       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 15, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-68
                        Lower Tribunal No. 09-32511A
                            ________________


                                  Deon Byrd,
                                     Appellant,

                                        vs.

                            The State of Florida,
                                     Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Rodolfo A. Ruiz, Judge.

      Deon Byrd, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.


Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.

      ROTHENBERG, J.
       The defendant, Deon Byrd, appeals the trial court’s order denying his

motion and supplemental motion for postconviction relief filed pursuant to Florida

Rule of Criminal Procedure 3.850. We affirm the trial court’s thorough and well-

reasoned order.

       On March 9, 2012, the defendant was found guilty of second degree murder

and possession of a firearm by a convicted felon, which this Court affirmed on

direct appeal. Byrd v. State, 150 So. 3d 1152 (Fla. 3d DCA 2014). In the

defendant’s timely filed motion and supplemental motion for postconviction relief,

he raised nine separate grounds attacking actions attributable to the State, the trial

court, and the defendant’s trial counsel. Because the grounds asserted against the

State and the trial court were reviewable on direct appeal, and thus not subject to

collateral attack by postconviction relief, we affirm the trial court’s order as to

those claims. Specifically, we find that claims I, V, VI, and a portion of claim II

fall into this category.1

       We now address the remaining claims, all of which allege ineffective

assistance of trial counsel.

Claim II—Trial counsel’s failure to object to the trial court’s failure to offer to read
back certain testimony


1 Claim I alleges that the State’s preemptory challenges were exercised in a
discriminatory manner; claims V and VI relate to alleged jury instruction errors;
and claim II alleges, in part, the trial court’s failure to offer to read back certain
testimony based on a question posed by the jury.

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      During jury deliberations, the jury submitted the following question to the

trial court: “What color shorts did Cormelia Hawkins [a State witness] specify the

defendant was wearing at her house?” Although the jury did not request either a

transcript or a “read-back” of Hawkins testimony, the defendant argues that his

trial counsel provided ineffective assistance of counsel by not objecting to the trial

court’s failure to offer to read back the testimony to the jurors and its instruction to

the jurors to rely on their recollections of the evidence. However, to prevail on a

claim of ineffective assistance of counsel, a defendant must establish that trial

counsel’s performance was deficient and that the deficient performance prejudiced

the defendant so as to deprive him of a fair trial. Strickland v. Washington, 466

U.S. 668, 687 (1984); Crain v. State, 78 So. 3d 1025, 1033 (Fla. 2011). Because

the defendant has not demonstrated the requisite prejudice and deprivation of his

right to a fair trial, we find no error with regards to the trial court’s order denying

this claim.2

2  Although not dispositive in this case, because the defendant has failed to
demonstrate that his trial counsel’s failure to object to the trial court’s instruction
to the jurors to rely on their recollection of the evidence without offering to read-
back the testimony prejudiced the defendant so as to have deprived him of a fair
trial, we believe that a distinction can and should be made between a jury request
for a transcript or a read-back of a witnesses’ trial testimony and a fact question
directed to the trial court. First, we note that in Hazuri v. State, 91 So. 3d 836 (Fla.
2012), the Florida Supreme Court limited its analysis and holding to a jury’s
request for a transcript. Noting that transcripts may be read to the jury but they
may not be provided to the jury during its deliberations, id. at 841-42, and that
jurors are generally lay people “often unfamiliar with legal terms of art,” id. at 845,
the Court concluded that when a jury requests a trial transcript, the trial court

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Claim III—Trial counsel’s failure to object to the manslaughter instruction
provided to the jury

      We find this claim devoid of merit. The manslaughter instruction provided

by the trial court in this case did not contain the objectionable language initially

