# Hannon v. State

> Supreme Court of Florida · August 31, 2006 · 941 So. 2d 1109

URL: https://www.frixlaw.com/law-library/cases/1133749

## Case

- **Court:** Supreme Court of Florida
- **Decided:** August 31, 2006
- **Citations:** 941 So. 2d 1109; 2006 WL 2507438
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1133749

## How later opinions describe it (automated extraction)

- holding counsel was not ineffective .for failing to investigate and present mental health mitigation that was inconsistent with an innocence defense because defendant • insisted on • maintaining his innocence and wished to focus on his character
- finding no reasonable probability of a different sentence where the postconviction mental health expert most favorable to the defendant "could not translate any brain damage as having any conceptual or actual impact on Hannon's behavior, and there was no evidence to establish …
- finding no deficient performance when defense counsel made “reasonable strategic decisions ... in an attempt to avoid confusing the jury by attacking a witness that was not relevant to the defense case”
- stating that a defendant has not met the first Strickland prong if the court finds that counsel’s decisions were based on a carefully crafted trial strategy

## Opinion text

941 So.2d 1109 (2006)
Patrick Charles HANNON, Appellant,
v.
STATE of Florida, Appellee.
Patrick Charles Hannon, Petitioner,
v.
James R. McDonough, etc., Respondent.
Nos. SC03-893, SC04-1662.
Supreme Court of Florida.
August 31, 2006.
Rehearing Denied October 27, 2006.
*1115 Neal A. Dupree, Capital Collateral Regional Counsel, and Suzanne Myers Keffer, Assistant CCRC-South, Fort Lauderdale, FL, for Appellant/Petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
PER CURIAM.
Patrick Charles Hannon appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. [1] Hannon *1116 also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
FACTUAL AND PROCEDURAL HISTORY
Patrick C. Hannon was convicted of the first-degree murders of Brandon Snider and Robert Carter. See Hannon v. State, 638 So.2d 39, 41 (Fla.1994). The jury unanimously recommended the death penalty. See id. Following that recommendation, the trial court imposed separate death sentences on Hannon for the murders of Snider and Carter. See id. On direct appeal, this Court affirmed Hannon's convictions and sentences. See id. at 44 . There, the Court detailed the facts surrounding the murder:
Around Christmas 1990, Brandon Snider, a resident of Tampa, went to Indiana to visit relatives. While there, he went to the home of Toni Acker, a former girlfriend, and vandalized her bedroom. On January 9, 1991, Snider returned to Tampa.
On January 10, 1991, Hannon, Ron Richardson, and Jim Acker went to the apartment where Snider and Robert Carter lived. Snider opened the door and was immediately attacked by Acker, who is Toni Acker's brother. Acker stabbed Snider multiple times. When Acker was finished, Hannon cut Snider's throat. During the attack, Snider's screams drew the attention of his neighbors. They also drew the attention of Carter, who was upstairs. Hearing the screams, Carter came downstairs and saw what was happening. He then went back upstairs and hid under his bed. Hannon and Acker followed Carter upstairs. Then Hannon shot Carter six times, killing him.
In July 1991, Hannon was brought to trial for the murders of Snider and Carter. [N. 1] During the trial, Richardson reached an agreement with the State. He pled guilty to being an accessory after the fact and testified against Hannon. Hannon was found guilty of both murders. After a penalty proceeding, the jury unanimously recommended death.
[N. 1] Acker was tried in a separate proceeding, was convicted, and was sentenced to two life sentences.
Id. at 41 .
In sentencing Hannon to death, the trial judge found three aggravating circumstances applicable to both the murders of Snider and Carter—(1) previous conviction of a violent felony (the contemporaneous killings); (2) the murders were committed during the commission of a burglary; and (3) the murders were heinous, atrocious, or cruel (HAC). See id. With regard to Carter, the trial court found the additional aggravating factor that the murder was committed to avoid or prevent a lawful arrest. See id. In mitigation, the trial court considered testimony from Hannon's mother and father that Hannon was not a violent person and also considered that Hannon's original codefendant, Richardson, was no longer facing the death penalty. See id. The trial court found no statutory mitigating factors. See id. The trial court found that the aggravating factors outweighed the mitigating factors and sentenced Hannon to death for each murder. See id. On direct appeal, this Court upheld Hannon's convictions and sentences. See id. at 44 .
On direct appeal, Hannon asserted the following issues: the trial court erred in striking prospective jurors Ling and Troxler for cause; the trial court erred in *1117 admitting certain statements by a prosecution witness, over defense objection; the trial court erred in admitting into evidence the bloody shorts and shirt worn by Snider when he was murdered and the testimony of Judith Bunker, a forensic consultant in the field of blood stain pattern analysis and crime scene reconstruction; the HAC instruction given to the jury was unconstitutionally vague; the facts of the instant case did not support the finding of HAC; the evidence did not support the aggravating circumstance that the murder of Carter was committed for the purpose of avoiding or preventing lawful arrest; Florida's HAC aggravating circumstance itself is unconstitutionally vague, is applied in an arbitrary and capricious manner, and does not genuinely narrow the class of persons eligible for the death penalty; the facts do not support the prior violent felony aggravating factor; and the sentencing order was insufficient. See id. at 41-44 . This Court denied all of Hannon's claims. See id.
MOTION FOR POSTCONVICTION RELIEF
On March 17, 1997, Hannon filed a shell motion for postconviction relief presenting 34 claims. Hannon filed an amended motion to vacate judgment on April 10, 2000, presenting 21 claims. [2] A Huff [3] hearing *1118 was held on November 16, 2001. [4] On that same day, the trial court issued an order reflecting its determination that an evidentiary hearing was required to address seven of Hannon's claims. [5] The evidentiary hearing was conducted on February 18, 2002, and June 21, 2002. On February 3, 2003, the trial court issued an order denying Hannon postconviction relief. This appeal followed.
I. Ineffective Assistance of Counsel Pretrial and During the Guilt Phase
Hannon asserts that his trial counsel, Joseph Episcopo, provided ineffective assistance in failing to depose Ron Richardson or request a continuance; in failing to adequately prepare for the State's blood spatter expert, Judith Bunker; and in failing to question Michelle Helm with regard to Ron Richardson's alleged jealousy. Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). 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 (if they are supported by competent, substantial evidence), but reviewing the circuit court's legal conclusions de novo. See Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999).
There is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 . A fair assessment of attorney performance requires that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689 , 104 S.Ct. 2052 . The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 , 76 S.Ct. 158 , 100 L.Ed. 83 (1955)). "Judicial scrutiny of counsel's performance must be highly deferential." *1119 Id. It is under this legal framework that Hannon's claims are addressed.
A. Failure to Depose Ron Richardson or Request a Continuance
Hannon asserts that trial counsel was deficient in failing to depose Ron Richardson after discovering during trial that Richardson was to testify against Hannon. Hannon claims that trial counsel had a duty to investigate Richardson's relationship with Hannon and his influence on Hannon, as well as to impeach Richardson. This Court has held that "when a failure to depose is alleged as a part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission." Brown v. State, 846 So.2d 1114, 1124 (Fla.2003) (citing Magill v. State, 457 So.2d 1367, 1370 (Fla.1984)).
At the evidentiary hearing, Hannon's trial counsel testified that the defense theory was an alibi defense, specifically that neither Hannon nor Richardson was at the crime scene when the crimes were committed, and that both Hannon and Richardson were playing a drinking game at Richardson's house the night of the crimes. [6] Trial counsel testified that he did not direct any investigation into Richardson's background and did not remember if he had ever obtained Richardson's criminal history before the trial began. Trial counsel further testified that he did not obtain any additional investigative material concerning Richardson's relationship with Hannon after Richardson, in a surprise move, turned to testify for the State during trial. Trial counsel stated that the trial judge offered him an opportunity to depose Richardson after the State disclosed during trial that Richardson would be presented as a witness for the State but Hannon's trial counsel decided that he would not conduct a deposition at that point because he believed Richardson's story was totally fabricated, and that his best trial strategy was to question Richardson immediately in the presence of the jury instead of creating an opportunity for Richardson to rehearse his testimony during a deposition.
Counsel cannot be deemed ineffective merely because postconviction counsel disagrees with trial counsel's strategic decisions. See Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight. . . ."); Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) ("The standard is not how present counsel would have proceeded, in hindsight. . . ."). In Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000), this Court 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."
The record demonstrates important time factors, although not considered by the dissent, and shows that on Friday, July 19, 1991, during the guilt phase of the trial, the State indicated for the first time to the trial court that it had received information that Richardson, who was listed as a defense witness for the trial in this case, might reverse himself and decide to be a prosecution witness against Hannon. On the morning of Monday, July 22, 1991, prior to resting its case, the State listed *1120 Richardson as a witness and at that late date provided Hannon's counsel with a copy of a statement by Richardson that had been taken only hours before at 8 p.m. the prior evening. The State had entered into an agreement with Richardson in which he would enter a guilty plea to one count of accessory after the fact and in return receive a sentence of only five years in prison in exchange for his testimony against Hannon.
At that point, Hannon's counsel, believing that the evidence would disclose to the jury that Richardson's story was clearly fabricated for purposes of obtaining the "deal" with the State, decided that his best strategy was to continue with the innocence defense and the alibi basis. Trial counsel testified at the evidentiary hearing that he consciously and strategically decided that he would not depose Richardson after this last-minute turn of events because it was his strategy and approach to now use the element of total surprise in questioning Richardson with regard to the details of the crime and prevent the State from using the deposition to better prepare Richardson for his trial testimony. Moreover, trial counsel related that Richardson was an integral part of Hannon's alibi defense and, thus, his strategy and goal after Richardson turned to assist the State was to demonstrate and emphasize that Richardson was not familiar with any of the details of the crime scene, thereby bolstering Hannon's argument that neither Richardson nor Hannon was at the scene and that Richardson had changed his story to procure his last-minute agreement with the State. Trial counsel also testified that he was not interested in attempting to portray Richardson as a bad person or as a guilty party before the jury because that would also undermine Hannon's alibi defense, which was predicated on Hannon drinking with Richardson at the time of the murders. Hannon's trial counsel testified that his trial tactic and examination of Richardson was in fact ultimately successful, which the dissent does not consider, because on cross-examination, the defense elicited that Richardson actually knew very little with regard to the victims' apartment:
Q. Please describe Mr. Snider and Mr. Carter's apartment or house, apartment house.
A. I'm sorry. I can't do that. I'm not familiar with their apartment house. I've only been there one time prior to this—this deal.
Q. So you can't describe any of the rooms?
A. Well, as you come in, you come straight into the living room, but that's as far as I've ever been in that house.
Q. What color was the furniture?
A. I—I couldn't tell you.
Q. Did you ever notice any exercise equipment inside that apartment?
A. No.
Q. What kind of video equipment was in there?
A. I—I wasn't familiar with the apartment.
. . . .
Q. Where was the aquarium located in that apartment?
A. I'm not that familiar with that apartment, Joe. I couldn't tell you.
Further, Richardson conveniently testified that he was leaving the apartment as the shooting of Snider occurred. Hannon's counsel also testified that it was his intention to impeach Richardson with the testimony of his brother, Mike, who was expected to testify that Hannon and Richardson were at Richardson's house at the time of the murder playing a drinking game. Hannon's counsel further stated that he chose not to request a continuance *1121 to investigate Richardson after he was disclosed to be a witness for the State because he believed a continuance would only give the State an edge by affording the State additional time to prepare Richardson for trial testimony to the detriment of his client, also a factor not considered by the dissent.
