another, with intent to either permanently or
temporarily deprive the person or the owner of the money or
other property, when in the course of the taking there is the
use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender
carried a firearm or other deadly weapon, then the robbery is
a felony of the first degree, punishable by imprisonment for a
term of years not exceeding life imprisonment or as provided
in s. 775.082, s. 775.083, or s. 775.084.
....
(3)(a) An act shall be deemed "in the course of committing
the robbery" if it occurs in an attempt to commit robbery or in
flight after the attempt or commission.
(b) An act shall be deemed "in the course of the taking" if it
occurs either prior to, contemporaneous with, or subsequent
to the taking of the property and if it and the act of taking
constitute a continuous series of acts or events.
In Thomas v. State, 36 So. 3d 853, 856 (Fla. 3d DCA 2010), the Third
District held that the "force, violence, assault, or putting in fear" need not "be exerted
against the person from whom the property was taken, so long as it was exerted in the
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course of the taking." See also Santilli v. State, 570 So. 2d 400, 402 (Fla. 5th DCA
1990) ("[T]he continuity of [the appellant's] progression from the store to his forceful act
against the [pursuing] officer with his car outside the store justified submission of the
robbery offense to the jury."); Rumph v. State, 544 So. 2d 1150, 1151-52 (Fla. 5th DCA
1989) ("Appellant's use of force to shove [a store employee] out of his way and into the
door as he fled with [stolen property] constitutes the use of force in flight after the taking
and provides the evidence to sustain appellant's conviction for robbery.").
Accordingly, the evidence of Ms. Musson's guilt of armed robbery, grand
theft of a motor vehicle, and aggravated battery of the neighbor did not hinge on Mr.
Curtis' credibility. Had Ms. Musson's appellate counsel specifically challenged the trial
court's ruling in excluding the impeachment evidence as to each of these convictions,
the State would have been able to establish that the error was harmless. See State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
But Ms. Musson did not admit to facts that constitute the elements of
simple battery of the victim. As with the kidnapping charge, the evidence of Ms.
Musson's guilt hinged on Mr. Curtis' testimony. Because this court held that Mr. Curtis'
credibility was critical as to the kidnapping charge, if Ms. Musson's appellate counsel
had also specifically challenged the simple battery conviction, this court would have
necessarily also reversed the circuit court's judgment of conviction for simple battery.
Thus, confidence in the outcome of the appeal is undermined.
Based on the foregoing, we must grant Ms. Musson's petition in part and
deny it in part. We grant the petition only as to the simple battery conviction; because a
new appeal would be redundant, we reverse Ms. Musson's conviction for simple battery
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and remand for a new trial on that charge. See Johnson v. Wainwright, 498 So. 2d 938,
939 (Fla. 1986). We deny the petition as to the aggravated battery, grand theft of a
motor vehicle, and armed robbery convictions.
Petition granted in part and denied in part.
KHOUZAM and BADALAMENTI, JJ., Concur.
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