Delancy v. State, 4D17-43

• Decision Date: 20 September 2018
• Docket Number: No. 4D17-43,4D17-43
• Citation: 256 So.3d 940
• Parties: Joseren Deshune DELANCY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

256 So.3d 940

Joseren Deshune DELANCY, Appellant,

v.STATE of Florida, Appellee.

No. 4D17-43

District Court of Appeal of Florida, Fourth District.

September 20, 2018

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Luke R. Napodano and Ilana Mitzner, Assistant Attorney General, West Palm Beach, for appellee.

Warner, J.

Defendant appeals a final judgment of conviction and sentence of ten years for high speed or wanton fleeing and resisting an officer without violence. He challenges his conviction by contending that his trial counsel was ineffective on the face of the record by failing to object to the impeachment of his star witness based upon pending charges against that witness. He further challenges his sentence as based on a misapprehension of fact and violation of the equal protection clauses of the United States and Florida Constitutions. We affirm the convictions, concluding that even if his counsel were ineffective, appellant has not shown that there was a reasonable probability that the result of the proceedings would have been different, given the other evidence presented. As to the sentence, while it is stiff, the sentence is within the maximum statutory limit, and it is neither based on a misapprehension of fact nor constitutionally infirm.

At trial, three officers involved in the apprehension of appellant testified. The first officer testified that he was patrolling in his sheriff's vehicle when he noticed that the driver of a vehicle passing in the opposite direction was not wearing a seatbelt and ducked down to conceal his face. A passenger was also in the vehicle. The officer made a U-turn to effect a traffic stop. A second officer in the area passed by the stopped vehicle, and as he did he had a direct view of the driver, whom he was able to identify in court as the appellant.

The first officer stopped the vehicle; however, when he approached it, the driver sped off through a residential area and past a daycare center at speeds of over ninety miles an hour. The driver ran a red light and nearly lost control of his vehicle as he was turning a corner. A twelve-year-old girl was in the vicinity and pointed the officers in the direction that the vehicle fled. A third deputy saw the driver stop and run away from his vehicle. The deputy followed the driver on foot through a residential neighborhood, losing sight of him for a few seconds, but then he saw him arguing with a woman and trying to get into her house. He was sure that this man was the driver.

The deputy ordered him to stop, but the driver entered the house. One of the two other officers then arrived, and they entered the house after the driver. The suspect eventually emerged from a room, drenched in sweat and out of breath. The officers detained him. The deputy testified the man who came out of the room was the same person and in the same clothes as the driver. He wore the same printed white shirt and long black shorts, but was wearing a different hat. The officer identified appellant as that individual. The second officer who helped chase the suspect into the house also identified the appellant and the clothes he wore. The third officer, who arrived after appellant was detained, testified that the person detained had the same clothes as the driver when he first saw him. A dashcam video from one officer's vehicle was also played for the jury, and it showed the officer running toward the house after spotting appellant.

Appellant's mother was the woman at the house where appellant was arrested. For the defense, she testified that appellant was at home with her all evening. They heard sirens late in the evening, and she went outside to investigate. She saw officers walking up the street and into her driveway. Her door was cracked open, and when the officer saw appellant, he said, "You're the one." The officers then entered her home with guns drawn. She stated that appellant was wearing a white shirt.

The defense also called McIntyre, the passenger in the fleeing car who had also been arrested that evening. He testified that the vehicle was being driven by his cousin, Parks, not the appellant. They were returning home from a construction job with his uncle. After they dropped off the uncle, police stopped them, and his cousin fled the scene. McIntyre stayed in the car and was detained by the deputies. He testified that his cousin Parks was wearing a black shirt and hat, and he had a similar complexion and beard as appellant.

McIntyre further testified that he did not know appellant and did not recognize him at trial. On cross-examination, the prosecutor noted that McIntyre was in jail clothes and questioned him about his many pending charges, including robbery with a deadly weapon, aggravated assault with a firearm, and grand theft. Defense counsel did not object to this line of questioning.