The record supports trial counsel's testimony that Richardson was unable to provide any meaningful details of the victims' apartment for the jury. The record also clearly demonstrates that Hannon's counsel successfully revealed to the jury that Richardson had previously supported Hannon's alibi by stating that he and Hannon were playing a drinking game the night of the murders, and that he was not involved with the murder. Moreover, counsel elicited from Richardson that up until even the night before he testified, he denied seeing the wounds to Snider's throat, but within twenty-four hours had completely changed his story. Richardson claimed that he suddenly remembered the wounds; however, it cannot be disregarded that Richardson's memory was restored just in time for him to testify for the State in the case against Hannon. Further, when asked about his drastic change in testimony, Richardson affirmatively testified that he had lied not once, but several times previously. Finally, counsel highlighted to the jury that on the Sunday morning before Richardson's new testimony he was facing the death penalty for two counts of first-degree murder, but by the evening of that same day, in exchange for his testimony against Hannon, Richardson had received a "deal" for only five years in prison.
Clearly, the record supports a carefully considered and planned defense strategy on behalf of Hannon by his trial counsel and provides a full and proper basis for the trial court's determination that Hannon failed to meet the first prong of Strickland in that he has failed to prove that counsel acted deficiently when he made a strategic decision not to take further steps with regard to Mr. Richardson, look into his background, determine his motive for testifying, or develop further information that could have been used to impeach him. Although current counsel may disagree with trial counsel's strategy at that time and would have chosen to abandon the alibi defense when Richardson changed at the last minute to assist the State during trial, such current disagreement does not render trial counsel's performance deficient. Accordingly, we conclude that Hannon has failed to demonstrate that trial counsel was deficient in strategically deciding not to depose Richardson, not to seek a continuance, or otherwise conduct an investigation into Richardson's background.
Moreover, Hannon has failed to demonstrate any prejudice because he has not even suggested what evidence or information trial counsel would have procured had he deposed Richardson, or requested a continuance, or conducted further investigation, that would have so affected the proceeding that confidence in the outcome is undermined, nor does the dissent provide any insight into the subject. See Maxwell, 490 So.2d at 932 . Based upon the foregoing analysis, this claim has no merit.
B. Failure to Adequately Prepare for State's Blood Spatter Expert
Hannon asserts that his trial counsel acted deficiently in failing to investigate the credentials of the State's blood spatter expert, Judith Bunker, as well as failing to question her credentials and challenge her testimony at trial. To satisfy the deficiency prong of Strickland , Hannon must demonstrate that trial counsel's representation "fell below an objective *1122 standard of reasonableness." Strickland, 466 U.S. at 688 , 104 S.Ct. 2052 .
At the evidentiary hearing, trial counsel testified that he was aware that Bunker had been hired as the State's expert but decided not to conduct an investigation into Bunker's credentials because her testimony regarding the blood spatter at the crime scene was totally irrelevant to Hannon's alibi defense that he was not at the crime scene on the night of the murders, a factor not considered by the dissent. Trial counsel stated that he did not obtain Bunker's personnel file, was not aware whether Bunker ever completed high school or attended college, and had not seen a group of letters indicating that Bunker had not worked at various places or lectured at certain places as represented on her resume. Trial counsel stated at the postconviction evidentiary hearing that he most likely would not have used this information regarding Bunker to impeach her at trial. Although confronting this witness with this type of information would have made him look sharp, it would not have advanced Hannon's defense in any way and would have only left the jury wondering why counsel was even taking the time to question Bunker if she truly had nothing to do with Hannon's defense. The dissent provides no explanation for this gap. Trial counsel further testified that he chose not to question Bunker's credentials at trial to avoid giving the jury the impression that he was attempting to present an inconsistent defense. Trial counsel testified that Bunker's testimony did not adversely impact Hannon's defense because Bunker was never able to confirm any of the victims' blood on Hannon. He did object to the introduction of crime scene photographs because he believed the photographs were being admitted simply to emphasize the goriness of the crime but decided not to cross-examine Bunker with regard to these photographs. The defense strategy was to continue with the theory that Hannon was not at the crime scene and, therefore, cross-examining this witness would only confuse the jury with regard to why he was attacking a witness that was not at all relevant to Hannon's case.
Based on trial counsel's testimony at the postconviction evidentiary hearing, Hannon has failed to demonstrate that trial counsel acted deficiently when he made these strategic decisions with regard to witness Bunker. Trial counsel's performance did not fall below a standard of reasonableness in failing to challenge the credentials of a witness who was not at all relevant to any aspect of Hannon's defense that he did not commit the murders and was not present at the victims' apartment at the time of the murders. These reasonable strategic decisions were made in an attempt to avoid confusing the jury by attacking a witness that was not relevant to the defense case. Again, current counsel disagrees with the strategy and would have made the decision to challenge Bunker's credentials, but the evidence does not support the conclusion that trial counsel's performance was deficient. See Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 . Moreover, trial counsel's tactical decision not to challenge or impeach Bunker's blood spatter testimony was reasonable because Bunker's testimony did not implicate Hannon in the murders, nor was it even an element in the State's case against Hannon.
Hannon has also failed to demonstrate prejudice with regard to these strategic decisions. This Court on direct appeal determined that Bunker's testimony relating to the blood spatter evidence was properly admitted at Hannon's trial only to assist the jury in understanding the facts. See Hannon, 638 So.2d at 43 . Furthermore, *1123 this Court has previously determined in other cases that the presentation of Bunker's allegedly exaggerated credentials to a jury has little effect on the outcome, given that she has been recognized as a blood spatter expert in numerous other cases. See Correll v. State, 698 So.2d 522, 523-24 (Fla.1997); see also Gorby v. State, 819 So.2d 664, 677 (Fla.2002). In Correll , this Court stated:
[T]he discrepancies between the level of education, training, and experience Bunker testified to at trial and the asserted level of education, training, and experience she actually had were not so great as to make any difference in the outcome of the case. Moreover, Bunker's vita, which among other things, falsely set forth that Bunker had a high school diploma, was never seen by the jury. Thus, any misrepresentations contained in the vita are irrelevant to Correll's claim.
The only alleged misrepresentation of any import was Bunker's assertion that she had worked as an assistant and technical specialist for the medical examiner's office from 1970 through 1982, when in reality she was a secretary at the medical examiner's office from 1970 to 1974, an assistant to the medical examiner from 1974 to 1981, and a technical specialist for the last five months of her employment with the medical examiner's office. In view of the fact that it is undisputed that she worked on thousands of cases while in the employ of the medical examiner, even this discrepancy becomes less serious.
However, assuming for the sake of argument that Bunker's testimony did contain serious discrepancies . . . we are convinced that these discrepancies did not have any impact on the outcome of the case in light of the overwhelming evidence presented at trial in support of Correll's guilt.
698 So.2d at 524 . During Hannon's trial, Bunker made misrepresentations with regard to her credentials similar to those this Court addressed in Correll . Specifically, Bunker testified that from 1970 to 1982 she was employed by the Office of the District Nine Medical Examiner with jurisdiction in Orange, Osceola, and Seminole counties. She testified that as an assistant to the medical examiner one of her primary responsibilities was to assist the medical examiner in the medical/legal investigation of death. She also testified that she had presented courses on blood stain evidence and conducted workshops and lectured at various colleges and institutions. Similar to this Court's conclusion in Correll , any discrepancies in Bunker's testimony in the instant case did not "so affect[ ] the proceeding that confidence in the outcome is undermined." Maxwell, 490 So.2d at 932 . Additionally, Bunker's testimony with regard to the blood spatters did not link Hannon to the crime scene. The dissent fails to address this area of concern, but is critical without substantive support. Accordingly, this claim is also without merit. [7]
Hannon further claims that the trial court erred in summarily denying the following claims with regard to Bunker: trial counsel was ineffective for failing to investigate Bunker's background, the State presented unreliable and nonscientific blood spatter testimony through Bunker, *1124 and the State's failure to disclose Bunker's qualifications and misrepresentations of Bunker's qualifications as an expert in the field of blood spatter constituted a Brady and Giglio violation. A criminal defendant alleging a Brady violation bears the burden to show prejudice, i.e., to show a reasonable probability that the undisclosed evidence would have produced a different verdict. See Strickler v. Greene, 527 U.S. 263 , 281 n. 20, 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999). To demonstrate prejudice under Giglio it must be established that "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976). Hannon has failed to demonstrate prejudice relating to any aspect of Bunker's testimony sufficient to establish either a Brady or Giglio violation. Therefore, the trial court's rejection of these claims was not improper.
C. Failure to Question Michelle Helm
Hannon contends that his trial counsel was deficient in failing to question Michelle Helm, the former girlfriend of Ron Richardson, regarding her July 9, 1991, deposition testimony. Hannon asserts that Helm testified in her deposition that Richardson was a very jealous person who was violent and had threatened to kill her, often accusing her of sleeping with other men, especially Robbie Carter and Jim Acker. At the evidentiary hearing, trial counsel testified that he was present at Helm's deposition but was not concerned with this information to attack Richardson's testimony at trial because Richardson's specific bad acts were not only irrelevant to Hannon's alibi defense, such specific bad act evidence would not have been admissible at trial. Trial counsel testified that it was his strategy to lessen the focus on anything negative with regard to Richardson because it would be beneficial to Hannon's case with Richardson being Hannon's alibi witness until he altered his position at the end of the trial. Moreover, trial counsel's main focus when cross-examining Richardson after the change in testimony at the last moment was to show the jury that Richardson did not remember the details of the victims' apartment, and this negative information was not necessary to bolster the argument that Richardson's story was fabricated.
Based on the foregoing, Hannon has not demonstrated that trial counsel acted deficiently when he made the strategic decisions with regard to the interrogation of Helm concerning her deposition testimony and chose not to use her to attack Richardson. Hannon was not prejudiced by these decisions and accordingly, this claim has no merit.
II. Ineffective Assistance of Counsel at the Penalty Phase
To succeed in an ineffective assistance of penalty phase counsel claim, the claimant must demonstrate that counsel performed deficiently and that such deficiency prejudiced his defense. See Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . Pursuant to Strickland , trial counsel has an obligation to conduct a reasonable investigation into mitigation. See id. at 691 , 104 S.Ct. 2052 ; see also Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). Counsel's decision to not present mitigation evidence may be a tactical decision properly within counsel's discretion. See Brown v. State, 439 So.2d 872, 875 (Fla.1983) ("The choice by counsel to present or not present evidence in mitigation is a tactical decision properly within counsel's discretion."); Valle v. State, 705 So.2d 1331 , 1335 n. 4 (Fla.1997) (same); Gorham v. State, 521 So.2d 1067, 1070 (Fla.1988) (same). When evaluating claims that counsel was ineffective for failing to investigate or present mitigating *1125 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)). Further, as the United States Supreme Court recently stated in Wiggins :
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. . . . [A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
. . . .
. . . . [O]ur principal concern in deciding whether [counsel] exercised "reasonable professional judgmen[t]" is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence . . . was itself reasonable. In assessing counsel's investigation, we must conduct an objective review of their performance, measured for "reasonableness under prevailing professional norms," which includes a context-dependent consideration of the challenged conduct as seen "from counsel's perspective at the time."
539 U.S. at 521-23 , 123 S.Ct. 2527 (citations omitted) (fifth alteration in original) (first emphasis supplied) (quoting Strickland, 466 U.S. at 688-89, 691 , 104 S.Ct. 2052 ).
