## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 17

- 3132

_____________________________

K ENYA J. W ILLIAMS

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court fo r Leon County

. Angela C. Dempsey , Judge

.

November 6, 2018

B.L. T HOMAS

, C.J

.

In this Anders 1 appeal, Appellant was charged with first degree murder, attempted armed robbery with a firearm, armed robbery with a firearm, and possession of a firearm by a convic ted felon, all arising out of an incident that occurred in the early morning hours of March 22, 2015. We affirm.

At trial, the State presented evidence that on the night of the incident, Michael Williams (the victim) went to Club Karma with

two c ousins , where they sat talking in the car outside the club.
One cousin soon left to talk to a nearby friend, leaving the victim

and his other cousin, Ambernesia President

, in the car. Suddenly

1 Anders v. Cal ifornia , 386 U.S. 738 (1967).2 a man with a gun o pened the front door of the car , and anothe r

man opened the rear door and told the victim to “give it up.” The men started robbing them , but the victim laugh ed as though it

were not serious

. T he man at the front door told the other man to
“handle that” and wal ked toward the rear of the car; one o r both

men then shot and killed the victim

. Ms. President ran to find her other cousin, and they drove off and called 911.

Ms. President later identified Appellant in a photographic lineup as the man who opened the rear doo r of the car , which was
admitte d into evidence over defen se counsel’s motion to suppress

. Ms. President also identified Appellant in court.

A few hours after the shooting, a man approached two

women and ask ed if he could use their phone. The man was sweaty and covered in grass. H e told the women he had been in
an altercation at Club Karma and that “some guys at the club jumped me. I went home, got my gun, I unloaded my whole clip in their [expletive].” The man told the women that his mother had a house on Apalachee Ridge and tha t his girlfriend lived on
Keith Street. He borrowed a phone and made a few calls

. At some point , one of the women received a call from the victim ’s family friend , and the man ran away. The women called 911, and

p olice apprehended Appella nt based on the 911 description. A police officer drove one of the women to where Appellant was

detained , and she identified Appellant as the man who borrowed her phone. At trial, s he was shown a photograph of shoes and
testified that the shoes in the photograph were th e same shoes as those worn by the man who borrowed the phone

. The trial court overruled defense counsel’s objection to the witness being shown the photo before identifying Appellant.

Appellant’s former girlfriend testified that a few hours before

the i ncident, she and Appellant w ere drinking and smoking drugs

at her house. She testified that at some point during the night

, she left Appellant at her home with a man whom police later
identified on the Club Karma surveillance video. She testified

that wh en she returned home, she got into an argument with Appellant

, and he took her phone; she then threatened to call the police for taking her phone. The State asked, “Weren’t you threatening to call the police because you knew he had the gun that he just us ed to empty a clip in someone at Club Karma?”3 She denied that assertion, as well as the State ’s question about

whether she initially told police that Appellant left the house

between 2 :00 and 4 :00 am, and that she had not seen him since

. She admitted tha t she had been convicted eight times for crimes of dishonesty. The trial court then admitted

, over defense counsel’s relevance objection

, jail visitation logs reveal ing that Appellant’s former girlfriend had visited Appellant eighty times

while he was in jail.

Several police and forensic witnesses testified about the

crime and about evidence recovered at the crime scene. Russell Huston, a former investigator with the Tallahassee Police Department

, testified that he interviewed Appellant and that Appel lant understood his rights and signed a form indicating h is
desire to speak to police. Appellant admitted to police that he told the women on the porch that he had been involved in a

shoot

- out at Club Karma, but claimed to have fabricated th e story

, becau se he did not want to tell them about the argument with his girlfriend. When asked whether his timeline of the events remained consistent, defense counsel objected on the grounds that the question called for a legal conclusion.

At the close of the State ’s case, defense counsel moved for judgment of acquittal, a rguing that the State relied on one or two eyewitnesses and that there was no fingerprint or DNA evidence tying Appellant to the crime. The trial court denied the motion. The jury found Appellan t guilty as charged, finding as to the first degree murder charge that guilt had been established by felony

murder.

Analysis

“[T]here are circumstances where a court

- appointed appellate counsel will, ‘after a conscientious examination,’ find

their cli ent’s case to be ‘wholly frivolous.’” Redmon v. State , 211 So. 3d 306, 307 (Fla. 1st DCA 2017) (quoting Anders , 386 U.S. at 744). In such cases, counsel must “ submit ‘ a brief referring to anything in the record that might arguably support the appeal. ’ ”
Id. In Redmon , the Anders requirements were met, as counsel outlined the facts and procedural history of the case, noted raised4 objections, provided clear citations to the record, and identified possible issues with citations to appropriate legal authorit y. Id

.

Like the counsel in Redmon , appellate counsel here gave a thorough description of the facts and procedural history, identified potential issues, and cited relevant authority for each issue to explain why no reversible error exists

. We thus hold that appellate counsel satisfied the requirements established in
Anders

. We affirm without discussion those issues wh ere there is
no feasible basis for reversal. As to the remaining issues, a fter reviewing the merit of the issues identified by appellate counsel, and conducting an independent review of the record, we find no basis for reversal, and affirm for the reasons set forth below.

