DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEXTER DUKES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-1851
[February 18, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 2011CF000944AXX.
Carey Haughwout, Public Defender, and Amy Lora Rabinowitz,
Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, J.
Dexter Dukes (“Defendant”) was convicted of first-degree murder with
a firearm. On appeal, Defendant argues that his trial counsel was
ineffective on the face of the record for failing to move to sever the trial
where evidence was presented that his co-defendant threatened a witness
while the two were in adjoining holding cells. We affirm.
Defendant was charged with the killing of James Demps. The evidence
at trial established that, on the night of the murder, Defendant was with
his co-defendant, Kareem Williams. Eyewitnesses to the events
immediately preceding and following the shooting placed Defendant and
his co-defendant in a car that was spotted near the scene of the crime.
There was one eyewitness, a young girl, to the actual shooting. Although
she initially told officers she did not see anyone that night, she later
changed her story and identified Defendant and his co-defendant as the
shooters.
The event that gives rise to the issue on appeal occurred on the second
day of trial. The prosecutor came forward with evidence that the co-
defendant had threatened one of the witnesses while the two were in
adjoining holding cells that morning. Before the witness testified about
the threat, the trial judge—at the request of Defendant’s counsel—gave an
instruction to the jury. The limiting instruction informed the jury that the
witness’s testimony regarding the threat applied to only the co-defendant,
and not Defendant.1 The trial judge repeated the same instruction at two
other points during the trial. Defendant’s counsel never moved to have
his client’s trial severed from that of the co-defendant.
On appeal, Defendant maintains that, in light of the testimony
regarding the co-defendant’s threat, trial counsel’s failure to move to sever
his trial was ineffective assistance of counsel on the face of the record. See
Hills v. State, 78 So. 3d 648, 652 (Fla. 4th DCA 2012) (observing that a
claim of ineffective assistance of counsel is generally not raised on direct
appeal, but noting an exception to this rule applies in situations “‘when
the claimed ineffectiveness is apparent on the face of the record’”) (quoting
Kidd v. State, 978 So. 2d 868, 869 (Fla. 4th DCA 2008)). We disagree with
Defendant’s argument that trial counsel’s ineffectiveness is apparent from
the face of the record on appeal. See Johnson v. State, 720 So. 2d 232,
236 (Fla. 1998) (finding that trial court did not abuse discretion in failing
to grant motion to sever where corrections officer testified that one co-
defendant possessed a handcuff key while incarcerated; any prejudice to
defendant was cured by an instruction which sufficiently limited the
testimony to that co-defendant). Of course, our affirmance is “without
prejudice to the defendant filing a motion for postconviction relief for
ineffective assistance of counsel pursuant to Florida Rule of Criminal
Procedure 3.850.” Jean v. State, 41 So. 3d 1078, 1080–81 (Fla. 4th DCA
2010).
Affirmed.
MAY and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 “Ladies and gentlemen, testimony concerning issues that happened yesterday
regarding the witness, Donte Adams, and the Defendant, Kareem Williams, are
going to be presented. This evidence applies only to Defendant Kareem Williams
and should not be considered at all against the Defendant Dexter Dukes. The
evidence is not applicable to the Defendant Dexter Dukes.”
2