& SC13-1787 Steven Douglas Hayward v. State of Florida and Steven Douglas Hayward v. Julie L. Jones, etc.

Supreme Court of Florida
____________

No. SC12-1386
____________

STEVEN DOUGLAS HAYWARD,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC13-1787
____________

STEVEN DOUGLAS HAYWARD,
Petitioner,

vs.

JULIE L. JONES, etc.,
Respondent.

[June 25, 2015]

PER CURIAM.

Steven Douglas Hayward appeals an order of the circuit court denying his

motion filed under Florida Rule of Criminal Procedure 3.851 to vacate his

conviction of first-degree murder and sentence of death after an evidentiary
hearing on certain issues raised in the motion. He also petitions this Court for a

writ of habeas corpus, alleging ineffective assistance of appellate counsel. We

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

below, we affirm the denial of postconviction relief and deny his petition for a writ

of habeas corpus.

I. BACKGROUND AND FACTS

Hayward’s convictions for first-degree murder, armed robbery, armed

burglary of a conveyance, and possession of a firearm by a convicted felon, and his

death sentence, were affirmed on direct appeal in Hayward v. State, 24 So. 3d 17

(Fla. 2009), cert. denied, 559 U.S. 1097 (2010). The facts of the case were set

forth in this Court’s direct appeal decision in detail. Hayward shot and robbed

Daniel Destefano in St. Lucie County in the early morning hours of February 1,

2005. Trial was held in 2007. Destefano was a newspaper delivery person in Fort

Pierce and was filling a newspaper stand at a convenience store around 4 a.m.

when he was accosted by Hayward. A witness heard Destefano shouting “I don’t

have no more,” and heard two gunshots followed by a louder gunshot. Id. at 24.

Hayward shot Destefano twice with a .22 caliber pistol and Destefano, who

had a concealed weapons permit for his .357 caliber revolver, shot Hayward once

in the hand. The witness saw a black man searching Destefano’s car and then

going under a street light where he appeared to examine his hand. The man was

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wearing some sort of head covering. Id. The witness saw Destefano limp away in

an easterly direction and saw the black male leave the area in a westerly direction

by way of a short-cut around the witness’s nearby rooming house. Id. Hayward’s

blood was later found at the crime scene on personal items around Destefano’s car,

on the outside wall of the witness’s rooming house, and on a fence post near the

witness’s rooming house. Id. at 26. Not long after he was shot, Destefano was

found about a block away. When paramedics and police responded, an officer

asked him, “What happened?” to which Destefano responded that a black male

with a stocking cap over his face had shot him. Soon thereafter Destefano died.

Id. at 24.

Hayward’s girlfriend testified that Hayward came to their rooming house

near the convenience store just before dawn on the day of the shooting with an

injury to his hand. Two days after the shooting, police responded to the rooming

house after receiving a report that someone there had a possible gunshot wound to

his hand and had asked a resident to sew it up. Id. at 24-25. The police were

allowed by other residents to enter and found Hayward coming out of a communal

bathroom. They asked to see his wound, which was wrapped, and he showed it to

them, claiming it was a knife wound inflicted by his girlfriend. Hayward

consented to go outside and speak with officers. Hayward was subsequently asked

to come to the police station to discuss the injury to his hand, to which he agreed,

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and was handcuffed for the ride in the back seat of the police car. The officer told

Hayward he was not under arrest, and that it was “policy” to handcuff anyone

being transported in the police car. Hayward suddenly stated that he “wasn’t going

to lie” and that he had been robbed and shot several days earlier. Hayward’s

girlfriend also informed the officers that she had stabbed Hayward in the hand, but

that he had reported to her that he had been shot when two black men were robbing

him. She said he was shot in the same hand where she had earlier stabbed him. Id.

at 25.

Once at the police station, Hayward was uncuffed but secured by an ankle

bracelet, and was advised of his Miranda rights.1 During the interview, he told

police he had not been stabbed in the hand, but had been shot in the robbery

attempt by two men, one black and one Mexican, when he attempted to take their

gun away. He later changed the story to say he was not robbed, but had witnessed

Destefano being robbed and shot by a lone man, and that when he, Hayward,

attempted to pick up a gun at the scene, he was accidentally shot. He also admitted

going through Destefano’s car looking for anything of value. Id. at 25. Several

months later, the murder weapon, a .22 caliber revolver, was found behind a wall

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

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board in the rooming house where Hayward’s girlfriend lived. Hayward’s blood

was found inside the gun’s firing chamber. Id. at 26.

At the penalty phase, the State presented evidence of Hayward’s prior

conviction for second-degree murder and armed robbery. Hayward presented

mitigation through testimony from four family members and an expert. Id. at 27.

The jury returned a verdict recommending death by a vote of eight to four, and the

trial court followed the recommendation, finding two aggravators: (1) prior violent

felony convictions (extremely great weight); and (2) murder during the course of a

robbery merged with pecuniary gain (great weight).

No statutory mitigators were offered or found, but the trial court found the

following nonstatutory mitigation: (1) Hayward could have received a life

sentence; (2) he grew up without a father; (3) he was loved by his family; (4) he

had academic problems; (5) he obtained a GED in prison; (6) he would make a

good adjustment to prison; (7) he had financial stress at the time of the crime; and

(8) he had some capacity for rehabilitation. Each mitigating factor was given

“little weight” except for the factor that Hayward could have gotten a life sentence,

which was given “very little weight,” and the factor that he grew up without a

father, which was given “some weight.” Id.

On direct appeal, Hayward raised a number of claims of error pertaining to

his conviction and his sentence, which were found to be without merit or harmless

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beyond a reasonable doubt.2 We affirmed the convictions and sentence, finding

that Destefano’s statements to the first responders describing his attacker qualified

as an excited utterance exception to the hearsay rule and not as a dying declaration.

