          Supreme Court of Florida
                                   ____________

                                   No. SC18-42
                                   ____________

                                DELMER SMITH,
                                   Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                   March 5, 2020

PER CURIAM.

      Delmer Smith challenges an amended order denying his motion for

postconviction relief filed under Florida Rule of Criminal Procedure 3.851. We

have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below,

we affirm the postconviction court’s order.

                FACTS AND PROCEDURAL BACKGROUND

      On direct appeal, we described the following facts pertinent to this case:

             On the afternoon of August 3, 2009, Kathleen Briles was
      accosted outside of her home in Manatee County, after returning from
      grocery shopping. Briles was then dragged inside her home, where
      she was bound, gagged, and beaten to death with her own antique
      twenty-three-pound cast iron sewing machine. Numerous items were
      stolen from the home.
       The victim’s husband, Dr. James Briles, returned home at about
7:30 p.m., after completing his rounds at the hospital, and found his
deceased wife. When he first arrived, he noticed that his wife’s car
was not parked in its usual spot closest to their home and that all of
the lights inside the home were off. After turning on the lights, he
saw his wife lying facedown on the floor in front of the love seat, her
ankles and hands bound with duct tape. The victim had a duct tape
gag around her mouth, and she was lying in a pool of blood. Her left
jaw and head were deformed, and the antique cast iron sewing
machine was on the ground behind her head.

       . . . Approximately $30,000–$40,000 worth of jewelry was
missing, including the victim’s wedding band and a diamond baguette
necklace that Dr. Briles had purchased for his wife years before.
Further, while the victim had been seen wearing a watch earlier that
day, she was not wearing a watch when she was discovered. Dr.
Briles identified many unique items that were missing from the house,
including a rare set of nickels a patient had given him, an old medical
encyclopedia that the victim purchased at a yard sale, and a pewter
Minnie Mouse keychain produced by Hudson Creek–a company that
went out of business years ago.

      ....

        On the day after the murder, Smith picked up a friend, James
Cellecz, in his Chevy Blazer, and the two ran some errands together.
Afterwards, they stopped at Pawn Stars, a pawn shop. Smith told
Cellecz that he wanted to pawn some jewelry he had purchased from a
friend but had forgotten his identification, so Smith asked Cellecz if
Cellecz could pawn the items for him. One of the items was the
diamond baguette necklace that was later identified as belonging to
the victim. Cellecz agreed to pawn the items, and they both went into
the store together. Cellecz obtained Smith’s permission to accept the
price he was offered by the pawn store clerk for the necklace. During
this trip, Cellecz noticed that Smith had a medical encyclopedia on the
floor of his vehicle, which Cellecz thought was odd because Smith did
not have any knowledge of medicine.

      ....

                                 -2-
              The State presented evidence to establish that [at] 3:44 p.m. on
       the day of the murder, Smith’s cell phone was at a location close to
       where the murder took place–a fact that was established when Smith’s
       cell phone received a call that went unanswered and records indicated
       that his cell phone used a cell tower that was 1.24 miles away from
       the victim’s home. This timing was particularly striking because the
       victim had left Publix at 3:38 p.m. and lived only a few minutes away
       from the store. Cell phone records further demonstrated that both
       before and after this time, Smith’s cell phone was located close to
       where Smith lived in Sarasota County.

Smith v. State, 170 So. 3d 745, 749-52 (Fla. 2015).

       Following Smith’s arrest, he called his girlfriend, Martha Tejeda, and asked

her to pick up some duffle bags he had placed in storage, and to go through the

bags and remove items. Id. at 751. Ms. Tejeda retrieved a red duffle bag from a

storage shed and turned the bag over to the police. Id. Inside the bag, officers

found many items matching the descriptions of items stolen from the victim’s

residence, including a Minnie Mouse keychain, a gold-colored lock, and a watch.

Id. Police also found a medical encyclopedia inside a black trash bag. At the time

of trial, it was believed that the trash bag had been inside the red duffle bag.

