Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-2873 _____________________________ JUSTIN FOOTMAN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Mark Borello, Judge. January 12, 2022 PER CURIAM. Justin Footman appeals an order summarily denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850, in which he raised five claims of ineffective assistance of counsel. For the reasons below, we affirm. The charges against Footman stemmed from a 2012 incident at Autrey Coleman’s Jacksonville apartment. Footman and one of Coleman’s friends visited the apartment and asked Coleman about buying marijuana. During the visit, Footman pulled out a handgun, struck Coleman in the face, and forced Coleman to give him the marijuana. Footman then went into the living room and shot and killed Coleman’s cousin who was with Coleman in the apartment. Following the incident, a grand jury indicted Footman for first-degree murder and armed robbery. Footman was tried on both charges. The jury found him guilty as charged and made special findings on his possession and use of a firearm during the crimes. The trial court sentenced Footman to concurrent life prison sentences. This court affirmed Footman’s judgment and sentences on direct appeal. Footman v. State, 172 So. 3d 872 (Fla. 1st DCA 2015) (unpublished table decision). A year after his convictions became final, Footman moved for postconviction relief under Florida Rule of Criminal Procedure 3.850. Footman argued that his trial counsel was ineffective for: (1) failing to properly cross-examine the State’s key witness; (2) failing to object to the trial court’s ruling that limited the defense’s cross-examination of a witness; (3) failing to object to a juror who fell asleep during the trial; and (4) coercing Footman into stipulating to prejudicial material evidence on the autopsy of the victim. Footman also argued cumulative error based on the effect of the other four alleged errors. The trial court summarily denied Footman’s postconviction motion, finding that the record conclusively refuted each claim. This timely appeal follows. Analysis To prevail on his claims of ineffective assistance of counsel, Footman had to show that 1) counsel’s performance was outside the wide range of reasonable professional assistance; and 2) counsel’s deficient performance prejudiced the outcome of the proceedings such that without the conduct, there was 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, 61 (Fla. 2003). If he failed to meet either prong as to any claim, Footman would not be entitled to relief on that claim. See Preston v. State, 970 So. 2d 789, 803 (Fla. 2007). We address each of Footman’s claims in turn. First, Footman argued that his trial counsel was ineffective for failing to properly cross-examine the State’s key witness, Autrey Coleman, on his prior inconsistent statements about the identity of the shooter. In his deposition, Coleman testified that: 2 (1) he never saw the shooting because he was face down on the kitchen floor; (2) he did not know if the assailant had facial hair; (3) he did not see any identifying marks on the assailant; (4) he did not know if there was more than one gun; and (5) he could not describe whether the assailant’s dreadlocks were skinny or fat, many or few. Footman claims that these deposition statements contradicted Coleman’s testimony at trial and should have been used to impeach him. But none of Coleman’s deposition statements contradicted his testimony at trial. Instead, they corroborated his statements. Coleman testified that he did not see the assailant shoot his cousin. Because the assailant kicked Coleman in the face, Coleman was lying face down in the kitchen when the assailant shot his cousin in the hallway. Coleman described the assailant as having brown skin, a stocky build, and dreads—he said nothing about facial hair. Coleman did not testify about any identifying marks on the assailant. Coleman only testified about seeing one gun. And Coleman did not testify about the assailant’s dreadlocks in detail. Because none of Coleman’s prior statements conflicted with his trial testimony, Footman’s trial counsel could not have used those statements for impeachment. See Gudinas v. State, 693 So. 2d 953, 964 (Fla. 1997) (explaining that a prior statement is admissible for impeachment only if it directly contradicts the in- court testimony or there is a material variance). Further, Footman’s trial counsel competently cross-examined Coleman and brought out weaknesses in Coleman’s testimony and credibility. Because trial counsel’s performance was not deficient, the postconviction court did not err by summarily denying this claim. In his second postconviction claim, Footman argued that his counsel was ineffective for not objecting when the trial court allegedly limited the defense’s cross-examination of James Beasley. Beasley drove Footman to Coleman’s apartment and knew that Footman planned to commit an armed robbery. At trial, Beasley testified