Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-87 _____________________________ MARKEIL DESHON THOMAS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Clay County. Charles W. Arnold, Jr., Judge. February 9, 2021 ROWE, J. Markeil Deshon Thomas appeals an order denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. Finding no error by the trial court, we affirm. Facts In 2008, the victim was shot and killed. Thomas, who was seventeen years old at the time, was not initially a suspect in the murder. But law enforcement developed information that Thomas was in possession of the victim’s cell phone. So they questioned him twice to find out if he had any information about the murder. The first time police questioned Thomas for two hours. Thomas claimed that he bought the cell phone from someone he did not know. The second time police called him in for questioning, his mother did the questioning on behalf of the police. He gave her the same story, and the conversation was recorded. The investigation into the murder continued. Then, in 2009, investigators questioned Thomas’ roommate, Hector Sanchez- Torrez, who implicated Thomas in the murder. Investigators met with Thomas at his parents’ home and confronted Thomas with a video of Sanchez-Torrez stating that Thomas was the shooter. Thomas finally admitted to the investigators that he was present at the murder scene on the night of the murder. But Thomas denied shooting the victim. He claimed that Sanchez-Torrez was driving the car and he was riding as passenger. They were looking to buy marijuana when they saw the victim walking along the side of the road. Thomas claimed that Sanchez-Torrez exited the car and shot and killed the victim. Then, he and Sanchez-Torrez took the victim’s cell phone, money, and marijuana. Based on this information, the State charged Thomas with first-degree murder and armed robbery. Before trial, defense counsel moved to suppress statements Thomas made to his mother during the second interview with police. Thomas alleged that the police obtained and recorded the statements without his knowledge or consent. Counsel then filed a second motion alleging that the trial court should suppress the statements because Thomas did not understand his rights and was not afforded the right to counsel. But after a hearing, the trial court denied the motion. The case went to trial. Thomas presented a defense alleging that although he was present, he was not involved in shooting the victim. But the jury found Thomas guilty of first-degree murder and armed robbery. The trial court sentenced him to life without parole on the murder count and thirty years on the armed robbery count. After filing appeals in this Court and a petition in the Florida Supreme Court, Thomas was resentenced to forty years on the murder count and thirty years on the armed robbery count. This Court affirmed his judgment and sentence on direct appeal. Thomas v. State, 239 So. 3d 1193 (Fla. 1st DCA 2018) (unpublished table decision). 2 Thomas then moved for postconviction relief, alleging three claims. Thomas asserted that his counsel was ineffective for failing to: (1) craft a mental health defense; (2) impeach Sanchez-Torrez with inconsistencies in his testimony on the location of the car during the murder; and (3) call Thomas’ mother as a witness during suppression hearing. The trial court conducted an evidentiary hearing on the postconviction motion, where Thomas, his mother, and his counsel testified. Thomas testified that he and Sanchez-Torrez were driving around looking to buy marijuana when they saw the victim walking on the side of the road. Sanchez-Torrez stopped the car to approach the victim, while Thomas stayed in the car. Thomas heard Sanchez-Torrez ask the victim where an apartment complex was located right before Sanchez-Torrez pointed a gun at the victim. Thomas got scared and jumped into the driver’s seat of the car to drive away. Thomas heard a pop and saw the victim drop to the ground. Sanchez-Torrez jumped back into the car and Thomas drove them back to their apartment. A couple of weeks later, investigators approached Thomas about the murder, and he agreed to answer questions at the police station. After the interview, the officers drove him to work. The next day, officers asked him to return for more questions. Thomas drove to the station. When he arrived, Thomas asked for his mother to be present. Once she arrived, she began questioning Thomas alone. Thomas understood that his mother was relaying messages between him and the police. But he did not feel like he was free to leave. Thomas stated that the police did not read him his Miranda rights during the first or second interview. His mother testified next at the evidentiary hearing. She said that law enforcement believed her son had information on the murder case they were working on. Investigators told her that if she could get information out of Thomas, they could leave sooner. They gave her questions to ask Thomas, and she claimed that the investigators told her that her conversation with Thomas would be confidential. So she talked with Thomas and left the room two or three times to convey to the investigators what Thomas told her. She also testified that when Thomas was arrested the next year, she did not recall his attorney asking her to testify as a witness. 