identified or addressed by the Florida Supreme Court in State v. Montgomery, 39

So. 3d 252, 259-60 (Fla. 2010). The instruction given was the corrected Florida

Standard Jury Instruction (Crim.) 7.7 approved by the Florida Supreme Court: “In
should deny the request but inform the jury of the possibility of a read-back. Id. at
846. Second, a question of fact directed to the trial court is significantly different
than a request for a transcript. A fact question directed to the trial court is a
request by the jury for the trial court to insert itself into the jury deliberations and
to resolve a conflict or questions about the evidence. In such cases, the trial court
should not be required to inform the jury that he or she is not permitted to
comment on the evidence but that the jurors may request that the testimony of a
witness be read back to them in open court. Such a requirement would be
confusing and could lead to undesirable consequences. For example, some fact
questions may rest on a combination of the testimony of one or more witness and
physical evidence. An offer to read back certain testimony to the jury, may require
an evaluation of all of the evidence, which would, again, thrust the trial court into
the deliberation process. Thus, we agree with the Fifth District Court of Appeal in
Frasilus v. State, 46 So. 3d 1028 (Fla. 5th DCA 2010), that Florida Rule of
Criminal Procedure 3.410 does not require, and should not be extended to require,
the trial court to inform the jury that it may request a read-back of the testimony
when the jury poses a fact question to the trial court. See Frasilus, 46 So. 3d at
1032 stating:
       We do not think it is either necessary or desirable to impose a
       requirement on the trial court to inform the jury of its right to request
       a read-back in response to any question from the jury concerning an
       issue of fact that may have been the subject of testimony somewhere
       during the course of the trial. . . . Because a trial court is not required
       to accede to a jury’s request for a read-back of evidence it has already
       heard, it is difficult to imagine circumstances under which a trial
       court’s failure to advise the jury of its right to request a read-back
       could vitiate the fairness of the entire trial.


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order to convict of manslaughter by intentional act, it is not necessary for the State

to prove that the defendant had a premeditated intent to cause death, only an intent

to commit an act which caused death.”

Claim IV—Trial counsel’s failure to object to the State’s closing argument

      The defendant claims that during closing arguments, the prosecutor

bolstered the testimony of an eyewitness by vouching for the witness’s credibility.

This claim is refuted by the record. Referring to the evidence presented, arguing

that the evidence was consistent with other evidence in the case, and noting the

lack of evidence of a witness’s motive to lie do not constitute bolstering. Yok v.

State, 891 So. 2d 602, 603 (Fla. 1st DCA 2005) (concluding that the prosecutor’s

statement in closing arguments urging the jury to find that the witness was credible

(“honest and straight-forward”) based on the evidence did not constitute improper

bolstering).

Claim VIII—Trial counsel’s failure to object to the “principal” instruction given to
the jury

      The defendant claims that the trial court erred by instructing the jury on

“principals” because the information did not charge him as a principal and that his

trial counsel provided ineffective assistance of counsel by failing to object. There

is no requirement, however, that the charging document specifically allege that the

defendant acted as a principal in order for the State to pursue and the jury to be

instructed on principals. See State v. Larzelere, 979 So. 2d 195, 215 (Fla. 2008).


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Claim VIII—Trial counsel’s failure to object to the trial court’s omission of the
definitions of justifiable and excusable homicide when charging the jury

      While it is true that the trial court erred by failing to provide the jury with

the standard jury instruction for the definitions of justifiable and excusable

homicide, we do not find that this omission constitutes fundamental error or

prejudice sufficient to have deprived the defendant of a fair trial. The issue in this

case was not whether the homicide was justifiable or excusable, but rather, whether

the defendant was the person who committed the homicide. Thus, the error was

not fundamental error. See Pena v. State, 901 So. 2d 781, 787 (Fla. 2005) (finding

that the trial court did not commit fundamental error where the defendant did not

request those instructions and justification or excuse were not material issues);

Franco v. State, 901 So. 2d 901, 904 (Fla. 4th DCA 2005) (holding that the trial

court’s failure to provide a justifiable or excusable homicide instruction was not

fundamental error where there was no evidence that the homicide was justifiable or

excusable). Because the defendant has not demonstrated a reasonable probability

that with the inclusion of these instructions, the jury would have had a reasonable

doubt as to his guilt, as required under the second prong of the Strickland analysis,

we do not find that the defendant’s trial counsel’s failure to object constitutes

ineffective assistance of counsel. Strickland, 948 So. 2d at 617.

Claim IX—Trial counsel’s failure to object to the inclusion of the “self-defense”
instruction



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      The defendant claims that his trial counsel provided ineffective assistance of

counsel by failing to object to the inclusion of the “self-defense” instruction with

the other instructions provided to the jury. As previously stated, the defendant’s

defense in this case was not that his actions were either justifiable or excusable, but

was instead based on a theory of mistaken identification—that he was not the

person who committed the crime. Thus, the defendant presently contends that the

inclusion of the “self-defense” instruction was irrelevant, not that the instruction

given was infirm. The defendant, however, has not articulated any prejudice, nor

have we found any, which resulted from this allegedly irrelevant instruction.

Therefore, the defendant has not met his burden under the Strickland analysis, and

he has not established ineffective assistance of counsel requiring a new trial.

                                   CONCLUSION

      Because the defendant has failed to meet his burden of establishing that his

trial counsel’s performance was deficient and that the deficiency prejudiced his

defense such that there is a reasonable probability that but for the claimed errors

the proceeding would have been different, we affirm. Strickland, 466 U.S. at 694.

      Affirmed.




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