& SC13-706 Lamar Z. Brooks v. State of Florida and Lamar Z. Brooks v. Julie L. Jones, etc.

Supreme Court of Florida
____________

No. SC12-629
____________

LAMAR Z. BROOKS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC13-706
____________

LAMAR Z. BROOKS,
Petitioner,

vs.

JULIE L. JONES, etc.,
Respondent.

[May 7, 2015]

PER CURIAM.

Lamar Brooks appeals an order of the circuit court that denied his initial

motion to vacate his convictions of first-degree murder and sentences 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 postconviction court’s denial of relief

on all claims and deny Brooks’ petition for a writ of habeas corpus.

FACTS AND BACKGROUND

Lamar Brooks was convicted and sentenced to death for the first-degree

murders of Rachel Carlson and her three-month-old daughter, Alexis Stuart.

Brooks v. State, 918 So. 2d 181, 186-87 (Fla. 2005) (Brooks II). However, this

Court reversed Brooks’ convictions and sentences on direct appeal, concluding that

the trial court erroneously admitted extensive inadmissible hearsay testimony that

prejudicially impacted Brooks’ trial. Brooks v. State, 787 So. 2d 765, 781-82 (Fla.

2001) (Brooks I). Upon retrial, Brooks was again convicted of the murders of

Carlson and Stuart. Brooks II, 918 So. 2d at 187. A jury recommended a sentence

of death by a vote of nine to three for the murder of Carlson and eleven to one for

the murder of Stuart, and the trial court again sentenced Brooks to death for both

murders. Id. This Court affirmed Brooks’ convictions and sentences on direct

appeal. Id. at 211. The portions of the opinion relevant to the facts of the murders

are as follows:

In the late night hours of April 24, 1996, Rachel Carlson and
her three-month-old daughter, Alexis Stuart, were found stabbed to
death in Carlson’s running vehicle in Crestview, Florida. Carlson’s
paramour, Walker Davis, and Brooks were charged with the murders.
Davis was married and had two children, and his wife was pregnant

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with their third child. However, the victim believed Davis was also
the father of her child and demanded support from him. [n.1] Davis
became concerned about this pressure. He was convicted of the
murders and sentenced to life imprisonment. However, he did not
testify at Brooks’ trial.
[N.1.] DNA tests performed after the murders revealed
that Davis was not the father [of Stuart].

Brooks lived in Pennsylvania but had traveled to Florida from
Atlanta with his cousin Davis and several friends on Sunday, April 21,
1996. Brooks stayed with Davis at Eglin Air Force Base for a few
days before returning to Pennsylvania. In interviews with the police,
he informed them that on the following Wednesday evening, the night
of the murders, he helped Davis set up a waterbed, watched some
movies, and walked Davis’s dog. Contrary to Brooks’ statements,
several witnesses placed him and Davis in Crestview on the night of
the murders, although no physical or direct evidence linked him to the
crimes.
....

[D]uring this trial, Mark Gilliam related detailed, substantiated
information regarding the two failed attempts he, Brooks, and Davis
had made on Carlson’s life. Gilliam testified that on Monday, April
22, 1996, Davis phoned Carlson from the hospital asking her to meet
him at his home where Gilliam and Brooks were secretly waiting in
Gilliam’s car. According to Gilliam, he and Brooks followed the
vehicle occupied by Davis and Carlson in the direction of the
predesignated place in Crestview where, according to plan, Brooks
was to shoot Carlson. Gilliam established that Brooks had a pistol-
grip shotgun and latex gloves with him in the car. Gilliam’s version
of events was partially corroborated by the testimony of a law
enforcement officer who performed a consensual search of Davis’s
home after the murders and discovered a short-handled shotgun. In
addition, the crime scene analyst testified that the smudged hand
impressions found at the crime scene were consistent with the
perpetrator wearing latex gloves.

Gilliam further testified that during the course of the duo
following Carlson’s car on the night of the first failed murder attempt,

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Carlson was stopped by a law enforcement officer for speeding.
Gilliam explained that he drove by Carlson’s stopped car, made two
u-turns, and pulled up a short distance behind her. This testimony was
partially corroborated by that of Florida State Trooper Michael
Hulion, who reported that he stopped Carlson for speeding on
Monday, April 22, and noted the presence of a baby in the back seat
as well as a black male in the passenger seat. Gilliam further
described that as this was occurring a second police officer drove to a
position behind his vehicle, approached his car, and began questioning
the two men as to why they had positioned their vehicle behind
Carlson’s stopped vehicle. Testimony at trial confirmed that a
sheriff’s deputy had in fact run a check on Gilliam’s license plates that
evening in the vicinity of Crestview.

Gilliam also described in detail the second attempt to effectuate
the murder, which occurred on the following day, Tuesday, April 23,
and followed largely the same sequence of events with Carlson
picking Davis up at a local shopping center and Gilliam and Brooks
following behind. According to Gilliam, the second attempt ended in
failure because Gilliam became separated from Carlson’s car at a stop
light. Gilliam stated that he and Brooks proceeded to the
predesignated location in Crestview and waited for the plan to unfold,
but Davis and Carlson did not appear. Gilliam’s testimony was
supported by the testimony of the officers who questioned Gilliam
after the murders and related that he placed “Xs” on a map of
Crestview that corresponded to the area in which the victims’ bodies
were found. Finally, Gilliam stated that he backed out of the murder
plan and left Eglin the morning of April 24 to return to his base at Fort
Benning, Georgia.
....

Record evidence also firmly establishes Brooks’ presence in
Crestview in the vicinity of the crime scene in close proximity to the
time of the murders. Witnesses Irving Westbrook and Charles Tucker
testified that they saw two men walking in the vicinity of the murder
scene, away from where Carlson’s car was later found, around the
time of the murder. According to Irving Westbrook, one of the men
had a limp. Their testimony was corroborated by witness Kea Bess
who had previously been introduced to Davis by a mutual friend on
the Sunday prior to the murders. Bess testified that she saw Davis,

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whom she recognized because of the cast on his leg, and another man
walking rapidly in the opposite direction from the crime scene.
According to Bess, one of the men was carrying a bag.

Witness [Melissa] Thomas testified that Davis and Brooks
visited her Crestview apartment, located only a few blocks from the
scene of the crime, on the night of the murders shortly after 9 p.m.
She stated that both men were wearing black nylon pants and that
Brooks carried a black backpack. Thomas testified that Brooks used
the bathroom, Davis asked for a towel, and both men used the
telephone. [n.10] The presence of Brooks and Davis in Thomas’s
apartment that evening was also corroborated by the testimony of
Nikki Henry, a friend of Thomas, who arrived just as the two men
were walking away from the location.

[N.10] The presence of Brooks in the apartment was
corroborated by the DNA found on a cigarette butt
recovered from Thomas’s ashtray which matched
Brooks’ DNA.

The presence of Brooks and Davis in Crestview on the night of
the murders was further established and verified by the testimony of
Rochelle Jones. Jones stated that she received a call from Davis on
the night of the murders requesting that she come to a particular
location to provide transportation for the duo. Davis gave Jones
directions to drive to a street in Crestview between a credit union and
an animal hospital. Jones’s testimony was corroborated by telephone
records, and the testimony of a police officer who stopped Jones for
speeding as she drove back to Eglin Air Force base, who noted the
presence of two black males in her vehicle and requested that Davis
assume operation of the vehicle because Jones was operating the
vehicle with a suspended license. The testimony of Jones was further
corroborated by that of Glenese Rushing, who was using the
automatic teller machine at the Crestview credit union on the night of
the murders and reported seeing two people across the street at the
animal hospital entering a car that subsequently made a u-turn in the
credit union parking lot. The testimony of Jones also establishes that
whatever transportation Brooks and Davis may have used to travel to
Crestview that evening was apparently unavailable for the return trip.

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 Record evidence also demonstrates the guilty knowledge of
Brooks regarding the murders. In contrast to the multitude of
witnesses who placed Brooks in Crestview near the crime scene on
the night of the murders, Brooks consistently denied being in the
community during his police interviews. According to Air Force
Office of Special Investigations Agent Karen Garcia, Brooks claimed
that he and his cousin remained in Davis’s apartment near Eglin Air
Force base assembling a waterbed on the night of the murders, leaving
only briefly to walk Davis’s dog. At one point during his interview
with Agent Garcia, Brooks stated, “Walker is on his own. If he did
something, he’s on his own.” The investigator from the office of the
State Attorney, Michael Hollinhead, also interviewed Brooks shortly
after the murders. Hollinhead testified that when he attempted to
develop information from Brooks regarding the person named “Mark”
(subsequently identified as Gilliam), who had accompanied Brooks to
Davis’s home on April 21, Brooks became “evasive.”

The identity of Brooks as the individual who killed Carlson and
Stuart is also supported by substantial evidence. Forensic evidence
established that both Carlson and Stuart were killed by a person seated
in the rear driver’s-seat of the vehicle, [n.13] and that no one occupied
the front passenger’s seat at the time of Carlson’s stabbing. Other
evidence demonstrated that Brooks was the individual seated in the
back seat of Carlson’s vehicle. Importantly, Davis was in a leg cast at
the time of the murder. That fact renders it highly unlikely that Davis
would have been able to sit in the back seat of a car in a position that
would have left him able to muster the leverage utilized to mount this
attack from behind. Moreover, a shoe print was found on Carlson’s
shoulder. A forensic expert opined that the print was consistent with
the killer extricating himself from the vehicle by climbing over the
victim’s body, which was found in the front seat, or opening the
driver’s-side front door and kicking Carlson over. Either feat would
have been almost impossible for a man in a leg cast. Moreover, Davis
sat in the front passenger seat during the prior failed murder attempts
as established by the trooper who stopped Carlson for speeding and
testified to seeing a baby in the back seat and a black man in the right
front seat.

[N.13] This evidence included nondescript contact blood
stains found on the exterior of the vehicle on the driver’s-

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 side front and rear doors; contact blood stains on the
interior rear driver’s-side door that were consistent with
someone with blood on their hands attempting to exit the
vehicle; contact stains on the driver’s headrest consistent
with placement of a bloody hand; and medium-velocity
blood spatter and arterial spurting on the front
passenger’s door panel. Based on this evidence, the
crime scene analyst concluded that Carlson was behind
the steering wheel when the attack began, that the attack
continued as she moved to the front passenger’s side of
the vehicle, and that her attacker was seated in the
driver’s-side back seat. Another forensic expert
concurred with this conclusion.

Brooks II, 918 So. 2d at 186-87, 194-97 (quoting Brooks I, 787 So. 2d at 768-69)

(some footnotes omitted).

As a basis for imposing sentences of death for the murders of Carlson and

Stuart, the trial court found that four statutory aggravating circumstances had been

proven beyond a reasonable doubt for each murder: (1) Brooks was previously

convicted of another capital felony (the contemporaneous murder of the other

victim); (2) the murder was committed in a cold, calculated, and premeditated

manner without any pretense of moral or legal justification (CCP); (3) the murder

was committed for pecuniary gain; and (4) the murder occurred while the

defendant was engaged in the commission of aggravated child abuse. Id. at 187.1

1. The trial court refused to consider as an aggravating factor that Stuart was
less than twelve years of age, because it concluded that “consideration of that
factor would constitute improper doubling with the aggravating factor of murder in

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The trial court additionally found as an aggravating factor that Carlson’s murder

was especially heinous, atrocious, or cruel (HAC). Id.

Although Brooks waived his right to present mitigating evidence, counsel

described for the trial court the mitigating evidence they would have presented. Id.

