Cecil Shyron King v. State of Florida

Supreme Court of Florida
____________
No. SC17-1486
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CECIL SHYRON KING,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
December 20, 2018
PER CURIAM.
Cecil Shyron King appeals the postconviction court’s order denying in part
his motion to vacate a judgment of conviction of first-degree murder and a
sentence of death under Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we
affirm the postconviction court’s order denying King’s guilt phase claims, vacating
King’s sentence of death, and remanding for a new penalty phase based on Hurst v.
State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).
FACTS AND PROCEDURAL BACKGROUND
This Court explained the facts of the underlying murder and trial on direct
appeal:
Renie Telzer-Bain’s family last saw her alive on Monday,
December 28, 2009, at 5:30 p.m., when her daughter-in-law, Lyza
Telzer, along with Lyza’s son and Lyza’s son’s friend, visited her.
Lyza and Renie were very close, spoke multiple times per day, and
saw each other five times per week. Lyza made a point of seeing
Renie very often because of Renie’s age and because Renie lived by
herself. Renie liked to stay up late watching television and to sleep in
until 10 or 11 a.m.
The next day, Tuesday, December 29, Lyza began trying to
reach Renie around 4 p.m. As the day progressed and she had not
been able to reach Renie, Lyza became concerned. She called Renie’s
neighbor to ask if he would keep an eye out for Renie. The neighbor
had noticed that Renie’s garage door was open at 10:30 a.m. that
morning and that her car was missing. He believed at the time that
Renie had inadvertently left the garage door open, and either he or his
wife closed it.
Lyza went to Renie’s house around 7 p.m., along with Renie’s
neighbor. The garage door was closed, and when Lyza opened the
garage, Renie’s car, a 2001 Cadillac, was missing. The door from the
house to the garage was locked, which was unusual because Renie
only locked that door at night. The neighbor pried open the door, and
they entered the house. Upon entering the house, Lyza believed a
burglary occurred—the house was ransacked, and Renie was an
extremely neat, meticulous person who always kept her house in
order. Lyza and the neighbor then discovered Renie’s body in the
bedroom on the floor.
The sliding glass door was opened about an inch, and the frame
was damaged. The pole that normally kept the door from being
opened was not in the door. Numerous items were missing from the
house, including a flat screen television, silverware, jewelry, wallets,
clothing, purses, cosmetic bags, a tool chest, and weekly and monthly
planners with Renie’s handwriting in them. Subsequent investigation
by law enforcement revealed no fingerprints of value in the house.
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Investigators found a container of cantaloupe on the kitchen
table. On the top of the container was a piece of fruit that appeared to
have a bite mark, which was swabbed for DNA. Lyza testified that
Renie often kept cantaloupe or fruit in containers in the fridge. The
DNA swab from the fruit revealed a partial male DNA profile (with
eleven of thirteen loci being identifiable).
Shoe prints were discovered on the exterior garage door, where
it appeared that someone had tried to kick the door in. Additional
shoe prints were found near the entry where the yard was fenced in.
The size of the prints indicated a large-sized shoe.
Dr. Rao, a medical examiner, testified that the cause of death
was blunt head trauma. The victim had been struck at least seventeen
times with the head and claw of a hammer, sustaining injuries on the
back of her head, to the front of her neck, on the back of her neck, on
her upper back, on the back of her right hand, on her right leg, and on
her left knee. Three of the blows were to the head, which would have
been fatal and rendered the victim unconscious. The wounds on the
victim’s right hand and left arm were defensive wounds, sustained as
the victim was trying to ward off blows.
The missing Cadillac was found the day after Renie’s body was
discovered, located within a few blocks of King’s apartment.
Fingerprints found inside the car matched those of Rashad Montford,
King’s cousin. Police subsequently interviewed Montford, who
explained that he borrowed the car from King. According to
Montford, he went to King’s apartment in late December 2009, and
King offered to let him borrow a newer model Cadillac, which was
parked around the corner. King did not explain where he had gotten
the car, and Montford did not ask. Montford borrowed the car twice
that day. While he was borrowing the car, Montford called King at
one point to tell him that he was going to be out with the car for a
little while longer. Police corroborated this call using phone records.
King instructed Montford to leave the vehicle a few blocks away from
where King lived when he returned it.
While he was speaking with police, Montford offered to wear a
recording device and visit King to get him to talk about the vehicle,
with the aim of clearing Montford’s name. Montford visited King
twice while wearing the recording device, but King did not admit that
he had given Montford the car. King instructed Montford to “say you
don’t know” when questioned by police about the vehicle. King’s
fingerprints were not found inside the Cadillac.
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James Roman testified that he was the owner of a residential
lawn service company that had serviced Renie’s yard for four or five
years. King worked for Roman from July until October 2009. Roman
and King cut Renie’s yard together eight or ten times. Roman always
went with King to cut Renie’s yard. King did not have a vehicle, so
Roman would sometimes give him a ride. Roman made it a point not
to go inside his clients’ residences, and Roman testified that King
never went inside Renie’s house. Roman does not believe that King
ever met Renie. Renie never came outside to give them food or
drinks, and she paid Roman by leaving a check under the door mat.
Roman was out of town at the time of the murder. While out of
town, he received a phone call from King, who mentioned that
something had happened to one of the clients for whom Roman
worked. King usually only called Roman to speak about work.
On January 8, 2010, King pawned a gold bracelet, identified as
belonging to Renie, for $300. The bracelet did not have any unique
identifiers, such as charms or initials. The lead detective testified that
it would be a good item to pawn if King was trying to stay under the
radar.
During the investigation, police checked the phone records for
King’s cell phone. On the morning of the murder, he made a phone
call at 5:24 a.m. The phone call was routed using a tower that was
near the bus station downtown, three miles away from his residence.
Normally a phone call bounces off the cell tower that is closest to the
person making the call. If King was home at the time of the phone
call, there was a high likelihood that the phone call would have routed
through a different tower. No other calls were made until 10:10 a.m.,
and that phone call routed through a tower that was closer to King’s
residence. Police went to the bus station and determined that there
was a bus route that left the station and stopped directly across from
the entrance to Renie’s subdivision. On the day of the murder, there
was a bus leaving the bus station on that route at 5:25 a.m. The bus
driver confirmed that the bus ran on schedule on that particular day,
but stated that he would be unable to identify King because it was
rush hour.
Police executed a warrant on King and searched his residence
on February 1, 2010. Numerous items belonging to Renie were found
in his residence. The items included a pillow case sham that matched
a sham seen at Renie’s residence, day planners with Renie’s
handwriting inside, items of clothing with the tags still on them,
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silverware, a chess set, purses, watches, rings, pearls, necklaces, and
other jewelry. Police also found a hammer on top of King’s
microwave; however, the hammer did not have any blood on it.
Large-sized shoes were recovered from King’s house, but none of the
shoes matched the tread found in the shoe prints at the crime scene.
Police interviewed King twice, but he did not admit guilt.
During the first interview, King stated that he bought the pawned
bracelet for $50 from a guy known as “Budha,” who hung out in his
neighborhood. King was going to give the bracelet to his girlfriend,
but he needed cash to catch up on bills. King denied having a
Cadillac or lending the keys to anyone. He stated that he had worked
with Roman on mowing Renie’s yard, but he did not really speak to
her and had never been inside her house.
When questioned about the items found in his apartment, King
stated that he found them in a vacant apartment near his apartment,
took them home, and put them in his closet. He did not know to
whom the items belonged. King stated that he looked in the vacant
apartment because his apartment had been broken into and
burglars were known to stash items in the nearby vacant apartment
complexes. He stated that he found his stolen property in the vacant
apartment as well. He had filed a police report on December 3, 2009,
regarding a burglary of his home.
Police took a sample of King’s DNA. The DNA on the melon
at Renie’s home was found to match that of King. The DNA on the
fruit would match only 1 in 440 trillion Caucasians, 1 in 770 trillion
African–Americans, and 1 in 280 trillion southeastern Hispanics.
