          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1186
                 _____________________________

JEREMIAH CORBETT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


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

                        February 20, 2019


PER CURIAM.

     On September 25, 2010, Jeremiah Corbett, Eric Johnson,
Raphael Thompson, and Bryant Smith attended a “teen night”
event at Club Menage. After the club closed, a crowd gathered in
the parking lot of a nearby Walgreens. Johnson’s sister, Alexis,
was among those gathered. A man in the crowd saw Corbett and
his friends, pulled out a pistol, cocked it, and held it at his side
pointed towards the ground. The man exchanged words with
Corbett and his friends, but he never pointed the gun at them.

    Corbett and his friends got into Thompson’s van to leave.
Thompson started to drive around the back of Walgreens, but
then stopped the vehicle.       Thompson and Corbett began
brandishing pistols at the crowd while declaring, “They tried us.”
Corbett then opened the van’s door and fired a gun into the
crowd, even though Johnson warned, “Stop, man, my sister’s over
there, my sister’s over there!” As the group drove away from the
scene, Corbett was still uttering, “Man, they tried us.”

    Alexis Johnson testified that she had been at the club and
was preparing to leave in her aunt’s car, when she noticed the
van. Alexis saw a person open the door of the van and then
gunshots rang out. Alexis tried to duck, but she felt blood flow
down the back of her neck. She reached up and felt a bullet
fragment. Alexis passed out after exiting her aunt’s car.

    When police responded to the scene, an officer found Alexis
on the ground with a gunshot wound to the back of her head.
Alexis was transported to the hospital and received medical
treatment for her injuries. She survived the shooting.

     But fourteen-year-old Horace James did not survive the
incident. When police arrived at Walgreens, an officer discovered
Horace lying outside the store with an apparent gunshot wound
to the back of his head. Horace had come to meet his sister
Leslie, who had been at the club. Leslie found her brother lying
motionless on the ground.

     Corbett was charged with first-degree murder with a firearm
of Horace James, attempted felony murder of Alexis Johnson,
shooting a firearm within or at an occupied vehicle, and
possession of a firearm by a juvenile delinquent. After a jury
trial during which several eyewitnesses to the shooting testified,
Corbett was found guilty on all four counts.

     Corbett was sentenced to life imprisonment with a twenty-
five-year minimum mandatory on the first-degree murder count;
life imprisonment without the possibility of parole on the
attempted felony murder count; fifteen years’ imprisonment on
the shooting a firearm within or at an occupied vehicle count; and
fifteen years’ imprisonment on the possession of a firearm count.
Corbett’s convictions and sentences were affirmed on direct
appeal. Corbett v. State, 134 So. 3d 453 (Fla. 1st DCA 2014)
(unpublished table decision).


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     Corbett filed a motion for postconviction relief, raising nine
claims. The trial court struck four of the claims as facially
insufficient and gave Corbett the opportunity to amend those
claims. Corbett filed an amended motion, addressing only those
four claims. After reviewing the record, the trial court summarily
denied both motions. 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). In
order for an appellant to demonstrate ineffective assistance of
counsel, the appellant must show that counsel’s performance was
outside of the wide range of reasonable professional assistance,
and that such conduct in fact prejudiced the outcome of the
proceedings because without the conduct there was 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 (Fla. 2003). “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Spencer, 842 So. 2d at 61.

     Corbett argues that his trial counsel was ineffective for
failing to (1) object to the testimony of a surprise witness, (2)
retain an expert witness to testify about the type of firearm that
caused the injuries to Horace James, (3) retain an expert to
testify that Horace James was shot by a stray bullet or
celebratory gunfire, (4) locate five witnesses, (5) investigate Javel
Ponder and his cousin, (6) retain an expert in crime scene
investigation and reconstruction, (7) make an adequate motion
for judgment of acquittal as to counts one and two, (8) develop an
alternate suspect for count one, and (9) make an adequate motion
for judgment of acquittal to the intentional act element of count
two. We address each of these claims in turn.

