         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


VINCENT JOSEPH KLAUS,

             Appellant,

 v.                                                    Case No. 5D17-1079

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed January 12, 2018

3.850 Appeal from the Circuit
Court for Osceola County,
Jon B. Morgan, Judge.

Rachael E. Bushey, of O’Brien Hatfield
P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

      Vincent Klaus appeals the postconviction court’s denial of his rule 3.850 motion for

postconviction relief. Appellant argues that the court erred in denying seven claims of
ineffective assistance of trial counsel.1 We affirm in part and reverse and remand in part

for attachment of records or an evidentiary hearing.

       Following a jury trial, Appellant was convicted of murdering Brian Jarrett. The facts

adduced at trial showed that Appellant, John Mitchell, and Jarrett were doing drugs

together at a party. When Jarrett repeatedly asked Mitchell for more drugs, Mitchell hit

him in the face, knocking him out. Appellant and Mitchell then put Jarrett into the trunk of

Appellant’s car to scare him. After they had driven some distance, they pulled the car

over, opened the trunk, and both Appellant and Mitchell struck Jarrett. According to

Mitchell, Appellant kicked Jarrett in the chest and stabbed him several times with a knife.

Prior to leaving him there, they removed some of Jarrett’s clothing so that he would be

humiliated if he tried walking along the road.

       Mitchell testified that he and Appellant later purchased gasoline at a specific gas

station and returned to the crime scene to burn the body. Mitchell said they then decided

to simply hide the body by covering it with vegetation. Mitchell told the jury that at the

time of the killing, Appellant’s car had a back seat in place and a trunk liner installed.

According to Mitchell, Appellant told him Jarrett had scratched his initials on the inside of

the trunk, but Appellant had rubbed them out.

       Mitchell’s girlfriend, Lindsey Liebl, testified that she found Mitchell on the bed

crying and he told her that he “thought we killed Jarrett.” Liebl testified that she overheard

Appellant and Mitchell discussing the idea of moving the body and heard Appellant talking




       1 Although Appellant raised eight claims in his amended motion for postconviction
relief, he only addressed the first seven claims in his initial brief, thereby waiving the
eighth. See Austin v. State, 968 So. 2d 1049, 1049 (Fla. 5th DCA 2007).


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prejudiced the defendant. See Delarosa v. State, 24 So. 3d 741, 742 (Fla. 2d DCA 2009);

see also Willich v. State, 79 So. 3d 76 (Fla. 1st DCA 2011).

       Here, Appellant cited several examples of prior inconsistent statements that could

have been used to impeach Liebl. For example, Appellant explained that, in her first

statement to law enforcement, Liebl told police that she never went in Appellant’s car and

did not know whether or when the back seats had been removed. However, at trial Liebl

testified that Appellant’s car had back seats before the murder but not after. Likewise,

Appellant claims that Liebl originally told police, at least twice, that when Mitchell was

crying on the bed, he told her that “he might’ve killed” Jarrett; whereas, at trial she testified

that Mitchell said “we might’ve killed” him.

       Mitchell told police during his interview that he had been drinking alcohol, smoking

weed, and doing crack, Xanax, and other drugs on the night in question, whereas at trial

he claimed only to have used marijuana and alcohol. Presenting that prior statement to

the jury would have called into question his veracity and raised questions about the extent

of his intoxication and ability to perceive and recall the events of that night. Appellant

also pointed to several other inconsistent statements given by Liebl and Mitchell which,

while not earthshattering, could have undermined their credibility. In this fourth claim,

Appellant alleged that it was imperative that trial counsel impeach Mitchell’s and Liebl’s

testimony as much as possible because their testimony was the only evidence that linked

Appellant to Jarrett’s murder.

       The trial court’s summary denial of this claim because “counsel conducted a

thorough cross-examination of both witnesses, impeaching them on numerous matters”

was error. The records the trial court attached do not conclusively refute Appellant’s claim




                                               5
Appellant’s guilt. The postconviction court denied relief as to this second claim, finding

whether they had purchased gasoline to be inadmissible, collateral impeachment

evidence because Jarrett’s body had not been burned.

         Section 90.608(5), Florida Statutes (2010), states that any party “may attack the

credibility of a witness by . . . [p]roof by other witnesses that material facts are not as

testified to by the witness being impeached.”       Here, if Appellant’s trial counsel had

investigated Mitchell’s claim that he and Appellant bought gasoline to burn Jarrett’s body

and found evidence to refute Mitchell’s claim, counsel could have impeached Mitchell

because whether he and Appellant bought gasoline with the intent to burn the body is a

material fact. Cf. Parker v. State, 20 So. 3d 966, 969-70 (Fla. 3d DCA 2009). This could

have made a difference at trial because Mitchell was a key witness for the State, and

thus, his “trustworthiness was critical to the State’s case.” Smith v. State, 185 So. 3d 585,

585 (Fla. 2d DCA 2016); see also Gamble v. State, 685 So. 2d 1310, 1311 (Fla. 2d DCA

1996).

         The portions of the trial transcript the postconviction court attached to its order

summarily denying this ground do not conclusively refute this part of Appellant’s second

claim. Therefore, we reverse and remand for the postconviction court to either attach

portions of the record conclusively refuting this claim or conduct an evidentiary hearing.

