         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-5105
                 _____________________________

TYRONE B. JOHNSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

On appeal from the Circuit Court for Alachua County.
Mark W. Moseley, Judge.

                           May 25, 2018


B.L. THOMAS, C.J.

     Tyrone B. Johnson appeals an order denying his
postconviction motion brought pursuant to Florida Rule of
Criminal Procedure 3.850. For the reasons discussed below, we
affirm.

     Appellant was charged with three counts of attempted
second-degree murder (counts I—III), shooting into an occupied
building (count IV), and possession of a firearm by a convicted
felon (count V). The evidence introduced at trial reflected that on
the night of the shooting, one of the victims, Michael Alford,
attempted to fight Appellant over a dispute involving another
victim, LaKendra Young. Appellant’s friends intervened to stop
the fight, and Appellant retreated to a friend’s apartment and
called the police. The police escorted him back downstairs to his
car. Appellant started to drive out of the apartment complex in
his car, and his friend, Rico Williams, followed in a separate car.
Near the exit to the complex, he stopped his car and discovered
that his tires had been slashed. He started making threatening
remarks, suggesting that he intended to return.

     Later that night, a car drove slowly into the complex, turned
around, and passed by the place where Ms. Young, Mr. Alford,
and Austin Price were standing outside.            Two witnesses
identified it as the same car that had followed Appellant out of
the complex earlier in the night. The windows were rolled down,
several shots were fired, and the car then sped away.

     Ms. Young testified that she felt the wind of one bullet
passing behind her before it struck a sliding glass door. Mr. Price
testified that one of the bullets went over his head and struck a
wall. Mr. Alford and Ms. Young were able to identify Appellant
as the shooter. Another witness, Ira Davis, also saw the shooting
and identified Appellant as the shooter. Evidence was presented
that the vehicle involved in the shooting belonged to Rico
Williams’ girlfriend, Fariha Hoque. When authorities contacted
Ms. Hoque about her vehicle, she initially concealed its
whereabouts, saying it was in Miami.

     Appellant was convicted as charged on counts I, III, and IV,
and of the lesser included offense of aggravated assault on
count II. He was sentenced to a total of life in prison and
designated as an habitual violent felony offender on counts I and
III.   Count V was nolle prossed by the State. Appellant’s
convictions and sentences were affirmed by this court, without
opinion. Johnson v. State, 166 So. 3d 771 (Fla. 1st DCA 2015)
(table).

    Appellant then filed the instant rule 3.850 motion, raising
eight grounds for relief. The lower court summarily denied the
motion, and this timely appeal follows.




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     In Appellant’s first ground, he raised two subclaims
pertaining to counsel’s alleged failure to investigate. 1      In
subclaim (a), Appellant argued that his attorney was ineffective
for failing to depose the State’s witnesses to prepare for cross-
examination. He alleged that Mr. Davis, Ms. Young, and
Mr. Alford had given less detailed statements to the police in
response to the investigation into the dispute between Appellant
and Mr. Alford than they did in connection with the investigation
of the shooting. He asserted that other witnesses were unreliable
or made statements that did not support the State’s case. He
claimed the outcome of the trial would have been different if
counsel had impeached these witnesses, because such
impeachment      would    have     supported    his   alibi  and
misidentification defenses.

     A claim of ineffective assistance of counsel is governed by
Strickland v. Washington, 466 U.S. 668 (1984).           To prove
ineffective assistance, an appellant must allege 1) the specific
acts or omissions of counsel which fell below a standard of
reasonableness under prevailing professional norms and 2) that
the appellant’s case was prejudiced by these acts or omissions
such that the outcome of the case would have been different. See
id. at 690-92. “[W]hen a failure to depose is alleged as part of an
ineffective assistance of counsel claim, the appellant must
specifically set forth the harm from the alleged omission,
identifying ‘a specific evidentiary matter to which the failure to
depose witnesses would relate.’” Davis v. State, 928 So. 2d 1089,
1117 (Fla. 2005) (quoting Brown v. State, 846 So. 2d 1114, 1124
(Fla. 2003)).