Contrary to the critical dissenting view, the counsel provided was neither standardless nor empty. As evidence of trial counsel's deficiency, Hannon asserts that trial counsel advanced an invalid lingering doubt argument during the penalty phase, hopeful that the jury would believe Hannon did not have the type of character to be involved in these crimes, and that trial counsel failed to investigate and present mitigation during the penalty phase. Specifically, Hannon asserts that trial counsel was ineffective in pursuing the innocence/alibi defense even after Hannon's alibi, Richardson, had changed his testimony to assist the State at the end of the trial and the jury had found Hannon guilty.
The nature of our bifurcated system in Florida places an onerous burden on death penalty counsel to be informed when making strategic and tactical decisions throughout both the guilt and penalty phases. Such is neither standardless nor an empty promise. We require and encourage death penalty counsel to conduct reasonable investigations as are appropriate to ensure that he or she can properly counsel and inform a defendant with regard to the nature and extent of the mitigation that may be viable in the case. However, not every death penalty investigation will find mitigating evidence, and an investigation into mitigation will run the gamut from discovering latent superficial mental disabilities to very open and evident brain damage. In addition, Strickland does not require defense counsel to present mitigating evidence at sentencing in every case. See Wiggins, 539 U.S. at 533 , 123 S.Ct. 2527 . However, if defense counsel decides not to investigate mitigation, that "particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Wiggins, 539 U.S. at 521-22 , 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 691 , 104 S.Ct. 2052 ); see also Rose v. State, 675 So.2d 567, 572 (Fla.1996) (stating that in evaluating the competence of counsel "the actual performance of counsel in preparation for and *1126 during the penalty phase proceedings, as well as the reasons advanced therefor," must be considered).
Investigating and presenting mental health mitigation is not always but certainly at times may be inconsistent with presenting an innocence defense during the penalty phase. However, failing to investigate and present mental health mitigation is not the sine qua non of ineffective assistance of counsel. We therefore must determine whether trial counsel's particular decision in this case not to investigate and develop mitigation was reasonable under the circumstances. See Wiggins, 539 U.S. at 521-22 , 123 S.Ct. 2527 . Based on the record in this case, Hannon has not and cannot demonstrate that his trial counsel was deficient during the penalty phase because, under these circumstances, Hannon's trial counsel at the time had specific tactical and calculated reasons for the strategy adopted. Counsel did not default in his obligation, as characterized by the dissent, but strategically adopted a different path. Further, the path taken was one with which Hannon agreed and which he fully supported. [8]
At the postconviction evidentiary hearing, trial counsel testified that Hannon, as well as Hannon's parents, adamantly maintained Hannon's innocence throughout the guilt and penalty phases. Trial counsel therefore decided to focus on obtaining an acquittal during the guilt phase, arguing that Hannon was totally innocent and not present at the crime scene, and then only if necessary proceed to establish during the penalty phase that Hannon did not have the type of character to commit such murders. Trial counsel testified that Hannon assisted in every aspect of his defense, [9] including testifying in his own defense during the guilt phase, and agreed to continue with the presentation of the innocence *1127 theme defense during the penalty phase, even after he was convicted. Trial counsel stated that he explained mitigation to Hannon and advised Hannon that he could change his position and admit his involvement in the murders during the penalty phase, but Hannon said he did not wish to do so. Cf. Cummings-El v. State, 863 So.2d 246, 252 (Fla.2003) (concluding that counsel was not ineffective in limiting mitigation investigation where defendant was adamant about not wanting his family to "beg for his life," and the defendant understood the nature and consequences of his decision not to present mitigating evidence). [10]
Trial counsel further testified that he had discussions with Hannon's parents and his sister Moreen, and he sought their input with regard to Hannon's defense. According to counsel, Hannon's parents and Moreen also agreed with a penalty phase strategy of character and to continue maintaining Hannon's innocence. Trial counsel stated that Hannon's parents "continued to believe their son did not and could not do this." Therefore, the dissent's assertion that counsel "blindly follow[ed] his client's desire to limit mitigation," see dissenting op. at 1161, is unsupported by the postconviction record. Rather, counsel's adoption of a strategy that focused on Hannon's character was the product of discussions with not only Hannon, but with his most intimate family members. According to counsel, Hannon and his family agreed not to pursue a strategy where, after proceeding during the guilt phase on the theory that Hannon was not present at the time of the murders, Hannon at the penalty phase would suddenly admit he committed the crimes and begin offering evidence in mitigation of the murders. Counsel stated that he, Hannon, and his family "decided that [changing tactics] wasn't what it was going to be because Mr. Hannon was adamant. I can't tell you how much he was adamant he wasn't there." Neither Hannon nor any of his family members suggested any mitigation matters for the penalty phase. Rather, Hannon, his parents, and his sister consistently urged the strategy that counsel ultimately adopted and pursued; that is, "keep[ing] a consistent defense and a consistent position."
Trial counsel further testified that he was fully aware that lingering doubt was not a statutory mitigator. However, trial counsel stated that providing evidence during the penalty phase that Hannon did not have the type of character to commit the murders, and continuing to support the underlying innocence defense, had a real and practical jury effect that would mitigate in favor of the jury sparing Hannon's life. [11] It was the character and demeanor of Hannon that trial counsel advanced in a very practical way. Even an expert in capital cases presented by Hannon during the postconviction evidentiary hearing admitted that the consistent approach had a *1128 practical and real impact factor in the juror's vote in terms of whether to vote for life imprisonment, notwithstanding that lingering doubt is not a recognized and valid statutory mitigating factor.
The record supports trial counsel's postconviction testimony that a defense based on the notions that Hannon did not commit the murders and was not even the type of person who could have committed the murders was developed from the beginning of trial. Even during the guilt phase, trial counsel presented Rusty Horn and Paul Kilgore to show that Hannon did not have the type of character to commit the murders and moved all of their guilt phase testimony into evidence during the penalty phase. Horn, Hannon's roommate and supervisor at his stucco job, described Hannon as a "teddy bear" type who had a reputation for nonviolence. Kilgore, another of Hannon's roommates, testified that Hannon was a nice person. Trial counsel decided it was not necessary, and likely would not have made any difference, to recall Horn and Kilgore during the penalty phase to reiterate that to which they had already testified. The record also demonstrates that trial counsel presented mitigation during the guilt phase through Hannon, who testified that he attended high school through the eleventh grade; wanted to work, earn money, and learn a trade; was a hard worker; obtained a job with Rusty Horn where he received an extra fifty cents an hour if he did not drink; worked at a gas station; delivered auto parts and pizza; and visited his sister's house on Christmas and celebrated with his nieces and nephews.
Trial counsel presented further evidence that Hannon did not have the type of character to commit these murders through the penalty phase testimony of Toni Acker and Hannon's mother and father. Acker testified that Hannon was "a good-time guy, carefree, liked to have fun"; that Hannon had cared for her child; and that Hannon was incapable of conduct such as these murders. Hannon's mother testified that Hannon had never hurt anyone in his entire life and that Hannon could not hurt any animal or person. Hannon's mother also pleaded with the jury, "Please, you've taken away his freedom for something he didn't do. Don't take away his life. Give us a chance, please, to prove that he never did anything like this. He couldn't." Hannon's father testified that Hannon had never been a violent person, and that he was always a "teddy bear." Hannon's father also testified that "[Hannon] says he's innocent. I believe he's innocent, and I think he ought to be given a chance to prove that he is innocent. That's it." The record supports trial counsel's postconviction evidentiary hearing testimony that his penalty phase strategy was to establish that Hannon did not have the type of character to commit the murders.
Contrary to the dissent's misdirected charge, we have not failed to recognize our legal precedent with regard to "lingering doubt" and have expressly factored that consideration into our decision today. This Court has repeatedly observed that residual doubt is not legally appropriate as a mitigating circumstance, see, e.g., Darling v. State, 808 So.2d 145, 162 (Fla.2002), and has consistently concluded that it is not error to deny an instruction that would allow a jury to consider lingering doubt or exclude evidence of lingering doubt during the penalty phase. See Duest v. State, 855 So.2d 33, 40 (Fla.2003) (concluding that the trial court did not err in denying an instruction that the jury could consider lingering doubt in rendering its advisory sentence).
Although this Court has previously rejected an argument that trial counsel was *1129 ineffective in the penalty phase for failing to argue lingering doubt as a mitigating circumstance, see Trepal v. State, 846 So.2d 405, 434 (Fla.2003), it has never expressly determined that trial counsel is per se ineffective for pursuing the practical impact that character evidence may create jury doubt and the impact it may have during the penalty phase. But see Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 787 (11th Cir.2003) ("Parker's attorneys were not deficient in focusing their time and energy on acquittal at trial and focusing their arguments at sentencing on residual doubt instead of other forms of mitigation." (parentheses omitted)). Further, contrary to the dissent's claim that we are ignoring United States Supreme Court case law, see dissenting op. at 1157, that Court has never resolved the issue advanced by the dissent either, not even in its most recent decision touching upon lingering doubt. See Oregon v. Guzek, ___ U.S. ___, 126 S.Ct. 1226 , 163 L.Ed.2d 1112 (2006). [12] However, trial counsel's strategy in the instant case of presenting evidence to demonstrate that Hannon did not have the type of character to commit the murders was a tactical method used by trial counsel in an attempt to sway the jury's recommendation in favor of life over death. See Eddings v. Oklahoma, 455 U.S. 104, 110 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982) (concluding that the Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character that the defendant proffers as a basis for a sentence less than death). [13] It is certainly logical that a jury *1130 of laypersons is less likely to recommend death if they have some lingering concerns about guilt than if there is absolute certainty on the issue of guilt. See Lockhart v. McCree, 476 U.S. 162, 181 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986) ("[J]urors who decide both guilt and penalty are likely to form residual doubts or `whimsical' doubts . . . about the evidence so as to bend them to decide against the death penalty. Such residual doubt has been recognized as an extremely effective argument for defendants in capital cases.") (quoting Grigsby v. Mabry, 758 F.2d 226, 247-48 (8th Cir. 1985) (Gibson, J., dissenting)); Parker, 331 F.3d at 787-88 ("Creating lingering or residual doubt over a defendant's guilt is not only a reasonable strategy, but is perhaps the most effective strategy to employ at sentencing.") (internal quotation marks omitted). The dissent refuses to even consider that lawless conduct related to illegal drugs or alcohol at times may even itself operate to be aggravating in the eyes of a lay jury rather than mitigating, as the dissent portrays those factors present. See generally Cummings-El, 863 So.2d at 267 ("Counsel acknowledged that drug abuse can have a double-edged sword effect on the jury, as juries are not sympathetic to junkies generally.") (quoted from trial court's denial order attached to opinion).