Based on this information, the trial court found the following statutory mitigating

circumstances: (1) Brooks lacked a significant criminal history (little weight); and

(2) Brooks was twenty-three years old at the time of the murders (little weight). Id.

at 187 n.2. The trial court additionally found the following nonstatutory mitigating

circumstances: (1) Brooks’ codefendant, Walker Davis, Jr., was sentenced to life

imprisonment (little weight); (2) Brooks has strong family ties and participated in

community affairs (very little weight); (3) Brooks is his family’s only living son

(some weight); (4) Brooks’ military service (little weight); (5) Brooks

demonstrated good character and an ability to establish loving relationships (little

weight); (6) Brooks is the father of a six-year-old child (some weight); (7) Brooks

exhibited good courtroom behavior and demeanor (some weight); (8) Brooks

regularly attended church and had Christian training (little weight); (9) Brooks’

employment history (little weight); (10) the sufficiency of life in prison without the

possibility of parole as punishment (little weight); and (11) the sufficiency of life

the course of a felony predicated on aggravated child abuse.” Brooks II, 918 So.
2d at 187 n.1.

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in prison without parole to protect society (some weight). Id.

On direct appeal, Brooks presented fourteen claims. Id. at 187-211.

Specifically, Brooks contended that the trial court erred when it: (1) admitted a life

insurance policy; (2) permitted testimony regarding child support records; (3)

admitted notes seized from Davis’ leg cast; (4) permitted the State to impeach

Melissa Thomas regarding whether, on the night of the murders, Brooks changed

clothes in her apartment; (5) permitted Mark Gilliam to testify regarding Brooks’

desire to shoot the police officer who approached Gilliam’s vehicle during the first

failed attempt to murder the victims; (6) denied several objections to comments

made by the prosecutor during closing statements; (7) refused to instruct the jury

on section 90.803(18)(e), Florida Statutes (1996);2 (8) denied Brooks’ motion for

mistrial; (9) denied Brooks’ motion to change venue; (10) found that Brooks

committed the murder during the course of an act of aggravated child abuse and

relied upon this fact to justify the imposition of the death sentence; (11) found the

pecuniary gain and CCP aggravating circumstances applied to the murder of

2. Section 90.803(18)(e), Florida Statutes (1996), provides that an
admission is a statement that is offered against a party and is: “[a] statement by a
person who was a coconspirator of the party during the course, and in furtherance,
of the conspiracy. Upon request of counsel, the court shall instruct the jury that the
conspiracy itself and each member’s participation in it must be established by
independent evidence, either before the introduction of any evidence or before
evidence is admitted under this paragraph.”

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Stuart; (12) found that the sentences of death were proportionate; (13) refused to

require the jury to return a special verdict that specified which aggravating

circumstances were found and the accompanying vote; and (14) assigned the jury’s

recommendation great weight. Id. at 187-211.

This Court determined that five errors of law occurred during the course of

Brooks’ retrial, including: (1) the erroneous admission of testimony concerning the

child support records; (2) the erroneous admission of the notes recovered from

Davis’s leg cast; (3) the improper impeachment of Thomas; (4) the trial court’s

failure to read the jury instruction for section 90.803(18)(e) as requested by

defense counsel; and (5) the erroneous reliance by the trial court on the aggravating

factor that the murders were committed during the course of an act of aggravated

child abuse. Id. at 202.3 However, we concluded that there was no reasonable

3. Brooks contended on appeal that the trial court erred by finding that he
committed the murders during the course of a felony (aggravated child abuse), and
then applying the aggravating circumstance based on the aggravated child abuse.
Brooks II, 918 So. 2d at 197. Specifically, he alleged that “because the single act
of stabbing [the child] formed the basis of both the aggravated child abuse
aggravating factor under section 921.141(5)(d) of the Florida Statutes and the first-
degree felony murder charge, the court should have found that the aggravated child
abuse allegation ‘merged’ with the more serious homicide charge.” Id.
A majority of the Court agreed with this argument, concluding that the
aggravated child abuse based on a single stab wound would merge with the
homicide, but found this error to be harmless. Id. at 198-99, 217 (Lewis, J.,
concurring in part, dissenting in part). However, in 2012, this Court receded from
Brooks to the “extent it holds that felony murder cannot be predicated upon a
single act of aggravated child abuse,” and held that “the merger doctrine does not
preclude a felony-murder conviction predicated upon a single act of aggravated

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probability that any of these errors, either individually or cumulatively, contributed

to Brooks’ convictions, and affirmed Brooks’ convictions and sentences. Id. at

197, 199-202, 211. The United States Supreme Court denied certiorari review on

May 22, 2006. Brooks v. Florida, 547 U.S. 1151 (2006).

Postconviction Proceedings

On May 18, 2007, Brooks filed an initial seven-claim motion to vacate

judgment of convictions and sentences. Brooks later amended his motion to add

two additional claims. The claims presented were: (1) counsel performed

ineffectively when they failed to present and/or the State failed to disclose, critical

exculpatory evidence during the guilt phase; (2) counsel performed ineffectively

when they failed to present available evidence to the jury, despite promising to do

so during opening statements; (3) counsel performed ineffectively when they failed

to investigate and present available mitigation; (4) counsel performed ineffectively

when they failed to provide Brooks with adequate mental health assistance during

trial; (5) Florida’s rules prohibiting postconviction counsel from interviewing

jurors unconstitutionally inhibit Brooks from determining if constitutional errors

occurred; (6) the lethal injection procedures violate the Eighth Amendment; (7)

Brooks’ convictions and sentences of death constitute cruel and unusual

child abuse that caused the child’s death since aggravated child abuse is an
enumerated underlying offense in the felony-murder statute.” State v. Sturdivant,
94 So. 3d 434, 441-42 (Fla. 2012).

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punishment; (8) the State would violate the Eighth Amendment ban against cruel

and unusual punishment by executing Brooks, a brain-damaged, mentally impaired

individual; and (9) Brooks is exempt from execution under the Eighth Amendment

because he suffers from severe brain damage and other mental limitations.

The postconviction court granted an evidentiary hearing on claims 1, 2, 3, 4,

and 9, and summarily denied claims 5, 6, 7, and 8. The evidentiary hearing was

held over the course of four days between January and May 2008. However, in

January 2009, the postconviction court judge died unexpectedly before a final

order on Brooks’ postconviction claims was issued. The case was reassigned to a

successor judge, and a new evidentiary hearing was held on the same claims.

During the second evidentiary hearing, Brooks presented five witnesses.

Two of the witnesses, Wilden Davis, Brooks’ cousin, and Joanne Washington,

Brooks’ childhood friend, testified that Brooks was an intelligent, witty, and happy

child. However, both Davis and Washington testified that after Brooks joined the

military and returned from overseas, he became reclusive, withdrawn, irritable, and

occasionally verbally and physically aggressive. Brooks started drinking heavily

and occasionally smoked marijuana.

Dr. Hyman Eisenstein, a clinical psychologist with a specialty in

neuropsychology, testified that Brooks exhibited brain dysregulation, and

diagnosed Brooks with chronic post-traumatic stress disorder (PTSD) and alcohol

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abuse. Dr. Eisenstein testified that at the time of the murders, Brooks was

additionally suffering from an extreme mental or emotional disturbance, was

abusing alcohol, and could not conform his conduct to the requirements of law.

However, Dr. Eisenstein’s testimony was significantly impeached during cross-

examination. Dr. Eisenstein admitted that Brooks was generally uncooperative,

did not give his best effort during the initial evaluation, and refused to see him for

a second evaluation. Thus, Dr. Eisenstein admitted that his diagnosis of PTSD and

his conclusion that Brooks was suffering from an extreme emotional disturbance

were only “tentative” because Brooks was uncooperative during the evaluation

process. Dr. Eisenstein additionally admitted that his belief that Brooks was

drinking on the night of the murders was merely an assumption based on prior

conduct.

Finally, Brooks presented Kepler Funk and Keith Szachacz, the attorneys

who represented Brooks during his initial direct appeal and, after his convictions

were reversed, during the retrial. Both Funk and Szachacz testified in detail

regarding their relationship with Brooks, their approach to Brooks’ retrial, and the

strategic decisions they made both before and during Brooks’ retrial.

The State presented three witnesses. Barry Beroset, Brooks’ counsel

during the first trial, testified regarding his trial strategy, the extent of his

mitigation investigation, and whether he pursued mental health mitigation. Debbie

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Carter, a legal assistant with the State Attorney’s Office, and Robert Elmore, the

Assistant State Attorney who prosecuted Brooks and his codefendant, testified

regarding the State’s discovery procedures and whether certain documents were

disclosed to the defense during pretrial discovery.

On March 9, 2011, after the evidentiary hearing was completed, but before a

final order was issued, Brooks filed a successive postconviction motion in which

he alleged that newly discovered evidence established he did not murder Carlson

or Stuart. A third evidentiary hearing was held on this claim, during which Brooks

presented four witnesses.4

During the evidentiary hearing, Ira Ferguson, who was incarcerated and

serving sentences for convictions of second-degree murder, grand theft auto, and

robbery with a deadly weapon, testified that he met Walker Davis in prison.

Ferguson informed Davis that he had visited in Crestview and knew several people

who lived there. Ferguson later testified that he knew Gerrold Gundy, and that

Carlson was Gundy’s girlfriend. Ferguson testified that on the night of the

murders, he arrived at a club between 10:30 and 11 p.m. Outside the club in the

parking lot, Ferguson saw Gundy, Carlson, and a baby inside Carlson’s vehicle.

4. The same newly discovered evidence claim was also presented by
Brooks’ codefendant. Brooks and Davis agreed to a joint evidentiary hearing
before the successor judge.

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Ferguson testified that he approached them, asked for a cigarette, and departed

from the area. When he returned, Ferguson noticed that the vehicle had been

moved onto a side street. Shortly thereafter, Ferguson heard a door slam and saw

Gundy and Carlson arguing. Ferguson left the scene and drove to a friend’s house.

The next day, Ferguson learned of Carlson’s and Stuart’s deaths, but he did not

contact the authorities.

Funk testified that he never encountered Ferguson during the course of his

investigation of the murders. He further testified that he investigated Gundy as a

possible suspect, but ultimately decided, with Brooks’ consent, that the best course

of action was to not attempt to connect Gundy to the murders. In addition, he

testified that he and Szachacz conducted an extensive investigation and concluded

that there was no “indication in any way, shape[,] or form . . . that Ms. Carlson was

alive at 10:45. I think that it was contradicted by the evidence, frankly.”

Daniel Ashton, a private investigator, testified that he became involved with

Brooks’ case in 2006. The first time he learned of Ferguson was in July 2010,

when he received a phone call from Davis’ mother. He testified that while he was

investigating the murders, he never encountered any evidence that: (1) placed

Ferguson in Crestview at the time of the murders; or (2) corroborated Ferguson’s

testimony that he saw Gundy with Carlson at a nearby club at 10:45 p.m. on the

night of the murders. Ashton additionally testified during cross-examination that

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no evidence found during the investigation supported Ferguson’s testimony that

Gundy fought with someone outside of the club on the night of the murders or that

Gundy knew Carlson. Ashton was also unable to locate Michelle Roberts, the

friend whose house Ferguson allegedly went to on the night of the murders.

Elizabeth Hutchinson testified that she met Ferguson through mutual friends

who travelled from Miami to visit her in Crestview in 1996. Hutchinson testified

that she also knew Gundy and she had never seen Ferguson and Gundy together.

The State presented several witnesses in rebuttal. Glenn Swiatek, who

briefly represented Walker Davis on appeal, testified that he introduced himself to

Ferguson shortly before Ferguson was deposed. During that conversation,

Ferguson asked Swiatek to provide him information as to the date on which the

murders occurred. Immediately after Swiatek provided the information, he

observed Ferguson write the date at the top of an affidavit. Swiatek testified that

Ferguson told him that he asked Swiatek for this date information only to

determine whether Swiatek was an undercover agent.

