FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-478
_____________________________
JEFFREY TODD MORRIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.
June 28, 2019
PER CURIAM.
We review the trial court order denying Appellant’s motion for
post-conviction relief under Florida Rule of Criminal Procedure
3.850.
Appellant was charged by amended information with (Count
1) sexual battery while in a position of familial authority, for
penetrating the vagina of the victim with his penis when the victim
was between age fifteen and seventeen, (Count 2) sexual battery
while in a position of familial authority, for penetrating the mouth
of the victim with his penis when the victim was between age
thirteen and seventeen, and (Count 3) lewd and lascivious
molestation on a victim under twelve years old, for forcing or
enticing the victim to touch him when she was between the ages of
six and eleven.
1
The attachments to the order on Appellant’s motion reflect the
following facts. At trial, the victim testified that Appellant, her
stepfather, made her touch his penis with her hands “two or three
times a week,” beginning when she was six or seven and continuing
until she was eighteen. The victim testified that the abuse
escalated: she stated she lost her virginity to Appellant when she
was fifteen, and that if she was on her period she would perform
oral sex. The victim testified that she eventually found out that
she was pregnant and gave birth to a baby that she then put up for
adoption. She identified Appellant as the person who impregnated
her. DNA evidence presented at trial established by a 99.99
percent probability that Appellant was the biological father of the
victim’s child.
Video of an interview between Appellant and law enforcement
was played at trial. During the interview, Appellant stated that,
when the victim was eighteen, she got drunk on New Year’s Eve
and asked him to rub her vagina; Appellant stated that he pushed
her away and told her to go to bed. At trial, however, Appellant
admitted to having sexual intercourse with the victim, his
stepdaughter, when she was eighteen, but never before.
Appellant’s daughter, the victim’s half-sister, who was
fourteen at the time of trial, testified that she lived with her father,
but “he didn’t really pay attention to [her],” stating Appellant
largely ignored her and her younger brother. Appellant’s daughter
testified that Appellant focused most of his attention on the victim,
although she testified that she never saw anything that she
thought was inappropriate. Appellant’s daughter testified that
Appellant would occasionally send her and her brother outside to
play with the dog or clean the pool, but that the victim would not
be sent outside with them. Appellant’s daughter testified that she
would sometimes try to go back inside to get water, but he door
would be locked. Appellant’s daughter testified that, when she and
her brother would eventually be let back inside, she would see the
victim “washing her hands and crying.”
Appellant’s twelve-year-old son also testified that when his
mother was at work, and he and the victim were home with
Appellant along with Appellant’s daughter, Appellant would send
his own children outside and that his son would find the door
locked when he attempted to reenter.
2
The jury found Appellant guilty on all three counts, and the
court sentenced him to concurrent thirty-year sentences for Counts
1 and 2, and to life in prison for Count 3.
Appellant filed an amended motion for postconviction relief
under Florida Rule of Criminal Procedure 3.850 raising seven
grounds for relief. Pertinent here, Appellant claimed newly
discovered evidence, and attached an affidavit from Appellant’s
daughter in which she swore that she now did not believe that
Appellant had molested her sister. She stated that she felt she had
been “coached or brain washed” to take her mother and sister’s side
over her father’s, and that her mother “put a lot of things in [her]
head.” She stated that she had testified in court that her father
didn’t pay attention to her, and stated she now knows that his
attention was focused on the victim “because they were in a
relationship.” Appellant’s daughter stated that she felt she had
been obligated to protect her mother and sister, and stated that “I
think what my father did was very wrong, but in my heart I don’t
feel like he should be doing life for something he did not do
something their [sic] is no proof of.”
In his motion, Appellant also claimed that his trial counsel
was ineffective for failing to call Appellant’s parents and Ami
Morris as witnesses at trial, failing to go over the victim’s text
messages with Appellant, and failing to introduce a letter
Appellant wrote to his father in which he admitted having a sexual
relationship with his eighteen-year-old stepdaughter. Appellant
additionally raised two sentencing issues.
The postconviction court summarily denied the motion *,
finding that Appellant’s daughter’s recanted testimony would not
probably produce an acquittal on retrial and that Appellant could
not show prejudice on any of his ineffective assistance claims. This
timely appeal followed.
Analysis
“The standard of review of a summary denial of a rule 3.850
motion is de novo.” McLin v. State, 827 So. 2d 948, 954 (Fla. 2002).
