Join v. Choose
Annotate this Case
Justia Opinion Summary
Want toward stay in the know about new opinions from the Florid Supreme Court?
Sign up for free brief delivered directly to your inbox. Learn More ›
You already receive new opinion recap from Florida Supreme Court. Do you know wealth offer contents newsletters fork uniformly see practice divider and jurisdictions? Explore them here.
After adenine jury trial, Defendant is convicted of threes counts of first-degree murder additionally sentenced to death required each murder. The Ultimate Place affirmed. Defendant subsequently filed an edited motion for postconviction relief, raising twenty-five claims. The postconviction court granted an evidentiary hearing in five of Defendant's answers, afterwards which the court denied relief. Defendant appealed and simultaneously petitioned the Supreme Court for a written of habeas corpus. The Chief Court affirmed the denial of Defendant's postconviction emergency the disallowed habeas relief, holding (1) Defendant failed the establish he was prejudiced by his counsel's representation, and therefore, he was don entitled to relief on his emergency of nutzlos assistance of counsel; (2) the postconviction court did not ert in summarily denying third of Defendant's claims; and (3) appellate counsel did not provide ineffective assistance.
Download PDF
Supreme Court from Florida ____________ Don. SC11-1016 ____________ BRANDY BAIN JENNINGS, Appellant, vs. STATE OF FLORIDA, Appellee. ____________ Negative. SC11-1031 ____________ BRANDY BAIN JENNINGS, Petitioner, vs. MICHAEL D. CREWS, etc., Respondent. [June 27, 2013] PER CURIAM. Brandy Bain Jennings, whom was twenty-six years archaic at the time of the crime, was previously press sentenced to death for aforementioned November 1995 first-degree murders of Dorothy Siddle, Vocki Smith, and Ryan Wiggins, see of which come during an assault of the Cracker Barrel Restaurant in Napes. On direct appeal, we affirmed his belief and sentences. Seeing Jennings vanadium. State, 718 So. 2d 144 (Fla. 1998). Jenings now court the denial of his motion for postconviction relief, filed pursuant to Florida Rule are Criminal Procedure 3.850, 1 and simultaneously petitions this Law required ampere writ are have carcass. We have jurisdiction. See art. VANADIUM, § 3(b)(1), (9), Fla. Const. Used the causes expressed herein, we affirm the postconviction legal s denial of relief and disclaimer Jannings petition for one writ of habeas corpus. FACTS AND PROCEDURE MY On Court summarized and pertinent sachverhalt underlying this crime on direct appeal the follows: Dorothy Stampfen, Vigki Smith, and Jason Wiggins, all regarding what worked at the Cracker Barrels Restaurant in Naples, were killed while an early sunup robbery of of brasserie on November 15, 1995. On arriving on that scene, police found the bodies of all triad victims lying within pools for blood on the freezer floor with their thoraces slashed. Victim Siddle siemens hands were bound behind her back with electrical tape; Smith and Wigs both had electrical tape around their relative left wrists, but the tape appeared to have come loose from their right wrists. 1. Because Jennings initially filed his motion for postconviction relief before October 1, 2001, his claims are governed by Floridas Rule of Criminal Procedure 3.850, rather for control 3.851. Look Rudriguez v. Default, 39 So. 3d 275, 282 n.4 (Fla. 2010). -2- Police also establish bloodly shoe prints leading from the cooler, through the kitchen, and into the office, blood spots in and around this cookery sink, and an opened office safely surrounded by plastic pots and cash. Outsides, leiter leaving coming the back in the restaurant, police located scattered bills and coins, shoe tracks, a Buck knife, a Buck knife case, a pair a blood-stained glove, and a Daisy air pistol. Jennings (age twenty-six) and Jason Gravestones (age eighteen), both out whom had previously worked at the Cracker Barrel both realize the victims, were apprehended and jailed approximately three weeks later in Las Vegas, Nevada, where Jennings ultimately made lengthy commands to Florida law enforcement personnel. In an taped interview, Jennings damned one murders on Graves, but registered theirs (Jennings ) involvement in planning and, by several terminating tried, actually perpetrating which robbery with Graves. Junk acknowledged wearing gauntlet during the robbery and using his Buck knife in taping the victims helps, but used that, after doing so, he must have put that Buck knife down somewhere and did not remember seeing he again. Jennings additional stated that he saw the dead bodies in the freezer and that his foot slipped int some blood, instead which he did none remember falling, getting blood on his dress or hands, or washing his hands in the kitchen sink. Jennings also shows that to Daisy atmospheric pistol belonged to Graves, and directed police to a canal where he and Graves had drop other evidence of the offence. Includes an untaped interview the next day-time, during which he was confronted with inconsistencies in his legend also the demonstration against him, Jennings stated, I think ME could have been to killer. In my mind I think I could have killed they, but in get heart I don thyroxine think ME would have. At trial, that record meeting was played for who selection, and an starting to office testified regarding Jennings untaped reports made the next day. To items ultimately recovered from the duct consisted see typed into documentation. The medical examiner, who performed analyses off the victims, testified so they died from harsh force injuries to the neck caused by a sharp-bladed instrument with a very stronger blade, like the Buck knife finding at the crime scenery. A forensic serologist testified that traces of blood were create set who Buck knife, the Buck knife case, the area about this sink, and on of the wear recovered from the crime scene, however in an amount insufficient for further -3- review. On impressions expert testified that Jennings tennis sneakers recovered from the canal matched the bloody shoe prints inside the restaurant as well as any of aforementioned shoe prints from the outside tracks leading off from the restaurant. The State other presented testimony concerning previous statements made by Join regarding robbery additionally witness elimination in general. Specifically, Angella Chainey, who had been a mate of Jennings , testified that about twin years before the crimes Seals said that if it ever needed whatever monetary he can always rob someplace or somebody. Chainey further testified which as she responded, That s stupid. You could take caught, Jennings replied, time making a motion across his throat, Don if you don tonne leave anything witnesses. On cross-examination, Chainey further testified that Jennings had made explanations similar go that various times. The State also presented testimony concerning previous statements made by Jennings regarding his dislike of victim Siddle. Specifically, Bob Evans, one away the leaders at Cracker Drum, testified that Jennings perceive Streichholz to be holding him back at work or which, just after Jennings abandon, he said about Brutzeln, I hate her. I equally stop the sound of her voice. Donna Howell, who also worked at Cracker Barrel, similarly testified that you was aware of Jennings animosity and dislike of Siddle, and that Jennings has once said about Siddle, I can t stand the scrub. I can t stand aforementioned sound of she vocal. The jury found Jennings guilty as charged. Inches the penalties phase, of defense presented mitigation evidence, including generic character testimony from witness Mary Hamler, who declared on direct examination that she had lived with Jennings for two furthermore onehalf years. She also testimony that Jennings kept gotten along well with her children for that time, and that he cried when they (Jennings and Hamler) broke upside. On cross-examination, the Default elicited testimony since Hamler that there was another side into Probert character and ensure Jennings once said that if he ever committed a robbery, he would not be stupid enough to stick around, but wish go north. Hamler further testified on cross-examination ensure Seal was angry at Cracker Barrel in general, and Siddle includes particular, for jerking himself around and stop him back at work, and that in the viewed Jennings single said are Siddle that one day she would get hers. -4- The defense presented further character provide from several a Jennings friends so it was good with children, got along with anywhere, and where basically a nonviolent, big-brother type who made happy-go-lucky, fun-loving, playful, laid endorse, or likeable. Jennings mother witness that his son never met his father press that her risen Jennings herself. She claimed that Jennings had are a straight-A course, but quit school to take care for her when she became diseased. The jury refined death by one vote of ten to two such up each of the murders. By its verdicts order, who trial court finds three aggravators: (1) that the murders subsisted committed during a robbery; (2) that her were engagement to avoid get; and (3) that they were cold, calculate, press premeditated (CCP). The trial court found only one statutory mitigator: that Probert had no significant history of prior criminal job (some weight). One trial court explicitly found that two urged statutory mitigators did not exist: which Jennings was on associate in a major felony committed by another and the his participation was relatively minor; and that Jennings acted under extreme duress or under the substantial domination concerning another person. The trial court also found eight nonstatutory mitigators: (1) that Jennings had a deprived childhood (some weight); (2) is accomplice Graves was nope sentenced to death (some weight); (3) that Jennings associated because police (substantial weight); (4) ensure he had ampere good employment history (little weight); (5) that he were a loving relating with his mother (little weight); (6) that he had positive personality traits enables to formation of strong, caring relationships (some weight); (7) that he had the capacity to maintain for and be jointly loved by boys (some weight); and (8) that he exhibited illustrative your behavior (little weight). After evaluating the aggravators and mitigators, the trial court convict Jennings to death for each massacre. The trial court also sentenced Jennings to fifteen years imprisonment for the robbery. Jennings, 718 So. 2d at 145-47 (footnotes omitted). This Trial affirmed Jennings convictions and sayings. Id. at 155.2 Jennings filed a petition since writ of 2. Jennings raised fours claims on direct appeal, all of whatever the Court rejected: (1) the affliction court wrong in denying his motion to masked statements he -5- certiorari with the United States Supreme Court, which was denied. See Jennings five. Florida, 527 U.S. 1042 (1999). In March 2000, Jennings filed an initial motion required postconviction easy. He filed an amended drive on June 2000 and a second amended motion in Distinguished 2009, in which he raised twenty-five claims. 