NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TAKENDRICK CAMPBELL, )
)
Appellant, )
)
v. ) Case No. 2D16-4698
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 8, 2018.
Appeal from the Circuit Court for Lee
County; Joseph C. Fuller, Jr., Judge.
Deana K. Marshall of Law Office of Deana
K. Marshall, P.A., Riverview, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for
Appellee.
BLACK, Judge.
Takendrick Campbell appeals from the order denying his motion for
postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We
affirm in part and reverse in part; our reversal in part requires that Campbell receive a
new trial on the charges of trafficking in illegal drugs, trafficking in cocaine, and
possession of a controlled substance. Accordingly, we address only the claims
necessitating a new trial.
I. The trial
Campbell was charged with trafficking in illegal drugs (oxycodone),
trafficking in cocaine, possession of a controlled substance (MDMA), and misdemeanor
possession of marijuana. After declining a plea offer from the State, Campbell
proceeded to trial.
The State presented the testimony of the arresting officer and a crime lab
analyst. As pertinent to our resolution of this appeal, the arresting officer testified at trial
that on the day of Campbell's arrest the officer was part of a burglary suppression team
and that during his patrol he noticed a man lying in the backseat of a vehicle parked in
the driveway of a duplex. The officer testified that he approached the vehicle and made
contact with the man, Campbell. He noticed that Campbell had what appeared to be a
marijuana cigar in the brim of his hat. After the cigar field tested positive for marijuana,
the officer arrested Campbell for possession of marijuana. He then searched the car
prior to having it towed. During his search the officer found a container of cocaine and
pills in the seatback pocket of the driver's seat; the pills were later determined to be
oxycodone and MDMA. The officer determined that Campbell was the second person
listed on the vehicle's title.
At the close of the State's case, Campbell's counsel moved for judgment
of acquittal, arguing that the State failed to prove Campbell's constructive possession of
the cocaine, oxycodone, and MDMA. The court denied the motion, finding that no
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evidence had been presented that anyone but Campbell was or had been in the vehicle
on the day of Campbell's arrest and that the State was therefore entitled to the inference
that Campbell had knowledge of and control over the drugs. See State v. Odom, 862
So. 2d 56, 59 (Fla. 2d DCA 2003) ("As the sole occupant and driver of the vehicle,
Odom had exclusive possession of the vehicle creating an inference of his dominion
and control over the contraband contained therein particularly since the contraband was
found lodged between the driver's seat and the console of the car. Likewise, knowledge
of the presence of the contraband . . . could be inferred or presumed because Odom
was in exclusive possession of the automobile when it was stopped." (citation omitted));
see also Fla. Std. Jury Instr. (Crim.) 25.2 ("If you find that (defendant): . . . had
exclusive control of the place where the substance was located, you may infer that [he]
[she] was aware of the presence of the substance and had the power and intention to
control it.").
The defense presented no witnesses, and the trial proceeded to closing
arguments. As she had done in opening statements, Campbell's counsel argued that
Campbell's proximity to the drugs was not enough to convict him. Campbell's counsel
argued, in part, that "[p]ossession of the car doesn't equal possession of the drugs."
She argued that the State had to prove that Campbell knew the container was in the car
and knew drugs were in the container: "[Y]ou can't guess those or infer those or assume
those. [The State] has to prove it."
Campbell was found guilty on all counts; he was sentenced to a
mandatory 25 years in prison on the trafficking in oxycodone conviction, 10.79 years
with a minimum mandatory of 3 years on the trafficking in cocaine conviction, 10.79
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years on the possession of MDMA conviction, all to run concurrently with the 25-year
sentence, and to time served in county jail on the marijuana possession conviction.
Campbell's judgment and sentences were affirmed on direct appeal. Campbell v. State,
109 So. 3d 792 (Fla. 2d DCA 2013) (table decision).
II. The postconviction motion and hearing
Campbell timely filed the present motion for postconviction relief, raising
multiple claims of ineffective assistance of trial counsel. In support of his claims,
Campbell attached affidavits from Floyd McKenzie and Campbell's mother, Elsie
Campbell. Five of Campbell's claims were summarily denied by a nonfinal order
rendered July 27, 2015, including Campbell's claim that his counsel misadvised him
regarding a five-year plea deal offered by the State. The July order included the finding
that "the trial transcript reveals that no evidence was presented to support a finding that
[Campbell] did not have exclusive possession of the drugs."
Four of Campbell's remaining claims were considered at an evidentiary
hearing; the final claim, cumulative effect, was to be considered thereafter. Mr.
McKenzie and Ms. Campbell both testified at the evidentiary hearing.
