MEMORANDUM OF LAW AND FACT IN SUPPORT OF MOTION FOR POSTCONVICTION RELIEF

IN THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT, IN AND FOR CLAY COUNTY, FLORIDA STATE OF FLORIDA CASE NO.: 10-2009-CF-1759 DIVISION: A VS. RONALD JOSEPH THOMPSON MEMORANDUM OF LAW AND FACT IN SUPPORT OF MOTION FOR POSTCONVICTION RELIEF The Defendant, Ronald Joseph Thompson, by and through undersigned counsel, hereby files this Memorandum of Law and Fact in Support of his Motion for Postconviction Relief. A. STATEMENT OF FACTS Ronald Thompson was arrested on September 19,2009, on four counts of aggravated assault. (~1-2).' He was subsequently charged by information with four counts of aggravated assault, all third-degree felonies, with each count listing a separate victim. (Rl-6). The charges stemmed from an episode when Mr. Thompson was visiting the home of a friend and neighbor, Theresa Crews, who lived a few doors down from him. (Rl-2-3). Ms. Crews was not at home, and Mr. Thompson was visiting with Ms. Crews' mother, Betty Warren, who also lived on the property. (SRII-213-214). Ms. Warren lived in a camper that was located right next to the main home. (SRII-213). Another neighbor, Beatrice Taylor, was also on the property and visiting with Ms. Warren. (SRII-238). At the time of the incident, Mr. Thompson was 62 years old and a fully disabled veteran. (Rl-80-96). 1 Record citations are to the Record on Appeal and are as follows: (Rl-page number) are to the Transcript of Record Volume I followed by the page number cited; "SRI and SRII are to the Transcript of Record Supplemental Record Volumes I and 11 followed by the page number cited.

The testimony established that Darrell Connelly (who was 17 years old) and three others came onto the property at the time when Mr. Thompson, Ms. Warren and Ms. Taylor were all sitting outside on a porch in front of Ms. Warren's camper. (SRI-83, 88-89; SRII-276). The three others were Mr. Connelly's girlfriend, Katie Gunning (who was 17 years old); a friend, Cory Cochran (who was 21 years old); and Mr. Cochran's girlfriend, Amy Dupree, who was 20 years old. (SRI-35,63, 107) Mr. Connelly is Ms. Crews' son and the grandson of Betty Warren. (SR1-88,190-191). Ms. Crews had earlier in the day instructed Ms. Warren not to allow Darrell Connelly to come into the home with any of his friends. (SRI-191-192). This was because Mr. Connelly had previously hosted parties in the home when his mother was not present and had damaged the home, including tearing up his room and writing "nasty stuff' on the walls. (SR1-195). Thus, when Mr. Connelly and his friends started toward the primary house, Ms. Warren instructed Mr. Connelly that only he was allowed to go inside. (SRII-214). This quickly resulted in a verbal argument between the grandmother and grandson. On direct examination, Mr. Connelly testified that he called his mother when he arrived and received permission for both he and Ms. Gunning to take a shower in the home. (SR1-90). He testified he tried to explain to his grandmother that Ms. Crews had given permission to enter the house. (SR1-101-102). However, Ms. Warren "wouldn't hear it" so the two began to curse at one another, even though Mr. Connelly testified that he did not become angry with his grandmother. (SR1-101). However, Amy Dupree testified that Ms. Warren spoke "rudely" to Darrell Connelly, but Mr. Comelly spoke "nicely." (SRI-44-45). Ms. Crews later contradicted her son and testified that she did not speak to her son until after "the incident" and had never given permission for anyone other than Mr. Connelly to enter the home. (SRI-196).

