Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1726 _____________________________ JIMMY L. FERGUSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Robert E. Long, Judge. April 30, 2021 ROWE, J. Jimmy L. Ferguson appeals the trial court’s order denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. Ferguson argued that his trial counsel was ineffective because he failed to: (1) move for a mistrial after the jury saw Ferguson in shackles and (2) move to suppress the victim’s identification of him. Finding no error by the trial court, we affirm. Facts The charges against Ferguson stemmed from a law enforcement investigation into several financial crimes. During the investigation, the police executed a search warrant at Ferguson’s home. In Ferguson’s bedroom, the police found a written note listing the victim’s personal information. The police then questioned Ferguson’s fiancée. She told them that Ferguson had been robbing prostitutes he met on Backpage.com, stealing their money and personal information. Based on the note found in Ferguson’s bedroom, the police telephoned the victim. She told them that a man posing as a police officer had robbed and sexually battered her in a hotel room. She gave the police a physical description of her assailant. The victim later identified Ferguson as the assailant from a photographic lineup. The police arrested Ferguson and charged him with armed robbery with a firearm, sexual battery, falsely impersonating an officer, and use of a firearm during the commission of a felony. The case proceeded to trial. The victim testified. She explained that early one Sunday morning Ferguson met her at the hotel room where she had been staying. He gave her money, and she undressed. But then Ferguson told her that he was a police officer and that she was facing about ten counts of prostitution and would go to jail. He claimed that the hotel room was under video and audio surveillance. When the victim asked to see his badge, Ferguson pulled his jacket open to reveal what looked like a nine- millimeter firearm. Ferguson then rifled through the victim’s purse, claiming he needed to confiscate the money she earned the previous night. But after taking her money, Ferguson told the victim that he did not want to arrest her. Ferguson asked the victim for her personal information so that he could delete all the information about her from the system. The victim wrote down the information. After the victim gave Ferguson the note, he asked her to have sex with him. Out of fear, the victim complied. At trial, when the State presented her with a copy of the note found during the search of Ferguson’s home, the victim identified it as the same one she wrote in the hotel room. Next to testify was the officer who showed the victim the photographic lineup. The officer explained that the victim vacillated between two photographs. He asked her to make a guess. She selected Ferguson’s photograph. The State then introduced evidence obtained from the search of Ferguson’s home, including two cell phones. One contained 2 pictures of Ferguson in a silver Chevy truck—the same kind of truck that the victim said that her assailant drove on the day of the attack. Other pictures showed Ferguson holding firearms. Phone records established that Ferguson frequented the website Backpages.com. At that website, Ferguson visited the victim’s ad, which included her photograph. The State rested, and the defense presented several witnesses, including Ferguson. But when he walked to the witness stand, Ferguson was wearing ankle shackles. The prosecutor immediately asked for a bench conference. Ferguson’s trial counsel, Scott Miller, had not realized—until Ferguson took the stand—that his client was in shackles. The trial judge expressed his willingness to grant a mistrial if requested. Miller asked if the trial court would reserve ruling on a mistrial motion until the end of the trial. The trial judge declined. But he gave Miller time to consult with Ferguson about the decision. After a brief recess, Miller stated that the defense would not request a mistrial and represented that Ferguson agreed with the decision. Ferguson then testified. He denied all the charges against him. He insisted that he had never seen the victim before the trial. He admitted that he used Backpages.com to meet prostitutes. Ferguson claimed that he had the note with the victim’s personal information only because her information had been passed around. And as to the photographs from his cell phone, he claimed that what appeared to be firearms were pellet guns. The defense rested. The jury found Ferguson guilty of robbery with a weapon, falsely impersonating an officer, sexual battery, and carrying a concealed weapon. The court sentenced Ferguson to twelve years in state prison. This Court affirmed his convictions and sentences on direct appeal. Ferguson v. State, 222 So. 3d 1206 (Fla. 1st DCA 2017) (unpublished table opinion). Ferguson then moved for postconviction relief. The trial court dismissed his initial motion as facially insufficient. Ferguson filed an amended motion alleging that his counsel was ineffective for failing to: (1) move for a mistrial after the jury saw him in shackles and (2) move to suppress the victim’s identification of him. The court scheduled an evidentiary hearing. 