Id. at 31. However, we also concluded that the statements were a Confrontation

Clause violation under the authority of Crawford v. Washington, 541 U.S. 36

(2004), although we found the error to be harmless beyond a reasonable doubt.3

2. On appeal, Hayward asserted that (1) the statements of the murder victim
to police describing his attacker were improperly admitted under the excited
utterance and dying declaration exceptions to the hearsay rule, and in violation of
the Confrontation Clause; (2) introduction of Hayward’s statements to police at the
rooming house and their observations while there violated his Fourth Amendment
rights; (3) introduction of the recorded jail conversations between Hayward and
former girlfriend Dorothy Smith were more prejudicial than probative due to the
vulgarity of the language used, affecting both the guilt and penalty phases;
(4) comments made by the prosecutor in closing argument during the penalty phase
comparing the life choices made by the victim and by Hayward constituted
prosecutorial misconduct requiring resentencing; (5) there was insufficient
evidence concerning the identity of the shooter; (6) there was insufficient evidence
as to whether a robbery was actually accomplished; (7) there was insufficient
evidence establishing premeditation; (8) the standard jury instruction on
premeditation is insufficient; (9) Florida’s sentencing scheme is unconstitutional
under Ring v. Arizona, 536 U.S. 584 (2002); and (10) imposition of a death
sentence based on an eight-to-four jury recommendation is unconstitutional. See
Hayward, 24 So. 3d at 28.

3. After this Court issued its opinion in Hayward, the United States
Supreme Court decided Michigan v. Bryant, 562 U.S. 344 (2011), in which the
Supreme Court held that it was not a Crawford confrontation clause violation to
admit the out-of-court statements of a mortally wounded shooting victim
identifying the shooter under circumstances very similar to those in this case
because the primary purpose of the statements was to enable police to meet an
ongoing emergency. Id. at 349.

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 As to the police encounter with Hayward in the rooming house, we found

that the encounter was consensual and that the police had probable cause to detain

Hayward for questioning. As to the claim that Hayward was illegally detained

when handcuffed as a matter of policy for the ride to the police station, we

explained:

The State concedes that handcuffs are restraining devices but
contends that Hayward was not detained because the use of handcuffs
during transport was a routine safety measure followed by the police.
Although Hayward was in the process of being handcuffed pursuant to
police policy at the time of his statement, the totality of the
circumstances, including the purpose of the officer’s conduct and the
spontaneous nature of Hayward’s statement, demonstrate that his
statement was not the result of any alleged illegal detention.

Hayward, 24 So. 3d at 36. This Court found that once at the police station,

Hayward was detained, but gave his statements voluntarily after waiving his

Miranda rights. Id. at 36-37.

As to Hayward’s claim of fundamental error in prosecutorial comments

comparing his life choices with those made by the victim, we found that the

argument was error but not fundamental. Id. at 42. Hayward’s other claims on

direct appeal were found to be without merit.

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 Postconviction Proceedings

On April 21, 2011, Hayward filed his initial motion for postconviction relief,

which he subsequently amended on August 16, 2011.4 After a case management

4. In his rule 3.851 amended motion, Hayward raised the following claims:
(1) application of Florida Rule of Criminal Procedure 3.851 to Hayward’s case was
improper because it limits the time for filing postconviction proceedings as to
death-sentenced individuals and treats them differently than all other persons
seeking postconviction relief, prejudicing Hayward because it provided insufficient
time to obtain all necessary records and prepare for an evidentiary hearing;
(2) Hayward’s constitutional rights are being violated by being denied access to
public records because section 119.19, Florida Statutes, and Florida Rule of
Criminal Procedure 3.852 limit the production of public records in capital
postconviction cases, thus violating article I, section 24, of the Florida
Constitution; (3) rules prohibiting Hayward’s counsel from interviewing jurors to
determine if constitutional error is present deny Hayward his constitutional rights;
(4) trial counsel was ineffective during the guilt phase of trial due to professional,
personal, and emotional problems during the trial requiring him to be medicated
with psychotropic drugs, and co-counsel was suspended from the practice of law
for 90 days while preparing for Hayward’s trial, thus providing a conflict of
interest—resulting in ineffective assistance in the motion to suppress hearing
concerning incriminating pre- and post-Miranda statements to police, failure to
challenge scientific evidence in the guilt phase, failure to effectively challenge the
State’s witness Roosevelt McDowell, and failure to effectively argue for exclusion
of hearsay statements; (5) trial counsel was ineffective in (a) failing to investigate
and present mitigation evidence, including mental health mitigation, (b) failing to
provide sufficient time for the expert to examine Hayward, and failing to discover
and present mitigation concerning Hayward’s childhood, and the fact that he was
impoverished, abused, suffered impaired cognitive functioning, low intelligence,
brain damage, and a history of alcohol and drug abuse, (c) failing to discover and
prepare family members, teachers, or social workers, and obtain school records for
mitigation, (d) failing to object to prosecutorial misconduct in closing argument
which the Florida Supreme Court found improper on direct appeal but not
fundamental; and (6) Florida’s lethal injection statute and existing procedures are
unconstitutional.

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hearing held on December 19, 2011, the trial court ordered an evidentiary hearing

on certain of the claims. The evidentiary hearing was held on February 27, 2012,

through March 1, 2012, and March 28, 2012. At the hearing, Hayward presented

the testimony of trial counsel Robert Udell and Jerome Stone, Jr.; family members

Barbara Johnson (mother), Debra Fleury (sister), Derrick Green (brother), and

Terrance Hayward (brother); Pamela Clark (mother of his child); forensic and

clinical psychologist Dr. Michael Riordan; trial defense investigator Venus

Oleyourryk; social worker Cecelia Alfonso; and behavioral neurologist Dr.

Thomas Hyde. The State presented Fort Pierce Police Captain Greg Kirk, State

Attorney Investigator Ed Arens, Jr., and Dr. Michael Riordan. The circuit court

entered its order denying postconviction relief on June 14, 2012, and this appeal

followed.

After Hayward filed his notice of appeal from denial of postconviction

relief, he filed a petition for writ of habeas corpus in this Court on September 17,

2013, raising one claim. He contends in his petition that his appellate counsel was

ineffective for failing to raise as fundamental error a claim that State’s witness

Roosevelt McDowell was incompetent to testify and should have been disqualified

as a witness. Hayward contends that McDowell was “old and sick” and could not

recall even the most basic details of the event he witnessed, and that admission of

this testimony was fundamental error without which the jury would not have had a

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basis to find that the murder occurred in the course of a robbery and was

committed for pecuniary gain; and that the jury would not have recommended a

sentence of death. We turn first to the issues raised in Hayward’s appeal from

denial of postconviction relief.