     Here, even assuming that Appellant set forth a facially
sufficient claim, he failed to establish prejudice. Mr. Alford,
Ms. Young, Mr. Davis, and another witness, Shanice Bailey, all
provided written statements to the police after the shooting.
During the trial, defense counsel thoroughly cross-examined
these witnesses and impeached them with their prior statements.


    1 Insofar as he raised an additional subclaim arguing that
counsel was ineffective for failing to call Officer Knapp as a
witness, this claim is addressed in ground two.

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Counsel also questioned Mr. Price about prior statements he
made to the police. During closing arguments, defense counsel
highlighted conflicts in their testimony, as well as the
relationships among the witnesses and their possible motive for
testifying falsely about Appellant’s involvement in the shooting.
Under these circumstances, this subclaim was properly denied.

     In subclaim (b), Appellant argued that his attorney was
ineffective for failing to spend adequate time consulting with
him. He alleged that defense counsel failed to review all of the
State’s evidence and witness statements with him, did not
forward discovery to him, and did not show him transcripts from
the depositions of the State witnesses. He asserted that he was
prejudiced by these omissions, because counsel allowed the
defense witnesses’ testimony to be refuted.

     An ineffective assistance of counsel claim based upon a lack
of consultation requires a defendant to demonstrate how he was
prejudiced by the omission. See Jackson v. State, 801 So. 2d
1024, 1025 n.1 (Fla. 5th DCA 2001). Here, Appellant failed to
show that he was prejudiced. He suggested that the lack of
consultation allowed the defense witnesses’ testimony to be
refuted, but did not explain how further consultation could have
avoided that result.

     Additionally, in Appellant’s sworn motion, he alleged that
his attorney visited him nine times, providing specific details
about some visits: his attorney visited him for 20 minutes to
make contact; for 30 minutes to discuss his alibi; a third time to
discuss an alibi witness and depositions; and during a visit in
December 2013, counsel conveyed that he had completed his
investigation. Furthermore, insofar as Appellant argued that
counsel failed to provide him with the deposition transcripts of
State witnesses, he alleged in ground one, subclaim (a), that
defense counsel did not depose the State’s witnesses. Thus,
Appellant’s own allegations undermine his claim.

    Regardless, given the evidence discussed above, there is no
reasonable probability that further consultation wtih defense
counsel would have changed the outcome of the trial. Appellant
was involved in an altercation with two of the victims on the

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night of the offenses. After the altercation, he discovered that his
tires had been slashed and was overheard making threatening
remarks. Three eyewitnesses identified Appellant as the shooter.
The State introduced evidence that the vehicle used in the
shooting belonged to one of Appellant’s friends. Two witnesses
indicated that the same vehicle had been seen following
Appellant out of the complex earlier that night. Under these
circumstances, this subclaim was properly denied, as no prejudice
occurred.

     In Appellant’s second ground, he raised three subclaims. In
subclaim (a), he argued that his attorney was ineffective for
failing to call Officer Knapp to testify. He alleged that Officer
Knapp escorted him to his car after the altercation with the
victims, and that Officer Knapp could have testified that he never
yelled threatening remarks upon discovering that his tires were
slashed.

     This subclaim is conclusively refuted by the record. The
evidence at trial established that the police did escort Appellant
downstairs from his friend’s apartment after the altercation;
however, Appellant did not discover that his tires were slashed
until he was driving out of the apartment complex. Further,
Appellant testified at trial that Officer Knapp escorted him to his
car, he drove away with Rico Williams following in a separate
car, and that Mr. Williams honked to notify him that his tires
were flat. Thus, at the time Appellant noticed and reacted to his
slashed tires, Officer Knapp was no longer with him. Given this
information, this subclaim was properly denied.