Gerrold Gundy testified that he had never met Carlson, but that around the

time of the murders he had a girlfriend named Shawna Tatum, who, like Carlson,

was a white female with blonde hair. Also like Carlson, Tatum had a young child

and drove a small red vehicle. Gundy recalled an incident in 1999 in Crestview

where he and three men who were related to Ferguson were arrested on drug

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charges. Gundy testified that he did not know these men and was later released

when the police determined that he had no connection to the crime. When Gundy

was shown two pictures of Ferguson, he stated it was possible that he had seen

Ferguson before, but that he and Ferguson were not friends and he did not interact

with Ferguson on the night of the murders.

Margaret Summers, a sergeant with the Florida Department of Corrections

(DOC) who worked at the Wakulla Corrections Institution Annex from October

2008 to June 2011, testified that she studied the internal movement records of

Davis and Ferguson while they were incarcerated in that facility. She testified that

she never saw Ferguson and Davis together, nor did she locate a time when they

were housed in the same dormitory. Although there was a two-month period when

Davis and Ferguson could have interacted during recreational hours, she could

recall only one occasion when Ferguson and Davis were in the same location at the

same time. Sylvia Williams, a records custodian for the Florida Department of

Law Enforcement (FDLE), testified that from April 2010 to November 2010 and

from April 2003 to July 2003, Davis and Ferguson were housed in the same

facility.

On March 12, 2012, the postconviction court issued an order denying all of

Brooks’ claims, including the newly discovered evidence claim presented in the

successive motion. This appeal follows.

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 ANALYSIS

Strickland Standard of Review

Brooks’ first two claims on appeal challenge the postconviction court’s

determination that counsel did not perform ineffectively during the guilt phase of

his retrial. 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.
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.

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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

observations of 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 so long as those findings are supported by competent,

substantial evidence. See Bradley, 33 So. 3d at 672. However, this Court reviews

the postconviction court’s legal conclusions 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).

Failure to Present “Critical, Exculpatory” Evidence

In his first claim, Brooks contends that his trial attorneys performed

ineffectively when they failed to present several pieces of “critical, exculpatory

evidence” during the guilt phase of his retrial. The postconviction court denied

this claim, concluding that Brooks had failed to establish either deficiency or

prejudice. Before addressing these claims individually, we note that there is an

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abundance of evidence which demonstrates that Brooks clearly and unequivocally

waived his right to present a defense case-in-chief during his retrial. For example,

the court conducted the following colloquy with Brooks to address whether he

agreed with the decision not to present a defense:

COURT: Let me ask at this time. You’ve already stated on the
record that it’s the position of the defendant that he’s not going to put
on any witnesses at this time.

COUNSEL: That’s correct.

COURT: And, Mr. Brooks, you realize you have a constitutional
right to testify on your behalf, and as I understand it, you’re waiving
that opportunity at this point, is that correct?

BROOKS: Yes.
COURT: And you’re also waiving the constitutional right that you’d
have to present witnesses on your behalf, is that correct?

BROOKS: Yes.
COURT: So [counsel’s] assertion that you’re going to rest . . . that’s
what you want to do, is that correct?
BROOKS: Yes.

Further, Brooks’ attorneys, Funk and Szachacz, testified extensively during

the evidentiary hearing regarding their trial strategy and their relationship with

Brooks. Funk testified that during the retrial he and Szachacz met with Brooks

daily to discuss the case. They asked for Brooks’ input and involved him in every

decision. After the State rested, Funk and Szachacz reviewed the record, examined

the evidentiary value of presenting witness testimony, and considered the strategy

- 20 -
of prior counsel, who had unsuccessfully presented a defense during the first trial.

They then discussed the case with Brooks, and with his input, determined that the

best course of action was to not present a defense. Counsel testified that while

they would have liked to present the evidence discussed below, none of that

evidence, independently or collectively, was strategically important enough to

outweigh the benefits of retaining first and last closing statements, especially

considering that Brooks had been charged with the emotionally charged crime of

brutally murdering a three-month-old baby and her mother.5

5. At the time of Brooks’ retrial, Florida Rule of Criminal Procedure 3.250
provided that “a defendant offering no testimony in his or her own behalf, except
the defendant’s own, shall be entitled to the concluding argument before the jury.”
However, in 2006, the Legislature created a new statutory provision, section
918.19, Florida Statutes, to govern closing statements in criminal trials. In re
Amend. to the Fla. Rules of Crim. Pro.—Final Arguments, 957 So. 2d 1164, 1165
(Fla. 2007). The statute provides that the prosecution shall present the first closing
statement, the defendant may respond, and the prosecution may then reply in
rebuttal. Id. at 1166. In response to the change in the law, we amended rule 3.250
to eliminate the portion of the rule providing that the defense has the right to the
final closing statement where the defendant offered no evidence during trial other
than his or her own testimony. Id. We also adopted Florida Rule of Criminal
Procedure 3.381, which states that in all criminal prosecutions, “the prosecuting
attorney shall be entitled to an initial closing argument and a rebuttal closing
argument before the jury or the court sitting without a jury.” See Fla. R. Crim. P.
3.381; see also Final Arguments, 957 So. 2d at 1166-67. Thus, although it is not
currently the law, at the time of Brooks’ trial, the rules of criminal procedure
provided a strategic advantage to defense counsel for not presenting witness
testimony.

- 21 -
 Additionally, Brooks contends that prejudice has been established because

during trial, his attorneys proffered much of the evidence discussed below. Brooks

asserts the proffers demonstrate that his attorneys wanted to present the proffered

evidence and felt the information was critical to the defense. However, prejudice

is not established based solely on the subjective assessments of a party or his or her

counsel regarding the importance of evidence. Rather, prejudice is established

only when the defendant can establish a reasonable probability, which is a

probability sufficient to undermine confidence in the outcome of that proceeding,

that but for counsel’s unprofessional errors, the result of the proceeding would

have been different. See Bradley, 33 So. 3d at 671-72. Thus, simply because trial

counsel wished to present certain evidence, does not establish that Brooks was

prejudiced by counsel’s failure to do so. Although the facts indicate that trial

counsel made a reasonable, strategic decision not to present a defense case-in-

chief, we address each of the individual pieces of evidence Brooks claims counsel

failed to present.

Lack of Forensic Evidence Linking Brooks to the Murders

Brooks contends that trial counsel performed deficiently when they failed to

present witnesses to emphasize that no forensic evidence discovered either at the

crime scene or found on Brooks’ person linked him to the murders. Although

Brooks does not dispute that counsel attempted to establish reasonable doubt, he

- 22 -
contends that they performed deficiently when they neglected to utilize the lack of

forensic evidence to further establish a reasonable doubt in the minds of the jury.

During the evidentiary hearing, Funk testified he and Szachacz believed the

lack of forensic evidence that connected Brooks to the crime was a critical fact that

significantly favored the defense. To maximize the value of this fact, Funk and

Szachacz testified that their trial strategy was to bolster the credibility of the State

forensic experts by portraying them as experts in their field. According to Funk, if

the jury believed that the forensic experts were “the greatest thing since sliced

bread [who] could find a needle in any haystack,” he and Szachacz could establish

reasonable doubt during closing statements by emphasizing that even the best

forensic experts failed to uncover any evidence that linked Brooks to the crimes.

Both Funk and Szachacz were aware that several pieces of evidence—including

the hair discovered in the victim’s hand,6 vacuum sweepings taken from the

victim’s car, and Brooks’ backpack—had been forensically analyzed and revealed

no scientific connection between Brooks and the murders. However, Brooks’

6. Brooks places particular emphasis on counsel’s failure to present
evidence that a Caucasian hair found in the victim’s hand did not belong to him.
However, during the evidentiary hearing, Szachacz testified he could not recall if
DNA testing had been conducted on the hair sample, but recalled that during
Brooks’ first trial, a forensic hair expert testified that the hair was similar in color
and appearance to that of Carlson herself. Further, Brooks presented no evidence
during these proceedings that demonstrates the hair had any relevance to this case.

- 23 -
counsel testified that they ultimately made the strategic decision not to present

forensic experts so that they could assert during the final closing statement:

We’ve got the experts that can gather evidence. Why do you think
they do it, for fun? It’s for this purpose. This is what their job is, to
gather evidence. Some examples of those in cases are DNA, DNA.
Do you have it this case? None. Okay? That FDLE’s got serologists,
DNA folks, microanalysis, handwriting experts, voice stress experts,
document examiners, pen pressure testing, paper testing, ink, fibers,
ropes, shoeprints. They have people there, scientists, that test this
stuff[,] . . . like Jan Johnson who are solely trained . . . to make sure I
preserve [evidence] so it doesn’t get contaminated, and properly
collect it, package it, to get it to those people. Hair fibers. What do
we have in this case? None. Saliva, none. Skin cells, none.
Shoeprints, none. I’m talking about evidence in criminal trials where
the Government is able to meet their burden. Confessions happen in
criminal cases. In this case, none. Handwriting analysis? This case,
none, none. Blood on people? This case, [Brooks], none.

This Court has, on several occasions under similar circumstances, concluded

that the decision to preserve the first and last closing statements constitutes a sound

trial strategy. See Van Poyck v. State, 694 So. 2d 686, 697 (Fla. 1997) (concluding

that counsel made a tactical decision to refrain from presenting a defense case-in-

chief to preserve the first and last closing statements); see also Evans v. State, 995

So. 2d 933, 945 n.16 (Fla. 2008). Thus, both the record and our prior precedent

demonstrate that trial counsel made a reasonable, strategic decision to retain the

tactical advantage of presenting the final closing statement and to pursue the theory

of reasonable doubt by arguing, through inference rather than witness testimony,

that no forensic evidence linked Brooks to the murders. See Johnston v. State, 63

- 24 -
So. 3d 730, 737 (Fla. 2011) (holding that strategic decisions do not constitute

ineffective assistance if counsel considers and rejects alternative courses when the

final strategy was reasonable under the norms of professional conduct). Therefore,

because it is evident that Brooks has failed to establish deficiency, we need not

address the prejudice prong of Strickland and conclude that counsel did not

perform ineffectively. We affirm the postconviction court’s denial of this

subclaim. See Mungin, 932 So. 2d at 996.

Gerrold Gundy

Brooks next contends that trial counsel performed deficiently when they

failed to present several pieces of evidence that purportedly connected Gundy to

the murders. Specifically, Brooks contends that: (1) Gundy was allegedly seen

riding with a white female driver in a car similar to the one driven by the victim;

(2) a crime scene dog tracked footsteps from the scene of the crimes to the

doorstep of Gundy’s house; (3) a partially smoked Marlboro cigarette was found

on the street near Gundy’s home, and an open pack of the same brand of cigarettes

was found inside the victim’s car; and (4) a confidential informant told law

enforcement that Gundy was Carlson’s friend or boyfriend.

However, for each piece of evidence, Funk or Szachacz logically explained

why the defense strategically decided not to present it during the retrial. For

example, Funk noted that the crime scene dog that tracked footsteps to Gundy’s

- 25 -
doorstep did not begin the search from the crime scene, but rather began tracking

from a dirt road about thirty yards away from the scene. Additionally, Brooks’

counsel was aware that Gundy had a Caucasian girlfriend who, like Carlson, had

an infant child and drove a small red vehicle. This fact explains why the witnesses

could have mistakenly thought that Gundy’s girlfriend was Carlson, and further

supports the decision not to present this evidence during trial.

Based on this evidence, and other evidence that rebuts any potential

connection between Gundy and the murders, Funk testified, “Did we think that [the

State] had the ability to rebut any claim that Gundy was the one who committed

these homicides? Yeah, we knew that. We knew we [were not] going to be able to

prosecute Gerrold Gundy.” Funk added that to attack the credibility of the forensic

experts, including the crime scene dog, would have undermined the defense

strategy to bolster the credibility of the State forensic experts and then rely on their

credibility to stress the lack of forensic evidence connecting Brooks to the crime.

