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Johnson v. State

Florida Court of Appeals, First District

May 25, 2018

Tyrone B. Johnson, Appellant,
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 for Alachua County. Mark W. Moseley, Judge.

          Tyrone B. Johnson, pro se, Appellant.

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

          B.L. THOMAS, C.J.

         Tyrone B. Johnson appeals an order denying his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

         Appellant was charged with three counts of attempted second-degree murder (counts I-III), shooting into an occupied building (count IV), and possession of a firearm by a convicted felon (count V). The evidence introduced at trial reflected that on the night of the shooting, one of the victims, Michael Alford, attempted to fight Appellant over a dispute involving another victim, LaKendra Young. Appellant's friends intervened to stop the fight, and Appellant retreated to a friend's apartment and called the police. The police escorted him back downstairs to his car. Appellant started to drive out of the apartment complex in his car, and his friend, Rico Williams, followed in a separate car. Near the exit to the complex, he stopped his car and discovered that his tires had been slashed. He started making threatening remarks, suggesting that he intended to return.

         Later that night, a car drove slowly into the complex, turned around, and passed by the place where Ms. Young, Mr. Alford, and Austin Price were standing outside. Two witnesses identified it as the same car that had followed Appellant out of the complex earlier in the night. The windows were rolled down, several shots were fired, and the car then sped away.

         Ms. Young testified that she felt the wind of one bullet passing behind her before it struck a sliding glass door. Mr. Price testified that one of the bullets went over his head and struck a wall. Mr. Alford and Ms. Young were able to identify Appellant as the shooter. Another witness, Ira Davis, also saw the shooting and identified Appellant as the shooter. Evidence was presented that the vehicle involved in the shooting belonged to Rico Williams' girlfriend, Fariha Hoque. When authorities contacted Ms. Hoque about her vehicle, she initially concealed its whereabouts, saying it was in Miami.

         Appellant was convicted as charged on counts I, III, and IV, and of the lesser included offense of aggravated assault on count II. He was sentenced to a total of life in prison and designated as an habitual violent felony offender on counts I and III. Count V was nolle prossed by the State. Appellant's convictions and sentences were affirmed by this court, without opinion. Johnson v. State, 166 So.3d 771 (Fla. 1st DCA 2015) (table).

         Appellant then filed the instant rule 3.850 motion, raising eight grounds for relief. The lower court summarily denied the motion, and this timely appeal follows.

         In Appellant's first ground, he raised two subclaims pertaining to counsel's alleged failure to investigate.[1] In subclaim (a), Appellant argued that his attorney was ineffective for failing to depose the State's witnesses to prepare for cross-examination. He alleged that Mr. Davis, Ms. Young, and Mr. Alford had given less detailed statements to the police in response to the investigation into the dispute between Appellant and Mr. Alford than they did in connection with the investigation of the shooting. He asserted that other witnesses were unreliable or made statements that did not support the State's case. He claimed the outcome of the trial would have been different if counsel had impeached these witnesses, because such impeachment would have supported his alibi and misidentification defenses.

         A claim of ineffective assistance of counsel is governed by Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, an appellant must allege 1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms and 2) that the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different. See id. at 690-92. "[W]hen a failure to depose is alleged as part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission, identifying 'a specific evidentiary matter to which the failure to depose witnesses would relate.'" Davis v. State, 928 So.2d 1089, 1117 (Fla. 2005) (quoting Brown v. State, 846 So.2d 1114, 1124 (Fla. 2003)).

         Here, even assuming that Appellant set forth a facially sufficient claim, he failed to establish prejudice. Mr. Alford, Ms. Young, Mr. Davis, and another witness, Shanice Bailey, all provided written statements to the police after the shooting. During the trial, defense counsel thoroughly cross-examined these witnesses and impeached them with their prior statements. Counsel also questioned Mr. Price about prior statements he made to the police. During closing arguments, defense counsel highlighted conflicts in their testimony, as well as the relationships among the witnesses and ...

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