Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1334 _____________________________ JIM WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. W. Joel Boles, Judge. February 12, 2020 ROWE, J. Jim Edward Williams appeals an order summarily denying his motion for postconviction relief challenging his 2015 judgment and sentence for first-degree premeditated murder. Because Williams’ claims were conclusively refuted by the record or legally insufficient, we affirm. Facts The victim was rumored to have robbed several drug dealers in the Mayfair community. Williams and his friends knew of the robberies and decided to even the score with the victim. On April 14, 2014, the victim and Taris Tolliver texted Pierre Blankenship to sell crack cocaine to him. Blankenship was with Javon Galloway and Reginald Booker when he received the text message. Booker then called Williams, Gerald Parsons, and Terrance Hartley because Booker knew the three men were angry with the victim. Booker used Blankenship’s phone to set up a drug buy from the victim in Mayfair. The victim, Tolliver, and Anthony Sellers drove to Mayfair. Tolliver drove the car. The victim was in the front passenger seat and Sellers was in the back seat. Tolliver spotted Booker, Blankenship, and Galloway in another car. She followed their car until it stopped in front of an abandoned house. Tolliver, Booker’s former girlfriend, confronted Booker about dating another girl, and the two engaged in a physical altercation. During the altercation, at least three men approached the car where the victim was sitting. One man walked toward the car and tried to hit the victim with a gun. Shots were fired. The victim took cover. He climbed into the driver’s seat and tried to drive away. But two bullets struck the victim. He lost control of the car and crashed into a house. The victim died from his wounds. Witnesses identified Williams as the shooter. Procedural History A jury found Williams guilty of first-degree premediated murder. The trial court sentenced Williams to life imprisonment with a twenty-five-year mandatory-minimum. This Court affirmed his conviction and sentence. Williams v. State, 189 So. 3d 766 (Fla. 1st DCA 2016) (unpublished table decision). The mandate issued on May 11, 2016. Williams filed his first postconviction motion on September 5, 2017. The trial court struck the motion and gave Williams sixty days to amend the motion. Williams filed an amended motion on March 8, 2018, beyond the sixty days permitted, but the trial court chose to treat the late filed motion as timely. Williams filed two more amended motions without obtaining leave of court. The trial court denied the motions filed after the March 8, 2018, motion as 2 untimely and also denied the six claims raised in the March 8 motion. 1 This appeal follows. Analysis We review an order summarily denying a postconviction motion de novo. Corbett v. State, 267 So. 3d 1051, 1055 (Fla. 1st DCA 2019). To prevail on a claim of ineffective assistance of counsel, the appellant must show that counsel’s performance was outside the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because without the conduct, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984); Spencer v. State, 842 So. 2d 52 (Fla. 2003). Claim One Williams alleges that his counsel was ineffective for not objecting during closing arguments when the prosecutor made two statements. First, the prosecutor argued that Javon Galloway “gave a detailed statement to law enforcement that’s over 100 pages long.” Second, the prosecutor argued that Galloway “was there and he saw what happened and his identification of Mr. Williams as one of the people that approached the passenger side was accurate, and reliable and supported by the other evidence.” To establish that he was prejudiced by the prosecutor’s comments, Williams must show that the statements deprived him of a fair and impartial trial, materially contributed to the conviction, fundamentally tainted the trial, or were so inflammatory that they might have influenced the jury to reach a 1 We affirm without discussion the portion of the order denying the two motions as untimely. See Nelson v. State, 977 So. 2d 710, 711 (Fla. 1st DCA 2008) (“Although a trial court in its discretion may grant more than one opportunity to amend an insufficient claim, Spera [v. State, 971 So. 2d 754 (Fla. 2007),] does not mandate repeated opportunities.”). 3 more severe verdict than it would have otherwise. Walls v. State, 926 So. 2d 1156, 1165 (Fla. 2006). Both of the prosecutor’s comments were permissible. The prosecutor relied on Galloway’s statement to law enforcement to rebut Galloway’s attempt to recant at trial. Contrary to Williams’ claim, the statement was admitted into evidence, and the prosecutor gave an accurate summation of evidence. Nor did the prosecutor improperly bolster Galloway’s testimony. Because Williams’ counsel had no legal reason to object to the prosecutor’s closing argument, the trial court properly denied this claim. Taylor v. State, 120 So. 3d 540, 551 (Fla. 2013) (holding that defense counsel cannot be considered ineffective for failing to object to proper arguments). Claim Two Williams next alleges that counsel was ineffective for failing to call an expert witness on firearms. He argues that an expert would