Thus, after he and Szachacz discussed the issue thoroughly with Brooks, they

“made the decision that it wasn’t worth pursuing. The downside outweighed any

potential upside.”

Accordingly, we conclude that Brooks’ trial counsel made a reasonable,

strategic decision to not lose credibility with the jury and forego the ability to

present the last closing statement to present evidence that initially appeared to

- 26 -
connect Gundy to the murders, but ultimately would have been substantially

impeached by the State. Counsel did not perform deficiently with respect to this

claim, and we hold that the postconviction court properly rejected this challenge of

ineffectiveness. See McCoy v. State, 113 So. 3d 701, 716 (Fla. 2013).

Green Nissan

Before trial, a confidential informant reported that a stolen green Nissan was

recovered that matched the description of a vehicle suspected to be associated with

the murders. The vehicle purportedly had blood spatter inside the cabin and on the

hood. Although Brooks contends that counsel performed deficiently when they

failed to present this evidence, he presented no evidence during the postconviction

proceedings to demonstrate that this Nissan had any connection to the murders.

Brooks has also failed to demonstrate that any further investigation of the Nissan

would have rendered this evidence probative or admissible.

During the evidentiary hearing, Funk testified that nothing connected the

stolen Nissan to any aspect of Brooks’ case. Szachacz similarly testified that the

information regarding the Nissan was “worthless” and could not have been used to

support Brooks’ defense. Funk explained that they discussed this issue with

Brooks and agreed not to present evidence of the Nissan to the jury. We conclude

that counsel made a reasonable assessment of the evidentiary value of the Nissan

and tactically decided not to present it. Therefore, because Brooks has failed to

- 27 -
establish either that his counsel performed deficiently by failing to present this

evidence or that this failure undermined confidence in the outcome of his trial, we

conclude that the postconviction court did not err when it denied this subclaim.

Timeline

Brooks contends that trial counsel performed deficiently when they failed to

present evidence from two witnesses, LaConya Orr and Tim Clark. According to

Brooks, these witnesses would have presented evidence that would have

contradicted the State’s timeline. Specifically, Brooks contends Orr told police

that between 8:45 and 9 p.m. on the night of the murders, Davis and a “skinny,

shorter black male” came to her house looking for her husband. The men left on

foot when Orr told them that her husband was not home. Similarly, Brooks

contends Clark would have testified that, between 9 and 10 p.m. on the same night,

Clark saw Carlson in her vehicle conversing with a black male. Clark was shown

pictures of Davis and Brooks, but he could not identify either of the men as the

individual he saw with Carlson.7

7. Brooks additionally claims that two other witnesses were prepared to
testify regarding what they saw near the scene of the murders. However, Funk
testified that those witnesses “had some significant impairment of their ability to
recall and have recollection with accuracy,” and noted that they had been presented
during Davis’ trial, where their testimony was significantly impeached. Thus,
Brooks’ trial counsel did not perform deficiently when they strategically decided
not to present these witnesses. Bolin v. State, 41 So. 3d 151, 159 (Fla. 2010)

- 28 -
 During the evidentiary hearing, Funk testified that he and Szachacz

thoroughly researched whether testimony could be presented to rebut the State’s

timeline. They reenacted what Clark told police to determine whether it was

possible to identify Carlson from the location where Clark had allegedly seen

Carlson sitting in her vehicle. Further, Funk and Szachacz discovered that

although Clark had initially stated that he could not identify the person with

Carlson on the night of the murders, he later changed his position and stated “with

certainty” that Brooks was the black male with Carlson. In light of Clark’s

statement, Szachacz testified that there was “no way we [could] call [Clark]

because he was going to hurt [] Brooks.” Funk shared the same sentiments, stating

that they did not present Clark because he could not imagine anything connecting

Brooks with Carlson “ever helping because [] Davis was the one that had the link

to [] Carlson.”

Similarly, Szachacz testified that Orr’s husband had given a statement to law

enforcement that placed Davis and Brooks at Orr’s house slightly after 8 p.m.

Szachacz and Funk knew that timeframe left more than enough time for Brooks

and Davis to drive from Eglin Air Force Base to Crestview and commit the

murders because they had driven the route themselves in preparation for trial.

(noting that “counsel is not ineffective where counsel decides not to present a
witness with questionable credibility”).

- 29 -
Further, Orr could not positively identify Brooks as the individual who approached

her house with Davis. Based on the limitations of Orr’s potential testimony, Funk

testified, “I know we talked about [presenting Orr as a witness] extensively. . . .

And the bottom line analysis was, from a strategic standpoint, it was best not to go

there. I think the jury would see through that.”

Based on these facts, we hold that the postconviction court did not err when

it concluded that trial counsel did not perform deficiently by failing to present Orr

and Clark as witnesses. Both attorneys thoroughly researched whether they could

challenge the State’s timeline and ultimately concluded that: (1) Clark’s testimony

would have placed Brooks with Carlson near the time of the murders; and (2) Orr’s

testimony would likely have been substantially impeached by the prosecution.

Thus, because neither witness’s testimony would have substantially aided the

defense, we conclude that trial counsel made a reasonable, strategic decision not to

present the witnesses. See Reynolds v. State, 99 So. 3d 459, 498-99 (Fla. 2012)

(holding that counsel was not ineffective for failing to present unfavorable

testimony). Therefore, because it is evident that Brooks has failed to establish

deficiency, counsel cannot be deemed ineffective, and we affirm the denial of this

subclaim. See Mungin, 932 So. 2d at 996.

Polygraph Examination of Melissa Thomas

- 30 -
 During trial, Melissa Thomas testified that on the night of the murders,

Davis and Brooks came to her Crestview apartment at approximately 9 p.m.

wearing black nylon pants. Brooks II, 918 So. 2d at 200. She testified that while

inside her home, Brooks excused himself to use the bathroom. Id. Thomas then

testified that she recalled being interviewed by police shortly after the murders. Id.

When the prosecutor asked Thomas whether she recalled telling Agent Haley

during the interview that Brooks exited the bathroom wearing shorts, Thomas

answered, “No, I don’t remember.” Id.

The State subsequently presented Agent Haley, who testified that Thomas

had previously told him Brooks changed into shorts while in the bathroom. Id.

Counsel objected, asserting that the question constituted improper impeachment

because Thomas’ trial testimony did not materially differ from her statement to

Haley. Id. The trial judge allowed the impeachment on the basis that her trial

testimony and her previous statement to Agent Haley were “contradictory to a

degree.” Id.

On direct appeal, Brooks contended the trial court erred when it permitted

the prosecutor to impeach Thomas with the statement she had provided to Agent

Haley. Id. This Court agreed, and held that:

the trial judge in the instant case allowed the impeachment of
Thomas’s testimony because he found her testimony inconsistent to a
degree with her prior statement, not because he determined that she
was fabricating her inability to recall the content of her police

- 31 -
 statement. Given the other detailed evidence provided by Haley and
the fact that Brooks’ retrial occurred six years after the murders were
committed, there is no basis on which to conclude that Thomas
fabricated her lack of recollection. For that reason, the trial court
erred in permitting the impeachment of Thomas’s trial testimony with
her previous statement.

Id. However, we determined that the error was harmless:

Permitting Agent Haley to testify to the prior statement of Thomas, in
which she indicated that Brooks had changed into shorts in her
bathroom, did not contribute to his conviction. Neither Thomas nor
any of the witnesses who placed Brooks in Crestview on the night of
the murders indicated that he or his clothes were covered in blood.
The State did not recover or seek to introduce any blood-stained
clothing. In the absence of any such evidence, testimony that Brooks
changed clothes in Thomas’s bathroom is of no consequence.

Id. (emphasis supplied).

During the postconviction proceedings, Brooks has alleged both Strickland

and Giglio v. United States, 405 U.S. 150 (1972), violations relating to Thomas’

and Haley’s testimony. He contends his trial counsel performed deficiently when

they failed to present the results of Thomas’ polygraph examination. During the

examination, Thomas responded in the negative when asked whether she noticed if

Brooks changed clothes in her apartment. This answer was deemed truthful by the

polygraph administrator. Brooks alleges that counsel performed deficiently when

they failed to present these results to rehabilitate Thomas’ trial testimony.

We conclude that this claim of ineffectiveness fails both prongs of

Strickland. As the postconviction court noted, polygraph evidence is generally

- 32 -
inadmissible, and trial counsel cannot be deemed deficient for failing to present

inadmissible evidence. See Gosciminski v. State, 132 So. 3d 678, 702 (Fla. 2013)

(noting that “[p]olygraph evidence has, as a matter of law, long been inadmissible

as evidence in Florida”), cert. denied, 135 S. Ct. 57 (2014); Owen v. State, 986 So.

2d 534, 546 (Fla. 2008). Further, even if we were to conclude that counsel

performed deficiently when they failed to rehabilitate Thomas with the results of

her polygraph examination, Brooks has failed to demonstrate prejudice because we

specifically held on direct appeal that any testimony relating to whether Brooks

changed clothes in Thomas’ bathroom was “of no consequence” and “did not

contribute to his conviction.” Brooks II, 918 So. 2d at 201. These conclusions

demonstrate that counsel’s failure to present this evidence does not undermine

confidence in the outcome of Brooks’ trial. Therefore, Brooks’ claim of

ineffectiveness was properly denied by the postconviction court.

Brooks next contends that the prosecutor committed a Giglio violation by

presenting Agent Haley’s allegedly misleading testimony during trial. Brooks

claims that “despite knowing that Thomas was truthful in her response on the

polygraph that Mr. Brooks did not change clothes, the prosecutor wanted the jury

to believe otherwise.” A Giglio violation is demonstrated when: (1) the prosecutor

presented or failed to correct false testimony; (2) the prosecutor knew the

testimony was false; and (3) the false evidence was material. Davis v. State, 26 So.

- 33 -
3d 519, 532 (Fla. 2009). We conclude that Brooks has failed to establish any of

the three Giglio prongs.

First, Brooks’ claim that Thomas definitively stated during the polygraph

that Brooks did not change clothes is false. Instead, during the polygraph

examination, Thomas was asked if she noticed “if [Brooks] changed clothes,” to

which she responded “no.” Thomas testified during trial that she did not remember

telling Agent Haley that Brooks changed clothes. Thus, Thomas never definitively

stated that Brooks did not change his clothes in her apartment. Accordingly, the

State did not knowingly present false testimony when it elicited from Agent Haley

that Thomas told him during an interview that Brooks changed into shorts in the

bathroom of her apartment. Therefore, the first and second prongs of Giglio have

not been met. Second, even if we were to conclude that the prosecutor knowingly

presented false testimony, which we do not, Brooks has failed to demonstrate that

any evidence concerning whether Brooks changed clothes in Thomas’ apartment

was material. In fact, we have previously determined that this evidence was “of no

consequence” and not material. Brooks II, 918 So. 2d at 201. Therefore, the third

prong of the Giglio test has not been met, and we deny relief on this claim.

Conclusion

In sum, we conclude that trial counsel did not perform ineffectively when

they did not present the foregoing evidence during trial. We also conclude that

- 34 -
Brooks has failed to establish a Giglio violation. Thus, the postconviction court

did not err in denying this claim.

Failure to Present Evidence Discussed During Opening Statements

In this claim, Brooks again contends that trial counsel performed

ineffectively when they failed to present the “critical, exculpatory” evidence

discussed above. However, here he claims that counsel performed ineffectively

because they “promised” during opening statements to present this evidence, but

then failed to present it during trial. The postconviction court denied this claim,

concluding that Brooks failed to demonstrate either deficiency or prejudice.

In the prior claim, we concluded that trial counsel made reasonable, strategic

decisions not to present several pieces of evidence, and at the time of trial Brooks

also agreed not to present this evidence. Thus, whether trial counsel performed

ineffectively concerning the failure to present this evidence was previously

addressed and will not be discussed further. Rather, the only additional claim

presented by this issue is whether trial counsel, by failing to present the evidence

after they told the jury during opening statements that it would be presented,

performed ineffectively.

