          Supreme Court of Florida
                                   ____________

                                   No. SC17-1538
                                   ____________

                           THOMAS THEO BROWN,
                                Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                September 13, 2018

PER CURIAM.

      This case is before the Court on appeal from an order granting in part and

denying in part a motion to vacate a judgment of conviction of first-degree murder

and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because

the order concerns postconviction relief from a capital conviction for which a

sentence of death was imposed, this Court has jurisdiction of the appeal under

article V, section 3(b)(1), of the Florida Constitution. For the reasons that follow,

we affirm the postconviction court’s order.
                   FACTS AND PROCEDURAL HISTORY

      Appellant Thomas Theo Brown was convicted of first-degree murder for the

shooting death of Juanese Miller. This Court described the facts of the case as

follows:

             Ms. Miller and Brown were both co-workers at a Wendy’s
      restaurant in Jacksonville, Florida. It is clear that they did not get
      along with each other. On Sunday, June 14, 2009, Ms. Miller poured
      ice and salt down Brown’s back. Brown, who was twenty-seven years
      old at the time, became visibly upset and told Ms. Miller that he did
      not want her to bother him. The following day (Monday), Brown and
      Ms. Miller were both present at a meeting held at the restaurant. At or
      around the time of the meeting, Ms. Miller called Brown a “p*ssy
      n*gger,” which offended Brown. Angelette Harley, who was both
      Brown’s girlfriend and a Wendy’s manager, testified that she thought
      Ms. Miller and Brown were both “written up.” Brown and Ms.
      Miller’s work hours were “cut.” Brown, who was upset, wondered
      why he was in trouble.

             Mike Emami, the Wendy’s franchisee, testified that it was
      brought to his attention that there was a conflict between Brown and
      Ms. Miller. Emami said he discussed the issue with Brown in a fairly
      calm manner. Emami maintained that no one was reprimanded for the
      ice incident. Emami was told that everything was okay between
      Brown and Ms. Miller. While Ms. Miller and Brown did not work
      together on Tuesday and Wednesday, they both worked at Wendy’s
      on Thursday, the day Ms. Miller was killed.

             On Thursday, Wendy’s employees testified that they did not
      notice any problems between Brown and Ms. Miller. At around 11:00
      a.m., Brown made a telephone call to Ms. Harley, desiring to know
      why his work hours were “cut.” Emami testified that a manager
      informed him that Brown was upset regarding his work hours.
      According to Emami’s testimony, Brown could not keep up with the
      work demand and was consequently moved to perform a different
      task.


                                       -2-
       At approximately 12:15 p.m., Emami observed Brown working
very slowly and looked unhappy. As a result, Emami pulled Brown to
the back of the restaurant in order to talk with him. Emami asked
Brown what was wrong and questioned Brown about his attitude.
Brown became “very, very upset.” Brown and Emami were first
arguing inside an office and then proceeded to argue outside of the
office. Brown asked why his hours were “cut”; Emami responded that
Brown would need to discuss his hours with a manager, not Emami.
Brown pointed his hand in Emami’s face and said, “[Y]ou don’t
f*cking know me . . . it ain’t going to be no more Wendy’s.” Brown
was yelling and screaming. Emami and Brown were “fussing” loudly
at each other in what was described as a “heated exchange.” Both
men were mad and frustrated. An employee testified that Brown told
Emami that “someone was going to kick his a* *.” Emami testified
that he told Brown to leave Wendy’s at least five or six times and that
if he did not leave, the police would be called; Emami, in fact, did call
911. Brown casually walked out of Wendy’s and drove off in his
vehicle. An employee testified that Emami said “don’t come back,”
however, Emami denied making such statement. Emami also
maintained that he never told Brown that he was fired.

