          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-3978
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JAMES WAVERLY STEEL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                         March 20, 2019


B.L. THOMAS, C.J.

    Appellant challenges the trial court’s order denying
postconviction relief. For the reasons set forth below, we affirm.

     In January 2011, Appellant was convicted of three counts of
sexual battery and sentenced to thirty years in prison on each
count, to run concurrent. Before trial, the State noticed its intent
to use the collateral crime evidence that eight other victims, all
middle-aged women of the same race who were either mentally
disabled or involved in drug transactions that made them
particularly vulnerable, were sexually assaulted within a three-
block radius, and that three of the attacks occurred within a time
period of several weeks. The State also pointed out the similar
modus operandi in the attacks; for example, four of the victims
indicated that their attacker threatened that he had recently been
in prison and was not afraid of returning.

     At trial, the victim in this case identified Appellant in open
court as the man who raped her. She testified that Appellant
initially attempted to converse with her, then followed her as she
walked home alone. She testified that he then punched her in the
face and took her behind a flight of stairs in a closed building,
where he yelled at her and accused her of being racist for not giving
him a cigarette. She testified that he then took her to a gated
dumpster area behind a Dollar Store and raped her, telling her
that he intended to kill her. The State’s DNA analysts testified
that DNA recovered from the victim’s rape kit was a 99.9% match
to Appellant, amounting to 1 in 19,000 African-Americans. A
victim of one of the collateral attacks took the stand and identified
Appellant as her assailant in a rape that occurred four days prior
to the charged offense. That witness testified that Appellant
punched her and dragged her into a gated dumpster area, where
he raped her. Appellant was found guilty as charged and
sentenced to thirty years in prison. This Court per curiam
affirmed Appellant’s convictions and sentence. Steel v. State, 86
So. 3d 1122 (Fla. 1st DCA 2012).

     Also in 2011, in a separate jury trial involving a different
victim, Appellant was convicted of two counts of sexual battery and
one count of kidnapping. He was sentenced to thirty years in
prison on the sexual battery counts, and life in prison on the
kidnapping count. His sentences were to run consecutive to the
thirty-year sentence that was imposed following the January 2011
trial. This Court per curiam affirmed Appellant’s convictions and
sentences. Steel v. State, 88 So. 3d 939 (Fla. 1st DCA 2012).

     In 2013, Appellant filed a motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850, raising
eleven claims of ineffective assistance of counsel. The trial court
summarily denied the motion, and this Court granted Appellant a
belated appeal. On appeal, Appellant abandoned several of the
claims raised in his rule 3.850 motion, arguing only that:
1) defense counsel was ineffective for failing to challenge the
victim’s in-court identification; 2) defense counsel was ineffective
for failing to preserve Appellant’s right to a speedy trial; 3) an

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evidentiary hearing was necessary to determine if defense counsel
was ineffective for not objecting to the collateral crime evidence;
4) defense counsel was ineffective for failing to object to a jury
panel of one black man and five white women; and 5) an
evidentiary hearing was necessary to determine if defense counsel
was ineffective for failing to challenge the State’s treatment of
possibly exculpatory DNA evidence.

                              Analysis

     “[A] defendant is entitled to an evidentiary hearing on a
postconviction relief motion unless (1) the motion, files, and
records in the case conclusively show that the prisoner is entitled
to no relief, or (2) the motion or a particular claim is legally
insufficient.” Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000).
To raise a viable ineffective assistance of counsel claim, an
appellant must allege that the specific acts or omissions by counsel
fell below a standard of reasonableness under prevailing
professional norms, and that the appellant was prejudiced by those
acts or omissions such that the outcome of the case would have
been different if not for the acts or omissions. Strickland v.
Washington, 466 U.S. 668, 692 (1984). “The defendant must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.

     Appellant’s first claim is that defense counsel provided
ineffective assistance by failing to object to the victim’s in-court
identification, or by failing to have that identification suppressed
prior to trial.     Appellant insists that the victim’s in-court
identification was inadmissible, as the victim was unable to
identify Appellant in a pretrial photographic lineup.

     In Fitzpatrick v. State, the supreme court held that “[a]n in-
court identification may not be admitted ‘unless it is found to be
reliable and based solely upon the witness’ independent
recollection of the offender at the time of the crime,’ uninfluenced
by any intervening illegal confrontation.” 900 So. 2d 495, 519 (Fla.
2005) (quoting Edwards v. State, 538 So. 2d 440, 442 (Fla. 1989)).
One of the factors to consider is a failure to identify the defendant
on a prior occasion. Id. “It is the State’s burden to demonstrate by
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clear and convincing evidence that the courtroom identification
had an independent source[.]” Id. In Fitzpatrick, the victim’s
testimony at trial demonstrated that he had an independent
recollection, as the victim testified that the defendant had been in
his house for ten to fifteen minutes and conversed with him. Id.

     Here, there was nothing unduly suggestive about the victim’s
in-court identification of Appellant, nor does Appellant point to
anything suggestive or improper about the procedures used in the
attempt to obtain an out-of-court identification. Cf. id. at 520
(“Fitzpatrick cannot sustain the argument that [the witness’]
viewing the photo array prior to the suppression hearing unduly
bolstered her identification.”). Like in Fitzpatrick, the victim here
testified to a lengthy encounter with Appellant and that he
conversed with her before and during the attack. This satisfies the
requirement that the victim’s in-court identification was based on
her independent recollection.

