Lionel Michael Miller v. State of Florida

Supreme Court of Florida
____________

No. SC13-516
____________

LIONEL MICHAEL MILLER,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC13-1786
____________

LIONEL MICHAEL MILLER,
Petitioner,

vs.

JULIE L. JONES, etc.,
Respondent.

[February 26, 2015]

PER CURIAM.

Lionel Michael Miller appeals an order entered in the circuit court that

denied his motion to vacate his conviction of first-degree murder and sentence of

death filed pursuant to Florida Rule of Criminal Procedure 3.851. He also petitions
this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1),

(9), Fla. Const. As explained below, we affirm the order of the postconviction

court and deny Miller’s petition for a writ of habeas corpus.

FACTS AND BACKGROUND

Lionel Miller was convicted and sentenced to death for the first-degree

murder of Jerry Smith, a seventy-two-year-old woman. Miller v. State, 42 So. 3d

204, 209-10 (Fla. 2010). Miller was also convicted of the attempted first-degree

murder of Larry Haydon, burglary of a dwelling with a battery therein, and

attempted robbery with a deadly weapon. Id. In affirming Miller’s convictions,

this Court detailed the facts surrounding the murder:

[O]n April 14, 2006, . . . Miller and his roommate drove through
Delaney Park in Orlando and observed 72-year-old Jerry Smith
standing in her front yard.

Miller stopped and inquired of Smith as to whether the mail had
been delivered to her residence that day. Smith was friendly and
spoke with Miller for approximately thirty minutes. During this
discussion, Miller noticed that Smith experienced memory lapses
because she repeated the same story several times. During trial, the
medical examiner testified that Smith suffered from Alzheimer’s
dementia, which caused her to easily forget things and repeat herself
during conversations.

While conversing with Smith, Miller also noticed her jewelry.
After the conversation concluded and the men drove away, Miller
noted that Smith would be an easy target for a robbery because of her
memory lapses. Miller solicited the assistance of his roommate in a
plan to rob Smith, but his roommate would not join in the crime. . . .
During the next two days, Miller repeatedly asked his roommate to

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transport him to the Smith residence, but the roommate avoided Miller
and continued to refuse to join the crime.

On April 16, 2006, which was Easter Sunday, after being with
her family during the day, at approximately 7:45 p.m., a neighbor
observed that Smith had returned home and was seated on her front
porch. While Smith was sitting on her porch, Miller arrived after
walking approximately five miles to her residence. Unknown to
Smith, Miller had smoked crack cocaine while he walked and carried
a filet knife. Smith invited Miller inside and provided him with a
glass of water. Miller left the plastic cup on a table, and his
fingerprints were later identified on the cup.

Initially, Smith removed an embroidered jacket she was
wearing and placed it on a chair in the front room. While in the living
room, the two chatted about Smith’s travels to Key West until Smith
became concerned. At that point, Smith opened the blinds on her
front window but Miller then threw her on the couch and attempted to
steal her jewelry. As Smith screamed and resisted, Miller attempted
to prevent her screams by covering her mouth with his hand.

As the struggle ensued, Larry Haydon was in the area walking
his dog when he noticed that Smith’s blinds were open, and through
the window he observed a man, whom he identified as Miller during
trial, struggling with Smith inside her home. Haydon heard Smith
scream and cry out, “Leave me alone.” In response to this distress,
Haydon approached the house. Miller called through the window that
there was no problem inside the house, but Haydon proceeded to open
the unlocked front door.

Miller stated that he was frightened by both the thought of
returning to prison and the screams as Haydon was approaching. As
Haydon entered the house, Miller retrieved the filet knife from the
back of his pants and stabbed Haydon below his rib cage. While
Haydon and Miller were struggling in the living room, Smith escaped
into the backyard. Upon observing the escape, Miller disengaged
from Haydon and followed Smith into the backyard.

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 When Smith saw that Miller had followed her, she again began
to scream. Miller could hear neighbors talking, and ordered Smith to
be quiet, but she continued to scream. Miller admitted that he was
high on crack cocaine and the screaming was “driving [him] crazy.”
He “just lost it” and stabbed Smith three times. Upon being stabbed,
Smith first fell to the ground momentarily but then regained her
footing and ran along the side of her house to the front yard.

After Smith had escaped from the backyard, Miller entered the
house again. When he realized that he had cut himself during the
altercation, Miller retrieved Smith’s embroidered jacket from a chair
in the front room to use as a bandage before escaping through the
back door. As he ran from the Smith residence, Miller discarded the
knife in the bushes of a nearby house. The knife was recovered later,
and ultimately Miller’s DNA was identified on the knife.

As Miller left the scene, a neighbor heard screaming and
observed Haydon run to the home beside the Smith residence. The
neighbor then saw Smith emerge from the backyard screaming for
help. Smith informed the neighbor that a man had broken into her
house. Both Haydon and Smith, covered in blood, sought refuge in
the residence next door. After contacting emergency services, both
Haydon and Smith were transported to the hospital. Haydon survived,
but Smith died in the hospital after undergoing emergency surgery.

....

The jury found Miller guilty as to each count. During the
penalty phase, the medical examiner testified that Smith suffered from
Alzheimer’s dementia, and identified the cause of death as multiple
stab wounds. The medical examiner also testified that Smith was
conscious during and after the attack and likely felt great pain.

The State presented the testimony of Miller’s parole officer in
Oregon, who stated that Miller was currently on parole for armed
robbery and had failed to attend his parole meetings. The State also

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 presented the testimony of several witnesses to establish the
underlying details of Miller’s prior armed robbery and manslaughter
convictions.

Miller presented the testimony of an investigator who
conducted a family background investigation on Miller. In addition,
Miller presented a psychologist who testified with regard to Miller’s
family background and substance abuse history. The psychologist
diagnosed Miller as having an antisocial personality disorder. In
rebuttal, the State presented the testimony of a psychiatrist who also
diagnosed Miller as having an antisocial personality disorder in
conjunction with polysubstance dependence and dysthymia, which is
a long-term, low-level syndrome of depression.

Id. at 209-12. The jury recommended a sentence of death for the murder of Smith

by a vote of eleven to one. Id. at 212.

After the Spencer1 hearing, the trial court imposed a sentence of death. Id.

The trial court found five aggravating circumstances, each of which it gave great

weight: (1) the capital felony was committed by a person previously convicted of a

felony and under a sentence of imprisonment; (2) Miller had been previously

convicted of a felony involving the use or threat of violence to the person; (3) the

capital felony was committed while Miller was engaged in the commission of, or

an attempt to commit, or flight after committing or attempting to commit the crime

of robbery or burglary; (4) the capital felony was especially heinous, atrocious, and

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

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cruel (HAC); and (5) the victim of the capital felony was particularly vulnerable

due to advanced age or disability. Id.

The trial court found no statutory mitigating circumstances, but found six

nonstatutory mitigating circumstances. Specifically, the trial court concluded that

Miller: (1) had a dysfunctional family (some weight); (2) previously served in the

military (very little weight); (3) cooperated with law enforcement (little weight);

(4) demonstrated remorse (very little weight); (5) suffered from antisocial

personality disorder (little weight); and (6) suffered from a long history of

substance abuse (some weight). Id.

On direct appeal, Miller presented six claims. He alleged that the trial court

erred when it: (1) excused a prospective juror for cause; (2) denied Miller’s motion

to suppress his confession; (3) allowed witnesses to mention that the crimes

occurred on Easter Sunday and denied his motion for mistrial on this claim, and

admitted testimony regarding the occupation of the victim’s son; (4) permitted the

admission of evidence that established the underlying prior violent felony

aggravating circumstance; and (5) instructed the jury that it could consider the

avoid arrest aggravating circumstance. Id. at 213-27. Miller also presented

multiple challenges to the constitutionality of Florida’s capital sentencing scheme.

Id. at 214-19. This Court denied relief on all claims and affirmed Miller’s

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convictions and sentences. Id. at 230. The United States Supreme Court denied

certiorari review on January 10, 2011. Miller v. Florida, 131 S. Ct. 935 (2011).

Postconviction Proceedings

On December 21, 2011, Miller filed a motion to vacate judgment of

convictions and sentences. Specifically, Miller alleged that: (1) counsel performed

ineffectively when they failed to obtain a PET scan and present the results to

demonstrate that he did not knowingly waive his rights under Miranda v. Arizona,

384 U.S. 436 (1966), and that his confession was not voluntary; (2) counsel

performed ineffectively when they failed to present expert testimony regarding

Miller’s mental condition to demonstrate that the waiver of his Miranda rights was

involuntary; (3) the State failed to: (a) disclose material impeachment evidence

regarding a State witness, and (b) correct the witness’s false and misleading

testimony (under this claim, Miller also alleged that counsel either were laboring

under an actual conflict of interest or were generally ineffective, thereby

preventing the defense from discovering and utilizing all available evidence to

impeach the witness); (4) counsel performed ineffectively when they hired Dr.

