Ferguson v. State

316 So.3d 795

Jimmy L. FERGUSON, Appellant,

v.STATE of Florida, Appellee.

No. 1D20-1726

District Court of Appeal of Florida, First District.

April 30, 2021

Valarie Linnen, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.

Rowe, J.

Jimmy L. Ferguson appeals the trial court's order denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. Ferguson argued that his trial counsel was ineffective because he failed to: (1) move for a mistrial after the jury saw Ferguson in shackles and (2) move to suppress the victim's identification of him. Finding no error by the trial court, we affirm.

Facts

The charges against Ferguson stemmed from a law enforcement investigation into several financial crimes. During the investigation, the police executed a search warrant at Ferguson's home. In Ferguson's bedroom, the police found a written note listing the victim's personal information. The police then questioned Ferguson's fiancée. She told them that Ferguson had been robbing prostitutes he met on Backpage.com, stealing their money and personal information.

Based on the note found in Ferguson's bedroom, the police telephoned the victim. She told them that a man posing as a police officer had robbed and sexually battered her in a hotel room. She gave the police a physical description of her assailant. The victim later identified Ferguson as the assailant from a photographic lineup. The police arrested Ferguson and charged him with armed robbery with a firearm, sexual battery, falsely impersonating an officer, and use of a firearm during the commission of a felony.

The case proceeded to trial. The victim testified. She explained that early one Sunday morning Ferguson met her at the hotel room where she had been staying. He gave her money, and she undressed. But then Ferguson told her that he was a police officer and that she was facing about ten counts of prostitution and would go to jail. He claimed that the hotel room was under video and audio surveillance. When the victim asked to see his badge, Ferguson pulled his jacket open to reveal what looked like a ninemillimeter firearm. Ferguson then rifled through the victim's purse, claiming he needed to confiscate the money she earned the previous night. But after taking her money, Ferguson told the victim that he did not want to arrest her. Ferguson asked the victim for her personal information so that he could delete all the information about her from the system. The victim wrote down the information. After the victim gave Ferguson the note, he asked her to have sex with him. Out of fear, the victim complied. At trial, when the State presented her with a copy of the note found during the search of Ferguson's home, the victim identified it as the same one she wrote in the hotel room.

Next to testify was the officer who showed the victim the photographic lineup. The officer explained that the victim vacillated between two photographs. He asked her to make a guess. She selected Ferguson's photograph.

The State then introduced evidence obtained from the search of Ferguson's home, including two cell phones. One contained pictures of Ferguson in a silver Chevy truck—the same kind of truck that the victim said that her assailant drove on the day of the attack. Other pictures showed Ferguson holding firearms. Phone records established that Ferguson frequented the website Backpages.com. At that website, Ferguson visited the victim's ad, which included her photograph.

The State rested, and the defense presented several witnesses, including Ferguson. But when he walked to the witness stand, Ferguson was wearing ankle shackles. The prosecutor immediately asked for a bench conference. Ferguson's trial counsel, Scott Miller, had not realized—until Ferguson took the stand—that his client was in shackles. The trial judge expressed his willingness to grant a mistrial if requested. Miller asked if the trial court would reserve ruling on a mistrial motion until the end of the trial. The trial judge declined. But he gave Miller time to consult with Ferguson about the decision. After a brief recess, Miller stated that the defense would not request a mistrial and represented that Ferguson agreed with the decision.

Ferguson then testified. He denied all the charges against him. He insisted that he had never seen the victim before the trial. He admitted that he used Backpages.com to meet prostitutes. Ferguson claimed that he had the note with the victim's personal information only because her information had been passed around. And as to the photographs from his cell phone, he claimed that what appeared to be firearms were pellet guns.

The defense rested. The jury found Ferguson guilty of robbery with a weapon, falsely impersonating an officer, sexual battery, and carrying a concealed weapon. The court sentenced Ferguson to twelve years in state prison. This Court affirmed his convictions and sentences on direct appeal. Ferguson v. State , 222 So. 3d 1206 (Fla. 1st DCA 2017) (unpublished table opinion).