After the DNA on the melon in Renie’s house was identified as
matching King’s DNA, the police questioned him a second time on
February 5, 2010. King again stated that he had never been inside
Renie’s house and never took money from her; she always paid
Roman for the lawn care services. He then subsequently stated upon
further questioning that he had previously been inside Renie’s living
room when he had stepped inside her house to speak to her, which
was contrary to his earlier statements. When King was shown a
picture of the fruit from the crime scene, he stated that Renie had
previously given fruit to him and Roman. When asked why his DNA
was found on the fruit, King stated that the victim served them fruit
when they were previously at her house.
The jury convicted King of first-degree murder (both
premeditated and felony murder), burglary, grand theft of an
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automobile, dealing in stolen property, and false verification of
ownership on a pawn broker transaction form.
The Penalty Phase
During the penalty phase, the State presented victim impact
testimony from Renie’s family and friends. King presented mitigation
testimony from family members and friends, who testified that he was
an articulate, intelligent, and caring individual. His parents divorced
when he was young, after which he and his mother moved to Orlando.
He was very close with his mother, who died of breast cancer. King
took care of his mother in her final days, and her death impacted him
greatly. He cared for his grandmother when she had Alzheimer’s
disease, including bathing her, clothing her, and feeding her. When
his aunt broke her hip in 2009, he visited and consoled her. King has
a three-year-old son, with whom he is very close and has a good
relationship. King went to church when he lived with his mother in
Orlando and considered seminary at one point. According to one
family member, King would have made a good minister. His family
members would visit him if he was sentenced to life in prison.
The jury recommended death by a vote of eight to four.
Subsequently, the trial court held a Spencer [v. State, 615 So. 2d 688(Fla. 1993),] hearing, at which King presented two witnesses. The
first witness was his former girlfriend, who testified that he was a
nice, articulate, funny, and smart individual; that he had a very good
relationship with his mom prior to her death; and that it was very hard
for him when she passed away. The second witness was a
correctional officer who testified that in the year that King had been
on his block in prison, the officer did not have any trouble with King.
The trial court followed the jury’s recommendation and
sentenced King to death. The trial court found the following
aggravating circumstances: (1) the capital felony was committed
while the defendant was engaged in the commission of a burglary and
for the purpose of pecuniary gain (merged); and (2) the capital felony
was especially heinous, atrocious, or cruel (HAC). The trial court
gave both aggravating circumstances great weight. The trial court
found no statutory mitigating factors, but found numerous
nonstatutory mitigating factors. The trial court found that two
mitigating factors were not established: (1) the incident at issue was
situational; and (2) the defendant had a lack or deficiency of positive
role models.
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King v. State, 130 So. 3d 676, 679-83 (Fla. 2013), cert. denied, 571 U.S. 1218(2014).
On direct appeal, King raised five issues, all of which related only to the
penalty phase: (1) the trial court erred in instructing the jury on and in finding the
HAC aggravating factor; (2) his sentence of death is disproportionate; (3) the trial
court erred in allowing the prosecutor to make improper closing arguments about
an avoid-arrest aggravating factor, which was not submitted to the jury or found by
the trial court; (4) the trial court erred in prohibiting defense counsel from making
the proper argument that King had no history of violent crime; and (5) his death
sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). King,
130 So. 3d at 683. This Court denied relief as to each claim and additionally
determined that there was sufficient evidence to support King’s first-degree murder
conviction, and King’s sentence of death was proportionate. Id. at 683-90. King’s
convictions became final in 2014. King, 571 U.S. 1218.
King filed a timely motion to vacate his first-degree murder conviction and
sentence of death pursuant to rule 3.851, raising eight claims for relief:
(1) ineffective assistance of counsel during jury selection; (2) ineffective assistance
of counsel during the guilt phase; (3) a Brady1 violation; (4) ineffective assistance
of counsel during the penalty phase; (5) the imposition of the death penalty by
1. Brady v. Maryland, 373 U.S. 83 (1963).
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lethal injection is unconstitutional; (6) cumulative error; (7) newly discovered
evidence based on Hurst v. Florida, 136 S. Ct. 616 (2016); and (8) ineffective
assistance of counsel for failing to object at numerous instances during the guilt
phase. After reviewing the pleadings and hearing argument from counsel, the
postconviction court granted an evidentiary hearing on claims 1-4. The evidentiary
hearing took place in multiple segments: February 16, 2016, through February 19,
2016; November 3, 2016; and February 1, 2017.
At the evidentiary hearing, King’s attorneys, Refik Eler and Quentin Till,
were called to testify. Till was the first-chair attorney and primarily managed the
guilt phase while Eler managed the penalty phase. Both Till and Eler were highly
experienced lawyers with lengthy careers—Till for forty-six years and Eler for
thirty. Till and Eler were assisted on King’s case by junior attorneys, Deb Billard
and Shawn Arnold, and mitigation specialists, Holly Ayers and David Douglas.
The team frequently met and would inform King of their recommendations.
Eler testified that the team was aware that King had confessed that he knew
the victim, had been in the victim’s home, and had eaten fruit the victim provided
to him. Eler explained that, when considering calling experts to try to implicate a
guilty third-party or making other decisions, the team made informed decisions
based on what they knew in the case and whether it fit with their defense theory.
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After the evidentiary hearing, the postconviction court issued an order
denying King’s guilt phase claims, vacating King’s sentence of death, and granting
a new penalty phase pursuant to Hurst. Because the postconviction court granted
King Hurst relief, it did not address King’s other penalty phase claims. As we
discuss below, we affirm the postconviction court’s order in full.
ANALYSIS
King claims ineffective assistance of trial counsel in the guilt phase for
twelve reasons: (1) failure to adequately redact statements in King’s interrogation
video; (2) failure to object to Detective Cayenne’s improper hearsay testimony at
trial; (3) failure to object to the introduction of and repeated references to a bloody
shirt found in King’s residence; (4) failure to investigate and present expert
witnesses at trial; (5) failure to present a DNA expert at trial; (6) failure to obtain a
shoe impression expert; (7) failure to obtain a latent fingerprint expert; (8) failure
to object to Detective Cayenne’s cellphone testimony and failure to present a
cellphone expert to rebut that testimony; (9) failure to object to the leading
questioning of witness Rashad Montfort; (10) failure to object to the leading
questioning of witness Detective Cayenne; (11) failure to object to various
arguments in the State’s closing argument; and (12) cumulative error. After
discussing the standard of review, we address each claim in turn, concluding that
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none of King’s claims of ineffective assistance of counsel have merit because
either deficiency or prejudice or both has not been established.
Standard of Review
Following the United States Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), this Court has explained that a defendant must
satisfy two requirements to receive relief on an ineffective assistance of counsel
claim:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v.
Wainwright, 490 So. 2d 927, 932 (Fla. 1986)).
First, to establish the deficiency prong under Strickland, the defendant must
prove that counsel’s performance was unreasonable under “prevailing professional
norms.” Morris v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting Strickland, 466
U.S. at 688). “A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689.
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Second, as to the prejudice prong of the Strickland test, this Court has
explained:
“Strickland places the burden on the defendant, not the State, to show
a ‘reasonable probability’ that the result would have been different.”
Wong v. Belmontes, 558 U.S. 15 (2009) (quoting Strickland, 466 U.S.
at 694). Strickland does not “require a defendant to show ‘that
counsel’s deficient conduct more likely than not altered the outcome’
of his penalty proceeding, but rather that he establish ‘a probability
sufficient to undermine confidence in [that] outcome.’ ” Porter v.
McCollum, 558 U.S. 30 (2009) (quoting Strickland, 466 U.S. at 693-
94). This Court employs a mixed standard of review, deferring to the
postconviction court’s factual findings that are supported by
competent, substantial evidence, but reviewing legal conclusions de
novo.
Mosley v. State, 209 So. 3d 1248, 1264 (Fla. 2016) (quoting Smith v. State, 126 So.
3d 1038, 1042-43 (Fla. 2013)).
“[U]nder Strickland, both the performance and prejudice prongs are mixed
questions of law and fact, with deference to be given only to the lower court’s
factual findings.” Eaglin v. State, 176 So. 3d 900, 906 (Fla. 2015) (quoting
Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999)). We now turn to address
King’s claims of ineffective assistance of trial counsel, Quentin Till and Refik
Eler. 2
2. Till was the first-chair attorney and primarily managed the guilt phase of
King’s trial, while Eler managed the penalty phase. See Order on Def.’s Third
Am. Mot. to Vacate J. & Sentence Under Rule 3.851 with Special Req. for Leave
to Am. & Def.’s Suppl. to his Sixth Am. Mot. to Vacate Js. of Conviction &
Sentence, State v. King, No. 16-2010-CF-01450-AXXX-MA (Fla. 4th Jud. Cir.