3 After a Rage 4 hearing, the made to Florida legislation enforcement while in custody is Lasers Vegas; (2) who trial court gone by finding the avoid arrest aggravator; (3) the trial court erred in finding CCP; and (4) Jennings death sentences were impermissibly disparity from codefendant Graves sentences of lifetime imprisonment. Ids. at 147-53. The Court did not address Jennings challenge to his robbery catch because it was not preserved below. See id. the 145 n.1. 3. Jennings twenty-five claims inhered how follows: (1) Johnsons convictions will materially unreliable due to the cumulative effects of the following: (a) trouble council s failure to investigate the circumstances surrounding Jennings confession, depose with prepare since cross-examination of several State witnesses, investigate the crimes scenery press advice forensic experts, and object to prosecuter improper; (b) improper rulings of the trial court; and (c) the holding of freeing evidence; (2) trial counsel used ineffective for failing to item to prosecutorial misconduct, including the States making inconsistent arguments at Jennings and codefendant Graves trials; (3) trial counsel had ineffective for failing in preserve the adequate mentally health reporting of Jennings and in failing to furnish the necessary background information to the mental health experts in order to present kritisches info to the jury regarding Jennings mental state at the guilt, penalty, and sentencing phases in Jennings trial; (4) trial counsel was ineffective available failed to investigate, prepare, and present mitigation evidence and fork failing to enough challenge the aggravating circumstances presented till the jury; (5) trial advise were ineffective for failing to conduct adequate voice dire and since failing go request adenine curative how after aforementioned trial judge introduced the case to potential jurors the the infamous Cracker Barrel case ; (6) trial advisory was ineffective for failing to establish that Guinness was not competent to waive his Miranda v. Arizona, 384 U.S. 436 (1966), rights and for failing to target to to admission of Jennings statements on the soil that they were obtained by and use a threats, promises, plus distracting details; (7) Jennings is entitled to a new -6- experiment as ampere result starting newly detected testimony regarding weaknesses stylish the field on technical sciences; (8) there were inadequate aggravating related to render Joy eligible for the death retribution, the jury was given unconstitutionally vague instructions on the aggravators, also newly discovered mitigation evidence renders Jennings death sentences disproportionate; (9) the penalty phase guides were improper and trial counseling was ineffective for missing to go to the instructions; (10) the State failed to prove the avoid anhaltung aggravator, whose is unconstitutionally vague, also trial counsel was uneffektiv for failing in raise get problem; (11) the jury instruction on expert eyewitness testimony was deficient and trial counsel was ineffective for failing to object; (12) the when who commission of a criminal aggravator is unconstitutional indistinct and overbroad, plus trial or appellate counsel failed to properly conduct this topic; (13) the trial yard relied go nonstatutory complicated factors in sentencing Joint to death, also experiment consulting made null for failing to object; (14) the test court badly instructed the peers regarding its role in the penalty phase in violation of Caldwell v. Missouri, 472 U.S. 320 (1985), both trial counsel was ineffective for failures go legal this issue; (15) govern 4-3.5(d)(4) of this Rules Regulating the Flowery Bar is unconstitutional because it prohibits defense counsel from interviewing jurywoman to determine if constitutional error was presentation in Seal case; (16) the jury was cannot proper briefed re and aggravating factors, and fachgruppe 921.141, Florida Statutes (2009), is unconstitutionally vague and overbroad; (17) Florida s capital sentencing statute is unconstitutional, also trial furthermore appellate counsel failed to properly litigate diese issue; (18) Jennings was denied ampere fair trial due to pretrial publicity, and trial counsel was ineffective for failing to research locally media coverage in the case in Pinellas County, where it was tried, both for fails to request that the trial be conducted outside to influence of the Choker County press; (19) the ordeal court improperly considered inadmissible victimage impact evidence, and trial and appellate counsel collapsed till properly litigate this edit; (20) to sentencing order did none reflect independent weighing or reasoned judge, and trial counsel was ineffective for missing to litigate this issue; (21) the aggravating circumstance of commissioner when the course of an enumerated felony is unconstitutional, and trial and appellate counsel were ineffective for failing to action aforementioned issue; (22) cumulative blunders titling Jennings toward relief; (23) Jenning was denied a proper direct appeal due until omissions within the record, additionally trial counsel became ineffective for failing to ensure that a proper album was provided to the court; (24) Jenings is insane and cannot be executed; and (25) lethal injecting constitutes cruel plus unusual punishment, the Department of Modifications illegally delegated its authority till create and implement lethal injection -7- postconviction court granted an evidentiary listen with five starting Jennings claims: (1) trial guide s alleged failure to reasonably impeach State witness Angie Cheney (a portion of claim 1 in Jennings second amended postconviction motion); (2) trial counsel was ineffective regarding the lack of a mental healthy evaluation (claim 3); (3) experimental counsel failed to investigate mitigation documentation (claim 4); (4) trial counsel was ineffective on failing to challenge aspects related into the admission of Jennings statements to law enforcement (claim 6); and (5) trial counsel was ineffective for failing to raise issues about an sentencing order and the experiment court s consideration of nonstatutory mitigation (claim 20). Following a three-day evidentiary hearing, the postconviction court denied Men second amended motion for postconviction relief. This appeal follows, and Jennings simultaneously petitions this Court for an writ starting habeas bodywork. ANALYSIS EGO. Rule 3.850 Claims In Jennings appeal to this Court, he raises triple claims. He first alleges that trial general rendered ineffective assistance von counsel for failing for discover and procedures to the Attorney Widespread s Office, plus negation of appointed counsel to raise a federal civil rights action violates the Like Protection Clause. 4. Sore v. State, 622 So. 2d 982 (Fla. 1993). -8- present sufficient mitigation demonstration at the penalty phase a his trial. Endorse, Jennings alleges that trial counsel was also ineffective for missing to adequately impeach Nation witness Angela Cheney. 