Opinion
1D2022-3663
11-01-2023
Ronald Green, Appellant, v. State of Florida, Appellee.
Ronald Green, pro se, Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for 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 Escambia County. John F. Simon, Jr., Judge.
Ronald Green, pro se, Appellant.
Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
B.L. THOMAS, J.
Appellant Ronald Green appeals the trial court's order denying his amended motion for postconviction relief. We affirm.
The State charged Appellant with two counts of aggravated battery with a deadly weapon, one count of fleeing or attempting to elude a law enforcement officer in an agency vehicle with lights and sirens activated, one count of driving while license cancelled, suspended, or revoked, one count of leaving the scene of an accident involving property damage, and one count of tampering with a witness.
The facts of this case are found in the direct-appeal record in Green v. State, 279 So.3d 85 (Fla. 1st DCA 2019). The State alleged that on November 8, 2017, a law enforcement officer saw Appellant driving a white truck while not wearing his seatbelt and attempted to initiate a traffic stop. Appellant accelerated and the officer requested backup. The officer caught up to Appellant at a traffic light, activated his lights and sirens, and then exited his vehicle. Appellant then accelerated and fled, striking the vehicle in front of him twice as he did so. This officer testified at trial that he saw Appellant driving the white truck and that he saw him strike the car occupied by the primary victims, a mother and daughter. As Appellant fled, the initial officer remained behind to check on the two victims while a canine unit pursued.
Appellant eventually abandoned his vehicle and attempted to flee on foot. When the canine unit caught up to the abandoned vehicle, the officer used his dog to track Appellant, eventually apprehending him in a church playground.
As evidence of the charge of tampering with a witness, the State presented recorded jail phone calls where Appellant requested that a third party speak with the victims and get them not to testify. At trial, the victim testified that her cousin approached her and told her that Appellant did not want her to testify against him. Also, Appellant himself allegedly left two voicemails on the victim's phone.
A jury found Appellant guilty as charged on all counts, and the trial court sentenced him to a total of thirty years in prison across all counts.
Appellant raised six claims concerning ineffective assistance of counsel and one claim alleging a double jeopardy violation. To prove ineffective assistance of counsel, a defendant must allege (1) that specific acts or omissions of counsel fell below a standard of reasonableness under prevailing professional norms and (2) that the defendant was prejudiced by the errors because there is a reasonable probability that, without those errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690-92 (1984). To prove the first prong, "[t]he defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant." Blackwood v. State, 946 So.2d 960, 968 (Fla. 2006) (quoting LeCroy v. Dugger, 727 So.2d 236, 239 (Fla. 1998)). The prejudice prong requires that the defendant show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011). If the defendant fails to satisfy one prong of the Strickland analysis, it is unnecessary to consider the other prong. Waterhouse v. State, 792 So.2d 1176, 1182 (Fla. 2001).
In his first claim, Appellant argued that his counsel was ineffective for failing to object to an amended information that the State filed on June 29, 2018, after the speedy-trial period had expired. Appellant contended that this amended information improperly increased his witness tampering charge from a second-degree felony to a first-degree felony, and had counsel objected, the State would not have been able to use the amended information and Appellant would not be serving a thirty-year prison sentence.
If a defendant waives his speedy-trial rights, the State has a right to amend the information. See Pezzo v. State, 903 So.2d 960, 962 (Fla. 1st DCA 2005) (providing that where the State amended the information to charge a new offense after the expiration of the speedy trial period and the defendant had not waived the speedy trial period, the defendant's motion for discharge should have been granted); State v. Clifton, 905 So.2d 172, (Fla. 5th DCA 2005) ("[I]f an amended information is filed after the speedy trial time period has expired and the defendant has not previously waived his or her right to speedy trial, then upon proper motion by the defendant, the new charges contained in the amended information must be dismissed if they arose from the same criminal episode as the charges contained in the original information." (emphasis added)). Of course, an amended information that does not prejudice the defendant is not subject to dismissal even where the amendment occurs during trial. Thach v. State, 342 So.2d 620, 624 (Fla. 2022).
The record shows that Appellant requested his first continuance on February 20, 2018, several months before the State amended the information. Thus, Appellant's trial counsel had no grounds to object and was not ineffective. See Hitchcock v. State, 991 So.2d 337, 361 (Fla. 2008) ("Counsel cannot be deemed ineffective for failing to make a meritless objection.").
In his second argument, Appellant claimed that counsel was ineffective for failing to request that the jury instructions on the charge of aggravated battery with a deadly weapon (a vehicle) include a permissive lesser-included offense of reckless driving. He argued that there was a reasonable probability that the jury would have convicted him of this lesser offense had the instructions been included.
The postconviction court correctly denied this claim. Appellant, in essence, argued that but for counsel's failure, there was a possibility that the jury might pardon him. The Florida Supreme Court has held that, "as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland. Therefore, a claim alleging ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied." Sanders v. State, 946 So.2d 953, 960 (Fla. 2006).
In his third argument, Appellant claimed that counsel was ineffective for failing to move to dismiss the charges on the grounds that law enforcement destroyed exculpatory evidence. He argues that the dashcam footage from one of the law enforcement officer's vehicles would have shown that they searched his truck without gloves, did not search for fingerprints, and then impounded his truck. He alleges his inability to access the footage denied him the chance to refute the charges by showing that his fingerprints were not inside the truck and thus that he was not the driver.
