Toney Deron Davis v. State of Florida

Supreme Court of Florida
____________

No. SC12-115
____________

TONEY DERON DAVIS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC13-424
____________

TONEY DERON DAVIS,
Petitioner,

vs.

MICHAEL D. CREWS, etc.,
Respondent.

[April 10, 2014]

PER CURIAM.

Toney Deron Davis appeals an order of the circuit court denying his motion

to vacate his convictions and sentences—including a conviction for first-degree

felony murder and sentence of death—filed under Florida Rule of Criminal
Procedure 3.851. Davis also petitions this Court for a writ of habeas corpus. We

have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed

below, we affirm the postconviction court’s order and deny Davis’s habeas

petition.

I. BACKGROUND

In 1995, Davis was convicted of first-degree felony murder, aggravated

child abuse, and sexual battery, stemming from the murder of two-year-old

Caleasha Cunningham on December 9, 1992. Davis v. State, 703 So. 2d 1055,

1056 (Fla. 1997). On appeal, this Court set out the facts of the crimes:

On the day of the murder, the mother [Gwen Cunningham] left her
child—then in good health and without injuries—in Davis’s care
while she ran an errand.
Thomas Moore, an acquaintance of Davis’s, testified that he
arrived at the apartment at around 12:45 p.m. and that Davis answered
the door with the victim draped over his arm. Moore said Davis told
him Caleasha had choked on a french fry. Moore said that after he
called 911 and returned to the apartment, Davis was giving the victim
mouth-to-mouth resuscitation. Moore went to the hospital with Gwen
Cunningham when she returned.
Davis testified that he had left Caleasha and his friend Moore
alone in the apartment at about 12:30 p.m. and went to make some
phone calls. He said that when he returned, Moore was gone and
Caleasha was having a seizure. He says he administered CPR, put her
in the shower to revive her, and accidentally dropped her in the
shower. Davis said that when Moore returned, he had him call 911.
Davis said that Moore asked him not to mention that he had been with
Caleasha because Moore had marijuana in his possession. Sergeant
Phillips testified that Davis told him he was alone with the child.
A neighbor, Janet Cotton, testified that she heard a child crying
in Cunningham’s apartment and a lot of thumping noises coming from
the apartment at approximately noon. She heard Davis say in a loud,

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 angry voice, “Sit down.” She said that thirty minutes after the
“ruckus” ended, rescue personnel arrived.
The victim was wet, unconscious, and had blood in her mouth
when she was examined in the apartment. She was naked from the
waist down, although she had been fully clothed when left with Davis.
Davis said that the victim was choking on a french fry and he had
been trying to revive Caleasha.
The emergency-room doctor who treated the victim, Doctor
DeNicola, testified that the victim was brought in at around 1:40 p.m.
with bruising, swelling of the brain, and pools of blood in the skull.
Doctor Whitworth, who examined the child at the request of state
child welfare authorities, testified that the injuries indicated vaginal
penetration by a penis, a finger, or an object. The medical examiner,
Doctor Floro, testified that there was no injury to the vaginal area, but
that it could have healed quickly. He said the victim had suffered four
separate blows to the head, causing cerebral hemorrhage. This was
the cause of death.
There was additional bruising, and there was a large collection
of blood at the back of the head which was not consistent with being
accidentally dropped. The child was revived but died shortly
afterward on December 10, 1992.

Id. at 1056-57. At the penalty phase, the State relied on the guilt phase evidence

and Cunningham read a victim impact statement. The defense called Davis’s

parents as mitigation witnesses.

The jury recommended the death penalty by a vote of eleven to one, and

after conducting a hearing in accordance with Spencer v. State, 615 So. 2d 688

(Fla. 1993), the trial court imposed the death penalty. The trial court found two

aggravating factors: (1) the murder was committed during the course of a sexual

battery; and (2) the murder was heinous, atrocious, or cruel (HAC). Based on

Davis’s three prior convictions—which included a crime of violence—the trial

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court rejected the asserted mitigating factors of “no significant prior criminal

history,” “good person,” and “not violent.” The trial court also determined that

Davis’s claim to be a good student was not proven and that his abstention from

smoking and drinking and the circumstantial nature of the case were irrelevant.

The trial court did give “some weight” to the factor of Davis’s background, based

on evidence that Davis was a good child, had musical talent, wrote poetry, and

attended church. Davis, 703 So. 2d at 1057.

Davis raised eight claims on direct appeal: (1) it was error not to follow

Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), and Faretta v. California,

422 U.S. 806 (1975), when Davis moved to discharge counsel; (2) it was error to

deny his motion for a judgment of acquittal; (3) the sexual battery conviction

should be reversed; (4) it was error to admit the victim impact evidence; (5) the

court erred in considering and finding HAC where the jury did not consider that

aggravating factor; (6) it was error to find HAC proven; (7) it was error to find the

aggravating factor that the murder was committed during the course of a sexual

battery; and (8) the death penalty is disproportionate. Davis, 703 So. 2d at 1057-

58. This Court determined that sufficient evidence supported the convictions,

claim five was unpreserved, and that all of Davis’s claims were without merit. Id.

at 1058-61.

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 In May 1999, Davis filed a shell motion for postconviction relief with a

request for leave to amend. Davis filed an amended postconviction motion in May

2004, and in July 2006, Davis filed a “Third Motion, as Amended, to Vacate

Judgments of Conviction and Sentences with Special Request for Leave to Amend

or Supplement.” Davis’s third motion asserted: (1) trial counsel was ineffective for

failing to ensure that Davis received a Nelson hearing, and appellate counsel was

ineffective for failing to raise this issue and ensure a complete record on appeal;

(2) the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United

States, 405 U.S. 150 (1972); (3) trial counsel was ineffective for failing to

investigate whether Gwen Cunningham could have been the source of the blood

found on Davis and at the scene; (4) it was fundamental error to conduct voir dire

prior to administering an oath to the jury; (5) it was fundamental error to conduct a

pretrial conference without Davis being present; (6) trial counsel was ineffective

for failing to sufficiently investigate and present evidence at the penalty phase; (7)

trial counsel was ineffective for failing to conduct an adequate voir dire and

exercise strikes; (8) trial counsel was ineffective for failing to object to improper

evidence and argument, failing to present evidence, and arguing the wrong theory

of defense; (9) Davis was denied a fair trial due to unobjected-to comments made

by the prosecutor about Davis’s defense; (10) Davis was denied a fair trial due to

unobjected-to comments made by the prosecutor that attempted to evoke sympathy

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from the jurors; (11) a previously raised claim that was abandoned in Davis’s third

motion; (12) Davis was denied a reliable sentencing when the jury’s role was

diminished in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985); (13)

Davis was denied a reliable sentencing when the jury’s role was diminished in

violation of Ring v. Arizona, 536 U.S. 584 (2002); and (14) cumulative error

denied Davis a fair trial.

In 2010, the postconviction court conducted an evidentiary hearing. Davis

called two of his first cousins, Felicia Cotman and Latoya Johnson Davis; his trial

attorney, Charlie Adams; Dr. Edward Willey; and retired Detective Michael Earl

Hallam. Davis also testified on his own behalf. In rebuttal, the State called Dr.

Randall Curtis Alexander and the victim’s biological father, Rickey Love.

In 2011, the postconviction court entered an order denying Davis’s motion for

postconviction relief. State v. Davis, No. 16-1992-CF-13193-AXXX-MA (Fla. 4th

Jud. Cir. Dec. 19, 2011) (PC Order).

Davis appeals the postconviction court’s order. Davis contends that the

postconviction court erred by denying his claims that: (1) the State violated Brady

and Giglio; (2) defense counsel was ineffective for failing to present Dr. Willey;

(3) defense counsel was ineffective regarding his choice of defense theory; (4)

defense counsel was ineffective for failing to impeach several witnesses; (5)

defense counsel was ineffective for failing to object to prosecutorial misconduct;

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(6) defense counsel was ineffective for failing to investigate and present witnesses

at the penalty phase; (7) defense counsel was ineffective for failing to object to

comments that denigrated the role of the jury; and (8) cumulative error deprived

Davis of a fair trial. In addition, Davis filed a petition for a writ of habeas corpus,

asserting that appellate counsel provided ineffective assistance by: (1) failing to

challenge comments made by the prosecution; and (2) failing to argue that Davis

was entitled to a Nelson hearing based on two letters written by Davis to the trial

court.

II. MOTION FOR POSTCONVICTION RELIEF

On appeal, Davis contends that because the State violated Brady and Giglio

and because Davis’s trial counsel did not provide effective assistance of counsel as

defined by Strickland v. Washington, 466 U.S. 668 (1984), the postconviction

court should have vacated his convictions and sentences. Claims under Brady,

Giglio, and Strickland each present questions of law and fact. This Court thus

employs a mixed standard of review, deferring to the postconviction court’s factual

findings that are supported by competent, substantial evidence, but reviewing legal

conclusions de novo. Simmons v. State, 105 So. 3d 475, 487, 499 (Fla. 2012). For

the reasons explained below, we affirm the postconviction court’s order.

A. Brady and Giglio Claims

1. Brady Claims

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 Davis contends that the State violated Brady by failing to disclose three

items: (1) a note written by Detective Hallam during his investigation which stated

that Cunningham had told Melissa Taylor, who was an employee of the hospital

where the victim was treated, that a few days before December 9, 1992, the victim

returned from her father’s home with a bump on her head and vaginal bleeding; (2)

a note written by an unknown author stating that employees of Happyland Daycare

had reported that due to asthma and diarrhea the victim had been absent from

daycare since December 3, 1992, and that in late November 1992, both the victim

and her sister had experienced vaginal discharge; and (3) a report titled “Family

Builders Termination Summary,” dated December 22, 1992, stating that

Cunningham had told a Family Builders’ employee that the victim was not in

daycare on December 9, 1992, due to asthma.

Brady requires the State to disclose material information within its

possession or control that is favorable to the defense. To establish a Brady

violation, the defendant has the burden to show that: (1) the evidence was either

exculpatory or impeaching; (2) the evidence was willfully or inadvertently

suppressed by the State; and (3) because the evidence was material, the defendant

was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). To meet the

materiality prong, the defendant must demonstrate a reasonable probability that

had the suppressed evidence been disclosed, the jury would have reached a

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different verdict. Id. at 289. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Way v. State, 760 So. 2d 903, 913 (Fla.

2000).

The postconviction court did not err in denying relief. To satisfy the

materiality prong of Brady, the suppressed information must either be itself

admissible or “lead to admissible substantive or impeachment evidence,” Hurst v.

State, 18 So. 3d 975, 1001 (Fla. 2009), and the admissible evidence must then be

of a nature that it undermines confidence in the jury’s verdict. Davis did not

establish that he was prejudiced by the State’s failure to disclose the notes or the

Family Builders report.

