FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5278
_____________________________
MICHAEL DUNN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.
September 9, 2019
PER CURIAM.
Michael Dunn appeals an order summarily denying his
motion for postconviction relief. Because Dunn’s claims were
conclusively refuted by the record or legally insufficient, we affirm.
Facts
In November 2012, Dunn was involved in a shooting that took
place in the parking lot of a convenience store. Dunn was sitting in
his car and complaining about loud music coming from a nearby
car occupied by four men. After exchanging words with one of the
passengers in the backseat of the other car, Dunn fired ten shots
at the car. Nine shots struck the car—the last three hit the rear
door on the passenger side. Dunn fired the first shots from his car
but fired the last three shots after he had gotten out of his car.
Dunn was standing in a shooting stance and fired the gun as the
other car drove away. A passenger in the back seat of the car was
struck by one of the bullets and died.
Dunn was convicted of first-degree murder while discharging
a firearm (count one), three counts of attempted second-degree
murder while discharging a firearm (counts two-four), and one
count of shooting or throwing deadly missiles (count five). The
court sentenced Dunn to a mandatory term of life imprisonment
on count one; to consecutive terms of thirty years’ imprisonment
with consecutive twenty-year mandatory-minimum terms on
counts two, three, and four; and to fifteen years’ imprisonment on
count five. His convictions and sentences were affirmed on direct
appeal. Dunn v. State,
206 So. 3d 802 (Fla. 1st DCA 2016).
Dunn timely moved for postconviction relief, raising eleven
claims for relief. The trial court summarily denied the motion,
rejecting all eleven claims. This timely appeal follows.
Analysis
We review an order summarily denying a postconviction
motion de novo. Corbett v. State,
267 So. 3d 1051, 1055 (Fla. 1st
DCA 2019). To prevail on a claim of ineffective assistance of
counsel, the appellant must show that counsel’s performance was
outside the wide range of reasonable professional assistance, and
that such conduct in fact prejudiced the outcome of the proceedings
because without the conduct, there is a reasonable probability that
the outcome would have been different. Strickland v. Washington,
466 U.S. 668, 687-88, 691-92 (1984); Spencer v. State,
842 So. 2d
52 (Fla. 2003).
Claim One
Dunn alleges that the trial court provided incorrect answers
to two jury questions: (1) whether the jury could render a verdict
on counts two through five if it was deadlocked on a verdict for
count one; and (2) whether self-defense applies to “person B, C, and
D” if it applies to “person A.” But claims of trial court error are not
cognizable in a motion for postconviction relief. Johnson v. State,
985 So. 2d 1215, 1215 (Fla. 1st DCA 2008). Those claims must be
raised on direct appeal. Hodges v. State,
885 So. 2d 338, 366 (Fla.
2004). The postconviction court properly denied this claim.
2
Claim Two
Dunn next argues that his counsel was ineffective for failing
to object to the trial court’s answers to the above questions. He
contends that counsel should have advised the trial court that a
verdict on counts two through five could be reached only after the
jury determined the question of self-defense as to count one. And
he argues that his self-defense claim to one victim applied to the
other victims. This claim lacks merit and is procedurally barred.
As to the first question, the trial court properly informed the
jury that it could render a verdict on some of the counts while being
deadlocked on other counts. State v. Muhammad,
148 So. 3d 159,
161 (Fla. 1st DCA 2014) (observing that a jury’s inability to reach
a verdict on one count did not affect the jury’s ability to reach a
verdict on another count). Counsel cannot be found ineffective for
failing to make a meritless objection. Schoenwetter v. State,
46 So.
3d 535, 546 (Fla. 2010). As to the second question, Dunn argued on
direct appeal that the trial court incorrectly answered the question
about self-defense, and this Court rejected that argument. He may
not relitigate this claim by couching it terms of ineffective
assistance of counsel. Braddy v. State,
219 So. 3d 803, 823 (Fla.
2017); Thompson v. State,
88 So. 3d 312, 318 (Fla. 4th DCA 2012).
This claim was properly denied.
Claim Three
Next, Dunn argues that it was error to allow the jury to
consider information learned from his first trial during his second
trial. Dunn was originally tried on all five counts. The jury found
Dunn guilty of counts two through five but was unable to reach a
verdict on count one—first-degree murder. Dunn’s second trial led
to a guilty verdict on count one as well. He argues that some jurors
during the second trial knew that he had already been convicted of
several counts of attempted second-degree murder. This claim is
procedurally barred. In his direct appeal, Dunn asserted that the
trial court erred in denying his motion for change of venue during
his second trial. Dunn argued the jurors’ knowledge of the
convictions obtained in the first trial prevented him from receiving
a fair trial. Although Dunn did not raise the exact claim set forth
in his postconviction motion during his direct appeal, Dunn relied
on the same facts—that jurors learned of the outcome of the first
3
trial from outside sources to support both claims of prejudicial
error. Because this claim should have been raised on direct appeal,
this claim was properly denied. Hodges,
885 So. 2d at 366;
Johnson,
985 So. 2d at 1215.
Claim Four
Dunn alleges that his counsel was ineffective for failing to
object to the trial court’s exclusion of an expert witness’s exhibits.
The exhibits, offered by the defense during Dunn’s second trial,
depicted Dunn’s car side-by-side with the victim’s car and showed
the trajectories of the bullets fired by Dunn. Dunn claims that the
exhibits would have allowed the jury to conclude that the rear door
of the car near the victim was open when Dunn fired the first shots.
