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PHILLUP ALAN PARTIN, Appellant, vs. STATE OF FLORIDA, Appellee.

Friday, December 2nd, 2011

Supreme Court of Florida

No. SC08-2348

PHILLUP ALAN PARTIN,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[December 1, 2011]

PER CURIAM.

Phillup Alan Partin appeals his conviction of first-degree murder and sentence of death.1 For the reasons stated below, we affirm his conviction and sentence.

I. BACKGROUND

On July 31, 2002, 16-year-old Joshan Ashbrook was reported as a runaway. She left the house early that morning and was walking beside the road near her house when she met Partin at an intersection. Partin, who was driving his sevenyear-old daughter in a maroon pickup truck, offered to give the victim a ride. Soon

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

afterward, the victim called her boyfriend?s residence using a cellphone in Partin?s possession. Minutes after placing the call, Ashbrook arrived at her boyfriend?s house in a pickup truck described as burgundy, gave her boyfriend?s mother a note to pass along to her boyfriend, and left in the same pickup truck.

Law enforcement later discovered that the cellphone from which the victim called that morning was registered to Partin?s ex-girlfriend, who once lived with Partin and bought Partin a maroon pickup truck. When the detective called the number, Partin answered the phone and identified himself using a false surname. At that time, Partin admitted to giving a young girl a ride to her boyfriend?s house in his blue pickup truck and allowing her to use his phone on the way. He also told the detective that he dropped the girl off at a nearby store immediately afterward. The detective told Partin that the girl was dead and indicated a need to speak with him.

Law enforcement obtained video from the store to which Partin said he took the victim. The video depicted the victim arriving with Partin and Partin?s daughter in a maroon pickup truck. It further documented all three of them leaving the store in Partin?s truck, contrary to Partin?s statement.

Hours after leaving the store with the victim and his daughter, Partin received a warning for fishing without a license. The wildlife enforcement officer who issued the warning recalled that Partin had a red pickup truck and that a

female and a small child accompanied him. Partin later admitted to receiving the warning and providing a pair of his shorts to the victim so that she could go swimming. After fishing and swimming, the three returned to Fred and Diana

Kaufman?s house, where Partin and his daughter were staying.

Later that day, Diana Kaufman observed Partin?s daughter and another female sitting in Partin?s room playing video games. She noticed that the female was wearing shorts. Mrs. Kaufman did not see the female?s face and did not see her leave the house. But Mrs. Kaufman did notice that Partin?s truck was in the driveway that day, that the truck was gone that night, and that Partin returned alone at 1:00 a.m. the next day. Partin?s daughter testified that she played video games with the victim, that her father and the victim left that night without her, and that she never saw the victim again. Ashbrook died the night of August 31 or sometime prior to 3:30 a.m. the next day.

The next morning, the victim?s body was discovered in a wooded area approximately 50 feet from a highway. Law enforcement observed tire tracks indicating that a light pickup truck had backed up to the area where the body was found. A passerby later reported to law enforcement that he saw a dark-colored pickup truck backed up into the woods where the body was discovered.

Ashbrook?s body was found with her shirt pulled up to the top of her

shoulder blades, and she was nude from the waist down. Her neck had been cut

open, she had six incisor wounds on her face, and her hands and arms bore defensive wounds. The victim had ligature marks on her neck, wrists, and ankles, and petechial hemorrhages indicated that she was strangled. The ultimate cause of death was blunt head and neck trauma. There was no indication of sexual assault. A hair was embedded in one of the defensive wounds and was taken for testing.

In the days following the murder, Partin left the Kaufmans? house and, without disclosing his intended destination, dropped off his daughter with a friend. He then abandoned his truck and ultimately left Florida. When law enforcement recovered the truck, the tires failed to match the impressions taken from the scene, and there was no sign of blood in the truck.

Sometime after Partin had moved out of the Kaufmans? house, law enforcement recovered a camera from his room and found that he had taken pictures of his truck at a time when the truck had tires matching the impressions at the scene. Law enforcement also found a box that belonged to Partin containing hair clippings with largely degraded DNA consistent with the DNA found in the hair taken from the victim?s defensive wound. A portion of the carpet underneath a rug in his room at the Kaufmans? house contained bleach stains and blood matching the victim?s DNA profile. Law enforcement also found small spots of blood on the room?s walls matching the victim?s DNA profile.

In the months following the murder, Partin made three telephone calls to the detective assigned to the case, asking about his daughter. Partin also responded to questioning about the murder and admitted that he picked up the victim, took her fishing, and then drove her back to the Kaufmans? house. He told the detective that he dropped the victim off at the same intersection where he had picked her up and denied any sexual contact or involvement in her murder. The telephone calls were recorded and played for the jury.

In October 2003, over a year after the murder, Fred Kaufman agreed to cooperate with law enforcement and placed a recorded telephone call to Partin. Partin told Kaufman that he was in North Carolina, that he had changed his appearance, and that he considered himself a “dead man.” Partin also spoke to Kaufman about Partin?s participation in a recent fight and indicated that he had lied to law enforcement after the fight in order to avoid giving a statement.

Partin was arrested in North Carolina later that month. Partin?s DNA profile matched the hair found in the victim?s defensive wound at all points. In a videotaped interrogation, Partin waived his Miranda2 rights, again admitted to spending the day with the victim, and again denied involvement in the murder.

2. Miranda v. Arizona, 384 U.S. 436 (1966).

Partin was first tried in October 2007. He was retried in March 2008 following an inadvertent discovery violation. After the retrial, the jury found Partin guilty of first-degree murder.

At the penalty phase, the State presented evidence that, in 1987, Partin had been arrested and later indicted for first-degree murder, armed robbery, and burglary but entered a plea agreement under which he was convicted of second-degree murder, armed robbery, and burglary. After hearing brief mitigation testimony from Partin?s daughter and ex-girlfriend, the jury recommended the death penalty by a vote of nine to three.

At a Spencer3 hearing, Partin presented expert testimony from two psychologists. The first psychologist, Dr. McClain, diagnosed Partin with polysubstance dependence based on past alcohol, marijuana, and painkiller abuse, cognitive disorder resulting in part from head trauma, and major depressive disorder recurrent. The second psychologist, Dr. Eisenstein, diagnosed Partin with bipolar disorder and intermittent explosive personality. Both experts also recognized that Partin?s biological father, with whom Partin lived until he was twelve, physically and emotionally abused Partin and abused others in Partin?s presence.

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

After hearing the additional evidence, the trial court followed the jury?s recommendation and found two aggravators: (1) the murder was especially heinous, atrocious, or cruel (great weight); and (2) prior violent felony (great weight). The trial court found no statutory mitigators and the following nonstatutory mitigators: (1) Partin can be productive and a positive influence on others in prison (little weight); (2) Partin is a good father and good provider (little weight); (3) Partin is a good friend, good boyfriend, and a compassionate person (little weight); (4) Partin maintained steady employment when not incarcerated (little weight); (5) Partin has a mental disorder (some weight); (6) Partin has brain abnormalities (little weight); and (7) Partin had a difficult childhood (little weight).

II. ISSUES RAISED ON APPEAL

Partin raises six claims on appeal: (A) the trial court erred in denying several motions in limine; (B) the trial court erred in admitting the testimony of DNA analyst Suzanna Ulery from Partin?s first trial; (C) the trial court erred at the guilt phase in denying the jury?s request to view the indictment or have the indictment read to them; (D) the trial court erred at the penalty phase by providing improper instructions to the jury; and (E) the death sentence is not proportionate.4 None of these claims warrant relief.

4. Partin also claims that his sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). Yet Ring does not apply to cases where, as here, a

A. Motions in Limine

At trial, Partin filed numerous motions in limine designed to suppress any references to Partin?s prior felony conviction, previous incarceration, attempts to obtain false identification, and incriminating statements to others. He also sought to excise, from Partin?s recorded statements to law enforcement, Partin?s statements containing profanity, inconsistent explanations of his contact with the victim, references to the death penalty, indications that he disliked law enforcement, acknowledgment of weapon ownership, and admissions to collateral crimes, as well as numerous statements from law enforcement in which officers insisted that Partin further explain himself. The trial court conducted hearings to address these motions and issued orders that, in many cases, specifically identified the irrelevant or unduly prejudicial statements and required their exclusion. The excluded evidence included evidence that Partin was incarcerated as a convicted felon and arrested for another crime, had two tattoos signifying two murder victims, told law enforcement he would shoot one of the detectives, and owned a knife and certain other weapons. The trial court also granted Partin?s motions seeking to suppress recorded statements from law enforcement that characterized the evidence against Partin. Pursuant to these orders, the prosecution redacted its

prior violent felony aggravator exists. See Hodges v. State, 55 So. 3d 515, 540 (Fla. 2010), cert. denied, 80 U.S.L.W. 3184 (U.S. Oct. 3, 2011) (No. 10-10722).

audio and video recordings and refrained from questioning its witnesses as to these matters.

Nevertheless, Partin argues that the trial court erred in denying portions of six motions in limine, generally claiming that the evidence was irrelevant and portrayed him as a violent criminal. The State responds that the evidence was properly admitted as relevant to demonstrate consciousness of guilt. We conclude that the trial court did not reversibly err.

“[T]his Court has allowed the admission of evidence as relevant to consciousness of guilt where a suspect in any manner attempts to evade prosecution after a crime has been committed.” Penalver v. State, 926 So. 2d 1118, 1132 (Fla. 2006) (citing Straight v. State, 397 So. 2d 903, 908 (Fla. 1981)). Such evidence may be relevant because it demonstrates that the defendant “was aware of the criminality of his actions . . . and the precarious position he was in” if prosecuted. Brooks v. State, 918 So. 2d 181, 204 (Fla. 2005).

To determine the relevancy of such evidence to consciousness of guilt in a particular case, the question is whether the evidence “indicates a nexus between the flight, concealment, or resistance to lawful arrest and the crime(s) for which the defendant is being tried in that specific case.” Escobar v. State, 699 So. 2d 988, 995 (Fla. 1997), abrogated on other grounds by Connor v. State, 803 So. 2d 598 (Fla. 2001) In other words, where there is no evidence that would allow the jury to

reasonably infer that the defendant was attempting to avoid prosecution for the offense on trial, the evidence is not relevant. See id.

However, even relevant, probative evidence may be inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. (2002). This assessment of relative weight entails consideration of “the need for the evidence, the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, the chain of inference necessary to establish the material fact, and the efficacy of any limiting instruction.” Brooks, 918 So. 2d at 204.

We review a trial court?s ruling on the admission of evidence advanced to demonstrate consciousness of guilt for abuse of discretion. See Jackson v. State, 18 So. 3d 1016, 1031 (Fla. 2009). The challenged motions are addressed in turn. 1. Partin’s recorded telephone call to the detective

from Partin. On appeal, he argues that this statement could have led the jury to believe he was a convicted felon.

Even assuming the claim was properly preserved, it was harmless beyond a reasonable doubt because there was no reasonable possibility that the mention of firearms in this context affected the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). First, Partin?s statements did not clearly suggest that he was a violent person; in fact, Partin indicated that the guns were inaccessible to him and that he did not want to bring a gun to a meeting with the detective. Second, because this case involved stabbing and blunt head trauma, gun ownership did not suggest to the jury that Partin committed this crime. See Carter v. State, 560 So. 2d 1166, 1168 (Fla. 1990) (concluding that admission of a gun and knife was harmless where the victim was killed by asphyxiation); see also Brooks, 918 So. 2d at 204 (determining that admission of a threat to shoot a police officer was not prejudicial because the murder involved stabbing, not shooting). Finally,

Partin?s comment that he “was not supposed to have any” firearms was vague, isolated, and did not become a feature of the trial. See Rodriguez v. State, 753 So. 2d 29, 43 (Fla. 2000) (concluding that admission of testimony indicating that the defendant had a police “ID number” and used aliases was harmless error because it was brief and isolated); see also Consalvo v. State, 697 So. 2d 805, 813-14 (Fla.

1996) (concluding that collateral crime evidence was harmless error where it did not become a feature of the trial).

Therefore, the trial court?s admission of the evidence was harmless beyond a reasonable doubt.

2. Videotaped interrogation

Following his arrest, Partin submitted to questioning by law enforcement. Numerous statements made during questioning were redacted from a videotape of the interrogation in accordance with the trial court?s partial grant of Partin?s motions in limine. Among the statements permitted to remain was Partin?s statement that, after leaving Florida, he kept a gun with him at all times in case law enforcement came for him and that he would consider using the gun if police attempted to arrest him.

This Court has repeatedly affirmed the admission of evidence of flight and resistance to arrest where the defendant was fleeing prosecution for the charged crime. See, e.g., Thomas v. State, 748 So. 2d 970, 982-83 (Fla. 1999); Shellito v. State, 701 So. 2d 837, 840-41 (Fla. 1997); Bundy v. State, 471 So. 2d 9, 20-21 (Fla. 1985). More specifically, this Court has affirmed, under those constraints, admission of evidence that the defendant expressed his intent to shoot a police officer. See, e.g., Brooks, 918 So. 2d at 202-04; Wyatt v. State, 641 So. 2d 355, 358 (Fla. 1994). In Brooks, 918 So. 2d at 204, this Court found that the

defendant?s statement that he was “going to have to shoot” an approaching officer provided proof of consciousness of guilt because, at the time of the statement, the defendant possessed evidence that would have been incriminating for purposes of the charged crime. Likewise, in Wyatt, 641 So. 2d at 358, this Court determined that the trial court properly admitted the defendant?s statement to police officers upon his arrest that he “was glad he did not have a gun when he got stopped, otherwise he would have shot the officer” because the statement was relevant to show the defendant?s consciousness of guilt.

Here, there was a sufficient, identifiable nexus between the evidence and the charged crime. Partin?s statement demonstrated that he was avoiding prosecution and revealed his belief that police were tracking him as a suspect in this murder. His flight and the related fact that he considered shooting an arresting officer demonstrated that Partin “was aware of the criminality of his actions . . . and the precarious position he was in” if stopped by law enforcement. Brooks, 918 So. 2d at 204. Additionally, the statement was not unfairly prejudicial because evidence that Partin carried and considered using a gun if confronted was unlikely, by itself, to suggest to the jury that Partin committed this crime, which did not involve guns. See id. (determining that admission of a threat to shoot the police officer was not unfairly prejudicial because the murder involved stabbing, not shooting).

Because the trial court did not abuse its discretion in admitting the videotaped statements, we affirm.

3. Partin’s recorded telephone call from jail to a friend

Here, there was a sufficient, identifiable nexus between the statement and the charged crime because, at the time of the statement, Partin was jailed only for the charges at issue in this trial. Whether the statement indicated a desire to flee prior to trial, escape from prison, or both, it was probative of the fact that he “was aware of the criminality of his actions . . . and the precarious position he was in” if fully prosecuted. Brooks, 918 So. 2d at 204.

As for Partin?s argument that the jury may have recommended death because they feared he would attempt to escape from prison, Partin did not preserve this argument for appeal because it was not raised below. See Hoskins v. State, 965

So. 2d 1, 14 (Fla. 2007) (“For an issue to be preserved for appeal, . . . it „must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.? ”) (quoting Perez v. State, 919 S. 2d 347, 359 (Fla. 2005)). Even if the argument had been preserved, any error would have been harmless beyond a reasonable doubt. See DiGuilio, 491 So. 2d at 1135. Because the statement was not made a feature of the guilt phase of trial and was not even mentioned at the penalty phase of trial, there was no reasonable possibility that the admission of Partin?s statement affected the verdict or the jury?s sentence recommendation.

Therefore, the trial court did not abuse its discretion in admitting this recorded statement. Accordingly, we affirm its denial of this motion in limine.

4. Partin’s possession and attempt to obtain false identication

consciousness of guilt on the charges for which he was sought and ultimately apprehended. See Murray, 838 So. 2d at 1086. Additionally, the evidence of false identification was not unfairly prejudicial to Partin because it “was a de minimis part of the evidence” presented in support of the murder. Looney v. State, 803 So. 2d 656, 668 (Fla. 2001). The false identification cards were introduced as a mere part of the overall theme that Partin had committed the murder and was avoiding detection.

Therefore, the trial court did not abuse its discretion in allowing the prosecution to admit evidence of Partin?s possession and attempt to obtain false identification. Accordingly, we affirm denial of this motion in limine.

5. Partin’s unsolicited statement to law enforcement when arrested

dangerous. Though approximately one year had passed since the time of the crime, other evidence indicated that, at the time of the arrest, Partin was aware that he remained the suspect in the criminal investigation of this crime. See Murray, 838 So. 2d at 1086 (finding a sufficient nexus “even though significant time had passed since the date the murder occurred” and the time the defendant escaped); cf. Penalver, 926 So. 2d at 1134 (finding insufficient nexus between the defendant?s threat of suicide and crime “because at the time he made the threat, he was not under arrest and had not been threatened with prosecution”).

Therefore, the trial court did not abuse its discretion. Accordingly, we affirm the partial denial of this motion in limine.

6. Partin’s recorded te

court allowed Partin?s report of the altercation on the ground that it was “inextricably intertwined with information showing the defendant?s efforts to avoid detection and arrest, hence his consciousness of guilt.”

On appeal, Partin does not dispute that portions of the conversation focusing on his attempt to avoid arrest were relevant to show consciousness of guilt. Instead, he argues that the trial court erred in finding that evidence of the physical altercation was inextricably intertwined.

Even if the trial court abused its discretion in admitting evidence of Partin?s involvement in a fight, the error was harmless because there is “no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So. 2d at 1135. First, Partin?s statement does not describe “bad conduct.” Partin was motivated to confront a man because the man was drunk and hitting someone else. Second, Partin?s vague description of the fight was the only mention of the altercation. Given these circumstances, the trial court?s admission of the evidence was harmless beyond a reasonable doubt.

In sum, we find no reversible error in the trial court?s rulings on Partin?s motions in limine.

B. Admission of Former Testimony

Partin argues that the trial court erred in admitting the testimony of DNA analyst Suzanna Ulery from Partin?s first trial. More specifically, Partin argues

that Ulery was not “unavailable” for purposes of the former testimony hearsay exception. See § 90.804(2), Fla. Stat. (2002). For the reasons that follow, we affirm admission of the former testimony.

The Florida Evidence Code allows for the admission of former testimony against a defendant in a criminal trial when the witness is “unavailable” and the defendant “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Id.; see Muehleman v. State, 3 So. 3d 1149, 1163 (Fla. 2009). One circumstance rendering a witness “unavailable” for purposes of the hearsay exception is one in which (1) the witness is unable to testify “because of then-existing physical or mental illness or infirmity”; and (2) the inability to testify is not “due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.” § 90.804(1), Fla. Stat. (2002).

Whether an illness or infirmity exists is a question of preliminary fact for the trial court, proven by a preponderance of the evidence. See § 90.105(1), Fla. Stat. (2002); Charles W. Ehrhardt, Florida Evidence §§ 105.1, 804.1 (2010 ed.). The trial court?s decision to admit prior testimony is reviewed for abuse of discretion. Muehleman, 3 So. 3d at 1162.

Here, the trial court did not abuse its discretion in admitting the former

testimony. The prosecution presented evidence that Ulery was living in California,

would be approximately four months pregnant at the time of the trial in March, and was advised by her doctor not to travel by airplane until late August. Though there was no specific evidence of complications attending Ulery?s pregnancy, the trial court relied on advice from her obstetrician and determined that the limitation on her travel was attributable to the pregnancy. The trial court further observed that flying would be the easiest and most effective means of travel from California to Florida, and it found that even those means were unavailable to Ulery.

Furthermore, because the trial court determined that Ulery was unavailable under section 90.804 and that Partin had an opportunity to cross-examine her in a prior trial on the same subject matter, Partin was not deprived of his Sixth Amendment right to confrontation. See Crawford v. Washington, 541 U.S. 36, 68 (2004) (“[T]he Sixth Amendment demands what common law required: unavailability and a prior opportunity for cross-examination.”); Muehleman, 3 So. 3d at 1163-64 (allowing an unavailable witness?s testimony from a prior trial); Murray v. State, 3 So. 3d 1108, 1124 (Fla. 2009) (same). And even if the trial court erred in finding that Ulery was “unavailable” under section 90.804(1)(d), any violation of the Confrontation Clause was harmless because the testimony was ultimately cumulative. Other DNA analysts testified that the DNA found on the victim matched Partin?s DNA with a high degree of probability. See Hojan v. State, 3 So. 3d 1204, 1210 (Fla. 2009) (“[W]here the evidence introduced in error

was not the only evidence on the issue to which the improper evidence related, the introduction can be harmless.”).

Therefore, we affirm the trial court?s decision to admit the former testimony. C. Jury’s Guilt

been presented at trial. See Miller v. State, 42 So. 3d 204, 217 (Fla. 2010) (“A grand jury session is an ex parte proceeding which usually does not consider both sides of an issue.”), cert. denied, 131 S. Ct. 935 (2011).

Therefore, we affirm the trial court?s ruling.

D. Penalty-Phase Jury Instructions

Next, Partin asserts entitlement to a new penalty phase because the trial court issued allegedly misleading penalty-phase jury instructions. Specifically, Partin argues that the trial court should have granted two requests for special jury instructions and that the trial court misread one of the standard jury instructions. For the reasons that follow, we disagree.

1. Partin’s requested special instruction

Among the proposed jury instructions requested by Partin was an instruction to the jury that it was “never required to recommend a sentence of death.” “[F]ailure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards.” Coday v. State, 946 So. 2d 988, 994 (Fla. 2006) (quoting Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001)). A trial court?s denial of special jury instructions is reviewed for abuse of discretion. See Hudson v. State, 992 So. 2d 96, 112 (Fla. 2008).

Here, the trial court provided standard instructions repeatedly approved by this Court as an adequate description on the role of the penalty-phase jury. See

Phillips v. State, 39 So. 3d 296, 304 (Fla.), cert. denied, 131 S. Ct. 520 (2010). And in any event, the trial court did not abuse its discretion in rejecting Partin?s request because his requested instruction was more stringent than required under applicable case law. See In re Std. Jury Instr. in Crim. Cases—Report No. 2005-2, 22 So. 3d 17, 22 (Fla. 2009) (rejecting a proposed amendment stating that the jury is “never required to recommend a sentence of death” in favor of “less stringent” language consistent with “our state and federal case law in this area”).

Accordingly, the trial court did not err in denying Partin?s request. 2. Prosecution’s requested special instruction

3. Prior violent felony instruction

Finally, Partin argues that the trial court misled the jury when it instructed the jury that a prior violent felony aggravator is established when “the defendant has been previously convicted of a felony involving the use of abuse of violence to some person.” (Emphasis added.) The standard instruction stated that the aggravator is established when “[t]he defendant has been previously convicted of another capital offense or of a felony involving the [use] [threat] of violence to some person.” Std. Jury Instr. in Crim. Cases—No. 96-1, 690 So. 2d at 1265.