       Ms. Harley testified that she received a telephone call from
Brown’s mother, which prompted Ms. Harley to “keep an eye out” for
Brown. Ms. Harley arrived at Wendy’s at about 1:30 p.m. Shortly
thereafter, Brown returned to the restaurant. While in the parking lot,
Ms. Harley told Brown, who was still in his work uniform, that she
wanted to talk to him. Brown declined and said, “[S]he [is] the reason
why I don’t have my job.” Ms. Harley tried to stop Brown from going
inside the restaurant. An employee of Wendy’s testified that Brown
was upset, given his facial expressions. When Brown was inside the
restaurant, he asked where Emami was; Emami was no longer there.
Ms. Miller was ordering her lunch at the register, while standing on
the customer-side of the counter. Ms. Harley testified that it appeared
that Brown had no issue with Ms. Miller. Brown left the restaurant,
got into his car, and put the car in reverse.

       Brown then got out of his car. Ms. Harley again attempted to
stop Brown from coming back inside Wendy’s. Brown pushed her
aside and went back inside the restaurant. Ms. Miller, who had her
back to the door, did not see Brown come inside. Brown proceeded to

                                  -3-
walk toward Ms. Miller. Brown, who was not trying to conceal his
identity, reached under his shirt, into his waistband, and pulled out a
.40 caliber Smith and Wesson semi-automatic firearm. From a range
of two to three feet, Brown fired a shot at Ms. Miller. Brown then
asked, “[W]here the f*ck Mike [Emami] at[?]” Brown fired more
shots at Ms. Miller. Brown then walked toward the door and pushed
the door open a little. Brown turned around and walked back to Ms.
Miller, who was lying on the floor. Brown stood over Ms. Miller, and
angrily said, “I told you I would kill you, you f*cking b*tch.” Brown
fired his final shot at Ms. Miller. Before leaving Wendy’s and driving
off, Brown said, “Now, you can go and tell Mike, tell Mike thanks.”
There were about ten customers inside of the restaurant at the time of
the shooting. In describing Brown, witnesses testified that he
snapped, was agitated, angry, focused, pissed-off, and had a mad and
blank look on his face.

      The next day (Friday), Brown was taken into custody after law
enforcement located his vehicle at a Jacksonville hotel. A .40 caliber
Smith and Wesson semi-automatic firearm was discovered on a
dresser inside of the hotel room where Brown was apprehended.
Testimony established that four shell casings recovered from the
crime scene were fired from the Smith and Wesson pistol. A
notebook was discovered inside Brown’s vehicle. In the notebook,
there was a passage titled “My life!!!” which stated, in pertinent part:

      I’ve lost the only two jobs I’ve had in my life for no
      reason at all, but do people care? No!! The only time
      people in this world care, is when a person is a threat . . .
      I just offed a B*tch cause she was the cause of my life
      being f*cked up, this time. If she ain’t dead, then she
      will learn how serous [sic] words can be. I wanted
      “Mike the owner” to be there, but I guess it ain’t his time
      yet.

       The medical examiner testified that Ms. Miller received injuries
to her arm, back, neck, lungs, trachea, aorta, rib, kidneys, and
abdomen. The medical examiner found that Ms. Miller was also shot
in the back of her head, but was unable to determine whether the head
wound was inflicted as the final injury. The medical examiner opined



                                  -4-
      that Ms. Miller bled to death, suffering from multiple organ and
      vascular perforations with hemorrhage.

              After the State rested, Brown moved for a judgment of
      acquittal, claiming that there was no evidence of premeditation. The
      trial judge denied the motion. The defense did not present a case.
      Brown then renewed his motion for judgment of acquittal, which the
      trial court again denied. The jury, which was instructed on only first-
      degree premeditated murder, convicted Brown of first-degree murder.

Brown v. State, 126 So. 3d 211, 213-15 (Fla. 2013) (footnotes omitted).