While Taylor’s statement to Detective Hallam does not fit a hearsay

exception, Hallam’s note about Cunningham’s statement to Taylor could be used

as impeachment evidence. The note is evidence of a prior statement that was

inconsistent with Cunningham’s trial testimony that the victim had not bled

vaginally before December 9, 1992. See Fitzpatrick v. State, 900 So. 2d 495, 515

(Fla. 2005) (“Romines’ statements made at the hospital are not hearsay because the

statements were offered in evidence not to prove the truth of the matter asserted,

but merely for impeachment purposes . . . .”). Davis cannot, however, establish

that such impeachment would be material.

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 The defense argued, in part, that there was reasonable doubt about Davis’s

guilt because the victim may not have been the source of the blood found on Davis

and at the apartment and that the victim may have been injured before being left

with Davis on the morning of December 9, 1992. Cunningham testified that when

she left the house on that morning, the victim appeared healthy, the bed was made,

and there was no blood in the bedroom or the bathroom. A prior statement

undermining Cunningham’s testimony thus could have been favorable to the

defense. But even if the jury disregarded Cunningham’s testimony entirely, such

impeachment would not be material. Overwhelming evidence established that the

victim’s fatal injuries must have occurred on December 9, 1992, not several days

before when the victim was visiting her father.

Retired patrol sergeant Lloyd K. Phillips testified that when he arrived at the

scene, he saw “fresh blood” on the bathtub, the toilet seat, and the bed. Paramedic

Raymond Patrick Wade, Jr., testified that upon his arrival—approximately one

minute after the 911 call—the child was “lifeless” and had a small amount of

“blood coming from her vaginal canal.” Evidence technician Richard Coffee

testified that he was called to the crime scene around 2:30 p.m. on December 9,

1992, and that when he arrived, there were blood spots in many locations in the

apartment but not in the diaper that the victim had been wearing earlier in the day.

Coffee described the blood spots in the hallway as “[f]resh red.” Dr. Whitworth

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testified that when he examined the victim around 4:30 or 4:40 p.m. that day, he

saw two “fresh” hemorrhages to the victim’s hymen, which he opined were created

“less than 12 to 18 hours prior to this examination.” Dr. Whitworth similarly

opined that an injury to the victim’s forehead above her right eye was likely

inflicted “less than 30 or 48 hours” before the examination and that an injury to the

left side of the victim’s head and an injury to the victim’s buttock likely were

inflicted no more than twenty-four to forty hours prior to the examination. When

asked about an injury to the victim’s head, Dr. Whitworth explained that the victim

“would have lost consciousness or maybe begin to have seizures or maybe stop

breathing or some combination of those symptoms, but that she would be

obviously neurologically symptomatic almost immediately after injury.” When

asked if the victim’s response to the injury could have been delayed for a period so

that she could eat something, Dr. Whitworth answered, “No.”

In light of this evidence of recent severe injury, any doubt about the veracity

of Cunningham’s testimony about the victim’s health and the state of the apartment

on the morning of December 9, 1992, does not undermine confidence in the jury’s

verdict. Davis thus has not satisfied the third prong of Brady.

As for the note reporting statements made by employees of Happyland

Daycare and the Family Builders report, Davis again did not prove that he was

prejudiced by any failure by the State to disclose those documents. Davis did not

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establish how the items could be admissible evidence or lead to the discovery of

admissible evidence. Neither the “scribbled” notes nor the report could be

presented as substantive evidence because they “cannot be authenticated, the

author is unknown, and there is no indication of when or under what circumstances

[they were] written.” Jones v. State, 998 So. 2d 573, 581-82 (Fla. 2008). The

notes and report perhaps could be used to impeach Cunningham, see Pearce v.

State, 880 So. 2d 561, 570 (Fla. 2004) (holding that where a witness does not

distinctly admit making a prior inconsistent statement, extrinsic evidence of the

prior inconsistent statement may be admitted), but as explained above, the

possibility that Cunningham could be impeached does not undermine confidence in

the jury’s verdict.

2. Giglio Claims

Davis contends that the State violated Giglio by failing to correct false

testimony by witnesses Olivia Williams and Janet Cotton. “By contrast to an

allegation of suppression of evidence under Brady, a Giglio claim is based on the

prosecutor’s knowing presentation at trial of false testimony against the

defendant.” Mordenti v. State, 894 So. 2d 161, 175 (Fla. 2004). A Giglio

violation is demonstrated when: (1) the prosecutor presented or failed to correct

false testimony; (2) the prosecutor knew the testimony was false; and (3) the false

evidence was material. Guzman v. State, 941 So. 2d 1045, 1050 (Fla. 2006). The

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false evidence is deemed material under Giglio if there is any reasonable

possibility that it could have affected the jury’s verdict. Byrd v. State, 14 So. 3d

921, 925 (Fla. 2009). The State has the burden to prove that the false testimony

was not material by demonstrating it was harmless. Id.

In his first Giglio claim, Davis asserts that the State knowingly allowed and

failed to correct false testimony when Williams testified that she spoke with Davis

around 10:30 a.m. on December 9, 1992, but that she did not speak with him again

that day. This Court has held, in the context of a Giglio analysis, that “[a]mbigious

testimony does not constitute false testimony.” Phillips v. State, 608 So. 2d 778,

781 (Fla. 1992) (concluding that informant’s testimony that he was not “a police

agent” was not false because the witness’s statement was “attributable to the

ambiguity of the term ‘agent’ ”). In this case, the postconviction court concluded

that Williams’ deposition testimony was ambiguous and thus did not demonstrate

that her trial testimony was false. The postconviction court did not err in denying

relief. The postconviction court’s factual conclusion that Williams’ testimony was

not false is supported by competent, substantial evidence.

At trial, the defense called Ronald Hezekiah Gordon, Jr., who testified that

on December 9, 1992, Davis came to his apartment around 12:30 p.m., asked to

use the phone, and socialized with Gordon for about twenty minutes. Gordon

explained that after Davis left Gordon’s apartment around 12:50 p.m., Gordon

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received a phone call for Davis. Gordon went to Davis’s apartment around 1:15

p.m. to relay the message, at which time he saw a man running to the phone booth

and Davis holding the victim. The State called Williams in rebuttal. Williams

testified that on December 9, 1992, she was supposed to call Cunningham or Davis

around 9:30 a.m., but she overslept, and instead Davis called her around 10 or

10:30 a.m. When asked if she had “any other contact with this defendant by

telephone at all after 10:30 on that day,” Williams answered that she did not.

Williams explained that she did try to call Davis two more times that day—once

the phone rang without being answered and the other time Cunningham’s neighbor

“Ron” answered.

Davis asserts that Williams’ trial testimony conflicted with her pretrial

deposition about the events of December 9, 1992. In her deposition, Williams

testified that she spoke to Davis on the phone when he called her around 10 or

10:30 a.m., and then when she attempted to call him back, she spoke to Ron once

and another time the phone rang and went unanswered. When asked if she “spoke

with [Davis] only one time,” Williams answered: “That’s when he called me.”

When asked if she had “any contact with Gwen or Toney during the remainder of

the day,” Williams answered: “Gwen. . . . She called me and told me to come to

the hospital, Caleasha was in critical condition.” After stating that she went to the

hospital and “stayed there all night,” Williams added:

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 I stayed [at the hospital] all evening until about—it was pretty
late when I got home, but it was—no, it wasn’t too late because Toney
called me at my apartment from jail. And he called me twice, I think.
First time he called—somebody—he called someone’s home and they
had a three-way hookup and they hooked us up. And I—and that was
the only time I talked to Toney.

Williams stated that during this conversation she accused Davis of hurting the

victim, and he replied, “[S]omebody else did it, there was somebody else at that

apartment, another guy.”

Davis also relies on a memorandum written by prosecutor Stephen V.

Bledsoe. In that memorandum, Bledsoe wrote: “Later in the evening, [Williams]

received a telephone call at her home from the Defendant, who was calling from

the jail. The Defendant told the witness that he did not hurt Cale[a]sha and that

there was another guy at the apartment, that the Defendant had left to make a

telephone call . . . .”

Davis has not proven the first two prongs of Giglio. Both in her deposition

and at trial, Williams appears to have assumed that “day” referred to the daylight

hours of December 9, 1992, rather than the entire twenty-four hour period that was

December 9, 1992. “Day” is an ambiguous term. See Webster’s Third New

International Dictionary 578 (1993) (defining day as “the time of light or interval

between one night and the next: the time between sunrise and sunset or from dawn

to darkness” and as “the period of the earth’s rotation on its axis ordinarily divided

into 24 hours”). Moreover, in her deposition, Williams did not specify how late

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she returned home from the hospital and exactly when she received a call from

Davis. The record thus does not establish whether Davis’s call from jail occurred

late on December 9, 1992, or early on December 10, 1992. Bledsoe’s summary

that the call occurred “[l]ater in the evening” belies Davis’s claim that the State

knew precisely when the call was made. Like “day,” “evening” has multiple

meanings. See Webster’s Third New International Dictionary 787 (1993) (defining

evening as—among other definitions—“the part of the day from noon to midnight”

or “the period from sunset or from the evening meal until bedtime”).

In addition, any failure to clarify Williams’ testimony was harmless.

Testimony about Williams’ second phone conversation with Davis—even if it did

occur on December 9, 1992—would not have bolstered Davis’s credibility. The

jury would still be left with the impression—as explained below—that Davis’s

defense evolved after he had time to contemplate the situation.

Davis did not begin to assert that someone else harmed the victim until after

his conversations with the first responders and his interview with the investigating

detectives. Prior to speaking to Williams, Davis spoke to seven people in six

separate statements about what happened to the victim, without ever asserting that

Moore—or anyone else—was left alone with the victim. First, Moore testified that

when he arrived at the apartment, Davis told him that the child had choked on a

French fry and was having an asthma attack. Second, paramedic Wade testified

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that when he arrived on the scene, Davis told him that the victim was choking.

Third, Officer Phillips testified that once the victim was placed in the rescue unit,

he asked Davis what happened and Davis answered that the victim had choked on

a French fry and that when his friend arrived at the door, he sent his friend to call

911. Fourth, Cunningham testified that when she arrived at the hospital, Davis told

her “the same thing that Mr. Moore had told” her: the victim had choked on a

French fry and had an asthma attack. Fifth, Detective Hallam testified that he

spoke with Davis shortly after arriving at the hospital and that Davis informed him

that “he had given her some French fries for lunch and she had, apparently, choked

. . . and he had attempted to dislodge the French fry and give her CPR, but when

that didn’t work, then he had a friend of his who had arrived later, call 911.” Sixth

and seventh, Detective Hallam testified that he and Detective Hickman interviewed

Davis. During the interview, Davis stated that the victim “choked on a French fry,

he tried to giv[e] her CPR. When that didn’t work, he held her under the shower,

tried to revive her.” Detective Hallam further testified that during the interview,

Davis stated that Moore arrived while Davis was doing CPR and that—only after

the detectives specifically asked about the victim’s head injury—Davis explained

that he accidentally dropped her in the shower. Detective Hickman gave similar

testimony regarding the interview.

