Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-335 _____________________________ VICTOR VAUGHAN REED, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge. August 18, 2021 B.L. THOMAS, J. Appellant challenges the trial court’s denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which raises fourteen claims for relief. We affirm. On October 12, 2017, a jury convicted Appellant of sexual battery on a victim twelve years of age or older with a deadly weapon (counts I and II), and sexual battery on a victim twelve years of age or older with threat of force (as a lesser-included offense to sexual battery with a deadly weapon) (count III). Appellant was sentenced to life in prison on counts I and II, and thirty years in prison on count III, with all counts to run concurrently. On appeal, this Court affirmed Appellant’s convictions and sentences. Reed v. State, 276 So. 3d 278 (Fla. 1st DCA 2019). The events giving rise to Appellant’s convictions occurred in 2007 and 2008 and involved two separate victims. The first victim went into downtown Jacksonville during the early morning hours of May 18, 2008, to try to “flip some weed.” Appellant approached the victim in a van and asked her if she needed a ride. She accepted the ride, but noticed they did not go in the direction of her destination. Eventually, Appellant stopped the van, held a knife to the victim’s throat, and told her he “wanted oral sex.” The victim told Appellant she did not want to perform oral sex, so he pulled her onto a mattress in the back of the van where he forced the victim to have oral and vaginal sex with him. When Appellant was finished with the crimes, he “pulled his britches back together, pushed [the victim] to the curb, got back in the van and left.” The victim found her way to a hospital where she reported the assault to hospital staff and law enforcement. A sexual assault nurse conducted an examination on the victim and determined that she sustained injuries consistent with a sexual assault. The second victim went out on foot to buy fast food on the evening of October 6, 2007. Appellant approached her and offered her a ride home, which she accepted. Appellant told the victim he had a quick errand to run, and they ended up in a vacant lot. Appellant threatened her with a gun and told her to remove her clothing. Appellant then put the gun down and forced the victim to have sexual intercourse with him. After the assault, Appellant took cash from the victim’s purse and told her to get out of the car. The victim borrowed someone’s phone and reported the assault to law enforcement. Appellant stipulated that a sexual assault kit was collected from both victims as well as three additional collateral crime witnesses. Semen matching Appellant’s DNA profile was found in each of the victims’ sexual assault kits. Appellant testified in his own defense and stated that he never raped anyone and was being falsely accused. He believed the women made up similar stories because he picked them up as prostitutes and never paid them with drugs. 2 Appellant raised fourteen claims in his motion for postconviction relief, all of which were properly denied. Appellant raised claims alleging ineffective assistance of counsel, trial court error for failure to declare a mistrial, lack of subject matter jurisdiction, insufficiency of the State’s notice of intent to rely on Williams rule evidence, a Brady violation, and trial court error for improper reliance on police reports. Ineffective Assistance of Counsel The majority of Appellant’s postconviction claims concern ineffective assistance of counsel. To prove 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) that 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). To prove the first prong, “[t]he defendant must allege specific acts 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 demonstrate 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. Ground One Appellant argued trial counsel was ineffective for failing to make the proper objection to the State’s use of peremptory challenges to strike African American jurors from the jury pool. A claim of ineffective assistance of counsel based upon counsel’s failure to object to the State’s use of peremptory challenges is not cognizable in a postconviction motion. See Jones v. State, 10 So. 3d 140, 141–42 (Fla. 4th DCA 2007) (holding that counsel’s failure to object to the State’s peremptory striking of minority jurors was not a cognizable claim pursuant to rule 3.850 because it could not be shown that the jury that served was biased or that the strikes had any effect on the fairness of the trial). 