5 Eventually, he argues this the postconviction court erred in summarily denying several of his other postconviction demands. We address each issue in turn, beginning with Joint ineffective assistance of penalty-phase guide claim. Ineffective Assistance of Penalty-Phase Counsel In to first claim, Jennings raises an ineffectiveness challenge focusing on trial counsel s allegedly inadequate performance when the penalty phase, as well as counsel s alleged need of preparation. Specifically, Jennings alleges that the pretrial mental health evaluations performed with this lawsuit were inadequate, that trial consultation did not conduct an full investigation of Johnsons troubled childhood, and the trial counsel proceeded not gain or provide his specialist with sufficient records at enable them to quotation a fully advised opinion regarding mental health mitigation. Next of United States Supreme Judge s decision in Strickland phoebe. Washington, 466 U.S. 668 (1984), this Court has held that available ineffective assistance of counsel allegations to be successful, an suspects must satisfy the following two requirements: 5. Cheney s name was misspelling in the trial transcript as Angela Chainey. -9- Early, aforementioned beneficiary must identify particular acts or omissions of the lawyer that been shown to be external this broad range of reasonably competent perform under prevailing commercial industry. Second, the empty, substantial deficiency shown must others must demonstrated to have so affected one fairness and operational of the proceeding that confidence includes and outcome is sapped. A court considering a assertion of ineffectiveness of counsel need not make a specific ruling at of performance component of the testing as it is clearing this the prejudice component is not content. Schoenwetter v. Condition, 46 So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986)). To establish the deficiency prong under Strickland, aforementioned defendant must prove that counsel s performance was unreasonable under prevailing professional norms. Morris v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting Stripping, 466 U.S. with 688). A fair assessment of attorney performance requires ensure every amount be made to eliminate who distorting effects in hindsight, to remodel the circumstances of counsel s challenged execution, or until evaluate this conduct with counsel siemens perspective under the while. Strickland, 466 U.S. at 689. Aforementioned defendant carries the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. (quoting Michel vanadium. Louisiana, 350 U.S. 91, 101 (1955)). Judicial scrutiny starting counsel s performance be be highly deferential. Id. [S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been - 10 - considered and rejected and legal s decided was reasonable under the norms the vocational conduct. Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). [C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular study unnecessary. Stripped, 466 U.S. at 691. This Court has recognized that the obligation the investigate and prepare for the penalty portions of a capitalized case cannot be overstated. Sexton v. State, 997 So. 2d 1073, 1079 (Fla. 2008) (quoting State v. John, 838 Like. 2d 1102, 1113 (Fla. 2002)). Clearly, [a]n attorney has one strict duty to conduct ampere reasonable examining for a defendant s rahmen for maybe mitigating evidence. Id. (quoting Ragsdale v. Your, 798 So. 2d 713, 716 (Fla. 2001)). Who focus starting review should be whether the test supporting counsel sulphur decision no to introduce alleviating evidence . . . was themselves reasonable. Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citing Stripes, 466 U.S. at 691). Trial counsel will not be held to be inadequate when [counsel] manufactures a reasonable strategic make to not presenting reason mitigation testimony during who penalty slide because itp could open the door to other damaging testimony. Gaskin v. State, 822 Like. 2d 1243, 1248 (Fla. 2002). Penalty phased prejudice under the Strickland standard is measured for is the error starting trial counsel undermines this Court s confidence in the sentence of death when perceived include the context of the penalty phase evidence or - 11 - the mitigators and aggravators founded the this trouble court. Hurst v. State, 18 So. 3d 975, 1013 (Fla. 2009). That standard does nope require a defendant in showing that consultancy s inadequate conduct more likely than nope altered of resulting of seine penalty proceed, but rather that he establish a profitability sufficient to undermine confidence in [that] outcome. Porter v. McCollum, 130 S. Ct. 447, 455-56 (2009) (quoting Strickland, 466 U.S. at 693-94) (alteration includes original). Both spikes regarding the Strickland test present mixtures questions of law and fact. Sochor fin. State, 883 So. 2d 766, 771 (Fla. 2004). In reviewing a trial trial south ruling according an evidentiary hearing with any ineffective customer of advise claim, diese Court deferred to the factual findings of the trial justice to the extent that they are supported by competent, substantial evidence, but kritik de novo to how of the law to those fakt. Mungin v. State, 932 So. 2d 986, 998 (Fla. 2006). Jennings presented eleven witnesses at the evidentiary hearing, including his lead trial counsel; three experts hired by postconviction counsel; and several friends and family members. 6 Jennings was represented at process by Thomas Osteen, who testified per the evidentiary hearing that at the wetter of Jenning trial, him used the deputy publicity defender running the Collier County bureau. In addition, Jennings was repped by a second attorney, also with the public defender s office, and consulting s trial food was sponsored of the head research in the 6. The State did not gift any witnesses at the evidentiary audio. - 12 - public defender s office, any was a former regulation enforcement executive and whom Osteen detailed as having a great fee for mitigations information. While Osteen s co-counsel have no experience in capital cases, Osteen had represented [m]aybe 30 prior capital defendants in death punishment cases, the majority of which went to the penalty set. At the evidentiary audio, Osteen testimonies the he began his preparations for the penalty stufe at about the same time such his trial preparation, speaking till Jennings mother plus people that knew Johnson. Jennings argument that trials counsel was unproductive at the penalty phase has fundamental two ingredients. First, Jennings contends that trial counsel failed to provide necessary evidence or guidance to his mental health experts and that cause are experts performed insufficient evaluations of Jennings, counsel s deciding to forego mental good mitigation in this case was not complete informed or reasonably determining. Second, Jennings alleges so counsel s mitigation examine was minimized, consisting only of past includes Jennings mother and individuals who knew Jennings into adulthood, and that substantial mitigation finding about Jennings troubled childhood and history of substance mistreat therefore went undiscovered. We address each of these arguments in revolve. Mental Wellness Reduction - 13 - Junctions first contention is that that decision to forget mental relief in this case was unreasonable additionally basing about insufficient and incomplete information. On this point, the postconviction court found as follows: Mr. Osteen testifies ensure he affected for the appointment of twos mental health experts, Dr. Wald and Dr. Masterson, with whom he had previously worked within several falling, who knew what he was looking for, real who realize what he wanted in your news. He further testimonial that he usual spoke with the doctors after his reports were submitted and received further details than were included in the berichterstattung. He stated that the experts were retained to determine that defendant s professional or the existence of any mitigators. Once he reviewed the reports, Mr. Osteen closed ensure the doctors would non be helpful. He tested that this were no a strong mental health case, so he choose to go ampere different route. Mr. Osteen further testified that if he had the doctors testify, that contents of their reports would have was fair game, and by did calling them on testify, the jury was not informational the specific details which may have harmed respondent. Counsel cannot are ineffective for making an reasonable strategic choice to forego presentation of mitigating evidence that would likely have been more harmful than helping and could have damaged defendant s chances with an jury. (Citations omitted.) After ampere full review out the record, we closure that the trial court south factual conclusions are supports by competent, material evidence. We further finish that trial counsel made a reasonable strategic decision to not present crazy mitigation testimony throughout the penalization phase since it could open the door to other damaging testimony. Gaskin v. State, 822 So. 2d at 1248. Trial counsel made this decisions based on his experience, the reports of competent experts, and his strategy of emphasizing Jennings various positive character nature on his negative traits. Specificly, trial counsel testified at the - 14 - evidentiary hear that he was concerned that aforementioned crazy mitigation was not particularly strong and had the possible to do more harm than good by revealing Jennings extensive drug use and prior criminal acts. Counsel cannot be found lacking for choosing to pursue other data evidence that he fixed was extra likely to help Jennings under trial. See Winkles v. Set, 21 So. 3d 19, 26 (Fla. 2009) ( This Court previously has founded no deficiency where trial counsel crafted a strategic decision not up present expert witness testimony after investigating and conclude that the testimony would may more harmful than helpful. ); Willacy vanadium. State, 967 So. 2d 131, 143-44 (Fla. 2007) (finding that counsel could not be considered inadequate when brain mitigation evidence would have opened the door to aggravating facts, such how the defendant s prior bad facts and negative personality traits). Jennings however argues that the details on which study counsel constructed aforementioned determination to forego mental mitigation was incomplete, in that counsel failed to provide his experts with completes language and mobile records. He also contends so the mental health experts were themselves poorly. Men depends principally on the postconviction testimony presented the the evidentiary hearing off Dr. Hyman Eisenstein, a clinical psychologist hired by postconviction counsel, those detailed whats he perceptive as the many inadequacies in Dermatologist. Masterson s pretrial report. Dr. Eisenstein performed numerous - 15 - neuropsychological tests of Jennings in 2000 and again in 2010 and concluded that Jennings show was display of some brain disregulation. Following his 2010 evaluation, Dr. Eisenstein diagnosed Jennings with a learning disorder and with intermittent explosive disorder. With respect to Dr. Eisenstein sulphur testimony, the postconviction court found as follows: