Florida Criminal Law Opinions

Courtesy of David Edelstein

Courtesy of David Edelstein

Courtesy of David Edelstein

Courtesy of David Edelstein

Courtesy of David Edelstein

Courtesy of David Edelstein

The trial court denied the special instruction on the basis that there was no evidence justifying it. The judge stated:

Passion is a state of mind which when it is powerfully acted upon and influenced by something external, the emotion must be present in the mind of the defendant as a result of adequate-such adequate and immediate provocation as might obscure the reason or dominate the volition of an ordinarily reasonable person. I find no evidence to support that.

*5 The judge did give the standard jury instruction on excusable homicide, which includes a reference to “heat of passion” in its definition, and the standard jury instruction on premeditation.

“Florida law is clear that a defendant is entitled to have a jury instruction on any valid defense supported by the evidence,” but “a trial judge is not required to give an instruction where there is no nexus between the evidence in the record and the requested instruction.”Mora v. State, 814 So.2d 322, 330 (Fla .2002). Moreover, “[i]n order to be entitled to a special jury instruction, [the defendant] must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.”Stephens v. State, 787 So.2d 747, 756 (Fla.2001) (footnotes omitted).

In this case, no evidence was presented by the defense or the State to support the special heat of passion instruction. Indeed, the only provocation for the shooting that was cited by defense counsel to the trial court was the fact that Heckerman had called 911 and that deputies were on the property. The trial judge essentially found, and we agree, that the presence of deputies on the property was not evidence of “adequate and immediate provocation as might obscure the reason or dominate the volition of an ordinary reasonable person,” as specified in the special requested instruction. Accordingly, we conclude that there was no error in failing to give the special instruction and further find that the standard instructions given by the court adequately advised the jury on the issue of premeditation.

Sufficiency of the Evidence

Wheeler has not challenged the sufficiency of the evidence, but this Court has a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed. Jones v. State, 963 So.2d 180, 184 (Fla.2007). Our complete review of the record demonstrates that the convictions are supported by competent substantial evidence. This case is not circumstantial-the State presented the eyewitness testimony of deputies Crotty and McKane. Deputy Crotty identified Wheeler as the person who was firing a shotgun at the deputies. The circumstances of the protracted gun battle with the deputies also provide competent, substantial evidence of premeditation. Wheeler was required to pump the shotgun each time to chamber a round of ammunition. Wheeler pursued the deputies and engaged in several separate gun battles with them, even after seeking refuge in the woods and then coming back out of the woods to fire his gun. There was ample time for Wheeler to contemplate his actions in the gun battle and to cease firing after fleeing into the woods, but he did not do so. Further, as Wheeler was firing the shotgun at Deputy Crotty in the vicinity of the patrol cars, he told Deputy Crotty, “I’m going to fucking kill you, man.”

*6 The evidence was clearly sufficient in every respect to support the conviction of first-degree premeditated murder of Deputy Koester and conviction of two counts of attempted murder and aggravated battery with a firearm involving deputies Crotty and McKane.

PENALTY PHASE CLAIMS

Victim Impact Evidence

Wheeler’s primary point on appeal relates to the victim impact evidence, claiming that the victim impact evidence became such a feature of the penalty phase that it denied due process, fundamental fairness and a reliable jury recommendation. We first address the issue of preservation of any alleged error.

Before the penalty-phase proceeding commenced, the trial court reserved ruling on Wheeler’s pretrial motion in limine in which he sought to exclude all victim impact evidence and testimony. Just prior to admission of the victim impact testimony in the penalty phase, the trial court reviewed each of the four written, proposed victim impact statements, granted defense counsel’s requests for certain redactions involving three of the statements, and allowed the redacted versions to be read to the jury. The State also presented four exhibits showing a total of fifty-four photographs of the victim and members of his family. The trial court instructed the jury that the victim impact testimony was not to be used for finding aggravation and was not to be weighed as such in their deliberations.

During the entire presentation of victim impact evidence, Wheeler made no specific objections to any portion of the testimony or any particular aspect of the photographic evidence, although Wheeler renewed his general objection to presentation of any victim impact evidence. We conclude that the claim Wheeler now makes that the victim impact evidence was impermissibly made a feature of the penalty phase was not preserved by Wheeler’s general pretrial objections addressed to all victim impact evidence, where he made no specific objections to any of the evidence presented and failed to object below on the grounds argued here. It is well-established that for a claim “to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)). Moreover, in this appeal, Wheeler still fails to identify any specific error in admission of the victim impact testimony or photographs. See Deparvine v. State, 995 So.2d 351, 378 (Fla.2008) (“Initially, we reject this claim [of error in admission of victim impact evidence] because Deparvine … fails to sufficiently identify the error.”)