Opening statements are not substantive evidence, but rather serve to outline

what an attorney expects will be established by the evidence presented during trial.

Occhicone v. State, 570 So. 2d 902, 904 (Fla. 1990). During the evidentiary

- 35 -
hearing, Funk testified that he and Szachacz spent hours planning, rehearsing, and

modifying their opening statement to incorporate what they believed the evidence

would show during the retrial. However, during trial, the prosecutor strategically

limited the direct examination of specific witnesses to prevent the defense from

cross-examining them on certain subjects. When Funk and Szachacz attempted to

cross-examine the witnesses concerning the evidence previously discussed, the

prosecutor successfully objected to that questioning as outside the scope of direct

examination. As a result, certain evidence counsel had previously stated “the jury

would hear” was, in fact, only heard by the trial judge during a proffer. Funk

testified that, as the trial progressed, he and Szachacz considered whether the

benefits of presenting witnesses outweighed the procedural benefits afforded at the

time to defendants who did not present a case-in-chief. They discussed the issue

thoroughly with Brooks, and ultimately concluded that none of the evidence

discussed by counsel during opening statements outweighed the value of retaining

the opportunity to present the first and last closing statements.

We have, under similar circumstances, held such conduct by defense counsel

to be reasonable and strategic. See Beasley v. State, 18 So. 3d 473, 491-92 (Fla.

2009) (concluding that counsel’s decision not to present a defense case-in-chief to

preserve the benefits of giving both first and last closing argument was a

“reasonable defense strategy based on the procedural rules in force at the time of

- 36 -
trial.”). Based on the foregoing, we conclude that trial counsel did not perform

deficiently when they failed to present the evidence previously discussed to

support the assertions made during opening statements. Thus, the postconviction

court did not err when it denied this claim.

Failure to Investigate and Present Mitigation

In his third claim, Brooks contends that his trial counsel failed to adequately

investigate and present mitigating evidence. According to Brooks, had counsel

conducted a proper investigation, they would have uncovered evidence that Brooks

suffered from alcohol abuse and various mental deficiencies.

To demonstrate that counsel was ineffective for failure to investigate or

present mitigating evidence, a defendant must establish that the deficient

performance of counsel deprived the defendant of a reliable penalty phase

proceeding. Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011). Furthermore,

It is unquestioned that under the prevailing professional norms .
. . counsel has an obligation to conduct a thorough investigation of the
defendant’s background. Moreover, counsel must not ignore pertinent
avenues for investigation of which he or she should have been aware.
It is axiomatic that counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.
In the context of penalty phase errors of counsel, the prejudice
prong of Strickland is shown where, 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.
[A defendant] must show that but for his counsel’s deficiency,
there is a reasonable probability he would have received a different

- 37 -
 sentence. To assess that probability, we consider the totality of the
available mitigation evidence—both that adduced at trial, and the
evidence adduced in the evidentiary hearing—and reweigh it against
the evidence in aggravation. However, the Supreme Court reiterated
in Porter that “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.’ ”

Simmons v. State, 105 So. 3d 475, 503 (Fla. 2012) (internal quotation marks and

citations omitted).

We have further explained that a competent defendant may control decisions

that pertain to his or her defense, including the presentation of mitigation evidence,

and that counsel will not be rendered ineffective for following the wishes of a

competent defendant. Dessaure v. State, 55 So. 3d 478, 484 (Fla. 2010).

However, a defendant may waive the presentation of mitigation only when the

waiver is made knowingly, voluntarily, and intelligently. State v. Larzelere, 979

So. 2d 195, 204 (Fla. 2008). The decision to waive mitigation must not be made

blindly. Rather, counsel must first investigate all avenues of potential mitigation

and advise the defendant so that he or she reasonably understands what is being

waived and its ramifications, and is able to make an informed and intelligent

decision. State v. Lewis, 838 So. 2d 1102, 1113 (Fla. 2002); see also Grim v.

State, 971 So. 2d 85, 100 (Fla. 2007) (“We have recognized that a defendant’s

waiver of his right to present mitigation does not relieve trial counsel of the duty to

investigate and ensure that the defendant’s decision is fully informed.”).

- 38 -
 Waiver and Investigation

During his first penalty phase trial, Brooks was not opposed to the

presentation of mitigation. However, prior to the commencement of the second

penalty phase on retrial, trial counsel Funk explained to the trial court that Brooks’

decision with regard to the presentation of mitigation had changed:

I can tell the Court that Mr. Brooks and Mr. Szachacz and myself
have had long, long, long heart-to-heart discussions that include this
topic about waiving mitigation, Judge. It’s not something that’s knee
jerk as a result of a verdict that’s not favorable to Mr. Brooks. He’s
maintained his innocence from day one and continues to. In terms of
mental health mitigation, Mr. Brooks wouldn’t allow us to pursue that
route long before the guilty verdict, since we became involved in the
case. Mr. Szachacz and I are well aware of the mitigators that are out
there available and would have been recognized, and I feel confident
that Mr. Brooks is making a knowing, intelligent waiver of his right to
present, and I think it is a right to present mitigation no matter what I
recommended. I’m not saying I recommended one way or the other,
but I don’t think it matters. I think what matters is that we’ve
investigated and we’re ready to put on the mitigation, Judge, and
certainly we are, so I think the Court needs to go through that
colloquy with Mr. Brooks.

Funk later told the trial court, “I don’t intend on saying a word to this jury. That’s

what Mr. Brooks has instructed me to do, that I am not to stand up before this jury,

No. 1, to present any mitigation and therefore to argue in favor of mitigation, well,

of course, because we’re not presenting any.” Thereafter, the trial court inquired

on three additional instances whether Brooks wished to present mitigation.

However, on each occasion, Brooks reiterated he had not changed his mind and

that he did not want to present mitigation.

- 39 -
 During the evidentiary hearing, trial counsel testified that they actively

investigated mitigation and discussed the possible presentation of mitigation with

Brooks throughout trial. Szachacz testified that he and Funk interviewed Brooks’

parents; reviewed his military, educational, and employment history; and reviewed

the mitigation presented during the first penalty phase proceeding. Funk and

Szachacz additionally considered presenting mental health mitigation, but decided

against it because there was no evidence in Brooks’ background or during the trial

proceedings that indicated Brooks suffered from mental illness. Ultimately,

Brooks directly instructed Funk and Szachacz not to present mitigation, contest

aggravation, cross-examine penalty phase or Spencer hearing witnesses, file a

sentencing memorandum, or in any way contest the imposition of the death

penalty. In fact, during the evidentiary hearing, Brooks was asked by the

postconviction court whether he wanted to present mental health mitigation during

the postconviction proceedings. He responded:

Your Honor, after the first trial—I mean after the trial when I got the
guilty verdict, understandably I was not in the mind set to deal with
the sentencing phase so I didn’t really want anything to do with it.
I’m done with it. And then when this appeal came around, my focus
has always been on the guilt phase of it, not the sentencing phase. So
when [postconviction counsel] asked me about it at the time, I was
still focused on the guilt and didn’t want to have anything to do with
it. But now that it’s an issue, I don’t mind it being presented. I have
no objection to it being presented, so I guess my answer in the short-
term is yes, [postconviction counsel] can present it.

(Emphasis supplied.)

- 40 -
 The foregoing facts reflect that after Brooks was initially convicted, he was

amenable to the presentation of mitigation. When Brooks’ convictions were

reversed on appeal, Funk and Szachacz reviewed the mitigation in the record,

communicated frequently with Brooks’ parents regarding the presentation of

mitigation evidence during the second penalty phase, and spent countless hours

discussing the case with Brooks. After Brooks was convicted a second time, he

made the conscious decision not to present mitigation and directly instructed Funk

and Szachacz not to contest the imposition of the death penalty. Trial counsel

obeyed his wishes, and Brooks was sentenced to death for both murders. A decade

later, Brooks admitted during the evidentiary hearing that after being convicted a

second time he was “not in the mind set to deal with the sentencing phase so I

didn’t really want anything to do with it.” We conclude that trial counsel did not

perform deficiently when they failed to present mitigation evidence during the

penalty phase or to contest the imposition of the death penalty. Trial counsel

conducted a reasonable investigation into potential mitigation and explained the

benefits of presenting mitigation to Brooks. With that information, Brooks

exercised his right to make a knowing, voluntary, and intelligent waiver of the

presentation of mitigation, and counsel cannot be deemed deficient for honoring

Brooks’ decision not to contest the death penalty. See Dessaure, 55 So. 3d at 484.

- 41 -
 Evidence Not Presented

Furthermore, even if we were to conclude that counsel performed

deficiently, Brooks has failed to present mitigation evidence during the evidentiary

hearing that undermines confidence in his sentences. Brooks contends that had

trial counsel conducted a reasonable investigation, they would have discovered that

he: (1) drank alcohol daily and struggled with alcohol abuse; (2) suffered from

PTSD; and (3) suffered from an extreme emotional or mental disturbance, and his

ability to conform his conduct to the requirements of law was substantially

impaired at the time of the murders.

Funk testified during the evidentiary hearing that no one he communicated

with, including Brooks, indicated that Brooks abused alcohol at the time of the

murders. Funk further noted that:

Unfortunately or fortunately for [Brooks], he had a mom and dad that
loved him and a supportive family [as he] went through high school
and the military. I think he had some alcohol—like a DUI or drinking
in the military, but to me nothing earth shattering in terms of an
exacerbation of some latent mental health defect or any behaviors or
exhibiting anything that would reflect any significant head trauma, nor
was any reported to us ever.

Dr. Eisenstein, a clinical psychologist, testified during the evidentiary

hearing that he examined Brooks and concluded he exhibited signs of brain

dysregulation, and suffered from chronic PTSD and alcohol abuse. Dr. Eisenstein

additionally testified that Brooks was suffering from an extreme emotional or

- 42 -
mental disturbance and lacked the ability to conform his conduct to the

requirements of law. However, Dr. Eisenstein admitted that Brooks was generally

uncooperative during clinical testing and did not provide his best effort. In fact,

Brooks ended the first day of psychological testing early, and refused to see Dr.

Eisenstein when the doctor returned on a second day to conduct additional testing.8

As a result, Dr. Eisenstein conceded during cross-examination that his diagnoses

were tentative and were undermined by Brooks’ decision to not cooperate during

the evaluation process. The State further challenged Dr. Eisenstein’s conclusions

that Brooks was incapable of conforming his conduct to the requirements of law:

STATE: Just as you didn’t speak to any of the witnesses whose
presence he was in that night or that early morning about his condition
as far as the use of alcohol, you haven’t spoken with any of them or
considered their accounts as to whether he exhibited any behavior that
was abnormal during the night of the murders or the early morning
after?

DR. EISENSTEIN: Correct.

STATE: Wouldn’t you find that helpful to know what other persons
say, this is how he looked that night, in forming [your opinion that
Brooks was unable to conform his conduct to the requirements of
law]?

DR. EISENSTEIN: Yes, that would have been helpful.

STATE: Was it something you asked for and weren’t given, or
something you just did not ask for?

8. Brooks was not only uncooperative with Dr. Eisenstein, but he also
completely refused to be evaluated by the State’s expert.

- 43 -
 ....

DR. EISENSTEIN: I didn’t ask for it, no.

As noted above, when reviewing whether a defendant has established

prejudice on a claim alleging ineffectiveness for the failure to present mitigation,

this Court considers the totality of the available mitigation evidence—both that

adduced at trial and during the evidentiary hearing—and reweighs it against the

evidence in aggravation. Simmons, 105 So. 3d at 503. Here, the evidence

presented in aggravation is significant. The trial court found four aggravating

circumstances for the murder of three-month-old Stuart, and five aggravating

circumstances for the murder of Carlson, including HAC and CCP. Similar to

mitigation found by the trial court during the penalty phase, the mitigation Brooks

presented during the evidentiary hearing pales in comparison to this overwhelming

aggravation. While Brooks presented evidence that he suffered from alcohol abuse

after his discharge from the military, he failed to present any evidence linking his

alcohol abuse to his life and conduct. Dr. Eisenstein’s testimony regarding mental

health mitigation was not only extensively impeached, but its value was

significantly diminished by Brooks’ failure to cooperate.