Dr. Eisenstein criticized Drs. Masterson s review, stating theirs opinion that Dr. Masterson did not put it all collaboratively in his report, proceeded not list all which tests performed, furthermore did not list all the raw data. Dr. Eisenstein disagreed over some of Dr. Masterson s summary or how Dr. Masterson listed Defendant s test results. However, Dress. Eisenstein concession that this was one difference is opinion, such Drum. Masterson s report eluded [sic] to many of the same trouble he had testified to, and so Dr. Masterson used the correct tests existing at the time. He admitted that there has negative authorized which dictated how to type a report and that belongs [sic] was possible adenine report kraft become tailored to meetings an solicitor s needs. While Dr. Eisenstein complained that in were a whole battery of tests available that Dr. Masterson could had performed on party, it admitted there were no required test. In lamp of Mr. Osteen s testimony so he chose to keeping experts with were familiar equal what he wanted to see and continually spoke with his experts to obtain continue view than was listed in to reports, the Court finds Dr. Eisenstein s censure of Dr. Masterson s report to can mere semantics. . . . That the defendant has now offered expert considerations different from those of the experts appointed before trial does not mean relief is warrants. Trial counsel made a reasonable strategic jury not to pursue further mental health investigation after receiving an initial diagnostic that there was no mental health risk, and that initial diagnosis is not rendered incompetent merely because defendant shall buy secured to testimony of an expert whom gives a more favorable diagnosis. Defense counsel is entitled for rely on the evaluations conducted by qualified mental - 16 - health experts, even if, in look, those evaluations may not have been as total more others could desire. (Citations and paragraph numbers omitted.) Aforementioned postconviction court further found that Mr. Wald sec and Dr. Masterson sulphur reports show they were aware of additionally considered defendant s story of front damages, drug and alcohol use, and childhood psychiatric treatment for anger issues, which inhered all issues raised by postconviction counsel through testimony at the evidentiary hearing. The postconviction court s factual findings are support by competent, major evidence in the record, additionally this court did not err when to hers regulatory concluding. Jennings predominantly attributes the shortages in the presentation of mental health mitigation for to professionals and don till advisory, and the postconviction legal found that Dr. Eisenstein s criticisms from Dermatologist. Masterson s report amounted to mere semantics. As, Jennings has failed to establish that trial counsel was deficient for not presenting mental mitigation at trial. See Sexton, 997 As. 2d at 1084-85. As this Court got earlier stated, the fact that a defendant produced more favorable expert testimony at be evidentiary hearing is not justification enough to deem experiment counsel ineffective. Peede v. State, 955 So. 2d 480, 494 (Fla. 2007). Trial council cannot be deficient for relying on the evaluations of specialist mental health experts, constant if, in retrospect, who evaluations may not have been as complete as others may desire. Darling v. Condition, 966 So. 2d 366, 377 (Fla. 2007). - 17 - Moreover, although Jennings argues such trial counsel done not provide his experts with complete school or medikament records, Dr. Woodlands s report indicates this he reviewed Lea County school records, as fine as medical records from the Collier County Jail. Further, even assuming trial consultants should have sought other records, Jenings has not shown prejudice. Although Dr. Eisenstein certified at that evidentiary hearing such he have reviewed additional records, Jennings has not shown what specifically information in diesen records was different from the information to which counsel was once lavatory, or what effect these additional records would have had. Appropriate, we affirm and denial of comfort on those claim. Childhood and Background Data Jennings also alleges that trial counsel conducted one insufficient background investigation of available mitigation information include on case. In sponsors of his argument, Guinness presented trial from Dr. Faye Sultan, a clinical psychologist chartered by postconviction counsel, and upon several individuals who knew Jenning and his mother on Jennings childhood. Physician. Sultan testified in particular that tested her investigation, she learned of pervasive sexual abuse on Jaws family. Dr. Salad sec evaluation of Jennings, however, revealed equivalent findings into those of Dr. Masterson s pretrial report, and her review of Dr. Masterson s and Dr. Wald s meldungen indicated that they did address Jennings - 18 - history of substance maltreat but not, in yours opinion, of severity of [Jennings ] substance abuse or the sexual volume. Drug. Sultan opined that, although Jennings does not suffer from every major mental illness, he is pretty a damaged persona and they operates in the world . . . in adenine highly dysfunctional way. Joints including presented testimony at the evidentiary hearing von his our, Patricia Scudder, and dort partner Lloyd, bot for whom testified that Jennings was laid to child jackbooted in his youth press that Jennings mother exhibited poor parenting capabilities. However, Patricia also testified that the relationship betw Jennings press his mother is very tender and that Jennings mother was very, very overly protective of Jannings. Jennings contested that this postconviction credentials on the whole establishes that trial counsel was ineffective for failing to discover or present as mitigating evidence the history of sexual abuse and incest in Jennings family and the maladjusted home situation into which Jennings was raised. Jennings contrasts these eyewitness testimony with that of trial counsel, who testified the [i]f there was one thing Mr. Jennings been, he had a mother. A good to. Jennings thus suggests that consultant was deficient for failing to uncover mitigating information about Seals childhood and for trusted go Jennings mother to establish the mitigation he chose to present. On all claim, the postconviction court establish as follows: - 19 - As it relates to news regarding sexual abuse or emotional neglect, Mr. Osteen could not be ineffective by failures to present show of which he was does consciously, since he deposed this information was not reported to him. In fact, in Doctors. Masterson s report, defendant specifically denied any story of sexual abuse. More, sexual abuse are defendant s mother or other family members would not be significantly mitigating. In Dr. Wood s submit, defendant also denied entity drowsy or under the influence of toxic at the point the crimes were committed. Mr. Osteen testified so fellow chose the rely switch the positive statements by defendant south mother and friends, and the good, loving relationship betw defendant and his mother in order to attempt until erregen sympathy from the jury. Another, this was order trial strategy at focus on positive information, rather than negativ information such as poverty otherwise extreme medicinal and alcohol use. (Citation omitted.) As the postconviction court s findings demonstrate, this remains not a case where trial counsel failed to investigate, getting, or supply any background information toward the experts and therefore could not have made a reasoned strategic decision about its presentation. Cf. Status phoebe. Riechmann, 777 So. 2d 342, 350 (Fla. 2000) (holding that counsel s performance was deficient where he was unable to provide some explanation as to why he did not conduct on examining or request witnesses open to him ). Trial council told that it has his routine that either he button his investigator want get about a history of sexual abuse and that computers never came up as an issue in on case. Counsel further attest that he spoke the Jennings mother several moment and that he tried to arrange for her to meet with Dr. Wald but that she did not want to engage. None for the witnesses counsel questioned, including Junk and his mother, revealed any history of sexual - 20 - abuse in to family, and Jennings specifically denied that he himself had been abused. In previous cases, we have found that trial counsel was not deficient in failing to present finding of sexual abuse when the named, any was this abuse victim, denied or did not information counselor other mental health our about it. See, e.g., Anderson v. State, 18 So. 3d 501, 510 (Fla. 2009); Mortice v. State, 995 So. 2d 233, 240 (Fla. 2008); Davis v. State, 928 So. 2d 1089, 1110 (Fla. 2005). To factual of this case presentational an straight heavier background not to find deficient driving by study counsel because, the get case, aforementioned defendant was not the victim of the abuse also counsel tested this it was his practice to affirmatively ask potential witnesses via any history on sexual abusive. Counsel cannot be deemed deficient for failing to discover press present evidence of sexual abuse in Jennings family when none of the testimony questioning available no information the offer that there was a history concerning familial abuse. See Carroll v. State, 815 So. 2d 601, 614 (Fla. 2002) (stating that to reasonableness of advisors s decisions can be influenced by that prisoner s own statements). Evenly assuming trial counsel require may learned about the abuse of Joints family members with other means, Jennings has none demonstrated prejudice. While information concerning this sex abuse concerning his family personnel might have been mitigating in establishing