David Sylvester Frances v. State of Florida

Supreme Court of Florida
____________

No. SC12-79
____________

DAVID SYLVESTER FRANCES
Appellant,

vs.

STATE OF FLORIDA
Appellee.

____________

No. SC12-1514
____________

DAVID SYLVESTER FRANCES
Petitioner,

vs.

MICHAEL D. CREWS, etc.
Respondent.

[April 17, 2014]

PER CURIAM.

David Sylvester Frances appeals an order of the circuit court denying his

motion to vacate his convictions of first-degree murder and sentences of death filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ

of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

On direct appeal to this Court, “Frances raise[d] three issues, each of which

encompasse[d] a number of sub-issues. He claim[ed] that: (1) the trial court

improperly restricted his presentation of guilt and penalty phase evidence that was

relevant to his relative culpability for the crimes and what sentence he should

receive; (2) the trial court improperly found the heinous, atrocious, or cruel

aggravating circumstance (HAC), excluded existing mitigating evidence, and

concluded that the aggravating circumstances outweighed the mitigating

circumstances; and (3) Florida’s death penalty statute is unconstitutional

under Ring v. Arizona.” Frances v. State, 970 So. 2d 806, 812-13 (Fla. 2007).

This Court affirmed Frances’ convictions of first-degree murder and his sentences

of death. Id. at 823.

On April 9, 2009, Frances filed a Motion to Vacate Judgment of Conviction

and Death Sentence. Following a case management conference, the postconviction

court granted an evidentiary hearing as to the following claims raised in Frances’

Motion to Vacate: Failure of trial counsel to object to the Court’s improper

comments regarding “Southerners” and “Yanks”; failure of trial counsel to object

to the “cause” strike of Venireperson Roberts; failure of trial counsel to object to

comments erroneously informing the jury that a list of mitigators would be

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provided at the penalty phase; failure of trial counsel to investigate and present

available mitigation; proffered evidence regarding Frances’ drug abuse and

dependency; proffered evidence regarding the good deeds performed by Frances

throughout his life; proffered evidence regarding Frances’ bouts with stuttering. 1

I. STATEMENT OF THE CASE AND FACTS

The facts of this case are set forth in Frances’ direct appeal of his death

sentence:

David Sylvester Frances and his younger brother Elvis Frances
were charged by indictment with the first-degree murders of Helena
Mills and JoAnna Charles, the robbery of Mills’ automobile, and two
counts of the petit theft of Charles’ jewelry and a Playstation video
game system belonging to Mills’ son.

Gleneth Byron, the mother of the Frances brothers, was a close
friend of Mills and lived about five minutes from Mills’ condominium
in Orlando. The two families often socialized together. The Frances
brothers had been living with Byron for about a month and neither
was employed. Byron asked the brothers to move out and planned to
give them money for bus tickets to Tallahassee, where the family had

1. The trial court summarily denied relief, without an evidentiary hearing,
on the following claims raised in Frances’ Motion to Vacate: Failure of trial
counsel to file adequate motions to suppress statements made to law enforcement;
Failure of trial counsel to file a motion in limine to exclude references to “Ring
neck Road”; Failure of trial counsel to exercise a cause or peremptory challenge on
juror Kristich; Failure of trial counsel to object and move for mistrial after the
defendant’s mother caused a ruckus in the courtroom; Failure of trial counsel to
object and move for mistrial regarding identification of mother as a DCF
“Secretary for Adult Protective Investigations”; Failure of trial counsel to object
and move for mistrial regarding suggestion of lack of remorse, callousness; Failure
of trial counsel to object and move for mistrial regarding suggestion of rape or
motive of rape; Eighth Amendment claims against Florida’s lethal injection
procedures; and cumulative error.

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lived previously. David Frances called Byron around noon on
November 6, 2000, to tell her that the brothers had a ride to
Tallahassee. When Byron returned home at 5 p.m., her sons and all of
their belongings were gone.

Early that same morning, the Frances brothers rang the doorbell
at Mills’ condominium. Mills’ thirteen-year-old son Dwayne Rivers
answered the door and talked to the brothers briefly for a minute or
two. Rivers knew the brothers from when they all had lived in the
Virgin Islands. Rivers told the brothers that JoAnna Charles, who was
a sixteen-year-old family friend living with Mills, was staying home
from school that day because she was sick. The brothers departed and
Rivers left for school at 8:45 a.m. When Rivers returned home at 6
p.m., he saw Charles’ red Toyota in front of the condominium, but he
did not see his mother’s green Mazda 626 in the garage. Rivers called
for Charles and banged on the locked door of the master bedroom, but
did not receive a response. When Rivers entered the master bedroom
through a sliding glass door on the balcony, he discovered the bodies
of his mother and Charles on the floor of the bathroom. Rivers
phoned Byron and then called 911.

When the paramedics arrived, they discovered Charles’ body on
top of Mills’ body. Both women had been strangled with an electric
cord. A cord was still wrapped around Charles’ neck. The bodies
were in rigor mortis. There were no signs of forced entry into the
condominium. The medical examiner testified that Mills had multiple
recent abrasions to her face, injuries to her neck, ruptured blood
vessels in her face, and a cut across her neck caused by the cord being
wrapped around her neck and pulled at each end. Charles had a
groove around her neck with superficial lacerations. She also had
crescent-shaped fingernail marks on her right neck caused by her
attempts to remove either the ligature or hands from her neck. The
material under Charles’ nails matched her own DNA. Material
removed from Mills’ nails was identified as male DNA. While
neither David nor Elvis could be excluded as the contributor of the
material found under Mills’ nails, the sample was so limited that this
finding was not significant. The electrical cord around Charles’ neck
was tested for latent fingerprints, but there were not enough ridgelines
on the latent prints to enable a match. No DNA testing was conducted
on the electrical cord because the chemicals used for the latent print

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 testing would have destroyed the DNA. Conversely, had the cord
been tested for DNA, it would have obliterated any latent prints.

