          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-3531
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MICHAEL LLOYD WORRELL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________

On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.

                         October 17, 2019

PER CURIAM.

     Michael Worrell was convicted on seven counts of sexual
battery against two young girls. Worrell filed a postconviction
motion alleging six reasons that his trial counsel was ineffective,
which the postconviction court summarily denied. On appeal, we
affirm the summary denial, but write to address Worrell’s claim
that counsel was ineffective for failing to present the testimony of
two doctors who would have supported his defense.

     To prevail on an ineffectiveness claim, a defendant must show
that counsel’s performance was deficient and prejudicial; counsel’s
errors must have been so serious that the Sixth Amendment’s
guarantee of counsel was not satisfied and the defendant was
deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668,
687 (1984). If a defendant asserts ineffectiveness due to counsel’s
failure to call, interview, or investigate witnesses, he must allege
the testimony that could have been elicited from the witness and
how the failure to elicit this testimony caused prejudice. See
Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004). If this claim is
legally sufficient, an evidentiary hearing is required unless it is
conclusively refuted by the record. See Franqui v. State, 59 So. 3d
82, 95 (Fla. 2011).

     Worrell claimed that counsel should have called Dr. Neidigh,
who had conducted a psychosexual evaluation of Worrell and
would have testified that he had no propensity to molest children.
Worrell also claimed that counsel should have called Dr. Kirk, who
would have testified that he had treated Worrell, unsuccessfully,
for erectile dysfunction, thus rendering dubious the victims’
allegations.

     “Typically, it will be necessary to hold an evidentiary hearing
to determine why trial counsel did not call a particular witness.”
Terrell v. State, 9 So. 3d 1284, 1288-89 (Fla. 4th DCA 2009).
However, summary denial is appropriate when the record shows
that the defendant knew of potential witnesses and told the trial
court that he did not wish to call additional witnesses. See McIndoo
v. State, 98 So. 3d 640, 641 (Fla. 4th DCA 2012) (“Because his
sworn motion indicates that he was aware of the witness and that
witness’s testimony prior to trial, the colloquy to the court
conclusively refutes his claim that his attorney failed to call a
known witness against the appellant’s wishes. He is bound by his
answers to the court.”). Similarly, in Terrell, the defendant told the
trial court that he did not wish to call additional witnesses and had
not asked counsel to call or locate any before making contrary
claims in his postconviction motion. 9 So. 3d at 1287. The Fourth
District found that the claims were properly denied summarily
because “the defendant assured the court that there were no other
witnesses he wanted to call in his defense” and is “bound by his
sworn answers during the colloquy.” Id. at 1289. At trial, the court
asked Worrell if he wished to call any additional witnesses and
Worrell named two—neither being Drs. Neidigh or Kirk—but
stated that they were unfortunately unavailable. On appeal, he
“admits that during trial . . . he had neglected to recollect that Drs.
[Neidigh and Kirk] and others should have been called as
additional witnesses for his defense.” As defendants cannot go
behind their colloquy statements, we cannot permit them to do so

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by asserting that they simply forgot about potential witnesses
during trial and now, in postconviction proceedings, remember
them and their potential testimony.

     Even had the record not conclusively refuted Worrell’s claims,
he would not be entitled to an evidentiary hearing. Dr. Neidigh’s
potential expert opinion testimony as to Worrell’s propensities or
characteristics is not admissible. Section 90.405, Florida Statutes,
governs the admission of character evidence and “does not permit
evidence of character to be made by opinion.” Wyatt v. State, 578
So. 2d 811, 813 (Fla. 3d DCA 1991). In Wyatt, the defendant faced
allegations similar to Worrell and intended to call a clinical
psychologist “to testify that the defendant does not fit the profile
of a pedophile,” the trial court excluded the testimony, and the
Third District held that “the defendant sought to introduce
evidence of his character through the expert opinion of a
psychologist, which is not permitted by the statute.” Id. at 812-13.
Our rules of evidence would not have permitted Dr. Neidigh to
opine on whether he believes Worrell has the characteristics of a
child molester. As to Dr. Kirk, who Worrell claims could have
testified that he suffered from erectile dysfunction, the
postconviction court found that any potential deficiency cannot be
found to have prejudiced Worrell. Given that Worrell and his wife
both testified as to this issue, the two victims did not know each
other and gave extremely similar accounts of their experiences of
Worrell bringing them to a hotel to have sex, and other evidence
presented, such as a hotel owner’s testimony that Worrell often
rented a room in the most private area of the hotel, we agree with
the postconviction court that there is not a reasonable probability
that Dr. Kirk’s testimony would have changed the outcome of the
trial.

     Worrell’s claim that counsel was ineffective for failing to
present two witnesses is conclusively refuted by the record, and we
decline to permit defendants to go behind their representations to
the trial court by asserting a lapse in memory. Even had Worrell’s
claims not been refuted by the record, summary denial was proper.
Therefore, we affirm the denial of his postconviction motion.

    AFFIRMED.

WOLF, OSTERHAUS, and WINOKUR, JJ., concur.
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                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Michael Lloyd Worrell, pro se, Appellant.

Ashley Moody, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.




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