Petition for Writ of Certiorari — James Desmond Booth, Petitioner v. Florida

Supreme Court briefJul 24, 2026

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No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES DESMOND BOOTH,

Petitioner,

STATE OF FLORIDA

Respondent.

On Petition for Writ of Certiorari

to the Florida Fifth District Court of Appeal

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

A-1

TABLE OF CONTENTS

Document

Page

March 27, 2026, order of the Florida Fifth District Court of Appeal . . . . . .A-3

February 19, 2026, opinion of the Florida Fifth District Court of Appeal.. .A-4

Excerpt of July 26, 2017, Amended Motion for Postconviction Relief,

Pages 1-2, 7-8, 14, & 16-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-6

Excerpt of Transcript of July 24, 2023, Evidentiary Hearing,

Pages 1-3 & 60-68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-13

Excerpt of April 17, 2017, Trial Transcript,

Pages 964-983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-25

Excerpt of Order Denying Defendant’s Motion for Postconviction Relief,

Pages 1-10 & 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-45

A-2

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

James Desmond Booth,

Case No.: 5D2024-2807

L.T. No.: 2012-30612-CFAES

Appellant(s),

State of Florida,

Appellee(s).

Date: March 27, 2026

BY ORDER OF THE COURT:

ORDERED that Appellant’s “Motion for Rehearing/Issuance of a

Written Opinion,” filed March 6, 2026, is denied. Further, it is

ORDERED, sua sponte, that oral argument, previously scheduled

for April 14, 2026, in the above styled appeal is dispensed with pursuant to

Florida Rule of Appellate Procedure 9.320.

I hereby certify that the foregoing is

(a true copy of) the original Court order.

5D2024-2807 3/27/2026

SANDRA B. WILLIAMS, CLERK

Panel: Judges Jay, Makar and Kilbane

cc:

Criminal Appeals DAB Attorney General

Michael Robert Ufferman

Alyssa Williams

A-3

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2024-2807

LT Case No. 2012-30612-CFAES

____________________________

JAMES DESMOND BOOTH,

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________

3.850 Appeal from the Circuit Court for Volusia County.

Randell H. Rowe, III, Judge.

Michael Ufferman, of Michael Ufferman Law Firm, P.A.,

Tallahassee, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Alyssa M.

Williams, Assistant Attorney General, Daytona Beach, for

Appellee.

)HEUXDU\

PER CURIAM.

AFFIRMED.

JAY, C.J., and MAKAR and KILBANE, JJ., concur.

A-4

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

A-5

Filing # 59558006 E-Filed 07/26/2017 04:04:57 PM

INTHE

SEVENTH JUDICIAL CIRCUIT COURT

VOLUSIA COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

Case No. 2012-CF-30612

JAMES DESMOND BOOTH,

Defendant.

AMENDED MOTION FOR POSTCONVICTION RELIEF 1

The Defendant, by and through undersigned counsel, and pursuant to Florida Rule of

Criminal Procedure 3.850, moves this Honorable Court to vacate his judgment, and in support of

said motion alleges:

Name and location of the court that entered the judgment of conviction under attack:

Seventh Judicial Circuit Court, Volusia County, Florida.

Date of judgment:-"-A=p=r=il~2~L~2~0~1~4_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Length of sentence: life imprisonment for count 1; thirty years' imprisonment for count 2

Nature of offenses involved: first-degree murder (count I); tampering with a witness (count

What was your plea? (check only one)

(a) Not GuiltyX

(b) Guilty_

If you entered one plea to one count, and a different plea to another count, give details: NIA

1 This motion is amended to include the Defendant's oath, see Morais v. State, 640 So.

2d 1227 (Fla. 2d DCA 1994), and footnote 2. See Graham v. State, 846 So. 2d 617,618 (Fla. 2d

DCA 2003) ("A timely-filed mle 3.850 motion, prior to the trial court's disposition of the motion,

may be amended with sworn allegations relevant to the issue or issues raised in the motion, even

after the two-year time period for filing a timely rule 3.850 motion has expired.") (citations omitted).

Pagel of 17

A-6

Kind of trial: (check only one) ~Ju=r,c___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Did you testify at the trial or at any pre-trial hearing? ~Y~e=s_ _ _ _ _ _ _ _ _ __

Did you appeal from the judgment of conviction?

YesX No

If you did appeal, answer the following:

(a) Name of court: Fifth District Court of Aim=ea=l~------(b) Result: Convictions and sentences affirmed

(d) Citation (if known): Booth v. State. 166 So. 3d 803 (Fla. 5th DCA 2015)

10.

Other than a direct appeal from the judgment of conviction and sentence, have you previously

filed any petitions, applications, motions, etc. with respect to this judgment in this court?

Yes

No _K___

11.

If your answer to number 10 was "yes," give the following information (applies only to

proceedings in this court):

(a)

(1) Nature of the proceeding: N ~ ' ~ / A ~ - - - - - - - - - - - - - - - -

(2) Grounds raised: ~ N ~ / A ~ - - - - - - - - - - - - - - - - - - - (3) Did you receive an evidentiary hearing on your petition or motion, etc? =LL(4) Result: N~1~ / A ~ - - - - - - - - - - - - - - - - - - - - - -

(5) Date of result: N ~ I A ~ - - - - - - - - - - - - - - - - - - Ifyou did appeal, answer the following:

(1) Name ofcourt:-"-N-"-/~A~------------------

(2) Result: N ~ / A ~ - - - - - - - - - - - - - - - - - - - (3) Date ofresult:~N""/~A~------------------(4) Citation (if known):~N~/~A~-----------------

Page 2 of 17

A-7

claim is two-pronged: The defendant must show both that trial counsel's performance was deficient

and that the defendant was prejudiced by the deficiency." Bruno v. State, 807 So. 2d 55, 61 (Fla.

2002) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Accordingly, defense counsel was ineffective for failing to obtain the Defendant's jail

housing records. Counsel's failure fell below the applicable standard of performance. Absent

counsel's ineffectiveness in the instant case, the result of the proceeding would have been different

and/or counsel's ineffectiveness affected the fairness and reliability of the proceeding, thereby

undermining any confidence in the outcome. See Johnson v. State, 921 So. 2d 490, 511-12 (Fla.

2005) (Pariente, C.J., specially concurring). The Defendant requests an evidentiary hearing on this

claim.

Ground 2: Defense counsel rendered ineffective assistance of counsel by

ob_jecting the State's effort to remove a juror who was sleeping during the trial.

Defense counsel rendered ineffective assistance of counsel by objecting the State's effort to

remove a juror who was sleeping during the trial. As a result, the Defendant was denied his right

to effective assistance of counsel in violation of the Sixth Amendment to the United States

Constitution and in violation of article I, section 16 of the Florida Constitution.

