Tyrone B. Johnson v. State of Florida , 247 So. 3d 689 ( 2018 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-5105
    _____________________________
    TYRONE B. JOHNSON,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    ___________________________
    On appeal from the Circuit Court for Alachua County.
    Mark W. Moseley, Judge.
    May 25, 2018
    B.L. THOMAS, C.J.
    Tyrone B. Johnson appeals an order denying his
    postconviction motion brought pursuant to Florida Rule of
    Criminal Procedure 3.850. For the reasons discussed below, we
    affirm.
    Appellant was charged with three counts of attempted
    second-degree murder (counts I—III), shooting into an occupied
    building (count IV), and possession of a firearm by a convicted
    felon (count V). The evidence introduced at trial reflected that on
    the night of the shooting, one of the victims, Michael Alford,
    attempted to fight Appellant over a dispute involving another
    victim, LaKendra Young. Appellant’s friends intervened to stop
    the fight, and Appellant retreated to a friend’s apartment and
    called the police. The police escorted him back downstairs to his
    car. Appellant started to drive out of the apartment complex in
    his car, and his friend, Rico Williams, followed in a separate car.
    Near the exit to the complex, he stopped his car and discovered
    that his tires had been slashed. He started making threatening
    remarks, suggesting that he intended to return.
    Later that night, a car drove slowly into the complex, turned
    around, and passed by the place where Ms. Young, Mr. Alford,
    and Austin Price were standing outside.            Two witnesses
    identified it as the same car that had followed Appellant out of
    the complex earlier in the night. The windows were rolled down,
    several shots were fired, and the car then sped away.
    Ms. Young testified that she felt the wind of one bullet
    passing behind her before it struck a sliding glass door. Mr. Price
    testified that one of the bullets went over his head and struck a
    wall. Mr. Alford and Ms. Young were able to identify Appellant
    as the shooter. Another witness, Ira Davis, also saw the shooting
    and identified Appellant as the shooter. Evidence was presented
    that the vehicle involved in the shooting belonged to Rico
    Williams’ girlfriend, Fariha Hoque. When authorities contacted
    Ms. Hoque about her vehicle, she initially concealed its
    whereabouts, saying it was in Miami.
    Appellant was convicted as charged on counts I, III, and IV,
    and of the lesser included offense of aggravated assault on
    count II. He was sentenced to a total of life in prison and
    designated as an habitual violent felony offender on counts I and
    III.   Count V was nolle prossed by the State. Appellant’s
    convictions and sentences were affirmed by this court, without
    opinion. Johnson v. State, 
    166 So. 3d 771
    (Fla. 1st DCA 2015)
    (table).
    Appellant then filed the instant rule 3.850 motion, raising
    eight grounds for relief. The lower court summarily denied the
    motion, and this timely appeal follows.
    2
    In Appellant’s first ground, he raised two subclaims
    pertaining to counsel’s alleged failure to investigate. 1      In
    subclaim (a), Appellant argued that his attorney was ineffective
    for failing to depose the State’s witnesses to prepare for cross-
    examination. He alleged that Mr. Davis, Ms. Young, and
    Mr. Alford had given less detailed statements to the police in
    response to the investigation into the dispute between Appellant
    and Mr. Alford than they did in connection with the investigation
    of the shooting. He asserted that other witnesses were unreliable
    or made statements that did not support the State’s case. He
    claimed the outcome of the trial would have been different if
    counsel had impeached these witnesses, because such
    impeachment      would    have     supported    his   alibi  and
    misidentification defenses.
    A claim of ineffective assistance of counsel is governed by
    Strickland v. Washington, 
    466 U.S. 668
    (1984).           To prove
    ineffective assistance, an appellant must allege 1) the specific
    acts or omissions of counsel which fell below a standard of
    reasonableness under prevailing professional norms and 2) that
    the appellant’s case was prejudiced by these acts or omissions
    such that the outcome of the case would have been different. See
    
    id. at 690-92.
    “[W]hen a failure to depose is alleged as part of an
    ineffective assistance of counsel claim, the appellant must
    specifically set forth the harm from the alleged omission,
    identifying ‘a specific evidentiary matter to which the failure to
    depose witnesses would relate.’” Davis v. State, 
    928 So. 2d 1089
    ,
    1117 (Fla. 2005) (quoting Brown v. State, 
    846 So. 2d 1114
    , 1124
    (Fla. 2003)).
