FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2023-1405
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PHILIP JUDE MORAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Bay County.
Brantley Scott Clark, Judge.
April 10, 2024
ROWE, J.
Philip Jude Moran appeals an order summarily denying his
motion for postconviction relief brought under Florida Rule of
Criminal Procedure 3.850. Moran raised five claims of ineffective
assistance of counsel and one claim of cumulative error. Finding
no error by the trial court, we affirm.
Facts
The State charged Moran with the second-degree murder of
his wife. At trial, the State presented evidence showing that
Moran’s wife was shot in her bedroom, dragged through the home,
and left on the back porch propped up in a sitting position.
Witnesses testified that when the shooting occurred, Moran made
statements to friends and family members that prompted them to
ask the police to conduct a welfare check.
The police officers who conducted the welfare check testified
that when they arrived at the Moran home, they heard Moran
talking and moving around the home. The officers also found
physical evidence of the murder, including blood-stained towels
and tissues showing that Moran tried to remove the blood trail on
the floor he made by dragging his wife’s body through the house.
Moran also tried to obscure the blood trail by covering it with
debris. Investigators later tested a pair of blood-spattered jeans
and tennis shoes worn by Moran during the murder. Moran’s wife’s
DNA was found on both items.
Finally, three witnesses testified that they heard Moran say
that he killed his wife. The jury returned a guilty verdict of second-
degree murder with a firearm. The trial court sentenced Moran to
life in prison.
Moran appealed his judgment and sentence. This court
affirmed per curiam. Moran v. State, 294 So. 3d 854 (Fla. 1st DCA
2020) (unpublished table decision).
Moran then moved for postconviction relief. The trial court
struck his first motion as insufficient, but granted leave for Moran
to amend within sixty days. Moran filed a timely amended motion.
The trial court summarily denied the motion, attaching portions of
the record refuting Moran’s claims. This timely appeal follows.
Standard of Review
To prove that his trial counsel was ineffective, Moran had to
show that counsel’s performance was outside the wide range of
acceptable professional standards, and that such conduct
prejudiced the outcome of the proceedings because without the
conduct there is a reasonable probability that the outcome would
have been different. Strickland v. Washington, 466 U.S. 668, 687–
88, 691–92 (1984); Spencer v. State, 842 So. 2d 52 (Fla. 2003). “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Spencer, 842 So. 2d at 61.
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Claim One
Moran argues that his trial counsel was ineffective because he
did not object to expert testimony linking Moran to the casing and
bullet fragments found at the crime scene. Moran argued that
counsel should have objected to testimony from three witnesses:
(1) Chad Smith’s testimony linking a spent casing to Moran’s
Ruger M77 Mark II rifle recovered from the Moran home; (2)
Elizabeth Richey’s testimony linking the bullet fragments found at
the crime scene to the Ruger M77 rifle; and (3) Investigator
Timothy Adkins’ testimony about the trajectory of the bullet that
killed the victim.
Moran, relying on Hisler v. State, 42 So. 692, 695 (Fla. 1906),
asserts that the three witnesses based their testimony on
experiments that were too dissimilar to the real attendant
circumstances of the shooting that they were designed to mimic.
In Hisler, the Florida Supreme Court explained that when
determining the admissibility of evidence from an experiment, a
trial court must consider similarity with attendant conditions:
Evidence of an experiment whereby to test the truth
of testimony that a certain thing occurred is not
admissible, where the conditions attending the alleged
occurrence and the experiment are not shown to be
similar. The similarity of circumstances and conditions
go to the admissibility of the evidence, and must be
determined by the court.
Id. at 695 (emphasis supplied). In other words, witnesses may
present testimony about experiments conducted only when the
conditions of the experiment are similar enough to the actual
events. See, e.g., Johnson v. State, 442 So. 2d 193, 196 (Fla. 1983)
(holding it was not error to allow an officer to testify about firing
at white paper to prove that a shot was taken at close range); Caro
v. State, 303 So. 3d 591, 595 (Fla. 5th DCA 2020) (holding that the
trial court erred in admitting testimony about an officer firing a
gun at a t-shirt from various distances to prove that the victim was
shot from point-blank distance); McFarland & Sons v. Basel, 727
So. 3d 266, 269 (Fla. 5th DCA 1999) (holding admissible testimony
about the results of an accident simulation).
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But none of the witnesses identified by Moran testified about
experiments to recreate the circumstances of the shooting of
Moran’s wife. Smith, a laboratory analyst, testified that his testing
showed that the spent casing located near where the victim was
shot was fired from Moran’s rifle. Richey, a firearms analyst,
testified that the damage to the bullet fragments recovered from
the scene prevented her from determining their caliber. But she
concluded that the width of the grooves on the fragments were
“very similar” to bullets test fired from Moran’s rifle. Ultimately,
Richey could not include or exclude the fragments as coming from
that rifle.
