PROVIDED TO MARDN

60PREME COURT GF FLGA194

PROVIDED TO MARDN

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PETITT_ONER

V.CASE þIO Cl3-143

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Cases

Bßowd V, STATE %2 S0,10 3SS CFLA.197064 2.oo7)

CoWnS V. GTATE 671 So.ZD 827 CFLA.LNG DLA199b )

DA AS V. GTATs B92 so.2D ¡o73 CfL A. 2A)D DLA 2.004)

Eure.\/, STAT€ 7b4 So.20 748 CGla. 2000 )

SLoyd V. srATg 908 60.2D l15 CFIA.2002)

(rAMai-6 V. 67A76 B77 $6.2D 709 CGla, 2.004)

Gaskin v. ßrars m so.20 504 L Fin,me)

Gi }ïo V. U& 40S Uá iSo,42 $4+.763,31 L4d.2d 104 Q412)

(-loN/un V, Br4Tg 59/ So.20 19y4 (f/4,/94o)

f¼cijne. v. STMg 427 50.20 999 (f(q.zooz)

JVkLlorg V STATs 878 so.L)Jzô LFLA.2A/ODCA 2.003)

Mendoz.9 4 GTAT6 ßì So.3cl S79 CFLA.Sto DDf zotz)

!Veal \/. £TATE BSL) So-2d bbb (G~lA. 2ND CLA 2003)

Ri c)v.råson V £TAT€ 970 So.2D 1l9 7 CFLA,Srg pc4 zoor,)

6/era V, ST4TE 945 So,10 /9/ CFLA. 2.009)

koh@£ V £7ATs Gb8 So.2.D 1265 (FLA , 1990)

C o V, STAT6 (ob3 $0.2-0 Í0lb (fLA. 194S)

o I. STATE 4LB $0.LD |136 (FLA.2oob)

C a V. k)QbÛ‡A 11 4bb 0.b.104 $,d. Z-o $27 80 L,Ed 2d b] (1999)

o^t V Florïda i2S g4t. sgi, sq3 u,s.nS Cus.ftA :2cou).

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STATEMENT OF THE FACTS

Michelle Shiver testified she took her children to school on the morning of

October 4, 2006 (T2/176-177). After returning home and eating lunch, she heard a

knock on her door (T2/177-178). Ms. Shiver looked through the window and saw

a black male at the door (T2/179, 181). Ms. Shiver decided not to answer the door

or otherwise show that she was present in the house (T2/182). After about five

minutes, the man left (T2/182).

When Ms. Shiver went to the guest room, she could see a pick up truck in her

driveway with it's engine running (T2/184). She called her husband and then 911

when she hear glass breaking in her bedroom (T2/185) and then retreated to her

laundry room (T2/186).

Sergeant Vincent Constable arrived at the scene in an unmarked Expedition

which stopped near Ms. Shiver's house (T3/238-239). He said he saw two

individuals where the garage doors are, at the edges of the house, in line, almost

(T3/251). He testified that he assumed they were talking (T3/253-254) and did not

know where they were coming from (T3/252). One of them, Benjamin Collins

(T3/241) was carrying a pillow case (T3/239). Constable looked at appellant's

picture on the day of trial to identify appellant as the second man with Benjamin

Collins (T3/256) because he had no independent recollection of appellant.

(T3/255-256).

Going to the rear of Ms. Shiver's house, police discovered that the sliding glass

doors in her master bedroom had been shattered (T2/195, T3/275). Ms. Shiver

noticed some blood splatters on the carpet (T2/219). A pillow case from the

bedroom was found outside (T2/200). It contained some jewelry from her jewelry

box (T2/207) as well as a ski jacket from her closet (T2/213). Ms. Shiver testified

that the property taken from her house was worth "around three or $4000"

(T2/213). A laptop computer in the pillow case did not belong to her (T2/212).

Anthony Grima, Ms. Shiver's next-door-neighbor (T2/222) testified that he

returned to his home after lunch with his wife on October 4, 2006 (T2/222). He

saw several police cars at his house (T2/223). At the back of the house, the screen

was out on his patio and his French doors had been shattered (T2/225-226). His

laptop computer, for which he paid about $2000 (T2/229), was found in the pillow

case outside (T2/228). Nothing else was missing (T2/229, 230).

A pocket knife and a bloody sock found in the vehicle as well as the bloody

pillow case was collected for DNA evidence and finger print testing (T2/164-165).

The DNA matched Benjamin Collins (T2/168). No DNA or finger prints matching

the Appellant were found (T2/168).

Appellant requested for a special jury instruction on circumstantial evidence

(T3/329) which was denied by the trial court (T3/333). The jury was also

instructed with the Principal jury instruction when there was no competent

substantial evidence to support such instructions (T4/378, 379).

The following symbols will be used:

When referencing to the Trial Transcript the appellant will use the letter "T"

followed by the appropriate volume and page number. When referencing the

Deposition the appellant will use the letter "D" followed by the page number.

When referencing to the Record the appellant will use the letter "R" and "SR"

for the supplemental record followed with the appropriate page number.

The petitioner submits this petition as a prisoner pro se litigant unskilled in the

science of law, and wishes his petition and entreaties to this Honorable Court be

received as such.

SUMMARY of THE ARGUMEd7

IGGU E L Pebfoner contends ¼at pund 1 of his fost cœuièbn

moSon, c|aiM ukek was denieÚ by the Four¾ 05c

oFAppeal.· Expres/f and direcÍlf UnÂdeÅ odi# 4decision in ik (Lon'Án Gufr,es1e Gv/Ý on wheÅer arl

P^tidenhaiy heanny or appropõde rehe) u4s requeexl.

IssuE 2 Påkoner codends thd ground z of k;s fast anicken

mokon, c.laïrn which was denied bf Se. CourÉÁ DisÜ

Court o f A ppeal . Ex pressLy and d;œdly conAkhled wb

a dectsien in the. Fleóda Gufrune Gurt and 'I

£econd o;ska coud of AppenL on wheker anevidenka.y heariny or appropäde. rekah was requ;æÁ

1S9t! 3 Pdihoner contends ¼q† yround u of h;s pod conscSon

mokon, day which was denied by fbe. Four4h D:dad

Coud oF A ffeal, Express ly and direcHy anAlche<d U$

a de.c sien in the Gacond and Çï F†h ¶škìds Our o

Appeal on ukedher an edidedjay hearïny or offrofnde

4.

