Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3764 _____________________________ ORTAVIOUS DEVON WILSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge. August 7, 2020 PER CURIAM. This is an appeal from the denial of a motion for postconviction relief following an evidentiary hearing. We affirm the trial court’s ruling in all respects and write only to address Appellant’s claim that defense counsel was ineffective for failing to object when the prosecutor commented on a partially inaudible video recording during the State’s closing argument. I. At Appellant’s trial on charges of second-degree felony murder and robbery with a firearm, the State presented the following evidence. During the early morning hours of January 9, 2011, the victim was in a parking lot across from the Blue Bar in Pensacola when he was robbed by Appellant and Eddie Peterson, who were both carrying guns. During the robbery, Peterson hit the victim across the head with the gun, causing the victim to fall into his vehicle, where he grabbed his own gun from the glove compartment and shot Peterson. The victim then ran from the scene and made contact with two deputies of the Escambia County Sheriff’s Office. The victim told them that he shot someone who was trying to rob him. One of the deputies took custody of the victim’s gun. During this same period, a third deputy was working off-duty at a Circle K across from the Blue Bar when he heard a gunshot in an adjacent parking lot. The deputy responded to the parking lot and discovered Peterson lying on the ground with two other men— Appellant and Tavares Grimsley—leaning over him. Both men were very upset. Appellant and Grimsley were placed in the back of a patrol vehicle, where their conversation was recorded on video. The video recording was admitted into evidence, without objection, and played for the jury. A crime scene technician responded to the scene and recovered two firearms—a revolver underneath a red SUV, and a semiautomatic under Peterson’s body. Peterson died of a gunshot wound to the chest, and a spent cartridge recovered from the scene was fired from the victim’s gun. A crime laboratory analyst with the Florida Department of Law Enforcement tested the DNA obtained from the grip of the revolver found under the red SUV and determined that it contained a “mixture of at least four individuals,” one of whom was Appellant. At the conclusion of the trial, the jury returned a verdict finding Appellant guilty as charged on both counts. Appellant subsequently filed a motion for new trial, claiming that the State’s closing argument included comments interpreting inaudible portions of the recorded conversation between Appellant and Grimsley in the back of the patrol car. The trial court denied the motion for new trial, adjudicated Appellant guilty, and sentenced him as a prison releasee reoffender to concurrent terms of life in prison with a ten-year mandatory minimum. On direct appeal, this court affirmed Appellant’s convictions and sentences without opinion. Wilson v. State, 130 So. 3d 232 (Fla. 1st DCA 2014) (table). 2 Appellant subsequently filed a motion for postconviction relief, alleging, among other things, that defense counsel was ineffective for failing to object to the prosecutor’s “oral interpretation” of the inaudible portions of the video recording of the conversation between Appellant and Grimsley. The trial court held an evidentiary hearing on the motion. At the hearing, defense counsel testified that the video recording of the conversation between Appellant and Grimsley was introduced into evidence at Appellant’s trial. She acknowledged that there was a discussion between the prosecution and the defense that each side would argue what they believed was said on the video. However, based on legal research conducted after the trial, defense counsel concluded that she should have objected when the prosecutor gave his interpretation of what was said in the video because the recording was inaudible. As a result, she filed a motion for new trial on the ground that the prosecutor’s oral interpretation of the inaudible recording was improper and affected the outcome of the trial. After the hearing, the trial court entered an order denying Appellant’s motion for postconviction relief. Specifically, the court found that defense counsel was not ineffective for failing to object to the prosecutor’s closing argument because the prosecutor was permitted to offer an interpretation of the evidence during closing argument. The court also found that defense counsel made a strategic decision that both sides would offer their competing interpretations of the video evidence during closing arguments. This appeal followed. II. On a motion for postconviction relief alleging ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was deficient, i.e., it fell below an objective standard of reasonableness; and (2) that counsel’s deficient performance prejudiced the defense, i.e., there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). When the trial court rules on an ineffective assistance of counsel claim after an evidentiary hearing, the 3 appellate court must defer to the trial court’s findings of fact to the extent they are supported by competent substantial evidence, but reviews de novo the trial court’s conclusions as to whether counsel’s performance was deficient and prejudiced the defendant. Bruno v. State, 807 So. 2d 55, 62 (Fla. 2001). In this case, Appellant claims that the trial court committed reversible error in denying his claim that defense counsel was ineffective for failing to object to the State’s closing argument commenting on the inaudible portions of the video recording. “Partial inaudibility or unintelligibility is not a ground for excluding a recording if the audible parts are relevant, authenticated, and otherwise properly admissible.” Commerford v. State, 728 So. 2d 796, 798 (Fla. 4th DCA 1999). However, [w]here . . . a partially inaudible tape recording is appropriately played for the trier of fact, the case law is clear that neither a written nor oral interpretation of the inaudible portions of the tape recording is admissible unless such interpretation is properly authenticated by a person having personal knowledge of the contents of the tape recording or by an expert witness skilled in interpreting inaudible tape recordings. Wilson v. State, 680 So. 2d 592, 594 (Fla. 3d DCA 1996). Contrary to Appellant’s assertion, this restriction applies only to a written or oral interpretation offered as evidence. As the jury was repeatedly reminded during Appellant’s trial, closing arguments are not evidence. See Jenkins v. State, 189 So. 3d 866, 870 (Fla. 4th DCA 2015) (explaining that the statements of counsel during opening statements and closing arguments are not evidence). In fact, the court explicitly instructed the jury that the parties’ arguments were not evidence. It is presumed that the jury followed this instruction. See Koelemij v. State, 285 So. 3d 376, 380 (Fla. 1st DCA 2019) (“Absent a finding to the contrary, juries are presumed to follow the instructions given them.” (quoting Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 942 (Fla. 2000))). During closing arguments, both the prosecutor and defense counsel were permitted to offer their interpretations of the 4 evidence admitted at trial, which included the video recording. See Patrick v. State, 104 So. 3d 1046, 1065 (Fla. 2012) (“Closing arguments allow the State and defense to review the evidence and to explicate those inferences that may reasonably be drawn from the evidence.”). Because there was no legal basis to object to the prosecutor’s closing argument, defense counsel was not ineffective for failing to make a meritless objection. See King v. State, 260 So. 3d 985, 1010 (Fla. 2018) (holding that “trial counsel cannot be deemed ineffective for failing to object to closing arguments that are proper”). Moreover, the trial court properly concluded that defense counsel made a reasonable strategic decision to allow both sides to offer their competing interpretations of the video recording. We reject Appellant’s assertion that defense counsel’s decision was not reasonable because counsel testified that she should have objected to the State’s closing argument. Defense counsel’s after-the-fact conclusion was based on an erroneous interpretation of the case law. As previously explained, both sides were allowed to comment on the contents of the video recording that was in evidence. The parties’ competing interpretations of this video evidence was not itself evidence. It was up to the jury to determine what was actually said on the video based on the jury’s examination of the evidence. Thus, defense counsel’s initial decision to allow both sides to offer their competing interpretations of the video recording was objectively reasonable. See Jones v. State, 845 So. 2d 55, 65 (Fla. 2003) (“Reasonable strategic decisions of trial counsel should not be second-guessed by a reviewing court.”). III. The trial court properly found that defense counsel was not ineffective for failing to object to closing arguments that were proper. Defense counsel’s initial decision to allow both sides to offer their competing interpretations of the video recording during closing arguments was objectively reasonable. Accordingly, we affirm the denial of Appellant’s motion for postconviction relief. AFFIRMED. RAY, C.J., and B.L. THOMAS and JAY, JJ., concur. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee. 6