On rebuttal, the State recalled the three officers. The first officer testified that he knew Parks, and he had no doubt that Parks was not the driver. The other officers testified that the driver was wearing a white shirt, not a black shirt, and introduced a booking photo which showed appellant in a white shirt.

After closing arguments, the jury found appellant guilty of high speed or wanton fleeing and resisting an officer without violence. The court adjudicated appellant guilty and sentenced him to ten years in prison for the fleeing charge and to time served for resisting without violence. Appellant also filed two motions to correct his sentence, alleging racial disparity in sentencing. The court denied the first motion. It did not rule on the second motion; thus, it is deemed denied.

Appellant contends that his trial counsel was ineffective on the face of the record because he failed to object when the prosecutor impeached defense witness McIntyre by questioning him about his pending charges. Because claims of ineffective assistance of counsel are fact-specific, defendants generally should raise them in motions for postconviction relief. Latson v. State , 193 So.3d 1070, 1073 (Fla. 1st DCA 2016). However, a claim of ineffective assistance may be considered for the first time on direct appeal if: the ineffectiveness is apparent on the face of the record; there is undisputable prejudice; and there is no conceivable tactical explanation for the conduct. Hills v. State , 78 So.3d 648, 652 (Fla. 4th DCA 2012). "This exception is rarely applicable," but if so, this court reviews de novo whether the claim meets the deficiency and prejudice prongs of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. To show prejudice,

[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ; see Thompson v. State , 990 So.2d 482, 488, 490 (Fla. 2008) (finding prejudice is not whether deficient conduct "more likely than not" affected the trial outcome, but whether it undermined confidence in the outcome and rendered it unreliable).

Appellant claimed, in his defense, that he was not in the vehicle. He argues McIntyre was his star witness, but the State destroyed his credibility by improperly questioning him about his pending felony charges. The prosecutor also highlighted the fact that McIntyre was in jail ("I couldn't help but notice your attire, are you currently incarcerated?"). Appellant contends the questioning resulted in fundamental error, or his attorney's failure to object was ineffective assistance apparent on the face of the record.

The State concedes, and we agree, it was improper for the State to cross-examine McIntyre on his pending charges. Fulton v. State , 335 So.2d 280, 282-83 (Fla. 1976) (holding the State may not question a defense witness on his or her pending criminal charges of which he or she has not been convicted). Furthermore, there does not seem to be a strategic explanation for counsel's failure to object, given the number of pending charges discussed.

Nevertheless, under Strickland , the defense must show that this deficiency has undermined confidence in the outcome of the proceeding or that the error was fundamental such "that a verdict of guilty could not have been obtained without the assistance of the alleged error." Walden v. State , 123 So.3d 1164, 1166 (Fla. 4th DCA 2013).

Given the testimony and evidence, neither fundamental error nor Strickland prejudice has been shown. McIntyre's testimony that appellant was not the driver of the vehicle was cumulative to the mother's testimony that appellant was home with her. Testimony that is cumulative to other witnesses' testimony can render the improper impeachment harmless. See Bedford v. State , 589 So.2d 245, 252 (Fla. 1991). Furthermore, McIntyre testified that he did not know appellant. While improper impeachment of a defense witness may have a "spill-over effect" on the credibility of the defense where the witness is a friend or relative, see Fulton , 335 So.2d at 285, where there is no connection between the witness and the defendant, the harmful "spill-over" effect is not present. See Bedford , 589 So.2d at 252.

Here, the verdict was amply supported by the testimony of the three officers, two of whom positively identified appellant as the driver of the vehicle. The dashcam video of the officer rushing into the house directly refuted the mother's testimony that the officers observed appellant through an open door before entering the house, and it is consistent with the officer's testimony. One of the officers knew Parks, whom McIntyre said was the driver, and testified that the driver was not Parks. Finally, the State never mentioned McIntyre's convictions in closing argument and did not seek to capitalize on the...