3 Last to testify at the evidentiary hearing was Thomas’ trial counsel. He testified that during the hearing on the motion to suppress statements from the second interview, he called one of the detectives present during the interview. The detective testified that he never told Thomas’ mother that her conversation with Thomas would not be recorded. Counsel had no recollection that Thomas’ mother told him otherwise. Had she done so, he would have included that information in the motion to suppress. As to his cross-examination of Sanchez-Torrez, counsel testified that he questioned Sanchez-Torrez about his motive for testifying, which included avoiding the death penalty. Counsel made clear to the jury that Sanchez-Torrez was serving an unrelated life sentence for another murder and had a motive to lie. After the hearing, Thomas filed a post-hearing memorandum, raising a fourth claim not included in his postconviction motion— that his counsel was ineffective for not moving to suppress statements Thomas made in the first two police interviews because they were obtained in violation of his Miranda rights. The trial court denied the postconviction motion, addressing all four claims. It noted that rule 3.850 requires a defendant to seek leave of court before filing an amendment to a postconviction motion if the trial court has ordered the State to file a response to the motion. Although the trial court recognized its authority to dismiss the claim on that basis, it exercised its discretion to consider the claim on the merits because Thomas presented testimony to support the claim and the amendment was within the two-year period for filing the postconviction motion. The trial court found no ineffective assistance by defense counsel on any of the claims. This timely appeal follows. Analysis To prevail on his claims ∗ of ineffective assistance of counsel, Thomas had to show that (1) counsel’s performance was outside ∗ Thomas appeals the trial court’s ruling only as to three of the four claims addressed in the order. He does not raise any argument 4 the wide range of reasonable professional assistance; and (2) 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. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984); Spencer v. State, 842 So. 2d 52, 61 (Fla. 2003). Failure to Move to Suppress Statements Thomas Made During Two Police Interviews In his first issue on appeal, Thomas combines two separate grounds for relief from his postconviction motion. This Court will address the issues separately as independent claims. Thomas argues first that he was subject to custodial interrogation during his two interviews with the police and that his counsel was ineffective for failing to move to suppress the statements on this basis. This claim fails because Thomas was not in custody during either interview. Custodial interrogation is questioning started by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Oregon v. Mathiason, 429 U.S. 492, 494 (1977). In determining whether a person is in custody, the trial court must determine whether given the objective circumstances of the interrogation, a reasonable person would have felt he was not at liberty to end the interrogation and leave. Howes v. Fields, 565 U.S. 499, 509 (2012). Relevant factors include the location of the questioning, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning. Id. Although Thomas testified that he felt he had to remain at the police station and answer questions, the record refutes his testimony. Law enforcement asked Thomas to come to the station regarding counsel’s alleged failure to craft a mental health defense. He has therefore abandoned the issue. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (“[I]ssues not raised in the initial brief are considered waived or abandoned.”). 5 to answer questions on both days they interviewed him. Thomas willingly complied. When Thomas arrived for the first interview, the detective told him, “you understand you are not under arrest, you can come and go as you want,” and asked, “you’re here under your own free will?” Thomas responded affirmatively. The police did not place Thomas in handcuffs. Thomas had his cell phone with him; at one point, he answered a personal call. Similarly, he was not restrained or placed under arrest during the second interview. And police called his mother when he asked for her. After both interviews, Thomas left the police station. Thomas also failed to show that he was prejudiced by counsel’s failure to seek suppression of the statements he made to police. During neither interview did Thomas provide any incriminating statements. Instead, he lied to police officers about how he came into possession of the victim’s cell phone. Because the record shows that Thomas was not in custody during either interview with police, he failed to show that his counsel’s performance was deficient or that he was prejudiced by his counsel’s failure to move to suppress the statements he made during the interviews. See Wilson v. State, 271 So. 3d 1237, 1238 (Fla. 1st DCA 2019) (“Counsel cannot be deemed ineffective if