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Devaney v. State12/29/2003
George Henry Devaney, III, appeals the denial of the amended motion for post-conviction relief he filed pursuant to Fla. R. Crim. P. 3.850 (2001), seeking to set aside convictions for "DUI Manslaughter, DUI with serious bodily injury, Leaving the scene of an accident involving death, Leaving the scene of an accident involving serious bodily injury." We reverse and remand.
The motion alleged that his trial counsel provided ineffective assistance in failing to interview and then in failing to call three exculpatory witnesses whose names he had furnished them. Evidence adduced on the motion established that the failure to call these witnesses was objectively unreasonable, based on prevailing professional standards, and that this failure to meet minimum constitutional requirements undermines confidence in the correctness of the result at trial. See Schwab v. State, 814 So. 2d 402, 408 (Fla. 2002) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
The central question at trial was who was driving when the fatal accident occurred on January 4, 1997. Mr. Devaney's truck was involved in two accidents early that morning. He conceded that he was driving at the time of the second accident, but contended (and still contends) that one Mike Milling was driving at the time of the first accident, the accident that gave rise to criminal charges. Mr. Milling testified that Mr. Devaney was driving at the time of the first accident but, on cross-examination as to that accident, Mr. Milling said, "I know what I hit." Two state's witnesses, Lamart McClain and William McGhee, testified that, while they were in a holding cell (along with perhaps seven others) on the day Mr. Devaney's jury was chosen, Mr. Devaney said that he was driving at the time of the first accident.
On the second day of trial, after the prosecution alerted the defense to its intention to call Messrs. McClain and McGhee, the trial court allowed defense counsel to depose them that night. When proceedings resumed the following morning, a Friday, a lawyer who represented Mr. Devaney was addressing the court about the two newly disclosed state's witnesses he had deposed the night before, when he said:
I just got a note from my client about people in the jail that he is aware of that can refute the allegations that we heard of last night. The first I knew about it is right now, when Mr. Devaney just gave me this information. . . . .
I mean, the court recognizes that I am ill, have been doing the best I could all week. I was very ill this morning, but I - the reason why I'm here, and probably shouldn't be here, is I didn't want the court to think for one moment that I was using my illness to further perpetuate my request of the court last night that we be given additional time to do what we could to investigate these two witnesses, so I am here. I can stay here and I plan to be here today.
Nevertheless, we are - we were in court last night. Talk about being on the horns of a dilemma, we are in a mess here as to what to do about defending our client's rights with regard to these two new witnesses.
. . . . I'm not attributing any fault to the state, but due to my condition, I've not been able to stay on top of things this week . . . . And I probably could have put a lot of time in last night, and I just was too sick to do that, and I was sick again this morning.
The trial court responded to defense counsel by discussing the possibility that numerous unlisted defense witnesses would testify to rebut the testimony of the two unlisted state's witnesses:
f you come in with seven witnesses . . . I'm going to order the state to have an opportunity to d
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