DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DARRELL TELISME,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-2320 

[November 21, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 50-2015-CF011759-AXXX-MB.

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. 

Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant was found guilty of one count of first-degree murder and 

sentenced to life in prison. He raises several issues on appeal: (1) whether 

the trial court abused its discretion in allowing a detective to testify 

regarding what a witness told him about the murder, (2) whether defense 

counsel was ineffective on the face of the record for failing to call an expert 

witness, (3) whether the trial court fundamentally erred in not defining 

“attempt” in the jury instructions, and (4) whether the trial court erred in 

sustaining a golden rule objection against defense counsel. We find all of 

these issues to be without merit and affirm. We write, however, to briefly 

address appellant’s claim of ineffective assistance of counsel. 

The night of the murder, appellant, the victim, and the victim’s 

roommate had gone out to a bar. At some point during the evening, 

appellant and the victim got into a fight with one another, trading blows 

in the street. The victim and the roommate eventually left the area and 

returned home without appellant. Appellant later showed up at the 

victim’s apartment and shot and killed the victim. Police arrested 
2

appellant later that morning. During a voluntary post-Miranda interview, 

appellant confessed to killing the victim, but insisted that the events of the 

evening were a “blur.”

On appeal, appellant argues that counsel was ineffective on the face of 

the record for failing to call an expert witness to testify regarding 

appellant’s susceptibility to influence during the police interview. Below, 

defense counsel sought to call this expert only on the issue of diminished 

capacity. 

In general, this court will not consider a claim of ineffective assistance 

of counsel on direct appeal. Aversano v. State, 966 So. 2d 493, 494-95 

(Fla. 4th DCA 2007). However, ineffective assistance that is apparent on 

the face of the record and which causes obvious prejudice may be 

considered on direct appeal. Id. at 495. In order to successfully raise such 

a claim, the claimant must “identify particular acts or omissions of the 

lawyer that are shown to be outside the broad range of reasonably 

competent performance under prevailing professional standards” and 

show that such performance “so affected the fairness and reliability of the 

proceeding that confidence in the outcome is undermined.” Simmons v. 

State, 105 So. 3d 475, 487 (Fla. 2012). 

Appellant’s claim does not meet these requirements. Rather, defense 

counsel’s performance, which is strongly presumed not to be ineffective, 

was consistent with the norms of professional conduct. See id. Below,

appellant sought to call the expert to testify regarding appellant’s 

diminished capacity. However, the Florida Supreme Court has held that 

“defense counsel is not ineffective for failing to present the defense of 

diminished capacity because diminished capacity is not a viable defense 

in Florida.” Evans v. State, 946 So. 2d 1, 11 (Fla. 2006). Thus, defense 

counsel’s refusal to call the expert on diminished capacity was not 

ineffective. 

To the extent appellant now argues that defense counsel should have 

called the expert for another reason—that is, regarding appellant’s 

vulnerability to police interrogation tactics—this argument too fails. 

Defense counsel’s decision not to call the expert on this secondary subject 

was a strategic decision well within “the broad range of reasonably 

competent performance under prevailing professional standards.” See 

Simmons, 105 So. 3d at 487. Such a decision is not considered ineffective 

on the face of the record. See id. 

Under the circumstances, counsel’s performance was not so facially 

insufficient as to warrant consideration of appellant’s ineffective 
3

assistance claim on direct appeal. See Aversano, 966 So. 2d at 494-95; 

Simmons, 105 So. 3d at 487. Because we find all of appellant’s arguments 

to be without merit, we affirm. 

Affirmed.

MAY, LEVINE and KLINGENSMITH, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.