DWYER v. STATE No. 97-3233.
743 So.2d 46 (1999)
Charles Owen DWYER, Appellant, v. STATE of Florida, Appellee.
District Court of Appeal of Florida, Fifth District.
August 20, 1999.
Charles Owen Dwyer, Jasper, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant
Attorney General, Daytona Beach, for Appellee.
Charles Owen Dwyer appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion in which he made claims of ineffective assistance of his trial counsel, newly discovered evidence
Dwyer's conviction rested entirely on the jury's consideration of the credibility of Dwyer and a co-defendant versus the testimony of the two victims. Dwyer alleged in his 3.850 motion that one of the victim's reputation for violence constituted newly discovered evidence because it was not discoverable at the time of trial through the exercise of due diligence. Alternatively, Dwyer alleged that he received ineffective assistance because his counsel ignored his pleas to obtain the services of an investigator to seek evidence of the victim's background, character, and reputation, and that, because his counsel hired an investigator only immediately before the trial, he was unable to discover any useful background information about the victim.
The trial court granted an evidentiary hearing "for the limited purpose of determining whether the affidavits of approximately 21 witnesses constitute newly discovered evidence which would have been admissible at trial and would probably have resulted in a different verdict." Five witnesses ultimately appeared on behalf of the appellant and confirmed that they would have testified at trial that they knew one of the victims to have a reputation for being aggressive and violent. Four out of five of the witnesses had been involved in previous skirmishes with this victim in which charges of armed trespass or similar charges were brought, and later dismissed, against the witnesses or members of their families.
Following the hearing, the trial court held, inter alia, that the newly discovered evidence could not be revisited because this court had previously affirmed Dwyer's conviction. Dwyer v. State, 661 So.2d 840 (Fla. 5th DCA 1995); see Turner v. Dugger, 614 So.2d 1075, 1078 (Fla. 1992) (claims procedurally barred if they, or variations thereof, were raised on direct appeal). Although this court did affirm the conviction, the only issue considered that involved the "newly discovered evidence" was a procedural issue, to wit: whether the trial court improperly struck Dwyer's second motion for new trial. The second motion for a new trial is not a motion provided for in the Florida Rules of Criminal Procedure. The issue on appeal did not raise Dwyer's entitlement to a new trial based on the discovery of new evidence. The issue was whether the trial court abused its discretion in determining that this new evidence did not establish that the testimony adduced at trial was fraudulently obtained and resulted in a verdict so tainted that the unusual remedy of granting an unauthorized, second and belated motion for new trial was warranted. Fraudulently obtained testimony may be raised by extraordinary means. State v. Glover, 564 So.2d 191 (Fla. 5th DCA 1990). Dwyer's newly discovered evidence claim was procedurally barred from being considered in Dwyer's prior appeal that raised the fraud issue. We believe that the trial court has not yet considered the impact the newly discovered evidence may have had on the verdict of guilt without being influenced by an erroneous belief that the issue had already been reviewed on the prior appeal.
The lower court further rejected Dwyer's ineffective assistance of counsel claim based on the erroneous belief that even if defense counsel had discovered the omitted reputation witnesses, such evidence was not likely admissible because Dwyer did not know of the alleged victim's reputation for violence. Generally, evidence of a victim's character is inadmissible, but a defendant who alleges self-defense can show, through the testimony of another witness, that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. Smith v. State, 606 So.2d 641 (Fla. 1st DCA 1992); see also Ehrhardt, Florida Evidence § 404.6 (1999 ed.); Graham, Handbook of Florida Evidence § 404.1 (1987). A defendant's prior knowledge of the victim's reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant's state of mind. Ehrhardt. Accordingly, evidence of one of the victim's reputation for violence was not prohibited by Dwyer's lack of prior knowledge of that victim's character traits.
We reverse and remand for a new evidentiary hearing on Dwyer's claims of newly discovered evidence and ineffective assistance of counsel.
ORDER VACATED AND REMANDED.
GOSHORN, J., concurs.
HARRIS, J., dissents, with opinion.
HARRIS, J., dissenting.
I respectfully dissent.
I accept appellant's contention that he discovered after the trial, and could not have discovered earlier, the violent nature of Lawson, one of the victims. I agree also that such evidence might be relevant under certain circumstances in his claim of self-defense. And I agree with the majority herein that the mere fact that we affirmed without opinion appellant's previous appeal, which included some reference to this late discovered evidence, does not obstruct Dwyer's current effort to obtain a new trial.
I dissent not because some law prevents appellant from raising the issue; I dissent because the facts testified to by him and his co-defendant at trial preclude relief because they demonstrate that he cannot meet the Jones
Self-defense involves an admission and avoidance: "I shot the victim but I did so in order to protect myself or another." It does not apply, at least generally, when the defendant claims the shooting was an accident.
In this case, Dwyer was convicted of the attempted first degree murder of Lawson and the attempted first degree murder of Norris.
According to the defendants' testimony, the two victims approached the defendants at night on a dark road. The victims pretended to be policemen and one of them pulled a gun on the defendants. Then the defendants disarmed the victims!
This testimony simply does not justify the majority's position that appellant was defending himself at the time of the accident. As for waiting for help, as suggested in the majority's footnote 3, instead of using the radio to call the police, appellant was, according to his testimony, attempting to disable it. Self-defense should not be so broadly defined or applied that it becomes a license for murder.
As to the self-defense claim urged by appellant concerning Norris, it is improbable, for two reasons, that informing the jury of Lawson's violent nature would have affected the verdict. Both reasons are contained within the jury instruction on justifiable use of deadly force.
By Dwyer's admission, the victims were overcome and disarmed. There was no evidence that they had access to any other weapons. Dwyer and Perkins had the only weapons shown by the record and were in control of the scene. Nothing prevented them, except perhaps a desire for retribution, from then getting into their vehicle and driving away. Indeed that is exactly what they say they did after the shooting and after a car passed which observed the incident and might well have sent help. Nothing in the record indicates why they could not have done so before the shooting. Lawson's reputation for violence, even if known by the jury, would not change this at all.
First, of course, Dwyer was unaware of any such reputation. But even if he knew of Lawson's reputation, it could have no bearing on the Norris incident. He does not contend that his concern about Lawson played any role in the "accidental" shooting involving Norris. Dwyer claims the gun accidently discharged when he bent over Norris to disable the radio because Norris moved. Lawson's reputation would not change this at all. There was no testimony that at the time of the shooting Dwyer believed that Norris (or Lawson) posed any imminent danger to either himself or his co-defendant, Perkins, the only two who possessed guns.
It is not appropriate to shoot even violent people after they are disarmed. The
Dwyer's second conviction for attempted murder was based on the aider and abetter theory involving Perkins' action relating to Lawson. Lawson testified that Perkins pointed his weapon at Lawson and pulled the trigger but the gun misfired. Perkins' defense to this charge was that it did not happen. He never pulled the trigger and the gun did not misfire. The majority does not indicate how Lawson's reputation could affect this count. Again, Lawson's reputation for violence, even if Perkins knew about it, would be irrelevant to this defense. It is highly improbable that the jury would find self-defense to the attempted shooting when Perkins claimed it never happened.
Because of the defenses chosen by Dwyer, accident in the case involving Norris and denial in the case involving Lawson, the newly discovered evidence of Lawson's reputation for violence, even if submitted to the jury, would not "probably produce an acquittal on retrial" and therefore the trial judge was right in denying relief.
I would affirm the trial court.
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