Florida Criminal Law Opinions

RYAN THOMAS GREEN, Appellant, vs. STATE OF FLORIDA, Appellee.

No. SC06-211

SUPREME COURT OF FLORIDA

January 31, 2008, Decided

NOTICE:  

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

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court in and for Escambia County, W. Joel Boles, Judge - Case No. 03-817-CF.

COUNSEL:   Nancy C. Daniels, Public Defender, and W. C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant.

Bill McCollum Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, Florida, for Appellee.

JUDGES:   LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION  

PER CURIAM.

Appellant, Ryan Thomas Green, was convicted of several serious crimes arising from one incident: first-degree murder for the shooting death of James Hallman; attempted first-degree murder for the shooting of Christopher Phipps; and robbery while carrying a firearm for stealing Phipps’s car. He was sentenced to death for the first-degree murder conviction and life in prison for the attempted murder and robbery convictions. He appeals his sentence. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Based on the substantial mental health mitigation presented–including evidence that for years Green has suffered from schizophrenic disorders, we vacate the death sentence and remand the case for the imposition of a sentence of life imprisonment  [*2]  without the possibility of parole.

I. THE FACTS AND PROCEDURAL HISTORY

As always, we review the facts in the light most favorable to upholding the jury’s verdict and the trial court’s findings. See Hertz v. State, 803 So.2d 629, 646 (Fla. 2001) (noting that all conflicts in the evidence and reasonable inferences therefrom are resolved in favor of sustaining the verdict on appeal); Shapiro v. State, 390 So. 2d 344, 346 (Fla. 1980) (noting that the trial court’s factual findings are clothed with a presumption of correctness, and the evidence must be interpreted in the light most favorable to upholding the trial judge’s conclusions). We note, however, that in determining Green’s sentence the trial court found all three statutory mitigating factors related to mental health: that Green was under the influence of extreme mental and emotional disturbance; that his capacity to conform to the requirements of the law was substantially impaired; and that he acted under extreme duress or under the substantial domination of another person. We therefore review the facts with those findings in mind.

The Shootings

In the days before the shootings, Green and a childhood friend visited the home of Henry  [*3]  Cecil. Cecil lived with his nephew, Christopher Phipps. The four men sat around a dining room table. While doing paperwork at the table, Cecil opened a briefcase containing a handgun. Green noticed the firearm and commented about it to his friend. Green and his friend left shortly thereafter.

On the morning of the murder, Green walked out of his mother’s apartment, where he was living at the time, and walked to Cecil’s home. He knocked on the door and Phipps invited him in. Phipps asked if Green wanted a glass of water. Green said yes. As Phipps left to the kitchen, Green walked to Cecil’s bedroom. In the bedroom, Green noticed Cecil’s handgun and briefcase and grabbed them. He returned to the living room, where he encountered Phipps. Green pointed the gun at Phipps’s head and demanded the keys to his car–a white Ford Thunderbird. After Phipps gave him the keys, Green shot him in the head. He fled in Phipps’s car.

A short time later, Cecil was returning to his house and noticed Phipps’s Thunderbird. Cecil realized that Phipps was not the driver and followed the vehicle. After a 20- to 25-minute pursuit, Green eluded Cecil. Cecil then returned home, where he found Phipps lying on the  [*4]  living room floor with a severe head wound (he miraculously survived). Cecil also noticed that his gun and briefcase were missing.

Meanwhile, having eluded Cecil, Green continued driving and eventually reached Kingsfield Road. Along the road he encountered James Hallman, a retired police officer who was taking his daily walk. He was dressed in a maroon shirt, blue jeans, and a University of Alabama baseball cap. Green saw Hallman walking and drove past him to the end of the road. With Cecil’s handgun, Green shot a bull grazing in a nearby pasture.

After shooting the bull, Green turned around and drove back down Kingsfield Road. He approached Hallman and asked him for directions. As Hallman leaned forward toward the car window, Green shot Hallman in the head and drove off. Hallman was discovered shortly thereafter by a family on their way to church. He was airlifted to a hospital and remained in a coma for a week before dying.

At around noon that day, Green returned to his mother’s apartment. His brother, Aaron Green, was there with his girlfriend and a friend, Brian Lockwood. Green spoke with Lockwood, took Lockwood downstairs, and showed him the white Thunderbird. He admitted to Lockwood  [*5]  that he had killed two people.

Green then went inside the house and spoke with his brother. He showed his brother the suitcase and gun he had taken from Cecil’s house. He admitted shooting Phipps, stealing his car, shooting the bull, and shooting Hallman.

At about 7 p.m. that evening, Green was arrested. Police found Cecil’s pistol in his apartment.

Before trial, the circuit judge determined that Green was incompetent to stand trial and committed him to a mental health facility where he received treatment until October 26, 2004, when the court found him competent to proceed.

The Evidence at Trial

At trial, Green claimed insanity as a defense. He presented the testimony of his mother, his brother, and two mental health experts. Green’s mother testified that at the age of thirteen Green had been diagnosed with clinical depression and that he had threatened suicide several times. Green’s school helped his mother seek treatment from a child psychologist, but Green refused to cooperate. He was prescribed Prozac for his depression, but after several months he stopped taking it. At around age 15 or 16, Green began experimenting with illegal drugs. Between the ages of 15 and 17, Green’s mother  [*6]  noticed that he suffered from personality issues. He was later diagnosed with impulse control disorder.

When Green was 16, he was sent to live with his father in Mississippi. At first, he was happy. The situation eventually deteriorated, however, and Green moved back in with his mother. In the following weeks, he exhibited angry and unusual behavior. He heard voices, locked himself in his room, and planted his mother’s jewelry in potting soil to grow crystals. During this time, Green was not being treated for mental illness and was not taking any medication.

At one point, Green disappeared for three days. He was found by police in another county without identification. About four months before the shootings, Green was involuntarily committed to the Crisis Stabilization Unit at the Lakeview Center, where he remained for a few weeks. While there, he was prescribed medication to treat his mental illness. After he left, he had a follow-up appointment scheduled but refused to see the doctor.

Shortly after leaving the facility, Green turned violent. His mother testified that Green threw glass at her and destroyed her dining room set. He also carved a picture of a brain onto the seat of a chair.  [*7]  The carving included strange labeling and nonsensical equations. Green’s mother and brother were fearful of him. Green would stay up for days locked in his room praying and speaking to entities no one else could see. Green also told his mother that God had given him a secret name no one knew about.

A few days before the murder, Green asked his uncle to cosign a loan for the purchase of a car, but his uncle refused. The family did not want Green having access to a car because he had driven off many times from a local gas station without paying for the fuel. Green had told his mother that he was the son of God and the station attendant knew he did not have to pay for the gas.

Green responded angrily to his uncle’s denial. According to Green’s mother, “he just absolutely snapped.” He sat in the kitchen and banged his head against the wall. He was “ranting and raving, screaming and crying, slinging and breaking things, crying, and crying.”

Green’s brother Aaron also testified about Green’s behavior during the months before the shootings. Aaron testified that in the spring of 2002 Green told him he could read minds. Green also said his hand was the devil’s hand. Aaron testified that Green  [*8]  routinely smoked marijuana and took ecstasy.

Green testified in his own defense. He stated that he began taking ecstasy in December 2001 and that was when he first started hearing voices. He stated that his drug use increased once he returned to live with his mother. He would self-medicate with marijuana and ecstasy to quiet the voices in his head and cope with his depression. He believed he could read minds and body language. On the Wednesday before the shootings, Green was fired from his job. He testified that this partially motivated his breakdown two days later, when his uncle refused to cosign the loan for a car. Green said that at this point he felt suicidal and wanted to die so he could go to heaven.

Green admitted walking to Cecil’s house on February 23, 2003, retrieving the gun from Cecil’s bedroom, and shooting Phipps in the head. He testified that he was hearing voices during this time. He also admitted driving off in Phipps’s car, encountering Hallman, and shooting the bull. Green testified that after he shot the bull, it turned around and said, “I love you,” and he responded by saying, “I love you too.” During this time Green stated that he wanted to kill himself and that  [*9]  he felt he was the devil.

Green testified that he then drove back up the road and asked Hallman for directions. Green said he believed the “A” on the front of Hallman’s University of Alabama hat stood for the “Antichrist.” Green also said he interpreted Hallman’s body language as indicating that he wanted to die and that he heard a voice that told him Hallman wanted to be killed. Green admitted that as soon as Hallman leaned his head forward, Green shot him.

Three psychological experts testified during the guilt and penalty phases–Drs. James Larson and Brett Turner for the defense, and Dr. Lawrence Gilgun for the State. They testified that Green had a history of intermittently treated mental illness and that he was psychotic on the day of the shootings. All the doctors agreed that Green was suffering from an untreated schizoaffective disorder. Dr. Larson testified that he was unable to determine whether Green was legally sane when he committed the shootings. Dr. Turner said he believed Green was sane when he shot Phipps, but could not be certain whether he was sane at the time he shot Hallman. Dr. Gilgun testified that he believed Green was sane during both shootings. The jury rejected  [*10]  Green’s insanity defense and found him guilty on all counts.

During the penalty phase, the defense presented extensive mental health mitigation through several witnesses: Green’s guidance counselor, two expert witnesses (Drs. Larson and Turner) and most notably the State’s expert psychologist, Dr. Gilgun. Dr. Gilgun agreed that both statutory mental health mitigators applied: that at the time of the killing, Green was under the influence of extreme mental and emotional disturbance; and that his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired. Nevertheless, the jury recommended death by a vote of ten to two.

After a Spencer n1 hearing, the court followed the jury’s recommendation. The court found two aggravating circumstances: (1) Green had been contemporaneously convicted of another violent felony; and (2) Hallman’s murder was committed for the purpose of avoiding or preventing a lawful arrest. The trial court also found four statutory mitigators: (1) Green had no significant history of prior criminal activity; (2) the murder was committed while Green was under the influence of extreme mental and emotional  [*11]  disturbance; (3) Green’s capacity to conform to the requirements of the law was substantially impaired; and (4) the defendant acted under extreme duress or under the substantial domination of another person. In addition, the court found three nonstatutory mitigators: (1) the defendant’s mental illness was brought to the attention of the family and school authorities years before this incident and yet he received no significant assistance (substantial weight); (2) during the time that the circumstances giving rise to this prosecution were committed, the defendant had significant problems with drug abuse, and these problems were the result of his mental illness (substantial weight); and (3) since his arrest, the defendant has not been a disciplinary problem and has not engaged in any violent acts (moderate weight).

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Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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The trial court sentenced Green to life in prison for the attempted murder and robbery convictions, and imposed the death penalty for the murder of Hallman. This appeal followed.

