Criminal Law

Jennifer Codding
Strategic Litigator and Senior Counsel
Massey Law Group Tampa, FL

No. 2018-0096

June 14, 2019

Affirmed

  • Issue: Whether trial counsel rendered ineffective assistance of counsel when he failed to object to the testimony of the State’s expert witness.

The State appealed an order of the Superior Court setting aside the jury’s guilty verdict against the defendant on 1 charge of aggravated felonious sexual assault.

In 2016, complainant, a 17-year-old girl, alleged that defendant, a 20-year-old man, had sexually assaulted her in the defendant’s vehicle in a parking garage outside of her workplace. At trial, the State called a board-certified physician with a sub specialty board certification in child abuse as a witness and moved to qualify her as an expert. Defendant did not object. A jury convicted defendant.

Defendant then moved to set aside the verdict on the ground that trial counsel rendered ineffective assistance because he failed to object to the expert’s testimony regarding symptoms complainant allegedly suffered post-assault. The Court ruled that defendant’s trial counsel’s representation was constitutionally deficient, set aside the verdict and granted a new trial.

On appeal, the State argued failure to object to the expert’s testimony did not constitute ineffective assistance of counsel. Defendant countered that the Court ruled correctly because the expert improperly linked behavior and emotional symptoms specific to the complainant to the sexual assault at issue, and in so doing, impermissibly bolstered the complainant’s credibility.

To prevail on ineffective assistance of counsel, one must demonstrate that counsel’s representation was constitutionally deficient in that if fell below an objective standard of reasonableness and that counsel’s deficient performance actually prejudiced the outcome of the case, meaning there is a reasonable probability that the result of the proceeding would have been different had defendant had competent legal representation.

The State argued that defense counsel’s failure to object to the State’s expert witness testimony did not constitute ineffective assistance of counsel because the expert merely testified as a fact witness. The Court disagreed and held that because the trial court recognized the witness as an expert and informed the jury that she could offer an expert opinion, the jury could infer that she had formed the expert opinion that the defendant had assaulted the complainant. Accordingly, the Court held defense counsel’s failure to object to the expert testimony could not reasonably have been a part of trial strategy and therefore his performance was constitutionally deficient.

As to the prejudice prong, the State argued that even if trial counsel’s conduct fell below the range of reasonable professional assistance, there was no prejudice because the expert’s testimony was “merely cumulative,” “simply established that the [complainant] was still having an emotional reaction to the event,” and did not provide a link between the symptoms and sexual abuse. The Court disagreed and held that the jury could have made such a link, and therefore there was a reasonable probability that the result of the proceeding would have been different had competent legal representation been provided.

 

Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. Wadleigh, Starr & Peters, of Manchester (Donna J. Brown on the brief and orally), for the defendant.