Jeffrey Danziger, listed him as a witness, and then allowed the prosecution to

present his testimony in violation of the attorney-client privilege; (5) counsel

performed ineffectively when they failed to fully investigate and develop social

and mental health evidence that would have been mitigating; (6) counsel

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performed ineffectively when they failed to: (a) object to improper comments

regarding the death penalty during voir dire, (b) present an opening statement

during the penalty phase, (c) object to improper comments by the prosecutor

during opening and closing statements, and (d) argue for mercy during closing

statements. Miller also alleged that his sentence of death should be vacated

because he will be incompetent when this case reaches the conclusion of the

appellate proceedings and, therefore, he will be in a class of individuals who are

categorically excluded from execution. Id. After a case management conference,

the postconviction court granted an evidentiary hearing on every claim except the

incompetency claim.

During the evidentiary hearing, Miller presented eight witnesses. In addition

to the testimony of Gerod Hooper and Larry Henderson, the assistant public

defenders who represented Miller during the guilt and penalty phase trials, Miller

presented the testimony of: (1) David Dempsey, Miller’s roommate at the time of

the murder; (2) Dempsey’s mother, Janice Dempsey; (3) Deborah Hood; and (4) a

Florida Department of Corrections (DOC) probation officer to discuss an incident

that occurred between Dempsey and his mother shortly before Miller’s murder

trial. Miller also presented expert testimony from Dr. Frank Wood, an expert in

neuropsychology and neuroimaging, and Dr. Glenn Caddy, an expert in forensic

psychology and neuropsychology. The State presented three witnesses: (1) Joni

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Johnston, a mitigation specialist employed by the Office of the Public Defender;

(2) Dr. Alan Waldman, an expert in neuropsychology and cognitive neurology; and

(3) Dr. Eric Mings, a psychologist.

On February 24, 2013, the postconviction court issued an order denying all

claims. This appeal followed.

ANALYSIS

Strickland Standard of Review

Several of Miller’s claims challenge the determination of the postconviction

court that counsel did not perform ineffectively during trial. This Court recently

described what a defendant must establish to succeed on a claim of ineffective

assistance of trial counsel:

[T]he test when assessing the actions of trial counsel is not
how, in hindsight, present counsel would have proceeded. See Cherry
v. State, 659 So. 2d 1069, 1073 (Fla. 1995). On the contrary, a claim
for ineffective assistance of trial counsel must satisfy two criteria.
First, counsel’s performance must be shown to be deficient.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient
performance in this context means that counsel’s performance fell
below the standard guaranteed by the Sixth Amendment. Id. When
examining counsel’s performance, an objective standard of
reasonableness applies, id. at 688, and great deference is given to
counsel’s performance. Id. at 689. The defendant bears the burden to
“overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” Id.
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). This Court
has made clear that “[s]trategic decisions do not constitute ineffective
assistance of counsel.” See Occhicone v. State, 768 So. 2d 1037,
1048 (Fla. 2000). There is a strong presumption that trial counsel’s
performance was not ineffective. See Strickland, 466 U.S. at 669.

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 Second, the deficient performance must have prejudiced the
defendant, ultimately depriving the defendant of a fair trial with a
reliable result. [Id. at] 689. A defendant must do more than speculate
that an error affected the outcome. Id. at 693. Prejudice is met only if
there is a reasonable probability that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Both deficient performance
and prejudice must be shown. Id.

Bradley v. State, 33 So. 3d 664, 671-72 (Fla. 2010).

Ineffective assistance claims are reviewed under a mixed standard of review

because the performance and prejudice prongs of Strickland present mixed

questions of law and fact. Id. at 672. Postconviction courts hold a superior

vantage point with respect to questions of fact, evidentiary weight, and the

demeanor and credibility of witnesses. See Cox v. State, 966 So. 2d 337, 357-58

(Fla. 2007). As a result, this Court defers to the postconviction court’s factual

findings if those findings are supported by competent, substantial evidence. See

Bradley, 33 So. 3d at 672. However, the postconviction court’s legal conclusions

are reviewed de novo. Id. Finally, because Strickland requires that a defendant

establish both deficiency and prejudice, an appellate court evaluating a claim of

ineffectiveness is not required to issue a specific ruling on one component of the

test when it is evident that the other component is not satisfied. See Mungin v.

State, 932 So. 2d 986, 996 (Fla. 2006).

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 Our review of counsel’s performance in this case is unique in that

Henderson, Miller’s lead attorney during the penalty phase, testified during the

evidentiary hearing that Miller informed counsel that he did not want to be

executed, but still wanted them to seek a sentence of death. Henderson testified

that Miller, who had spent the majority of his life incarcerated, preferred to live on

death row, where he would have his own cell and television. Miller also was of the

opinion that he was suffering from defects in his frontal lobe that could worsen

over time to such an extent that they may eventually preclude his execution. Miller

was also of the view that for purposes of appeal, a unanimous jury

recommendation of death was not as favorable to his desired outcome as a non-

unanimous jury recommendation. Thus, Miller instructed his attorneys to

approach the penalty phase with the goals of securing a non-unanimous

recommendation while prolonging the direct appeal and postconviction processes

for as long as possible. As a result, Miller instructed his defense team to: (1)

present a limited amount of mitigation to secure a non-unanimous jury verdict; and

(2) preserve as many issues as possible for appeal.2

2. Henderson testified during the evidentiary hearing that he did not notify
the trial court of this strategy because “that was a communication by the client to
me about what he wanted me to do, the results he wanted. It was not an illegal
request. It was not a request that I do something unethical. If it had come to the
point that he said, I don’t want a penalty phase, I don’t want to present anything,

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 During the postconviction proceedings, Miller has not disputed that this was

his strategy, nor does he contend that counsel performed ineffectively when they

followed his instructions to seek the death penalty. Accordingly, in evaluating

counsel’s performance against an objective standard of reasonableness, we keep in

mind the Supreme Court’s statement in Strickland:

The reasonableness of counsel’s actions may be determined or
substantially influenced by the defendant’s own statements or actions.
Counsel’s actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied
by the defendant. In particular, what investigation decisions are
reasonable depends critically on such information. . . . In short,
inquiry into counsel’s conversations with the defendant may be
critical to a proper assessment of counsel’s investigation decisions,
just as it may be critical to a proper assessment of counsel’s other
litigation decisions.

466 U.S. at 691. Based on this context, we address Miller’s claims alleging that

trial counsel performed ineffectively.

Improper Listing of a Witness

In his first claim, Miller alleges that counsel performed deficiently when

they failed to recognize that Dr. Danziger’s testimony was not favorable to the

defense before listing him as a witness, failed to object when the State sought to

depose Dr. Danziger, and failed to object during several portions of Dr. Danziger’s

I’m asking for the death penalty, at the time I would have informed the Court,
naturally, about that.”

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penalty phase testimony. Miller claims that these failures provided the State with

expert testimony that prejudicially impacted the jury with regard to the aggravation

and mitigation presented.

Henderson testified that he retained Dr. Danziger in 2007 to assist in the

determination of whether Miller was competent to proceed to trial. Henderson

testified that he believed Dr. Danziger, a psychiatrist, could provide a unique

perspective of Miller’s life and would also convey to the jury that Miller: (1)

suffered from antisocial personality disorder; (2) had a substantial history of drug

abuse; and (3) had a dysfunctional childhood. Henderson testified that he carefully

limited the information provided to Dr. Danziger and intentionally did not provide

him with specific details of Miller’s homicide conviction in Oregon. In June 2007,

Henderson wrote a letter to Dr. Danziger, expressing concern with Dr. Danziger’s

opinion that antisocial personality disorder could not be considered mitigating.

Henderson explained in the letter that whether a psychological disorder is legally

mitigating was not for Dr. Danziger to determine, and this Court has held that,

under limited circumstances, antisocial personality disorder can be considered as a

mitigating circumstance. See, e.g., Morton v. State, 789 So. 2d 324, 329-30 (Fla.

2001) (concluding that “[b]oth the United States Supreme Court and this Court

have determined that a defendant’s antisocial personality disorder is a valid

mitigating circumstance for trial courts to consider and weigh.”).

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 Several months later, Henderson listed Dr. Danziger as a penalty phase

witness. Shortly thereafter, the State deposed Dr. Danziger. Henderson described

Dr. Danziger’s deposition testimony as “certainly favorable to the State” and as

providing “ammunition” which would allow the State to effectively cross-examine

Dr. Danziger in the event he was presented as a defense witness. Henderson

testified that he was disappointed, but not surprised, by Dr. Danziger’s testimony.

He further explained that after hearing Dr. Danziger’s deposition testimony, he was

forced to reconsider his trial strategy because he realized that Dr. Danziger’s

testimony would actually be unfavorable. Henderson ultimately decided not to

present Dr. Danziger during the penalty phase, and to instead wait for the State to

present his testimony. Henderson believed that if the State presented Dr. Danziger

as a witness, he could effectively cross-examine Dr. Danziger, who would respond

defensively to leading questions. Henderson also thought he could force Dr.

Danziger to admit that antisocial personality disorder can be mitigating under

certain circumstances.

During the penalty phase, the State did present Dr. Danziger as

contemplated, who testified that Miller suffered from polysubstance dependence in

remission; dysthymia, a long-term low level syndrome of depression; and

antisocial personality disorder. Dr. Danziger also described the clinical definition

of antisocial personality disorder and noted that the terms “sociopath” and

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“characterological disorder” are often utilized by members of the psychiatric

community to describe individuals with antisocial personality disorder.

