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

Accordingly, for the reasons set out above, we affirm the trial court’s summary denial of Walton’s successive postconviction motion.

It is so ordered.

WELLS, PARIENTE, LEWIS, and CANADY, JJ., and ANSTEAD, Senior Justice, concur.

QUINCE, C.J., recused.

POLSTON, J., did not participate.

Courtesy of David Edelstein

KENNETH: After he had been shot three times.

STATE: (reading from sworn statement) “So he stuck the knife in his throat and started cutting the throat like that.”

KENNETH: Yes, sir.

STATE: (reading from sworn statement) “Any sounds from Michael Sheridan?”

“What sounds?”

“Like he was trying to swallow.”

Correct?

KENNETH: Yes, sir.

STATE: So Michael Sheridan was still alive at the time your brother was cutting his throat. He was still making noises.

KENNETH: I don’t think he was alive. He didn’t bleed.

STATE: Was he still trying to swallow? That’s what you said.

KENNETH: I said that he made sounds. I don’t know if it was swallowing sounds or what-

STATE: Does a dead man make sounds?

KENNETH: Sure.

POSTCONVICTION COUNSEL: Object, your Honor.

KENNETH: Actually, a dead man does make sounds.

Kenneth testified that his recollection of the events from that night has never wavered. When asked about his prior testimony during the trial-i.e., that Heath stabbed Sheridan in the throat after he was shot in the chest, but before he was shot in the head-Kenneth testified, “Well, the truth is what I said at the trial and what I’m saying today. I spoke the truth at the trial. It appears to me that the statements that I made at the trial have been altered.”With regard to the relationship between Kenneth and Heath, Kenneth testified, “My brother’s the only person I ever feared.”Kenneth also testified that when he was younger, Heath abused him both physically and sexually. Finally, Kenneth admitted that his mother wanted him (Kenneth) to try to save Heath’s life.

During the evidentiary hearing, Heath also called Dr. Darren Rothschild, a physician and psychiatrist who conducted a psychological evaluation of Heath; Heath’s parents, Vivian and William; and Sheila Short, who worked as a correctional officer during Heath’s trial. The State called Dr. Harry Krop, who evaluated Heath during his criminal trial, and one of Heath’s trial attorneys. After the evidentiary hearing, the postconviction court issued an order that denied the remainder of the claims raised by Heath in his amended rule 3.851 motion.

II. ANALYSIS

Newly Discovered Evidence-Recanted Testimony

Heath first contends that the postconviction court should have granted a new trial based upon the newly discovered evidence of Kenneth Heath’s recanted testimony. This Court has addressed claims of newly discovered evidence and stated:

[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 acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998)(Jones II ).[FN6] 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

FN6. Where the newly discovered evidence is relevant to the penalty phase, the evidence must be of such a nature that it would probably produce a life sentence recommendation. See Rutherford v. State, 926 So.2d 1100, 1108 (Fla.2006).

*5 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 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).

Green v. State, 975 So.2d 1090, 1099-1100 (Fla.2008). This Court has noted that recanted testimony is “exceedingly unreliable,” and if a trial court is not satisfied that the recanted testimony is true, it has a duty to deny the defendant a new trial. Consalvo v. State, 937 So.2d 555, 561 (Fla.2006) (quoting Armstrong v. State, 642 So.2d 730, 735 (Fla.1994)). This Court is highly deferential with regard to a trial court’s determination concerning the credibility of a recantation and will affirm such a determination if it is supported by competent, substantial evidence. See Archer v. State, 934 So.2d 1187, 1196 (Fla.2006).

In the instant case, the postconviction court, in a well-written denial order, concluded that Kenneth’s recanted testimony was unreliable for four reasons:

First, Kenneth Heath’s testimony is inconsistent with the medical examiner’s trial testimony that the cause of death was gunshot and a sharp force injury to the neck.

Second, Kenneth Heath’s testimony is internally inconsistent. For instance, while Kenneth Heath claimed at the evidentiary hearing that the victim was dead at the time the defendant cut and stabbed at the victim’s throat, Kenneth Heath did not recant his previous testimony that Michael Sheridan was making noises at the time Heath tried to cut this throat. While in the previous testimony at trial, Kenneth Heath described the sounds as “like he was trying to swallow,” Kenneth Heath testified at the evidentiary hearing that he did not know if the sounds Mr. Sheridan was making were “swallowing sounds, or what.” Nevertheless, according to Kenneth Heath, Michael Sheridan was still making sounds at the time the defendant stabbed him in the throat. This testimony directly contradicts his claim that Michael Sheridan was already dead when the defendant stabbed and sawed at his throat with a knife.