                             Claim One

     Corbett alleges that his defense counsel was ineffective for
failing to object to the testimony of Javel Ponder because Ponder
was not listed as a potential witness in the State’s discovery. The
record reflects that the State disclosed Ponder as a witness on

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December 12, 2012. Corbett’s trial did not begin until February
25, 2013. The State’s disclosure of Ponder as a witness was
timely as it provided Corbett with sufficient time to prepare for
trial. State v. Johnson, 196 So. 3d 585, 588 (Fla. 5th DCA 2016).
Because the disclosure was timely, defense counsel had no
grounds to object to Ponder’s testimony. Hitchcock v. State, 991
So. 2d 337, 361 (Fla. 2008) (“Counsel cannot be deemed
ineffective for failing to make a meritless objection.”). Thus, the
trial court properly denied this claim as conclusively refuted by
the record.

                            Claim Two

     Corbett next alleges that his counsel was ineffective for
failing to retain an expert to testify about the type of firearm that
caused Horace James’s injuries. He alleged that the expert could
have testified that James’s wounds were not caused by a larger
caliber firearm, like the one in Corbett’s possession, and that it
was more likely that the wound was caused by a .32-caliber bullet
found by the police.

     At trial, a firearm analyst testified that she could not
determine the caliber of the bullet used in the shooting from the
fragments obtained from the crime scene. But she testified that
she could eliminate some calibers, including .32-caliber, because
the characteristics of the fragments were inconsistent with those
calibers. The medical examiner testified that James was shot
through the back of the head, with the bullet exiting through his
forehead. She testified that the size of the hole in James’s head
indicated that he was shot with a large caliber bullet. Given the
testimony of these two experts, Corbett’s assertions that a
defense expert would have testified that the victim’s wound was
caused by a .32-caliber bullet are speculative at best. See 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 conjuncture.”).

    Further, Corbett cannot establish that he was prejudiced by
counsel’s failure to retain such an expert. Four people, including
two people who were in the van with Corbett, testified that they
saw him shoot into the crowd gathered in the Walgreens parking

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lot. Two other witnesses testified that they did not see who was
firing the gun, but could tell that the shots were coming from the
van. Thus, presenting a defense theory that James was struck by
a .32-caliber bullet would require the jury to believe that despite
the lack of testimony that anyone else was firing a gun at the
time of the shooting, and the testimony that Corbett was
observed shooting into the crowd, James was coincidentally
struck by a .32-caliber bullet that was fired at the very same time
by an unidentified person. Because Corbett’s claim was wholly
speculative, and because Corbett failed to show that he was
prejudiced by the failure to call the expert, the trial court
properly denied this claim.

                            Claim Three

     Next, Corbett argues that his attorney was ineffective for
failing to retain an expert from Bullet Free Skies to testify that
the victims were shot by a stray bullet or celebratory gunfire.
Even if an expert testified that it was possible for the victims to
have been hit by stray bullets or celebratory gunfire, there was
no evidence that there was any other gunfire in the area that
night to support such a theory. It also strains logic to suggest
that when Corbett was firing his gun into a crowd, two victims in
that crowd were coincidentally struck by bullets fired by some
unknown third party. Thus, the trial court properly denied this
claim because Corbett cannot demonstrate that there is a
reasonable probability that the outcome of his trial would have
been different if counsel had presented the testimony of such an
expert. Spencer, 842 So. 2d at 61.

                             Claim Four

     Corbett further alleges that counsel was ineffective for
failing to locate and call five witnesses: Ponder’s cousin, Greg
Shealy; Emily Humphrey, the person who called in a Crime
Stopper tip; and a woman who called herself “Red” on Facebook.
To state a facially sufficient claim for the failure to call a witness,
“the movant must allege the identity of the potential witness, the
substance of the witness’s testimony, an explanation of how the
omission of the testimony prejudiced the outcome of the case, and


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a representation that the witness was available for trial.”
Leftwich v. State, 954 So. 2d 714, 714 (Fla. 1st DCA 2007).