II. ISSUES ON APPEAL

Green raises four issues on appeal. Because we reverse Green’s sentence, we only address the following two claims: (1) that the trial  [*12]  court erred in finding the avoid arrest aggravator; and (2) that the death sentence is disproportionate. n2

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Our reversal of Green’s death sentence renders moot the remaining claims: (1) whether the trial court erred in denying Green’s penalty phase motion for mistrial; and (2) whether Florida capital sentencing statue is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
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1. Avoid Arrest Aggravator

Green challenges the trial court’s finding of the statutory “avoid arrest” aggravator. See § 921.141(5)(e), Fla. Stat. (2005) (providing as an aggravating factor that the capital felony was “committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.”). He contends that the avoid arrest aggravator is not supported by competent substantial evidence. We agree.

When Green shot the victim, James Hallman, he was unaware that Hallman was a retired police officer. Therefore, to establish that the murder was committed to avoid arrest, the State was required to prove beyond a reasonable doubt that eliminating Hallman as a witness was the dominant or only motive for murdering him. See Reynolds v. State, 934 So. 2d 1128, 1157 (Fla. 2006) (”[T]o establish  [*13]  the avoid arrest aggravating factor where the victim is not a law enforcement officer, the State must show beyond a reasonable doubt that the sole or dominant motive for the murder was the elimination of a witness.”) (quoting Bell v. State, 841 So. 2d 329, 336 (Fla. 2002)). When the victim is not a law enforcement officer, proof of intent to avoid arrest and detection must be very strong. See Jones v. State, 963 So. 2d 180, 186 (Fla. 2007) (citing Riley v. State, 366 So. 2d 19, 22 (Fla. 1978)).

In reviewing aggravating factors, we do not “reweigh evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt . . . . Rather, our task . . . is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” Willacy v. State, 696 So. 2d 693, 695 (Fla. 2002). We conclude the avoid arrest aggravator is not supported by competent, substantial evidence.

To support the avoid arrest aggravator, the State argued that Green’s dominant, if not sole, motive for killing Hallman was to eliminate him as a witness to the discharge of  [*14]  the firearm and the shooting of the bull. While the State’s theory is possible, it is equally plausible that Hallman’s murder had nothing to do with witness elimination, but rather was the product of Green’s mental illness, which included psychotic episodes, delusions, and hallucinations.

The trial court found that when Green killed Hallman, he was under the influence of extreme mental and emotional disturbance. Consistent with this finding, Green testified that God motivated him to kill Hallman. He felt God put him there, on that day, to kill Hallman because Hallman was the Antichrist. Green thought Hallman was the devil and Green was put there to relieve Hallman of his burden.

The trial court also recognized two other motivations for Hallman’s murder. The trial court acknowledged record evidence that Green was motivated to kill Hallman in self-defense when Hallman became agitated, or because he wanted to eliminate Hallman as a witness to his own suicide.

Thus, while the evidence reflects that Green may have had several motives for killing Hallman, it does not support a finding that Green’s dominant motive was to avoid arrest. Cf. Hurst v. State, 819 So. 2d 689 (Fla. 2002) (reversing  [*15]  a finding of the avoid arrest aggravator because the evidence failed to demonstrate that the dominant motive for the murder was to avoid arrest); Connor v. State, 803 So. 2d 598, 610 (Fla. 2001) (finding that the avoid arrest aggravator was not supported by competent substantial evidence because it was entirely plausible that witness elimination had nothing to do with the murder). Accordingly, we conclude that the trial court erred in finding the avoid arrest aggravator.

2. Proportionality

Green next claims that his death sentence is disproportionate. We agree, and therefore reverse the sentence of death.

Proportionality review is a unique and highly serious function of this Court. See Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998). In carrying out this important task, we are mindful that death is a punishment “reserved only for those circumstances where the most aggravating and the least mitigating circumstances exist.” Terry v. State, 668 So. 2d 954, 965 (Fla. 1996). When conducting a proportionality review, we consider the totality of circumstances and compare each case with other capital cases. See Crook v. State, 908 So. 2d 350, 356 (Fla. 2005). Proportionality review is not a comparison  [*16]  between the number of aggravating and mitigating circumstances. Id.

Without the avoid arrest aggravator, Green’s death sentence rests on a single aggravating circumstance: that Green had been contemporaneously convicted of another violent felony–the attempted murder of Phipps. See § 921.141(5)(b), Fla. Stat. (2005). The trial court also found substantial mitigation, however. The court found that: (1) Green had no significant history of prior criminal activity; (2) the murder was committed while the defendant was under the influence of extreme mental and emotional disturbance; (3) the defendant’s capacity to appreciate the criminality of his conduct or to conform to the requirements of the law was substantially impaired; and (4) the defendant acted under extreme duress or under the substantial domination of another person. The trial court also found three nonstatutory mitigators.

As we have previously explained, absent unusual circumstances, “‘death is not indicated in a single-aggravator case where there is substantial mitigation.’” Almeida v. State, 748 So. 2d 922, 933 (Fla. 1999) (quoting Jones v. State, 705 So.2d 1364, 1367 (Fla. 1998)); see also Offord v. State, 959 So. 2d 187, 191-92 (Fla. 2007)  [*17]  (”[W]e have also explained that ‘[a]s a general rule, “‘death is not indicated in a single-aggravator case where there is substantial mitigation.”‘”); Rodgers v. State, 948 So. 2d 655, 670 (Fla. 2006) (”We have stated that generally a death sentence is not proportionate when supported by a single aggravator and the mitigation is substantial.”), cert. denied, 128 S. Ct. 59, 169 L. Ed. 2d 50 (2007). The vast majority of cases where we have upheld a death sentence based on a single aggravator have involved a prior murder or manslaughter. See, e.g., Rodgers, 948 So. 2d at 655 (finding the death sentence proportionate even though it was supported by a single aggravator–prior violent felony conviction–where that aggravator included a robbery and a similar shooting and killing offense); Ferrell v. State, 680 So. 2d 390 (Fla. 1996) (affirming a death sentence where the sole aggravator was a prior second-degree murder); Duncan v. State, 619 So. 2d 279 (Fla. 1993) (affirming a death sentence where the sole aggravator was a prior second-degree murder). Although the shooting of Phipps was a very serious crime, it (fortunately) did not result in Phipps’s death. Thus, in light of the substantial mitigation, Green’s  [*18]  single-aggravator murder does not warrant a death sentence.

Even if we upheld the avoid arrest aggravator, however, we would reach the same conclusion based on the substantial and uncontroverted evidence of the defendant’s mental illness. We have consistently recognized such mitigation as among the most compelling. See, e.g., Morgan v. State, 639 So. 2d 6, 14 (Fla. 1994) (reducing a death sentence to life despite the trial court’s finding that rage and mental infirmity did not play a major role in the crime); Knowles v. State, 632 So. 2d 62, 67 (Fla. 1993) (reversing the trial court’s rejection of this factor and reducing the sentence to life given evidence of the defendant’s organic brain damage, psychotic state, and neurological deficiencies); Carter v. State, 560 So. 2d 1166, 1168-69 (Fla. 1990) (reducing the death sentence to life based on the defendant’s organic brain damage, increased impulsiveness, diminished ability to plan events, and a psychologist’s testimony that the defendant “probably” was unable to appreciate the criminality of his conduct).

Green has a history of intermittently treated mental illness dating back to at least age 13. The trial court accurately described  [*19]  Green’s life after age 13 as “a psychological, emotional, and antisocial free fall into an abyss of aberrational, delusional and psychotic behavior.” Green was diagnosed as suffering from depression, impulse control disorder, and schizoaffective disorder. He refused to treat his illness and instead resorted to marijuana and ecstasy to quiet the voices in his head and cope with his depression. Shortly before committing these crimes, Green was involuntarily committed and placed in a crisis stabilization unit. Between the time he left that unit and the shootings, his mental health significantly deteriorated. In fact, all three mental health experts agreed, and the trial court found, that during the shootings “he was fully immersed in a drowning pool of mental illness.” Therefore, we find that without question Green’s mental health significantly contributed to the murder.

In comparable cases involving extensive mental health mitigation, we have found the death sentence disproportionate. See Offord, 959 So. 2d at 187 (reducing the defendant’s sentence to life based on extensive mental mitigation despite a finding of the heinous, atrocious, and cruel (HAC) aggravator); Larkins v. State, 739 So. 2d 90 (Fla. 1999)  [*20]  (vacating the death sentence because the significant mental health mitigation outweighed the prior violent felony and pecuniary gain aggravators); Kramer v. State, 619 So. 2d 274 (Fla. 1993) (vacating a death sentence supported by HAC and prior violent felony aggravators based on strong mitigation evidence). n3 Similarly, we find imposition of the death penalty disproportionate here. By doing so, we do not minimize the seriousness of the murder Green committed. Our holding recognizes that, while Green clearly has committed a crime that is by definition heinous, and therefore must spend the rest of his life in prison, because of the substantial mental health mitigation involved when compared to other cases of murder, his case does not constitute one of the most aggravating and least mitigated so as to deserve a sentence of death.

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See also Crook, 908 So. 2d at 350 (finding the death sentence disproportionate, despite substantial aggravation, where the mental health mitigation was overwhelming); Hawk v. State, 718 So. 2d 159, 163-64 (Fla. 1998) (finding the death sentence disproportionate despite substantial aggravation, including the contemporaneous attempted murder of a separate victim,  [*21]  where the mental health mitigation was substantial); Urbin, 714 So. 2d at 417-18 (finding the death sentence disproportionate despite multiple aggravators, including a prior violent felony, where the mitigation included the defendant’s impaired capacity, deprived childhood, and youth); Robertson v. State, 699 So. 2d 1343, 1347 (Fla. 1997) (finding the death sentence disproportionate where HAC and other aggravation was offset by the mitigating factors of age, impaired capacity, childhood abuse, and mental mitigation); Morgan v. State, 639 So. 2d 6, 14 (Fla. 1994) (finding the death sentence disproportionate despite HAC and other aggravation where copious mitigation included brain damage and the defendant’s youth); Knowles, 632 So. 2d at 67 (finding the death sentence disproportionate despite a contemporaneous murder aggravator where substantial mitigation included the defendant’s brain damage and impaired capacity); Nibert v. State, 574 So. 2d 1059, 1062-63 (Fla. 1990) (finding the death sentence disproportionate where the HAC aggravator was offset by the defendant’s abused childhood, extreme mental and emotional disturbance, and impaired capacity due to alcohol abuse); Livingston v. State, 565 So. 2d 1288, 1292 (Fla. 1988)  [*22]  (finding the death sentence disproportionate where the aggravators–a prior violent felony and murder committed during a robbery–were offset by the defendant’s severe childhood abuse, youth and immaturity, and diminished intellectual functioning); Miller v. State, 373 So. 2d 882, 886 (Fla. 1979) (finding the death sentence disproportionate despite substantial aggravation, including HAC, where the mental mitigation was substantial and related to the crime).
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For the reasons stated, we reverse Green’s sentence of death and remand the case to the trial court for imposition of a sentence of life without the possibility of parole.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

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LEROY POOLER, Appellant, vs. STATE OF FLORIDA, Appellee.