The tag number and information about Mills’ stolen vehicle
were entered into the national law enforcement data base. On
December 5, 2000, the Frances brothers and three other individuals
were stopped in Mills’ vehicle in DeKalb County, Georgia. Elvis was
driving the vehicle and David was a passenger in the back seat. The
vehicle still bore Mills’ license plate. David claimed that he had
bought the vehicle in Tallahassee, but was unable to name the seller.

Orlando police detectives traveled to Georgia to interview the
brothers. Twenty-year-old David gave a statement after being advised
of his Miranda2 rights and waiving them. In this statement, David
originally denied any knowledge of the murders, claimed that he and
Elvis took a bus from Orlando to Tallahassee, and stated that he had
bought Mills’ car from someone named “Will” in Tallahassee. David
subsequently admitted being at Mills’ house on the morning of the
murders and stated that Elvis killed both victims. David admitted that
he helped Elvis move the bodies and participated in stealing Mills’
car. David also admitted that the brothers took Mills’ car and drove it
to Tallahassee.

The officers then interviewed sixteen-year-old Elvis at the
juvenile detention facility where he was being held. The officers
played David’s taped interview for Elvis. Elvis related a different
version of events, claiming that David also participated in the
murders. The brothers were arrested for first-degree murder and
transported back to Florida. An attempt to record their conversations
in the transport van was unsuccessful because the equipment did not
work.

David was interviewed a second time on December 6. During
this interview, David related the following additional details about the
murders. Byron wanted the brothers out of her house, but they had no
money and no place to go. After talking to Rivers on Monday
morning, the brothers decided to steal Mills’ car. They went back to
Mills’ house where they met her in her garden. Mills told the brothers

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

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 to go inside. When she came in, both brothers jumped her. David
strangled Mills with his hands until she passed out. Elvis attempted to
do the same to Charles, but had difficulty because Charles struggled
with him. Both brothers moved the women into the bedroom and
David then strangled Mills with an electric cord. Because Charles
“still had life in her,” the brothers wrapped the electric cord around
her neck and each pulled on an end in order to kill her. They took
jewelry and a Playstation from the house and drove off in Mills’ car.
They pawned the stolen items for $240. They drove to Tallahassee
and then to Georgia in Mills’ car. Both of David’s taped interviews
were published to the jury at trial.

Mills’ vehicle was sealed and returned to Orlando in a sealed
car trailer. David’s prints were lifted from the rear passenger window
of the vehicle. The owner of the pawn shop identified receipts
showing that the items from Mills’ house were pawned at 11:32 a.m.
on the morning of the murders. David presented his driver’s license
to pawn a PlayStation, a pendant, and three chains. Rivers was able to
identify the pawned items as belonging to his mother and Charles.
The thumbprint on the pawn ticket belonged to David Frances. Rivers
was also able to recognize his mother’s car keys based on a small blue
flashlight with her employer’s logo that was on the key ring.

Id. at 809-11.

II. RULE 3.851 MOTION

A. Ineffective Assistance During Guilt Phase for Failure to Object to
the Striking of a Minority Venireperson

Frances asserts that his trial counsel was ineffective for failing to preserve an

issue of racial bias during jury selection. Frances attempts to phrase the striking of

Venireperson Roberts as a peremptory strike involving racial bias. The record

indicates that the prosecutor initially sought to strike Venireperson Roberts

peremptorily, and used her perceived bias as a race neutral reason for the strike.

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However, the record further indicates that the judge actually struck Venireperson

Roberts for cause. Therefore, it is the appropriateness of that for cause strike that

is under review in this Court.

The basis of Frances’ argument that trial counsel was ineffective for

allowing Venireperson Roberts to be stricken is predicated on the fact that the State

mischaracterized Venireperson Roberts’ feelings regarding the death penalty and

trial defense counsel agreed with the mischaracterization. In a postconviction

context, a defendant must establish both that his or her counsel was deficient in

failing to preserve the objection and that the defendant was prejudiced by counsel’s

lack of action. See Strickland v. Washington, 466 U.S. 668 (1984). Because the

Strickland standard requires a showing of both counsel’s deficient performance

and prejudice to the defendant, once a reviewing court determines that the

defendant has not established one prong, the court is not required to analyze

whether the defendant has established the other prong. See Stewart v. State, 801

So. 2d 59, 64 (Fla. 2001) (citing Strickland, 466 U.S. at 697).