“To uphold the trial court's summary denial of claims raised in a
*The postconviction court granted relief on sentencing claims
which are not at issue.
3
3.850 motion, the claims must be either facially invalid or
conclusively refuted by the record.” Peede v. State, 748 So. 2d 253,
257 (Fla. 1999).
Appellant first argues that the lower court erred in denying
an evidentiary hearing regarding his claim of newly discovered
evidence, in the form of Appellant’s daughter’s recantation of
testimony regarding the victim. A defendant must meet two
requirements to obtain a new trial based on newly discovered
evidence: (1) “the evidence must not have been known by the trial
court, the party, or counsel at the time of trial, and it must also
appear that neither the defendant nor defense counsel could have
known of such evidence by the use of diligence”; (2) “the newly
discovered evidence must be of a nature that it would probably
produce an acquittal on retrial or yield a less severe sentence.”
Davis v. State, 26 So. 3d 519, 526 (Fla. 2009). “Specifically,
recanted testimony that is alleged to constitute newly discovered
evidence will mandate a new trial only if (1) the court is satisfied
that the recantation is true, and (2) the recanted testimony would
probably render a different outcome in the proceeding.” Id.
Recanted testimony would not have altered trial’s outcome if it
would not have eliminated other evidence at trial supporting the
elements that the newly discovered evidence is offered to rebut.
Id. at 529.
Here, even if the court accepted the recantation as true, such
recantation could only potentially affect the daughter’s testimony
regarding what behavior she observed in the victim. The purported
recantation would not eliminate or diminish in any way the
testimony from the victim that Appellant continually sexually
abused her beginning when she was six or seven until she was
eighteen. At trial, Appellant’s daughter, the victim’s half-sister,
did not testify that she saw Appellant sexually abuse her half-
sister. In fact, this witness testified she saw nothing inappropriate
occur with the victim and Appellant. And neither step-sibling
testified that they observed Appellant abusing the victim.
Appellant’s daughter testified that Appellant ignored her and
her brother in favor of the victim and would send her and her
brother outside, so he could be alone with the victim. The
purported recantation stated that Appellant’s daughter now
understands that Appellant paid attention to her and her younger
4
brother “in a different way” than he did to the victim, because he
and the victim “were in a relationship.” Appellant’s guilt was
established by evidence completely separate from this testimony,
and this recanted testimony would in no way render a different
outcome in the trial, especially in light of the victim’s detailed and
devastating testimony and the Appellant’s trial testimony that
admitted he did have sexual intercourse with the victim, after
Appellant firmly denied such occurred in a pretrial interview.
Although Appellant’s trial admission claimed the intercourse
occurred after the victim’s eighteenth birthday, the admission was
obviously harmful to Appellant’s defense, because the
inconsistency diminished his credibility. The jury knew Appellant
denied that intercourse occurred but had to later explain the DNA
evidence. Thus, the record conclusively refutes Appellant’s claim
on this ground; the asserted recantation could not have changed
the outcome of the trial.
Appellant next argues his counsel was ineffective for failing to
present Appellant’s mother and father and another defense
witness at trial, despite Appellant’s request. Appellant states that
these witnesses would have testified that they were around
Appellant in the time period that the offenses allegedly occurred
and never saw any improper behavior by Appellant towards the
victim.
To prove ineffective assistance of counsel, the defendant must
show (1) that counsel’s performance was deficient, and (2) that the
defendant was prejudiced by that deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
prejudice under Strickland, the defendant must demonstrate a
reasonable probability that the result of the proceeding would have
been different but for counsel's deficiency. Hoskins v. State, 75
So.3d 250, 254 (Fla. 2011). Appellant cannot show prejudice.
Appellant claims that these uncalled witnesses would have
testified that they never saw Appellant acting inappropriately
toward the victim. But testimony at trial established that the
abuse occurred when Appellant was left alone with the children,
and the testimony of the uncalled witnesses could not diminish the
credibility of the victim’s testimony because it wouldn’t rebut the
testimony that abuse occurred when the witnesses weren’t there.
Appellant’s ineffectiveness claim on this ground is therefore
5
meritless, and the postconviction court did not err in summarily
denying Appellant’s motion on this issue.