the motion to suppress would have been meritless.”). Because competent, substantial evidence supports the trial court’s ruling on this postconviction claim, we affirm. Failure to Call Thomas’ Mother to Testify at the Hearing on the Motion to Suppress Thomas next argues that his counsel was ineffective for his failure to call Thomas’ mother as a witness during the suppression hearing. Thomas claims that he invoked his right to counsel when he asked for his mother, that his mother believed they could not leave the police station until Thomas gave a statement to the police, and that law enforcement used his mother as a proxy and recorded the interview without their knowledge. Thomas argues that this information would have been apparent had trial counsel exercised due diligence and that he would have prevailed on the motion to suppress the statements made during the second police interview. 6 This postconviction claim also lacks merit. First, Thomas’ assertion that his request for his mother to be present at the interview constituted an invocation of counsel is misguided. When minors subject to custodial interrogation ask for their parents, questioning must cease. Frances v. State, 857 So. 2d 1002, 1004 (Fla. 5th DCA 2003). But as explained above, Thomas was not subject to custodial interrogation. Even so, law enforcement ceased questioning when Thomas asked for his mother to be present and did not resume questioning until she arrived at the police station. Second, Thomas’ claim that his counsel was ineffective for not calling his mother as a witness at the suppression hearing also fails. Trial counsel’s decision on whether to call a witness is usually a tactical one and should not be second-guessed by a court. Beard v. State, 548 So. 2d 675, 676 (Fla. 5th DCA 1989) (citing Magill v. State, 457 So. 2d 1367, 1369 (Fla. 1984)). Although Thomas’ mother claimed that she did not know the interview was being recorded and asserted that investigators told her the interview was confidential, defense counsel stated that neither Thomas nor his mother ever advised him of these assertions. And a detective testified at the suppression hearing and contradicted the mother’s assertions. Thomas also admitted that he knew his mother was telling law enforcement what he was saying. Because defense counsel made a strategic decision not to call Thomas’ mother, Thomas failed to show deficient performance by counsel. Thomas also failed to show that he was prejudiced by his counsel’s failure to call his mother as a witness. The record does not show that law enforcement learned anything different by watching Thomas speak with his mother than what they already learned during the first interview. And Thomas’ lie about how he came to possess the victim’s cell phone was not incriminating. Finding no error by the trial court, we affirm its ruling on this postconviction claim. Failure to Properly Impeach Sanchez-Torrez Last, Thomas argues that his counsel was ineffective for failing to impeach Sanchez-Torrez on the location of the car during the shooting. Thomas asserts that the evidence on the location of 7 the car was critical because his defense hinged on whether he could hear what was happening when Sanchez-Torrez shot and killed the victim. Sanchez-Torrez first told law enforcement, and then Thomas’ counsel during deposition, that he parked the car close to where he shot the victim. But at trial, Sanchez-Torrez testified that he parked the car farther away. Thomas’ theory was that he stayed in the car the entire time and that the car was close enough to where Sanchez-Torrez shot the victim for Thomas to hear what was happening. The State’s theory was that Thomas got out of the car. Thomas argues that his counsel should have cross-examined Sanchez-Torrez on his inconsistent testimony about where he parked the car. He alleges that counsel’s failure to do so led the jury to believe that Sanchez-Torrez parked the car farther away than where he stated he parked it during his deposition. This testimony undermined Thomas’ defense. And the location of the car was a focal point during closing arguments because the State tried to show Thomas was a principal participant. But this claim fails because, even though defense counsel did not impeach Sanchez-Torrez with his inconsistent testimony on the location of the car, counsel thoroughly impeached his testimony as a whole. Defense counsel asked Sanchez-Torrez about his motive to testify and his desire to avoid the death penalty. Counsel testified at the evidentiary hearing that he made clear to the jury that Sanchez-Torrez lacked credibility and had a motive to lie. Based on counsel’s impeachment of Sanchez-Torrez, there was no reasonable probability the outcome of the trial would have been different had counsel impeached the witness on the location of the car. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1983). Conclusion Finding no error by the trial court, we affirm the order denying the motion for postconviction relief. AFFIRMED. ROBERTS and KELSEY, JJ., concur. 8 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Patrick Michael Megaro of Halscott Megaro, P.A., Orlando, for Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee. 9