NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
STATE OF FLORIDA,
Case No. 2D03-4191
Opinion filed November 17, 2004.
Appeal from the Circuit Court for
Hillsborough County; Jack Espinosa, Jr.,
Michael Brown, pro se.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Timothy A. Freeland,
Assistant Attorney General, Tampa, for
A jury convicted Michael Brown of delivering cocaine, possessing cocaine,
and resisting an officer without violence. After Brown’s convictions were final, he filed a
motion pursuant to Florida Rule of Criminal Procedure 3.850, asserting that his trial
counsel was ineffective for failing to call a witness who would have given exculpatory
testimony.1 After an evidentiary hearing, the circuit court denied the claim. We reverse
and remand with directions to grant Brown a new trial only on the charge of delivery of
At Brown's trial, an undercover member of the Tampa Police Department’s
QUAD (Quick Uniform Attack on Drugs) Squad testified that as he sat in his car at a red
light, he witnessed what he believed was a drug sale. The officer was about thirty-five
feet away when he first noticed the suspicious activity, but he eventually drove within
fifteen feet of the suspects. The officer said Brown was holding a small object in his
hand, which the officer could not see. Brown handed this object to a woman, Mollie
Cloward, and Cloward gave him paper money in return.
At this point, the undercover officer radioed uniformed officers in the area,
described the suspects, and asked the other officers to arrest them. Two of the officers
followed Cloward, and both of them saw her drop something as they approached. They
retrieved the object, a rock of cocaine, and arrested her.
Meanwhile, another officer attempted to apprehend Brown. When the
officer announced he was a Tampa policeman, Brown ran and hid behind a wall
surrounding an apartment complex. When the officer finally located Brown, he found a
plastic bag containing cocaine residue beneath Brown. The officer testified that it had
been raining that day and that the bottom of the bag was wet, but the part of the bag
closest to Brown's body was dry.
Brown raised numerous other claims in his rule 3.850 motion, which the circuit
court summarily denied. We affirm the denial of those claims without discussion.
Brown's rule 3.850 motion asserted that his trial counsel was ineffective in
failing to call his codefendant, Cloward, as a witness at trial. At the evidentiary hearing
on the motion, Cloward said she would have testified at trial that Brown did not sell her
drugs. She claimed that the transaction the QUAD Squad officer witnessed was a
repayment of a loan. According to Cloward, a few hours earlier she had borrowed $20
from Brown to pay for a tire repair, and she was returning the money. Because she was
still short of cash, she asked Brown if he could give her $5 back, which he did.
Brown's trial attorney, the third assistant public defender on his case,
testified that the day before trial, Brown told her he had received a letter from Cloward.
He did not give her the letter, nor did he tell her that Cloward wanted to testify, or what
the substance of her testimony would be. Counsel attempted to locate Cloward but
could not find her. She did not ask the court to continue the trial. Counsel knew that
Cloward had previously pleaded guilty to possession of cocaine based on the same
Brown and Cloward had been charged in the same information, in January
1998, at which time the same assistant public defender represented them both. This
joint representation continued until May 12, 1998, when their second public defender
asked to be removed from Brown's case because of a conflict. This conflict was based
on the fact that Cloward had entered a plea to resolve her charges on May 7, 1998.
The second public defender also testified at the hearing on Brown's rule 3.850 motion.
That attorney recalled that she was aware of Cloward's willingness to
testify on Brown's behalf. But for reasons that counsel was unable to explain, she had
the impression that Cloward would commit perjury to assist Brown. Brown's file
contained her notes and the notice of conflict filed in his case. Her notes in both
Brown's and Cloward's files also reflected that on May 25, 1998, at a plea colloquy,
Cloward tried to tell the judge that Brown did not sell her drugs. Additionally, the files
contained the notes of the first public defender involved, which stated that Cloward told
him that she was merely giving Brown back money she had borrowed.
Strickland v. Washington, 466 U.S. 668, 687 (1984), established a twopronged test for assessing the merits of an ineffective assistance of counsel claim.
