         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3330
                 _____________________________

MELVIN L. PRYEAR,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

On appeal from the Circuit Court, Escambia County.
W. Joel Boles, Judge.

                         February 28, 2018


B.L. THOMAS, C.J.

     Appellant, Melvin L. Pryear, appeals an order denying his
postconviction motion brought pursuant to Florida Rule of
Criminal Procedure 3.850. For the reasons discussed below, we
affirm.

    This case arose from a traffic accident wherein a semi-truck
struck Appellant’s vehicle, resulting in the death of the
Appellant’s passenger and damage to the semi-truck. The
evidence reflected that Appellant was traveling northbound on
the highway when he made a left turn in front of the semi-truck,
which was traveling southbound. Both vehicles had a green
signal without any turn arrows illuminated.

     Testifying at trial were two sisters who witnessed the
accident. One sister, Janice Spencer, testified that when she saw
Appellant’s car start to turn, she said to herself, “Don’t go, don’t
go,” because the semi-truck was too close for the oncoming car to
safely make the turn. The other sister, Sharon Watson, testified
that the semi-truck was moving fast, estimating that the truck
appeared to be “doing every bit of [the 40 or 45 miles per hour
speed limit] coming through the intersection.”

     Other eye witnesses testified that Appellant smelled of
alcohol and had beer cans in his car. The traffic homicide
investigator testified that, hours later, Appellant’s eyes were still
bloodshot and watery and his speech was slurred. The
investigator opined that Appellant was at fault in the accident,
because he violated the semi-truck’s right-of-way by making a left
turn in front of the truck when he should have yielded to
oncoming traffic. A highway patrol trooper testified that a blood
draw was conducted at the hospital, and a Florida Department of
Law Enforcement laboratory analyst testified that she tested the
sample. Her report was introduced into evidence, reflecting that
Appellant’s blood alcohol level was .196 grams per four milliliters
of blood, or more than twice the legal limit.

     Following the jury trial, Appellant was convicted of DUI
manslaughter and DUI with property damage and sentenced to a
total of 15 years in prison. His convictions and sentences were
affirmed on appeal. Pryear v. State, 185 So. 3d 1238 (Fla. 1st
DCA 2016). Appellant then filed the instant rule 3.850 motion,
raising eight claims, which the lower court summarily denied.

     In Appellant’s first claim, he argued that his attorney was
ineffective for failing to renew his objection to the State’s use of a
peremptory challenge to strike an African-American juror.
Appellant alleged that the State’s race-neutral reason for the
strike applied equally to a white juror; therefore, it was
pretextual as a matter of law.

     A claim of ineffective assistance of counsel is governed by
Strickland v. Washington, 466 U.S. 668, 690 (1984). To prove
ineffective assistance, a defendant must allege 1) the specific acts
or omissions of counsel which fell below a standard of
reasonableness under prevailing professional norms, see id. at
690; and 2) that the defendant’s case was prejudiced by these acts
or omissions such that the outcome of the case would have been
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different, see id. at 692. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
The defendant must demonstrate a likelihood of a different result
which is substantial and not just conceivable. Harrington v.
Richter, 562 U.S. 86, 112 (2011). “The prejudice in counsel’s
deficient performance is assessed based upon its effect on the
results at trial, not on its effect on appeal.” Strobridge v. State, 1
So. 3d 1240, 1241 (Fla. 4th DCA 2009) (citing Carratelli v. State,
961 So. 2d 312, 323 (Fla. 2007)).

     A claim of ineffective assistance of counsel arguing counsel’s
failure to raise a Neil 1 objection is not normally a basis for
postconviction relief. Jones v. State, 10 So. 3d 140, 141-42 (Fla.
4th DCA 2009). This is true, because the prejudice prong cannot
be proven absent some indication that the jury that actually
served was biased. See Yanes v. State, 960 So. 2d 834, 835 (Fla.
3d DCA 2007); Jenkins v. State, 824 So. 2d 977, 984 (Fla. 4th
DCA 2002).

     Here, even if Appellant could establish that counsel
performed deficiently for failing to renew his objection to the
strike, he failed to establish that this omission affected the
outcome of his trial, and not just the possible outcome of his
appeal. Furthermore, the transcripts from voir dire reveal no
indication that the juror who actually served was biased, as he
joined with the rest of the prospective jurors in indicating that he
could be impartial and properly apply the burden of proof and
presumption of innocence. Under these circumstances, this claim
was properly denied.