The postconviction court denied this claim, concluding that counsel made

reasonable, strategic decisions both when they listed Dr. Danziger as a witness and

then decided to use a trial strategy to impeach his testimony on cross-examination.

Deficiency

Dr. Danziger was initially retained by the defense as a confidential expert

several months before trial. Henderson had worked with Dr. Danziger in the past

and testified that he retained Dr. Danziger because his unique qualifications and his

status as a medical doctor specializing in psychiatry allowed him to evaluate and

diagnose Miller’s medical illnesses as well as his polysubstance abuse and

antisocial personality disorder. Despite these benefits, Henderson was aware that

Dr. Danziger’s findings would not be overwhelmingly beneficial to the defense,

because Dr. Danziger believed that antisocial personality disorder could never be

utilized as a mitigating factor.

Henderson testified that he had multiple discussions with Miller, during

which he explained that Dr. Danziger’s evaluation would remain confidential until

Dr. Danziger was listed a witness. Henderson also spoke with Miller before listing

Dr. Danziger as a witness, and Miller expressed no objection to presenting Dr.

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Danziger as a penalty phase witness.3 At that point, Henderson listed Dr. Danziger

as a witness pursuant to Florida Rule of Criminal Procedure 3.220(d)(1)(A), which

requires that the defense furnish the prosecutor with a written list of the names and

addresses of all witnesses whom the defendant expects to present during trial.

Curiously, Henderson, who had on multiple occasions discussed with Dr.

Danziger his findings regarding Miller, did not realize until after the State deposed

Dr. Danziger that his testimony was actually more favorable to the State than to the

defense. It appears that Henderson realized for the first time during the deposition,

which occurred less than a month before trial, that Dr. Danziger’s testimony would

“give the State ammunition to do a very effective cross-examination.” Henderson

did not testify during the evidentiary hearing that Dr. Danziger’s deposition

testimony varied from what they had previously discussed, or that he was surprised

by the questions asked by the State. Rather, Henderson’s only explanation as to

why he did not realize the implications of Dr. Danziger’s testimony was that he

was caught off guard by the way Dr. Danziger answered the prosecutor’s questions

3. Miller contends that counsel’s decision to list Dr. Danziger as a witness
violated his rights to remain silent, to develop mitigation, and to counsel. This
claim lacks merit because Miller understood that listing Dr. Danziger as a witness
meant the information he disclosed to Dr. Danziger would no longer remain
confidential, and Miller did not oppose the decision to present Dr. Danziger as a
witness. Thus, counsel did not perform ineffectively. See Teffeteller v. Dugger,
734 So. 2d 1009, 1019-20 (Fla. 1999) (explaining that counsel cannot be deemed
ineffective for failing to present a meritless issue).

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during the deposition. Only then did Henderson realize that he needed to change

his trial strategy.

We conclude that this conduct constitutes deficient performance. Before

listing Dr. Danziger as a witness, Henderson was aware that his testimony would

not be favorable to the defense, yet he still believed the benefits of Dr. Danziger’s

testimony outweighed the detriments to such an extent that he was willing to

relinquish his exclusive control over any confidential communications between

Miller and Dr. Danziger. For some unknown reason, Henderson did not appreciate

or even realize the negative implications of Dr. Danziger’s testimony until the

State deposed him less than a month before trial. This evidence demonstrates that

Henderson’s “strategy” to impeach Dr. Danziger’s conclusions during cross-

examination was an afterthought, hastily made only after he realized that the

expert’s testimony was significantly more unfavorable to the defense than he

originally envisioned. Henderson should have recognized and understood the

implications of Dr. Danziger’s testimony and the consequences of listing a

confidential expert as a witness before he listed Dr. Danziger. Counsel’s failure to

fully assess the negative implications of Dr. Danziger’s testimony before listing

him as a witness was objectively unreasonable and cannot be considered a

reasonable trial strategy.

Prejudice

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 To establish prejudice, Miller must demonstrate a reasonable probability

exists that Miller would not have received the death penalty had Dr. Danziger’s

testimony not been presented. See Simmons v. State, 105 So. 3d 475, 503 (Fla.

2012). Miller contends that six aspects of Dr. Danziger’s testimony prejudicially

impacted the outcome of the penalty phase. Specifically, Miller alleges that Dr.

Danziger improperly: (1) “dwelled” on the diagnosis of antisocial personality

disorder; (2) equated the terms “sociopath” and “characterological disorder” with

antisocial personality disorder; (3) described the circumstances of Miller’s military

service; (4) recounted what Miller had told him regarding the murder; (5) testified

that Miller did not meet the requirements of two statutory mitigating

circumstances; and (6) testified that he was initially retained by the defense. While

Miller quotes several portions of Dr. Danziger’s testimony that he believes are

prejudicial, he fails to present any legal authority, or, for that matter, analysis that

demonstrates this testimony, individually or cumulatively, undermines confidence

in the outcome of the penalty phase.

For example, Miller alleges that Dr. Danziger dwelled on his diagnosis of

antisocial personality disorder and “injuriously and prejudicially equate[d]

sociopathy with antisocial personality disorder.” However, before Dr. Danziger

testified, the defense had already presented Dr. Mings, who testified that Miller

suffered from polysubstance abuse and antisocial personality disorder. Dr. Mings

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explained that antisocial personality disorder “is a way of interacting in the world

where one tends to invade the rights of other.” Further, on cross-examination, the

prosecutor elicited from Dr. Mings that Miller satisfied several of the diagnostic

criteria associated with antisocial personality disorder.4

Dr. Danziger, who was presented by the State in rebuttal, explained the

clinical definition of antisocial personality disorder and how the disorder relates to

the term “sociopath.” He discussed the relevant diagnostic criteria for the disorder,

and testified that antisocial personality disorder and the term “sociopath” are

synonyms that are “often used interchangeably by psychiatrists.” These statements

were only cumulative to the testimony of Dr. Mings and merely explained how the

terms “antisocial personality disorder” and “sociopath” were used in the

psychiatric community. Miller has failed to present any legal authority that this

Court, or another court, has found similar statements to be sufficiently prejudicial

to undermine confidence in a sentence of death. Miller’s other allegations with

regard to Dr. Danziger’s penalty phase testimony are similarly supported only by

speculative allegations of ineffectiveness, instead of facts and legal authority.

Furthermore, based on the established aggravation (five aggravating

4. The defense also presented Dr. Drew Edwards, an expert in
addictionology, who testified that Miller suffered from antisocial personality
disorder and discussed the correlation between antisocial personality disorder and
substance abuse.

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circumstances, all of which were given great weight), the relative lack of

mitigation (zero statutory mitigating circumstances and six nonstatutory mitigating

circumstances, only two of which were afforded “some weight”), we conclude that

Miller has failed to demonstrate that he was prejudiced by counsel’s deficiency,

and we affirm the denial of this claim.

Failure to Present Mitigation

In his next claim, Miller alleges that trial counsel failed to present substantial

mitigating evidence during the penalty phase. The postconviction court denied this

claim, concluding that trial counsel “fully investigated and presented available

mitigating evidence regarding Mr. Miller’s social history.”

Before trial, the defense hired a mitigation specialist to assist in the

development of evidence for the penalty phase. She prepared a detailed social

history, which included information obtained from Miller’s family members;

medical, juvenile, and criminal records; and prison records from Florida and

Oregon. This information was utilized by multiple mental health experts, who

provided extensive testimony during the penalty phase regarding Miller’s

dysfunctional childhood and polysubstance abuse. See Miller, 42 So. 3d at 212.

Of the six nonstatutory mitigating circumstances found by the trial court, three

addressed Miller’s childhood and troubled background. Id.

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 During the evidentiary hearing, Miller presented Dr. Caddy, who provided a

bleak history of Miller’s childhood and upbringing. Dr. Caddy described his

childhood as “dysfunctional,” and testified that Miller’s mother abandoned him at

a young age. Miller also had an abusive and disconnected relationship with his

stepfather. Dr. Caddy further explained that from the age of four onward, Miller

was “thrown out of the house for extended periods of time[,] living under the

house, sometimes living in the basement of the house or not living in the

immediate area of his [step]father.” Dr. Caddy noted that Miller had been exposed

to alcohol at a very young age, which initiated a pattern of alcohol abuse that

eventually led to substantial drug abuse.

Dr. Caddy’s investigation further revealed that while Miller attended reform

school, he was raped by a fellow classmate who he believed to be his friend. Dr.

Caddy described this as a pivotal point in Miller’s life when he “realized he

couldn’t really trust anybody.” Dr. Caddy explained that Miller “suffered

protracted sexual abuse” during this time, and developed a hatred for men. Several

years later, while living in Oregon, Miller killed a homosexual man who made

sexual advances toward him. According to Miller, the man attempted to prevent

him from forming a relationship with “the only woman in his life that really cared

about him and that he felt that he loved.” Miller also informed Dr. Caddy that he

spent a period of time in a Texas prison where he almost died because he was

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placed in solitary confinement for several weeks without food or water. In

addition, Miller was purportedly attacked by another prisoner who hit him on the

back of the head with the blunt end of a pickaxe.