T G S U E L† PeÜoner Contenås Sq† cjrounÅ (o of h 5 †osé conv|Úio/l

moHon, daïm which was cha:ed ¼ ke fourth Dèdrict CoaÚ

of Appeal_ hpressly and direûly conkte) with a decùion

n ¼« Rés4 and Second 0;stock Cour† of Appeal on

er an eddenh'ay ¼Anny or affropade œJ;eÔunsrequirec

1ss a E Pe¼oner couends ¼† groonh op ks pod conichon rnokn,

daim ukch was denkd by ¼6 Fourth Dishd Coud of AfpenL

essly and direcIly conNek] wd a r cïsion uo T 6

FLonda Supreme CouÅ GnË M #€Co C

on ukeber an pédan cuy kaann3 or afpro pncdt æ);e0 tz ce

rgsu (o Pe¼ner con¼nk M younH & Post conaden afon

chûm ukck waS deAieÀ by the Cour†k Olbh>d Court of Age4

Expressly GaÕ direÚÍy (.on$)ed w|h a deasion in %€

FLon$q hupreme. Court on wheher an €JiÚ€Åsf " ^¢]

or appropùk œJ;ep was required.

rssuE 7 Pehonu coaknås M ground s of là posd con2s- múion,

c%m ak;ch was deared toy Ae. Four¼ o£d Coud aF AgesE xprg.csl y and dèedly ConÊlic}ed u|# a Áecisìon in T£e

FLorida Sufrenie Coud on whelber an eu;<]enhay· hear|q

oc¯ a ppro pàk n±i|e0 was æ<pulre.d.

5

TURIS0ZCT£6dAL£TATEMEWT

C OA0Ÿ TunsåÍC#cn oÊ #€ Ýuff€M€ 0

SOU r6/5ßú) Å€Li90nS of Os}ncÝ {our s

Appeal, 4a# kpregly and diraNy con AL

ecision of ano¼er oùdécl Co«†oF Afpeal or of 71,eSufame Court on ¼¿ same jey nt_ peshèr Pad

k RoLe. E oso (2)(A)(g).

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AP&UMMIT

Pe¼oner con knds ibat cJaims in b;s post conv;ëanon whid was denied by ae. Fourdh p;sind

Courf of AppeaL, €xpasslyand dirpj)(y congigdecision ïn ¼€. Flodda Syrer>e Coï>,4

and oke diàicts cour+d appeal on ye sameLe9aL quechons,

TGSué M

The pehhoner coakads Abd ground I of b;s posiconvicKan moEen

which was denied by ¼€. Fourth Dishict Lourt of ApL. (see gas

tAeze lhe peKhonor asserted ¼+ re 6 eexpressty and d.racky conji;cyg

Goa0 ini uta.zoos)on k ysve wbejher an e den a 1 er

a ppro Pük ndsee is required to ggem;ne ;4 e

reedes Pe£4Gone)s bcb4L alle34Råns #dkhke or miste40ïny 1eskmor1y w viola€n d

nu asseds in R;teret, ibls ibnorú>le Lourt e j e

y her-iny under ayi y;,7,y,, e

a WS ¼ imL couds concJus;on 44 ge j .

Ned by L r€Cordso as }o mal..e áù evidesha y heaény un sesa

Onder our pos4 convich'en ak, we ,á W berà dak a%ve and

OM ran e deäæy hearing on ¾e r valid;†f unlesk 4e. œ¿ac) conclus el

emeade- && Lvern is enktled to relle0, Gee:GLoyd æ state eososo ns cm 2_oog u gy, p,g 3

d ¼ an eAdenEay hewy unless k mot;en and recorrcondusively sboW 4e. de0ent)m4 is enklied to ,o

o S nå condusively rekdes €¡veras edensias kdud all shé be, skk KnoAnyLy preseded kke or misiud;y ks

v oW;on of cri l o, Uk;le kre may be valid 4|aár>s é ekse degakon the s¼e has not kmoridrak Ad ¼ose syknabs

yarch on he AceA #e. re ord, Aaor ly ue And #d (Zweds

Me3dius are a&cient to œyite an eu;deda,y lieang wi¼ rya,r}o wheAer Acre w9s a C lo ololakon,

The pegkoner codenÅS åd he proved ¾e ¾ae prong 4ed in hiä mobn

edabilsking a 6;3|io doWien, Uhem m #e leshmeny was Alse, ukere

k w;6er mak 4 Alse Jedimony <kQøemnt fem #e ks4üneny ed¼:s

defasíRon d kiaL , @ ze prosecutor eneA vas edse, wheæ #e remionerk

4nal counsel impeached he u;¼ess wg h;5 olepos;þn Je&uny w;gAke tedmany mak i, +nal obáq cross examinaba al Ae wikessm) Me

ks4èony was madenal, ukere k poseedor argued the Alse kbonies 6 #e

Jy as 606sknkve evidente. übere. he,+estimonies aa£ the nied pm ;d

fedures in 4e peë€ane/s Mal, pahabally #e shonpes) eorrobarnbbn of

fIkakný the- pebÉoner è k alleged cdme o beja w¼e he uts snÁea pàno pal,

~f£e follouïn i s ¾e Giyi;e v;olaban Åuriny Ned nÑot

gés: A ffEsloxx A 13 PA&E 234 unes w 2-s

De follouiny is #6 Impead a 446 Aness ks any by h s

Ma L coun sel duany cross -ev.aminaßen -

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APPE N O z X A T¯B PAGE 2.S¼ Line.S l - 25

oUowing is he. Second Crl3I o vio jahan duda ed-examùaÉon

n e, w#ness toabe. an inCourÝ ÎÜ€ztliÊxÅon oÊ 0€. yeh¼ner

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e&oner assæk 44 he had eshblàÍ*I A bylä uhlaA bn see; (, /,b ¿ as

ob UL 160,92 G4†. 763, 3i c.5d, 2nltot[Cl472). LJÉ€Æ e £ÑÍC /VSGL4/dor

i-y used fáke teshaony ad dd not con-ed de Alce Jesbanydon3 #e pewom¼£

e codends ¼Hbe kaL cikkons 4hduas used b deny Jbe-(jehh'sae-'s

dain Gee: E&b;t M was not gë¾ly on foïnf , LJhe£ -lhe 4 ôN&£

n Ly exceake chanpó Ä ü†erpw¼òns oß dbess Jes&nenës and

not chames o¢ sworn des+ùnonles kRay under o«h

e pek ener coa+e,ads 4a+ 4ke kåaL coud and fourth Dand b<Áof Appard ad not fæve or pa Ade perhàns oA4he readrmadusive,/y

Bho 'ny the- peSkone was enMied do no æGd of #à e61%

edikener codes/s that he presided perkons o01be œcord which

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7ht pe6Koner coa+ear)4 ha+3round 2 o#his poáconvichen

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w Gasbn u Me. m sa zo ses can,1999)on 4e àçue ukeße7 a eis enMed to e udeÅruf heany or apper>pade. rdief unless ße maA n

and avord ¿sadus vely shou %d Ibe mova-1t ïs enMeil & no relieA u éea post coutckon dalm.

in Gaslün ¼¡s Honomble. court helò ¼d a cuad is e,Me) k a, eäe

hearin on a pod conaldlon daim i4 he a\lep spec$c khs wlùh areno dusíaty rehu Hed by the rezord and ab;ck demonstraks a dek enin prioonanæ and prejudice ¾e m ovad· †ng eks a skk sb g sazo

izSS üla.t qqo),

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h6 asserted ¼+G) hls¼L cooøeUs represen¼on (àll loehow aolojebe c4 reasonoBeness and m geason a6ï IHy ¼+ hat for Mal

counseDs op pro fessional emorzhe. resol+ d be proceednys vould ha ebeen d;#e,eg.

