Third District Court of Appeal
State of Florida
Opinion filed January 31, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-536
Lower Tribunal No. 03-26562A
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Derek Lorenzo Johnson,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Miguel M. de la
O, Judge.
Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellee.
Before ROTHENBERG, C.J., and SUAREZ and LUCK, JJ.
ROTHENBERG, C.J.
Derek Lorenzo Johnson (“the defendant”) was convicted of attempted
second degree murder on August 25, 2004. After his conviction and sentence were
affirmed on appeal, see Johnson v. State, 930 So. 2d 668 (Fla. 3d DCA 2006), the
defendant filed: (1) a petition for a writ of certiorari with the United States
Supreme Court, which was denied in Johnson v. Florida,
549 U.S. 1121 (2007); (2)
a pro se motion to vacate, set aside, or correct the judgment and sentence; (3) a
petition for writ of habeas corpus with this Court, requesting that his sentence be
vacated and remanded for resentencing, which was denied in Johnson v. State,
990
So. 2d 1075 (Fla. 3d DCA 2008); (4) a pro se motion to correct an illegal sentence,
which was denied by the trial court and affirmed by this Court in Johnson v. State,
11 So. 3d 957 (Fla. 3d DCA 2009); and (5) a verified amended motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The
trial court consolidated the defendant’s pro se motion to vacate, set aside, or
correct the judgment and sentence with his subsequently filed motion for
postconviction relief, and after conducting an evidentiary hearing, issued a lengthy
well-written order denying the defendant’s motions. The order includes a very
thorough analysis and recitation of the evidence relied upon by the trial court in
reaching its conclusions.
Although the consolidated motions raised several grounds, on appeal the
defendant raises only one ground for reversal—that trial counsel “effectively
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deprived Mr. Johnson of the ability to make a knowing and voluntary decision
about testifying.” This claim, however, was not raised below in either of the
motions filed by the defendant and was not litigated by the parties. What the
defendant argued below was that his trial counsel provided ineffective assistance
of counsel by advising the defendant not to testify at his trial and misadvising the
defendant that if he testified, the details of his prior convictions could potentially
be disclosed to the jury. However, because the record reflects that the
voluntariness of the defendant’s decision not to testify was indirectly raised during
the evidentiary hearing, and the State has, in the abundance of caution, addressed
the merits of this claim in its answer brief, we too will address the merits of this
unpreserved claim, but only within the narrow confines of the evidence and
arguments offered below.
THE EVIDENCE
The defendant claims that he wanted to testify at his trial in order to refute
the testimony of the victim, Timothy Davis, who is also the defendant’s half-
brother. Davis was shot in the head twice while sitting with the defendant in the
front seat of the defendant’s car by a man known as “Black Boy,” who was sitting
directly behind Davis in the back seat of the defendant’s car.
According to Davis, the defendant was a drug dealer. Davis testified that he
wanted to purchase two kilograms of cocaine. He, therefore, contacted the
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defendant, who arranged to purchase the cocaine from Ramses Hankerson, who is
also known as Moochie, in Miami. Davis, who lived in Virginia, drove to Tampa,
Florida, to meet with the defendant, and together, they drove in the defendant’s car
to Miami. In exchange for his services, the defendant was to receive a $2,000 fee
from Davis.
After arriving in Miami, the defendant and Davis met with Moochie.
Moochie brought a sample of the cocaine for Davis and the defendant to inspect.
After the inspection, Moochie delivered approximately one kilogram, or one-half
of the two-kilogram purchase, to the defendant and Davis in the defendant’s car in
exchange for the $40,000 in cash Davis had brought for the purchase, with the
promise that he would retrieve the remainder of the cocaine from a nearby
apartment and bring it down to the defendant’s car. Moochie, however, fled with
the $40,000 and did not deliver the remainder of the cocaine. After attempts to
locate Moochie were unsuccessful, Davis called a friend who knew Moochie to
complain about the theft of his money, and several phone calls were made in an
attempt to get Moochie to return Davis’s money or to deliver the remainder of the
cocaine purchased.