II. ANALYSIS

A. Claim of Ineffective Assistance of Counsel in the Penalty Phase

Hayward contends that both of his trial counsel were deficient in

investigating and presenting mental health mitigation and family background

mitigation in the penalty phase of his trial. Hayward further claims that this

deficient performance prejudiced him and that, had the information been developed

for the jury and the judge, he probably would have received a life sentence.

To prevail on a claim of ineffective assistance of counsel, the defendant

must show that counsel’s representation fell below an objective standard of

reasonableness and, but for counsel’s deficiency, there is a reasonable probability

that the result of the proceeding would have been different—a reasonable

probability being one sufficient to undermine confidence in the outcome.

Strickland v. Washington, 466 U.S. 668, 694 (1984). Where the defendant claims

counsel rendered ineffective assistance in the penalty phase, “the question is

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

would have concluded that the balance of aggravating and mitigating

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circumstances did not warrant death.” Id. at 695; see also Foster v. State, 132 So.

3d 40, 52 (Fla. 2013). “To assess that probability, [the Court] consider[s] ‘the

totality of the available mitigation evidence . . .’ and ‘reweigh[s] it against the

evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting

Williams v. Taylor, 529 U.S. 362, 397-98 (2000)).

However, Strickland cautions that “[a] fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” 466 U.S. at 689. We

must “indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must 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)).

The Supreme Court also recognized that “[t]he reasonableness of counsel’s

actions may be determined or substantially influenced by the defendant’s own

statements or actions.” Id. at 691. Because both deficient performance and

prejudice must be shown, a reviewing court is not required to issue a ruling on one

prong of the test when it is apparent that the other element is not satisfied. See id.

at 697; Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986). With this

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standard in mind, we turn to the question of whether Hayward demonstrated that

trial counsel was deficient in investigation and presentation of mental health and

background mitigation at trial.

Hayward was represented at trial by Robert Udell and Jerome Stone, who

were assisted for a short time by an investigator named Venus Oleyourryk. The

defense theory developed by the team was that Hayward came from a reasonably

good background with productive relatives and would do well if given life in

prison. Stone testified that defense counsel decided not to present testimony from

any of Hayward’s siblings who were in prison or had criminal records because

presenting testimony of relatives who had been incarcerated or had a criminal

history would only emphasize the fact that Hayward had been in prison. At the

penalty phase of trial, counsel presented testimony of Hayward’s sister Debra, who

was a Sheriff’s deputy, his mother, and his brother Terrance, who had been in the

military. Trial counsel also reviewed school records and obtained a life history of

Hayward. Stone did not recall Hayward reporting any abuse by family members

when he was growing up.

Robert Udell, lead counsel in Hayward’s trial, testified that in preparation

for the penalty phase, he reviewed Hayward’s medical records, school records,

criminal history, Florida Department of Corrections records, and some social

history records. He spoke with Hayward’s family members in a group setting and

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spoke with Hayward’s mother and sister numerous times by telephone. He

recalled that the family members told him the family was somewhat dysfunctional

and poor, but loving. Udell learned that Hayward’s father suffered from alcohol

abuse and was sometimes violent in disciplining Hayward, but that Hayward was a

loved family member.

Venus Oleyourryk, a registered nurse who also acted as an investigator in

court cases, including Hayward’s beginning in June 2005, testified at the

evidentiary hearing that she assisted Udell with Hayward’s case and also assisted

Udell in a California criminal case he litigated from 2006 to January 2007. In

Hayward’s case, Oleyourryk spent 100 hours between June 2005 and May 2006

meeting with Hayward, copying discovery, and going through documents. She

spoke to Hayward’s mother and sister early in the case. She did not perform any

work on Hayward’s case after May 2006, and spent most of her time on the

California case, which concluded with a verdict against Udell’s client in January of

2007, two months before Hayward’s trial. She testified that after Udell’s client in

the California case was convicted, Udell appeared to be “in a haze.”

During trial preparation, Udell also retained Dr. Michael Riordan shortly

before Hayward’s trial. Dr. Riordan evaluated Hayward and informed Udell that

Hayward exhibited some traits of antisocial personality disorder and suggested that

additional testing could be done, but indicated it might not be fruitful in terms of

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mitigation. Udell testified at the evidentiary hearing that he did not want further

testing to confirm antisocial personality disorder, which sounded more like

aggravation than mitigation. Dr. Riordan told Udell that if the testing revealed a

personality disorder “not otherwise specified,” rather than antisocial personality

disorder, such result might be mitigating; although if the testing confirmed

antisocial personality disorder, that might be considered aggravating. Dr. Riordan

explained that the basis for concluding there were characteristics of antisocial

personality disorder was Hayward’s history of criminal activity.

Although he was hired only shortly before trial, Dr. Riordan had sufficient

time to prepare and did testify during the penalty phase of trial. He examined

Hayward for mitigating evidence and took a psychological history, noting that

Hayward appeared to be a “reliable historian.” He reviewed Hayward’s school

records, social history records, and Department of Corrections records. Dr.

Riordan testified during the penalty phase that Hayward’s biological father was

often intoxicated and offered Hayward alcohol when he was five years old. Dr.

Riordan told the jury about Hayward not receiving guidance from his father and

having to rely on older siblings because his mother was often absent. The jury

heard that Hayward had a substance abuse problem and alcohol problem in his teen

years and that Hayward functioned below his intellectual ability in school,

necessitating placement in special education for a period of time. The jury also

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heard from Dr. Riordan that Hayward had suicidal thoughts while in prison, but

there was no indication of psychosis. Dr. Riordan told the jury about how well

Hayward worked in prison and how he received outstanding ratings for his work

there.