3 Miller, Ferguson’s trial counsel, was the sole witness at the hearing. As to the first claim, Miller recalled that he conferred with Ferguson on the mistrial motion. Although he did not have an independent recollection of the conversation, Miller attested that he would have explained to Ferguson the pros and cons of a mistrial. When questioned why he thought a mistrial was not warranted, Miller asserted that he did not believe the jury’s brief view of Ferguson in shackles was that prejudicial. He also admitted that he “didn’t really want to try the case again.” Still, Miller was concerned that a mistrial would allow the State to “shore up” any problems in its case revealed by Miller’s cross- examination. Ultimately, after weighing the benefits of the element of surprise against the potential prejudice of the jury seeing Ferguson in shackles, Miller believed that proceeding with the trial was the best strategy. As to Ferguson’s second claim, Miller testified that he moved to suppress evidence obtained during the search of Ferguson’s phones. Miller argued that the police relied on an impermissibly suggestive identification from the victim to obtain the search warrant. Miller recalled that the video recording of the identification showed that the victim struggled to decide between two photographs in the lineup. One of the officers encouraged the victim to pick one of the photographs, and she picked Ferguson’s. The officer then assured the victim that she had selected the correct person. Even so, Miller decided not to pursue the suppression motion because he concluded that the officers’ conduct went to the weight of the evidence, rather than its admissibility. Miller also observed that the victim’s description of her assailant to the police fit Ferguson’s appearance. After hearing Miller’s testimony and argument from counsel, the trial court denied Ferguson’s postconviction motion. On the first claim, the trial court found that Ferguson showed prejudice, but not deficient performance. On the second claim, the court found Ferguson showed deficient performance, but not prejudice. Ferguson sought and was granted a belated appeal of the trial court’s order. 4 Analysis Ferguson argues that the trial court erred in denying his postconviction motion because his trial counsel was ineffective for failing to: (1) move for a mistrial when the jury saw Ferguson in shackles, and (2) move to suppress the victim’s identification. When reviewing a trial court’s denial of a postconviction motion after an evidentiary hearing, an appellate court defers to the trial court’s findings of facts supported by competent, substantial evidence, but reviews the trial court’s findings of law de novo. Hunter v. State, 87 So. 3d 1273, 1275 (Fla. 1st DCA 2012). To prevail on his claims of ineffective assistance of counsel, Ferguson had to show that counsel’s performance was outside the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because without the conduct there was a reasonable probability that the outcome would have been different. See 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. Finally, when reviewing a trial court’s order denying a postconviction motion after an evidentiary hearing, an appellate court “employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo.” See Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010). As to Ferguson’s first claim, the trial court did not err when it determined that he established only one of the two Strickland prongs. Counsel’s decision to not seek a mistrial based on the jury’s observation of Ferguson in shackles was prejudicial because the trial court would have granted the motion. See Middleton v. State, 41 So. 3d 357, 362 (Fla. 1st DCA 2010) (holding that the defendant established prejudice “by showing that he would have requested, and the trial court would have granted, a mistrial”); Knight v. State, 76 So. 3d 879, 886 (Fla. 2011) (explaining that shackling a criminal defendant during a trial is inherently prejudicial and interferes with the defendant’s presumption of innocence). 5 Even so, the trial court found that Ferguson did not establish the first Strickland prong—deficient performance. The trial court found that Ferguson failed to show that counsel’s decision not to seek a mistrial was not strategic. We agree. Simply because Ferguson’s appearance before the jury in shackles was inherently prejudicial does not mean that his counsel’s decision not to seek a mistrial was deficient performance per se. Cf. Patrick v. State, 302 So. 3d 734, 741 (Fla. 2020) (explaining that although counsel’s failure to challenge biased juror satisfied Strickland’s prejudice prong, that failure did not end the analysis of whether counsel’s performance was deficient). Rather, Ferguson still had to show that counsel’s performance was not reasonable under the norms of professional conduct—a strategic decision made by counsel after considering and rejecting alternative courses of action does not constitute deficient performance. See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). Ferguson did not make the required showing here. A “defendant’s task in proving deficiency is difficult by design.” Patrick, 302 So. 3d at 741. “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.” Dennis v. State, 109 So. 3d 680, 690 (Fla. 2012) (quoting Strickland, 466 U.S. at 689). During the trial, when Ferguson approached the witness stand, the record shows that the trial came to an abrupt stop. The prosecutor immediately asked for a sidebar and brought to the court’s attention that Ferguson was in shackles. The record shows that the trial court stated that it would grant a mistrial and the State confirmed that it had no good-faith basis to oppose such a motion. Miller responded by asking the trial court to reserve the ruling to the end of the trial. When the trial court declined, Miller asked the trial court to excuse the jury so that he could confer with his client. The trial transcript shows that the jury went out. After the trial court gave Miller a chance to confer with Ferguson about the mistrial motion, the record shows that Miller stated, “we’re not moving for a mistrial.” The trial court then announced: “[M]y 6 understanding is that Mr. Ferguson and his counsel have consulted and they are willing to go ahead.” In response, the State asked for a curative instruction. Miller declined, stating that he preferred to “leave the bell rung, rather than ring it again.” The record shows that Ferguson was present throughout the bench conference and reveals no objection by Ferguson at any time. Beyond what appears in the trial transcript, the only other evidence that sheds any light on what took place during the critical, off-the-record conference between Ferguson and his counsel about the mistrial motion is Miller’s testimony at the evidentiary hearing on the postconviction motion. Miller testified that one reason that he did not want to move for mistrial is that