       The jury convicted Smith of first-degree murder. Id. at 752. At Smith’s

penalty phase proceeding, the trial court held a Spencer 1 hearing. 170 So. 3d at

752.

       The trial court found that five aggravating circumstances applied and
       assigned each the following weight: (1) Smith was on felony

       1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

                                         -3-
      probation (moderate weight even though the murder occurred less
      than a year from the date of Smith’s release from prison); (2) Smith
      had prior violent felony convictions (great weight as to the 1991 state
      robbery conviction and the 1995 federal armed bank robbery
      convictions and noting that the court would also assign great weight to
      the Sarasota home invasion armed robbery conviction if that
      conviction was upheld on appeal); (3) the murder was committed in
      the course of a burglary (moderate weight); (4) the murder was
      committed for pecuniary gain (no weight because it merged with the
      committed-in-the-course-of-a-burglary aggravator); and (5) the
      murder was especially heinous, atrocious, or cruel (HAC) (great
      weight).

             ....

             The trial court [found] that five nonstatutory mitigating factors
      applied and assigned each the following weight: (1) intermittent
      explosive disorder (moderate weight); (2) loving relationship with
      nieces (little weight); (3) physical, emotional, and sexual abuse as a
      child (little weight); (4) acute academic failure and attention deficit
      disorder (significant weight); and (5) good conduct while in custody
      (moderate weight).

           Based on these findings, and in accordance with the jury’s
      unanimous recommendation, the trial court sentenced Smith to death.

Id. at 754. We affirmed Smith’s conviction and death sentence. Id. at 766.

      Smith filed an initial postconviction motion, raising several ineffective

assistance of counsel claims, 2 as well as a claim alleging retroactive application of



       2. (1) Failure to file a motion to suppress evidence obtained during a
warrantless search of a bag; (2) failure to timely file and argue a motion to
suppress evidence obtained in warrantless cell phone search; (3) failure to hire a
cell phone expert to rebut the State’s cell phone tracking evidence; (4) waiving the
right to cross-examine witness James Cellecz; (5) failure to fully investigate
mitigating circumstances for the penalty phase.

                                         -4-
Riley v. California, 573 U.S. 373 (2014), and a claim based on Hurst v. State, 202

So. 3d 40 (Fla. 2016). One of Smith’s ineffective assistance claims alleged that

counsel should have moved to suppress evidence obtained during a warrantless

search of the red duffle bag. The postconviction court denied relief following an

evidentiary hearing.

      Smith appealed the order denying relief, but after the parties filed their

appellate briefs, the State learned that the police did obtain a warrant to search the

red duffle bag, and that the black trash bag containing the medical encyclopedia

was not found inside the duffle bag but had in fact been taken out of Smith’s car by

Ms. Tejeda and given directly to the investigating officers. The parties requested

that this Court relinquish jurisdiction for a second evidentiary hearing, and we

granted the request. At that evidentiary hearing, the detective in charge of Smith’s

investigation testified that the warrant included the trash bag, though the contents

of the bag had already been removed for inventory purposes. Smith’s trial counsel

offered no strategic reason for not moving to suppress the contents of the bag.

      After the second evidentiary hearing, Smith amended his claim to allege that

counsel was ineffective by failing to move to suppress evidence obtained during a

search of the black trash bag. The postconviction court entered an amended order

denying relief on all claims. Smith now challenges that amended order.




                                         -5-
                                      ANALYSIS

   I.      Smith’s Ineffective Assistance of Counsel Claims

        To prevail on a postconviction ineffective assistance of counsel claim, a

defendant must identify specific acts or omissions by his attorney that were “so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

“The defendant bears the burden to ‘overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

State v. Murray, 262 So. 3d 26, 37 (Fla. 2018) (quoting Strickland, 466 U.S. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))). A defendant must also

establish prejudice—that is, he must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. A reasonable probability is a

“probability sufficient to undermine confidence in the outcome.” Id.

