           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                   _____________________________

                           No. 1D18-3816
                   _____________________________

ERIC LYNN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   _____________________________

On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.


                           October 1, 2019

PER CURIAM.

    Eric Lynn appeals an order denying his motion for
postconviction relief following an evidentiary hearing. We affirm.

     Lynn was convicted by a jury of four counts of second-degree
murder, one count of possession of a firearm by a convicted felon,
and one count of tampering with a witness. He was sentenced to
thirty years’ imprisonment, followed by fifteen years’ probation.
After his counsel filed an Anders * appeal, this Court affirmed his
convictions and sentences per curiam without a written opinion.
Lynn v. State, 134 So. 3d 456 (Fla. 1st DCA 2014).



    *   Anders v. California, 386 U.S. 738 (1967).
     Lynn timely moved for postconviction relief, raising twelve
claims of ineffective assistance of counsel and one claim of
cumulative error. After an evidentiary hearing, the trial court
denied the motion in its entirety. This appeal follows.

                            Preservation

     Although Lynn raised thirteen issues in his motion for
postconviction relief, he appeals only the denial of claims two, five,
six, nine, ten, and thirteen. Lynn thus waived the remaining
claims by failing to present arguments on those claims in his initial
brief. Prince v. State, 40 So. 3d 11, 12 (Fla. 4th DCA 2010). So we
affirm the denial of claims one, three, four, seven, eight, eleven,
and twelve without further discussion.

                              Analysis

     We review de novo an order denying a motion for
postconviction relief after an evidentiary hearing. 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, 61 (Fla. 2003).

                             Claim Two

     Lynn asserts that defense counsel was ineffective for failing to
object to the trial court’s instruction to the jury that transcripts
would not be provided during its deliberations. Lynn contends that
the jury would have understood the court’s answer to mean that
any read-back of the testimony would be prohibited. He argues
that it was per se reversible error to instruct a jury that it cannot
have testimony read back. But Lynn’s argument misrepresents
what occurred at trial.


                                  2
     At the end of closing argument, the trial court asked the jurors
to confer amongst themselves and decide whether they wanted to
start deliberations that night or wait until the following morning.
Before deciding, the jury asked if transcripts would be available in
the morning. The court answered the question in the negative. The
jury chose to begin deliberations the following morning.

     The trial court’s response to the jury was correct. Transcripts
are not permitted in the jury room. Hazuri v. State, 91 So. 3d 836,
841 (Fla. 2012). If a jury asks for transcripts during deliberations,
the court must deny the request and inform the jury of the
possibility of a read-back. Here, such an instruction would have
been premature because the jury had not started its deliberations.
It was merely weighing the pros and cons of continuing that night
or returning in the morning. The jury never asked for transcripts
or read-backs during its actual deliberations. Because Lynn failed
to demonstrate that counsel had a legally sound objection to the
court’s response to the jury’s question, this claim lacks merit.
Lukehart v. State, 70 So. 3d 503, 513 (Fla. 2011) (“Counsel cannot
be deemed ineffective for failing to pursue a meritless claim.”).

                             Claim Five

    Lynn next asserts that counsel was ineffective for failing to
suppress out-of-court identifications obtained by the police after all
four alleged victims were shown a single booking photograph of
Lynn. He argues that this type of identification procedure created
a substantial risk of misidentification.

    Lynn is correct that the use of a single photograph is an
impermissibly suggestive identification procedure. Gillis v. State,
930 So. 2d 802, 804 (Fla. 3d DCA 2006). Even so, the identification
need not be suppressed when the witness’s familiarity with the
defendant provides an independent basis for identification because
there is no substantial likelihood of irreparable misidentification.
Fitzpatrick v. State, 900 So. 2d 495, 518 (Fla. 2005) (finding that,
while the use of a single photograph for identification was unduly
suggestive, the witness had ample opportunity to observe the
defendant closely, which served as an independent basis for
identification, uninfluenced by the suggestive procedure);
Washington v. State, 653 So. 2d 362, 365 (Fla. 1994) (finding that,

                                  3
while the use of a single photograph to obtain an identification was
unduly suggestive, the witness’s familiarity with the defendant
provided an independent basis for identification, uninfluenced by
the suggestive procedure).

     The trial court properly determined that counsel had no basis
to challenge Lynn’s identification because the witnesses had an
independent basis for their identification—they had previously
purchased drugs from Lynn. In fact, Lynn’s defense was that the
victims owed him money for drugs and that they were accusing
him of committing this crime to avoid paying their debt. Because
Lynn cannot establish that there was a reasonable probability that
a motion to suppress would have been granted, the trial court
properly denied this claim. Spencer, 842 So. 2d at 61.

                            Claim Six

     Lynn argues that counsel was ineffective for failing to object
to the prosecutor implying during closing arguments that Lynn
confessed to the crime. He points to the portion of closing argument
where the prosecutor stated that Lynn “came to the house a couple
of days later and said, I’m sorry, I’m sorry I shot your car.” Lynn
contends that no evidence at trial supported this statement.

     This claim is conclusively refuted by the record. Two witnesses
testified that Lynn came to their home after the shooting to explain
that the shooting did not go as he planned. The witnesses testified
that Lynn said that he did not mean to shoot their car and he
offered to pay for the repairs. Because the prosecutor’s argument
was a fair comment on the evidence, defense counsel had no
grounds for an objection. Spann v. State, 985 So. 2d 1059, 1068
(Fla. 2008) (“Because the prosecutor was making a fair comment
on the evidence presented at trial, counsel cannot be deemed
ineffective for failing to object.”).

                            Claim Nine

     Next, Lynn argues that counsel was ineffective for failing to
call an expert witness to testify about how crack cocaine may affect
a user’s perceptions. He asserted that the only witness who
testified that he had a gun that night had been using crack cocaine

                                 4
before the shooting. The trial court properly denied this claim for
three reasons. First, there was no testimony that the witness
consumed crack cocaine before the shooting. Second, defense
counsel testified at the evidentiary hearing that Lynn never asked
her to retain such an expert and that she did not believe that his
family would have been able to pay for an expert. Third, Lynn
stated on the record that his counsel had called all the witnesses
he wanted to call. Lynn cannot now go behind his sworn
statements. Kelley v. State, 109 So. 3d 811, 813 (Fla. 1st DCA
2013).

                             Claim Ten

     Lynn then argues that counsel was ineffective for failing to
call an expert to testify that, based on the trajectory of the bullets,
someone of Lynn’s height could not have been the shooter. The trial
court properly denied this claim because Lynn never asked counsel
to call this expert, his family could not afford to hire an expert, and
he stated on the record that he wanted no other witnesses called.

                           Claim Thirteen

    Finally, Lynn argues that the cumulative effect of counsel’s
combined errors deprived him of a fair trial and due process.
Because none of Lynn’s claims of ineffectiveness had merit, the
court properly denied his claim of cumulative error. Schoenwetter
v. State, 46 So. 3d 535, 562 (Fla. 2010) (holding a claim of
cumulative error is properly denied when each individual claim is
meritless).

    Finding no error by the trial court, we affirm the order
denying Lynn’s motion for postconviction relief.

    AFFIRMED.

B.L. THOMAS, ROWE, and KELSEY, JJ., concur.




                                  5
                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Valarie Linnen, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




                                6