The subject of Hayward suffering physical abuse from his siblings did not

come up during Dr. Riordan’s trial testimony, although Hayward’s older sister

Theresa testified in the penalty phase that she and her siblings often beat Hayward

as a form of discipline. Dr. Riordan testified at the evidentiary hearing that he was

aware the children in the family lived in a state of neglect but opined that because

they did not think of it as neglect at the time, it might not have been reported as

neglect. He agreed that the belief by the children that their upbringing was normal

could account for why Hayward and his siblings did not report any abuse or

neglect.

Hayward’s older sister, Debra Fleury, a Fort Pierce Sheriff’s Deputy,

testified at the penalty phase that their mother worked two jobs and provided the

children a good clean home with food and clothing to the best of her ability.

Fleury confirmed that her older sister Theresa would give Hayward a “whooping”

as discipline. She said Hayward was a good brother but started getting into trouble

around age 13 or 14 while she was in the military. She said Hayward was hard-

headed and angry, especially when a baby cousin came to live with them.

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 At a Spencer5 hearing prior to sentencing, Fleury testified that she wanted

the court to know that the siblings did not testify about “everything” in the penalty

phase. She explained to the court, “They’re embarrassed. But the Court needs to

know that my family was not the Huxtables and weren’t the Cleavers. We were

totally different. We were I would say dysfunctional.” She testified that some of

her brothers were now in prison and had drug problems, her sister is a recovering

drug addict, and one brother did well in the military but came back with a drug

abuse problem. She also testified at the Spencer hearing that her older brothers and

sister were rough on Hayward as a child, and that Hayward’s biological father had

anger problems and was an alcoholic, “but he didn’t give us any problems.”

At the postconviction evidentiary hearing, Fleury testified that her sister

Theresa was responsible for caring for her siblings, starting when Fleury was only

five years old and Hayward was a baby. Theresa was characterized as “bossy and

mean,” and Fleury testified Theresa would hit the children. When Hayward’s

stepfather Harold came home on weekends, the children would get “a whippin’.”

Fleury said he beat them with tree branches, belts, extension cords, or a water hose

on their arms, legs, backs—anywhere he could reach. They had to “hug the wall”

5. Spencer v. State, 615 So. 2d 688 (Fla. 1993) (providing for a hearing
after trial at which the parties may present to the sentencing judge any additional
information or evidence pertinent to the appropriate sentence to be imposed and to
afford the defendant an opportunity to be heard in person).

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during the beatings and if they ran, the other children had to bring them back and

hold them for the beating. Fleury testified that her mother beat the children too if

she was drinking alcohol, and her beatings were more methodical and took longer.

She also used switches, extension cords, or a water hose, and would wake them up

in the middle of the night to beat them if the kitchen was not cleaned up. Hayward

was not deterred by the beatings and would get beaten more and started running

away at age 12 or 13.

Fleury testified at the evidentiary hearing that their mother and some of the

children, including Hayward and infant cousin Sam Peaks, moved to Vero Beach

when Fleury was around nine years old to get away from Hayward’s stepfather

Harold. Tony Johnson, Hayward’s biological father who was a fruit contractor,

lived with them in Vero Beach, and her mother and the children often worked in

the orange groves. When Johnson was drunk, he was verbally abusive. He and

their mother fought physically and their mother would sometimes call the police.

Fleury testified she was aware that Hayward’s siblings beat him because she saw

them doing it. Approximately twice a week, they would “body slam” him in the

yard, throw him against the walls and furniture, and might have hit him with their

fists.

Fleury testified that she met once with trial counsel Udell several weeks

before the trial and then a couple of times during the trial. She never met with any

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of trial counsel Udell’s experts. She said Udell never asked about any beatings

when the children were growing up and never asked about Tony Johnson’s

behavior or the violent relationship with Harold Hayward, nor did he ask about her

mother’s alcohol use.

Fleury agreed during the evidentiary hearing cross-examination that she told

the judge at the Spencer hearing that the family was embarrassed to say what

occurred in Hayward’s childhood. She also agreed that her testimony at the

evidentiary hearing about Theresa’s treatment of the children differed only “in the

details” from what she testified to at trial. She denied holding back information

and denied misleading the court at the trial and Spencer hearing, and said that any

discrepancies in her testimony were not intentional.

Hayward’s brother Terrance Hayward testified during the penalty phase at

trial and was called to testify at the evidentiary hearing. At trial, Terrance testified

that he previously served in the Army and was working in construction. He said

Hayward’s biological father, who lived with them for a time, was an alcoholic, and

that Hayward and his brothers were close and cared about each other.

At the postconviction evidentiary hearing, Terrance testified that when he

and his brother were growing up, his father was away most of the time and their

mother worked two jobs, so the children raised themselves. When his father

Harold came home, his mother would report who had disobeyed that week and his

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father would give them a “whoopin’.” He reiterated that the children were hit with

hoses, extension cords, tree branch switches, and other things on their arms, legs,

and backs, which resulted in welts, bruises, and torn skin. He said Hayward was

given the same treatment. His mother would also give the children whippings.

He testified that the children often went hungry because there was no food in

the house. Terrance would obtain food with expired dates, which a friend got to

feed his hogs, and bring it home to the family to eat. Terrance testified that

Hayward’s biological father Tony Johnson lived with them in Vero Beach. He and

Hayward’s mother would argue and fight when the children, including Hayward,

were in the house and the fights resulted in several stabbings. Terrance said the

whole family would work in the orange groves on weekends and after school, and

sometimes as punishment. Terrance and his brothers would beat Hayward in what

they called “initiation” to toughen him up. The toughening up happened two or

three times a week and consisted of different wrestling moves. When it was done

on Hayward, he was about eight years old, and they would “body slam” him,

punch him, and perform other wrestling moves on him that they saw on television.

Terrance testified that he attended the group meeting with trial counsel Udell

prior to trial and met once again in the courtroom during trial. Udell did not ask

about any beatings, fights between his mother and Tony Johnson or Harold

Hayward, eating expired food, or his father’s or mother’s alcohol consumption.

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Udell asked Terrance about himself, but not why he was discharged from the

military, which was for drug addiction. Terrance confirmed that his brothers Leon

and Derrick, and his cousin Samuel Peaks, had all been in prison.