No. SC05-2191

SUPREME COURT OF FLORIDA

January 31, 2008, Decided

NOTICE:  

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

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court in and for Palm Beach County, Jorge Labarga Judge - Case No. 95-1117CFA02.
Pooler v. State, 704 So. 2d 1375, 1997 Fla. LEXIS 1854 (Fla., 1997)

COUNSEL:   Matthew D. Bavaro and Bradley M. Collins of Bradley M. Collins, P.A., Fort Lauderdale, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, Florida, for Appellee.

JUDGES:   LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION  

PER CURIAM.

Leroy Pooler appeals an order of the circuit court denying his motion to vacate his first-degree murder conviction and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth in this opinion, we affirm the trial court’s denial of Pooler’s motion.

FACTS AND PROCEDURAL HISTORY

On direct appeal, this Court summarized the facts of this case as follows:

Leroy Pooler was convicted of first-degree murder for the shooting death of his ex-girlfriend, Kim Wright Brown. He also was convicted of burglary and attempted first-degree murder with a firearm. The facts supporting these convictions are as follows. On January 28, 1995, Carolyn Glass, a long-time acquaintance of Kim Brown,  [*2]  told her that Pooler had said he was going to kill her because if he could not have her, no one else would. (Evidence showed that Kim Brown had begun seeing another man.) Two days later, Pooler knocked on the front door of the apartment where Kim and her younger brother, Alvonza Colson, lived with their mother. Seeing Pooler through the door window, Kim told him that she did not want to see him anymore. Alvonza opened the door halfway and asked Pooler what he wanted but would not let him in. When Pooler brandished a gun, Alvonza let go of the door and tried to run out the door, but he was shot in the back by Pooler. Pooler pulled Alvonza back into the apartment by his leg. Kim begged Pooler not to kill her brother or her and began vomiting into her hands. She suggested they take Alvonza to the hospital. Pooler originally agreed but then told Alvonza to stay and call himself an ambulance while Pooler left with Kim. However, rather than follow Pooler out the door, Kim shut and locked it behind him. Alvonza told Kim to run out the back door for her life while he stayed in the apartment to call for an ambulance. When he discovered that the telephone wires had been cut, he started for the  [*3]  back door, just as Pooler was breaking in through the front entrance.

Pooler first found Alvonza, who was hiding in an area near the back door, but when he heard Kim yelling for help, he left Alvonza and continued after Kim. When he eventually caught up with her, he struck her in the head with his gun, causing it to discharge. In front of numerous witnesses, he pulled her toward his car as she screamed and begged him not to kill her. When she fought against going in the car, Pooler pulled her back toward the apartment building and shot her several times, pausing once to say, “You want some more?” Kim had been shot a total of five times, including once in the head. Pooler then got into his car and drove away.

The jury recommended death by a vote of nine to three. The trial court found the following aggravators: (1) that the defendant had a prior violent felony conviction (contemporaneous attempted first-degree murder of Alvonza); (2) that the murder was committed during the commission of a burglary; and (3) that the murder was heinous, atrocious, or cruel. The trial court found as statutory mitigation that the crime was committed while Pooler was under the influence of extreme mental  [*4]  or emotional disturbance, but gave that finding little weight. . . .

As nonstatutory mitigation, the trial court found the defendant’s honorable service in the military and good employment record, as well as the fact that he was a good parent, had done specific good deeds, possessed certain good characteristics, and could be sentenced to life without parole or consecutive life sentences. The only mitigator given considerable weight was Pooler’s honorable military service; the others were given some to little weight. . . . Concluding that each of the three aggravators standing alone would outweigh the mitigating evidence, the court sentenced Pooler to death.Pooler v. State, 704 So. 2d 1375, 1377 (Fla. 1997). On direct appeal, this Court affirmed Pooler’s convictions and sentences. n1

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On direct appeal, Pooler raised the following issues: (1) the prosecutor made improper comments during voir dire; (2) the trial court failed to instruct the jury on attempted first-degree felony murder; (3) the trial court erred in finding the heinous, atrocious, or cruel (HAC) aggravator; (4) the trial court erred in finding the prior violent felony aggravator; (5) Pooler lacked the capacity to appreciate  [*5]  the criminality of his conduct or to conform his conduct to the law; (6) Pooler was under extreme duress or the substantial domination of another person at the time the murder was committed; (7)-(11) the trial court erred in rejecting the nonstatutory mitigators, including extreme duress, good jail record/ability to adapt to prison life, low-normal intelligence, rehabilitable, and heated domestic dispute; (12) the record on appeal did not contain the presentence investigation (PSI) report relied upon by the trial court in rejecting nonstatutory mitigation; (13) the trial court erred in departing from the sentencing guidelines without issuing a written contemporaneous departure order for the offenses of attempted first-degree murder with a firearm and burglary of a dwelling while armed; (14) Florida’s death penalty is unconstitutional; and (15) Pooler’s death sentence is disproportionate.
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Pooler subsequently filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised sixteen claims. n2 The trial court held an evidentiary hearing on three of them and subsequently denied relief on all claims.

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In his postconviction motion, Pooler claimed  [*6]  the following: (1) trial counsel failed to investigate and present a voluntary intoxication defense; (2) trial counsel failed to properly investigate and present mitigation (lack of capacity, age, dull intelligence, mental health problems, intoxication, impoverished background, good jail record, good parent, and remorse); (3) trial counsel failed to investigate and present, and trial court failed to find, mitigation (good jail behavior, low IQ, and age); (4) the sentencing jury was misled by comments and instructions which diluted its sense of responsibility for sentencing; (5) the penalty phase jury instructions shifted the burden to Pooler to prove that death was inappropriate; (6) trial counsel failed to obtain an adequate mental health evaluation and failed to provide the necessary background information to the mental health consultants; (7) Pooler’s sentence rests upon an unconstitutionally automatic aggravating circumstance (the felony murder aggravator); (8) the heinous, atrocious, or cruel (HAC) aggravator is vague and overbroad; (9) the cumulative effect of trial counsel errors denied Pooler effective assistance of counsel; (10) the sentencing court erred by failing to properly  [*7]  and timely impose a written sentence of death; (11) the rule prohibiting juror interviews is unconstitutional; (12) trial counsel failed to investigate the forensic evidence or retain a forensic expert; (13) the trial court erred in permitting the State to introduce gruesome photographs; (14) Pooler is innocent of the death penalty; (15) Florida’s death penalty statute is unconstitutional because it fails to prevent the arbitrary and capricious imposition of the death penalty; (16) Pooler’s convictions and death sentences were obtained in violation of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). The trial court conducted an evidentiary hearing on claims one, two, and six.
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ANALYSIS

Pooler raises two issues on appeal: (A) trial counsel provided constitutionally ineffective assistance; and (B) the trial court erred in summarily denying nine of his postconviction claims. We address these issues in turn.

A. Ineffective Assistance of Counsel

Pooler argues that his trial counsel was constitutionally ineffective for (1) failing to investigate and present a voluntary intoxication defense; (2) failing to investigate and present evidence of alcohol abuse or dependency in support of the impaired capacity  [*8]  mitigator; (3) failing to investigate and present Pooler’s school, military, and employment records in mitigation; and (4) failing to retain adequate mental health experts and provide them with the necessary background information to render competent opinions. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established a two-prong standard for determining whether counsel provided constitutionally ineffective assistance. First, a defendant must demonstrate that counsel’s performance was deficient by pointing to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687; see also Marshall v. State, 854 So. 2d 1235, 1247 (Fla. 2003) (”Under Strickland, ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’”) (quoting Strickland, 466 U.S. at 691). Second, the defendant must establish prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694.  [*9]  A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. 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).

1. Failure to Investigate and Present a Voluntary Intoxication Defense n3

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Although the law has since changed, see § 775.051, Fla. Stat. (1999), voluntary intoxication was an available defense to negate specific intent at the time of the killing in this case. See Gardner v. State, 480 So. 2d 91 (Fla. 1985).
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Pooler claims that defense counsel, Michael Salnick, was ineffective for failing to investigate and present a voluntary intoxication defense. At the evidentiary hearing, Pooler introduced evidence relating to his alcohol use. The evidence included a police report made by Pooler two to three hours before the murder alleging that someone stole $ 301 from him while he was asleep in his vehicle due to intoxication. Detective Frank Alonzo of the  [*10]  West Palm Beach Police Department, who made the police report, testified that although Pooler smelled of alcohol at the time he came to the police department, he did not appear intoxicated, did not slur his speech, and answered all questions. Because Pooler did not seem intoxicated, Detective Alonzo did not prevent him from getting into his car and driving after making the report. Pooler also presented two handwritten letters authored by his nephews, Brian and Darren Warren, attesting to Pooler’s alcohol problem. Brian’s letter stated, “On the morning of the shooting . . . Leroy called me [and] told me he knew Kim had been killed but he could not remember what happened. He was very upset and it seemed he was still drunk.” Both nephews stated that they would have testified at trial but were not contacted by Pooler’s defense team. The postconviction trial court denied this claim because the evidence did not support a voluntary intoxication defense and because Pooler thwarted any possibility of raising this defense when he refused to admit to shooting Kim Brown.

We affirm the trial court’s order. Although the evidence presented at the evidentiary hearing suggests that Pooler may have had  [*11]  a history of alcohol abuse and may have been drinking the night before and soon after the murder, none of the evidence establishes that he was intoxicated at the time of the murder. Indeed, the testimony of Detective Alonzo establishes that Pooler was not intoxicated just a few hours before the murder. Pooler presented no evidence that he became intoxicated between the time he left the police department and the time he arrived at Kim Brown’s house. Accordingly, he failed to establish any reasonable basis upon which to assert the affirmative defense of voluntary intoxication. See Reaves v. State, 826 So. 2d 932, 938-39, n.9 (Fla. 2002) (holding that in order to successfully assert the defense of voluntary intoxication, the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the crime charged).

Moreover, Salnick made a reasonable tactical decision not to pursue a voluntary intoxication defense. See Rivera v. State, 717 So. 2d 477, 485 (Fla. 1998) (holding that trial counsel made a reasonable tactical decision to forego a voluntary intoxication defense because “there was no  [*12]  evidence that Rivera was intoxicated at the time of the murder“). Salnick testified that he considered a possible voluntary intoxication defense but chose not to present it because Pooler could recall specific details regarding the day of the murder and because neither Pooler nor any of his family members mentioned that Pooler had a history of alcoholism or that he was intoxicated at the time of the murder.