The testimony from Smith and Richey was based on
comparison analysis and was admitted to show that the casing and
bullet fragments came from Moran’s firearm. Neither conducted
experiments to recreate the events from the shooting. The type of
comparison analysis presented by Smith and Richey is a common
method in forensics involving firearms and ballistics. See Amaro v.
State, 272 So. 3d 853, 855 (Fla. 5th DCA 2019) (“Forensic firearm
and tool-mark identification evidence is not a new or novel
methodology, and its admissibility in criminal cases is well-
documented in Florida’s jurisprudence.”); see also King v. State, 89
So. 3d 209, 228 (Fla. 2012) (“Decisional law demonstrates that tool-
mark identification in the context of ballistics has been used in the
criminal context since at least 1929, and in Florida since at least
1937.” (citations omitted)). Thus, Hisler does not apply to their
testimony.
Moran also asserted that Hisler prevented the admission of
Adkins’ testimony about the bullet’s trajectory. As with Smith and
Richey, Adkins’ testimony did not involve any sort of experiment
to show that a certain event occurred, so Hisler does not apply
here. Rather, Adkins explained that he used trajectory rods to
locate any bullet fragments in Moran’s mattress, not to conduct
trajectory analysis. Because counsel had no legal grounds to object
to the testimony of these three witnesses, he was not ineffective.
See Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008) (“Counsel
cannot be deemed ineffective for failing to make a meritless
objection.”).
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Claim Two
In his second claim, Moran alleged that counsel was
ineffective because he did not admit into evidence a voicemail
Moran left for Mike Thompson. In the voicemail, Moran accuses
Mike Cunningham of selling drugs to Moran’s wife. The State
objected to the admission of the voicemail because the defense was
not offering the voicemail to show Moran’s state of mind. The trial
court never ruled on the objection.
In his postconviction motion, Moran argued that the voicemail
was admissible to show his state of mind, as an excited utterance,
and to bolster his defense. Moran explained that the State’s theory
was that he killed his wife due to her drug problems and his anger
with her over her addiction. But the voicemail would have shown
that Moran was angry with Cunningham, not his wife, for selling
drugs to his wife and causing her addiction. The voicemail also
showed Moran’s belief that Cunningham had previously broken
into Moran’s home and knew the location of his guns, which made
it more likely Cunningham broke into Moran’s home and killed
Moran’s wife.
The trial court did not err in rejecting Moran’s argument
because if even if the voicemail had been admitted at trial, Moran
could not show there was a reasonable probability that the
outcome of his trial would have been different. Strickland, 466 U.S.
at 684 (holding that to establish prejudice, a defendant must show
that the result of trial would have been different); Waterhouse v.
State, 792 So. 2d 1176, 1182 (Fla. 2001) (holding that if a defendant
fails to satisfy one prong of Strickland, then it is unnecessary to
address the other prong). The police found Moran’s wife dead on
the back porch of the marital home. Even though the police heard
Moran walking around the home while yelling and talking to
himself, Moran claimed that he could not exit the house because
he could not walk. Two officers dragged Moran out of the home,
but Moran walked to the ambulance for medical treatment. A video
of Moran’s erratic behavior was played for the jury.
The State admitted physical evidence to show that Moran was
responsible for killing his wife. The evidence showed a blood trail
throughout the home and suggested that someone tried to clean up
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and hide the trail. A spent casing and bullet fragments were also
recovered during the search. An expert then linked the casing to
one of Moran’s rifles.
Moran also made several inculpatory statements. While in the
ambulance, Moran said, “I can’t believe I killed my wife,” and “they
killed my wife.” Investigator Adkins heard Moran say, “I killed
her,” while Moran was in jail. Deputy Joe Walker also heard
Moran say, “I did it, I did it, I did it, I pulled the trigger, but then
she got up afterwards.” Based on this evidence, there is no
reasonable probability that the admission of the voicemail would
have changed the outcome of the trial. See Reed v. State, 326 So.
3d 767, 773 (Fla. 1st DCA 2021) (“[T]he evidence introduced at trial
was so overwhelming that Appellant cannot demonstrate that he
was prejudiced by any alleged failure on the part of trial counsel.”).
Claim Three
Moran’s third argument was that his trial counsel did not
properly impeach Jennifer Cunningham and Hailey Hammock.
Moran alleged that Cunningham stated in her deposition that
Moran’s wife had essentially no friends yet testified at trial that
Moran’s wife had a friend named Laurie. But Moran failed to show
that his counsel was ineffective for not impeaching Cunningham
as to this testimony. The two statements—that Moran’s wife had
“essentially” no friends and then that she had one friend—are not
inherently contradictory, so defense counsel had no grounds to
impeach Cunningham. See Hitchcock, 991 So. 2d at 361 (“Counsel
cannot be deemed ineffective for failing to make a meritless
objection.”).