Nevertheless, we recognize that evidence that places undue focus on victim impact, even if not objected to, can in some cases constitute a due process violation. The United States Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991), held that where state law permits, the Eighth Amendment erects no per se bar to the state presenting evidence about the victim, the impact of the murder on the victim’s family, and argument on these subjects. Id. at 827.However, the Supreme Court also stated: “In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”  Id. at 825 (emphasis added). The analysis to determine if admission of victim impact evidence has violated a defendant’s due process rights in the penalty phase of a capital trial parallels the analysis for fundamental error. See, e.g., F.B., 852 So.2d at 229 (“[A]n error is deemed fundamental ‘when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.’ ”). Fundamental error is also defined as error that “reach[es] down into the validity of the trial itself to the extent that [the advisory verdict] could not have been obtained without the assistance of the error.”Derrick v. State, 983 So.2d 443, 463 (Fla.2008) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). Thus, we must determine if fundamental error or a violation of due process occurred in the admission of the victim impact evidence in this case.

*7 In 1988, prior to Payne, the people of Florida adopted article I, section 16(b) of the Florida Constitution. That constitutional provision protects the right of victims of crimes or their representatives to be heard at all crucial stages of criminal proceedings, “to the extent that these rights do not interfere with the constitutional rights of the accused.”Art. I, § 16(b), Fla. Const. We have cautioned, however, that “the rights provided to victims and victims’ families under article I, section 16(b) are not absolute, as they are subordinate to the rights of an accused when the rights involved are in conflict.”Booker v. State, 773 So.2d 1079, 1095 (Fla.2000).

In addition to the constitutional provision, Florida statutes also allow the admission of victim impact evidence within certain parameters as outlined in Payne.FN5As the Court explained in Sexton v. State, 775 So.2d 923 (Fla.2000):

FN5.Section 921.141(7), Florida Statutes (2006), provided:

VICTIM IMPACT EVIDENCE.-Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection (5), the prosecution may introduce, and subsequently argue, victim impact evidence to the jury. Such evidence shall be designed to demonstrate the victim’s uniqueness as an individual human being and the resultant loss to the community’s members by the victim’s death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as part of victim impact evidence.

On the merits, section 921.141(7), Florida Statutes (1995), allows the State to introduce “victim impact” evidence, which shows “the victim’s uniqueness as an individual human being and the resultant loss to the community’s members by the victim’s death.”Damren v. State, 696 So.2d 709, 712-14 (Fla.1997); see Bonifay v. State, 680 So.2d 413, 419-20 (Fla.1996); Windom v. State, 656 So.2d 432, 438-39 (Fla.1995); see also Payne v. Tennessee, 501 U.S. 808, 821-26, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

Although the United States Supreme Court and this Court have ruled that victim impact testimony is admissible, such testimony has specific limits. Those witnesses providing victim impact testimony are prohibited from giving characterizations and their opinions about the crime.

Id. at 932 (footnote omitted). In our most recent pronouncement on victim impact evidence, we explained that:

While being alert to the possibility of undue focus, this Court has never drawn a bright line holding that a certain number of victim impact witnesses are or are not permissible. In terms of numbers, this Court has affirmed up to four witnesses for one victim and consistently upheld three. Belcher v. State, 961 So.2d 239, 257 (Fla.) (four witnesses), cert. denied,128 S.Ct. 621 (2007); see also Schoenwetter, 931 So.2d at 870 (three witnesses); Huggins v. State, 889 So.2d 743, 765 (Fla.2004) (same).

Deparvine, 995 So.2d at 378. In Deparvine, the evidence of five victim impact witnesses was found admissible. Id. We also found no error in the admission of victim impact testimony of twelve witnesses in Farina v. State, 801 So.2d 44 (Fla.2001).

In this case, the trial court appropriately allowed four victim impact witnesses-Victor Koester, the victim’s uncle; Paula Lynn Cassella, the victim’s sister; Virginia Bevirt, the victim’s first wife and mother of his two biological children; and Ashley Koester, the victim’s current wife and mother of his stepchildren. Their testimony was for the most part confined to written victim impact statements that the trial court reviewed and redacted pursuant to specific objections of defense counsel. The testimony of these four witnesses discussed the uniqueness of Deputy Koester as an individual and explained how his death had caused a loss to both his family members and to the community. Therefore, the nature and extent of this testimony has not been shown to constitute error, fundamental or otherwise, and has not been shown to constitute a due process violation in this case.