     In Appellant’s second claim, he argued that his attorney
should have moved to strike the highway patrol trooper’s
improper opinion testimony that Appellant was at fault in the
accident and that the trooper had “other circumstances” that led
him to believe that Appellant was intoxicated. Appellant alleged
that this testimony invaded the province of the jury and bolstered

    1 State v. Neil, 457 So. 2d 481, 486-87 (Fla. 1984) (discussing
procedures for challenging discriminatory use of peremptory
strikes).

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the testimony of the State’s witnesses who testified that
Appellant was impaired at the time of the accident. Appellant
asserted that it also suggested that law enforcement had other
evidence which was not presented to the jury.

     The challenged testimony occurred in the context of cross-
examination. Defense counsel asked whether Appellant’s
bloodshot eyes and the scent of alcohol on his breath provided the
basis for the belief that Appellant was intoxicated at the time of
the accident. The trooper replied, “He was also at fault for
causing a fatality.” Defense counsel then asked, “So you’re
saying [Appellant] was at fault, but the investigation wasn’t
completed was it?” The trooper responded, “No, but we had the
circumstances.” The trooper also agreed that he did not witness
the accident, and had not yet spoken to witnesses when he came
to this conclusion.

     As an initial matter, the trooper did not state that he had
“other circumstances” to back up his beliefs, but rather, he had
“the circumstances,” referring to the circumstances of the
accident. Thus, it is clear that the trooper did not suggest that
law enforcement had evidence suggesting Appellant’s culpability
that was not presented to the jury.

     With regard to the testimony about Appellant’s intoxication
and whether he was at fault in the accident, even assuming there
was a basis for an objection, Appellant failed to show prejudice:
Witnesses at the scene of the accident observed beer cans in
Appellant’s car and smelled alcohol on his person; the traffic
homicide investigator testified that Appellant’s eyes were
bloodshot and watery and his speech was slurred; and a blood
draw was conducted, and Appellant’s blood alcohol level was
determined to be .196. Thus, there is no reasonable probability
that the outcome of the trial would have been different if the
trooper’s testimony regarding Appellant’s intoxication had been
stricken.

     Furthermore, an eye witness indicated that when
Appellant’s car started to move through the intersection, she was
afraid, because the semi-truck was too close for Appellant to
safely make the turn. The traffic homicide investigator testified

                                4
that Appellant was at fault in the accident, because he violated
the truck’s right-of-way. 2 Given this evidence, combined with the
evidence of intoxication, there is no reasonable probability that
the outcome of the trial would have been different, even if the
trooper’s testimony that Appellant was at fault in the accident
had been stricken.

     In Appellant’s third claim, he argued that his attorney
should have moved for judgment of acquittal on the basis that the
State failed to prove the element of impairment. He alleged that
his attorney should have argued the evidence of his blood alcohol
level was not properly introduced, as the laboratory analyst who
tested the blood sample did not lay a proper predicate for the
introduction of the results.

     “In moving for a judgment of acquittal, a defendant ‘admits
not only the facts stated in the evidence adduced, but also admits
every conclusion favorable to the adverse party that a jury might
fairly and reasonably infer from the evidence.’” Beasley v. State,
774 So. 2d 649, 657 (Fla. 2000) (quoting Lynch v. State, 293
So. 2d 44, 45 (Fla. 1974)). “A motion for judgment of acquittal
should only be granted if there is no view of the evidence from
which a jury could make a finding contrary to that of the moving
party.” Jeffries v. State, 797 So. 2d 573, 580 (Fla. 2001). “In
resisting a judgment of acquittal, the state can rely on any
evidence adduced, even evidence later determined to have been
erroneously admitted.” State v. Brockman, 827 So. 2d 299, 302
(Fla. 1st DCA 2002). A defendant is not entitled to a judgment of
acquittal “merely because evidence that is critical to the court’s
finding of sufficiency was improperly admitted.” Barton v. State,
704 So. 2d 569, 573 (Fla. 1st DCA 1997).

     Here, when the State introduced the lab report reflecting
that Appellant’s blood alcohol level was .196, defense counsel
indicated that he had no objection. Having failed to object to this
evidence, he was not entitled to challenge its admission after the
fact in a motion for judgment of acquittal. Furthermore, even if

    2 Appellant raised no argument as to the propriety of this
testimony.

                                5
this evidence was not properly admitted, it could be relied upon
to deny any such motion. Under these circumstances, this claim
was properly denied.