Even assuming that defense counsel was deficient for not challenging the

State’s mischaracterization of Venireperson Robert’s position on the death penalty,

Frances has failed to demonstrate that he was prejudiced by trial counsel’s failure

to object to the striking of Venireperson Roberts. Under the second prong of the

Strickland analysis, the defendant must demonstrate a reasonable probability that

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counsel’s deficient performance deprived him of a fair trial, undermining the

confidence in the outcome of the proceedings. Strickland, 466 U.S. at 687. In

Carratelli v. State, 961 So. 2d 312 (Fla. 2007), this Court addressed the issue of

whether trial counsel was ineffective for failing to object to a juror who should

have been stricken for cause. In that case, we determined that in order to obtain

postconviction relief, the defendant must demonstrate that an actually biased juror

sat on the jury. Frances did not allege at trial, nor has he alleged in any of his

appellate and postconviction documents that an actually biased juror served on the

jury that convicted him. This case presents an opposite scenario, where Frances

claims that his trial counsel was ineffective for allowing a juror to be stricken for

cause where the juror’s voir dire responses did not warrant a cause strike.

Nonetheless, in that case we recognized that there is a higher standard for

prejudicial reversible error in a postconviction proceeding than there would have

been on direct appeal. See Caratelli, 961 So. 2d at 320 (recognizing that “ ‘once a

conviction has been affirmed on direct appeal a presumption of finality and legality

attaches to the conviction and sentence[,]’ ” so that on postconviction, “[t]he

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”).

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 Based on the clear and repeated statements of Venireperson Roberts, she did

not appear to be particularly beneficial to the State, nor to Frances. The sum of her

statements amounts to the assertion that she would listen to the facts and evidence

presented in the case and do her best to apply the law. Therefore, there is no

evidence to suggest that the removal of Venireperson Roberts from the venire

resulted in prejudice to Frances. This claim is denied.

Frances further alleges that the State engaged in purposeful discrimination

when it exercised a strike on Venireperson Roberts, an African American juror. A

defendant has no right to a jury composed in whole or in part of jurors of his or her

own race, but “[p]urposeful racial discrimination in [jury selection] violates a

defendant’s right to equal protection because it denies him the protection that a

trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 85-6 (1986).

In State v. Neil, 457 So. 2d 481 (Fla. 1984) and its progeny, this Court outlined the

following test to determine whether peremptory challenges are being used in a

discriminatory manner: Peremptory challenges are presumed to be exercised in a

nondiscriminatory manner. Neil, 475 So. 2d at 486. A party concerned about the

other side’s use of peremptory challenges must make a timely objection and

demonstrate on the record that the challenged persons are members of a distinct

racial group and may have been challenged solely because of their race. Id.; State

v. Johans, 613 So. 2d 1319, 1322 (Fla. 1993). The burden then shifts to the

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complained-about party to show that the questioned challenges were not exercised

solely because of the prospective jurors’ race. Neil, 475 So. 2d at 486-87. The

reasons given in response to the court’s inquiry need not be equivalent to those for

a challenge for cause. Id. at 487. If the party shows that the challenges were based

on characteristics of the challenged persons other than race, then the inquiry should

end and jury selection should continue. Id. On the other hand, if the party has

actually been challenging prospective jurors solely on the basis of race, then the

court should dismiss that jury pool and start voir dire over with a new pool. Id.

The postconviction court found the State’s testimony of mistake in

dismissing Venireperson Roberts to be credible, and that finding is supported by

competent substantial evidence. At the evidentiary hearing, the lead prosecutor

testified that after reviewing a copy of the jury score sheet, it appeared that the

word “opposed,” which was written next to Venireperson Roberts’ name, was in

darker ink than the word “okay,” which was also next to her name. Frances would

like for this Court to infer that the “opposed” notation was made in anticipation of

litigation. However, he has provided no evidence to rebut the State’s testimony

that this notation was written at some time during voir dire and that the striking of

Venireperson Roberts was not an innocent mistake. Id. Therefore, Frances has

failed to demonstrate purposeful discrimination in the striking of Venireperson

Roberts.

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 Frances argues that the postconviction court’s ruling is clearly erroneous in

finding that the defense was not ineffective for striking Venireperson Roberts. The

order stated:

Based on the foregoing, the Court finds credible Ruiz’s
testimony that he did not remember Roberts’ testimony and thus
mistakenly struck her for cause based on Wixtrom’s
mischaracterization of her testimony. The Court also finds that there
is nothing in the record indicating that Ruiz intentionally called for a
false strike or that the defense team was aware of the mistake at the
time it was made. Furthermore, Defendant has introduced no
evidence showing that, but for Ruiz’s mistake, the outcome of the trial
could have been different.

The voir dire record actually indicates that it was Mr. Wixtrom, acting on behalf of

the State, who moved to strike Venireperson Roberts, not Mr. Ruiz. It appears that

the postconviction court was confused about who actually struck Venireperson

Roberts. However, this mistake of fact does not seem to directly bear on the

conclusion reached by the court that the defendant has introduced no evidence

showing a reasonable probability that, but for the mistaken strike of Venireperson

Roberts, the outcome of the trial would have been different. Therefore, the

erroneous finding of fact was harmless. Frances has not established ineffective

assistance under Strickland. Relief on this claim is denied.

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 B. Ineffective Assistance During Guilt Phase for Failure to Object to
Improper Comments Made by the Trial Court and the State

Comments Made by the Trial Court

For ineffective assistance of counsel claims raised in postconviction

proceedings, this Court affords deference to findings of fact based on competent,

substantial evidence and independently reviews deficiency and prejudice as mixed

questions of law and fact subject to a de novo review standard. Ponticelli v. State,

941 So. 2d 1073, 1090 (Fla. 2006). Frances alleges that his counsel was

ineffective during jury selection for failing to object to the following comments

made by the Court:

THE COURT: Thank you. Let me—before you go, let me say a word
about our use of language. Oftentimes those of us who are raised in
the south tend to say things delicately. It just seems to be a more
courteous or a gentile way of handling things than maybe the Yanks
do. So we tend to say, yes, I think I could, when what we really mean
is yes.
People raised in another environment might be inclined to give
a more direct and positive answer. I just want to make sure the record
is clear and that I understand where people stand on the issues that
you are being questioned by the lawyers on these issues.
Ms. Hill, if the facts warranted it and you weighed the
mitigating and aggravating factors according to the instructions that I
give you, could you impose the death penalty? Could you vote for the
death penalty?