The conduct of Hannon's trial counsel does not constitute per se ineffective assistance of counsel. In Haliburton v. Singletary, 691 So.2d 466 (Fla.1997), this Court determined that conduct similar to that of Hannon's counsel did not constitute ineffective assistance. See id. at 471 . At the evidentiary hearing in Haliburton , trial counsel testified that, although he was aware that Haliburton had suffered physical and sexual abuse as a child and that he had a history of substance abuse, and that these factors would be considered mitigating in many cases, they were more harmful than helpful in the case. See id. This information would have been more mitigating than any factor in the present case. Trial counsel in Haliburton testified that he elected not to call the mental health expert, even though she could have testified that there was a strong indication of brain damage, because she would have also testified that Haliburton was an extremely dangerous person and that he was likely to kill again. See id. According to trial counsel, testimony that Haliburton's emotional problems and deprived upbringing caused him to commit the crime or lessened his culpability would have conflicted with the picture of charity and pacifism painted by the other defense witnesses and would have been inconsistent with Haliburton's strategy. See id. The testimony that the defense witnesses offered in Haliburton is similar to the character evidence presented by trial counsel in the instant case. Trial counsel's penalty phase strategy was to humanize Haliburton by dwelling upon his close family ties and on the positive influence he had on his family and fellow inmates. See id. This Court held that "[e]ven though this strategy was unsuccessful in persuading the court and jury to sentence Haliburton to life imprisonment, we cannot conclude that he was ineffective. In light of the substantial, compelling aggravation found by the trial court, there is no reasonable probability that had the mental health expert testified, the outcome would have been different." Id.; see also Henry v. State, 862 So.2d 679, 686 (Fla.2003) (determining there was no deficient performance in counsel's decision to humanize defendant rather than use mental health testimony); Shere v. State, *1131 742 So.2d 215, 223-24 (Fla.1999) (determining that counsel was not ineffective for failing to request a neuro-psychological or neurological exam by a qualified expert even though trial counsel had obtained evidence of defendant's "severe head injury as a youth and his subsequent headaches" where counsel's penalty phase strategy was to portray the defendant as "a kind, gentle, God-fearing man"); Rutherford v. State, 727 So.2d 216, 223 (Fla.1998) (determining there was no error where retrial counsel was aware of mental mitigation "but made a strategic decision under the circumstances . . . to instead focus on the `humanization' of Rutherford through lay testimony"); Bryan v. Dugger, 641 So.2d 61, 64 (Fla.1994) (determining that trial counsel was not ineffective for choosing a mitigation strategy of humanizing the defendant and not calling a mental health expert).
Similar to trial counsel's evidentiary hearing testimony in Haliburton , trial counsel in this case testified that his primary goal was to convince the jury that Hannon was not at the crime scene and that he was not the type of person to commit these murders, and that counsel intentionally sought to avoid contradicting that defense by presenting witnesses to testify that Hannon had used illegal drugs, was unstable, failed at school, or was abused. [14] Trial counsel's strategy in this case from the beginning of trial and through the penalty phase was to emphasize Hannon's good character traits. According to trial counsel, attempting to present testimony that Hannon may have had drug and alcohol problems that may have influenced him to commit the murders, or hiring a mental health expert attempting to discuss possible mental health mitigation to lessen his culpability would have been in total conflict with the picture of the nonviolent, "teddy bear" image of Hannon and would have been inconsistent with his innocence/alibi defense. Even though ultimately this strategy was unsuccessful in convincing the court and the jury to sentence Hannon to life imprisonment, we conclude, as in Haliburton , that trial counsel was not ineffective in this case. The dynamics of a jury and a jury trial may often place practical considerations of human nature and citizen interaction on a level that cannot be simply ignored notwithstanding guiding statutory considerations when issues of life or death are involved.
An analogy can also be drawn to Straight v. Wainwright, 422 So.2d 827 (Fla.1982), a case in which the defendant challenged his trial counsel's failure to investigate for the purpose of developing evidence of mitigating circumstances. See id. at 832 . There, trial counsel, as did trial counsel in this case, stated that he did not present mitigating circumstances because he felt them to be, even after the verdict of *1132 guilt, fundamentally inconsistent with the entire defense. See id. This Court concluded that trial counsel's performance was not ineffective where trial counsel viewed evidence of mitigating circumstances as fundamentally damaging to the integrity of his client's case. See id. Similar to trial counsel in Straight , Hannon's counsel here believed that any evidence of mitigating circumstances available would only damage the integrity of Hannon's case. Further, Hannon agreed with counsel in this case that mitigation evidence should not be presented during the penalty phase. Under the totality of the circumstances at the time of trial, counsel was not deficient in strategically choosing not to present mitigation evidence that would be in conflict with and contradict Hannon's innocence/alibi defense. See Parker, 331 F.3d at 788 (counsel not ineffective for failing to introduce evidence of mental defects and personality disorder where counsel did not see any signs of brain damage or mental disorder, and counsel further thought such evidence would be inconsistent with the defendant's alibi defense and would undermine defendant's credibility); Cummings-El, 863 So.2d at 252 (determining that counsel's performance was not deficient where penalty phase strategy was to present defendant in a positive light and not to present evidence of defendant's drug use, poor upbringing, and family members' criminal backgrounds; counsel believed that such evidence would have an adverse effect on the jury and, further, introducing any evidence of mental illness would have been inconsistent with the aforementioned strategy); Brown v. State, 439 So.2d 872, 875 (Fla.1983) (concluding that under the totality of the circumstances at the time of trial, counsel was reasonably effective where he testified that in his opinion presentation of mitigation evidence during the penalty phase was contradictory to the alibi defense and the defendant did not assist in pursuing mitigating evidence).
Neither the United States Supreme Court's decision in Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003), nor its recent decision in Rompilla v. Beard, 545 U.S. 374 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005), compels a different conclusion. In Wiggins , the Court concluded that defense counsel's performance fell below an objective standard of reasonableness where counsel abandoned their investigation into mitigation even though their limited investigation revealed information that would have led a "reasonably competent attorney to investigate further." 539 U.S. at 527 , 123 S.Ct. 2527 . The Supreme Court noted that defense counsel's investigation included a review of reports which noted that Wiggins had spent most of his life in foster care and had displayed emotional difficulties while there and that Wiggins' mother was a chronic alcoholic who on at least one occasion left her children alone for days without food. See id. at 523, 525 , 123 S.Ct. 2527 . The Supreme Court concluded that a reasonable attorney would have realized the need to pursue these leads further, but defense counsel abandoned the investigation at this juncture. See id. at 527 , 123 S.Ct. 2527 . [15] The Supreme Court determined that counsel's failure to investigate further into Wiggins' background resulted from inattention rather than reasoned strategic judgment, in part because during opening statements, counsel informed the jurors, "You're going to hear that [Wiggins] has had a difficult life," but then failed to *1133 provide the jury with any details of Wiggins' life history. See id. at 526 , 123 S.Ct. 2527 . In holding that counsel's performance was deficient, the Supreme Court nonetheless noted that " Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing," id. at 533, 123 S.Ct. 2527 , and distinguished Wiggins' case from others where the High Court had concluded that limited investigations into mitigation were reasonable. See id. at 535 , 123 S.Ct. 2527 .
In the recently decided Rompilla , the Supreme Court concluded that the defense counsel's conduct in preparation for the sentencing phase fell below the level of reasonable performance that is required by Wiggins and Strickland where defense counsel failed to review a court file on the defendant's prior conviction. See 125 S.Ct. at 2463-64 . The Court stressed that it was not creating a per se rule requiring defense counsel to "do a complete review of the file on any prior conviction." Id. at 2467. Rather, the High Court found that counsel's performance fell below a level of reasonable performance because
counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving Rompilla's prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim's testimony given in that earlier trial.
Id. at 2464. The Supreme Court in its conclusion emphasized that "the prior conviction file was a public document, readily available for the asking at the very court-house where Rompilla was to be tried," yet "counsel did not look at any part of that file, including the transcript, until warned by the prosecution a second time," the day before the evidentiary sentencing phase began. Id. Although the facts of Rompilla led the Court to the conclusion that defense counsel's performance was unreasonable, the Court held that "[o]ther situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment." Id. at 2467.
A careful reading of the Supreme Court's decisions in Wiggins and Rompilla reveals that those decisions are inapplicable to the facts of the instant matter. Unlike Wiggins , in the instant case there were no reports containing evidence of Hannon's life history which should have prompted trial counsel to conduct a deeper investigation into Hannon's background. In fact, trial counsel testified that during the criminal proceedings neither Hannon, his father, his mother, nor his sister Moreen ever mentioned that Hannon might suffer from some form of brain injury, that Hannon was abused or neglected, or that he had a traumatic childhood or a substantial drug problem. According to counsel, when asked if Hannon had been born with any problems, Hannon's parents stated that they had "no problem with him." Moreover, unlike Rompilla , there is no indication here that the State planned to rely on particular material in aggravation that was not obtained and reviewed by trial counsel prior to the penalty phase trial. Finally, and most distinguishing, unlike the defendants in Wiggins and Rompilla , Hannon adamantly expressed his wish to proceed consistent with the innocence defense during the penalty phase. The dissent's assertion that we have "ignore[d] the mandate for defense counsel's duty to investigate," dissenting op. at 1157, *1134 does not accommodate these critical facts. Consistent with his client's wishes, trial counsel sought to demonstrate that Hannon did not have the type of character to commit the murders rather than offering evidence on Hannon's drug use, his mental fitness, or his family history. Therefore, unlike defense counsel's deficient performances in Wiggins and Rompilla , trial counsel's limited investigation into mitigation under the specific facts of the instant case, which was based on the express wishes of Hannon, was within the level of reasonable performance that is required by Strickland and Wiggins .
Hannon has also failed to demonstrate that he suffered prejudice. Contrary to the dissent's view that a per se rule of reversal is required, upon application of all applicable authorities, including Wiggins and Rompilla , relief is not available here. In assessing prejudice, we reweigh the evidence in aggravation against the totality of the mental health mitigation presented during the postconviction evidentiary hearing to determine if our confidence in the outcome of the penalty phase trial is undermined. See Rutherford v. State, 727 So.2d 216, 223 (Fla.1998) (stating that in assessing prejudice "it is important to focus on the nature of the mental mitigation" now presented); see also Wiggins, 539 U.S. at 534 , 123 S.Ct. 2527 ("In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence."). We conclude that it does not. There is no reasonable probability that had any of the mental health experts who testified at the postconviction evidentiary hearing testified at the penalty phase, Hannon would have received a life sentence. Our confidence has not been undermined in this outcome or proceeding.
At the evidentiary hearing, Hannon presented the testimony of Drs. Barry Crown, Faye Sulton, and Jonathan Lipman. Dr. Crown, an expert in clinical and forensic psychology and neuropsychology as well as substance abuse, testified that he performed a neuropsychological evaluation of Hannon and had reviewed background materials, as well as a cognitive test that had already been performed by Dr. Sulton. Dr. Crown testified that Hannon scored within normal limits on most of the tests that were administered and opined that Hannon's overall cognitive processing was "squarely within the heartland of what we would consider to be a typical person," but he demonstrated some difficulty with rapidly retrieving stored information and applying it to a new situation. Dr. Crown also testified that Hannon may have had some brain damage but he could not state that the brain damage in any way affected Hannon's behavior on the date of the crime because Dr. Crown had not been asked to consider or determine that in his evaluation.
Dr. Sulton, an expert in clinical psychology, testified that Hannon's thinking was not disturbed, nor was he having hallucinations or so deeply depressed that his thinking would be distorted. She opined that Hannon did not have any obvious major mental illness and that his behavior did not make much sense in light of his normal intelligence. She also testified that by January of 1991, Hannon had experienced many failures personally and professionally, worked several jobs, had been unsuccessful in the military, used vast amounts of illegal substances over a long period of time, and that his ability to function on a day-to-day basis, reason, use good judgment, and logically and sequentially plan activities were all compromised. She also testified that she found only nonstatutory mitigation through her interviews with family members and Hannon. These included areas of general parental neglect, *1135 lack of structure, and lack of discipline and guidance in his early environment; a childhood history of illness that interfered with his school life at a crucial time; extreme dependence on other people to assist him in basic living skills; dependence on Ron Richardson for employment and drugs; substance abuse over many years; extraordinary impulsivity at times and great lack of concentration; and an inability to formulate goal-directed behavior and to live as an adult. Dr. Sulton further testified that Hannon's personality changes, impulsivity, irritability, difficulty with concentration, and paranoid thinking would have impacted his day-to-day life. Ultimately, Dr. Sulton testified that in her opinion Hannon was not incompetent to stand trial at any point, was not insane at the time of the incident, and was of average intelligence. [16] Dr. Sulton agreed with Dr. Crown's overall picture of Hannon's normalcy with only some areas of deficit.