Thus, we conclude that: (1) Brooks waived the presentation of mitigation;

(2) Brooks’ trial counsel conducted a reasonable investigation into available

mitigation; and (3) the evidence presented by Brooks during the evidentiary

- 44 -
hearing does not create a reasonable probability sufficient to undermine confidence

in the outcome of his sentences. Trial counsel did not perform ineffectively, and

the postconviction court did not err when it denied this claim.

Newly Discovered Evidence

To obtain relief based on a claim of newly discovered evidence, a defendant

must meet two requirements. First, the evidence must not have been known, and it

must appear that the evidence could not have been known through the use of due

diligence. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). Second, the newly

discovered evidence must be of such a nature that it would probably produce an

acquittal on retrial. Id. Newly discovered evidence satisfies the second prong of

this test if it weakens the case against a defendant so as to give rise to a reasonable

doubt as to his or her culpability. Id. at 526. In determining whether a new trial is

warranted, the reviewing court must consider all newly discovered evidence which

would be admissible, and evaluate the weight of both the newly discovered

evidence and the evidence which was introduced during trial. See id. at 521. This

determination includes an evaluation of whether: (1) the evidence goes to the

merits of the case or constitutes impeachment evidence; (2) the evidence is

cumulative to other evidence presented; (3) there are any inconsistencies in the

newly discovered evidence; and (4) the evidence is material and relevant. Id.

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 When a postconviction court rules on a newly discovered evidence claim

after an evidentiary hearing, this Court will affirm those determinations that

involve findings of fact, the credibility of witnesses, and the weight of the evidence

provided they are supported by competent, substantial evidence. Melendez v.

State, 718 So. 2d 746, 747-48 (Fla. 1998); Blanco v. State, 702 So. 2d 1250, 1251

(Fla. 1997). As with other postconviction claims, this Court reviews the

postconviction court’s application of the law to the facts de novo. Hendrix v.

State, 908 So. 2d 412, 423 (Fla. 2005).

During the second evidentiary hearing, Brooks presented Ferguson, who

testified that he saw Carlson with Gundy between 10:30 and 11 p.m. on the night

of the murders. If true, this testimony would be beneficial to Brooks because

evidence presented during trial appeared to conclusively demonstrate that at 10:20

p.m., Brooks and his codefendant were located inside a vehicle that was detained

by law enforcement several miles from the crime scene. Although the

postconviction court found the first prong of the newly discovered evidence test

had been satisfied, in its order it concluded that Ferguson’s testimony was

“thoroughly impeached by the State,” and “not worthy of belief,” explaining:

Mr. Ferguson testified that he learned of Rachel Carlson’s
murder the day after the crimes, in 1996, but did not report his
account of seeing her with Gerrold Gundy until 2010. The Court
finds this lengthy delay in coming forward with this information
regarding a brutal double homicide to be one factor in the Court’s
conclusion that Ferguson’s testimony is not credible.

- 46 -
 The Court further notes that Ferguson’s handwritten affidavit
does not contain the date of the crime, although the affidavit contains
specific time frames. Glenn Swiatek, former attorney for co-
Defendant Walker Davis, Jr., testified that when he was attending the
deposition of Ferguson, prior to the deposition, Ferguson asked him
what was the date of the crime. After Mr. Swiatek told him April 24,
1996, Ferguson wrote that date on the top of his affidavit. Ferguson’s
explanation for this action was that he was essentially “testing” Mr.
Swiatek. The Court finds this explanation not credible.

....

Mr. Ferguson testified that, on the night of the murder, he went
to the residence of “Michelle” in Panama City, Florida. In his
deposition, Ferguson testified that he could not remember Michelle’s
last name. Yet, an investigator working for the Defendant’s counsel
testified at the evidentiary hearing that the investigator was provided
the name Michelle Roberts. The investigator testified he could not
locate the “Michelle Roberts” in question.
Mr. Ferguson testified that he was an associate of Gerrold
Gundy. However, Mr. Gundy also testified at the evidentiary hearing
that he could not say he knew Mr. Ferguson. Mr. Gundy’s testimony
reflected that he was not an associate of Ferguson. The Court finds
Gundy’s testimony that he was not an associate of Ferguson’s to be
credible. As Mr. Funk testified at the March 2012 evidentiary
hearing, having a witness such as Mr. Ferguson would only be helpful
if he was believable and credible. Otherwise, such a witness could
undercut all of the efforts of the defense. The Court finds that the
testimony of Mr. Ferguson, if he were to testify on a retrial, would do
just that.
(Citations and footnotes omitted.) Thus, the postconviction court concluded that

Ferguson’s testimony was not credible, it would undercut the defense and would

probably not produce an acquittal on retrial, and denied relief.

On appeal, Brooks contends that the conclusion of the postconviction court

that Ferguson was not credible was incorrect for three reasons. First, Brooks

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contends that independent corroborating evidence supports Ferguson’s testimony,

thereby proving that Gundy testified untruthfully about his whereabouts on the

night of the murders. During the evidentiary hearing, Ferguson testified that he

saw Gundy with Carlson at a club on the night she was murdered. Gundy disputed

that fact and testified that he did not know Carlson, and that he did not go to the

club on the night of the murders. However, Brooks notes that a witness told police

Gundy was at the club at 10:30 p.m. that evening. Second, Brooks contends that

the postconviction court erroneously relied upon the fact that Ferguson was a

convicted felon and ignored Gundy’s eight felony convictions, including

convictions for crimes of dishonesty. Finally, Brooks alleges that the

postconviction court ignored the fact that only Gundy, and not Ferguson, had a

motive to present false testimony.

Brooks mischaracterizes the postconviction court’s ruling on his newly

discovered evidence claim as being based solely upon a finding that Gundy was a

more credible witness than Ferguson. That assertion is not supported by the facts.

As evidenced by the detailed discussion previously quoted, the postconviction

court relied on Gundy’s testimony as only one of many factors to conclude that

Ferguson’s testimony was not credible. In fact, the postconviction court mentioned

Gundy’s credibility only once in this section of the order. The court limited its

reliance on Gundy’s testimony to find only that Gundy was being truthful when he

- 48 -
testified that he did not know Ferguson. The court also extensively detailed the

factors that led it to conclude that Ferguson’s testimony was not credible.

Specifically, the postconviction court relied on Ferguson’s inability to remember

the date of the crime, and that no witness or any other independent evidence

corroborated the only critical portion of Ferguson’s testimony, which was that he

saw Carlson and Gundy together at Club Rachel on the night of the murders.

Further, we have previously stated that courts may consider both the length

of the delay and the reason the witness has failed to come forward sooner in

evaluating newly discovered evidence claims. Jones, 709 So. 2d at 521-22. Here,

the postconviction court noted that Ferguson waited nearly fifteen years before

reporting this information to law enforcement, and his explanation for not

disclosing this evidence sooner was that he was not “a law enforcer.” We conclude

that the postconviction court’s determinations that Ferguson’s testimony was not

credible, would have been of little or no value to the defense, and would probably

not have produced an acquittal on retrial are supported by competent substantial

evidence, and we affirm the denial of this claim.

Cumulative Error

Brooks contends that the cumulative effect of the Strickland, Giglio, and

Brady v. Maryland, 373 U.S. 83 (1963), violations and his newly discovered

evidence claim deprived him of a fair trial and undermines confidence in his

- 49 -
convictions and sentences. While Brooks contends that this Court should consider

the alleged Brady errors in conjunction with his Strickland, Giglio, and newly

discovered evidence claims, he has presented no argument on appeal to support the

allegation that a Brady violation occurred. Although Brooks presented a Brady

challenge below, his discussion of Brady on appeal was presented primarily in a

footnote, in which he stated that:

Although the facts underlying Mr. Brooks’ claims are raised under
alternative legal theories—i.e., Brady, Giglio, and ineffective
assistance of counsel—the cumulative effect of these facts in light of
the record as a whole must nevertheless be assessed. As with Brady
error, the effects of the deficient performance must be evaluated
cumulatively to determine whether the result of the trial produced a
reliable outcome.

This Court has previously held that vague and conclusory allegations on appeal are

insufficient to warrant relief. Heath v. State, 3 So. 3d 1017, 1029 n.8 (Fla. 2009)

(“Heath has waived his cumulative-error claim because his brief includes no

argument whatsoever and instead consists of a one-sentence heading in his brief.”);

see also Doorbal v. State, 983 So. 2d 464, 482-83 (Fla. 2008) (“Doorbal neither

states the substance of any of the claims that were summarily denied, nor provides

an explanation why summary denial was inappropriate or what factual

determination was required on each claim so as to necessitate an evidentiary

hearing. We conclude that this general, conclusory argument is insufficient to

- 50 -
preserve the issues raised in the 3.851 motion, and, therefore, this claim is

waived.”). Accordingly, Brooks has waived his Brady claim.

We additionally conclude that Brooks is not entitled to relief under this

claim because each of Brooks’ allegations of error independently lacks merit.

Hurst v. State, 18 So. 3d 975, 1015 (Fla. 2009).

PETITION FOR WRIT OF HABEAS CORPUS

Standard of Review

Claims of ineffective assistance of appellate counsel are appropriately

presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So. 2d

1055, 1069 (Fla. 2000). To determine whether a claim alleging ineffective

assistance of appellate counsel warrants habeas relief, we evaluate: (1) 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 (2) whether the deficiency in performance

compromised the appellate process to such a degree as to undermine confidence in

the correctness of the result. Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986);

see also Lynch v. State, 2 So. 3d 47, 84-85 (Fla. 2008). In raising such a claim,

“[t]he defendant has the burden of alleging a specific, serious omission or overt act

upon which the claim of ineffective assistance of counsel can be based.” Freeman,

761 So. 2d at 1069; see also Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981).

- 51 -
 Analysis

Inconsistent Theories

In his first habeas claim, Brooks contends that his appellate counsel

performed ineffectively in two ways. Brooks first contends that his appellate

counsel performed ineffectively when he failed to present a due process claim

pursuant to Bradshaw v. Stumpf, 545 U.S. 175, 187-88 (2005). Brooks asserts that

the prosecution presented inconsistent theories of who the “knifeman” was during

Brooks’ and Davis’ trials. To support this contention, Brooks claims that during

Davis’ trial, the prosecution maintained that “at a minimum, it was unclear as to

who was the actual killer.” Further, Brooks contends the prosecutor made several

statements indicating that Davis orchestrated the plan to murder Carlson and

Stuart. Brooks further alleges that during the closing statements of Davis’ trial, the

State urged the jury to recommend death sentences, even if Davis were not the

killer, because Davis was a principal actor and was responsible for both murders.

Brooks contends that this “ambiguity” regarding who was the “knifeman” vanished

during his trial when the prosecution elicited testimony that: (1) Brooks was sitting

in the backseat of Carlson’s vehicle; and (2) whoever was sitting in the backseat of

the vehicle killed Carlson and Stuart. Accordingly, Brooks asserts his due process

rights were violated when the trial court relied on factual findings developed

- 52 -
during his trial to impose sentences of death that were contradicted by the

testimony and argument presented during Davis’ trial.

The State contends that this Court should deny this claim based on Raleigh

v. State, 932 So. 2d 1054, 1065-67 (Fla. 2006). In Raleigh, the defendant alleged

in his postconviction motion that the State violated his right to due process under

Stumpf by taking inconsistent positions during his trial and his codefendant’s trial

regarding the identity of the “principal actor” in the murder. Id. at 1065. This

Court denied the claim, concluding that the due process concerns presented in

Stumpf did not apply because the prosecutor in Raleigh did not take an inconsistent

position, as the prosecution did in Stumpf. Id. at 1067.