Ms. Warren testified, on the other hand, that her grandson became very angry with her when she told him that his friends could not enter the home. In fact, Mr. Connelly got in her face and "called her every name in the book." (SRII-214). Mr. Connelly got within three feet of her and called her a "drunken whore," told her to "go to hell," and used the "f-word" against her. (SRZT-215). Ms. Warren further testified that Mr. Connelly had previously physically assaulted her and knocked her to the ground. (SRII-215-216). Ms. Crews corroborated Ms. Warren's testimony that her son had physically battered Ms. Warren within the past six or seven months. ("He pushed her down - around) (SR1-198). Ms. Warren had told Ronald Thompson about this physical abuse. (SRII- 216). Ms. Warren testified that she was afraid of Mr. Connelly. (SRII-216). Mr. Thompson testified that Mr. Connelly began to curse Ms. Warren because Ms. Warren had told Mr. Connelly that only he was allowed in the home. (SRII-278). Mr. Connelly got into Ms. Warren's face when he was yelling and it looked to Mr. Thompson like Mr. Connelly's "brain was getting ready to explode or something." (SRII-279). Ms. Warren had tears in her eyes and she was shaking after being yelled at by Mr. Connelly. (SRII-280). Because of his concerns with how Mr. Connelly was acting toward Ms. Warren, Mr. Thompson testified that he went to his truck and retrieved a.38 pistol. (SRII-280). Mr. Thompson testified that he fired a shot into the ground to get the kids' attention so that they would leave. (SRII- 281-282). Mr. Thompson never fired the gun at Mr. Connelly or any of his friends. (SRII-280-287). Mr. Thompson did fire a second bullet into the ground after Mr. Connelly and his friends had gotten into the vehicle but had hesitated before leaving. (SRII-284-285). Mr. Thompson was concerned when they stopped that the four may be "coming out with knives, weapons, or a tire iron. They're younger and stronger than I am." (SRII-313). Mr. Thompson said that he did not believe that at his

age he could physically protect Ms. Warren from her grandson without harming himself. (SRTI-290). Mr. Connelly and his friends testified that the bullet from the first shot hit close to Mr. Connelly and that Mr. Thompson pointed the gun at them. (SRI-46,48,70, 93,116). Both Ms. Warren and Ms. Taylor testified that did not point the gun at any of the four friends or fire the gun in their direction. (SRII-220, 239). In his closing argument, trial counsel argued that Mr. Thompson was not guilty because the force he used in firing his pistol was justified. Counsel argued that what caused Mr. Thompson to be so upset was "the berating that Darrell Connelly did to his grandmother." (SRII-348). Counsel continued that Mr. Thompson felt "he had a duty to help at that time when something like this came up." (SRII-348). Counsel continued that Mr. Thompson had promised Skipper Crews, [Skipper is Theresa Crews' husband who was stationed in Iraq when the incident occurred], that he would keep a watch out for the Crews' property when Mr. Crews was gone. (SRII-348). Accordingly, counsel argued that "I believe the evidence shows that he [Mr. Thompson] went and got the gun and fired it and held it up to let the kids know he wasn't going to stand for either something happening to the grandmother or for them going into the house. He felt he had a duty because he hadn't been told by the mother, but he certainly heard from the other ladies that the other kids weren't supposed to go in there. And he felt he had that duty." (SRII-348-349). Counsel concluded his closing argument by referring to the jury instructions on justifiable use of non-deadly force. Trial counsel said: "Based on appearances, the defendant must have actually believed the danger was real. I think it's clear that he did believe that and had reason to believe that the danger was not just himself but also to Betty Warren. And also another defense he is entitled to was that he was protecting his friend's property." (SRII-351).

The jury returned guilty verdicts on all four counts. (SRII-394-395). B. ARGLTMENTS AND CITATIONS TO AUTHORITY 1. Trial counsel failed to render effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 16, of the Constitution of the State of Florida in that counsel failed to object to inadequate, confusing and misleading jury instructions as to the justifiable use of deadly and non-deadly force, the principal defense available to the Defendant. The standard by which a court determines whether a defendant is entitled to relief based on an assertion of ineffective assistance of counsel derives from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed 2d 674 (1984). Strickland requires a defendant to prove two elements: 1) that counsel's representation was so deficient as to fall below an objective standard of reasonableness; and 2) that the deficient performance prejudiced the defendant. Id. at 687-88. In order to establish prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "[Sltrategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). Trial counsel requested the Court charge the jury as to both the justifiable use of deadly force and the justifiable use of non-deadly force. (SRII-234-236; 315-319). The Court agreed and both instructions were given using the Standard Jury Instructions in Criminal Cases found in 3.6(f) and 3.6(g). (SRII-377-380). However, both instructions contain sections that are to be read in all cases and sections that are to be read only when applicable. Counsel is responsible for ensuring that the appropriate jury instructions are prepared and read by the Court. This was not done here and the resulting instructions were misleading, confusing and wholly inadequate based on the defense theory