     In Appellant’s fourth claim, he argued that his attorney was
ineffective for failing to object to erroneous jury instructions. He
alleged that the trial court should not have instructed the jury on
the statutory presumption of impairment. This claim was
properly denied for the reasons already discussed in connection
with Appellant’s third claim.

     In Appellant’s fifth claim, he argued that his attorney was
ineffective for failing to object to an improper closing argument.
He alleged that the prosecutor’s argument of no reasonable
doubt, because the evidence was not contradicted, suggested that
the defense had a burden to produce evidence. Improper burden
shifting occurs when the State invites the jury to convict for a
reason other than the fact that the State has proven its case
beyond a reasonable doubt. State v. Scott, 66 So. 3d 923, 930
(Fla. 2011) (citing Gore v. State, 719 So. 2d 1197, 1200 (Fla.
1998)). This can occur where the State comments on the
defendant’s failure to produce evidence that would refute an
element of the charge. Id. (citing Jackson v. State, 575 So. 2d
181, 188 (Fla. 1991)).

     However, even when the State makes an improper
argument, the bar for showing prejudice is high. “If ‘improper
comments by a prosecutor do not constitute reversible error, the
defendant ‘cannot demonstrate the prejudice requisite for a
successful ineffective assistance of counsel claim’’ relating to
counsel’s failure to object to the comments.” Taylor v. State, 120
So. 3d 540, 551 (Fla. 2013) (quoting Lugo v. State, 2 So. 3d 1, 17
(Fla. 2008)). To show entitlement to a new trial based upon
improper prosecutorial comments, such comments must:

    either deprive the defendant of a fair and impartial
    trial, materially contribute to the conviction, be so
    harmful or fundamentally tainted as to require a new
    trial, or be so inflammatory that they might have
    influenced the jury to reach a more severe verdict than
    that it would have otherwise.

                                 6
Walls v. State, 926 So. 2d 1156, 1157 (Fla. 2006) (quoting Spencer
v. State, 645 So. 2d 377, 383 (Fla. 1994)).

    Here, the prosecutor argued:

         So I really must ask you to look at the evidence
    that’s been presented through trial yesterday and today.
    Apply the law that I’ve touched upon and you’ll be
    further instructed on, and use your common sense.
    What that’s going to tell you is that the defendant was
    driving the vehicle, that the defendant had a blood
    alcohol level of .196 or higher, that he had marijuana in
    his system at the time he was driving, that he pulled out
    in front of that truck that caused not only damage to the
    truck and the Sebring he was driving, but it also caused
    and contributed to the death of Ms. McCarty. If he
    doesn’t do that, that crash doesn’t happen and she
    doesn’t die. He caused or contributed to her death.

         That evidence is—won’t be contradicted, and
    because it won’t be contradicted, there is no reasonable
    doubt as far as his guilt. He is guilty as charged for DUI,
    driving under the influence, manslaughter and driving
    under the influence, damage to property. Thank you.

(Emphasis added.) Given the evidence discussed above, even
assuming, arguendo, that counsel should have objected to this
argument, Appellant cannot show that this isolated remark
meets the standards discussed above for demonstrating prejudice
in this context. The evidence introduced at trial established that
Appellant was driving while heavily impaired, when he turned in
front of the semi-truck without adequate space, violating the
truck’s right-of-way. Under these circumstances, there is no
indication that the prosecutor’s remark deprived Appellant of a
fair trial, materially contributed to his conviction, fundamentally
tainted the proceedings, or inflamed the jury to reach a more
severe verdict than it ordinarily would have rendered. Therefore,
this claim was properly denied.



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     In Appellant’s sixth claim, he argued that his attorney was
ineffective for failing to call defense witness Amanda Price to
testify. Appellant alleged that Ms. Price would have testified
that the driver of the semi-truck was speeding and driving
erratically at the time of the accident, thus contradicting the
truck driver’s testimony that he was not speeding, as well as the
testimony of the highway patrol trooper and the traffic homicide
investigator that Appellant was at fault in the accident.