Moner cenknk haf he r«¡sed ks clan <'a i;,;ç ,v,,)ù,n ;n R,el'ourt Es daim uns kneed y the. ¡¿at c,,,+ wahod a-y J

¼€ teod reMny hë da'un, Pe%oner assehs ne;¼r- was bis clad%ed br being k;allpratiL rekkone appded ye de,,, L oøpe

½ ¼£ cour+s e<der k #e feudh thirid GudofAg ,,

ks daim was né addressed in k+ epinion o,7)a, g,ysammuy ka;af oQe a

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hendy or agrapdde relieA is æquirek fo dekjáne ubedhv 6|al ¿cunse/_nb weiß Unî€abonable ÖÂcieÁ unÁe/ bhe<e. (q¿}ç o{ Åt|)nq .le o e

to be wifnes teshnany and repest a ekhadson hessh ut,e-,,¥ becse

deu &t4 d&ovey vlolán named 6 #e wikess & ay.4 kcoqVio|QËon Un Íet lÊvÍ€ L22.0 CB)Û) (S] l)/

e feÈonef WV cñ k|5 MoÅòn he M&ÍVA QÁ l!

Coli;ns v sWe. which was reversed by the vuo OW kr aneyjdenf hpjany øn Åe samie I a Esscle-·

Ín (_o{ nb ke aGG tt ki£ /Vi C6¼As th$

laeNebe år Gâ;Lin to objeLHo,a d request a khardson heo iyon oeker langa's skony ¾d cell,hs labs her he reau dq

() B iS CV-0G uaÁ ‡rBot the -S4elÍ .9ÍnŠ>or) ô^ Our1G

statemed would place collins aNhe scese of be c,àe, uh hansV e Ween #e 4h $Ía#en ¿xAé;Í ÍÉe fokÍ V‡ cl/r€S

o ab e enûe W Q $ an kls co -de ÊenÅortí keS##ec) 4 a

ceived a dde dber ¾e ha lay owrel TQ /es&aan

n Ge2Min eVA ¡c{on -Å•> |aer ÚqVosÃ)h9/1 9 i en

b second Bis¼t couhol Apal æversed and te a-de s

dah br an evikkøwiære. cdiths daki 44 hk de e .a s

-d%« k< no4esa~u, ae ,sm~.y e

badly soMae o,d is nd ehes by p A n e i4Had ed by ¾e

oner Q55er e f||owth }'ê9Ñ-vieny try b e6 ÙetecNye $g[oje c7/

o of f/?cV' i efost as 97, p L

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e follow;q ¡c Dêe&e Censkble>s de&o^V ' PW"''Y Lklahon

c)uány Cross-¼«4dnaba lof fdhno''s M "°^5ebEE| AffEMDIC C · T3 P4(rE 26 4 LüeS to -í9

The follow;ny ¡s ½e Depos$on of Deledüre ansdte on kissur

heæ #e piscovery hbbn «oNed

E6: MPEsloz y c D PAGE 3 tunes 2- 24MPsNorYC 0 P4&& y Uneb 2- zuAPPENoLil O MCr5 S unes

ekkoner coateds 4d ½ was ørvcedurnity prejudàeol by these

te%monies by be side whess. tulee 4e pebkoner and ¾e uìdim Ahe hur léed æs;denæ At:chelle b&er desded 64 5e vehicle neu 'Lek . e o¼éu . Pedow asseds tw ks Mal e»unsen téb bobjed to ¼£ le Gmonies †wed¼4 her q-e sen¼n A// be/stJ¶^ objecSe Andcvd 00 n¼sonable ness. Wi+e #e testirn sai

Å QS eviOMæ 40 cónukt he. pekivoner -us/gr of Me rÁ sfeMoner adends ¾é he griged ¾e of s;f

asklale. os glystcal suolanœ ü b,k »îshhn and /kee tAs îaSay el he Vehlde pailla up à/c ge ,),beJz

e&caer asseÁs #at ke. m;-14 have ad ksRbclor weL, d be ha he s¼ é ness asy,yh use a odddey

skany do lots deÊenæ #Å he an the «Me Pv5e c

°Äk uy oÊ he vestosam, 9eden er assaÁs #4 ese e maüesndated he peMonus jaal 3

929 so,20 0 3ß ¿FLa, 2cod

eÈbur asse4s hat ks kiqL coumeDs blure 4o o6jed }o 4heeskmoá$5 vi okded hk ¼£ sbr-dey Gee; Scheff v, SV4fe fr.M GoADlolb Cfl,, ægs). £f is +àaL counsel hetd objeded h Á€ tesStod6f0^d rep+ a Ld»<kon %^3 emditwas danled b ¼« bialcour¼½¼ e<ror would haa heen propwly pese,va affeilaáAhheb<e k resuW of k proceekys usúW4- bem d¾sd

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eß#0ner contenb|6 ÍÉat nuncÍ LJ offy ,coj coh uas den;ed by Me fou 12sjèd cowtofA,y,u¿Gee WA).

f%Èoneìs }<ìaL counseL was ëeøkeve 474e- perempton/ challenc e6 do SMke bus cz) bias a Y

I onÚ NF• g tÁlGÉ ¼pressly 04) Á'-ez)/yr LV&, ec slot] (A McÁarVsôn 4 b}afe 47o $o20 (l 9 7 (p , $7d Dauts t4 s¼e enz so-20 telz C6tn.2-voac 2co,.,j o e ye