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 The timing of Davis’s accusation that Moore harmed the child also does not

explain Davis’s testimony that when he returned to the apartment after leaving the

victim with Moore, “physically [the victim] didn’t look like anything was wrong

with her. She looked normal, except for she wasn’t breathing.” Testimony from

the medical personnel who treated the victim render Davis’s claim that the child

appeared uninjured patently implausible.

And finally, any testimony about the timing of the Moore defense does not

affect the implausibility of Davis’s explanation of why he did not immediately

implicate Moore. Davis implausibly testified that he promised not to inform law

enforcement about Moore’s presence—and thus risked implicating himself in the

murder—because Moore was afraid of being charged with drug possession.

In his second Giglio claim, Davis asserts that a pretrial deposition and a law

enforcement officer’s field notes demonstrate that witness Janet Cotton’s trial

testimony was false. Again, Davis did not demonstrate that the testimony was

false. As a result, the postconviction court did not err in denying relief.

At trial, Cotton testified that on December 9, 1992, her friend Celeste Wiley

came to Cotton’s apartment to wait until around 1:30 p.m. when Wiley’s son got

out of school. Cotton stated that “[a]round 12:00 o’clock” in the afternoon, “[w]e

heard a lot of child crying and a lot of thumping noise” coming from the victim’s

apartment that lasted for about thirty minutes. Cotton described the thumping as

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like “something was hitting the wall.” Cotton further testified that she heard a

“[v]ery loud” and “stern” “male voice” that she recognized as Davis’s, saying “[s]it

down.” Contrary to Davis’s initial brief, Cotton did not testify that the noises

sounded like “someone was being slammed against a wall.” Initial Brief of

Appellant at 34, Davis v. State, No. SC12-115 (Fla. Mar. 18, 2013). Cotton also

did not comment on whether or not Wiley heard a man’s voice.

In a pretrial deposition, Wiley testified that she was visiting her friend

Cotton at Cotton’s apartment—which was next door to the victim’s apartment—at

12 or 12:30 in the afternoon on December 8, 1992, the day before the murder.

Wiley testified that she heard “some noise—beating and crying, whining” and “a

lot of bumping around and banging.” She explained that the crying sounded like it

was coming from a child and that she did not hear an adult voice. In addition,

Davis attached to his postconviction motion a set of handwritten notes by an

unknown author that appear to be questions and answers from an interview with

Wiley. The first question asked Wiley to attempt to recall the events of Tuesday,

December 8, 1992. There is no response noted after this question. The second

question asks if Wiley had “an occasion to visit w/ Ms. Cotton at her apartment on

Seaboard Ave.?” There followed a series of questions and answers regarding

Wiley and Cotton hearing banging and a child crying from another apartment.

Then, on a separate sheet of paper, the following appears: “[Wed, Dec 9] W

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returned to Ms. Cotton’s apt, but after rescue & police had arrived.” Davis did not,

however, call any witness at the evidentiary hearing to authenticate the notes.

This record does not establish that Cotton’s trial testimony was false. Wiley

did not comment on December 9, 1992, in her deposition, and her statement that

she was at Cotton’s apartment on December 8, 1992, does not conflict with

Cotton’s testimony that Wiley was present on December 9, 1992. The

investigative note regarding Wiley’s whereabouts on December 9, 1992, also is not

proof that Cotton’s testimony was false. The note is vague and ambiguous. Even

assuming Wiley is the “W” referenced in the note, the meaning of the note is

unclear. The note states that W “returned” to Cotton’s apartment after the first

responders arrived, but it does not explain the duration of W’s absence. The note

does not exclude the possibility that Wiley could have been at the apartment

around noon, as Cotton testified, left the apartment—perhaps to retrieve her son

from school—and then returned later in the afternoon.

And even if Cotton’s testimony that Wiley was in her apartment on

December 9, 1992, was false, the State’s failure to correct the testimony was

harmless. As set out above, the State presented ample evidence that the victim was

severely beaten on December 9, 1992—regardless of whether she was also beaten

earlier in the week. In light of this evidence, there is no reasonable possibility that

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the portion of Cotton’s testimony about Wiley hearing noises affected the jury’s

guilty verdict or the trial court’s finding of HAC.

B. Ineffective Assistance of Counsel Claims

Davis argues that the postconviction court erred by denying several of his

claims of ineffective assistance of counsel. In order to prevail on a claim of

ineffective assistance of counsel, a defendant must show both that trial counsel’s

performance was deficient and that the deficient performance prejudiced the

defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S.

668 (1984). As to the first prong, the defendant must establish that “counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687. For the second prong,

“Strickland places the burden on the defendant, not the State, to show a ‘reasonable

probability’ that the result would have been different.” Wong v. Belmontes, 558

U.S. 15, 27 (2009) (quoting Strickland, 466 U.S. at 694). Strickland does not

“require a defendant to show ‘that counsel’s deficient conduct more likely than not

altered the outcome’ of his penalty proceeding, but rather that he establish ‘a

probability sufficient to undermine confidence in [that] outcome.’ ” Porter v.

McCollum, 558 U.S. 30, 44 (2009) (quoting Strickland, 466 U.S. at 693-94).

1. Dr. Edward Willey

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 Davis contends that the postconviction court erred in denying his claim that

trial counsel was ineffective for failing to call Dr. Edward Willey as an expert

witness at trial. Davis asserts that Dr. Willey’s conclusion that the victim had not

been sexually battered would have caused the jury to have doubts about whether a

sexual battery occurred. Davis concludes that trial counsel’s decision not to call

Dr. Willey was based solely on a misunderstanding of the law, that the decision

prejudiced him at trial, and that but for counsel’s deficiency, the outcome would

have been different. The postconviction court concluded that Davis proved neither

deficiency nor prejudice. The postconviction court did not err.

At trial, the State presented four witnesses whose testimony tended to

establish that the victim had been sexually battered. Two of the witnesses were

first responders. Both testified that when they arrived at the scene, the victim was

nude from the waist down, and one—a paramedic—added that the victim was

bleeding from the vaginal canal. The other two witnesses were physicians who

examined the victim. Dr. J.M. Whitworth, who at that time was the Executive

Medical Director of Children’s Crisis Center and an Associate Professor of

Pediatrics at the University of Florida, examined the victim at the hospital while

she was still alive. He testified that the victim had two fresh hemorrhages on the

hymen consistent with penetration by an object. The other physician, Dr.

Bonifacio Floro, conducted the autopsy of the victim on December 11, 1992, while

- 22 -
Dr. Whitworth observed. Both physicians testified that by the time of the autopsy,

the injuries to the victim’s hymen had disappeared. The doctors testified that they

would expect this phenomena over the roughly twenty-six hour span of time before

the postmortem examination because in human mucosal areas, such as the mouth

and vagina, there is a rich blood supply that helps injuries to heal quickly.

At the postconviction hearing, trial counsel testified that the decision not to

call Dr. Willey was strategic. Attorney Adams testified that he saw no way to

reconcile Dr. Willey’s contention that no sexual battery had occurred with the

evidence of the victim’s vaginal bleeding and injuries. He also testified that he felt

that Dr. Willey would likely not be viewed as credible on the witness stand.

Dr. Willey also testified at the postconviction hearing. Dr. Willey conceded

that his opinion regarding the victim’s hymen injuries relied on photographs and

not on an in-person examination. Despite being a forensic pathologist, not an

OB/GYN or pediatric physician, Dr. Willey opined that the victim’s injuries were

likely the result of irritation due to poor hygiene. Additionally, Dr. Willey

disagreed with the State’s trial witnesses’ opinions that injuries to the victim’s

hymen could have healed in roughly twenty-six hours, especially since the victim

had been brain dead for a portion of that time. Dr. Willey cited several scholarly

articles regarding the healing time necessary for genital injuries to support this

assertion.

- 23 -
 In rebuttal, the State called Dr. Randall Curtis Alexander, a professor of

pediatrics and the statewide Medical Director for the Child Protection Teams in

Florida. Dr. Alexander testified that he agreed with Dr. Whitworth’s conclusion

that the injuries described were indicative of sexual battery and further opined that

physical injury in a child sexual abuse case is not common. Dr. Alexander also

agreed with Dr. Whitworth’s conclusion that the hemorrhages had healed by the

time the autopsy was conducted. Dr. Alexander explained that “flame-shaped”

hemorrhages—like the ones found on the victim—are very thin superficial injuries

that are not the type to last for several days, especially in a quick healing area of

the body like the vagina.

Dr. Alexander disagreed with Dr. Willey’s opinion that no sexual battery

occurred for several reasons. First, Dr. Alexander explained that the photographs

of the victim were not of sufficient quality to reveal details that would be evident at

an in-person examination. Second, Dr. Alexander distinguished the scholarly

articles relied on by Dr. Willey to show that the injuries could not have healed in

twenty-six hours. Dr. Alexander explained that the articles primarily addressed

lacerations, not superficial hemorrhages. Third, Dr. Alexander criticized Dr.

Willey’s claim that healing would have stopped once the victim was brain dead.

Dr. Alexander testified that healing occurs so long as there is a heartbeat and blood

pressure, or else transplants would not be possible.

- 24 -
 Davis does not argue on appeal that trial counsel erred by not investigating

the medical evidence related to the sexual battery charge or by not consulting

another expert. He argues only that trial counsel was ineffective for not presenting

Dr. Willey. The postconviction court had discretion to credit the State’s experts’

opinions and to also conclude that Dr. Willey would not be a credible witness.

This Court has held that “[s]o long as its decisions are supported by competent,

substantial evidence, this Court will not substitute its judgment for that of the trial

court on questions of fact and, likewise, on the credibility of the witnesses and the

weight to be given to evidence by the trial court.” Windom v. State, 886 So. 2d

915, 921 (Fla. 2004) (quoting Porter v. State, 788 So. 2d 917, 923 (Fla. 2001)).

Here, competent, substantial evidence supports the postconviction court’s

determination that Dr. Willey was not credible. Dr. Willey based his conclusions

on photographs rather than in-person examinations and admitted that he had no

clinical experience in pediatrics, gynecology, or obstetrics. Additionally, the

articles cited by Dr. Willey to argue that the victim’s injuries could not have healed

in twenty-six hours pertained to severe genital lacerations rather than superficial

hemorrhages. Given this record, the postconviction court did not err in denying

relief.