Dr. Lipman, a neuropharmacologist, testified that Hannon's degree of intoxication at the time of the offenses would not suggest to him that Hannon was unable to remember what occurred or would have rendered him unable to know what he was doing at the time of the crime. Dr. Lipman, however, admitted that he probably underestimated Hannon's drug burden at the time of the offense because he was not aware that Hannon had used cocaine the night of the crimes. Dr. Lipman basically agreed with the State's expert's conclusions, which included a polysubstance abuse diagnosis.
The State's expert, Dr. Merin, an expert in the fields of neuropsychology and forensic psychology, testified that he reviewed Drs. Sulton and Crown's testing and administered the Wechsler Adult Intelligence Scale III test to Hannon. Dr. Merin testified that he agreed with Dr. Crown's conclusions with the exception of Dr. Crown's finding of prefrontal lobe impairment. Dr. Merin explained the discrepancy was based on Dr. Crown using a shorter version of the Category Test. Dr. Merin testified that when he did the longer version of the test, three years after Dr. Crown, there was no indication of any prefrontal lobe impairment. Dr. Merin testified that he did not find any significant brain injury. Dr. Merin also opined that because Hannon was heavily into drugs and alcohol, he probably had destroyed some neurons in his brain, but not to the extent that it interfered with his ability to reason, to make decisions on his own behalf, to maintain goal-directed behavior, or to think logically. Dr. Merin further testified that he found no indication of any thought disorder or suggestion of psychosis or brain-related problems.
The postconviction testimony presented failed to establish the existence of statutory mental health mitigation (and indeed underscored Hannon's average intelligence and ability to reason), no expert was able to identify any significant brain damage, and there was contrary evidence. Even Dr. Crown, who arguably provided the most favorable testimony for Hannon, could not translate any brain damage as having any conceptual or actual impact on Hannon's behavior, and there was no evidence to establish any nexus between Hannon's mental health and his behavior or as it related to the crimes. Therefore, portraying Hannon as a drugged-out individual who had been involved in prior bad acts would have been more harmful, especially considering that the mental health implications were so equivocal.
*1136 Moreover, contrary to the dissent's claim that an investigation by trial counsel would have revealed "voluminous evidence of mitigation," see dissenting op. at 1169, the mitigation provided by witnesses during the postconviction evidentiary hearing was not compelling. [17] Indeed, the dissent offers what is actually a very one-sided presentation of postconviction witness testimony which creates a distorted view of Hannon's home life in an effort to bolster its assertion that trial counsel was ineffective for failing to conduct further investigation into mitigation. [18] Further, *1137 in sentencing Hannon to death, the trial judge found substantial aggravation in this case. Specifically, the trial court found three aggravating circumstances applicable to both the murders of Snider and Carter—(1) previous conviction of a violent felony (the contemporaneous killings); (2) the murders were committed during the commission of a burglary; and (3) the murders were heinous, atrocious, or cruel. See Hannon, 638 So.2d at 41 . As to Carter, the trial court found the additional aggravating factor that the murder was committed to avoid or prevent a lawful arrest. See id. [19] On direct appeal, we affirmed the court's findings of aggravation. See Hannon, 638 So.2d at 43 .
With regard to the HAC aggravator, we have previously noted that it is one of the most serious aggravators set out in the statutory sentencing scheme, see Everett v. State, 893 So.2d 1278, 1288 (Fla.2004), cert. denied, 544 U.S. 987 , 125 S.Ct. 1865 , 161 L.Ed.2d 747 (2005), and a review of the trial record demonstrates that the murders of Snider and Carter were particularly cruel. Hannon grabbed Snider, who had been stabbed by Acker fourteen times, from behind and slit his throat with such force that it nearly severed his head. Prior to that, Snider's screams could be heard throughout the apartment complex. An individual who was outside the apartment heard Snider gurgling on his own blood. At one point during the attack, Snider called to his roommate, "Call 911—my guts are hanging out." Upon hearing Snider's screams, Carter came downstairs and witnessed Snider's brutal stabbing. Carter pleaded with the attackers to spare his life, at one point saying to Acker, "[L]et me get out of here," and then retreated to a bedroom upstairs, hiding under a bed. Despite these pleas, Hannon went upstairs and proceeded to fire six shots into the huddled, defenseless Carter with a semiautomatic pistol. Hannon fired two shots into Carter at close range, and four shots with the pistol placed in contact with, or nearly up against, Carter's body. Despite the number of gunshot wounds, Carter did not die instantaneously. An officer who responded to the 911 call testified that when he arrived at the upstairs bedroom, Carter was still gasping for breath—Carter stopped breathing only just before the paramedics reached the bedroom. Based on the brutal and disturbing nature of these murders, there is no reasonable possibility that Hannon would have received a life sentence. Therefore, Hannon has failed to demonstrate that if the mental health and lay witness testimony presented during the postconviction evidentiary testimony had been offered at trial "the result of the proceeding would have been different," Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 , and we fundamentally disagree with the dissent's assertion to the contrary. *1138 See dissenting op. at 1168. Our confidence in the outcome of this case has not been undermined. See id. Accordingly, this claim is without merit.
III. Summary Denial of Several of Hannon's Postconviction Claims
Hannon challenges the trial court's summary denial of several claims, which he argues warranted an evidentiary hearing. In Freeman v. State, 761 So.2d 1055 (Fla. 2000), this Court provided the following standard for determining whether an evidentiary hearing is required in a postconviction proceeding:
[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient. The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden. However, in cases where there has been no evidentiary hearing, we must accept the factual allegations made by the defendant to the extent that they are not refuted by the record. We must examine each claim to determine if it is legally sufficient, and, if so, determine whether or not the claim is refuted by the record.
Id. at 1061 (citations omitted); see also State v. Williams, 797 So.2d 1235, 1237-38 (Fla.2001). Each of Hannon's claims must, therefore, be considered under application of these concepts.
A. Voluntary Intoxication Defense
Hannon claims that the trial court erred in summarily denying his claim that trial counsel was ineffective during the guilt phase for failing to present a voluntary intoxication defense. Generally, under the law applicable to these murders, when trial counsel makes a tactical decision not to pursue a voluntary intoxication defense, "a trial court's finding that such a decision was tactical usually is inappropriate without an evidentiary hearing." Williams, 797 So.2d at 1239 (quoting Kitchen v. State, 764 So.2d 868, 869 (Fla. 4th DCA 2000)). However, this Court has recognized that when it is so obvious from the face of the record that trial counsel's strategy not to present a voluntary intoxication defense is very clearly a tactical decision well within the discretion of counsel, no evidentiary hearing is necessary. See id.
In Williams , the defendant claimed that his trial counsel was ineffective for failing to present the voluntary intoxication defense at trial. See id. at 1238-39 . The defendant in Williams testified during the trial that he did not commit the crime. See id. at 1239 . This Court concluded that "counsel cannot be deemed ineffective for failing to pursue the voluntary intoxication defense as such a defense would have been inconsistent with Williams' theory of the case [that he did not commit the murder]." Id.; see also Brown v. State, 894 So.2d 137, 146 (Fla.2004) ("Failure to present an intoxication defense cannot constitute ineffective assistance of counsel when the defendant asserts his innocence."); Rivera v. State, 717 So.2d 477, 485 (Fla.1998) (concluding that guilt phase counsel was not ineffective in foregoing a voluntary intoxication defense strategy because, "since a voluntary intoxication defense is, in effect, an admission that you did the crime but lacked the specific intent to be held criminally responsible, Rivera's unwavering professions of innocence short-circuited any credible voluntary intoxication defense during the guilt phase") (footnote omitted).
*1139 Similar to the defendant in Williams , Hannon testified during the trial proceedings that he did not commit the crime. Had trial counsel presented an intoxication defense, it would have been totally inconsistent with Hannon's defense that he did not commit the murder. In accordance with our decision in Williams , we conclude that Hannon's trial counsel cannot be deemed ineffective for failing to pursue the voluntary intoxication defense because such a defense would have been inconsistent with Hannon's innocence theory. Trial counsel's strategy in this case amounted to a tactical decision well within his discretion that was so obvious from the record that no evidentiary hearing was necessary. Accordingly, the trial court's summary denial of this claim was proper.
B. Trial Counsel's Failure to Adequately Prepare for Trial
Hannon claims that the trial court erred in summarily denying his claim that trial counsel was ineffective in failing to adequately prepare for trial. Hannon's argument on this issue consists of a single paragraph in which he merely lists the following allegations—counsel's failure to obtain Hannon's "rap sheet," failure to review photographs before trial, failure to cross-examine and impeach state witnesses, and failure to adequately question jurors regarding their views on capital punishment—and then simply concludes that he was entitled to an evidentiary hearing. Hannon in effect has chosen to contest the trial court's summary denial of this claim by merely listing these allegations without any supportive argument or authority with regard to the manner in which trial counsel's conduct was deficient or the prejudice he sustained. This Court has previously determined that similar speculative, unsupported arguments of this type are improper and for which no relief is available. See Cooper v. State, 856 So.2d 969 , 977 n. 7 (Fla.2003) (rejecting similar argument as insufficient for consideration); Sweet v. State, 810 So.2d 854, 870 (Fla.2002) ("[B]ecause on appeal Sweet simply recites these claims from his postconviction motion in a sentence or two, without elaboration or explanation, we conclude that these instances of alleged ineffectiveness are not preserved for appellate review."); see also Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990) ("The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues. . . ."). Therefore, we conclude that Hannon's unsupported claim is improper and deny relief on this claim.
C. Brady/Giglio claim
Hannon asserts that the trial court erred in denying his claim that the State violated Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), [20] by failing to disclose that Richardson's testimony was presented in exchange for lenient treatment. Hannon also claims that the State violated Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972), [21] by presenting false *1140 testimony at trial that Richardson would spend time in prison for his role in the case when he did not, and by presenting Richardson's fabricated testimony with regard to what occurred on the night of the murders. Hannon has failed to establish either a Brady or Giglio violation because he has not demonstrated that the evidence was suppressed by the State or that the State presented false testimony.
The record reveals that on Friday, July 19, 1991, the trial court inquired of Richardson and his attorney, Mr. Sinardi, whether Richardson would testify in Hannon's case. Richardson stated to the court that he planned to invoke his Fifth Amendment right not to incriminate himself and would not voluntarily testify on Hannon's behalf. Later that same day, the trial court informed the State that Richardson's attorney had sent a message that the State should not rest its case until Sinardi had an opportunity to speak with the State. At that point, the State indicated that it had received information that Richardson might change his position and be a prosecution witness against Hannon. On Monday, July 22, 1991, the trial court and Hannon's trial counsel were apprised that Richardson had finally made an agreement with the State, and a copy of Richardson's statement was provided to Hannon's counsel. Subsequently, Richardson became a willing witness and answered questions with regard to the voluntariness of his statement. It was revealed at that time that Richardson had agreed to provide the voluntary sworn statement to the State based on the assumption that he would be adjudicated guilty of only accessory after the fact and be sentenced to five years in prison. During the State's direct examination of Richardson, he stated that he had the advice of his attorney, they approached the State, and an agreement had been entered. Richardson also testified that he intended to testify truthfully regardless of whether it was the State or the defense that called him as a witness.