JUROR HILL: I think it would be very difficult for me to do it.

THE COURT: It’s difficult for anybody. This is not an easy task for
anyone involved in the room. What I’m asking for you to do is put
your gentile, Southern nature aside and give us an answer about
whether you could under any circumstances.

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JUROR HILL: Right. If the crime—if I honestly believed the crime
warranted it and I listened to all the information and I, you know,
consulted with the others involved, yes.

THE COURT: Thank you, Ma’am. That’s what I thought your
answer was going to be.

JUROR HILL: But it would be really difficult.

THE COURT: I understand.

Mr. Combs, you were kind of on the other side, if you felt that
the facts warranted it and weighed the mitigating factors on both
sides, even though premeditated, could you vote for a life sentence?

JUROR COMBS: Yes.

THE COURT: Ms. Pagan, I wasn’t sure about you for a while, but
now I think I’m sure. I thought your answer was more direct at the
end, and I’m asking for reassurance now. If you felt that the facts of
the case warranted it and you weighed the factors on both sides and
according to the instructions given by the court, could you under those
circumstances vote for a death penalty?

JUROR PAGAN: I think so.

THE COURT: “I think so.” See, it’s our southern heritage.

JUROR PAGAN: I’m not—

THE COURT: We all do it. It’s a hard question, no question about it.

JUROR PAGAN: It’s very difficult.

THE COURT: It’s a very difficult question, and I know that we’re
putting jurors on the spot to try to even think of issues like this. It’s
very difficult to do. But we would like to know if you can ever
picture yourself voting for a death penalty.

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 JUROR PAGAN: Like I said, if the facts that I hear are really ugly,
yes.

THE COURT: Thank you, ma’am. I thought that’s what you said
earlier, and that was going to be your answer but I just wanted
reassurance and evidence in the record that that’s what you had said.
And the others I’m not asking because I think your answers
were clear on the record, so I don’t mean to overlook you.

Subsequently, defense counsel raised the following objections:

MR. RUIZ: We would like to accept [the jury] subject to objections,
and I would like to lay a full objection now so we don’t have to do it
later . . . I just have additional objections to accepting the jury and
would like to renew them later.

THE COURT: Okay. What are your objections?

MR. RUIZ: Yes, your honor. Specifically, our objections, we would
cite two cases. Wainwright v. Witt, 469 U.S. 412.

And we would also cite Price v. State, 538 So. 2d 486, that
pertains directly to the issue of jurors that were excluded, number 35
and number 36. And our position is they were improperly excluded
because they had given answers that indicated that they were willing
to accept the full range of penalties, and it was after the judge
questioned them that they kind of backtracked.

Our position is that based on the case law that we’ve cited, that
was an improper exclusion. And specifically, the—on the recitation
by the court to the jury was to the effect of, for lack of a better
description, the polite southerner example that the court gave, and that
was given on more than one occasion. The purpose was apparently so
that the jurors would be more definitive in their position. The case
law does not require that. Those are our objections. And we would
accept the jury panel subject to those objections. But we believe that
that interplay, that exchange, has affected our ability to pick jurors
that should have been allowed to remain for the remaining of the jury
and subject to our choosing a jury.
....

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 THE COURT: It’s the court’s judgment to make. I think my ruling
was correct, and I would overrule your objection. But it is noted and
preserved for the record.

It is clear from the record that defense counsel specifically objected to the

comments made by the trial judge before the jury was sworn.

Frances is claiming that his defense counsel at trial was ineffective for

failing to object earlier and for failing to request a mistrial or a new jury. At the

evidentiary hearing, Frances’ lead counsel, Mr. Hooper, testified that he did not

find the trial judge’s questioning of Juror Pagan regarding her ability to vote for

the death penalty to be objectionable. He insisted, “Yes, there is a problem with

that response. It doesn’t answer the question. It doesn’t—it’s not what we need.

We need a yes or a no.” Mr. Hooper testified that he considered Juror Pagan’s

response of “I think so” to be a “nonresponse.” When asked whether he

considered that the trial judge’s comments regarding southern heritage may taint

the jury, Mr. Hooper responded, “Actually, the opposite . . . the logic is that if a

jury is laughing at some levity injected into the proceedings that they may be less

likely to vote for death . . . so unless it’s something that’s offensive or prejudicial,

the judge injecting some light humor like southern heritage, obviously, is positive.”

The postconviction court denied the claim, finding that although “the trial

court judge’s comments and /or questions concerning ‘Southerners’ and ‘Yanks’

were perhaps patronizing and unrealistic, particularly in light of evolving standards

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of jury selection . . . there is no indication in the record that the trial court judge

was intentionally misleading or trying to intimidate any of the potential jurors.”