     In subclaim (b), Appellant argued that his attorney was
ineffective for failing to object, when the prosecutor asserted
during closing arguments that Appellant made threatening
remarks upon finding that his tires had been slashed. However,
as discussed above, the State presented evidence that after
Appellant discovered his tires had been slashed, he yelled
threatening remarks. Under these circumstances, counsel cannot
be deemed ineffective for failing to object, as the prosecutor’s
argument was a fair comment on the evidence. See Spann v.
State, 985 So. 2d 1059, 1068 (Fla. 2008) (“Because the prosecutor
was making a fair comment based on the evidence presented at

                                 5
trial, counsel cannot be deemed ineffective for failing to object.”);
Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008) (“Counsel
cannot be deemed ineffective for failing to make a meritless
objection.”).

     In subclaim (c), Appellant argued that the prosecutor
committed a Giglio 2 violation by failing to correct false testimony
that he yelled threatening remarks after discovering that his
tires were slashed, and for emphasizing that testimony during
closing arguments. Three different witnesses testified that
Appellant yelled threats when he made that discovery. Given
this information, this subclaim was properly denied. See Serrano
v. State, 225 So. 3d 737, 754 (Fla. 2017) (affirming the denial of a
Giglio claim where the defendant failed to demonstrate that the
witness’ testimony was false).

     In Appellant’s third ground, he argued that his attorney was
ineffective for failing to study cellphone tower transmissions and
retain an expert who could testify about the range of cellphone
towers. He alleged that the State introduced the testimony of
Jeffrey Strohm to establish that Appellant’s cellphone used the
cellphone towers near the crime scene around the time of the
shooting, rather than the towers near his girlfriend’s house on
the night of the shooting, asserting that this evidence
undermined his alibi. He claimed that if counsel had been more
prepared, he could have adequately cross-examined Mr. Strohm.

     But a defendant does not establish that his attorney
performed deficiently in failing to retain a defense expert, when
defense counsel “rigorously challenged the state’s expert.” Crain
v. State, 78 So. 3d 1025, 1040 (Fla. 2011) (holding that the
decision not to call a defense expert was a reasonable strategic
decision where defense counsel is able to obtain significant
concessions from the State’s witnesses through cross-
examination). Here, during Mr. Strohm’s cross-examination,
defense counsel elicited testimony that if the cellphone tower

    2  Giglio v. United States, 405 U.S. 150 (1972) (holding that a
new trial was required where the State knowingly presented
false testimony at trial and that evidence was material).

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near an individual gets “bogged down,” a different tower will pick
up the call. Mr. Strohm agreed that that individual’s cellphone
records would then indicate that he was near the second tower,
even though he was not. Mr. Strohm acknowledged that it was
possible for Appellant to be at his girlfriend’s house and have his
call get picked up by the cellphone tower in the vicinity of the
crime scene. Defense counsel emphasized this testimony during
closing arguments, reiterating that the cellphone tower evidence
did not actually establish Appellant’s location at the time of the
offenses.    Given this information, counsel did not perform
deficiently. Furthermore, given the evidence discussed above,
even if defense counsel had investigated cellphone tower
transmissions or consulted a defense expert, there is no
reasonable probability that the outcome of the trial would have
been different.

     In Appellant’s fourth ground, he argued that his attorney
was ineffective for failing to make an adequate motion for
judgment of acquittal, arguing that counsel should have argued
that the State failed to disprove his alibi defense. This claim is
cognizable pursuant to rule 3.850. See White v. State, 977 So. 2d
680, 681 (Fla. 1st DCA 2008) (concluding that a defendant stated
a meritorious claim of ineffective assistance of trial counsel where
a timely motion for judgment of acquittal would have been
granted). Nonetheless, this claim is meritless.

     “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.’” Beasely 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).
“Because conflicts in the evidence and the credibility of the
witnesses have to be resolved by the jury, the granting of a
motion for judgment of acquittal cannot be based on evidentiary
conflict or witness credibility.” Sapp v. State, 913 So. 2d 1220,
1223 (Fla. 4th DCA 2005). We need not reiterate the evidence
admitted at trial to conclude that this claim must fail here, as no

                                 7
motion for judgment of acquittal would have been correctly
granted based on the evidence here.

