Opinion
No. 1D20-2837
04-30-2021
Timothy K. ABNEY, Appellant, v. STATE of Florida, Appellee.
Timothy K. Abney, pro se, Appellant. Ashley Moody, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
Timothy K. Abney, pro se, Appellant.
Ashley Moody, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam. Appellant challenges the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons stated below, we affirm.
In his amended motion for postconviction relief, Appellant claimed that trial counsel failed to call two witnesses, D. Russell and J. Helper, to testify. He argued that the witnesses would have testified that the victims made similar allegations in an earlier investigation and later recanted and that, had counsel introduced evidence of the prior allegations, the jury would have had reasonable doubt. The trial court denied the claim finding that the information would have been cumulative to other evidence presented at trial.
Appellant's initial brief claims that his trial counsel failed to object to improper arguments the prosecutor made during closing argument; the State responds that the issue was not preserved. Even if preserved, the claim is not meritorious.
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Appellant's claim is meritless. "Even if a witness was available to testify and counsel was deficient in not presenting his or her testimony during trial, counsel is not ineffective if that testimony would have been cumulative to other evidence presented, because such cumulative evidence removes a defendant's ability to establish prejudice." Nelson v. State , 73 So. 3d 77, 89 (Fla. 2011). The defense cross-examined the victims about their tenuous relationship with Appellant, and Sgt. Voyles testified that one victim, D.D., recanted her allegations after originally reporting sexual abuse in 2012. Accordingly, the jury was made aware of the previous allegations through another method and counsel did not perform deficiently.
Appellant also averred that trial counsel failed to properly impeach the victim's father with prior inconsistent statements. When the victim's father was interviewed during the 2012 investigation, he indicated that the victims "made up the allegations." At trial, he testified that he believed the allegations when he first heard them and still believed them. He argued that the outcome at trial could have been different had counsel confronted the witness with his prior statements.
Appellant's claim is without merit and entirely speculative. "Postconviction relief cannot be based on speculation or possibility." Maharaj v. State , 778 So. 2d 944, 951 (Fla. 2000). The victims’ father was not a key witness at trial and his testimony was largely cumulative of other testimony and any impeachment would have been of a minimal value. The jury had already heard about recantations from Sgt. Voyles’ testimony and even the one of the victims. Further, it is not enough that an error may have a conceivable effect, the effect must show a likelihood to undermine confidence in the outcome to satisfy Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Finally, Appellant contended that trial counsel's deficient performance resulted in cumulative error. "Because all of the allegations of individual legal error are without merit, a cumulative error argument based upon these errors must also fail." Barnhill v. State , 971 So. 2d 106, 118 (Fla. 2007). None of the claims are entitled to relief. Thus, the cumulative error claim must also fail.
AFFIRMED .
Rowe, Makar, and Osterhaus, JJ., concur.