The instruction given was substantially similar to the standard instruction and did not contain misleading language. Even if it was error to provide this instruction, the error was harmless because the jury was provided with correct written instructions. See Victorino v. State, 23 So. 3d 87, 101 (Fla. 2009) (“An error in a jury instruction is harmless if there is „no reasonable possibility that the faulty instruction contributed to the verdict.? ”) (quoting Hunter v. State, 8 So. 3d 1052, 1071 (Fla. 2008)); Colon v. State, 730 So. 2d 780, 782 (Fla. 3d DCA 1999) (noting that misstatement of standard jury instructions was “harmless given the fact that the complete written jury instruction was sent to the jury room with the jurors during their deliberations”).

In sum, the trial court did not reversibly err in providing penalty-phase instructions.

E. Proportionality

Partin argues that his sentence of death is not proportionate. We disagree, however, and conclude that the sentence is proportionate.

This Court is required to review the proportionality of a death sentence “in order to prevent the imposition of unusual punishments under the Florida Constitution.” Phillips, 39 So. 3d at 305. However, in analyzing proportionality, “[t]his Court?s function is not to reweigh the mitigating facts against the aggravating factors; that is the function of the trial judge.” Id. (quoting Connor v. State, 803 So. 2d 598, 612 (Fla. 2001)). Instead, “[i]n deciding whether death is a proportionate penalty, this Court considers the „totality of the circumstances in a

case? and compares the case with other capital cases.” Id. (quoting Urbin v. State, 714 So. 2d 411, 417 (Fla. 1998)). As it compares the case with others, this Court performs “a two-pronged inquiry . . . to „determine [whether] the crime falls within the category of both (1) the most aggravated, and (2) the least mitigated of

murders.?” Ault v. State, 53 So. 3d 175, 196 (Fla. 2010) (quoting Almeida v. State, 748 So. 2d 922, 933 (Fla. 1999)), cert. denied, 80 U.S.L.W. 3186 (U.S. Oct. 3, 2011) (No. 10-11173). The review is a “qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.” Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998). In other words,

“comparison is not simply a calculation of the number of aggravators and mitigators.” Lebron v. State, 982 So. 2d 649, 668 (Fla. 2008).

In this case, the jury recommended death by a nine-to-three vote. The trial court found two aggravators and gave them both great weight: (1) the murder was especially heinous, atrocious, or cruel (HAC);5 and (2) prior violent felony.6 And this Court has indicated that the prior violent felony and HAC aggravators are “two of the most weighty in Florida?s sentencing calculus.” Sireci v. Moore, 825 So. 2d 882, 887 (Fla. 2002). Additionally, the trial court found no statutory mitigators but seven nonstatutory mitigators: (1) Partin can be productive and a positive influence on others in prison (little weight); (2) Partin is a good father and good provider (little weight); (3) Partin is a good friend, good boyfriend, and a compassionate person (little weight); (4) Partin maintained steady employment when not incarcerated (little weight); (5) Partin has mental disorder (some weight);

The medical examiner testified that the victim had defensive wounds on her hands and arms, that her neck had been cut open, that she had six incisor wounds on her face, that she had ligature marks on her neck, wrists, and ankles, that she had petechial hemorrhaging consistent with strangling, and that she was finally killed from blunt head and neck trauma.

As discussed previously, the prior violent felony in this case was based on 1987 second-degree murder, armed robbery, and burglary convictions. Partin confessed to those crimes and entered a plea agreement following indictment for first-degree murder, armed robbery, and burglary.

(6) Partin has brain abnormalities (little weight); and (7) Partin had a difficult childhood (little weight).

This Court has found the death sentence proportionate in similar cases. See, e.g., Merck v. State, 975 So. 2d 1054, 1066 (Fla. 2007) (death sentence proportionate with aggravators of HAC and prior violent felony, statutory mitigation of young age, and three nonstatutory mitigators); Ocha v. State, 826 So. 2d 956, 960 (Fla. 2002) (death sentence proportionate with aggravators of HAC and prior violent felony and numerous nonstatutory mitigators including history of substance abuse and severe head injuries); Singleton v. State, 783 So. 2d 970, 972- 73 (Fla. 2001) (death sentence proportionate with aggravators of HAC and prior violent felony, three statutory mitigators including extreme or emotional disturbance, and nine nonstatutory mitigators including defendant?s use of alcohol at the time of the crime); Spencer v. State, 691 So. 2d 1062 (Fla. 1996) (death sentence proportionate with aggravators of HAC and prior violent felony based on aggravated assault, aggravated battery, and attempted second-degree murder, two statutory mitigators, and numerous nonstatutory mitigators including sexual abuse by defendant?s father); see also Butler v. State, 842 So. 2d 817, 833 (Fla. 2003) (death sentence proportionate where victim was strangled and stabbed multiple times with HAC aggravator and with nonstatutory mitigators including long-term substance abuse); Ferrell v. State, 680 So. 2d 390, 391 (Fla. 1996) (death sentence

proportionate where prior violent felony was based on second-degree murder and with a number of mitigators).

Accordingly, we find the death penalty proportionate.

III. SUFFICIENCY OF THE EVIDENCE

This Court independently reviews the record of a death penalty case to determine whether the evidence is sufficient to support the murder conviction. See Winkles v. State, 894 So. 2d 842, 847 (Fla. 2005). Here, there is competent, substantial evidence to support the murder conviction. See Durousseau v. State, 55 So. 3d 543, 559 (Fla. 2010), cert denied, 80 U.S.L.W. 3183 (U.S Oct. 3, 2011) (No. 10-10518).

As set forth above, hair with Partin?s DNA was imbedded in one of the

victim?s defensive wounds, and blood matching the victim?s DNA was found in Partin?s room. Partin repeatedly admitted that he picked up the victim in his

burgundy truck and gave her a ride to her boyfriend?s house, then to a nearby store. The boyfriend?s mother testified that she saw the victim in a burgundy truck, and video obtained from the store depicted Partin and the victim arriving in a truck and leaving together. Partin admitted to providing his shorts to the victim, to going fishing and swimming with her, and to bringing her back to his room in the

Kaufman?s home. Mrs. Kaufman and Partin?s daughter also testified that the victim was in his room that afternoon. Partin?s daughter further testified that

Partin and the victim left together that night and that she never saw the victim again, while Mrs. Kaufman testified that Partin left the home and returned alone in the early morning hours. A pickup truck was seen later that morning backed up to the woods where the body was found, and tire tracks matching those depicted in photos of Partin?s truck were observed next to the body.

Accordingly, there is sufficient evidence to support the murder conviction.

IV. CONCLUSION

For the reasons expressed above, we affirm Partin?s conviction and sentence of death.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

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

An Appeal from the Circuit Court in and for Pasco County,

William Robert Webb, Judge – Case No. 512003CF003888XX

James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Katherine Maria Diamandis and Katherine V. Blanco, Assistant Attorneys General, Tampa, Florida,

for Appellee

Bookmark It

THOMAS ANTHONY WYATT, Appellant, vs. STATE OF FLORIDA, Appellee.

Wednesday, November 23rd, 2011

Supreme Court of Florida

No. SC08-656

THOMAS ANTHONY WYATT,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

No. SC10-632

THOMAS ANTHONY WYATT,

Petitioner,

vs.

KENNETH S. TUCKER, etc.,

Respondent.

[November 23, 2011]

PER CURIAM.

Thomas Anthony Wyatt, a prisoner under sentence of death, appeals the denial of his amended and supplemental motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Through his postconviction

motions, Wyatt challenges his first-degree murder conviction and resulting sentence of death for the May 1988 murder of Cathy Nydegger. Wyatt also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

In a related postconviction case, Wyatt also challenged his first-degree murder convictions and resulting death sentences arising from the May 1988 triple homicide occurring at a Domino‘s Pizza restaurant in Vero Beach, Florida, which occurred approximately three days before this murder. Although involving some interrelated facts, those cases were tried separately. In Wyatt‘s case involving the Domino‘s pizza murders, he raised several nearly identical postconviction claims to those raised here. By separate opinion, we affirmed the denial of postconviction relief and rejected each of the claims. Wyatt v. State, 71 So. 3d 86 (Fla. 2011). For the reasons below, we also affirm the denial of postconviction relief and deny Wyatt‘s habeas petition in this case.

FACTS AND PROCEDURAL HISTORY

On May 13, 1988, Thomas Wyatt and Michael Lovette escaped from a

North Carolina road gang and engaged in a crime spree, which spanned from North

Carolina to Florida.1 Once they reached Jacksonville, Florida, Wyatt and Lovette

1. Evidence regarding the prior crimes was introduced during the penalty phase, but was excluded during the guilt phase unless it was directly relevant to the Nydegger murder.

stole a Cadillac. On May 17, they entered a Domino‘s Pizza store in Vero Beach, robbing the store and killing three employees. Shortly after this robbery, they burned the stolen Cadillac that was used in the Domino‘s murders, and eventually reached Brandon, Florida, where they met Cathy Nydegger, the murder victim in this case. The trial judge severed the Domino‘s Pizza murder charges from the Nydegger murder charge, and Wyatt was tried separately from codefendant Lovette.2

In the Nydegger murder trial, the State presented evidence that Wyatt and Lovette stole a red and white Cadillac, which also contained a gun, a briefcase, a flask, and numerous other items. Wyatt and Lovette burned the stolen car near Yeehaw Junction, which is at the intersection of State Route 60, US 441, and Florida‘s Turnpike. A truck driver found the pair on State Route 60, close to where he smelled a burning car, and gave them a ride to Lake Wales. From there, Wyatt and Lovette obtained a ride further west across the state, ending up in Brandon, where they checked into a Budgetel Inn. On May 19, they took a taxi to Club 92, a bar that was close to their hotel. Later that night, Cathy Nydegger arrived at the bar, which she frequented. She joined Lovette and Wyatt in playing a crane game, where the player operates a joystick that controls a claw that lowers

2. Michael Lovette was tried for this crime in a separate proceeding, and he is serving a life sentence for the Nydegger murder.

and attempts to grip small stuffed toys. The trio spent much of the night together, drinking and playing pool and the crane game. All three eventually left for the evening in Nydegger‘s car.

Nydegger‘s body was found the next day along State Route 60, a few miles away from where the stolen red and white Cadillac had been burned. Near Nydegger‘s body, the police found a white pillow case and small stuffed animals, which matched animals found in the crane game. The medical examiner testified that Nydegger died due to a single gunshot to the top of the head, and the gun must have been in contact with the skin when the trigger was pulled. He estimated that the time of death was in the early morning hours of May 20, 1988. Codefendant Lovette‘s DNA was found inside the victim.

On May 20, 1988, Wyatt checked into a motel in Tampa by himself, arriving in a car that matched the victim‘s vehicle. He asked where he could take the car because it had a transmission problem. At the motel, Wyatt met Fred Fox and discussed that the car was having transmission problems. Fox rode with Wyatt when he took the car for repairs, but Wyatt left it in a parking lot, rather than bringing it to a repair shop, claiming that somebody else would pick up the car for him. The victim‘s car was found abandoned in a parking lot much later. Inside the vehicle, police found stuffed animals that were consistent with the crane game, a white pillow that was consistent with the pillows at the Budgetel Inn where Wyatt

was staying the night he met Nydegger, and a few hairs that were consistent with Wyatt‘s hair.

The State also presented evidence to show that Wyatt had a .38-caliber gun and bullets. Fox took the gun and sold the gun at a pawn shop. When Wyatt learned that Fox sold his gun, Wyatt became angry and told Fox that he ?used it to kill people.? The police eventually recovered this gun, and it was found to be consistent with the gun that killed the victim. The police also recovered the remaining bullets, which Wyatt had left with Fox.

Wyatt left the state after he stole another vehicle. He was finally apprehended in South Carolina. Upon his arrest in South Carolina, during a stationhouse interview, a police officer asked Wyatt, ?[I]s there someone inside of you or something that makes you do certain things in your life?? Wyatt responded that there was a person named Jim who would take over his life when he drank and admitted that ?Jim went crazy in Florida? and that Jim has killed. Wyatt also told the officer, ?Jim needs to be killed before he hurts somebody again.?

While Wyatt was awaiting extradition to Florida, he developed a friendship with a fellow inmate, Patrick McCoombs, who testified at trial. According to McCoombs, during their many conversations, Wyatt admitted that he had killed Nydegger and mentioned numerous aspects about his exploits in Florida, including particular details about Nydegger‘s murder. In addition, the State also presented

the testimony of Special Agent John Riley from the Federal Bureau of Investigation (FBI), who conducted an elemental and metal analysis on the bullet found in Nydegger and compared it to a sample of the bullets that Wyatt had left with Fox, concluding that the two bullets came from the same box of ammunition.

Wyatt testified in his own defense, admitting that he was at Club 92 and had met Nydegger while he was playing the crane game, but asserted that Lovette was the person who was with her most of the evening. According to Wyatt, around midnight, they all agreed to go back to Wyatt‘s hotel room to drink some beer. After drinking for more than an hour, Lovette and Nydegger left to buy more beer and food. Wyatt passed out and did not wake up until 8 o‘clock the next morning when Lovette came back to the room alone. Wyatt testified that Lovette informed him that Nydegger gave him permission to use her car until about 1 p.m. Lovette then left for breakfast, but never returned. Wyatt took Nydegger‘s car to look for him, but eventually he abandoned his search and checked into a different motel. He abandoned Nydegger‘s car while he was staying at the motel, taking both his and Lovette‘s personal items out of the car first. The jury convicted Wyatt of the first-degree murder of Nydegger.

During the penalty phase, the State presented testimony regarding some of Wyatt‘s other violent crimes, including that between May 13 and May 18, he escaped from prison, he kidnapped and robbed an employee who was working at a

Chinese restaurant, he robbed a Taco Bell store, and he killed three employees at a Domino‘s Pizza. Wyatt presented six lay witnesses who testified that Wyatt was a good person but had an abusive childhood, a mentally ill mother who was institutionalized for much of his childhood, and a sexually abusive teacher. These witnesses also testified that Wyatt began abusing drugs at an early age and the more he abused drugs, the more criminal trouble he encountered. Wyatt did not present a mental health expert at the penalty phase, although his counsel had procured numerous mental health examinations.

The jury recommended the death penalty by a vote of eleven to one. The judge followed the recommendation and sentenced Wyatt to death. The judge found five aggravating factors: (1) Wyatt was under a sentence of imprisonment at the time of the murder; (2) Wyatt had previously been convicted of violent felonies; (3) the murder was committed during the course of a robbery and was committed for pecuniary gain (merged); (4) the murder was committed for the purpose of avoiding arrest; and (5) the murder was cold, calculated, and premeditated (CCP). The court found no statutory mitigating factors, but recognized as nonstatutory mitigation that in his early youth, Wyatt had lived in a broken and unstable home while his mentally ill mother was in and out of mental hospitals.

On direct appeal, this Court affirmed Wyatt‘s conviction for first-degree murder and his sentence of death. Wyatt v. State, 641 So. 2d 355, 360 (Fla. 1994).3 However, this Court agreed with Wyatt that the trial court erroneously admitted certain evidence and also held that the trial court impermissibly found the aggravating factors of CCP and that the crime was committed to avoid arrest, errors that were held to be harmless beyond a reasonable doubt. Id. at 359-60.

3. Wyatt raised the following claims: (1) the trial court improperly instructed the jury on flight; (2) the State engaged in improper cross-examination of Wyatt; (3) defense was precluded from conducting relevant and timely discovery regarding State witness Jennifer Oler (the bartender of Club 92); (4) the trial court improperly prevented the defense from asking the venire as to predispositions regarding the death penalty; (5) the trial court erred in admitting an autopsy photograph of Nydegger; (6) the trial court improperly sustained the State‘s objection to the questioning of the manager of a motel regarding issues pertaining to Freddie Fox; (7) the trial court improperly terminated the cross-examination of Fox and made improper remarks during the cross-examination of Wyatt; (8) the trial court erred in overruling numerous instances of improper character evidence, including evidence that Wyatt said if he had possessed a gun when he was arrested, he would have shot the officer, that Wyatt hit a person over the head with a bottle, and that Wyatt feigned a conversion to Christianity; (9) the standard reasonable doubt instruction is unconstitutional; (10) the prosecutor made impermissible closing arguments during the guilt phase, which constitutes fundamental error; (11) the trial court erred in finding the following aggravators: the murder was committed during the commission of a robbery; the murder was committed to avoid arrest; and the murder was CCP; (12) the trial court did not properly consider or weigh all the mitigating evidence presented by the defense; (13) the penalty-phase jury instructions were erroneous; (14) the State presented improper hearsay testimony of several police officers concerning Wyatt‘s prior violent felonies; (15) the prosecutor made impermissible closing arguments in the penalty phase; and (16) Florida‘s death penalty statute is unconstitutional.

Wyatt filed a motion for postconviction relief, challenging his conviction and sentence of death in this case. Wyatt subsequently amended his motion for postconviction relief several times.4 He also filed a separate motion for

4. Specifically, Wyatt raised the following claims to the postconviction court: (1) public records were withheld in violation of chapter 119, Florida Statutes; (2) section 119.19 of the Florida Statutes and Florida Rule of Criminal Procedure 3.852 are unconstitutional; (3) his trial counsel rendered ineffective assistance of counsel based on numerous issues including failing to object to the prosecutor forcing Wyatt to testify as to the veracity of the State‘s witnesses, failing to object to the prosecutor‘s improper questions, failing to object to the State‘s introduction of irrelevant crimes, which were unrelated to Nydegger‘s murder, failing to object to the introduction of the DNA evidence, failing to object to improper rebuttal, failing to object to the State‘s misrepresentation of ballistics testimony, failing to object to the State‘s misrepresentation of Wyatt‘s testimony concerning the police dog, and failing to secure a complete mental health evaluation of Wyatt, among other various claims; (4) Wyatt‘s convictions are constitutionally unreliable due to newly discovered evidence that McCoombs fabricated his trial testimony concerning Wyatt‘s alleged confession; (5) the State withheld material and exculpatory evidence and presented the misleading testimony of McCoombs at both the guilt and penalty phases; (6) trial counsel was ineffective in failing to move for individual voir dire and for failing to remove jurors Norfleet and Georgilis; (7) trial counsel failed to properly litigate misleading testimony and improper argument; (8) trial counsel was ineffective in failing to obtain an adequate mental health evaluation and failing to provide the necessary background information to the mental health consultant pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985); (9) trial counsel failed to investigate defenses concerning insanity, drugs and alcohol, and cocaine psychosis; (10) the trial court erred in admitting gruesome photographs, and trial counsel was ineffective in failing to object to penalty-phase testimony concerning details of a prior violent felony; (11) trial counsel was ineffective in failing to adequately investigate and present mitigating evidence and refusing to present Wyatt as a penalty-phase witness; (12) trial counsel was ineffective in failing to object to the defendant‘s absence at a trial conference; (13) trial counsel was ineffective in failing to object to penalty-phase jury instructions that improperly shifted the burden of proof to the defendant; (14) trial counsel was ineffective in failing to object to an erroneous

jury instruction regarding expert witness testimony; (15) trial counsel was

postconviction relief relating to the Domino‘s Pizza murders in a separate proceeding, raising many of the same claims that he raised in this case.

ineffective in failing to challenge the instructions regarding the avoid arrest aggravator and the CCP aggravator; (16) trial counsel was ineffective in failing to challenge the jury instructions relating to the ?committed during the commission of a felony? aggravator; (17) trial counsel was ineffective in failing to challenge the jury instruction relating to the pecuniary gain aggravator; (18) trial counsel was ineffective in failing to challenge the jury instruction relating to the ?under sentence of imprisonment? aggravator; (19) trial counsel was ineffective in failing to object to the introduction of nonstatutory aggravating factors; (20) trial counsel was ineffective in failing to litigate whether the jury was misled as to its role in sentencing; (21) the rule prohibiting the defendant from interviewing the jurors is unconstitutional; (22) trial counsel was ineffective in failing to challenge the trial court‘s decision to instruct the jury on the ?heinous, atrocious, or cruel?

aggravator; (23) trial counsel was ineffective in failing to request a jury instruction on mercy and sympathy; (24) execution by electrocution or lethal injection constitutes cruel and unusual punishment; (25) Florida‘s capital sentencing statute is unconstitutional; (26) trial counsel was ineffective in failing to litigate whether the trial court refused to find and weigh mitigation established in the record; (27) trial counsel was ineffective in failing to object to the trial court‘s finding of the

?avoid arrest? circumstance; (28) Wyatt was denied a proper direct appeal based on an incomplete record; (29) the Florida Supreme Court did not conduct a proper harmless error analysis after striking the CCP aggravator; (30) trial counsel was ineffective in failing to preserve the shackling issue for appeal, which denied Wyatt a fair trial; (31) the finder of fact used unconstitutionally obtained prior convictions as an aggravating circumstance; (32) trial counsel was ineffective in failing to object to the ?commission in the course of a felony? aggravating circumstance on the ground that it operates as an ?automatic? aggravating circumstance; (33) Wyatt‘s conviction and sentence are unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002); (34) newly discovered evidence of false and misleading testimony exists concerning comparative bullet lead analysis (CBLA); and (35) Florida‘s lethal injection statute is an unconstitutional delegation of legislative authority and provides for cruel and unusual punishment.

Following two separate Huff5 hearings, the postconviction court held an evidentiary hearing in August 2007, where Wyatt‘s counsel was permitted to present all the evidence on his postconviction claims as it pertained to both the Nydegger murder and the Domino‘s Pizza murders. The court issued a detailed sixty-six page order denying all claims related to Wyatt‘s third amended motion (claims 1 through 35).

Wyatt appealed the denial of relief to this Court. While the case was pending before this Court, defense counsel received certain letters from the FBI, stating that the FBI agent‘s testimony at Wyatt‘s trial regarding comparative bullet lead analysis (CBLA) ?exceeds the limits of the science and cannot be supported by the FBI.? Based on these letters, Wyatt filed a motion to relinquish jurisdiction to the postconviction court. This Court granted the motion and allowed Wyatt to amend his previous supplement to include this claim and directed the circuit court to hold an evidentiary hearing on the allegations regarding CBLA and the allegations that McCoombs lied at trial, to be considered cumulatively with Wyatt‘s prior postconviction claims. The postconviction court held a second evidentiary hearing and issued another order denying relief. This appeal follows. In addition, Wyatt petitions this Court for a writ of habeas corpus.