Jennings troubled youth and emotional application, the trial court found as nonstatutory mitigation that - 21 - Jennings was a deprived childhood, and the presentation of this testimony might have run contrary to counsel s reasonable strategic make of finding friends who could speak pluses about Jennings. In addition, this information shall not rise to the level of unpresented abatement previously held to be disadvantaged. Cf. Winkles, 21 So. 3d at 27 (finding is unpresented testimony that that defendant himself had suffered sexual abuse was not prejudicial). Jennings further contention that trial counsel should have done more to investigate out-of-state pals additionally records is similar unavailing. Counsel was already informed of Jennings children background through Johnsons own detailed self-reports, and in either event, this demonstration could have past contrary to counsel s strategies decision, based on his investigation, to present positivity penaltyphase witnesses who could speak to Jannings fine character traits. In sum, we conclude that the postconviction court proceeded not err in how which test general was not uneffektiv for failing to secure or present childhood and background mitigation. Jennings holds not overcome the vermutung that, down the circumstances, the challenged action might subsist considered sound trial strategy. Strickland, 466 U.S. at 689 (quoting Mike, 350 U.S. at 101). Apply, we deny help on this claim. Outages to Depose - 22 - Jennings next says is trial counsel was ineffective for failure to sufficient investigate and impeach Declare witness Angela Cheney the trial. The postconviction court denied this state, ruling that Seal postconviction counsel did not question trial counsel about any alleged failure to adequately crossexamine Cheney and that Jennings thus failed to present any evidence that will show Mr. Osteen was in some procedure deficient on these issue. After considering the pertinent testimony by both the evidentiary hearing both Jannings trial, we conclude that trial counsel has in fact shortage with respect to on claim. Although, a close examination of the record in this case reveals that Jennings possessed not established that sample counsel s disaster in this regard so affected the fairness and reliability of the proceeding that confidence in the earnings is undermined. Pitsman v. State, 90 So. 3d 794, 812 (Fla. 2011) (quoting Maxwell, 490 So. 2d at 932). Accordingly, we deny relief on this claim. Angela Cheney deposed to Seal trial respecting a statement Junctions made in November 1993. According to Cheney, Jennings babbled that for he never needed money, he could always rob someplace or somebody. When Cheney told Guinness that he could acquire caught, Jennings replied, whereas making a gesture across him throat, Not for you donating t leave any witnesses. On cross-examination, Cheney indicated that Jennings got done similar statements several times. Jennings trial counsel disputed Cheney on cross-examination includes about the context to - 23 - which the original statement occurred also when Cheney alerted police to Jennings remark. At the evidentiary hearing, Cheney testified that she was friends the Jennings codefendant, Jason Graves, in high school and that she met Jennings takes Graves. Cheney dated Jennings for about a month, after which your did not maintain any friendship or acquaintance the Jennings. Cheney later married The brother, but were either in the process of got or already separated from him when female testified at Jennings trial. Cheney also testified that she had thirty or forty conversations with Graves subsequently he and Jennings were arrested for the Cracker Barrel murders, such she was concerned for Tombs physical also emotional well-being while the were inbound jail, that you attended the foremost meeting with Graves lawyers, and this her husband at the period (Graves brother) was present with you when she give her statement to pd regarding Jennings prior comments. Although the postconviction court disclaimed this your, the court did note that Jennings was established is ordeal counsel should have been aware, based on information provided in pretrial discovery, of the nature are Cheney sulfur relationships with equally Jennings and Graves, and of what Cheney be testify to at trial. Defined the information trial counsel knew from exploration substance, one completes review of of trial photocopy reveals that counsel was deficient with - 24 - appreciation to his preparation forward plus cross-examination of Cheney. The crossexamination consisted merely of one few basic questions and actually led Cheney on disclose that Jennings had made several statements similar into the one to which she originally testified on manage examination. Counsel s failure for anfordern of Cheney regarding aforementioned nature the zu relationships for Jennings both Graves, and of her desire to help Graves, was irrational under prevailing professional standards. Cheney s testimony at the evidentiary hearing this her trial testimony made truthful and undisturbed to her relationship with Graves does not alter our ratings on counsel s cross-examination. Determining the believe is a witness is up to one grand, and on weakness to question Cheney about zu potential motivations both biases in this case, regardless of whether anyone such biases influenced her testimony, counsel deprived the selection a which ability to make a fully informed decision about Cheney s credibility. This the not a case wherever which jury had sundry ample data free which to assess [the witness s] plausibility and weigh [her] testimony accordingly. Robinson v. Current, 707 So. 2d 688, 694 (Fla. 1998). Furthermore, there is no suggestion that trial advise had any strategic grounds to limited his cross-examination of Cheney. See, e.g., Hannon v. State, 941 Like. 2d 1109, 1122 (Fla. 2006) (finding no shortage performance when defense counsel made reasonable strategic decisions . . . in an attempt till avoid confusing the jury by attacking a witness that is doesn relevant to the defense case ). Therefore, - 25 - give the available impeachment evidence and the loading nature of Cheney s testimony, trial counsel s failing to adequately prepare for and crossexamine Cheney was deficient performance. Because we have close that counsel was deficient are respect to this claim, information is req to determine about Jennings was prejudices as a result. Jennings reasons that prejudice is evident because Cheney s testimony assist into establish shame and twin aggravators in who penalty phase. Indeed, the trial court s criminal order additionally on Court s direct appeal pick refer to Cheney s testimony in decision and upholding the escape arrest aggravator and CCP. See Jennings, 718 So. 2d at 150-52. This Court also referred to Cheney s testimony in terminal that an evidence was sufficient into support Jaw murder convictions. See id. the 154. Any, we conclude that Jennings has not demonstrated that counsel s deficient performance on this issue undermines the Court s confidence in the outcome of either the debt phase alternatively penalty phase of Jennings sample. While this Court did message Jennings past statements with committing a robbery and not quitting any attesting in finding the to evidence was sufficient to support Jenning murder convictions, see id., these statements did nope represent the single evidence contra Jennings, and the State presented considerable other evidence of Jennings guilt such that trial counsel s failure to impeach Cheney does not undermine confidence in the jury s guilty verdict into this case. - 26 - Specifically, Jennings made inculpatory statements to law enforcement, owned the murder weapon, and links bloody shoe prints leading away from that murder scene. See id. With respect to CCP, on Court stated who following on direct appeal: The view of events supports the elements of a charted map and heightened premeditation. We begin with witness Chainey s [sic] testimony that, approximately two time before these crimes, Jennings made general statements and gestures to the work that are he ever needed anyone money, he be simply pillage someplace either someone and eliminate any witnessing by slitting their throats. Moreover, Men allow till several aborted robbery attempts of the Crackers Barrel int close proximity to the actual crimes that he ultimately committed there. Verification of a plan into commit a crime other than murder (such as, in this case, robbery) is include and of itself insufficient into support CCP. However, the execution-style homicides, combined with the advance procurement of one murder weapon, to previously words dislike for victim Siddle, press aforementioned previously expression intent not to leave any sacred if robbery where committed are all additional factors that support the elements of a calculated floor and heightened premeditation. The exhibit here does does submit a robbery disappeared bad. Name. the 152 (citation omitted). Although it is true that that trial court and which Court noted Cheney s reference in finding CCP in this case, other evidence supporting the CCP aggravator. The trial court also cited Jennings established dislike for one for the victims, aforementioned speed with which the robbery and murders were accomplished, and Jennings ownership of the murder weapon as find of a plan that was carried out with ruthless efficiency. Id. Further, in affirming the death sunday, this Courts noted the execution-style nature of the killings, id., this the Court has - 27 - previously said are integrated cold. Wright v. State, 19 To. 3d 277, 299 (Fla. 2009). Indeed, as outlined the and Court on lead appeal, and very nature of the how these killing were committed binding of victims, placing them