There is no indication that the State suppressed evidence relating to its agreement with Richardson. The record reveals that Richardson approached the State to negotiate an agreement, the State came to an agreement with Richardson on a Sunday evening, and the next morning the State informed Hannon's trial counsel and the trial court of the plea agreement. The record facially reflects that Hannon's trial counsel knew of the agreement at the time of the trial, it was disclosed the following morning, and the existence of a Brady violation is conclusively refuted. See Tompkins v. State, 872 So.2d 230, 239 (Fla.2003) ("Because defense counsel knew of the report . . . a Brady violation is conclusively refuted."); see also Foster v. State, 810 So.2d 910, 916 (Fla.2002); Bryan v. State, 748 So.2d 1003, 1008 (Fla. 1999).
Hannon has not shown that the State presented false testimony at trial that Richardson would spend time in prison for his role in the case when he did not. In fact, with regard to the agreement, Hannon's trial counsel elicited from Richardson during cross-examination: that the previous morning (Sunday) Richardson was facing two possible death penalty convictions and by the previous (Sunday) evening he had received an agreement to limit a sentence to five years; and that Richardson's attorney had not advised Richardson of a specific release date from the sentence due to his gain time. Thus, the jury learned of the State's arrangement with Richardson and was able to judge the credibility of Richardson's testimony at trial. Based on the foregoing, the record *1141 facially supports the conclusion that the jury was in fact informed that with his gain time, Richardson might not actually spend five years in prison. Hannon has not shown that the State suppressed any evidence that Richardson might not serve time in jail after his gain time was calculated or that it misrepresented to the jury the length of time Richardson was expected to actually serve for his participation in the murders.
Hannon has also failed to demonstrate a Giglio violation with regard to Richardson's testimony relating to what occurred on the night of the murders. Hannon simply asserts that Richardson's testimony was fabricated without additional facts, or any facts that the State knew Richardson's testimony was false. Hannon has not provided a factual basis that the State instructed Richardson to lie with regard to what occurred on the night of the murders, or that Richardson did lie. Accordingly, the circuit court's denial of Hannon's Brady and Giglio claims was proper.
D. Conflict of Interest
Hannon asserts that the trial court erred in summarily denying his claim that trial counsel had an undisclosed conflict that prevented him from rendering effective assistance. Specifically, Hannon claims that because his trial counsel was endeavoring to also obtain codefendant Richardson as a client in connection with his representation of Hannon, trial counsel was blinded to pursuing avenues of investigation that may have pointed to Richardson's role in these killings. Further, Hannon alleges that this conflict clouded trial counsel's ability to effectively cross-examine Richardson. However, the facts that formed the basis for this alleged conflict of interest were known to Hannon at the time of his trial and, therefore, could have been and should have been presented on direct appeal. See Thompson v. State, 759 So.2d 650, 661 (Fla.2000) (concluding that the trial court correctly found that the defendant's conflict of interest postconviction claim was procedurally barred because the facts that formed the basis for this alleged conflict of interest were known to the defendant at the time of his direct appeal and thus should have been presented on direct appeal); Jackson v. Dugger, 633 So.2d 1051, 1055 (Fla.1993) (determining that the defendant's claim that trial counsel had a conflict of interest was procedurally barred in 3.850 motion). Therefore, the trial court's summary denial of this claim was proper.
E. State's Use of Jailhouse Informants
Hannon asserts that the trial court also erred in summarily denying his claim relating to the State's allegedly improper use of jailhouse informants. Specifically, Hannon claims that non-record evidence supports his assertion that Keith Fernandez had no information to provide when the State first contacted him but informed an officer that he could obtain more information from Hannon. Hannon further alleges that non-recorded information reveals that Fernandez's assistance in Hannon's case was considered when Fernandez was sentenced for his crime, notwithstanding Fernandez's testimony that he was not given anything in exchange for his testimony. Hannon also claims that his trial counsel was not aware that in exchange for Jonathon Ring's testimony against Hannon, State investigator Scott Hopkins wrote a letter on September 6, 1991, to the superintendent of the prison where Ring was housed requesting that gain time Ring lost while waiting to testify be reinstated. Hannon contends that to the extent trial counsel failed to discover *1142 this information, Hannon was denied the effective assistance of counsel, and to the extent the State failed to disclose this information, violations of Brady and Giglio occurred.
Hannon has failed to provide a factual basis that the State made undisclosed concessions or guarantees of favors to either Fernandez or Ring in return for information against Hannon, or that either Fernandez or Ring were agents of the State. Based on the record, the trial court properly found that Hannon was not entitled to relief and therefore, summary denial of postconviction relief was appropriate:
The letter written [by Scott Hopkins] on September 6, 1991, was written subsequent to July 23, 1991, the date the guilt phase of Defendant's trial ended. Therefore, the fact that Mr. Hopkins wrote this letter after the trial, does not prove that Mr. Ring was promised anything in exchange for his testimony in Defendant's case. As such, no relief is warranted with respect to this portion of claim VII.
. . . .
Third, Defendant claims Mr. Fernandez and other informants were acting as agents of the State and Defendant's right to counsel was violated. However, Mr. Fernandez testified that he was asked by a deputy or detective if he had any information, and he replied, "Yeah," but he was never offered anything for his cooperation in the case, nor was he aware that Mr. Hellickson and Mr. Lewis told his prosecutor that they had no objection to him being released from custody. ( See Trial Transcript, Volume VII, pages 773-774, 776-779, attached). Moreover, during the deposition of Mr. Fernandez, Defendant's counsel was made aware that Mr. Fernandez and Defendant had talked about Defendant's case, but Mr. Fernandez never stated, either at the deposition or at trial, that Defendant confessed to him. ( See Trial Transcript, Volume VII, pages 769-788, Deposition of Mr. Fernandez, attached). Therefore, Defendant has failed to prove that Mr. Fernandez and the other inmates who testified against Defendant were agents of the State. Since Defendant has failed to prove Mr. Fernandez and the other inmates were agents of the State, no relief is warranted with respect to this portion of claim VII.
Fourth, Defendant claims ineffective assistance of counsel to the extent that counsel failed to discover the aforementioned information. However, since Mr. Fernandez and the other inmates were not agents of the State, counsel was not ineffective for failing to raise non-meritorious issues. See Parker v. State, 611 So.2d 1224, 1227 (Fla.1993). Moreover, Defendant's counsel attempted to discredit the six informants of the State with testimony from several inmates that they never heard Defendant talk to anyone in the jail regarding his case. ( See Trial Transcript, Volume XII, pages 1305-1316, 1333-1335, attached). As such, no relief is warranted with respect to this portion of claim VII. (PCR6/1134-1136)
See Gudinas v. State, 816 So.2d 1095 , 1101 n. 6 (Fla.2002) (finding no error in trial court summarily denying legally sufficient claims where claims were conclusively refuted by trial record). Accordingly, this claim was properly denied by the trial court.
F. State's Use of Misleading and Improper Argument
Hannon claims that the State's case was permeated with improper innuendo and argument based on facts not in evidence and that were false. First, Hannon asserts that the following "slaughterhouse" *1143 arguments made by the State during the guilt phase closing argument were not supported by any factual basis:
If I had to think of a name for this case, something to summarize what this case is all about, the name I would choose would be "The Slaughterhouse. The Slaughterhouse." Because on January 10, 1991, a man sitting in this very courtroom, turned the home of Brandon Snider and Robbie Carter into a slaughterhouse.
. . . .
Hannon worked at a slaughterhouse. Hannon had access to knives. He had access to knives. He used knives in the past to kill. He testified on the stand that he killed before, killed animals before.
However, the record demonstrates that the State's "slaughterhouse" arguments were supported by the evidence. Specifically, John Ring testified at trial that Hannon stated the following:
[Hannon] said that the cops were trying to pin a murder on him, that they had— they wanted to pin him because he had worked in a slaughterhouse and he was cutting throats for a living, because that made him a violent person, that they were trying to pin that on him and that he had shot this guy six times.
Moreover, at trial Hannon testified that he worked in a slaughterhouse in Okeechobee slaughtering cows, and in Brooksville slaughtering pigs and hogs. Hannon described that he would shock the animals, make an incision in them, and hang them upside down to bleed them. Hannon testified in detail with regard to what occurred on certain days at the slaughterhouse, including that Mondays and Wednesdays were slaughter days when they killed the hogs. Hannon described the different functions related to cutting, specifically that if you were right-handed you would have the knife in your right hand and grab the meat with your left hand. Hannon also testified that he had taken a pork loin to Robbie Carter's house, boned it out, and cut some pork chops. Hannon further testified that during the time January 14 through 16, he had attempted to secure work with Richardson at the slaughterhouse but could not because business was slow. Based upon our review of the record, we determine that there was testimony regarding Hannon's work in the slaughterhouse to support the State's analogy. Accordingly, the trial court's rejection of this claim was proper.
Additionally, Hannon asserts that trial counsel's failure to object to the following argument made by the State during closing argument was unreasonable: "[S]ometimes you need to make a deal with a sinner in order to get the devil. That's what we did in this case. Ron Richardson did wrong. He was a sinner. We dealt with him to get the devil." Irrespective of whether trial counsel was deficient, Hannon has failed to show prejudice. In Moore v. State, 820 So.2d 199 (Fla. 2002), Moore claimed that defense counsel was ineffective for failing to object to the following remarks made by the prosecutor during the State's guilt and penalty phase arguments:
Crime conceived in hell will not have any angels as witnesses. And, ladies and gentleman, as true as that statement is, Grand Park is hell. And that man right there is the devil. . . .
Ladies and gentlemen, deals. Yes, ma'am, yes, ma'am, yes, sir, to all of you. I have dealt with [co-defendant 1] and I have dealt with [co-defendant 2]. I did that as an Assistant State Attorney. I did that the best I knew how. But, ladies and gentlemen, sometimes you have to deal with sinners to get the devil. And I would submit to you what *1144 the State did was we dealt with this sinner and we dealt with this sinner to get this devil.
Id. at 207 (emphasis supplied). This Court concluded:
[T]he two isolated references to Moore as "the devil" in this instance, although ill advised, appear to be less problematic than the pervasive and extensive conduct condemned in Brooks [ v. State, 762 So.2d 879 (Fla.2000),] and Urbin [ v. State, 714 So.2d 411 (Fla.1998)]. Rather, this case appears to be more akin to Chandler v. State, 702 So.2d 186 , 191 n. 5 (Fla.1997), where this Court held that a prosecutor's isolated comments that defense counsel engaged in "cowardly" and "despicable" conduct and that the defendant was a "malevolent . . . a brutal rapist and conscienceless murderer" was not so prejudicial as to vitiate the entire trial.
Id. at 208 . Similar to Moore , the State's comment during closing in the instant case that they made a deal with the sinner to get the devil was not so prejudicial as to undermine our confidence in the case. Accordingly, this claim is also without merit.
G. Constitutional Errors
The trial court summarily denied Hannon's claims that trial counsel was ineffective in failing to object to what he contends were constitutional errors. Hannon now asserts the following: (1) the burden of proof was improperly shifted to Hannon during the penalty phase; (2) Hannon's jury was repeatedly instructed by the court and the prosecutor that its role was advisory and simply a recommendation, diminishing the jury's sense of responsibility in violation of Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985); and (3) instructing the jury that they could find as an aggravating circumstance the fact that Hannon was engaged in the commission of the crime of burglary based upon the State's alternative theory of felony murder rendered him automatically eligible for the death penalty. The trial court properly denied this claim because all of the individual assertions fail because they are procedurally barred or without legal merit. See Power v. State, 886 So.2d 952, 956 (Fla.2004); Freeman v. State, 761 So.2d 1055, 1067 (Fla.2000); Blanco v. State, 706 So.2d 7, 11 (Fla.1997); Johnson v. State, 660 So.2d 637, 647-48 (Fla.1995). All of these claims were properly denied by the trial court.