Consistent with the affidavit attached to Campbell's motion, Mr. McKenzie
testified that he had been in the vehicle on the day that Campbell was arrested. He
testified that Ms. Campbell had been driving the car when she and Campbell gave Mr.
McKenzie a ride and that he had been sitting in the backseat behind the driver's seat.
Mr. McKenzie also testified that he had advised Campbell's trial counsel of his presence
in the vehicle and that he would have testified at trial.
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Ms. Campbell's testimony corroborated Mr. McKenzie's as to his presence
in the backseat of the vehicle on the day of Campbell's arrest. She also confirmed that
she had been driving the vehicle that day. Ms. Campbell testified that she had spoken
with Campbell's trial counsel several times, asking counsel about the plea offer from the
State and whether counsel would have Ms. Campbell and Mr. McKenzie testify at trial.
According to Ms. Campbell, counsel repeatedly stated that it made no sense for
Campbell to take the plea offer because "the State had no case" and that neither Ms.
Campbell's testimony nor Mr. McKenzie's testimony was necessary for trial.
Campbell also testified at the hearing. He stated that he and Ms.
Campbell had been in the car the day of his arrest and that Ms. Campbell had been
driving. He confirmed that Mr. McKenzie had been sitting in the backseat, behind the
driver's seat. Campbell testified that his defense was that the drugs were not his and
that he had no knowledge of them. He testified that he wanted his mother and Mr.
McKenzie to testify at trial and that his counsel advised him that it was unnecessary to
have either of them testify.
On cross-examination, Campbell confirmed that the mandate issued in his
direct appeal in 2013 and that his postconviction motion was not filed until 2015. He
also confirmed that he knew that his trial counsel had died in 2014. When asked why
he did not file a postconviction motion sooner, Campbell testified that he was "trying to
scrape up some money for counsel." Ultimately, counsel was retained; postconviction
counsel filed the current motion and represented Campbell at the evidentiary hearing.
Because Campbell's trial counsel died prior to the filing of the rule 3.850
motion, only Campbell presented evidence relevant to the disposition of his claims. The
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State presented no evidence rebutting or conflicting with the testimony presented by Mr.
McKenzie, Ms. Campbell, or Campbell.
After consideration of written posthearing arguments, the court entered its
final order denying Campbell's motion for postconviction relief, including the claims that
counsel was ineffective for failing to call Mr. McKenzie and Ms. Campbell as witnesses.
In denying those claims, the postconviction court found that Campbell had failed to carry
his burden because the witnesses were not credible and Campbell had not established
that the outcome of the trial would have been different had they testified.
III. Analysis
On review of an order denying postconviction relief following an
evidentiary hearing, we defer to the postconviction court's factual findings that are
supported by competent substantial evidence but we review de novo the court's legal
conclusions. Light v. State, 796 So. 2d 610, 615 (Fla. 2d DCA 2001). A facially
sufficient claim that counsel was ineffective in failing to call witnesses whose testimony
would cast doubt on the defendant's guilt generally requires an evidentiary hearing, the
purpose of which "is to determine whether trial counsel acted reasonably in not
presenting the alleged exculpatory evidence." Perez v. State, 128 So. 3d 223, 226 (Fla.
2d DCA 2013) (citing Jacobs v. State, 880 So. 2d 548, 555 (Fla. 2004)). The defendant
carries the burden of proving his claims of ineffective assistance of counsel at such an
evidentiary hearing. See Williams v. State, 974 So. 2d 405, 407 (Fla. 2d DCA 2007);
see also Fla. R. Crim. P. 3.850(f)(8)(B) ("At an evidentiary hearing, the defendant shall
have the burden of presenting evidence and the burden of proof in support of his or her
motion, unless otherwise provided by law.").
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"[W]hen a defendant presents competent substantial evidence in support
of his ineffective assistance claim[s], the burden shifts to the State to present
contradictory evidence." Williams, 974 So. 2d at 407 (citing Green v. State, 857 So. 2d
304, 305 (Fla. 2d DCA 2003)); accord Thomas v. State, 117 So. 3d 1191, 1194 (Fla. 2d
DCA 2013) ("Generally, a defendant has the burden to present evidence at a
postconviction evidentiary hearing, and once he does so, even if only through the
presentation of his own testimony, the State must present contradictory evidence.").