July 12, 2017), 8-9 [hereinafter Order].
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King’s Claims of Ineffective Assistance of Counsel
1. Failure to Object to Statements in King’s Interrogation Video
King contends that the postconviction court erred in denying his claim for
ineffective assistance of counsel relating to Till’s failure to object to the
introduction of many of the detective’s statements during King’s interrogations
that were then admitted in evidence. King asserts that because the statements were
made by law enforcement officers, they likely carried undue weight, resulting in
prejudice.
King categorized Detective Cayenne’s statements as follows: (1) improper
bolstering; (2) improper comment on King’s truthfulness, credibility, and guilt;
(3) improper opinion; (4) improper comments on King being in jail and the amount
of his bond; (5) improper comments on remorse; (6) improper characterization and
name calling; and (7) shifting the burden of proof. The postconviction court
denied King’s claim, stating:
Initially, the Court notes that prior to trial, counsel filed
“Defendant’s Objections to his Audio and Videotaped Statements,” in
which counsel objects to a number of the statements Defendant now
contends should have been redacted. In that Motion, counsel averred
many statements made in the video, including various statements now
being contested, should be excluded for a variety of reasons,
including: (1) the statements were irrelevant and prejudicial under
sections 90.401, 90.402, and 90.403, Florida Statutes; (2) the
statements were comments on Defendant’s character; (3) the
statements were inadmissible as “expression[s] of the Jacksonville
Sheriff’s Office detective’s belief that [Defendant] is guilty or that
[Defendant] is lying; (4) the statements “are being used solely to
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bolster the Jacksonville Sheriff’s Office detective’s credibility; and (5)
“[t]he statements are expressions of Jacksonville Sheriff’s Office
detective’s theories on what he believes happened and his speculation.
To the extent counsel objected to the statements now being contested,
counsel cannot be deemed ineffective as he attempted to have these
statements excluded.
Till testified that he recalled filing the motion to obtain
redactions, but noted that what played during trial was the result of the
judge’s rulings. Till testified he was familiar with the case law on this
issue . . . and tried to raise such issues in his motion. Till recounted
spending 100 hours on redaction of the interrogation, speaking to the
State regarding the redactions, and getting a large amount of the
interrogation redacted. Defense counsel stated that he did not object
to the playing of the videos at trial because he and the State had
already negotiated what would be presented based on their views of
what presentation would be fair.
....
In this case, the detectives’ tactics elicited admissions from
Defendant regarding pawning the victim’s jewelry, having been in her
home, being in possession of luggage which contained her property,
and his cousin having driven the victim’s car. Moreover, many of the
statements regarding the veracity of Defendant’s comments were in
response to his contradictory answers and answers which contradicted
the evidence. Additionally, the Court finds these statements were of
the type that would be understood by a rational jury to be techniques
being used by the detectives.
Order at 19-21 (citations omitted).
Applying the first prong of the Strickland test to this claim, we conclude
King’s trial counsel was not deficient. King argues that Till “never thought to
object” at trial because Till had already spent significant time redacting the tape of
the recording. Initial Br. of Appellant, at 23. However, the record and Till’s
testimony at the postconviction evidentiary hearing indicate that, in fact, he did
object to several of the statements that King now challenges. At the postconviction
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evidentiary hearing, Till testified that he worked extensively on redacting the
video, was thoroughly aware of the case law on this issue, and did his best to
redact everything he thought was improper. He testified that he “probably spent a
hundred hours” on the redaction, the amended redaction, and reviewing it with his
staff.
This Court has recognized that a jury may hear an interrogating detective’s
remarks about a crime when they provoke a relevant response from the defendant.
McMillian v. State, 214 So. 3d 1274, 1286 (Fla. 2017); Jackson v. State, 18 So. 3d
1016, 1032 (Fla. 2009). King relies on Martinez v. State, 761 So. 2d 1074 (Fla.
2000), where a detective was called to testify as to his investigation of the murder
of Douglas Lawson. Id. at 1078-79. There, the prosecutor asked the detective:
“Was there any doubt in your mind based on what [the defendant] said then that he
was responsible for the murder of Douglas Lawson?” Id. at 1079. The detective
answered: “There was no doubt that he did it.” Id. The prosecution then
highlighted this opinion testimony during closing argument, stating that the
defendant “was arrested because nobody had a doubt that he was guilty.” Id.However, the facts of Martinez are very different from King’s case. In
Martinez, this Court determined that the detective’s testimony was improper
because “a witness’s opinion as to the guilt or innocence of the accused is not
admissible.” Id. In this case, the detectives’ statements were not made as
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testimony regarding King’s guilt but, rather, as part of their interrogation of King.
As this Court has held in other cases, it was not improper for the jury to hear
statements that elicited a reaction from King during the interrogations, especially
because they gave proper context to the entirety of the interrogation, which elicited
several incriminating and inconsistent statements by King. McMillian, 214 So. 3d
at 1286-87 (citing McWatters v. State, 36 So. 3d 613, 638 (Fla. 2010)). Thus,
counsel was not deficient in failing to make additional objections at trial after he
had worked extensively with the prosecution to have other objectionable portions
redacted.
Further, King fails to show that he was prejudiced by Till’s failure to object
at trial. This case is similar to McMillian, where this Court found that defense
counsel’s failure to redact statements made by law enforcement during a recorded
interview did not prejudice the defendant and did not amount to ineffective
assistance of counsel. Id. at 1287. “When placed in ‘their proper context,’ an
interrogating detective’s statements to a suspect could be understood by a rational
jury to be ‘techniques’ used by law enforcement officers to secure confessions.”
Id. at 1286 (quoting McWatters, 36 So. 3d at 638 (quoting Worden v. State, 603 So.
2d 581, 583 (Fla. 2d DCA 1992))).
In addition, the evidence against King was compelling. King was in
possession of numerous pieces of the victim’s property, pawned her jewelry, and
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his DNA was found on cantaloupe located on the victim’s kitchen table. Thus,
even if the detectives’ statements were not included in the interrogation video, we
agree with the postconviction court that confidence in the outcome of the trial is
not undermined. Because King fails to meet either prong of Strickland, we affirm
the postconviction court’s order denying this claim. Mosley, 209 So. 3d at 1264.
Accordingly, King is not entitled to relief on this claim.
2. Failure to Object to Detective Cayenne’s Improper Hearsay Trial
Testimony
Next, King contends that the postconviction court erred in finding that Till’s
failure to object to Detective Cayenne’s improper hearsay trial testimony did not
constitute ineffective assistance of counsel for failure to establish either deficiency
or prejudice. The postconviction court denied King’s claim, explaining:
First, the Court finds that many of the comments Defendant
points to as being hearsay when testified to by Detective Cayenne
were actually testified to by the original declarants. Thus, Defendant
cannot establish he was prejudiced by counsel’s failure to object to
Detective Cayenne’s testimony. For instance, while Detective
Cayenne testified that he spoke with the victim’s daughter, Lyza
Telzer (“Telzer”), and through that conversation, learned the victim
was “very meticulous and very neat,” Telzer also stated the same at
trial. Telzer also testified about the property stolen from the victim’s
home, including jewelry and a television. Indeed, Telzer testified that
after being shown photographs, she had gone to a pawn shop and
identified a gold bracelet that belonged to the victim. The victim’s
neighbor, Richard Broxton, testified about finding the victim’s garage
door open on the day her body was discovered.
Montfort testified that he obtained the Cadillac and the car keys
from Defendant, that Defendant told him the vehicle was located
around the corner from his apartment, and that Defendant instructed
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him where to park the Cadillac when Montfort returned it. Montfort
also testified about calling Defendant while he had the Cadillac.
Montfort stated that while driving the car, his friend “Monk Man”
joined him in the car, and they went to see Montfort’s cousin, Robert
Epps (“Epps”), while in the car.