H. Newly Discovered Evidence
To obtain postconviction relief based on newly discovered evidence, Hannon must demonstrate
first, that the newly discovered evidence was unknown to the defendant or defendant's counsel at the time of trial and could not have been discovered through due diligence and, second, that the evidence is of such a character that it would probably produce an acquittal on retrial.
Mills v. State, 786 So.2d 547, 549 (Fla. 2001). Hannon asserts that codefendant Jim Acker's subsequent life sentence constitutes newly discovered evidence and that, had trial counsel known what was revealed at Acker's trial, it is more than likely that trial counsel would have been able to prove that Hannon's role in the crime was that of the least culpable codefendant. [22] Hannon directs our attention to Scott v. Dugger, 604 So.2d 465 (Fla.1992), to support this claim. In Scott , this Court addressed whether "a codefendant's subsequent life sentence constitutes newly discovered evidence which would permit collateral *1145 relief." Id. at 468 . This Court held that "in a death case involving equally culpable codefendants the death sentence of one codefendant is subject to collateral review under rule 3.850 when another codefendant subsequently receives a life sentence." Id. at 469 .
Unlike Scott , which involved equally culpable codefendants, this Court on direct appeal determined Hannon to be the most culpable defendant in this case:
In the instant case, the record reflects that Hannon murdered both victims. Hannon delivered the fatal blow to Snider, slashing Snider's throat after Acker had stopped stabbing him. Also, it was Hannon who shot Carter. Clearly, Hannon is the most culpable of the three accomplices in this case, and the two death sentences are justified.
Hannon, 638 So.2d at 44 . Contrary to Hannon's assertion, this Court's decision in Scott is not persuasive because the instant case does not involve equally culpable codefendants. Therefore, we conclude that the trial court properly denied this claim.
Next, Hannon alleges that the testimony of Kelly Reynolds, a niece of Ron and Mike Richardson, constitutes newly discovered evidence. Specifically, Hannon claims that testimony Reynolds presented at an evidentiary hearing for codefendant Jim Acker demonstrates that Richardson provided materially false information at Hannon's trial. The material included the following: that after Ron Richardson was released from jail he returned to Indiana and lived in the same house as Reynolds; that during that time, Ron Richardson discussed this case on more than one occasion, and Richardson admitted that Jim Acker was not present when the murders occurred; and that Reynolds overheard Ron Richardson on the phone with his brother Mike telling him to forget the money he owed Ron because Mike saved Ron from going to prison. Hannon has failed to show that Reynolds' testimony proves Ron Richardson's testimony at Hannon's trial with regard to the night of the murders was false. Reynolds' statements do not make any reference to Hannon or the testimony that Richardson provided at Hannon's trial. Thus, the alleged statements are not of such nature that they would probably produce an acquittal on retrial. See Mills, 786 So.2d at 549 . Accordingly, this claim is without merit.
Hannon next asserts that FBI Special Agent Michael Malone provided unreliable and false testimony during trial. Hannon further claims that the State withheld an FBI Crime Laboratory investigation by the U.S. Department of Justice, wherein Malone was criticized for conducting incomplete tests and exaggerating testimony to fit the government's case, and the report recommended that Malone be subject to disciplinary action. The record indicates that Malone testified during the trial here that there "were no hairs like Mr. Hannon anywhere in the residence or on the victims." Malone testified that he compared a fabric impression made on a door with a pair of Hannon's trousers, which were taken from Hannon when he was arrested, and that Hannon's pants did not match the impression on the victims' door. Malone further testified that the particular pattern of the impression made on the door was consistent with the type that would be made by an item such as a blue jean fabric. However, Malone did not testify that Hannon was wearing a blue jean fabric or that he tested any blue jean fabric belonging to Hannon.
Hannon has not presented any facts to show that Malone's testimony was unreliable or false. Moreover, Hannon was not prejudiced by Malone's testimony because his testimony—that hair and fiber collected at the scene did not match Hannon's, *1146 and that Hannon's pants did not match the fabric impression made on the victim's door—was not damaging to Hannon. Hannon, however, claims that Malone's testimony was significant because of its implication that Hannon was in the victims' apartment the night of the murders, but failed to leave any hairs as evidence. Hannon highlights that the State during its closing argument emphasized Malone's testimony that the fiber impression on the outside of the victims' front door was consistent with a blue jean type material, and that all the witnesses identified the three who left the victims' apartment as wearing blue jeans. The State further argued during closing that Richardson identified Hannon as wearing blue jeans on the night of the crimes. Notwithstanding these arguments, it is not likely that had trial counsel had the FBI report relating to Malone, trial counsel would have used it to challenge Malone's expertise or testimony. During the postconviction evidentiary hearing, trial counsel testified that in his view Malone had in fact helped or advanced Hannon's alibi defense. Therefore, it is not likely that evidence that Malone was investigated would have been presented even if it was available. Moreover, even if the jury had heard the information found in the FBI report, it is not of such a character that it would probably produce an acquittal on retrial. See Mills, 786 So.2d at 549 . There is no merit to this claim and it is also denied.
IV. Avoiding Arrest Aggravator
Hannon claims that the instruction given on the committed-to-avoid-arrest aggravating factor is unconstitutionally vague and was improperly applied in his case. This claim is procedurally barred because it could have been, and should have been, presented on direct appeal. See Lopez v. Singletary, 634 So.2d 1054, 1056 (Fla.1993) (concluding that challenge to the avoid arrest aggravator was procedurally barred in postconviction proceedings because it could have been presented on direct appeal). Procedural bar notwithstanding, this claim is meritless because this Court has previously upheld the constitutionality of the standard jury instruction for the avoid arrest aggravator. See Griffin v. State, 866 So.2d 1, 16 (Fla.2003); Sweet v. Moore, 822 So.2d 1269, 1274 (Fla. 2002); see also Whitton v. State, 649 So.2d 861 , 867 n. 10 (Fla.1994) (concluding that the standard jury instruction for avoid arrest aggravator is not unconstitutionally vague and did not require a limiting instruction to make this aggravator constitutionally sound). Therefore, this claim is denied.
Hannon also alleges that there was insufficient evidence to support the application of the avoid arrest aggravator. This claim was rejected by this Court on direct appeal:
Hannon next argues that the evidence did not support the aggravating circumstance that the murder of Carter was committed for the purpose of avoiding or preventing lawful arrest. When a murder victim is not a law enforcement officer, "[p]roof of the requisite intent to avoid arrest and detection must be very strong." Riley v. State, 366 So.2d 19, 22 (Fla.1978). In the instant case, the record reflects that Hannon, Acker, and Richardson went to the home of Snider and Carter to kill Snider. The motive was the conflict between Snider and Jim Acker's sister. Carter was not a party to this conflict. Carter, however, lived with Snider, and witnessed Snider's murder. Carter knew, and could identify, Hannon and the others. After his arrest and incarceration, Hannon told a cellmate that one of the victims was a "real jerk," but that the other was a "pretty nice guy" who was just in the wrong place at the wrong time. In the *1147 course of discussing another cellmate's crime, Hannon told him that he should not have left any witnesses. Clearly, the murder of Carter was ancillary to the primary purpose of obtaining revenge against Brandon Snider. See Troedel v. State, 462 So.2d 392, 398 (Fla. 1984). The finding that Carter was murdered for the purpose of avoiding or preventing lawful arrest is fully supported by the record.
Hannon, 638 So.2d at 43-44 . Accordingly, this claim also has no merit.
V. Applicability of Heinous, Atrocious, or Cruel Aggravator
Hannon asserts that the facts of the instant case do not support the finding of heinous, atrocious, or cruel. On direct appeal, this Court rejected this claim. See Hannon, 638 So.2d at 43 . Accordingly, we hold that this claim is procedurally barred because it was addressed and denied on direct appeal.
VI. Innocent of the Death Penalty Claim
To prevail on a claim of being innocent of, or ineligible for, the death sentence received, Hannon must demonstrate constitutional error invalidating all of the aggravating circumstances upon which the sentence was based. See Vining v. State, 827 So.2d 201, 216 (Fla.2002). Hannon has not made such a showing here. Hannon's contention regarding the sufficiency of aggravation was decided adversely to Hannon on direct appeal and is not cognizable de novo in this postconviction proceeding. Specifically, this Court on direct appeal concluded that the facts of Hannon's case supported the finding of HAC and the prior violent felony aggravator with regard to both victims, and that the murder of Carter was committed for the purpose of preventing lawful arrest. See Hannon, 638 So.2d at 43-44 . This Court determined that Hannon's two sentences of death were proportionate and affirmed the convictions and sentences. See id. at 44 . Accordingly, Hannon's "innocent of the death penalty" claim has no merit. See Sochor v. State, 883 So.2d 766, 788 (Fla.2004) (rejecting the defendant's "innocent of the death penalty" claim because the Court determined on direct appeal that the evidence supported the existence of three aggravating circumstances).
VII. Constitutionality of Florida Capital Sentencing Statute
Hannon asserts that Florida's capital sentencing scheme is unconstitutional under the holding of Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). This Court addressed the contention that Florida's capital sentencing scheme violates the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Ring in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and denied relief. See also Jones v. State, 845 So.2d 55, 74 (Fla.2003). Hannon is likewise not entitled to relief on this claim. Furthermore, one of the aggravating circumstances found by the trial court in this case was Hannon's prior conviction of a violent felony, "a factor which under Apprendi and Ring need not be found by the jury." Jones v. State, 855 So.2d 611, 619 (Fla. 2003); see also Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (rejecting Ring claim where one of the aggravating circumstances found by the trial judge was defendant's prior conviction for a violent felony), cert. denied, 539 U.S. 962 , 123 S.Ct. 2647 , 156 L.Ed.2d 663 (2003); Johnson v. State, 904 So.2d 400 (Fla.2005) (holding that Ring does not apply retroactively). Accordingly, this claim is also rejected.
*1148 VIII. Cumulative Error
Hannon's claim of cumulative error is without merit. As all of Hannon's individual claims are either procedurally barred or without merit, his cumulative error claim must fail. See Griffin v. State, 866 So.2d 1, 22 (Fla.2003) ("[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail."); Vining v. State, 827 So.2d 201, 219 (Fla.2002) ("Because the alleged individual errors are without merit, the contention of cumulative error is similarly without merit."); see also Downs v. State, 740 So.2d 506 , 509 n. 5 (Fla.1999). Therefore, this claim is also rejected.
PETITION FOR WRIT OF HABEAS CORPUS
Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must determine:
[W]hether 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, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069 ; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). "The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based." Freeman, 761 So.2d at 1069 ; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981). Claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000); Thompson , 759 So.2d at 660 . "If a legal issue `would in all probability have been found to be without merit' had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective." Rutherford, 774 So.2d at 643 (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)). It is under this legal framework that Hannon's habeas claims will be addressed.
I. Fundamental Error
Hannon asserts that he is entitled to a new trial due to fundamental error because he was convicted of a crime not charged in the indictment. The grand jury indicted Hannon, charging him with two counts of murder from a premeditated design for the deaths of Brandon Snider and Robert Carter. The indictment did not charge Hannon with felony murder, burglary, or any other felony. The trial judge in the instant case instructed the jury on first-degree premeditated murder and first-degree felony murder and defined the crime of burglary. The jury returned a general verdict finding Hannon guilty of first-degree murder. Hannon argues that reversal of his conviction is warranted because the jury just as likely found Hannon guilty of felony murder, which he was not charged with, as premeditated murder.