The postconviction court determined that “these comments and/or questions, albeit

improper, do not rise to the requisite level of prejudice, wherein there is no

reasonable probability that but for counsel’s alleged omission, the outcome of the

case would have been different.” The postconviction court’s findings as to the trial

judge’s comments are based on competent, substantial evidence in the record, and

we affirm its decision on this issue.

Additionally, Frances argues that his trial counsel was ineffective for

allowing two jurors to be stricken without requesting a new trial or a new jury

panel. However, Frances does not demonstrate a reasonable probability that the

outcome of the proceeding would have been different if his trial counsel had made

the requests. At the end of voir dire, Mr. Ruiz specifically objected to the removal

of these jurors, citing the court’s supposed improper comments as the basis of the

removal. Upon hearing the objection, the court affirmatively disagreed with the

objection and overruled it. Therefore, there is no evidence that the outcome

probably would have been different if Frances’ defense counsel had gone further

than the specific objection that was made on the record. Frances has failed to

establish prejudice under Strickland.

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 Comments Made by the State

Frances argues that his trial counsel was ineffective for failing to object

when the State informed the jury that a list of mitigators would be provided to

guide the jury’s decision, which opposed the defense’s strategy that a catchall

mitigation instruction be provided to the jury. This Court has recognized that in

evaluating a claim of deficient performance under Strickland, “[j]udicial scrutiny

of counsel‘s performance must be highly deferential.” Henry v. State, 948 So. 2d

609, 616 (Fla. 2006).

[T]he defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’ In light of this measured deference, evidence that counsel’s
conduct was part of a deliberate, tactical strategy that the defendant
understood and approved almost always precludes the establishment
of this prong. This is especially true if the defense counsel considered
and rejected alternative courses of action.

Id. at 617 (quoting Strickland, 466 U.S. at 689).

The record indicates that the prosecutor made the following statements to

various voir dire panels: “The judge will give you guidelines to follow”; “The

Court will give to the jury a list of factors that the jury can look at”; and “The jury

will be given a framework of the law from the Court, and included in that

framework will be factors that the jury can look at . . . . ” Other statements made

to the jury regarding aggravating and mitigating circumstances were slight

variations of those listed. When questioned at the evidentiary hearing about his

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failure to object to the State’s comments to the jury that a list of mitigators would

be provided, Mr. Hooper stated:

I wouldn’t object to that. The court or the state attorney may say the
court is going to give you guidelines, which is a correct statement of
the law. The court does and then what I like to hear in the jury
instructions from the court is that when considering the aggravators,
you must consider one, two and three . . . and implicit in that and so
more in considering mitigators, you can consider any aspect, anything
and everything.

The postconviction court denied this claim, in light of these comments by

Frances’ defense counsel. The trial court’s finding that the defense counsel’s

failure to object was part of an overall defense strategy, that Frances cannot now be

heard to complain about, is based on competent substantial evidence.

Additionally, Frances failed to demonstrate that he was prejudiced as a result of the

State’s “promise” that a list of mitigators would be provided.

C. Ineffective Assistance During Penalty Phase for Failing to File a
Motion to Preclude the State From Seeking the Death Penalty

Frances alleges that the State used race as a basis to refuse to offer a life

sentence, and that defense counsel was ineffective for failing to file a motion to

prevent the state from seeking the death penalty. The postconviction court

determined that the defendant failed to establish that race was ever the reason that

the state sought the death penalty in this case.

For ineffective assistance of counsel claims raised in postconviction

proceedings, this Court affords deference to findings of fact based on competent,

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substantial evidence and independently reviews deficiency and prejudice as mixed

questions of law and fact. Ponticelli, 941 So. 2d at 1090 (citing Sochor v. State,

883 So. 2d 766, 785 (Fla. 2004) (recognizing that the trial court must resolve

conflicting testimony presented at the evidentiary hearing by assigning weight to

each witness’s testimony)).

The issues that Frances raises in relation to this claim are nearly identical to

those raised in Freeman v. State, 858 So. 2d 319 (Fla. 2003). John D. Freeman

was a death row inmate who appealed an order from the trial court denying his

motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Id. at 321. Just as in the instant case, Freeman argued that his defense counsel was

ineffective for failing to argue that the State’s decision to pursue the death penalty

was based on improper racial considerations. Id. at 322. This allegation was based

on evidence presented at a postconviction evidentiary hearing, which revealed that

Freeman’s trial counsel had approached the prosecutor and offered that Freeman

would plead guilty to two murders, in exchange for two consecutive life sentences

with twenty-five-year mandatory minimum sentences. Id.

The evidence in Freeman further revealed that both the prosecution and the

defense were aware of the then pending federal case, McClesky v. Kemp, 481 U.S.

279 (1987), which involved an allegation that prosecutors were seeking the death

penalty disproportionately against African American defendants. Id. Freeman

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raised a reverse-McCleskey claim, alleging that “when his trial counsel presented

the plea offer to the prosecutor, the prosecutor refused the offer for fear that

defense attorneys in other cases would argue that he was favoring Caucasian

defendants.” Id. at 322-23. Freeman also argued that his trial counsel was

ineffective for failing to raise the claim because he admittedly did not know how to

do so. Id. at 323.

Just as in the instant case, the prosecutor in Freeman commented on the

public accusations that his office too often sought the death penalty in cases

involving Caucasian victims and African American defendants. Id. at 323.

Similarly, the prosecution in Freeman claimed that the news articles and public

scrutiny did not affect the decision of whether or not to prosecute a case and what

penalty to seek; only the facts of the case drove that determination. Id.