        Smith’s first argument in this appeal is that the postconviction court erred in

denying his claim that defense counsel was ineffective by failing to file a motion to

suppress evidence obtained during an allegedly illegal search. Testimony given at

the second evidentiary hearing showed that Martha Tejeda, Smith’s girlfriend, took

a black trash bag out of Smith’s car and turned it over to law enforcement officers.

Inside that trash bag, officers found a medical encyclopedia, one of the items listed


                                          -6-
as stolen from the victim’s home. Smith alleged that defense counsel should have

moved to suppress that evidence because it was obtained during a purportedly

warrantless search of the trash bag. The postconviction court denied this claim,

ruling that Ms. Tejeda had apparent authority to authorize the search.

      We need not decide whether counsel’s performance was deficient because

Smith has not established prejudice. See Waterhouse v. State, 792 So. 2d 1176,

1182 (Fla. 2001) (holding that when a defendant fails to make a showing on one

prong of the Strickland test, it is not necessary to examine whether he made a

showing on the other prong). At trial, Smith’s acquaintances testified that Smith

had recently come into possession of jewelry, keys, a Minnie Mouse keychain, and

a watch, all of which matched the descriptions of items stolen from the victim’s

home. Mr. Cellecz testified that he saw a medical encyclopedia in Smith’s car,

which he found odd given that Smith had no medical background. Thus, even if

counsel had suppressed the evidence found in the trash bag or in the red duffel bag,

the jury still would have heard that Smith had possession of many unique items

stolen from the victim’s home, including the medical encyclopedia. Accordingly,

counsel’s alleged failure to file a motion to suppress does not demonstrate a

reasonable probability of a different outcome.

      Smith next argues that the postconviction court erred in denying his claim

that counsel was ineffective for failing to timely file a motion to suppress evidence


                                        -7-
obtained during a warrantless search of Smith’s cell phone. Smith concedes that

such a motion to suppress would not have been granted under the case law

controlling at the time of his trial. See Smallwood v. State, 61 So. 3d 448, 459 (Fla.

1st DCA 2011) (Smallwood I). However, he argues that counsel should have filed

a motion anyway, to preserve the issue, given that this Court would later quash

Smallwood I in Smallwood v. State, 113 So. 3d 724, 740 (Fla. 2013).

      We affirm the court’s denial of this claim because “counsel cannot be held

ineffective for failing to anticipate changes in the law,” Cherry v. State, 781 So. 2d

1040, 1053 (Fla. 2000), and “cannot be deficient for failing to file a meritless

motion,” Patrick v. State, 246 So. 3d 253, 260 (Fla. 2018). Smith considered this,

for he alleged in the alternative that counsel should have filed a motion for new

trial as soon as this Court accepted review of Smallwood I. However, Florida Rule

of Criminal Procedure 3.600(a) provides that a court will grant a new trial “only if:

(1) the jurors decided the verdict by lot; (2) the verdict is contrary to law or the

weight of the evidence; or (3) new and material evidence . . . has been discovered.”

The grounds Smith proposed for counsel to file a motion for new trial—that there

was a potential for existing case law to be overturned—are not a viable basis for a

trial court to grant a new trial under rule 3.600(a). A motion for new trial would

have been denied on the grounds alleged, and defense counsel was therefore not




                                          -8-
ineffective for failing to file such a motion. See Johnston v. State, 63 So. 3d 730,

739 (Fla. 2011).

      Next, Smith argues that the postconviction court erred in denying his claim

that counsel was ineffective for failing to hire an expert to rebut the State’s cell

phone tracking expert. At trial, the State presented evidence showing that at 3:44

p.m. on the day of the murder (the time when the victim was returning home from

Publix), Smith’s cell phone communicated with a cell tower that was just a mile

from the victim’s home. The State called numerous witnesses who testified that

they either called Smith’s phone number or received calls from his number, and

none of the witnesses testified that they talked to anyone other than Smith. Smith

alleged that an expert could have testified for the defense that there was actually no

way to determine where Smith’s cell phone was located at 3:44 p.m.