Hayward’s mother, Barbara Johnson, who also testified at the penalty phase

of trial, testified at the evidentiary hearing about her two marriages and the

children she raised—six of her own, plus Peaks, and several grandchildren.

Postconviction counsel was not allowed to present testimony about Barbara

Johnson’s childhood with a family in South Carolina. The testimony was proffered

that Barbara’s mother placed her and her brother with “foster parents” Daisy and

Lawrence Green.6

6. Barbara testified on proffer that life was not good with the Greens
because she was beaten regularly with switches and rope. Barbara said that Daisy
Green tied her to a tree for eating some of the family’s food without permission,
and once strung her up in a tree naked and beat her. Daisy also kicked her in the
head, leaving a scar. Barbara said she did not know that this was not normal
treatment. Daisy made her quit school in eighth grade and work in the cotton and
tobacco fields. When Barbara was about seventeen years of age, she was sent to
New York to work and send money back to Daisy. Barbara got pregnant there by a
man named Nathaniel and returned to the Greens where she had a baby she named
Derrick. When Derrick was a toddler, Barbara was made to marry Harold
Hayward and they moved away. Derrick was left with the Greens but she retrieved
him from the Greens when he was about eleven years old. The proffer was ended
and the evidence was excluded.

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 Johnson related moving to Florida and having five more children in

somewhat quick succession. She started working after Hayward, her youngest,

was born. Because her husband, Harold, worked in construction and only came

home on weekends, her seven-year-old daughter Theresa was in charge of taking

care of toddler Hayward. The older boys had no caretaker most of the time. When

her infant nephew Samuel Peaks came to live with them when Hayward was about

five, Theresa had to take care of him too.

Barbara testified at the evidentiary hearing that when Harold came home on

weekends, she would report what the children had done during the week and “[h]e

would whip ‘em with a switch off a tree.” Barbara said she also beat the children

with a switch when they were little because that was what was used on her as a

child. She and Harold got drunk when he was home on weekends and, when

drinking, they fought in front of the children. She said she, Harold, and the

children would work in the orange groves on the weekend to make money to buy

alcohol.

Barbara and Harold fought a lot and separated several times, but the last

time occurred when she came home and found that Harold had hit daughter

Theresa with a rubber automotive belt and injured her leg. Tony Johnson,

Hayward’s biological father, helped her and some of the children relocate to Vero

Beach and moved in with them. Barbara and Tony, who was an alcoholic, fought

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almost every night, and Tony would sometimes brandish a knife or a gun, so she

often called the police. At one point, she cut him with a knife. Barbara testified

that Hayward was in trouble a lot while in school and had difficulty with school

work, but she could not help him because she did not have much education and

could not afford to obtain help for him.

She testified at the evidentiary hearing that she learned from a neighbor that

Hayward’s brothers were “not treating” him right. The State objected that this was

hearsay, so her testimony was proffered that when Hayward was a child, a

neighbor, now-deceased Lucy Collins, told her that the older brothers “fought”

Hayward when he was about age eleven. The court excluded the testimony,

finding the hearsay “blatantly unreliable,” and because of the inability of the State

to rebut it.7

In preparation for trial, Barbara met once with trial counsel Udell in his

office for several hours, along with other family members, and she had several

telephone conversations with Udell. Udell did not ask about Hayward’s childhood

or her own childhood, whether Hayward was beaten, or about her fights with

7. Barbara Johnson testified to this same information at the Spencer hearing
after the penalty phase of trial. Also, during the penalty phase of trial, Hayward’s
mother testified that due to the family’s financial difficulties, she had to work two
jobs and was frequently absent from the home, and that Hayward’s stepfather was
present in the home during his early years and that he loved Hayward.

- 22 -
Harold Hayward or Tony Johnson. He did ask about Tony’s alcohol consumption

and they discussed Terrance’s drug abuse. She only met co-counsel Stone in court.

Derrick Green, Hayward’s brother, testified at the evidentiary hearing that

he was currently incarcerated for armed robbery and other charges. At about age

eleven, he was retrieved from the Greens in South Carolina by his mother, Barbara

Johnson, and brought to live in Florida with her and Harold Hayward. Derrick was

not allowed to testify about the abuse he suffered in South Carolina at the hands of

Daisy and Lawrence Green, so that testimony was proffered.8 He was taken to

Florida by his mother and lived in the household with his other half-brothers and

sisters where he also received beatings when Harold Hayward came home. He was

struck with switches, a water hose, a washing machine belt, and a piece of car tire.

He said Harold appeared to enjoy beating the children. The boys, and especially

Hayward, would get beaten more than the girls. Derrick also testified that their

mother would sometimes give beer to the children, including Hayward. His

8. On proffer, Derrick testified that when living with the Greens, he
received beatings with a switch or other object about every other day from age five
to age eleven when his mother came to get him. Lawrence Green sometimes
whipped him with a leather horse whip. He testified that once Daisy Green hit him
in the eye during a beating and he was blind for several weeks. He was made to
pick cotton, tobacco, and vegetables from about age five. When he was about
eleven years old, his mother, along with Harold Hayward and Tony Johnson, came
to get him and took him away after his cousin called them to report the abuse he
was receiving from the Greens.

- 23 -
mother separated from Harold after he got angry at Derrick and retrieved his gun,

although she left Derrick and Leon at the house with Harold when she and the

other children moved to Vero Beach.

Derrick testified about Tony Johnson coming to live with them in Vero

Beach. His mother admitted to him that Tony was Hayward’s biological father,

although Hayward only learned of this when he was older. Derrick said his mother

beat Hayward starting when Hayward was four or five years old, but Tony Johnson

never hit the children. Derrick and the other family members worked in the groves

with Tony on weekends or when school was out. Derrick testified that he and his

brothers abused Hayward from the time he was about seven, thinking they were

toughening him up, and when he cried they just did it more. They used Hayward

as their “guinea pig” to practice the wrestling moves they saw on television.

Derrick left home at age seventeen and, when Hayward went to trial for this

murder, Derrick was in prison in Georgia and no one from the defense team

contacted him.