During the trial, the State brought to the Court's attention that a particular juror (Juror

Number 40 from the original panel) had fallen asleep during the trial. Specifically, the State put on

the record that the juror was sleeping during the Defendant's testimony:

[Y]esterday was an exciting day. There was yelling the courtroom. There were

things going on. The defendant's on the stand.

And she's sleeping.

(T-969). Despite the clear record of the juror sleeping - which was also observed by the Court when the prosecutor moved to remove the juror, defense counsel objected. As a result of defense

Page 7 of 17

A-8

counsel's objection, the juror remained on the jury and participated in the deliberations leading to

the guilty verdict. Obviously from the standpoint of the defense, the most importm1t testimony

during this trial was the Defendant's - wherein the Defendant admnm1tly denied committing the

crimes in this case. Yet a juror was sleeping during this critical testimony.

Defense counsel were ineffective for objecting the removal of the sleeping juror. Had the

sleeping juror been properly removed, there is a reasonable probability that the result of the

proceeding would have been different (i.e,. there would have been deliberations by jurors who all

heard all of the testimony- including the Defendant's testimony).

Accordingly, defense counsel rendered ineffective assistance of counsel by objecting the

State's effort to remove the sleepingjuror. 3 Counsel's failure fell below the applicable standard of

performance. Absent counsel's ineffectiveness in the instant case, the result of the proceeding would

have been different and/or counsel's ineffectiveness affected the fairness m1d reliability of the

proceeding, thereby undermining any confidence in the outcome. See Johnson, 921 So. 2d at 511-12

(Pariente, C.J ., specially concurring). The Defendant requests an evidentiary hearing on this claim.

Ground 3: Defense counsel rendered ineffective assistance of counsel by failing

to object to the State's improper "do your duty" closing argument.

Defense counsel rendered ineffective assistance of counsel by failing to object to the State's

improper "do your duty" closing argument. As a result, the Defendant was denied his right to

effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution

and in violation of miicle I, section 16 of the Florida Constitution.

The Defendant continues to rely upon the Strickland analysis set forth in Ground 1

above and that analysis is incorporated by reference.

Page 8 of 17

A-9

different - even if the outcome would not have changed but for any one particular error. Relief is

therefore warranted under these circumstances. See State v. Gunsby, 670 So. 2d 920, 924 (Fla.

1996).

15.

If the grounds listed in 14 were not previously presented on your direct appeal, give your

reason they were not so presented: A claim of ineffective assistance of counsel is generally not

cognizable on direct appeal and is properly raised for the first time in a motion for postconviction

relief, pursuant to Florida Rule of Criminal Procedure 3.850. See Kelly v. State, 486 So. 2d 578,585

(Fla. 1986).

16.

Do you have any petition, application, appeal, motion, etc., now pending in any court, either

state or federal, as to the judgment under attack?

Yes

17.

If your answer to number 16 was "yes," give the following information:

(a)

Name of Court: , _ N = / A ~ - - - - - - - - - - - - - - - - - - - -

(b)

Nature of the proceeding:N

,_~/A~------------------

(c)

Grounds raised: ~ N ~ / A ~ - - - - - - - - - - - - - - - - - - - - -

(d)

Status of the proceedings: ,_N~/A~·~ - - - - - - - - - - - - - - - - -

18.

Give the name and address, if known, of each attorney who represented you in the following

stages of the judgment attacked herein.

(a)

At preliminary hearing:N

,_~IA ~ - - - - - - - - - - - - - - - - - - -

(b)

At plea hearing:~N~/~A~---------------------

(c)

At trial: J. Peyton Quarles, 125 Basin Street, Suite 210, Daytona Beach. Florida

32114; William F. Hathaway, 500 Canal Street. New Smyrna Beach. Florida 32168

(d)

At sentencing: Mr. Quarles and Mr. Hathaway

(e)

On appeal: Valm·ie Linnen. PO Box 330339, Atlm1tic Beach, Florida 32233-0339

(f)

In any postconviction proceeding:...,u"'"n"'d"'e"'rse.cig'"'n"'e"'d'---c""o"'u"'n""s"'e'---l- - - - - - - - - -

(g)

On appeal from any adverse ruling in a post-conviction proceeding: N~IA~--Page 14 of 17

A-10

OATH

Under penalties of perjury and administrative sanctions from the Department of Couections,

including forfeiture of gain time if this motion is found to be frivolous or made in bad faith, I certify

that I understand the contents of the foregoing motion, that the facts contained in the motion are true

and correct, and that I have a reasonable belief that the motion is timely filed. I certify that this

motion does not duplicate previous motions that have been disposed ofby the Court. I further certify

that I understand English and have read the foregoing motion.

Page 16 of 17

A-11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true and correct copy of the foregoing instrument has been furnished

to:

Office of the State Attorney

251 North Ridgewood Avenue

Daytona Beach, Florida 32114

Email: ereceipts@sao7.org

by email delivery this 26th day of July, 2017.

Respectfully submitted,

Isl Michael Ufferman

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345lfax (850) 224-2340

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

Counsel for Defendant BOOTH

Page 17 of 17

A-12

IN THE CIRCUIT OF THE

SEVENTH JUDICIAL CIRCUIT

IN AND FOR VOLUSIA COUNTY, FLORIDA

CASE NO:

2012-CF-30612

STATE OF FLORIDA,

P l a i n t i f f,

vs.

JAMES DESMOND BOOTH,

D e f e n d a n t.

________________________________/

TRANSCRIPT OF EVIDENTIARY HEARING

BEFORE THE HONORABLE RANDELL H. ROWE, III

DATE:

Monday, July 24, 2023

TIME:

Commencing at 1:30 p.m.

LOCATION:

Volusia County Courthouse

101 Alabama Avenue

DeLand, Florida

32734

TRANSCRIBED BY:

Denise y. Meek

Court Reporter

A P E X R E P O R T I N G, I N C.

850-597-5185

w w w . t a l l y c o u r t r e p o r t i n g. c o m

A-13

APPEARANCES

F O R T H E P L A I N T I F F:

ANDREW J. URBANAK, ESQ.

Office of the State Attorney

251 North Ridgewood Avenue

Daytona Beach, FL

32114

386-239-7710

urbanaka@sao7.org

F O R T H E D E F E N D A N T:

MICHAEL UFFERMAN, ESQ.

Michael Ufferman Law Firm, PA

2022-1 Raymond Diehl Road

T a l l a h a s s e e, F L

32308

850-386-2345

u f f e r m a n@ u f f e r m a n l a w. c o m

DONALD A. PUMPHREY, JR., ESQ.