Third, Kenneth Heath revealed his motivation for testifying for his brother during the collateral proceedings. When asked whether his mother wanted him to try to save Heath’s life, he said, yes that “she doesn’t want to see Ronnie die.”Kenneth Heath had a motive to alter his trial testimony and this court believes it is appropriate to consider that motive as one factor in determining whether Kenneth Heath’s “recanted” testimony as to the order of wounds is credible.

*6 Finally, Kenneth’s Heath’s demeanor on the witness stand and explanation for his changed testimony [i.e., that someone altered the court documents] belies any notion that his testimony as to the order of wounds is credible.

As reflected in the procedural history, each of the postconviction court’s findings is supported by the record. Further, it is indubitably more logical to assume that Kenneth changed his testimony based upon a request from his distressed mother than it is to claim that all court documents related to Heath’s trial had somehow been altered. We conclude that that the trial court’s finding with regard to the credibility of Kenneth’s recantation is supported by competent, substantial evidence, and we affirm this determination. See Archer, 934 So.2d at 1196.

The postconviction court further concluded that even if Kenneth’s testimony was credible, it was not of such nature that it would probably produce an acquittal. We agree. Regardless of whether Heath stabbed Sheridan in the throat while he was still alive or only after he was dead, Heath could still be convicted as a principal of either premeditated murder or first-degree felony murder. Section 777.011, Florida Statutes (1989), discusses the concept of a first-degree principal to a crime:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such….

(Emphasis supplied.) See also Ferrell v. State, 686 So.2d 1324, 1329 (Fla.1996) (affirming first-degree murder conviction and death sentence where the defendant played an integral role in the crimes and in luring the victim to his death even though defendant did not pull the trigger).

During the evidentiary hearing, Kenneth testified that while he and Heath were still at the Purple Porpoise, they discussed killing Sheridan after the robbery so there would be no witnesses. Thus, the brothers were contemplating murder even before they left the bar, and the murder of Sheridan was premeditated. See Perry v. State, 801 So.2d 78, 84 (Fla.2001) (“ ‘Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.’ This purpose to kill must exist for such a time before the homicide ‘to permit reflection as to the nature of the act to be committed and the probable result of that act.’ “ (quoting Green v. State, 715 So.2d 940, 943-44 (Fla.1998))). Further, the death of Sheridan occurred during the course of an armed robbery, thereby rendering the crime felony murder. See§ 782.04(1)(a), Fla. Stat. (1989).

The record here demonstrates that Heath spearheaded the events that led to the murder of Sheridan. While at the Purple Porpoise, Heath suggested that he and Kenneth rob Sheridan. Once they were at the remote site, Heath told Kenneth to retrieve a gun from the vehicle. Once Kenneth shot Sheridan in the chest, Heath removed Sheridan’s jewelry, wallet, and watch. When Sheridan failed to respond to inquiries by Heath, he kicked Sheridan. Heath then urged Kenneth to shoot Sheridan to make sure he was dead. After Kenneth shot Sheridan in the head, Heath urged, “Shoot him again, shoot him again.”After Sheridan was dead, Heath and Kenneth moved the body further into the woods so that it could not be discovered. Heath unquestionably aided, abetted, and procured the murder of Sheridan. We conclude that even if Heath received a new trial, Kenneth’s recanted testimony is not of such nature that it would probably produce an acquittal of Heath or even a conviction on a lesser charge.

*7 We further conclude that Kenneth’s testimony is not of such a nature that it would probably produce a life sentence recommendation. The two aggravators found by the trial court in the sentencing order were (1) Heath had been convicted of a prior violent felony (second-degree murder), and (2) the murder was committed during the course of an armed robbery. See Heath, 648 So.2d at 663. With regard to Heath’s prior murder conviction, Detective Gerald Parker testified during the trial about the injuries sustained by the victim, Michael Lee Green. Green’s body was found approximately 250 feet from a severely burned vehicle. Green had sustained twenty-three stab wounds and his skull was crushed. The apparent weapon used to inflict the damage to Green’s skull was a burned tree stump which was covered with dried blood and matted hair.