M er,iÛenSot)( be/xdn- is r€rvùc) }c clahnn/ne wheounsel's e<dions were b ùL whe, p,e pej,6s Mal counseL Ailed k eae,ore ee½y ck ,,'Öj eao htø s ycors M det;bemjeg g f,y ç;,¿,

eher con¼ds 6hk hhJson,k appelled asse,¼1W6counsel Lited k en:eroë dv,il to a wl,ose fdhv h«Jhee gm oç a sym;ley c

d ed ks daún toecause e œcom) resedei no J,a s,g øoe ww fev catue. Mew em Ae crit Mdd rejersec

s denkL ul,eæ #e œcod3dnd æge ye/6court shouW haæ eæge pe en

eo e 4 kukily' suŠ4Werrl4 Íÿ4bn •

D w he zvo osyd naa,sed &W ca,,¾ ak / 1e6 chdlespe x)sy/ce

uo dec #4 ¼ kJ gee

Ors e *±®! -'/k ¼d 6 Me zuin eMe e ^vkO¼ÍA abbri MænseL < son 3 ayas we-op aa ac-,,,e é sexesq A4ci«9'd er&~uvioe svMuw%e, dusve rehdW by e e o,gwa-, ute,ay

assus meus,n yag,,mon um us· bec to4 ss.zesz so 2r> w crut<). &

h ekon lae asserted bd 0) k ts +¿d counseus ,'epse-,kb rehm objedve. shah-d o¢ reaseaahleness,cw,d cz)&,m,a6

M hkA4al counsels upp-dfesstsaal error de æsdfo£MeProceakys would w 1,ee,, gg4

e fehkoner abseks &cÅ ike #ut#1 Üìs#r) ÁgrikÁ h{ç j

$ù hÊ€/Ú ÚûtM b4sed en (ceráejl{ th Mrde. cyst so.p_g 3 ;

C Ext€BUA).A tisd$ are di¾rêtit, Chate. En %}el|| he e5 tookon }Ác, his knul counseL t led to prese-á m os

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTHDISTRICT COURT

STATE OF FLORIDA,Appellee,

vs Case No.: 4D11-3654L.T. Case No.: 06-17594-CF10B

RENARDO FERGUSON,Appellant.

EXHIBIT A

I

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICTJuly Term 2012

RENARDO FERGUSON,Appellant,

v.

STATE OF FLORIDA,Appellee.

No.4D11-3654

[October 31, 2012]

WARNER, J.

We affirm the summary denial of appellant's motion for postconvictionrelief from his convictions for burglary of a dwelling and grand theft.Although he raises multiple claims of ineffective assistance of counseland other errors, all can be disposed of as a matter of law.

Several of his claims involve his major contention that a detectiveprovided perjured testimony. Under Giglio v. U.S., 405 U.S. 150, 153-5492 S.Ct. 763, 766, 31 L.Ed.2d. 104 (1972), knowing use of perjuredtestimony at trial deprives a criminal defendant of due process if thetestimony is otherwise harmful. However, appellant's argument fails atthe most basic level: *mere differences in testimony found in witnessstatements made at different times, or between witnesses on the samesubject, (are not alone sufficient to show pe juryJSee, e.g., Barwick v.State, 88 So. 3d 85, 104-05 (Fla. 2011) (wit ess's description of events,as testified to at different trials, represented'changed interpretation offacts, not false testimony); Ferrell v. State, 29 Bo. 3d 959, 978 (Fla. 2010)(no Giglio violation merely upon showing two witnesses contradict eachother); Lamarca v. State, 931 So. 2d 838, 852 (Fla. 2006) (same); Floyd v.State, 18 So. 3d 432, 450 (Fla. 2009) (inconsistencies in testimony notper se perjury). This case involves differences in the officer's recountingof his observations, which constitute mere reinterpretation of the factsfrom his perspective, not actionable perjury. As a result, these claimswere properly denied.

In another claim, appellant contends that counsel was ineffective forfailing to investigate and learn that a co-defendant's watch was found

inside the vehicle in which the three co-defendants were apprehended.The failure to discover information that itself is neither exculpatory norimpeaching does not render an investigation ineffective in theconstitutional sense. See Jimenez v. State, 997 So. 2d 1056, 1068 (Fla.2008) ("[T]rial counsel was not deficient for the failure to discover . . .information that was neither exculpatory nor impeaching."). In Ròsado v.State, 693 So. 2d 633, 634 (Fla. 5th DCA 1997), the defendant wascharged with first degree murder. After conviction and sentence, thedefendant filed a Rule 3.850 motion, which claimed, among other things,that trial counsel was ineffective for not investigating a gun cleaning kit.The court held that the claim was properly denied summarily whenRosado did not explain how such evidence would have been relevant toany issue in that case, preventing a finding of prejudice. Id. · Similarlyhere, appellant has made no showing of how knowledge of the presenceof a co-defendant's watch inside the vehicle involved in this case wouldhave created a reasonable doubt or caused him to recalculate hisdecision to testify at trial. Therefore, summary denial of this claim wasnot error.

Appellant's claim that counsel failed to excuse two prospective jurorscan be summarily disposed of based upon Carratelli v. State, 961 So. 2d312, 319-20 (Fla. 2007), in which the court held that to prove Stricklandprejudice in rnatters of jury selection, a defendant must demonstrate thata juror who was actually biased (meaning, biased against the defendant)served on the jury. Appellant has not made the requisite showing, andsummary denial was appropriate.

In another claim, he maintains that trial counsel was ineffective forfailure to call a co-defendant as a witness, as the co-defendant wouldhave testified that appellant was not involved in the crimes. At trial,however, counsel specifically raised the issue in front of the trial court,stating that she had recommended that the co-defendant not be calledand that appellant had agreed with that recommendation. The courtasked the appellant whether he agreed with counsel, and he replied inthe affirmative.

Whether to call a witness at trial is the type of strategic decision forwhich the lawyer's professional judgment is generally not subject topostconviction second-guessing, as the Court held in Strickland v.Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 2065-66 (1984). "[A]court must indulge a strong presumption that counsel's conduct fallswithin the wide range of reasonable professional assistance; that is, thedefendant rnust overcome the presumption that, under thecircumstances, the challenged action 'might be considered sound trial

2

strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76S.Ct. 158, 164 (1955)). "[I]f the defendant consents to counsel's strategythere is no merit to a claim of ineffective assistance of counsel." Gamblev. State, 877 So. 2d 706, 714 (Fla. 2004). See also Mendoza v. State, 81So. 3d 579, 582 (Fla. 3d DCA 2012) ("[N]ot only is Mendoza unable torebut the presumption that counsel's decision was reasonable andstrategic, Mendoza's express agreement to such a decision is fatal to hisclaim of ineffective assistance of counsel."). Here, appellant consentedon the record to this strategy. That is fatal to his claim.

Finally, appellant claims that his counsel failed to investigate thevalue of the items stolen in the burglary to contest the grand theftcharges. At trial, the two victims testified that the stolen and damageditems were worth $2,000 and $4,000, respectively. Appellant does notclaim that any investigation would have revealed that the value of theitems was less than the $300 minimum value for a grand theft charge.Without such a showing or allegation, he cannot show Stricklandprejudice, and his allegations are mere speculation. See Rodriguez v.State, 919 So. 2d 1252, 1269 (Fla. 2005) (quoting Jones v. State, 845 So.2d 55, 64 (Fla. 2003)) ("'Postconviction relief cannot be based onspeculative assertions."').