pursued at trial. As to the justifiable use of deadly force, the jury was charged that "A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himselfor another. (SRII-377) (emphasis added). However, instruction 3.6(f) does not merely provide that deadly force is justified in the face of imminent death or great bodily harm. The next section additionally provides that deadly force is justified if a person reasonably believes that such force is necessary to prevent "the imminent commission of (applicable forcible felony) against himself or another." Of course, if this section is read then the Court must define the applicable forcible felony. Little evidence was adduced at trial that Mr. Thompson was personally in fear of imminent death or great bodily harm. While he testified that he was concerned that Mr. Connelly may get out of the car and come at him with a knife or some other weapon, (SRII-313), the testimony primarily concerned Darrell Connelly's threatening behavior toward his elderly grandmother. The jury should have been instructed that the force used by Mr. Thompson was justified if Mr. Thompson reasonably believed such force was necessary to prevent the imminent commission of an aggravated assault or battery against Ms. Warren. This was the actual defense theory. Unfortunately, the instruction actually given did not provide the jury with a means to return the appropriate verdict. Instead, the jury was told it could only return a not guilty verdict if it found that Mr. Thompson or Ms. Warren was in imminent danger of death or great bodily harm. Thus, the instruction given was inadequate and misleading. In the Stand Your Ground section of the instruction, the jury was charged as follows: If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to

retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony. (Rl-57; SRII- 379).(emphasis added). The standard instruction provides, however, that a defendant may "stand his ground" not merely to protect "himself' but also to protect "another." The word "another" was inexplicably omitted from the instructions read to the jury. Thus, the jury was misled that Mr. Thompson could only "stand his ground and "meet force with force, including deadly force, if he reasonably believed" that only he was in danger of imminent death or great bodily harm, and not Ms. Warren. Since the primary defense theory centered on Mr. Thompson's justifiable use of force to protect Ms. Warren, and not merely to himself, the instruction actually given completely negated the self-defense theory. Once Mr. Thompson presented aprima facie case of self defense, the state was required to prove beyond a reasonable doubt that Mr. Thompson did not act in self defense. Sipple v. State, 972 So.2d 912 (Ha. 5th DCA 2007). Thus, trial counsel's failure to object to the erroneous and misleading instructions negated Mr. Tllompson's defense. but also essentially relieved the state of its burden of proving beyond a reasonable doubt that Mr. Thompson did not act in self defense, i.e. in the defense of another. Such a failure constitutes ineffective assistance of counsel. Id.; Stoute v. State, 987 So.2d 748 (Fla. 4th DCA 2008)(deficient performance by failing to object to the forcible felony exception prejudiced defendant by negating his only defense); Sloss v. State, 45 So.3d 66 (Fla. 5th DCA 2010)(same). The case of Odeh v. State, 36 Ha. L. Weekly D 1510 (Ha. 4th DCA 2011), is instructive. In Odeh, the defendant claimed he was justified in shooting a customer who had come into the defendant's convenience store because he believed the victim was about to pull a gun and shoot him.

Accordingly, the justifiable use of deadly force instruction was given. The instruction given in Odeh tracked 3.6(f) of the standard instructions. Blanks are provided at various sections in the instruction for insertion of the "applicable felony" that the victim is said to have attempted to commit against the defendant. The trial court in Odeh incorrectly, and without objection from Odeh, inserted the felony Odeh was charged with (attempted murder) as opposed to the felony allegedly committed by the victim, i.e. aggravated assault or aggravated battery. Id. The Odeh court found that by inserting the crime the defendant was charged with as the "applicable felony," the trial court left the jury with the impression that the defendant was justified in using deadly force only if the defendant believed that the victim was attempting to murder him. The defendant correctly argued that he would have been justified in using deadly force if the victim was reaching for a gun to assault him or to shoot to wound him. Id. The inclusion of the erroneous instruction in Odeh was not deemed fundamental error in that case because Odeh specifically claimed that the victim threatened to kill him with a gun. Thus, the defendant was not denied a valid defense theory instruction. Id. Mr. Thompson was, however, extremely prejudiced by the erroneous instruction in his case. In instructing the jury on the justifiable use of deadly force, the Court charged the jury that the use of deadly force was justified if necessary to prevent imminent death or great bodily harm to himself or another. (Rl-56). As little, if any, evidence was introduced to establish that Darrell Connelly was about to murder or cause great bodily harm to Mr. Thompson or Ms. Warren, this alternative did not align with Mr. Thompson's defense theory. However, the second alternative provided in the standard instructions perfectly aligned with the defense theory. The second alternative provided that Mr. Thompson's use of deadly force would be justified if necessary to prevent "the imminent commission

