Willie Earl Ponder v. State of Florida , 209 So. 3d 59 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WILLIE EARL PONDER,
Appellant,
v. CASE NO.: 1D15-0873
STATE OF FLORIDA,
Appellee.
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Opinion filed December 21, 2016.
An appeal from the Circuit Court for Leon County.
Terry P. Lewis, Judge.
Michael Ufferman, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant Willie Earl Ponder appeals the denial of his motion for post-
conviction relief arguing the circuit court erred in denying three claims of ineffective
assistance of trial counsel. We affirm and write as to only one issue.
Appellant was convicted of attempted first degree murder. At trial there were
references made by the State that Appellant became a suspect after his name surfaced
as the shooter. In his motion for post-conviction relief, Appellant argued that
defense counsel should have filed a motion in limine to exclude any reference to the
“word on the street” that Appellant was the shooter. Further, Appellant argued his
defense counsel rendered ineffective assistance for failing to object to the repeated
references by the prosecution to the so-called “word on the street” evidence. In
support of this argument, Appellant relies on Saintilus v. State, 869 So. 2d 1280 (Fla.
4th DCA 2004).
At Appellant’s trial, the trial court sustained the hearsay objection of defense
counsel to the statement made by the prosecutor in opening argument that “there was
talk in the community about who the shooter was and that that is how law
enforcement developed a suspect in this case.” Further, during the proffer of
Breanna Morgan, a witness to the shooting, Morgan was cautioned by the trial court
to refer to shooter as “the shooter, or something of that nature . . . rather than talking
about Willie Ponder like you know who he is.” Morgan would later refer to
Appellant by name multiple times. Defense counsel objected to the first reference,
an objection which was denied; defense counsel did not again object to Morgan’s
reference to Appellant by name because, as he explained at the post-conviction
hearing, he did not want the jury to see the defense get repeatedly overruled. Defense
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counsel also objected when the prosecutor asked a police officer “when [the shooting
victim] mentioned to you a name that he had heard from other people, did you just
take a picture of Willie Ponder and show it to him and say, is this the guy that shot
you?” The trial court did sustain the hearsay objection. It is true that defense counsel
did not object when the prosecutor referenced in opening argument things “being
said in the community” about Appellant; nor did defense counsel object when the
prosecutor asked the shooting victim whether friends and family members were
passing information to him about the name of the shooter or whether he was familiar
with Appellant’s name “because of what people were telling you.”
Following an evidentiary hearing, the circuit court denied the post-conviction
relief noting no prejudice resulted from the references given “vague, generalized
nature of the reference to ‘word on the street’ and how it was used by the
investigators.” Further, the circuit court found, defense counsel was able to use the
“word on the street” evidence to bolster its theory of misidentification as such
evidence “suggested that the victim and the eye witness were desperate, or eager at
least, to be able to point the finger at someone, even though they couldn’t really
identify him.” These findings are supported by the record.
Therefore, Appellant has not demonstrated the circuit court erred in denying
post-conviction relief. “Judicial scrutiny of counsel's performance must be highly
deferential,” and there is a strong presumption that trial counsel's performance was
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not ineffective. Strickland v. Washington, 466 U.S. 668, 689 (1984). “A fair
assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at the
time.” Id. “[S]trategic decisions do not constitute ineffective assistance of counsel
if alternative courses have been considered and rejected and counsel's decision was
reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.
2d 1037, 1048 (Fla. 2000).
The issue in Saintilus was not whether trial counsel rendered ineffective
assistance, but whether the trial court erred in denying an objection to the admission
of “word on the street evidence.” Given the record, we cannot say the circuit erred
in concluding ineffective assistance was not demonstrated. There were several
objections made, and when the “word on the street” references were made, defense
counsel used such to bolster the defense, as noted.
Accordingly, the denial of post-conviction relief is AFFIRMED.
ROBERTS, C.J., WETHERELL and BILBREY, JJ., CONCUR.
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