Defendant’s former employer, James Roman (“Roman”),
testified that Defendant had worked for him for approximately four
months doing lawn maintenance, which included work at the victim’s
home. Around Christmas, Roman was in West Virginia when he
received a call from Defendant asking whether Roman had seen the
news story about one of his customers. Roman also testified that
Defendant wore a straw hat while working. Roman told the jury that
Defendant often took the bus to the Town and Country station to meet
Roman for work. FDLE analyst Jason Hitt testified that the DNA
swab from the fruit recovered from the victim’s kitchen table resulted
in a male profile that matched Defendant’s cheek swabs.
Thus, fifteen of the twenty-nine statements at issue were
corroborated by the original declarants of the statements. Moreover,
as to Detective Cayenne’s comment that his partner observed a
shoeprint on the door that was larger than the size of the victim’s, that
information was also provided by the crime scene investigator who
testified that there was a partial shoeprint on the door that measured
11.61 inches, so the shoe size would have had to be even larger.
Additionally, as noted by Defendant in a footnote, counsel did object
to comments made by Detective Cayenne as shifting the burden onto
Defendant, counsel simply did not object based on hearsay as well.
Three of Detective Cayenne’s remaining alleged hearsay
statements were actually beneficial to Defendant’s case: his testimony
that he spoke with Defendant’s apartment complex residents and none
could say who drove the Cadillac; his testimony that the fingerprints
located within the Cadillac matched Epps and Montfort; and his
testimony that the bus driver with whom Detective Cayenne spoke
could not identify the individuals that the bus picked up. Other
statements, like Cayenne’s statement that Jordan, Myles Telzer’s
friend, did not eat anything at the victim’s house would not likely
harm Defendant’s case. Trial counsel was not deficient for failing to
object to testimony which was favorable to Defendant and Defendant
cannot demonstrate, in any manner, that these beneficial or immaterial
statements prejudiced him.
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Additionally, some of Detective Cayenne’s statements simply
do not constitute hearsay. For instance, Detective Cayenne’s
testimony that Hitt suggested that getting Defendant’s DNA from
cheek swabs would be better than trying to obtain his DNA from the
straw hat he wore at work was not presented for the truth of the matter
asserted. § 90.801, Fla. Stat. (defining hearsay as “a statement, other
than one made by the declarant while testifying at trial or hearing,
offered in evidence to prove the truth of the matter asserted.”). Lastly,
Detective Cayenne’s statement regarding Defendant’s phone call does
not constitute hearsay.
As for the remaining statements, counsel is not ineffective for
making a tactical decision not to object. Indeed, Till testified that if a
hearsay statement was not going to harm Defendant’s case, he may
not object. Eler also stated that there is strategy in not objecting to
certain things because they will inevitably come in anyway or it is a
minor issue that would not affect the trial. Not only was counsel
reasonable in his actions, but Defendant has failed to show how he
was prejudiced by counsel’s failure to object.
Order at 24-27 (citations omitted).
When the court determines that counsel’s decision not to object was a result
of “trial tactics,” counsel is not deficient for failing to object to “very minor
hearsay matters.” Hall v. State, 212 So. 3d 1001, 1024 (Fla. 2017) (citing Brown v.
State, 846 So. 2d 1114, 1122 (Fla. 2003)).
King points to instances in Detective Cayenne’s testimony that he believes
should have elicited an objection from counsel. First, some of Detective
Cayenne’s statements that King challenges were not even hearsay. For example,
Detective Cayenne testifying to the content of Montfort’s cell phone records does
not constitute improper hearsay evidence. As recognized by this Court, phone
company call lists are not out-of-court statements by a declarant. Wade v. State,
- 18 -
156 So. 3d 1004, 1024-25 (Fla. 2014) (concluding that “counsel did not err by not
raising a hearsay objection to the [marshal’s] testimony about the content of the
[phone] records” because “phone company call lists are not out-of-court statements
by a declarant”). Likewise, Detective Cayenne testified that DNA expert Jason
Hitt suggested that it would be better to gather DNA from cheek swabs rather than
a straw hat. This statement was not offered for the truth of the matter asserted.
See § 90.801(1)(c), Fla. Stat. (2018). Again, counsel cannot be ineffective for
failing to raise a meritless objection. Peterson v. State, 154 So. 3d 275, 280 (Fla.
2014).
Further, to the extent the other statements did, in fact, constitute improper
hearsay evidence, King cannot establish prejudice because they all relate to very
minor aspects of the trial, and most of the statements were corroborated by other
witnesses. In fact, as the postconviction court explained, “fifteen of the twenty-
nine statements at issue were corroborated by the original declarants of the
statements.” Order at 25. For instance, King argues that counsel should have
objected when Detective Cayenne testified that he spoke with the victim’s
daughter, Lyza Telzer, and learned that the victim was “very meticulous and very
neat”; but Telzer said the same at trial. Further, the victim’s neighbor, Richard
Broxton, also testified about finding the victim’s garage door open on the day her
body was discovered.
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In addition, Till testified at the postconviction evidentiary hearing that if a
hearsay statement was not going to harm King’s case, he did not object. Again,
counsel is not ineffective for making a tactical decision to not object. See
Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (“[S]trategic 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.”). It was within Till’s discretion to develop his own trial
strategy and not object to minor hearsay matters. Thus, King is similarly unable to
show prejudice rising to the level required under Strickland to merit relief.
Accordingly, King is not entitled to relief on this claim.
3. Failure to Object to the Introduction of and Repeated References to a
Bloody Shirt Found in King’s Residence
Next, King contends that the postconviction court erred in determining that
Till’s failure to object to a bloody shirt found in King’s residence did not result in
ineffective assistance of counsel for failure to establish either deficiency or
prejudice. During the trial, both parties mentioned a bloody shirt that was found in
King’s house. Till testified that the bloody shirt could not be matched to the victim
or King, and he used the shirt to argue in closing that the police were careless with
their investigation. Till, who handled the cross-examination of Detective Cayenne,
testified that the “bloody shirt was a smoke screen. It had nothing to do with this
case.” He further testified that he did not know
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why it got blown out . . . of proportion. It was a . . . shirt that Cecil
King was surprised in the interrogation tape and—and was not Cecil
King’s blood type, it was not [the victim’s] blood type. It was just
like a red herring or something just thrown in there.
The postconviction court denied King relief, stating in part:
At trial, the discussion of the bloody shirt was minimal when
placed in the context of a four-day trial. The subject did not become a
feature of the trial. Rather, while the shirt was discussed during
Defendant’s interrogation, through the testimony of Detective
Cayenne and Florida Department of Law Enforcement DNA expert,
Jason Hitt (“Hitt”), the majority of statements involving the bloody
shirt were to inform the jury that the blood on the shirt was not
Defendant’s, the victim’s, or Myles Telzer. Indeed, Detective
Cayenne informed the jury that the shirt had no relation to the case.
Many of the remaining references were from defense counsel to point
out the lack of police work in regards to this shirt; specifically, that
the shirt was not even Defendant’s size, the police did not test the
hairs found on the shirt, and the police did not compare the DNA from
the shirt to that of the individuals whose prints were found in the
victim’s car.
Moreover, the State did not mention the bloody shirt during
opening or closing arguments. Rather, the only mention of the shirt in
closing arguments was by defense counsel. Till’s closing argument
focused on sloppy police work and detectives who were just reaching
for a suspect. Till used the subject of the bloody shirt to cast doubt on
the police work completed in this case. During closing, Till argued
that Detectives Romano and Cayenne had “badgered” Defendant until
they convinced Defendant it was his bloody shirt only to have DNA
evidence later prove that the blood on the shirt was not Defendant’s or
the victim’s. Till tied this information together with testimony stating
hairs found on the shirt were never tested. Till reasoned that if the
detectives could obtain a false confession from Defendant about the
bloody shirt being his, they could obtain a false confession concerning
his presence in the victim’s home.
Order at 22-23 (citations omitted).
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Unlike in Beasley v. State, 18 So. 3d 473 (Fla. 2009), where a bloody shirt
served as crucial evidence in the State’s prosecution, King used the bloody shirt
found in his home as part of his own argument that the police ran a careless
investigation. The State never mentioned the shirt during its opening statement or
closing argument. Contrary to King’s argument that Till did not have a “strategic”
or “tactical” reason for how he dealt with the shirt, the record indicates that Till’s
strategy focused on arguing, without experts, that the State was relying on the
faulty investigatory work of the police.
