           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                   _____________________________

                           No. 1D17-3132
                   _____________________________

KENYA J. WILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   _____________________________


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

                          November 6, 2018

B.L. THOMAS, C.J.

     In this Anders 1 appeal, Appellant was charged with first
degree murder, attempted armed robbery with a firearm, armed
robbery with a firearm, and possession of a firearm by a convicted
felon, all arising out of an incident that occurred in the early
morning hours of March 22, 2015. We affirm.

     At trial, the State presented evidence that on the night of the
incident, Michael Williams (the victim) went to Club Karma with
two cousins, where they sat talking in the car outside the club.
One cousin soon left to talk to a nearby friend, leaving the victim
and his other cousin, Ambernesia President, in the car. Suddenly


    1   Anders v. California, 386 U.S. 738 (1967).
a man with a gun opened the front door of the car, and another
man opened the rear door and told the victim to “give it up.” The
men started robbing them, but the victim laughed as though it
were not serious. The man at the front door told the other man to
“handle that” and walked toward the rear of the car; one or both
men then shot and killed the victim. Ms. President ran to find
her other cousin, and they drove off and called 911.
Ms. President later identified Appellant in a photographic lineup
as the man who opened the rear door of the car, which was
admitted into evidence over defense counsel’s motion to suppress.
Ms. President also identified Appellant in court.

     A few hours after the shooting, a man approached two
women and asked if he could use their phone. The man was
sweaty and covered in grass. He told the women he had been in
an altercation at Club Karma and that “some guys at the club
jumped me. I went home, got my gun, I unloaded my whole clip
in their [expletive].” The man told the women that his mother
had a house on Apalachee Ridge and that his girlfriend lived on
Keith Street. He borrowed a phone and made a few calls. At
some point, one of the women received a call from the victim’s
family friend, and the man ran away. The women called 911, and
police apprehended Appellant based on the 911 description. A
police officer drove one of the women to where Appellant was
detained, and she identified Appellant as the man who borrowed
her phone. At trial, she was shown a photograph of shoes and
testified that the shoes in the photograph were the same shoes as
those worn by the man who borrowed the phone. The trial court
overruled defense counsel’s objection to the witness being shown
the photo before identifying Appellant.

     Appellant’s former girlfriend testified that a few hours before
the incident, she and Appellant were drinking and smoking drugs
at her house. She testified that at some point during the night,
she left Appellant at her home with a man whom police later
identified on the Club Karma surveillance video. She testified
that when she returned home, she got into an argument with
Appellant, and he took her phone; she then threatened to call the
police for taking her phone. The State asked, “Weren’t you
threatening to call the police because you knew he had the gun
that he just used to empty a clip in someone at Club Karma?”

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She denied that assertion, as well as the State’s question about
whether she initially told police that Appellant left the house
between 2:00 and 4:00 am, and that she had not seen him since.
She admitted that she had been convicted eight times for crimes
of dishonesty. The trial court then admitted, over defense
counsel’s relevance objection, jail visitation logs revealing that
Appellant’s former girlfriend had visited Appellant eighty times
while he was in jail.

     Several police and forensic witnesses testified about the
crime and about evidence recovered at the crime scene. Russell
Huston, a former investigator with the Tallahassee Police
Department, testified that he interviewed Appellant and that
Appellant understood his rights and signed a form indicating his
desire to speak to police. Appellant admitted to police that he
told the women on the porch that he had been involved in a
shoot-out at Club Karma, but claimed to have fabricated the
story, because he did not want to tell them about the argument
with his girlfriend. When asked whether his timeline of the
events remained consistent, defense counsel objected on the
grounds that the question called for a legal conclusion.

    At the close of the State’s case, defense counsel moved for
judgment of acquittal, arguing that the State relied on one or two
eyewitnesses and that there was no fingerprint or DNA evidence
tying Appellant to the crime. The trial court denied the motion.
The jury found Appellant guilty as charged, finding as to the first
degree murder charge that guilt had been established by felony
murder.

                             Analysis

     “[T]here are circumstances where a court-appointed
appellate counsel will, ‘after a conscientious examination,’ find
their client’s case to be ‘wholly frivolous.’” Redmon v. State, 211
So. 3d 306, 307 (Fla. 1st DCA 2017) (quoting Anders, 386 U.S. at
744). In such cases, counsel must “submit ‘a brief referring to
anything in the record that might arguably support the appeal.’”
Id. In Redmon, the Anders requirements were met, as counsel
outlined the facts and procedural history of the case, noted raised


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objections, provided clear citations to the record, and identified
possible issues with citations to appropriate legal authority. Id.

     Like the counsel in Redmon, appellate counsel here gave a
thorough description of the facts and procedural history,
identified potential issues, and cited relevant authority for each
issue to explain why no reversible error exists. We thus hold that
appellate counsel satisfied the requirements established in
Anders. We affirm without discussion those issues where there is
no feasible basis for reversal. As to the remaining issues, after
reviewing the merit of the issues identified by appellate counsel,
and conducting an independent review of the record, we find no
basis for reversal, and affirm for the reasons set forth below.

