Neeley v. State , 210 So. 3d 769 ( 2017 )


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  •                 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    DENNIS E. NEELEY,                  )
    )
    Appellant,              )
    )
    v.                                 )                            Case No. 2D16-1183
    )
    STATE OF FLORIDA,                  )
    )
    Appellee.               )
    ___________________________________)
    Opinion filed February 17, 2017.
    Appeal pursuant to Fla. R. App. P.
    9.141(b)(2) from the Circuit Court for
    Hillsborough County; Kimberly K.
    Fernandez, Judge.
    Ryan C. Torrens of Torrens Law
    Group, P.A., Tampa, for Appellant.
    No appearance for Appellee.
    SILBERMAN, Judge.
    Dennis Neeley appeals the order summarily denying his motions filed
    under Florida Rule of Criminal Procedure 3.850. We affirm the portions of the
    postconviction court's order that summarily deny claims one, two, and three of the first
    motion and claims one and three of the amended motion. We reverse the portion of the
    order that summarily denies claim two of the amended motion and remand for further
    proceedings.
    In ground two of his amended motion, Mr. Neeley asserted that his trial
    counsel was ineffective for failing to object when the prosecutor repeatedly told the jury
    in closing argument that his theory of defense was despicable, desperate, and a "re-
    victimization" of the victim. The postconviction court ruled that certain of the
    prosecutor's statements were improper but that "based on the testimony presented at
    trial, the Defendant has failed to demonstrate there is a reasonable probability that the
    outcome of the proceedings would have been different if counsel had objected to these
    statements."
    The portions of the trial transcript that the postconviction court attached to
    its order in support of this ruling reflect that despite the substantial evidence presented
    by both parties, the case hinged upon the victim's testimony. The victim testified that
    Mr. Neeley sexually battered and molested her, and Mr. Neeley testified and denied her
    allegations. The State presented evidence of the victim's prior statements to support
    her testimony, and Mr. Neeley's wife testified to facts in support of the defense theory.
    The record attachments do not show that the State presented physical evidence of the
    crimes or evidence that Mr. Neeley ever confessed to the crimes asserted by the victim.
    The attachments also show that during her initial and rebuttal closing argument, the
    prosecutor referred to Mr. Neeley's theory of defense as a "re-victimization" of the victim
    five times, she ridiculed his defense as desperate five times, and she twice disparaged
    his defense as despicable. Indeed, the attachments show that the prosecutor
    concluded her rebuttal closing argument by imploring the jury: "And I just want to close
    once again with 'don't do it.' As [the victim] said, 'don't do it.' Don't re-victimize her."
    -2-
    The prosecutor's repeated references to Mr. Neeley's defense as
    desperate, despicable, and a "re-victimization" of the victim are unquestionably
    improper. See Sheridan v. State, 
    799 So. 2d 223
    , 225–26 (Fla. 2d DCA 2001)
    (recognizing that the prosecutor "repeatedly made improper statements during closing
    argument, including the reference to a defense theory as 'desperate' "); Brown v. State,
    
    593 So. 2d 1210
    , 1211–12 (Fla. 2d DCA 1992) (stating that the prosecutor's comments
    that the victim was again "victimized" by having to testify at trial and that "he wanted to
    be able to call the victim and say that the jury had the courage to see the truth and that
    he was not victimized a second time" were improper appeals for sympathy that would
    create "hostile emotions toward the accused" and were improper expressions of
    personal belief); Kelly v. State, 
    842 So. 2d 223
    , 227 (Fla. 1st DCA 2003) (determining
    that a new trial was required, in part, because "a very large portion of the prosecutor's
    closing remarks appear to be calculated to generate hatred and ill will towards the
    defendant" and "invited the jury to make a finding of guilt for a reason other than
    evidence that demonstrated [the defendant] committed the crime"); Jenkins v. State,
    
    563 So. 2d 791
    , 791 (Fla. 1st DCA 1990) (determining that the prosecutor's statements
    accusing defense counsel of further victimizing the victim were "clearly improper").
    The record attachments do not reflect that Mr. Neeley's trial counsel
    objected to any of the statements now being challenged. Had counsel objected,
    improper argument that urged the jury to return a guilty verdict based on sympathy for
    the victim could have been avoided. To demonstrate prejudice on an ineffective
    assistance of counsel claim, "the defendant must show a reasonable probability that 'but
    for counsel's unprofessional errors, the result of the proceeding would have been
    -3-
    different. A reasonable probability is a probability sufficient to undermine confidence in
    the outcome.' " Taylor v. State, 
    120 So. 3d 540
    , 548 (Fla. 2013) (quoting Johnston v.
    State, 
    63 So. 3d 730
    , 737 (Fla. 2011)); see also Carter v. State, 
    175 So. 3d 761
    , 767
    (Fla. 2015).
    Here, the attachments to the trial court's order reflect that the trial was a
    credibility contest. The attachments fail to show that there is not a reasonable
    probability that the outcome of Mr. Neeley's trial would have been different if his counsel
    had objected. We therefore reverse the portion of the postconviction court's order that
    summarily denies claim two of the amended motion and remand for further proceedings.
    Affirmed in part, reversed in part, and remanded.
    SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.
    -4-