Even if Till’s decision appears to have been unwise in retrospect, strategic
decisions are generally insulated from Strickland. See Occhicone, 768 So. 2d at
1048. The postconviction court determined that Till’s strategy to use the shirt in
his defense was a reasonable trial strategy.
Further, regardless of whether the bloody shirt should have been admitted
into evidence at trial, King cannot establish prejudice. It is undisputed that the
blood on the shirt did not match King’s DNA. As the postconviction court
explained, while the shirt was discussed during King’s interrogation, the majority
of statements admitted involving the bloody shirt were to inform the jury that the
blood on the shirt was not King’s, the victim’s, or Telzer’s son’s. Order at 22.
Additionally, the jury was informed that the shirt had no relation to the case. Many
of the remaining references were made by defense counsel in noting the poor
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police work related to this shirt. Specifically, the shirt was not even King’s size;
the police did not test the hairs found on the shirt; and the police did not compare
the DNA from the shirt to that of the individuals whose prints were found in the
victim’s car. Id.DNA evidence was presented ruling out King and the victim as possible
contributors for the blood found on the shirt. Moreover, as explained above, Till
was able to use the evidence to support the defense theory of the lack of police
investigation in this case. At worst, the admission of the shirt did not affect King’s
defense; at best, the shirt was actually helpful to the defense’s case. Thus, the
postconviction court did not err in concluding that, even if King’s counsel was
deficient for failing to object to the introduction of the evidence, confidence in the
outcome of the trial is not undermined.
Accordingly, King is not entitled to relief on this claim.
4. Failure to Investigate and Present Expert Witnesses at King’s Trial
Next, King claims that trial counsel’s failure to present or retain expert
witnesses at trial constituted ineffective assistance of counsel.
This Court has explained that counsel does not necessarily perform
deficiently by failing to retain an expert witness to rebut the State’s expert
testimony at trial. See Crain v. State, 78 So. 3d 1025, 1041 (Fla. 2011); Belcher v.
State, 961 So. 2d 239, 250-51 (Fla. 2007). Accordingly, King is not entitled to
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relief on this general claim. We now turn to address King’s claims regarding
specific experts that should have been retained: a DNA expert, a shoe impression
expert, and a latent fingerprint expert.
5. Failure to Present a DNA Expert
Next, King argues that the postconviction court erred in concluding that trial
counsel’s failure to present a DNA expert to rebut the State’s expert witness did
not result in ineffective assistance of counsel for failure to establish either
deficiency or prejudice. The postconviction court denied King’s claim, stating:
In his recorded interview, Defendant admitted to previously
being in the victim’s home and having the victim serve him fruit.
Additionally, trial counsel cross-examined Hitt about the acids in the
cantaloupe and how they could have affected the DNA results.
Through cross examination, counsel was able to get Hitt to concede
that it was possible that the citric acid in the cantaloupe could have
degraded the DNA sample. Defense counsel noted this point during
his closing argument. Moreover, counsel elicited testimony that this
fruit, despite being out on the counter, was not discovered until many
hours after the victim was found and police had been on the scene.
Counsel further elicited testimony that the cantaloupe was destroyed
after the State obtained its swab, but prior to Defendant being able to
gather his own evidence. Defense counsel again emphasized this
issue during his closing argument, as it supported the defense of faulty
police work that counsel presented throughout trial.
Till and Eler both testified that they consulted a DNA expert,
Bruce Budowle. Each attorney testified that the expert told him it was
probably better not to retest and not to have two people testifying
regarding Defendant’s DNA. Eler further testified that in motioning
the Court to test items for DNA, they could have tipped off the State
to test an item further. Till and Eler both stated that the defense team
made the strategic decision to bring out the weaknesses in the DNA
evidence for this case and what might have been discovered if fruit
had not been destroyed, rather than presenting a defense DNA expert.
- 24 -
The Court finds this was a reasonable strategic decision and that it
was reasonable to limit his investigation into further DNA, especially
in light of the fact that counsel had heard Defendant confessed to an
investigator for the defense.
Further, as to the allegation that counsel should have hired a
DNA expert to test the untested hair, fiber, and blood on the bloody
shirt found in Defendant’s closet, the Court finds the shirt does not
have a sufficient nexus in the crime to warrant such an expert. The
blood on the shirt did not match the DNA of Defendant or the victim.
Even if the hair, fiber or blood matched someone else’s DNA, there
would be no connection to this case. If the hair or fiber came back as
matching the victim, however, such evidence would have harmed
King’s case as the shirt was found in his closet.
Order at 29-30 (citations omitted) (footnotes omitted).
At the postconviction evidentiary hearing, King’s trial counsel testified that,
prior to trial, he consulted with a DNA expert, Dr. Bruce Budowle, who indicated
that his testimony would not provide much assistance to the defense’s case. Dr.
Budowle also indicated that retesting the DNA would likely confirm the results
reached by the Florida Department of Law Enforcement (FDLE). Further, Till
testified that Dr. Budowle advised Till that performing additional DNA testing
could be problematic. In light of King’s admission that he was in the victim’s
home prior to the murder, Eler testified that they decided to not risk creating
additional evidence that would be damaging to the defense’s case.
At the postconviction evidentiary hearing, King called Dr. Kevin Noppinger
as a postconviction DNA expert. Dr. Noppinger testified that he disagreed with
some of FDLE’s findings and procedures, noting that the cantaloupe could have
- 25 -
been frozen to preserve it for further testing. He also determined that a partial
DNA profile retrieved from the victim’s socks excluded the victim and King as
contributors. However, FDLE had determined that the swab did not contain
enough DNA to create a profile, and they could not compare it to DNA standards.
Considering all of this information, it is clear that King’s trial counsel made
a reasonable strategic decision to not call a DNA expert to rebut the State’s DNA
testimony at trial. King’s trial counsel made this decision after considering
alternatives and determined that calling another DNA expert to perform further
forensic testing could potentially reveal more evidence against King. Therefore,
trial counsel’s decision was reasonable under the norms of professional conduct.
See Occhicone, 768 So. 2d at 1048.
In Taylor v. State, 62 So. 3d 1101 (Fla. 2011), Taylor asserted that his trial
counsel was deficient for failing to raise specific objections regarding DNA
evidence and the State’s expert’s testimony. Id. at 1111. This Court determined
that Taylor’s counsel’s failure to make specific objections was the product of an
overall strategy and therefore did not amount to deficient performance. Id.Similar to Taylor, King’s trial counsel did not present a DNA expert at trial,
but did testify about having multiple conversations with an expert about the case
and determined that vigorous cross-examination of the State’s expert would be an
effective strategy. King’s trial counsel cross-examined the State’s DNA expert,
- 26 -
Hitt, and was able to exploit various weaknesses in the State’s case, including the
possibility of cross-contamination of items found in the victim’s home and the
existence of an incomplete DNA profile. This does not amount to deficient
performance under Strickland, considering that King’s trial counsel was able to
effectively cross-examine Hitt as part of the defense’s overall strategy to
emphasize the weaknesses of the State’s DNA evidence and that the DNA match to
King was incomplete. As this Court has previously stated, a defendant cannot
establish deficient performance for failure to retain a DNA expert when trial
counsel decides that doing so would be a disservice to his client. Carroll v. State,
815 So. 2d 601, 613 (Fla. 2002).
Even assuming that trial counsel was deficient for failing to retain a DNA
expert, King cannot demonstrate prejudice under Strickland. In his recorded
interview, King admitted to previously being in the victim’s home and having the
victim serve him fruit. King’s trial counsel used this fact in his argument and also
emphasized the fact that the cantaloupe was destroyed after the State obtained its
DNA swab, which supported the defense’s theory of faulty police work. Finally,
Dr. Noppinger did not identify any evidence that should have been presented at
trial and agreed with all but one of the FDLE’s findings on the DNA, other than
one immaterial discrepancy.
- 27 -
Because King is unable to prove that his trial counsel’s performance was
deficient and cannot establish that his defense was prejudiced by deficient
performance, King’s claim fails under Strickland. Mosley, 209 So. 3d at 1264.
