Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-0868 _____________________________ DEONTREZ L. KITT, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Thomas V. Dannheisser, Judge. December 1, 2021 RAY, J. Deontrez L. Kitt appeals the circuit court’s order summarily denying his postconviction motion brought under Florida Rule of Criminal Procedure 3.850. For the reasons below, we affirm. Facts Kitt was charged with first-degree felony murder and armed burglary. He and codefendant Anthony Wilson were tried together. Another codefendant, Trevon Nelson, testified that on the night of the offenses, Kitt hatched a scheme for Nelson, Deavis Saulsberry, and Wilson to rob the victim because Kitt believed the victim would have money and drugs. All four men wore gloves and three of them were armed with firearms. After confronting the victim at the backdoor of his home, they forced him inside. A search of the house only turned up a handful of drugs. Frustrated, the men decided to hold the victim for ransom. They bound the victim with duct tape and put him in the trunk of his fiancée’s white Buick. Saulsberry and Wilson drove the Buick from the scene while Kitt and Nelson followed in Kitt’s black Monte Carlo. Before they reached their next destination, the victim managed to get out of the trunk and run away. Saulsberry jumped out of the Buick, chased him, and shot him. Afterward, the four men went to Sanders Beach and abandoned the Buick. Then Saulsberry and Wilson joined Kitt and Nelson in the black Monte Carlo and returned to Kitt’s house. The victim’s fiancée testified consistently with this account. She described Kitt as the leader of the men who invaded her house. They roused her from her bed and shepherded her and the victim’s four children into the living room. There, they demanded to know where they could find money and drugs. Kitt specifically described a box that he believed held something of value. During this questioning, he held a gun in the fiancée’s face, threatening to shoot her, and struck the victim with his gun. Ultimately, the men ransacked her home and did not find what they were looking for. Kitt asked the victim if anyone would give up anything for his return. Based on his response, the men duct taped his wrists and mouth and took him from the home. They took the keys to both cars and the fiancée’s cellphone with them. In parting, Kitt told the fiancée that she would see the victim again if she did not call the police. After checking to make sure the men were gone and locking the backdoor, the fiancée got the children dressed and went door to door until she found a neighbor who would let her use the phone. She called her mother and the victim’s mother first. By that time, she was too upset to be coherent, so the neighbor called 911 for her. Although the victim’s fiancée had never met any of the perpetrators before, she could identify Nelson, Kitt, and Wilson in separate police lineups. She also identified Kitt and Wilson in court. Her identification of Kitt was corroborated by DNA evidence. Police found a glove near the area where the victim’s body was discovered. Forensic testing revealed Kitt’s DNA on the glove. 2 Additionally, cellphone records confirmed that the four codefendants were communicating with each other before the offenses and were at or near the scenes involved in the robbery, kidnapping, and murder. Eyewitnesses also testified that they saw the victim jump out of a white Buick and flee before another man got out of the same car and shot him. Based on this evidence, the jury convicted Kitt as charged. He was sentenced to concurrent life sentences. His convictions and sentences were affirmed on direct appeal. Kitt v. State, 260 So. 3d 462 (Fla. 1st DCA 2018). A few years later, Kitt filed the instant postconviction motion, raising seven claims: five ineffective assistance of counsel claims, one cumulative error claim, and one newly discovered evidence claim. The circuit court issued an order advising the parties of its intention to take judicial notice of the transcript of Wilson’s postconviction evidentiary hearing, which was referenced in Kitt’s motion. Kitt responded that he had no objection. The circuit court summarily denied Kitt’s motion for postconviction relief. This timely appeal follows. Analysis We review the summary denial of a postconviction motion de novo. Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st DCA 2015). When a postconviction motion is summarily denied, reversal is required unless the claims are either facially invalid or conclusively refuted by the record. Fla. R. App. P. 9.141(b)(2)(D); Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). In the instant postconviction motion, the first five claims argue ineffective assistance of counsel. To show ineffective assistance of counsel, a defendant must allege (1) the specific acts or omissions of counsel that fell below a standard of reasonableness under prevailing professional norms and (2) the defendant’s case was prejudiced by these acts or omissions such that the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 690–92 (1984). In Kitt’s first claim, he argues that defense counsel was ineffective for failing to strike four biased jurors from the venire. But the record reflects that after the jury was selected, Kitt 3 engaged in a sworn dialogue with the trial court. The trial court asked if he had conferred with his attorney during jury selection. Kitt agreed that he had. The trial court asked whether he was satisfied with the jury that had been selected, and Kitt answered in the affirmative. Kitt cannot now go behind these sworn representations to seek postconviction relief. See Kelley v. State, 109 So. 3d 811, 813 (Fla. 1st DCA 2013) (“[A] defendant who, like Appellant, personally affirms his acceptance of the jury panel will not be heard to complain in a postconviction motion that his counsel was ineffective for allowing a biased juror to serve on his jury.”). In Kitt’s second claim, he argued that defense counsel should have objected to three improper golden rule arguments during the State’s opening statement and closing arguments and moved for a mistrial. “ ‘Golden rule’ arguments are arguments that invite the jurors to place themselves in the victim’s position during the crime and imagine the victim’s suffering.” Braddy v. State, 111 So. 3d 810, 842 (Fla. 2012) (quoting Mosley v. State, 46 So. 3d 510, 520 (Fla. 2009)). Such arguments are improper “because they depend upon inflaming the passions of the jury and inducing fear and self interest.” Bocher v. Glass, 874 So. 2d 701, 703 (Fla. 1st DCA 2004). While golden rule arguments are prohibited, a prosecutor may argue “ ‘[a] common-sense inference as to the victim’s mental state’ ” so long as he or she does not cross the line into asking the jury to “imagine the victim’s final pain, terror and defenselessness.” Victorino v. State, 127 So. 3d 478, 493 (Fla. 2013) (quoting Merck v. State, 975 So. 2d 1054, 1064 (Fla. 2007)). A determination as to whether an argument is an improper golden rule argument is not limited to the words spoken. Instead, a reviewing court should consider the purpose of the argument, the evidence that supports it, the context in which it was made, and whether it is a fair response to arguments advanced by the defense. Jackson v. State, 250 So. 3d 844, 848–49 (Fla. 3d DCA 2018). Here, two of the challenged remarks occurred during opening statements. The prosecutor explained how the victim, his fiancée, and his four children were ushered into the living room while armed men demanded money and drugs at gunpoint. After describing how the victim and his fiancée tried to convince the men that they did not have any money or drugs, the prosecutor added, 4 “You can imagine how the children were reacting.” The prosecutor then moved on to discussing how the four men searched the house. Later, the prosecutor explained the chaos the victim’s fiancée had to contend with before she could seek help, left alone with four frightened children and no car keys or cellphone. The prosecutor stated, “As you can imagine [the victim’s fiancée] and the children are terrified. They’re trying to figure out what to do.” The third challenged remark occurred during closing arguments. In explaining the delay between the 911 call reporting shots fired and the 911 call made by the victim’s fiancée, the prosecutor highlighted how the fiancée waited to make sure that the men had left, then had to get the children dressed. He stated: You can imagine what the children are like. [The victim] was father to all of these children. They just sat there in the living room and watched their father beaten, watched him bloodied, watched him be duct taped, watched him taken out the door by men with guns, and [the victim’s fiancée has] got to herd all these kids in the condition that they’re in and get them up and somehow get them out the door and find a neighbor, and she does. None of these three arguments invited the jurors to place themselves in the position of the victim, the victim’s fiancée, or the children. The first statement came on the heels of the prosecutor explaining what happened after four men forced their way inside the victim’s home and rounded up his family. The mention of “imagining” the children’s reactions, in this context, encouraged the jurors to picture the scene, not put themselves in the children’s shoes. Similarly, the second and third remarks about the reactions of the children and the fiancée after the men left were made in the context of explaining the delay between the offenses and the fiancée calling 911. The prosecutor was conveying the difficulty of rounding up four frightened young children in their pajamas to get them dressed and over to a neighbor’s house to seek help. Notably, during the fiancée’s cross-examination, the defense had asked questions suggesting that she ransacked the house herself and may have been involved in the offenses. The prosecutor mentioned 5 defense counsel’s suspicion that the fiancée ransacked the house before launching into the third argument about the chaos the fiancée had to contend with before she could seek help. As the purpose of the arguments was not to urge the jury to empathize