Affirmed.

POLEN and CIKLIN, JJ., concur.

Appeal of order denying rule 3.850 motion from the Circuit Court forthe Seventeenth Judicial Circuit, Broward County; Paul L. BackmanJudge; L.T. Case No. 06-17594CF10B.

Renardo Ferguson, Indiantown, pro se.

No appearance required for appellee.

Notfinal until disposition of timelyfI led motion for rehearing.

3

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401

December 19, 2012

CASE NO.: 4D11-3654L.T. No. : 06-17594 CF10B

RENARDO FERGUSON v. STATE OF FLORIDA

Appellant / Petitioner(s), Appellee / Respondent(s).

BYORDEROFTHECOURT:

ORDERED that appellant's motion filed November 19, 2012, for rehearing ishereby denied.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

Served:

Renardo Ferguson Attorney General-W.P.B.

pb

RIL&N BEUTTENMULLER, clerkFourth District Court of Appeal 4Fr

A PPE%1x

239

1 A. I wear a badge on my belt.

2 Q. You carry a firearm?

3 A. Yes.

Q. When you responded to the residence, is

5 this where you located your car?

6 A. That's where I stopped my vehicle.

7 Q. Was that outside of the driveway of

8 Michelle Shiver's house?

9 A. In the roadway, I guess north of her

10 residence.

11 Q. This car, when you stopped here, when you

12 stopped your vehicle, unmarked vehicle in that

13 location, this is between the two residences, what

14 did you see, if anything, in between this area at

15 that time?

16 A. In that area, there were two black male

17 subjects walking from the rear of the residences,

18 towards the front of the residences.

19 Q. Telling the jury what the two black male

20 subjects were doing as they were walking? If you

21 can show on the photograph, where did you first see

22 them?

23 A. Basically, there was one male subject in

24 this area. The other male subject was right next to

25 him. It appeared they were talking to each other.

Boss Certified Realtime Reporting954.467.6867

251

1 CROSS EXAMINATION

2 MS. FRANCOIS

3 Q. Good afternoon.

4 A. Good afternoon.

5 Q. You're a sergeant now?

6 A. Yes.

7 Q. You arrived at the incident location less

8 than a minute after you received the dispatch,

9 correct?

10 A. Probably less than a minute, yes.

11 Q. You arrived within seconds after the call,

12 is that more accurate?

13 A. I think I stated 20, 30 seconds after I

14 heard the call.

15 Q. When you arrived, you testified you saw two

16 individuals walking away from the residence?

17 A. They were between the two residences.

18 Q. When you first saw these individuals, they

19 were near the front of the house of 1188, I believe?

20 A. I'm sorry.

21 Q. They were near the front of the residence,

22 of the Shiver residence?

23 A. I guess you would call it where the garage

24 doors are, at the edges of your house, in line,

25 almost.


252

1 Q. That's where they were when you first saw

2 them?

3 A. Correct. Basically where you see the bag

4 in the one picture is where they were standing when

5 I first saw them.

6 Q. They were near the front of the Shiver

7 residence, near the bushes?

8 A. I guess you could say that.

9 Q. You couldn't tell where the individuals

10 were coming from, could you?

11 A. It appeared they were coming from the rear

12 of the residence.

13 Q. Could you tell where they were coming from?

14 A. Other than just standing there?

15 Q. Officer, is that your answer? Could you

16 tell where the individuals were coming from?

17 A. They were standing between the two houses.

18 Q. You don't know where they were coming from

19 or if they were coming from anywhere?

20 A. I don't know where they were coming from.

21 Q. You don't know if they were coming from

22 anywhere? They were standing, not walking, not

23 mOVing?

24 A. Well --

25 Q. When you first saw them?


253

1 A. When I first saw them, they were like

2 facing each other. They started to walk to the

3 vehicle, like in a rapid way.

4 Q. You testified earlier that you could tell

5 that these individuals were talking, is that

6 correct?

7 A. It appeared that they were, you know, when

8 two people are facing each other, I assume that

9 they're saying something to each other.

10 Q. Is that an assumption, then? You're saying

11 you didn't see them talking?

12 A. I couldn't see what they were saying to

13 each other.

14 Q. The question is not if you could hear what

15 they were saying, the question is whether you saw

16 them talking to each other?

17 A. The way they were facing each other, there

18 stance to me, in my experience, as a person, I would

19 assume they were talking to each other.

20 Q. Do you remember answering that question

21 differently in a deposition you gave on June 29,

22 2007?

23 MS. HENRICKSEN: Page?

24 MS. FRANCOIS: Page 9?

25 THE WITNESS: Can I see what I said at that

Boss Certified Realtime Reporting954.4 67.6867

254

1 point in time?

2 MS. FRANCOIS: Absolutely.

3 May I approach, Your Honor?

4 THE COURT: Absolutely.

5 MS. HENRICKSEN: Line?

6 MS. FRANCOIS: Starting with 20.

THE WITNESS: In the deposition, it says I

8 couldn't tell if they were talking.

9 Q. (By Ms. Henricksen) Today, you could tell

10 whether they were talking?

11 A. I said I assumed they were talking to each

12 other.

13 Q. Now we are assuming?

14 A. Like I said, two people standing next to

15 each other, facing each other, I assume they were

16 talking each other.

17 Q. When you were asked whether or not these

18 individuals were talking during the deposition, you

19 never said they. were facing each power and looked

20 like they were talking to each other, you never said

21 that did you?

22 A. I don't remember if I did or not.

23 Q. Want to see the deposition?

24 A. I'll take your word for it. If I ever used

25 those exact words.


PPE D B

241

1 case, was he on this side and the other individual

2 was on this side?

3 A. Yes.

4 Q. Let's talk about the individual that

5 dropped the pillow case.

6 Showing you what is premarked as State's I

7 for identification, do you recognize the

8 photograph?

9. A. Yes.

10 Q. Is this the individual that was carrying

11 the pillow case?

12 A. Yes.

13 MS. HENRICKSEN: At this time I would like

14 to enter State's I into evidence.

15 MS. FRANCOIS: No objection.

16 THE COURT: I will come in as State's 7.

17 Q. (By Ms. Henricksen) This is a photograph of

18 Benjamin Collins, is that correct?

19 A. Yes.

20 Q. This photograph, is that how he looked the

21 date he was arrested?