2. Theory of Defense

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 Davis argues that the postconviction court erred by denying his claim that

trial counsel was ineffective for failing to present—as Davis’s primary defense—

the theory that Moore was responsible for the victim’s death. The postconviction

court correctly concluded that this claim was untimely and without merit.

In May 1999, Davis filed a shell motion for postconviction relief, which

included general statements of law regarding counsel’s obligations, but did not

challenge the particular defense strategy employed by attorney Adams. Despite

filing an amended motion in May 2004, Davis did not amend his postconviction

motion to include a claim asserting that trial counsel performed ineffectively by

having argued an accidental death theory until July 2006. Despite having roughly

five years between the filing of Davis’s initial motion and Davis’s amended

motion, postconviction defense counsel did not attempt to add the claim until 2006.

In light of the lengthy opportunity that postconviction counsel had to investigate

Davis’s case and amend the postconviction motion, the postconviction court did

not abuse its discretion by determining that Davis’s claim about defense counsel’s

theory was untimely. See, e.g., Huff v. State, 762 So. 2d 476, 481-82 (Fla. 2000)

(concluding postconviction court did not abuse its discretion by denying an

amendment that raised new issues where Huff had “been given ample opportunities

in the subsequent years to prepare and amend his rule 3.850 motion”).

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 Davis’s claim also fails on the merits. Attorney Adams made a reasonable

strategic decision to argue a reasonable doubt defense rather than arguing that

Moore committed the crimes.

At the postconviction evidentiary hearing, attorney Adams testified that

when preparing for trial, he thought it would be a “problem” for Davis to testify

and assert that Moore harmed the victim because that testimony would “create[]

inconsistencies” with Davis’s initial statements to law enforcement officers.

Adams testified that he advised Davis not to testify because he would be cross-

examined about those inconsistencies. The trial record confirms that Adams made

a tactical decision not to raise the Moore defense. After the defense rested its case

and the State called Williams as a rebuttal witness, the trial court gave attorney

Adams an opportunity to make a record about Davis’s decision not to testify. At

that point, a discussion between the trial court, Adams, and Davis ensued. Davis

asserted that he wished to testify and that he had additional questions that he

wanted Adams to ask witnesses Moore and Williams. Davis explained that Adams

“wants one defense, and I want another.” Attorney Adams, in turn, stated that he

had “tried to advise” his client that he makes “certain individual decisions” based

on his experience in the courtroom and that there are “rules of procedure and the

rules of evidence” to consider. Adams further stated: “I’m not going to ask every

question that a client gives me, it’s not in my plans, not my theory of the case.”

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Ultimately, Adams reopened the case, called Moore as a witness, and asked the

questions proffered on the record by Davis. Davis then testified, which was, as

Adams described the decision, “totally against my advice as his attorney.”

Attorney Adams’ decision to avoid raising the Moore defense was

reasonable. This Court has held that trial counsel acts reasonably by deciding not

to raise an incredible defense, see, e.g., Hutchinson v. State, 17 So. 3d 696, 701-02

(Fla. 2009); Dailey v. State, 965 So. 2d 38, 47 (Fla. 2007), and in this case, the

totality of the circumstances shows that trial counsel had reason to believe that

Davis would not make a credible witness.

Trial counsel correctly concluded that if Davis took the stand, he would be

cross-examined about his prior statements. See Evans v. State, 838 So. 2d 1090,

1095 (Fla. 2002) (“Evans took the stand in his own defense, and by doing so, he

placed his credibility at issue. Accordingly, the prosecution was entitled to

highlight inconsistencies between Evans’ testimony and other evidence in the case

and to expose contradictions and improbabilities in Evans’ version of events.”).

Moreover, the record supports trial counsel’s determination that such cross-

examination would be harmful to the defense. As set out above, the State

presented evidence establishing that on December 9, 1992, Davis spoke to seven

people about what happened to the victim—without telling any of them that Moore

was left alone with the child. All of these statements occurred before Davis told

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Williams that “somebody else” harmed the victim. In addition, Davis’s testimony

that the victim “didn’t look like anything was wrong with her” was not consistent

with the first responders’ descriptions of the victim’s condition, and Davis’s

explanation for not immediately disclosing Moore’s involvement was incredulous.

Given this record, it was reasonable for attorney Adams to conclude that the

jury would not believe Davis’s claim that Moore caused the victim’s injuries. To

the contrary, the evidence created the impression that Davis manufactured his

defense of blaming Moore as the investigation progressed. Because attorney

Adams made a reasonable strategic decision not to present the Moore defense, the

postconviction court did not err in denying Davis’s claim.

3. Cross-Examination

Davis contends that his trial counsel insufficiently cross-examined witnesses

Cotton, Williams, Cunningham, and Moore. The postconviction court did not err

in denying relief on these claims.

First, Davis asserts that because Cotton’s trial testimony differed from what

she told Detective C.L. Conn during the murder investigation, trial counsel should

have attempted to impeach Cotton about what time she heard noises on December

9, 1992; whether she heard a male voice that she knew to be Davis’s; whether she

was concerned about the noises she heard; and whether her friend Wiley was in the

- 29 -
apartment that day. Davis has failed to show that trial counsel could have

impeached Cotton on these points.

Cotton testified at trial that on December 9, 1992, she began to hear a child

crying at around 12 in the afternoon and that she heard a male voice, which she

recognized as Davis’s voice, say “[s]it down.” In her deposition, Detective Conn

testified that Cotton had stated that she heard “a male voice say sit down”—

without specifying who the voice belonged to—and a child crying “sometime

between 11:00 and noon, she wasn’t specific on the time.” The fact that Detective

Conn’s recollection of Cotton’s answers was less specific than Cotton’s trial

testimony does not make the deposition and trial testimony inconsistent. Thus,

Davis did not demonstrate that trial counsel—through additional cross-examination

of Cotton or by calling Detective Conn—could have impeached witness Cotton

about the man’s voice and the timing of the child’s crying.

Davis also fails to demonstrate an inconsistency regarding Cotton’s reaction

to the man’s voice and the crying child. At trial, Cotton testified that it was not

unusual for her to hear an adult speaking to the children next door. In her

deposition, Detective Conn stated that after hearing the child crying and the male

voice, Cotton “didn’t think anything else of it.” Based on this record, Davis did

not demonstrate that Cotton’s trial testimony expressed greater concern than

Cotton expressed to Detective Conn. Thus, Davis again failed to demonstrate that

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defense counsel could have impeached Cotton by cross-examining her about her

statements to Detective Conn or by calling Detective Conn to testify about her

interview with Cotton.

As for whether Wiley was at Cotton’s apartment on December 9, 1992,

Davis has not established how defense counsel could have impeached Cotton on

this point. Davis did not call any witness at the evidentiary hearing who rebutted

Cotton’s claim that Wiley was in the apartment on December 9, 1992, or who

could explain the meaning of the unauthenticated investigative note that may have

been about Wiley. Wiley’s deposition is silent regarding December 9, 1992, and

Detective Conn’s deposition does not discuss Wiley. Accordingly, Davis has not

shown that defense counsel erred by not attempting to impeach Cotton on the

subject of the timing of Wiley’s visit on December 9, 1992.

Second, Davis asserts that defense counsel should have used Williams’

deposition to impeach her testimony that she spoke with Davis on the phone only

once on December 9, 1992. This claim is without merit. As discussed above,

Williams’ deposition does not establish that she and Davis spoke twice on

December 9, 1992. Because the deposition and trial testimony are not inconsistent,

the deposition could not have been used as a prior inconsistent statement to

impeach Williams under section 90.801(2)(a), Florida Statutes (1995). And while

defense counsel could have called Williams as a defense witness, defense counsel

- 31 -
made a reasonable strategic decision not to raise the Moore defense. Accordingly,

Davis has not proven that trial counsel was deficient. See Strickland, 466 U.S. at

689 (“[T]he defendant must overcome the presumption that, under the

circumstances, the challenged action “might be considered sound trial strategy.’ ”

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))).

Third, Davis contends that defense counsel should have asked Cunningham

if Davis made statements to her on the day of his arrest, or shortly thereafter, in

which he blamed Moore for the victim’s injuries. Davis asserts that a State

discovery exhibit outlining Cunningham’s likely testimony establishes that trial

counsel should have known that such testimony could be elicited from

Cunningham. Again, this claim is without merit because defense counsel made a

reasonable strategic decision not to raise the Moore defense. See Strickland, 466

U.S. at 689.

Fourth, Davis asserts that trial counsel was ineffective for not cross-

examining Moore regarding whether, prior to knocking on the door of the

apartment, Moore saw Davis administering CPR to the victim. This claim is

conclusively refuted by the record. After initially resting, attorney Adams—at

Davis’s request—reopened the defense’s case and called Moore. At that time,

defense counsel did question Moore “as to when and how Moore was able to

witness Davis giving the victim CPR prior to calling 911, and why this fact was

- 32 -
never mentioned in his previous recitation of [the] event.” Initial Brief of

Appellant at 68, Davis v. State, No. SC12-115 (Fla. Mar. 18, 2013). Davis offers

no reason why it was essential for trial counsel to raise this issue during cross-

examination rather than later in the trial when Moore was called as a defense

witness. Accordingly, Davis has failed to prove that trial counsel’s performance

was deficient.

4. Prosecutorial Misconduct

Davis contends that the postconviction court erred in denying his claim that

trial counsel was ineffective for failing to object to misconduct by the prosecution.

Davis is not entitled to relief. Davis has not demonstrated deficiency as to trial

counsel’s failure to object to the prosecutor’s arguments based on Williams’

testimony or the prosecutor’s comments about the Moore defense. As for the

prosecutor’s brief appeal to the jurors’ emotions, Davis has not demonstrated that

he was prejudiced by trial counsel’s lack of objection.

On appeal, Davis contends that trial counsel should have objected to the

prosecutor’s reliance on Williams’ false testimony. In addition, Davis contends

that trial counsel should have objected to a question and several arguments

regarding the Moore defense. Specifically, during cross-examination, the

prosecutor asked Davis: “And now you come into this courtroom and you tell the

members of this jury for the very first time that Thomas Moore must have

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committed this very brutal crime?” And then on several occasions during closing

argument, the prosecutor argued that Davis’s initial statements regarding what

happened to the victim differed from his trial testimony given “two-and-half years”

later. The prosecutor’s arguments and question were not objectionable.

And as discussed above, Davis has not demonstrated that Williams’

testimony was false. Moreover, Davis does not contend that the prosecutor

misrepresented Williams’ testimony during closing arguments. “The proper

exercise of closing argument is to review the evidence.” Bertolotti v. State, 476

So. 2d 130, 134 (Fla. 1985). As a result, Davis has not established that trial

counsel erred by not objecting to the prosecutor’s arguments based on Williams’

testimony.