     In Appellant’s fifth ground, he argued that his attorney was
ineffective for failing to retain a ballistics expert to testify that
there were two groups of shooters present that night exchanging
fire. He also alleged that this expert could have opined as to
whether the gun was fired at the victims or into the air.

     Appellant failed to establish any deficiency or resulting
prejudice. His defense was that he was not present during the
shooting, not that he did not shoot directly at the victims or that
the victims fired first. Furthermore, such testimony would run
contrary to all of the eyewitness testimony introduced at trial,
which established that a single shooter fired from a moving
vehicle, and the bullets passed by two of the victims and struck
the building behind them. Afterwards, one bullet was found
lodged in a cabinet inside a witness’ apartment. Under these
facts, this ground was properly denied.

     In Appellant’s sixth ground, he argued that his attorney was
ineffective for failing to file a motion for a new trial so that the
trial court could re-weigh the evidence. He alleged that if this
had occurred, he would have received a new trial.

     Such a claim is only meritorious where the movant can show
that a motion for new trial would have been granted, as
otherwise there could be no prejudice. In other words, where
there is not a “strong likelihood a new trial would have been
ordered,” such a claim for collateral relief must be denied. See
Manley v. State, 605 So. 2d 1327, 1328 (Fla. 2d DCA 1992). And
this court has recognized that there is no per se entitlement to
collateral relief, simply because defense counsel failed to file a
motion for new trial without considering the underlying facts.
Williams v. State, 553 So. 2d 309 (Fla. 1st DCA 1989). Here,
given the evidence discussed above, there is no likelihood that a
motion for a new trial would have been granted, because the
verdict was not contrary to the weight of the evidence, but in fact
was entirely consistent with the weight of the evidence. In
contrast, in Lamb v. State, 124 So. 3d 953, 957 (Fla. 2d DCA
2013), the Second District granted collateral relief and a new

                                 8
trial where trial counsel misunderstood the grounds for obtaining
relief by requesting a new trial rather than seeking a judgment of
acquittal, and there could be no strategic reason in foregoing a
motion for new trial to allow the trial court to reconsider the
weight of the evidence, where the original trial court commented
that the identification evidence was some of the “weakest” that
judge had heard.         Here, the identification evidence was
overwhelming, and no reasonable judge would have exercised its
discretion to grant a new trial. Thus, because any motion for new
trial would have been properly denied, Appellant’s trial counsel
did not provide ineffective assistance of counsel. See Hill v. State,
839 So. 2d 865, 867 (Fla. 4th DCA 2003). We thus reject
Appellant’s arguments on this issue.

     In Appellant’s seventh ground, he argued that his attorney
was ineffective for failing to object to the omission of a jury
instruction on the lesser-included offense of attempted
manslaughter. However, “as a matter of law, the possibility of a
jury pardon cannot form the basis for a finding of prejudice under
Strickland.” Sanders v. State, 946 So. 2d 953, 960 (Fla. 2006).
Therefore, this claim was properly denied. See id.

     In Appellant’s eighth ground, he argued that his attorney
was ineffective for failing to challenge the credibility of
Mr. Alford, Ms. Young, Mr. Price, and Mr. Davis. He alleged that
counsel could have impeached these witnesses with their prior
inconsistent statements. He also asserted that counsel failed to
provide him with the deposition transcripts of these witnesses to
allow him to assist in his own defense.

     Appellant has failed to show a deficiency or any resulting
prejudice. As discussed in ground one, each of these witnesses
was thoroughly cross-examined and impeached with prior
inconsistent statements made to the police, and defense counsel
highlighted the inconsistencies in their testimony during closing
arguments. Insofar as Appellant argued that counsel did not
provide him with deposition transcripts, as discussed above, he
also alleged that counsel never deposed these witnesses. Under
these circumstances, this ground was properly denied.

    AFFIRMED.

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LEWIS and MAKAR, JJ., concur.

                 _____________________________

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


Tyrone B. Johnson, pro se, Appellant.

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




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