The sworn statement of Heath with regard to the murder of Green was read to the jury. In that statement, Heath testified that he stabbed Green because Green made unwelcome sexual advances toward him. When Green asked for help after the stabbing, Heath told him to get in his (Green’s) car and Heath would drive him to the hospital. However, Heath instead drove the car around and eventually returned to the site where the stabbing occurred. Heath then set the car on fire while Green was inside and leaned on the door to prevent Green from escaping. However, Green did manage to exit from the other side of the vehicle. While Green sat on the ground, watching his car burn, Heath started kicking him. The two struggled, and Heath proceeded to stab Green in the chest and in the back. When Green grasped Heath’s leg, Heath grabbed the stump and struck Green with it three times. Heath then dragged Green’s body into the bushes.

Kenneth’s recanted testimony does not disprove either of the aggravators found by the trial court in its sentencing order. Indeed, as noted in the order denying postconviction relief, the recanted testimony actually establishes two additional statutory aggravating circumstances: the murder was committed to eliminate a witness and was cold, calculated, and premeditated. Given the disturbing facts of the Green murder, which was committed by Heath when he was sixteen years old, and the additional evidence that (1) Heath and Kenneth discussed killing Sheridan even before they left the Purple Porpoise, and (2) Heath appeared to be “in ecstasy” when he sawed at the throat of Sheridan’s dead body, we conclude that Kenneth’s recanted testimony is not of such a nature that it would probably produce a life-sentence recommendation for Heath.

Accordingly, we affirm the trial court’s denial of this claim.

Ineffective Assistance-Voluntary Intoxication Defense

Heath next claims ineffective assistance of counsel during the guilt phase of his trial due to the failure to investigate and consider a defense of voluntary intoxication. After the decision in Strickland v. Washington, 466 U.S. 668 (1984), was issued by the United States Supreme Court, this Court explained that to establish an ineffective assistance of counsel claim, two requirements must be satisfied:

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Both prongs of the Strickland test present mixed questions of law and fact, and, therefore, this Court employs a mixed standard of review. We defer to the circuit court’s factual findings that are supported by competent, substantial evidence, but review the legal conclusions of the circuit court de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

There is a strong presumption that the performance of trial counsel was not ineffective. See Strickland, 466 U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”Id. at 689.The defendant bears the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ “  Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). We have held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”  Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).

We conclude that Heath has failed to demonstrate ineffective assistance on this claim. During the evidentiary hearing, trial counsel testified that he and Heath met numerous times when formulating his defense. His attorney testified that they specifically discussed a voluntary intoxication defense. Counsel stated that he felt the alibi defense was much stronger than an intoxication defense for two reasons. First, Heath never once acknowledged to counsel that he was present at the crime scene. Instead, Heath consistently insisted that he was not culpable because he was not there. Moreover, there were witnesses whose testimony supported this defense. During trial, one inmate testified that Kenneth informed him that he (Kenneth) had killed Sheridan, and Heath was not present. A second inmate testified that Kenneth stated he shot Sheridan a couple of times and then cut his throat because “he pissed me off, he wouldn’t die.”Finally, a third inmate testified that when Kenneth returned from a meeting with his lawyer, he was very angry because he said that Heath would not lie for him.

*9 Second, counsel testified that he did not believe an intoxication defense was viable because “it’s a very difficult defense for a jury to accept, particularly in serious-when serious criminal activity is alleged…. It’s just been my experience that people do not accept someone not taking responsibility due to voluntary intoxication.”The attorney also explained that he does not believe in presenting multiple inconsistent defenses because he feels it harms the credibility of the defense team: “You can’t take one position and then say, well, if you don’t believe that, here’s my second argument. It just does not work. You lose credibility. And in my experience, every jury trial is a battle, at least in part, for credibility.”Finally, counsel testified that he did not feel an intoxication defense was viable because evidence reflected that, around the time of the murder, Heath and Kenneth were making decisions and driving an automobile.FN7

FN7. Dr. Krop similarly did not believe that Heath’s alcohol and drug use on the night of the murder rose to the level for a defense of intoxication to have been viable:

I can say my opinion was that it would not have, given Mr. Heath’s very explicit, detailed account as to what happened. He-

Again, I’m not talking about the veracity, necessarily, of what he told me, but he was able to give me specific directions and which way-which way someone turned and-just a very detailed account as to the events in question. And I did not feel that he was that significantly intoxicated.

