Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2213 _____________________________ ROBERT NATHANIEL BROWN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge. January 19, 2022 LONG, J. Robert Brown appeals the trial court’s order denying relief on all seven of the claims raised in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the order on all grounds and write only to discuss Ground Three, an ineffective assistance of counsel claim which was summarily denied. To successfully establish an ineffective assistance of counsel claim, the claimant must show that counsel’s representation was deficient, and that the deficiency so affected the proceeding that confidence in the outcome is undermined. Johnston v. State, 70 So. 3d 472, 477 (Fla. 2011). Deficient representation means “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The State charged Brown with one count of DUI manslaughter and two counts of DUI causing serious bodily injury. One of the key issues at trial was a dispute over whether it was Brown’s or the victim’s vehicle that was travelling the wrong way into oncoming traffic. The State asserted that it was Brown and presented the testimony of two crash reconstruction experts to support this theory. The experts explained their reconstruction methodologies and concluded that Brown’s vehicle was driving against traffic, resulting in the crash. On cross-examination, Brown’s trial counsel highlighted several inconsistencies in witness accounts of the crash. He pointed out that some witnesses believed it was the victim’s car that was driving in the wrong direction. Trial counsel also challenged the experts’ analysis of the crash and highlighted the uncertainties inherent in a reconstruction. Brown alleged that his trial counsel was ineffective for failing to retain and present an independent accident reconstruction expert to refute the State’s witness testimony. Brown argued that, had trial counsel retained a defense expert, the expert would have opined that it was the victims’ vehicle driving in the wrong direction. On appeal from the trial court’s summary denial, Brown argues this claim was facially sufficient and not conclusively refuted by the record and so it should have been heard at an evidentiary hearing. We disagree. First, Brown’s claim is pure speculation. He assumes a hypothetical third expert would have analyzed the crash differently than the first two and that the new analysis would have been favorable. “Relief on ineffective assistance of counsel claims must be based on more than speculation and conjecture.” Connor v. State, 979 So. 2d 852, 863 (Fla. 2007). There is no need to hear from trial counsel at an evidentiary hearing when the claim is legally insufficient. Second, regardless of the speculative nature of the claim, “Strickland does not enact Newton’s third law for the presentation of evidence, requiring for every prosecution expert an equal and 2 opposite expert from the defense. In many instances cross- examination will be sufficient to expose defects in an expert’s presentation.” Harrington v. Richter, 562 U.S. 86, 111 (2011). This is exactly what happened here. Even if the claim were facially sufficient, the trial strategy of Brown’s trial counsel is both obvious and sufficient. The record conclusively refutes the claim. AFFIRMED. MAKAR and NORDBY, JJ., concur. _____________________________ 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 Michael L. Schaub, Assistant Attorney General, Tallahassee, for Appellee. 3