Regarding the prosecutor’s comments about the timing of the Moore

defense, Davis relies on Davis v. Zant, 36 F.3d 1538 (11th Cir. 1994), and Jackson

v. State, 933 So. 2d 1180 (Fla. 4th DCA 2006). In Zant, the prosecutor responded

to the defendant’s statement that codefendant Underwood had confessed by

announcing to the jury that the defendant’s statement was “not true”—when it

was—and argued that the defendant’s testimony that Underwood was guilty was

the “first time in living memory” that the defendant had told that defense to

anyone. 36 F.3d at 1546-47. The prosecutor also described the defendant’s

defense as “last minute stuff” and a “first time defense,” and suggested to the jury

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that defense counsel did not give an opening statement setting out defenses

because “[t]hey hadn’t thought them up yet.” Id. at 1547-48. The Eleventh Circuit

Court of Appeals reasoned that because the State had known about the defendant’s

theory for approximately six months before trial, the comments were error. The

Eleventh Circuit stated: “Little time and no discussion is necessary to conclude that

it is improper for a prosecutor to use misstatements and falsehoods.” Id. at 1548.

In Jackson, the prosecutor repeatedly questioned the defendant about why he

had not raised his chain-of-custody defense prior to trial:

MR. WELLS: You were arrested May fourteenth, two
thousand four, weren’t you?
DANNY JACKSON: Yes, sir.
MR. WELLS: This is the first time you’re claiming that, uh,
the [eyeglasses] case that was, uh, seized, uh, is not your case. Isn’t
that true?
DANNY JACKSON: I never claimed the glass case—
MR. WELLS: You’re saying you never saw that glass case
before, it’s not yours.
DANNY JACKSON: That one is not mine.
MR. WELLS: Are you saying there’s a, a different case that
you had?
DANNY JACKSON: The, the case that was in my pocket was
a maroon—
MR. WELLS: Is it—
DANNY JACKSON: —case, it was almost brand new.
MR. WELLS: Alright, so you’re talking about this brand new
maroon case, uh, and this is the first time you, you’re claiming that
that case that was seized is not yours. Isn’t that true?
DANNY JACKSON: The, the question was never brought to
my attention before.
MR. WELLS: Well, this case has been pending since May
fourteenth, two thousand four.
DANNY JACKSON: Yes, sir.

- 35 -
 MR. WELLS: Okay. You’ve had an attorney, uh, representing
you that, uh, close to that time through today, haven’t you?
DANNY JACKSON: I’ve had two.
MR. WELLS: Okay, you’ve had two attorneys and this is the
first time on the eve of trial that you’re now raising this issue about
your glass case.

Jackson, 933 So. 2d at 1181. The prosecutor then addressed the newness of

Jackson’s defense several times in closing, stating in part:

You think that the defense attorney would, would like to cross
examine the witness about, uh, where the evidence was, how he came
about to have the glasses case. I submit to you that that defendant just
made it up right before he decided to testify because if it
happ[ened]—it was an issue before he came into court today, it would
have been raised, it would have been raised by one of his two prior
attorneys and it would have been raised at some point prior to this, but
no. It was raised at the eleventh hour right before he realized he’s
getting ready to go in flames, uh, he changed his test[imony]—well,
he decided to testify to a set of facts, uh, and, and put the officer’s
credibility at issue.
Id. at 1182. The Fourth District Court of Appeal determined that the prosecutor’s

questioning and argument were improper because they erroneously suggested to

the jury that the defendant had a burden to raise a defense before trial. Id. at 1183.

Davis misreads Zant and Jackson to stand for the proposition that the State

may never comment on the timing of a defendant’s asserted defense. Rather than

curtailing a prosecutor’s discretion to make arguments based on the evidence

presented at trial, Zant and Jackson instead addressed claims that a prosecutor

intentionally misrepresented the facts of the case or mislead the jury regarding the

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legal issue of a defendant’s lack of burden of proof in a criminal trial. Davis

cannot establish that such egregious misconduct occurred in his case.

Unlike the prosecutors in Zant and Jackson, the prosecutor in Davis’s case

did not intentionally misrepresent facts known to the prosecution or suggest that

Davis had violated a procedural rule by not presenting his defense before trial. The

prosecutor also did not suggest to the jury that Davis had never raised the defense

to anyone at any time. Instead, the prosecutor commented on the fact that Davis’s

testimony was not consistent with the statements he had made two-and-a-half years

prior and that before Davis took the stand, the defense had not presented to the jury

any evidence or argument supporting the theory that Moore harmed the victim. By

deciding to testify and changing the defense theory mid-trial, Davis put his

credibility at issue and opened the door to the prosecutor’s accurate observation

that Davis had not previously raised the Moore defense during trial. Once Davis

testified on direct examination that Moore committed the charged offenses and

about why Davis did not immediately implicate Moore, the prosecutor was entitled

to cross-examine Davis about the timing of his allegations, Evans, 838 So. 2d at

1095, and to use closing argument to highlight the inconsistencies and weaknesses

in Davis’s testimony, Bertolotti, 476 So. 2d at 134.

Because the prosecutor’s question was not improper, defense counsel cannot

be ineffective for failing to object to the question. See Darling v. State, 966 So. 2d

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366, 383 (Fla. 2007) (holding counsel was not ineffective for failing to raise a

meritless objection).

Next, Davis contends that trial counsel should have objected to the following

statement during the State’s penalty phase closing argument:

There’s nothing, Ladies and Gentlemen, that you do today
that’s going to ease the pain of the mother, or her children, Ashley and
Juan. They’re going to live with that. But one day Ashley and Juan
are going to grow up and they’re going to want to know what
happened to Caleasha, and they’re going to know what justice was
done.

This Court and the Third District Court of Appeal have concluded that

similar closing arguments were improper attempts to elicit the jury’s sympathy.

See, e.g., Johnson v. State, 442 So. 2d 185, 188 (Fla. 1983) (“Another family,

perhaps you haven’t become closely associated with, that is the [victim’s] family,

will be facing this holiday season one short.”); Edwards v. State, 428 So. 2d 357,

359 (Fla. 3d DCA 1983) (“I ask you for justice both on behalf of myself and the

people of the State of Florida, also on behalf of [victim’s] wife and children.”).

Given these precedents, Davis’s trial counsel would have had a legal basis to

object to the argument that the victim’s siblings would want to know what justice

was imposed for the victim’s murder.

Davis has not, however, demonstrated that he was prejudiced by trial

counsel’s lack of objection. In Johnson, this Court concluded that the preserved

objection to the argument alluding to the victim’s family did not require reversal

- 38 -
where it was a “single comment made at the sentencing portion of the trial in

response to the testimony of the defendant’s relatives in his behalf.” 442 So. 2d at

188; see also Hudson v. State, 992 So. 2d 96, 113 (Fla. 2008) (“We do not consider

this single isolated reference to the mental anguish of Peller’s family ‘so

prejudicial as to taint the jury’s recommended sentence’ and therefore rise to the

level of fundamental error.”) (quoting Walls v. State, 926 So. 2d 1156, 1176 (Fla.

2006)). Here too, the reference to the victim’s family was an isolated comment.

The prosecutor did not dwell on the victim’s family but primarily focused the

closing argument on the question of whether the death sentence was appropriate in

light of the circumstances of the offense and the lack of mitigating evidence.

Moreover, the emotional appeal expressed by this comment was minimal.

The prosecutor argued that someday the siblings will wonder “what justice” was

done. This comment can be read to suggest that either a life or a death

recommendation would constitute justice. Cf. Fennie v. State, 855 So. 2d 597, 610

(Fla. 2003) (concluding that prosecutor’s comments did not violate preclusion

against arguments encouraging jurors to “do their duty” or to “send a message”

where there was “no evidence that the prosecutor expressly exhorted the jury to

return a verdict of death”). And finally, the trial court did not express sympathy

for the victim’s family in reaching its sentencing decision.

- 39 -
 Given the ambiguous nature of the isolated comment, any impropriety in the

argument does not undermine confidence in the jury’s recommendation or the

sentence. As a result, the postconviction court did not err by denying relief on this

claim.

5. Mitigation

Davis argues on appeal that the postconviction court erred by denying

several portions of his claim relating to the presentation of mitigation. Davis

contends that trial counsel erred by failing to call family members such as Felicia

Cotman and Latoya Johnson Davis to testify about Davis’s childhood, failing to

present mental health expert Dr. Harry Krop, and by arguing a “non-violence” or

“nice-guy” defense theory. Initial Brief of Appellant at 84, 90, Davis v. State, No.

SC12-115 (Fla. Mar. 18, 2013). The postconviction court did not err in rejecting

Davis’s argument.

a. Felicia Cotman and Latoya Johnson Davis

At the penalty phase, defense counsel called Davis’s parents, Clarice Lavern

Davis and Alvin P. Johnson. Clarice testified that although she and Davis’s father

never married, they raised Davis together and Davis had a normal childhood in

Richmond, Virginia. She explained that Davis was an only child—born when she

was eighteen—and that both she and Davis’s father worked outside the home when

Davis was a child. Clarice testified that Davis sometimes skipped school but was

- 40 -
otherwise a good student. She further testified that Davis attended church, enjoyed

sports, had a talent for writing songs and poetry, and performed his songs. She

stated that Davis got along well with everyone, had many friends, abstained from

drugs, and cared for his children. Alvin testified that he initially helped provide a

stable home for his son in Virginia, that Davis lived with him in Florida after

leaving Clarice’s home, and that he never had any trouble with Davis. Alvin stated

that Davis did not use drugs and that everyone in the family loved him.

In his postconviction motion, Davis alleged that trial counsel should have

called additional relatives during the penalty phase who could have testified to the

true circumstances of his childhood and thereby dispelled the impression that

Davis had been given every opportunity to grow up to be a law-abiding citizen. In

support of this allegation, Davis called two of his first cousins to testify at the

postconviction evidentiary hearing.

Felicia Cotman testified that as children, she and Davis lived about fifteen

minutes apart and often stayed at each other’s homes on the weekends. She stated

that Davis’s father worked all week as a truck driver and that his mother

sometimes worked, resulting in Davis being left alone frequently. Cotman

described Davis as a creative but rambunctious and spoiled child, who sometimes

seemed sad, but who did not drink or use drugs. Cotman described Davis’s

grandmother as a nurturing figure but explained that his parents “part[ied]” a lot—

- 41 -
including using marijuana and alcohol—even when Davis was in the house.

Cotman testified that Davis’s parents eventually separated and that for a while after

the separation, Davis lived with his mother and her boyfriend Mike. Although she

did not personally witness any abuse, Cotman heard that Mike physically abused

Davis’s mother during the time that Davis lived with them. Cotman further

testified that after Davis’s trial, his father died from alcohol-related causes.