While trial counsel's strategic decisions are "virtually unchallengeable," those decisions
which are "patently unreasonable" will not withstand scrutiny. Light, 796 So. 2d at 616
(first quoting Downs v. State, 453 So. 2d 1102, 1108 (Fla. 1984); and then quoting
Roesch v. State, 627 So. 2d 57, 58 n.3 (Fla. 2d DCA 1993)). Where there is "no
conflicting testimony that required the [postconviction] court to assess the relative
credibility of different witnesses," the issue is not one of witness credibility. Feldpausch
v. State, 826 So. 2d 354, 356 (Fla. 2d DCA 2002); see also Yarbrough v. State, 871 So.
2d 1026, 1029 (Fla. 1st DCA 2004) ("[T]he evidentiary hearing raised virtually no
disputed issues. . . . Thus, the [postconviction] court needed only to apply these
established facts to the law regarding ineffective assistance of counsel."). "[I]f a
defendant's testimony is unrefuted and the postconviction court has not articulated a
reason to disbelieve the defendant, the court cannot choose to disregard the
defendant's testimony." Thomas, 117 So. 3d at 1194. Additionally, a postconviction
court's "capacity to determine the credibility of the witnesses in a postconviction motion
is more limited when the [court] is examining whether the failure to call a particular
witness prejudiced the defendant." Light, 796 So. 2d at 617.
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Here, Campbell met his burden under the first prong of Strickland.1 He
presented unrefuted competent substantial evidence that counsel's performance was
deficient for failing to call two witnesses who would have testified to a potentially
exculpatory fact at trial, namely that Campbell had not been the only person in the
vehicle on the day of his arrest. See Edwards v. State, 186 So. 3d 1069, 1072 (Fla. 2d
DCA 2016) (reversing conviction for constructive possession of cocaine where evidence
established that other people had been in the vehicle on the day of the defendant's
arrest and otherwise failed to prove that defendant had knowledge of and ability to
control the cocaine). Where the defendant is in the exclusive possession of an
automobile in which drugs are found, the State is entitled to a presumption that the
defendant had knowledge of and control over the drugs; that is, the State need not
present evidence of defendant's knowledge of the presence of the drugs. Odom, 862
So. 2d at 59; see also State v. Lee, 230 So. 3d 886, 888 (Fla. 4th DCA 2017) (" 'If the
premises on which the drugs are found are in the exclusive possession and control of
the accused, knowledge of their presence on such premises coupled with his ability to
maintain control over them may be inferred.' This rebuttable inference stands even
when the [S]tate offers no evidence of how the defendant came to possess the vehicle
in which drugs were found." (quoting Lee v. State, 835 So. 2d 1177, 1179 (Fla. 4th DCA
2002))). And "[w]hile the presumption of guilty knowledge may be overcome by
evidence tending to show a lack of guilty knowledge, merely demonstrating that others
theoretically had access to the automobile would not necessarily negate the
presumption." Odom, 862 So. 2d at 59 (emphasis added); cf. Edwards, 186 So. 3d at
1Strickland v. Washington, 466 U.S. 668 (1984).
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1072 (stating that when drugs are found in an area jointly possessed, the State is not
entitled to the inference of knowledge and control). Thus, competent defense counsel
would have understood that evidence was necessary to establish that Campbell was not
the only person who had been in the vehicle on the day of Campbell's arrest. Cf. Light,
796 So. 2d at 614 (stating that "competent defense counsel would understand that the
defense needed to raise a reasonable doubt about Officer Penix's testimony" where "the
case was a swearing match between a police officer and a nine-time convicted felon").
The failure to present any evidence that Campbell was not the only person
in the vehicle that day, and thus to rebut the inference of Campbell's knowledge of and
control over the drugs, falls below the standard of reasonably effective counsel. See
State v. Plummer, 228 So. 3d 661, 668 (Fla. 1st DCA 2017) (concluding that counsel
performed deficiently by failing to present evidence as to the nature of the gun—BB or
airsoft—where the defendant was charged with carrying a weapon); Kruse v. State, 222
So. 3d 13, 17 (Fla. 4th DCA 2017) (concluding counsel performed deficiently in failing to
request a self-defense instruction where self-defense was the only proffered defense to
the charge); State v. Jackson, 204 So. 3d 958, 964 (Fla. 5th DCA 2016) (concluding
that counsel rendered deficient performance where she misunderstood the law on
insanity as a defense). Campbell established deficient performance of trial counsel.
Thus, we consider the more difficult issue of whether Campbell sufficiently established
prejudice.