We have repeatedly held that there is no error in permitting the State to proceed on a theory of felony murder when the indictment charges the defendant with first-degree premeditated murder. See Anderson *1149 v. State, 841 So.2d 390, 404 (Fla.2003) (rejecting the defendant's argument that the trial court erred in permitting the State to proceed on the theory of felony murder when the indictment only charged first-degree murder); Kearse v. State, 662 So.2d 677, 682 (Fla.1995) ("The State need not charge felony murder in an indictment in order to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder."); Knight v. State, 338 So.2d 201, 204 (Fla.1976) ("We find appellant's allegation that the court erred in allowing the State to prosecute the charges [sic] under a theory of felony murder when the indictment charged premeditated murder to be absolutely contrary to established precedent."). Therefore, we conclude that appellate counsel was not ineffective for failing to present this meritless issue on appeal. See Rutherford, 774 So.2d at 643 .
Hannon further alleges that he is entitled to relief pursuant to this Court's decision in Delgado v. State, 776 So.2d 233 (Fla.2000), where this Court held that the phrase "remaining in," which is found in the burglary statute, was limited to situations where the "remaining in" was done surreptitiously. See id. at 240 . However, the Delgado Court specifically stated that its "opinion will not, however, apply retroactively to convictions that have become final." Id. at 241 . Hannon's convictions and sentences were affirmed on direct appeal on June 2, 1994, and therefore had become final prior to the release of Delgado. See Jimenez v. State, 810 So.2d 511, 512 (Fla.2001) (determining Delgado is not subject to retroactive application and that Jimenez was not entitled to relief pursuant to Delgado since Jimenez's convictions were final prior to the release of Delgado ). Accordingly, Hannon is not entitled to relief pursuant to Delgado .
Hannon asserts that this Court recently confronted a similar question in Fitzpatrick v. State, 859 So.2d 486 (Fla.2003); however, Hannon's reliance on Fitzpatrick is misplaced. In Fitzpatrick , this Court invoked the principle that "a general verdict is invalid when it rests on multiple bases, one of which is legally inadequate," and reversed for a new trial because the jury had been given an erroneous burglary instruction. Id. at 490 (emphasis added) (citing Yates v. United States, 354 U.S. 298, 312-13 , 77 S.Ct. 1064 , 1 L.Ed.2d 1356 (1957)). Since Fitzpatrick's conviction had not become final at the time Delgado was released, Delgado was applicable to Fitzpatrick, and thus the general verdict in his case was invalid because it rested on multiple bases, one of which at the time of Fitzpatrick's direct appeal was inadequate due to Delgado's applicability. Hannon's claim is different from Fitzpatrick because, as previously explained above, Delgado is not applicable to Hannon's case.
Finally, Hannon claims that his appellate counsel was ineffective for failing to present on direct appeal that Hannon was convicted of a crime for which he was not charged in the indictment. This Court rejected this claim in Freeman v. State, 761 So.2d 1055, 1071 (Fla.2000) (rejecting Freeman's claim that "appellate counsel was ineffective for failing to argue that the trial court erred in denying the pretrial motion to dismiss the indictment because it did not specifically charge felony murder"); see also Gudinas v. State, 693 So.2d 953, 964 (Fla.1997) ("We have repeatedly rejected claims that it is error for a trial court to allow the State to pursue a felony murder theory when the indictment gave no notice of the theory."). Thus, we conclude that appellate counsel was not ineffective for failing to present this meritless issue on appeal. See Rutherford, 774 So.2d at 643 .
*1150 II. Constitutionality of Florida's Capital Sentencing Statute
In his petition for writ of habeas corpus, Hannon argues that under Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), Florida's death penalty scheme is unconstitutional and that the Ring decision applies retroactively to him. We have previously rejected each of the claims Hannon presents in his habeas petition. See Johnson v. State, 904 So.2d 400 (Fla.2005) (holding that Ring does not apply retroactively); Monlyn v. State, 894 So.2d 832, 839 (Fla.2004) (concluding that the defendant lacked standing to assert any error with regard to lack of jury unanimity because the jury returned a unanimous recommendation of death); Duest v. State, 855 So.2d 33, 48-49 (Fla.2003) (rejecting a claim that the jury must unanimously specify each aggravator found), cert. denied, 541 U.S. 993 , 124 S.Ct. 2023 , 158 L.Ed.2d 500 (2004); Doorbal v. State, 837 So.2d 940, 963 (Fla.) (stating that the prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury "clearly satisfies the mandates of the United States and Florida Constitutions"), cert. denied, 539 U.S. 962 , 123 S.Ct. 2647 , 156 L.Ed.2d 663 (2003). Finally, we deny Hannon's habeas claim that he is entitled to relief based on a hybrid claim under Ring and Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), as we did in Robinson v. State, 865 So.2d 1259, 1266 (Fla.2004). Accordingly, we deny habeas relief on this claim.
CONCLUSION
For the foregoing reasons, we affirm the trial court's denial of Hannon's rule 3.850 motion and deny Hannon's petition for writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, CANTERO, and BELL, JJ., concur.
ANSTEAD, J., dissents with an opinion, in which PARIENTE, J., concurs.
QUINCE, J., recused.
ANSTEAD, J., Dissenting.
The United States Supreme Court and this Court have repeatedly emphasized that counsel in death penalty cases must investigate first and then develop strategy that is informed by actual knowledge. See, e.g., Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.1991) ("The ultimate decision that was reached not to call witnesses was not a result of investigation and evaluation, but was instead primarily a result of counsel's eagerness to latch onto Blanco's statements that he did not want any witnesses called."). The point is that one cannot develop strategy in a vacuum. In fact, Hannon's counsel repeatedly conceded that he failed to investigate Hannon's background because he had decided on a continuing not guilty strategy before doing a proper investigation. In accordance with the United States Supreme Court's and this Court's controlling decisions regarding ineffectiveness of counsel, I would remand this case for a new penalty phase with new and competent counsel.
I cannot concur in the majority's determination that Hannon's counsel was not ineffective in failing to pursue any investigation into mitigating circumstances for the penalty phase of the trial and, instead, even in the face of a unanimous jury determination of guilt, continuing to express his disagreement with the jury's verdict. [23] Instead *1151 of honoring his obligation to investigate and present a case for mitigation to the jury in accord with Florida law, counsel continued to challenge the jury's verdict. Moreover, Hannon's counsel testified at the postconviction hearing that he failed to investigate Hannon's background because he irrationally "expected this case to go back to trial. [He] expected that someone could come forward or there'd be a *1152 confession in jail just like you read about all the time. It happens all the time. [He] said this is going to happen in this case and [they've] preserved his ability to go to trial again." Hannon's counsel was also convinced "that perhaps with the passage of time Ron Richardson would come in and change his story . . . [e]specially knowing the guys up there are going to get killed for this." Such naiveté would be surprising anywhere, but it is shocking and inexcusable on the part of a lawyer charged with defending a capital offense. It is not surprising however, that such a tactic was rejected by the jury by a unanimous vote recommending the imposition of the death penalty.
RIGHT TO THE ASSISTANCE OF COMPETENT COUNSEL
As the majority notes, "[a]n ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). Unfortunately, since the United States Supreme Court first recognized that the United States Constitution not only provided a right to counsel for indigent criminal defendants but also a right to "competent" counsel, this recognition has been honored all too often in its breach. The case before us today presents a classic example of legal incompetency where it hurts the most—by counsel's blatant failure to investigate or present a case for life for a defendant already found guilty of capital first-degree murder. The majority essentially treats the guarantee of competent counsel articulated in Strickland as a standardless empty promise, based upon a lowest common denominator assessment under which any performance by a licensed attorney meets the constitutional guarantee.
I cannot agree that the Supreme Court has failed to provide meaningful standards to this most sensitive category of cases, those involving the death penalty, especially in its most recent decisions. See Wiggins, 539 U.S. 510 , 123 S.Ct. 2527 ; Rompilla v. Beard, 545 U.S. 374 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005); Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). In Strickland the Supreme Court stressed that because we have an adversarial system of justice which relies heavily on the competence of counsel to ensure a just result, capital defendants are entitled to genuine adversarial testing at both the guilt and penalty phases of a capital trial.
In this case there was no adversarial testing in the penalty phase, and, consequently, there was no justice. After the State presented its case for the death penalty in the penalty phase, the jury essentially turned to defense counsel to ask why it should not accept the prosecution's case for the death penalty. At this critical juncture, with his client's life on the line, instead of presenting evidence and arguments as to why the death penalty was not appropriate, defense counsel essentially defaulted. His only defense was that his client was not really guilty. However, the jury had already decided this issue against the defense, and the jury was left with no choice but to again unanimously reject this innocence defense and accept the State's argument that the death penalty was the appropriate punishment. That is why this case constitutes a classic case of ineffectiveness of counsel. There was absolutely no adversarial testing of the appropriateness of the death penalty in this case.
I. Deficient Performance
The majority makes no serious effort to distinguish Wiggins and the other United *1153 States Supreme Court decisions both emphasizing defense counsel's fundamental duty to investigate and rejecting the use of a continuing innocence defense at the penalty phase. [24] Specifically, in finding counsel ineffective in Wiggins , the Supreme Court held that the "principal concern . . . is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [the defendant's] background was itself reasonable." Id. at 522-23, 123 S.Ct. 2527 . In Wiggins the Court determined that, as in Hannon's case, counsel's decision not to pursue mitigation was made prematurely when trial counsel "decided to focus their efforts on `retry[ing] the factual case' and disputing Wiggins' direct responsibility for the murder," even though extensive mitigation was available to present to the jury. Id. at 517 , 123 S.Ct. 2527 . This is precisely what defense counsel did in Hannon's case and why the outcome should be the same as in Wiggins . Noting the prevailing professional norms at the time of Wiggins' trial, the Supreme Court held that "[d]espite these well-defined norms, . . . counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Id. at 524 , 123 S.Ct. 2527 (citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.8.6, at 133 (1989) [hereinafter "ABA Guidelines"]). Therefore, "counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible." Id. at 527-28 , 123 S.Ct. 2527 . Again, that is precisely what happened here.
In Wiggins the Court pointed out that counsel's responsibility to investigate was comprehensive and "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Wiggins, 539 U.S. at 524 , 123 S.Ct. 2527 (quoting ABA Guidelines 11.4.1(C), at 93). The topics to be considered include "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." Id. (citing ABA Guidelines 11.8.6, at 133). In Wiggins the Court found counsel's failure to investigate both deficient and prejudicial and directed that a new penalty phase with competent counsel be conducted. Id. at 535-36 , 123 S.Ct. 2527 .
Hannon's counsel was ineffective during the penalty phase first, because, as in Wiggins , he continued to present an "alibi" and "not guilty" strategy even though the jury had already unanimously rejected that strategy and found Hannon guilty of the crimes in this case; and second, because he fundamentally failed to investigate and present the substantial mitigating circumstances available. The United States Supreme Court's analysis and conclusion in Wiggins clearly apply here and mandate the same outcome.
A. "Nice Guy" mitigation
In approving defense counsel's conduct as competent, the majority ignores the United States Supreme Court's Wiggins *1154 analysis and its strict emphasis on counsel's obligation to investigate and prepare, as well as this Court's own case law on the duty to investigate, and instead concludes that "trial counsel's strategy in the instant case of presenting evidence to demonstrate that Hannon did not have the type of character to commit the murders was a tactical method used by trial counsel in an attempt to sway the jury's recommendation in favor of life over death." Majority op. at 1129. Essentially, the majority has written counsel a blank check to do anything counsel chooses without any judicial check on the effectiveness of counsel's "strategy." Hence, the outcome in this case represents another in the long line of appellate cases recognizing the right to competent counsel by its breach. If anything, the conduct of counsel here was even more deficient than that of counsel in Wiggins .
Even a cursory examination of

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1133749. Public record. Not legal advice.