*8 Potentially more problematic is the State’s presentation of photographic montages depicting Deputy Koester in various settings in the community and with his family. The State presented fifty-four victim and family photographs mounted on four poster boards showing the victim in different settings such as with family members, holding babies, serving in the National Guard, and coaching. There is nothing in our case law or the victim impact statute that prevents the State from presenting photographs as part of its victim impact evidence and, as with victim impact evidence from witnesses, we have never drawn a bright line as to the number of permissible photographs that the State may present. In this case we conclude that neither fundamental error nor a due process violation has been demonstrated in this case by the number of photographs alone, where Wheeler has not identified any particular photograph or group of photographs that was impermissibly prejudicial so as to render the penalty phase fundamentally unfair.

We do note that the trial judge was clearly concerned with the State’s victim impact evidence, advising the prosecutor:

My preference would be that you offer this evidence at a Spencer hearing as opposed to in front of this jury, should we get that far. I believe that to offer it here today creates an opportunity, a significant opportunity, for error.

I have spent a lot of time yesterday reading the statements from the various family members. I have spent a lot of time reading the statute. I have spent a lot of time reading every case that I could find. And my view of all the various things that I have read strikes me that this particular area would be-statements are a mine field waiting to create potentially some error that we don’t have now.

My opinion with respect to testimony regarding Mr. Koester’s uniqueness and the resulting loss to the community, coupled with my obligation to make sure that the probative value is not outweighed by the prejudicial effect, makes it doubly a matter in my view of much subjectivity. My opinion-you know, I think that everybody could agree on what’s on the fringes. But I think when you get to topics that fall in the center, that reasonable people could disagree. And I just think it’s an area that could create error in this case where, in my view, no significant error exists, if any.

Despite these reservations, the trial court properly overruled the general objection to victim impact evidence because we have repeatedly held that the United States Supreme Court, as well as our state statute, allows its introduction within limits. See, e.g., Floyd v. State, 850 So.2d 383, 407 (Fla.2002) (declining invitation to recede from Windom, reiterating that the statutory procedure for addressing victim impact evidence does not impermissibly affect the weighing of aggravators and mitigators, and rejecting argument that victim impact evidence should be limited to a Spencer hearing); § 921.141(7), Fla. Stat. (2006). In this case, the trial court accommodated every specific objection to victim impact evidence that was voiced by defense counsel. Because Wheeler has identified no reversible error committed by the trial court in admission of the victim impact evidence, we deny relief on this claim.

*9 Although, for the reasons set forth, we do not reverse based on the number of victim impact photographs presented in this case, we nevertheless caution prosecutors to be ever mindful of the limited purpose for which victim impact evidence may be introduced. Prosecutors should make every effort to ensure that the rights of victims and families, who naturally want their loved one to be remembered through testimony and pictures, do not interfere with the right of the defendant to a fair trial. We also remind prosecutors of the admonition in Payne that when presentation of victim impact evidence “is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”501 U.S. at 825. We encourage trial judges to assist in ensuring that the proper balance is struck.

Prosecutorial Argument During the Penalty Phase

Wheeler next contends that the prosecutor repeatedly engaged in improper and prejudicial remarks to the jury during the penalty phase. Wheeler objected to only one of the alleged improper comments, and relies upon his general pretrial motions in limine for preservation of his claims of error for the remaining comments.FN6The general pretrial motion in limine does not constitute a contemporaneous objection to the prosecutor’s arguments, and the record demonstrates that even the one objected-to comment was not adequately preserved. As to the comment for which defense counsel did object, the trial court did not sustain or overrule the objection, but asked the prosecutor to clarify his argument. The prosecutor began by arguing:

FN6.Section 90.104(1), Florida Statutes, was amended in 2003 to make a contemporaneous objection to admission or exclusion of evidence unnecessary in order to preserve the issue for appeal where a prior “definitive ruling” has been obtained. Seech.2003-258, § 1, Laws of Fla. This statute does not apply here because it does not apply to claims of error in prosecutorial argument.

[Prosecutor] And if you just think back to yesterday you can recognize why that’s so. It’s obvious. The choices that Jason Wheeler made had a devastating impact on not just the family of Deputy Koester, but his family as well. If you tried to sit and count the number of people that have been affected by what was done, it numbers in the dozens just with Wayne Koester’s nieces and nephews. There’s six kids and two families each and four of his own. Now, that-

Defense counsel objected and said: “[T]his to me is like an aggravator based on the number of people that are more [affected].” The prosecutor responded:

It is not in any way intended to be argued as an aggravator. It is simply for them to understand that everybody has been affected by this. And my further comment will be, that’s not what they can make their decision on.

The court then said, “Make that clear and limit it as best you can.”The prosecutor then clarified his argument by telling the jury:

But you see, the rules tell you that that’s not what you base your decision on. That’s the whole purpose of the process is for you to try to look objectively at the choices that were made and what is the just consequence of those choices.