    Here, even assuming that Appellant set forth a facially
    sufficient claim, he failed to establish prejudice. Mr. Alford,
    Ms. Young, Mr. Davis, and another witness, Shanice Bailey, all
    provided written statements to the police after the shooting.
    During the trial, defense counsel thoroughly cross-examined
    these witnesses and impeached them with their prior statements.
    1 Insofar as he raised an additional subclaim arguing that
    counsel was ineffective for failing to call Officer Knapp as a
    witness, this claim is addressed in ground two.
    3
    Counsel also questioned Mr. Price about prior statements he
    made to the police. During closing arguments, defense counsel
    highlighted conflicts in their testimony, as well as the
    relationships among the witnesses and their possible motive for
    testifying falsely about Appellant’s involvement in the shooting.
    Under these circumstances, this subclaim was properly denied.
    In subclaim (b), Appellant argued that his attorney was
    ineffective for failing to spend adequate time consulting with
    him. He alleged that defense counsel failed to review all of the
    State’s evidence and witness statements with him, did not
    forward discovery to him, and did not show him transcripts from
    the depositions of the State witnesses. He asserted that he was
    prejudiced by these omissions, because counsel allowed the
    defense witnesses’ testimony to be refuted.
    An ineffective assistance of counsel claim based upon a lack
    of consultation requires a defendant to demonstrate how he was
    prejudiced by the omission. See Jackson v. State, 
    801 So. 2d 1024
    , 1025 n.1 (Fla. 5th DCA 2001). Here, Appellant failed to
    show that he was prejudiced. He suggested that the lack of
    consultation allowed the defense witnesses’ testimony to be
    refuted, but did not explain how further consultation could have
    avoided that result.
    Additionally, in Appellant’s sworn motion, he alleged that
    his attorney visited him nine times, providing specific details
    about some visits: his attorney visited him for 20 minutes to
    make contact; for 30 minutes to discuss his alibi; a third time to
    discuss an alibi witness and depositions; and during a visit in
    December 2013, counsel conveyed that he had completed his
    investigation. Furthermore, insofar as Appellant argued that
    counsel failed to provide him with the deposition transcripts of
    State witnesses, he alleged in ground one, subclaim (a), that
    defense counsel did not depose the State’s witnesses. Thus,
    Appellant’s own allegations undermine his claim.
    Regardless, given the evidence discussed above, there is no
    reasonable probability that further consultation wtih defense
    counsel would have changed the outcome of the trial. Appellant
    was involved in an altercation with two of the victims on the
    4
    night of the offenses. After the altercation, he discovered that his
    tires had been slashed and was overheard making threatening
    remarks. Three eyewitnesses identified Appellant as the shooter.
    The State introduced evidence that the vehicle used in the
    shooting belonged to one of Appellant’s friends. Two witnesses
    indicated that the same vehicle had been seen following
    Appellant out of the complex earlier that night. Under these
    circumstances, this subclaim was properly denied, as no prejudice
    occurred.
    In Appellant’s second ground, he raised three subclaims. In
    subclaim (a), he argued that his attorney was ineffective for
    failing to call Officer Knapp to testify. He alleged that Officer
    Knapp escorted him to his car after the altercation with the
    victims, and that Officer Knapp could have testified that he never
    yelled threatening remarks upon discovering that his tires were
    slashed.
    This subclaim is conclusively refuted by the record. The
    evidence at trial established that the police did escort Appellant
    downstairs from his friend’s apartment after the altercation;
    however, Appellant did not discover that his tires were slashed
    until he was driving out of the apartment complex. Further,
    Appellant testified at trial that Officer Knapp escorted him to his
    car, he drove away with Rico Williams following in a separate
    car, and that Mr. Williams honked to notify him that his tires
    were flat. Thus, at the time Appellant noticed and reacted to his
    slashed tires, Officer Knapp was no longer with him. Given this
    information, this subclaim was properly denied.
    In subclaim (b), Appellant argued that his attorney was
    ineffective for failing to object, when the prosecutor asserted
    during closing arguments that Appellant made threatening
    remarks upon finding that his tires had been slashed. However,
    as discussed above, the State presented evidence that after
    Appellant discovered his tires had been slashed, he yelled
    threatening remarks. Under these circumstances, counsel cannot
    be deemed ineffective for failing to object, as the prosecutor’s
    argument was a fair comment on the evidence. See Spann v.