Additionally, the trial court found, based on competent, substantial evidence, that Pooler refused to participate in any defense that required him to admit that he did the shooting. Counsel was thus prevented from asserting the voluntary intoxication defense. See Rivera, 717 So. 2d at 485 (holding that counsel’s performance was not deficient because “Rivera’s unwavering professions of innocence short-circuited any credible voluntary intoxication defense during the guilt phase”); Rose v. State, 617 So. 2d 291, 294 (Fla. 1993) (”When a defendant preempts his attorney’s strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.” (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985)). Pooler denies that he refused to admit to the killing.  [*13]  However, a memorandum from Salnick to Pooler on the eve of trial confirms that Pooler ultimately rejected a plea deal for a life sentence, refused to admit to shooting Kim, and directed Salnick to pursue a sufficiency of the evidence strategy. In light of this evidence, we defer to the trial court’s factual finding and affirm its conclusion that Salnick was not ineffective in foregoing a voluntary intoxication defense because it would have undermined Pooler’s chosen defense strategy. See Freeman v. State, 858 So. 2d 319, 323 (Fla. 2003) (holding that while the performance and prejudice prongs are mixed questions of law and fact subject to a de novo standard, deference is given to the trial court’s factual findings which are supported by competent, substantial evidence).

Pooler failed to prove any deficiency in Salnick’s performance in regard to this issue. In light of this failure, we need not address the prejudice prong. See Strickland, 466 U.S. at 697 (”[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”); Downs v. State, 740 So. 2d 506, 518 n.19 (Fla. 1999)  [*14]  (finding no need to address prejudice prong where defendant failed to establish deficient performance element).

2. Failure to Investigate and Present Evidence of Alcohol Abuse or Dependency in Support of the Impaired Capacity Mitigator

Pooler next argues that counsel was ineffective for failing to investigate and present evidence of his history of alcohol abuse and dependency in support of the impaired capacity mitigator. See Stewart v. State, 558 So. 2d 416 (Fla. 1990). As evidence, Pooler cites the police report he made hours before the murders, the testimony of Detective Alonzo, and the letters from his nephews, Brian and Darren Warren. In addition, Pooler’s postconviction expert, Dr. Michael Brannon, testified that he diagnosed Pooler with alcohol dependency disorder and hepatitis C. The postconviction trial court denied this claim because Salnick conducted a reasonable investigation and successfully prevented the State from obtaining an instruction on the cold, calculated, and premeditated (CCP) aggravating circumstance by introducing evidence during the penalty phase that Pooler had been drinking two days before the murder when he threatened to kill Kim Brown.

We affirm the trial  [*15]  court’s conclusion. First, Salnick’s performance was not deficient. As stated earlier, Salnick conducted a reasonable investigation into Pooler’s background. Neither Pooler nor his family indicated to Salnick that he had a substance abuse problem or that he had been drinking at the time of the shooting. However, Salnick discovered that Pooler had been drinking two days before the murder when he threatened to kill Kim Brown. He used this information during the penalty phase to prevent the State from obtaining an instruction on CCP. Further, Salnick testified at the evidentiary hearing that he chose not to introduce Pooler’s police report during the penalty phase because it would open the door for the State to cross-examine Pooler regarding the fact that he had been with a prostitute when he passed out drunk and that she stole his money. This was a reasonable tactical decision made after a reasonable investigation; therefore, Salnick’s performance was not deficient. See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (”[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable  [*16]  under the norms of professional conduct.”). Moreover, as discussed earlier, none of the evidence introduced by Pooler at the evidentiary hearing shows that he was intoxicated at the time of the murder. Therefore, any alleged failure on Salnick’s part to investigate and present it at trial was not prejudicial.

3. Failure to Investigate and Present School, Military, and Employment Records in Mitigation

Pooler next claims that Salnick was ineffective for failing to investigate and present his school, military, and employment records in mitigation. According to Pooler, counsel could have used the information contained in these records to mitigate his sentence by showing that Pooler had dull intelligence and a troubled background. At the postconviction evidentiary hearing, Pooler’s collateral counsel introduced his military, school, and employment records. Pooler’s military records revealed that he was charged with at least nineteen different offenses on fifteen different occasions between October 1969 and February 1971 and that he was court-martialed for several of these offenses. His school records show that he was an average student in early elementary school, but that his grades grew  [*17]  progressively worse each year. Some of Pooler’s teachers commented that he was “very slow” and “mischievous,” that he “play[s] hooky,” “does not attend school regularly,” “is not interested in school,” “need[s] guidance,” and “may get with the wrong crowd easily.” Pooler failed multiple grades and ultimately never graduated from high school. In addition, Pooler’s employment records indicate that he had been employed as a refuse worker and quit without notice. Notwithstanding Salnick’s failure to obtain these records, the postconviction trial court concluded that he conducted a reasonable investigation, noting that when written documentation was not available, Salnick found alternate means to corroborate Pooler’s statements regarding his background (i.e., interviews with Pooler’s family members).

We affirm the trial court’s conclusions. Salnick conducted a reasonable investigation. His failure to obtain Pooler’s records does not rise to the level of ineffective assistance. Pooler consistently represented to Salnick that he was an average student, graduated from high school, and was honorably discharged from the Marine Corps. To test the validity of Pooler’s representations, Salnick’s  [*18]  investigator, Marvin Jenne, traveled to Louisiana and interviewed members of Pooler’s family. All of the family members Jenne located and interviewed corroborated Pooler’s positive representations. Further, Jenne made an attempt, albeit unsuccessful, to obtain Pooler’s school records. Based on Pooler’s positive representations of himself which were substantiated by his family members, Salnick had no reason to believe Pooler’s records would contain anything negative or mitigating. See Rompilla v. Beard, 545 U.S. 374, 383, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (”[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.”). Therefore, he formed a reasonable trial strategy of presenting Pooler in a positive light.

Moreover, no prejudice resulted from counsel’s choice of strategy. At trial, Salnick showed that Pooler had been a productive member of society and crime-free for fifteen years prior to the murder. He presented evidence that Pooler had served honorably in the military in Vietnam, reenlisted, raised a daughter, took care of his relatives,  [*19]  was a good parent, worked at the same job for eight years, and was well liked by his coworkers. Of all the mitigation presented, the trial court gave considerable weight only to Pooler’s honorable military service. Had Salnick introduced Pooler’s military, school, or employment records, he would have undermined Pooler’s only significant mitigation. See Reed v. State, 875 So. 2d 415, 437 (Fla. 2004) (”An ineffective assistance claim does not arise from the failure to present mitigation evidence where that evidence presents a double-edged sword.”). Furthermore, Pooler’s records would not have opened up mitigation leads sufficient to overcome the aggravation found by the trial court. Accordingly, counsel’s failure to obtain these records does not undermine confidence in Pooler’s death sentence.

4. Failure to Retain Adequate Mental Health Experts and Provide Them with the Necessary Background Information to Render Competent Opinions

Pooler next claims that counsel was ineffective for failing to retain adequate mental health experts and provide them with the necessary background information to render competent opinions. Specifically, Pooler argues that counsel rendered ineffective assistance  [*20]  by retaining as penalty phase mental health experts two court-appointed doctors who evaluated Pooler solely for competency prior to trial and two psychiatrists who treated Pooler while he was in jail.

The record reveals that Drs. Stephen Alexander and Laurence Levine evaluated Pooler for competency prior to trial and testified at his competency hearing. At the pretrial competency hearing, Dr. Alexander questioned Pooler’s ability to understand courtroom procedures and to communicate sufficiently with counsel, ultimately concluding that Pooler was not competent to stand trial. He estimated that Pooler’s IQ was between 75 and 85 and found that Pooler was not suffering from any undue stress, mental illness, or personality disorder. Dr. Levine also expressed concern regarding Pooler’s ability to assist his attorney in preparing a defense and in challenging the State’s witnesses. He found Pooler to be of borderline intelligence and noted inconsistencies in the information Pooler gave him versus his test results. However, Dr. Levine ultimately determined that Pooler was competent to stand trial. Based on this testimony, the trial court determined that Pooler had an IQ of 80 and was competent  [*21]  to stand trial.

During the penalty phase, Salnick called Drs. Levine and Alexander as defense mental health experts. They provided the same information regarding the results of their competency evaluations as they did at Pooler’s competency hearing. Dr. Alexander further opined that Pooler’s capacity to appreciate the criminality of his conduct or to conform to the requirements of the law was not impaired. In addition, Salnick elicited testimony from Drs. Michael Armstrong and Jude Desormeau, who treated Pooler while in jail. Dr. Armstrong testified that Pooler was depressed, complained of hearing a voice in his head, stated that he had no reason to live, and felt like he was going to explode. He diagnosed Pooler as suffering from judgment disorder with emotional features. Dr. Desormeau testified that he examined Pooler while in jail because he was a suicide risk. He was not aware that Pooler claimed to be hearing voices but testified that Pooler was suffering from depression as a result of his murder charge.

At the postconviction evidentiary hearing, Pooler presented the testimony of Dr. Brannon, who tested Pooler for competency prior to the hearing and conducted a forensic mental health  [*22]  evaluation for the purpose of mitigation. Dr. Brannon ultimately concluded that Pooler was competent to proceed. However, Dr. Brannon testified that Pooler had a borderline retarded IQ of 75 and that he suffered neurological damage from head injuries. Pooler did not call any of his trial experts to testify at the evidentiary hearing. Following the hearing, the postconviction trial court denied this claim, concluding that the expert testimony presented by Salnick met the requirements of Strickland and Ake v. Oklahoma, 470 U.S. 68, 83, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (holding that a defendant must have access to a “competent psychiatrist [or other mental health professional] who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense”).

We affirm the trial court’s denial of this claim. As explained earlier, Salnick reasonably relied on Pooler’s corroborated representations regarding his scholastic and military background. See Wiggins v. Smith, 539 U.S. 510, 533, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (”Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.”). Salnick  [*23]  communicated this information to the experts, and Pooler also gave the experts the same information during their evaluations of him. Furthermore, Salnick testified at the evidentiary hearing that he retained these experts because, given their neutrality, they would be more credible and difficult to impeach. This was a reasonable strategic decision. See Occhicone, 768 So. 2d at 1048.