Pumphrey Law

553 East Tennessee Street

T a l l a h a s s e e, F L

32308

850-681-7777

d o n @ d o n p u m p h r e y. c o m

ALSO PRESENT:

JAMES DESMOND BOOTH

A-14

INDEX OF PROCEEDINGS

PAGE

O P E N I N G S T A T E M E N T S:

By Mr. Ufferman

By Mr. Urbanak

W I T N E S S E S F O R T H E P L A I N T I F F:

JAMES PEYTON QUARLES

Direct Examination by Mr. Urbanak

Cross-Examination by Mr. Pumphrey

JOSEPH RYAN WILL

Direct Examination by Mr. Urbanak

Cross-Examination by Mr. Pumphrey

Redirect Examination by Mr. Urbanak

WITNESSES FOR THE DEFENSE:

JAMES DESMOND BOOTH

Examination by Mr. Ufferman

Direct Examination by Mr. Pumphrey

Cross-Examination by Mr. Urbanak

Redirect Examination by Mr. Pumphrey

MONICA JORDAN

Direct Examination by Mr. Pumphrey

Cross-Examination by Mr. Urbanak

Redirect Examination by Mr. Pumphrey

MICHAEL H. LAMBERT

Direct Examination by Mr. Pumphrey

Cross-Examination by Mr. Urbanak

Redirect Examination by Mr. Pumphrey

REBUTTAL WITNESSES FOR THE DEFENSE:

Direct Examination by Mr. Pumphrey

DEFENSE RESTS

101

A-15

name?

of birth?

avoiding her.

to the contrary that's been presented to

refute that, and in light of that, I believe

we meet the statutory exception under the

e v i d e n c e c o d e o f M s . W a r d b e i n g u n a v a i l a b l e,

a n d, t h e r e f o r e, w e w o u l d a s k t h a t y o u a l l o w

us to introduce Exhibit B as a statement

against interest.

THE COURT:

Is this the right person with the date

She's found her, but she's

And I believe there's nothing

All right.

I'll allow you to

do that.

MR. UFFERMAN:

Thank you, Your Honor.

this point, the defense rests.

THE COURT:

All right.

Does the State

w a n t t o c a l l a n y w i t n e s s e s?

MR. URBANAK:

Yes, Judge.

Briefly, I

would call Peyton Quarles in regard to

Ground 2 in the motion for post-conviction

relief.

( W i t n e s s a p p r o a c h e s. )

MR. URBANAK:

THE COURT:

May I inquire, Judge?

Yes.

JAMES PEYTON QUARLES,

having been previously sworn,

A-16

was examined and testified as follows:

DIRECT EXAMINATION

BY MR. URBANAK:

G o o d a f t e r n o o n, s i r.

G o o d a f t e r n o o n.

Could you please state your entire name

and spell your last name.

James Peyton Quarles, Q-u-a-r-l-e-s.

Mr. Quarles, what do you do for a living,

I'm a lawyer.

How long have you been a lawyer?

Forty-seven, 48 years.

And have you practiced criminal law

sir?

throughout your career as a lawyer?

I have.

Does that include representing

individuals on capital homicide cases?

Yes.

Were you actually the attorney for

Mr. Booth who is seated in the courtroom here

today?

Yes.

Did you represent him at trial with

anyone else or was it just you?

A-17

I represented him at trial with William

F. Hathaway.

in 2014.

It sounds right.

Yes.

Before the hearing today, you and I have

And this trial happened all the way back

Does that sound right?

A long time ago?

had a couple discussions about the grounds that

he's alleging in his post-conviction motion,

right?

We have.

And did I actually send you -- strike

that question.

One of the things we talked about was

Ground 2, which is in regard to a juror sleeping

or appearing to be sleeping during the trial.

you remember that?

Yes.

Did I actually send you a portion of the

t r i a l t r a n s c r i p t, I t h i n k, l a s t F r i d a y t o l o o k

at, where there is a -- I want to say an almost

15-page discussion about that sleeping juror?

Yes.

Did that help further refresh your memory

A-18

in regard to that portion of the trial?

Not really.

Not really?

No.

Well, let me ask you this:

Do you recall

the State moving to strike one of the jurors, who

was sleeping on the jury, in the middle of the

trial or during the trial?

t r a n s c r i p t.

I recall that now that I read the

Okay.

And do you recall the race of the

juror that the State was seeking to strike for

s l e e p i n g i n t h e c o u r t r o o m?

Yes.

And what was the race of that juror?

I don't know what the correct terminology

is these days.

person of color.

I guess African American, Black,

the jury?

Yes.

Was it an elderly person as well?

I think she was.

And, of course, your client, Mr. Booth,

And was that the only person of color on

he is also African American?

A-19

Yes.

And you objected -- I think you objected

to the State's request to remove that juror.

Yes.

W h y d i d y o u m a k e t h a t o b j e c t i o n, s i r?

Because Mr. Booth and the juror were of

the same race.

b e n e f i t s a d e f e n d a n t, e s p e c i a l l y o n e o f t h a t

e t h n i c i t y, t o h a v e a p e r s o n o f t h e s a m e r a c e t o

be on the jury.

A n d, t y p i c a l l y, I t h i n k t h a t i t

Is that something -- something you

believed as your career moved on, that it was in

your client's best interest to have somebody, if

they could, of the same race on the jury?

Yes.

And when you made that objection -- or

b e f o r e y o u m a d e t h e o b j e c t i o n, d i d y o u c o n s i d e r

the alternatives of whether or not it might be

beneficial to remove that juror?

Only briefly.

So your instinct, as a trial attorney,

was that:

this juror not to be removed?

It's in my client's best interest for

Yes.

And do you recall whether or not your

A-20

co-counsel voiced any disagreement with your

decision, or was that a decision that you and him

made together?

I always discuss decisions with

Mr. Hathaway when we're trying cases together,

which we've done numerous times, and I'm sure we

did.

MR. URBANAK:

I h a v e n o f u r t h e r q u e s t i o n s, Y o u r H o n o r.

THE COURT:

MR. PUMPHREY:

Thank you, Mr. Quarles.

All right.

Your Honor?

THE COURT:

(Brief pause.)

Can we have one moment,

Yeah.

CROSS-EXAMINATION

BY MR. PUMPHREY:

M r. Q u a r l e s, g o o d a f t e r n o o n.

G o o d a f t e r n o o n.

MR. PUMPHREY:

May it please the Court.

BY MR. PUMPHREY:

Mr. Quarles, the issue that the State

raised about the sleeping juror, that was during

M r. B o o t h' s t e s t i m o n y; i s t h a t r i g h t?

I do not recall.

Okay.

And no trickery here, and I don't

A-21

think the State will object, this was -- this

occurred during Mr. Booth's testimony as opposed

t o a t r a n s c r i p t?

MR. PUMPHREY:

MR. URBANAK:

D o e s t h e S t a t e s t i p u l a t e?

