                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



FRANCISCO SIERRA SIERRA,                     )
                                             )
               Appellant,                    )
                                             )
v.                                           )          Case No. 2D15-2769
                                             )
STATE OF FLORIDA,                            )
                                             )
               Appellee.                     )
                                             )

Opinion filed August 4, 2017.

Appeal from the Circuit Court for Collier
County; Lauren L. Brodie, Judge.

Francisco S. Sierra, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba Caridad Martin,
Assistant Attorney General, Tampa, for
Appellee.




BLACK, Judge.

               Francisco Sierra appeals from the denial of his motion for postconviction

relief after an evidentiary hearing. We reverse the postconviction order and remand to

the circuit court for a new trial.
               Following a jury trial, Sierra was convicted of two counts of lewd or

lascivious molestation, in violation of section 800.04(5)(b), Florida Statutes (2009), and

one count of lewd or lascivious exhibition, in violation of section 800.04(7)(a). In his

motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure

3.850, Sierra alleged that trial counsel was ineffective for failing to move for a mistrial or

accept the trial court's offer of a mistrial based on witnesses for the State vouching for

the credibility of the victims.1

               An evidentiary hearing was held to resolve Sierra's claim. At that hearing,

Sierra's postconviction counsel asked the court to take judicial notice of the relevant

portions of the trial transcript; counsel also read portions of the transcript into the

postconviction record. The transcript reflects that the State's case rested on the

credibility of the victims, particularly the victim who raised the allegations against Sierra

and who had previously recanted her claims (the first-named victim). There was no

dispute that both a school guidance counselor and the lead detective and investigator

for the special victims unit testified on cross-examination by trial counsel as to the

credibility of the first-named victim and the veracity of the allegations against Sierra.

There was also no dispute that the trial court recognized the problem with the testimony.

The trial court stated:

               There's a[] problem we have, folks, and that is this. We've
               had testimony in this trial from the State's witnesses . . . on
               cross-examination of these witnesses, in effect, these
               witnesses were rendering their opinion as to the credibility of

               1
               Sierra raised a second claim of ineffective assistance of trial counsel
which was summarily denied. He does not challenge the denial of that claim, and our
reversal for new trial moots the issue.




                                             -2-
              the alleged victim. And there was no objection made. And,
              in effect, when the—we can't have a witness testify as to
              whether or not someone is deceptive or lying or truthful or
              otherwise. Because if we do that, we don't need a jury.
              That's what the jury is supposed to figure out. But those
              questions were elicited on cross-examination. So the court's
              concern is that we're going to have a 3.850 on this case. Do
              you know what I'm talking about [defense counsel]?

                     ....

              So I don't know how—I mean, I don't want to—no one wants
              to try a case twice, but I see that happening in this case.
              Now, one possible solution is that both sides could agree to
              have a mistrial and we could try this case another day.

              There was no agreement, and trial counsel did not move for a mistrial.

Sierra was convicted of the charged offenses.

              At the postconviction hearing, Sierra recalled that trial counsel's strategy

had been to attack the investigation as minimal and one-sided and that he had agreed

to that strategy. Sierra also testified that he was not present for the bench conversation

where the trial court suggested a mistrial and that when counsel asked if he wanted a

new trial, counsel did not explain what that would mean.

              During his testimony, trial counsel confirmed that his strategy had been to

attack the investigation as insufficient. He testified that he had intended to establish

that the guidance counselor was not trained in detecting deception and that she did not

question the truth of the story the first-named victim provided. When asked about the

opinion testimony, he testified that he believed that objecting and approaching the

bench would have drawn the jury's attention to the problematic testimony and would

have given the jury the idea that he was losing control of the witness. As to the lead

detective's testimony, trial counsel stated that his strategy had been to establish that the



                                            -3-
investigation had initially stalled because the lead detective questioned the veracity of

the allegations and that the investigation had otherwise been inadequate. He reiterated

that he had not wanted to draw attention to the opinion testimony by objecting.

              As to the trial court's mistrial suggestion, counsel testified that he had

evaluated the trial and how it was progressing. He testified that he had believed it was

not in Sierra's interest to agree to a mistrial because to do so would have eliminated

what counsel felt was a strong issue for appeal—that the State had been permitted to

amend the information after the jury had been impaneled and sworn.2 Counsel further

testified that he believed that by agreeing to a mistrial based "on that one little

problem"—that "the witness said an opinion"—he would have nullified what he

perceived as a bigger issue. When asked if he had discussed this with Sierra and

whether Sierra had agreed with the strategy to decline a mistrial, counsel stated, "I

didn't specifically ask him because I didn't think that he—I basically told him what was

happening and he just nodded yes, that he understood me."

              In denying Sierra's motion, the postconviction court found that not

objecting to the witnesses' testimonies and declining a mistrial were strategic decisions

in light of the amended information issue. The court further found that Sierra failed to

demonstrate an entitlement to relief.

              "An attorney's performance must be reasonable under the prevailing

professional norms, considering all of the circumstances, and viewed from the attorney's



              2
              Whether the trial court erred in permitting the State to amend the
information was raised on direct appeal. This court affirmed Sierra's convictions and
sentences. Sierra v. State, 103 So. 3d 161 (Fla. 2d DCA 2012) (table decision).



                                             -4-
perspective at the time of trial." Cabrera v. State, 766 So. 2d 1131, 1133 (Fla. 2d DCA

2000). The question presented by Sierra's claim is whether a reasonably effective

lawyer would have declined to move for a mistrial. In addressing this question we "must

indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689

(1984). However, that presumption is rebuttable; the judgment or strategy of counsel

must be objectively sound. Id. " '[P]atently unreasonable' decisions, although

characterized as tactical, are not immune" from challenge. Lamb v. State, 124 So. 3d

953, 957 (Fla. 2d DCA 2013) (quoting Cabrera, 766 So. 2d at 1133).