      At the evidentiary hearing on this claim, Smith’s trial counsel testified that

he considered hiring an expert but decided that cross-examining the State’s expert

would be more effective. Smith’s postconviction counsel offered testimony from a

proposed expert, Robert Aguero, a self-employed cell-tower data analyst. Mr.

Aguero testified that although the State’s expert testified at trial that a cell tower’s

maximum range is only seven to eight miles, some cell towers have ranges of up to

thirty miles. However, Mr. Aguero did not test the range of the specific cell tower

that communicated with Smith’s cell phone on the day of the murder, and he could


                                          -9-
not say that this tower had a thirty-mile range. He said that the thirty-mile number

was “just a maximum range that [towers] can potentially go to.” Moreover, Mr.

Aguero did not dispute the movement of Smith’s phone on the day of the murder.

In fact, he admitted that his mapping of Smith’s movement on the day of the

murder was consistent with the testimony presented by the State at trial.

      The postconviction court found that Smith’s trial counsel made a reasonable

strategic decision to rely on cross-examination, considering that Mr. Aguero could

not refute the evidence of Smith’s phone traveling in a manner consistent with the

State’s version of events. Based on the testimony elicited at the evidentiary

hearing, we agree that counsel’s failure to hire an expert was a strategic decision,

given that a defense expert would have had to concede to the State’s general

mapping of Smith’s cell phone location on the day of the murder. See Brown v.

State, 846 So. 2d 1114, 1125 (Fla. 2003) (“[T]his Court will not second-guess

counsel’s strategic decisions on collateral attack.”).

      Smith’s next argument is that the postconviction court erred in denying his

claim that penalty phase counsel was ineffective for failing to fully investigate

mitigating sentencing factors. Smith alleged that counsel failed to interview family

members who witnessed abuse Smith suffered as a child. At the evidentiary

hearing on this claim, Dr. Hyman Eisenstein testified that he was hired as a penalty

phase witness about a month before Smith’s trial and had concluded that Smith had


                                         - 10 -
brain damage, intermittent explosive disorder, high impulsivity, and an IQ in the

low-average range. Dr. Eisenstein testified that when he interviewed Smith’s

siblings during the postconviction process, he learned that Smith was regularly

beaten by his parents. Some of Smith’s family members substantiated this abuse at

the evidentiary hearing. Dr. Eisenstein opined that if he had known this

information at the time of Smith’s trial, he would have had a better understanding

relevant to diagnosis. He diagnosed Smith with two previously undiagnosed

disorders: posttraumatic stress disorder and borderline personality disorder.

      The postconviction court found that “any arguable shortcomings of the

penalty phase of Mr. Smith’s trial arose mainly from [Smith’s] strict instructions to

counsel not to speak to his family members,” and that Smith’s “own lack of

cooperation in preparing for the penalty phase undermines his present allegations

of ineffective assistance of counsel.” The postconviction court also found that

additional mitigation testimony would not have resulted in a different outcome,

given the weighty aggravating circumstances found at sentencing. We agree.

      Smith relies on State v. Lewis, 838 So. 2d 1102 (Fla. 2002), for the

proposition that an attorney must conduct a thorough investigation and preparation

of mitigation evidence before a defendant can knowingly and intelligently waive

mitigation evidence. See id. at 1113 (“Although a defendant may waive

mitigation, he cannot do so blindly; counsel must first investigate all avenues and


                                       - 11 -
advise the defendant so that the defendant reasonably understands what is being

waived and its ramifications and hence is able to make an informed, intelligent

decision.”). But the attorney in Lewis spent “very little time readying for the

penalty phase proceedings,” id. at 1109, and that lack of effort damaged the

defense team’s relationship with Lewis’s family members, who grew

uncooperative, which is what led the defendant to waive mitigation. Id. at 1109-

10.