No further objection was made after this clarification, and no motion for mistrial was made. Because this objection was not preserved, and no other specific objections were made to any of the other arguments Wheeler cites on appeal, his claims are procedurally barred. Thus, any claim of error must be shown to be fundamental for the appellant to obtain relief. See Derrick, 983 So.2d at 463 (quoting Delva, 575 So.2d at 644-45). With one exception that we discuss below, we conclude that the arguments of the prosecutor constituted proper comment on the evidence and the law.

*10 One unobjected-to argument, however, did exceed the proper scope of closing argument when the prosecutor, quoting writer Joseph Epstein, argued:

“But within all this realm of choicelessness, we do choose how we will live. Either courageously or cowardly, or honorably or dishonorably, with purpose or a drift, we decide what’s important and trivial in life. We decide what makes us significant is either what we do or what we refuse to do.

But no matter how indifferent the entire universe may be to these choices, these choices and decisions are ours to make. We decide. We choose. And as we decide and as we choose, our destinies are formed.”

That’s what I want you to look at as we walk through this case and these facts and these aggravating and mitigating circumstances.

No specific objection was made to this argument, although just before penalty phase closing arguments, Wheeler had advised the trial judge that the prosecutor might attempt to argue that the jury could weigh victim impact evidence against the mitigators. Significantly, the prosecutor actually responded at that time that he did not intend to use victim impact evidence as an aggravator, but he “intended to use the victim impact as a contrast to the defendant’s mitigation of his life and his character.”The trial court was concerned whether such an argument would be proper and warned the prosecutor to couch his discussion of the victim impact evidence very circumspectly to avoid having it diminish defendant’s mitigation.

Under the limited scope of the victim impact statute in Florida, victim impact evidence is not to be used by the jury to compare, contrast or weigh the relative worth of the life of the victim against that of the defendant in deciding whether to recommend the death penalty. To the extent that the prosecutor’s argument urged the jury to compare the worth of the life of the victim against that of Jason Wheeler, the argument is erroneous. However, we conclude that reversal is not mandated because no contemporaneous objection was made, the error has not been shown to have deprived Wheeler of a fair penalty phase, and the error has not been shown to be so inflammatory that the jury’s advisory verdict could not have been obtained without it. See Derrick, 983 So.2d at 463. Nevertheless, we caution the State and its prosecutors to remain mindful of the limited purpose for which victim impact evidence may be introduced and to stay strictly within those parameters.

Florida’s Capital Sentencing Statute and Penalty-Phase Jury Instructions

Wheeler next claims that Florida’s capital sentencing statute and jury instructions are unconstitutional because they establish a presumption that death is the appropriate penalty and shift the burden of persuasion to the defendant. Similar claims have consistently been rejected by this Court. See Lebron v. State, 982 So.2d 649, 666 (Fla.2008) (penalty-phase instructions do not improperly shift burden of proof to the defendant); Barnhill v. State, 971 So.2d 106, 117 (Fla.2007) (Florida’s death penalty statute and jury instructions do not unconstitutionally shift the burden of proof); Rogers v. State, 957 So.2d 538, 555 (Fla.2007) (recognizing that the standard penalty-phase jury instructions do not “impermissibly shift the burden to the defense to prove that death is not the appropriate sentence”); Reynolds v.. State, 934 So.2d 1128, 1151 (Fla.2006) (rejecting claim that capital sentencing statute and instruction unconstitutionally place a higher burden on the defendant to establish that life is the appropriate penalty than is placed on the State to establish that death is appropriate). Because this Court has previously rejected the same challenges to the death penalty statute and jury instructions, Wheeler’s claim for relief on this issue is also denied.

Constitutionality of Florida’s Capital Sentencing Statute under Ring

CONCLUSION

After a thorough review of all the issues raised by Wheeler, and after our own independent review of the sufficiency of the evidence and the proportionality of the sentence, we affirm Wheeler’s convictions for first-degree murder and the sentence of death. We also affirm his convictions for attempted murder and aggravated battery with a firearm and the sentences imposed for those offenses.

It is so ordered.

QUINCE, C.J., PARIENTE, and LEWIS, JJ., and ANSTEAD, Senior Justice, concur.

WELLS, J., concurs in result only with an opinion, in which CANADY and POLSTON, JJ., concur.WELLS, J., concurring in result only.

I concur in the majority’s opinion as to guilt-phase issues.

I concur in the majority’s decision in respect to the penalty phase and affirming the death penalty. I do not join in the majority’s opinion.

I agree that the victim impact evidence did not constitute fundamental error. I do not join in the dicta statement in the majority opinion which states, with no reference to our case law, that “we recognize that evidence that places undue focus on victim impact, even if not objected to, can in some cases constitute a due process violation.”Majority op. at 14-15.