Similar to the claim presented in Raleigh, the prosecutor here did not present

inconsistent positions during Brooks’ and Davis’ trials. While there is no dispute

that the prosecutor attempted to establish that Brooks was the “knifeman” during

Brooks’ trial, he did not attempt to establish that Davis was the “knifeman” during

the Davis trial. In fact, the prosecutorial statements from the Davis trial indicate

that the State actively sought the death penalty for Davis by relying almost

exclusively on the fact that Davis orchestrated the plan to murder Carlson and

Stuart. In other words, it was the State’s position that Davis was the mastermind

who requested that Brooks assist him with his plan to murder Carlson and Stuart.

Thus, unlike the situation in Stumpf, the State did not first attempt to establish that

- 53 -
Davis was the “knifeman” and then inconsistently prosecute Brooks as the

“knifeman” for the same murders. See Stumpf, 545 U.S. at 180-81. Rather, the

prosecution simply argued two different inferences from the same record.

Based on the foregoing, we hold that counsel’s decision not to present a

Stumpf due process claim does not constitute a serious error or substantial

deficiency falling measurably outside the range of professionally acceptable

performance, and we deny this subclaim. See Valle v. Moore, 837 So. 2d 905, 908

(Fla. 2002) (noting that “appellate counsel cannot be deemed ineffective for failing

to raise nonmeritorious claims on appeal”).9

Proportionality

In the second portion of his first habeas claim, Brooks contends that his

appellate counsel did not adequately contest the proportionality of the death

sentences on direct appeal. Although Brooks does not dispute that his appellate

counsel presented a proportionality challenge in his initial brief, his reply brief, and

in a motion for rehearing, Brooks contends that counsel performed deficiently

because he failed to incorporate additional evidence and arguments that were made

9. Furthermore, Stumpf was decided over two years after Brooks’ appellate
counsel filed his initial brief. This Court has made clear that counsel cannot be
held ineffective for failing to anticipate changes in the law. Taylor v. State, 62 So.
3d 1101, 1111 (Fla. 2011). In Walton, this Court expressly held that Stumpf did
not recognize a new fundamental constitutional right that applies retroactively.
Walton v. State, 3 So. 3d 1000, 1005 (Fla. 2009).

- 54 -
during Davis’ trial. According to Brooks, this evidence and these arguments

would have established that his sentence should be reduced because Davis, who

was sentenced to life imprisonment, was equally culpable.

In the initial brief on direct appeal, Brooks’ counsel comprehensively

attacked the trial court finding that Brooks was more culpable than Davis:

Davis not only was the prime instigator for the murders, he was
the one who had laid the foundation for Carlson’s and Alexis’ deaths
long before Brooks entered the picture. He initiated the murder plot,
he was its mastermind, and he kept it going after the repeated aborted
attempts.
Brooks may have been the one who killed but Davis had at least
an equal culpability with him, and more reasonably he deserved
greater blame than the defendant. Yet this co-defendant received a life
sentence. Clearly, he could have received a death sentence, but he did
not. And however much Brooks may deserve to die, this Court must
reduce his death sentences to life imprisonment because when the trial
judge imposed a life sentence on Davis it limited the punishment it
could impose on Brooks. His culpability was no greater than Davis’
and for that reason, he could not be sentenced to death. In short, but
for Davis, Carlson and Alexis would be alive today, and Brooks
would [be] a free man. A death sentence for this defendant is
proportionately unwarranted.

(Citations omitted.) In his reply brief, counsel contended, “it is clear that the case

for aggravation applies as equally to Davis as to Brooks.”

This Court considered and rejected these arguments in a lengthy analysis.

We determined the trial court’s finding that Brooks was more culpable because he

not only participated in the planning of the murders, but actually carried out the

plan by fatally stabbing each of the victims, was supported by competent,

- 55 -
substantial evidence. Brooks II, 918 So. 2d at 209. Thus, we concluded that

“[c]ontrary to Brooks’ assertion, disparate treatment of Brooks as the ‘knifeman’ in

the instant case is warranted,” because Brooks was more culpable than Davis in the

murders. Id.

Under nearly identical circumstances, this Court has previously denied

similar claims that attempt to reargue proportionality as procedurally barred. See

Lawrence v. State, 969 So. 2d 294, 315 (Fla. 2007) (denying as procedurally

barred a habeas claim alleging ineffective assistance of appellate counsel for

failing to present certain arguments as to why the sentence of death was

inappropriate); see also Zack v. State, 911 So. 2d 1190, 1210 (Fla. 2005) (denying

a claim as procedurally barred where claim “simply refashions a claim that was

unsuccessfully raised on direct appeal”); Rutherford v. Moore, 774 So. 2d 637, 645

(Fla. 2000) (holding that when a claim is presented on direct appeal, the Court will

not consider a claim that appellate counsel was ineffective for failing to present

additional arguments in support of the claim on appeal). Based on this precedent,

we deny this claim as procedurally barred.

Confrontation Clause

In his second habeas claim, Brooks contends that his appellate counsel

performed ineffectively when he failed to assert that the trial court violated his

constitutional right to confrontation when the court limited the cross-examination

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of several State witnesses. Brooks additionally contends that his appellate counsel

performed ineffectively when he failed to challenge the presentation of the

testimony of Dr. Michael Berkland.

Cross-Examination

For the third time, Brooks attempts to allege ineffectiveness arising from the

decision not to present the evidence previously discussed—i.e., the green Nissan,

Gerrold Gundy, the hair, the timeline, the polygraph, and the crime scene dog.

Here, Brooks contends that his right to confrontation was violated when the trial

court prevented trial counsel from cross-examining several State witnesses to elicit

testimony regarding this evidence. He contends that the trial court’s ruling, which

limited the cross-examination of State witnesses to only issues that were addressed

on direct examination, “touched the core of [his] defense and entirely cut off his

opportunity to impeach the State’s witnesses.”

We conclude that this claim lacks merit for several reasons. First, the plain

language of section 90.612(2), Florida Statutes, expressly provides trial courts with

the discretion to expand cross-examination beyond the subject matters discussed

during direct examination. § 90.612, Fla. Stat. (2002) (“Cross-examination of a

witness is limited to the subject matter of the direct examination and matters

affecting the credibility of the witness. The court may, in its discretion, permit

inquiry into additional matters.”) (emphasis supplied). Thus, pursuant to section

- 57 -
90.612(2), the trial court could have permitted the defense to cross-examine State

witnesses on evidentiary matters that were outside the scope of direct examination,

but it was not required to do so. Brooks appears to recognize that the decision not

to permit additional cross-examination was within the trial court’s discretion, as he

does not contend that the trial court erroneously sustained the prosecutor’s

objections to questions that were outside the scope of direct examination. He also

does not dispute that the testimony he sought to introduce was outside the scope of

direct examination. Accordingly, we conclude that appellate counsel’s failure to

present a claim that the trial court erred in properly exercising its statutorily

conferred discretion does not constitute deficient performance and certainly does

not fall measurably outside the range of professionally acceptable performance.

Further, because Brooks does not dispute that the testimony he wished to

present was outside the scope of direct examination, his only argument is that this

testimony was critical to rebutting the State’s case, and that his confrontation rights

were violated when counsel was not permitted to cross-examine State witnesses in

this manner. Brooks has failed to present any precedent demonstrating that the

failure to permit a defendant to cross-examine witnesses on subject matters outside

the scope of direct examination constitutes a constitutional violation. Thus, Brooks

has not only failed to demonstrate deficiency, but he has also failed to establish

that appellate counsel’s failure to present this claim on direct appeal compromised

- 58 -
the appellate process to such a degree that confidence in the correctness of the

result has been undermined. We deny this subclaim.

Dr. Berkland’s Expert Testimony

During the retrial, the State presented Dr. Jody Nielson, who conducted an

autopsy of the victims and testified to their injuries and cause of death. Later, Dr.

Berkland provided his opinions on several topics including: the victims’ injuries;

the manner and cause of death; the depth of the wounds; and how and in what

order the wounds were inflicted. Dr. Berkland’s testimony, however, was not

based upon an autopsy he conducted, but rather another autopsy performed by Dr.

Joan Wood, who did not testify during trial. Brooks contends that his

confrontation rights were violated when the State presented Dr. Berkland’s

testimony without first demonstrating that Dr. Wood was unavailable to testify.

This case is similar to the situation we addressed in Capehart v. State, 583

So. 2d 1009, 1012-13 (Fla. 1991). In Capehart, the defendant objected to a

medical examiner testifying at trial regarding the cause of death and the condition

of the victim’s body because that doctor did not perform the autopsy. Id. at 1012.

We held that under section 90.704, Florida Statutes (1987), a medical examiner

may, in his or her expert testimony, rely on facts or data not in evidence because

such information is of a type reasonably relied upon by experts in the field. Id.

We held that the expert testimony was proper where the expert formed an opinion

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based upon the autopsy report, the toxicology report, the evidence receipts, the

photographs of the body, and all other paperwork filed in the case. Id. at 1013.

Additionally, in Geralds v. State, 674 So. 2d 96 (Fla. 1996), we held it was proper

to permit a medical expert to testify as to the cause of death, even though the

expert did not perform the autopsy.

Here, the prosecutor specifically noted during trial that Dr. Wood was

unavailable to testify due to health problems. Further, trial counsel did not object

to Dr. Berkland’s qualifications as an expert, nor does Brooks now contend that

Dr. Berkland’s testimony was not based upon an opinion that was developed after

he independently reviewed autopsy protocols, diagrams, and photographs taken

both during Dr. Wood’s autopsy and at the scene of the murders. Thus, because

Dr. Berkland’s testimony was presented in a manner consistent with our precedent,

appellate counsel cannot be deemed ineffective for failing to present this

nonmeritorious claim on appeal. See Valle, 837 So. 2d at 908. Accordingly, we

deny this subclaim.

Impermissible Prosecutorial Comments

In his third claim, Brooks contends that his appellate counsel performed

ineffectively when he failed to challenge the prosecutor’s impermissible

comments, misstatements of the law, and attempts to inflame the jury. He further

- 60 -
claims that the comments independently and cumulatively jeopardized the fairness

of his trial.

Burden Shifting

Brooks first contends that the prosecutor attempted to shift the burden to

Brooks to prove his innocence in two ways. First, Brooks notes that during voir

dire, the prosecutor told the jury with regard to the State’s burden of proof: “It’s

not an easy concept to just rattle off what it means, but I’ll tell you what’s not in

there. . . . The State is not required to prove its case one hundred percent.”

(Emphasis supplied.) Brooks contends that this statement “minimized the

certitude” that is required by both the United States and Florida Constitutions

before a defendant may be convicted of a crime.