ANALYSIS

5. Huff v. State, 622 So. 2d 982 (Fla. 1993).

I. RULE 3.850 CLAIMS

Wyatt raises the following claims on appeal: (1) the postconviction court erred in denying his claims pertaining to CBLA and the testimony of McCoombs; (2) trial counsel rendered ineffective assistance of counsel during the penalty phase; (3) trial counsel was ineffective in failing to object to the introduction of gruesome photographs; (4) Wyatt‘s rights were violated when he was improperly shackled during his trial; (5) Florida Rule of Criminal Procedure 3.852 is unconstitutional; (6) the penalty-phase jury instructions were unconstitutional; and (7) Florida‘s death penalty statute is unconstitutional. We summarily deny claims 3, 4, and 6 as insufficiently pled.6 In addition, we deny without discussion Wyatt‘s challenge pertaining to rule 3.852, based on the reasoning we employed in ruling on this claim in Wyatt‘s postconviction appeal relating to the Domino‘s Pizza murders. See Wyatt v. State, 71 So. 3d 86, 111 (Fla. 2011). We also deny claim 7, challenging the constitutionality of the death penalty, based on our well-established precedent. See, e.g., Tompkins v. State, 994 So. 2d 1072, 1081 (Fla. 2008);

6. Pertaining to claim 3, the introduction of gruesome photographs, counsel has failed to specifically identify any photographs in this case that were improperly admitted. Regarding claim 4, whether Wyatt was shackled, Wyatt concedes the record fails to provide support for this claim, and he is raising it in the event that he is successful in overturning Rule Regulating the Florida Bar 4-3.5(d)(4).

Pertaining to claim 6, the jury instructions claim, counsel fails to discuss which specific instructions were allegedly erroneous or what specific challenges trial counsel should have raised.

Lightbourne v. McCollum, 969 So. 2d 326, 350-53 (Fla. 2007). Wyatt has not made any additional allegations that would call into question the State‘s current methods of execution.

A. Patrick McCoombs

In the first claim we address, Wyatt raises two issues: (1) newly discovered evidence shows that McCoombs‘ testimony on the stand was false and if the jury had been presented with this information, they would have acquitted him; and (2) the prosecutor violated Brady7 and Giglio8 by permitting McCoombs to testify that he was not given any benefit for his testimony and by failing to disclose that the prosecutor assisted McCoombs in obtaining mitigation of his federal sentence after Wyatt‘s trial was concluded, as well as providing other benefits that were not disclosed to the jury or Wyatt. For the following reasons, we affirm the postconviction court‘s denial of relief.

During the Nydegger murder trial, McCoombs testified that he and Wyatt were housed next to each other at the Greenville County Jail in South Carolina before Wyatt was extradited to Florida. Wyatt admitted to killing Nydegger shortly after Wyatt had received a letter from codefendant Lovette. Wyatt ripped

7. Brady v. Maryland, 373 U.S. 83 (1963).

8. Giglio v. United States, 405 U.S. 150 (1972).

up the letter, saying, ?[W]ell, I‘m not going to try to put my crimes on him, anyway, I killed the bitch. I‘ll live up to it, it‘s not like I‘m going to put it on him.?

Later, Wyatt provided more details regarding the murder, telling McCoombs that he first met Nydegger when he was partying at a bar with Lovette. They were both drunk, and Wyatt took her out of the bar so they could have sex. However, once Wyatt got her in the car, he ?didn‘t want to have sex with her anymore, [he] just wanted to kill her.? Wyatt told McCoombs either that he ?blew the top of her head off or blew her brains out.? When McCoombs asked Wyatt why he killed the victim, Wyatt responded, ?I wanted to see her die. . . . [W]hy are you so upset about it, she ain‘t nothing but a bar fly, she ain‘t nobody, nobody cared about her.? Wyatt told McCoombs that he dumped her body at Yeehaw Junction off of Route 60. Wyatt also told McCoombs that he kept two kinds of bullets, regular and hollow-tip, and asked McCoombs whether the State could use it as evidence if he shot a hollow-tip into somebody‘s brain. McCoombs testified that at the time he informed the Marshal‘s Office regarding his conversations with Wyatt, he had already pled guilty in his own case and had never been promised anything in exchange for his testimony.

In raising the current postconviction claim, Wyatt asserts new evidence demonstrates that McCoombs fabricated his trial testimony and that this evidence

would be admissible in a retrial to impeach McCoombs‘ original testimony.9 In support, Wyatt presented evidence at the evidentiary hearing, including the following: the perpetuated testimony of inmates Scott Rollins and Dennis Morrison, both of whom testified that McCoombs allegedly admitted that he lied when he testified against Wyatt; the affidavit of inmate Emilio Bravo, who also claimed that McCoombs stated he lied at trial;10 and McCoombs‘ evidentiary hearing testimony in which he denied that he intended to recant his trial testimony and explained why he wrote the recantation letter.

Wyatt relies principally upon the perpetuated testimony of Rollins and Morrison. However, when Rollins testified, he could not recall many details regarding what McCoombs said. Morrison also testified, stating that McCoombs admitted that Wyatt did not confess to the murder and that McCoombs had received the information to which he testified at trial from the police. Morrison further stated that according to McCoombs, the police wanted Wyatt to talk about

9. While the parties and postconviction court use the word ?recantation? in discussing this claim, Wyatt is not raising an actual recantation claim because McCoombs testified during the evidentiary hearing that he was not recanting his trial testimony. Instead, Wyatt is asserting that new evidence demonstrates that McCoombs fabricated his trial testimony.

10. This affidavit was not admitted at the evidentiary hearing since Bravo refused to submit to questioning.

the location of a gun, which the police already possessed. During the evidentiary hearing, McCoombs testified and explicitly denied that he had lied at trial.

The postconviction court reviewed all of the testimony and found that McCoombs‘ testimony at the evidentiary hearing was more credible than Rollins‘ and Morrison‘s testimony. Of particular importance to the postconviction court, McCoombs‘ trial testimony included statements that McCoombs would not have known about unless Wyatt had told him. This included the following: Wyatt had met Nydegger at a bar and went out to the car with her for fifteen minutes before they came back; he blew the top of her head off and dumped her body near Route 60 at Yeehaw Junction; and Wyatt said that she was ?just a barfly.? The court noted that, based on the timing of when McCoombs and Wyatt were housed near each other, the only discovery document that Wyatt may have had at the time was the State‘s extradition affidavit, which did not contain the facts to which McCoombs testified at trial. Moreover, these facts had not been released to the media.

The postconviction court explicitly found that ?McCoombs‘ evidentiary hearing testimony [was] more credible than the perpetuated testimonies of Rollins and Morrison,? reasoning as follows:

The court finds that the 2002 inmate statements (Rollins and Morrison) and the 2002 recantation letter . . . were unknown at the time of trial and could not have been discovered with due diligence.

As to the second prong of the Jones standard, the court finds the inmate statements inconsistent with McCoombs‘ trial testimony that

did not contain information about the firearms or their location. And the inmate statements are not otherwise relevant or credible because they do not address or refute any material fact contained in

McCoombs‘ extensive trial testimony. . . . As a result, the court finds McCoombs‘ evidentiary hearing testimony more credible than the

perpetuated testimonies of Rollins and Morrison. Consequently, even if admissible, the inmate statements would have no evidentiary or impeachment value.

In evaluating the second prong of Jones for the recantation letter, the court finds that McCoombs did not recant his trial testimony but merely made veiled threats of recantation to call attention to harsh conditions of confinement eleven years after he was a government witness at Wyatt‘s trials. Further, the court finds no evidence that McCoombs lied at trial. Much of McCoombs‘ extensive trial testimony at both [Wyatt‘s Domino‘s Pizza murders trial and Nydegger‘s murder trial] is consistent with, and corroborated by, other trial testimony and evidence.

In addition the court finds that Wyatt has not proven a source

other than Wyatt for any facts testified to by McCoombs, or disproved any of the facts testified to by McCoombs. Consequently, the recantation letter is immaterial to the merits of the case, and lacks impeachment value when viewed as a complaint concerning conditions of confinement eleven years after Wyatt‘s trials.

The postconviction court correctly analyzed this claim under Jones v. State, 709 So. 2d 512, 521 (Fla. 1998), which requires the defendant to meet the following two-pronged test: (1) ?the evidence ?must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence‘ ?; and (2) the evidence ?must be of such nature that it would probably produce an acquittal on

retrial.? Id. (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla.

1994)). Further, the court must ? ?consider all newly discovered evidence which would be admissible‘ at trial and then evaluate the ?weight of both the newly discovered evidence and the evidence which was introduced at the trial.‘ ? Id. (quoting Jones v. State, 591 So. 2d 911, 916 (Fla. 1991)). This Court does not second-guess the trial court‘s credibility determinations and factual findings to the extent they are supported by competent, substantial evidence. Melendez v. State, 718 So. 2d 746, 747-48 (Fla. 1998).

Here, the postconviction court denied relief, holding that McCoombs‘ testimony was more credible than the inmates‘ testimony, and that McCoombs‘ testimony was consistent with the record. The record provides competent, substantial evidence supporting the court‘s findings of fact. In fact, as it applies to this case, it is unclear whether the inmates‘ testimony concerning the gun could even apply to the Nydegger murder. In this case, Freddie Fox stole Wyatt‘s gun and sold it to a pawn shop. Thus, Morrison‘s statements that the police were requesting McCoombs to obtain certain statements from Wyatt to verify the location of the gun were inconsistent with the record, as the police knew Fox had stolen Wyatt‘s gun and pawned it. Accordingly, we deny relief on Wyatt‘s newly discovered evidence claim relating to McCoombs.

Wyatt next alleges that the State violated Giglio because the State permitted McCoombs to testify falsely regarding whether McCoombs would receive various

benefits in exchange for his testimony against Wyatt. Specifically, he asserts that because McCoombs testified against Wyatt, the State helped McCoombs obtain a reduction in McCoombs‘ federal sentence and that the prosecutor left the jury with the false impression that McCoombs‘ federal sentence was already fixed and failed to correct this false impression. In order to prove a Giglio violation, ?a defendant must show that (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was

material.? Tompkins, 994 So. 2d at 1091 (quoting Rhodes v. State, 986 So. 2d 501, 508-09 (Fla. 2008)). The evidence is considered material ?if there is any reasonable possibility that it could have affected the jury‘s verdict.? Id. (quoting Rhodes, 986 So. 2d at 509). In order to meet this standard, the State must ?prove that the false testimony was not material by demonstrating it was harmless beyond a reasonable doubt.? Id. (quoting Rhodes, 986 So. 2d at 509).

The postconviction court denied relief in an extensive order, relying on McCoombs‘ and prosecutor Morgan‘s testimony at the evidentiary hearing where both witnesses explicitly denied that they were aware that the state prosecutor had the ability to help McCoombs reduce his already imposed federal sentence and further denied that they had any agreement for sentence mitigation in exchange for McCoombs‘ trial testimony. As the court noted, Wyatt failed to present any evidence to refute this testimony. In fact, Wyatt acknowledges this, but asserts that

the lack of a ?smoking gun? is not the end of the inquiry and he challenges the postconviction court‘s findings on credibility. However, to support this claim, Wyatt relies solely on speculation.

As this Court has repeatedly held, in reviewing such claims on appeal, we are ?bound by the trial court‘s credibility determinations and factual findings to the extent they are supported by competent, substantial evidence.? Rodriguez v. State, 39 So. 3d 275, 285 (Fla. 2010) (quoting Jones v. State, 998 So. 2d 573, 580 (Fla. 2008)). Here, the postconviction court denied relief, finding that McCoombs‘ and Morgan‘s testimony was credible and that Wyatt failed to show that the State presented false testimony at the guilt or penalty phase. In judging the credibility of these witnesses, the court took careful note as to the fact that McCoombs‘ testimony was consistent with the facts established from the record and was consistent with Morgan‘s testimony, while the witnesses presented by Wyatt were not consistent with the record. The record provides competent, substantial evidence supporting the court‘s findings of fact. Accordingly, we deny relief.

Finally, Wyatt alleges that the State violated Brady because the State failed to disclose that it had reached an agreement with McCoombs where McCoombs would receive various benefits in exchange for his testimony against Wyatt. In order to establish a Brady violation, the defendant must demonstrate that (1) favorable evidence, either exculpatory or impeaching, (2) was willfully or

inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Way v. State, 760 So. 2d 903, 910 (Fla. 2000). To meet the materiality prong, the defendant must demonstrate ?a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.? Way, 760 So. 2d at 913 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A reasonable probability is a probability sufficient to undermine this Court‘s confidence in the outcome. Id.; see also Strickler, 527 U.S. at 290.

This claim suffers from the same problems as the Giglio claim—Wyatt has completely failed to show any evidence that there was such an agreement between the State and McCoombs. Accordingly, the postconviction court denied relief based on the lack of evidence to support Wyatt‘s claim and its determinations that McCoombs and Morgan were credible during the evidentiary hearing. Because the record provides competent, substantial evidence supporting the court‘s findings of fact, we likewise deny relief on Wyatt‘s Brady claim.

For the reasons addressed above, we deny relief on this claim because it is without merit.11

11. Wyatt alleges that the postconviction court erred because it did not consider the cumulative effect if both the CBLA and McCoombs‘ testimony are excluded. However, as addressed above, because we hold that the McCoombs

B. CBLA

Wyatt also contends that he is entitled to a new trial because newly discovered evidence establishes that the FBI admitted to providing false testimony in his trial, which constitutes either a Brady or Giglio violation. Alternatively, he alleges that he is entitled to relief based on newly discovered evidence under Jones. In addition, he summarily asserts that he received ineffective assistance of counsel.12

At the trial, the State called FBI Agent Riley, who testified as an expert on CBLA, which compares the elemental composition of lead bullets for forensic value. Specifically, Agent Riley opined that by comparing the elemental composition of the bullets found in the victim with bullets that Wyatt was known to have possessed after the murder, he was able to determine that the bullet found in Nydegger and the bullets Wyatt possessed after the murders ?came from the same box of ammunition? or from another box of ammunition that was manufactured at the same place on the same date.

claim is without merit, this Court does not need to employ a cumulative error analysis.

12. The parties raise many of the same legal issues that were presented in the postconviction appeal in the Domino‘s Pizza murder case: whether the CBLA claim is time-barred; whether the documents supporting the CBLA claim can constitute newly discovered evidence; whether the State violated Brady and Giglio; and whether counsel rendered ineffective assistance of counsel in failing to challenge CBLA evidence. See Wyatt, 71 So. 3d at 97-103.

Years after Wyatt‘s trial, on February 10, 2004, the National Research Council (NRC) published a report that questioned the scientific reliability as to certain aspects of CBLA testimony. On September 1, 2005, the FBI issued a press release announcing that the agency was discontinuing its use of CBLA. On August 7, 2008, while the postconviction appeal was pending before this Court, the FBI informed the State by letter that it had reviewed Agent Riley‘s testimony in this case and concluded that his testimony exceeded the scope of the science of CBLA. The letter stated in pertinent part:

After reviewing the testimony of the FBI examiner, it is the opinion of the Federal Bureau of Investigation Laboratory that the examiner stated or implied that the evidentiary specimen(s) could be associated to a single box of ammunition. This type of testimony

exceeds the limits of the science and cannot be supported by the FBI.

Your office is encouraged to consult appellate specialists in your jurisdiction to determine whether you have any discovery obligations with respect to the finding stated above. As directed by the Department of Justice, we are notifying the Chief Judge of the court in which this case was tried of the results of our review by copying him or her on this letter.

Additionally, you should be aware that the FBI is cooperating with the Innocence Project. The Innocence Project is interested in determining whether improper bullet lead analysis testimony was material to the conviction of any defendant, and, if so, to ensure appropriate remedial actions are taken.

Based on this letter, Wyatt raised a Giglio claim and a Brady claim, asserting that the State withheld evidence and failed to correct false testimony given by Agent Riley regarding whether CBLA could support the determination that a certain bullet originated from a certain box of ammunition.

This Court relinquished jurisdiction following the State‘s receipt of the FBI letter, and the postconviction court conducted a second evidentiary hearing. The court subsequently denied relief on the revised CBLA claim. We agree with the postconviction court. Wyatt‘s Giglio claim suffers from the same concern that we have thoroughly discussed in the opinion on the postconviction appeal arising from the Domino‘s Pizza murder case—Wyatt failed to present any evidence that the prosecutor had knowledge of the problems pertaining to CBLA evidence at the time of trial. Wyatt, 71 So. 3d at 101-02. Accordingly, we deny Wyatt‘s Giglio claim for the reasons addressed in the postconviction appeal relating to the Domino‘s Pizza murder case. See id. at 102 (?[T]he postconviction court properly found that Wyatt presented no evidence that the prosecutor had knowledge of these alleged falsehoods. As Wyatt‘s own experts indicated, research uncovering flaws in CBLA did not surface until well after Wyatt‘s trial. Thus, Wyatt has failed to satisfy the second prong of Giglio . . . .?).

He also raises a Brady claim, asserting that the State suppressed favorable evidence because the State failed to disclose that the CBLA technique to which Agent Riley testified at trial was unscientific and unsound and that there was a lack of comprehensive research necessary to ensure the reliability of CBLA results. Again, as we held in Wyatt, 71 So. 3d at 103:

Wyatt has not satisfied the second prong of Brady. Wyatt‘s own experts testified that neither the 2008 letter nor any comprehensive

research uncovering the flaws in CBLA existed until well after

Wyatt‘s trial in 1991. Accordingly, the State could not have willfully or inadvertently suppressed such information.

Wyatt briefly asserts that he received ineffective assistance of counsel ?[t]o the extent that defense counsel could have known that junk science was being used against [him].? However, as discussed in more detail in our opinion regarding the Domino‘s Pizza murder case, Wyatt has failed to present any evidence that counsel could have discovered the flaws in the CBLA evidence when this evidence did not exist until years after Wyatt‘s trial was concluded. Id. Defense counsel hired an expert to review the FBI‘s CBLA analysis, but did not present this expert at trial because the expert did not have an opinion that was favorable to the defense. Id. Accordingly, we deny this claim.

In Wyatt‘s remaining CBLA claim, he asserts that he is entitled to a new trial because newly discovered evidence shows that the CBLA testimony, which was relied upon at trial, exceeded the bounds of the science. As addressed above, to obtain a new trial based on newly discovered evidence: (1) ?the evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence?; and (2) the evidence ?must be of such nature that it would probably produce an acquittal on retrial.? Jones, 709 So. 2d at 521 (internal quotation marks omitted). The postconviction court denied this claim, holding that

the letter did not meet the first prong of Jones because the letter was not in existence at the time of the 1991 trial. For the reasons we set forth in more detail in our opinion on the Domino‘s murders, we hold that the postconviction court erred in concluding that the CBLA claim did not constitute newly discovered evidence on this basis. See Wyatt, 71 So. 3d at 99-100.13 We hold that the case-specific letter authored by the FBI in this case constitutes newly discovered evidence because the letter consists of facts that Wyatt could not have known at the time of trial, and neither Wyatt nor defense counsel could have known of the facts by the use of diligence.

Thus, we turn to the second prong of Jones—whether this newly discovered evidence is of such a nature that it ?would probably produce an acquittal on

retrial.? Jones, 709 So. 2d at 521. We conclude that this would not probably produce an acquittal for several reasons. First, the CBLA evidence as it was presented at trial supported only that the bullet from the victim matched the bullets that Wyatt left with Fox. As defense counsel elicited during the cross-examination

13. As addressed in that opinion, the postconviction court reached this conclusion based on language in Kearse v. State, 969 So. 2d 976, 987 (Fla. 2007), which involved different circumstances and stated that the ?evidence must have existed . . . at the time of trial.? We have since clarified that the language ?must have existed . . . at the time of trial,? which was promulgated by this Court in Kearse and applied by the postconviction court in this case, has never been a part of the newly discovered evidence analysis and was an incorrect recitation of the test set forth in the Jones decision. Wyatt, 71 So. 3d at 100.

of Agent Riley, the CBLA testing did not reveal who purchased the bullets or whether Wyatt or Lovette fired the fatal bullet.

Furthermore, the evidence against Wyatt included the following: Wyatt admitted to being with Nydegger at the bar and leaving with her; her body was found the next day across the State on State Route 60—close to where he had previously abandoned a stolen car; near Nydegger‘s body were stuffed animals that were consistent with the animals that she won from the crane game that she had played with Wyatt; Wyatt admitted driving her car on the afternoon after she was murdered, which he later abandoned; a pillow found in her abandoned car was similar to the pillows at the hotel where Wyatt stayed the night that he met Nydegger; Wyatt had possessed a gun that was consistent with having fired the fatal shot; when Wyatt discovered that Fox had pawned this gun, he was angry and told Fox that he had used the gun to kill; upon his arrest in South Carolina, Wyatt admitted that his alter ego ?Jim? had killed and did bad things in Florida.

In addition, a fellow inmate, Patrick McCoombs, testified that Wyatt admitted he killed Nydegger and that he had wanted to kill her ever since he left the bar with her that evening. He told McCoombs that he blew off the top of her head and dumped the body on State Route 60 near Yeehaw Junction. These details were consistent with the evidence presented at trial and were not available from any source other than Wyatt himself. Based on all of the evidence presented, the

elimination of the CBLA evidence would not ?probably produce an acquittal? in light of the overwhelming evidence of Wyatt‘s guilt. Thus, we deny relief.

C. Ineffective Assistance of Counsel at Penalty Phase

Wyatt alleges that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because counsel (1) failed to fully investigate Wyatt‘s social history and present additional family and friends as witnesses to discuss Wyatt‘s abusive childhood and history of drug and alcohol abuse; (2) failed to provide a full social history to Dr. Sheldon Rifkin;14 and (3) failed to present the testimony of a mental health expert who could explain the nexus between Wyatt‘s long history of child abuse and drug use and the crime.15

14. Because this claim focuses on defense counsel‘s alleged deficiencies rather than the deficiencies of his mental health expert, it is properly analyzed under Strickland, as opposed to a claim under Ake v. Oklahoma, 470 U.S. 68 (1988). See Raleigh v. State, 932 So. 2d 1054, 1062 n.13 (Fla. 2006).

15. In addition, Wyatt asserts two additional claims that we summarily deny because they are refuted by the record. First, Wyatt alleges that his counsel failed to secure the evaluation of a neuropsychologist. However, the record shows that in this proceeding, his trial counsel did indeed move for the trial court to appoint a neuropsychologist for use in the Nydegger murder trial, a request the trial court denied. Counsel cannot be deficient merely because his motion was unsuccessful. Second, Wyatt asserts that counsel failed to proffer all of the mitigation to the trial court after Wyatt waived mitigation. However, in this case, Wyatt did not waive mitigation. Thus, this claim is also denied.

As it pertains to this case, the postconviction court denied this claim, holding that defense counsel did fully investigate Wyatt‘s background and social history, stating as follows:

Wyatt claims that counsel was ineffective for failing to adequately investigate and present mitigating evidence. The crux of [this claim] is that counsel failed to investigate and/or present the testimony of five additional lay witnesses: Sara Cox, Wyatt‘s third grade teacher; Darlene Smith, Wyatt‘s maternal aunt; Christina Powell, Wyatt‘s ex-wife; Renee, Wyatt‘s daughter; and Wayne Edmonson, Wyatt‘s maternal uncle. Wyatt contends that these lay

witnesses would have disclosed additional facts concerning: the abuse and neglect of Wyatt by his father, stepfather, and grandmother; the

impact on Wyatt of his mother‘s severe mental illness and her related hospitalizations; the history of Wyatt‘s substance abuse since he was a teenager; the sexual abuse of Wyatt by a teacher; and the impact on

Wyatt of his child‘s death. In addition, Wyatt claims that trial counsel failed to present expert witness, Dr. Rifkin, or another expert to

provide the jury with ?some basis of understanding? Wyatt‘s behavior and to ?explain the nexus between Wyatt‘s long history of abuse and drug use and crime.?

