        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         JAY RICHARD CURTIS,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D14-3936

                               [June 8, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Stephen    A.    Rapp,     Judge;  L.T.    Case    No.
2012CF003413AMB.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   After trial by jury, Curtis was convicted of burglary with assault or
battery while armed with a firearm and wearing a mask, aggravated battery
with a deadly weapon or causing bodily harm while wearing a mask, and
robbery with a firearm while wearing a mask. He was sentenced to life in
prison on the burglary charge and thirty years in prison on the other two
charges. All of the sentences were imposed consecutively, with twenty-
year minimum mandatory provisions.

   On appeal, Curtis raises four issues: (1) the trial court erred in limiting
cross-examination of a key prosecution witness regarding bias against
Curtis, (2) the trial court erred in denying his motion for mistrial after a
law enforcement officer stated, more than once, that he was certain
“beyond a reasonable doubt” that Curtis was a passenger in a truck
pursued by law enforcement after the crime was reported to 911, (3)
ineffective assistance of trial counsel in failing to properly investigate and
move to suppress an identification of Curtis by a witness, and (4)
ineffective assistance of trial counsel in failing to object to the lead
detective asserting his opinion of Curtis’s guilt. We affirm, without
discussion as to the first two issues. After a de novo review of the record,
we also affirm as to both issues of ineffective assistance of counsel, and
explain our reasoning.

   “[A]n appellate court may review an ineffective assistance of counsel
claim on direct appeal when the claimed ineffectiveness is apparent on the
face of the record.” Kidd v. State, 978 So. 2d 868, 869 (Fla. 4th DCA 2008).
In considering the claim on direct appeal, an “appellate court must
conduct a de novo review of the record to determine if a defendant’s claim
meets the deficiency and prejudice prongs of Strickland [v.Washington, 466
U.S. 668, 687 (1984)].” Hills v. State, 78 So. 3d 648, 652 (Fla. 4th DCA
2012). However, the Strickland standard does not require a finding that
any deficient conduct “more likely than not altered the outcome”; a
defendant need only establish a probability sufficient to undermine
confidence in the outcome. Porter v. McCollum, 558 U.S. 30, 44 (2009)
(quoting Strickland, 466 U.S. at 693-94).

   We address     the   ineffective   assistance   of   trial   counsel issues
sequentially.

Failure to properly investigate and move to suppress an identification of
Curtis by a witness

    The burglary, aggravated battery, and robbery offenses occurred during
a nighttime home invasion robbery committed by one person wearing a
mask entering a home and another person driving the invader to and from
the home. Curtis was arrested later the same night as the home invader,
following several hours of successfully fleeing and eluding arrest. A female
was arrested several days later as the participant who drove Curtis to and
from the home invaded.

   The day after the incident, the gun used in the robbery was found
behind a restaurant. Two or three days later, a detective interviewed a
bartender who worked at the restaurant on the night of the incident.
During the interview, the bartender remembered that, on the night of the
robbery, a man and a woman were sitting at the bar, that each of them
would go outside several times after receiving a call on their cell phones,
and that a third man later joined them at the bar. As the bartender left
work that night, he saw the three individuals in the parking lot.

   A photo lineup, which included Curtis, was shown to the bartender
during the interview, simply to confirm that Curtis was the man the
bartender described who was initially sitting with the woman at the bar.
At that point in the investigation, Curtis had already been arrested and

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charged with the crimes, but law enforcement was uncertain of what roles
the female codefendant and a possible third participant may have had in
the crimes. The detective interviewed the bartender to see if Curtis and
the female codefendant were at the restaurant after the robbery. The
detective was interested in whether the bartender could place the female
codefendant with Curtis shortly after the robbery, at a location near where
the gun was found.

   During his testimony at trial, the bartender described his interview at
the restaurant by the detective. When asked by the State whether he was
shown a photograph during the interview, the defense objected, asserting
a discovery violation and claiming that the State had not turned over the
photograph.