22 A. That's his booking photograph.

23 Q. You said he was tall and thin?

24 A. 5'8", 5'10".

25 Q. On the other side of Benjamin Collins, who


242

1 was on the other side of him, next to the other

2 residence?

MS. FRANCOIS: · I object as to leading.

MS. HENRICKSEN: I asked who?

5 THE COURT: Overruled.

6 Q. (By Ms. Henricksen) You saw two

7 individuals?

8 A. Yes.

9 Q. The other individual, I'm showing you a

lo picture, what is marked State's G for

11 identification. Is this the other individual next

12 to him?

13 A. Yes, it is.

14 Q. Who is that individual?

15 A. Mr. Ferguson.

16 Q. Is this his booking photo, when he was

17 arrested on this incident?

18 A. Correct.

19 MS. HENRICKSEN: I would like to enter as

20 State's G into evidence.

21 MS. FRANCOIS: No objection.

22 THE COURT: G will come in as State's 8.

23 Q. (By Ms. Henricksen) Do you see Mr. Ferguson

24 in this courtroom now?

25 A. That is him, sitting there.


243

1 . MS. HENRICKSEN: Let the record reflect the

2 witness has made an in court identification of

3 Reynardo Ferguson

4 THE COURT: It shall.

5 THE WITNESS: His hair is different today

6 than at the time.

7 Q. (By Ms. Henricksen) This is a photograph of

8 him at the time of the incident?

9 A. Correct.

10 Q. When you were talking about the height of

11 the individual, what was Benjamin's height in

12 relation to Reynardo Ferguson?

13 A. Mr. Collins is slightly taller, much

14 thinner, where Mr. Ferguson is shorter and heavier

15 and also the hair style, Mr. Collins is close

16 cropped hair, and Mr. Ferguson had more of a short

17 afro style of hair.

18 Q. You saw Mr. Ferguson on this side?

19 A. Between the houses. That's the way they

20 were.

21 Q. And Benjamin Collins?

22 A. Correct.

23 Q. At the time you saw those two individuals,

24 you have a call that there is a burglary in

25 progress. Now you see two individuals in between a


255

1 Q. When you first saw the individuals, you

2 couldn't see their faces or features or anything

3 like that?

4 A. I don't know.

5 Q. From where you were, in your vehicle, you

6 saw two individuals standing by the bushes, near the

7 Shiver home and that's what you're testifying to,

8 they were near the Shiver home, correct?

9 A. Correct.

10 Q. You couldn't see their faces?

11 A. I couldn't tell exactly what their face

12 looked like from when I'm talking to you today, I

13 wasn't that close.

14 Q. You couldn't see their faces from where you

15 were?

16 A. I could see their features of their make

17 up, I mean, their built and height and that type

18 thing.

19 Q. During deposition, you also testified you

20 had absolutely no independent recollection of

21 Mr. Ferguson, didn't you?

22 A. Is that what it said in the deposition.

23 Q. That's what it says?

24 A. I have had a lot more time to review my

25 report today than I did the day of the deposition.


256

1 Q. So you reviewed your report, looked at the

2 pictures, is that what you did?

3 A. Correct.

4 Q. That's how you were able to remember

5 Mr. Ferguson is looking at his picture?

6 A. Today?

7 Q. When you prepared for testimony today?

8 A. The day of the deposition, I didn't look at

9 the pictures.

10 Q. You had no independent recollection prior

11 to looking at the pictures?

12 A. And going over the report.

13 Q. You testified you one of the individuals

14 you saw had a brown bag in his hands?

15 A. Yes.

16 Q. He dropped it somewhere near the bushes?

17 A. Correct.

18 Q. Right where he was standing?

19 A. Correct.

20 Q. You never saw the individual with the bag

21 open it, show the contents to Mr. Ferguson, did you?

22 A. I don't believe I saw that. I don't think

23 30,

24 Q. You didn't see Mr. Ferguson touch the bag

25 at all at any point in time?


APPENDüC

1 there's a co-defendant named Munnings.

2 A. There was a call over the police radio.

3 Basically a female was saying she was inside her

4 laundry room and someone was trying to break into her

5 house or she heard glass breaking or something like

6 that.

7 Q. And that's the dispatch that you received?

8 A. That's what was dispatched over the police

9 radio and I just happened to be in the area --

10 Q. Okay.

11 A. -- in an unmarked police vehicle.

12 Q. What time did you get that dispatch

13 approximately?

14 A. Referring back to my report, about 14:30

15 hours. 2:30 in the afternoon.

16 Q. Okay. So it was approximately 2:30 when you

17 actually got the call --

18 A. Approximately.

19 Q. -- or you got dispatched?

20 A. Approximately.

21 Q. That's around the time you arrived.

22 How far away were you from the residence?

23 A. Less than a minute.

24 Q. Okay. So what was going on when you arrived?

25 A. I drove past the actual residence incident

HENDRIX REPORTING SERVICE, INC.(954) 467-1287

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244

1 residence. What do you do now, as a law enforcement

2 officer.

3 A. When I first responded to the scene, I

4 could see the vehicle in the driveway, where you saw

5 my vehicle. That vehicle was pulling into the

6 driveway, when I was pulling up, in that area. No

7 one exited that vehicle. These were the two

8 subjects coming from the back of the residence.

9 By the time I got on my police radio to

lo advise of the license plate of the vehicle and

11 attempt to get on what we have is a tactical vest,

12. has police across the front with the bullet proof

13 vest in it, Mr. Ferguson entered into the rear

14 driver's side, the back seat of this vehicle.

15 That's when I exited my vehicle, drew my police

16 service weapon, identified myself as a police

17 officer and told Mr. Collins to stop, which he did

18 not.

19 Q. Let me stop you there.

20 You said Mr. Ferguson got in the vehicle?

21 A. The rear, behind the driver's, there is a

22 rear door, on the drivers side rear door, he

23 entered.

24 Q. He's in the vehicle?

25 A. Yes.


13

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1 MR. FLYNN: No.

2 MS. FRANCOIS: You wouldn't think an

3 officer is more or less credible than anybody

4 else?

5 MR. FLYNN: No.

. . -=--MS -FRANCOIS: Have you ever been the

7 victim of a crime?

8 MR. MAJOR: Yes, had my car broken into a

9 couple times. Housing burglarized a couple

10 times.

1F MS. FRANCOIS: Would you hold that against

12 Mr. Ferguson?

13 MR. MAJOR: No.

14 MS. FRANCOIS: Do you have any friends,

15 family involved in law enforcement?

16 MR. MAJOR: One of my best friends, I take

17 a martial arts class with his, an undercover

18 con for Broward County.

19 MS. FRANCOIS: Fort Lauderdale?

20 MR. MAJOR: BSO. I'm not sure about that.

21 Can't quote me on it. He's an undercover cop in

22 Broward County.

23 MS. FRANCOIS: Based on that, do you think

24 that officer, that an officer would have more

25 or less credibility?