Ferguson then moved for postconviction relief. The trial court dismissed his initial motion as facially insufficient. Ferguson filed an amended motion alleging that his counsel was ineffective for failing to: (1) move for a mistrial after the jury saw him in shackles and (2) move to suppress the victim's identification of him. The court scheduled an evidentiary hearing.

Miller, Ferguson's trial counsel, was the sole witness at the hearing. As to the first claim, Miller recalled that he conferred with Ferguson on the mistrial motion. Although he did not have an independent recollection of the conversation, Miller attested that he would have explained to Ferguson the pros and cons of a mistrial. When questioned why he thought a mistrial was not warranted, Miller asserted that he did not believe the jury's brief view of Ferguson in shackles was that prejudicial. He also admitted that he "didn't really want to try the case again." Still, Miller was concerned that a mistrial would allow the State to "shore up" any problems in its case revealed by Miller's crossexamination. Ultimately, after weighing the benefits of the element of surprise against the potential prejudice of the jury seeing Ferguson in shackles, Miller believed that proceeding with the trial was the best strategy.

As to Ferguson's second claim, Miller testified that he moved to suppress evidence obtained during the search of Ferguson's phones. Miller argued that the police relied on an impermissibly suggestive identification from the victim to obtain the search warrant. Miller recalled that the video recording of the identification showed that the victim struggled to decide between two photographs in the lineup. One of the officers encouraged the victim to pick one of the photographs, and she picked Ferguson's. The officer then assured the victim that she had selected the correct person. Even so, Miller decided not to pursue the suppression motion because he concluded that the officers’ conduct went to the weight of the evidence, rather than its admissibility. Miller also observed that the victim's description of her assailant to the police fit Ferguson's appearance.

After hearing Miller's testimony and argument from counsel, the trial court denied Ferguson's postconviction motion. On the first claim, the trial court found that Ferguson showed prejudice, but not deficient performance. On the second claim, the court found Ferguson showed deficient performance, but not prejudice. Ferguson sought and was granted a belated appeal of the trial court's order.

Analysis

Ferguson argues that the trial court erred in denying his postconviction motion because his trial counsel was ineffective for failing to: (1) move for a mistrial when the jury saw Ferguson in shackles, and (2) move to suppress the victim's identification. When reviewing a trial court's denial of a postconviction motion after an evidentiary hearing, an appellate court defers to the trial court's findings of facts supported by competent, substantial evidence, but reviews the trial court's findings of law de novo. Hunter v. State , 87 So. 3d 1273, 1275 (Fla. 1st DCA 2012).

To prevail on his claims of ineffective assistance of counsel, Ferguson had to show that counsel's performance was outside the wide range of reasonable professional assistance, and that 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. See Strickland v. Washington , 466 U.S. 668, 687–88, 691–92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Spencer v. State , 842 So. 2d 52 (Fla. 2003). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Spencer , 842 So. 2d at 61. Finally, when reviewing a trial court's order denying a postconviction motion after an evidentiary hearing, an appellate 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 Bolin v. State , 41 So. 3d 151, 155 (Fla. 2010).

As to Ferguson's first claim, the trial court did not err when it determined that he established only one of the two Strickland prongs. Counsel's decision to not seek a mistrial based on the jury's observation of Ferguson in shackles was prejudicial because the trial court would have granted the motion. See Middleton v. State , 41 So. 3d 357, 362 (Fla. 1st DCA 2010) (holding that the defendant established prejudice "by showing that he would have requested, and the trial court would have granted, a mistrial"); Knight v. State , 76 So. 3d 879, 886 (Fla. 2011) (explaining that shackling a criminal defendant during a trial is inherently prejudicial and interferes with the defendant's presumption of innocence).

Even so, the trial...