Davis testified that after these calls were made, the defendant began “acting
strange.” The defendant called someone on his cell phone, and although Davis
wanted to leave Miami, the defendant drove to the defendant’s girlfriend’s
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apartment, met briefly with his girlfriend, used the restroom, and then drove back
to the area where they had originally met with Moochie. When they arrived at that
location, the defendant exited his car and met with two unknown men on the street.
Although Davis could not hear their conversation, he did hear one of the men tell
the defendant: “No, no, no, man; no man. That is your people . . . .” Davis testified
that this same man then looked into the defendant’s car and said, “no, no, I ain’t
got nothing to do with that there,” and then the man walked away. Davis testified
that the second man who was speaking with the defendant pulled the hood of his
hoodie over his head and got into the backseat of the car behind Davis, who was in
the front passenger seat. The defendant identified the man in the hoodie as his
“cousin.” Davis, who was the defendant’s half-brother, testified that he had never
met the man the defendant claimed was his cousin.
Davis testified that after the three men drove around for a while, and made a
brief stop, Davis, who had already noticed that the defendant was acting strangely,
became suspicious and increasingly nervous and called his girlfriend to tell her that
he loved her. While Davis was speaking to his girlfriend, he saw the defendant
pound the steering wheel of the car and heard the defendant say: “God damn man,
what you gonna do?” Immediately thereafter, the man in the hoodie, who the
defendant had identified as his “cousin,” shot Davis in the back of the head. Blood
started coming out of Davis’s ears and mouth. Davis fell forward, dropping his
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telephone, pushed himself up, and then looked at the defendant, who looked back
at him with an expression on his face, which Davis described as, “Like he ain’t
dead yet?” As Davis was trying to reach for the door handle, he was shot in the
head again. Davis then heard the defendant tell his “cousin” to get Davis out of his
car because “he is bleeding all over my shit,” which Davis explained meant the
defendant’s car.
Thereafter, the defendant and the defendant’s “cousin” dumped Davis in a
ditch on the side of a road. When the defendant’s “cousin” considered shooting
Davis again, Davis pretended to be dead, and the defendant told his “cousin,” “No,
no, no, no, no. He is dead. He is dead. Come on, let’s go, let’s go,” and they left.
Davis was able to make it to a nearby house, knock on the door, and ask for help.
He was rushed to the hospital, where he underwent surgery and survived.
The State also introduced evidence that after the shooting, the defendant had
the blood-stained carpeting and seatbelt removed from his car, and he had the
vehicle cleaned and painted. The person who worked on the car called the police
and the defendant was arrested. Davis’s and the State’s position at trial was that
the defendant was involved in the “rip-off” of Davis’s money and that the
defendant either procured his “cousin” to shoot and kill Davis or that the defendant
willingly assisted in the attempted murder of Davis.
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At trial, the defendant did not dispute the evidence regarding the drug
transaction or the “rip-off” by Moochie. His defense was that he had no
knowledge of, nor participation in, the attempted murder of Davis. In support of
his defense, the defendant called Moochie as a defense witness. Moochie
confirmed the evidence regarding the events surrounding the drug transaction and
his theft of Davis’s money, but testified that the defendant did not know that
Moochie intended to steal Davis’s money. Moochie disavowed any involvement
with the shooting and denied having knowledge of the shooter’s identity. The
defendant did not call any other witnesses, and he did not testify at the trial.
ANALYSIS
A. The advice of counsel
The defendant claimed below that his trial counsel provided ineffective
assistance of counsel by advising him not to testify on his own behalf. Based on
the evidence at the evidentiary hearing, which clearly reflects that trial counsel’s
advice to the defendant that he not testify was a strategic one, the case law, and the
trial court’s factual and credibility determinations, appellate counsel appears to
have properly abandoned this argument on appeal.
As the trial court noted, a strategic or tactical decision, which in this case
was whether the defendant should testify in his own defense, is not a valid basis for
an ineffective assistance of counsel claim unless the defendant is able to show that
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no competent trial counsel would have utilized the tactics employed. Windom v.
State, 886 So. 2d 915, 922-23 (Fla. 2004); see also Strickland v. Washington,
466
U.S. 668, 689 (1984) (holding that the defendant must overcome the strong
presumption that counsel’s performance fell within the wide range of reasonable
professional assistance, and that, under the circumstances, the challenged action
might be considered sound trial strategy).