Judge, I'll stipulate the

records, the transcripts are a piece of

evidence the Court is taking notice of.

THE COURT:

MR. URBANAK:

Okay.

And that's one of the times

it was referenced that the juror may have

been nodding off, yes.

THE COURT:

All right.

BY MR. PUMPHREY:

time ago.

move things along.

And, Mr. Quarles, I know this was some

So my apology.

That's okay.

Okay.

I'm just trying to

And so you would agree with me

that Mr. Booth -- in this particular case, if I

u n d e r s t a n d c o r r e c t l y, t h e w e a p o n t h a t w a s f o u n d

was not tied back to the murder scene; is that

right?

All I remember about the weapon is that

they changed the name of the street off of US 1

to where we were told it was searched in a

A-22

waterway area.

Conner, but they put the street sign upside down

in cement and it's now known as Lawn Acres

(phonetic).

Do you agree?

That's the most memorable thing about

this case.

Okay.

The street was supposed to be

You would agree Mr. Booth's

t e s t i m o n y, t h o u g h, w a s c r i t i c a l i n t h e d e f e n s e

case?

A b s o l u t e l y.

Okay.

And you would agree with me that a

juror sleeping cannot process or speak up when

they go back to deliberations, because they're

not aware of the testimony if they're sleeping?

I agree.

And the alternates in this case, were

t h e r e a n y A f r i c a n A m e r i c a n s o r o t h e r a l t e r n a t e s,

that you discussed with Mr. Booth, as a potential

person to take the place of this African American

juror?

I do not remember.

Okay.

But you would agree with me that

regardless of the race of a juror, the most

important thing is that the juror is paying

A-23

attention the entire time?

I agree.

MR. PUMPHREY:

Thank you, Mr. Quarles.

THE COURT:

MR. URBANAK:

THE COURT:

N o f u r t h e r q u e s t i o n s.

Anything else?

No, Your Honor.

All right.

Mr. Quarles, good

to see you.

THE WITNESS:

THE COURT:

MR. URBANAK:

Yes, Judge.

THE WITNESS:

Good seeing you, Judge.

Can he be released?

Thank you.

Am I excused?

THE COURT:

Does the defense have any

objection to him being released?

MR. PUMPHREY:

THE COURT:

No, Your Honor.

All right.

go.

(Witness excused.)

MR. URBANAK:

The State would call Ryan

Will, Your Honor.

( W i t n e s s a p p r o a c h e s. )

MR. URBANAK:

THE COURT:

You're free to

May I inquire, Judge?

Yes.

JOSEPH RYAN WILL,

A-24

964

IN THE CIRCUIT COURT, SEVENTH

JUDICIAL CIRCUIT, IN AND FOR

VOLUSIA COUNTY, FLORIDA

CASE NO.:

STATE OF FLORIDA

vs.

JAMES DESMOND BOOTH,

Defendant.

2012 30612 CFAES

APPEAL TRANSCRIPT

* * * * * * * * * * * * * * * * * * * * * * * *

TRANSCRIPT OF PROCEEDINGS

JURY TRIAL BEFORE

THE HONORABLE RANDELL H. ROWE, III

CIRCUIT COURT JUDGE

VOLUME IX of XI

(Pages 964 through 1122)

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

DATE TAKEN:

THURSDAY, APRIL 17, 2014

TIME:

COMMENCED AT 9:09 A.M.

CONCLUDED AT 3:32 P.M.

PLACE:

VOLUSIA COUNTY COURTHOUSE

101 NORTH ALABAMA AVENUE

DELAND, FLORIDA 32724

REPORTED BY:

MARY GRAYBOSCH, RPR, CRR

COURT REPORTER AND NOTARY PUBLIC

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

A-25

965

APPEARANCES:

J. RYAN WILL, ESQUIRE

Office of the State Attorney

440 South Beach Street

Daytona Beach, Florida 32114

(386) 238-4894

(386) 238-4969 - facsimile

willr@sao7.org

and

EDWIN L. DAVIS, ESQUIRE

Office of the State Attorney

251 North Ridgewood Avenue

Daytona Beach, Florida 32114

(386) 239-7710

(386) 239-7742 - facsimile

davise@sao7.org

Attorneys for the State

J. PEYTON QUARLES, ESQUIRE

125 Basin Street, Suite 215

Daytona Beach, Florida 32114

(386) 255-0305

(386) 255-2027 - facsimile

peytonquarles@gmail.com

and

WILLIAM F. HATHAWAY, ESQUIRE

500 Canal Street

New Smyrna Beach, Florida 32168

(386) 423-5504

(386) 423-8370 - facsimile

wh1006@aol.com

Attorneys for the Defendant

A-26

966

C O N T E N T S

VOLUME IX

(Pages 964 through 1122)

Thursday, April 17, 2014

STATE'S MOTION TO REMOVE/REPLACE JUROR

STATE'S MOTION DENIED

967

980

STATE'S CASE IN REBUTTAL

TESTIMONY OF JERRY BETZ

Direct Examination by Mr. Will

Cross-Examination by Mr. Quarles

Redirect Examination by Mr. Will

Recross-Examination by Mr. Quarles

984

986

987

DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL

DEFENDANT'S MOTION FOR JOA DENIED

990

991

CLOSING ARGUMENTS

By Mr. Will

By Mr. Quarles

994

1031

REBUTTAL CLOSING ARGUMENT

By Mr. Will

1067

JURY CHARGE

1080

RELEASE OF ALTERNATE JURORS

1102

VERDICT

1115

POLLING OF THE JURY

1116

A-27

967

(Continued from Volume VIII.)

THE COURT:

Morning.

Ready to proceed?

MR. WILL:

Yes,

Before the jury comes

sir.

out,

record and a motion to make.

I have a matter I would like to put on the

It's been bothering me for a couple days,

and

after -- after yesterday I really think I should

say something.

With respect to juror number four,

juror

number 40 from the original panel, Ms. Griffith,

I'm not sure how much she's getting of this.

You know,

about 103.

in 1959.

to begin with,

she looks like she's

She retired in 1959, actually retired

She had a full career up in New York,

prior to that.

nursing

I'm concerned about her age.

Additionally, there have been two occasions

this week since we've started the proof where

she's been ten to 20 minutes late for court in the

morning,

here.

and we've had to wait for her to get

You know,

and I recognize that other jurors

have been late.

just came in ten minutes late.

Mr. Prosser -- or Juror Prosser

But in combination with all the other things

A-28

968

with respect to Ms. Griffith,

it's worth noting

that she's been late for court.

She was seen in the parking lot one day this

week talking to one of the witnesses in this case.

She had previously been instructed by the

Court,

as had all jurors, not to talk to

witnesses,

not to talk to the attorneys.