Appellant also argues that defense counsel should have more
thoroughly investigated allegedly deleted texts between the
Appellant and the victim, and the victim and her mother, but none
of these texts, even if they exist, would have produced a different
result. We need not decide if any of counsel’s actions were
deficient, if we determine that Appellant cannot show prejudice:
“Because Strickland requires that a defendant establish both
deficiency and prejudice, an appellate court evaluating a claim of
ineffectiveness is not required to issue a specific ruling on one
component of the test when it is evident that the other component
is not satisfied.” Lebron v. State, 135 So. 3d 1040, 1052 (Fla. 2014).
To prevail on an ineffective assistance claim, “[t]he claimant must
demonstrate a likelihood of a different result that is ‘substantial,
not just conceivable.’” Carter v. State, 225 So. 3d 881, 883 (1st DCA
2017) (quoting Harrington v. Richter, 562 U.S. 86, 112, 131 (2011)).
“In order to sufficiently undermine the court's confidence in the
outcome, a claimant ‘must rely on more than mere speculation.’”
Id. (quoting Derrick v. State, 983 So.2d 443, 462 (Fla. 2008)).
Appellant argues that if counsel had gone over the text
messages with him, he would have been able to use those texts to
challenge the credibility of the victim and of his wife. Appellant
argues that deleted texts from the victim to Appellant after the
victim had turned eighteen indicate that the victim wanted to have
consensual sex with Appellant. But this evidence would not rebut
the victim’s testimony that she and Appellant had sexual
intercourse before she turned eighteen.
Appellant argues that one omitted text message would have
indicated that the victim gave differing explanations as to why she
left her grandparents’ house in Orlando. The victim testified that
she left because Appellant would not let her mother leave her
house, but Appellant claims a text shows that the victim told her
aunt that she left early due to an argument with her grandmother.
But the text message would have in no way refuted the victim’s
testimony regarding the extensive sexual abuse the victim suffered
during the years in question.
6
Appellant argues that text messages indicate that he and the
victim’s mother went on two dates in June 2012, once to the movies
and once to dinner, and Appellant could have used these text
messages to challenge the mother’s credibility. But there is not a
reasonable probability that the outcome of the trial would have
been different even if the text messages had completely destroyed
the mother’s credibility, which the texts would not have done, as
Appellant’s guilt was established by evidence entirely separate
from the mother’s testimony. Appellant cannot establish a
reasonable probability that the outcome of the trial would have
been different if he had been able to utilize the text messages at
trial. The trial court properly denied relief on this claim.
Appellant next argues that trial counsel was deficient for
failing to present at trial a letter that Appellant wrote to his father
in which he admits to having a sexual relationship with his
eighteen-year-old stepdaughter. Appellant argues that if counsel
had presented this letter, the State would have been prevented
from arguing that before trial, Appellant denied having a sexual
relationship with his stepdaughter. However, as the
postconviction court correctly noted, the video of Appellant’s
interview with law enforcement showed Appellant denied having
any sexual relationship with his stepdaughter. Even if the letter
had been presented at trial, the State still could have argued that
Appellant lied to law enforcement about not having a sexual
relationship with the victim. Appellant therefore cannot show a
reasonable probability that the outcome of the trial would have
been different if the letter had been presented. Appellant’s
ineffectiveness claim on this ground is therefore meritless, and the
postconviction court did not err in denying Appellant’s motion on
this ground.
Appellant next argues cumulative error. The cumulative
effect of numerous errors in counsel’s performance may constitute
prejudice, but only where “confidence in the outcome of [the
defendant’s] original trial has been undermined and that a
reasonable probability exists of a different outcome.” State v.
Gunsby, 670 So. 2d 920, 924 (Fla. 1996). As stated above, even
assuming that counsel was deficient, Appellant cannot show a
reasonable probability that the outcome of the trial would have
been different, in light of the victim’s testimony, corroborating
circumstantial evidence, and the evidence demonstrating
7
Appellant did engage in sexual intercourse with the victim,
contracting his previous attempt to deny this fact. State v. Woodel,
145 So. 3d 782, 803 (Fla. 2014) (“Furthermore, because we do not
find multiple errors in this case, there is no cumulative error effect
that establishes prejudice”).
AFFIRMED.
ROBERTS and OSTERHAUS, JJ., concur; B.L. THOMAS, C.J., concurs
specially with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
B.L. THOMAS, C.J., concurring specially.