         In claim four, Appellant asserts that trial counsel failed to use available prior

inconsistent statements given by Mitchell and Liebl to effectively impeach them. A

criminal defendant raises a legally sufficient claim of ineffective assistance of counsel

where he or she specifies what portion of a witness’s testimony could have been

impeached with a prior inconsistent statement and how counsel’s failure to impeach




                                              4
prejudiced the defendant. See Delarosa v. State, 24 So. 3d 741, 742 (Fla. 2d DCA 2009);

see also Willich v. State, 79 So. 3d 76 (Fla. 1st DCA 2011).

       Here, Appellant cited several examples of prior inconsistent statements that could

have been used to impeach Liebl. For example, Appellant explained that, in her first

statement to law enforcement, Liebl told police that she never went in Appellant’s car and

did not know whether or when the back seats had been removed. However, at trial Liebl

testified that Appellant’s car had back seats before the murder but not after. Likewise,

Appellant claims that Liebl originally told police, at least twice, that when Mitchell was

crying on the bed, he told her that “he might’ve killed” Jarrett; whereas, at trial she testified

that Mitchell said “we might’ve killed” him.

       Mitchell told police during his interview that he had been drinking alcohol, smoking

weed, and doing crack, Xanax, and other drugs on the night in question, whereas at trial

he claimed only to have used marijuana and alcohol. Presenting that prior statement to

the jury would have called into question his veracity and raised questions about the extent

of his intoxication and ability to perceive and recall the events of that night. Appellant

also pointed to several other inconsistent statements given by Liebl and Mitchell which,

while not earthshattering, could have undermined their credibility. In this fourth claim,

Appellant alleged that it was imperative that trial counsel impeach Mitchell’s and Liebl’s

testimony as much as possible because their testimony was the only evidence that linked

Appellant to Jarrett’s murder.

       The trial court’s summary denial of this claim because “counsel conducted a

thorough cross-examination of both witnesses, impeaching them on numerous matters”

was error. The records the trial court attached do not conclusively refute Appellant’s claim




                                               5
that trial counsel was ineffective for failing to impeach the State’s two main witnesses,

and thus, we reverse and remand for the trial court to either attach records that

conclusively refute Appellant’s fourth claim or conduct an evidentiary hearing.

       In his sixth claim, Appellant argues that trial counsel was constitutionally ineffective

for failing to call any defense witnesses. He asserts that his brother was available and

would have confirmed that Appellant removed the back seat from his car to install a

stereo, rather than to destroy evidence. Appellant also states that Stephanie Feehan

observed the victim sitting in the back seat of Appellant’s car, which would have

contradicted Mitchell’s testimony that they put him in the trunk.

       In denying the sixth claim, the postconviction court stated:

              At the conclusion of the trial, the Court asked [Appellant]
              whether he was satisfied with the services of his lawyers and
              whether there was anything they failed to do, which they
              should have done. He responded, “I think they did all right.”
              When asked if there was anything they did not do, he
              admitted, “I don’t know.” He only offered a vague complaint:
              “There’s a lot of things considering the law that I don’t like that
              certain things can’t be brought up, this and that. I feel like it’s
              not fair, but I’m happy with my lawyer, you know.”

       In Law v. State, 847 So. 2d 599 (Fla. 5th DCA 2003), the trial court summarily

denied the defendant’s motion for postconviction relief that argued trial counsel was

ineffective for “failing to interview or call two alibi witnesses to testify on his behalf and

support his defense of misidentification.” 847 So. 2d at 600. In its order, the trial court

“point[ed] out that when the court questioned [the defendant] on his decision not to testify,

[the defendant] indicated that the court should let defense counsel do his job and that he

felt counsel was representing him ‘in the best way he can.’” Id. “The trial court found that

[the defendant] could have complained of counsel’s failure to call witnesses at that point,




                                              6
but failed to do so.” Id. We reversed the trial court’s summary denial because the

defendant’s “statement indicating satisfaction, made after the state had rested, may have

been based on his belief that it was too late to call witnesses” and failure to call alibi

witnesses is a facially sufficient claim. Id. at 600-01.

       Similarly, in the present case, Appellant made a facially sufficient claim. See

Gutierrez v. State, 27 So. 3d 192, 194 (Fla. 5th DCA 2010).             Further, Appellant’s

“statement indicating satisfaction, made after the state had rested, may have been based

on his belief that it was too late to call witnesses.” Law, 847 So. 2d at 600. This court

has stated, “[A] statement of satisfaction with counsel alone is generally insufficient to

conclusively refute a claim that counsel was ineffective for failing to call a witness.” Evans

v. State, 210 So. 3d 704, 705 n.1 (Fla. 5th DCA 2017) (citing Law, 847 So. 2d at 600-01).

Therefore, because the court did not attach portions of the record to sufficiently rebut

Appellant’s claim nor did it grant an evidentiary hearing on this claim, we reverse and

remand claim six of Appellant’s motion for the postconviction court to either attach

portions of the record to rebut Appellant’s claim or grant an evidentiary hearing on the

claim. See Kearse v. State, 876 So. 2d 1291, 1292 (Fla. 5th DCA 2004); see also Evans,

210 So. 3d at 705 n.1.

       After a thorough review of the record, we affirm as to Appellant’s other four claims.

We reverse and remand the court’s order denying Appellant’s second, fourth, and sixth

claims with instruction for the postconviction court to either attach records that

conclusively refute the claims or to conduct an evidentiary hearing.


       AFFIRMED IN PART, REVERSED IN PART WITH INSTRUCTIONS.


SAWAYA and BERGER, JJ., concur.


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