In Freeman, this Court recognized that “Although the decision to seek the

death penalty is within the prosecutor’s discretion, that discretion may be curbed

by the judiciary where motives such as bad faith, race, religion, or a desire to

prevent the defendant from exercising his constitutional rights contributes to the

prosecutor’s decision.” Id. at 322 (citing State v. Bloom, 497 So. 2d 2, 3 (Fla.

1986)). This Court held that Freeman failed to establish that the State relied on

race when it decided to seek the death penalty. Therefore, he could not establish

that he was prejudiced under Strickland by his counsel’s admitted ignorance

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regarding the proper legal mechanism required to employ to address the issue of

the prosecutor’s perceived reliance on race as a factor in the decision to seek the

death penalty. Id. at 323-24.

In the instant case, conflicting testimony was presented at the evidentiary

hearing regarding whether Prosecutor Sedgwick mentioned race as being the

determining factor in not offering a sentence of life imprisonment to Frances.

Dorothy Sedgwick recalled discussing Frances’ race with his defense counsel:

MR. HENDRY: Did race play any consideration in your decision not
to offer life in the David Frances case?

MS. SEDGWICK: Absolutely not. Period. Positively. No question
about it.

MR. HENDRY: Did you say anything at all regarding race to George
Couture in connection with this case?

MS. SEDGWICK: I may have.

MR. HENDRY: And what context might that have been?

MS. SEDGWICK: I recall having conversations with several
attorneys starting out with Don West. After Don West filed a motion
under McClesky versus Kemp, you know, alleging—trying to allege
racial discrimination in a case in seeking the death penalty, and then
when he was confronted with the case law and he had to determine
whether he was going to accuse me of being racially discriminatory in
the case, he withdrew it.

After looking at the case law on that, I had discussions with numerous
attorneys, sometimes, you know—I had discussions with probably
several attorneys in cases which I may have had with George Couture
in which, you know, I would have challenged him that the evidence in
this case was so overwhelming, invasion was so terrible that there was

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 absolutely no reason to offer a plea of life in this case. And if—you
know, I, basically, would have thought that if I did offer a plea of life
in this case it would have been a matter of ridicule that we would be
accused of being racially discriminatory.

MR. HENDRY: You just testified that there was absolutely no reason
to offer life in this case?

MS. SEDGWICK: That’s correct. That’s what I remember.

In finding that the “testimony is not credible where there is nothing in the record to

support the vague recollection of these witnesses,” the postconviction court denied

Frances claim because he “fail[ed] to establish that race was ever the reason the

State sought the death penalty against him.” McCleskey requires a defendant to

offer “evidence specific to his own case that would support an inference that racial

considerations played a part in his sentence.” 481 U.S. at 292-93.

Based on Prosecutor Sedgwick’s unambiguous statement that race

considerations did not play a part in her decision to seek the death penalty, coupled

with her testimony regarding the aggravators in this case, the postconviction

court’s finding that there was not enough evidence to demonstrate whether

Prosecutor Sedgwick’s decision to seek the death penalty was racially motivated is

supported by competent, substantial evidence. Just as the defendant in Freeman,

Frances has not proven that the prosecutors in his case relied on race in deciding to

seek the death penalty, only that they were aware of the accusations of racial bias

surrounding the prosecutor’s office.

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 D. Ineffective Assistance During Penalty Phase for Failing to
Investigate and Present Available Mitigation

Frances next alleges that his trial counsel was ineffective for failing to

investigate and present available mitigation to the jury during the penalty phase.

To be entitled to relief on this claim, Frances must show that his attorney’s

performance was deficient and that the deficient performance prejudiced his

defense. Strickland, 466 U.S. at 687. “In the penalty phase context, ‘the question

is whether there is a reasonable probability that, absent the errors, the sentencer . . .

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.’ ” Sochor v. State, 883 So. 2d 766, 771 (Fla.

2004) (citing Strickland, 466 U.S. at 695)). “We do 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). When this Court reviews a circuit

court’s resolution of a Strickland claim, as we do here, we defer to the circuit

court’s factual findings, but review de novo the circuit court’s legal conclusions.

Id.

The postconviction court determined that Frances failed to establish that his

trial counsel was deficient. After recalling the evidence presented to the jury, and

the evidence presented at the evidentiary hearing, specifically that which Julie

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Norman argued should have been presented to the jury, the postconviction court

denied the claim as cumulative. The court found that “the testimony presented

during the evidentiary hearing virtually added nothing new to the mitigation, but

instead essentially provided a more detailed account of the mitigation previously

presented during the penalty phase proceedings. The postconviction court also

found that counsel was entitled to rely on Frances’ mental health expert,

Psychologist Eric Mings, who did not indicate that Frances needed to undergo any

additional mental health testing or evaluations.