      After the penalty phase hearing, the jury recommended a sentence of death

by a vote of seven to five. Id. at 216. After weighing and considering the

aggravating1 and mitigating2 factors and the jury’s recommendation, the court

sentenced Brown to death on October 28, 2011. On direct appeal, Brown raised



       1. In support of the death sentence, the judge found the following three
statutory aggravators, assigning each of them “great weight”: (1) Brown was
previously convicted of a felony involving the use of violence to the person; (2)
Brown was under a sentence of imprisonment or placed on community control or
on felony probation when he committed the murder; and (3) the murder was
committed in a cold, calculated, and premeditated (CCP) manner and without any
pretense of moral or legal justification. Id. at 216.

       2. The judge found two statutory mitigators: (1) Brown was under extreme
mental or emotional disturbance at the time he committed the murder (given “some
weight”); and (2) Brown’s age (twenty-seven years old) at the time of the murder
(given “slight weight”). Id. at 216. Additionally, the judge found the following
five nonstatutory mitigating circumstances: (1) Brown experienced a difficult
childhood that included but was not limited to a lack of parental guidance (given
“some weight”); (2) Brown has a borderline retarded IQ (given “some weight”);
(3) Brown offered to plead guilty to a sentence of life in prison (given “little”
weight); (4) Brown suffers from mental illness (given “some weight”); and (5) the
victim did not suffer (given “little weight”). Id. at 216 n.6.

                                       -5-
five issues.3 This Court affirmed the conviction and death sentence. Id. at 221.

On May 4, 2014, the Supreme Court denied certiorari review. Brown v. Florida,

134 S. Ct. 2141 (2014).

      On May 4, 2015, Brown filed his initial 3.851 motion for postconviction

relief, raising sixteen claims. Claims 3, 4, 5, 6 and 8 pertained to Brown’s guilt

phase, while claims 1, 2, 7, 9, 10, 11, 12, 13, 14, 15, and 16 pertained to Brown’s

penalty phase. While Brown’s motion was pending, the United States Supreme

Court decided Hurst v. Florida, 136 S. Ct. 616 (2016). On remand, this Court

imposed the requirement that the findings necessary for imposing the death penalty

must be found unanimously by the jury. Hurst v. State, 202 So. 3d 40, 56 (Fla.

2016). In light of this Court’s decision in Hurst, the postconviction court granted

claim 16—that the Supreme Court’s decision in Hurst v. Florida invalidated

Brown’s sentence of death—and found that Brown was entitled to a new penalty

phase. As a result, collateral counsel withdrew claims 11, 12, 13, 14, and 15 and

the postconviction court found claims 1, 2, 7, 9, and 10 moot.



       3. Brown raised the following claims on direct appeal: (1) whether the trial
court erred in finding the CCP aggravator; (2) whether Brown’s death sentence is a
proportionately unwarranted sentence; (3) whether the penalty-phase jury
instructions violated Caldwell v. Mississippi, 472 U.S 320 (1985); (4) whether
Ring v. Arizona, 536 U.S 584 (2002), requires the reversal of Brown’s death
sentence; and (5) whether the trial court erred in refusing to permit Brown to
present guilt-phase evidence of his mental condition at the time of the murder. 126
So. 3d at 217.


                                        -6-
      Out of the remaining five claims related to Brown’s guilt phase, collateral

counsel withdrew claims 4 and 8, and the postconviction court held an evidentiary

hearing on claims 3, 5, and 6, all of which were premised upon allegations of

ineffective assistance of counsel. Following the evidentiary hearing, the

postconviction court denied the claims. Now before this Court, Brown appeals the

denial of claim 6: that trial counsel was ineffective for failing to object to an

improper comment made during the State’s closing argument.

                                     ANALYSIS

      Appellant argues that the postconviction court erred in finding that trial

counsel was not ineffective for failing to object and move for a mistrial during the

State’s closing argument. According to Appellant, he was prejudiced by trial

counsel’s failure to object because the State purported to quote words of Appellant

that supported the State’s argument that the murder was premeditated.