As to the lay witnesses, examination of the trial record reveals that during the penalty phase, counsel presented the mitigation testimony of six lay witnesses: Norberto Pietri, a fellow deathrow inmate; Jean McDaniels, Wyatt‘s mother; Pamela Caudill, Wyatt‘s sister; Barry Wyatt, Wyatt‘s brother; Kim Wyatt, Wyatt‘s sister-in-law; and Max Phillips, Wyatt‘s maternal uncle. These lay witnesses testified to: Wyatt‘s caring character; the abuse and neglect of Wyatt by his father and stepfather; the impact on Wyatt of his mother‘s severe mental illness and her related hospitalizations; the history of

Wyatt‘s substance abuse since he was a teenager; and the sexual abuse of Wyatt by a teacher. Consequently, Wyatt was not prejudiced by the failure to present the five additional lay witnesses because their mitigation testimony would have been largely cumulative to the evidence presented by the six lay witnesses that did testify at the penalty phase. Gilliam v. State, 817 So. 2d 768, 781 (Fla. 2002).

And, counsel cannot be found ineffective for failing to investigate and

present cumulative mitigation evidence. Downs v. State, 740 So. 2d 506, 516 (Fla. 1999).

As to the expert witnesses, none were presented at the penalty phase even though Dr. Rifkin and Dr. MacMillan were consulted in the preparation of mitigation evidence. At the evidentiary hearing, [defense counsel] Litty described the mitigation investigation that was conducted for the penalty phase including the documents that were delivered to Dr. Rifkin and reviewed by Litty. Wyatt points to no specific mitigation document that defense counsel failed to obtain and deliver to Dr. Rifkin and/or Dr. MacMillan, or that counsel failed to review for the penalty phase.

Litty explained that counsel made a tactical decision to present mitigation testimony through lay witnesses who were ?very cooperative, very compelling, and very effective?; thus preventing the introduction of the following unfavorable evidence that would come in if Dr. Rifkin and/or Dr. MacMillan had testified: Wyatt displayed no evidence of brain damage; Wyatt had a notorious and infamous reputation for being aggressive starting in middle school; in middle school and junior high school Wyatt was involved in all kinds of criminal activities; Wyatt had been physically abusive toward his wife; Wyatt beat a person for at least 30 minutes and locked him in a trunk; Wyatt demonstrated a bias toward homosexual advances; Wyatt has been locked up since he was a juvenile; Wyatt ?has shown great entrepreneurship and ingenuity manipulating the system?; Wyatt‘s prison nickname was ?Killer? for his willingness to fight; Wyatt was diagnosed with an antisocial personality with no psychological defenses to his actions; Wyatt‘s ?frustration could lead to unpredictable, violent and traumatic, if not catastrophic results?; Wyatt demonstrates underlying dependency needs and a need to dominate most interpersonal situations; Wyatt is insensitive to the needs of others; relies heavily on immediate gratification; steals and deals in drugs; is irritable, aggressive, and belligerent when he does not obtain his immediate goals and desires; and Wyatt is impulsive, impetuous, demonstrates a pattern of lying, is reckless and shows a disregard for personal safety.

Wyatt counters that counsel should have presented a mental health expert, like postconviction expert witness Dr. Faye Sultan, at the penalty phase to explain how Wyatt‘s violent childhood resulted in Wyatt becoming a violent adult; and to ?neutralize? otherwise damaging mental health and social history such as the harmful

information contained in Dr. Rifkin‘s report, and Wyatt‘s prior psychological assessments and prison records. The court finds Dr. Sultan‘s evidentiary hearing testimony merely a different mental health opinion based on facts largely cumulative to the mitigation evidence investigated and presented by counsel at the penalty phase, and thus not sufficient to support a claim of ineffective assistance of counsel. Cornell v. Dugger, 558 So. 2d 422, 426 (Fla. 1990) (reasoning mental health examination is not inadequate simply because defendant is able to find experts later to testify favorably based on similar evidence). Therefore, absent a finding that Wyatt‘s mental health evaluation was inadequate, Wyatt fails to demonstrate deficient performance and prejudice.

Based on the foregoing analysis, the court finds that counsel conducted a reasonable investigation into Wyatt‘s background. Further, the court finds that counsel made a reasonable tactical decision to present mitigation evidence through lay witnesses after conducting the reasonable mitigation investigation. Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).

In order to show that counsel rendered ineffective assistance, the defendant has the burden to show: (1) that counsel‘s performance was deficient, i.e., that

?counsel made errors so serious that counsel was not functioning as the ?counsel‘ guaranteed the defendant by the Sixth Amendment?; and (2) that the deficient performance prejudiced the defense, i.e., that ?counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.? Strickland, 466 U.S. at 687. ?When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant‘s burden as showing that counsel‘s ineffectiveness ?deprived the defendant of a reliable penalty phase proceeding.‘ ? Asay v. State, 769 So. 2d 974, 985 (Fla. 2000) (quoting Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1998)). In reviewing a

postconviction court‘s order, this Court gives deference to the trial court‘s factual findings, so long as they are supported by competent, substantial evidence, and independently reviews the court‘s legal conclusions. Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010).

1. Full Investigation and Presentation of Wyatt‘s Social History

In Wyatt‘s first subclaim on this issue, he asserts that his counsel was ineffective in failing to undertake a complete investigation into Wyatt‘s social history and if counsel had done so, counsel could have presented the following information to the jury: Wyatt‘s father was physically and emotionally abusive to Wyatt from a very tender age, including forcing him out of babyhood by taking him out of his crib too soon, removing his bottle from him too soon, poking him repeatedly in the chest until he bruised, and yelling at him to be a man; Wyatt witnessed his father choking his mother; Wyatt‘s mother was involved with a series of men who were abusive to her and her children; Wyatt‘s stepfather was extremely cruel to his children, especially Wyatt; Wyatt‘s stepfather forced the children to fight each other; Wyatt‘s mother ran off with another man when Wyatt was sixteen, and his stepfather forced him to run after her and try to get his mother back; Wyatt‘s mother was severely mentally ill and institutionalized throughout much of Wyatt‘s childhood, requiring that Wyatt‘s grandmother care for him; Wyatt confided to Sarah Cox as to some of the things that his mother would do

when she was mentally ill, including throwing plates at a wall or running around the house naked; Wyatt abused drugs and alcohol at a very early age; and one of Wyatt‘s elementary teachers sexually abused Wyatt by performing oral sex on him, which had a profound effect on Wyatt, including deep feelings of rage and shame.

The postconviction court denied this claim, finding that much of this evidence was cumulative to evidence that was presented at the penalty phase. After reviewing the full record, we agree. At the penalty phase, Wyatt‘s mother, Jean McDaniel, testified. She described her mental illness in detail, including the effect it had on Wyatt. She also provided significant information about Wyatt‘s difficult childhood, including the abuse he suffered from his natural father as his father tried to make sure that Wyatt would ?be a man.? McDaniel also testified as to the emotional abuse that Wyatt suffered from his stepfather when she remarried. McDaniel provided very compelling testimony regarding a male teacher who paid particular attention to Wyatt and picked him up from his grandmother‘s house to spend time with him. She later learned that this teacher sexually abused her son

and did the same thing to others in the community, devastating them. According to Wyatt‘s mother, things changed drastically for Wyatt after this incident. In addition, McDaniel recalled a time when she decided to leave her family for a total stranger. Wyatt tried to ?bring his mama back,? but when they reached Columbia,

South Carolina, she set him out of the car on the side of the street, even though he did not have any money.

Counsel also called Wyatt‘s sister, who testified how difficult it was to grow up as a child in their family, based on their mother‘s mental illness, their father‘s abuse, and their stepfather‘s emotional abuse. She testified that as he got older, Wyatt turned to drugs. Other family members, including Wyatt‘s brother and uncle, testified to similar circumstances.

Although Wyatt alleges that trial counsel was ineffective because counsel failed to discover and present certain evidence, the record shows that this favorable evidence had already been presented through lay witnesses. Moreover, if defense counsel had presented a mental health expert to testify as to such matters, this would have provided the State with the opportunity to cross-examine the expert regarding significant unfavorable aspects regarding Wyatt. This was one of the very reasons that defense counsel chose not to present a mental health expert in this case—a decision that was made after consulting with Wyatt himself. Wyatt is unable to point to any significant evidence that was not already presented to the jury. As this Court has held, a defendant can show neither ineffectiveness nor prejudice by asserting that his counsel failed to present testimony that would have been cumulative to testimony the jury already heard. See Stewart v. State, 37 So. 3d 243, 258 (Fla. 2010) (?Because the evidence that Stewart argues should have

been presented is cumulative, Stewart has demonstrated neither deficiency nor prejudice.?). Accordingly, we deny this subclaim.

2. Failure to Present Dr. Rifkin

In his next subclaim, Wyatt alleges that his counsel was ineffective in failing to present Dr. Rifkin.16 The postconviction court found that counsel made a strategic choice regarding the decision to not call Dr. Rifkin as a witness because this decision prevented very damaging testimony from being disclosed to the jury. We affirm this ruling.

The record establishes that counsel made a strategic choice in not presenting this witness because if counsel had chosen to present Dr. Rifkin, the State could have cross-examined this expert regarding significant damaging evidence that Dr. Rifkin relied upon in making his report. This damaging evidence included the following: Dr. Rifkin was unable to find any evidence of brain damage or significant mitigating circumstances; Wyatt developed a reputation in middle school for being aggressive and became involved in criminal activity; Wyatt stole his grandmother‘s car; when he was released from prison at 17, his attitude was

16. Wyatt also alleges that counsel was ineffective by failing to present Dr. Rifkin with Wyatt‘s full social history. We deny this portion of the claim as insufficiently pled since Wyatt has failed to point out or present any evidence to support this claim, other than his conclusory statements. Moreover, even if the Court considered this claim on the merits, a review of Dr. Rifkin‘s report demonstrates that Dr. Rifkin knew about Wyatt‘s social history and relied on that information significantly.

that people should not ?f—? with him because he was dangerous; Wyatt was physically abusive to his wife; Wyatt bragged that he was very effective at manipulating the system; Wyatt continued drug activities in prison where he was known by the nickname ?Killer?; and Wyatt had antisocial personality disorder with criminal tendencies.

This Court has repeatedly 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, 768 So. 2d at 1048. Here, based on the significant damaging testimony that likely would have been disclosed if Dr. Rifkin testified,

we conclude that counsel was not ineffective in failing to present this witness but instead choosing to present lay witnesses who would testify as to the mitigating circumstances without exposing the defense to the same type of damaging testimony as Dr. Rifkin‘s testimony would have done. Accordingly, we deny relief on this claim.

3. Failure to Present the Testimony of a Mental Health Expert Regarding the

Nexus Between Child Abuse and Drug Use and the Crime

In the third and final subclaim, Wyatt contends that his trial counsel was ineffective in failing to present the testimony of a mental health expert regarding the nexus between child abuse and drug usage and this crime. In support, at the

evidentiary hearing, Wyatt presented Dr. Faye Sultan, who recalled much of the same abusive stories as to Wyatt‘s childhood that the jury heard. Dr. Sultan then opined that because Wyatt was a victim of crimes and an abusive childhood, this background had a direct connection to the crimes that he later committed. The postconviction court denied this subclaim, stating as follows: ?The court finds Dr. Sultan‘s evidentiary hearing testimony merely a different mental health opinion based on facts largely cumulative to the mitigation evidence investigated and presented by counsel at the penalty phase, and thus not sufficient to support a claim of ineffective assistance of counsel.?

We affirm the denial of relief on this subclaim. As this Court has repeatedly held, a defendant cannot establish that trial counsel was ineffective in obtaining and presenting mental mitigation merely by presenting a new expert who has a more favorable report. See Peede v. State, 955 So. 2d 480, 494 (Fla. 2007) (?The fact that Peede produced more favorable expert testimony at his evidentiary hearing is not reason enough to deem trial counsel ineffective.?). Here, Wyatt alleges nothing more other than that his expert had a different opinion from Dr. Rifkin, who found little mitigation in this particular case. For the reasons above, we deny relief on this claim.

II. HABEAS CORPUS PETITION

Wyatt also filed a petition for writ of habeas corpus, asserting that his appellate counsel was ineffective by failing to raise four meritorious claims on appeal. In order to be entitled to relief, Wyatt must show: ?appellate counsel‘s performance was deficient because ?the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance‘ ?; and ?the petitioner was prejudiced because appellate counsel‘s deficiency ?compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.‘ ? Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000) (emphasis omitted) (quoting Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000)). This Court will not find appellate counsel‘s performance ineffective for failing to raise an issue that would have been found to be procedurally barred if it had been raised on direct appeal or for failing to raise an issue that ?would in all probability have been found to be without merit? had counsel raised the issue on direct appeal. Id. (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)). Moreover, as appellate counsel must often limit the brief to assert only the strongest arguments, this Court has held that ?appellate counsel is not necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivolous issue.? Valle v. Moore, 837 So. 2d 905, 908 (Fla. 2002).

A. Failure to Raise Claim Regarding Prior Markings on the Evidence

In his first habeas claim, Wyatt asserts that his appellate counsel was ineffective in failing to raise the claim that the trial court erroneously admitted, over objection, specific pieces of evidence that had markings demonstrating that the evidence had been used in another case or markings that used the word

?homicides.? Although the record shows that the trial court cured these issues by marking out those notations, Wyatt speculates that this would have been difficult to do, based on the number of markings. He further hypothesizes that the jury may have been able to decipher the markings and may have been able to determine that this evidence was introduced in a separate trial regarding other crimes against Wyatt.

Counsel was not ineffective in failing to raise this claim on direct appeal because, although defense counsel initially objected to the markings, the trial court cured this objection by removing the markings. Defense counsel did not reassert that this action was insufficient. Thus, the issue was procedurally barred. Moreover, counsel cannot be considered ineffective for failing to raise an argument that relies on pure speculation. See Knight v. State, 923 So. 2d 387, 394 (Fla. 2005) (rejecting defendant‘s claim that appellate counsel was ineffective in failing to challenge on appeal the court‘s refusal to individually voir dire prospective jurors regarding their views on the death penalty, finding that such a claim

amounted to little more than speculation). Counsel speculates that the jury would understand that the markings showed the evidence was admitted in another case against Wyatt himself, as opposed to being used in trial against codefendant Lovette. Wyatt has failed to demonstrate that appellate counsel‘s deficiency, if any, ?compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.? Rutherford, 774 So. 2d at 643 (quoting Thompson, 759 So. 2d at 660). Accordingly, we deny this claim.

B. Failure to Raise Claim Regarding the Admission of a Gruesome Photograph

Second, Wyatt asserts that his counsel was ineffective in failing to challenge the ruling pertaining to the admission of a gruesome photograph, which showed one of the victim‘s tattoos, as well as blood on the victim‘s face. We deny this claim since the record reflects that appellate counsel did raise this issue on direct appeal.

C. Failure to Raise Claim Regarding Questions During Voir Dire

In his third claim, Wyatt alleges that his appellate counsel was ineffective in failing to challenge a line of questioning during voir dire where the State discussed that sometimes a murder occurs in order to eliminate a witness. Defense counsel objected, asserting that the prosecutor was attempting to give an opening statement during voir dire. The trial court overruled the objection, and the prosecutor

continued asking a juror if he understood that the State could prove its case without relying on eyewitness testimony to the murder. Counsel objected again.

As this Court has recognized, ?where a juror‘s attitude about a particular legal doctrine . . . is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions.? Geralds v. State, 35 Fla. L. Weekly S503, S512 (Fla. Sept. 16, 2010) (quoting Walker v. State, 724 So. 2d 1232, 1233 (Fla. 4th DCA 1999)). The scope of voir dire questioning rests in the sound discretion of the trial court, and we will not disturb the trial court‘s ruling unless the court clearly abused its discretion. Id. The State can inquire from the prospective jurors on matters regarding the burden of proof and whether a juror can apply the law even though the State would not be presenting any eyewitness testimony. In addition, the State can discuss possible aggravating circumstances in the abstract where the State believes the evidence would support such factors. Wyatt‘s argument assumes that the discussion of legal theories in the abstract will bias the jurors and cause them to presume such circumstances transpired in the

case before them. However, as Wyatt recognizes, after counsel objected, the trial judge explicitly instructed the jurors that such circumstances did not necessarily occur in this case.

Even if the statement had been improper, however, Wyatt failed to establish prejudice—that ?appellate counsel‘s deficiency ?compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.‘ ? Rutherford, 774 So. 2d at 643 (quoting Thompson, 759 So. 2d at 660); see, e.g., Bell v. State, 965 So. 2d 48, 78-79 (Fla. 2007) (holding that the defendant failed to establish his appellate counsel was ineffective in failing to challenge a ruling pertaining to an isolated comment that was made during voir dire before the presentation of evidence even began). Thus, we deny this claim.

D. Failure to Challenge Rule Regarding Prohibition of Juror Interviews

Finally, Wyatt claims that appellate counsel rendered ineffective assistance by failing to challenge Florida‘s rule that prohibits counsel from interviewing jurors, which he contends is unconstitutional. We have consistently rejected this same claim. See, e.g., Wyatt, 71 So. 3d at 112 n.20; Floyd v. State, 18 So. 3d 432, 459 (Fla. 2009) (?[W]e have repeatedly rejected claims that rule 4-3.5(d)(4) is

unconstitutional.?). Accordingly, appellate counsel was not ineffective for failing to raise this nonmeritorious issue on direct appeal.

CONCLUSION

Based on the foregoing, we affirm the postconviction court‘s denial of relief, and we also deny Wyatt‘s habeas petition.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

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

Two Cases:

An Appeal from the Circuit Court in and for Indian River County,

Lisa Davidson, Judge – Case No. 88-748CF(CT IV)

And an Original Proceeding – Habeas Corpus

Neal A. Dupree, Capital Collateral Regional Counsel, Rachel L. Day and M. Chance Meyer, Assistant CCR Counsel, Southern Region, Fort Lauderdale, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida,

for Appellee/Respondent

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PAUL CHRISTOPHER HILDWIN vs. STATE OF FLORIDA

Thursday, November 10th, 2011

Supreme Court of Florida

THURSDAY, NOVEMBER 10, 2011

CASE NO.: SC10-1082

PAUL CHRISTOPHER HILDWIN vs. STATE OF FLORIDA

Petitioner(s) Respondent(s)

Paul Christopher Hildwin, a prisoner under sentence of death, filed an all writs petition, seeking an order from this Court directing the Florida Department of Law Enforcement (FDLE) to upload the DNA profile from semen and saliva found on items at the crime scene into the National DNA Index System (NDIS) so that it may be compared in CODIS (the Combined DNA Index System) with forensic profiles obtained from other crime scenes and the profiles of known offenders. Hildwin alternatively requests that the profile be uploaded in Florida?s State DNA Index System (SDIS) or that a one-time manual “keyboard” search be performed in NDIS or Florida?s SDIS. We have jurisdiction. See art. V, § 3(b)(7), Fla. Const.

The State responded that the petition is procedurally barred; the State also contended that the profile may not be eligible to upload and that factual development as to the profile?s eligibility may be appropriate. After determining that this petition is not procedurally barred, the Court relinquished jurisdiction to the circuit court for fact-finding as to the profile?s eligibility to be uploaded and manually searched in the databases.

Prior to the evidentiary hearing, all impediments to the profile?s upload were resolved with the exception of NDIS Procedure 6.4.2, which provides:

A laboratory submitting a DNA profile to the Forensic Index at NDIS that is derived from forensic evidence, shall only offer those alleles that are attributed to the putative perpetrator(s). Alleles

derived from forensic profiles that are unambiguously attributed to a victim or individuals other than the perpetrator(s), such as, but not limited to a husband or boyfriend, shall not be offered to NDIS.

After conducting an evidentiary hearing, the circuit court entered an order finding that the profile was from “an unknown source derived from forensic evidence which has some nexus to the crime scene, crime investigation, and

„evidence? at trial, and which cannot unambiguously . . . be attributed to an identifiable individual not a perpetrator in the homicide of Vronzettie Cox.” The

CASE NO.: SC10-1082 PAGE TWO

circuit court found that NDIS Procedure 6.4.2 did not preclude uploading the profile into NDIS. The circuit court therefore found that the profile was eligible to be uploaded into, as well as manually searched in, both NDIS and Florida?s SDIS. The circuit court further suggested that the DNA profile should be compared in the DNA databases.

Having reviewed the record and the facts of this case, we conclude that competent, substantial evidence supports the circuit court?s finding that the profile is eligible to be uploaded into NDIS. We conclude that the profile at issue is probative and meets the requirements of NDIS Procedure 6.4.2. Accordingly, we hereby grant Hildwin?s all writs petition and order the State to ensure that the profile is promptly uploaded into the forensic index in NDIS so that it may be included in that database and searched in CODIS.

In light of our order that the profile be uploaded into NDIS, it is unnecessary to decide whether the profile is eligible for upload into Florida?s SDIS or eligible for a manual keyboard search in NDIS or Florida?s SDIS.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, C.J., concurs in result.

POLSTON, J., concurs in result only.

A True Copy Test:

jn Served:

ROCK E. HOOKER NINA R. MORRISON

KENNETH SLOAN NUNNELLEY MARTIN J. MCCLAIN

STEPHEN F. HANLON GIGI ROLLINI

HON. KAREN NICOLAI, CLERK TALBOT D’ALEMBERTE

HON. RICHARD TOMBRINK, JR., JUDGE

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OBA CHANDLER vs. STATE OF FLORIDA (Corrected)

Thursday, November 10th, 2011

FLORIDA SUPREME COURT

NOTICE OF CORRECTION

DATE: NOVEMBER 10, 2011 CASE OF: OBA CHANDLER V. STATE OF FLORIDA

DOCKET NO.: SC11-2055 OPINION FILED: NOVEMBER 7, 2011

ATTENTION: ALL PUBLISHERS

THE FOLLOWING CORRECTION HAS BEEN MADE IN THE ABOVE OPINION:

On page 3, corrected the spelling of Candance Sabella’s name and added additional counsel previously not listed.

SIGNED: BARBARA HARLEY-PRICE, ACTING OPINIONS CLERK

The corrected hard copy will follow by mail.