*13 I do not agree with the majority’s conclusion that “one unobjected-to argument, however, did exceed the proper scope of closing argument.”Majority op. at 22. The prosecution as well as defense counsel are to be given latitude in arguing the case to the jury. I do not conclude that the prosecution exceeded that latitude.

CANADY and POLSTON, JJ., concur.

Courtesy of David Edelstein

[e]vidence introduced at Walton’s trial showed that Walton originated the plan to rob the victims on a rainy night, Walton armed the group prior to the [episode], and Walton was the only defendant involved who knew the location of the victims’ house. In the face of this overwhelming evidence, it is clear that the introduction of two statements by a state attorney in a codefendant’s trial would not have been overly persuasive. Certainly, non-introduction of this evidence does not undermine our confidence in the outcome.

Id. (citation omitted). Thus, this Court has already determined that the alleged inconsistent statements are neither persuasive nor do they undermine our confidence in Walton’s convictions and sentences. This claim is therefore procedurally barred because Walton has failed to demonstrate a basis for escaping the one-year time limitation on raising the issue.

Even if this claim did not face a procedural bar, it would still fail because the State advanced a wholly consistent theory of the crime in prosecuting the codefendants. The prosecutorial theory that Walton was the ringleader and that Cooper and Van Royal were the primary shooters is neither a differing nor an irreconcilable rendition of the factual scenario. In contrast, the State in Fotopoulos clearly advanced inconsistent positions, asserting in codefendant Deidre Hunt’s case that she was an independent actor voluntarily participating in the murders, yet presenting the central theory in Fotopoulus’s trial that Hunt was dominated by Fotopoulos. See Fotopoulos, 838 So.2d at 1128;see also Bradshaw, 545 U.S. at 186-89 (where the state advanced the theory that the defendant was the primary shooter but asserted in the codefendant’s hearing that the codefendant was the primary shooter). Unlike the irreconcilably contrasting theories in Fotopoulos and Bradshaw, which each court upheld as permissible, the State here did not alter its theory with regard to the identity of the principal shooters.

In Raleigh v. State, 932 So.2d 1054 (Fla.2006), this Court analyzed a similar claim where the appellant challenged the State’s theory of the principal actor’s identity in a double murder. There the prosecutor asserted that the appellant was the principal actor in the murder of both victims. However, during closing argument in the codefendant’s trial, the prosecutor noted the codefendant had admitted that he killed one of the victims and that the appellant killed the other victim. This Court determined that the due process concerns in Bradshaw were not present because the State had consistently asserted in both trials that Raleigh was a principal actor in the death of one victim and that the statements of the codefendant merely reflected that the codefendant played a greater role in the murder than he initially admitted. “The essence of this argument was that [the codefendant] was no less culpable for the murder of [the victim] than Raleigh.”Raleigh, 932 So.2d at 1066. Similarly, the prosecutor’s argument that Walton was the ringleader and that Cooper and Van Royal were the shooters was directed to the culpability of each defendant. In asserting that Cooper was not under the control and substantial domination of Walton when he shot the victims, the prosecutor sought to establish that Cooper was no less culpable than Walton, who orchestrated the plan that culminated in the triple homicide, and thus Cooper was not entitled to mitigation for allegedly acting under duress.

*5 A comparison of the challenged statements in Cooper’s sentencing hearing with those at Walton’s hearing confirms the cohesion of the State’s theory. At Cooper’s hearing, the State said that Cooper

was ready, posed and willing with his finger on the trigger and he made the decision to pull that trigger and to cock it and to pull the trigger again, and aimed it at a second victim and to cock it again and pull the trigger again and aim it at a third victim and then to reload either the last shot or the fourth shot and to come back in the house and pull the trigger again and then cock it again and eject the shell inside the house.

In Walton’s hearing, the State argued: “J.D. took the handgun, typically he had other people do the dirty work, but unquestionably, he was the ringleader, he was the planner, he was the prime mover among these younger individuals.”(Emphasis supplied.) In direct comparison, these statements show the underlying principle and theme that Walton was the ringleader and that Cooper ultimately pulled the trigger.

As an aside, Walton has claimed that this scenario was a “total fiction.” However, Walton’s own confession, along with the other facts presented during the sentencing hearing, corroborates the State’s theory that Walton organized the criminal episode. Therefore, the State did not take an inconsistent position or “change course” in its theory. Raleigh, 932 So.2d at 1067. In each proceeding resulting from the triple homicide, the State maintained the position that Walton was the ringleader and that Cooper and Van Royal were the triggermen. The State did not advance inconsistent theories implicating Walton’s due process rights. Thus, we affirm the circuit court’s summary denial of this claim because Walton has failed to demonstrate either a new and fundamental change in constitutional law or that the State used inconsistent theories to secure the death penalty against Walton and his codefendants.