Based on these two factors, trial counsel chose to exclusively pursue an alibi defense and contend that Kenneth was implicating Heath solely to obtain the benefit of a plea bargain that spared him from the death penalty. A review of the closing statements during trial reflects this defense strategy:

You know, one thing that [Kenneth] said, too, sums up the whole case. If he would have gotten on that stand and told you, “Ronnie wasn’t there,” he knew he would face the possibility of the death penalty then, if he said that. So could he [say] it-would he say it? Could this thief, liar, and murderer say that? He’s doing it to save himself.

Before there was any plea-deal, what did he say? He told the police, “Ronnie wasn’t there.” He told Wilbur Johnson, “Ronnie was there at the bar; he didn’t go with me; I was alone when I committed the crime.”

And what changed? The plea-deal? And the story changed. Just enough to shift some blame: “Ronnie told me to do it. Ronnie told me to do it.”

….

So can you be so sure of Kenny’s testimony to bet a human life on it? Did he not have the greatest reason to lie? Self-preservation? Self-preservation-just shift the blame a little bit; he didn’t like Ronnie anyway. That’s reasonable doubt.

No evidence, not one bit of evidence given to you supports Kenny’s story. Not one. There is no physical evidence. None.

Trial counsel testified during the evidentiary hearing that Heath agreed with a defense that he was not present during the murder, that Kenneth only told him about the killing after it occurred, and that Kenneth was lying because he had arranged a plea bargain with the State.

In light of the evidence offered during the evidentiary hearing, we conclude that trial counsel’s performance was not deficient for the failure to present an intoxication defense. Heath presented no evidence during the evidentiary hearing to negate trial counsel’s testimony that a voluntary intoxication defense was considered, but ultimately rejected, or to dispute that Heath agreed with his attorney’s decision to pursue the alibi defense. Since Heath never admitted being at the crime scene, it would have been inconsistent for trial counsel to argue that he was present and assisted in the murder of Sheridan, but was too intoxicated to know what he was doing. Further, the decision to not present inconsistent defenses for fear of harming credibility with the jury was a matter of trial strategy. See Remeta v. Dugger, 622 So.2d 452, 455 (Fla.1993) (trial counsel not ineffective for making a tactical decision not to present a voluntary intoxication defense where the theory of the defense was that an accomplice was “the primary perpetrator and trigger man in the killing [and a]n intoxication defense would be inconsistent with Remeta’s contention that he did not commit the crime”)(quoting trial court’s order)). Moreover, witnesses were available who could (and did) testify in favor of Heath’s alibi defense. Cf. id. at 455 (“The decision not to present a voluntary intoxication defense was a tactical one based on what Remeta’s counsel felt the facts of the case supported.”). The fact that this defense strategy was ultimately unsuccessful with the jury does not render counsel’s performance deficient. See Johnson v. State, 769 So.2d 990, 1001 (Fla.2000) (“Simply because the … defense did not work, it does not mean that the theory of the defense was flawed.”(quoting trial court’s order)).

*10 In light of the foregoing, we affirm the holding of the postconviction court that trial counsel was not ineffective for failing to present a voluntary intoxication defense.

Ineffective Assistance-Mitigation

Heath next asserts that trial counsel was ineffective during the penalty phase for the failure to investigate and present a number of mitigating circumstances.FN8We address each alleged basis for mitigation separately.

FN8. We have considered Heath’s assertion that trial counsel improperly relied upon residual doubt during the penalty phase and reject this claim without further discussion. Further, we conclude that Heath has waived his cumulative-error claim because his brief includes no argument whatsoever and instead consists of a one-sentence heading in his brief. Vague and conclusory allegations on appeal are insufficient to warrant relief. See Doorbal v. State, 983 So.2d 464, 482 (Fla.2008).

Antisocial Personality Disorder-During the evidentiary hearing, Dr. Rothschild testified that Heath satisfied the criteria for a diagnosis of antisocial personality disorder (APD). Dr. Rothschild testified that APD is characterized by a pervasive pattern of behavior that involves disregard for others and the law, and the pattern must have commenced prior to the age of fifteen. According to Dr. Rothschild, when the pattern emerges before the age of fifteen it is termed a conduct disorder, which is characterized by aggression, property destruction, deceitfulness, theft, and serious rule violations. Dr. Rothschild testified that Heath met the criteria for conduct disorder because he had been physically cruel to others, he had broken into homes on a number of occasions and lied to cover it up, and he had ignited multiple fires. Dr. Rothschild testified that a person with APD can control his or her behavior, but chooses not to, and disregards the consequences of his or her actions.