Even if we assume counsel’s decision to forego further testing constituted deficient performance, Pooler failed to establish that any prejudice resulted from it. He presented no evidence that the defense experts were incompetent or that they failed to assist in the evaluation, preparation, and presentation of the defense. See Jones v. State, 845 So. 2d 55, 67-68 (Fla. 2003). Nor did Pooler identify anything of substance that a more in-depth psychoanalysis would have added. Dr. Brannon’s finding that Pooler had neurological damage from head injuries was already indicated in Dr. Levine’s evaluation. Also, Dr. Brannon’s determination that Pooler had a borderline retarded IQ of 75 does not constitute a clear indication of actual mental retardation because it is within the range estimated by Dr. Alexander and  [*24]  is not substantially inconsistent with the trial court’s finding that Pooler had an IQ of 80. Furthermore, because Pooler did not call any of his trial experts to testify at his postconviction hearing, he failed to demonstrate that they would have changed their opinions had they conducted more in-depth psychological evaluations or been provided with his records. Under these circumstances, a new sentencing proceeding is not mandated. See State v. Sireci, 502 So. 2d 1221, 1224 (Fla. 1987) (”[A] new sentencing hearing is mandated in cases which entail psychiatric examinations so grossly insufficient that they ignore clear indications of either mental retardation or organic brain damage.”).

B. Summarily Denied Claims

Pooler also asserts that the circuit court erred in summarily denying nine of his postconviction claims. We disagree and affirm the trial court’s order. Generally, a defendant is entitled to an evidentiary hearing on a postconviction relief motion unless “(1) the motion, files, and records in the case conclusively show that the [defendant] is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000);  [*25]  accord Fla. R. Crim. P. 3.850(d). n4 In such a case, “[t]he defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden.” Freeman, 761 So. 2d at 1061. However, when reviewing a court’s summary denial of an initial rule 3.850 motion filed in a capital case, the Court will affirm the ruling only if the State has shown that the motion is legally flawed or that the record conclusively demonstrates that the defendant is entitled to no relief. See Patton v. State, 784 So. 2d 380, 386 (Fla. 2000). This Court must accept Pooler’s allegations as true “to the extent they are not refuted by the record.” Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). We briefly address each claim.

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Pooler’s amended rule 3.850 motion was filed on March 13, 2000, before the rule was changed. See generally Fla. R. Crim. P. 3.851(a) (”This rule . . . shall apply to all postconviction motions filed on or after October 1, 2001, by prisoners who are under sentence of death. Motions pending on that date are governed by the version of this rule in effect immediately prior to that date.”). Therefore, we analyze Pooler’s  [*26]  claims under the summary denial standard set forth in rule 3.850(d).
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Age, Low IQ, and Good Jail Behavior Mitigators

Pooler asserts that the postconviction trial court erred in summarily denying his claim that his trial counsel failed to investigate and present, and the trial court failed to find, the age, low IQ, and good jail behavior mitigators. The postconviction trial court summarily denied this claim as procedurally barred because it was raised and rejected by this Court on direct appeal. We affirm the trial court’s summary denial of this claim. See Pooler, 704 So. 2d 1379-80 (holding that the sentencing court’s failure to find these mitigators was either not an abuse of discretion or harmless error); see also Spencer v. State, 842 So. 2d 52, 60-61 (Fla. 2003) (quoting Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (”Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”)).

1. Misleading Comments and Jury Instructions

Pooler next argues that the postconviction trial court erred in summarily denying his claim that the jury was misled by (1) the trial court’s repeated instructions that the jury’s sentencing  [*27]  role was merely advisory; (2) the trial court’s instructions and the State’s argument which, Pooler claims, shifted the burden to Pooler to prove that death was an inappropriate sentence; and (3) the trial court’s instructions that Pooler claims were unconstitutionally vague and allowed the jury to consider the murder in the course of a felony aggravator as an automatic aggravator. Pooler also argues that trial counsel was ineffective for failing to object to these comments and instructions. The postconviction trial court summarily denied these claims as both procedurally barred and legally insufficient.

We affirm the trial court’s decision. Pooler’s claims of prosecutorial misconduct and trial court error should have been raised on direct appeal. See Rodriguez v. State, 919 So. 2d 1252, 1262 n.7, 1280 (Fla. 2006); Occhicone, 768 So. 2d at 1040 n.3. (”[C]laims challenging the validity of jury instructions should be raised on direct appeal, not on motions for postconviction relief.”). Similarly, Pooler’s claims regarding the adequacy of jury instructions are procedurally barred because they should have been raised on direct appeal. See Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000).  [*28]  We will not consider such procedurally barred claims under the guise of ineffective assistance of counsel. See Freeman, 761 So. 2d at 1067 (holding that claims that could have been raised on direct appeal cannot be relitigated under the guise of ineffective assistance of counsel). Moreover, Pooler’s ineffectiveness claim for failure to object to these jury instructions is legally insufficient. The instructions were proper and were consistent with the standard jury instruction. See Rodriguez, 919 So. 2d at 1280-81 (rejecting claims that jury instructions diluted the jury’s responsibility for its sentencing role, shifted the burden to the defendant to prove that death was inappropriate, and allowed the jury to consider the murder in the course of a felony aggravator as an automatic aggravator); Griffin v. State, 866 So. 2d 1, 14 (Fla. 2003) (rejecting claim that the murder in the course of a felony aggravating circumstance allows the jury to consider an automatic aggravator in recommending whether to impose a death sentence); Sweet v. Moore, 822 So. 2d 1269, 1274 (Fla. 2002) (rejecting claim that the standard jury instruction impermissibly shifted the burden to the defense to prove that  [*29]  death was not the appropriate sentence); see also Cherry v. State, 781 So. 2d 1040, 1054 (Fla. 2000) (”[C]ounsel cannot be deemed ineffective for failing to object to proper jury instructions.”).

3. Counsel’s Failure to Investigate Forensic Evidence and Obtain Proper Forensic Experts

Next, Pooler claims that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to investigate forensic evidence and for failing to obtain proper forensic experts. Pooler argues that he was prejudiced because a well-informed, independent medical expert could have opined that the victim died instantaneously and, thus, the heinous, atrocious, or cruel (HAC) aggravating factor would not have applied. The trial court summarily denied this claim as legally insufficient because Pooler failed to identify what evidence or expert opinion his trial counsel could have offered to show that the victim’s death was instantaneous so as to refute the HAC finding.

We affirm the trial court’s conclusion. This claim is legally insufficient because Pooler fails to identify what evidence or expert opinion his trial counsel could have offered to show that the victim’s death was instantaneous.  [*30]  Moreover, even if forensic evidence could have shown that the victim’s death was instantaneous, we would not strike the HAC aggravator. As we held on direct appeal, “the fear, emotional strain, and terror of the victim during the events leading up to the murder” support the trial court’s HAC finding, “even where the victim’s death was almost instantaneous.” See Pooler, 704 So. 2d at 1378.

4. Counsel’s Failure to Object to the Introduction of Gruesome Photographs

Pooler further asserts that the trial court erred in summarily denying his claim that counsel rendered ineffective assistance by failing to object to the State’s introduction of gruesome photographs. The postconviction trial court determined that this claim is legally insufficient because counsel raised a timely, albeit unsuccessful, objection to the admission of the photographs in question.

We affirm the trial court’s decision. The record conclusively shows that Salnick’s performance was not deficient because he challenged the admission of the photographs by written motion when they were offered into evidence by the State. Even if counsel had failed to sufficiently object, it is clear that no prejudice resulted because the trial  [*31]  court did not abuse its discretion in admitting the photographs. See Pangburn v. State, 661 So. 2d 1182, 1187 (Fla. 1995) (”[T]he admission of photographic evidence is within the trial judge’s discretion and a trial judge’s ruling on this issue will not be disturbed on appeal unless there is a clear showing of abuse.”). Each photograph depicted a different wound and none appeared particularly gory. See Rose v. State, 787 So. 2d 786, 794 (Fla. 2001) (”[A]utopsy photographs, even when difficult to view, are admissible to the extent that they fairly and accurately establish a material fact and are not unduly prejudicial.”); Czubak v. State, 570 So. 2d 925, 928 (Fla. 1990) (holding that photographs are admissible if they are “relevant and not so shocking in nature as to defeat the value of their relevance”); see also Larkins v. State, 655 So. 2d 95, 98 (Fla. 1995) (upholding the admission of photographs where they are relevant to “explain a medical examiner’s testimony, to show the manner of death, the location of wounds, and the identity of the victim”).

5. Juror Interviews

Next, Pooler argues that the trial court erred in summarily denying his claim that the rule prohibiting juror interviews  [*32]  is unconstitutional. The trial court summarily denied this claim, determining that it was both procedurally barred because it was not raised on direct appeal and meritless because Pooler failed to make a prima facie case of jury misconduct. We agree. This claim is procedurally barred because it should have been raised on direct appeal. See Rodriguez, 919 So. 2d at 1262 n.7. It is also legally insufficient as this Court has previously rejected similar constitutional challenges to Florida Rule of Professional Conduct 4-3.5(d)(4). See Power v. State, 886 So. 2d 952, 957 (Fla. 2004); State v. Duncan, 894 So. 2d 817, 826 & n.7 (Fla. 2004); Johnson v. State, 804 So. 2d 1218, 1224 (Fla. 2001). Moreover, Pooler did not state a prima facie case of jury misconduct. See Johnson, 804 So. 2d at 1225 (”[J]uror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceeding[].”). Without more than what was pled, this claim is nothing more than an impermissible fishing expedition after a guilty verdict has been returned. See Griffin v. State, 866 So. 2d 1, 20 (Fla. 2003);  [*33]  Arbelaez v. State, 775 So. 2d 909, 920 (Fla. 2000).

6. Innocent of the Death Penalty

Pooler further contends that the trial court erred when it summarily denied his claim that he is innocent of the death penalty due to a lack of valid aggravating circumstances. The trial court summarily denied this claim because the record revealed that Pooler failed to demonstrate that none of the aggravators apply.

We affirm the trial court’s summary denial of this claim. We determined the validity of the prior violent felony and HAC aggravators on direct appeal. Pooler, 704 So. 2d at 1378-79, 1381. Pooler does not successfully challenge these aggravators in his postconviction motion. Therefore, Pooler fails to present “evidence that an alleged constitutional error implicates all of the aggravating factors found to be present by the sentencing body.” Johnson v. Singletary, 938 F.2d 1166, 1183 (11th Cir. 1991).

7. Florida’s Death Penalty is Unconstitutionally Vague

Pooler next asserts that the trial court erred in summarily denying his claim that Florida’s capital sentencing scheme is unconstitutionally vague because it fails to provide a standard of proof for determining that the aggravating circumstances  [*34]  outweigh the mitigating circumstances and because the statute does not sufficiently define each aggravating circumstance. The trial court denied this claim as procedurally barred because Pooler unsuccessfully challenged the constitutionality of Florida’s death penalty statute on direct appeal. We affirm the trial court’s denial of this claim. Pooler, 704 So. 2d at 1380-81; see also Rodriguez, 919 So. 2d at 1262 n.7 (holding that Rodriguez’s claim concerning the constitutionality of the death penalty was procedurally barred because it was raised and rejected on direct appeal); Muhammad v. State, 603 So. 2d 488, 489 (Fla. 1992) (”Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”).