of [applicable forcible felony] against [himselq... or another." Trial counsel should have requested the Court to instruct the jury that the applicable felony may have been aggravated assault or battery, including an assault or a battery on an elderly person. Furthermore, trial counsel failed to object to the Stand Your Ground portion of both the justifiable use of deadly and non-deadly force instructions which omitted the critical word "another." Such an omission, while only of a single word, completely negated the very defense Mr. Thompson argued. As read to the jury, Mr. Thompson would not have been justified in standing his ground because he personally was not in fear of death or great bodily harm or attempting to prevent the commission of a forcible felony against himself. "[Wlhere... a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error and highly prejudicial to the defendant." Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985). instruction: 2. Trial counsel failed to render effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 16, of the Constitution of the State of Florida in that counsel failed to object to the inclusion of the "defendant-as-provoker" exception to self defense as such exception was not required to be given and its inclusion misled the jury as to the only defense available to the Defendant and in fact negated the self defense claim. Immediately following the instruction discussed above, the jury was read the following However, the use of deadly force is not justifiable if you find RONALD JOSEPH THOMPSON initially provoked the use of force against himself, unless: a. The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted 9

every reasonable means to escape the danger, other than using deadly force on his assailant. b. In good faith, the defendant withdrew from physical contact with his assailant and clearly indicated to the assailant that he wanted to withdraw and stop the use of deadly force, but the assailant continued or resumed the use of force. (Rl-56; SRII-378). The above instruction has its statutory basis in Section 776.041 of the Florida Statutes, "Use of Force by Aggressor," which provides that a claim of self-defense is not available to a person who is either attempting to commit, committing, or escaping after the commission of a forcible felony (the so-called forcible felony exception) or who initially provokes the use of force absent the reasons set forth in subparagraphs "a" and "b" above (the so-called defendant-as-provoker exception). Neither exception is to be read in all cases. Significant case law exists involving the improper reading of the forcible-felony exception in those cases where the defendant is not charged with an independent forcible felony. See Martinez v. Stute, 981 So.2d 449 (Fla. 2008). The improper reading of the forcible-felony exception routinely constitutes fundamental error or a finding of ineffective assistance of counsel. See, id.; Sipple, Sloss, und Stoute. The reason that the inappropriate providing of this instruction constitutes fundamental error is that "the instruction is 'circular and confusing to the jury"' in that "it improperly instructs the jury that the very act that the defendant seeks to justify as an act of self-defense prevents the same act from being an act of self-defense." Garrell v. State, 972 So.2d 240,242-243 (Fla. 2d DCA 2007), citing Wilson v. State, 944 So.2d 1244, 1246 (Fla. 2d DCA 2006), citing Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002).

Similarly, the inappropriate providing of the "defendant-as-provokerx instruction, as was done in the instant case, constitutes fundamental error (or in this case ineffective assistance of counsel) because the instruction is confusing and misleading to the jury. In Martinez, supra, 981 at 452, the supreme court related a hypothetical where the defendant-as-provoker exception should be given. As explained by the state, this instruction was intended to apply where an assailant commits a forcible felony upon the victim and the victim uses force in self-defense. According to the state, the assailant may not then respond with deadly force against the victim and claim that such force constituted justifiable self-defense. Hence, subsection (2) governs the circumstance where the defendant initiates the assault... Id. No such circumstance existed in Mr. Thompson's case. For example, Mr. Connelly did not testify that his vulgar and threatening language and actions toward his grandmother were in response to some forcible felony Mr. Thompson initially committed. While some of the facts in this case were in dispute, what was not in dispute was that Mr. Thompson did not fire the gun until after Mr. Connelly and Ms. Warren began to argue. Thus, the defendant-as-provoker exception was erroneously given. This was particularly prejudicial in Mr. Thompson's case. As mentioned, the exception was read immediately following the inadequate instruction describing what would constitute the justifiable use of deadly force (see issue 1). The jury was then told that such a defense was not available to Mr. Thompson if Mr. Thompson initially provoked the use of force absent two extremely narrow reasons (subparagraphs a and b). Absent a fact pattern for which this exception was designed, see Martinez, such an instruction in a case like Mr. Thompson's would be clearly confusing to a jury. The jury would likely conclude that since Mr. Thompson pulled the gun before any force was used against him, (as opposed to Ms. Warren), the justifiable use of deadly force defense was not available to him.