     As to the State’s peremptory strike of an African-American
man from the venire, when a peremptory strike is used on a
member of a distinct racial group to which the defendant belongs,
and the opposing party requests a reason for the peremptory
strike, the court must ask for a reason and the party must
provide a race-neutral explanation. Melbourne v. State, 679
So. 2d 759, 765 (Fla. 1996). If the explanation is facially race-
neutral and the court believes it is not pretextual, the strike will
be sustained. Id. Here, because the State cited the potential
juror’s criminal record and noted specific instances where the
potential juror failed to respond to questions or pay attention, we
find no abuse of discretion in granting the peremptory strike.

     Regarding the trial court denying defense counsel’s cause
challenge, “[w]here a defendant seeks reversal based on a claim
that he was wrongfully forced to exhaust his peremptory
challenges, he initially must identify a specific juror whom he
otherwise would have struck peremptorily.” Trotter v. State, 576
So. 2d 691, 693 (Fla. 1990). As Appellant accepted the jury, he
has no basis to appeal this issue. See id.; Couch v. Dunn Ave.
Shell, Inc., 803 So. 2d 803, 804 (Fla. 1st DCA 2001).

     Regarding the photographic line-up, the test for admissibility
of an out-of-court identification is: “(1) did the police employ any
unnecessarily suggestive procedure in obtaining an out-of-court
identification; (2) if so, considering all the circumstances, did the
suggestive procedure give rise to a substantial likelihood of

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irreparable misidentification.” Willis v. State, 242 So. 3d 1195,
1197 (Fla. 1st DCA 2018); see also Pierre v. State, 990 So. 2d 565,
570 (Fla. 3d DCA 2008) (holding that a detective “correctly told
the victim and the victim’s mother to focus on faces, not
hairstyles, because hairstyles may change”).

     We conclude that instructing Ms. President not to focus on
hairstyle or facial hair before showing her the photo lineup did
not render the procedure unduly suggestive. Ms. President
insisted that she was certain of her identification, and she
testified that no one suggested in any way that she should pick a
particular photo. The officer testified that he did not even
prepare the lineup, he only presented it, and the trial court noted
that the photographs were taken on a different date than when it
was shown to Ms. President. This procedure was not unduly
suggestive.

     As to the State showing a photograph to a witness before the
witness’s in-court identification, “a witness may not testify to a
matter unless evidence is introduced which is sufficient to
support a finding that the witness has personal knowledge of the
matter.” § 90.604, Fla. Stat. Here, in identifying the shoes worn
by Appellant, the State showed the witness a photograph of shoes
worn by a person in ankle chains, showing the person’s legs up to
the shins. Because the witness had personal knowledge of the
shoes, she could properly testify about the photograph. Although
the witness had not yet identified Appellant, the photograph did
not taint her later identification, as it did not show a person’s
face.

    Moreover, if the court erred, such error would be harmless
beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d
1129, 1135 (Fla. 1986). The witness’s identification of the shoes
that Appellant was wearing, when he asked to borrow her phone,
merely corroborated evidence that Appellant was the man who
spoke to her on the porch.         Appellant’s identification was
supported by the witness’s in-court identification of Appellant as
the man she met, by phone records, by out-of-court
identifications, and by Appellant’s own statement to police.



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     No reversible error occurred when the State asked
Mr. Huston if his timeline remained consistent. Lay witnesses
must confine their testimony to facts and may not give opinions
and conclusions. Thomas v. State, 317 So. 2d 450, 452 (Fla. 3d
DCA 1975). The State’s question asked for a factual response,
not an opinion: Whether Mr. Huston modified his own created
timeline upon receiving new information. It remained for the
jury to determine the timeline of events, and the State’s question
did not usurp that determination.

     As to the jail visitation log, defense counsel admitted that
the evidence fell within the business records exception to
hearsay, but argued that the evidence was irrelevant and that
the State was improperly impeaching its own witness. A party
may impeach its own witness with evidence of bias, if there is a
foundation for bias. Gosciminski v. State, 132 So. 3d 678, 704
(Fla. 2013). The trial court did not abuse its discretion in
admitting this evidence, as Appellant’s former girlfriend’s visits
to see Appellant in jail were relevant to show that the witness
was biased.

     Finally, the trial court did not err in denying Appellant’s
motion for judgment of acquittal. “In reviewing the trial court’s
ruling on a motion for judgment of acquittal, the task of this
court is to determine whether the state produced competent
evidence to support every element of the crime.” Thomas v.
State, 589 So. 2d 392, 393 (Fla. 1st DCA 1991). Appellant was
identified as the shooter by an eyewitness, and multiple
witnesses identified him as the person who admitted to recently
“emptying his clip” into someone at Club Karma. Any argument
regarding the weight of the evidence does not negate the
competent evidence that was presented as to each element of the
charged offenses. See Pagan v. State, 830 So. 2d 792, 803 (Fla.
2002).    We conclude that the trial court correctly denied
Appellant’s motion for judgment of acquittal.

    AFFIRMED.

MAKAR and WINSOR, 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.
               _____________________________


Candice Kaye Brower, Regional Counsel, Office of Criminal
Conflict and Civil Regional Counsel, Region One, Gainesville;
Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal
Conflict and Civil Regional Counsel, Region One, Tallahassee, for
Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




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