8. Florida’s Death Penalty Statute Violates Ring

Pooler further contends that the trial court erred in summarily denying his claim that Florida’s death penalty statute is unconstitutional in light of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). We affirm the trial court’s denial of this claim. See Johnson v. State, 904 So. 2d 400, 412 (Fla. 2005).

9. Cumulative Error

Lastly, Pooler argues that the trial court erred in summarily denying  [*35]  his claim that the number and types of error that occurred cumulatively prevented him from receiving a constitutionally adequate trial. This claim is legally insufficient. See Griffin, 866 So. 2d at 22 (”[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.”); accord Downs v. State, 740 So. 2d 506, 509 n.5 (Fla. 1999).

CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order denying Pooler’s motion for postconviction relief.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

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THOMAS C. SUTTON, et al., Petitioners, vs. STATE OF FLORIDA, Respondent.

No. SC06-1000

SUPREME COURT OF FLORIDA

January 31, 2008, Decided

NOTICE:  

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

PRIOR HISTORY:    [*1]

Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions. (Duval County). First District - Case Nos. 1D05-5922, 5923, 5924, 5925, 5927, 5930, 5931, 5938, 5945, 5947, and 5948.

COUNSEL:   Michael Ufferman of the Law Firm of Michael Ufferman, P.A., Tallahassee, Florida, for Petitioners.

Bill McCollum, Attorney General, Robert R. Wheeler, Trisha Meggs Pate, and Bryan Jordan, Assistant Attorneys General, Tallahassee, Florida, for Respondent.

JUDGES:   LEWIS, C.J. WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION BY:   LEWIS

OPINION  

LEWIS, C.J.

We have for review Sutton v. State, No. 1D05-5922 (Fla. 1st DCA Apr. 20, 2006), which expressly and directly conflicts with the decisions in Housing Authority of Tampa v. Burton, 873 So. 2d 356 (Fla. 2d DCA 2004), Pinfield v. State, 710 So. 2d 201 (Fla. 5th DCA 1998), and Guzzetta v. Hamrick, 656 So. 2d 1327 (Fla. 5th DCA 1995). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. n1 We approve the decision under review for the reasons provided in our analysis.

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The State argues that there is no conflict jurisdiction because the action below by the First District Court of Appeal was an unpublished  [*2]  order without table citation and such does not constitute a “decision” as contemplated by article V, section 3(b)(3) of the Florida Constitution. This argument is without merit. This Court has previously exercised its discretionary jurisdiction where the action below was an unpublished order. In Department of Law Enforcement v. House, 678 So. 2d 1284, 1284 (Fla. 1996), and Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378, 1379 (Fla. 1993), this Court held that jurisdiction existed under article V, section 3(b)(4), even though conflict was certified by an unpublished order (and no table citation was provided). In both House and Espinosa, this Court subsequently rendered a decision on the merits. See House, 678 So. 2d at 1284; Espinosa, 612 So. 2d at 1380. Also, in Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984), this Court held that jurisdiction existed under article V, section 3(b)(4), even though the question of great public importance was certified by unpublished order (and no table citation was provided). See id. at 514. In Stanley, this Court also subsequently rendered a decision on the merits. See id. at 515. Thus, there  [*3]  is precedent for this Court exercising its discretionary jurisdiction with regard to unpublished orders that are without table citation, and this includes cases that involve conflict jurisdiction. Similar to the use of the word “decision” in article V, section 3(b)(4) of the Florida Constitution, the term “decision” is also used in article V, section 3(b)(3) to define the parameters of this Court’s review through discretionary jurisdiction. In the cases previously discussed, this Court has concluded that unpublished orders without table citation constitute “decisions” for discretionary jurisdiction purposes. Therefore, the decision to invoke discretionary jurisdiction in the instant case is within the existing jurisprudence of this Court.
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FACTUAL AND PROCEDURAL HISTORY

The instant action arises from the order issued in Sutton. In the county court, the petitioners n2 filed identical motions to disqualify a trial court judge based upon the alleged bias of the judge toward the petitioners’ attorneys, which was alleged to have been demonstrated during a single hearing. The trial judge was presiding over the misdemeanor criminal cases of the petitioners. The motions to disqualify were denied.  [*4]  The petitioners subsequently requested that the circuit court issue writs of prohibition in each case to direct the county court judge to take no further action. The circuit court denied the petitions for writs of prohibition. The petitioners then immediately filed notices of appeal to seek review of the circuit court’s denial of the petitions for writs of prohibition, rather than waiting until the conclusion of their trials (for the misdemeanor criminal charges) to seek review. On December 22, 2005, the First District issued an order to show cause why the notices of appeal should not be considered petitions to invoke certiorari jurisdiction. After the parties presented their respective positions, the First District issued multiple orders on April 20, 2006, with regard to this matter. The order in Sutton contained only the following language: n3

Upon the Court’s own motion, the appeal is hereby redesignated as invoking the Court’s certiorari jurisdiction. See State v. Frazee, 617 So. 2d 350 (Fla. 4th DCA 1993)(reviewing circuit court order on petition for writ of prohibition by petition for writ of certiorari); but see Guzzetta v. Hamrick, 656 So. 2d 1327 (Fla. 5th DCA 1995)(reviewing  [*5]  circuit court order denying prohibition by appeal). The petitioner shall have 20 days from the date of this order within which to file a petition which conforms to the requirements of Florida Rule of Appellate Procedure 9.100. The petition shall be accompanied by an appendix which complies with Florida Rule of Appellate Procedure 9.220.No. 1D05-5922. On April 24, 2006, the First District consolidated the eleven cases “for all appellate purposes.” On June 16, 2006, the First District denied the petitioners’ motion to certify conflict and motion to conduct a rehearing en banc with regard to the issue of whether an order denying a petition for writ of prohibition is reviewable by appeal or certiorari. On January 19, 2007, this Court accepted discretionary jurisdiction to resolve the conflict between the instant case and Burton, Pinfield, and Guzzetta.

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There are ten separate petitioners in eleven cases, which were eventually consolidated for review in the First District. Sutton was designated as the lead case. The petitioners all argue one identical issue–whether a circuit court’s order on a petition for writ of prohibition is reviewable by appeal or certiorari.3

The First District issued  [*6]  an order for each of the eleven cases. The orders either contained the identical language or language that was similar in substance to the order in Sutton.
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ANALYSIS

The single issue under review is whether a circuit court’s order on a petition for writ of prohibition in this context is reviewable by appeal or certiorari. This is a pure question of law that is subject to de novo review. See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1259 (Fla. 2006) (concluding that a de novo standard of review is proper for a question of law) (citing D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)); see also Smith v. Smith, 902 So. 2d 859, 861 (Fla. 1st DCA 2005) (”The standard of review regarding the trial court’s construction of the rules is de novo.“).

Petition for Writ of Prohibition in Circuit Court

As a preliminary matter, it should be noted that the petitioners properly utilized petitions for writs of prohibition to seek review in the circuit court of the denials of the motions to disqualify the trial judge. In Florida, circuit courts have original jurisdiction under certain circumstances to do the following:

(3) Original Jurisdiction. Circuit courts may issue writs of mandamus, prohibition,  [*7]  quo warranto, common law certiorari, and habeas corpus, and all writs necessary to the complete exercise of the courts’ jurisdiction.Fla. R. App. P. 9.030(c)(3) (footnote omitted). A writ of prohibition is available only where there is no other “appropriate and adequate legal remedy.” S. Records & Tape Serv. v. Goldman, 502 So. 2d 413, 414 (Fla. 1986) (citing English v. McCrary, 348 So. 2d 293 (Fla. 1977)). “[A] defendant cannot resort to a writ of prohibition where he [or she] has an adequate remedy via appeal.” Sparkman v. McClure, 498 So. 2d 892, 895 (Fla. 1986) (citing State ex rel. Turner v. Earle, 295 So. 2d 609 (Fla. 1974); State ex rel. Schwarz v. Heffernan, 142 Fla. 137, 194 So. 313 (Fla. 1940); Benton v. Circuit Court for Second Judicial Circuit, 382 So. 2d 753 (Fla. 1st DCA 1980)).

Furthermore, notwithstanding that prohibition is generally available only to prevent courts from acting when there is no jurisdiction to act (rather than to prevent an erroneous exercise of jurisdiction), see Goldman, 502 So. 2d at 414 (citing English, 348 So. 2d 293), prohibition is also clearly recognized as the proper avenue for immediate review of whether a motion to disqualify a trial judge has been correctly  [*8]  denied. See Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) (”Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy.”) (citing Brown v. Rowe, 96 Fla. 289, 118 So. 9 (Fla. 1928)); Dep’t of Pub. Safety v. Koonce, 147 Fla. 616, 3 So. 2d 331, 334 (Fla. 1941); State ex rel. Bank of America v. Rowe, 96 Fla. 277, 118 So. 5, 8 (Fla. 1928) (”Prohibition may be an appropriate remedy to prevent judicial action, when the judge is disqualified, as well as when the judge is without jurisdiction in the cause.”).

In the instant case, the petitioners’ decision to petition for writs of prohibition to review the denial of the motions to disqualify was the correct avenue of review for multiple reasons. This Court has recognized that prohibition is a proper remedy to seek review of the denial of a motion to disqualify, and we have implicitly recognized in this context that the petitioners would not have an adequate remedy through direct appeal at the conclusion of the trial. The need for immediate review after a denial of a motion to disqualify arises due to practical considerations. On a motion to disqualify, the same judge who allegedly is biased is the one who rules on the motion. Thus,  [*9]  this ruling should be immediately reviewable because it could be erroneously denied in numerous situations in which a trial by that biased judge should have been avoided altogether. Moreover, the petitioners here did not have an adequate alternative remedy for immediate review with an appeal because they could not seek an interlocutory appeal under these circumstances. Under Florida Rule of Appellate Procedure 9.030, nonfinal orders of the county courts may be reviewed on appeal by a district court of appeal only if the county courts have certified them to be of great public importance. See Fla. R. App. P. 9.030(b)(4)(B). Additionally, the petitioners could not seek an interlocutory appeal in the circuit court. Under Florida Rule of Appellate Procedure 9.140, which governs appeal proceedings in criminal cases, only the state is allowed to appeal to the circuit court the nonfinal orders issued in the county court. See Fla. R. App. P. 9.140(c)(2). Here, it was the defendants who sought review of the trial court’s order of denial.