Cotman was contacted by an investigator after Davis’s conviction and would have

been willing to testify at the penalty phase if asked.

Latoya Johnson Davis gave similar testimony. Latoya explained that she

spent much of her childhood at her grandmother’s house and that Davis also

frequently stayed with this grandmother and attended church with his extended

family. She described Davis as a spoiled, fun person who loved music and who

was like a good older brother to her. Latoya testified that Davis was close to his

parents, even though they worked “all the time” and left Davis “mainly to fend for

himself.” Latoya stated that Davis’s parents often had parties where alcohol and

marijuana were used and that Davis’s father, a Vietnam veteran, died from alcohol-

related issues. Latoya testified that Davis was “devastated” when his parents broke

up when he was a teenager and that she had heard that his mother’s subsequent

boyfriend physically abused her when Davis was living with the couple. Latoya

- 42 -
explained that she was contacted by an investigator after Davis’s conviction and

would have been willing to travel to Florida to testify on Davis’s behalf.

Davis failed to establish that trial counsel’s investigation was deficient. This

is not a case in which defense counsel failed to investigate potential penalty phase

witnesses. Both cousins testified that they were contacted by a defense

investigator. While Davis contends that trial counsel erred by not contacting the

cousins until after Davis’s conviction, this allegation of error—standing alone—is

insufficient to establish deficiency. These witnesses were relevant to the penalty

phase, not the guilt phase.

Davis also failed to establish that he was prejudiced by trial counsel’s

decision not to call Davis’s cousins. The jury was aware that Davis’s young

parents worked while he was a child, that they eventually separated, and that Davis

was generally a well-behaved child with musical talent. Thus, Davis’s cousins

would have added only two new aspects to the mitigation presentation: (1) Davis’s

parents hosted parties involving alcohol and marijuana when Davis was a child;

and (2) when he was a teenager, Davis may have observed his mother being

physically abused. Davis had not demonstrated that his cousins’ testimony

undermines confidence in the jury’s sentencing recommendation or the trial court’s

decision to follow that recommendation. It is not plausible that the evidence about

the parties that Davis’s parents hosted or speculation that Davis may have observed

- 43 -
his mother being abused would have caused the jury to find significantly more

mitigation or would have caused the trial court to give more than “some weight” to

the factor of Davis’s background. Davis, 703 So. 2d at 1057.

b. Dr. Harry Krop

Next, the postconviction court did not err in denying the portion of Davis’s

ineffective assistance of counsel claim related to Dr. Krop. Attorney Adams

testified at the evidentiary hearing that early in the investigation of Davis’s case,

Adams consulted clinical psychologist Dr. Krop. He asked Dr. Krop to evaluate

Davis initially for any competency or sanity issues and later for mitigation

purposes. Adams explained that he decided not to call Dr. Krop due to concern

that the State would ask Dr. Krop about his psychosexual evaluation of Davis and

about Davis’s behavior while incarcerated. Attorney Adams’ decision not to call

Dr. Krop is also recorded in the trial transcript. Attorney Adams informed the trial

court that “after what Dr. Krop told me and we had a discussion, I decided not to

use him.”

The record and this Court’s precedent establish that defense counsel’s

strategic decision was reasonable. In his pretrial deposition, Dr. Krop testified that

he examined Davis on November 24, 1993, and on May 31, 1995. Dr. Krop

reported that Davis was competent, showed no evidence of insanity, suffered from

“slight depression” but no other mental illnesses or personality disorders, tested in

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the low average to average range of intelligence, and demonstrated no cognitive

deficits. Although Dr. Krop concluded that without more information, he “would

not be able to comment with regard to any psychosexual disorder,” Dr. Krop

testified that he was aware of two past allegations of sexual misconduct with a

minor and that Davis reported that he had been ordered to participate in

psychosexual counseling as a condition of a prior offense. Similarly, Dr. Krop

stated that he would need more information before he could offer any opinion

about Davis’s behavior as an inmate but noted that Davis reported that he had been

twice accused of assault and battery on a law enforcement officer while

incarcerated. Overall, Dr. Krop explained that if he were called to testify during

the penalty phase, he would inform the jury that Davis “does not suffer from any

kind of mental illness” or “any kind of significant psychological problem” and that

because Davis denied committing the murder, sexual battery, and child abuse, Dr.

Krop would not be able to “comment on any kind of mental state at the time of the

offense.”

The instant claim is similar to an issue raised in Everett v. State, 54 So. 3d

464 (Fla. 2010). In that case, this Court concluded that defense counsel made a

reasonable strategic decision not to call a mental health expert who had opined that

“Everett demonstrated no signs of mental retardation or of a major mental illness”

because trial counsel could reasonably determine that such “testimony was not

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favorable to Everett’s case.” Id. at 482; see also Davis v. State, 928 So. 2d 1089,

1111-12 (Fla. 2005) (concluding that trial counsel acted reasonably by not calling

mental health expert who would have testified that defendant was violent but

lacked any psychosis or any major mental problems). In Davis’s case, Dr. Krop

did not conclude that Davis suffered from any emotional, psychological, or

neurological condition that could be argued to be a mitigating factor relevant to his

behavior at the time of the offenses. Dr. Krop’s deposition demonstrates that Dr.

Krop would not have provided helpful testimony. As a result, Davis has not

proven that trial counsel erred by not calling Dr. Krop.

c. “Non-Violence” or “Nice-Guy” Defense Theory

In the third part of this appellate claim, Davis asserts that trial counsel erred

by arguing “ ‘non-violence’ as a recurring mitigation theme” and presenting

evidence that Davis was a “nice guy” because this theme allowed the State to

highlight the violent nature of the crimes for which he had been convicted and to

question defense witnesses about Davis’s criminal history. Initial Brief of

Appellant at 84, 90, Davis v. State, No. SC12-115 (Fla. Mar. 18, 2013).

Davis’s suggestion that defense counsel could have prevented the State from

arguing during the penalty phase that the murder and sexual battery were violent

crimes is without merit. These arguments were properly directed at the

applicability of the HAC aggravating factor, and thus admissible under section

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921.141(5)(h), Florida Statutes (1995). Counsel cannot be deemed ineffective for

failing to make a meritless objection. Darling, 966 So. 2d at 383. As for Davis’s

past criminal offenses, the trial court and the jury heard that Davis had been

convicted of three felonies because Davis—against trial counsel’s advice—decided

to testify during the guilt phase. Once Davis took the stand, the State was entitled

to inquire about his criminal convictions, as those convictions were relevant to his

credibility. See § 90.610(1), Fla. Stat. (1995). Because Davis testified against

counsel’s advice, it was not defense counsel’s error that resulted in the admission

of evidence of Davis’s convictions.

6. Jury’s Role

In his postconviction motion, Davis asserted that Florida’s standard jury

instructions violate Caldwell v. Mississippi, 472 U.S. 320 (1985). Unlike in his

appellate brief, Davis did not argue that trial counsel was ineffective for failing to

object to one of the trial court’s guilt phase jury instructions and to a portion of the

prosecutor’s closing argument. As a result, Davis’s ineffective assistance of

counsel claim is not preserved for review. See Hutchinson v. State, 17 So. 3d 696,

703 (Fla. 2009).

In addition, Davis’s ineffective assistance of counsel claim is without merit.

Trial counsel cannot be deficient for not objecting to the instruction and the

arguments because they were not improper. Davis challenges the trial court’s guilt

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phase jury instruction: “Your duty is to determine if the defendant is guilty or not

guilty in accord with the law. It is the Judge’s job to determine what a proper

sentence would be if the defendant is guilty.” In Combs v. State, 525 So. 2d 853,

856 (Fla. 1988), this Court determined that a substantially similar instruction that

informed the jury that the “final decision as to what punishment should be imposed

rests solely with the judge of this court” did not violate Caldwell. Similarly, Davis

has not shown that the prosecutor improperly disparaged the role of the jury.

Davis challenges the prosecutor’s comment: “And let me emphasize to you, again,

yours will be an advisory sentence, a recommendation to the Court, because the

final decision rests with His Honor, Judge Davis, in this case.” But in Gonzalez v.

State, 990 So. 2d 1017, 1027 (Fla. 2008), this Court concluded that trial counsel

did not err by not objecting when “the prosecutor properly stated the role of the

jury as advisory as stated in the standard jury instructions.”

C. Cumulative Error

Davis is not entitled to relief as a result of cumulative error. Regarding the

guilt phase, Davis did not demonstrate that he was prejudiced by the State’s non-

disclosure of documents that may have been used to impeach witness Cunningham.

Similarly, Davis demonstrated only one potential penalty phase error—trial

counsel had a legal basis for objecting to the prosecutor’s closing argument

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regarding the victim’s siblings—which did not undermine confidence in Davis’s

sentences.

III. PETITION FOR WRIT OF HABEAS CORPUS

A. Ineffective Appellate Assistance Regarding Prosecutor’s Comments

In his first habeas claim, Davis argues that his appellate counsel was

ineffective for failing to challenge on direct appeal a question and several

arguments made by the prosecution. To preserve such a claim for appeal, trial

counsel must contemporaneously object to the prosecutor’s comments. Merck v.

State, 975 So. 2d 1054, 1061 (Fla. 2007). If trial counsel does not so object,

“[u]nobjected-to comments are grounds for reversal only if they rise to the level of

fundamental error. The Court considers the cumulative effect of objected-to and

unobjected-to comments when reviewing whether a defendant received a fair trial.”

Id. (citing Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000)).

In this case, trial counsel did not object to the question or closing arguments

identified in Davis’s habeas petition. Thus, a claim on direct appeal based on those

comments would succeed only if the improper comments resulted in fundamental

error. See Downs v. Moore, 801 So. 2d 906, 910 (Fla. 2001). Fundamental error

is the type of error that “reaches down into the validity of the trial itself to the

extent that a verdict of guilty or jury recommendation of death could not have been

obtained without the assistance of the alleged error.” Card v. State, 803 So. 2d

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613, 622 (Fla. 2001). The few comments in this case that were improper did not

create fundamental error. As a result, Davis’s habeas claim is without merit.

1. Guilt Phase Question and Arguments

a. Great Big Conspiracy

On direct examination, Davis testified that he refused to sign a statement

during his interview with Detectives Hallam and Hickson of the Jacksonville

Sheriff’s Office because the detectives were “not going to write down what [he

was] saying, and [they were] writing down things [he was] actually not saying.”

Davis further testified that after he and the detectives disagreed about who was the

biological father of the victim, Davis “became skeptical about what Detective

Hickson was saying.” The State then cross-examined Davis. As part of that cross-

examination, the prosecutor asked: “This sounds like a great big conspiracy. Do

you have any idea where those detectives got that information?”