              Counsel's failure to move for a mistrial, or to accept the court's apparent

offer of a mistrial, constitutes deficient performance. It was unreasonable for counsel to

decline a new trial in favor of pursuing an issue for appeal which—if successful—would

have garnered the same result. Cf. Davis v. State, 740 So. 2d 86, 86 (Fla. 1st DCA

1999) (concluding that the untimely filed amended information was prejudicial and

reversing and remanding for a new trial). The propriety of the court's ruling allowing the

State to amend the information was not, as counsel believed, a "bigger issue." "Trial

counsel's decision in this case to permit this evidence repeatedly during [his] own cross-

examination of not one, but two State witnesses, and to take no action to try to alleviate

the damage, was 'outside the wide range of professionally competent assistance.' "

See Glancy v. State, 941 So. 2d 1201, 1203 (Fla. 2d DCA 2006) (quoting Strickland,

466 U.S. at 690).

              It is elemental in our system of jurisprudence that the jury is
              the sole arbiter of the credibility of witnesses. Barnes v.
              State, 93 So. 2d 863 (Fla. 1957). Thus, it is an invasion of



                                            -5-
              the jury's exclusive province for one witness to offer his
              personal view on the credibility of a fellow witness.

Page v. State, 733 So. 2d 1079, 1081 (Fla. 4th DCA 1999) (quoting Boatwright v. State,

452 So. 2d 666, 668 (Fla. 4th DCA 1984)). "It is error to admit the testimony of a

witness that is offered to vouch for the credibility of another witness." Rhue v. State,

693 So. 2d 567, 568 (Fla. 2d DCA 1996). Where a police officer's testimony is used to

bolster the credibility of a victim, the error cannot be deemed harmless. Cavaliere v.

State, 147 So. 3d 628, 629 (Fla. 2d DCA 2014) (quoting Lee v. State, 873 So. 2d 582,

584 (Fla. 3d DCA 2004)); see also Page, 733 So. 2d at 1081 ("It is especially harmful

for a police witness to give his opinion of a witnesses' [sic] credibility because of the

great weight afforded an officer's testimony."). And "[a]lthough the prohibitions on

civilians vouching for a victim's credibility have not been treated as harshly by the

courts, such testimony can still be harmful error[.]" Cavaliere, 147 So. 3d at 629.

              "The benchmark for judging claims of ineffectiveness . . . is whether the

conduct of counsel 'so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.' " Cabrera, 766 So.

2d at 1133 (quoting Downs v. State, 453 So. 2d 1102, 1106 (Fla. 1984) (quoting

Strickland, 466 U.S. at 686)). The credibility of the victims was the pivotal issue in this

case. See Rhue, 693 So. 2d at 570. A guidance counselor and the lead detective

vouched for the first-named victim's credibility. By failing to object to the bolstering

testimony or move for a mistrial, "the jury was left with the impression that it could

properly take into account the detective's opinion," as well as the guidance counselor's.

See Cavaliere, 147 So. 3d at 629 (quoting Lee, 873 So. 2d at 583-84). "The concern of




                                            -6-
the court evaluating an ineffectiveness claim should be whether the result of a particular

proceeding is unreliable because of a breakdown in the adversarial process." Lamb,

124 So. 3d at 957 (quoting Cabrera, 766 So. 2d at 1134). And in this case the opinion

testimony was clearly damaging, "so undermin[ing] the proper functioning of the

adversarial process that the trial cannot be relied on has having produced a just result."

See Glancy, 941 So. 2d at 1203; see also Cavaliere, 147 So. 3d at 630.

              In the same way that an appeal not taken because of late
              filing prejudices a defendant [for purposes of the Strickland
              analysis] by denying him "the opportunity for a second trial
              he otherwise would have had," so too does counsel's failure
              to request a mistrial deprive [the defendant] of a "procedural
              right to which the law entitle[d]" him.

Middleton v. State, 41 So. 3d 357, 362 (Fla. 1st DCA 2010) (third alteration in original)

(quoting United States v. Ramsey, 323 F. Supp. 2d 27, 40 (D.D.C. 2004)); cf. Lamb,

124 So. 3d at 956 ("The failure to file a motion for new trial can support a claim for

postconviction relief."); Manley v. State, 605 So. 2d 1327, 1328 (Fla. 2d DCA 1992)

(affirming denial of postconviction relief where prejudice was not established because

the court was "not convinced of any strong likelihood a new trial would have been

ordered"). Where there is a reasonable probability that a mistrial would have been

granted had counsel made the appropriate motion, prejudice has been established. Cf.

Lamb, 124 So. 3d at 957 ("We conclude that there is a reasonable probability that the

judge would have granted a new trial if defense counsel had filed the proper motion

based on the weight of the evidence."). Moreover, "[g]iven the significance of the issue,

we must conclude [that] there is a reasonable probability that, but for trial counsel's

omissions, the outcome of the proceeding would have been different." Rhue, 693 So.




                                            -7-
2d at 570.

              Counsel's decision to forego a new trial in favor of the mere possibility of a

new trial following a successful appeal was not reasonable trial strategy. Sierra was

deprived of a fair trial; counsel's rejection of the remedy offered by the court prejudiced

Sierra. See Garrido v. State, 162 So. 3d 1069, 1072 (Fla. 4th DCA 2015). Accordingly,

we reverse the denial of Sierra's motion for postconviction relief and remand for a new

trial.

              Reversed and remanded.



VILLANTI and SALARIO, JJ., Concur.




                                            -8-