    State, 
    985 So. 2d 1059
    , 1068 (Fla. 2008) (“Because the prosecutor
    was making a fair comment based on the evidence presented at
    5
    trial, counsel cannot be deemed ineffective for failing to object.”);
    Hitchcock v. State, 
    991 So. 2d 337
    , 361 (Fla. 2008) (“Counsel
    cannot be deemed ineffective for failing to make a meritless
    objection.”).
    In subclaim (c), Appellant argued that the prosecutor
    committed a Giglio 2 violation by failing to correct false testimony
    that he yelled threatening remarks after discovering that his
    tires were slashed, and for emphasizing that testimony during
    closing arguments. Three different witnesses testified that
    Appellant yelled threats when he made that discovery. Given
    this information, this subclaim was properly denied. See Serrano
    v. State, 
    225 So. 3d 737
    , 754 (Fla. 2017) (affirming the denial of a
    Giglio claim where the defendant failed to demonstrate that the
    witness’ testimony was false).
    In Appellant’s third ground, he argued that his attorney was
    ineffective for failing to study cellphone tower transmissions and
    retain an expert who could testify about the range of cellphone
    towers. He alleged that the State introduced the testimony of
    Jeffrey Strohm to establish that Appellant’s cellphone used the
    cellphone towers near the crime scene around the time of the
    shooting, rather than the towers near his girlfriend’s house on
    the night of the shooting, asserting that this evidence
    undermined his alibi. He claimed that if counsel had been more
    prepared, he could have adequately cross-examined Mr. Strohm.
    But a defendant does not establish that his attorney
    performed deficiently in failing to retain a defense expert, when
    defense counsel “rigorously challenged the state’s expert.” Crain
    v. State, 
    78 So. 3d 1025
    , 1040 (Fla. 2011) (holding that the
    decision not to call a defense expert was a reasonable strategic
    decision where defense counsel is able to obtain significant
    concessions from the State’s witnesses through cross-
    examination). Here, during Mr. Strohm’s cross-examination,
    defense counsel elicited testimony that if the cellphone tower
    2  Giglio v. United States, 
    405 U.S. 150
    (1972) (holding that a
    new trial was required where the State knowingly presented
    false testimony at trial and that evidence was material).
    6
    near an individual gets “bogged down,” a different tower will pick
    up the call. Mr. Strohm agreed that that individual’s cellphone
    records would then indicate that he was near the second tower,
    even though he was not. Mr. Strohm acknowledged that it was
    possible for Appellant to be at his girlfriend’s house and have his
    call get picked up by the cellphone tower in the vicinity of the
    crime scene. Defense counsel emphasized this testimony during
    closing arguments, reiterating that the cellphone tower evidence
    did not actually establish Appellant’s location at the time of the
    offenses.    Given this information, counsel did not perform
    deficiently. Furthermore, given the evidence discussed above,
    even if defense counsel had investigated cellphone tower
    transmissions or consulted a defense expert, there is no
    reasonable probability that the outcome of the trial would have
    been different.
    In Appellant’s fourth ground, he argued that his attorney
    was ineffective for failing to make an adequate motion for
    judgment of acquittal, arguing that counsel should have argued
    that the State failed to disprove his alibi defense. This claim is
    cognizable pursuant to rule 3.850. See White v. State, 
    977 So. 2d 680
    , 681 (Fla. 1st DCA 2008) (concluding that a defendant stated
    a meritorious claim of ineffective assistance of trial counsel where
    a timely motion for judgment of acquittal would have been
    granted). Nonetheless, this claim is meritless.
    “In moving for a judgment of acquittal, a defendant ‘admits
    not only the facts stated in the evidence adduced, but also admits
    every conclusion favorable to the adverse party that a jury might
    fairly and reasonably infer from the evidence.’” Beasely v. State,
    
    774 So. 2d 649
    , 657 (Fla. 2000) (quoting Lynch v. State, 
    293 So. 2d 44
    , 45 (Fla. 1974)). “A motion for judgment of acquittal
    should only be granted if there is no view of the evidence from
    which a jury could make a finding contrary to that of the moving
    party.” Jeffries v. State, 
    797 So. 2d 573
    , 580 (Fla. 2001).