Upon review of the record, we find that the trial court’s finding that virtually

all of the evidence presented at the evidentiary hearing was a more detailed version

of the evidence presented during the penalty phase of the trial was based on

competent, substantial evidence. On direct appeal, this court summarized the

penalty phase evidence as follows:

At the penalty phase, the State presented victim impact testimony
from Mills’ son and Charles’ mother and additional testimony from
the medical examiner about the physical effects of asphyxiation. The
defense presented the testimony of nine witnesses: a psychotherapist
and mitigation specialist who met and interviewed David and a
number of people who knew him during his childhood; family
members, friends, and former teachers and coaches; David’s
corrections officer; and Dr. Eric Mings, the psychologist who
evaluated David’s mental health status. All of the family members
and friends testified that David was a quiet, respectful child and young
man, but Elvis was aggressive and violent. They also testified that
David tried to keep Elvis out of fights and trouble. Prison inmate
Tameka Jones testified about the murder of Monique Washington in
Tallahassee in September 2000. Jones, who had been a roommate of

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 the brothers in Tallahassee, went with Elvis to Washington’s
apartment, ostensibly to help Washington move her belongings.
Instead, Elvis strangled Washington with his hands and an electric
cord in order to steal her car. Jones also stated that David helped
Elvis dispose of Washington’s body after the fact. Dr. Mings testified
that David has average intelligence and had developed a
pathologically dependent relationship with Elvis at an early age.

Frances, 970 So. 2d at 811-12.

Many of the thirty-three statutory and non-statutory mitigating factors that

Dr. Cunningham referenced were cumulative to the mitigation presented at trial.

The record indicates that the only evidence offered in the evidentiary hearing that

had not been referenced during the penalty phase is the testimony of Ms. Norman,

depicting the violence that Frances witnessed in his school and neighborhood in

the Virgin Islands. During the penalty phase of the trial, Julie Norman’s testimony

was very limited. She testified generally regarding how she obtained information,

who she had interviewed and how many hours she spent investigating mitigation

for Frances. The State objected to Ms. Norman testifying as to specific events that

she was told occurred during the defendant’s formative years, stating that this

information was not the subject of any records or documentation, therefore it

would have been hearsay, not subject to rebuttal by the State. The Court sustained

the objection and Ms. Norman was not qualified as an expert; therefore, she was

not allowed to give an opinion on the “risk factors that are normally found when . .

. [defendants] are in a violent situation such as encountered here.”

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 None of the witnesses who testified at the penalty phase presented evidence

of the extreme violence that permeated Frances’ school and neighborhood. This

evidence provided a perspective of Frances’ daily experiences outside of the home

during adolescence. Therefore, the record does not conclusively demonstrate that

the information Ms. Norman referenced in her evidentiary hearing testimony is

entirely cumulative to the evidence presented at trial.

Nevertheless, a claim of ineffective assistance of counsel for failure to

investigate and present mitigation evidence will not be sustained where the jury

was aware of most aspects of the mitigation evidence that the defendant argues

should have been presented. Troy v. State, 57 So. 3d 828, 835 (Fla. 2011).

Although the evidence offered by Ms. Norman at the evidentiary hearing was not

exactly the same as that presented during the penalty phase, in consideration of the

testimony of Dr. Cunningham, the majority of the evidence presented at the

evidentiary hearing was referenced at trial.

Additionally, Frances has not established prejudice on this point because we

cannot conclude that if the jury heard testimony regarding the violence that

Frances witnessed in his school and neighborhood in the Virgin Islands, “there is a

reasonable probability that . . . the jury . . . would have concluded that the balance

of aggravating and mitigating circumstances did not warrant death.’ ” Sochor, 883

So. 2d at 771 (citing Strickland, 466 U.S. at 695)). The trial judge found three

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aggravators in this case: (1) previous capital conviction (for the contemporaneous

murders involved); (2) murder during the commission of a robbery; and (3) HAC

as to the victim, Joanna Charles. Frances, 970 So. 2d at 812. As mitigating

evidence, the court considered the defendant’s age (twenty years old at the time of

the offense), along with the evidence presented to support the non-statutory

mitigating circumstances.3 Even if the jury had heard testimony about the violence

Frances witnessed as a child, we cannot conclude there is a reasonable probability

that the balance of the aggravating and mitigating circumstances would have been

different or that counsel’s deficiencies, if any, substantially impair confidence in

the outcome of the proceeding. See Lukehart v. State, 70 So. 3d 503, 504 (Fla.

2011).

E. Cumulative Error

As discussed above, none of Frances’ claims of ineffective assistance of

counsel warrant relief. Accordingly, Frances’ claim of cumulative error must be

denied. Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010).

3. The sentencing order notes the following nonstatutory mitigating
circumstances: Frances had a kind and gentle nature as a child and teen; he has a
clear sense of right and wrong; he participated as a team player in sports; he
exhibited good demeanor as a model inmate; he developed a pathologically
dependent relationship with Elvis from an early age which resulted in him being
pulled into Elvis’s lifestyle; he is polite, quiet, and reserved; he was abandoned by
his mother shortly after birth and was raised in poverty by his grandmother in a
small home in the Virgin Islands; and he lacked a positive male role model. See
Frances, 970 So. 2d at 818 n.4.

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 III. PETITION FOR HABEAS CORPUS

A. Frances’ Death Sentence is Cruel and Unusual

In his postconviction motion, Frances argued that Florida’s method of

execution by lethal injection violated his constitutional rights. This claim was

summarily denied by the trial court. In this habeas claim, he argues that the death

sentence itself is unconstitutional because it resulted from ineffective assistance of

trial and appellate counsel. The purpose of a writ of habeas corpus is to inquire

into the legality of a prisoner’s present detention. Wright v. State, 857 So. 2d 861,

874 (Fla. 2003) (citing McCrae v. Wainwright, 439 So. 2d 868 (Fla. 1983)).