Supreme Court of Florida

MONDAY, NOVEMBER 7, 2011

CORRECTED

CASE NO.: SC11-2055

Lower Tribunal No.: CRC92-17438 CFANO

OBA CHANDLER vs. STATE OF FLORIDA

Appellant(s) Appellee(s)

Oba Chandler, a prisoner under three death sentences and an active death warrant, has appealed the denial of his successive motion for postconviction relief filed under Florida Rule of Civil Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On October 10, 2011, Governor Rick Scott signed a death warrant for Chandler and scheduled Chandler’s execution for November 15, 2011. Chandler, through appointed counsel, filed a successive postconviction motion in the circuit court in and for Pinellas County seeking to vacate his sentences of death. He contended that a new penalty phase should be ordered because Florida’s death penalty scheme is unconstitutional under the principles set forth in Ring v. Arizona, 536 U.S. 584 (2002). In Ring, the United States Supreme Court applied the holding in Apprendi v. Arizona, 530 U.S. 466 (2000)–that any fact other than a prior conviction that increases the maximum possible sentence must be found by a jury–to capital cases.

Chandler did not seek an evidentiary hearing and raised purely legal issues below. After hearing legal argument of counsel at the case management conference, and after considering the motion, the State’s response, and Chandler’s memorandum of law, the circuit court entered its order on October 24, 2011, denying successive postconviction relief and denying a stay of execution. The circuit court also entered an order appointing appellate counsel to represent Chandler on appeal and notice of appeal was timely filed on October 24, 2011. Chandler has also moved this Court for a stay of execution. We affirm the order of the circuit court denying Chandler’s motion for successive postconviction relief and we deny his motion for a stay of execution.

sentenced to death for each of the murders after a penalty phase proceeding in which the jury unanimously recommended death. On direct appeal, we affirmed his convictions and death sentences in Chandler v. State, 702 So. 2d 186, 201 (Fla. 1997). In June 1998, Chandler filed his initial postconviction motion under Florida Rule of Criminal Procedure 3.850, and in May 2000, he filed an amended motion asserting seven claims of ineffective assistance of trial counsel. We affirmed

denial of his initial postconviction motion in Chandler v. State, 848 So. 2d 1031, 1046 (Fla. 2003). Chandler subsequently filed a petition for writ of habeas corpus in the federal district court raising claims of ineffective assistance of trial counsel, which was denied. Chandler v. Crosby, 454 F. Supp. 2d 1137, 1185 (M.D. Fla. 2006). Chandler obtained review in the Eleventh Circuit Court of Appeals and relief was again denied. Chandler v. McDonough, 471 F.3d 1360, 1363 (11th Cir. 2006).

After Chandler’s death warrant was signed in the instant case on October 10, 2011, we issued an order providing that any further postconviction proceedings should be expeditiously filed in the circuit court. Chandler then filed a successive motion for postconviction relief in the circuit court contending that he is entitled to a new penalty phase proceeding based on Ring. The circuit court entered its order on October 24, 2011, denying Chandler’s successive motion to vacate his death sentences. The court correctly found that the successive motion is procedurally barred under Florida Rule of Criminal Procedure 3.851(d)(2) because it does not allege newly discovered evidence nor does it contend that there is a fundamental constitutional right that would apply retroactively in this case, and does not argue that Chandler’s counsel failed, through neglect, to file a proper motion. The circuit court also correctly concluded that Chandler’s Ring claim was barred because the United States Supreme Court and this Court have held that Ring is not retroactive to convictions and sentences that were final on direct review. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004); Johnson v. State, 904 So. 2d 400, 412 (Fla. 2005). Chandler’s convictions and three death sentences were affirmed by this Court in Chandler v. State, 702 So. 2d 186, 201 (Fla. 1997), and the mandate was issued. The United States Supreme Court then denied certiorari review in Chandler v. Florida, 523 U.S. 1083 (1998). Thus, Ring does not apply retroactively to Chandler’s sentences.

Ring. Further, Chandler was convicted of three contemporaneous murders by the same jury that unanimously recommended he receive the death penalty. See Frances v. State, 970 So. 2d 806, 822-23 (Fla. 2007) (rejecting application of Ring when the death sentence was supported by the prior violent felony aggravating circumstance based on contemporaneous convictions for murder).

Accordingly, the order of the circuit court is hereby affirmed. No motion for rehearing will be entertained by this Court.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

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bhp Served:

JAMES HELLICKSON BAYA HARRISON, III CANDANCE SABELLA CAROL MARIE DITTMAR

HON. PHILIP JAMES FEDERICO, JUDGE

HON. KEN BURKE, CLERK

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FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES vs. WILLIAM HERNANDEZ (Revised)

Thursday, November 10th, 2011

Supreme Court of Florida

THURSDAY, NOVEMBER 10, 2011

CASE NOS.: SC08-2330 and SC08-2394 Lower Tribunal Nos.: 1D08-1424,

2D07-4891

FLORIDA DEPARTMENT OF vs. WILLIAM HERNANDEZ

HIGHWAY SAFETY AND

MOTOR VEHICLES

FLORIDA DEPARTMENT OF vs. GEORGE MCLAUGHLIN

HIGHWAY SAFETY AND

MOTOR VEHICLES

Petitioner(s) Respondent(s)

In light of the revised opinion, the Petitioner’s Motion for Clarification is hereby denied.

PARIENTE, QUINCE, LABARA, and PERRY, JJ., concur. CANADY, C.J., LEWIS and POLSTON, JJ., would grant

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jn Served:

HON. JON S. WHEELER, CLERK DOUGLAS D. SUNSHINE

HEATHER ROSE CRAMER SUSAN HELEN COHEN

DAVID M. ROBBINS HON. JIM FULLER, CLERK

MICHAEL ROBERT UFFERMAN JUDY MEDINA

TONY C. DODDS

Supreme Court of Florida

No. SC08-2330

FLORIDA DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES,

Petitioner,

vs.

WILLIAM HERNANDEZ,

Respondent.

No. SC08-2394

FLORIDA DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES,

Petitioner,

vs.

GEORGE MCLAUGHLIN,

Respondent.

[June 9, 2011]

REVISED OPINION

The issue we address is whether an individual?s driver?s license can be suspended by the Florida Department of Highway Safety and Motor Vehicles (DHSMV) under section 322.2615, Florida Statutes (2006),1 for the refusal to submit to a test of his or her breath-alcohol level where the refusal is not incident to a lawful arrest and, if not, whether the hearing officer has authority to review whether the refusal was incident to a lawful arrest.2 In the cases under review, Hernandez v. Department of Highway Safety & Motor Vehicles, 995 So. 2d 1077 (Fla. 1st DCA 2008), and McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So. 3d 988 (Fla. 2d DCA 2008), the First and Second District Courts of Appeal reached opposite conclusions as to the scope of the hearing officer?s authority to review the suspension.3 The First District also certified the following questions of great public importance to this Court in Hernandez, 995 So. 2d at 1080:

Hernandez involved the 2007 version of the statute, and McLaughlin involved the 2006 version. The current 2010 version of section 322.2615, Florida Statutes, is the same as the 2006 and 2007 versions for purposes of this decision. Section 322.2615 was minimally revised in 2007 and 2010. See ch. 2010-223, § 35, Laws of Fla.; ch. 2010-163, § 6, Laws of Fla.; ch. 2007-5, § 45, Laws of Fla. These changes have no bearing on this decision.

The Florida Association of Criminal Defense Lawyers filed an amicus brief in support of Respondent McLaughlin in Case No. SC08-2394.

These cases were consolidated for oral argument, and we now consolidate the cases for disposition.

Can the DHSMV suspend a driver?s license for refusal to submit to a breath test, if the refusal is not incident to a lawful arrest? If not, is [a] DHSMV hearing officer required to address the lawfulness of the arrest as part of the review process?

We have jurisdiction based on express and direct conflict and based upon the certified questions of great public importance. See art. V, § 3(b)(3), 3(b)(4), Fla. Const.

Because the certified questions involve two separate but related issues, we rephrase them and answer them separately. The first certified question as rephrased is:

Can the DHSMV suspend a driver?s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?

The second certified question as rephrased is:

Is the issue of whether the refusal was incident to a lawful arrest

within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver?s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

In order to avoid any possible confusion stemming from the plurality opinion and the separate concurring-in-result-only opinion, we set forth the holdings in this case. A majority of this Court (Justices Pariente, Lewis, Quince, and Perry) agree with the First District in Hernandez, 995 So. 2d at 1079, and the Fifth District Court of Appeal in Department of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304, 305-08 (Fla. 5th DCA 2008), that a suspension can be

predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest. See per curiam op. at 11 (“[W]e conclude that the DHSMV cannot suspend a driver?s license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest.”);

Justice Quince?s concurring-in-result-only op. at 19 (“It is unmistakably clear to me that a person?s privilege to drive on the highways of this State can only be taken away if he refuses a test of his blood alcohol level and that refusal is incident to a lawful arrest.”).

A majority of this Court (Justices Pariente, Lewis, Quince, and Perry) also agree that the driver cannot be precluded from challenging whether the refusal was incident to a lawful arrest, albeit with different reasoning. Justices Pariente, Lewis, and Perry agree with the reasoning of the First District in Hernandez and the Fifth District in Pelham that the driver whose license is suspended is able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer who is reviewing the legality of the suspension. See per curiam op. at 17 (“Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an

unreasonable—and unconstitutional—result.”). Justice Quince disagrees with the reasoning of the plurality opinion, but agrees that a driver whose license is suspended for refusing to submit to a test must be able to challenge the lawfulness of the arrest. See Justice Quince?s concurring-in-result-only op. at 20 (“I cannot concur in the majority?s statutory construction that the hearing officer is statutorily authorized to determine the lawfulness of the arrest. But I acknowledge that there must be a mechanism by which a driver can challenge the lawfulness of the arrest. Without such a method, the statutory scheme would be unconstitutional.”).

Accordingly, a majority of this Court approves the result of the First District?s decision in Hernandez, quashes the Second District?s decision in

McLaughlin, answers the first rephrased certified question in the negative, and answers the second rephrased certified question in the affirmative, holding that a driver must be able to challenge whether the refusal was incident to a lawful arrest.

FACTS AND PROCEDURAL HISTORY

In Hernandez, William Hernandez challenged the suspension of his driver?s license for refusal to submit to a breath test, asserting that the request for a breath test was not incident to a lawful arrest. In the hearing to determine if the suspension should be sustained, the DHSMV hearing officer did not consider whether the request that Hernandez submit to a breath test was made incident to a lawful arrest. Hernandez, 995 So. 2d at 1078. Accordingly, the DHSMV

sustained the suspension of the driver?s license. Upon petition for writ of certiorari to the circuit court, which is the authorized statutory route for review of a decision made by the DHSMV, see § 322.2615(13), Fla. Stat., the circuit court agreed that the legality of the arrest was outside of the scope of consideration for the hearing officer under section 322.2615(7), Florida Statutes (2007). The First District, relying on the reasoning of the Fifth District in Pelham, concluded that section 322.2615(7)(b), Florida Statutes, governing proceedings to review license suspensions must be read together with section 316.1932(1)(a)1.a., Florida Statutes (2007), Florida?s implied consent law, because under the “statutory scheme, the lawfulness of the suspension is central to any determination that there is „sufficient cause? to „sustain? ” the suspension. Hernandez, 995 So. 2d 1079 (quoting Pelham, 979 So. 2d at 308).

The Second District in McLaughlin engaged in an opposite statutory analysis regarding the scope of the hearing officer?s authority based on its determination that the plain language of section 322.2615(7)(b) limits the hearing officer?s scope of review to the three specific determinations set forth in the statute, none of which includes consideration of whether the person was placed under lawful arrest. McLaughlin, 2 So. 3d at 991-92. The Second District in McLaughlin never specifically addressed whether the DHSMV could suspend a

driver?s license for refusal to submit to a breath test if the refusal was not incident to a lawful arrest.

ANALYSIS

Because the two rephrased certified questions present issues of statutory interpretation, our review is de novo. Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 194 (Fla. 2007). “Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” Fla. Dep?t of Children & Family Servs. v. P.E., 14 So. 3d 228, 234 (Fla. 2009). In this regard, “legislative intent is determined primarily from the text” of the statute. Cont?l Cas. Co. v. Ryan, Inc. E., 974 So. 2d 368, 374 (Fla. 2008).

As this Court has previously announced:

When the statute is clear and unambiguous, courts will not look behind the statute?s plain language for legislative intent or resort to

rules of statutory construction to ascertain intent. In such instance, the statute?s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.

Koile v. State, 934 So. 2d 1226, 1230-31 (Fla. 2006) (citation omitted) (quoting Daniels v. Fla. Dep?t of Health, 898 So. 2d 61, 64 (Fla. 2005)). “However, if the statutory intent is unclear from the plain language of the statute, then „we apply rules of statutory construction and explore legislative history to determine legislative intent.? ” Id. at 1231 (quoting BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003)). Among the basic principles of statutory

construction is that statutes relating to the same subject matter must be read together, or in pari materia. Fla. Dep?t of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005) (“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature?s intent.”).

I. Answering the First Rephrased Certified Question:

The DHSMV cannot suspend a driver’s license under section 322.2615,

Florida Statutes, for refusal to submit to a breath test if the refusal is not

incident to a lawful arrest.

Florida law does not require an individual to submit to a breath alcohol-detection test simply because that person possesses a driver?s license. The obligation to submit to breath-alcohol testing emanates from section 316.1932, Florida Statutes (2006),4 commonly known as the implied consent law. See State

v. Miles, 775 So. 2d 950, 952 (Fla. 2000) (recognizing section 316.1932, Florida Statutes, as part of Florida?s “implied consent law”).5 The statute provides that any person driving within Florida is deemed to have consented to testing to determine “the alcoholic content of his or her blood or breath if the person is lawfully arrested

The current 2010 version of section 316.1932, Florida Statutes, remains unchanged from the 2006 version.

There is a separate statute that requires an individual under the age of 21 to submit to a breath test if a law enforcement officer has probable cause to believe that the individual is driving under the influence, which provides for its own separate scheme of license procedures and review by a hearing officer. See § 322.2616, Fla. Stat. (2010). That statute is not before us in this case.

for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.” § 316.1932(1)(a)1.a., Fla. Stat. (emphasis added). The statute further provides that the test “must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” Id. (emphasis added). Accordingly, the Legislature has authorized the administration of a breath test only if it is incident to a lawful arrest and based on probable cause to believe that the person driving was under the influence of alcoholic beverages. As stated by the Fifth District in Pelham, 979 So. 2d at 306, “It necessarily follows that an individual does not violate the Implied Consent Law when he or she refuses to take a test that is not incidental to a lawful arrest.”

Further, under the implied consent law, the person must be advised of the punishment for refusing to submit to a test:

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person?s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such

person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit

to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.

§ 316.1932(1)(a)1.a., Fla. Stat. (emphasis added).

Section 322.2615, Florida Statutes, the statute before us in this case governing the suspension of an individual?s driver?s license and the right to review of such a suspension, authorizes a law enforcement officer, on behalf of the DHSMV, to suspend the driver?s license of any person who refuses to submit to a “lawful” breath test. § 322.2615(1)(b)1.a., Fla. Stat. (emphasis added). Specifically, the statute requires that a notice of suspension be sent to the driver to inform him or her as follows:

The driver refused to submit to a lawful breath, blood, or urine test

and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test . . . .

Id. (emphasis added). Despite using the adjective “lawful” in section 322.2615, nowhere in that section does the Legislature define or provide notice as to what constitutes a lawful breath-alcohol test. The only location in the Florida Statutes where the definition can be found is section 316.1932(1)(a), which provides that a driver is only required to submit to an breath-alcohol test if the driver is (1) operating a motor vehicle within this state and (2) subject to a lawful arrest for (3) an offense allegedly committed while driving or in the actual physical control of a motor vehicle while under the influence of alcoholic beverages. Nowhere else does the Legislature mandate the circumstances under which an individual must

submit to a breath-alcohol test or else face suspension of his or her driver?s license under section 322.2615, Florida Statutes, in this context.6

The only definition of a lawful breath test under section 322.2615 is found in section 316.1932(1)(a). For that reason, the statutes must be read in pari materia. In other words, section 316.1932 is the only statute that defines the parameters of a lawful breath-alcohol test in section 322.2615. If the statutes are not read in pari materia, then there is no notice as to when citizens are required to submit to the test or else face suspension of their driver?s licenses. Accordingly, we hold that a “lawful test” under section 322.2615, Florida Statutes, is one that is requested incident to a lawful arrest, as specified in section 316.1932, Florida Statutes.

For this reason, we conclude that the DHSMV cannot suspend a driver?s license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest. Thus, we answer the first rephrased certified question in the negative.

II. Answering the Second Rephrased Certified Question

and Resolving the Certified Conflict:

The issue of whether the refusal was incident to a lawful arrest is within the

allowable scope of review of a DHSMV hearing officer in a proceeding to

determine if sufficient cause exists to sustain the suspension of a driver’s

license under section 322.2615, Florida Statutes, for refusal to submit to a

breath-alcohol test.

6. We do not address sections 322.63 and 322.64, Florida Statutes (2010) (pertaining to commercial motor vehicles).

This second question is related to the first question and concerns the method of challenging a suspension for refusal to submit to a breath test. After an

individual?s driver?s license is suspended under section 322.2615 for refusing to submit to a breath test under section 316.1932, that section entitles the driver to request a formal or informal review of the validity of the suspension. § 322.2615(1)(b)3., Fla. Stat.; see also §§ 322.2615(4), (6), Fla. Stat. The statute defines what the hearing officer may review in either a formal or informal review hearing:

(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:

. . . .

(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:

Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

§ 322.2615(7), Fla. Stat.

In the prior version of the statute, the hearing officer?s scope of review included consideration of the additional issue of “[w]hether the person was placed under lawful arrest for a violation of s. 316.193.” § 322.2615(7)(b)(2), Fla. Stat. (2005), amended by ch. 2006-290, § 45, Laws of Fla. Because the Legislature deleted this statutory language and made other deletions in the amended statute, the DHSMV contends that the issue of whether a person was placed under a lawful arrest is no longer a consideration in the suspension process.

As noted by the circuit court in McLaughlin, although the Legislature?s removal of the “lawful arrest” requirement from section 322.2615(7) may seem clear, the Legislature left that requirement in the implied consent law. McLaughlin v. Fla. Dep?t of Highway Safety & Motor Vehicles, No. 2007-CA-001672, order at 4 (Fla. 10th Cir. Ct. Sept. 18, 2007) (order denying petition for writ of certiorari) (stating that the Legislature had created an “unnerving quagmire”). We agree with the First and Fifth District Courts of Appeal that section 322.2615 cannot be read in isolation but must be read in concert with section 316.1932, which defines the scope of the driver?s obligation to submit to a breath test. As the Fifth District cogently explained:

Section 322.2615 does not establish any obligation on the part of a driver to take a test upon the request of law enforcement; it only establishes consequences for refusal. Section 316.1932 is what creates and defines the scope of the obligation, and its mandate is certain: the test must be incident to a lawful arrest. These statutes cannot be construed in isolation, therefore, as Petitioner urges,

because they are interdependent. Instead, we must consider them in pari materia. See Ferguson v. State, 377 So. 2d 709, 710 (Fla. 1979) (basic rule of statutory construction that statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other). When we do, the conclusion is inescapable that a suspension may not be predicated on refusal to take a test that is the product of a unlawful arrest.

Pelham, 979 So. 2d at 307 (emphasis added).

We further agree with the statutory construction analysis utilized by the Fifth District in construing section 322.2615(7):

Nor have we overlooked the language of subsection 322.2615(7), which purports to “limit” the scope of review to three issues. The first issue, probable cause, is a concept that is often

inextricably intertwined with the lawfulness of the detention as it is in this case. The second issue directs the hearing officer to address whether the driver “refused to submit to any such test.” (Emphasis

added). § 322.2615(7)(b)2., Fla. Stat. We construe “any such test” to refer to the “lawful” test that the suspension must be “pursuant to.” The final issue, the provision of notice, relates to the form of notice mandated by the same statute, which too refers to a “lawful” test. Therefore, we do not construe this so-called limitation on the hearing officer?s scope of review to nullify the statute?s directive that the hearing officer “determine . . . whether sufficient cause exists to sustain, amend, or invalidate the suspension.” § 322.2615(7), Fla. Stat. (2007). Under the statutory scheme, the lawfulness of the suspension is central to any determination that there is “sufficient cause” to “sustain” it.

Id. at 307-08 (citation omitted).

To fail to read these related statutes together would also have serious

constitutional implications. A driver whose license is unlawfully suspended must

have a means to challenge that suspension, and the only means by which a driver

can challenge the suspension of his or her driver?s license for failure to submit to a breath test is through section 322.2615.

Whether denominated a “right” or a “privilege,” the loss of a driver?s license is most definitely an extreme hardship. In Bell v. Burson, 402 U.S. 535, 539 (1971), the United States Supreme Court stated: “Once licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood.” In the almost forty years since Bell was decided, driving has become an increasingly important part of American life and a near necessity in obtaining and maintaining employment. The Bell Court explained:

Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the

licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a “right” or a “privilege.”

Id. (emphasis added) (citations omitted).

With regard to due process rights, in N.C. v. Anderson, 882 So. 2d 990, 993 (Fla. 2004), this Court stated:

The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty or property, without due process of law.” This same protection is provided in the Florida Constitution. See Art. I, § 9, Fla. Const. “Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights

are at issue.” Department of Law Enforcement v. Real Property, 588 So. 2d 957, 960 (Fla. 1991). Procedural due process requires

both reasonable notice and a meaningful opportunity to be heard. See id. The notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required

information, and it must afford a reasonable time for those interested to make their appearance.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

(Emphasis added.) Here, the interpretation of the statutes urged by DHSMV would allow the DHSMV to suspend a driver?s license without reasonable notice and no possibility of a meaningful process to review the lawfulness of the suspension.

A reading of section 322.2615 to prohibit review of an unlawful license suspension would lead to an unreasonable result that would render the statutory scheme constitutionally infirm. We have held that “[s]tatutes, as a rule, „will not be interpreted so as to yield an absurd result.? ” State v. Iacovone, 660 So. 2d 1371, 1373 (Fla. 1995) (quoting Williams v. State, 492 So. 2d 1051, 1054 (Fla. 1986)). Further, “[t]his Court has an obligation to give a statute a constitutional construction where such a construction is possible.” Tyne v. Time Warner Entm?t Co., 901 So. 2d 802, 810 (Fla. 2005). We conclude that the only reading of the statute that avoids an unreasonable and unconstitutional result is to construe sections 322.2615 and 322.1932 in pari materia and allow the hearing officer to review whether the test was administered incident to a lawful arrest.

We conclude, as did the First and Fifth Districts, that reading the two statutes together leads to the conclusion that there must be a means for challenging the legality of the suspension when the request for a breath test was not incident to a lawful arrest. Once section 322.2615 and section 316.1932 are read together, it becomes clear that under the statutory scheme, “sufficient cause” to sustain the suspension under section 322.2615(7) and “whether the person whose license was suspended refused to submit to any such test” require that the hearing officer make the determination of whether the test was administered incident to a lawful arrest, as required by section 316.1932, Florida Statutes.

Accordingly, we answer the second rephrased certified question in the affirmative. Because the Legislature has mandated that an individual need only consent to a test under section 316.1932 if the test is administered incident to a lawful arrest and has provided the procedure for challenging a suspension for a refusal, an individual must be able to challenge the legality of the suspension if the refusal was not incident to a lawful arrest. To read the statute otherwise would produce an unreasonable—and unconstitutional—result.