Relying on Wilson v. State, 880 So. 2d 1287 (Fla. 3d DCA 2004), Davis

asserts that appellate counsel should have challenged the prosecutor’s statement

that Davis’s testimony “sounds like a great big conspiracy.” In Wilson, the Third

District Court of Appeal concluded that it was error for a prosecutor to ask the

defendant if the State’s witnesses were conspiring against the defendant, reasoning

that an attorney may not ask a witness if another witness was lying and that the

term “conspiring” is functionally equivalent to “lying.” 880 So. 2d at 1289.

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 Davis’s case is distinguishable from Wilson. Unlike the defendant in

Wilson, Davis broached the topic of the credibility of the State’s witnesses. Davis

testified on direct examination that the detectives did not accurately record the

interview and that he questioned Detective Hickson’s veracity. Once a defendant

chooses to take the stand and put his credibility at issue, the prosecution is entitled

to “expose contradictions and improbabilities in [the defendant’s] version of

events.” Evans, 838 So. 2d at 1095. As a result, once Davis raised the issue of his

opinion about the detectives’ credibility on direct examination, the State was

entitled to ask Davis to further explain his version of the interview with the

detectives and his confusion regarding the victim’s parentage. Davis’s objection to

the State’s question would be found to be without merit. As a result, Davis has not

demonstrated that appellate counsel erred by not raising the issue on appeal. See

Rutherford v. Moore, 774 So. 2d 637, 649 (Fla. 2000) (“Appellate counsel cannot

be considered ineffective for failing to raise issues on appeal that would have been

found to be meritless.”).

b. Burden Shifting

Davis asserts that on several occasions, the prosecutor improperly shifted the

burden of proof by suggesting to the jury that Davis had a burden prior to trial to

raise his defense that Moore committed the charged offenses. As discussed above

in the context of Davis’s related postconviction claim about the timing of the

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Moore defense, Davis misreads Zant and Jackson. Rather than curtailing a

prosecutor’s discretion to make arguments based on the evidence presented at trial,

Zant and Jackson instead addressed claims that a prosecutor intentionally

misrepresented the facts of the case or misled the jury regarding the legal issue of a

defendant’s lack of burden of proof in a criminal trial.

Neither the question and arguments challenged in Davis’s postconviction

appeal nor the additional comments identified in his habeas petition constitute such

prosecutorial misconduct. Based on the evidence presented at trial, the prosecutor

argued that the defense changed its theory mid-trial and that Davis’s testimony

about Moore’s alleged culpability was implausible. Once Davis testified on direct

examination that Moore committed the charged offenses and about why he did not

immediately implicate Moore, the prosecutor was entitled to cross-examine Davis

about the timing of his allegations and to use closing argument to highlight the

inconsistencies and weaknesses in his testimony.

Because Davis has not demonstrated that the prosecutor’s questions and

arguments about Davis’s failure to immediately implicate Moore were improper,

Davis has not demonstrated that appellate counsel erred by not challenging the

above questions and arguments. See Rutherford, 774 So. 2d at 649.

c. Denigration of Defense

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 Next, Davis asserts that appellate counsel should have argued that the

prosecutor improperly denigrated Davis’s defense theory, expressed her personal

opinion about Davis’s credibility, and belittled Davis and his defense. Davis

objects to the prosecutor’s comments that Davis’s defense was “not true,” “lies,” or

“silly,” the prosecutor’s suggestions that his account of what happened to the

victim should be thrown “out the window,” “would not fly today,” “makes no

sense,” and has “changed,” and the prosecutor’s statements that the jury was

“supposed to believe” Davis’s defense, that Davis was “in la-la land,” and that

Davis “probably doesn’t have the same wisdom as counsel does.”

While a prosecutor may “not ridicule or otherwise improperly attack the

defense’s theory of the case,” a prosecutor is permitted to suggest to the jury that

“based on the evidence of the case, they should question the plausibility of the

defense’s theory.” Valentine v. State, 98 So. 3d 44, 55-56 (Fla. 2012). In

Valentine, this Court concluded that the prosecutor did not err by stating that the

defense wanted the jury to “somehow” believe the defense’s theory. Id. Also in

that case, this Court cited with approval its prior decision Craig v. State, 510 So. 2d

857, 865 (Fla. 1987), in which this Court determined that the prosecutor’s

description of the defendant’s testimony as “untruthful[]” or of the defendant as a

“liar” was proper argument based on the evidence of the case. Valentine, 98 So.

3d at 56. See also Davis v. State, 698 So. 2d 1182, 1190 (Fla. 1997) (concluding

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that prosecutor’s reference to defendant’s statements as “bald-faced lies” was not

improper).

Under Valentine and Craig, the majority of the prosecutor’s arguments were

permissible expressions of the inference that Davis’s statements were inconsistent

with the other evidence, not derisive comments offered merely to ridicule the

defense. Two comments, however, require closer examination. The prosecutor

began the rebuttal closing argument by stating: “Mr. Davis doesn’t have the same

wisdom as counsel does with respect to knowing that an unconscious child can’t

choke on a French fry, because by his very two statements he obviously didn’t

realize that.” Second, when explaining the jury instructions related to the

credibility of witnesses, the prosecutor stated that Davis was “in la-la land.” While

the first comment was based on the evidence presented at trial, both comments

were arguably “needless sarcasm.” Gore v. State, 719 So. 2d 1197, 1201 (Fla.

1998); see also Izquierdo v. State, 724 So. 2d 124, 125 (Fla. 3d DCA 1998)

(concluding reference to a defense as a “pathetic fantasy” was improper).

But even if improper, these comments do not constitute fundamental error—

that is, error that “reaches down into the validity of the trial itself to the extent that

a verdict of guilty . . . could not have been obtained without the assistance of the

alleged error.” Card, 803 So. 2d at 622. The comments are less severe in degree to

the guilt phase comments considered in Braddy v. State, 111 So. 3d 810 (Fla.

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2012), cert. denied, 134 S. Ct. 275 (2013). In that case, this Court determined that

comments denigrating the defense, suggesting that conviction of a lesser included

offense would be a “miscarriage of justice,” and arguably making a golden rule

argument—considered cumulatively—“did not deprive Braddy of a fair trial.”

This Court reasoned that the comments “did not go to the heart of the case” and

were “not of such a nature as to cause the jury to convict Braddy against the weight

of the evidence.” 111 So. 2d at 843-44. Here too, the comments were not critical

to the jury’s verdict. Indeed, in the context of Davis’s shifting story, the comment

added nothing to the discrediting of Davis.

d. Davis’s Veracity

Davis contends that appellate counsel should have argued that the following

comment improperly suggested that the jury should convict Davis if the jury

concluded that Davis lied during his testimony:

But you also should consider, when you’re thinking about
lesser included offenses, Toney Davis took the witness stand and he’s
not telling you he didn’t commit first degree murder. I committed
second, or I committed manslaughter. He’s telling you he didn’t do
anything. He is telling you your choice is not guilty, if you believe his
testimony from the witness stand.
And when you go back there you’re going to be given three
verdict forms. . . . What’s so important about the verdict form is what
I just described to you about how there’s lesser included offenses
underneath. . . .
So you’re going to have them written out there. And just
remember, Toney Davis says, I’m not guilty.

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 “[I]t is error for a prosecutor to make statements that shift the burden of

proof and invite the jury to convict the defendant for some reason other than that

the State has proved its case beyond a reasonable doubt.” Gore, 719 So. 2d at

1200. An argument that the jury may acquit the defendant if and only if the jury

believes that the defendant is telling the truth is likewise a misstatement of Florida

law. See Northard v. State, 675 So. 2d 652, 653 (Fla. 4th DCA 1996) (concluding

that argument that “in order to find [the defendant] not guilty you’re going to have

to believe that the defendant was telling the truth” was improper). In this case, the

prosecutor did not make either of these types of improper argument. The

prosecutor pointed out that the State and defense both sought an all-or-nothing

verdict—that neither side asserted that Davis was guilty of a lesser included

offense. The prosecutor did not argue that disbelief of Davis’s account was

sufficient for a conviction or that belief in Davis’s account was necessary for an

acquittal. Because Davis has not demonstrated that the prosecutor’s argument was

improper—much less, that it constituted fundamental error—he has not shown that

appellate counsel was deficient. See Rutherford, 774 So. 2d at 649.

e. Arguments from Law Enforcement Testimony

Davis contends that appellate counsel should have challenged two arguments

during the prosecution’s closing because the arguments created an improper

impression that Captain Wade and Detective Hallam did not believe that Davis was

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truthful. Again, Davis’s ineffective assistance of appellate counsel claim is

without merit.

First, Davis challenges the following portion of the closing argument, in

which the prosecutor summarized Captain Wade’s testimony:

Captain Wade testified that when he arrived as the emergency medical
technician, he came into contact with that man right there, he was
loud, abrupt, agitated and defensive. He kept asking him questions,
because the answers didn’t make sense to him. He asked him, after
seeing the child [lying] face down on the living room floor
unconscious and lifeless, what happened?
Man said he gave him his version of what happened, he didn’t
make sense. [Sic] So then the fellow asked him some more
questions. Did this child drown in the bathtub? He kept asking more
questions, because his responses made no sense.

Closing argument is an opportunity for the attorneys to “explicate those inferences

which may reasonably be drawn from the evidence.” Bertolotti, 476 So. 2d at 134.

The prosecutor’s argument that Captain Wade likely continued asking Davis

questions about the child’s condition because Davis’s answers did not make sense

was a reasonable inference from Wade’s testimony about the conversation he had

with Davis upon arriving at the apartment.

Second, the prosecutor reviewed the testimony of Detective Hallam:

Then the detectives testified; both Frank Hallam and Tony
Hickson. They told you that they were both dispatched to investigate
this case, Detective Hallam as a lead investigator. Tony Hickson, in
assisting Detective Hallam, went to the house, Hallam went to the
hospital. Hallam went to the hospital, talked to the defendant, talked
to Mrs. Cunningham, talked to Mr. Moore, talked to the doctor and
then after he realized that everything Toney Davis was saying was

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 totally inconsistent with what the doctors were saying, he took him
down to the Police Memorial building as a suspect in this case.

This comment was based on Detective Hallam’s testimony that after speaking to

the treating physicians, he “realized that the story that Mr. Davis had given [him]

was nowhere near consistent [with] what the doctors were telling [him] concerning

her injuries.” The prosecutor was entitled to review the evidence during closing,

see Bertolotti, 476 So. 2d at 134, and no objection was raised at trial or in this

postconviction proceeding to Detective Hallam’s opinion about the consistency of

Davis’s account.