    “Because conflicts in the evidence and the credibility of the
    witnesses have to be resolved by the jury, the granting of a
    motion for judgment of acquittal cannot be based on evidentiary
    conflict or witness credibility.” Sapp v. State, 
    913 So. 2d 1220
    ,
    1223 (Fla. 4th DCA 2005). We need not reiterate the evidence
    admitted at trial to conclude that this claim must fail here, as no
    7
    motion for judgment of acquittal would have been correctly
    granted based on the evidence here.
    In Appellant’s fifth ground, he argued that his attorney was
    ineffective for failing to retain a ballistics expert to testify that
    there were two groups of shooters present that night exchanging
    fire. He also alleged that this expert could have opined as to
    whether the gun was fired at the victims or into the air.
    Appellant failed to establish any deficiency or resulting
    prejudice. His defense was that he was not present during the
    shooting, not that he did not shoot directly at the victims or that
    the victims fired first. Furthermore, such testimony would run
    contrary to all of the eyewitness testimony introduced at trial,
    which established that a single shooter fired from a moving
    vehicle, and the bullets passed by two of the victims and struck
    the building behind them. Afterwards, one bullet was found
    lodged in a cabinet inside a witness’ apartment. Under these
    facts, this ground was properly denied.
    In Appellant’s sixth ground, he argued that his attorney was
    ineffective for failing to file a motion for a new trial so that the
    trial court could re-weigh the evidence. He alleged that if this
    had occurred, he would have received a new trial.
    Such a claim is only meritorious where the movant can show
    that a motion for new trial would have been granted, as
    otherwise there could be no prejudice. In other words, where
    there is not a “strong likelihood a new trial would have been
    ordered,” such a claim for collateral relief must be denied. See
    Manley v. State, 
    605 So. 2d 1327
    , 1328 (Fla. 2d DCA 1992). And
    this court has recognized that there is no per se entitlement to
    collateral relief, simply because defense counsel failed to file a
    motion for new trial without considering the underlying facts.
    Williams v. State, 
    553 So. 2d 309
    (Fla. 1st DCA 1989). Here,
    given the evidence discussed above, there is no likelihood that a
    motion for a new trial would have been granted, because the
    verdict was not contrary to the weight of the evidence, but in fact
    was entirely consistent with the weight of the evidence. In
    contrast, in Lamb v. State, 
    124 So. 3d 953
    , 957 (Fla. 2d DCA
    2013), the Second District granted collateral relief and a new
    8
    trial where trial counsel misunderstood the grounds for obtaining
    relief by requesting a new trial rather than seeking a judgment of
    acquittal, and there could be no strategic reason in foregoing a
    motion for new trial to allow the trial court to reconsider the
    weight of the evidence, where the original trial court commented
    that the identification evidence was some of the “weakest” that
    judge had heard.         Here, the identification evidence was
    overwhelming, and no reasonable judge would have exercised its
    discretion to grant a new trial. Thus, because any motion for new
    trial would have been properly denied, Appellant’s trial counsel
    did not provide ineffective assistance of counsel. See Hill v. State,
    
    839 So. 2d 865
    , 867 (Fla. 4th DCA 2003). We thus reject
    Appellant’s arguments on this issue.
    In Appellant’s seventh ground, he argued that his attorney
    was ineffective for failing to object to the omission of a jury
    instruction on the lesser-included offense of attempted
    manslaughter. However, “as a matter of law, the possibility of a
    jury pardon cannot form the basis for a finding of prejudice under
    Strickland.” Sanders v. State, 
    946 So. 2d 953
    , 960 (Fla. 2006).
    Therefore, this claim was properly denied. See 
    id. In Appellant’s
    eighth ground, he argued that his attorney
    was ineffective for failing to challenge the credibility of
    Mr. Alford, Ms. Young, Mr. Price, and Mr. Davis. He alleged that
    counsel could have impeached these witnesses with their prior
    inconsistent statements. He also asserted that counsel failed to
    provide him with the deposition transcripts of these witnesses to
    allow him to assist in his own defense.
    Appellant has failed to show a deficiency or any resulting
    prejudice. As discussed in ground one, each of these witnesses
    was thoroughly cross-examined and impeached with prior
    inconsistent statements made to the police, and defense counsel
    highlighted the inconsistencies in their testimony during closing
    arguments. Insofar as Appellant argued that counsel did not
    provide him with deposition transcripts, as discussed above, he
    also alleged that counsel never deposed these witnesses. Under
    these circumstances, this ground was properly denied.
    AFFIRMED.
    9
    LEWIS and MAKAR, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Tyrone B. Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
    10