he did not want to try the case again. This testimony no doubt cast a cloud over whether his advice not to seek a mistrial was indeed strategic. Even so, Miller also testified that he never shared his reluctance to retry the case with Ferguson. Instead, although he could not recall the specifics of the conversation with Ferguson, Miller testified that he would have explained the pros and cons of the decision on whether to seek a mistrial. Miller claimed that one disadvantage of a mistrial was that it would allow the State to shore up any problems in its case. Miller was concerned that the State’s witnesses would appear more polished during a second trial. And he had no reason to doubt that the State’s witnesses would be available for the second trial. Miller also thought that the jury’s brief observation of Ferguson in shackles was more likely to garner sympathy from the jury than prejudice his client. Nothing in Ferguson’s postconviction motion refutes Miller’s version of the conversation that took place during the off-the- record conference. Ferguson did not allege that Miller misadvised or misled him during the discussion. Nor does he allege that Miller coerced him into remaining silent when, after that conference, Miller reported to the court that “we’re not asking for a mistrial.” No testimony at the evidentiary hearing refuted Miller’s testimony, either. Ferguson did not testify. Miller was the only witness called. Thus, the postconviction court had only the trial transcript and Miller’s testimony at the evidentiary hearing to consider. Based on the evidence before it, the court found that 7 “[n]othing in the motion or evidence submitted at the hearing disputes that a legitimate discussion took place about the strategy involved or that Mr. Ferguson ultimately consented in declining a mistrial.” For these reasons, the trial court found that Miller’s performance was not deficient. We find no error by the trial court. The record of the trial court proceedings and Miller’s testimony at the evidentiary hearing provide competent, substantial evidence to support the trial court’s findings of fact. And based on those findings and the applicable law, we conclude that the trial court did not err in determining that decision not to seek a mistrial was a strategic decision made by counsel, in consultation with his client. See Gamble v. State, 877 So. 2d 706, 714 (Fla. 2004) (“[I]f the defendant consents to counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel.”). We thus affirm the trial court’s ruling on Ferguson’s first postconviction claim. As to his second claim, the trial court found that Ferguson established that Miller rendered deficient performance by not seeking to suppress the victim’s identification of Ferguson from the photographic lineup. The trial court found that Miller’s decision not to seek suppression was deficient based on his misunderstanding of the law on identifications. See Floyd v. State, 257 So. 3d 1148, 1153 (Fla. 1st DCA 2018) (explaining that a trial court should suppress an identification if obtained using an unnecessarily suggestive procedure that led to a substantial likelihood of irreparable misidentification). Even so, the trial court determined that Ferguson failed to show prejudice, finding no reasonable probability that the outcome of the trial would have been different had the trial court suppressed the identification. See Jones v. State, 998 So. 2d 573, 582 (Fla. 2008). “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Williamson v. State, 123 So. 3d 1060, 1066 (Fla. 2013) (quoting Strickland, 466 U.S. at 696). The trial court did not err in finding that counsel’s failure to seek suppression of the victim’s identification of Ferguson did not cause prejudice. There was probable cause for the search of Ferguson’s home. During that search, the police found the note 8 that included the victim’s date of birth and social security number. The police learned from Ferguson’s fiancée that Ferguson was robbing prostitutes he met on Backpage.com, stealing their money and personal information. After finding the note with her personal information, the police contacted the victim. She told them that a man posing as a police officer had robbed her and sexually battered her. She described the suspect as having a medium complexion with a mustache, and she said that he stood around five feet six inches tall. Miller testified that this description accurately described Ferguson. The victim gave the police a description of the truck driven by the assailant. The description matched Ferguson’s truck. This information would have been enough to obtain a search warrant of Ferguson’s cell phones, even without the identification from the photographic lineup. See State v. Williams, 46 So. 3d 1149, 1152 (Fla. 1st DCA 2010) (explaining that an affidavit for a search warrant must set forth “that a particular person has committed a crime” and that “evidence relevant to the probable criminality is likely located at the place to be searched”). The search of Ferguson’s cell phones revealed pictures of him holding what looked like a firearm. It also showed that he frequented Backpage.com and that he visited the victim’s ad on that website. At trial, Ferguson could not explain why the note with the victim’s personal information was in his bedroom, other than his claim that people were passing her information around. He admitted that he visited the website Backpage.com and viewed the victim’s ad. And he conceded that the photographs on his phone showed that he owned a gun. Based on this record, even if the trial court had suppressed the victim’s identification from the photographic lineup, there is no reasonable probability that the jury would have reached a different verdict. And thus the trial court did not err when it denied Ferguson’s second postconviction claim. Finding no error by the trial court, we AFFIRM the order denying Ferguson’s postconviction motion. ROBERTS and TANENBAUM, JJ., concur. 9 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Valarie Linnen, Jacksonville, for Appellant. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee. 10