Habeas corpus petitions are not to be used for additional appeals on questions

which could have been or were raised on appeal or in a postconviction relief

motion. Hunter v. State, 817 So. 2d 786, 798 (Fla. 2002) (citing Parker v. Dugger,

550 So. 2d 459, 460 (Fla. 1989)). Frances alleged ineffective assistance of trial

counsel for failure to present available mitigation in the corresponding

postconviction motion. To the extent that he raises that same claim in this petition

for habeas corpus, the claim is procedurally barred and relief is denied.

Frances alleges ineffective assistance of appellate counsel, claiming that his

appellate counsel failed to address the full scope of the unconstitutionality of

Frances’ death sentence. As support for his argument, Frances cites two United

States Supreme Court decisions, Atkins v. Virginia, 536 U.S. 304 (2002) (barring

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the execution of mentally retarded persons) and Roper v. Simmons, 543 U.S. 551

(2005) (barring the execution of juveniles) as “the evolving standards of decency”

in death penalty jurisprudence. Frances contends that on direct appeal, appellate

counsel never offered Simmons or Atkins as persuasive authority to show that

based on evolving standards of decency, his death sentence could not be justified.

Claims of ineffective assistance of appellate counsel are appropriately raised

in a petition for writ of habeas corpus. Brown v. State, 846 So. 2d 1114, 1127 (Fla.

2003). In order to grant habeas relief based on ineffectiveness of counsel, this

Court must determine:

[F]irst, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and,
second, whether the deficiency in performance compromised the
appellate process to such a degree as to undermine confidence in the
correctness of the result.

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986). It is the defendant’s burden

to allege a specific, serious omission or overt act upon which the claim of

ineffective assistance of counsel can be based. Brown, 846 So. 2d at 1127. If a

legal issue “would in all probability have been found to be without merit” had

counsel raised the issue on direct appeal, the failure of appellate counsel to raise

the meritless issue will not render appellate counsel’s performance ineffective.

Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).

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 Frances argues that there was evidence to support the application of four

statutory mental health mitigators in this case: (1) the crimes were committed

while the defendant was under the influence of extreme mental or emotional

disturbance; (2) the defendant acted under extreme duress or under the substantial

dominion of another; (3) the capacity of the defendant to appreciate the criminality

of his conduct or to conform his conduct to the requirements of law was

substantially impaired; and (4) the age mitigator (Frances was twenty years old at

the time of the crime). This Court has previously rejected defendants’ attempts to

extend Atkins to mental impairments that are not mental retardation. See Henyard

v. State, 992 So. 2d 120 (Fla. 2008); Schoenwetter v. State, 46 So. 3d 535, 563

(Fla. 2010) (“we have held on several occasions that other mental defects are not

entitled to the same consideration as mental retardation.”).

Further, in finding that a death sentence for a defendant who was eighteen

years and nine months old at the time of his offense was constitutional, this Court

has also held that “Roper [v. Simmons] only prohibits the execution of defendants

whose chronological age was below eighteen at the time of their capital offense.”

Id. at 561 (citing Hill v. State, 921 So. 2d 579, 584 (Fla. 2006)). As it is very

likely that this Court would have found Frances’ claims based on Atkins and

Simmons to be without merit, appellate counsel cannot be said to be ineffective for

failing to raise nonmeritorious issues.

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 B. Appellate Counsel was Ineffective for Failure to Raise Strike of a
Minority Venireperson on Direct Appeal

Frances next argues that his appellate counsel was ineffective for failing to

raise on appeal the unconstitutionality of the strike of Venireperson Roberts. The

standard to prove ineffective assistance of appellate counsel is parallel to the

Strickland standard for ineffective assistance of trial counsel. Rutherford, 774 So.

2d at 643. Thus, this Court’s ability to grant habeas relief on the basis of appellate

counsel’s ineffectiveness is determined by the defendant’s ability to meet both the

deficiency and prejudice prongs of Strickland. Id. (stating that defendant must

establish first, that appellate counsel’s performance was deficient because “the

alleged omissions are of such magnitude as to constitute a serious error or

substantial deficiency falling measurably outside the range of professionally

acceptable performance” and second, that the petitioner was prejudiced because

appellate counsel’s deficiency “compromised the appellate process to such a

degree as to undermine confidence in the correctness of the result.”).

Because this issue was not preserved at trial, this claim was not reviewable

on direct appeal unless appellate counsel could have demonstrated fundamental

error. Bell v. State, 965 So. 2d 48, 76 (Fla. 2007). As this Court has explained, “to

justify not imposing the contemporaneous objection rule, ‘the error must reach

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.’ ” Jackson v.

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State, 983 So. 2d 562, 576 (Fla. 2008). This Court has determined that “[b]ecause .

. . the failure to raise or preserve a cause challenge is not reviewable on direct

appeal, it cannot constitute fundamental error per se.” Carratelli, 961 So. 2d at

325. Appellate counsel could not be ineffective for failure to raise a claim that was

unpreserved and did not constitute fundamental error.

IV. CONCLUSION

For the reasons stated above, we affirm the trial court’s denial of

postconviction relief and we deny habeas relief.

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

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

Two Cases:

An Appeal from the Circuit Court in and for Orange County,
Robert P. LeBlanc, Judge - Case No. 2000-CF-16204
And an Original Proceeding – Habeas Corpus

David Dixon Hendry, Assistant Capital Collateral Regional Counsel-Middle
Region, Tampa, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stacey E. Kircher,
Assistant Attorney General, Daytona Beach, Florida,

for Appellee/Respondent

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