The dissent contends that licensed drivers are chargeable with knowledge of the laws and that the lawfulness of a suspension will be upheld without regard to whether the suspension was incident to a lawful arrest. However, the dissent overlooks the fact that a driver is on notice that he or she must consent to a breath

test or else face suspension of his or her driver?s license only if the test is administered incident to a lawful arrest. That is what the Legislature has expressly provided for in section 316.1932. To remove that consideration from the hearing

officer?s review would allow illegal suspensions without any possibility of a meaningful process to challenge the legality of the suspension. Under the dissent?s view, an illegal suspension that is contrary to the implied consent statute would be automatically upheld.

The dissent also asserts that our reading of the statute abrogates legislative intent. To the contrary, such a reading is necessary in order to save the legislative scheme from constitutional infirmity and the unreasonable result that while a driver need only submit to a breath test incident to a lawful arrest, the absence of that legislatively imposed requirement cannot be challenged. Under the dissent?s view, police may suspend an individual?s driver?s license on a whim without following the requirements of law set forth by the Legislature.

CONCLUSION

For the foregoing reasons, we answer the first rephrased certified question in the negative and hold that the DHSMV cannot suspend a driver?s license for refusal to submit to a breath test if the refusal is not incident to a lawful arrest. We answer the second rephrased certified question in the affirmative and hold that the issue of whether the refusal was incident to a lawful arrest is within the allowable

scope of review of the DHSMV hearing officer. Accordingly, we quash the decision of the Second District in McLaughlin. We approve the decision of the First District in Hernandez and the reasoning of the Fifth District in Pelham.

It is so ordered.

PARIENTE, LEWIS, and PERRY, JJ., concur.

QUINCE, J., concurs in result only with an opinion.

CANADY, C.J., dissents with an opinion, in which POLSTON and LABARGA, JJ., concur.

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

QUINCE, J., concurring in result only.

I concur in the result here because to do otherwise would leave the respondents in the untenable position of having a right with no remedy. It is unmistakably clear to me that a person?s privilege to drive on the highways of this State can only be taken away if he refuses a test of his blood alcohol level and that refusal is incident to a lawful arrest. In other words, a driver?s license cannot lawfully be suspended unless the request to take the test and the refusal are incident to a lawful arrest. In situations, such as the ones before us, where there has been no opportunity to judicially test the lawfulness of the arrest and the hearing officer cannot inquire into that issue, a person?s license will nonetheless be suspended without the critical issue of lawful arrest having ever been determined.

Thus, I believe that the driver must have an opportunity to challenge the issue prior to suspension of his license.

However, I cannot concur in the majority?s statutory construction that the hearing officer is statutorily authorized to determine the lawfulness of the arrest. But I acknowledge that there must be a mechanism by which a driver can challenge the lawfulness of the arrest. Without such a method, the statutory scheme would be unconstitutional.

CANADY, C.J., dissenting.

I would adopt the reasoning of the Second District in McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So. 3d 988 (Fla. 2d DCA 2008), and accordingly answer the rephrased first certified question in the affirmative and the second rephrased certified question in the negative. The contrary view adopted by a majority of this Court effectively rewrites the text of section 322.2615(7), Florida Statutes (2006), to expand the scope of the hearing officer?s review beyond the ambit unequivocally laid down in the statute.

The other statutory provisions relied upon by the plurality were adopted by the Legislature prior to the adoption of chapter 2006-290, section 45, Laws of Florida, which removed from the hearing officer?s scope of review the issue of whether the license holder “was placed under lawful arrest for a violation of s. 316.193.” “[W]hen two statutes are in conflict, the later promulgated statute

should prevail as the last expression of legislative intent.” McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994).

Section 322.2615(7) expressly limits the issues which may be considered by the hearing officer in a proceeding challenging an administrative suspension. The plurality transgresses the limits set forth in the text by reading back into section 322.2615(7) the provision repealed by the Legislature in 2006 which permitted the hearing officer to consider whether the suspension was incident to a “lawful arrest for a violation of s. 316.193.” A more direct abrogation of legislative intent is hard to imagine.

In analyzing the issue of constitutionality—an issue not addressed in either of the decisions on review—the plurality fails to acknowledge that with the adoption of chapter 2006-290, section 45, Laws of Florida, the Legislature clearly provided that an administrative suspension may not be invalidated on the ground that the license holder had not been “placed under lawful arrest for a violation of s. 316.193.” Contrary to the plurality?s reasoning, the legislative limitation of the grounds for challenging an administrative suspension does not result in authorizing the Department “to suspend a driver?s license without reasonable notice and no possibility of meaningful process to review the lawfulness of the suspension.” Per curiam op. at 16. Licensed drivers are chargeable with knowledge of the laws promulgated by the Legislature. They are therefore on notice of the limited

grounds for challenging an administrative suspension and that the lawfulness of a suspension will be upheld without regard to whether the suspension was incident to a lawful arrest for a violation of section 316.193.

The per curiam and concurring in result only opinions fail to explain why procedural due process precludes the Legislature from restricting the substantive grounds on which an administrative suspension may be invalidated. Neither the respondents, the plurality, nor Justice Quince have provided any basis for

concluding that it is unconstitutional for the Legislature to authorize administrative suspension of a license when the license holder has not been subjected to a lawful arrest for a violation of section 316.193.

POLSTON and LABARGA, JJ., concur.

Two Cases:

Case No. SC 08-2330:

Application for Review of the Decision of the District Court of Appeal – Certified Great Public Importance

First District – Case No. 1D08-1424 (Duval County)

Robin F. Lotane, General Counsel, Department of Highway Safety and Motor Vehicles and Douglas D. Sunshine, Assistant General Counsel, Tallahassee, Florida, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, Florida,

for Petitioner

Susan Z. Cohen and David M. Robbins, Jacksonville, Florida, for Respondent

Case No. SC08-2394

Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions

Second District – Case No. 2D07-4891 (Polk County)

for Petitioner

Tony C. Dodds, Lakeland, Florida, for Respondent

Michael Ufferman, Chair, Florida Association of Criminal Defense Lawyers, Tallahassee, Florida,

as Amicus Curiae

Bookmark It

OBA CHANDLER vs. STATE OF FLORIDA Appellant(s) Appellee(s)

Tuesday, November 8th, 2011

Supreme Court of Florida

MONDAY, NOVEMBER 7, 2011

CASE NO.: SC11-2055

Lower Tribunal No.: CRC92-17438 CFANO

OBA CHANDLER vs. STATE OF FLORIDA

Appellant(s) Appellee(s)

On September 29, 1994, Oba Chandler was convicted of the 1989 first-degree murders of Joan Rogers and her two daughters, Michelle and Christe, whose bodies were found floating in Tampa Bay on June 4, 1989. Chandler was sentenced to death for each of the murders after a penalty phase proceeding in which the jury unanimously recommended death. On direct appeal, we affirmed

his convictions and death sentences in Chandler v. State, 702 So. 2d 186, 201 (Fla. 1997). In June 1998, Chandler filed his initial postconviction motion under Florida Rule of Criminal Procedure 3.850, and in May 2000, he filed an amended motion asserting seven claims of ineffective assistance of trial counsel. We affirmed

In addition, the circuit court also correctly ruled that Ring does not apply to Chandler’s sentences because he had several prior violent felony convictions that served as aggravators, and prior convictions are exceptions to the requirements of Ring. Further, Chandler was convicted of three contemporaneous murders by the same jury that unanimously recommended he receive the death penalty. See

Frances v. State, 970 So. 2d 806, 822-23 (Fla. 2007) (rejecting application of Ring when the death sentence was supported by the prior violent felony aggravating circumstance based on contemporaneous convictions for murder).

Accordingly, the order of the circuit court is hereby affirmed. No motion for rehearing will be entertained by this Court.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

bhp Served:

JAMES HELLICKSON BAYA HARRISON, III CANDACE SABELLA HON. PHILIP JAMES FEDERICO, JUDGE

HON. KEN BURKE, CLERK

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JOHNNY HOSKINS, a/k/a JAMILE ALLE, Appellant, vs. STATE OF FLORIDA, Appellee.

Thursday, November 3rd, 2011

Supreme Court of Florida

No. SC10-450

JOHNNY HOSKINS, a/k/a JAMILE ALLE,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[November 3, 2011]

PER CURIAM.

Johnny Hoskins, a prisoner under sentence of death, appeals from the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the circuit court?s order denying relief.

I. BACKGROUND

In October 1992, Hoskins raped and then gagged and bound Dorothy Berger, his eighty-year-old neighbor, in her home. After putting her in the trunk of her own car, Hoskins drove the car from Melbourne, Florida, to his parents? home in

Georgia. Upon arrival early in the morning the next day, Hoskins borrowed a shovel from his father and drove to a nearby area, where he strangled his victim to death before he buried her. Hoskins v. State, 702 So. 2d 202, 203-04 (Fla. 1997). When the victim was found, she was still gagged and bound, and her body evidenced that she had been beaten and suffered several blows to the head. Id. at 204. Hoskins was convicted of first-degree murder, burglary of a dwelling, sexual battery with physical force, kidnapping, and robbery. Id. at 203. The trial court vacated the first penalty phase and held a second, following which the court sentenced Hoskins to death. On appeal, we affirmed the convictions and the sentences on all but the murder charge. Id. at 210. With regard to the death sentence for the first-degree murder, however, we remanded the case for the trial court to order a positron emission tomography (PET) scan of Hoskins based on the testimony of Hoskins? neuropsychologist during the penalty phase. Id. at 210-11. Subsequently, we vacated Hoskins? death sentence and ordered that a new penalty phase be conducted. Hoskins v. State, 735 So. 2d 1281, 1281 (Fla. 1999). Following this third penalty phase, the circuit court again imposed a sentence of death upon determining that any of the three aggravating circumstances found outweighed the mitigation:

Following the new penalty phase proceeding, the jury

recommended death by a vote of 11-1. By special interrogatories, the jury found three aggravating circumstances: (1) the capital felony was committed during the course of or in flight after committing the

crimes of robbery, sexual battery, or kidnapping (vote of 12-0); (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest (vote of 12-0); and (3) the capital felony was especially heinous, atrocious, or cruel (HAC) (vote of 10-2). The trial court found the same aggravating circumstances had been proven beyond a reasonable doubt.

The trial court found the following mitigating circumstances: (1) the Defendant formed and maintained loving relationships with his

family (little weight); (2) the Defendant was a father figure to his siblings (little weight); (3) the Defendant protected his mother from his father?s abuse (little weight); (4) low IQ (little weight); (5) low mental functional ability (little weight); (6) some abnormalities in the brain which may cause some impairment (little weight); (7) an impoverished and abusive background (some weight); (8) mental age equivalent (between fifteen and twenty-five) (little weight); (9) the Defendant helped support his family financially (little weight); (10) the Defendant had and cared for many pets (little weight); (11) no disciplinary problems in school (little weight); (12) the Defendant

suffered from poor academic performance and left school at age sixteen to work to help his family (little weight); (13) the Defendant

was not malingering (little weight); (14) the Defendant expressed remorse (little weight); (15) potential for rehabilitation and lack of

future dangerousness (little weight); and (16) good jail conduct, including death row behavior (little weight). The trial court concluded that any one of the aggravating circumstances standing alone far outweighed all of the mitigating circumstances and resentenced Hoskins to death.

Hoskins v. State, 965 So. 2d 1, 6-7 (Fla. 2007) (emphasis added), cert. denied, 552 U.S. 1152 (2008). We affirmed the sentence. Id. at 22.

Hoskins subsequently filed a motion for postconviction relief, largely alleging claims of ineffective assistance of counsel. After an evidentiary hearing, the circuit court denied relief. Hoskins now appeals from the denial of this motion.

II. CLAIMS ON APPEAL

In this appeal, Hoskins contends that defense counsel provided constitutionally ineffective assistance in the penalty phase. Specifically, Hoskins claims (A) that defense counsel failed to develop and present evidence that Hoskins suffered from intermittent explosive disorder; (B) that defense counsel failed to use a mitigation specialist; and (C) that defense counsel failed to present evidence of Hoskins? drug abuse as mitigation. Hoskins then argues that the cumulative effect of these errors denied him the constitutional right to a fair trial. Before addressing these claims, we first set out the applicable standard of review.

Claims of ineffective assistance of counsel are reviewed under the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984). First, the burden falls on the defendant to identify specific acts or omissions that demonstrate counsel?s performance was unreasonable under prevailing professional norms. Duest v. State, 12 So. 3d 734, 742 (Fla. 2009). Counsel?s errors must be “so serious that counsel was not functioning as the „counsel? guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Second, the defendant must prove that the deficient performance resulted in prejudice. Id. Thus, the defendant must demonstrate that “there is a reasonable probability that, but for counsel?s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court?s factual

findings that are supported by competent, substantial evidence, but reviewing the circuit court?s legal conclusions de novo.” Anderson v. State, 18 So. 3d 501, 509 (Fla. 2009). In reviewing a claim that counsel?s representation was ineffective based on a failure to investigate or present mitigating evidence, the Court requires the defendant to demonstrate that the deficient performance deprived the defendant of a reliable penalty phase proceeding. Henry v. State, 937 So. 2d 563, 569 (Fla. 2006); see Gaskin v. State, 737 So. 2d 509, 516 n.14 (Fla. 1999) (“Prejudice, in the context of penalty phase errors, is shown where, absent the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different or the deficiencies substantially impair confidence in the outcome of the proceedings.”), receded from in part on other grounds by Nelson v. State, 875 So. 2d 579, 582-83 (Fla. 2004).

A. Ineffective Assistance Regarding Intermittent Explosive Disorder

Hoskins first contends that defense counsel was ineffective for failing to present evidence that Hoskins suffers from intermittent explosive disorder (IED), a mental illness defined by the American Psychiatric Association in its Diagnostic

and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-TR). He alleges that such evidence would have established that at the time of the murder, he was unable to conform his actions to the requirements of law and was under the influence of an extreme mental or emotional disturbance—the two statutory mental health mitigators. See § 921.141(6)(b), (f), Fla. Stat. (2004). Accordingly, Hoskins claims that had counsel found and presented evidence that he has IED, the balance of mitigation would outweigh the aggravating factors.

At the third penalty phase, three experts testified that Hoskins had a frontal lobe impairment and that as a result Hoskins had difficulty controlling his impulses and exercised poor judgment. First, Dr. Harry Krop, a neuropsychologist, testified for Hoskins at all three penalty phase proceedings. Dr. Krop based his opinion on his several interviews and testing of Hoskins conducted between 1993 and 2003 and his review of police reports, school records, and other information. He determined that Hoskins had an IQ of 84, which is low average. Dr. Krop opined that a frontal lobe impairment negatively affected Hoskins? executive functioning and caused him to react impulsively. As a result, in emotionally charged situations, Hoskins would have difficulty reining in or controlling his behavior. With regard to the sexual battery of Ms. Berger in her home, Dr. Krop testified that Hoskins, who was already angry with his girlfriend, reacted violently to his

victim?s frustration with his continued presence in her home and a comment that

she made to him. The expert concluded that this “rage reaction” was “consistent with frontal lobe impairment.” Dr. Krop opined, however, that Hoskins? subsequent actions required planning and reflected Hoskins? consciousness of wrongdoing and his effort to avoid arrest and cover up the crime. Hoskins, 965 So. 2d at 17. Dr. Frank Wood and Dr. Joseph Wu, both of whom were neurologists, examined Hoskins? PET scan. They concurred with Dr. Krop that Hoskins had a frontal lobe impairment that negatively impacted Hoskins? impulse control and judgment. The trial court concluded that although Hoskins had a brain impairment that reduced his control over impulsive behavior, the evidence did not support a finding of either statutory mitigator. On appeal, we affirmed. Id. at 16-18.

In his motion for postconviction relief, Hoskins urged that in the third penalty phase, defense counsel should have found an expert to testify that Hoskins suffers from IED. At the postconviction evidentiary hearing, Dr. Hyman Eisenstein, a neuropsychologist, testified based on his testing of Hoskins and review of the other experts? work, that Hoskins? frontal lobe impairment was severe and that Hoskins met the criteria for IED, a mental disorder defined in DSM-IV-TR. Specifically, he stated that the condition is characterized by disproportionately aggressive reaction to precipitating stressors and cited examples from Hoskins? history, some of which Dr. Krop also cited in his diagnosis of Hoskins during the penalty phase. In contrast to Dr. Krop?s penalty phase

testimony, however, Dr. Eisenstein opined that, as a result of IED, Hoskins? actions were impulsive and uncontrollable from the time of the sexual battery through the time of the murder, some six hours later. The postconviction court denied Hoskins? claim, and we affirm.

Hoskins has failed to establish either deficient performance or prejudice. In his postconviction motion, counsel does not challenge Dr. Krop?s expertise or testimony. Instead, Hoskins claims that because defense counsel knew Dr. Krop?s testimony would not support the statutory mental health mitigators, counsel should have obtained another expert to testify that Hoskins has IED. In other words,

Hoskins? claim of deficiency is that counsel should have found a more favorable expert. But “[t]his Court has repeatedly held that counsel?s entire investigation and presentation will not be rendered deficient simply because a defendant has now found a more favorable expert.” Card v. State, 992 So. 2d 810, 818 (Fla. 2008); see Peede v. State, 955 So. 2d 480, 494 (Fla. 2007) (“The fact that Peede produced more favorable expert testimony at his evidentiary hearing is not reason enough to deem trial counsel ineffective.”); Gaskin v. State, 822 So. 2d 1243, 1250 (Fla. 2002) (“[C]ounsel?s reasonable mental health investigation is not rendered incompetent „merely because the defendant has now secured the testimony of a more favorable mental health expert.?” (quoting Asay v. State, 769 So. 2d 974, 986

(Fla. 2000))). Accordingly, Hoskins has failed to establish a deficiency that meets the first prong of Strickland.

Hoskins? conclusory claim of prejudice likewise fails, and our confidence in the outcome is not undermined. His experts in both the penalty phase and the postconviction hearing testified that Hoskins suffered from brain damage that negatively affected his ability to exercise control in emotionally charged situations. The jury in the penalty phase, however, did not find such evidence sufficient to overcome the aggravation in the case. Moreover, the conclusions of Dr. Krop and Dr. Eisenstein are based on essentially the same evidence and test results, and the difference in their conclusions is a matter only of degree. That is, Dr. Eisenstein characterized Hoskins? condition as more severe and diagnosed IED. He also concluded that this condition was the overriding factor from the time of the sexual battery through the time of the murder. At the postconviction hearing, however, the State presented the expert testimony of Dr. Harry McClaren, who disagreed with this diagnosis and testified that IED was “rare.” The facts of the case further undermine the testimony that Hoskins was unable to control his behavior or to plan throughout the entire criminal episode. After binding and gagging the victim and putting her in the car trunk, Hoskins drove for approximately six hours, stopping on the way at a cousin?s house to replace a fuse in the car and later to buy gas. When Hoskins arrived at his destination, he spoke to his father and borrowed a

shovel. Then he drove to a remote area, where he manually strangled the victim and buried her before returning to his parents? home. Finally, in this case, the sentencing court found three aggravators: the capital crime (1) was committed during the course of or in flight after committing the crimes of robbery, sexual battery, or kidnapping; (2) was committed for the purpose of avoiding or preventing a lawful arrest; and (3) was heinous, atrocious, or cruel (HAC). The latter factor is considered one of the most serious aggravators. Douglas v. State, 878 So. 2d 1246, 1262 (Fla. 2004).

B. Mitigation Specialist and Substance Abuse

Hoskins contends that counsel provided constitutionally ineffective assistance by failing to use a mitigation expert and by failing to present evidence of substance abuse. Because these two claims are related, we address them together.

At the evidentiary hearing, Hoskins presented the testimony of Shirley Furtick, who was accepted as an expert in social work. She testified regarding her investigation into Hoskins? background—family history, school and criminal history, and alcohol and drug abuse history. She testified that Hoskins and members of his family abused alcohol and drugs. In addition, she provided

Hoskins? prison disciplinary records to Dr. Eisenstein as related to the IED diagnosis.

Hoskins also presented the testimony of Dr. Alexander Morton, a psychopharmacologist, who testified based on his interviews of Hoskins regarding drug abuse and his reviews of records and other clinicians? reports in the case. According to Dr. Morton, Hoskins abused alcohol and marijuana by age twenty-one and later began using cocaine. Moreover, Hoskins reported to Dr. Morton that in the period of time when the crimes occurred he was using marijuana and cocaine daily. Accordingly, Dr. Morton concluded that at the time of the crime, Hoskins would have been impulsive, aggressive, anxious, and potentially violent. Dr. Morton did not discuss the facts of the crime with Hoskins. He concluded, however, that although there were impulsive elements involved in the crimes, the entire criminal episode did not evidence a complete lack of impulse control.

We hold that the postconviction court correctly denied these related claims. First, to the extent Hoskins argues that counsel was deficient solely for failing to hire a mitigation specialist, the claim is conclusory. Failure to use an “expert” in mitigation investigation does not per se constitute ineffective assistance. Hoskins contends that the mitigation expert?s provision of Hoskins? corrections records assisted Dr. Eisenstein in diagnosing Hoskins with IED. This claim presumes, however, that counsel was ineffective for failing to use Dr. Eisenstein in the penalty phase, and we have already held to the contrary. In addition, Hoskins? disciplinary records were offered by defense counsel in mitigation during the

penalty phase. The sentencing court in 2004 found, however, that these reports did not evidence that Hoskins suffered either a reduced ability to control impulsive behavior or an emotional disturbance. In fact, based on this and other evidence, the sentencing court rejected the extreme mental or emotional disturbance statutory mitigator. See § 921.141(6)(b), Fla. Stat. In determining mitigation, however, the sentencing court did find that the disciplinary records demonstrated Hoskins? good conduct in jail and relied in part on these records in finding that Hoskins showed a potential for rehabilitation and lack of future dangerousness. See Hoskins, 965 So. 2d at 6.

Following the evidentiary hearing, the postconviction court acknowledged that Hoskins had identified mitigation evidence that was not presented in the penalty phase. The evidence of Hoskins? history of alcohol and drug abuse was presented primarily through Ms. Furtick, Dr. Morton, and Dr. Eisenstein. As to this claim, however, we need not address the first prong of the Strickland test because Hoskins was not prejudiced by the failure to present such evidence. See Strickland 466 U.S. at 687 (“Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”); Kilgore v. State, 55 So. 3d 487, 499 (Fla. 2010) (“A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it

is clear that the prejudice component is not satisfied.” (quoting Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986))).

The evidence at the hearing showed that the effect of long-term substance abuse on Hoskins was that he was impulsive, aggressive, and potentially violent. While this evidence might have provided some mitigation, these are the same behaviors that Dr. Krop testified at the penalty phase resulted from Hoskins? frontal lobe impairment. Moreover, Hoskins presented minimal evidence that he was under the influence of drugs at the time of the criminal episode, and Dr.