On cross-examination, Derrick denied telling the State Attorney investigator

Ed Arens prior to this hearing that his mother did not beat the children and denied

telling the investigator that there was nothing to report concerning abuse of

Hayward during his childhood. Derrick said he did not view the wrestling that the

brothers did with Hayward as abuse at the time, but looking back on it now, he

- 24 -
thinks it was abuse. By way of impeachment of Derrick, the State presented the

testimony of investigator Ed Arens that he interviewed Derrick Green in prison on

February 7, 2012, about one month before the evidentiary hearing and asked

Derrick if their mother had ever been abusive to the children. Arens testified

Derrick did not tell him that his mother did any disciplining and did not mention

the brothers or sister being abusive to Hayward, even though the question was

asked if anyone had been abusive to Hayward when he was growing up. Derrick

told him only his father and stepfather were abusive toward the children.

In addition to family members, postconviction counsel presented Pamela

Clark, the mother of Hayward’s son, who said she could have testified at trial

about Hayward being a loving father.

Cecilia Alfonso, a forensic social worker and mitigation specialist in death

penalty cases, testified at the evidentiary hearing. Alfonso performed a

“biopsychosocial assessment” of him after meeting with him for three and one-half

hours. She also reviewed school, medical, and prison records, as well as trial

transcripts. Based on school records, she concluded Hayward had a learning

disability, poor school attendance, repeated several grades, and dropped out at age

sixteen. She testified that his standardized testing scores were low. She concluded

from the Department of Corrections’ records that he had suicidal thoughts at one

time, and had some unresolved health problems.

- 25 -
 She interviewed family members and Hayward’s former girlfriend Dorothy

Smith. Alfonso was not allowed to testify about Hayward’s mother’s childhood or

the childhood experiences of Hayward’s brother Derrick before Hayward was

born.9 Alfonso was allowed to testify that Derrick reported to her that when living

with Barbara Johnson and Harold Hayward, Harold would repeatedly beat the

children with a switch, a belt, or a cord.

The court also excluded Alfonso’s proffered testimony that in her interview

with Hayward’s sister, Theresa Williams, Alfonso was told that Theresa and her

brothers were abused and that the mother was absent most of the time.10

9. The testimony was proffered about Hayward’s mother’s life with the
Greens in South Carolina. A further proffer was made that the mother’s childhood
experiences were relevant mitigation for Hayward because it showed that she
raised her children in an abusive manner just like her foster parents raised her, and
as a consequence, that type of violence was internalized by Hayward, and his
ability to develop a sound decision-making process was adversely affected.
Alfonso was also not allowed to testify about the childhood of Hayward’s older
brother Derrick when he lived with the Greens.
10. Alfonso’s testimony was proffered that Theresa told Alfonso that she hit
and pinched Hayward; that the mother drank alcohol on a daily basis and would
drink alcohol and fight with Harold Hayward on weekends; and that Harold would
beat the children. Theresa reported that Tony Johnson was also a drunk and would
threaten the children when he was home. Alfonso said this information supported
the conclusion that violence was normalized in Hayward’s mind as he was growing
up; and that in acting in a surrogate mother position, Theresa also violated the
responsibility of nurturing and protecting Hayward.
The court also excluded as inadmissible hearsay Alfonso’s testimony of
what she learned from Samuel Leon Hayward, one of Hayward’s older brothers.
Alfonso testified on proffer that Leon said Harold would beat them when he came
home on weekends and that one time after a drunken fight with the mother, Harold

- 26 -
Hayward’s mother reported to Alfonso that after she separated from Harold, Tony

Johnson moved in and was a very heavy drinker. He did not beat the children, so

the mother took over that responsibility of discipline and would hit them with a

switch or a belt on their back and arms. Alfonso testified that her interview with

Hayward’s brother Terrance confirmed that Hayward was raised in a “battle zone”

and was subjected to repeated abuse, which taught Hayward that violence is

acceptable.

Alfonso concluded that the violence Hayward suffered and was exposed to

as a child deprived him of learning about nonviolent ways to live. She opined that

his low-normal IQ indicates that he had the ability, but was not provided with the

cognitive tools, to develop strategies for coping. She said his environment

deprived him of a sense of competence in the area of academics, but taught him to

value competence in fighting and being able to tolerate physical and emotional

realized she had shot him in the foot. Leon would punch, beat, and jump on
Hayward to take out his own frustrations. Alfonso explained that this was
significant as mitigation because it contributed to the extent, nature, and duration
of the abuse Hayward suffered. Also on proffer, Alfonso testified to her
conversation with Hayward’s former girlfriend, Dorothy Smith, who said that she
grew up in the same neighborhood as Hayward’s family and they were all “crazy,
dirty, and bizarre.” Alfonso said this was an indication of mental illness in the
family. Alfonso said Smith told her that while she was in the relationship with
Hayward, he acted strangely and had suicidal thoughts. The judge excluded
Alfonso’s opinion that Hayward’s mother failed in her role to nurture and protect
Hayward. The circuit court held that it was not relevant to what mitigation was
available for presentation to the penalty phase jury.

- 27 -
abuse. She said the mitigation she developed was different than that presented in

the penalty phase of trial because there was no presentation of the nature, extent,

and duration of the abuse that occurred and, although witnesses said it was a

dysfunctional family, the details were not provided to the jury.

Hayward presented the testimony of Dr. Thomas Hyde, a behavioral

neurologist, at the evidentiary hearing. Dr. Hyde was given background materials

and records, and met with Hayward to evaluate his neuropsychiatric history, to

perform an examination, and reach some general conclusions about his

neuropsychiatric status. Dr. Hyde testified that he performed a “Mini Mental State

Examination,” sometimes known as the Folstein Mental State Exam, a behavioral

neurological examination, as well as cranial nerve, motor, gate, and sensory

examinations and a limited general physical examination.