     Although he was given the opportunity to amend this claim,
Corbett failed to allege that any of these witnesses would have
been available for trial. Thus, to the extent that Corbett sought
to allege that counsel was ineffective for failing to call these
witnesses, the trial court properly denied this portion of the claim
as facially insufficient. Nelson v. State, 977 So. 2d 710, 711 (Fla.
1st DCA 2008) (“Although a trial court in its discretion may grant
more than one opportunity to amend an insufficient claim, Spera
[v. State, 971 So. 2d 754 (Fla. 2007),] does not mandate repeated
opportunities.”). To the extent that Corbett sought to allege that
counsel was ineffective for failing to locate these witnesses, the
trial court properly denied the claim because there is no
reasonable probability that the outcome of the trial court would
have been different if counsel had investigated these witnesses,
given that four eyewitnesses testified that Corbett was the
shooter. Spencer, 842 So. 2d at 61.

                            Claim Five

     Corbett argues that defense counsel was ineffective for
failing to investigate Javel Ponder and Ponder’s cousin. He
alleged that Ponder testified at trial that he was in a vehicle with
his cousin when he witnessed Corbett firing a gun into the crowd
at Walgreens. Corbett asserted that counsel should have located
the cousin to confirm or refute Ponder’s testimony. He alleged
that if the cousin did not place Ponder at the scene of the crime,
then the jury could have rejected Ponder’s testimony. The trial
court properly denied this claim as speculative. Further, this
claim was properly denied because even if the jury rejected
Ponder’s testimony, three other eyewitnesses testified that
Corbett was the shooter; thus, Corbett is unable to establish how
he was prejudiced by counsel’s allegedly ineffective act. Spencer,
842 So. 2d at 61.




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                             Claim Six

     Corbett alleges that counsel was ineffective for failing to
retain an expert in crime scene investigation and reconstruction.
He alleges that such an expert could have testified that Corbett
could not have killed James based on the testimony regarding
where Corbett was located at the time of the shooting, the
position of James’s body, James’s height, and the injury that
caused James’s death. The trial court properly denied this
allegation as speculative. Because no gun was ever recovered, no
expert could opine as to whether the victim’s death was caused by
Corbett’s undiscovered and unexamined firearm. To the extent
Corbett suggested that counsel could have found an expert to
testify that James could not have been shot from Corbett’s
location, there is no reasonable probability that such testimony
would have changed the outcome of the trial in light of the fact
that four witnesses testified that they saw Corbett shooting into
the crowd. Spencer, 842 So. 2d at 61.

                           Claim Seven

     Corbett argues that defense counsel was ineffective for
failing to make an adequate motion for judgment of acquittal on
the charges of murder and attempted felony murder. To state a
facially sufficient claim that counsel was ineffective for failing to
preserve a sufficiency of the evidence claim, “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)). “Because
conflicts in the evidence and the credibility of the witnesses have
to be resolved by the jury, the granting of a motion for judgment
of acquittal cannot be based on evidentiary conflict or witness
credibility.” Hitchcock v. State, 413 So. 2d 741, 745 (Fla. 1982).

    As to the charge of the first-degree murder of Horace James,
Corbett alleges that the State’s evidence was insufficient to show
that James was shot and killed by a bullet from Corbett’s gun.
He argues that there was no evidence that he fired the gun in
James’s direction and that there was no determination that the

                                 7
bullet that killed James was the same size and caliber as the gun
he allegedly possessed that night. Corbett’s arguments are
refuted by the record. The testimony at trial established that
four eyewitnesses saw Corbett shoot in the direction of the crowd
that was gathered in the parking lot at Walgreens. After the
shots were fired, James, who was in the crowd, collapsed. The
medical examiner testified that James was killed by a gunshot
wound to the head. Given this evidence, even if counsel had
moved for a judgment of acquittal arguing that there was no
proof that one of Corbett’s bullets killed James, any such motion
would have been denied.