Dr. Krop testified that when he evaluated Heath during trial preparation, he too reached a diagnosis of APD. Dr. Krop explained his view with regard to offering testimony that Heath met the criteria for an APD diagnosis:

[A]lthough I could try and soften that to some degree by saying things like a person’s not born with [APD], its traits that are resultant to the environment that he is brought up in, my experience has been in talking to jurors after cases that [APD is] essentially viewed in a very negative manner.

….

So depending on what I was asked upon cross-examination, certainly I felt that I might present Mr. Heath in a negative manner.

Krop eventually wrote a letter to counsel that memorialized their collective decision with regard to his testimony: “As a result of our mutual concerns that Mr. Heath’s psychological profile might be damaging to his case, you have agreed that I not testify during his sentencing.”During the evidentiary hearing, trial counsel recalled that both defense counsel and Dr. Krop agreed that he should not testify during the penalty phase.

The record reflects that trial counsel was aware of the APD diagnosis but chose not to present this evidence to the jury. This was a reasonable strategic decision based upon a belief that such evidence would harm rather than help Heath’s penalty phase presentation. See Asay v. State, 769 So.2d 974, 985 (Fla.2000) (“[I]n those cases where counsel did conduct a reasonable investigation of mental health mitigation prior to trial and then made a strategic decision not to present this information, we have affirmed the trial court’s findings that counsel’s performance was not deficient.”); Freeman v. State, 858 So.2d 319, 327 (Fla.2003) (concluding that APD is “a trait most jurors tend to look disfavorably upon”). We conclude that the decision of trial counsel not to introduce Heath’s APD diagnosis into evidence during the penalty phase did not constitute deficient performance. Accordingly, Heath’s allegation of ineffectiveness fails on this basis.

*11 Alcohol Abuse-Contrary to Heath’s assertion, Dr. Rothschild did not provide a substance-abuse diagnosis. Instead, Rothschild testified that Heath had a history of substance abuse, but a diagnosis would be difficult because of his lengthy incarceration for many years immediately prior to this crime. Dr. Rothschild also stated that he believed Heath had minimized his reported alcohol use. Dr. Rothschild ultimately concluded that Heath did not have diminished capacity to appreciate the criminality of his conduct at the time of the murder. However, he qualified this statement, opining that the mitigator was not applicable according to the account of the crime that Heath provided to him.FN9During the evidentiary hearing, Dr. Krop stated that he and defense counsel had discussed the fact that Heath had been drinking on the night of the murder and that Heath’s judgment may have been compromised. However, Krop was uncertain if Heath had a substance-abuse problem that rose to the level of a clinical diagnosis.

FN9. Heath told Rothschild that he had “passed out” in the back seat of the car and, when he awoke, Kenneth was pointing the gun at Sheridan. He exited the car in an attempt to defuse the situation but Sheridan lunged at Kenneth, and Kenneth shot him. According to Rothschild, Heath stated that Kenneth had told him to take Sheridan’s wallet and to cut his throat, apparently because Kenneth wanted to ensure that Heath was somehow involved in the murder.

We conclude that no deficiency in representation occurred on this asserted basis. None of the experts diagnosed Heath as suffering from a substance abuse disorder because, of significant note, Heath had been incarcerated for the murder of Michael Green from the age of sixteen for a period of twelve years and was only released from prison a matter of months before the murder occurred in this case. Nonetheless, during the penalty phase, trial counsel offered evidence of Heath’s substance use both on the night of the murder and prior to his first incarceration. During the penalty phase, Heath’s parents testified that Heath used drugs on at least one occasion prior to his arrest for the murder of Green.

Additionally, during closing statements, trial counsel specifically asserted in mitigation that Heath was highly intoxicated on that night:

“Substantial impairment of reasoning abilities due to use of alcohol or drugs may constitute commission of a crime under the influence of extreme mental or emotional disturbance.”

….

And marijuana-Jennifer Berquist … says “Well, they were going in and out [of the Purple Porpoise] all night, smoking marijuana; their eyes were red and you could tell they were not so good.”And apparently they were smoking marijuana in the car on the way out to the crime scene.

Substantial impairment? Decide for yourself … whether that constitutes substantial impairment due to alcohol or drugs.