B. Any Possible Error in the Alleged Failure to Disclose the Use of a State Agent in the Sentencing Hearing that Resulted in the Death Sentence That Was Later Vacated Did Not Prejudice Walton.

Walton next contends that the State withheld material and exculpatory evidence tending to prove that a witness-who did not testify during either the guilt phase of the trial or the resentencing hearing-was a state agent, in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150, 153-54 (1972). He claims that three affidavits filed in the federal proceedings of codefendant Cooper constitute newly discovered evidence supporting this claim. Despite the fact that the witness did not testify during the second penalty proceeding, Walton asserts that the State’s failure to disclose the informant’s status as a state agent prejudiced him because the resentencing order referenced the informant’s prior testimony. We review de novo the application of the law while giving deference to the trial court on questions of fact. See Way v. State, 760 So.2d 903, 913 (Fla.2000). Under this review, it is clear that Walton is not entitled to relief on this claim because he has failed to demonstrate any prejudice from the alleged errors.

i. Newly Discovered Evidence Claim

*6 Walton contends that these affidavits constitute newly discovered evidence that the State utilized a state agent to secure incriminating evidence against him and that they lend further support to his Brady and Giglio claims. 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 due diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998). 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)).

Under this second prong, Walton has failed to demonstrate that these affidavits constitute evidence of such a nature that it would probably produce an acquittal on retrial. To the extent the affidavits suggest that the informant may have assisted as a state agent, they do not outweigh the strong evidence of Walton’s role in the triple homicide, which this Court has affirmed. See Walton I, 481 So.2d at 1200. At most, the affidavits suggest that the jailhouse informant told some police officers that he was assisting the State and that he was housed in the section of the jail that included informants. These general allegations, which do not specifically link the informant’s comments to Walton’s case or even the witness to the resentencing proceeding, cannot supersede the plethora of evidence supporting Walton’s convictions and sentences.

Even though the informant was not presented as a witness during either the guilt phase of the trial or the resentencing hearing, Walton further asserts that the informant’s testimony nevertheless “contaminated” the resentencing hearing because the resentencing court included small details about the commission of the crime, such as Walton grabbing the victim’s hair, that were presented only in the informant’s prior testimony. Within the context of an ineffective assistance of counsel claim in Walton’s prior appeal, however, this Court rejected the “contamination” argument:

In conjunction with this claim, Walton sought additional public records from the Office of the State Attorney. Walton requested all records, files, documents, notes, pleadings, memoranda, and attorney work product relating to codefendant Cooper’s postconviction proceedings. He also desired access to all records, files, documents, notes, pleadings, memoranda, statements, and transcripts relating to the jailhouse informant where he was either a party or a witness. The circuit court denied the motion for the informant’s records because they were previously requested by defense counsel in 1993 and 1995 and determined to be statutorily exempt from production. With regard to Cooper’s documents, the circuit court found no indication that the information in a collateral, unrelated proceeding had any bearing on Walton’s current motion or that the records were relevant or reasonably calculated to lead to the discovery of admissible evidence in Walton’s postconviction proceeding.

This Court reviews the trial court’s denial of a public records request for abuse of discretion. See Diaz v. State, 945 So.2d 1136, 1149 (Fla.2006).Florida Rule of Criminal Procedure 3.852(i)(2), which limits postproduction requests for additional records, requires production of public records upon a finding of the following:

(A) collateral counsel has made a timely and diligent search of the records repository;

(B) collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository;

(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and

(D) the additional records request is not overly broad or unduly burdensome.

A review of Walton’s February 13, 2006, demand reveals that competent, substantial evidence supported the trial court’s exercise of discretion to deny the requests.

After an in-camera review by the circuit court in 1995, it was determined that the jailhouse informant’s files were statutorily exempt from production under chapter 119, Florida Statutes (1995).See alsoFla. R.Crim. P. 3.852(l)(1) (limiting the scope of production to records that are not privileged or immune from production). Even without these exemptions, Walton’s demand does not demonstrate how the documents would be reasonably calculated to lead to relevant information because the informant, as repeatedly noted, did not testify during Walton’s second sentencing proceeding. Walton also has not shown any change in circumstance from the circuit court’s 1995 ruling.

*9 Lastly, Walton’s demand appears to be an “overly broad or unduly burdensome” fishing expedition seeking any and all records from more than thirty irrelevant, collateral cases unrelated to Walton’s postconviction claim. SeeFla. R.Crim. P. 3.852(i)(2)(D). To delve so deeply into collateral matters, Walton must explain, at a minimum, how that information would lead to evidence related to Walton’s claim. SeeFla. R.Crim. P. 3.852(i)(1)(C), (2)(D). Walton did not demonstrate that discovery of the codefendant’s postconviction documents, the boxes of material relating to the informant in the federal court order, the case files in which the informant was a defendant, and the cases where, “based on the best information that was available, counsel believed  ” that the informant was a state witness, would reasonably lead to evidence that would support his postconviction claim. The informant did not testify during Walton’s resentencing hearing, and this Court does not deem any evidence corroborating the informant’s purported status as a state agent to be material to the sentences imposed on remand. Likewise, the codefendant’s Brady claim in federal court has no bearing on Walton’s present motion. We therefore affirm the circuit court’s order denying the demand for production because the record supports its appropriate exercise of discretion.

