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Devaney v. State12/29/2003
fore the trial concluded. None of the potential trial witnesses was called. Defense counsel's testimony at the post-conviction evidentiary hearing did not reveal any tactical or strategic reason for failing to interview or failing to call the exculpatory witnesses. Cf. Johnson v. State, 769 So. 2d 990, 1001 (Fla. 2000) ("Counsel's strategic decisions will not be second-guessed on collateral attack."); Rose v. State, 675 So. 2d 567, 570 (Fla. 1996) (" t is apparent that there was a reasoned basis for counsel's decision.").
In Schwab v. State, 814 So. 2d 402 (Fla. 2002), our supreme court dissected the Strickland test for analyzing claims of ineffective assistance of counsel, as follows:
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-prong test to be applied by courts in analyzing claims of ineffective assistance of counsel. See Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000). As to the first prong, the Supreme Court stated that "the defendant must show that counsel's representation fell below an objective standard of reasonableness" based on "prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Under the second prong of the test, " he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. The Supreme Court defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id.
Schwab, 814 So. 2d at 408. " he failure to call witnesses can constitute ineffective assistance of counsel if the witnesses may have been able to cast doubt on the defendant's guilt . . . ." Marrow v. State, 715 So. 2d 1075, 1075 (Fla. 1st DCA 1998) (quoting Jackson v. State, 711 So. 2d 1371, 1372, (Fla. 4th DCA 1998)).
In the present case, the jury's verdict hinged on their finding that Mr. Devaney, not Mr. Milling, was driving at the time of the first crash. On this record, there is a reasonable probability that the exculpatory witnesses' testimony - by directly contradicting the testimony that Mr. Devaney said that he was driving at the time of the first crash and by otherwise calling the credibility of Mr. McGhee into question - would have led the jury to return a verdict of not guilty.
Reversed and remanded.
ALLEN and DAVIS, JJ., CONCUR.
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