First, "the defendant must show that counsel's performance was defective[,]" and
second, "the defendant must show that the deficient performance prejudiced the
As to the first prong of Strickland, the circuit court here found that trial
counsel was not ineffective because Brown had provided her with only minimal
information about Cloward just the day before his trial. The court noted counsel had
attempted to investigate but she had no good faith reason to ask for a continuance. The
record, however, refutes the circuit court's finding. It establishes that counsel knew or
should have known that Cloward was a potential witness well before trial. Cloward was
Brown's codefendant, charged in the same information. Moreover, counsel admitted
that she knew, two months before Brown's trial, that Cloward had pleaded guilty to a
charge stemming from the same incident. Cf. Johnson v. State, 680 So. 2d 536 (Fla.
1st DCA 1996) (stating the defendant's claim that counsel failed to interview a
codefendant was a facially sufficient allegation of ineffective assistance); Kilgore v.
State, 631 So. 2d 334, 335 (Fla. 1st DCA 1994) (same). But beyond the fact that
Cloward was a codefendant, Brown's file contained numerous references to her
exculpatory version of the event and her willingness to testify on his behalf.
Under the first prong of Strickland, the defendant must establish that
counsel's representation fell below an objective standard of reasonableness. 466 U.S.
at 688. An attorney has a duty to make reasonable investigations in his or her cases.
Squires v. State, 558 So. 2d 401, 403 (Fla. 1990). Trial counsel's testimony at the
evidentiary hearing did not reveal any strategic or tactical reason why she did not
attempt to interview Cloward sometime earlier than the day before the trial. Cf.
Devaney v. State, 864 So. 2d 85, 88 (Fla. 1st DCA 2003). While Brown's second public
defender thought Cloward might perjure herself, nothing in the case file explained why
she believed this to be so. Trial counsel cannot avoid her responsibility to investigate a
witness based on unsubstantiated beliefs of another lawyer. See Rose v. State, 675
So. 2d 567, 573 (Fla. 1996) (noting that counsel "was not at liberty to abdicate his
responsibility to [the defendant] by substituting his own judgment with that of an
appellate colleague"). The evidence presented at the rule 3.850 hearing established
that trial counsel's failure to investigate, locate, and call Cloward as a witness at trial
was objectively unreasonable based on prevailing professional standards. Accordingly,
Brown established the first prong of the Strickland test.
Because the circuit court found that counsel was not ineffective, it did not
reach the second, prejudice prong of Strickland. See Schwab v. State, 814 So. 2d 402,
408 (Fla. 2002) (noting that on an ineffective assistance claim, the court need not
address both prongs of Strickland if the defendant makes an insufficient showing on
one). Under the prejudice prong, "[t]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." Strickland, 466 U.S. at 694. This probability is one
sufficient to undermine confidence in the outcome. Id.
In this case, the charge of delivery of cocaine was supported by the QUAD
squad officer's observation of what he believed to be a drug sale and the fact that the
alleged purchaser, Cloward, dropped a piece of rock cocaine when she was
apprehended. When Brown was arrested, he was sitting on an empty plastic bag that
contained cocaine residue, but no rocks of cocaine were discovered. Thus, the key
evidence against Brown was the officer's observation of what he believed to be the sale
of drugs. Cloward's testimony would have specifically contradicted the officer's
impression. She would have explained that the exchange was an innocent transaction,
repayment of a loan, and testified that Brown did not sell her any drugs.
The prejudice to Brown is clear. See Tyler v. State, 793 So. 2d 137, 141
(Fla. 2d DCA 2001) (noting allegation, if true, that uncalled witness would provide
exculpatory version of events is sufficient to show prejudice); Devaney, 864 So. 2d at 88
(stating that counsel's failure to call a witness who could have cast doubt on the
defendant's guilt constitutes ineffective assistance); Marrow v. State, 715 So. 2d 1075,
1075 (Fla. 1st DCA 1998) (same).
We reverse and remand with directions to afford Brown a new trial on the
charge of delivery of cocaine. Because counsel's error did not affect Brown’s
convictions for possession of cocaine and resisting an officer without violence, those
Reversed and remanded.
ALTENBERND, C.J., and STRINGER, J., Concur.
It appears from the record that Brown has completed his sentences for both