C. Lethal Injection Claims.

i. The Lancet Article and Diaz Execution

Next, Walton challenges the constitutionality of Florida’s lethal injection protocol under the Eighth Amendment of the United States Constitution. The issue presented to the trial court in Walton’s postconviction motion was whether the study published in The Lancet, Inadequate Anaesthesia in Lethal Injection for Execution, constituted newly discovered evidence. See Leonidas G. Koniaris et al., Inadequate Anesthesia in Lethal Injection for Execution, 365 Lancet 1412 (2005). In summarily denying this claim, the circuit court ruled that it was bound by our decisions in Diaz v. State, 945 So.2d 1136 (Fla.2006), Rolling v. State, 944 So.2d 176, 179 (Fla.2006), Rutherford v. State, 926 So.2d 1100, 1113 (Fla.2006), and Hill v. State, 921 So.2d 579, 583 (Fla.2006), which held that (1) the Lancet study does not constitute newly discovered evidence; and (2) execution by lethal injection does not constitute cruel and unusual punishment.

On appeal, Walton appears to withdraw from any reliance upon The Lancet study. Instead, Walton now asserts that the circuit court erred in prematurely denying his successive motion before he had the opportunity to file a motion to amend his claim, which he did not intend to file until after the issues surrounding the Diaz execution were resolved. Reviewing the timeline of events, the Diaz execution occurred in early December 2006. In response, Walton moved to continue the case management conference scheduled for late December 2006. The circuit court granted this motion and rescheduled the conference for mid-January 2007. In February 2007, this Court dismissed without prejudice Walton’s petition in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), which would not have prevented him from filing a postconviction motion in the appropriate circuit court.FN6The Governor’s Commission on the Administration of Lethal Injection in Florida issued its report regarding the Diaz execution in March 2007.

FN6. Walton was among a group of death row inmates who filed an emergency all writs petition in Lightbourne, which requested that this Court address whether Florida’s lethal injection protocol violates the Eighth Amendment in the wake of the Diaz execution. See Lightbourne, 969 So.2d at 328-29. Except for petitioner Lightbourne, we dismissed the claims of all the petitioners without prejudice. See Lightbourne v. McCollum, No. SC06-2391 (Fla. order dated Feb. 9, 2007).

*10 Thus, from December 2006, at the earliest, and by March 2007, at the latest, Walton was on notice to amend his motion to include any claims regarding the Diaz execution. Walton did not, however, attempt to supplement his motion based on the Diaz execution and the subsequent remedial measures. In his motion for rehearing, filed in late-March 2007, Walton’s counsel sought for the first time leave to amend his lethal injection claim based on newly discovered evidence premised upon the events surrounding the Diaz execution. In essence, Walton now contends that the trial court erred by not holding the disposition of his successive postconviction motion in abeyance until some unknown time when he was ready to file an amendment to his lethal injection claim.

We review the denial of a motion to amend a postconviction motion for abuse of discretion. See Huff v. State, 762 So.2d 476, 481 (Fla.2000). A review of the rules of procedure does not support Walton’s contention that a circuit court should perpetually hold resolution of a motion in abeyance pending an unfiled amendment to the motion. Moreover, Walton had several months between the Diaz execution and the circuit court’s order denying his motion to submit any amendments. Despite this window of opportunity, Walton did not timely file an amended motion, nor did he request leave to supplement the motion. Cf. Gaskin v. State, 737 So.2d 509, 518 (Fla.1999) (holding that the circuit court erred in failing to consider the merits of new allegations in a timely filed amended postconviction motion), receded from on other grounds by Nelson v. State, 875 So.2d 579, 583 (Fla.2004). Thus, the trial court did not abuse its discretion by failing to consider amendments and allegations that were never filed or raised until the motion for rehearing.