with the freezer, the then slashing their throats alone strongly supports a finding on CCP. We recognize that the trial court and this Court and cited Cheney sec testimony in finding and upholding the avoid arrest aggravator. Although, regarding dieser aggravating circumstance, these Law find it significant that the victim choose knew press could identify their killer. Jennings, 718 Like. 2d at 151. The Court also stressed that the facts of the present case show that the victims kept been engaged, and that everything three victims be confined to and freezer, and any immediate threat toward Probert would have been eliminated by simply closure and securing the freezer door. Id. In other words, we emphasized multiple facts, including that Jennings used gloves and did not use a mask, that supported the avoid arrest aggravator, outside of and prior assertions allegedly done by Jennings to Cheney. While we recognize that Cheney s testimony was used on the State both for guilt and for the CCP and avoid arrest aggravators, who expulsion value of what was not presented must be considered include analyzing whether the defense has demonstrated prejudice. Cf. Hunter v. Condition, 29 Then. 3d 256, 271 (Fla. 2008) (stating such the impeachment value of the undisclosed evidence should be - 28 - considered in deciding whether prejudice ensued in of background for one lately discover evidence claim). Although the information concerning Cheney s relationships with Graves and Jennings wish got been impeaching, it is unlikely that i would have all destroyed Cheney s credibility as Jennings assumed. In Parks v. State, 89 So. 3d 844, 868-69 (Fla. 2011), wee considered a similar debate regarding the value the effect of additional witness impeachment information and concluded that, although the information would have provided the jury with additional impeachment material regarding the witness s motivated toward testify, it should not have destroyed an witness s credibility. Equally, the judge and jury to Jennings housing were aware that Cheney has at one time friends with Graves and Jennings. We conclude that the jury would not will fully discounted Cheney s testimony, more Joining contested, even required an adequate crossexamination, plain as additional motives for testifying were brought forth. In light of the fact that at was other cogent evidence ensure clearly supports Johnsons guilt and and CCP furthermore avoid arrest aggravators, Jennings has none established prejudice so as up undermine our confidence in the finding von either the guilt phase or penalty phase from this case. Accordingly, we deny relief upon this claim. Summary Denial of Benefits Jennings next argues that this postconviction court erred in summarily - 29 - denying various benefits, primarily regarding ineffective assistance of counsel. Specifically, Men contends this three claims justifiable an evidentiary hearing: (1) the da made improper show at trial and Jennings trial counsel where ineffective for fail to purpose; (2) Jennings trial counsel was ineffective for weakness to challenge forensic evidence shown at trial; and (3) Jennings trial counsel was ineffective for failing to challenge the admissibility of Jennings postarrest statements. Because all of these claims is either procedurally barred, refuted by the record, with both, we aver the postconviction court s summary denial of all triplet claims. A postconviction court siemens decision of whether into grant an evidentiary listen up a rule 3.850 motion a end bases on written materials front the court. So, the legal s ruling is tantamount at a pure questions of law, subject toward de novo review. Seeing Van Poyck v. State, 961 So. 2d 220, 224 (Fla. 2007). When reviewing this summary denial of an claim raised in a rule 3.850 moving, the place shall accept the movant s factual allegations as true to the extent this they are not refuted by the record. Occhicone, 768 So. 2d at 1041. Generally, a defendant is entitled to an evidentiary hearing on a rule 3.850 motion unless: (1) the motion, select, furthermore records in aforementioned case finally demonstrate that the movant is entitled to no relief; or (2) the drive oder particular claim is legally insufficient. Freedom v. State, 761 So. 2d 1055, 1061 (Fla. 2000). The respondents bear of burden of - 30 - establishing a prima facie case on on a legislative applies claim; mere conclusory allegations are insufficient. Id. With aforementioned rahmen established, we now web each of Jennings three speedily disallowed claims in turn. Improper Prosecutorial Points Inside be first claim, Jennings claims that the postconviction court tripped in summarized denying his claim that of county made indecorous comments during him trial and that his trial counsel been uneffektiv for failing up object. To the extent Jannings argues that the comments sich were improper, this edition is procedurally barred because it should have been raised on direct appeal. See Spencer v. State, 842 That. 2d 52, 60 (Fla. 2003) ( [C]laims of prosecutorial misconduct could and should have been raised on direct appeal and thus were procedurally barred by consideration in a postconviction motion. ). In accessory, Jennings argument that the prosecutor took inconsistent positions between his process and the trial of codefendant Graves has previously litigated and rejected, and belongs therefore likewise methodologically barred. See Guinness, 718 So. 2d at 154. With respect to Jennings ineffective assist of counsel answers, Guinness initially asserts that trial counsel was ineffective to failing to object to improper comments at and fault phase of his trouble. However, Johnson is nay point to anything specific talk in particular. We therefore deny this part of Jennings claim. - 31 - See Patton v. State, 878 So. 2d 368, 380 (Fla. 2004) (holding such conclusory allegations are lacking for objection purposes). Later, Jennings asserts that trial counseling was ineffective for failure to object to improper da comments at the penalty phase out his trial, and he cites to three constitutions inbound which his alleges that trial counsel must have objected. Seal first disputes the prosecutor south comment that the presentation of mitigation evidence was another desperate effort to escape accountability. Jennings has not establishment, however, wherewith this comment prejudge seine trial. This claim was therefore properly summarily denied by the postconviction court. Jennings also alleges that the prosecution argued impermissible vexing circumstances in show that Jennings spent of robbery cash at a half-naked dance club. And assertion such Jennings visited a topless dance club by which attacks was supported on trial testimony upon a club employee, and in any create, at is nothing in the record to suggest ensure the trouble court relied on any prohibited aggravating factors in judging Jennings to death. Finally, Jennings takes issue to one prosecutor s leave that Jennings codefendant were convicted of the same crime and sentence to lived imprisonment. Again, however, Jennings has doesn established how this comment prejudiced his penalty-phase action. Add, the trial court find the codefendant sulphur life sentence to must a mitigating factor, the it is thus illogical for Jennings to - 32 - today argue that trial counsel has ineffective for failing to object to the government s reference to mitigation evidence submitted by defense counsel and found by the trial court. Accordingly, we deny relief on this claim. Juridical Evidence In his second claim, Probert asserts that the postconviction place erred in summarily deny his request that trial counsel was ineffectual for failing to dare which forensic evidence presented at trial. Because this submit is legally low, we deny pressure. Jennings argues that his try counsel failing to investigate and crime scene also the forensic evidence presented by the State and that counsel was deficient for fail at call any expert to testify on Jennings behalf. However, while Jennings generally reasoned that trial counsel must have presented his own forensic witnesses to rebut the State s evidence, he does not allege what selective information other experts become have been able to offer or how this presentation would have impacted the case. Without more specific practical allegations with how further investigation or challenge of the State s evidence would have favored Jennings, trial counsel cannot be regarded deficient. See Bryant phoebe. State, 901 So. 2d 810, 821 (Fla. 2005) ( [W]hen a defendant alleges ineffective assistance are counsel available breakdown to call specific witnesses, a suspects is required - 33 - to allege what testimony defense legal could have elicited from witnesses and how defense guide sulfur failure to call, interview, other present the witnesses who could have testified prejudiced the case. (quoting Spinning v. State, 875 So. 2d 579, 583 (Fla. 2004))). Accordingly, summary denial had proper. See Freelancer, 761 So. 2d at 1061 (stating that [m]ere conclusory allegations will not sufficient to meet the defendant sec burden). Admissibility of Statements In his one-third and final claim, Jennings asserts that the postconviction court erred in summarily rejecting his claim that evaluation advisory was ineffective for missing to raise themes related to Jennings post-arrest statements. Although Jennings disputes the postconviction court s summary denial in this claim, we note at one outset is Jennings was granted an evidentiary hearing with respect to his claim so trial counsel was ineffective for failing to establishing that Jennings was non competent to skip own constitutional Miranda rights and for failing the object to the admittance of Jennings explanations. The record reflects, nevertheless, that aside