Newspaper article The Florida Times Union

Convict Seeking Reversal; He's Serving 50-Year Sentence in '97 Crash

Newspaper article The Florida Times Union

Convict Seeking Reversal; He's Serving 50-Year Sentence in '97 Crash

Article excerpt

Byline: R. Michael Anderson, County Line staff writer

In August 1998 a jury found 32-year-old Gene W. Higginbotham Jr. guilty of drunken driving and manslaughter in a crash that killed four people a year earlier at an intersection on Blanding Boulevard in Middleburg.

A judge sentenced the Middleburg man to 50 years in prison for four counts of DUI/manslaughter and two counts of causing serious bodily injury to others.

Now, Higginbotham is asking the court to vacate the conviction. In a motion for post-conviction relief, he claims his attorney failed to adequately defend him and claims a friend, Andrew McAdoo, was driving his pickup truck the night of the crash.

However, neither his trial attorney, Richard Nichols, nor his friend are alive to defend themselves. McAdoo, 38, was killed in the crash and Nichols died in October 2002, about a month before Higginbotham filed his motion.

"Usually, we call the defense attorney to rebut what is said [in a motion claiming ineffective assistance of counsel]," said Assistant State Attorney Dan Skinner. "In this case we can't do that."

Circuit Judge Frederic Buttner, the original trial judge, heard oral arguments in a hearing last month but has not rendered a decision yet. During the hearing, a new witness testified that he had arrived on the scene of the accident that night and pulled McAdoo out of the truck. He also said McAdoo's feet were on the driver's side, leading him to think that McAdoo was driving the vehicle when it crashed.

The motion to set aside the conviction asserts, in part, that the defense counsel failed to file a motion to suppress Higginbotham's confession. Actually, Skinner said, Higginbotham confessed three times: twice during oral interviews with a detective and once in writing.

Higginbotham claims that his statements to the detective should not have been admissible because they were elicited while he was in the hospital recuperating from injuries. He said his attorney failed to protect his Fifth Amendment right to be free from self-incrimination while he was hospitalized.

In a response filed by the State Attorney's Office, the court was asked to reject the defendant's claim because he had stated in his motion that six witnesses could have testified at trial that he was unable to understand what was going on when the detective questioned him on two occasions. However, none of the witnesses testified at the hearing last month on Higginbotham's behalf.

"What the record does reveal, however," Skinner said in his response, "is that the detective did read the defendant his rights on each occasion of questioning and on one occasion the detective received clearance from medical personnel that the defendant was capable of being interviewed."

Another issue Higginbotham raises relates to a comment the trial judge made after a witness, who had pulled Higginbotham from the wreckage, kept referring to him as "the driver. …

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