Unfortunately, this is not the law and Mr. Thompson's entire defense was effectively negated by the inclusion of the inapplicable instruction. 3. Trial counsel failed to render effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 16, of the Constitution of the State of Florida by failing to request jury instruction 10.6 Discharging a Firearm in Public. Mr. Thompson was charged with and subsequently convicted of four counts of Aggravated Assault. A permissive, category two lesser included offense to that charge is Discharging a Firearm in Public. Mr. Thompson admitted that he discharged a firearm in public. (SRII-281-282). He denied he threatened Mr. Connelly or his friends or made any attempt to aim the gun at them or fire it at them. (SRII-281-285). Therefore, Mr. Thompson denied he committed the crime of aggravated assault but admitted he committed the crime of discharging a firearm in public. Mr. Thompson clearly sought to avoid all possible sanctions by presenting a case of self-defense. However, as mentioned above, the defense theory also included an acknowledgement that he may have over reacted by firing the gun but not in a way that would constitute an assault. Thus, a viable defense available to Mr. Thompson was that he was only guilty of the lesser included offense of discharging a firearm in public. This offense carried no minimum mandatory sentence, let alone a 20-year minimum mandatory sentence. The crime is a first-degree misdemeanor. Section 790.15, Florida Statutes. A trial court must instruct the jury on category one (necessary lesser-included) offenses. In contrast, a trial court may or may not be required to give jury instructions on permissive (category two) offenses. Upon request, a trial judge must give a jury instruction on a permissive lesser included offense if the following two conditions are met: (1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some

evidence adduced at trial establishing all of these elements. McKiver v. State, 55 So.3d 646 (Fla. 1st DCA 201 1). Counts I-IV of the Information each charged Mr. Thompson with "intentionally and unlawfully" threatening the four victims by pointing a firearm at them and while doing so did "discharge" the firearm. (RI-6). To prove the crime of discharging a firearm in public, the state must prove that the defendant "knowingly discharged a firearm in a public place" or "over occupied premises." Section 790.15, Florida Statutes. Thus, the information contained all the necessary elements of the permissive lesser included offense. Clearly, considering the testimony of Mr. Thompson, Ms. Warren and Ms. Taylor, more than sufficient evidence was adduced at the trial to establish the elements of discharging a firearm in public. See Ammons v. State, 623 So.2d 807 (Fla. 1" DCA 1993)(holding "there is no question but that discharge of a firearm in public, while not a necessarily included offense of aggravated battery, is a Permissible lesser included offense of that crime. ") The lesser included offense of discharging a firearm in public was available to Mr. Thompson. The failure to request the instruction clearly constituted ineffective assistance of counsel. 4. Trial counsel failed to render effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 16, of the Constitution of the State of Florida in that counsel failed to file a motion for determination of immunity from prosecution and a motion to dismiss pursuant to $$ 776.032(1), 776.013(3), and 776.031, Florida Statutes. In 2005, the Florida Legislature enacted what has been popularly known as the "Stand Your Ground" law. The law provides that a person who uses force as permitted in section 776.032, Florida Statutes is justified in using such force and is immune from criminal prosecution as well as civil I

action from the use of such force. The statute establishes a true immunity and not merely an affirmative defense. In the preamble to the substantive legislation, the session law notes: -'[T]he Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others." Ch. 2005-27, at 200, Laws of Fla. Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged or prosecuted as a result of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force. Dennis v. State, 51 So.3d 456, 462 (Fla. 2010). Section 776.032, Florida Statutes was available to Mr. Thompson without having to go to trial. Trial counsel did not file the requisite motion to trigger the immunity statute. The failure to file the section 776.032 motion constituted ineffective assistance of counsel. A defendant, such as Mr. Thompson, may raise the question of statutory immunity at pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. Peterson, supra at 29. Further, "the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist." Id. Had trial counsel moved prior to trial and filed an immunity motion, the result of the proceeding would have been different. First, there would have been no need for a trial. The trial