            Here, unlike in Lewis, it was Smith and his own family, not defense counsel,

who hampered the mitigation investigation. Defense counsel testified at the

evidentiary hearing that despite Smith’s objections, a mitigation specialist was

hired to contact Smith’s family members, and that Smith objected again after

learning the specialist had spoken to his family. At that point, Smith’s family

members, including a sister who had previously been cooperative, stopped

returning phone calls from the defense team. Considering Smith’s limitations on

and interference with counsel’s penalty phase investigation, we hold that the

alleged failures on the part of defense counsel do not rise to ineffective assistance

of counsel. See Brown v. State, 894 So. 2d 137, 146 (Fla. 2004).

      II.      Smith’s Riley v. California Claim

            Next, Smith argues that he is entitled to a new trial under Riley, 573 U.S. at

403, in which the United States Supreme Court held that law enforcement officers


                                             - 12 -
must generally obtain a warrant before searching a person’s cell phone, even when

the cell phone is seized incident to arrest. Smith argues that Riley applies to his

case because his direct appeal was pending when Riley was decided. We need not

determine whether Riley applies to Smith’s case or whether the search of Smith’s

cell phone was illegal, for Smith’s claim is procedurally barred because he failed to

raise this issue on direct appeal. See Johnson v. State, 104 So. 3d 1010, 1027 (Fla.

2012) (“Claims that should have been raised on direct appeal are procedurally

barred from being raised in collateral proceedings”); Garcia v. State, 622 So. 2d

1325, 1326-27 (Fla. 1993) (observing that a procedural bar applies to claims that

could have been argued on direct appeal if preserved).

      There is no dispute that Smith failed to raise this claim on direct appeal.

Accordingly, Smith’s claim is procedurally barred.

   III.   Smith’s Hurst v. State Claim

      Smith challenges the legality of his sentence based on purported violations

of Hurst v. State, where this Court held that

      before the trial judge may consider imposing a sentence of death, the
      jury in a capital case must unanimously and expressly find all the
      aggravating factors that were proven beyond a reasonable doubt,
      unanimously find that the aggravating factors are sufficient to impose
      death, unanimously find that the aggravating factors outweigh the
      mitigating circumstances, and unanimously recommend a sentence of
      death.




                                        - 13 -
202 So. 3d at 57. We have since receded from Hurst v. State, “except to the extent

it requires a jury unanimously to find the existence of a statutory aggravating

circumstance beyond a reasonable doubt.” State v. Poole, 45 Fla. L Weekly S41,

S48 (Fla. Jan. 23, 2020).

      Smith’s statutory aggravators included the aggravating circumstance of the

defendant having a previous conviction of a felony involving the use or threat of

violence. The State introduced certified copies of Smith’s previous convictions for

armed bank robbery, robbery, armed home invasion, and armed kidnapping. The

existence of previous violent felonies was an aggravating circumstance that

rendered Smith eligible for the death penalty and satisfied the mandates of the

United States and Florida Constitutions. See Poole, 45 Fla. L Weekly at S48;

Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003) (“This prior violent felony

conviction alone satisfies constitutional mandates because the conviction was

heard by a jury and determined beyond a reasonable doubt.”). We therefore affirm

the denial of relief on this claim.

                                      CONCLUSION

      Because the postconviction court properly denied all claims argued in this

appeal, we affirm the amended order denying postconviction relief.

      It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur.
LABARGA, J., concurs in result only with an opinion.

                                         - 14 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

LABARGA, J., concurring in result only.

      Because the majority relies on State v. Poole, 45 Fla. L. Weekly S41 (Fla.

Jan. 23, 2020), a wrongfully decided opinion to which I strenuously dissented, I

can concur only in the result.

An Appeal from the Circuit Court in and for Manatee County,
     Diana Lee Moreland, Judge - Case No. 412010CF000479CFAXMA

Eric C. Pinkard, Capital Collateral Regional Counsel, and Rachel Paige Roebuck,
Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace,
Florida,

      for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, Timothy A. Freeland,
Senior Assistant Attorney General, and Christina Z. Pacheco, Assistant Attorney
General, Tampa, Florida,

      for Appellee




                                       - 15 -