Furthermore, even if we considered the merits, this Court has continually upheld the constitutionality of Florida’s lethal injection protocol since the issuance of Lightbourne.See Tompkins v. State, 994 So.2d 1072, 1082-83 (Fla.2008) (citing Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 33 Fla. L. Weekly S686, S691 (Fla. Sept. 18, 2008); Henyard v. State, 992 So.2d 120, 129 (Fla.2008), cert. denied,129 S.Ct. 28 (2008); Schwab v. State, 995 So.2d 922, 925-33 (Fla.2008), petition for cert. filed,No. 08-5020 (U.S. June 30, 2008); Woodel v. State, 985 So.2d 524, 533-34 (Fla.2008), cert. denied,129 S.Ct. 607 (2008); Lebron v. State, 982 So.2d 649, 666 (Fla.2008); Schwab v. State, 982 So.2d 1158, 1159-60 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326, 350-53 (Fla.2007), cert. denied128 S.Ct. 2485 (2008); Schwab v. State, 969 So.2d 318, 321-25 (Fla.2007), cert. denied,128 S.Ct. 2486 (2008)).

The research study in The Lancet does not constitute newly discovered scientific evidence that Florida’s lethal injection protocol creates a substantial, foreseeable, or unnecessary risk of pain for the condemned. See Rutherford, 926 So.2d at 1113-14;see also Sims v. State, 754 So.2d 657, 668 (Fla.2000). Walton fails to present any additional testimony or evidence regarding Florida’s current lethal injection protocol other than those already rejected by this Court. Since the issuance of our decision in Lightbourne, further developments support our conclusion that Florida’s lethal injection protocol does not constitute cruel and unusual punishment under the Eighth Amendment. As to the first development, Walton does not present any new evidence with regard to the chemicals employed since the United States Supreme Court’s decision in Baze v. Rees, 128 S.Ct. 1520, 1534 (2008), which upheld the constitutionality of the same method of execution used in Florida, consisting of lethal injection through the same three-drug combination under similar protocols.

*11 Moreover, we have rejected contentions that Baze set a different or higher standard for lethal injection claims than Lightbourne. See, e.g., Henyard, [992 So.2d at 129] (rejecting Henyard’s argument that Baze sheds new light on this Court’s decisions because the standard for reviewing Eighth Amendment challenges was changed and noting that “[w]e have previously concluded in Lightbourne and Schwab that the Florida protocols do not violate any of the possible standards, and that holding cannot conflict with the narrow holding in Baze  ”). The second development was the performance of two executions in Florida, those of Mark Dean Schwab and Richard Henyard, with no subsequent allegations of any newly discovered problems with Florida’s lethal injection process, such as the problems giving rise to the investigations following the Diaz execution.

Tompkins, 994 So.2d at 1081-82. Thus, the circuit court did not err in summarily denying relief on this claim.

ii. The ABA Report

Walton has separately asserted that the ABA report entitled Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report, published September 17, 2006, constitutes newly discovered evidence which reveals that the imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment. Just as this Court has previously considered The Lancet report, we have also reviewed the ABA report and concluded that it does not constitute newly discovered evidence because the report is “a compilation of previously available information related to Florida’s death penalty system and consists of legal analysis and recommendations for reform, many of which are directed to the executive and legislative branches.”Rutherford v. State, 940 So.2d 1112, 1117 (Fla.2006); see also Tompkins, 994 So.2d at 1082-83;Power, 992 So.2d at 220-23;Schwab, 969 So.2d at 325-26 (“[T]his Court has not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence.”); Diaz, 945 So.2d at 1136;Rolling, 944 So.2d at 181. Moreover, nothing in the report would cause this Court to recede from its past decisions upholding the facial constitutionality of the death penalty. See Rolling, 944 So.2d at 181 (citing Rutherford, 940 So.2d at 1118).

Though Walton attempts to allege that the report’s conclusions render his individual death sentence unconstitutional, the specific allegations in his motion merely refer to generalities that are noted in the report but do not relate in any specific way to Walton’s death sentence. See Tompkins, 994 So.2d at 1083;Power, 992 So.2d at 222. Walton also fails to assert that had a hearing been granted, he would have presented additional evidence or testimony regarding the lethal injection protocol that would yield a less severe sentence than those already rejected in Tompkins, Power, Diaz, Rolling, and Rutherford.Thus, for the same reasons that we expressed in our previous decisions, we again hold that the ABA report does not constitute newly discovered evidence demonstrating the unconstitutionality of Florida’s capital sentencing mechanisms.

iii. Request for Additional Public Records Relating to Lethal Injection

*12 In his motion for production of public records to support his claim that lethal injection constitutes cruel and unusual punishment, Walton sought “all information that in any way related to lethal injection,” specifically enumerating an additional sixty-one documents or categories of documents relating to execution by lethal injection. Walton’s request was made pursuant to Florida Rule of Criminal Procedure 3.852(i), which limits postproduction requests for additional records. The record conclusively demonstrates that the circuit court did not abuse its discretion in denying this claim because the records requested were neither relevant nor reasonably calculated to lead to the discovery of admissible evidence for this claim. SeeFla. R.Crim. P. 3.852(i)(2)(C) (requiring production o