In rebuttal, the State presented Dr. Waldman who testified that Dr. Caddy’s

testimony regarding Miller’s extensive history of sexual abuse was not reflected in

the record. Dr. Waldman noted that Miller’s stories of his injuries and his past

often varied from person to person:

DR. WALDMAN: [T]here’s stories he tells about working on a yacht
and having sex with [someone’s] wife—excuse me. That, I never
heard before. He talks about being hit on the head with a pick axe.
That, I never heard before. There’s a statement in a couple of entries
in Oregon where he said he got hit with a piece of metal in the mid
sixties, but not a pick axe. It says in Dr. Caddy’s report that he got
kicked by a horse, and that’s why he has low back problems.

STATE: Did you see that contradicted in any of his records?

....

DR. WALDMAN: [Yes.] That he had a motorcycle accident and
that’s why he had low back problems. I never saw anywhere in a
large amount of documents anything about being hit with a pick axe,
kicked by a horse, [] raped in Texas, beat in Texas, run over by
tractors or chipping devices. I never saw any reference to that.

In fact, one of Miller’s experts, Dr. Wood, testified during the evidentiary hearing

that he did not rely on Miller’s social history because he believed that Miller was

- 22 -
intentionally providing false information, and that Miller’s story was full of

“confabulation and rather wild assertions.”5

We conclude that trial counsel conducted a reasonable investigation into

available mitigation. Miller specifically directed his trial counsel to present only a

limited amount of mitigation with the goal of securing some “life votes,” but not

enough to convince a majority of the jury to recommend a life sentence.

Consistent with this request, defense counsel hired a mitigation specialist who

travelled to multiple states to collect information with regard to Miller’s life and

background. Two expert witnesses presented testimony describing how Miller’s

background contributed to his diagnoses of polysubstance dependence and

antisocial personality disorder, and his diminished mental functioning. Further,

there is no evidence in the record that Miller, despite being evaluated by Dr.

Mings, Dr. Edwards, and Dr. Danziger before the penalty phase, disclosed to

anyone the “deep trauma, deprivation and abuse” he described to Dr. Caddy during

the postconviction proceedings. By failing to disclose the purportedly pervasive

abuse and other traumatic aspects of his social history during the trial proceedings,

5. In addition to the reasons previously discussed, we have significant
concerns regarding the completeness and accuracy of Dr. Caddy’s testimony with
regard to Miller’s social history in light of the fact that Miller: (1) previously
indicated that his goal was to prolong his appellate proceedings as long as possible;
and (2) is the only source upon which Dr. Caddy relied to evaluate the particularly
traumatic portions of Miller’s background.

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Miller cannot now complain that trial counsel unreasonably failed to pursue or

present such mitigation. See Stewart v. State, 801 So. 2d 59, 67 (Fla. 2001).

Counsel reasonably investigated and presented available mitigation regarding

Miller’s social history and we affirm the denial of this claim.

Failure to Obtain a PET Scan

Miller next alleges that trial counsel performed deficiently by failing to

obtain a PET scan to demonstrate that he suffers from significant mental

deficiencies that prevented him from knowingly, intelligently, and voluntarily

waiving his Miranda rights. Miller asserts that counsel should have been aware of

his diminished mental functioning due to behavioral variant frontotemporal

dementia, other neuropsychological impairments, and ongoing substance abuse.

Approximately three days after the murder, Miller was arrested and

transported to the Orlando Police Station. Miller, 42 So. 3d at 211. Prior to the

interrogation, Miller informed law enforcement that “for the first time in his life”

he wanted to speak with the police and asked if he could have a single jail cell and

his cellular phone. Id. at 220. After he was escorted to an interrogation room, a

law enforcement officer read Miller his Miranda rights from the standard card used

by the Orlando Police Department. Id. After Miller affirmed that he understood

these rights, he waived them and confessed to stabbing Smith and Haydon. Id.

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Miller subsequently moved to suppress the confession, but the motion was denied

by the trial court. Id.

During the pretrial proceedings, trial counsel retained two experts who

evaluated Miller neurologically and determined that he was competent to proceed

to trial. Dr. Mings testified during the evidentiary hearing that when he evaluated

Miller pretrial, he determined that Miller had a full-scale IQ of 102, which is

within the average range, and Miller also “did quite well on [the memory test,

which] was consistent with his general intellectual ability.” Dr. Mings testified

that he did not see any “gross impairment” with respect to Miller’s semantic

memory skills, and noted that Miller scored in the average range on the Wisconsin

Card Sorting Test. He otherwise scored average or slightly below average on the

remaining tests except the Rey-Osterrieth Complex Figure test, a visual-spatial

memory test, where he demonstrated mild problems in completing the test.

Ultimately, Dr. Mings concluded Miller exhibited some mild decline in general

intellect, but did not demonstrate any gross neurological impairments.

Henderson testified during the evidentiary hearing that both Dr. Mings and

Dr. Danziger recommended that the defense order neuroimaging before trial. Dr.

Danziger believed that neuroimaging was necessary because Miller was suffering

from “mild deficits, probably in his frontal lobe in his cognitive process[, a]nd that

it would probably not rise to the level of a substantial impairment, but there was

- 25 -
some impairment.” As a result, Henderson consulted with a neurologist regarding

whether an MRI or a PET scan would provide the best results. Henderson decided

to obtain an MRI after the neurologist informed him that a PET scan would likely

not be productive.6 Dr. Mings concluded that the results of the MRI were

“unremarkable except for a shrinkage of the left hippocampal, which . . . might be

associated with memory abilities, particularly verbal memory abilities.”

During the evidentiary hearing, Dr. Wood, a neuropsychologist, testified that

he reviewed the reports of Dr. Sadler, the radiologist who administered Miller’s

MRI in 2007, and Dr. Cambridge, another radiologist. Dr. Wood testified that Dr.

Sadler found two abnormalities in Miller’s brain, hippocampal sclerosis, which Dr.

Wood testified is the scarring or shrinking of brain matter, and Virchow-Robin

spaces. He testified that these abnormalities are commonly found in the early

stages of dementia. Dr. Wood also testified that Dr. Cambridge determined that

Miller was suffering from mild, but immediate short-term and long-term memory

deficits. Dr. Wood noted that Dr. Cambridge also found there was no evidence

from the 2007 MRI of acquired brain damage. Dr. Wood concluded that the MRI

showed evidence of brain atrophy that was within the normal range.

6. Henderson testified that he chose the MRI because: (1) Miller had
previously obtained an MRI and was familiar with the procedure; and (2) the PET
scan, which requires the injection of radioactive material, would have been more
invasive to Miller, who was fifty-nine years old at the time.

- 26 -
 Dr. Wood reviewed the results of a PET scan conducted during the

postconviction proceedings, and concluded that it demonstrated atrophy “well into

the abnormal range,” and that the peak measure of Miller’s anterior cingulate

cortex and orbitofrontal cortex fell below the first percentile. Ultimately, Dr.

Wood concluded it was probable that Miller was suffering from behavioral variant

frontotemporal dementia, a disease characterized by behavioral symptoms of social

dysfunction and apathy. Dr. Wood further opined that Miller has:

declining metabolism in the frontal areas, specially. That he has
atrophy outside normal limits for his age and that his behavior has
also declined rather substantially, to the extent that I know he must
have had these symptoms in 2006 and ‘07. . . . Not only did he have
hippocampal sclerosis and memory problems in the 2006, 2007, area,
in my opinion, his behavior was not fully normal then either. I’m
satisfied then to say that he was already substantially under the
influence of this disease.[7]

Based on this diagnosis, Dr. Wood concluded that Miller committed the murder

while he was under the influence of an extreme emotional or mental disturbance,

and that he was incapable of conforming his conduct to the requirements of law,

two statutory mitigating circumstances.

7. Similarly, Dr. Caddy testified that Miller had “impaired brain function
and that it is likely that his brain functioning has deteriorated abnormally over time
and probably as a direct consequence of the impact of the substances that he has
used, especially the inhalants.”

- 27 -
 Dr. Waldman, an expert in neuropsychology and cognitive neurology who

testified for the State, disagreed with Dr. Wood’s diagnosis of behavioral variant

frontotemporal dementia because he saw none of the symptoms generally

associated with the disease, such as a gross personality change from a previous

level. There was no cognitive or motor perseveration, apathy, hypertrophy,

occupation with eating and putting things in his mouth, or loss of ability to

abstract. Instead, Dr. Waldman testified that the record reflects that shortly after

the crime Miller presented himself appropriately, was well organized, and was

coherent in both written and oral communications. According to Dr. Waldman,

this behavior demonstrated that Miller was able to use his memory to draw

inferences and reach conclusions, and also that Miller was concerned about the

outcome of the trial and actively involved in his defense.8 Thus, Dr. Waldman

concluded that Miller did not demonstrate significant impairments in frontal lobe

functioning prior to trial.