Thus, trial counsel clearly presented Heath’s drug and alcohol use to the jury. Moreover, the trial court found in mitigation that Heath was under an extreme emotional or mental disturbance at the time of the crime due to the use of alcohol and marijuana, but gave the mitigator little weight because there did not appear to be a nexus between the consumption and the crime:

*12 From the description of the criminal activities, the Court can assume that Ronald Heath may have been influenced by alcohol or marijuana, but the consumption of alcohol and marijuana does not automatically lead to violence. Indeed, there is no evidence that alcohol or marijuana had any particular effect on the mental or emotional facilities of Ronald Heath, and the similarities between the killing of Michael Sheridan and the killing of Michael Green lead the Court to believe that Ronald Heath’s propensity to violence was not substantially enhanced by his consumption of alcohol or marijuana. The Court gave this mitigating circumstance weight but not great weight.

Heath has failed to demonstrate any deficiency by trial counsel on this basis. Counsel presented Heath’s drug and alcohol use during the penalty phase and was successful in establishing the “extreme emotional distress” mitigating circumstance based upon this use.

Physical Abuse-As with the antisocial-personality mitigating circumstance, Heath’s trial attorneys were aware that Heath’s father had disciplined Heath with corporal punishment. However, during the evidentiary hearing, trial counsel testified that Heath did not want any evidence to be presented during the penalty phase with regard to his childhood, his education, or his family relationships. We have held that counsel is not ineffective for complying with the requests of the defendant. See Cummings-El v. State, 863 So.2d 246, 266 (Fla.2003); see also Grim v. State, 971 So.2d 85, 97 (Fla.2007) (counsel not ineffective for failing to argue for lesser-included offenses where the defendant instructed counsel not to do so). Counsel testified that the strategy during the penalty phase was to present Heath’s parents in a positive light that would reflect well on Heath. Indeed, during the trial, both parents testified that when Heath started to get into trouble (e.g., stealing, skipping school), they obtained the assistance of a psychiatrist based on a concern for his actions. Further, William Heath testified that when Heath went to prison for the murder of Green, he attempted to secure psychological assistance for his son. William also testified that while Heath was incarcerated in Arcadia, Florida, at least once a month, the parents would drive seven hours to visit him.

Thus, during the penalty phase, the Heaths were portrayed as concerned and loving parents who sought help for their son on more than one occasion for the psychological issues he faced. It would have been inconsistent for defense counsel to then undermine the credibility of those parents by introducing evidence that Heath’s father used corporal punishment. Accordingly, even if Heath had permitted counsel to introduce evidence of corporal punishment, the decision not to introduce this evidence would constitute a reasonable trial strategy, and Heath has failed to demonstrate that his counsel was deficient during the penalty phase. See Gore v. State, 964 So.2d 1257, 1269 (Fla.2007) (“[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”(quoting Occhicone, 768 So.2d at 1048)).

*13 Substantial Domination-This Court has held that “counsel cannot be deemed deficient for failing to investigate or present mitigation evidence unless the defendant establishes that mitigation exists.”Holland v. State, 916 So.2d 750, 757 (Fla.2005) (citing Gore v. State, 846 So.2d 461, 469-70 (Fla.2003)). Heath failed to offer any evidence during the evidentiary hearing to demonstrate that Kenneth dominated Heath. Heath argues that Rothschild was of the opinion that, based on the family background and the relationship between Heath and Kenneth, it is unlikely that Kenneth acted pursuant to the direction of Heath. However, Rothschild actually testified that he could not formulate an opinion with regard to whether one brother dominated the other because of the discrepancies in their respective versions of the events on the night of the murder. Instead, Rothschild testified that Heath’s parents gave no indication that Kenneth dominated Heath.

During cross-examination, Rothschild testified that he did not reach a conclusion that Kenneth controlled Heath at any time before the murder, or that Heath was a man who was easily led by others. Vivian Heath could not say whether one brother dominated over the other. William Heath testified that he never saw any evidence that Kenneth dominated Heath. Corrections officer Sheila Short said that the brothers were not incarcerated together, so she never had an opportunity to see if one brother dominated the other, if one was subservient to the other, or if Kenneth feared Heath.FN10Finally, trial counsel testified that there was no evidence that Kenneth dominated Heath, but evidence existed that Heath dominated Kenneth:

FN10. Short testified with regard to one incident where she heard Kenneth say while in the jail, “Ha, ha, I fixed his ass this time, didn’t I.” When Short asked about whom he was speaking, Kenneth said “My brother,” and he did not behave as if he was afraid of Heath. However, during cross-examination, Short admitted that she was unsure of the context in which Kenneth made the statement.

Ronnie [Heath] was older than Kenny. He [Heath] was physically larger. He [Heath] appeared to be mentally quicker, more secure.