I concur with the court’s opinion and write to provide context
to that opinion with additional facts from the record on Appellant’s
direct appeal filed with this court. It is well established that an
appellate court may take judicial notice of its own files. See
Hillsborough Cty. Bd. of Cty. Com’rs v. Public Employees Relations
Com’n, 424 So. 2d 132, 133 (Fla. 1st DCA 1982) (holding courts
may take judicial notice of their own records); see also, e.g., Loren
v. State, 601 So. 2d 271 (Fla. 1st DCA 1992) (stating that, in
reviewing the summary denial of a postconviction motion, this
court may take judicial notice of the direct appeal in its own
records). I acknowledge the tension between this principle and the
Florida Rules of Appellate Procedure, which define the record
following summary denial of a rule 3.850 motion as “the motion,
response, reply, order on the motion . . . and attachments to any of
the foregoing” and state that an order summarily denying an
appellant’s motion shall be reversed unless this record “shows
conclusively that the appellant is entitled to no relief.” Fla. R. App.
P. 9.141(2)(A), (D).
Facially sufficient claims of ineffective assistance of counsel
require an allegation that the outcome of the movant’s trial would
have been different but for the claimed errors of counsel. In
reviewing such a claim, a postconviction court must necessarily
8
consider the entire record of the proceeding to make a
determination on ineffectiveness. Because these collateral actions
assert that a claimed error affected an entire trial, in many cases
such claims cannot truly be “conclusively refuted” without full
consideration of that trial. But, of course, rule 3.850 cannot be
construed to require attachment of the full trial transcript, see
Tillery v. State, 639 So. 2d 76, 77 (Fla. 1st DCA 1994), and I do not
suggest that postconviction courts should do so.
I do, however, think that where, as here, an appellate court
has a transcript of the full trial proceeding in its records, it may
take notice of these records in reviewing the lower court’s ruling
on the prejudice prong of an ineffective assistance claim. The
supreme court has stated that, because ineffective assistance
claims are mixed questions of law and fact that implicate a
constitutional right, appellate courts have an obligation to
“independently review” these claims. Stephens v. State, 748 So. 2d
1028, 1034 (Fla. 1999). The supreme court has further suggested
that, because of this obligation, “an appellate court’s review of a
trial court’s order denying an ineffective assistance claim requires
consideration of the entire record that was before the trial court.”
State v. Coney, 845 So. 2d 120, 140 (Fla. 2003) (Pariente, J.,
concurring specially). Stephens and Coney did not involve review
of a summary denial of an ineffectiveness claim, and Justice
Pariente’s call to review the entire record may be read to pertain
only to a postconviction record following an evidentiary hearing.
But because appellate courts are obligated to independently
review mixed questions of constitutional magnitude, and because
the prejudice determination necessarily requires a consideration
of the entire proceeding by the postconviction court, it follows that
a court reviewing that determination can and should review the
entirety of that proceeding.
As such, I have taken notice of the record on Appellant’s direct
appeal and find the following facts useful in contextualizing
Appellant’s arguments and the portions of the trial transcript
attached by the postconviction court.
The victim’s mother testified that when she was married to
Appellant he did not give the same attention to their children as
he did to his step-daughter, the victim. The victim had no
boyfriends and was only allowed one girlfriend. The mother
9
became concerned and suspicious about Appellant’s relationship
with the victim. The victim’s mother began asking her daughter if
Appellant had touched her inappropriately. The victim at first
denied any inappropriate activity and would become “overly
animated” and just say Appellant was “mean.”
Appellant’s ex-wife testified she confronted Appellant with
her suspicions, but Appellant denied any inappropriate activity
and told her she was an “idiot” and “he had every right to be close”
to the victim. Appellant told the victim’s mother that he was closer
to the victim than their other children, because the victim was
older and called him “daddy” when she was four.
The victim’s mother testified that she and Appellant stopped
having sexual relations before she discovered a text on Appellant’s
phone that had not been sent out. She testified that she came
home that day and found the victim crying and saying she “hated”
Appellant. There was chaos in the home with all the children in
an uproar. The children had heard Appellant saying derogatory
comments on the phone about their mother. The victim’s half-
brother testified that when Appellant finished that conversation,
he gave an angry look at the victim and asked if she was mad
“because they didn’t hump today.”
When she examined Appellant’s phone, Appellant’s ex-wife
found the text which read “yeah, you didn’t rub your butt against
me last week.” The victim’s mother knew the text could not have
been intended for her. She confronted her daughter about the text,
who initially denied Appellant had been molesting her but then
covered herself in a blanket and said “yes.”