about a text message he sent to Footman asking him to remain quiet and throw away his pants. Beasley’s testimony implied that he was referring to the pants Footman wore on the night of the robbery. On cross-examination, trial counsel tried to impeach Beasley with his deposition. Beasley testified that 3 at the time of the shooting, Footman was not wearing the pants Beasley referred to in the text message. The State objected because Beasley’s testimony could open the door to testimony about other crimes. A sidebar exchange occurred. After the sidebar, defense counsel rephrased the question by asking Beasley whether the text about getting rid of the pants had to do with something different than this case. Footman argues that the trial court’s ruling on the State’s objection to the cross-examination shielded Beasley from impeachment through his prior inconsistent statement. Footman asserts that his counsel’s failure to challenge the trial court’s alleged ruling on Beasley’s testimony amounted to deficient performance. But Footman’s argument fails for two reasons. First, the trial court did not limit defense counsel’s questioning of Beasley. Instead, defense counsel decided to rephrase his question to Beasley to elicit testimony from Beasley that the text about the pants did not concern the crime at issue, but without implicating Beasley or Footman in further crimes. This strategic decision by counsel was effective in impeaching Beasley’s deposition testimony while also preventing the introduction of prejudicial testimony about other crimes involving Footman. Counsel’s strategic decision did not amount to deficient performance. See Gore v. State, 964 So. 2d 1257, 1271 (Fla. 2007). And so, the trial court did not err when it summarily denied the claim. In his third postconviction claim, Footman argued that his counsel was ineffective for his failure to object when a juror fell asleep at trial. During the testimony of one of the State’s witnesses, a homicide analyst, the parties noticed that one of the jurors was sleeping. The parties discussed the issue and the court announced that if either party had an objection, the court would consider it. But neither party raised an objection. Footman argues that the result of the trial would have been different had his counsel objected and the sleeping juror been replaced. But contrary to Footman’s argument, his counsel did not render deficient performance because there was no basis to remove the juror. The State’s witness was offering inculpatory evidence. Under these circumstances, trial counsel’s decision not to object to the juror sleeping through the testimony was strategic. See 4 Reynolds v. State, 99 So. 3d 459, 481 (Fla. 2012) (explaining that a juror fell asleep during highly inculpatory testimony and that defense counsel decided not to have the juror removed for strategic reasons). Footman also cannot show prejudice. If anything, Footman may have benefitted from the juror missing part of the testimony of the prosecution’s witnesses. Because Footman failed to establish deficient performance or prejudice, the trial court did not err in denying his third postconviction claim. In his fourth postconviction claim, Footman argued that his counsel was ineffective for coercing him to stipulate to autopsy evidence showing that multiple gunshot wounds caused the victim’s death. This argument fails for two reasons. First, the trial court conducted a sworn colloquy with Footman about the stipulation and Footman did not state any objection to the stipulation. See Johnson v. State, 22 So. 3d 840, 844 (Fla. 1st DCA 2009) (“When determining ‘whether an allegation is conclusively refuted by the record, [a trial court] may rely on the sworn testimony the defendant has given in the plea colloquy. Any allegations that contradict those answers should not be entertained.’”). And second, he failed to establish deficiency or prejudice given that the autopsy evidence did not reflect who shot the victim. In any event, a witness from the medical examiner’s office would have provided this information at trial had Footman refused to stipulate. See Simmons v. State, 105 So. 3d 475, 492 (Fla. 2012) (explaining there was no prejudice where, even without a stipulation, evidence of the defendant’s semen in the victim’s vagina would have been admitted through expert testimony). Thus, the trial court did not err in summarily denying Footman’s fifth postconviction claim. In his final postconviction claim, Footman argues cumulative error. But because none of Footman’s claims establish grounds for relief, his claim of cumulative error must also fail. See Schoenwetter v. State, 46 So. 3d 535, 562 (Fla. 2010) (explaining that claims of cumulative error fail when each of the other claims is either without merit or procedurally barred). AFFIRMED. ROWE, C.J., and BILBREY and JAY, JJ., concur. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Justin Footman, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 6