     As to the charge of the attempted first-degree felony murder
of Alexis Johnson, Corbett argues that the State failed to present
sufficient evidence that James was shot and killed before Alexis
was shot. Here, the evidence introduced at trial established that
Corbett, who was angry at a man in the crowd, fired several shots
into the crowd gathered in the Walgreens parking lot. While
doing so, he hit and killed James instead of his intended target,
thereby committing murder, and struck Alexis Johnson in the
head, which could have killed her. Thus, he committed an
enumerated felony and a separate intentional act. Any argument
about the order of the shootings is irrelevant to the elements of
this offense. Because counsel’s motion for judgment of acquittal
based on this argument would have failed, counsel cannot be
deemed ineffective. Hitchcock, 991 So. 2d at 361. Thus, the trial
court properly denied this claim.

                          Claim Eight

     Corbett next alleges that his counsel was ineffective for
failing to develop an alternate suspect for the murder of Horace
James. He argues that counsel should have investigated the
description of the man observed by Humphrey and Shealy and
determined whether they could identify Corbett as the shooter.
He further asserted that if counsel had investigated the Crime
Stopper Tip that the shooter ran into a house on Arlington Road,
counsel could have confirmed whether that tip was true and
potentially contradicted the testimony that Corbett fled in a van
after the shooting. He claimed that this information could have
led counsel to an alternative suspect.

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    This claim is based entirely on speculation. Corbett first
hypothesizes that the man seen by Humphrey and Shealy on the
night in question was involved in the shooting.         He next
conjectures that there would be some form of evidence, although
never alleges what type of evidence, in the house on Arlington
Road that would allow counsel to verify the Crime Stopper Tip.
The trial court properly denied this claim due to its speculative
nature. Connor, 979 So. 2d at 863. The trial court also properly
denied this claim because there is no reasonable probability that
a defense using an alternative suspect would have been accepted
by the jury in light of the fact that four witnesses identified
Corbett as the shooter.

                           Claim Nine

     In his final claim, Corbett alleges that his counsel was
ineffective for failing to make an adequate motion for judgment of
acquittal as to the intentional act element of the charge of
attempted first-degree felony murder. Corbett, relying on the
decision in Milton v. State, 161 So. 3d 1245, 1250 (Fla. 2014),
asserts that counsel should have argued that the discharge of the
firearm could not serve as the intentional act requirement of
attempted felony murder because it was an essential element of
the underlying felony of first-degree murder.

     In Milton, the issue presented was “whether the act of
discharging a firearm can satisfy the ‘intentional act’ element of
attempted felony murder when the underlying felony is
attempted murder and the same individuals are the victims of
both crimes.” Id. at 1246 (emphasis added). The supreme court
held that “Milton’s single act of discharging a firearm did not
satisfy the ‘intentional act’ element of attempted felony murder,
as it was an essential element of the underlying attempted
second-degree murder.” Id. at 1250.

     Milton is distinguishable from this case. In Milton, the
defendant fired multiple gun shots into a crowd of people
standing in front of a house. Id. at 1246. He was charged with
and convicted of three counts of attempted felony murder
(involving three separate victims), and the underlying felony

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alleged for each of these counts was the attempted second-degree
murder of each of the three victims. Id. at 1246-47.

     Here, Corbett was charged with the attempted felony murder
of Alexis Johnson with the underlying felony being the first-
degree murder of Horace James.              Thus, this case is
distinguishable from Milton.      Because counsel’s motion for
judgment of acquittal based on this argument would have failed,
counsel cannot be deemed ineffective. Hitchcock, 991 So. 2d at
361. Thus, the trial court properly denied this claim.

    Because all of Corbett’s claims were insufficient or
conclusively refuted by the record, we affirm the trial court’s
summary denial of his motion for postconviction relief.

    AFFIRMED.

ROWE, RAY, and OSTERHAUS, JJ., concur.

                 _____________________________

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



Jeremiah Corbett, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.




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