But she's out in the parking lot talking to a

witness after that witness had just gotten off the

stand.

And it's not like it's just any witness.

It's a witness who actually committed perjury for

the defendant.

She was flipped by the State and testified

for the State here in trial under threat of

prosecution and incarceration for up to 30 years.

So it's not like it's just any witness on a

routine matter.

that she's out there talking to, who expressed in

court that she was displeased with my actions as a

prosecutor and that I had threatened her.

This is a significant witness

She continued to talk to that witness after

she was told to stop.

The next morning she came in to the

courthouse,

and she addressed the

A-29

that very

969

same issue with one of the attorneys.

She -- she approached Ed Davis in the hallway

and started to talk to him about why she had been

talking to a witness,

told since day one that it's improper for a lawyer

to speak to a juror.

something that she had been

She was told several times to stop talking to

Mr. Davis.

And,

eventually, Mr. Davis just walked

away from her while she was still talking.

Yesterday she's had issues of falling

she

had some serious issues of falling asleep in

trial.

She's been nodding -- nodding off throughout

the proceeding,

but yesterday,

there were several

times where she just flat-out fell asleep.

It got so bad at one point that the

presentation of evidence needed to be altered to

accommodate her sleep schedule here in court.

This was the pinnacle of the trial.

defendant was on the stand.

We've had several days of testimony.

were

yelling in the courtroom.

on.

The

yesterday was an exciting day.

A-30

There was

There were things going

The defendant's on the stand.

And she's sleeping.

There

970

And I have serious questions about her

fitness as a juror,

generally.

Whether or not she's -- she's excused from --

from our juror -- from our jury,

she permanently be excused from jury service.

I would ask that

Somebody that isn't able to -- to dedicate

themselves to the task should not be on the jury.

But, more importantly,

I have questions about

her qualifications and abilities to do her job in

this case specifically.

And I would be remiss not to mention it.

I provided Defense Counsel and the Court with

Ortiz versus State,

835 Southern Second 1250.

That essentially says that when a

juror is

sleeping during the proceedings, that it's within

the sound discretion of the trial Court as to

whether or not that juror should be removed and an

alternate should be substituted.

That -- the substitution of a alternate is

perfectly permissible because that individual has

been duly selected and -- and that a quick

substitution would not prejudice the -- the

situation.

Again,

I -- I would just make the motion that

she needs to be removed,

A-31

that we can do it in a

971

tactful manner, that she can continue to sit

through the proceedings as alternate number three,

a person who we now know probably will not serve

given that everyone is here this morning.

We can just tell her at the end of the

proceedings that she's an alternate, excuse her

with the alternates, and allow the first alternate

to -- to sit in her place in the jury room.

THE COURT:

All right.

Mr. Will,

I'll

just -- I feel that I should just remind you about

our conversation at the bench yesterday about your

reluctance to bring it up because of special

concerns.

And I

just want to throw that out there, that

should I grant your motion, those special concerns

are not going to go away.

MR. WILL:

I -- I recognize that,

Judge.

And

I'm sensitive to that issue, but this would be a

problem independent of her race.

We wouldn't even be talking about it at all

if she were not the only black African-American

juror on the panel.

Had she been any other race,

she'd be gone by

now.

And I need to bring it up to the Court that

these are issues, each one of them discrete to

A-32

972

their own and worthy of dismissal.

And I'm done.

THE COURT:

Okay.

Mr. Quarles, do you wish

to respond to the motion?

MR. QUARLES:

Judge, we oppose her removal.

I -- I've

engrossed in other activities and have not paid

any attention and don't know what her demeanor has

been.

actually,

I guess I have been

I'm not saying that anybody's misrepresenting

what has been going on,

including Mr. Will.

I know the Court commented yesterday that

several times you looked over there, or at least

one time the Court looked over there.

And it appeared that she was sleeping, but

you realized that she was taking notes.

So we don't think that there's been any

enough presented to indicate that she is not

competent to continue to sit as a juror, and we

oppose her removal.

THE COURT:

follow-up comments?

Mr. Hathaway,

MR. HATHAWAY:

THE COURT:

No,

do you have any

your Honor.

All right.

I was just looking

over the case, which, of course,

A-33

says that,

as you

973

said, whether to remove a sleeping juror and

substitute that person with an alternate is within

the discretion of the Court.

Does Defense Counsel have any other cases

they want to cite to in that regard?

MR. QUARLES:

THE COURT:

No,

sir.

And I don't think there are a lot

of cases out there on that.

to research that years before.

I've had the occasion

This is -- I ' l l say, this is only the second

time that I've had to look into this, but it's

actually the first time that it's ever been raised

as an issue.

I believe in my first year on the bench in

the civil division,

And I noticed a

witness' testimony.

had a slip-and-fall trial.

juror sleeping through an expert

And it was one of those that dragged on for

hour -- most of the day,

was obviously sleeping.

actually.

And this guy

And I kept waiting for the attorneys to say

I -- I took -- like we did yesterday,

something.

I took breaks.

just as yesterday,

or whatever.

said go get some coffee

We'd come back and the guy would

A-34

974

just nod off again.

And it surprised me that the attorneys didn't

seem to care or notice or whatever.

And it bothered me so much that I went and

researched it,

may have been this Fifth DCA case that's cited

here.

and I found an old case.

And it

I don't know, but it was an older case that

pretty much said the same thing.

It's within the

discretion of the Court.

It also suggested that if the attorneys

didn't raise it, then just go with the flow.

Don't worry about it.

It was never mentioned by the attorneys.

That guy ended up being the foreman of the jury.

(Laughter.)

THE COURT:

Never -- was never raised by any

attorneys.

I had to research it.

And -- but that was the occasion that

This is the first time I've had that raised.

And, Mr. Will,

thing to raise that on the record.

I think you did exactly the right

So, you know,

I would say that if we had a

juror who was clearly sleeping through a lot of

testimony and who had violated the Court's

A-35

975

instructions as we found out yesterday,

I would

exercise my discretion to remove that person and

substitute that person with an alternate.

Let's look at Ms. Griffith's situation.

think we all recognized during jury selection that

Ms. Griffith is an elderly juror.

To me,

she appeared tired all through jury

selection, which dragged on quite some time.

I recall that she was one of only four,

think,

volunteered,

I'd like to be on the jury.

who said she'd actually like to do this and

raised her hand,

yeah,

I'd like --

Said it would be interesting and,

that was an attraction,

I also note that,

volunteered,

the jury.

you know,

I think.

of the four who

she was the only one who made it on

The other three were stricken.

Nobody challenged her.

her,

elderly and appeared tired,

Nobody did strike

even though we recognized that she was

so she's on the jury.

And I've been concerned every day about

whether she was up to the task because this has

been dragging on.

