### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

DARRELL TELISME
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 17

- 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

- CF

011759

- 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.

Conce pcion, Assistant Attorney General, West Palm Beach, for appellee.

P ER C URIAM

.

A ppellant was found guilty of one count of first

- degree murder and sentenced to life in prison. He r aises several issues on appeal: ( 1) whether
the trial court abused its dis cretion 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 n ot 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. W e 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, tradi ng blows in the street. The victim and the roommate eventually left the area and returned home without appellant. A ppellant later showed up at the victim’s ap artment and shot and killed the victim

. Police arrested2 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 e xpert 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 t o 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).

A ppellant’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 t he expert to testify regarding a ppellant’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 n ot
ineffective.

To the extent a ppellant now argues that defense counsel should have called the expert for another reason

— that is, regarding a ppellant’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 p revailing 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 considerat ion of appellant’s ineffective3 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

.

M AY
, L EVINE and K LINGENSMITH
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.