with the children’s fear, but to understand the fiancée’s actions, these arguments were not improper. See Williams v. State, 689 So. 2d 393, 399 (Fla. 3d DCA 1997) (concluding that an argument about how traumatic it was for a six-year-old to witness his parent’s death was not an improper golden rule argument meant to incite the jury to decide the case based on emotion; instead, it was intended to explain the child’s confusion about the color of the vehicle he had seen). Even if these arguments could be considered improper, Kitt cannot show prejudice. “If ‘improper comments by a prosecutor do not constitute reversible error, the defendant “cannot demonstrate the prejudice requisite for a successful ineffective assistance of counsel claim” ’ relating to counsel’s failure to object to the comments.” Taylor v. State, 120 So. 3d 540, 551 (Fla. 2013) (quoting Lugo v. State, 2 So. 3d 1, 17 (Fla. 2008)). To show entitlement to a new trial based on improper prosecutorial comments, such comments must: either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise. Walls v. State, 926 So. 2d 1156, 1167 (Fla. 2006) (quoting Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994)). Here, the first and second comments were brief and limited. While the third was more detailed, as discussed above, the evidence against Kitt was strong. Not only did one of his codefendants implicate him, but the victim’s fiancée identified him, and his DNA linked him to the offenses. His involvement was also confirmed by information gleaned from cellphone records. As a result, this claim was properly denied. Kitt’s third claim argued that his attorney was ineffective for failing to seek severance of his trial from that of his codefendant 6 Wilson. He alleged that Wilson’s trial strategy was to implicate Kitt in the shooting and impeach the testimony of Nelson, who gave testimony favorable to Kitt that placed himself and Kitt in the black Monte Carlo at the time of the shooting. Kitt also claimed that Wilson incriminated him in his recorded statement, which the State played at trial. He urged that counsel’s omission caused the trial court to reject his request for an independent act instruction. This Court has already explained that Kitt was not entitled to an independent act instruction because the victim’s death was a foreseeable consequence of the events he set in motion when he participated in the armed robbery and kidnapping. Kitt, 260 So. 3d at 463 (“Appellant claims that the trial court abused its discretion by denying his request for a jury instruction on the independent act doctrine because the murder of the victim was outside the common plan to rob and then kidnap the victim for ransom. However, it was unquestionably foreseeable that someone could be shot or killed during the events set in motion by Appellant.”). Thus, his entitlement to the instruction, or lack thereof, was not dependent on evidence that he personally shot the victim. Indeed, eyewitnesses to the shooting described Saulsberry as the shooter, as did Nelson. And the record refutes the suggestion that Wilson incriminated Kitt. Wilson did not testify at trial, but his recorded statement was played for the jury. In that statement, he claimed to have been elsewhere at the time of the offenses. He told the police he knew nothing about what had happened. Wilson was pressed on whether his cellphone records would show that he was talking to Kitt and Nelson, whom the police believed to be involved in the offenses. Wilson responded that talking to someone on the phone did not mean that he was also involved. This statement did not incriminate Kitt. Under these circumstances, this claim was properly denied, as Kitt’s factual allegations are conclusively refuted by the record. Kitt’s fourth claim argued that his attorney was ineffective for failing to elicit testimony from Nelson that neither he nor Kitt had planned to kidnap or shoot the victim. He asserted that this testimony would have supported the request for the independent act instruction, and the granting of this request could have changed the jury’s verdict. As discussed in the facts, Nelson testified that Kitt came up with the idea to rob the victim of money 7 and drugs. Both Nelson and the victim’s fiancée testified to Kitt’s active involvement in the robbery and kidnapping of the victim. As discussed in Kitt’s direct appeal and above in connection with ground three, his involvement in the robbery and kidnapping negated his request for the independent act instruction, not any controversy about whether his original plan was to kidnap or shoot the victim. Thus, Kitt has not shown a deficiency on the part of counsel or any resulting prejudice. In Kitt’s fifth claim, he argued that his attorney was ineffective for failing to present the testimony of Stacey Gulley, who could have testified that the victim’s fiancée told her that she could not identify the intruders. He alleged that Gulley could have also described a text message exchange with the victim’s fiancée in which Gulley sent her a picture of Kitt and the fiancée responded that he was not involved in the