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Lopez v. State

Florida Court of Appeal, Fourth District

December 21, 2011

Louis LOPEZ, Appellant,
v.
STATE of Florida, Appellee.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

Page 1069

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Louis Lopez appeals his convictions and sentences for aggravated assault, burglary of a dwelling with an assault or battery, two counts of attempted felony murder, and shooting a deadly missile at a vehicle. He raises two claims of error as to his conviction, one as to the denial of a juror challenge for cause and the other as to his attorney's ineffective assistance in failing to object to an out-of-court identification. We find no error on either issue.

First, appellant claims that the trial court erred in denying a challenge for cause to one of the jurors. Specifically, the juror expressed concern that the " beyond a reasonable doubt" burden would make it harder to find the appellant guilty or not guilty. This statement does not show bias for or against the defense. As we said in Juede v. State, 837 So.2d 1114, 1115 (Fla. 4th DCA 2003),

A juror should be dismissed for cause where there is reasonable doubt as to his or her impartiality.... The applicable test is whether a juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.... Whether a challenged juror's responses meet the ... test is a mixed question of law and fact to be resolved by the trial court.

(citations omitted). We conclude that the court properly denied the challenge because the juror did not evidence any bias.

Second, appellant also claims ineffective assistance of counsel on the face of the record for failure of his attorney to object to an unnecessarily suggestive out-of-court identification of appellant. Ineffective assistance of counsel arguments are not cognizable on direct appeal generally. McKinney v. State, 579 So.2d 80, 82 (Fla.1991). We find that the general rule is applicable here.

Affirmed. [1]

MAY, C.J., and POLEN, J., ...


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