      Following the United States Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), this Court has held that for ineffective

assistance of counsel claims to be successful, two requirements must be satisfied:

             First, the claimant must identify particular acts or omissions of
      the lawyer that are shown to be outside the broad range of reasonably
      competent performance under prevailing professional standards.
      Second, the clear, substantial deficiency shown must further be
      demonstrated to have so affected the fairness and reliability of the
      proceeding that confidence in the outcome is undermined. A court
      considering a claim of ineffectiveness of counsel need not make a


                                          -7-
      specific ruling on the performance component of the test when it is
      clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted).

      Because both prongs of the Strickland test present mixed questions of law

and fact, this 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 Sochor v. State, 883

So. 2d 766, 771-72 (Fla. 2004).

      Generally, this Court’s standard of review following the denial of a

postconviction claim where the trial court has conducted an evidentiary hearing

affords deference to the trial court’s factual findings. McLin v. State, 827 So. 2d

948, 954 n.4 (Fla. 2002). “As long as the trial court’s findings are supported by

competent substantial evidence, ‘this Court will not substitute its judgment for that

of the trial court on questions of fact, likewise of the credibility of the witnesses as

well as the weight to be given to the evidence by the trial court.’ ” Blanco v. State,

702 So. 2d 1250, 1252 (Fla. 1997) (quoting Demps v. State, 462 So. 2d 1074, 1075

(Fla. 1984)).

      Appellant claims that trial counsel was ineffective for not objecting when the

State, during its closing argument, quoted Appellant as saying, “I told you I’d kill

you, I had it in my mind to kill you, I’ve wanted to kill you for several days. I

wanted to kill someone to take out my frustration.” During the evidentiary


                                          -8-
hearing, Appellant’s trial counsel, Mr. Gazaleh, recalled the prosecutor’s closing

argument and the quote in contention. He testified that he considered objecting,

but based upon the prosecutor’s demeanor and tone he did not believe the

prosecutor was attempting to quote Appellant. Instead, he believed the prosecutor

was providing a general comment on the evidence presented at trial. This decision

was based on his professional judgment and experience and falls within the wide

range of professional assistance required by Strickland. Thus, Appellant fails to

show that counsel’s performance was deficient.

      Furthermore, Appellant fails to show that he was prejudiced by trial

counsel’s decision not to object to the State’s comment during closing argument.

Appellant contends that the prosecutor’s misstatement wrongfully informed the

jury that he admitted to premeditated murder. However, as the postconviction

court noted, the record provides ample evidence that Appellant’s actions were

premeditated. Specifically, “[n]umerous eyewitnesses testified at trial that

[Appellant], upon learning that Mr. Emani was not at the restaurant, walked out to

his car, attempted to leave, but again reentered Wendy’s before shooting the victim

four times.” Then, after shooting Miller four times, Appellant said to the victim, “I

told you I would kill you, you f*cking b*tch.” Following the murder, Appellant

wrote in his journal:

      I’ve lost the only two jobs I’ve had in my life for no reason at all, but
      do people care? No!! The only time people in this world care, is

                                         -9-
      when a person is a threat . . . I just offed a B*tch cause she was the
      cause of my life being f*cked up, this time. If she ain’t dead, then she
      will learn how serous [sic] words can be. I wanted “Mike the owner”
      to be there, but I guess it ain’t his time yet.

Appellant cannot show that but for the State’s misquote, the jury would not have

found him guilty of first-degree murder. Accordingly, the postconviction court

properly denied this claim.

                                 CONCLUSION

      For the foregoing reasons, we affirm the postconviction court’s partial denial

of postconviction relief.

      It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Duval County,
     Elizabeth Senterfitt, Judge - Case No. 162009CF008160AXXXMA

Christopher J. Anderson, Neptune Beach, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z.
Pacheco, Assistant Attorney General, Tampa, Florida,

      for Appellee




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