    During a Richardson 1 hearing conducted the next day, the detective
testified that he did not give the photo lineup, which included Curtis’s
picture, to the State because it was only used as a reference during the
interview to point out Curtis to the bartender and confirm they were
talking about the same person. The detective explained that the focus of
the interview was on the female codefendant, and that the lineup was not
used to ask an eyewitness to a crime to identify a perpetrator. Additionally,
the State argued that it never intended to introduce the photo lineup into
evidence. It further argued that the depositions of the detective and the
bartender put defense counsel on notice that there was some kind of
photograph shown to the bartender to see if he recognized a person. The
trial court agreed with the State’s argument that defense counsel was on
notice of the photograph and reasoned that if defense counsel wanted to
move to suppress the fact that the bartender was shown a photograph to
see if he recognized the person in it and if Curtis was at the restaurant on
the night of the incident, then defense counsel could have done so.

   On appeal, Curtis acknowledges that the State was not obligated to
provide a copy of the photograph in response to a discovery request
because it was not seeking to admit the photograph into evidence.
However, he argues that because defense counsel was put on notice during
deposition that the bartender was shown a photograph, any reasonable
attorney would have inquired as to what photograph was shown, and that
such further inquiry would have revealed that a photo lineup was used.
He also argues that the failure to investigate the photograph prejudiced
him because it resulted in the further failure to file a motion to suppress
the bartender’s identification. Finally, Curtis argues that the failure to
investigate also left trial counsel unprepared to address the identification

1   Richardson v. State, 246 So. 2d 771 (Fla. 1971).

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issue when the bartender was on the stand in front of the jury, since his
testimony was concluded before the Richardson hearing. Curtis contends
that the bartender’s identification was the only evidence linking Curtis to
the gun used during the robbery, since there were no surveillance cameras
at the restaurant and no DNA evidence obtained from the gun.

   Without addressing the deficiency of performance prong of Strickland,
our review of the record leads us to determine that Curtis cannot
sufficiently show the prejudice prong of Strickland can be met. Even if the
defense had successfully moved to suppress the bartender’s identification
that Curtis was at the restaurant shortly after the incident, the State
presented multiple witnesses to testify as to the identity of Curtis as a
perpetrator of the robbery, including the victims, the officer who pursued
the getaway truck, and the owner of the truck used to transport Curtis to
and from the robbery. Additionally, our review of the record satisfies us
that there is nothing to show a probability that a motion to suppress would
have been granted. 2 Assuming, arguendo, that there was deficient
performance by counsel for failure to investigate and to move to suppress
the photo identification, Curtis has not established a probability that the
deficiency was sufficient to undermine confidence in the outcome of the
verdict. Thus, we determine that reversal on this issue is not warranted
because Curtis has failed to meet the prejudice prong of Strickland.

Failure to object to the lead detective asserting his opinion of Curtis’s guilt

   Curtis asserts that there were three instances in which defense counsel
asked questions that permitted the lead detective to express an opinion as
to Curtis’s guilt. We have examined the testimony and disagree with
Curtis’s arguments on this issue for two reasons. First, we do not agree
that the responses were a direct expression of opinion as to guilt. The
context of all three questions eliciting the responses involved whether the
detective made a premature decision about the primary suspect, resulting
in a failure to investigate leads thoroughly. The responses simply
explained why the investigation focused on Curtis and why certain
investigative steps were not taken. The lead detective never affirmatively
stated that he knew Curtis was guilty, and the responses were, in essence,
the officer’s conclusion that there was probable cause to arrest him.
Second, the questions posed certainly yield an inference that the defense
attorney was attempting to establish that premature decisions were made


2For the same reason, there was no error in admitting the testimony about the
bartender’s identification of Curtis from a photo lineup, and no need for a
harmless error analysis.


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in the investigation, suggesting an inadequate investigation. Thus,
facially, there appears to be a strategic reason for the questions, and the
record does not affirmatively show deficient performance by trial counsel.
Owen v. State, 986 So. 2d 534, 553 (Fla. 2008) (“Counsel is not ineffective
for making a strategic decision to present evidence, even when in hindsight
that decision opened the door to admission of evidence that is not entirely
favorable to the defendant.”). Thus, we determine that reversal on this
issue is not warranted because Curtis has failed to demonstrate deficient
performance by trial counsel.

   Affirmed.

WARNER and MAY, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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