Accordingly, King is not entitled to relief on this claim.
6. Failure to Obtain a Shoe Impression Expert
Next, King argues that the postconviction court erred in concluding that trial
counsel’s failure to present a shoe impression expert and rebut the State’s shoe
impression expert did not result in ineffective assistance of counsel for failure to
establish either deficiency or prejudice. For the following reasons, we conclude
that King’s claim fails.
The postconviction court denied King’s claim, stating:
The jury heard that the shoe impressions located outside the
victim’s home were never matched to any shoes recovered from
Defendant. Till used this issue during cross-examination and closing
argument to cast doubt on the State’s case. Specifically, Till argued
that the investigator was not qualified to determine the shoe size, and
that although such an expert was available to the State, the State did
not use that resource.
Additionally, Till testified at the evidentiary hearing that he did
not feel such an expert was warranted because the shoeprint lacked
connection to the case in that the print was not a match to any of
Defendant’s shoes. Moreover, Till mentioned that he was worried
that any additional evidence on the issue may have opened the door to
other damaging testimony for Defendant. Specifically, Till mentioned
concern that the State would then be able to elicit testimony regarding
a footprint analysis for the burglary next door to the victim’s house
and testimony that Defendant had also pawned some of the victim’s
neighbor’s property after evidence of that crime had been excluded
from the trial.
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Order at 32-33 (citations omitted).
As the postconviction court’s order states, King’s trial counsel decided not
to hire a shoeprint expert. Till testified that he did not feel the need to call a
shoeprint expert because the shoeprints at the scene did not match any of King’s
shoes. Till noted that law enforcement found numerous shoeprints but were unable
to match even one of them to King. He was also aware that King was implicated
in a robbery at a nearby home in the victim’s neighborhood the month before the
murder. Thus, Till was concerned about opening the door for that evidence to be
brought out as rebuttal evidence if the defense presented a shoeprint expert.
At the postconviction evidentiary hearing, King called William Bodziak,
who provided expert testimony on forensic shoeprint evidence. While Bodziak
criticized the police investigation for determining the size of the prints based on
photographs, he noted that “the most common way to collect this evidence would
be photography.” Specifically, Bodziak said the best way to determine the size of
the shoeprints and make a two-dimensional impression is to seize the door that had
the prints. After reviewing the evidence in the case, he concluded that determining
the size of the print would be impossible because of the multiple shoe impressions
on the door and the inaccuracy of the scale, even if he had samples of the full range
of sizes for the shoe that was used. Bodziak also noted that the shoeprints found in
- 29 -
the dirt around the victim’s home appeared to be similar to the prints on the door,
but were “partial impressions” and yielded inconclusive results.
Finally, evidence was presented to the jury during trial that the shoe
impressions located outside the victim’s home were never matched to any shoes
recovered from King. Similarly, in Happ v. State, 922 So. 2d 182 (Fla. 2005), this
Court affirmed the postconviction court’s denial of Happ’s claim that counsel was
ineffective for failing to present a shoe expert where counsel did not believe he
needed an expert to rebut the State’s evidence. Id. at 195. Ultimately, the Court
affirmed the postconviction court’s denial of the claim because the State “could not
state that [the defendant’s] shoe made the shoeprint or that it was even a strong
match.” Id. Thus, in this case, counsel’s decision was a reasonable strategic
decision and cannot be deemed deficient, nor can King establish prejudice.
Accordingly, King is not entitled to relief on this claim.
7. Failure to Obtain a Latent Fingerprint Expert
Next, King argues that the postconviction court erred in concluding that trial
counsel’s failure to obtain a latent print expert and rebut the State’s latent print
expert testimony did not result in ineffective assistance of counsel for failure to
establish either deficiency or prejudice. King argues that he was prejudiced by
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counsel’s decision to not obtain a print expert because the expert could have
rebutted the State’s evidence against him to change the outcome of the trial. 3
The postconviction court denied King’s claim, explaining:
At trial, testimony revealed that the fingerprints located in the
victim’s Cadillac matched Epps and Montfort. None of the prints
recovered from the vehicle or the victim’s house matched Defendant.
The only print found to have matched Defendant was on the pawn slip
for the bracelet. However, Defendant fully admitted to pawning the
bracelet in his interrogation. Because there was no testimony
indicating fingerprints recovered from the Cadillac or the victim’s
home matched Defendant’s fingerprints, it was unnecessary to present
the testimony of an expert on the subject as there was no testimony or
evidence presented by the State for the defense to rebut.
Again, counsel adequately cross-examined the State’s witness
and obtained testimony favorable to Defendant’s case; specifically,
that Defendant’s fingerprints were found nowhere in the victim’s
house or car. Indeed, counsel reiterated this point in his closing
argument. Moreover, the postconviction expert’s testimony presented
at the evidentiary hearing does not support relief in this case. Brown
testified that he agreed with the findings of the print examiner in this
case as to all but one print and Brown excluded Montfort and Epps as
a match to that print. The expert could not definitively state that the
print was not a match to the victim or Defendant. For the reasons
3. While King’s underlying motion for postconviction relief was pending,
he also filed a motion for postconviction DNA testing pursuant to Florida Rule of
Criminal Procedure 3.853 and a motion for postconviction latent fingerprint
testing. The postconviction court granted in part and denied in part King’s rule
3.853 motion for postconviction DNA testing or running any existing profiles
through CODIS or both. Upon review, this Court affirmed the postconviction
court’s “thorough and well-reasoned order” regarding King’s rule 3.853 motion.
King v. State, Nos. SC16-1263 & SC16-1268, 2017 WL 727752, at *1 (Fla. Feb.
24, 2017). We denied King’s petition for review of the postconviction court’s
order denying his motion for latent fingerprint testing because King “failed to
show why the order departs from the essential requirements of law” and how there
would be no adequate remedy on appeal. Id. King does not raise any issue
regarding his motion for latent fingerprint testing or DNA testing in this appeal.
- 31 -
stated above, the Court finds that counsel did not act deficiently in
failing to present a defense latent fingerprint expert. Likewise, the
Court finds Defendant has failed to meet his burden of showing that
the testimony of an expert would have likely changed the outcome of
the proceeding. Defendant is, accordingly, not entitled to relief.
Order at 34-35 (citations omitted).
King argues that had trial counsel retained a latent print expert, he could
have proven to the jury that the Ziploc container lid found on the counter of the
east wall in the victim’s kitchen was of evidentiary value and contained prints from
someone other than King. At the evidentiary hearing, King called a latent print
expert, Elzner Brown, who agreed “with the results of eleven of twelve fingerprint
lifts from the victim’s home.” Id. at 34. As to the one print about which Brown
disagreed—referred to as No. 6—Brown found the print to be of comparison value.
Id. Brown did not match No. 6 to King, Epps, or Montfort, but said it could have
belonged to anyone. Id. Therefore, Brown’s disagreement with the Jacksonville
Sherriff’s Office’s determination that No. 6 had “no value” was meaningless. See
id. at 34. Calling an expert to testify would not have produced any favorable
evidence that would have had a reasonable probability of changing the outcome of
King’s trial.
In addition, similar to the DNA evidence, reprocessing the Ziploc container
risked creating additional incriminating evidence. As with the shoeprint expert,
Till mentioned that he was concerned about opening the door for evidence of King
- 32 -
being implicated in a robbery at the victim’s neighbor’s home being presented as
rebuttal evidence. This shows that Till considered alternative possibilities before
deciding to not hire a latent print expert for King’s case, and his strategic decision
was reasonable under the norms of professional conduct. See Occhicone, 768 So.
2d at 1048.
Similarly, in Buzia v. State, 82 So. 3d 784 (Fla. 2011), the defendant argued
that had trial counsel hired an independent latent print expert to examine a bloody
palm print, the expert would have testified that the print did not match the
defendant’s and the jury would have arrived at a different conclusion. Id. at 797.
This Court decided that the defendant could not be excluded as the person who
made the print because it was insufficient to match it to anyone. Id. Because there
was ample evidence that the defendant had committed the crime, there was no
reasonable basis for questioning whose palm print was found on a cabinet in the
victims’ home. Id.Accordingly, King is not entitled to relief on this claim.