     Even if Ms. Price’s testimony could have established that the
driver of the semi-truck shared in the blame for the accident,
there is no reasonable probability that it would have changed the
outcome of the trial. First, her testimony would have been
contradicted by that of the traffic homicide investigator, who
testified that he estimated the speed of the semi-truck to be
between 36 and 39 miles per hour at the time of the accident, and
the speed limit was 40 miles per hour. Second, as discussed
above, Ms. Watson testified that the semi-truck was moving fast,
the speed limit was 40 or 45 miles per hour, and the truck
appeared to be “doing every bit of that coming through the
intersection.” Thus, even Ms. Watson, who was concerned by the
speed of the semi-truck at the time of the accident, estimated
that it was going the speed limit.

     Furthermore, DUI manslaughter requires proof that a
defendant operated a vehicle while impaired within the meaning
of section 316.193(1), Florida Statutes (2013), and, “by reason of
such operation, cause[d] or contribute[d] to causing . . . [t]he
death of any human being . . . .” § 316.193(3)(c)3.a., Fla. Stat.
(2013) (emphasis added). “[T]he fact that someone is intoxicated
and drives a particular vehicle which causes another person’s
death should be enough to satisfy the elements of DUI
manslaughter.” State v. Hubbard, 751 So. 2d 552, 563 (Fla.
1999). “The causation element of the amended statute was
interpreted by [the Florida Supreme Court] in [Magaw v. State,
537 So. 2d 564, 567 (Fla. 1989),] as not requiring that the conduct
of the operator of the vehicle be the sole cause.” Hubbard, 751
So. 2d at 564 (emphasis in original). 3 “The statute requires only

    3 The version of the statute being interpreted in those cases
required that operating a vehicle while intoxicated “cause” a
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that the operation of the vehicle should have caused the accident.
Therefore, any deviation or lack of care on the part of a driver
under the influence to which the fatal accident can be attributed
will suffice.” Magaw, 537 So. 2d at 567.

     Here, even if the driver of the semi-truck was speeding, it
would not undermine the evidence that Appellant’s actions
caused or contributed to the accident. As discussed above, an
eye witness testified that she was concerned when she saw
Appellant’s car start to turn in front of the truck, because he did
not have enough time to make the turn. The traffic homicide
investigator opined that Appellant was at fault, because he
violated the semi-truck’s right-of-way when he made the left
turn, as they were both moving on a green signal and Appellant
should have yielded. There was ample evidence establishing
Appellant’s intoxication at the time of the accident, including the
results of the blood alcohol test, testimony regarding the odor of
alcohol on his breath, bloodshot and watery eyes, and slurred
speech. Thus, the evidence established that while Appellant was
impaired, he turned in front of the truck without adequate time
to safely complete the turn, thus violating the semi-truck’s right-
of-way. Under these circumstances, this claim was properly
denied.

      In Appellant’s seventh claim, he argued that the cumulative
effect of his attorney’s errors deprived him of a fair trial. This
claim was properly denied. For the reasons discussed above,
Appellant’s individual claims are meritless; therefore, “[b]ecause
all of the allegations of individual legal error are without merit, a
cumulative error argument based upon these errors must also
fail.” See Barnhill v. State, 971 So. 2d 106, 118 (Fla. 2007).

    In Appellant’s eighth claim, he argued that the trial court
committed fundamental error in instructing the jury on the
statutory presumption of impairment, because the blood alcohol


death, see Hubbard, 751 So. 2d at 562; Magaw, 537 So. 2d at 566,
whereas the current version requires operating the vehicle to
“cause or contribute to” the victim’s death. See § 316.193(3)(c)3.,
Fla. Stat. (2013). The current version contains broader language.

                                 9
evidence was not properly introduced.           This claim is not
cognizable pursuant to rule 3.850, because it should have been
raised on direct appeal. See Fla. R. Crim. P. 3.850(c) (“This rule
does not authorize relief based upon grounds that could have or
should have been raised at trial and, if properly preserved, on
direct appeal of the judgment and sentence.”); Johnson v. State,
985 So. 2d 1215, 1215 (Fla. 1st DCA 2008) (“[P]rosecutorial
misconduct, insufficiency of the evidence . . ., and trial court
error[] are not cognizable in a collateral postconviction motion.”).
Furthermore, as discussed in connection with Appellant’s third
claim, defense counsel did not object to the introduction of the lab
report, therefore, the trial court had no basis to disregard the
evidence of impairment.

    AFFIRMED.

JAY and M.K. THOMAS, JJ., concur.

                    _____________________________

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

Melvin L. Pryear, pro se, Appellant.

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




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