The defendant’s trial counsel testified at the evidentiary hearing that he
strongly advised the defendant against testifying. This advice, which he conveyed
to the defendant when they discussed whether the defendant should take the stand
in his defense during the trial, was based on his belief that: (1) the trial was going
well, and that the defendant’s testimony and the cross-examination from the very
experienced and effective prosecutor trying the case would hurt, not help the
defendant; (2) the jury would learn that the defendant was a convicted felon with
six prior felony convictions; and (3) the defendant would not be a good witness.
“[S]trategic decisions do not constitute ineffective assistance of counsel if
alternative courses have been considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.
2d 1037, 1048 (Fla. 2000). Because the defendant’s trial counsel’s strategic
decision to advise the defendant not to testify was not unreasonable, we conclude
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that the trial court did not err by denying the defendant’s ineffective assistance of
counsel claim on this basis.
B. The voluntariness of the defendant’s decision not to testify
The only issue actually raised in this appeal is whether the defendant’s
decision not to testify at his trial was freely and voluntarily made. The argument
made below as to the voluntariness of the defendant’s decision not to testify was
premised on the forcefulness of trial counsel’s advice to the defendant and trial
counsel’s demeanor in conveying that advice. Although the trial court found that
the discussion between the defendant and his trial counsel about whether the
defendant should testify was “heated and intense, and [trial counsel] made his
opinion known loudly and strongly to [the defendant],” the trial court nevertheless
found that the defendant’s decision not to testify was voluntarily made. This
finding is supported by the record.
The record reflects that the defendant was thoroughly questioned by the trial
court about his decision not to testify prior to submitting the case to the jury. The
trial court specifically advised the defendant that despite whatever advice trial
counsel may have given him about testifying, the decision was the defendant’s to
make. The defendant stated that he understood that the decision was his to make,
but he had decided not to testify, and he had made that decision freely and
voluntarily:
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THE COURT: Mr. Johnson, it is my understanding that since [trial
counsel] has just rested the case in front of the jury that you do not
wish to be a witness on your own behalf; is this correct?
THE DEFENDANT: Yes, sir.
THE COURT: Now while you have an excellent lawyer, [], and he
may have given you advice on whether you should or should not
[testify] but the ultimate advice about whether you testify is your
decision, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Are you making a decision not to be a witness on your
own behalf freely and voluntarily?
THE DEFENDANT: Yes, sir.
The trial court even took a recess to allow the defendant to speak with his
trial counsel privately in the jury room to address any questions or concerns he
may have had, and after that recess, the trial court re-affirmed with the defendant
that he did not wish to testify and that his decision not to testify was freely and
voluntarily made:
THE COURT: Okay, Mr. Johnson, I have now had you go back with
[trial counsel] to ask any other questions that you may have. Are you
satisfied with any discussion that you have reached back there?
THE DEFENDANT: Yes, sir.
THE COURT: You are still under the opinion that you do not wish to
be a witness; is that correct?
THE DEFENDANT: Yes, sir.
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THE COURT: This is of your own free will? No matter what was said
back there, this is your choice?
THE DEFENDANT: Yes, sir.
THE COURT: Court finds that [Mr.] Johnson is alert and intelligent,
and does understand his right to waive his right to testify. The
defendant is fully informed of it and is doing it freely and voluntarily
and that all witnesses and defenses have been put on and so forth.
Thank you, Mr. Johnson.
THE DEFENDANT: You are welcome, sir.
We, therefore, find that the trial court’s finding that the defendant’s decision not to
testify was freely and voluntarily made is supported by the record.
The defendant, however, claims on appeal that trial counsel’s failure to
prepare the defendant for cross-examination in the event he did testify and failure
to discuss the possibility of the defendant testifying prior to trial in a calmer setting
to allow the defendant to “calmly consider his options” resulted in a decision that
was not voluntary. Because these claims were not raised or litigated below, they
were not preserved for appellate review, and thus, we decline to address them on
appeal.
Affirmed.
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