3 Ground Two Appellant argued that the trial court was ineffective for opening the door to the admission of prior bad acts during direct examination by asking Appellant about six prior felonies. Appellant’s claim is refuted by the record. The trial court determined that Williams rule evidence of Appellant’s prior sexual batteries was admissible during trial. Additionally, during pre- trial proceedings, Appellant affirmed under oath that he stipulated to the admissibility of certain evidence and was fully in agreement to the stipulations. Appellant affirmed that he had signed each of the guilty plea stipulations and that he was fully in agreement that the guilty pleas were admissible. Thus, trial counsel was not ineffective for failing to make a meritless objection. See Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008) (“Counsel cannot be deemed ineffective for failing to make a meritless objection.”). Furthermore, to the extent Appellant alleged that he was prejudiced by the jury seeing the unredacted plea agreement, his argument is meritless and refuted by the record. On cross- examination, the State asked Appellant if he pled guilty because he was guilty. Appellant responded that he did not; he pled because it was in his best interest. The State showed Appellant his plea form, over counsel’s objection, to refute his testimony. The unredacted form was never entered into evidence. Ground Three Appellant raised multiple arguments that trial counsel failed to properly prepare him to testify. He argued that trial counsel failed to advise him not to testify to inadmissible hearsay, did not adequately prepare him to testify regarding his release from jail, improperly allowed the introduction of his prior guilty pleas, and the cumulative error of the previous claims worked together to make his decision to testify involuntary. All of Appellant’s arguments are meritless. First, Appellant argued that trial counsel failed to properly advise him not to testify to inadmissible hearsay. Although 4 Appellant made multiple statements during his testimony regarding what other individuals allegedly said to him, this issue was quickly addressed during a three-minute recess. Appellant is unable to demonstrate prejudice because he cannot demonstrate that this brief recess altered the outcome of his trial. Additionally, the State presented overwhelming evidence of Appellant’s guilt. Both witnesses testified that Appellant sexually assaulted them and threatened them with a deadly weapon. A sexual assault nurse testified that the first victim sustained injuries consistent with a sexual assault. Finally, Appellant stipulated that his DNA was present in both victims’ sexual assault kits. Based on the evidence, Appellant cannot demonstrate that, but for the alleged failure of counsel to advise him regarding hearsay testimony, the outcome of his trial would have been different. See Strickland, 466 U.S. at 694. Second, Appellant argued that trial counsel did not adequately prepare him to testify regarding his release from jail, which allowed the State to cross-examine him on collateral crime matters. As outlined above, Appellant’s trial counsel did not open the door to allowing the State to cross-examine him on collateral crime matters. Additionally, the evidence introduced at trial was so overwhelming that Appellant cannot demonstrate that he was prejudiced by any alleged failure on the part of trial counsel. Third, Appellant argued trial counsel was ineffective for allowing the introduction of his prior guilty pleas and for failing to object to the State “wandering too far into the prior convictions and the impeachment attempts regarding [Appellant’s] plea.” As discussed above, Appellant stipulated to the admissibility of his prior pleas. Thus, any objection to the State’s question would have been meritless. See Hitchcock, 991 So. 2d at 361. As to Appellant’s claim that trial counsel should have objected to the State going too far into the prior convictions to impeach him, counsel objected to this line of questioning twice. Thus, counsel was not ineffective. See Turner v. State, 91 So. 3d 916, 918 (Fla. 2d DCA 2012) (“Counsel cannot be ineffective for failing to do something that counsel actually did.”). 5 Finally, Appellant argued that the above three subclaims, taken together in context, worked together to make his decision to testify involuntary. To show prejudice, a defendant must show that he would have proceeded differently if he had been properly advised. Rolon v. State, 72 So. 3d 238, 243 (Fla. 2d DCA 2011) (“[A]s with all other claims of ineffective assistance of counsel, the defendant must demonstrate prejudice, i.e., that he would have made a different decision about testifying had counsel properly discussed and advised him of his rights.”). Appellant has not argued or shown that he would have proceeded differently had trial counsel prepared him before trial. He merely stated that he “quite possibly” would not have testified. Additionally, Appellant gave sworn statements during a colloquy that he understood his right to testify. Appellant is bound by those statements. Kelley v. State, 109 So. 3d 811, 812–13 (Fla. 1st DCA 2013) (“A rule 3.850 motion cannot be used to go behind representations the defendant made to the trial court, and the court may summarily deny post-conviction claims that are refuted by such representations. Although this rule is most frequently applied in the context of sworn representations made by the defendant during a plea colloquy, it has also been applied to unsworn representations made by the defendant during the course of the trial.” (internal citations omitted)). Ground Four Appellant argued that trial counsel was ineffective for failing to “move for a blanket disqualification of the entire 4th Judicial Circuit State Attorney’s Office.” Appellant’s claim is speculative. He alleged that if trial counsel had filed a motion to disqualify, a new prosecutor “may” not have gone to trial or “probably” would have negotiated a lesser plea. Appellant offers no arguments or evidence to support this conjecture. “Postconviction relief cannot be based on speculation or possibility.” Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000); Connor v. State, 979 So. 2d 852, 863 (Fla. 2007) (“Relief on ineffective assistance of counsel claims must be based on more than speculation and conjecture.”). 6 Ground Five Appellant argued that trial counsel was ineffective for failing to secure an expert witness to testify regarding the side effects of one of the victim’s medications. Prior to trial, the State filed a motion in limine to prohibit any evidence, argument, or reference to the primary victim’s medical history, medical treatments, and prescribed medications. Trial counsel argued that the victim’s prior medical history was relevant to her mental state and that just because medication was prescribed, did not mean that the victim was not under the influence of it. The trial court granted the State’s motion in limine over trial counsel’s objection. Although unsuccessful, Appellant’s trial counsel cannot be deemed ineffective for failing to prevail on his argument. See Ferguson v. State, 593 So. 2d 508, 511 (Fla. 1992) (holding that “counsel’s argument does not fall to the level of deficient performance simply because it ultimately failed to persuade the jury”). Ground Six Appellant argued that trial counsel was ineffective for failing to file an adequate motion for judgment of acquittal. To state a facially sufficient claim of ineffective assistance of counsel for failing to make an adequate motion for judgment of acquittal, “a movant should state sufficient facts to show that ‘[h]e may very well have prevailed on a more artfully presented motion for acquittal based upon the evidence he alleges was presented against him at trial.’” White v. State, 977 So. 2d 680, 681 (Fla. 1st DCA 2008) (quoting Neal v. State, 854 So. 2d 666, 670 (Fla. 2d DCA 2003)). “In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’” Beasely v. State, 774 So. 2d 649, 657 (Fla. 2000) (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). Here, the State charged Appellant with three counts of sexual battery with a deadly weapon. To prove a prima facie case, interpreted in a light most favorable to the State, the State had to present evidence that Appellant engaged in nonconsensual sexual activity with the victims using the threat of force with a deadly 7 weapon. See § 794.011(3), (4)(b), Fla. Stat. (2020). As outlined above, the first victim testified that Appellant attacked her using a knife. The second victim testified that Appellant attacked her at gunpoint. In both situations, law enforcement personnel and sexual assault medical personnel verified the victims’ versions of events. Appellant himself admitted to having intercourse with the victims. Furthermore, Appellant’s DNA was collected from in and on the victims’ bodies within a short time following the incidents. Under these circumstances, no motion for judgment of acquittal, however “artfully” argued, could have prevailed. See White, 977 So. 2d at 681. Ground Seven Appellant argued trial counsel was ineffective for failing to call the victims of the collateral crime cases to testify live and for failing to depose the victims. Appellant’s claims are conclusory and insufficient. “[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)). Appellant merely alleged that the testimony of the Williams rule witnesses was vital to his consent defense. In essence, Appellant is attempting to argue that there would have been credibility or impeachment issues from live testimony. However, merely asserting that a deposition would have revealed reliability and impeachment issues is not sufficient to warrant postconviction relief. Ferrell v. State, 29 So. 3d 959, 969 (Fla. 2010) (affirming the trial court’s determination that trial counsel was not ineffective for failing to depose witnesses where the appellant failed to address the specific issues a deposition would have revealed and failed to establish the discovery of information unknown to trial counsel before trial). Appellant does not otherwise allege or attempt to demonstrate how live depositions of the collateral crime witnesses, to which he pled guilty to assaulting, would have been “vital” to a consent defense in the underlying criminal activity at issue. 