The postconviction court properly denied this claim. Without more, Appellant's allegation that the officers searched his vehicle without gloves does not establish a claim that they destroyed evidence. One of the initial law enforcement officers, Deputy Rogers, specifically testified at trial that Appellant was driving the vehicle, and a canine unit tracked him from the vehicle to the church where they apprehended him. Additionally, recorded phone calls showed that Appellant bragged about the situation and told a third party he was confident that he was going to "beat the charge," because the State would be unable to prove he was in the vehicle. Under these circumstances, there is no reasonable probability that if counsel had made such an argument, it would have succeeded. Florida law has long held that counsel is not ineffective for failing to pursue futile motions or arguments. See Gordon v. State, 863 So.2d 1215, 1219 (Fla. 2003) ("Since counsel cannot be deemed ineffective for [not] pursuing futile motions, trial counsel cannot be deemed to have performed deficiently in this regard.").
In his fourth argument, Appellant claimed trial counsel was ineffective for failing to call the registered owner of the vehicle, to testify on his behalf. He argues that she would have testified that she did not loan her truck to Appellant, and he did not steal it; thus, he could not have been the driver. He also contends that this would have impeached the arresting officer's testimony that Appellant was the driver, and that there was a reasonable probability that the outcome of his trial would have been different because Appellant was not arrested while in control of the vehicle.
The postconviction court correctly denied this claim because Appellant cannot prove prejudice. In order to prove a meritorious claim for ineffective assistance for failure to call an exculpatory witness, a defendant must allege the testimony that counsel could have elicited from the witness and how the failure to call the witness prejudiced the case. Nelson v. State, 875 So.2d 579, 583 (Fla. 2004). Three law enforcement officers testified at trial that Appellant was in control of the vehicle, that he was its sole occupant, and that he hit the victims' car and then fled. These officers also testified that after Appellant abandoned his vehicle, they tracked him with a canine unit from the truck to where he was hiding and then arrested him. There is no reasonable probability that the proposed testimony would have altered the outcome of the trial.
Appellant's fifth and sixth claims both concern the recorded jail calls the State introduced to prove the witness tampering charge. Appellant contends that counsel was ineffective for failing to move to limit or exclude the calls because they were inadmissible. Claim five concerns the first three calls, for which Appellant argues that no one ever specifically identified the recorded voice as his and thus that the State did not properly authenticate the evidence. In claim six, he argues that the State never proved that he used the PIN of Bobby Green, another inmate in the jail, and if counsel had moved to exclude these calls, there is a reasonable probability that the outcome of his trial would have been different.
The postconviction court correctly denied these claims as meritless. This Court has explained that:
"Authentication or identification of evidence is required as a condition precedent to its admissibility." § 90.901, Fla. Stat. (2016). A litigant can satisfy this requirement with "evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. The threshold for authentication is "relatively low," and it "only requires a prima facie showing that the proffered evidence is authentic." Mullens v. State, 197 So.3d 16, 25 (Fla. 2016). And parties can rely on direct or circumstantial evidence to meet this low threshold, State v. Love, 691 So.2d 620, 621 (Fla. 5th DCA 1997), including evidence about an item's "appearance, content, substance, internal patterns, or other distinctive characteristics in conjunction with the circumstances," Gosciminski v. State, 132 So.3d 678, 700 (Fla. 2013). "Once a prima facie showing of authenticity is made, the evidence comes in, and the ultimate question of authenticity is for the jury." Id. (citing Charles W. Ehrhardt, Florida Evidence § 901.1 at 1092-93 (2013 ed.)).Thompson v. State, 253 So.3d 684, 688 (Fla. 1st DCA 2018).
The record shows that the Escambia County Jail records custodian testified at trial about the phone calls. She explained that the jail gave each inmate a unique identification number that remained the same no matter how many times they were arrested or returned to the jail. She also testified that inmates created their own PIN so they could make phone calls, and that it was common for inmates to use each other's numbers to attempt to evade nocontact orders or simply because the inmate did not have money to make a phone call. The State introduced the recordings of the phone calls, and this witness affirmed she had previously listened to the recordings and verified them as authentic.
In the first three calls, the caller used a particular inmate identification number, and identified himself as Ronald Green. The caller then made incriminating statements requesting that the third party on the other end of the line approach the victims and meet with them, and gave unique details on the nature of his arrest, such as the fact that law enforcement arrested him in the churchyard and that a dog tracked him there.
In the fourth call, the caller used a different identification number but still identified himself as Ronald Green and claimed he would be acquitted because he "wasn't in the truck." This was, again, an implicit reference to key, unique details about the circumstances of Appellant's arrest. Based on the jail records custodian's testimony, the State therefore met its burden of making a prima facie showing of authenticity of the recorded calls, and counsel had no reasonable grounds on which to move to limit or exclude this evidence. See Gordon, 863 So.2d at 1219 (Fla. 2003).
In his final claim, Appellant argues that the two counts of aggravated battery with a deadly weapon violated the prohibition against double jeopardy, because the two charges had identical elements, were the same degree of severity, and because the trial court could not convict him of the same offense twice. The postconviction court correctly denied this claim, because while there was only a single accident, there were two victims inside the vehicle that Appellant struck, and the offense against each was charged separately. Section 775.021(4)(a), Florida Statutes, provides that "[w]hoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense ...."
AFFIRMED.
OSTERHAUS, C.J., and NORDBY, J., concur.