Dr. Hyde concluded that Hayward had poor complex motor sequencing in

both hands, which he said is often indicative of frontal lobe dysfunction. Dr. Hyde

also concluded that Hayward had subtle abnormalities that were significant—

increased deep tendon reflexes at the left biceps, triceps, brachioradialis, knee and

ankle, and crossed adductors on the left, all suggesting right frontal lobe

dysfunction. Dr. Hyde concluded that Hayward suffered from right frontal lobe

dysfunction which adversely affects his prioritization, reason, judgment, problem

solving, attention span, focus, and manipulation of information. He explained that

- 28 -
frontal lobe dysfunction can also cause impulsivity, inability to maintain long-term

relationships, employment difficulty, and substance abuse; and can make the

individual susceptible to mood disorders, such as depression and manic depressive

illness. Dr. Hyde did not ask for an MRI, PET, or any other brain scan testing to

be done.

Dr. Hyde opined that Hayward’s poor school performance despite a 91 IQ

indicated either a learning disability or some type of developmental neurological

dysfunction affecting his performance. He opined that school records and

Hayward’s performance on the testing done by Dr. Hyde indicated Hayward

suffered from attention deficit disorder. He said Hayward had elements in his

history consistent with depression NOS (not otherwise specified) dating back to

childhood but did not meet DSM-IV R criteria for major recurrent depressions.

Overall, Dr. Hyde found that Hayward had circumscribed areas of cognitive

deficits that were not pervasive but can be significant. Dr. Hyde testified that he

asked Hayward if he suffered any abuse by anyone when he was a child and was

advised there was no abuse history.

In rebuttal, the State recalled Dr. Michael Riordan, who testified that there

are a number of tests that a forensic neuropsychologist can administer to assess and

diagnose brain damage in the various lobes of the brain. The Expanded Halstead-

Reitan Battery is one of those tests, comprising twenty-one separate elements.

- 29 -
Dr. Riordan examined the testing done by Dr. Hyde and the RBANS test

(Repeatable Battery for the Assessment of Neuropsychological Status Update)

administered by a Dr. Harvey, who did not testify. Based on this review,

Dr. Riordan did not find any indication of frontal lobe damage. Dr. Riordan did

not believe the “Mini Mental State Exam” performed by Dr. Hyde was the proper

test to use to determine if there was frontal lobe impairment. He further concluded

that Hayward’s score on the test was normal and did not indicate any problem.

Dr. Riordan said Dr. Hyde’s examination did not go far enough and, to the extent

any of his findings suggested frontal lobe damage, further neuropsychological

testing should have been done.

The Postconviction Order Denying Relief

On this issue, the circuit court denied relief, concluding that Hayward

presented no records that trial counsel had failed to provide to Dr. Riordan at trial,

and Hayward failed to show that Dr. Riordan had insufficient time to review the

records or perform a thorough mental health examination. The court concluded

that Dr. Riordan found no reason to conduct neuropsychological testing, but

recognized traits of antisocial personality disorder that would not be mitigating.

The court also found that Dr. Hyde relied on the same records as Dr. Riordan and

did not administer any psychological tests. The court held that the fact that

Dr. Hyde arrived at a different conclusion than Dr. Riordan did not prove the initial

- 30 -
evaluation by Dr. Riordan was inadequate. The court noted that Dr. Hyde found

no history of head injuries and that, although he found soft signs of frontal lobe

dysfunction, depression NOS, and childhood ADHD, Dr. Hyde could not describe

the degree of neurological impairment or link these diagnoses to Hayward’s adult

functioning and behavior. The court also noted that Dr. Riordan reviewed the

results of Dr. Hyde’s examination and found no evidence of frontal lobe

impairment.

As to the claim that trial counsel was ineffective in discovering and

presenting evidence of childhood abuse and neglect and in failing to properly

prepare lay witnesses to testify in the penalty phase, the circuit court also denied

relief. The court concluded that evidence that Hayward was punished from the

time he was a young child by whippings or beatings with a hand, belt, switch,

extension cord, water hose, or piece of tire and suffered welts and sores from that

punishment was simply amplification and evolution of the nature, duration, and

extent of the corporal punishment testified to at trial. The family members also

admitted that they believed this punishment was a proper form of discipline and

that “it was the way it was supposed to be,” although their opinions had now

changed.

The court noted the evidence that Hayward lacked adult supervision and

bonding as a child, his parents fought violently, and his brothers beat him and

- 31 -
wrestled violently with him to “toughen him up.” The court found that his father

was an alcoholic, and Hayward did not do well in school, but that much of this

evidence was presented at trial and was simply being amplified in detail. The court

also concluded that this evidence was undercut by the fact that the postconviction

motion alleged the family members were embarrassed to testify to all this

information at trial, by the fact that Hayward failed to report any abuse to his trial

counsel or mental health expert, and by the inconsistent testimony of family

members about abuse and neglect.

The court rejected the testimony of mitigation specialist Cecilia Alfonso,

who presented testimony about how the circumstances of Hayward’s childhood

had an ongoing adverse impact on his ability to make good judgments and conform

to the law as an adult. The court found that her testimony was not credible because

at the evidentiary hearing she testified to details of abuse that she failed to reveal in

her deposition and refused to admit that she was an advocate for the defendant, but

later recanted that position. Finally, the circuit court held that despite the fact that

there was additional evidence of mitigation which was not presented at trial, the

court would assign little weight to those circumstances, and concluded that no

prejudice was shown as to the outcome of the penalty phase. The circuit court

stated that “the mitigating circumstances added to the totality of the mitigating

circumstances found at trial are outweighed by each statutory aggravator.”

- 32 -
 Discussion

The circuit court was correct that much of the information that was provided

by evidentiary hearing testimony was also presented at the penalty phase. The

penalty phase jury heard testimony that Hayward’s parents were mostly absent, his

father was an alcoholic, Hayward did not do well in school, and Hayward’s older

sister would give him a “whooping” as discipline. The trial judge also heard in the

Spencer hearing that Hayward’s brothers would violently wrestle him on a regular

basis. The jury was told by Theresa Williams, Hayward’s sister, that she and her

siblings would “beat him a lot” for discipline. By way of mental mitigation, the

jury was told that Hayward had no bond with his father, that he developed a

substance abuse problem, that he was the product of a dysfunctional family, that he

had academic problems in school and was placed in special education, and had

suicidal thoughts while incarcerated.

