Douglas v. State

• Decision Date: 07 February 2018
• Docket Number: No. 3D15–759,3D15–759
• Parties: Tracy DOUGLAS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

239 So.3d 157

Tracy DOUGLAS, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D15–759

District Court of Appeal of Florida, Third District.

Opinion filed February 07, 2018

Tracy Douglas, in proper person.

Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.

Before ROTHENBERG, C.J., and SALTER and LUCK, JJ.

ROTHENBERG, C.J.

After a jury trial, the appellant, Tracy Douglas ("the defendant"), was convicted of robbery with a firearm. The judgment and sentence were affirmed on appeal. Douglas v. State, 100 So.3d 702 (Fla. 3d DCA 2012). In 2013, the defendant filed a motion raising eight grounds for postconviction relief based on ineffective assistance of trial counsel. The trial court summarily denied six of the claims, conducted an evidentiary hearing on two of the claims, and following the hearing, entered an order denying the motion. Although the defendant raised eight claims, the eighth claim was a cumulative error claim, and he has only specifically addressed five of the individual seven claims on appeal. We have, however, reviewed all eight claims and affirm.

SUMMARY OF THE EVIDENCE

At approximately 11:00 p.m. on the night in question, the victim exited a bus with another woman, and they began walking, but then parted ways. Thereafter, a man, who the victim later identified as the defendant, approached the victim and robbed her of her cell phone at gunpoint. The victim knocked on the door of a nearby house, where she called the police and reported the robbery.

The victim testified that she got a good look at the robber, whom she recognized from an encounter two or three days prior to the robbery. The victim had actually been in a car with the man who robbed her, along with her friend, Ashley Hunter, two or three days before the robbery. Because the victim wanted to provide the name of the man who had robbed her to the police, she contacted Hunter and asked her for the name of the man in Hunter's car. Hunter told the victim that the man was known as "Bucket." After conducting a search on the internet, the victim identified the defendant as the man who had robbed her. She provided this information to the police and subsequently positively identified the defendant as the man who robbed her at gunpoint in both a pre-trial photo line-up and then again at trial. Records of the stolen cell phone showed calls placed to the defendant's girlfriend and mother the day after the robbery.

239 So.3d 160

At the time of trial, the defendant had five or six pending felony cases, including two first degree murder cases and several robbery cases. The same trial counsel represented the defendant in all of the defendant's cases, and he obtained acquittals in every case that went to trial, including the murder cases, except for the instant case. It appears that the defendant's mother and sisters testified as alibi witnesses in the murder trials.

THE DEFENDANT'S POSTCONVICTION CLAIMS

I. Failure to object to the trial court's response to the jury's request for a transcript of the trial

During jury deliberations, the jury requested "a transcript of the trial." After consultation with counsel for the State and the defendant's counsel, and with the approval of both, the trial court submitted the following response to the jury: "Trial is not transcribed at this time. You must rely upon your recollection, however, read back of certain portion may be available if necessary." We conclude that there was nothing improper or misleading about the trial court's response.¹

First, we note that the jury asked for a transcript of the trial, not for particular testimony given during the trial. No transcripts had yet been prepared, and therefore, the portion of the response stating that the trial had not been transcribed was accurate and not misleading. Second, the trial court did not mislead the jury into believing that a read-back of the testimony was prohibited or that a request for portions of the testimony to be read back to the jury would not be entertained. In fact, the trial court specifically advised the jury that a read-back of the testimony was available if they needed it. Thus, while the trial court has the discretion to deny a jury's request to have testimony read back to it, see Hazuri v. State, 91 So.3d 836, 841 (Fla. 2012) ("As a general rule, trial courts have wide discretion in determining whether to grant read-back requests. Indeed, ‘courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury's request for a read back.’ ") (citations omitted), here, the trial court appeared willing to honor such a request if one was made and informed the jury that it could make such a request.

We, therefore, completely reject the defendant's claim of ineffective assistance...