Based upon my interactions with Ronnie [Heath], my interactions with Kenny, the way they both presented themselves, and then Kenny recounting some abuse that he claimed, there wasn’t evidence [that Kenneth dominated Heath].

Given the lack of evidence offered during the evidentiary hearing that Kenneth dominated Heath, the fact that Heath physically and sexually abused Kenneth as a child, and Kenneth’s testimony during the evidentiary hearing that “[m]y brother’s the only person I ever feared,” trial counsel was not ineffective for failing to raise as a mitigating circumstance that Kenneth exercised substantial domination over Heath. See Holland, 916 So.2d at 757.

Unconstitutional “Doubler”-Under this claim, Heath contends that the “committed in the course of a felony” aggravator acts as an unconstitutional “doubler”-i.e., the same set of facts that support the felony-murder conviction also support application of this aggravating circumstance. This Court has repeatedly rejected claims that the “committed in the course of a felony” aggravating circumstance constitutes an unconstitutional automatic aggravator (or a “doubler”).See Owen v. State, 862 So.2d 687, 704 (Fla.2003) (citing Johnson v. Moore, 837 So.2d 343, 348 (Fla.2002); Blanco v. State, 706 So.2d 7, 11 (Fla.1997)).FN11 Trial counsel is not ineffective for failing to raise a meritless challenge, see Vining v. State, 827 So.2d 201, 213 (Fla.2002), and Heath is not entitled to relief on this claim.

FN11.See also Pooler v. State, 980 So.2d 460, 470 (Fla.) (“[C]laims that could have been raised on direct appeal cannot be relitigated under the guise of ineffective assistance of counsel.”(citing Freeman v. State, 761 So.2d 1055, 1067 (Fla.2000))), cert. denied,129 S.Ct. 255 (2008).

*14 Cause of Death-As previously noted, “counsel cannot be deemed deficient for failing to investigate or present mitigation evidence unless the defendant establishes that mitigation exists.”Holland, 916 So.2d at 757. During the evidentiary hearing, trial counsel testified that the first time he received evidence that Heath stabbed Sheridan in the throat postmortem was in a affidavit signed by Kenneth Heath during February 2005, more than fourteen years after Heath’s trial occurred. According to counsel, Kenneth never reported this fact in any of the interviews that he conducted with Kenneth during Heath’s trial. Since Heath offered no evidence during the evidentiary hearing to demonstrate that this evidence was available at the time of Heath’s trial-other than Kenneth’s dubious assertion that his version of the murder has always been the same, but someone has altered the trial court records-Heath cannot demonstrate that his counsel was ineffective for failing to present it.

Sexual Assaults in Prison-Both Dr. Krop and trial counsel testified that they were aware Heath had been the victim of sexual assaults while in prison. His trial attorney testified that he and cocounsel considered offering this evidence during the penalty phase in mitigation; however, Heath did not wish for this evidence to be presented. Heath failed to offer any testimony or evidence during the evidentiary hearing to repudiate the attorney’s testimony that Heath did not want trial counsel to present evidence of sexual abuse. Counsel is not ineffective for complying with the requests of the defendant. See Grim, 971 So.2d at 97;Cummings-El, 863 So.2d at 266. Accordingly, Heath has failed to demonstrate that he is entitled to relief on this claim.

Miscellaneous claims-The remaining three mitigating circumstances that Heath claims counsel should have offered during the penalty phase are: (1) Heath was emotionally abused and neglected as a child; (2) Heath was a slow learner; and (3) Heath was suffering from extreme emotional distress at the time of the murder due to a breakup with his girlfriend, Penny Powell. However, during the evidentiary hearing, Heath failed to offer any solid evidence to support any of these contentions. Neither Dr. Rothschild nor Dr. Krop testified that Heath suffered from emotional abuse or neglect during his youth. Neither of Heath’s parents testified that Heath was emotionally abused or deprived. Instead, Heath’s father testified that when the school district planned to bus Heath to a school across town, the parents placed him in a private school so that Heath would not arrive home late in the afternoon or be forced to leave for school before daylight. Heath’s mother testified that the family was “constantly doing family things. We had a boat and … we would go fishing and haul our dog along, and it was just normal.”

Similarly, there was no evidence offered to demonstrate that Heath was a slow learner. Instead, Dr. Krop testified that Heath’s prior IQ testing placed him in the bright/normal range. Further, all of Heath’s neurological screening tests were within the normal limits and there was no evidence that Heath had suffered a head injury. William Heath testified that prior to the sixth grade, Heath was a good student and “[u]p till about that time he was as close to a perfect child as you could want.”Vivian Heath testified that he “was actually an exemplary student up until the sixth grade, and that’s when things started to change with him.”