Because the prosecutor’s arguments were reasonable inferences from or

summarizations of the evidence admitted at trial, Davis has not demonstrated that

the arguments were improper or constituted fundamental error. Accordingly,

Davis has not shown that appellate counsel could have raised a meritious challenge

to the prosecutor’s arguments

f. Capitalizing on Janet Cotton’s Testimony

In his final challenge related to the guilt phase, Davis contends that appellate

counsel should have argued on appeal that the prosecutor erred by relying on false

testimony from witness Cotton during the closing arguments. As explained above,

Davis did not demonstrate that Cotton’s trial testimony was false. As a result, he

has not established that appellate counsel should have challenged the prosecutor’s

arguments based on Cotton’s testimony.

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 2. Penalty Phase Arguments

a. Victim’s Siblings

Davis contends that appellate counsel should have challenged the

prosecutor’s comment that “one day Ashley and Juan are going to grow up and

they’re going to want to know what happened to Caleasha, and they’re going to

know what justice was done.” As addressed in Davis’s related postconviction

claim, this comment was an objectionable appeal to the jurors’ emotions. But for

the same reasons that Davis was not prejudiced by trial counsel’s failure to object

to the comment, the isolated emotional appeal did not constitute fundamental error.

The comment does not undermine confidence in the jury’s verdict, must less vitiate

the fairness of Davis’s trial.

b. Prosecutorial Expertise

Davis contends that appellate counsel should have challenged the following

argument: “As we talked about in jury selection, you know the State of Florida

does not seek the death penalty in every case, because it’s not just proper in every

case. But I submit to you, in this case, it most certainly is.” Davis is correct that

this prosecutorial expertise argument is improper. See, e.g., Ferrell v. State, 29 So.

3d 959, 987 (Fla. 2010); Brooks v. State, 762 So. 2d 879, 901 (Fla. 2000). But

even when considered cumulatively with the prosecutor’s appeal to the jurors’

sympathy for the victim’s siblings, this comment does not rise to the level of

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fundamental error. These comments do not “reach[] down into the validity of the

trial itself to the extent that a . . . recommendation of death could not have been

obtained without the assistance of the alleged error[s].” Card, 803 So. 2d at 622.

The two objectionable comments in the penalty phase of this case were less

egregious than those in Card, in which this Court concluded that a prosecutor’s

comments misleading the jury about whether the defendant would serve a life

sentence, suggesting that the jurors could weigh victim impact evidence as

aggravation, and urging the jury to be the “conscience of the community” “were

not so prejudicial as to vitiate the entire trial.” Id. at 622. Here, the prosecutor’s

improper statements were not numerous and the comment regarding the victim’s

family did not expressly ask the jurors to recommend a death sentence. In

addition, the defense presented little mitigation evidence—none of which pertained

to the circumstances of the offense—to be weighed against the evidence of two

aggravating factors: in the commission of a sexual battery and HAC. Given this

ratio of mitigation to aggravation, Davis cannot establish that the jury’s

recommendation could not have been obtained without the two improper penalty

phase comments.

c. Death Penalty Is Justified

Davis next objects to the prosecutor’s statement: “If you find there are one

or more aggravating circumstances in this case, Ladies and Gentlemen, then that

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justifies the imposition of a death penalty; unless, unless you find mitigating

circumstances. And take it a step further, if those mitigating circumstances

outweigh the aggravating circumstances.” This comment was not improper.

While a prosecutor may not argue that the jury must recommend a death

sentence unless the mitigating circumstances outweighed the aggravating

circumstances, see, e.g., Brooks, 762 So. 2d at 902, in the instant case, the

prosecutor correctly informed the jury that a death sentence is legally permitted

where the aggravating circumstances outweigh the mitigating circumstances

without improperly diminishing the jury’s discretion to recommend less than the

legally allowable sentence. This Court has also disapproved arguments in which

the prosecutor misstates Florida law by urging the jury to recommend a death

sentence where the aggravating circumstances outnumber the mitigating

circumstances. See, e.g., Urbin v. State, 714 So. 2d 411, 421 (Fla. 1998). But in

Davis’s case, the prosecutor correctly stated that the sentencing recommendation

should be based on whether the aggravating factors outweigh the mitigating

factors. Because Davis has not demonstrated that this prosecutorial comment was

improper, he has not demonstrated that appellate counsel erred. See Rutherford,

774 So. 2d at 649.

d. “Cries Out” for Death

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 Relying on Ferrell and Brooks, Davis asserts that appellate counsel should

have challenged the prosecutor’s argument that Davis’s case “simply cries out for

the death penalty because of th[e] heavy, heavy aggravating circumstance” that the

murder was committed during the course of a sexual battery. This Court did not

disapprove of any similar comment in Ferrell or in Brooks, and Davis offers no

other authority to support his claim that this argument was improper. Because

Davis did not establish that the argument was improper, he has not demonstrated

that appellate counsel erred.

e. Hold Davis Accountable

Davis asserts that appellate counsel should have challenged the prosecutor’s

arguments that “based on those categories of evidence,” the jury will “determine

whether this defendant will be held fully accountable for the crime that he’s

committed” and that “[j]ustice demands that [the jury] hold this defendant fully

accountable for this murder.” Davis is correct that this Court has concluded that it

is improper for the State to tell jurors that “the only proper recommendation to this

court is a recommendation of death” or that the jurors have a legal duty to

recommend the “appropriate punishment” of death. See Melton v. State, 949 So.

2d 994, 1019 n.16 (Fla. 2006). Davis overlooks, however, that in Gonzalez, 990

So. 2d at 1029, this Court clarified that it is not improper for the prosecutor to tell

the jury that it has a “responsibility” to recommend the death penalty where the

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prosecutor informs the jury that its recommendation should be “based upon all the

evidence in this case.”

This Court explicated the same distinction in Wade v. State, 41 So. 3d 857,

870-71 (Fla. 2010), in which the prosecutor argued:

You might hear an argument about life is enough. Life is
however many years he’s got left and leaves that prison only when he
dies. What I suggest to you is that argument tells you that this
defendant should not be held fully accountable for his actions. The
argument in essence says let’s take the easy way out. I know life is
life and I know it will be a miserable life in prison and let’s give him
life, but that’s not the law of the State of Florida. You have to weigh
and weigh this aggravation and you will find that it cries out for full
accountability.

This Court determined that the argument was not improper because it “correctly

told the jurors that it was their duty actually to weigh the factors, [and the

prosecutor] in no way implied that the jury was required by law to return a

recommendation of death.” Id. at 871. See also Ford v. State, 802 So. 2d 1121,

1131, 1131 n.17 (Fla. 2001) (concluding no error where prosecutor argued that

“[p]eople must be held accountable for their actions”).

As in Gonzalez and Wade, the prosecutor in Davis’s case did not assert that

the jurors had a legal duty to recommend death but instead asserted that the death

penalty was appropriate due to the evidence establishing an aggravating factor. As

a result, the argument was proper and appellate counsel did not err by not raising

this issue on direct appeal. See Rutherford, 774 So. 2d at 649.

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 f. Nonstatutory Aggravating Factor

Finally, Davis contends that his appellate counsel should have argued that

the following comment was an attempt to interject into the jury’s evaluation a

nonstatutory aggravating factor:

Now, we have already talked about the circumstances of the
offense. You know what happened to that child and you know how it
happened. And I suggest to you there is no mitigat[ion] in the
circumstances of the offense . . . . I suggest to you there is nothing but
aggravation, because remember this defendant tried to cover that up.
She choked on a French fry and she had an asthma attack. That’s
what he told everybody. That’s what he told the rescue captain who
was frantically trying to save that child’s life.
So this defendant just in a cold-hearted way, lies and
misrepresents as to what happened to that child. That’s the first thing
he does after committing those vicious crimes.
Does that reflect on this defendant’s character? Sure it does.
It’s the same answer, I submit to you, absolutely no regard for the
sanctity of human life. That’s all.

Penalty phase evidence of the defendant’s bad acts is permissible when

“offered in rebuttal to the defense, not as a nonstatutory aggravator.” Zack v.

State, 911 So. 2d 1190, 1208 (Fla. 2005). The challenged comments, when read in

context, do not attempt to interject a nonstatutory aggravating factor into the jury’s

consideration. After explaining why the aggravating factor that the murder was

committed in the course of a felony was applicable to this case, the prosecutor

went on to address the mitigating circumstances that would likely be proposed by

the defense. In doing so, the prosecutor cited Davis’s lack of truthfulness to first

responders as evidence rebutting the defense’s theory that Davis is a good person

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and Davis’s testimony that he did not harm the victim. This argument was

permissible. Accordingly, appellate counsel did not err.

B. Ineffective Appellate Assistance Regarding Nelson Hearing

On direct appeal, Davis’s counsel argued that during the hearings on March

21, 1994, and April 5, 1994, the trial court “erred in not following the dictates of

Nelson and Faretta when Davis moved to discharge his court-appointed counsel

before trial commenced.” Merit Brief of Appellant at 9, Davis v. State, No.

SC86,363 (Fla. Jul. 29, 1996). This Court rejected that claim, concluding that

Davis’s request to discharge was ambiguous. Davis, 703 So. 2d at 1058. Davis

now asserts that appellate counsel also should have argued that the trial court erred

by not conducting additional Nelson hearings in June 1994 and June 1995 based on

letters that he wrote to the trial court. His habeas claim is without merit.

“[T]he requirements of Nelson depend upon a clear and unequivocal

statement from the criminal defendant that he wishes to discharge counsel.” Logan

v. State, 846 So. 2d 472, 477 (Fla. 2003). “This Court has consistently found a

Nelson hearing unwarranted where a defendant presents general complaints about

defense counsel’s trial strategy and no formal allegations of incompetence have

been made.” Logan, 846 So. 2d at 477. Accordingly, expressions of disagreement

with trial counsel’s strategy or complaints about lack of communication—as in

Davis’s June 1994 letter—do not give cause for a Nelson hearing. See, e.g.,

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Stephens v. State, 787 So. 2d 747, 758 (Fla. 2001). And while in his June 1995

letter, filed after the jury reached its verdict on May 11, 1995, Davis asked for a

new trial due to his belief that trial counsel erred, Davis did not ask that trial

counsel be discharged. Because the trial court was not required to hold a Nelson

hearing based on Davis’s June 1994 and June 1995 letters, appellate counsel did

not err by not raising the letters on direct appeal.

IV. CONCLUSION

For the reasons stated above, we affirm the postconviction court’s denial of

Davis’s motion for postconviction relief and deny his petition for a writ of habeas

corpus.

It is so ordered.

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

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

An Appeal from the Circuit Court in and for Duval County,
Henry Elisha Davis, Judge - Case No. 92-13193-CF
Habeas Corpus – Original Proceedings

Richard Adam Sichta, Jacksonville, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Stephen R. White, Assistant Attorney
General, Tallahassee, Florida,

for Appellee

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