Johnson v. State

181 So.3d 1243

Derrick JOHNSON, Appellant,

v.The STATE of Florida, Appellee.

No. 3D13–3231.

District Court of Appeal of Florida, Third District.

Dec. 23, 2015.

Law Offices of Andrew Rier, and Daniel Tibbitt, for appellant.

Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

Before ROTHENBERG, SALTER, and LOGUE, JJ.

ROTHENBERG, J.

The defendant, Derrick Jackson, appeals his conviction for second degree murder with a firearm, arguing that: (1) the trial court abused its discretion by allowing the State to peremptorily strike an African American juror, Mr. Guthrie, where the State's race-neutral explanation was not supported by the record, and (2) defense counsel provided ineffective assistance of counsel on the face of the record because, in response to the jury's request during deliberations to have access to the two eyewitnesses' trial testimony, defense counsel agreed that the trial court should instruct the jurors to rely on their own recollections, without informing the jurors of the possibility of a readback of the testimony. Because the record demonstrates that the State advanced a factually accurate race-neutral reason for peremptorily challenging Mr. Guthrie, and because there is a plausible strategic reason for defense counsel agreeing that the trial court should instruct the jurors to rely on their own recollection, we affirm.

During voir dire, the State informed the jury that a person may legally use deadly force to defend himself under certain circumstances. Thereafter, the State asked the jurors that if the law in Florida requires that ten criteria must be met before a person can legally use deadly force, was there anyone on the jury that would find that if the defendant only established nine out of the ten criteria, that would that be "good enough." The State immediately followed up by asking the jurors whether the defendant must establish all ten criteria before they would find that the defendant legally used deadly force. Mr. Guthrie replied "no," which suggested that Mr. Guthrie would not require the defendant to meet his burden and follow the law relating to the use of deadly force. However, after further explanation and questioning, Mr. Guthrie stated that he would follow the law on the use of deadly force.

After the State sought to peremptorily strike Mr. Guthrie, an African American, the trial court asked the State to provide a race-neutral explanation. The State asserted that although Mr. Guthrie ultimately stated that he would follow the law as it pertains to the use of deadly force, he initially expressed reservations about doing so. Thereafter, the trial court permitted the strike, finding that the State provided a race-neutral explanation.

At trial, the State presented the testimony of two eyewitnesses to the shooting. The first eyewitness, who knows the defendant, testified that the defendant did not shoot the victim. In contrast, the second eyewitness, who knows the defendant from the neighborhood, testified that the defendant shot the victim numerous times.

During deliberations, the jury sent a note to the trial court stating, "If permitted, we would like access to the testimony (audio or text) of the two eyewitnesses." Thereafter, the State suggested that the trial court instruct the jury to rely on their own recollection, unless the jury would like a readback of the testimony. After discussing that there was recent case law on the issue, the trial court explained that the trial court has discretion as to whether the testimony will be read back to the jury, but the trial court cannot mislead the jury into believing that a readback is prohibited, and when the trial court denies the jury's request for transcripts, the trial court must inform the jury of the possibility of a readback.¹

Thereafter, because the parties and the trial court were not clear what testimony the jury was referring to—trial testimony and/or statements made to the police—the trial court sent a note back to the jury asking if it was "referring only to the trial testimony of [the two eyewitnesses]." The jury clarified that it was referring only to the eyewitnesses' trial testimony. Defense counsel then suggested that the jurors should be instructed to rely on their own recollection, but they should be informed that if they still "can't figure it out, then there would be a readback." After the State voiced its concern, the defense counsel agreed that the jurors should simply be instructed to rely on their own recollection of the testimony, but if the jurors returned with another note, then the testimony should be read back to them. Following defense counsel's suggestion, the trial court specifically asked defense counsel if he agreed that the instruction should simply tell the jurors that they should rely on their own...