*15 Lastly, Dr. Krop testified that although Heath was upset about the breakup with Powell, he did not believe that it contributed to the murder. Dr. Krop testified that in his opinion, Heath was not under the influence of an extreme mental or emotional disturbance on the night of the murder. Moreover, trial counsel testified during the evidentiary hearing that when Heath discussed the breakup with Powell, he did not portray it as an extreme event. Further, counsel questioned the seriousness and permanency of the breakup because Powell was very helpful in Heath’s defense and was willing to come to Florida to testify on his behalf.

Heath failed to offer any evidence during the evidentiary hearing to establish the existence of these potential mitigating circumstances. We conclude that Heath has failed to establish that his counsel was ineffective on these bases. See Holland, 916 So.2d at 757 (“[C]ounsel cannot be deemed deficient for failing to investigate or present mitigation evidence unless the defendant establishes that mitigation exists.”).

Ineffective Assistance-Special Verdict Form

Heath next contends that he received ineffective assistance during the penalty phase due to the failure to request a special verdict form with regard to the specific aggravating factors found by the jury. However, this Court has previously rejected the contention that Florida’s capital sentencing structure is unconstitutional because it does not require a special verdict form that indicates the aggravating circumstances found by the jury. See Kormondy v. State, 845 So.2d 41, 54 (Fla.2003). Additionally, in 2005 we held that it constitutes a departure from the essential requirements of law for a trial court in a death-penalty proceeding to utilize a penalty-phase special verdict form that details the findings of the jurors with regard to aggravating circumstances. See State v. Steele, 921 So.2d 538, 550 (Fla.2005). Hence, had trial counsel presented this challenge during the trial proceedings, it would have been rejected. Trial counsel is not ineffective for failing to raise a meritless challenge, see Vining, 827 So.2d at 213, and Heath is not entitled to relief on this claim.

Ineffective Assistance-Insufficiency of the Indictment

*16 Moreover, this Court has held that capital defendants are “not entitled to notice of every aggravator in the indictment because the aggravators are clearly listed in the statutes.”England v. State, 940 So.2d 389, 407 (Fla.2006) (citing Lynch v. State, 841 So.2d 362, 378 (Fla.2003)). Thus trial counsel was not ineffective for failing to raise this meritless claim. See Vining, 827 So.2d at 213.

Unanimous Jury

Heath next contends that Florida’s sentencing structure is unconstitutional in violation of Ring because it does not require a unanimous jury to recommend a sentence of death. However, this Court has repeatedly held that Florida’s capital sentencing scheme does not violate the United States Constitution under Ring.See Jones v. State, 845 So.2d 55, 74 (Fla.2003). Further, as previously noted, Ring does not apply retroactively. See Johnson, 904 So.2d at 405.

Accordingly, this claim is without merit.

Jury Instruction

In this claim, Heath appears to assert that because it was Kenneth who fatally shot Sheridan, the trial court improperly instructed the jury that Heath killed Sheridan. We conclude that this claim is procedurally barred. Heath is challenging a jury instruction, and this Court has explained that “[c]laims regarding the adequacy or constitutionality of jury instructions should be raised on direct appeal.”Israel v. State, 985 So.2d 510, 520 (Fla.2008) (citing Thompson v. State, 759 So.2d 650, 665 (Fla.2000)). Further, jury instructions “are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.”Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008) (quoting State v. Delva, 575 So.2d 643, 644 (Fla.1991)). The record reflects that trial counsel did not object to the relevant instruction during the charge conference or when the trial court read the instruction to the jury, and Heath further did not challenge this instruction on direct appeal. Consequently, Heath’s jury-instruction claim is procedurally barred in this collateral context.FN12

FN12. Similarly, Heath’s claim that his death sentence is disproportionate is procedurally barred because this Court evaluated the proportionality of the sentence on direct appeal. Moreover, Heath did not raise the instant challenge before the postconviction court and, accordingly, this challenge will not be heard for the first time on appeal. See generally Connor v. State, 979 So.2d 852, 866 (Fla.2007).

III. CONCLUSION

For the foregoing reasons, we affirm the denial of the rule 3.851 motion by the postconviction court.

It is so ordered.

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

Courtesy of David Edelstein

Courtesy of David Edelstein