Petition for Writ of Prohibition Serves Similar Function as a Direct Appeal

Immediate review of a county court ruling in a petition for writ of prohibition to  [*10]  the circuit court serves a function similar to a direct appeal, but is discretionary in nature. Notwithstanding that a petition for writ of prohibition is technically an original proceeding, see Fla. R. App. P. 9.030(b)(3), its function is to seek review of the action by the lower court to ensure that the lower court is not acting without jurisdiction or has not erroneously denied a motion to disqualify. See State ex rel. Associated Utils. Corp. v. Chillingworth, 132 Fla. 587, 181 So. 346, 348 (Fla. 1938) (”Proceedings by mandamus, quo warranto, habeas corpus, certiorari and prohibition are original in their nature, though they may be invoked to perform functions that are appellate in their nature.” (emphasis supplied)). Here, a remedy in an interlocutory appeal was not available, but a remedy in prohibition was available as an alternative for such circumstances even though it is discretionary in nature and not a matter of right.

As the petitioners correctly argue, a petition for writ of prohibition is technically sought to prevent the judge from proceeding further in the action, rather than to correct legal error, due to its status as an original proceeding. See Sparkman, 498 So. 2d at 895. Although  [*11]  this distinction is correct in a formalistic sense, from a functional perspective, this writ provides the opportunity for review of the allegedly erroneous action of the lower court. Thus, although the mechanics may differ, the two avenues of review by direct appeal (either an interlocutory appeal or an appeal at the trial’s conclusion) and discretionary review by petition for writ of prohibition may operate in functionally the same manner if review is accepted.

The fact that a writ of prohibition is a discretionary writ, see Topps v. State, 865 So. 2d 1253, 1257 (Fla. 2004) (”Since the nature of an extraordinary writ is not of absolute right, the granting of such writ lies within the discretion of the court.”), does not render it completely distinguishable from a direct appeal, which is guaranteed as a matter of right in this context. See Amendments to the Fla. Rules of Appellate Procedure, 685 So. 2d 773, 774 (Fla. 1996) (discussing that article V, section 4(b)(1) of the Florida Constitution should be interpreted as providing a constitutional protection of the right to appeal). When a court acts without jurisdiction or the trial judge has erroneously denied a motion to disqualify,  [*12]  the higher court reviews the allegations and has discretion with regard to whether to grant the writ, which necessitates consideration of the substance of the petition. The discretion exercised when a petition for writ of prohibition is denied in this context is analogous to consideration of issues on an appeal before a decision is rendered. Moreover, if the circuit court in the instant case had determined that the motion for disqualification was erroneously denied by the county court, the circuit court would have granted the writ of prohibition in its review capacity. See Bundy, 366 So. 2d at 442 (”Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy.” (emphasis supplied)) (citing Brown, 96 Fla. 289, 118 So. 9). Thus, notwithstanding that a writ of prohibition is a discretionary writ, we conclude that review through a petition for writ of prohibition in this context and review in direct appeal are functionally the same with regard to the next step, if any, in a review process.

No matter what serves as the underlying basis for the petition for writ of prohibition, the court ruling on that petition in this context will undertake a similar  [*13]  analysis to that conducted by a court on direct appeal. This clearly supports that an order on a petition for writ of prohibition is reviewable by certiorari. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 526 n.4, 530 (Fla. 1995) (”There are societal interests in ending litigation within a reasonable length of time and eliminating the amount of judicial labors involved in multiple appeals. . . . As a case travels up the judicial ladder, review should consistently become narrower, not broader.”).

Sheley v. Florida Parole Commission

Additionally, this Court’s decision in Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla. 1998) (”Sheley II“), clearly supports the principle of law that a circuit court’s order on a petition for writ of prohibition in this context is reviewable by certiorari. In that case, the defendant sought a writ of mandamus in the circuit court seeking to challenge an order of the Parole Commission with regard to a presumptive parole release date. See id. at 217. The circuit court denied relief in the petition for writ of mandamus. See id. The defendant sought review of the denial of the petition for writ of mandamus in an appeal to the First District. See  [*14]  id. The First District treated the appeal as a petition for writ of certiorari and denied relief. See id. This Court approved the decision of the First District. See id. at 216. In so holding, this Court quoted with approval the following from the decision of the First District in Sheley v. Florida Parole Commission, 703 So. 2d 1202 (Fla. 1st DCA 1997) (”Sheley I“):

The inmate has already been afforded the right to review the Commission’s action on the merits by filing a petition for writ of mandamus in the circuit court. It would be illogical to provide the inmate a second opportunity for review on the merits by allowing a plenary appeal from the circuit court order. For these reasons, we treat the appeal as a petition for writ of certiorari and we review the case by the limited standard that applies when certiorari is used to review a prior appellate decision.Sheley II, 720 So. 2d at 217 (quoting Sheley I, 703 So. 2d at 1206). Additionally, this Court reasoned:

The district court drew an analogy to two lines of cases: (1) those cases wherein a defendant files a petition for an extraordinary writ in circuit court to review an order of the county court; and (2) those cases governing  [*15]  secondary appellate review of local administrative action. In both lines of cases, the petitioner is unentitled to a second plenary appeal on the merits.

We agree with the district court’s reasoning and find its analogies apt.Sheley II, 720 So. 2d at 217 (emphasis supplied; footnotes omitted).

The significance of this quoted language to the single issue in this case cannot be overstated. In Sheley II, this Court adopted the analogy with regard to the two lines of cases. The first line of cases described by this Court is precisely the fact in the instant case. Thus, contrary to the petitioners’ argument, it is irrelevant that the other facts in Sheley I are somewhat distinguishable from those before us today. In holding that the defendant was not entitled to a second plenary appeal of the administrative action, this Court explicitly concluded that a defendant would not also be entitled to a second plenary appeal under the more general circumstances when a petition for an extraordinary writ (e.g., a petition for writ of prohibition) is filed in circuit court to review an order of the county court. Thus, there is precedent from this Court which clearly supports the principle of law that  [*16]  an order on a petition for writ of prohibition in connection with an issue of recusal is reviewable by certiorari.

Constitutional Provisions and the Florida Rules of Appellate Procedure

The Florida Constitution and the Florida Rules of Appellate Procedure also clearly support the principle that an order on a petition for writ of prohibition is reviewable by certiorari. The petitioners argue that because a petition for writ of prohibition is technically an original proceeding, a circuit court’s order on a petition for writ of prohibition is a final order; thus, it is reviewable by appeal pursuant to article V, section 4(b)(1) of the Florida Constitution, which provides:

(1) District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court.Art. V, § 4(b)(1), Fla. Const. (emphasis supplied). Contrary to the petitioners’ argument, this constitutional provision does not establish that an order on a petition for writ of prohibition is a final order or final judgment reviewable by appeal.  [*17]  Instead, the Florida Rules of Appellate Procedure provide insight into the meaning of this constitutional provision and support the determination that an order on a petition for writ of prohibition is reviewable by certiorari. Florida Rule of Appellate Procedure 9.030 provides:

(b) Jurisdiction of District Courts of Appeal.

(1) Appeal Jurisdiction. District courts of appeal shall review, by appeal

(A) final orders of trial courts, not directly reviewable by the supreme court or a circuit court, including county court final orders declaring invalid a state statute or provision of the state constitution;

(B) non-final orders of circuit courts as prescribed by rule 9.130;

(C) administrative action if provided by general law.

(2) Certiorari Jurisdiction. The certiorari jurisdiction of district courts of appeal may be sought to review

(A) non-final orders of lower tribunals other than as prescribed by rule 9.130;

(B) final orders of circuit courts acting in their review capacity.Fla. R. App. P. 9.030(b)(1)-(2) (footnotes omitted). Rule 9.030(b)(1)(A) is taken directly from article V, section 4(b)(1) of the Florida Constitution. When read in conjunction, the statement that district courts of appeal  [*18]  must review “final orders of trial courts,” Fla. R. App. P. 9.030(b)(1)(A), obviously does not include “final orders of circuit courts acting in their review capacity.” Fla. R. App. P. 9.030(b)(2)(B). In formulating rule 9.030, this Court recognized that these two types of final orders are distinguishable and the latter, when the court is acting in a review capacity, may instead be reviewed by certiorari. Under rule 9.030(b)(1)(A), the “trial courts” language establishes that this mandatory appeal rule only applies to county courts and circuit courts acting in their trial capacity, rather than “circuit courts acting in their review capacity.” Fla. R. App. P. 9.030(b)(2)(B). As previously discussed, although a petition for writ of prohibition may technically be classified as an original action, courts act only in their review capacity in this context in the determination of a petition for writ of prohibition.

An order on a petition for writ of prohibition is clearly reviewable by certiorari. As a general rule, certiorari should not be used as a second appeal:

[I]f the role of certiorari was expanded to review the correctness of the circuit court’s decision, it would amount to a second  [*19]  appeal. If an appellate court gives what amounts to a second appeal, by means of certiorari, it is not complying with the Constitution, but is taking unto itself the circuit courts’ final appellate jurisdiction and depriving litigants of final judgments obtained there.Heggs, 658 So. 2d at 526 n.4. Because review in the nature of a petition for writ of prohibition in this context functions like an appeal, additional review that functioned as a second appeal would be problematic. Thus, the distinguishing features of review under common-law certiorari, in comparison to review by appeal, must be utilized to review an order on a petition for writ of prohibition in this context to ensure there is not another appeal under “the guise of certiorari.” Id. These distinguishing features are:

First, common-law certiorari is available only “where no direct appellate proceedings are provided by law.” Second, common-law certiorari is entirely discretionary with the court, as opposed to appeal which is taken as a matter of right. Third, the scope of review by common-law certiorari is traditionally limited and much narrower than the scope of review on appeal. . . . Fourth, common-law certiorari will  [*20]  only lie to review judicial or quasi-judicial action, never purely legislative action . . . .Id. at 526 n.3 (emphasis supplied; citations omitted) (quoting G-W Dev. Corp. v. Village of N. Palm Beach, 317 So. 2d 828, 830 (Fla. 4th DCA 1975)). With regard to the scope of review, the reviewing court in this context can only grant a petition for writ of certiorari based on a departure from the essential requirements of law. See Combs v. State, 436 So. 2d 93, 94 (Fla. 1983). A departure from the essential requirements of law is not mere legal error, but instead, involves a “gross miscarriage of justice.” Heggs, 658 So. 2d at 527. Due to its discretionary nature, a district court of appeal may refuse to grant certiorari relief even if there is legal error which could be argued to be a departure from the essential requirements of law. See Combs, 436 So. 2d at 96. These standards govern the process of a district court of appeal in certiorari review of an order on a petition for writ of prohibition in this context to ensure that such review will neither function like nor actually be a second appeal.