8. This conclusion was supported by the testimony of Joni Johnston,
Miller’s mitigation specialist, and Hooper. Johnston testified that she interacted
with Miller during the pretrial proceedings and that Miller “presented to me as
intelligent, calm. . . . [H]e knew exactly what he wanted, how he wanted to
proceed.” She explained that his social skills were “acceptable. . . . He interacted
with me in a polite manner.” Johnston testified that she did not observe any
cognitive deficits in Miller, but instead found him to be “quite intelligent.”
Similarly, Hooper testified that Miller was articulate, intelligent, and aware.

- 28 -
 Finally, Dr. Waldman reviewed Miller’s 2007 MRI scan and Dr.

Cambridge’s and Dr. Sadler’s reports. Dr. Waldman explained that hippocampal

sclerosis may be an early sign of a dementia-type syndrome or disease, but that it

would primarily affect short-term memory. He testified that with regard to Miller,

“[t]here is a little bit of temporal lobe atrophy bilaterally,” but explained that “it’s

not consistent with frontotemporal dementia” and “[t]here isn’t a degradation of

whole lobes of this brain.” Finally, Dr. Waldman explained that there was nothing

noteworthy about Miller’s ventricle to brain ratio, and concluded that “the

metabolism shown in that PET scan was not consistent with a medical diagnosis of

frontotemporal dementia.”

Miranda

Before addressing the merits of this claim, we note that it is procedurally

barred. On direct appeal, we rejected Miller’s claim that the trial court erred when

it denied the motion to suppress his confession on the basis that the officers who

conducted the interrogation failed to advise him that he had the right to appointed

counsel during questioning. Id. at 219-20. Miller now attempts to relitigate the

voluntariness of his confession on the basis that evidence of his mental

impairments and substance abuse was not uncovered until the postconviction

proceedings. Since the voluntariness of Miller’s confession was addressed and

rejected by this Court on direct appeal, he cannot now relitigate a substantially

- 29 -
similar claim under the guise of ineffective assistance of counsel. See Freeman v.

State, 761 So. 2d 1055, 1067 (Fla. 2000).

Even if we were to conclude that this claim of ineffectiveness was not

procedurally barred, which we do not, this claim lacks merit. In affirming the

denial of the motion to suppress on direct appeal, we concluded that Miller fully

understood his Miranda rights:

Miller has prior experience with the law and exposure to
the Miranda warnings. “The crucial test is whether the words in the
context used, considering the age, background and intelligence of the
individual being interrogated, impart a clear, understandable warning
of all of his rights.” Coyote v. United States, 380 F.2d 305, 308 (10th
Cir. 1967). Miller’s background and knowledge of law enforcement
demonstrate that he understood the warnings with regard to his rights.
In fact, he expressly stated to law enforcement that he normally
would not talk to police and would first to talk to an attorney, but was
going to “do something that he had never done before.” Thus, Miller
expressed a willingness to talk that was premised on his prior
understanding that he had a right to an attorney, which is a right he
normally utilized. When the warnings given to Miller are considered
in context with his age, background, and intelligence, they imparted a
“clear, understandable warning of all of his rights.” Coyote, 380 F.2d
at 308.

Miller, 42 So. 3d at 223. This conclusion is supported by the mental health

experts’ evaluations of Miller, none of whom concluded that the results of the MRI

or their neurological evaluations indicated that his neurological impairments

prohibited him from making a knowing, voluntary, and intelligent waiver of his

Miranda rights. In fact, Dr. Mings testified during the evidentiary hearing that the

defense specifically retained him to determine whether Miller was competent to

- 30 -
waive his Miranda rights. Dr. Mings conducted an “Assessing, Understanding, and

Appreciation of Miranda Rights” questionnaire and determined that Miller “made

very few, if any, errors on that. He understood all of the questions, [and] answered

them appropriately.” Similarly, Dr. Waldman testified that Miller’s oral and

written communications before trial demonstrated that Miller was able to rely on

his memory to make cogent arguments and actively participate in his defense. As a

result, Hooper testified that competency to waive Miranda rights was not an issue

in the case because Miller did not have “any doctor at that point give any opinion

that he wasn’t competent to waive Miranda, and certainly didn’t give me any

indication that he had any competency problems at all.”

Although Miller has now discovered experts who are willing to testify that

he is currently suffering from behavioral variant frontotemporal dementia, neither

expert could offer a conclusion as to how much of Miller’s current neurological

condition can be attributed to deterioration that has occurred in the five-and-a-half

years since trial. Specifically, Dr. Caddy was asked:

STATE: Okay. And you really can’t offer a firm and reliable
conclusion on how much of his present condition is due to
deterioration in the five and a half years since the time of the trial, can
you?

DR. CADDY: I would agree with that, yes. You’re right. I cannot
do that.

STATE: And at the present time, you found, basically, from what I
understand mild impairment in your testing?

- 31 -
 DR. CADDY: Mild but significant. Still in the pathological range.

The foregoing facts demonstrate that: (1) trial counsel thoroughly

investigated the possibility that Miller’s purported neurological impairments,

memory deficits, and substance abuse problems may have interfered with his

ability to knowingly, voluntarily, and intelligently waive his Miranda rights and

determined that they did not; and (2) Miller has failed to present any evidence to

contradict our conclusion on direct appeal that Miller clearly understood and

waived his Miranda rights. Further, trial counsel reasonably relied on Dr. Mings’

and Dr. Danziger’s professional opinions regarding neuroimaging that it was not

necessary for Miller to undergo a PET scan. Buzia v. State, 82 So. 3d 784, 791

(Fla. 2011) (holding counsel’s reliance on expert’s opinion that capital murder

defendant had no indication or history of cognitive impairment and that no further

neurological testing was required did not constitute deficient performance).

Accordingly, we hold that because it is evident Miller has failed to demonstrate

deficient performance, this Court need not address the prejudice prong of

Strickland. See Mungin, 932 So. 2d at 996. The postconviction court did not err

in denying this claim.

Statutory Mitigating Circumstances

Miller contends that counsel were ineffective for failing to obtain a PET

scan before trial, which purportedly would have demonstrated that he suffered

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from behavioral variant frontotemporal dementia. Miller contends that this

debilitating and progressive disease would have established two statutory

mitigators that were not presented during the penalty phase. Thus, Miller claims,

had a PET scan been conducted before trial, the jury would have weighed this

mitigation in combination with Miller’s history of trauma and drug abuse.

Without addressing deficiency, we conclude that Miller has failed to

establish prejudice. See id. In the context of penalty phase errors, prejudice is

established when the defendant can demonstrate that “absent the errors, there is a

reasonable probability that the balance of aggravating and mitigating

circumstances would have been different or the deficiencies substantially impair

confidence in the outcome of the proceedings.” Simmons, 105 So. 3d at 503

(quoting Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011)). To assess whether

there is a reasonable probability that counsel’s performance prejudicially impacted

the penalty phase proceedings, this Court evaluates the totality of the mitigation

evidence presented both during trial and the postconviction proceedings, and

reweighs it against the established aggravation. Id.

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

the trial court found five aggravating circumstances—including, among others,

HAC and prior violent felony, which are two of the weightiest aggravating

circumstances in Florida’s capital sentencing scheme—and gave all five great

- 33 -
weight. Miller, 42 So. 3d at 212; see also Hodges v. State, 55 So. 3d 515, 542 (Fla.

2010) (“Qualitatively, prior violent felony and HAC are among the weightiest

aggravators set out in the statutory sentencing scheme.”). In comparison, the

mitigation presented was relatively minor. The trial court found zero statutory

mitigating circumstances, and only six nonstatutory mitigating circumstances, none

of which received more than “some weight.” Id.

Miller claims that Dr. Wood’s evidentiary hearing testimony and diagnosis

of behavioral variant frontotemporal dementia demonstrate that two statutory

mitigating circumstances—extreme mental or emotional disturbance, and inability

to conform one’s conduct to the requirements of law—would have been

established if his testimony had been presented during the penalty phase. Dr.

Wood’s diagnosis indicates that Miller is currently suffering from a mild, but

significant and progressive brain impairment. However, neither Dr. Wood nor Dr.

Caddy could quantify how much Miller’s brain had deteriorated between the time

of the murder and the time of his 2011 PET scan. Instead, the record demonstrates

that Miller’s mental condition around the time of the murder was substantially

investigated by multiple mental health experts who informed trial counsel that he

did not suffer from any major cognitive impairments. Additionally, during the

postconviction proceedings, Dr. Wood’s conclusion that Miller exhibited

frontotemporal dementia in 2007 was disputed by Dr. Waldman, who testified that

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Miller was not, and is not currently, suffering from frontotemporal dementia. Dr.

Waldman’s conclusion is supported by record evidence demonstrating that Miller

exhibited organized and cogent behavior in his written and oral communications

shortly before trial.

Furthermore, Dr. Wood’s testimony during the evidentiary hearing that

Miller met the criteria for two statutory mitigating circumstances was directly

refuted by the penalty phase testimony of Dr. Danziger. During the penalty phase,

Dr. Danziger concluded that Miller did not commit the murder under an extreme

mental or emotional disturbance, specifically stating that:

extreme would be somebody who was extremely psychotic,
responding to hallucinations, suffering from some sort of delusion or
paranoid beliefs, suffering from some sort of extreme mania, that
there was some active major mental illness that significantly impacted
on their behavior. Antisocial personality disorder, in my opinion, is
more of a lifelong character pathology. I would not view that as
resulting in an extreme state of emotional disturbance.