Morton testified that although elements of the criminal episode were impulsive, the episode was not entirely impulsive. Moreover, Hoskins? actions after the sexual battery reflect knowledge of guilt, planning, and the conscious decision to avoid arrest. The postconviction court correctly concluded that there is no reasonable probability that the presentation of Hoskins? individual and familial history of substance abuse would alter the balance of the aggravating and mitigating factors in this case. See Gaskin v. State, 737 So. 2d at 516 n.14. Accordingly, our confidence in the proceedings is not undermined.

In his reply brief, Hoskins also argues that penalty phase counsel was ineffective for not properly preparing Dr. Krop to testify at the third penalty phase. Contrary to Hoskins? representations, this argument was not raised in the initial brief filed here. Accordingly, the claim is barred. See Hall v. State, 823 So. 2d

757, 763 (Fla. 2002) (citing J.A.B. Enterprises v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.”)). Moreover, the claim is conclusory and meritless.

The record shows that although defense counsel discussed the case with Dr. Krop on several occasions before the penalty phase, counsel was unaware—until he talked to Dr. Krop on the morning of his testimony—that Dr. Krop met with and tested Hoskins again in 2003. The postconviction court was correct in finding that although defense counsel should have known earlier about the 2003 testing, Hoskins has not demonstrated that counsel provided ineffective assistance of counsel. When Dr. Krop commenced his testimony and cited the recent testing,

the State objected. Dr. Krop proffered testimony about the testing results, and during a recess, the parties spoke informally. On direct examination, defense counsel subsequently questioned Dr. Krop about the latest testing and interview of Hoskins, and Dr. Krop testified that that none of the new information altered his opinion that Hoskins had a frontal lobe impairment that resulted in Hoskins acting impulsively and exercising poor judgment in emotionally charged situations. Accordingly, Hoskins was not prejudiced by counsel having been unaware of the 2003 testing until shortly before Dr. Krop?s testimony.

C. Cumulative Error

Hoskins alleges that the cumulative effect of errors in this case warrants relief. Because each of his claims of error fails individually, however, he is entitled to no relief for cumulative error. Schoenwetter v. State, 46 So. 3d 535, 553, 562 (Fla. 2010).

III. CONCLUSION

For the reasons discussed above, we affirm the trial court?s order denying Hoskins? motion for postconviction relief.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

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

An Appeal from the Circuit Court in and for Brevard County, John M. Harris, Judge – Case No. 05-1992-CF-1775-AX

Billing Jennings, Capital Collateral Regional Counsel, Raheela Ahmed and Carol Contreras Rodriguez, Assistant CCR Counsel, Middle Region, Tampa, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Senior Assistant Attorney, Daytona Beach, Florida,

for Appellee

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DAVID CARBAJAL, Petitioner, vs. STATE OF FLORIDA, Respondent.

Thursday, November 3rd, 2011

Supreme Court of Florida

No. SC10-466

DAVID CARBAJAL,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[November 3, 2011]

CANADY, C.J.

In this case, we consider the timeliness of a claim raised under Florida Rule of Criminal Procedure 3.850 that the Office of the Statewide Prosecutor (OSP) lacked jurisdiction to prosecute the defendant. We have for review Carbajal v. State, 28 So. 3d 187 (Fla. 2d DCA 2010), in which the Second District Court of Appeal rejected Carbajal’s argument that the time limitations of rule 3.850 were not applicable to his claim that the OSP’s lack of jurisdiction to prosecute him divested the circuit court of jurisdiction to enter judgment against him. The Second District held that Carbajal’s claim that the circuit court lacked jurisdiction

to enter judgment or sentence was barred by the time limits of rule 3.850. The Second District certified that its decision on this issue expressly and directly conflicts with the following decisions: Gunn v. State, 947 So. 2d 551 (Fla. 4th DCA 2006); Brown v. State, 917 So. 2d 272 (Fla. 5th DCA 2005); Harris v. State, 854 So. 2d 703 (Fla. 3d DCA 2003); and Harrell v. State, 721 So. 2d 1185 (Fla. 5th DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Although the Second District’s ruling was based on its holding that the rule 3.850 time limits apply to claims asserting that a judgment was void because it was entered by a court without jurisdiction, the Second District also observed that any lack of jurisdiction by the OSP would not divest the circuit court of jurisdiction. The Second District noted that its view on this point was in disagreement with the decisions in Luger v. State, 983 So. 2d 49 (Fla. 4th DCA 2008), and Winter v. State, 781 So. 2d 1111 (Fla. 1st DCA 2001).

Because we conclude that any lack of jurisdiction by the OSP did not divest the circuit court of jurisdiction, we decline to address the certified conflict issue. Instead, as further explained below, we resolve this case on the ground that Carbajal’s challenge to the jurisdiction of the OSP was barred by the time limitations of rule 3.850. Accordingly, we approve the Second District’s affirmance of the trial court’s denial of Carbajal’s motion. We disapprove Luger and Winter. To the extent that they hold that an error regarding the jurisdiction of

the OSP renders a conviction void ab initio, we likewise disapprove Small v. State, 56 So. 3d 52 (Fla. 4th DCA 2011); Brown; and Zanger v. State, 548 So. 2d 746 (Fla. 4th DCA 1989).

I. BACKGROUND

In December 2001, the OSP filed a ten-count information charging David Carbajal with a variety of drug offenses. In January 2002, Carbajal entered a nolo contendere plea to the charges and was sentenced to 155 months in prison. He did not appeal his judgment or sentence. Carbajal, 28 So. 3d at 187.

In February 2007, Carbajal filed a successive motion for postconviction relief pursuant to rule 3.850, in which he asserted that because “ALL the crimes alleged, and ALL the actions pertinent to those crimes, occurred in the same county and circuit,” the OSP did not have jurisdiction to prosecute in his case and therefore the circuit court did not have jurisdiction to enter his conviction and sentence. Carbajal further asserted that his challenge to the jurisdiction of the circuit court was an issue that could be raised at any time and that his postconviction motion therefore should not be denied as untimely. The circuit court agreed that Carbajal’s motion was timely but denied relief on the merits. Carbajal, 28 So. 3d at 188.

On appeal, the Second District affirmed the denial of relief on the basis that the motion was untimely. Id. The Second District explained that while rule 3.850

envisages claims asserting that the trial court lacked jurisdiction to enter the defendant’s conviction or sentence, pursuant to the plain language of the rule, in a noncapital case any motion for postconviction relief must be filed no later than two years after the judgment and sentence become final. The Second District listed the three exceptions to the two-year limit: (1) claims predicated on facts which were previously unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence; (2) claims predicated on a fundamental constitutional right that was not established within the two-year period and has been held to apply retroactively; or (3) situations where retained counsel failed to timely file the motion. The Second District concluded that because Carbajal’s allegations did not fit any of these exceptions, his motion was untimely. Id. at 189. On this point, the Second District certified conflict with Gunn, Brown, Harris, and Harrell, which determined that the two-year limitation in rule 3.850(b) was inapplicable to a motion demonstrating that the trial court lacked jurisdiction to enter the defendant’s conviction or sentence. See Carbajal, 28 So. 3d at 190.

The Second District also observed that any lack of jurisdiction by the OSP would not divest the circuit court of jurisdiction. The Second District reasoned that “even if the Statewide Prosecutor did not have jurisdiction to prosecute the case, the circuit court still had jurisdiction over these felonies,” and thus,

Carbajal’s conviction and sentence were valid. Id. at 188 n.1. The Second District recognized that its view that lack of OSP jurisdiction did not affect the circuit court’s subject matter jurisdiction was inconsistent with Luger, 983 So. 2d at 50 (explaining that the issue of the OSP’s jurisdiction “is one of the trial court’s subject matter jurisdiction which can be raised following a plea of guilty”); and Winter, 781 So. 2d at 1115 (concluding that allegations regarding whether the OSP’s jurisdiction was proper “raise[d] the jurisdiction of the trial court”). See also Small, 56 So. 3d at 53 (concluding that the information was sufficient but noting that if “an information fails to allege the necessary jurisdictional allegations to support OSP jurisdiction, the information is fatally defective, and a resulting conviction is void”); Brown, 917 So. 2d at 273 (“If the Office of the Statewide Prosecutor files an information but lacks jurisdiction to prosecute a case, then the trial court’s jurisdiction is not properly invoked.”); Zanger, 548 So. 2d at 748 (concluding that where the OSP files the information, allegations of criminal activity in more than one circuit are essential to the invocation of the jurisdiction of the circuit court).

II. ANALYSIS

In the analysis that follows, we approve the Second District’s affirmance of the circuit court’s denial of Carbajal’s postconviction motion. Carbajal’s claim that the circuit court which entered the judgment and sentence lacked jurisdiction

is without merit, and his claim that the OSP lacked jurisdiction to prosecute him is untimely under rule 3.850.

Article IV of the Florida Constitution establishes the OSP as a prosecuting officer of the State of Florida. Article IV, section 4(b), provides in pertinent part:

There is created in the office of the attorney general the position of

statewide prosecutor. The statewide prosecutor shall have concurrent jurisdiction with the state attorneys to prosecute violations of criminal laws occurring or having occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is affecting or has affected two or more judicial circuits as provided by general law.

The role of the OSP is further defined by section 16.56, Florida Statutes. At the time Carbajal was charged by information, section 16.56(1)(a), Florida Statutes (2001), authorized the OSP to investigate and prosecute “[a]ny crime involving narcotic or other dangerous drugs” or “any attempt, solicitation, or conspiracy to commit” any crime involving narcotic or other dangerous drugs but “only when any such offense is occurring, or has occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more judicial circuits.” Thus, Carbajal is correct that if his criminal activity in Florida actually occurred in only Lee County, Florida, the OSP was not authorized to prosecute charges arising from that conduct.

We agree with the Second District, however, that even assuming that the OSP in fact lacked jurisdiction to prosecute Carbajal, such a defect in the

information would not divest the circuit court of jurisdiction over the felony offenses charged against Carbajal. The issue of whether an information is filed by the OSP or a state attorney has no effect on the circuit court’s subject matter jurisdiction.

Subject matter jurisdiction is the “[p]ower of a particular court to hear the type of case that is then before it” or “jurisdiction over the nature of the cause of action and relief sought.” Fla. Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988) (quoting Black’s Law Dictionary 767 (5th ed. 1979)). Pursuant to section 26.012(2)(d), Florida Statutes (2001), at the time Carbajal was charged, the circuit courts had—as they continue to have—subject matter jurisdiction over “all felonies.” See also McLean v. State, 2 So. 5, 5 (Fla. 1887) (“In criminal cases the jurisdiction is determined by the charge made.”). Because the information filed in this case charged Carbajal with multiple felonies, the circuit court had subject matter jurisdiction over Carbajal’s case.

Carbajal’s situation is not analogous to cases where a conviction was void because the information filed in the circuit court failed to allege that the defendant had committed a felony. See, e.g., Ex parte Reed, 135 So. 302, 303 (Fla. 1931) (concluding that judgment of conviction by circuit court was void where indictment failed to show that the defendant was charged with a felony); Waters v. State, 354 So. 2d 1277, 1278 (Fla. 2d DCA 1978) (“Since the circuit court does not

have jurisdiction when only a misdemeanor is charged, the trial court did not have jurisdiction in this case.”); Pope v. State, 268 So. 2d 173, 175 (Fla. 2d DCA 1972) (explaining that an allegation of a felony “is essential to the invocation of the jurisdiction of a felony court over the charge since the allegata of the accusatory writ are precisely the basis in the first instance upon which the court’s jurisdiction over the subject matter thereof is predicated”).

Carbajal contends that despite the fact that the information filed in his case otherwise properly alleged a felony, the information failed to invoke the circuit court’s subject matter jurisdiction because it was signed by the incorrect prosecuting attorney. This argument is without merit.

This Court has explained that “jurisdiction to try an accused does not exist under article I, section 15 of the Florida Constitution unless there is an extant information, indictment, or presentment filed by the state.” State v. Anderson, 537 So. 2d 1373, 1374 (Fla. 1989). We have also explained, however, that while a charging instrument is essential to invoke the circuit court’s subject matter jurisdiction, “defects in charging documents are not always fundamental where the omitted matter is not essential, where the actual notice provided is sufficient, and where all the elements of the crime in question are proved at trial.” State v. Gray, 435 So. 2d 816, 818 (Fla. 1983). In other words, while an information or indictment is “an essential requisite of jurisdiction which cannot be waived,”

Sadler v. State, 949 So. 2d 303, 305 (Fla. 5th DCA 2007) (quoting Caves v. State, 303 So. 2d 658, 659 (Fla. 2d DCA 1974)), defects in the charging instrument do not necessarily render void a conviction based on the defective information. These principles are codified in Florida Rule of Criminal Procedure 3.140, which provides in part:

No indictment or information, or any count thereof, shall be

dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the

opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Fla. R. Crim. P. 3.140(o).

In the instant case, a prosecuting officer representing the State filed an information in the circuit court. That information provided Carbajal with actual notice of the charges against him. Carbajal does not allege that as a result of the information being filed by the OSP rather than the local state attorney, he was misled, prejudiced in the preparation of his defense, or exposed to the danger of additional prosecution. Carbajal knew the charges against him and that he was to be tried by the circuit court for Lee County.

In fact, had the information charging Carbajal been unsigned rather than signed by the OSP, any challenge on that basis would have been barred by rule

3.140(g), which provides that “[n]o objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.” It would make no sense to conclude that an unauthorized signature on an information strips the circuit court of subject matter jurisdiction and renders a conviction based on the information void, when a complete lack of signature may be waived by the defendant.

We conclude that Carbajal’s case is analogous to Gerlaugh v. Florida Parole Commission, 139 So. 2d 888 (Fla. 1962), and Young v. State, 121 So. 468 (Fla. 1929), in which this Court upheld the defendants’ convictions despite the fact that the informations were signed by assistant prosecuting attorneys who at the time were not authorized by the Florida Constitution to sign charging informations.

In Gerlaugh, the defendant pleaded guilty to the charges against him. Later, he challenged his confinement in a petition for a writ of habeas corpus on the basis that the information in his case was signed by an assistant state attorney instead of a state attorney. After noting that in a similar case this Court had described an

information signed by an unauthorized attorney as being “null, void, and of no effect,” this Court clarified that quoted language from that prior decision “must be related to the factual situation presented by the record” in that case and “must be considered as holding only that upon timely objections to an information on the ground that it was not signed by the State’s Attorney such an information is null,

void and of no effect.” Id. at 889-90. In short, this Court determined that a claim that an unauthorized prosecuting attorney signed the information was a not defect that would lead to a void conviction.

Similarly, in Young, the defendant filed a petition for a writ of habeas corpus alleging that he was convicted and sentenced upon an information signed, sworn to, and filed by the assistant county solicitor pursuant to an unconstitutional statute, instead of by the county solicitor as required by the Florida Constitution. This Court denied Young’s motion for rehearing of his petition, explaining:

It does not appear that at the trial the defendant by motion to quash,

motion in arrest of judgment, or otherwise during the same term of the court made any objection or exception to the manner in which the

information was signed or sworn to. The court had jurisdiction of the offense and of the defendant, and it is not alleged that the information did not charge an offense under the laws of this state . . . . The statute purporting to authorize the assistant county solicitor to file

information under his own oath may be invalid in that respect, but this does not make void a judgment of conviction on such an information, rendered by a court having jurisdiction of the parties and of the subject-matter, and when a defendant does not duly object to the

manner in which the information is signed and sworn to, at the proper time and in the proper way, he thereby waives his right to do so, and cannot invoke habeas corpus to obtain a discharge from custody.

121 So. at 468 (emphasis added).

We see no difference between Carbajal’s situation and the errors addressed in Gerlaugh and Young. We continue to hold that a conviction resulting from an information signed by a state officer lacking authority is not void ab initio but is, at most, voidable upon timely challenge.

Here, Carbajal effectively concedes that his postconviction motion is barred as untimely under rule 3.850 unless the judgment entered against him is void. And he has failed to show that the judgment is void. He has failed to establish either that the circuit court lacked jurisdiction to enter the judgment or that the OSP’s lack of jurisdiction rendered the judgment void. Carbajal’s claim concerning the OSP’s jurisdiction is a claim that he should have raised long ago. The claim was untimely under rule 3.850 when Carbajal’s motion was filed and is accordingly barred.

III. CONCLUSION

We therefore approve the Second District’s affirmance of the circuit court’s denial of Carbajal’s motion and disapprove Luger and Winter. Likewise, we disapprove Small, Brown, and Zanger, to the extent that those decisions hold that a defect regarding the jurisdiction of the OSP renders a conviction void ab initio.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

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

Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions

Second District – Case No. 2D07-5894

(Lee County)

Sarah Lahlou-Amine of Fowler, White and Boggs, P.A., Tampa, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Robert J. Krauss, Bureau Chief, Elba C. Martin-Schomaker, and Cerese Crawford Taylor, Assistant Attorneys General, Tampa, Florida,

for Respondent

Bookmark It

ANTHONY MUNGIN, Appellant, vs. STATE OF FLORIDA, Appellee.

Thursday, October 27th, 2011

Supreme Court of Florida

No. SC09-2018

ANTHONY MUNGIN,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[October 27, 2011]

PER CURIAM.

Anthony Mungin was convicted of the 1990 murder of a convenience store clerk, Betty Jean Woods, and sentenced to death. See Mungin v. State (Mungin I), 689 So. 2d 1026 (Fla. 1995). Mungin appeals the postconviction court’s order summarily denying his successive motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.851, which challenged his conviction on the basis that a newly discovered witness significantly impeaches the testimony of Ronald Kirkland, the only witness who identified Mungin as leaving the crime scene immediately after the murder.1 The new witness, George Brown, asserts he

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

was the first person on the scene after the murder and that no other person was present in the store. He states that he told this to police the night of the murder and that the police report is false. In the current proceeding, Mungin alleges that he was denied adequate adversarial testing because the newly discovered evidence from Brown impeaches Kirkland and shows that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).2 For the reasons discussed below, we reverse and remand the Giglio and Brady claims to the postconviction court for an evidentiary hearing, but deny the newly discovered evidence claim.

The pertinent facts of this case are set forth in this Court’s opinion on direct appeal as follows:

Betty Jean Woods, a convenience store clerk in Jacksonville,

was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer [Kirkland] entering the store passed a

man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.

Mungin was arrested on September 18, 1990, in Kingsland,

Georgia. Police found a .25-caliber semiautomatic pistol, bullets, and

2. Mungin also alleges that existing procedures utilized by Florida in carrying out executions by lethal injection violate the Eighth Amendment; however, he provides no additional factual allegations that would alter our previous decisions. See Schoenwetter v. State, 46 So. 3d 535, 550 (Fla. 2010); Tompkins v. State, 994 So. 2d 1072, 1081 (Fla. 2008); Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007). We deny this claim without further discussion.

Mungin’s Georgia identification when they searched his house. An

analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin’s house.

Jurors also heard Williams[3] rule evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mungin’s identity.

First, William Rudd testified that Mungin came to the

convenience store where he worked on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the

cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland.

Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center. A bullet that went through Tsai’s hand and hit her in the head had been fired from the gun recovered in Kingsland.

Mungin I, 689 So. 2d at 1028 (footnote omitted).

In his first motion for postconviction relief, Mungin raised several claims regarding Kirkland, specifically that trial counsel was ineffective for failing to cross-examine Kirkland regarding Kirkland’s criminal cases; trial counsel was ineffective for failing to effectively examine Kirkland regarding his identification of Mungin and for failing to elicit testimony from Detective Christie Conn that would have destroyed Kirkland’s credibility; and newly discovered evidence cast further doubt on Kirkland’s veracity. On appeal from the denial of postconviction relief, Mungin raised as an issue that the circuit court erred in denying his claims of ineffective assistance of trial counsel during the guilt phase after an evidentiary

3. Williams v. State, 110 So. 2d 654 (Fla. 1959).

hearing, including his claim that counsel was ineffective in failing to adequately impeach Kirkland’s testimony. Mungin v. State (Mungin II), 932 So. 2d 986, 998 (Fla. 2006). This Court affirmed the denial of postconviction relief and denied Mungin’s petition for a writ of habeas corpus. Id. at 1004. In denying relief, this Court engaged in a significant discussion of the claims involving whether counsel was ineffective in failing to properly impeach Kirkland based on the failure to discover and use Kirkland’s probationary status as impeachment and the failure to call Detective Conn regarding statements that Kirkland made that called Kirkland’s identification of Mungin into question. See id. at 998-99. This Court denied relief, holding that even if counsel was deficient, Mungin did not establish prejudice because counsel had attacked Kirkland’s identification of Mungin on cross-examination of Kirkland and during his cross-examination of other witnesses who asserted that, days before the crime, Mungin had short hair. During closing, counsel stressed these inconsistencies. Id. at 999.

In the current proceeding, Mungin filed a successive motion for postconviction relief, asserting that the newly discovered evidence from Brown impeaches Kirkland and shows that the State violated Brady and Giglio. In support of this claim, Mungin presented the following affidavit, which potentially calls Kirkland’s testimony into question:

AFFIDAVIT OF GEORGE BROWN

1. My name is George Brown. . . . I hereby state the following and will attest to same in any official proceeding.

2. On Sunday, September 16, 1990, at approximately 1355 hours, at the Little Champ Store on the corner of Chaffee Road and Crystal Springs Road, I was an eyewitness to the following events. I remember these event [sic] because I go past this location everyday since that date sixteen years ago.

3. I went into the store that day because it was hot outside. The lady was usually at the counter and was always there–she always made you feel that you were going to steal something–and she was always there. I went into the store and got a drink and went to the counter and she was not there. So, I waited there for a few minutes and then I thought something was wrong. I went to the bathroom and yelled for her and nothing happened. I went back up front and still she didn’t come. At the end of the counter there was a door open, so I hollered in there and nothing happened and she didn’t come. So, I looked down and there she was. I called 911.

4. There was no one in the store during this whole time. I was in there all alone. There was no one in the parking lot. There was no one at the gas pumps. There was no one out there. There was someone who came out of the store, brushed up against me when I was coming in but I could not tell who it was, whether the person was a male or female, white or black. I could never give a description of the person who was coming out of the store.

5. After I called 911, someone (a male) came into the store and asked what was happening. I was on the phone with 911 and told him that she was having a seizure and told him to roll her over on her side and then we heard this gurgling sound and the lady told us to roll her back on her back and we did.

6. The police officer came in at that time and he went over there and looked at her and decided to call the Life Flight. There was a cash drawer open on the register and the police officer told me that it was a Lottery drawer and it was always open. There was a glass of water next to the lady and a pill stuck to her lip–that is why I thought she was having a seizure and fell down.