     As the State presented sufficient evidence that the victim had
an independent recollection for her in-court identification, any
objection to that identification would have been futile. Thus,
defense counsel was not deficient for failing to object. See Willacy
v. State, 967 So. 2d 131, 140 (Fla. 2007) (“counsel is not ineffective
for failing to make a futile objection”).

    Appellant’s second claim is that defense counsel’s failure to
preserve the right to a speedy trial deprived Appellant of his due
process and equal protection rights.

    (A)n attorney may waive speedy trial without consulting
    the client and even against the client’s wishes. Thus, if
    the right to speedy trial may be waived without
    consulting the defendant, counsels’ waiver here cannot be
    considered an error, let alone one that is “so serious that
    counsel was not functioning as the ‘counsel’ guaranteed
    the defendant by the Sixth Amendment.”

McKenzie v. State, 153 So. 3d 867, 875 (Fla. 2014) (internal
citations omitted) (quoting Strickland, 466 U.S. at 687).

    Because defense counsel was permitted to waive Appellant’s
speedy trial rights without consulting Appellant, the allegations

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against defense counsel do not demonstrate a deficiency rising to
ineffective assistance. Moreover, there was no prejudice, for
although Appellant argues that the State “would not have had
time to conjure up” collateral crime witnesses, if his case had gone
to trial sooner, the victim identified Appellant as her attacker in
open court and the State’s DNA analysts testified that DNA
collected from the victim was a 99.9% match to Appellant. Based
on this evidence, there is no reasonable probability that the
outcome of the trial would have been different absent the collateral
crime evidence. Strickland, 466 U.S. at 694 (“A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.”).

     Appellant’s third claim is that the collateral crime evidence
was not sufficiently similar such as to be admissible, and that
defense counsel was ineffective for failing to object to it. As an
ineffective assistance claim, this argument is conclusively refuted
by the record, as defense counsel objected to the collateral crime
evidence before and during trial and challenged its admission in
the motion for new trial. As a challenge to the admissibility of the
evidence, this issue was raised on direct appeal, and this Court
affirmed the conviction. Steel, 86 So. 3d 1122. Appellant may not
simply couch the same argument as an ineffective assistance claim
in order to reargue the matter. See Arbelaez v. State, 775 So. 2d
909, 915 (Fla. 2000). Because Appellant’s claim is procedurally
barred as an evidentiary challenge and is conclusively refuted by
the record as an ineffective assistance claim, we affirm the trial
court’s summary denial of postconviction relief as to this claim.

     Appellant’s fourth claim is that defense counsel was
ineffective for failing to object to a jury panel consisting of one
African-American man and five white women. Rather than point
to any racial bias from individual jurors, Appellant argues that any
jury with five white jurors is inherently racially biased.

     When a juror indicates during voir dire that he or she can be
fair and impartial, the record will not demonstrate prejudice under
Strickland that a biased juror served on the jury, and no
evidentiary hearing is needed. Jenkins v. State, 824 So. 2d 977,
983 (Fla. 4th DCA 2002). Here, the transcript of the jury selection
proceedings reveals that none of the jurors who served indicated

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they were unable to be fair or impartial, and none made any
statement indicating a racial bias. As the record demonstrates no
juror bias against Appellant, defense counsel was not ineffective
for failing to object to the jury.

     Appellant’s final argument is that the trial court should have
held an evidentiary hearing to determine whether defense counsel
was ineffective for failing to investigate the State’s destruction or
mishandling of cigarette butts found at the crime scene, which
potentially contained exculpatory DNA evidence. In Freeman, the
supreme court held that the defendant could not argue that the
State failed to properly investigate a crime scene, because
“(c)omplaints about the State’s treatment of the physical evidence
should have been raised on direct appeal; therefore, they are
procedurally barred in collateral proceedings.” 761 So. 2d at 1063.
As to whether a defense attorney can be ineffective for not
challenging such a failure by the State, the supreme court held
that there was no error in denying an ineffective assistance claim,
without an evidentiary hearing, where the defense attorney had
argued the issue in opening statement, cross-examination, and
closing argument. Id.

    Appellant argues that cigarette butts found at the crime scene
might have contained DNA from a person other than Appellant.
As in Freeman, this is a challenge to the State’s treatment of
physical evidence, and it is procedurally barred. Id. Defense
counsel, like the attorney in Freeman, discussed this issue during
opening statements and informed the jury that Appellant’s DNA
was not found on cigarette butts recovered at the scene. Therefore,
Appellant’s claim is conclusively refuted by the record.

     Because all of Appellant’s claims are procedurally barred,
legally insufficient, or conclusively refuted by the record, the trial
court did not err in summarily denying postconviction relief.

    AFFIRMED.

ROBERTS and OSTERHAUS, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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James Waverly Steel, pro se, Appellant.

Ashley B. Moody, Attorney General, Trisha Meggs Pate,
Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for
Appellee.




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