As to the State’s peremptory strike of an African

- American

man from the venire

, w hen a peremptory strike is used on a member of a distinct racial group to which the defendant belongs, and the opposing party requests a reason for the peremptory

strike , the court must ask for a reason and the party must provide a race

- neutral explanation. Melbourne v. State , 679
So. 2d 759, 765 (Fla. 1996). If the explanation is facially race

neutral and the court believes it is not pretextual, the strike will
be sustained. Id. Here, b ecause the State cited the p otential juror’s criminal record and noted specific instances whe re t he

p otential juror failed to respond to questions or pay attention , we find no abuse of discretion in granting the peremptory strike.

Regarding t he trial court denying defense counsel’s cause challenge, “[w] here a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily. ” Trotter v. State , 576 So. 2d 691, 693 (Fla. 1990)

. As Appellant accepted the jury

, he
has n o basis to appeal this issue

. See id. ; Couch v. Dunn Ave. Shell, Inc. , 803 So. 2d 803, 804 (Fla. 1st DCA 2001).

Regarding the photographic line

- up, t he test for admissibility
of an out

- of

- court identification is: “(1) did the police employ any

unnece ssarily suggestive procedure in obtaining an out

- of

- court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of5 irreparable misidentification.” Willis v. State , 242 So. 3d 1195, 1197 (Fla. 1st DCA 2018); see also P ierre v. State , 990 So. 2d 565, 570 (Fla. 3d DCA 2008) (holding that a detective “correctly told the victim and the victim’s mother to focus on faces, not hairstyles, because hairstyles may change”).

We conclude tha t instructing Ms. President not to focus on hairstyle or facial hair before showing her the photo lineup did

not render the procedure unduly suggestive. Ms. President
insisted that she was certain of her identification, and she
testified that no one sugge sted in any way that she should pick a particular photo. The officer testified that he did not even prepare the lineup, he only presented it, and the trial court not ed that the photographs were taken on a different date than when it
was shown to Ms. Presi dent

. T his procedure was not un dul y suggestive.

As to t he State showing a photograph to a witness before the
witness’ s in

- court identification

, “ a witness may not testify to a
matter unless evidence is introduced which is sufficient to support a findi ng that the witness has perso nal knowledge of the matter.” § 90.604, Fla. Stat. Here, in identifying the shoes worn by Appellant, t he State showed the witness a photograph of shoes worn by a person in ankle chains, showing the person’ s legs up to

the shi ns

. Because the witness had personal knowledge of the

shoes

, she could properly testify about the photograph

. A lthough

t he witness had not yet identified Appellant, the photo graph did
not taint her later identification , as it did not show a person’s
face

.

Moreover, if the court erred, such error would be harmless beyond a reasonable doubt. See State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986). The witness’ s identification of the shoes that Appellant was wearing

, when he asked to borrow her phone

, merely corroborated evidence that Appellant was the man who spoke to he r on the porch . Appellant’s identification was supported by the witness ’ s in

- court identifi cation of Appellant as the man she met, by phone records, by out

- of

- court identifications, a nd by Appellant’s own statement to police

.6 No reversible error occurred when the State ask ed

Mr. Huston if his timeline remained consist ent . L ay witnesses must confine their testimony to facts and may not give opinions

and conclusions

. Thomas v. Stat e , 317 So. 2d 450 , 452 (Fla. 3d DCA 1975)

. T h e State’s questio n asked for a fact ual response, not an opinion : W hether Mr. Huston modified his own created timeline upon receiving new information. It remained for the jury to determine the timeline of eve n ts, and the State’s question
did not usurp that determination

.

As to the jail visitation log

, d efense counsel admitted that

the evidence fell within the business records exception to hearsay, but argu ed that the evidence was irrelev ant and that
the Sta te was improperly impeaching its own witness. A party may impeach its own witness with evidence of bias, if there is a
foundation for bias. Gosciminski v. State , 132 So. 3d 678 , 704 (Fla. 2013). T he trial court did not abuse its discretion in admitting t his evidence , as Appellant’s former girlfriend’s visits

to see Appellant in jail were relevant to show that the witness

was biased

.

Finally, t he trial court did not err in denying Appellant’s
motion for judgment of acquittal

. “ I n reviewing the trial cou rt’s ruling on a motion for judgment of acquittal, the task of this court is to determine whether the state produced competent evidence to support every element of the crime.” Thomas v.
State , 589 So. 2d 392, 39 3 (Fla. 1st DCA 1991). Appellant was

identi fied as the shooter by a n eyewitness, and multiple witnesses identified him as the person who admitted to recently “emptying his clip” in to someone at Club Karma

. Any argument regarding the weight of the evidence does not negate th e competent evidence tha t was presented as to each element of the charged offenses

. See Pagan v. State , 830 So. 2d 792, 803 (Fla. 2002). W e conclude that the trial court correctly denied Appellant’s motion for judgment of acquittal

.

A FFIRM ED

.

M AKAR and W INSOR

, JJ., concu r

.7 _____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331

.

_____________________________

Candice Kaye Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional C ounsel, Region One, Gainesville; Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee

, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee

, for Appellee.