have challenged the State’s theory about the location of the shooter and about which one of the co-defendants fired the fatal shot. The trial court properly denied this claim because Williams was charged by an indictment as a principal in the victim’s first- degree murder. Under the principal theory, “those who actually commit the offense and those who aid, abet, or procure the commission of an offense are treated the same regardless of their role in the commission of the offense or whether they are present at the scene during the final acts of the offense.” Connolly v. State, 172 So. 3d 893, 912 (Fla. 3d DCA 2015). Even if the firearm expert testified that Williams was not the one to fire the fatal shot, there was still sufficient evidence to convict Williams as a principal to first-degree murder. This claim was properly denied. Claim Three Next, Williams asserts that his counsel was ineffective for not attacking the credibility of some of the State’s witnesses. He argues that all the State’s witnesses had criminal pasts or were involved in criminal activities and that his counsel should have cross-examined the witnesses to expose their biases and 4 prejudices. The trial court properly denied this claim because it is inherently incredible. The State called twenty-five witnesses. Among them were eyewitnesses from the neighborhood where the shooting occurred, law enforcement officers, and investigators. Nothing in the record supports Williams’ claim that every one of the twenty-five witnesses had a criminal history. And the record shows that defense counsel attacked the credibility of some witnesses by raising their criminal history. Thus, the trial court properly rejected this claim. Capalbo v. State, 73 So. 3d 838, 840 (Fla. 4th DCA 2011) (“A postconviction court is not required to hold hearings on absurd claims or accept as true allegations that defy logic, and which are inherently incredible.”). Claim Four Williams alleges that counsel was ineffective for failing to investigate and prepare a proper defense. He argues that his counsel was ineffective for failing to: hire or consult with a firearms expert, challenge Tolliver’s testimony, prepare adequately for trial, and challenge a juror who claimed that she had a conflict. The trial court properly denied this claim as insufficiently pleaded. The matter of the firearms expert was addressed in Claim Two. As to the failure to challenge Tolliver’s testimony, the record refutes Williams’ allegation. Defense counsel cross-examined and challenged Tolliver’s biases and testimony. The record also shows that counsel was adequately prepared for trial because counsel attacked and confronted witnesses about whether they had seen Williams fire a weapon or attack the victim in a manner consistent with the charges against him. The claim of counsel being ineffective for failing to strike a potential juror is legally insufficient because Williams does not allege that the person served on the jury. See Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007) (holding that “where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased”). This claim was properly denied. 5 Claim Five Williams next claims that the State committed a Giglio 2 violation when it knowingly presented the perjured testimony of Tolliver. He alleged that Tolliver’s testimony at the trial of Williams’ co-defendant conflicted with her testimony at Williams’ trial. To show a violation of Giglio, Williams had to show: “(1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material.” Hurst v. State, 18 So. 3d 975, 991 (Fla. 2009). While there were some differences in the testimony Tolliver gave at Williams’ trial and at his co-defendant’s trial, nothing in the record suggests that the testimony given was false. Nor does the record show that the prosecutor was aware of any false testimony by Tolliver. For these reasons, Williams’ claim was properly denied. Williams also argues that the State committed a Brady3 violation. To prove such a violation, Williams must show that the State suppressed exculpatory or impeachment evidence, that the evidence was material, and that there was a reasonable probability of a different outcome had that evidence been disclosed to the jury. Kilgore v. State, 55 So. 3d 487, 506-07 (Fla. 2010). Williams fails to provide evidence that the State was aware of any exculpatory evidence and knowingly withheld it from him. Nor does he show a reasonable probability that had the jury heard the discrepancies in Tolliver’s testimony, it would have made a material difference in his case. Thus, the trial court properly denied this claim. Claim Six Finally, Williams raises a claim of cumulative error. Because his other claims lack merit, this claim fails. Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003) (holding that a cumulative error claim fails where individual claims of error alleged are either procedurally barred or without merit). This claim was properly denied. 2 Giglio v. United States, 405 U.S. 150 (1972). 3 Brady v. Maryland, 373 U.S. 83 (1963). 6 Because Williams’ claims lack merit, we affirm the trial court’s summary denial of the motion for postconviction relief. AFFIRMED. WINOKUR and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jim Williams, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 7