As to Hammock, Moran alleged that his counsel should have
impeached Hammock with her prior conviction for possession of
methamphetamine. Moran contends that evidence of Hammock’s
drug use would have explained why the victim had
methamphetamine in her system at the time of her death. But the
presence of the drug in the victim’s system was not an issue in the
trial. The medical examiner testified that the amount of
methamphetamine was not lethal. So Moran’s counsel was not
deficient for not pursuing the proposed impeachment of Hammock
because evidence of Hammock’s drug use was not relevant. See
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§ 90.403, Fla. Stat. (“Relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of issues, misleading the jury, or needless
presentation of cumulative evidence.”); Dickerson v. State, 285 So.
3d 353, 357 (Fla. 1st DCA 2019) (“Deficient performance is
performance which is objectively unreasonable under prevailing
professional norms.”).
Claim Four
In his fourth claim, Moran argued that counsel was ineffective
for failing to investigate exculpatory witnesses present during
Moran’s alleged confessions. Moran argued that counsel should
have called Jack Howell, the mental health coordinator at Bay
County Jail, to contradict the assertion that Moran confessed in
front of Deputy Joe Walker. Howell testified during his deposition
that when Moran allegedly confessed to Walker, Moran was not
talking to anyone. Howell could also have testified about seeing
Moran with a head injury and bruising. Moran also asserted that
defense counsel failed to investigate the jail officials present when
Moran allegedly confessed to Investigator Adkins.
Moran’s counsel was not deficient as to this claim, either. The
record refutes Moran’s allegations. Deputy Walker testified that
when Moran confessed, there were other people in the jail cells.
Walker did not check to see if anyone else heard Moran’s
confession. Moran never alleged that Howell was present when
Walker said that he heard Moran confess. And even if Howell
would have testified that Moran did not speak to anyone when he
first arrived and that Moran had a head injury, this testimony
would not have refuted Walker’s testimony that Moran confessed
to the murder.
Moran’s claim that counsel should have investigated the jail
officials present when he allegedly confessed to Investigator
Adkins is also facially insufficient. To prevail on this claim it “must
contain the identity of the witness, a description of the witness’s
testimony, an explanation of how the omission of this testimony
prejudiced the outcome of the appellant’s case and that the witness
was available.” Jackson v. State, 965 So. 2d 302, 303 (Fla. 1st DCA
2007). Moran never provided the name of the witnesses, nor did he
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describe the witnesses’ alleged testimony. Because Moran already
had a chance to amend his motion, the trial court did not err in
denying this claim as facially insufficient. See Nelson v. State, 977
So. 2d 710, 711 (Fla. 1st DCA 2008) (“Although a trial court in its
discretion may grant more than one opportunity to amend an
insufficient claim, Spera does not mandate repeated
opportunities.”).
Claim Five
In his fifth claim, Moran argued that his counsel was
ineffective for failing to have Moran’s fingernail clippings
(collected after the shooting) tested for gunshot residue. Even so,
Moran admitted that gunshot residue testing could not definitively
show whether the test subject has fired a gun. And an officer
testified at trial that FDLE had not required gunshot residue
testing for at least eight years due to its unreliability.
What’s more, the evidence at trial showed that Moran had
time to shower and change clothes before the police arrived at the
crime scene. There were bloody towels and rags throughout the
home. Moran’s shoes and jeans were stained with his wife’s blood.
And the police located a mixture of Moran’s and his wife’s blood in
the shower. So a lack of gunshot residue under Moran’s fingernails
could easily be explained away by Moran’s actions after the
shooting. On these facts, Moran failed to show that his counsel was
deficient for failing to seek gunshot residue testing on Moran’s
fingernails or that there was a reasonable probability that the
outcome of the trial would have been different if the clippings had
been sent for further testing. Dickerson, 285 So. 3d at 357.
Claim Six
Last, Moran argues that the preceding five errors resulted in
cumulative error. Because all of Moran’s claims lack merit, the
trial court properly denied this claim. Schoenwetter v. State, 46 So.
3d 535, 562 (Fla. 2010) (holding that it is proper to deny a claim of
cumulative error when each individual claim of error is meritless).
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Conclusion
Because all Moran’s claims were refuted by the record or were
facially insufficient, we AFFIRM the trial court’s order denying
Moran’s postconviction motion.
B.L. THOMAS and ROBERTS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Crystal McBee Frusciante of The Frusciante Law Firm, Sunrise,
for Appellant.
Ashley Moody, Attorney General, and Heather F. Ross, Assistant
Attorney General, Tallahassee, for Appellee.
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