Contrary to the petitioners’ assertion, review by certiorari under these standards will not violate  [*21]  the petitioners’ (or future parties’) constitutional right to appeal. In its interpretation of article V, section 4(b)(1) of the Florida Constitution, this Court concluded that this provision is a constitutional protection of the right to appeal. See Amendments to the Fla. Rules of Appellate Procedure, 685 So. 2d at 774. As described above, the petitioners were given review, through the circuit court’s consideration of the original petition for writ of prohibition, on the narrow issue of whether the motion to disqualify was improperly denied. Thus, we conclude that the petitioners have been afforded the right of review in accordance with the Florida Constitution. Accordingly, the proper method to review the order on the petition for writ of prohibition in this context is certiorari.

CONCLUSION

For the foregoing reasons, we approve the decision under review and remand for proceedings consistent with this opinion. In so doing, we disapprove the decisions in Burton, Pinfield, and Guzzetta to the extent they are inconsistent with this opinion.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

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CROSLEY A. GREEN, Appellant/Cross-Appellee, vs. STATE OF FLORIDA, Appellee/Cross-Appellant. CROSLEY ALEXANDER GREEN, Petitioner, vs. JAMES R. MCDONOUGH, etc., Respondent.

No. SC05-2265, No. SC06-1533

SUPREME COURT OF FLORIDA

January 31, 2008, Decided

NOTICE:  

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

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court in and for Brevard County, Bruce W. Jacobus, Judge - Case No. 89-4942-CFA And an Original Proceeding — Habeas Corpus.
Green v. State, 2007 Fla. LEXIS 1898 (Fla., Oct. 11, 2007)

COUNSEL:   John W. Jennings, Capital Collateral Regional Counsel, and Mark S. Gruber, Assistant CCR Counsel, Middle Region, Tampa, Florida, for Appellant/Cross-Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, Florida, for Appellee/Cross-Appellee/Respondent.

JUDGES:   LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION  

REVISED OPINION

PER CURIAM.

Crosley Green appeals an order of the circuit court granting in part and denying in part his motion to vacate his first-degree murder conviction and sentence of death. He also petitions this Court for a writ of habeas corpus. n1 The State cross-appeals, challenging the trial court’s order granting Green a new penalty phase. As explained below, we affirm the trial court’s order and deny Green’s petition.

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We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
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I. FACTS AND PROCEDURAL HISTORY

On direct appeal, we summarized the facts of the crime as follows:

Late in the evening of April 3, 1989,  [*2]  Kim Hallock and [Charles] Flynn, whom she had dated, drove to a park in Flynn’s pickup truck. They parked near dunes in a wooded area and smoked marijuana. As they smoked, a sheriff’s car drove by and shined its spotlight, but did not stop at the truck. After the sheriff’s car passed, a man walked in front of the truck and stopped at the driver’s door. He warned Hallock and Flynn to watch out for the police, then walked on.

A few minutes later, Flynn stepped outside the truck to relieve himself. Hallock testified that she soon heard Flynn say nervously: “Hold on. Wait a minute, man. Hold on. Put it down.” She retrieved a gun from the truck’s glove compartment and put it under some jeans on the seat next to her. She testified that when she looked outside the truck, she saw the man she had seen earlier. He was now walking around Flynn and carrying a gun. The man ordered Flynn to the ground, then asked if either of them had any money. Hallock gave him five dollars, but Flynn said he had no money.

The man then tied Flynn’s hands behind his back with shoelaces. While tying Flynn’s hands, the man’s gun went off but did not injure Flynn. The man pulled Flynn off the ground, found a wallet in  [*3]  his pants, and threw it to Hallock, who counted $ 185.

The man ordered Hallock to start the truck and to move to the center seat. He put Flynn in the passenger seat and started driving. He forced Flynn and Hallock to ride with their heads down and held a gun to Hallock’s side. During the ride, Flynn found the gun Hallock had hidden under the jeans. The man stopped the truck at an orange grove and tried to pull Hallock from the truck. Hallock freed herself and ran around the truck, but the man caught her, threw her to the ground, put a gun to her head, and threatened to blow her brains out. Flynn got out of the truck and fired a shot, but missed the man. Hallock jumped into the truck and locked the doors. She testified that she saw the man fire a shot. Flynn yelled for her to escape, and Hallock drove to a friend’s house and called the police.

When police arrived at the orange grove, they found Flynn lying facedown with his hands tied behind his back. Authorities found a loaded .22-caliber revolver nearby. Flynn was alive when police arrived, but he stopped breathing several times and died of a single gunshot wound to the chest before paramedics arrived. Hallock later identified Green  [*4]  as the man she saw in the park.

In sentencing Green to death, the trial judge found four aggravating factors: (1) Green was previously convicted of a violent felony; (2) the capital felony was committed while Green was engaged in kidnapping; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious, and cruel. The judge found no statutory or nonstatutory mitigating factors. He also sentenced Green to four concurrent twenty-year sentences for the robbery and kidnapping convictions. These terms were to be served consecutively to the death sentence.Green v. State, 641 So. 2d 391, 393-94 (Fla. 1994). We affirmed Green’s sentence and conviction on direct appeal. n2

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Green raised nine issues on direct appeal: (1) the trial court erred in admitting evidence of dog scent tracking; (2) the trial court erred in denying Green’s motion to suppress Kim Hallock’s identifications; (3) the trial court erred in denying Green’s motion for the jury to view the murder scene; (4) the trial court erred in instructing the jury on flight; (5) the trial court erred in considering as separate aggravating circumstances that Green committed the murder for pecuniary gain  [*5]  and that Green committed the murder during a kidnapping; (6) the trial court erred in finding that the murder was heinous, atrocious, or cruel; (7) the trial court improperly refused to find mitigating circumstances; (8) the death penalty is disproportionate; and (9) the heinous, atrocious, or cruel aggravator is unconstitutionally vague. Green, 641 So. 2d at 394 n.1. We found no merit in the first five issues. As to the sixth issue, we struck the heinous, atrocious, or cruel aggravator, but found that the error was harmless given the other three aggravating factors. Id. at 396. With regard to the seventh issue, we agreed that, although the sentencing order did not strictly comply with Campbell v. State, 571 So. 2d 415, 420 (Fla. 1990), receded from on other grounds by Trease v. State, 768 So. 2d 1050, 1055 (Fla. 2000), its requirements were met anyway. See Green, 641 So. 2d at 396 n.3. Finally, under the eighth issue, we found that, “in light of other cases, the three remaining valid aggravating circumstances, and no mitigators, . . . Green’s death sentence is proportionate.” Id. at 396.
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Green subsequently filed a motion for postconviction relief pursuant to rule 3.851, Florida Rules of Criminal Procedure  [*6]  (1996), in which he raised several claims and subclaims. n3 The trial court held an evidentiary hearing, and subsequently granted Green a new penalty phase proceeding based on counsel’s failure to investigate Green’s prior New York robbery case.

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Green claimed the following: (1) juror misconduct; (2) unconstitutionality of the rules prohibiting juror interviews; (3) ineffective assistance of counsel; (4) suppression of evidence; (5) presentation of false or misleading testimony; (6) newly discovered evidence negating guilt; (7) various issues relating to Green’s prior New York offense; (8) various issues regarding dog tracking evidence; (9) unconstitutionality of Florida’s application of its death penalty statute; (10) unconstitutionality of penalty phase jury instructions; (11) cruel and unusual punishment; and (12) cumulative error.
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II. GUILT PHASE ISSUES ON APPEAL

Green raises the following six guilt phase issues on appeal: (1) Green’s convictions are constitutionally unreliable as established by newly discovered evidence; (2) Green was denied due process under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), when the State suppressed evidence; (3) trial counsel provided constitutionally ineffective  [*7]  assistance; (4) the trial court erred in denying relief with regard to dog tracking evidence; (5) the rules prohibiting Green’s lawyers from interviewing jurors are unconstitutional; and (6) the trial court erred in summarily denying Green’s claims regarding juror misconduct and counsel’s failure to challenge cross-race identification. We address each in turn below. Because we affirm the trial court’s order granting a new penalty phase based on the issue raised in the State’s cross-appeal regarding Green’s prior New York robbery case, we do not reach the other penalty phase issues provisionally asserted in Green’s postconviction appeal.

A. Newly Discovered Evidence

Green first argues that his convictions are constitutionally unreliable as established by newly discovered evidence. To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an  [*8]  acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (Jones II). Newly discovered evidence satisfies the second prong of this test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla. 1996) (Jones I)). In determining whether the evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones v. State, 591 So. 2d 911, 916 (Fla. 1991). This determination includes

whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.Jones II, 709 So. 2d at 521 (citations omitted).

When the trial court rules on a newly discovered evidence claim after an evidentiary hearing, we review the trial court’s  [*9]  findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence. Melendez v. State, 718 So. 2d 746, 747-48 (Fla. 1998); Blanco v. State, 702 So. 2d 1250, 1251 (Fla. 1997). As with rulings on other postconviction claims, we review the trial court’s application of the law to the facts de novo. Cf. Hendrix v. State, 908 So. 2d 412, 423 (Fla. 2005) (reviewing de novo the trial court’s application of the law to the facts in ruling on a postconviction claim that the government withheld material evidence); Gore v. State, 846 So. 2d 461, 468 (Fla. 2003) (reviewing de novo the application of the law to the facts on a claim of ineffective assistance of trial counsel).

Green argues that his convictions are constitutionally unreliable in light of the subsequent recantations of three of the State’s guilt phase witnesses. Green also argues that the trial court erred by considering new evidence of guilt at the evidentiary hearing, including the testimony of Layman Lane and mitochondrial DNA (mDNA) testing on hair fragments found in the victim’s truck. We address both of these arguments in turn.

(1) New Evidence Negating Guilt

First, Green  [*10]  argues that his convictions are constitutionally unreliable in light of the fact that Sheila Green, Lonnie Hillery, and Jerome Murray, three of the State guilt phase witnesses, have recanted their trial testimony. The trial court made the following factual findings: First, Jerome Murray testified at Green’s trial that, shortly after the murder, Green admitted committing it and said he was going to disappear. At the postconviction evidentiary hearing, the defense introduced three out-of-court statements made by Murray in which he recanted his trial testimony. In these statements, Murray stated that his entire testimony was a lie and that he was under pressure from law enforcement to fabricate. However, at the evidentiary hearing, Murray claimed that he did not remember making these post-trial statements because he was either tired or drunk. When questioned about whether his post-sentencing statements were inconsistent with his trial testimony, Murray exercised his Fifth Amendment privilege against self-incrimination.

Second, Sheila Green is Crosley Green’s sister. At Green’s trial, Sheila testified that the day after the homicide, Green admitted his involvement in the shooting to her.  [*11]  Sheila had been convicted in federal court for drug offenses and testified against Green in return for consideration for a more lenient sentence for herself. At the evidentiary hearing, Sheila testified that her testimony at Green’s trial was untrue and that Green never confessed to murdering Charles Flynn.

Third, Lonnie Hillery is the father of Sheila Green’s child, and was her boyfriend at the time of Green’