       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 31, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-536
                        Lower Tribunal No. 03-26562A
                            ________________


                         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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