And it's a tiring,

everybody,

exhausting process for

not just the jurors, but everybody when

A-36

976

you have a trial that goes on for days and days,

long jury selection.

I've been keeping an eye on her.

she's been coming in late.

old,

and help us out.

I know

I think probably she's

and she's doing the best she can to get here

I think she's been hanging tough and hanging

with it, but I know she's been drowsy.

it.

I've seen

Yesterday, Mr. Davis brought it to my

attention that she appeared to be sleeping, which

I did not notice at the time, but I -- although I

have noticed that she's been tired almost every

day,

I had not noticed her asleep yet.

But Mr. Davis brought it to my attention at

the bench yesterday that it appeared to him that

she was nodding off and actually had her chin on

her chest.

So I decided that I was going to keep a close

eye on her,

also saw her arm moving.

which I did.

saw that also,

but I

And I came to the conclusion that she was

taking notes in her lap.

chest,

but I saw the arm moving and it looked like she

eyes down,

She had her chin on her

looked like she was sleeping,

A-37

977

was taking notes in her lap.

And the other jurors were not looking at her

strange or anything like they were a little bit

later,

her funny like maybe she was,

something was wrong.

o'clock,

asleep and

four o'clock,

five

she started nodding off.

The lady next to her -- and I think Mr. Davis

you know,

But as the day dragged on,

but all those times they weren't looking at

had also mentioned that he had noticed this.

The lady next to her,

I saw that she would

kind of discreetly reach over and shake her arm,

and Ms. Griffith would come back to life.

-- I

didn't want to single her out,

embarrass her,

but I was watching.

I think she nodded off,

would wake back up,

up.

nodded off again, wake back

I never saw her sleeping for,

30 seconds or a minute.

you guys did see that,

outright dozing.

just momentarily,

But, yes,

like, more than

Maybe I missed it.

Maybe

but I didn't see her just

she was very tired and was nodding

off and having a very hard time staying awake.

But I -- I did see two or three times the

A-38

978

lady next to her kind of shaking her arm,

she'd wake back up and smile.

and

I think she's doing the best she can,

but I

don't feel like she was significantly sleeping.

And I -- I brought up that first incident

years ago because,

in comparison to the guy that

was a sleeping juror, that guy was just taking a

nap.

But Ms. Griffith is not -- I don't think

she's been doing that.

struggling.

I think she's been

I understand how hard it is.

and I know you guys have been tired.

I've been worried about her.

I've been tired

I think she's

really trying,

I observed her outright dozing or napping.

struggling, but I really can't say

As you recall,

late in the day or close to

five o'clock,

like to take a break,

although there wasn't any coffee available at five

o'clock.

stretch,

get some coffee,

And then I called you guys up,

you,

hour.

I did finally ask them would you

look,

and I told

she's not going to make it another

And so we ended up with Mr. Booth's testimony

A-39

979

and then decided to do the rebuttal witnesses this

morning,

jurors saying I wish we could have just gone on

and gotten it done last night.

But because of her,

although Mike indicated he heard the

I didn't want to do that

because it seemed to me that she wasn't going to

last another 30 minutes or an hour.

I recognize the concern, Mr. Will.

you did right bringing it up, but I don't feel

like that she's really been sleeping through

significant portions of testimony.

Although she has been nodding off,

I think

she's been awakened a few seconds after she nods

off,

sleeping.

As to the violation of the Court's order,

so I don't feel like she's really been

Mr. Davis,

you -- we discussed that yesterday.

And it sounded like you were maybe buying off

on what they told you,

for a ride and the witness was talking about her

daughter.

You said they both kind of said it at the

same time,

case.

that they were just waiting

that they weren't talking about the

And then later Ms. Griffith,

A-40

again violating

980

the Court's order, tried to tell you I wasn't

talking about the case 'cause she was worried

about it.

So I'm willing to accept that she wasn't

talking about the case,

at least forgot,

And,

she forgot,

about the Court's order.

unfortunately,

continued to do it.

very unfortunate.

but clearly,

you reminded her and she

That's a bad thing.

It's

But I have no information that leads me to

believe that she was being influenced by that

witness regarding any testimony in the trial or

anything like that.

So at this point I'm going to exercise my

discretion under case law and allow her to remain

as the sole minority juror on this jury.

But I'm going to be watching her throughout

the day.

and takes a nap,

from the jury.

And if she just flat-out falls asleep

then I may have to remove her

So if you guys see that,

if you want to call

it to my attention,

we'll take breaks.

get somebody to get her some coffee,

it takes, but for now I'm going to leave her on

the jury and deny the motion.

A-41

I ' l l maybe

do whatever

981

MR. WILL:

Yes,

THE COURT:

How many rebuttal witnesses do

sir.

you have?

MR. WILL:

One.

THE COURT:

Mike, bring in the jury.

MR. DAVIS:

Judge,

quick

one separate matter real

THE COURT:

Yeah.

MR. DAVIS:

I'm sorry.

Just on the record,

with regard to Quantah Richardson's testimony, the

defense made a motion for mistrial, Quantah making

a comment about the fact that that jail recording

that was mentioned was not introduced into

evidence.

Just in light of that,

even though

Ms. Charles, the prosecutor in that case, told me

that it was,

after we were through with court.

I went ahead and called her yesterday

And she made very clear that in the trial

last week in front of Judge Case in Daytona Beach,

Mr. Richardson's sale-of-cocaine charge, that tape

was introduced into evidence over Defense's

objection.

It was published to the jury during the case

in chief and played again to the jury in closing

A-42

982

argument.

record.

So I

just wanted to put that on the

THE COURT:

I had checked into that myself.

And that's -- the information that I found out is

that it was introduced into evidence by Judge Case

in his trial last week.

I felt that I should look into that since the

attorneys were questioning whether -- well,

think Defense had questioned whether, Mr. Davis,

you intentionally tried to impeach that witness

with something that you knew was not allowed into

evidence in his trial.

And so I felt that I had an obligation to

check into that.

her.

I called Judge Case and asked

She had a clear memory of it and said yes,

was introduced into evidence.

I wasn't going to bring it up unless this

came up again, but I didn't want it out there that

maybe an attorney had -- or I didn't want it

suggested that an attorney had misrepresented

something,

and so I thought I should verify that.

Is there anything Defense wants to raise on

that?

MR. QUARLES:

No,

A-43

sir.

983

MR. HATHAWAY:

THE COURT:

No.

I mean,

since, you know,

it was

leading to a request for a mistrial and things

like that,

the bottom of it.

I -- I thought that we should get to

So, all right then,

if there's nothing else,

let's bring in the jury and get this done.

(The jury entered the courtroom.)

THE BAILIFF:

THE COURT:

Good morning,

MEMBERS OF THE JURY:

THE COURT:

Jury is seated, your Honor.