8 Ground Eight Appellant argued that trial counsel was ineffective for failing to object to the admissibility of Williams rule evidence at trial. Appellant’s claim is refuted by the record. It is evident that counsel argued against the inclusion of this evidence. Trial counsel went through each of the cases on an individual basis and argued that they were not similar enough to be admissible. The record shows that, contrary to Appellant’s allegations, trial counsel argued zealously against the introduction of each case, citing factual differences and using case law to support the argument. Thus, counsel was not ineffective. See Turner, 91 So. 3d at 918 (“Counsel cannot be ineffective for failing to do something that counsel actually did.”). Ground Nine Appellant argued that the aggregate effect of counsel’s deficiencies warranted relief, but his argument is meritless. There must first be error before there can be cumulative error. See Barnhill v. State, 971 So. 2d 106, 118 (Fla. 2007) (“Because all of the allegations of individual legal error are without merit, a cumulative error argument based upon these errors must also fail.”); see also Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003) (holding that a cumulative error claim must fail where individual claims of error alleged are either procedurally barred or without merit). Because none of Appellant’s individual claims of ineffective assistance have merit, there is also no cumulative error. Failure to Declare Mistrial Appellant argued that the trial court erred by failing to declare a mistrial after the prosecutor probed into his prior convictions when the trial court had forbidden it. Appellant’s claim is not cognizable. Appellant specifically argued that the trial court abused its discretion. Issues of prosecutorial misconduct, insufficiency of the evidence, and trial court error are not cognizable in a collateral postconviction motion. Johnson v. State, 985 So. 2d 1215, 1215 (Fla. 1st DCA 2008) (emphasis added). 9 Subject-Matter Jurisdiction Appellant argued that the trial court lacked subject-matter jurisdiction due to an error in the charging document. Appellant’s argument is untimely because he failed to raise this issue prior to the conclusion of the State’s case. “Where a defendant waits until after the State rests its case to challenge the propriety of an indictment [or information], the defendant is required to show not that the indictment is technically defective but that it is so fundamentally defective that it cannot support a judgment of conviction.” Ford v. State, 802 So. 2d 1121, 1130 (Fla. 2001). A challenge to an information on the ground that it was not supported by probable cause or sworn testimony from a material witness does not raise a fundamental defect and therefore must be timely raised. See Edwards v. State, 128 So. 3d 134, 136 (Fla. 1st DCA 2013). Appellant cannot now seek collateral relief on this ground. Defective Notice of Intent to Offer Williams Rule Evidence Appellant argued that the trial court should have excluded the Williams rule evidence because the State’s notice of intent was defective. Appellant’s claim is not cognizable and is procedurally barred. See Johnson, 985 So. 2d at 1215 (holding that issues of prosecutorial misconduct, insufficiency of the evidence, and trial court error are not cognizable in a collateral postconviction motion). Brady * Violation Appellant argued that the State committed an evidentiary violation pursuant to Brady by failing to disclose favorable evidence to Appellant. To establish a Brady violation, a defendant must show that: “(1) the evidence was either exculpatory or impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and (3) because the evidence was material, the defendant was prejudiced.” Davis v. State, 136 So. 3d * Brady v. Maryland, 373 U.S. 83 (1963) (requiring the state to disclose material information within its possession or control that is favorable to the defense). 10 1169, 1184 (Fla. 2014). “‘[A] Brady claim cannot stand if a defendant knew of the evidence allegedly withheld or had possession of it, simply because the evidence cannot then be found to have been withheld from the defendant.’” Geralds v. State, 111 So. 3d 778, 787 (Fla. 2010) (quoting Occhicone v. State, 768 So. 2d 1037, 1042 (Fla. 2000)). Appellant admits that the evidence was disclosed to him before trial. To the extent that Appellant’s claim could be construed that he was prejudiced due to a lack of time to prepare, this is refuted by the record. The record shows that Appellant was aware of the purported Brady matter more than a month before trial. Additionally, any alleged violations of Brady should have been raised on direct appeal since it was known about at the time of trial. See Johnson, 985 So. 2d at 1215 (holding that arguments of prosecutorial misconduct, insufficiency of the evidence, and trial court error are not cognizable in a collateral postconviction motion); Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”). Reliance on Police Reports Appellant argued that the trial court erred in allowing the State to use police reports for the collateral crime offenses in the pretrial hearing on the Williams rule evidence. Appellant’s claim is not cognizable. A claim of trial court error is not a valid rule 3.850 postconviction claim. See Johnson, 985 So. 2d at 1215 (holding that issues of prosecutorial misconduct, insufficiency of the evidence, and trial court error are not cognizable in a collateral postconviction motion). Conclusion Because all of Appellant’s postconviction claims are meritless or not cognizable on appeal, the Court must AFFIRM the trial court’s order denying Appellant’s motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. ROBERTS and LONG, JJ., concur. 11 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Victor Vaughan Reed, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 12