Dr. Danziger further testified that Miller’s capacity to appreciate the criminality of

his conduct or conform his conduct to the requirements of law was not

substantially impaired at the time of the murder. Thus, had Miller presented Dr.

Wood’s testimony regarding the presence of statutory mitigation during the penalty

phase, that testimony would have been refuted by the testimony of Dr. Danziger.

In sum, neither Dr. Wood nor Dr. Caddy were able to quantify how much

Miller’s brain has deteriorated since the time of the murder. Dr. Wood’s

- 35 -
conclusion that Miller suffered from frontotemporal dementia, both currently and

at the time of the murder, was refuted by the testimony of Dr. Waldman. Miller

has failed to rebut evidence that demonstrates he possessed sufficient mental acuity

to actively and intelligently participate in his defense. Finally, Dr. Wood’s

conclusion during the postconviction proceedings that Miller’s mental impairments

established the applicability of two statutory mitigating circumstances was directly

refuted by a mental health expert who evaluated Miller shortly after the murder and

testified during the penalty phase that the statutory mitigating circumstances were

not applicable. Thus, we conclude that Miller has failed to establish that had Dr.

Wood’s testimony been presented during the penalty phase the outcome probably

would have been different, and our confidence in his sentence of death has not

been undermined. We affirm the denial of this claim.

Brady, Giglio, and Conflict of Interest

David Dempsey, who was Miller’s roommate and friend at the time of the

murder, testified during trial that he and Miller stopped at the victim’s house and

spoke with the victim for approximately thirty minutes. Miller, 42 So. 3d at 210.

During that conversation, Miller and Dempsey noticed that the victim wore a

substantial amount of jewelry and appeared to suffer from pronounced memory

lapses. Dempsey was asked by the prosecutor what he and Miller discussed in the

car after they left the victim’s house, to which he responded:

- 36 -
 DEMPSEY: When we—when we pulled off from—from talking to
her, um, he made a—a statement about how, you know, she—she
didn’t know what she was doing and, um, he would be—he said that
he would be able to come back there and—and just—she just wanted
to talk to people is what he said. He said, I could come back there and
just talk to her any time and work my way into the house and rob her.

STATE: Did you say anything to him when he said that?

DEMPSEY: I told him that I didn’t want to hear anything about it. I
mean, I’m not a perfect person, but I don’t rob people.

After that statement, Dempsey informed the jury he had been convicted of “four to

six” felonies, the majority of which were either grand theft auto or possession of

cocaine. He further testified that he was on probation for dealing in stolen

property, and that he had recently violated his probation for failing a drug test.

In this claim, Miller presents ineffective assistance claims under Brady v.

Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972),

and conflict of interest claims. Specifically, he alleges that Dempsey lied to the

jury when he testified that he does not “rob people.” Miller contends that shortly

before testifying, Dempsey became violent with his mother and stole her car. He

alleges that counsel performed deficiently when they failed to uncover and utilize

this incident to further impeach Dempsey, and that an actual conflict of interest

prevented counsel from fully investigating Dempsey’s background. He also asserts

that the State actively withheld this information and knowingly failed to correct

Dempsey’s testimony that he did not commit robberies.

- 37 -
 Evidence Presented During the Evidentiary Hearing

During the evidentiary hearing, Miller presented several witnesses to support

these allegations. Janice Dempsey, Dempsey’s mother, testified that during the fall

of 2007, her son was living in her home while serving probation for stealing her

personal belongings. One afternoon, Dempsey demanded money from her and

attempted to drive her car without permission. Dempsey’s mother testified that

although she and Dempsey engaged in a “tug-of-war” for the keys, Dempsey did

not attempt to strike or harm her. Eventually, she released the keys and called the

police, who refused to assist her. Dempsey’s mother testified that she vaguely

remembered contacting Dempsey’s probation officer about the incident, but could

not remember the details of the conversation because the argument was not a “big

incident” in her life. Similarly, Dempsey testified that he remembered engaging in

verbal arguments with his mother over his use of her vehicle, but he testified that

he never physically attacked his mother or engaged in a “tug-of-war” with her over

the car keys.

Finally, Deborah Hood, who lived with Miller and Dempsey before the

murder, testified that she chased him out of her house with a baseball bat on

multiple occasions because Dempsey would often take money and drugs from her

without her permission. However, during cross-examination, Hood testified that

she never contacted the police regarding Dempsey’s behavior and could not

- 38 -
specifically remember when or why she attacked Dempsey. Rather, Hood testified

that during this time she, Miller, and Dempsey were frequently using drugs, and

she was consuming drugs around the times that she attacked Dempsey. After the

murder, Hood moved to Michigan, and did not make any attempt to notify

authorities in Florida that she had moved, and testified that it would have been

difficult to find her during that period of time.

Strickland, Brady, and Giglio

Miller established during the evidentiary hearing that Dempsey was on

probation and living at his mother’s house shortly after the murder. At some point

between the murder and Miller’s trial, Dempsey had a disagreement with his

mother, during which Dempsey demanded money and attempted to take her car

keys. This evidence did not form the basis for a probation violation, nor does it

constitute a robbery.9 It proves only that Dempsey and his mother had a

disagreement, which, according to Dempsey, happened frequently. As the

postconviction court noted, evidence of this “robbery” would more than likely not

have been admissible during trial because it did not result in a conviction and was

not material or relevant to the murder.

9. According to a DOC probation officer, Dempsey’s probation records
reflected that he had committed three violations, but they did not include a
violation for the incident reported by his mother.

- 39 -
 Moreover, Miller does not dispute that he acted alone when he murdered the

victim. Therefore, the evidence of Dempsey’s disagreement with his mother, if

presented during trial, would demonstrate only that: (1) his statement as to why he

did not assist Miller in robbing the victim was untrue; and (2) Dempsey had

previously committed felonies, a fact that he readily admitted during trial.

Furthermore, even if Dempsey had not testified during trial, substantial and

compelling evidence, including Miller’s confession, and physical evidence linking

Miller to the murder, definitively establishes that Miller murdered the victim. See

Miller, 42 So. 3d at 227-28. Thus, the value of this evidence was at best minimal,

and would have in no way prejudicially impacted or undermined confidence in the

outcome of the guilt phase. Thus, Miller has failed to demonstrate that his counsel

were ineffective.

Miller has also failed to establish the materiality prong of both Brady and

Giglio and has also made no attempt to establish that this evidence was willfully or

inadvertently suppressed by the State, or that the prosecutor knew that Dempsey’s

trial testimony was false. See Kilgore v. State, 55 So. 3d 487, 506-07 (Fla. 2010)

(“To establish a Brady violation, the defendant has the burden to show (1) that

favorable evidence—either exculpatory or impeaching, (2) was willfully or

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

the defendant was prejudiced.”); Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003)

- 40 -
(“To establish a Giglio violation, it must be shown that: (1) the testimony given

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

was material.”). Accordingly, we affirm the postconviction court’s denial of the

Strickland, Brady, and Giglio portions of this claim, and hold that counsel did not

perform ineffectively.

Conflict of Interest

Miller next alleges that because the Office of the Public Defender was

actively representing both Dempsey and Miller at the same time, defense counsel

did not thoroughly investigate Dempsey’s background or the evidence previously

discussed concerning Dempsey’s purported robbery of his mother.

The potential conflict of interest was discussed during a November 28, 2006,

status hearing. Miller’s counsel informed the trial court that they intended to

depose Dempsey, and mentioned that he had been previously represented by other

attorneys in the public defender’s office on unrelated charges. Counsel informed

the trial court that they had not previous represented Dempsey, and did not access

Dempsey’s closed file or his confidential communications with counsel. Counsel

advised the court that they had discussed this issue with Miller, who stated that he

was willing to waive any conflict of interest claim. Later in the hearing, the court

asked Miller whether he approved of his counsel’s continued representation despite

the potential conflict. Miller responded that he had discussed this potential conflict

- 41 -
of interest and he wished for his counsel to continue to represent him.

The right to effective assistance of counsel encompasses the right to

representation free from actual conflict. See Hunter v. State, 817 So. 2d 786, 791

(Fla. 2002). However, a defendant may waive the right to conflict-free counsel,

and this waiver will be affirmed when the record indicates that a defendant: (1)

was aware of the conflict of interest; (2) realized the conflict could affect the

defense; and (3) knew of the right to obtain other counsel. McWatters v. State, 36

So. 3d 613, 635 (Fla. 2010). During the November 28 hearing, Miller specifically

indicated he was aware that the public defender’s office had previously represented

Dempsey. He was informed that his counsel could, but would not, access the

confidential records and communications between Dempsey and his prior counsel.

Finally, Miller addressed the trial court and confirmed that he understood he could

object to continued representation by the public defender’s office, but wished to

retain his current counsel.

Accordingly, we conclude that Miller waived his ability to assert that his

counsel labored under an actual conflict of interest, and affirm the postconviction

court’s denial of this claim.