7. I never noticed that there was any type of struggle in the store.

8. The police officer took over the situation and he asked me who found the lady and I told him that I had. He was really busy getting the Life Flight together. The guy that came in took over and pretended that he had been there the whole time. The man was not there when I got there and he did not find the lady. I told the police officer that I could not describe or ever identify the person that brushed past me, I just did not pay attention. The other guy was so busy talking and acting like he was there. I told the police officer if they didn’t need me any more, I was leaving.

9. There has never been any law enforcement officer, state attorney, investigator, defense lawyer, or anyone else come to talk with me since that day. I had no idea that anyone was identified or arrested or convicted for this crime.

10. I have reviewed a police report authored by K.D. Gilbreath, #5182, dated November 5, 1990, which contained statements purportedly made by me at the only time I was ever spoken to by anyone about this case. The version of events as stated in the report is false.

10. [sic] On page 7 of the 14-page report in the last paragraph, Mr. Kirkland did not go into the store first. There was no one in the store when I came in. Mr. Kirkland came into the store after I called 911. Mr. Kirkland did not find the victim–it was me. Mr. Kirkland says in the report that he saw a black guy coming out of the store. This is not true because when I went into the store, someone was coming out and I could not identify anyone and no one was in the store when I was there.

11. On page 8 of the report, in the first paragraph, I remember the detective talking to me, but like I have said, Mr. Kirkland stepped up and tried to take over. I told the detective that I checked all the bathrooms to see where she was, and I checked everywhere because she was always in the front. I went over to where the counter was and there was a door open in the back–a little storage room. I turned around and saw her there and heard gurgling noises and that is when I called 911.

12. I looked over and saw the drawer open but I did not touch anything. The officer is incorrect to report that I checked the drawer of the cash register and then shut the drawer. That never happened.

13. I did not know the victim had been shot because I thought she had had a seizure because of the pill stuck to her lip and the water that was spilled next to her.

14. I told the officer that I was the only one in the store and Mr. Kirkland did not come into the store until after I called 911. There is no way he saw anyone in the store because the person who brushed by me I could not identify, so there is no way that Mr. Kirkland could identify anyone, he was not in the store. I could not tell you what the person looked like and I was standing in the store a long time trying to find the lady.

15. I have always been available to testify at any proceedings and I am willing to testify as to what I observed on that particular day and to the falsehoods stated in the police report.

Mungin also presented the following affidavit from his original trial counsel, Charles Cofer, who discussed why he did not discover this information prior to trial:

AFFIDAVIT OF CHARLES G. COFER

1. My name is Charles G. Cofer, and I am presently a sitting county court judge in the Fourth Judicial Circuit in and for Duval County, Florida. I have previously been subpoenaed to give testimony in post-conviction proceedings in the case of State of Florida v. Anthony Mungin, and this affidavit is given in connection with further post-conviction proceedings.

2. Prior to taking the bench, I served as an Assistant Public Defender for the Fourth Judicial Circuit. During that time, I represented Anthony Mungin at the trial court level in the first-degree capital murder prosecution relating to the death of Betty Jean Woods. As lead counsel for Mr. Mungin, I had primary responsibility for all

aspects of the case, and was familiar with the pre-trial discovery provided by the State of Florida.

3. I have recently been provided with an affidavit executed by an individual named George Brown, which states Mr. Brown’s knowledge concerning the death of Betty Jean Woods. I have also reviewed the homicide investigation report authored by Detective Gilbreath dated November 5, 1990. Detective Gilbreath was the lead law enforcement officer in charge of the investigation into Ms. Woods’ murder.

4. Mr. Brown’s affidavit contradicts the version of events as testified to at trial by the State’s key witness, Ronald Kirkland, in many significant ways. Ronald Kirkland was the primary prosecution witness based upon his assertion that he was the first and only person in the Lil’ Champ store, and that he was the one who discovered Ms. Woods after she was shot. Mr. Kirkland testified at trial that he observed a man coming out of the Lil’ Champ Store carrying a brown bag as he entered the store. Kirkland later identified this man as Anthony Mungin. Because there were no eyewitnesses to the murder, Kirkland’s identification of Mr. Mungin was extremely important evidence. Although I attempted to undermine Kirkland’s testimony during cross-examination, any evidence that was available that I could have used to further undermine his credibility (especially his purported identification of Anthony Mungin) would have been useful and would have been presented. I would also expect, under the State’s obligation under Brady v. Maryland, that the prosecution would disclose to me any favorable evidence which could have been used to impeach Kirkland or otherwise undermine his testimony and identification of Mr. Mungin.

5. Prior to trial, the State provided me with a copy of Detective Gilbreath’s homicide report, in which there is brief mention made of George Brown and the information he supposedly told Detective Conn when he was interviewed on the day Ms. Woods was shot. I relied on this police report as being an accurate and truthful account of what Mr. Brown told the police. The version of Mr. Brown’s statement contained in the homicide report generally supported the version of facts provided by Mr. Kirkland, and provided no suggestion that Mr. Brown had information that would be useful to impeach Mr. Kirkland’s version of the events.

7. [sic] Because the information contained in the police report appeared to be of much less importance than the information provided by Kirkland, and due to the fact that Kirkland became the chief prosecution identification witness, our efforts focused on attempting to undermine Kirkland’s testimony at trial. Because I relied on the veracity of the police report, apparently no one from the defense team contacted or spoke with Mr. Brown prior to trial.

8. Mr. Brown’s affidavit contradicts Mr. Kirkland’s version of events, and demonstrates that the police report was inaccurate in terms of explaining the information that Mr. Brown provided to law enforcement. When handling criminal cases, I expected the State to provide me with an accurate recitation of what witnesses told the police, but I was never provided with the information contained in Mr. Brown’s affidavit. Had the State provided me with an accurate report containing the true version of events that Mr. Brown witnessed, this would have made a tremendous difference in terms of the presentation of Mr. Mungin’s case. Every effort would have been made to interview Mr. Brown and to present his conflicting testimony, given that it contradicts and impeaches Kirkland’s version of events and his identification of Anthony Mungin.

9. It is my understanding that Mr. Brown is an unbiased witness with no prior criminal background, in contrast to Mr. Kirkland, who had an extensive criminal history and whose credibility was already in question. It would have been helpful to have a disinterested witness with no criminal background who would have been able to testify and contradict Kirkland’s testimony. However, the State never provided me with an accurate and truthful account of Mr. Brown’s involvement in the case.

Based on the affidavits of Brown and Cofer, Mungin asserts that he is entitled to relief under Brady, Giglio, or newly discovered evidence. The trial court held a Huff4 hearing to determine whether an evidentiary hearing was needed and then denied relief, finding that Mungin failed to demonstrate prejudice.

4. Huff v. State, 622 So. 2d 982 (Fla. 1993).

Determining whether the trial court erred in denying an evidentiary hearing on a successive rule 3.851 motion is a question of law subject to de novo review. Darling v. State, 45 So. 3d 444, 447 (Fla. 2010). Because the circuit court denied Mungin’s motion without an evidentiary hearing, this Court must accept all factual allegations in the motion as true to the extent they are not conclusively refuted by the record. Id. The Court will affirm the ruling ?[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.? Id.; see also Fla. R. Crim. P. 3.851(f)(5)(B) (providing that a successive postconviction motion in a capital case may be denied without an evidentiary hearing if ?the motion, files, and records in the case conclusively show that the movant is entitled to no relief?). The Court will uphold the postconviction court’s summary denial ?if the motion is legally insufficient or its allegations are conclusively refuted by the record.? Darling, 45 So. 3d at 447 (quoting Ventura v. State, 2 So. 3d 194, 198 (Fla. 2009)).

Here, Mungin has raised three claims pertaining to the Brown affidavit:

(1) the State violated Brady in failing to disclose the favorable evidence pertaining to Brown; (2) the State violated Giglio by knowingly presenting false evidence; and (3) Brown’s affidavit constitutes newly discovered evidence that mandates a new trial. In looking at the three different claims raised regarding Brown’s testimony, we review the different legal standards involved, starting with Mungin’s Brady claim.

The Fifth and Fourteenth Amendments to the United States Constitution require a prosecutor to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. United States v. Bagley, 473 U.S. 667 (1985); Brady v. Maryland, 373 U.S. 83 (1963). In order to establish a Brady violation, the defendant must demonstrate that (1) favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Way v. State, 760 So. 2d 903, 910 (Fla. 2000). To meet the materiality prong, the defendant must demonstrate ?a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.? Way, 760 So. 2d at 913 (quoting Bagley, 473 U.S. at 682). A reasonable probability is a probability sufficient to undermine this Court’s confidence in the outcome. Id.; see also Strickler, 527 U.S. at 290. However, in making this determination, a court cannot ?simply discount[] the inculpatory evidence in light of the undisclosed evidence and determin[e] if the remaining evidence is sufficient.? Franqui v. State, 59 So. 3d 82, 102 (Fla. 2011). ?It is the net effect of the evidence that must be assessed.? Jones v. State, 709 So. 2d 512, 521 (Fla. 1998).

In denying relief on the Brady claim, the postconviction court concluded that Mungin failed to show that the evidence was material. In its order, the

postconviction court noted that there were three differences between what Brown alleged in his affidavit that he told the police officer at the scene of the crime and what was stated in the arrest report, concluding that none of these were material or would undermine confidence in the outcome. Specifically, the court found as follows:

There appear to be three differences between what Mr. Brown alleges in his affidavit that he told the officer on the date of the murder, and what the arrest report indicates Brown told the officer. First, Brown alleges that he told the detective that Kirkland arrived

after he, Brown, had discovered Ms. Woods and called 911, whereas the report indicated that Brown and Kirkland ?entered the store at the same time.? Second, Brown alleges that he did not touch the cash

register, whereas the report indicates that he ?checked the registers.? Third, Brown alleges that someone had come out of the store as he

was entering, but that he told the police that he could not describe the person, whereas the report indicates that he did not ?notice? anyone leaving the store as he entered. None of Brown’s other allegations

that conflict with Kirkland’s testimony is alleged to have been shared with police.

Even if it were assumed that the State erroneously withheld this information, Defendant suffered no prejudice from the failure to disclose. First, most of the allegedly withheld statements are not

particularly material. The second and third discrepancies noted above constitute minor differences in the characterization of events. The

only material discrepancy was Mr. Brown’s allegation that he told the officer that he was the only person in the store and that Kirkland did not come into the store until after Brown called 911. While this

discrepancy might have been used to impeach Kirkland’s testimony, it does not create a reasonable probability of a different outcome given the importance of Kirkland’s testimony compared to other trial evidence.

It is critical to recognize that the undersigned presided over Defendant’s trial, and has a very vivid recollection of the trial evidence, which was overwhelming even without Kirkland’s

testimony.[5] Uncontroverted ballistics evidence was presented directly tying Defendant to the shooting of Ms. Woods. When Defendant was arrested, police found a .25-caliber semiautomatic pistol, bullets, and Defendant’s Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Defendant’s house. Moreover, the robbery/murder in this case was the third in a series of robberies and shootings, all of which were committed with the same gun, the gun found in Defendant’s bedroom. Furthermore,

Defendant was positively identified as the person who had committed the first two robbery/shootings, and the car he used in the first two

robberies had been stolen from near his home and then abandoned not far from the scene of the instant robbery/murder. Another car stolen

from that area ended up next to Defendant’s home with two expended shells from the murder weapon in it. In short, Defendant used the murder weapon in two robbery/shootings not long before the instant robbery/murder, had possession of the murder weapon following the instant robbery/murder, and was directly connected to the two cars used in the three robbery/shootings.

George Brown’s affidavit does not allege that a person other

than Defendant robbed and killed Ms. Woods, or that Defendant could not have been the killer. Brown’s allegation could only provide[] further impeachment of details of Kirkland’s testimony and his identification of Defendant as the person he saw leaving the store. Even if Defendant’s motion demonstrated that the State improperly withheld information from the defense, that information does not establish a reasonable probability of a different outcome sufficient to undermine confidence in the outcome of the trial. Evaluation of the [sic] all of the evidence introduced at trial demonstrates that it was

overwhelming even if Kirkland’s identification could have been called into doubt by Brown’s testimony. As such, Defendant’s claim of a Brady violation is conclusively refuted by the record.

5. We caution that trial courts must decide these postconviction matters on an objective basis. See, e.g., Guzman v. State, 941 So. 2d 1045, 1051 n.4 (Fla. 2006) (recognizing that trial courts are to make an objective determination as to the effect of a Giglio error; it cannot be a subjective assessment). In this case, because the motion was denied without an evidentiary hearing, we must accept Mungin’s allegations as true and determine prejudice by reviewing whether our confidence in the outcome is undermined.

In reviewing this claim, we examine Kirkland’s trial testimony in even more detail. At trial, Kirkland testified that he was the first person to arrive at the location of the shooting. On his way to his girlfriend’s house, he stopped by the Lil’ Champ convenience store to pick up a diet coke and breath savers. As he was going into the store, a man who was carrying a brown paper bag almost knocked him down on his way out of the store. He described the man as being shorter than five feet, six inches and weighing about 130 pounds. Kirkland went into the store, picked up his items, and waited for the clerk, finally noticing that she was lying on the floor. He thought she might have had a seizure so he attempted CPR, and while he was performing CPR, another customer came in and called 911. Kirkland alleged that the other customer looked at the cash register and pulled the drawer open. An officer later came to his home and showed him six or seven pictures. Kirkland identified a picture of Mungin as the man who he saw leaving the store. He further identified Mungin in court as the man who he saw.

On cross-examination, defense counsel confronted Kirkland on a number of inconsistencies. For example, although Kirkland was able to identify Mungin as the person he met, he stated he had only a glimpse of him before they bumped into each other, and since Mungin was then traveling in a different direction away from him, Kirkland saw only the back of his head. However, Kirkland was unable to recall if Mungin wore a hat and could not describe whether he was wearing a light

or dark shirt. Further, Kirkland stated that Mungin had long hair that appeared to be in a Jheri-curl style and had a ?good bit? of beard growth on him—a description that differed from Mungin’s appearance at the time of the crime. When the police first asked Kirkland to identify the person leaving the crime scene, Kirkland stated that he was not sure if he could recognize the person again, but he would try.

When he was shown the pictures, Kirkland reviewed the photographs for approximately fifteen minutes before he picked Mungin’s photo as the person that he saw.

During closing argument, defense counsel stressed the following inconsistencies: at the time that Kirkland noticed the person rushing out of the convenience store, he did not realize it was a murder scene but was thinking about his upcoming date; Kirkland admitted that he saw only the back of the person’s head and not his face; Kirkland admitted he saw only a glimpse as the person rushed away; Kirkland was unable to identify any of the clothing that the person was wearing; and most importantly, Kirkland described the person he saw as having a beard and hair that was ?kind of long? even though other eyewitnesses to the Tallahassee shooting (which occurred two days earlier) stated that Mungin’s hair was so short that it looked like he was in the military. Thus, defense counsel asserted that Kirkland’s testimony supported that the person he saw leaving the

store could not have been Mungin because a person would be unable to make hair grow significantly in only two days.

During prior postconviction proceedings, this Court discussed the value of Kirkland’s testimony as follows:

Mungin’s first subclaim is that trial counsel was ineffective for failing to sufficiently impeach the testimony of Ronald Kirkland. Specifically, Mungin argues that Cofer should have made the jury

aware that Kirkland was on probation at the time of the trial and that warrants had been issued for Kirkland’s arrest on violation of probation and subsequently recalled.

Even if Cofer’s performance was deficient because he failed to discover and use Kirkland’s probationary status as impeachment evidence, Mungin has failed to establish prejudice. Cofer attacked Kirkland’s identification of Mungin on cross-examination of Kirkland, and by his cross-examination of the victim of the

Monticello shooting and the eyewitness to the Tallahassee shooting, whose descriptions of the perpetrator were different from Kirkland’s. In closing argument, Cofer argued extensively that due to these inconsistencies, Kirkland’s identification could not be believed

beyond a reasonable doubt. Moreover, Kirkland testified that he did not tell anyone from the State Attorney’s Office that he was on probation and that he did not have any deals with the State in

exchange for his testimony at Mungin’s trial. Mungin does not allege that any deals were made. As for trial counsel’s failure to inform the jury of the recalled warrants for Kirkland’s arrest, because the warrants were not recalled until after the trial it cannot be said that counsel’s performance was deficient.

. . . .

Even assuming that counsel’s performance was deficient in this

regard, we conclude that Mungin has failed to establish prejudice. As noted above, trial counsel attacked Kirkland’s identification of

Mungin on cross-examination by bringing out the limited time he had to actually view the perpetrator and the fact that it took him fifteen to twenty minutes to pick Mungin out of the photo lineup. Cofer also brought Kirkland’s identification into question by his cross-examination of the victim of the Monticello shooting and the

eyewitness to the Tallahassee shooting, who gave different descriptions of the perpetrator than did Kirkland.

Mungin II, 932 So. 2d at 998-99 (footnote omitted). We concluded that Mungin was not entitled to relief because our confidence in the outcome of Mungin’s trial was not undermined.

However, Brown’s testimony completely contradicts Kirkland on a material detail: whether Kirkland could have seen Mungin leaving the convenience store right after the murder. Kirkland, who testified at trial, claimed that he was the first person on the scene and identified Mungin as leaving the murder scene. Brown, in direct contradiction, asserts that he was first on the scene and that no other witnesses were present during the entire time he was searching for the missing clerk. Brown alleges that he found the victim and called 911. In referring to Kirkland, Brown swears in his affidavit that Kirkland came in and ?pretended that he had been there the whole time. The man was not there when I got there and he did not find the lady.? If, in fact, the trial judge upon remand determines Brown is being truthful, this would clearly mean that Kirkland was untruthful at trial, which might have been critical testimony for the jury. We are troubled by the possibility that a false police report was submitted and then relied on by defense counsel. Without an evidentiary hearing to explore this issue, we are left with mere speculation as to what in fact occurred, what the police knew, what the prosecutor knew, and whether Kirkland, a witness with an extensive criminal history, was

lying when he testified at trial. In reviewing the Brady claim presented, accepting all allegations in the motion as true to the extent they are not conclusively refuted by the record, we cannot agree that the record at this point conclusively shows that the evidence was not material (i.e., that there was not ?a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different?). Way, 760 So. 2d at 913 (quoting Bagley, 473 U.S. at 682). Accordingly, we reverse and remand this claim to the postconviction court for an evidentiary hearing pertaining to Brown and the allegation that the police report was false.

Mungin also asserts that this evidence establishes a Giglio violation. Under Giglio, ?a defendant must show that: (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material.? Rhodes v. State, 986 So. 2d 501, 508-09 (Fla. 2008). As to the knowledge prong, in Guzman v. State, 868 So. 2d 498 (Fla. 2003), we have clarified that Giglio is satisfied where the lead detective testifies falsely at trial because the ?knowledge of the detective . . . is imputed to the prosecutor who tried the case.? Id. at 505.

The materiality prong of Giglio is more defense-friendly than in a Brady claim. See Davis v. State, 26 So. 3d 519, 532 (Fla. 2009) (?[T]he standard applied under the third prong of the Giglio test is more defense friendly than the test . . .

applied to a violation under Brady.?), cert. denied, 130 S. Ct. 3509 (2010). While under Brady, evidence is material if a defendant can show ?a reasonable probability that . . . the result . . . would have been different,? Way, 760 So. 2d at 913 (emphasis added), under Giglio, the evidence is considered material simply ?if there is any reasonable possibility that it could have affected the jury’s verdict.? Rhodes, 986 So. 2d at 509 (emphasis added). Accordingly, for the reasons addressed above, we likewise hold that after reviewing the Giglio claim presented and accepting all allegations in the motion as true to the extent they are not conclusively refuted by the record, we cannot agree that the record at this point conclusively shows that the evidence pertaining to Brown would not affect the jury’s verdict. Accordingly, an evidentiary hearing is needed on this claim as well.

Our analysis is different, however, in considering Mungin’s claim that based on this newly discovered evidence, he is entitled to relief under Jones v. State, 709 So. 2d 512 (Fla. 1998). In order to be considered newly discovered: (1) ?the evidence must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence?; and (2) the evidence ?must be of such nature that it would probably produce an acquittal on retrial.? Jones, 709 So. 2d at 521 (internal quotation marks and citation omitted). In making this determination, a trial court must ?consider all newly discovered evidence which would be

admissible at trial and then evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.? Id. (internal quotation marks omitted). We deny this claim because the information provided by Brown is not of such a nature that it would probably produce an acquittal on

retrial. The jury heard significant evidence during the trial that established Mungin as the killer, including testimony that Mungin stole a red Escort and was engaged in similar shootings a few days before the murder, the stolen car was later discovered in Jacksonville, and the shell casing and bullet left at the scene of the murder were identified as matching the gun found at Mungin’s home.

For the reasons addressed above, we reverse and remand the Brady and Giglio claims to the postconviction court for an evidentiary hearing pertaining to Brown and the allegation that the police report was false. We express no opinion on the merits of these claims. The parties shall proceed in an expedited manner, and an evidentiary hearing on this claim shall be held and an order entered within 120 days of the remand.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY, C.J., concurs.

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

POLSTON, J., concurring in part and dissenting in part.

I agree with the majority’s decision to affirm the trial court’s summary denial of Mungin’s newly discovered evidence claim. However, unlike the majority, I would also affirm the summary denial of Mungin’s Brady and Giglio claims because Mungin cannot demonstrate materiality under either Brady or Giglio.

Although Brown’s affidavit calls into question whether Kirkland could have seen Mungin leaving the store shortly after the shooting, Kirkland’s testimony was already called into question based on other significant inconsistencies, which were pointed out during the trial and stressed during closing arguments. For example,

Kirkland’s testimony conflicted with other testimony that Mungin had very short hair at the time of the murder. In fact, defense counsel made a convincing argument that Kirkland’s testimony actually supported that Mungin could not be the person leaving the store. Based on a review of Kirkland’s testimony and the problems with it, it is unclear whether the jury put any weight in it or whether it was even incriminating.

In contrast to the questionable strength of Kirkland’s testimony, the jury was presented with significant evidence that Mungin committed the murder. Specifically, the jury was presented with evidence that the murder weapon was found at Mungin’s home days after the murder, that Mungin used this same gun to

shoot two other store clerks just days before the murder, and that Mungin was linked to the stolen vehicles involved in the crime spree. Brown’s affidavit does not call any of this evidence into question and does not provide any support that Mungin was not involved. Therefore, materiality cannot be established under either Brady or Giglio. See Way v. State, 760 So. 2d 903, 913 (Fla. 2000) (explaining that the materiality prong under Brady is met if the defendant demonstrates ?a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different?) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (plurality opinion)); Rhodes v. State, 986 So. 2d 501, 509 (Fla. 2008) (explaining that evidence is material under Giglio ?if there is any reasonable possibility that it could have affected the jury’s

verdict?).

Accordingly, I respectfully concur in part and dissent in part.

CANADY, C.J., concurs.

An Appeal from the Circuit Court in and for Duval County,

John Southwood, Judge – Case No. 92-3179CF

Todd G. Scher, Miami Beach, Florida, for Appellant

Pamela Jo Bondi, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, Florida,

for Appellee

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