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Pryear v. State

Florida Court of Appeals, First District

February 28, 2018

Melvin L. Pryear, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On appeal from the Circuit Court, Escambia County. W. Joel Boles, Judge.

          Melvin L. Pryear, pro se, Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

          B.L. Thomas, C.J.

         Appellant, Melvin L. Pryear, appeals an order denying his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

         This case arose from a traffic accident wherein a semi-truck struck Appellant's vehicle, resulting in the death of the Appellant's passenger and damage to the semi-truck. The evidence reflected that Appellant was traveling northbound on the highway when he made a left turn in front of the semi-truck, which was traveling southbound. Both vehicles had a green signal without any turn arrows illuminated.

         Testifying at trial were two sisters who witnessed the accident. One sister, Janice Spencer, testified that when she saw Appellant's car start to turn, she said to herself, "Don't go, don't go, " because the semi-truck was too close for the oncoming car to safely make the turn. The other sister, Sharon Watson, testified that the semi-truck was moving fast, estimating that the truck appeared to be "doing every bit of [the 40 or 45 miles per hour speed limit] coming through the intersection."

         Other eye witnesses testified that Appellant smelled of alcohol and had beer cans in his car. The traffic homicide investigator testified that, hours later, Appellant's eyes were still bloodshot and watery and his speech was slurred. The investigator opined that Appellant was at fault in the accident, because he violated the semi-truck's right-of-way by making a left turn in front of the truck when he should have yielded to oncoming traffic. A highway patrol trooper testified that a blood draw was conducted at the hospital, and a Florida Department of Law Enforcement laboratory analyst testified that she tested the sample. Her report was introduced into evidence, reflecting that Appellant's blood alcohol level was .196 grams per four milliliters of blood, or more than twice the legal limit.

         Following the jury trial, Appellant was convicted of DUI manslaughter and DUI with property damage and sentenced to a total of 15 years in prison. His convictions and sentences were affirmed on appeal. Pryear v. State, 185 So.3d 1238 (Fla. 1st DCA 2016). Appellant then filed the instant rule 3.850 motion, raising eight claims, which the lower court summarily denied.

         In Appellant's first claim, he argued that his attorney was ineffective for failing to renew his objection to the State's use of a peremptory challenge to strike an African-American juror. Appellant alleged that the State's race-neutral reason for the strike applied equally to a white juror; therefore, it was pretextual as a matter of law.

         A claim of ineffective assistance of counsel is governed by Strickland v. Washington, 466 U.S. 668, 690 (1984). To prove ineffective assistance, a defendant must allege 1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, see id. at 690; and 2) that the defendant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different, see id. at 692. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The defendant must demonstrate a likelihood of a different result which is substantial and not just conceivable. Harrington v. Richter, 562 U.S. 86, 112 (2011). "The prejudice in counsel's deficient performance is assessed based upon its effect on the results at trial, not on its effect on appeal." Strobridge v. State, 1 So.3d 1240, 1241 (Fla. 4th DCA 2009) (citing Carratelli v. State, 961 So.2d 312, 323 (Fla. 2007)).

         A claim of ineffective assistance of counsel arguing counsel's failure to raise a Neil[1] objection is not normally a basis for postconviction relief. Jones v. State, 10 So.3d 140, 141-42 (Fla. 4th DCA 2009). This is true, because the prejudice prong cannot be proven absent some indication that the jury that actually served was biased. See Yanes v. State, 960 So.2d 834, 835 (Fla. 3d DCA 2007); Jenkins v. State, 824 So.2d 977, 984 (Fla. 4th DCA 2002).

         Here, even if Appellant could establish that counsel performed deficiently for failing to renew his objection to the strike, he failed to establish that this omission affected the outcome of his trial, and not just the possible outcome of his appeal. Furthermore, the transcripts from voir dire reveal no indication that the juror who actually served was biased, as he joined with the rest of the prospective jurors in indicating that he could be impartial ...


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