All right.

Thank you.

ladies and gentlemen.

Morning.

Good to see you again.

As you

know, both sides have rested their case.

The State is entitled,

if they wish, to put

on rebuttal testimony.

one brief rebuttal witness they'd like to call.

Mr. Will says they have

So at this time, Mr. Will,

if you'll call

your witness.

MR. WILL:

(The witness entered the courtroom.)

THE COURT:

State calls Jerry Betz.

All right.

still under oath.

Investigator Betz is

You can take the witness stand.

Mr. Will, you can go ahead and inquire.

MR. WILL:

Thank you,

A-44

Judge.

THE

CIRCUIT

COURT,

SEVENTH JUDICIAL CIRCUIT, IN

AND FOR VOLUSIA COUNTY,

FLORIDA

CASE NOS: 2012 030612 CFAES

STATE OF FLORIDA

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JAMES DESMOND BOOTH,

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Defendant.

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FINAL ORDER DENYING DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF AFTER EVIDENTIARY HEARING

THIS MATTER came before this Court upon Defendant's "Amended

Motion for Post-Conviction Relief (hereinafter "Amended Motion") and

"Amendment to the Defendant's Pending Florida Rule of Criminal Procedure

3.850 Motion" (hereinafter "Amendment") filed by and through counsel on

July 26, 2017, and March 18, 2019, pursuant to Florida Rule of Criminal

Procedure 3.850, and remand by the Fifth District Court of Appeal's

November 5, 2021, decision in Booth v. State, 327 So. 3d 968 (Fla. 5th DCA

2021) (Mem). This Court, having reviewed the motions, memoranda, exhibit

attachments, State's responses, Defendant's replies, and court file; heard

witness testimony and reviewed the written closings for both parties; and

being otherwise apprised of the premises, finds as follows:

A-45

PROCEDURAL HISTORY

On April 17, 2014, a jury found Defendant, James Desmond Booth,

guilty of First Degree Murder (Count I) and Tampering with a Witness (Count

II). On April 21, 2014, at the conclusion of the penalty phase, and upon

recommendation by the jury, Defendant was sentenced to life imprisonment

without the possibility of parole on Count I and 30 years' imprisonment on

Count II. James Peyton Quarles, Esq. (hereinafter "Counsel") and William F.

Hathaway, Esq. (hereinafter "Mr. Hathaway") represented Defendant at trial

and sentencing. The undersigned, Honorable Randell H. Rowe, Ill, presided

over the trial and sentencing.

Defendant timely appealed his conviction and sentence, which was per

curiam affirmed. Mandate issued on July 6, 2015. Exactly two years later, on

July 6, 2017, Defendant filed his initial motion for post-conviction relief.

Defendant subsequently filed the subject Amended Motion and Amendment.

Defendant's Amended Motion alleged six grounds of ineffective assistance

of counsel and his Amendment added a seventh ground, claiming "newly

discovered evidence," contained documents not previously filed in the

record.

A-46

On April 22, 2020, this Court issued an interim order summarily

denying grounds one through six and staying Ground Seven. 1 On January

22, 2021, this Court summarily denied Ground Seven and Defendant's

Motion for Post-Conviction Relief in its Final Order Denying Defendant's

Motion for Post-Conviction Relief ("Final Order). 2 Defendant appealed the

Final Order, which was affirmed in part and reversed in part, and remanded

by the Fifth District Court of Appeal with instructions that an evidentiary

hearing be held on grounds Two, Three, Five (in part), Six, and Seven. See

Booth, 327 So. at 968. An evidentiary hearing was held on these grounds on

July 24, 2023. The following parties were present at the evidentiary hearing:

Defendant, appearing with counsel Michael Ufferman, Esq. and Donald A.

Pumphrey, Jr., Esq.; Andrew J. Urbanak, Esq. Assistant State Attorney. The

following individuals testified at the evidentiary hearing: Defendant, James

Peyton Quarles, (hereinafter "Counsel"); Joseph Ryan Will, Esq. (hereinafter

"Mr. Will"); Monica Jordon (hereinafter "Ms. Jordon"); Michael H. Lambert,

Esq. (hereinafter "Mr. Lambert").

1 Signed by the Honorable James R. Clayton.

Signed by the Honorable James R. Clayton.

A-47

CONCLUSIONS OF LAW

To prevail on an ineffective assistance of counsel claim, Defendant

must prove both deficient performance and prejudice. See Strickland v.

Washington, 466 U.S. 668,687 (1984). Counsel's "strategic 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). Additionally, under the second prong of prejudice, Defendant

must show "that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694.

ANALYSIS

GROUND TWO

In Ground Two, Defendant alleges Counsel was ineffective during the

guilt phase of the trial because Counsel objected to the State's efforts to

remove Juror Number 40 ("Juror 40") because she had allegedly fallen

asleep during Defendant's testimony.

Counsel, an experienced criminal attorney with approximately fortyseven to forty-eight years' experience, which included representation of

accused individuals in capital homicide cases, testified at evidentiary

A-48

hearing. See Appendix A-1 (Evidentiary Hearing Tr.) at p. 61. Counsel

testified that Juror 40, an elderly person, was the only African American juror.

See id. at p. 63. Counsel explained that after discussing the issue with Mr.

Hathaway and briefly considering other options, Counsel objected to the

State's request to remove Juror 40 because Defendant and Juror 40 were

both African American, and it was Counsel's opinion that it typically benefited

defendants to have individuals of the same ethnicity or race seated on the

jury, especially if a defendant was African American. See id. at. pp. 64-65.

Counsel maintained this general opinion throughout his career and testified

that he believed it was in Defendant's best interest if Juror 40 remained on

the jury. See id.

On cross-examination, Counsel testified that he could not recall if the

alternate jurors in the case were African Americans but agreed that the most

important thing is that a juror is paying attention the entire time. See id. at p.

67.

The State stipulated that the trial transcripts are part of the record and

that it was referenced that the juror may have been nodding off at one point.

This Court finds Counsel's testimony credible and finds that Defendant

fails to establish deficient performance or prejudice. Counsel made a

strategic decision when he objected to the State's efforts to remove Juror 40,

A-49

the only African American juror, for allegedly sleeping during Defendant's

testimony. Counsel did not testify at evidentiary hearing as to whether Juror

40 was actually sleeping and agreed in general terms only that a defendant

would be prejudiced if a juror was sleeping through his or her testimony.

This Court further finds that Counsel's objection to the removal of Juror

40 was reasonable in light of Counsel's testimony at the evidentiary hearing

and the entirety of the record. The following interchange also took place

between this Court, Counsel, and co-counsel Hathaway during the guilt

phase of trial:

THE COURT: Okay, Mr. Quarles, do you wish to respond

to the motion?