Although his counsel did not present the precise argument made
by Dunn in his motion, she argued that the exhibits should be
admitted because they supported the expert’s conclusion that the
victim’s door was open. But even without the exhibits, Dunn’s
expert still testified that the victim’s car door was open. And the
jury still found Dunn guilty of first-degree murder. Because Dunn
cannot establish that there is reasonable probability that the jury’s
verdict would have changed had the exhibits been admitted, this
claim was properly denied. Spencer,
842 So. 2d at 61.
Claim Five
Dunn next claims his counsel was ineffective for failing to hire
an expert to examine the audio of the store’s surveillance video.
Dunn asserts that a sound recording could reveal that the sound
heard two or three seconds before Dunn began firing his gun was
a gunshot fired from another, unknown weapon. But Dunn’s claim
is refuted by the record. An accident reconstruction expert
examined the sounds heard on the store’s video and made no
mention about another gun being fired before Dunn started
shooting. Further, Dunn, who testified at trial, never alleged that
anyone else fired a gun. Thus, Dunn’s assertion that an expert
would have examined the sound recording and concluded that a
gunshot was fired before Dunn started firing is mere speculation.
Connor v. State,
979 So. 2d 852, 863 (Fla. 2007) (“Relief on
ineffective assistance of counsel claims must be based on more
than speculation and conjecture.”). This claim, too, was properly
denied.
4
Claim Six
Next, Dunn contends that his counsel should have obtained
an accident-reconstruction expert with medical credentials to
rebut the medical examiner’s testimony about the position of one
of the victims when the victim was shot. Dunn concedes that his
counsel unsuccessfully sought to exclude the accident-
reconstruction portion of the medical examiner’s testimony. His
counsel attacked the examiner’s credibility as an accident-
reconstruction expert and presented testimony of an accident-
reconstruction expert to refute the examiner’s testimony. Thus,
Dunn’s claim that an accident-reconstruction expert with medical
credentials would have been more persuasive is speculative.
Because he cannot show that but for counsel’s alleged error the
outcome of the trial would have been different, the trial court
properly denied this claim.
Id. at 863; Spencer,
842 So. 2d at 61.
Claim Seven
Dunn then argues that his counsel was ineffective for failing
to impeach the three victims with their prior inconsistent
statements. But the record does not reveal any inconsistencies that
would warrant defense counsel impeaching any of these victims.
For this reason, this claim was properly denied as conclusively
refuted by the record.
Claim Eight
Dunn also asserts that his counsel was ineffective for failing
to attack the credibility of an eyewitness. At trial, the witness
testified that he heard Dunn say to one of the victims, “You’re not
going to talk to me like that.” Dunn argued that the State relied
on this statement to rebut his theory of self-defense, so defense
counsel should have attacked the witness’s credibility. Even
assuming counsel should have impeached the witness, this claim
lacks merit because there was ample evidence presented to rebut
Dunn’s theory of self-defense, including testimony from several
witnesses that all the victims were unarmed. Thus, the trial court
properly denied this claim. Spencer,
842 So. 2d at 61.
Claim Nine
5
Next, Dunn argues that the State knowingly presented false
testimony during his first trial. Dunn claims that a detective
falsely testified about the operation of the child-safety locks in the
victims’ car. To raise a Giglio * violation, Dunn was required to
show that (1) the testimony given was false; (2) the prosecutor
knew the testimony was false; and (3) the statement was material.
Guzman v. State,
868 So. 2d 498, 505 (Fla. 2003). False evidence is
material “if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.”
Id. at 506.
The trial court properly found that any alleged false testimony
by the detective about the operation of the child-safety locks was
immaterial. Whether the locks were engaged at the time of the
shooting was relevant only to the charge of first-degree murder.
Their operation became a feature of the first trial, but the trial
resulted in a mistrial on that count. Because there was no verdict
or judgment of the jury that could have been impacted by any
allegedly false testimony, this claim was properly denied.
Claim Ten
Dunn raises a second Giglio claim, arguing that the State
knowingly presented false testimony in both trials that the child-
safety locks were engaged during the incident. As stated in the
previous discussion, Dunn did not show how any alleged
inconsistency about the child locks was material. That evidence
was relevant only to count one, which led to a hung jury. In the
second trial, one witness testified that he believed that the rear
door could not have been opened because he thought the child-
safety locks were engaged. The other two witnesses did not address
this issue. But even if the testimony of the witnesses conflicted, the
witnesses testified as to their own perception of the events. This
conflict in testimony does not mean that the prosecutor knowingly
presented false testimony. Ferrell v. State,
29 So. 3d 959, 978 (Fla.
2010) (holding that a defendant “cannot establish a Giglio violation
by showing merely that the State put on witnesses whose
* Giglio v. United States,
405 U.S. 150 (1972).
6
testimony conflicted with another person’s version of events”).
Thus, this claim was properly denied.
Claim Eleven
Last, Dunn makes a third Giglio claim. Dunn asserts that the
State presented false testimony from the three victims that the
door to the car was closed during the shooting. He asserts that the
physical evidence and the testimony of the ballistics expert showed
that the door was open and that one of the victims was exiting the
car when Dunn fired the shots. Again, presenting conflicting
testimony is not enough to establish a Giglio violation. Id. at 978.
This claim was properly denied.
Because all of Dunn’s claims lack merit, we AFFIRM the trial
court’s summary denial of the motion for postconviction relief.
B.L. THOMAS, ROWE, and BILBREY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Michael Dunn, pro se, Appellant.
Ashley Moody, Attorney General, Holly N. Simcox, Assistant
Attorney General, Tallahassee, for Appellee.
7