8. Failure to Object to Detective Cayenne’s Cell Phone Testimony and Failure
to Present a Cell Phone Testimony Expert
Next, King argues that the postconviction court erred in concluding that trial
counsel’s failure to object to Detective Cayenne’s improper and misleading cell
phone testimony and failure to present a cell phone expert at trial to rebut
- 33 -
Cayenne’s cell phone testimony did not result in ineffective assistance of counsel.
The postconviction court denied King’s claim for relief, stating:
Trial counsel conducted a thorough cross-examination of
Detective Cayenne as to Detective Cayenne’s qualifications on the
subject of cellphone tracking, as well as on the limitations of such
tracking. Importantly, counsel was able to elicit a concession from
Detective Cayenne that the cell phone pings did not unequivocally
place Defendant at the bus station at the time of the call and further
that it was possible Defendant was at home, checking his messages at
5:25 a.m., the time of the call. Indeed, the important aspects of
Wyman’s testimony were elicited at trial through counsel’s cross-
examination of Cayenne. Moreover, counsel effectively attacked the
fashion in which evidence was collected and continued the attack
during his closing argument when he referred to Detective Cayenne’s
concession by saying, “[a]nd he admitted to it. I didn’t have to call an
expert.” Additionally, at trial, counsel presented the testimony of a
criminal defense investigator, Daniel Roberts, who testified that the
bus station where the State claimed Defendant was located at the time
of the phone call has surveillance cameras. Till used that testimony to
support his theory of sloppy police work by suggesting the police
could have easily verified if Defendant was at the bus station, but
chose not to do so.
At the evidentiary hearing, Till explained that it was a strategic
decision not to object to Detective Cayenne’s testimony. Specifically,
Till noted that if he had objected to Cayenne’s testimony on the
subject, the State would have simply brought in someone who was
more qualified. Rather, counsel was able to elicit testimony to
discredit Detective Cayenne’s testimony on the subject as outlined
above.
Order at 37-38 (citations omitted).
In Gordon v. State, 863 So. 2d 1215 (Fla. 2003), the record demonstrated
that a witness “simply factually explained the contents of phone records that linked
Gordon to [the victim’s] murder, and [the Detective] factually compared the
- 34 -
locations on the phone records to locations on the cell site maps.” Id. at 1219.
This Court held that testimony regarding the content of cell phone records and
comparing cellular tower site maps to phone records was not expert testimony. Id.In addition, as discussed above, this Court has determined that phone company call
lists are not hearsay. Wade, 156 So. 3d at 1024 (citing United States v. Lamons,
532 F.3d 1251 (11th Cir. 2008)).
King argues that Gordon is distinguishable because Detective Cayenne
testified to information that far exceeded the confines of Gordon and specifically
discussed evidence that only someone who works for a cell phone company would
have known or could have testified to. However, like this case, Gordon addressed
a detective who testified at trial regarding cell phone records, and even went
beyond the records to testify about roaming areas, location of cell sites regarding
cellular phones, and the location of individuals placing certain cell phone calls.
863 So. 2d at 1219 n.4. This Court still did not find error in the trial court’s
decision that the testimony given by the two witnesses did not constitute expert
testimony. Id. at 1224.
Here, Detective Cayenne testified that the cell phone records showed that
King was not at home during the approximate time of the murder, which was
contrary to King’s statements to police. However, King’s trial counsel was also
able to elicit important concessions from Detective Cayenne during cross-
- 35 -
examination. For example, Detective Cayenne ultimately agreed that it was
possible that King was at home on his front porch when the call was made at 5:24
a.m., ultimately attacking the credibility of Detective Cayenne’s prior testimony.
Till testified that he did not need a cell phone expert because he was able to
sufficiently cross-examine Detective Cayenne.
At the postconviction evidentiary hearing, Robert Wyman provided expert
testimony on GPS and cell phone-location data. Wyman concluded that King
could have been at home when he placed the 5:24 a.m. phone call the day of the
murder, and the tower his phone utilized in making the call was not necessarily the
tower closest to King when he placed the call. Wyman explained that only a phone
company employee would know the directionality of a cell phone tower; a
detective would not be able to determine that from the records he was provided.
King fails to show how a cell phone expert’s testimony would have elicited
anything different than what Till was able to show through his cross-examination
of Detective Cayenne or, more importantly, how King was prejudiced by Till’s
actions. See Bryant v. State, 901 So. 2d 810, 821 (Fla. 2005) (holding that a
defendant alleging ineffective assistance of counsel for failure to call specific
witnesses is “required to allege what testimony defense counsel could have elicited
from witnesses and how defense counsel’s failure to call, interview, or present the
witnesses who would have testified prejudiced the case” (quoting Nelson v. State,
- 36 -
875 So. 2d 579, 583 (Fla. 2004))). For these reasons, King is unable to prove that
trial counsel provided ineffective assistance.
Accordingly, King is not entitled to relief on this claim.
9. Failure to Object to the Leading Questioning of Witness Rashad Montfort
Next, King argues that the postconviction court erred in concluding that trial
counsel’s failure to object to leading questioning, which resulted in misleading
testimony from Montfort, a key witness, did not result in ineffective assistance of
counsel for failure to establish either deficiency or prejudice. The testimony King
challenges includes the following excerpt from direct examination of Montfort:
Q: Okay. At this point he’s—you tell him, hey, they came to talk to
me about the car you let me hold and he doesn’t say anything, right?
A: Yes, sir.
Q: And you’re trying to get him to talk about the car and about the
murder, right?
A: Yes, sir.
Q: And he’s not talking at all about it?
A: No, sir.
Q: He’s not denying that he loaned you the car, gave you the car?
A: No, sir.
Q: He doesn’t say what are you talking about, I don’t know what
you’re talking about, does he?
A: No, sir.
Q: He doesn’t say what are you talking about, I don’t know what
you’re talking about, does he?
A: No, sir.
Q: Okay. And this goes on for several more minutes, right?
A: Yes, sir.
Q: Doesn’t mention it.
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The State then asked Montfort, “And at this point he tells you to say you don’t
know, you don’t know, right?” Montfort replied, “Yes, sir.” The State continued,
“He’s telling you in terms of talking to the police, say you don’t know, you don’t
know, right?” “Yes, sir,” Montfort responded.
The postconviction court summarily denied King’s claim for relief, stating:
As Defendant admits, counsel objected to the leading questions
referred to by Defendant. However, Defendant asserts it was deficient
conduct to allow the State to continue their questioning without
obtaining a ruling on those objections. The Court finds that even if
the trial court had sustained the objections made, the substantive
testimony would have still been elicited, the State would have merely
had to rephrase the questions. Indeed, counsel never received a ruling
on the objection because the State moved on with its questioning.
Thus, the Court finds the outcome of the proceeding would not have
been different even if counsel had obtained a favorable ruling on his
objections.
Defendant next contests the State’s structure of its examination
of Montfort. Specifically, Defendant argues it was improper for the
State to play only portions of the recorded conversations between
Defendant and Montfort, starting and stopping those segments to ask
Montfort to explain what was occurring in the conversation.
Defendant cites to no rule or case law to support his assertion that
such testimony would have been objectionable. The Court finds the
questioning was permissible. Moreover, as the jury heard each
segment the State asked Montfort to interpret, the Court finds the
questioning was not misleading and the jury was free to interpret the
conversation as they deemed appropriate. Thus, the Court finds
counsel was not deficient. See Hitchcock v. State, 991 So. 2d 337,
361 (Fla. 2008) (“Counsel cannot be deemed ineffective for failing to
make meritless objection.”).
Lastly, Defendant specifically contests the State asking
Montfort to clarify what Defendant meant by stating “You say you
don’t know, you don’t know” in direct examination and redirect
examination. While counsel did not object to the State’s questions,
during cross-examination and recross-examination, counsel got
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Montfort to say he believed Defendant may have simply been telling
Montfort that if he did not know anything, that is all he could say to
the police. Further, the Court again notes that the jury heard the
portion of the conversation Montfort was asked to clarify and was
able to interpret the statement as they felt appropriate. Thus, the
Court does not find the questioning misleading.