The mother, in an apparent state of shock and rage, testified
the next thing she remembered was standing in the room where
Appellant was sleeping and holding a gun in her hand. She didn’t
remember getting the gun but only holding the rifle to Appellant’s
head and screaming at him to wake up. The children, including
the victim, defused the scene and prevented any violence, and the
next thing the mother remembered was being outside and talking
to police.
The victim’s mother testified that she took all the children and
left the home. She later learned the victim was pregnant, and
Appellant was identified as the father. She also learned how long
10
the sexual activity between Appellant and the victim had
continued.
The victim, who was nineteen at the time of trial, testified that
she had known Appellant since she was four years old. He was a
father figure to her; she called him “dad.” The victim testified that
Appellant began molesting her when she was six or seven years
old and continued engaging in sexual activity with her until she
was eighteen years old. When asked why she had not reported the
sexual abuse earlier, she replied “I was scared.”
The victim testified that the abuse escalated. Appellant began
touching the victim and forcing her to put her mouth on his penis.
He would ejaculate on a towel or his stomach.
The victim testified she lost her virginity to Appellant when
she was fifteen. She told Appellant she did not want to have
intercourse with him, but he said it would be “fine.” Appellant had
sexual intercourse with the victim “every Friday” or about two or
three times a month.
The victim testified that Appellant was stricter with her than
with his own children. He would not allow her to have any close
friends, except one girlfriend. The victim testified that Appellant
told her if he found out she had a boyfriend, he would also “put a
bullet” in his head and “in her head too.”
The deputy who first responded to the scene described the
victim as crying hysterically and “very upset.” The victim’s mother
was crying “but not hysterically” but as if “she was blown away”
and “confused.” A sheriff’s investigator testified that he
interviewed the victim in the emergency room that night. The
victim “was crying, hiding her face behind her hands.” This
investigator also interviewed the Appellant.
The video of the interview between Appellant and the
investigator was played at trial. During the interview Appellant
waived his right to remain silent and right to counsel. The
investigator informed Appellant that there were accusations that
Appellant had engaged in sexual activity with the victim since she
was six years old and that he had sexual intercourse with the
victim “a week and a half ago.” Appellant denied this. He also
specifically denied he had sexual intercourse with the victim after
11
she turned eighteen years old. Appellant blamed the accusations
on relationship problems with the victim’s mother.
The foregoing facts further support the court’s opinion that
Appellant’s daughter’s recantation, the alleged failure to call
Appellant’s parents and Ami Morris as witnesses, and the alleged
failure to use Appellant’s letter to his father did not affect the
outcome of the trial and thus did not prejudice Appellant.
Appellant also claimed counsel was ineffective for failing to
properly use certain text messages to impeach State witnesses.
Appellant argues that one omitted text message would have
showed that the victim gave conflicting explanations as to why she
left her grandparents’ house. The victim testified that she left
because Appellant would not let her mother leave her house, but
Appellant claims a text shows that the victim told her aunt that
she left early due to an argument with her grandmother. In the
text in question, the victim told her aunt “Yeah mom was really
depressed and I missed her a lot and me and mammawl kind of got
in an argument but we’re fine now.” This text message is not
inconsistent with the victim’s testimony, as both indicate she left
her grandparents’ house because her mother was having problems.
This text message would not have refuted the victim’s testimony
that Appellant repeatedly sexually abused her throughout much of
her childhood.
At trial the victim’s mother testified that she and Appellant
had not had sexual relations in over a year before she was made
aware of the sexual abuse and testified that she and Appellant did
not ever go out on dates. Appellant argues that text messages
indicate that, contrary to her testimony, he and the victim’s
mother went on two dates in June 2012, once to the movies and
once to dinner, and Appellant could have used this inconsistency
to challenge the mother’s credibility. However, the context of the
relevant testimony indicates that she meant she and Appellant
had not gone out recently, not that they had never gone on a date.
As stated above, Appellant cannot establish a reasonable
probability that the outcome of the trial would have been different
if he had been able to utilize the text messages at trial. The
victim’s mother’s testimony was relatively brief, and the matters
involved in the text were essentially collateral the mother’s
testimony.
12
Based on the foregoing, I concur with the court’s opinion to
affirm the postconviction court’s summary denial of Appellant’s
motion alleging ineffective assistance of counsel.
_____________________________
Michael Ufferman, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Jennifer J. Moore, Assistant
Attorney General, Tallahassee, for Appellee.
13