"The benchmark for judging claims of ineffectiveness . . . is whether the
conduct of counsel 'so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.' " Sierra v. State, 230
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So. 3d 48, 52 (Fla. 2d DCA 2017) (quoting Cabrera v. State, 766 So. 2d 1131, 1133
(Fla. 2d DCA 2000)); see also Balmori v. State, 985 So. 2d 646, 649 (Fla. 2d DCA
2008) (reiterating that the deficient performance "must further be demonstrated to have
so affected the fairness and reliability of the proceeding that confidence in the outcome
is undermined" (quoting Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986))). "In a
case like this one, which turns on counsel's omissions, both the [postconviction] and
appellate courts must evaluate the circumstances from the standpoint of what might
have been." Lee v. State, 899 So. 2d 348, 354 (Fla. 2d DCA 2005). In cases involving
the failure to call witnesses, the prejudice prong of Strickland requires that the
postconviction court consider the admissibility of the testimony; its weight as determined
by whether it goes to the merits of the case, is cumulative, and is material and relevant;
and any inconsistencies presented by it. See Light, 796 So. 2d at 617 (citing Jones v.
State, 709 So. 2d 512, 521 (Fla. 1998)). "That is, the [postconviction court] is not
examining simply whether [it] believes the evidence presented as opposed to
contradictory evidence presented at trial, but whether the nature of the evidence is such
that a reasonable jury may have believed it." Lee, 899 So. 2d at 354-55 (quoting Light,
796 So. 2d at 617).
Here, Campbell's testimony at the hearing as well as the trial transcript
attached to the postconviction court's order establishes that Campbell's knowledge of
and control over the drugs was the only disputed issue at trial. Mr. McKenzie's and Ms.
Campbell's testimony "could possibly have provided the incremental amount of
reasonable doubt necessary to win an acquittal"; certainly, their testimony would have
been critical to the only defense presented. See Balmori, 985 So. 2d at 651; see also
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McClellan v. State, 112 So. 3d 754, 755 (Fla. 2d DCA 2013) ("The employer's testimony
had the potential to corroborate McClellan's testimony, strengthen his credibility, and
kindle reasonable doubt in the minds of the jurors.").
Mr. McKenzie's testimony as to his presence in the vehicle on the day
Campbell was arrested was consistent internally and with Ms. Campbell's. Cf. Mosley
v. State, 209 So. 3d 1248, 1263 (Fla. 2016) (affirming denial of postconviction relief
where testimony was internally inconsistent and conflicted with the State's witnesses'
testimony). The jury in this case heard the testimony of the arresting officer and was
instructed on the presumption in favor of the State; no evidence tending to rebut that
presumption was presented, and in fact, Campbell's trial counsel argued an erroneous
legal standard. Cf. Cabrera, 766 So. 2d at 1134 ("We reject, however, the legal
conclusion that the decision to forego this defense was a reasonable trial tactic when
defense counsel acknowledged that it was legally available and that there was no other
defense to present.").
Where counsel fails to present evidence supporting the defense or
otherwise fails to support the defense argued such that the court's "confidence in the
outcome of the proceedings has been undermined," prejudice has been established.
See Lee, 899 So. 2d at 349 (reversing for a new trial where counsel failed to present an
adequate defense); cf. Platt v. State, 697 So. 2d 989, 991 (Fla. 4th DCA 1997) ("The
failure of defense counsel to request an instruction . . . has been deemed to be an
'unreasonable omission which severely prejudiced his client's case' where the error
complained of 'negated the only defense put forth by trial counsel.' " (quoting Spaziano
v. State, 522 So. 2d 525, 527 (Fla. 2d DCA 1988))). "[T]he failure to pursue the
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[available] defense constituted ineffective assistance of counsel because 'defense
counsel, by [her] substandard performance, deprived defendant of his sole defense and
the opportunity to corroborate the defense . . . ." Cabrera, 766 So. 2d at 1134 (second
alteration in original) (quoting Stephens v. State, 748 So. 2d 1028, 1035 (Fla. 1999));
see also Dames v. State, 807 So. 2d 756, 758 (Fla. 2d DCA 2002) (reversing for a new
trial where counsel was ineffective for "stat[ing] a defense and then fail[ing] to introduce
evidence in support of the defense"); Honors v. State, 752 So. 2d 1234, 1236 (Fla. 2d
DCA 2000) (concluding that both prongs of Strickland had been met where "defense
counsel failed to secure the attendance of an exculpatory witness in a circumstantial
evidence case" and the witness's testimony "would have cast doubt on the only
evidence linking Honors to the crime").
Accordingly, we affirm in part and reverse in part the postconviction order
denying Campbell's rule 3.850 motion. Our reversal in part necessitates a new trial on
the trafficking charges and possession of a controlled substance charge; Campbell's
conviction and sentence for misdemeanor possession of marijuana are unaffected by
our decision.
Affirmed in part; reversed in part; remanded with instructions.
MORRIS and BADALAMENTI, JJ., Concur.
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