Allegedly Improper Comments and Instructions

Miller’s next claim contains four subparts. First, he alleges that trial counsel

were ineffective when they failed to object to improper comments of both the trial

- 42 -
court and the prosecutor during voir dire. Next, Miller alleges that the prosecutor

misstated the law during opening and closing statements. Third, Miller alleges that

trial counsel were ineffective when they failed to present an opening statement.

Finally, Miller alleges that the trial court improperly instructed the jury at the close

of the penalty phase. Before addressing the merits of these claims, we note that

they are procedurally barred, as these claims could and should have been raised on

direct appeal. See Garcia v. State, 949 So. 2d 980, 990 (Fla. 2006).

Jury Selection

Miller contends that the prosecutor and the trial court improperly informed

three jurors who served on the jury that they were required to vote for a sentence of

death under certain circumstances.10 Immediately before the venire was

questioned, the trial court instructed:

Caution, every one of us have ideas and notions about certain things.
We have ideas and notions about the death penalty. Some of us have
ideas when it should be applied, some of us have ideas when it should
not be applied. What we’re gonna simply ask, and some people can
do it and some people can’t do it, to lay aside any of your personal

10. Miller also alleges that improper comments were made by the trial court
and the prosecutor to five additional members of the venire. However, each juror
was questioned individually by the trial court and the parties away from the rest of
the panel, and none of these potential jurors served on the jury. Miller presents no
evidence that these jurors communicated with other potential jurors or tainted the
jury pool in any way. Accordingly, because Miller has failed to demonstrate how
counsels’ failure to object to the comments made to these five jurors undermines
confidence in his sentence of death, we affirm the postconviction court’s denial of
relief relating to these potential jurors.

- 43 -
 opinions about the death penalty and, if we get to that point, make
whatever decision you make solely on the law that I’ll give you and
the facts in evidence.

We reiterate that we review this claim of ineffectiveness in light of Miller’s

instruction to trial counsel that if he were convicted, he wanted counsel to

strategically approach the penalty phase with the intention of securing a non-

unanimous death recommendation.

Juror Number 43

During voir dire, the prosecutor asked juror 43 whether there was a risk that

his religious beliefs would interfere with his ability to follow the law and, if

appropriate, vote for a sentence of death. The juror responded that the question

was difficult to answer in the abstract, but he believed he would have difficulty

setting aside his religious beliefs to vote for a sentence of death. The prosecutor

then stated:

PROSECUTOR: All right. And you feel that you can’t commit to
setting aside your religious beliefs and just deciding this based on the
law?

JUROR 43: I think that I can do that. I thought the question was
whether it would be more difficult to do so.

PROSECUTOR: Well, by difficult, I mean that it actually might
prevent you? In other words, if you’re saying I’m going to weigh the
law, let me check the box for death because the aggravators outweigh
the mitigators and there’s no conscience there, you’re just objectively
doing that, it’s really easy to make that check. What I’m asking you
is—well, I know I have to make the check under the law, I have these
religious beliefs, but I have to follow the law, it’s harder to do because

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 you’re doing that, but you’ve said I’m strong, I have to set aside those
religious beliefs, I’m not going to incorporate those religious beliefs
for me to vote a way that may be contrary to the law, and my question
is—to you, is there a chance, even a small one, that you may vote
contrary to the law or the State, you may give less weight to the
aggravators because consciously you don’t want to vote for it because
of those religious beliefs?

JUROR 43: No. I think notwithstanding the increased difficulty, um,
I believe I could faithfully adhere to the law in that regard.

(Emphasis supplied.) Miller asserts that the prosecutor attempted to mislead juror

number 43 into believing that the penalty phase involved only a strict weighing of

aggravating and mitigating circumstances. He contends that counsel should have

objected to the emphasized statement above and requested that this juror be

correctly instructed by the court that he could dispense mercy and impose life

regardless of the weighing process. Miller, however, presents no legal authority as

to how the prosecutor’s comment, in context, undermines confidence in the

outcome of his sentence.

Furthermore, because the juror initially had difficulty understanding the

prosecutor’s question, the challenged comments occurred when the prosecutor

attempted to clarify whether the juror could put aside his religious beliefs about the

death penalty and make his decision based solely on his ability to follow the trial

court’s instruction to consider only the evidence presented and to impartially apply

the law. Given the trial court’s previous instruction and the juror’s response to the

questions, we conclude that the prosecutor did not mislead juror 43 into believing

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that he could not serve on the jury unless he was prepared to vote for a death

sentence if the aggravating circumstances outweighed the mitigating

circumstances. These comments were no more improper than those in Jones v.

State, 845 So. 2d 55, 67 (Fla. 2003), where we held that trial counsel did not

perform ineffectively when he failed to object to the prosecutor’s questions

regarding whether the prospective jurors could recommend the death penalty, “if

the facts, circumstances, and the law warrant it.” Accordingly, we affirm the

denial of relief with respect to this juror.

Juror Number 268

During voir dire, juror 268 was asked whether she had previously thought

about the death penalty, to which she responded:

JUROR 268: It’s crossed my mind a couple of times but it’s not
something that like I am, oh, my god. . . . It’s not something that like
I really I’m so super against or I’m so super for. It’s one of those
things where if the evidence could prove or like, okay, it is a
possibility of either DNA or some little missing piece that could say,
oh, well, he actually didn’t do it or she didn’t do it, then that’s when I
kind of lean for the whole life without parole.

PROSECUTOR: Right.

JUROR 268: But if it’s the other way—

PROSECUTOR: All right. The question of death penalty won’t
come about in the first segment of the trial unless he’s convicted for
first degree murder. Okay. So the person is convicted of first degree
murder. Then you have a decision to make. And the way that it
works under our laws is the State presents certain aggravators, so
things that are in support of the death penalty under the law and then

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 defense presents what are known as mitigators, things for you to
consider, and defendant’s background, maybe some psychologists or
psychiatrists, those kind of evidence and, again, it’s not limited to
that. But essentially that’s how it works. And then you make a
decision whether the act—you know, you’ll weigh the two. We don’t
tell you what weight to give anything. But if the aggravators in—in—
in this particular case are not outweighed by the mitigators, the
aggravators should be given greater weight, could you vote for death
and follow the law? Speak up.

JUROR 268: I could.

PROSECUTOR: And if, in fact, you felt that the mitigators, in fact,
did outweigh the aggravators and the death penalty wasn’t warranted,
could you vote for a life sentence, life without possibility of parole?

JUROR 268: Yes.

(Emphasis supplied.) Later, defense counsel explained:

So there are factors that you would be instructed on, like [the
prosecutor] said, reasons to impose the death penalty and reasons not
to impose the death penalty, aggravators and mitigators. And with the
aggravators, the reasons are given to people just by imposition of the
death penalty, those are limited, those are limited by the statute, those
are very, very—things you can consider and you can’t go outside the
list. . . . The list is finite, for lack of a better word. It’s just a very
specific list of considerations. And it’s not a factor or it’s not a
process of finding one of those things. It’s a process of first seeing if
the State proves that this consideration exists and then you are free to
weigh it however you want to weigh it. And the same with the
mitigation. . . . The things that you see in mitigation, if you find that
they exist as a matter of fact, then you’re free to weigh those things
however it is that you want to weigh them; do you think you can do
that?

Miller contends that counsel performed deficiently when they failed to object to

the prosecutor’s statement that if the aggravating circumstances are not outweighed

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by the mitigating circumstances, then the juror should vote for death. He further

contends that counsel failed to ensure the juror was clearly instructed that in the

event of a penalty phase, life was an option regardless of the weight of any

aggravating and mitigating circumstances established. Again, Miller provides no

legal authority to support his allegation that the prosecutor’s comments were

improper.

Miller’s claim of prosecutorial impropriety fails for two reasons. First, the

statement that the mitigating circumstances must outweigh the aggravating

circumstances is consistent with both the standard advisory sentence jury

instruction and section 921.141(2), Florida Statutes (2002), which provides:

After hearing all the evidence, the jury shall deliberate and render an
advisory sentence to the court, based upon the following matters:

(a) Whether sufficient aggravating circumstances exist as
enumerated in subsection (5);

(b) Whether sufficient mitigating circumstances exist which
outweigh the aggravating circumstances found to exist; and

(c) Based on these considerations, whether the defendant
should be sentenced to life imprisonment or death.

(Emphasis supplied); see also Fla. Std. Jury. Instr. (Crim.) Homicide 7.11 (“Should

you find sufficient aggravating circumstances do exist to justify recommending the

imposition of the death penalty, it will then be your duty to determine whether the

mitigating circumstances outweigh the aggravating circumstances that you find to

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exist.”) (emphasis supplied). Second, the previously quoted portion of voir dire

reflects that both the prosecutor and the defense explained to juror 268 how

bifurcated capital proceedings operate, and addressed whether juror 268 could

understand and follow these procedures. Juror 268 indicated that she understood

these procedures and could apply the law fairly and impartially. Nothing in the

prosecutor’s comments misled juror 268 into believing that she could not serve on

the jury unless she were prepared to vote for a death sentence.