... . ..

.

2. 17th JUDI IAL CICOURT OF THE3 FOR BROWARD COUNTY F OR DAAND

4 CASE NO. 06-17594CF10A

5 STATE OF FLORIDA

6 Plaintiff

7

8 RENARDO FERGUSON

9 Defendant.

ll Fort Lauderdale, Florida

12 March 17, 2008

13 12:05 o'clock P.M.

14 APPEARANCES:

15MICHAEL J

16 BY: HEATHERSAIENRICKSENATTORNEY

Appear1°9 °n behalf f , ESQUIRE,

17 o the Plaintiff.PHOEBE FRANCOIS, p.A •

18 BY: MS. FRANCOIS, ESQUIREppearing on behalf

19 of the Defendant.

SCHWARTZ & ASSOCIATES p A20 . YEHUDA BRUCK, p

21 ----

22

DEPOSITION23

OF2425 BENJAMIN COLLINS

ON-THE-RECORD REPORTING, INC. (954) 522-1915

name for the record.

2 A Benjamin Jamal Collins, C-O-L-L-I-N-S.

3 Q And you are currently incarcerated?

4 A Yes.

5 Q Where were you currently, and I don't mean

the Broward County Jail.

7 What prison are you in?

8 A South Florida Reception Center.

9 Q So you are in Miami?

10 A Yes, ma'am.

11 Q How do you know Renardo Ferguson?

12 A I met him through his brother. I know him

13 through his brother.

14 Q What is his brother's name?

15 A I know him as Charley. I don't know his full'

16 name.

17 MS. HENRICKSEN: Did you say Charlie?

18 THE WITNESS: Jolly.

19 BY MS. FRANCOIS:

20 Q So how long have you known Mr. Ferguson?

21 A Five years/seven years.

22 Q Okay. Prior to getting arrested on any of

23 these cases that you are involved in where were you

24 living, what was your address?

25 A I was staying with my mother at 1595


17

1 Q Now where was Ferguson at that point?

2 A He was still in the vehicle.

3 Q Did he at any point and time get out of the

4 car?

5 A He did got out the car. He was patting me on

6 by back while I was on the side of the house.

7 Q While you were throwing up?

8 A Yes.

9 Q Do you know if he got out the car and

10 urinated or anything like that, if you recall?

11 A Not that I recall.

12 Q Okay. So what happens when the officer gets

13 there?

14 A When the officer got there I still walked

15 back to the vehicle and both of us went back to the

16 vehicle, and by the time I knew it there were officers

17 coming from left and right. And he pulled us out of

18 the vehicle and placed us under arrest.

Q Was Mr. Ferguson one of the people that was

20 pulled out of the vehicle as well?

21 A Yes.

2 Q So you're saying that he was in the car the

23 entire time as far as you remember?

A Yes, ma'am.

25 MR. BRUCK: No, I believe he said he came and


1L

1 patted him on his back.

2 THE WITNESS: He got out one time.

3 BY MS. FRANCOIS:

4 Q At some point he got out the car and patted

5 you on the back. In other words, he helped you out a

6 little bit?

7 A Yes.

And he never went inside the residence?

A No.

10 Q He had never had possession of any of the

11 items that were in the residence?

12 A No. Everything Munnings threw me was in the

pillow case and it was left on the side of the house.

14 Q Did you know what was in the pillow case?

15 A No. He just threw it to me and said take

16 this to the car.

17 Q So you didn't look in there?

18 A No.

19 Q While you guys were driving to this

20 particular place that you ended up, did you guys talk

21 about where you guys were going or besides the original

22 conversation, besides meeting some girls?

23 A No. I was asleep the majority of the time

24 until we got to the red light. That's really when I

25 woke up, at the red light. I started throwing up from


19

1 there almost to the point we got to wherever we got.

2 Q So you guys never had any discussion, we are

3 going to end up here, do this and do that?

4 A No. I laid back in the back seat the whole

5 time.

6 Q Okay.

7 A That's just to ride. He asked us to ride

8 with him because he didn't really know the area,

9 Munnings asked us.

10 Q Do you know whether or not Munnings or you or

11 Ferguson, or anybody went to the next door neighbors

12 house or anything like that?

13 A No. We went to one backyard.

14 Q Okay. And you didn't go to the next door

15 neighbor's house as far as you remember?

16 A No. Well, the yard that the truck was parked

17 in that's the residence that I walked to when Munnings

18 called me.

Okay. And you didn't see Ferguson go into

20 anyone's house?

A No.

22 Q The house that the -- the residence that

23 Munnings went into?

24 A No, ma'am.

25 Q Nor the house next door?


24

1 A Oh, no. The judge ordered them to keep us

2 separate.

Q So you are basically saying that he had no

4 involvement in this burglary at all?

A I mean he was there, but he never went inside

the residence.

7 Q So he should walk out the front door of the

8 courthouse and not get prison like you got for no

9 involvement, right?

10 A I mean I wasn't really involved to tell you

11 the truth. I was supposedly going on a ride.

Q I didn't ask you about your involvement. I

13 already know your involvement because your DNA is on

14 the pillow case, so I don't care. I want to talk about

15 Ferguson's involvement. You are telling me he had no

1_6 involvement?

7 A Not really.

18 Q What do you mean not really?

A He was there. That's all I can say.

20 Q Where was he?

21 A In the vehicle.

22 Q The whole time?

23 A Pretty much. He came out the car for about

not even ten minutes.

25 Q Ten minutes outside that residence. That's a


291

1 any witnesses you want your lawyer to call?

2 THE DEFENDANT: Not at the moment.

3 THE COURT: You also have the right to come

forward and testify in your own behalf, if

5. that's what you wish to do, understanding you

6 have no affirmative obligation to do that. If

7 you did testify, you would be subject to cross

8 examination by the State. You would be subject

9 to impeachment based upon any prior felony

10 convictions you may have, any crimes of

11 dishonesty.

12 You also have the right to remain silent.

13 If you exercise that right and if requested by

14 your lawyer, this Court would instruct the jury

15 that they can't consider that in any respect as

16 it relates to any issue in the case; and you

17 understand that?

18 THE DEFENDANT: Yes, sir.

19 THE COURT: Have you talked to your lawyer

20 about all this?


22 THE COURT: After talking to your lawyer,

23 have you formed your own independent decision

24 as to whether you wish to testify or not?



292

1 THE COURT: What do you want to do?

2 THE DEFENDANT: Testify.

3 THE COURT: Anybody forcing you to do

4 that?

5 THE DEFENDANT: No, sir.

6 THE COURT: Are you under the influence of

7 any alcohol?