offenses. Kitt claimed that this testimony would have impeached the fiancée’s in-court and out-of-court identifications. In denying this claim, the circuit court took judicial notice of Gulley’s testimony from the postconviction evidentiary hearing in Wilson’s case. During that hearing, Gulley acknowledged that she did not speak to the victim’s fiancée about the offenses until after the fiancée had spoken to the police. By that time, the fiancée had provided police with detailed descriptions of her assailants and identified them in the photo lineups. The alleged text message exchange also occurred after the fiancée provided descriptions and identifications to the police. Later, Gulley, who described herself as someone who “play[s] detective,” took it upon herself to pepper the fiancée with questions about her assailants’ descriptions. The fiancée insisted that she knew nothing and told her to stop asking about it. Gulley’s testimony suggested that the fiancée was annoyed by her questioning. Gulley also explained that while she has six biological sons, she has many young men that she calls her “boys” because she thinks of them as her children. She testified that Kitt was one of her “boys.” Given this information, Kitt cannot show that counsel performed deficiently or that he suffered any resulting prejudice. The sole value of Gulley’s testimony was to impeach the identifications made by the victim’s fiancée. That value was 8 diminished by Gulley’s bias in Kitt’s favor and the fact that the fiancée may have been dismissing Gulley’s questions out of irritation. In any event, by the time Gulley began badgering the victim’s fiancée with questions about the offenses, the victim’s fiancée had described the assailants to the police and identified three of them in a photo lineup. She testified to those descriptions at trial and her identifications were consistent with the DNA evidence and Nelson’s testimony, as well as the cellphone records. Because there is no reasonable probability that Gulley’s testimony would have changed the outcome of Kitt’s trial, this claim was properly denied. In Kitt’s sixth claim, he argued that the cumulative effect of counsel’s errors deprived him of a fair trial. Given that his claims of ineffective assistance are all meritless for the reasons discussed above, his claim of cumulative error must also fail. See Barnhill v. State, 971 So. 2d 106, 118 (Fla. 2007). In Kitt’s seventh claim, he argued that he had newly discovered evidence that Nelson had recanted his testimony. He alleged that Nelson has since testified during Wilson’s postconviction evidentiary hearing that the State coerced him into fabricating his trial testimony by threatening his family. The test for newly discovered evidence consists of two prongs. First, a defendant must show that “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence” and the claim is raised “within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence.” Fla. R. Crim. P. 3.850(b)(1). Second, “the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial.” Wyatt v. State, 71 So. 3d 86, 99 (Fla. 2011). “To reach this conclusion the trial court is required to ‘consider all newly discovered evidence which would be admissible’ at trial and then evaluate the ‘weight of both the newly discovered evidence and the evidence which was introduced at the trial.’” Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (quoting Jones v. State, 591 So. 2d 911, 916 (Fla. 1991)). 9 Here, while Kitt satisfied the first prong of the analysis, he cannot satisfy the second. The circuit court took judicial notice of the transcripts from Wilson’s postconviction evidentiary hearing. Those transcripts reflect that Nelson only recanted his testimony about Wilson’s participation in the offenses. Nelson explained that when the police asked him to identify the man with dreadlocks who was involved in the robbery, kidnapping, and murder, he gave them Wilson’s name because Wilson was the first person he could think of who had dreadlocks. But Nelson still acknowledged his own guilt, saying, “I’m most definitely guilty, you know, of my crimes.” In fact, he testified that he invited Wilson to participate in the robbery and Wilson refused. Nor did he recant his testimony about Kitt or Saulsberry. Instead, he indicated that he believed that Kitt and Saulsberry called him about the planned robbery while he was at Wilson’s house. He also admitted that he had given sworn testimony about Wilson’s involvement in the offenses four times before his recantation. At any rate, given the testimony of the victim’s fiancée, her identification of Kitt, and the DNA evidence of his participation, Nelson’s recantation would not result in acquittal on retrial. Conclusion Given the information discussed above, the circuit court did not err in determining that Kitt’s postconviction claims were conclusively refuted by the record and the applicable law. We therefore affirm. AFFIRMED. WINOKUR and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Deontrez L. Kitt, pro se, Appellant. 10 Ashley Moody, Attorney General, Tallahassee, for Appellee. 11