Juror 275

During voir dire, the prosecutor asked juror 275 the following:

PROSECUTOR: [L]et’s say you’re back there and I guess you’ve
indicated that you’re following some cases and you’ve kind of made
your own and, of course, that’s just based on the media’s portrayal,
it’s not based on sitting there, which is entirely different. Let’s say
you get in a situation where, of course, the only time the death penalty
would be a factor is if the jury has convicted of first degree murder.
So assuming that that’s happened and we’re at the next phase, what if
the Court gives you instructions, you understand the instructions, you
weigh the aggravators and mitigators, clearly to you, in making that
objective determination, the aggravators clearly outweigh the
mitigators, but there is some mitigation there that you can see or that’s
been articulated and just your gut is that you don’t want to do it in that
situation, even though if the reading of the law, you were to follow the
law, it would be absolutely that you would vote for death, because the
aggravators clearly outweigh the mitigators, but your situation you
don’t feel right about doing it or don’t want to do it, how would you
resolve that conflict?

JUROR 275: Um, well, it would be, you know, a tough decision to
make. Nobody wants to be put into that sort of position. But—if I
had to make that decision, um, I suppose I would—I would have to

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 follow the instructions of the jury—of the judge and—and go with—
go with that as my guidance in making my decision.

(Emphasis supplied.) Despite the prosecutor’s inarticulate “absolutely”

comment, the juror was informed immediately thereafter by the defense that:

The law is never going to require that you recommend to the judge
that there be a death penalty for punishment nor will it require that
you recommend a life without possibility of parole. It’s a weighing
process, once you redo the calculation, whatever you attribute to it,
that’s the recommendation as to the punishment you’re supposed to
come up with.

(Emphasis supplied.) Further, shortly before either party questioned the juror, the

trial court explained that the jury would “be instructed to look at certain

aggravating factors and certain mitigating factors. How you weigh them is left up

to you and you alone.”

We conclude that counsel did not perform deficiently when they failed to

object to the “absolutely” statement. The prosecutor did not inform the juror that

she had an “absolute” duty to vote for a sentence of death, and defense counsel

immediately informed the juror that the law will never require a recommendation

of death. Furthermore, on multiple occasions, juror 275 indicated that she would

follow the instructions of the trial judge and would consider and weigh the

aggravating and mitigating circumstances in determining whether a sentence of

death was appropriate. Thus, in addition to the trial court’s and defense counsel’s

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instructions, the juror’s responses confirm that she understood the law and her role

as a potential juror.

Accordingly, we affirm the postconviction court’s findings that these jurors

were properly instructed on the law, and conclude that counsel did not perform

ineffectively when they failed to object to these statements.

Prosecutor’s Opening and Closing Statements

In Florida, wide latitude is permitted in presenting opening and closing

statements to a jury, and comments by the prosecutor will merit a mistrial only

when they deprive the defendant of a fair and impartial trial, materially contribute

to the conviction, are so harmful or fundamentally tainted as to require a new trial,

or are so inflammatory they might have influenced the jury to reach a more severe

verdict than it would have otherwise rendered. Spencer v. State, 645 So. 2d 377,

383 (Fla. 1994); see also Dessaure v. State, 891 So. 2d 455, 464-65 (Fla.

2004) (“An order granting mistrial is required only when the error upon which it

rests is so prejudicial as to vitiate the entire trial, making a mistrial necessary to

ensure that the defendant receives a fair trial.”).

Miller contends that his counsel were ineffective for failing to object or

move for a mistrial when the prosecutor, during penalty phase opening statements,

informed the jury:

[T]he State’s quite confident that you will find th[e] aggravating
factors far outweigh his background, that may not have been the best

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 childhood, but the State is quite confident that you will find that they
far outweigh the circumstances of his childhood and his adult life and
obviously his addiction, you’ve already heard about, the State is quite
confident that you will find there’s only one penalty that is
appropriate for this case, and that is the ultimate sanction in this state,
the death penalty.

Miller alleges that the prosecutor used this statement as a conduit to continue to

misinform the jury that death was the only appropriate sentence where the

aggravating circumstances outweigh the mitigating circumstances.

As noted by the postconviction court in its order denying this claim, this

statement constituted a synopsis of the evidence the State intended to present

during the penalty phase, and the reasonable inferences that could be drawn from

that evidence. See Perez v. State, 919 So. 2d 347, 363 (Fla. 2005) (noting that the

purpose of opening statements is for the parties to convey to the jury what they

expect to be established by the evidence presented during trial). The State did not

suggest that death was the only penalty available for the jurors to impose, but

rather argued that it was the only appropriate penalty given the evidence it intended

to present. Miller has failed to demonstrate that the statements at issue were

erroneous, misleading, or made in bad faith, and the prosecutor made the

comments fully expecting that they would be established by the evidence to be

presented during trial. We conclude that these remarks did not deprive Miller of a

fair and impartial trial, did not materially contribute to his sentence of death, were

not so harmful or fundamentally tainted as to require a new trial, and were not so

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inflammatory they might have influenced the jury to reach a more severe verdict

than it would have otherwise rendered. See Spencer, 645 So. 2d at 383.

Miller additionally alleges that during closing statements, the prosecutor

again misinformed the jurors that they were required to recommend death if the

aggravating circumstances outweighed the mitigating circumstances by stating,

“remember back on jury selection—because all of you were brought over to that

corner of the room and talked about following the law in this case and whether or

not you could follow the law.” However, because the prosecutor did not

misinform the jurors during voir dire, we conclude that the prosecutor’s request

was not improper, and we affirm the postconviction court’s denial of this claim.

Defense Counsel’s Waiver of Opening Statements

Miller next alleges that defense counsel were ineffective when they failed to

inform the jury during opening statements that the weighing process was not

stringent and inflexible, and that a juror could always vote for life. However,

Miller did not elicit any testimony during the evidentiary hearing from his trial

counsel regarding why counsel waived the opening statement. In addition, Miller’s

argument on appeal consists of a single statement, conclusorily alleging that

counsel performed ineffectively by waiving opening statements. Accordingly, this

argument was insufficiently presented, and is therefore waived. See Wyatt v.

State, 71 So. 3d 86, 111 n.19 (Fla. 2011).

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 Standard Jury Instruction

Lastly, Miller contends that the standard penalty phase jury instructions

improperly shifted the burden to him to establish that life is the appropriate

sentence. This Court has held that claims challenging the constitutionality of

Florida’s standard jury instructions should be raised during trial and on direct

appeal. See, e.g., Rodriguez v. State, 919 So. 2d 1252, 1280 (Fla. 2005) (“Claims

regarding the adequacy or constitutionality of jury instructions should be raised on

direct appeal.”). Miller did not present his jury instruction challenge on direct

appeal, and therefore this claim is procedurally barred. Moreover, this Court has

repeatedly rejected claims that the Florida standard jury instruction impermissibly

shifts the burden to the defense to prove that death is not the appropriate sentence.

See, e.g., Jones v. State, 998 So. 2d 573, 589 (Fla. 2008).

Future Incompetency

In the next three claims, Miller presents similar allegations contending that

his diminishing mental functioning due to behavioral variant frontotemporal

dementia will eventually render him incompetent. Relying upon the United States

Supreme Court’s holdings in Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v.

Simmons, 543 U.S. 556 (2005), Miller claims that his impending incompetency

will place him into a class of individuals who are categorically excluded from

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execution. Accordingly, he requests that this Court vacate his current sentence of

death because it serves no legitimate purpose.

This claim is not ripe for review because Miller is currently competent and a

death warrant has not been issued for his execution. Further, we have repeatedly

and consistently rejected similar claims. See, e.g., Johnston v. State, 27 So. 3d 11,

26-27 (Fla. 2010). In Lawrence v. State, we also rejected a claim virtually

identical to that presented by Miller—that defendants with mental illness must be

treated similarly to those with mental retardation because both conditions result in

reduced culpability. 969 So. 2d 294, 300 n.9 (Fla. 2007). Accordingly, we deny

relief on Miller’s claim at this time that his mental illness is a bar to execution.

HABEAS CORPUS

In his two habeas claims, Miller presents substantially similar allegations to

those presented in his postconviction motion and already rejected by this Court.

Miller’s habeas petition reargues substantive claims in which he asserts that his

mental illness categorically precludes him from execution. Petitions for habeas

corpus relief may not be used as a second appeal for substantive issues that have

already been raised or that are procedurally barred. See Valentine v. State, 98 So.

3d 44, 58 (Fla. 2012). These claim are meritless for the reasons stated above.

Accordingly, we deny habeas relief.

CONCLUSION

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 Based on the foregoing, we affirm the postconviction court’s order denying

postconviction relief on all claims. We also deny the petition for writ of habeas

corpus.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and PERRY, JJ., concur.
PARIENTE, CANADY, and POLSTON, 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,
Belvin Perry, Jr., Judge - Case No. 482006CF005222000AOX
And an Original Proceeding – Habeas Corpus

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region,
Tampa, Florida, and James Lawrence Driscoll, Jr., Assistant-Capital Collateral
Regional Counsel, Middle Region, Tampa, Florida, and David Dixon Hendry,
Assistant-Capital Collateral Regional Counsel, Middle Region, Tampa, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa-Marie Krause
Lerner, Assistant Attorney General, West Palm Beach, Florida,

for Appellee/Respondent

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