We addressed a nearly identical claim in Morrison v. State, 818 So. 2d 432,

444 (Fla. 2002). In Morrison, the prosecutor stated during voir dire, “Do you all

understand that you don’t have to be 100 percent, absolutely convicted [sic] that

this man committed the crime in order to return a verdict of guilty?” Similar to

Brooks, the defendant in Morrison claimed that the prosecutor’s remarks to the

venire improperly minimized the State’s burden of proof and violated Morrison’s

rights to a fair trial and due process. Id. We denied the claim, relying upon State

v. Wilson, 686 So. 2d 569, 570 (Fla. 1996), to conclude:

In Wilson, the trial judge made extemporaneous remarks to the venire
regarding the State’s burden of proof, including the following

- 61 -
 statement: “I repeat, stress, and emphasize, the State does not have to
convince you to an absolute certainty of the defendant’s guilt.
Nothing is one hundred percent certain.” Wilson, 686 So. 2d at 570.
We acknowledged that the trial judge’s preliminary instruction on
reasonable doubt in Wilson was “not incorrect, as such . . . [but] it was
at least ambiguous to the extent that it might have been construed as
either minimizing the importance of reasonable doubt or shifting the
burden to the defendant to prove that reasonable doubt existed.” Id.
This Court, however, went on to say, “Notwithstanding, in view of the
fact that the trial judge gave the standard jury instruction on
reasonable doubt at the close of the evidence and told the jury that it
must follow the standard instructions, we cannot say that error was
committed.” Id.
The instant case involves a remarkably similar extemporaneous
remark made by the prosecutor to the venire regarding the State’s
burden of proof. As we stated in Wilson, although such a statement
may not be technically incorrect, it may be at least ambiguous to the
extent that it might have been construed as either minimizing the
importance of reasonable doubt or shifting the burden to the defendant
to prove that a reasonable doubt existed. However, like the trial court
in Wilson, the trial court in the instant case gave the standard jury
instruction on reasonable doubt at the close of evidence and told the
jury it must follow the standard instructions. Given that the trial court
in the instant case also instructed the venire to disregard the statement
and read the standard reasonable doubt instruction to the venire
immediately following the prosecutor’s comment, as well as re-read
the reasonable doubt instruction while swearing in the jury, it stands
to reason that the curative actions taken in the instant case were at
least as effective as those taken by the trial judge in Wilson. See
Williams v. State, 674 So. 2d 155 (Fla. 4th DCA 1996) (holding any
harm created by prosecutor’s statement that State’s burden was not to
prove guilt to “100 percent certainty” was cured by the court’s
curative instruction coupled with the fact that the court subsequently
correctly charged the jury).

Morrison, 818 So. 2d at 444-45. Here, the prosecutor was asked during voir dire

whether it was the State’s burden to prove “beyond a shadow of a doubt” whether

an individual was a principal in a crime. The prosecutor responded in the negative,

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explaining, “I’m going to tell you right now that the State has the burden in this

case. The State willingly accepts that burden. The State must prove the guilt of

Lamar Brooks beyond any reasonable doubt.” The statement in question occurred

later during the prosecutor’s explanation, and was one isolated sentence in a nearly

two-page response to the juror’s inquiry, during which defense counsel did not

object. After the jury was sworn, the trial court instructed the jury that it was their

“solemn responsibility to determine if the [S]tate has proved its accusation beyond

a reasonable doubt.” The court then later, after closing statements, read the

standard jury instruction on reasonable doubt to the jury.

We conclude that this case is materially indistinguishable from Morrison and

Wilson, and had this claim been presented on appeal, it would have been rejected.

Any ambiguity in the prosecutor’s comments regarding the State’s burden of proof

was clarified satisfactorily when the trial court instructed the jury that the

prosecutor’s comments were not evidence and later read to the jury the standard

instruction for reasonable doubt. Therefore, because appellate counsel cannot be

deemed ineffective for failing to present nonmeritorious claims on appeal, we hold

that this subclaim lacks merit. See Valle, 837 So. 2d at 908.

Second, Brooks contends that the prosecutor attempted to shift the burden of

proof to him by improperly contending that there was no evidence connecting

Gundy to the murders. It is true that the State may not comment on a defendant’s

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failure to present a defense because doing so could lead the jury to erroneously

conclude that the defendant has the burden of doing so. However, a prosecuting

attorney may comment on the jury’s duty to analyze and evaluate the evidence

presented during trial and may provide his or her opinion relative to what

reasonable conclusions may be drawn from the evidence. Evans v. State, 838 So.

2d 1090, 1094 (Fla. 2002); Rodriguez v. State, 753 So. 2d 29, 28 (Fla. 2000).

Here, the comments relating to Gundy were limited. They only conveyed that the

prosecutor believed no evidence was presented during trial to link Gundy to the

murders. This was a reasonable comment based on the evidence presented during

trial, and the comments in no way bolstered the State’s case or shifted the burden

to Brooks to prove that he was innocent. Thus, we conclude that had this subclaim

been presented on appeal, it would have been rejected. Accordingly, this subclaim

lacks merit. See Valle, 837 So. 2d at 908.

Stabbing Gesture During Closing Statements

Brooks contends that the prosecutor attempted to inflame the jury during

closing statements when he made a stabbing gesture in the air and raised his voice

while he was counting the number of stab wounds inflicted on the victims. After

the trial court instructed the jury, the prosecutor admitted that he engaged in this

conduct because he was “demonstrating what [he] believed was done to the

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victims.” Brooks presents no precedent that demonstrates this type of

prosecutorial behavior is improper.

In State v. Duncan, 894 So. 2d 817, 829-31 (Fla. 2004), we addressed a

habeas claim alleging that appellate counsel was ineffective for failing to challenge

the use of a dummy as a demonstrative aid during one eyewitness’s testimony.

During the State’s case-in-chief, the prosecutor asked the eyewitness to

demonstrate what he had observed through the use of a dummy. Id. at 829-30.

Defense counsel objected to the use of the demonstrative aid, but the trial court

overruled the objection. Id. On appeal, we noted that in Brown v. State, 550 So.

2d 527, 528 (Fla. 1st DCA 1989), the Fifth District held:

Demonstrative exhibits to aid the jury’s understanding may be utilized
when relevant to the issues in the case, but only if the exhibits
constitute an accurate and reasonable reproduction of the object
involved. The determination as to whether to allow the use of a
demonstrative exhibit is a matter within the trial court’s discretion.

Duncan, 894 So. 2d at 829 (quoting Brown, 550 So. 2d at 528) (citations omitted).

The prosecutor in Brown used a knife and a Styrofoam head during his closing

statements to depict the extent of a victim’s stab wounds. See 550 So. 2d at 528.

The Fifth District concluded that the demonstrative aids were “sufficiently accurate

replicas to be allowable within the court’s discretion.” Id. Relying upon the

standard articulated in Brown, we concluded in Duncan:

The dummy was used to aid the jury’s understanding of a relevant
issue, namely guilt, and there is no claim that the exhibit was not an

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 accurate and reasonable reproduction of the attack. Therefore, the
determination as to whether to allow the use of a demonstrative
exhibit was a matter within the trial court’s discretion. The judge did
not abuse his discretion in allowing the use of the demonstrative aid.
Additionally, as in Brown, the overwhelming evidence of Duncan’s
guilt negates any reasonable possibility that his conviction resulted
from the challenged demonstration.

Duncan, 894 So. 2d at 830-31.

Here, as in Duncan, Brooks does not contend that the reenactment was

inaccurate or an unreasonable reproduction of what occurred. He instead asserts

that it was used solely to inflame the emotions of the jury. However, as noted in

Brown, it is within a trial court’s discretion to allow the prosecutor to explain

during closing statements what he reasonably believed would assist the jury in

understanding the evidence that was presented during trial. See Brown, 550 So. 2d

at 529. Furthermore, the “overwhelming amount of properly admitted evidence

upon which the jury could have legitimately relied in finding Brooks guilty in the

instant matter,” negates any reasonable possibility that his conviction resulted from

the challenged demonstration. Brooks II, 918 So. 2d at 194; see also Duncan, 894

So. 2d at 830-31. Thus, we conclude that this subclaim lacks merit, and appellate

counsel was not ineffective for failing to present this claim on appeal.

Burden Shifting Regarding Sentencing

Brooks contends under this subclaim that appellate counsel performed

ineffectively when he failed to assert that the prosecutor improperly shifted the

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burden to Brooks to establish that life was the appropriate sentence. The

prosecutor told the jury during penalty phase closing statements that “there are

mitigating circumstances that you should consider and weigh against that

aggravation, and if you find that the mitigating circumstances outweigh the

aggravating circumstances, then your vote should be for life.” (Emphasis

supplied.)

We deny this claim for two reasons. First, the prosecutor’s statement is

consistent with both the standard advisory sentence jury instruction and section

921.141(2), Florida Statues (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 Inst. (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

exist.”) (emphasis supplied). Second, this Court has consistently rejected claims

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that section 921.141(2) and the standard jury instruction require a defendant to

establish that life is the appropriate sentence. See, e.g., Wheeler v. State, 4 So. 3d

599, 611 (Fla. 2009). Thus, we conclude that this subclaim lacks merit.

Conclusion

In sum, all of Brooks’ claims of prosecutorial misconduct lack merit, and we

therefore conclude that appellate counsel did not perform ineffectively by failing to

present these claims on direct appeal.

Prejudicial Photographs

In his final claim, Brooks alleges that appellate counsel performed

ineffectively when he failed to challenge the admission of over thirty-five photos,

many of which he claims were gruesome, duplicative, and not relevant. This Court

has consistently held that the initial test for determining the admissibility of

photographic evidence is relevance, not necessity. See Mansfield v. State, 758 So.

2d 636, 648 (Fla. 2000). Photographs are admissible if they assist in explaining the

nature and manner in which wounds were inflicted. Bush v. State, 461 So. 2d 936,

939 (Fla. 1984). Moreover, photographs are admissible to show the manner of

death, the location of wounds, and the identity of the victim. Larkins v. State, 655

So. 2d 95, 98 (Fla. 1995). While trial courts must be cautious and not permit

unduly prejudicial or particularly inflammatory photographs before the jury, a

photograph will not be excluded as unduly prejudicial simply because the content

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depicted in the photograph is gruesome. See Hampton v. State, 103 So. 3d 98, 115

(Fla. 2012). Finally, the admission of photographic evidence of a murder victim is

within the sound discretion of the trial court, and its ruling will not be disturbed on

appeal absent an abuse of discretion. See id.

During Brooks’ second trial, the State sought the admission of several

additional photographs and one video. Brooks does not specifically explain why

the photographs were too gruesome, but rather alleges that the State presented too

many photos that were duplicative and inflammatory. However, the fact that

several similar photographs were presented does not demonstrate that the trial

court erred in admitting them. The photographs and video were used either by the

medical examiners or crime scene technicians to assist in explaining the condition

of the crime scene, the position and location of the bodies, and the manner and

cause of death, and were therefore directly relevant to several disputed issues of

fact. We have previously held a trial court’s admission of similar photos not to be

an abuse of discretion. See Bush, 461 So. 2d at 939 (noting that photographs are

admissible if “they assist the medical examiner in explaining to the jury the nature

and manner in which the wounds were inflicted”); see also Larkins, 655 So. 2d at

98 (explaining that photographs are admissible “to show the manner of death, the

location of wounds, and the identity of the victim.”)

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 Moreover, Brooks’ counsel challenged the admission of five photographs on

direct appeal, alleging that the probative value of the photos was substantially

outweighed by their prejudice. Brooks I, 787 So. 2d at 781. We rejected the claim

and concluded that the trial court did not abuse its discretion in admitting the

photographs because they were relevant to the medical examiner’s determination

as to the manner of Carlson’s death. Id. It is, therefore, reasonable for appellate

counsel to conclude, based on our previous holding during the first direct appeal

that the trial court did not err in admitting several photographs that Brooks claimed

were too gruesome and prejudicial, that this Court would again reject a similar

claim when the photographs were presented in substantially the same manner.

Thus, we conclude that Brooks has failed to establish any unfair prejudice

associated with the admission of these photographs. The trial court did not abuse

its discretion in admitting the photographs, and if Brooks had presented this claim

on appeal, it would have been rejected. This claim, therefore, lacks merit, and

appellate counsel cannot be deemed ineffective for failing to present it. See Valle,

837 So. 2d at 908.

CONCLUSION

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.

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 It is so ordered.

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

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

Two Cases:

An Appeal from the Circuit Court in and for Okaloosa County,
Kelvin Clyde Wells, Judge - Case No. 461996CF000735XXXAXX
And an Original Proceeding – Habeas Corpus

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney
General, Tallahassee, Florida,

for Appellee/Respondent

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