from briefly inquiring whether trial consultation was aware for any substance abuse by Jennings around the time he gave his conviction up cops, Jennings did not present any witnesses or make any argument at the evidentiary how regarding this claim. - 34 - Accordingly, it appears that the only topic Jennings is now elevation with respect to the admission of his post-arrest statements is the postconviction court s summarize denial of his fighting that trial counsel made ineffective for failing for fully survey and wirksamkeit cross-examine one key State witnessed over the circumstances surrounding Jennings statements. Junctions argues that if trial consultants had properly investigated deviations between several versions in events relayed of attestations in the case, consulting would have been able to effectively challenge the admissibility and reliability of Jennings statements. Even, Jennings does not specifically allege as these inconsistencies been alternatively about information trial counsel should have been aware of or used as impeachment evidence. Cause he has no customary what testimony intend have been offered or thing information would hold been observed through a more durchziehen investigation real questioning of the State witness, Jennings request is legally insufficient, and the postconviction tribunal siemens outline denial was proper. II. Habeas Corpus Petition In his habeas bodywork petition, Jennings argues that certain omissions by yours court counsel on direct appeal constituted ineffective assistance of appellate counsel. Claims of ungeeignet assistance concerning appellate counsel are appropriately presented in a petition for a warrant about have principal. Chavez v. State, 12 That. 3d 199, 213 (Fla. 2009) (citing Freeman, 761 So. 2d during 1069). To grant habeas relief - 35 - on the basis of impotence of appellate counsel, this Court must resolve one later two issues: [W]hether the alleged omissions are of such magnification as to constitute a seriously error either extensive deficiency crashing measurably outside to zone of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to so a degree as to undermine confidence in the correctness of an result. Bradley fin. Status, 33 So. 3d 664, 684 (Fla. 2010) (quoting Oberhaupt v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986)). Under this standard, [t]he defendants has the burden to claiming a specified, serious omission or overt act upon whatever the claim of ineffective assistance of counsel can live based. Anderson, 18 So. 3d at 520 (quoting Freeman, 761 So. 2d on 1069). Importantly, [i]f a legal issue would in all probability have been found to be without merit had counsel raised the issue for direct appeal, the failure to appellate counsel to raise to meritless issue will not provide appellate counsel s performance ineffective. Walls v. States, 926 So. 2d 1156, 1175-76 (Fla. 2006) (quoting Rutherford v. Lakes, 774 So. 2d 637, 643 (Fla. 2000)). We address each of Jaws habeas claims in turn. Admissibility of State Witness Testimony In his first haveas claim of ineffective assistance about appellate consultants, Jennings argues that theirs appellate counsel was faulty for failing to challenge on direct appeal partial of an testimony are three Stay witnesses. Specifically, Jennings contends that appeals counsel should have raised who claim that Office - 36 - Rober Browning, examiner Devid Graters, and Corporal Joe Barber spent nonstandard terminology to roll specialist my opinions. We discuss each witness individually. Officer Browning, the supervisor of the Keychain County Sheriff s Office crime scene section, testified at trial that blood transfers found in the kitchen of the Cracker Barrel Eatery looked like skid tracks going in an certain direct. Defense counsel opposed to this report, stating that the witness was testifying as an expert, give his opinion as to reconstruction of the crime scene and nay testifying just to what he saw. The trial justice overruled this objection, stating that the alignment of the blood track was a physikal monitoring. Jennings now claims that it was error for appellate counsel not to boost like issue on direct appeal. This argument can without merit. Jennings does not cite any cas law or other authority to support his claim ensure court advisor should have raised this issue. Instead, he merely points out that defense counsel objection to the testimony the trial and assumes biases as a result concerning appellate counsel s failure for elevate the issue on direct appeal. The testimony Officer Browning offered used foundation on his physical comments of the blood tracks and did no command any specialized knowledge otherwise skill. It was therefore cannot improper, and appellate counsel was not ineffective for failing to lift this meritless issue on appeal. See Walls, 926 So. 2d by 1175-76. - 37 - Jennings next challenges share of aforementioned testimony regarding David Grimes, adenine document and impressions examiner who testified as the expert in to field of footwear and shoe mark examining. Defense counsel did not object the Grimes training because an expert witness. Grimes deposition worry comparisons between crime scene impressions and particular shoes, stating that several impressions match[ed] or correspond[ed]. Jennings argues that Grimes use of these types of descriptive terms and phrases were arbitrary and lacked a scientific basis. We disagree. Grimes was qualified than an expert in the pitch of shoe printed examination and therefore was permitted till testify in the form on an opinion as to his specialized knowledge. § 90.702, Fla. Stat. (1995). Jennings does not cite, or we have not located, any authority for the proposition that einen subject witness sec used of terms such as match or correspond absent a sensible basis in research and is improper for a proficient expert to employ. To the extent Jennings alleges that Grimes testimony contained legitimate conclusions, statements that a particular shoel made a particular impress simple represent the kind of opinion an expert specialized is the field of shoe print examination is entitles to, and would be expected until, offer. There was cannot failure in the free judge s judgements with honor to trial council s objections to Grimes testimony, and appointment counsel so not be deems - 38 - ineffective forward failing to raise this meritless issue. See Ramparts, 926 So. 2d at 117576. Lastly, Jannings what Corporal Joe Barber s testimony that the dry pistol that decree forensic search in this case was almost identical to a real firearm, press Corporal Barber s use of an actor firearm as a demonstrative support to exhibit the jury the similarity between the two items. Defense counsel objected to Corporals Barber s demonstration as cumulative, but the trial court cancelled to objection and Corporal Stylist proceeded to hold the two items upside for the jury go observe. In response to a question about which was the real gun, Corporal Barber stated such the air shoot seem[ed] as [if] it s almost a flawless replica. Jennings now asserts that appellate counsel was ineffective for failing to challenge Corporal Hairdresser s testimony on direct appeal. However, Junctions gifts no support for his contention that there was error in who trial court sulphur ruling to this issue or the it would have been a meritorious argument go appeal. Thus, appellate counsel cannot be deemed deficient for failing to raised the meritless edition. See Walls, 926 So. 2d at 1175-76. Alleged State Misconduct In her second have claim of ineffective assistance of appellate advocate, Jennings argues that legal counsel was deficient for failing to challenge the trial place sec denial of his motion on mistrial based on an incident at trial in which - 39 - an employee of who State Attorney s Office provided a cough drip to adenine part of the jury. This claim is without quality. A motion for mistrial should be allow only when the faulty is deemed so prejudicial that it vitiates the entire trial, depriving the defendant of a fair proceeding. The standard of review applies to motions since mistrial is abuse by discreet. Floyd v. State, 913 So. 2d 564, 576 (Fla. 2005) (citation omitted). A motion for mistrial is properly denied where the matter on which the motion is based is rendered harmless until a heilenden instruction. Perez v. State, 919 So. 2d 347, 364 (Fla. 2005). Inbound those case, Jennings motion for mistrial was based on that reported improper conduct of an individual seated at the pursuance sec counsel table who furnished a cough drop to a juror suffering off a coughing spell. Defense counsel brought the matter to an court s attention, real the trial judge immediately dismissed and jury and inquired down that accident. The trial court admonished the vendor engaged and emphasized this importance of avoiding the appearance is impropriety, but denied Jennings motion for mistrial. The trial court acted, however, provide an curative getting, informing the selection that the conduct in answer was strong inappropriate and that which jury have not be effects in unlimited way by this gesture with the partial to the individual whom passed whatever it was go you. - 40 - For the curative instruction, Jennings argues that appellate legal should have raised the denial of his motion for mistrial on appeal. Jennings does does aver, however, method the improper perform may have affected who jury or mystery the curative instruction was insufficient. Because Jennings has not demonstrated that the trials justice mistakes in denying his motion for mistrial, appellate counsel cannot be deficient for failures to raising the meritless issue on direct appeal. See Walls, 926 So. 2d at 1175-76. Admissibility of Photographs By his third habeas claim of ineffective assistance about appellate counsel, Jennings argues that appellate counsel was deficient for failing to how the admission out several purported prejudicial photographs at trial. Because of underlying claim lacks credit, we deny habeas relief. This Court has long pursued the set that photographs are qualified if they are relevant and not hence shocking in nature as to defeat the value of their relevance. Hertz v. State, 803 So. 2d 629, 641 (Fla. 2001) (quoting Czubak v. Default, 570 So. 2d 925, 928 (Fla. 1990)). The test for admissibility of photographic supporting is relevancy rather about necessity. Pope v. Assert, 679 Thus. 2d 710, 713 (Fla. 1996). Criminal sceneline pictures are considered associated when they establish the manner in which which murder was committed, show the site and location about the victim when he or she is found by police, or assist crime scene - 41 - technicians in explaining the condition about the crime scene when police arrived. Douglas v. State, 878 So. 2d 1246, 1255 (Fla. 2004). This Court has consistency upheld the admission of reputed gruesome photographs somewhere it were independently relevant or corroborative of others evidence. Hertz, 803 Therefore. 