9 THE COURT: Any drugs?


11 THE COURT: Any medications?


13 THE COURT: Have you guys talked about a

14 number?

15 MS. HENRICKSEN: Two felonies.

16 MS. FRANCOIS: What are you talking about.

17 THE COURT: Priors?

18 MS. FRANCOIS: Yes, yes, yes. Two.

19 THE COURT: I like to make sure that we

20 don't have that as an issue.

21 MS. FRANCOIS: Yes, we talked about that.

22 I wanted to put one thing on the record.

23 I know we took the deposition of Benjamin

24 Collins yesterday. There was discussion with

25 reference to Mr. Ferguson, calling Mr. Collins


293

1 as a witness.

2 I recommended he not call Mr. Collins as a

3 witness. I think that he's in agreement. I

ust want to make sure that that doesn't become

5 an issue, later on.

6 THE COURT: Mr. Ferguson, you just heard

7 that, is that correct?


9 THE COURT: All right, let's bring the jury

10 in.

11 You guys ready?

12 MS. HENRICKSEN: Yes, Judge.

13 MS. FRANCOIS: Yes, Your Honor.

14 THE COURT: Let's go.

15 (Enter jurors.)

16 THE COURT: Ms. Francois, what be the

17 pleasure of the Defense?

18 MS. FRANCOIS: The defense calls Reynardo

19 Ferguson.

20 THE COURT: Okay.

21 REYNARDO FERGUSON,

22 Being of lawful age, and having been first duly

23 sworn in the above cause, testified on his

24 oath as follows:

25 THE CLERK: Please state your name and


APPENDIX f

335

1 your civic duty. Without the seven of you,

2 this justice system wouldn't work. Your job,

3 today, is as a juror. My job was assistant

state attorney. Phoebee had a job as a defense

5 attorney. Our jobs are almost done. Now it

6 becomes your job, as a juror, to follow the

7 law. It is important in this case to follow

8 the law. There are some things I want for you

9 think about when you go back to the jury room.

10 As I said in opening, it is a quiet

11 neighborhood in Coral Springs. It is 1:30 in

12 the afternoon.

13 What usually happens in that neighborhood,

14 by the testimony of Michelle Shiver, and

15 Anthony Grima, at 1:30 in the afternoon.

16 Children a are in school. People are

17 working, but not Reynardo Ferguson, not Dundas

18 Munnings and not Benjamin Collins.

19 I think that one of the main issues in this

20 case is are you going to believe Reynardo

21 Ferguson's story? or are you going to believe

22 the seven witnesses who testified in this case.

23 You need to think there is a conflict in

24 this case, clearly between what the defendant

25 testified to and the seven State witnesses


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1 testified to. There is clear conflict. The

2 Judge will tell you when there is conflict in

3 the evidence, that can lead to reasonable

doubts. However, you can also throw away

5 testimony. Because the State submits that if

6 you believe anything Reynardo Ferguson said

7 about his story, it is not true.

8 The Judge will tell you when you're looking

9 at the credibility of witnesses, one of the

lo things you can consider is do they have an

11 interest in the outcome of the case? I think

12 out of all of the witnesses you heard, the only

13 person that has an interest in the outcome of

14 the case is the defendant. Of course, he will

15 testify favorable to himself.

16 Another thing the Judge will tell you, you

17 can consider, is whether or not that person has

18 been convicted of a felony. Reynardo Ferguson

19 sits before you today. He's a two - time

20 convicted felon. He does not have one felony,

21 he has two.

22 That is something you can strongly consider

23 when you go back into the jury room and you

24 look at, each and every one of you, we have a

25 conflict, let's resolve it. We have a two time


337

1 convicted felon on the defense side. Seven

2 State witnesses, no evidence, that they've ever

3 been convicted.of a felony. No evidence they

have an interest in the outcome of the case.

5 Like I said in opening, thank goodness

6 Michelle was home, because had she not been

7 home, we wouldn't be sitting here today. This

8 crime would not have been solved. Think about

9 why that makes sense.

10 I showed you a lot of photographs. I know

11 you remember looking at the photographs. I

12 believe the State has proven that Dundas

13 Munnings was driving that vehicle. They were

14 partying. Does it make sense when Reynardo

15 Ferguson tells you they are in Opa Locka, in

16 Miami, partying all night and all of a sudden

17 they end up in Coral Springs, at some chick's

18 house? How does that make sense? That Dundas

19 Munnings, a Bahamian citizen, is going to know

20 his way to Coral Springs, first of all, in a

21 family oriented neighborhood, picking up a

22 chick. You have to be kidding me.

23 You would have to force yourself to believe

• 24 Reynardo Ferguson telling you that. That

25 doesn't make sense.


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1 Think about what makes sense. Also, the

2 defendant was in the car, in the vicinity of

3 objects used common in burglaries, socks,

knives, there is evidence consistent in this

5 case a knife was used to gain entry to both the

6 residences. How it happened in the back, you

7 don't need to go back and say how do you think

8 they did it? Did they switched the knife. Do

9 you think so and so went here? It doesn't

10 matter. If you think that Reynardo Ferguson

11· was involved in this burglary, he's guilty.

12 If you think he was urinating on the side

13 of the house, and you believe that to be

14 credible evidence you can find him not guilty.

15 But the State submits that's not what

16 happened. If you believe that was his only

17 role in the case and think about it, Dundas

18 Munnings -- I was sound asleep, Dundas Munnings

19 comes back in the vehicle and the first thing

20 you can think to do is you're going to urinate

21 on the side of the house. Not, dude, what were

22 you doing, why are we here, what are you

23 doing. I have to go to the bathroom, let's get

24 out of here. You just take it upon yourself to

25 urinate at someone's residence? That doesn't


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1 make sense.

2 The fact remains, and the evidence in this

3 case, is the officer testified that he saw

4 Benjamin Collins and Reynardo Ferguson coming

5 from the rear of the residence. He never said

6 he saw Reynardo Ferguson urinating in the front

of the residence. He saw them coming from the

8 rear. That's when he saw Benjamin Collins

9 holding the bag.

10 If you want to believe everything

11 Ms. Francois said in her closing arguments,

12 this whole case is circumstantial, this is

13 based on this, we would never, the State would

14 never be able to prove any cases. Think about

15 what she is requiring of the State. She is

16 requiring specific pieces of evidence, how I

17 prove my case. All burglaries, all dwellings

18 should be occupied. All the fingerprints

19 should be left there. That's not how crimes

20 occur. Go back in the jury room, resolve the

21 conflicts between the defense and the State

22 witnesses and I'm confident that you'll convict

23 the defendant in this case.

24 Thank you.

25 THE COURT: Members of the jury, at this


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