MR. QUARLES: Judge, we oppose her removal. I - - I've - actually, I guess I have been engrossed in other activities and

have not paid any attention and don't know what her demeanor

has been.

I'm not saying that anybody's misrepresenting what has

been going on, including Mr. Will.

I know the Court commented yesterday that several times

you looked over there, or at least one time the Court looked over

there.

And it appeared that she was sleeping, but you realized

that she was taking notes.

So we don't think that there's been any - - enough

presented to indicate that she is not competent to continue to sit

as a juror, and we oppose her removal.

A-50

THE COURT: Mr. Hathaway, do you have any follow-up

comments?

Mr. Hathaway: No, your Honor.

See Appendix 8-1 (Trial Tr., "Juror 40" Excerpts) at p. 972, II. 3-23.

This Court also made a detailed record regarding its observations of

whether Juror 40 was actually sleeping:

[THE COURT:] I've been keeping an eye on her. I know

she's been coming in late. I think probably she's old, and she's

doing the best she can to get here and help us out.

I think she's been hanging tough and hanging with it, but I

know she's been drowsy. I've seen it.

Yesterday, Mr. Davis brought it to my attention that she

appeared to be sleeping, which I did not notice at the time, but I

- - although I have noticed that she's been tired almost every day,

I had not noticed her asleep yet.

But Mr. Davis brought it to my attention at the bench

yesterday that it appeared to him that she was nodding off and

actually had her chin on her chest. So I decided I was going to

keep a close eye on her, which I did. I saw that also, but I also

saw her arm moving.

And I came to the conclusion that she was taking notes in

her lap. She had her chin on her chest, eyes down, looked like

she was sleeping, but I saw the arm moving and it looked like

she was taking notes in her lap.

And the other jurors were not looking at her strange or

anything like they were a little bit later, but all those times they

weren't looking at her funny like maybe she was, you know

asleep and something was wrong.

A-51

But as the day dragged on, four o'clock, five o'clock, she

started nodding off.

The lady next to her - - and I think Mr. Davis had also

mentioned that he had noticed this.

The lady next to her, I saw that she would kind of discreetly

reach over and shake her arm and [Juror 40] would come back

to life .

. . . I was watching.

I think she nodded off, just momentarily would wake back

up, nodded off again, wake back up.

I never saw her sleeping for, like, more than 30 seconds or

a minute. Maybe I missed it. Maybe you guys did see that, but I

didn't see her just outright dozing . ..

I've been worried about her. I think she's really trying,

struggling, but I really can't say I observed her outright dozing or

napping.

As you recall, late in the day or close to five o'clock, I did

finally ask them would you like to take a break, stretch, get some

coffee, although there wasn't any coffee available at five o'clock.

And then I called you guys up, and I told you, look, she's

not going to make it another hour.

And so we ended up with Mr. Booth's testimony and then

decided to do the rebuttal witnesses this morning, although Mike

indicated he heard the jurors saying I wish we could have just

gone on and gotten it done last night.

But because of her, I didn't want to do that because it

seemed to me that she wasn't going to last another 30 minutes

or an hour.

I recognize the concern, Mr. Will. I think you did right

bringing it up, but I don't feel like she's really been sleeping

through significant portions of the testimony

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Although she has been nodding off, I think she's been

awakened a few seconds after she nods off, so I don't feel like

she's really been sleeping.

See id. at pp. 976-979 (emphasis added).

The record also shows that Defendant made no statements. to this

Court during the discussion about Juror 40 regarding Defendant's opinion on

whether Juror 40 should be removed from the panel. See Reynolds v. State,

99 So. 3d 459, 482 (Fla. 2012) (where in the context of a sleeping juror the

Florida Supreme Court commented that "If [the defendant] did not agree with

the response of his attorney, which indicated that they wanted to keep this

juror on the panel, [the defendant] did not make his position known when the

opportunity arose. It must be assumed that [the defendant] would have

indicated his disapproval at that time, in some fashion, during the specific

discussion in his presence regarding this issue.").

Defendant relies in part on People v. Evans, 710 P.2d 1167 (Colo. App.

1985), Commonwealth v. McGhee, 25 N.E.3d 251 (Mass: 2015) to support

his claim that Counsel was deficient; however, these cases are not binding

and involved jurors who were actually sleeping or sleeping soundly. See

Evans, 710 P.2d at 1168; McGhee, 25 N.E.3d at 255. In the instant case, this

Court made findings at the guilt phase of trial that Juror 40 was not actually

sleeping during Defendant's testimony. As such Counsel's strategic decision

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to object to the State's request for Juror 40's removal, made after considering

alternatives and consulting with co-counsel, was reasonable. See Reynolds,

99 So. 3d at 481; see also Nelson v. United States, 2021 WL 1610095, *6-7

(M.D. Fla., April 26, 2021 ).

Furthermore, Defendant's speculative assertion of prejudice does not

satisfy the actual prejudice prong of Strickland. Even if Counsel's strategic

decision was considered unreasonable, Defendant must still establish that

the presence of Juror 40 affected the outcome of the guilt phase. See

Strickland, 466 U.S. at 694; Nelson, 2021 WL 1610095, *7 (citations omitted)

(Counsel is not ineffective for failing to object to a "dozing" juror, where the

defendant fails to prove that the outcome would have been different had

counsel objected). Defendant's speculative claim of prejudice is insufficient

to prove the actual prejudice prong, especially when considering that this

Court determined during trial that Juror 40 was not actually sleeping. For the

reasons stated above, Ground Two is denied.

GROUND THREE

In Ground Three, Defendant alleges Counsel was ineffective for failing

to object to an improper statement in the State's closing argument.

Specifically, Defendant alleges Counsel should have objected to the

following statement by Mr. Will: "I ask you to follow the law. I ask you to do

A-54

RULING

Accordingly, it is hereby ORDERED AND ADJUDGED that Grounds

Two, Three, Five (in Part), Six, and Seven of Defendant's Amended Motion

are DENIED WITH PREJUDICE.

Defendant has thirty (30) days from the rendition of this order to file a

notice of appeal.

DONE AND ORDERED in Volusia County,

eland, Florida this

/Q#,.

day of September 2024.

RANDELL H. ROWE, Ill

CIRCUIT JUDGE

Copies to:

James Desmond Booth, Defendant, DC#127140, Santa Rosa Annex, 5850

East Milton Road, Milton, Florida 32583-7914

Michael Ufferman, Attorney for Defendant, Michael Ufferman Law Firm, P.A.,

2022-1

Raymond

Diehl

Road,

Tallahassee,

Florida

32308,

ufferman@uffermanlaw.com

The

Office of the State

eservicevolusia@sao 7. org

Attorney,

A-55

Post-Conviction

Division,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.