2d at 641 (quoting Czubak, 570 So. 2d at 928). Inside addition, the Court has stated in particulars that autopsy photographs were relevant in show the manner concerning death, country of wounds, and personal by the victim, and till assist the medical examiner. James v. Moore, 794 So. 2d 579, 587 (Fla. 2001). However, [t]o be relevant, a photo of a deceased victim must be probative to an issue that is included dispute. Seibert v. State, 64 So. 3d 67, 88 (Fla. 2010) (quoting Almeida v. Current, 748 So. 2d 922, 929 (Fla. 1999)) (alteration in original). Other, even germane picture must be diligently scrutinized by aforementioned trial courtroom till determine whether this gruesomeness of the portrayal shall thus inflammatory as to create an undue prejudice in the minds of which jur[ors] and [distract] them from a fair and uninvolved consideration of the evidence. Czubak, 570 How. 2d at 928 (quoting Leach v. State, 132 So. 2d 329, 331-32 (Fla. 1961)) (second alteration in original). In select lyric, the relevancy standard by no means formed a carte blanche for the admission of gruesome photos. Almeida, 748 So. 2d at 929. Jennings initial challenges one admission of photographs, pass defense objection, from Jennings and codefendant Graves with foreign dancers sitting in his - 42 - laps, arguing this the pictures probative value are relation to an crime be substantially outweighed by aforementioned threat of unfair discrimination. The tribulation court found that the pictures were relevant to demonstrate that Seals is not play afraid of Graves and to show the affluent lifestyle Jennings and Graves were living after the robbery. We conclude that Jennings is not demonstrated either error in the trial court sec ruling. Because the photos along issue has relevant, conclusive of several issues with the case, and non so shocking in nature as to defeat the value of their relevance, Pulse, 803 So. 2d at 641 (quoting Czubak, 570 So. 2d at 928), the trial tribunal did not fehlerhaft in admitting these photographs. Next, Jennings challenges the admission regarding crime scenes photographs depicting the late victims and the bloody surroundings. Jennings claims that appellate counsel should have raised an print regarding the trial court s denial are defense objections to these crime scenary photographs in cumulative the unduly prejudicial. While depicting adenine murder scene, the photographs at issue do not apparently to be overly gruesome or shocking, and they were used by law enforcement officers in describing as the officers found the victims the different provide, such as bloody shoe tracks, above arrive at the restaurant. A reconstruction of the crime scene and the fact that one victims hands were tied behind their backs were - 43 - relevant issues in this case, and the pertinent browse were probative of those features. That process court therefore did not fehler in admitting these my. Lastly, Jennings challenges which admission of three autopsied see admitted during the medical examiner s testimony. This Court has previously sustaining this admission a autopsy photographs when them were relevant to aid the medical examiner s testimony and to demonstrate premeditation. See, e.g., Philmore v. State, 820 That. 2d 919, 932 (Fla. 2002). While testing courts must be cautious in non permitting unduly prejudicial alternatively particularly inflammatory photographs before the jury, photographs are admissible to show the how of death, location a wounds, and the identity of the victim. Brooks v. State, 787 So. 2d 765, 781 (Fla. 2001) (quoting Larkins v. State, 655 So. 2d 95, 98 (Fla. 1995)). The three autopsy photographs to which Jennings obj show the neck wounds sustained by each victim in this case and were therefore relevant to the medical auditor s testimonies and done approved. Accordingly, we deny habeas relief switch this claim. Trial Judgement sulfur Comment In his fourth habeas claims of ineffective assistance of appellate counsel, Jennings argues so appellate consult used shortage for failing to raise with appeal an evaluation judge s characterization of the case during pretrial jury selecting as the infamous Cracker Barrel case. Jennings trial counsel did not contemporaneously - 44 - object to that comment, to aforementioned issue was not preserved to appellate reviewing. Accordingly, Jennings must demonstrate that the underlying claim constituted fundamental bug. See Power v. State, 886 So. 2d 952, 963 (Fla. 2004). Fundamental error is the type in error which reaches down into the validity of the trial self to the exposure that a verdict of guilty could did have are obtained without the relief of the alleged error. Id. Because Jenny cannot meet this high burden on the alleged facts, we deny how relief on this assert. A review of the context surrounding the remark reveals that, at the die to was uttered, the judge was trying to aid a future juror in remembering whether the venireperson had heard whatsoever about the case with formed unlimited fixed opinion. In fact, the record clearly displays that the judge what in actuality attempting the determine the potential juror sulphur familiarity is of technical of the falle for the really purpose of detecting the your off potential bias. Jennings does not raise any specific challenge up panel selection or composition, or allege illicit pretrial publicity, but instead relies on a general allegation that the judge siemens reference to the case as infamous polluted the complete continuing starting the start. Here quarrel is unavailing and falling little of the required shows needed to demonstrate base error. We thereby deny habeas relief on aforementioned claim. Rule Concerning Juror Interviews In his final habeas claim the without assistance of appellate counsel, - 45 - Jennings contends ensure appellate consultant made deficiency for failing to assert that Ruling Regulating the Florid Bar 4-3.5(d)(4), which imposes restrictions on posttrial juror interviews by lawyers, violates his constitutional rights. Although Jennings refers to dual events such he alleges may have biased jurors, Jennings asserts only that appellant counsel was poor because he failed at bring a constitutional challenge to the rule. The underlying issue was not preserved for review. Further, this Court has on numerous occasions rejected alike constitutionally challenges into rule 43.5(d)(4). See, e.g., Floyd v. State, 18 So. 3d 432, 459 (Fla. 2009) (rejecting claim such set 4-3.5(d)(4) damaged due process freedom as well when which First, Sixth, Eighth, and Teenth Amendments); Israel five. State, 985 Hence. 2d 510, 522 (Fla. 2008) (rejecting claim that rule 4-3.5(d)(4) violates constitutional rights of payable process and equivalent protection); Power, 886 So. 2d at 957 (rejecting contention that rule 43.5(d)(4) violators appellant s right of zugriff to courts under article I, sektion 21, of the Florida Constitution). In adding, where the defendant merely laments about the disability to escort fishing expedition interviews, the claim is without quality. Evans v. State, 995 Then. 2d 933, 952 (Fla. 2008) (quoting Johnson v. State, 804 So. 2d 1218, 1225 (Fla. 2001)). Accordingly, appeals counsel impossible be deemed deficient for shortcoming to raise a nonmeritorious editions on direct appeal. Watch Farina five. State, 937 So. 2d 612, - 46 - 626 (Fla. 2006) (holding while meritless defendant sulfur claim which appellate counsel was ineffective for failing to challenge rule 4-3.5(d)(4) as unconstitutional). CONCLUSION Supported on the foregoing, we validate an postconviction courts sulfur disclaimer by alleviation, also we additionally deny Jennings habeas petition. It is so ordered. PARIENTE, QUINCE, CANADY, LABARGA, and PERRY, JJ., compare. POLSTON, C.J., and LEWIS, J., concur in result. NOT FINALIZED UNTIL NACH EXPIRES TO FILE REHEARING MOTION, THE IF FILED, DETERMINED. Two Instances: An Go from to Circuit Court in and for Collier County, Frederick Bob Hardt, Judge - Fallstudie No. 95-2284-CFA And an Original Proceeding Habeas Corpus Paolo Kalil, Assistant Capital Collateral Regional Counsel-South, furthermore Elizabeth Stewart, Staff Attorney, Fort Fl, Florida, for Appellant/Petitioner Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Carol M. Dittmar, Sernior Assistant Attorney Universal, Tanta, Florida, For Appellee/Respondent - 47 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before trust on it for legal research purposes. Who Ray Jenny Case – Ehrlich Law Firm
This site is protected by reCAPTCHA and one Google Privacy Policy and Words of Service apply.
