 |
 |
to fill out a simple form to connect to Classified Postings in your area.
|
|
|
|
|
Kenon v. State8/29/2003
Appellant Vincent L. Kenon appeals the denial of his criminal rule 3.850 motion for post-conviction relief. We affirm the order of the trial court, rejecting Kenon's argument that trial counsel rendered ineffective assistance by naming, during opening statements, India Paul, an exculpatory witness on the issue of identification, and then failing to present Paul's testimony during the defense's case-in-chief. During opening statements at Kenon's jury trial for attempted first-degree murder (count I), use of a firearm during the commission of a felony (count II), burglary of a conveyance with person assaulted (count III), and shooting into an occupied vehicle (count IV), trial defense counsel stated to the jury:
One of the witnesses that was not mentioned by [the prosecutor], but was discovered by police, was a woman by the name of India Paul. And India Paul has given a deposition that says the person that beat on the side of the passenger window was not the person who got out of the car and went and shot [the victim].
At trial , three prosecution eyewitnesses testified. Each identified Kenon as the perpetrator of a shooting. The State's evidence essentially showed that on October 29, 1994, Kenon, a driver believing he had been cut off by another vehicle, got out of his car, walked to the driver's side of the other car, and shot the other driver in the face. After a short recess, the defense rested without putting on any evidence. The jury convicted Kenon of attempted second-degree murder with a firearm on count I, and found him guilty as charged on counts II, III, and IV. The trial court imposed life imprisonment. This court reversed the conviction on count II, and affirmed the remaining counts. See Kenon v. State, 701 So. 2d 887 (Fla. 1st DCA 1997).
Through his attorney, Kenon timely filed this rule 3.850 motion alleging ineffective assistance of trial counsel. At the evidentiary hearing, trial defense counsel and India Paul testified. Trial counsel testified that he interviewed and deposed Paul prior to trial. He testified that he was aware of inconsistencies in her statements to police and in her deposition before trial, and believed this was fertile ground for cross-examination. Specifically, in Paul's initial statement to police, she denied any knowledge of who fired the shot. Trial counsel further testified that he decided not to call Paul after discussions with Kenon and because of his estimation of the value of rebuttal closing argument.
India Paul testified that the shooter got out of the rear passenger side door of the suspect vehicle. She disputed that her initial statement to police indicated she had not been in the area of the shooting. According to her November 1994 sworn statement to police, however, she stated she was in the area, heard gunshots, but did not see anyone with a gun. She stated that she exited her vehicle and walked towards the victim's car, but the police were already there. Then, in her December 1995 deposition, she said, consistent with her testimony at the hearing, that the shooter got out of the passenger side of the suspect vehicle, but she stated she never went up to the victim's car. When confronted with these inconsistencies, Paul was unable to offer an explanation and responded "I don't remember" and "I don't know."
The trial court denied Kenon's motion. The order recited findings that trial counsel's decision not to call Paul was a tactical legal strategy, and not grounds for a finding of ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of trial counsel, Kenon must show that counsel's performance was deficient and that this deficient performance prejudiced the defen
Page 1 2 3 Florida Classifieds
Classified Postings
|
| |
to fill out a simple form to connect to Classified Postings in your area.
|
|