         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4266
                 _____________________________

ERNEST L. GRANDISON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Columbia County.
Wesley R. Douglas, Judge.

                        February 27, 2019


KETCHEL, TERRANCE R., ASSOCIATE JUDGE.

     A jury convicted Appellant of robbing a convenience store and
fatally shooting one owner. Appellant wore a “mask”—a Zorro-
style hat and pieces of duct tape across his nose area and on the
side of his neck. The owner’s wife was behind the store counter
during the robbery and shooting, and the entire incident was
recorded on surveillance video.

     Appellant claims the postconviction court erred in denying his
rule 3.850 motion after a hearing. We find no error in the court’s
denial and affirm.

     More particularly, Appellant claims counsel was ineffective
for his handling of the wife’s eyewitness testimony and eyewitness
jury instruction, and for failing to object to prosecutorial comments
in rebuttal closing. Finally, he claims cumulative error.

               Ineffective Assistance of Counsel

     Ineffective assistance requires Appellant prove deficiency and
prejudice. See Bettey v. State, 244 So. 3d 364, 366 (Fla. 1st DCA
2018) (citing Strickland v. Washington, 466 U.S. 668, 690, 694
(1984)). * If there was an evidentiary hearing, as there was here,
this Court defers to the postconviction court’s factual findings,
credibility decisions, and weight determinations. State v. Dickson,
89 So. 3d 277, 279 (Fla. 1st DCA 2012). Whether those facts mean
counsel was deficient and Appellant was prejudiced, however, are
legal questions reviewed de novo. Id.

         Eyewitness Identification and Instruction

     Appellant argues trial counsel failed to address the wife’s
eyewitness identification appropriately; he did not investigate and
challenge it at trial, call an expert, discuss it during voir dire,
request the jury instruction, or argue it during closing. Appellant’s
arguments fail: he cannot show either deficiency or prejudice.

     Florida has a special instruction for eyewitness testimony. It
instructs jurors to consider the typical witness factors and then
informs them they may also consider other enumerated factors as
to eyewitnesses: length of time of the observation, timing of the
observation, suggestiveness, inconsistent identifications, failure to
identify, familiarity with the person, time between the incident
and identification, and similarity of race or ethnicity. Fla. Std.
Jury Instr. (Crim.) 3.9(c).

     Here, counsel did not request the instruction. But he spoke to
the jury about the wife’s eyewitness identification and used the
components from the instruction in that discussion. Counsel also
explained not deposing the wife was tactical, and he detailed
cogent reasons for not wanting to depose her. Finally, counsel


    *  If Appellant fails to show either prong, the claim is
insufficient; there is no particular order for courts to address the
prongs. Hurst v. State, 18 So. 3d 975, 996 (Fla. 2009).

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explained an expert would not have been helpful here; the jury had
video and still shots from the video and could make its own
decision. An expert would be of no assistance.

     Thus, the jury could easily make its own determination on
identification, and counsel requested the jury critically evaluate
the wife’s identification. The lack of the detailed eyewitness
instruction and counsel’s decision not to call an expert are not
deficient—a decision outside the “wide range of reasonable
professional assistance.” Appellant failed to show deficiency.

     Moreover, in light of the same facts, the lack of instruction and
counsel’s performance surrounding the wife’s identification did not
prejudice Appellant.        First, counsel challenged the wife’s
identification through cross-examination, and he highlighted his
challenge in closing. Second, he used the instruction—whether it
was officially given to the jury or not. Third, there was evidence
independent of the wife’s identification; this case did not hinge on
her identification.     Fourth, the jury could make its own
determination about that independent evidence. It could review
the video and still photos of the robbery, look at the barely
disguised man, and compare that to Appellant—all without
factoring any eyewitness identification. Appellant therefore failed
to show any deficiency undermined confidence in the trial’s
outcome or that he was deprived of that, a fair trial with a reliable
result. Therefore, he not was prejudiced.

                    Prosecutorial Comments

     Next, Appellant argues the prosecutor improperly attacked
the jury instructions and that defense counsel was ineffective for
failing to object. We find the comments were an invited response
to defense counsel’s closing argument, and thus not improper.

     If a prosecutor’s comments are in direct response to defense
counsel’s closing argument, the comments are permissible under
the invited response doctrine. State v. Ling, 212 So. 3d 530, 533
(Fla. 1st DCA 2017); see Bell v. State, 108 So. 3d 639, 649 (Fla.
2013) (explaining that even improper comment is saved if it is an
invited response); Walls v. State, 926 So. 2d 1156, 1166 (Fla. 2006)
(“A prosecutor’s comments are not improper where they fall into
the category of an ‘invited response’ by the preceding argument of

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defense counsel concerning the same subject.”). The prosecution is
entitled to respond when defense counsel places an issue before the
jury in closing. Ling, 212 So. 3d at 533.

     Here, the State maintained throughout the trial that
Appellant was the shooter. It told the jury this in its closing
argument and read the jury the instruction that Appellant was
only guilty if he actually killed the owner. Yet in response, defense
counsel discussed the principal instruction with the jury and told
it the instruction indicated the State was not certain who the
shooter was. Only then, in rebuttal closing did the State address
“the defense proposition that the State is unsure of who did this.”
In that context, the State mentioned not supporting every
instruction or lesser included instruction but agreeing with the
instructions on the crime charged and that the State had always
maintained Appellant was the shooter.

     In context, the isolated comment about the principal
instruction and not supporting every instruction is merely direct
response to defense counsel’s argument. The State told the jury to
ignore lesser included crimes and focus on what crimes were
charged and what evidence existed for that. As an invited
response, the failure to object was not constitutionally deficient.
See Bell, 108 So. 3d at 649 (explaining that even improper
comment is saved if it is an invited response). Moreover, because
the State consistently and repeatedly maintained Appellant was
the shooter, and the evidence supported that position, a lack of
objection, even if deficient, does not undermine confidence in the
trial’s outcome. That is, Appellant was not prejudiced.

                        Cumulative Error

    Because we find no individual error, Appellant’s claim of
cumulative error is meritless. See Pryear v. State, 243 So. 3d 479,
486 (Fla. 1st DCA 2018).

                            Conclusion

     Counsel’s handling of the wife’s eyewitness testimony and
eyewitness identification jury instruction were not deficient.
Counsel discussed identification issues with the jury and made a
tactical decision tied to the specific identification in this case. Not

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to mention, any deficiency did not undermine confidence in the
jury verdict—especially given the jury’s ability to independently
evaluate the surveillance video and see for itself any resemblance.
Next, counsel’s lack of objection to the prosecutor’s rebuttal closing
argument was not deficient. Counsel claimed the principal
instruction showed the State lacked confidence in which man was
the shooter; the State simply, and permissibly, responded.

    Accordingly, the postconviction court’s denial is AFFIRMED.

B.L. THOMAS, C.J., and WINOKUR, J., concur.
                _____________________________

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

Ernest L. Grandison, pro se, Appellant.

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




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