court would have heard the evidence and determined whether Mr. Thompson should have been immune from prosecution. This would have been accomplished by Mr. Thompson merely showing by a preponderance of the evidence the factual prerequisites for immunity. Id. at 29-30. Mr. Thompson submits that he would have met this burden had trial counsel filed the required immunity motion. 5. Trial counsel failed to render effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 16, of the Constitution of the State of Florida by failing to subject the prosecution's case to meaningful adversarial testing that made the adversary process itself presumptively unreliable, See United States v. Cronic, 466 S.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984), by failing to request adequate jury instructions that aligned with the defense and then argue in closing the defense available. As Mr. Thompson acknowledged that he discharged his pistol at least twice, his only available defenses to the charges in the Information were two: 1) that the use of force was justifiable under law, and 2) that he did not actually assault any of the victims and therefore was only guilty of the lesser included offense of discharging a firearm in public. Defense counsel requested the lesser included offense of simple assault. However, simple assault was clearly not a viable defense in that Mr. Thompson acknowledged he fired the gun, i.e., if Mr. Thompson was guilty of assault, he clearly was guilty of aggravated assault. Thus, as described above in issues 1,2, and 3, the only viable defenses available to Mr. Thompson at trial were not presented, or at least presented effectively, to the jury. As a result, the verdict is unreliable. The Sixth Amendment of the United States Constitution guarantees a defendant the right to be represented by counsel during criminal proceedings. This mandate has been extended to mean adequate legal assistance by a reasonably competent attorney whose advice falls within the range of competence demanded of attorneys in criminal cases. See Cuyler v. Sullivan, 446 U.S. 335,344,100

S.Ct. 1708,64 L.Ed.2d 333 (1980); McCann v. Richardson, 397 U.S. 759,770,90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The right to competent counsel has been accorded because of the "effect it has on the ability of the accused to receive a fair trial." Cronic, 466 U.S. at 658. As the United States Supreme Court explained: Thus, the adversarial process protected by the Sixth Amendment requires that the accused have "counsel acting in the role of an advocate." Anders v. California, 386 U.S. 738, 743, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted-even if defense counsel may have made demonstrable errors-the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. Cronic, 466 U.S. at 656-657 (footnotes omitted). Generally, a defendant is entitled to relief if he or she demonstrates that counsel violated this guarantee through deficient performance and that he or she was prejudiced by the deficiency. See Strickland. 466 U.S. at 687. However. if the defendant can demonstrate that counsel "entirely fail [ed] to subject the prosecution's case to meaningful adversarial testing," the law will presume prejudice and deem counsel ineffective per se. Crolzic, 466 U.S. at 659. For instance, constitutional error is found without a showing of prejudice when counsel was totally absent, was prevented from assisting the accused during a critical stage of the proceeding, or had a conflict of interest that affected the adequacy of representation. See id. at 659 n. 25. Apart from these rare circumstances, the Cronic standard is a narrow exception to Strickland that is reserved for situations where counsel has entirely failed to function as the client's advocate. See Florida v. Nixon, 543 U.S. 175,189-90,125 S.Ct 551, 160 L.Ed.2d 565 (2004) (holding that the court erred in determining that counsel's concession of the

client's guilt qualified as such a failure). "[Ilf counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversarial process itself presumptively unreliable." Cronic, 466 U.S. at 659. Here, the totality of the defense actually presented (as opposed to what could and should have been presented) demonstrates a complete failure to subject the prosecution's case to a meaningful adversarial testing such that the denial of Sixth Amendment rights rendered the adversary process itself presumptively unreliable. Mr. Thompson had a viable defense to the serious charges he faced. That defense was somewhat presented to the jury. (Though the defense to the lesser-included charge of discharging a firearm in public was completely missed). However, the jury was not provided the necessary instructions to return a verdict consistent with that defense or a verdict consistent with the weight of the evidence. Without these instructions, defense counsel failed to subject the prosecution's case to any meaningful test. Thus, prejudice should be presumed and counsel deemed ineffective per se. WHITTINGTON & CULBERT, P.A. e v e n Brian Whittington, Esquire Florida Bar No. 0055972 712-A North Pine Street Green Cove Springs, FL 32043 (904) 284-2970 or 264-8602 Counsel for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished to Stephen M. Nelson, Assistant State Attorney, Office of the State Attorney, Clay Count ourthouse, 825 North Orange Avenue, Green Cove Springs, FL 32043 by hand delivery this \&%-TMsch, 2012. Z - 0 q t e v e n Brian Whittington, Esquire