LEON BALFOUR JOSEPH v. STATE OF FLORIDA

          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        LEON BALFOUR JOSEPH,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-1888

                             [October 7, 2020]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Marina Garcia Wood,
Judge; L.T. Case No. 08-16628CF10A.

   Daniel Tibbitt of Daniel J. Tibbitt, P.A., North Miami, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellee.

                     On Motion for Corrected Opinion,
                     Clarification, and/or Rehearing

MAY, J.

   The State has filed a motion for a corrected opinion, clarification,
and/or rehearing. We grant the motion for corrected opinion and
clarification and deny the motion for rehearing. We withdraw our prior
opinion and substitute this opinion in its place.

    The defendant appeals an order summarily denying his motion and
amended motion alleging ineffective assistance of counsel. He raises
multiple issues. We find merit in ground thirteen of the initial motion
(ground three of the amended motion). We therefore reverse and remand
for an evidentiary hearing or the attachment of records refuting the claim.
We affirm as to the remaining issues.

   The underlying case arose out of the stabbing death of the victim. The
victim confronted the defendant outside of the defendant’s home after
learning that his estranged wife and their children were living with the
defendant.

   At the time of the incident, the defendant and the victim’s estranged
wife were leaving the house with the children.

   The victim tried to grab the children, including a baby which the
defendant was carrying. The two men began fighting. The victim punched
the defendant in the mouth. The defendant then retrieved a knife from
inside the house and returned to stab the victim to death.

   The defendant initially told police that the victim brought the knife. He
later admitted the knife was his. He claimed self-defense. The jury
convicted him of manslaughter.

    The State filed a pre-trial motion in limine to exclude evidence of the
victim’s history of domestic violence against his estranged wife. The record
does not contain the arguments made nor the court’s ruling. However,
when the estranged wife testified at trial, the court repeatedly cautioned
her against mentioning any prior instances of domestic violence. The court
also rejected defense counsel’s argument that the State opened the door
to that testimony by asking the estranged wife about her separation from
the victim.

   On direct appeal, defense counsel argued the court erred in warning
the estranged wife against testifying about the victim’s history of domestic
violence. However, counsel did not discuss the motion in limine or argue
that the State opened the door to the evidence. We affirmed without
opinion.

   The defendant then filed a petition for habeas corpus arguing ineffective
assistance of appellate counsel. We denied the petition.

    In his rule 3.850 motion, the defendant raised several claims regarding
trial counsel’s handling of the victim’s history of domestic violence. He
argued counsel was ineffective for failing to: (1) object when the court
warned the estranged wife against testifying about the victim’s history of
domestic violence; and (2) introduce evidence of the victim’s reputation for
violence and specific prior acts of violence.

   He claimed the victim was verbally abusive and “repeatedly exacted
brutal attacks” against the estranged wife and the children, including
cutting the estranged wife with a knife, threatening to shoot her in the
head, and hitting his daughter and locking her in a room when she called

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the defendant “daddy.” The defendant claimed the victim was arrested
and placed on probation for several violent offenses. He alleged his
estranged wife left the victim because of these incidents and told the
defendant about them.

    He argued this evidence should have been introduced in support of his
self-defense claim and to show why he felt it necessary to use deadly force
to defend himself, the estranged wife, and her children. He argues the
State was able to portray the victim as “a peaceful man simply trying to
reunite with his family after he had been callously left by his wife,” when
in fact he was extremely violent.

   The defendant’s claim that counsel was ineffective in failing to object
when the court warned the estranged wife against testifying about the
victim’s history of domestic violence is a challenge to the trial court’s
rulings on the State’s motion in limine and trial counsel’s argument that
the State opened the door to the evidence. These claims are procedurally
barred because they could have been raised on direct appeal. See Asay v.
State, 769 So. 2d 974, 989 (Fla. 2000) (quoting Johnson v. Singletary, 695
So. 2d 263, 265 (Fla. 1996)).

   However, the defendant’s claim that counsel was ineffective in failing to
introduce evidence of the victim’s reputation for violence and specific prior
acts of violence other than domestic violence is sufficiently pled and not
refuted by the record. Indeed, the State does not dispute that this type of
evidence is generally admissible to support a self-defense claim. See, e.g.,
Antoine v. State, 138 So. 3d 1064, 1075–76 (Fla. 4th DCA 2014).

   In short, this claim was sufficient to warrant an evidentiary hearing or
attachment of records to refute the claim. We therefore reverse and
remand the case for that purpose. We otherwise affirm.

   Affirmed in part; reversed in part and remanded.

LEVINE, C.J., and FORST, J., concur.

                            *          *       *

   Not final until disposition of timely filed motion for rehearing.




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