Order at 47-48 (citations omitted).
King argues that trial counsel should have objected to the State’s improper
leading questions, which led the jury to believe that Montfort asked King about the
vehicle and that King did not deny having loaned the car to Montfort. However, as
noted by the postconviction court and in King’s Initial Brief to this Court, King’s
counsel did object to the leading questions. Id.; Initial Br., at 61. Despite the
objection, the State continued with its questioning before the trial court ruled on
the objections. King claims this constitutes ineffective assistance of counsel.
We conclude that, even assuming King’s counsel was deficient for failing to
object to the questions as leading, King cannot prove that he was prejudiced. The
State’s “yes” or “no” questions to Montfort were unquestionably leading questions.
If this Court were to consider counsel’s failure to obtain a ruling on the objections
akin to not objecting at all, failing to object to questions that call for a “yes” or
“no” answer does not necessarily establish ineffective assistance of counsel. Happ,
922 So. 2d at 192 (“In respect to those questions which are leading in the context
of . . . direct examination, it was not demonstrated that counsel was ineffective so
as to breach the Strickland standard or that there was Strickland prejudice.”).
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Moreover, even if King’s counsel would have objected to the questions, the State
could have elicited the same information from Montfort simply by rephrasing the
objected-to questions.
Finally, trial counsel was able to get Montfort to clarify some of his answers.
Therefore, as the postconviction court explained, the jury could make its own
factual conclusions based on Montfort’s clarifications, especially after Montfort
recounted King’s offer for him to take the car out and “use it and bring it back.”
Order at 48. Thus, confidence in the outcome of the trial was not undermined.
Accordingly, King is not entitled to relief on this claim.
10. Failure to Object to Leading Questioning of Witness Detective Cayenne
Next, King argues that the postconviction court erred in concluding that trial
counsel’s failure to object to Detective Cayenne’s misleading testimony at trial did
not result in ineffective assistance of counsel for failure to establish either
deficiency or prejudice. King takes issue with Till’s failure to object to the
following portion of the State’s redirect examination of Detective Cayenne:
STATE: Counsel asked you about whether or not you were
successful with the controlled wires with Mr. Montfort and
[Defendant]. But you said that meaning he wasn’t successful meaning
he didn’t outright admit that I killed [the victim], is that correct?
CAYENNE: That’s correct.
STATE: Did he have any response to when Mr. Montfort says, hey,
you know that vehicle you let me hold?
CAYENNE: Right. He didn’t give any response at all. He didn’t say
a word.
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The postconviction court denied the claim for relief, concluding:
Through questioning of Montfort, the State explained that while
the wire recorded everything, including Montfort walking to
Defendant’s, urinating, and playing with Defendant’s dog, the State
would only be playing clips of the conversation. However, the jury
heard the relevant portions of the conversation between Montfort and
Defendant. The Court does not find that the very limited questioning
of Detective Cayenne contested in this claim misled the jury.
Montfort testified that Defendant loaned him the victim’s car to use
for an afternoon. Montfort further stated he wore a wire while talking
to Defendant for the purpose of getting Defendant to talk about the
car, but that Defendant never admitted to loaning Montfort the car.
Moreover, while the State tried to insinuate Defendant’s lack of
denial was incriminating, counsel argued Montfort was trying to set
Defendant up to protect himself, Defendant said “nothing that’s
incriminating in any way, shape or form,” and Defendant was just
“suspicious” and “leery that Montfort may be involved in the killing
of [the victim].” Even assuming counsel was ineffective for failing to
object to these two questions and failing to cross-examine, there is no
reasonable probability the result of the proceeding would have been
different in light of the jury’s ability to hear portions of the
conversations, counsel’s arguments using the exchange to his
advantage, and the evidence presented against Defendant at trial.
Order at 49-50 (citations omitted).
King claims that one brief exchange during the State’s redirect of Detective
Cayenne was misleading and prejudicial. However, Till noted that King never said
anything incriminating on the audio recording that was played for the jury. In
addition, the postconviction court concluded that Montfort testified to loaning King
the vehicle and wore a wire to record King talking about the car. Id.The State’s argument was based on evidence that was presented to the jury.
Even if the State’s questioning was improper, the exchange that King challenges
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was very brief and likely would have had no impact on the outcome of the trial.
This is similar to Brown, where this Court decided that many of the prosecution’s
leading questions related to minor issues, and defense counsel’s decision to not
object was strategic. 846 So. 2d at 1122. Following Brown, even if this Court
concluded King’s counsel should have objected to this brief line of questioning,
King cannot prove that such a brief interaction served to undermine confidence in
the outcome of the trial. Id.Accordingly, King is not entitled to relief on this claim.
11. Failure to Object to Various Comments in State’s Closing Argument
Next, King argues that the postconviction court erred in concluding that trial
counsel’s failure to object to comments during the State’s closing argument and to
make specific counterarguments in his own closing argument did not result in
ineffective assistance of counsel for failure to establish either deficiency or
prejudice. Specifically, King argues that the following comments should have
been objected to because the jury was led to believe that the following events
occurred: (1) King told Montfort to tell the police that “he doesn’t know,”
(2) Montfort told King that he was going to lie to the police to protect King and not
to implicate King; and (3) Montfort asked King about lending him the vehicle
within a conversation that occurred on the wire tapes, and King did not give any
response to Montfort.
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The postconviction court denied King’s claim for relief, explaining:
Here, the State was properly advancing a legitimate argument
based on the facts in evidence and a fair inference from those facts.
Trial counsel then advanced a different argument based on a fair
inference of those facts. The Court, therefore, finds counsel cannot be
deemed ineffective for failing to object to proper argument.
As stated in the previous two grounds, the jury had the ability to
listen to portions of the conversations between Montfort and
Defendant. Counsel then cross-examined Montfort about the
conversations, eliciting an interpretation from Montfort that
Defendant was only telling him that if he truly did not know anything,
he would not have anything to tell the police and a confirmation that
Defendant never admitted to loaning the car to Montfort. Counsel
further argued for his own interpretation of the conversations to aid
the defense.
Additionally, the jury instructions advised the jury that the
“case must only be decided upon the evidence that you have heard
from the testimony of witnesses and have seen in the form of exhibits
in evidence and these instructions.” Right before closing arguments
began, the trial judge informed the jury to “[p]lease remember that
what the attorneys say is not evidence.”
Order at 50-51 (citations omitted).
King argues that Montfort’s taped conversation with King was used to
mislead the jury into thinking King admitted guilt by loaning a vehicle to Montfort.
However, it is clear that, even if Montfort did not admit on tape that he told King
that he was not going to implicate him, the State’s redirect examination elicited an
affirmation from Montfort of what King meant by saying, “You say you don’t
know, you don’t know.” The State used its closing argument to explain inferences
that were reasonably drawn from the evidence. The State did not solely rely on the
audio recording that was played for the jury between Montfort and King, but also
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based its argument on Montfort’s testimony under oath. See Merck v. State, 975
So. 2d 1054, 1061 (Fla. 2007). Trial counsel cannot be deemed ineffective for
failing to object to arguments that are proper, and, in this case, the State’s closing
argument is based on legitimate testimony from Montfort. See Rogers v. State, 957
So. 2d 538, 549 (Fla. 2007).
Furthermore, trial counsel was able to cross-examine Montfort about his
conversations with King and effectively argued a different interpretation of the
facts to the jury in his own closing argument. Because trial counsel was not
deficient and King cannot establish prejudice, King is unable to establish
ineffective assistance of counsel.
Accordingly, King is not entitled to relief on this claim.
12. Cumulative Error
Finally, King alleges that he did not receive a fundamentally fair trial due to
the numerous errors in his case. Because this Court has not found any of King’s
individual claims of ineffective assistance of counsel to have merit, there is no
basis for this Court to grant relief on King’s claim of cumulative error. See Hall,
212 So. 3d at 1031.
Accordingly, King is not entitled to relief on this claim.
CONCLUSION
For the foregoing reasons, the postconviction court’s order is affirmed.
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It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and LAWSON,
JJ., concur.
POLSTON, J., concurs in result.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Mallory D. Cooper, Senior Judge - Case No. 162010CF001450AXXXMA
Gonzalo Andux, Jacksonville, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
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