Trial counsel Udell and Stone testified at the evidentiary hearing that the

trial strategy was to present Hayward as the product of a successful family with a

hardworking mother who did her best to provide for her six children. Udell

believed evidence that Hayward had traits of antisocial personality disorder would

be aggravating rather than mitigating, and that testimony from family members

who were incarcerated or convicted felons would not have served to paint

Hayward in the best light. Dr. Riordan testified at trial that Hayward would be a

- 33 -
good candidate for a life sentence because he had been successful in prison before,

had received commendations, helped other inmates, supported his child, and could

adapt to life in prison without causing problems.

We have long recognized that trial counsel’s “strategic decisions do not

constitute ineffective assistance of counsel if alternative courses have been

considered and rejected and counsel’s decision was reasonable under the norms of

professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).

The Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003), stated that

Strickland does not establish that a cursory investigation automatically
justifies a tactical decision with respect to sentencing strategy.
Rather, a reviewing court must consider the reasonableness of the
investigation said to support that strategy.

Id. at 527 (citing Strickland, 466 U.S. at 691). In assessing the reasonableness of

an attorney’s investigation “a court must consider not only the quantum of

evidence already known to counsel, but also whether the known evidence would

lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527.

Hayward never reported any childhood beatings to his counsel. Stone testified that

he was never told of any childhood abuse even though he met with Hayward

several times to talk about his background “from start to finish.” Stone said he

also reviewed school records and psychological testing records, which were also

provided to Dr. Riordan. Although counsel knew prior to the penalty phase that

- 34 -
Hayward was essentially raised by his siblings, no one ever told counsel that the

discipline or play the siblings engaged in with Hayward rose to the level of abuse.

This Court has made clear that “an attorney’s obligation to investigate and

prepare for the penalty portion of a capital case cannot be overstated because this is

an integral part of a capital case.” State v. Pearce, 994 So. 2d 1094, 1102 (Fla.

2008). We also explained in Willacy v. State, 967 So. 2d 131 (Fla. 2007), that

“[u]nder Strickland, ‘counsel has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations unnecessary.’ ” Id.

at 143 (quoting Marshall v. State, 854 So. 2d 1235, 1247 (Fla. 2003) (quoting

Strickland, 466 U.S. at 691)). However,

[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.

Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-91). Therefore,

strategic decisions must follow a reasonable and thorough investigation. In light of

the records that trial counsel reviewed, and in light of what both trial counsel were

told—and not told—by family members and Hayward himself about his childhood,

and in light of the possibility that further psychological testing could have

indicated antisocial personality disorder, we find that counsel made a reasonable

- 35 -
investigation before deciding to present a strategy of “humanizing” Hayward and

showing him in the best light possible.

In Rutherford v. State, 727 So. 2d 216 (Fla. 1998), we held that defense

counsel properly relied on a strategy of “humanization” of the defendant rather

than exposing his alcoholism and anxiety disorder. Id. at 223. In so holding, we

drew a clear distinction between counsel’s actions in Rutherford and those in cases

where counsel made a decision to forego mental mitigation without making any

meaningful investigation, such as in Rose v. State, 675 So. 2d 567 (Fla. 1996),

where we reversed because trial counsel’s mitigation decisions were “neither

informed nor strategic” and ‘there was no investigation of options or meaningful

choice.’ ” Rutherford, 727 So. 2d at 223 (quoting Rose, 675 So. 2d at 572-73).

Similarly, this Court granted a new penalty phase in Hurst v. State, 18 So. 3d 975

(Fla. 2009), where counsel was presented with information that Hurst had a low

IQ, had borderline intellectual function, and counsel had information that Hurst’s

mother drank heavily when pregnant with him, suggesting the possibility of Fetal

Alcohol Syndrome and brain damage. Id. at 1011. This Court concluded that

counsel did not make an informed decision to ignore such mitigation and instead

presented only insubstantial mitigation. In the present case, Stone testified that he

did review school records and records of past psychological testing, which records

- 36 -
were also given to Dr. Riordan to review; and counsel did meet with family

members and relied on information provided by them and by Hayward.

In Jones v. State, 998 So. 2d 573, 583 (Fla. 2008), we explained that where

available information indicates that the defendant could have mental health

problems, a mental evaluation is fundamental in defending against the death

penalty. In this case, available information did not indicate Hayward had any

mental health problems requiring additional investigation. The frontal lobe deficits

to which Dr. Hyde testified were based on his interpretation of several tests

administered to Hayward, but Dr. Riordan disputed that the results of those tests

indicated any frontal lobe damage. Trial counsel’s performance “is not rendered

incompetent merely because the defendant has now secured the testimony of a

more favorable mental health expert.” Asay v. State, 769 So. 2d 974, 986 (2000).

Nor does the presentation of additional mitigating evidence in the postconviction

proceeding necessarily establish ineffective assistance of counsel. Hodges v. State,

885 So. 2d 338, 347 (Fla. 2004). “The pertinent inquiry remains whether counsel’s

efforts fell outside the ‘broad range of reasonably competent performance under

prevailing professional standards.’ ” Id. We find, based on the evidence presented

at the evidentiary hearing, and evidence that was presented to the jury in the

penalty phase, that trial counsel were not deficient in investigating and presenting

- 37 -
mental mitigation or mitigation based on Hayward’s childhood and family

background.

Moreover, prejudice has not been established. Even if all the mitigation

presented at the evidentiary hearing were presented to a penalty phase jury, there is

no “reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Strickland, 466 U.S. at 695; see also Foster, 132 So. 3d at 52. To

assess that probability, the Court considers “ ‘the totality of the available

mitigation evidence . . .’ and ‘reweigh[s] it against the evidence in aggravation.’ ”

Porter v. McCollum, 558 U.S. at 41 (quoting Williams, 529 U.S. at 397-98). The

totality of the mitigation in this case indicates that Hayward had a difficult

childhood, suffered severe discipline by his parents and sister, and violent

roughhousing by his brothers. The postconviction court was correct that the

penalty phase jury, and the court in the Spencer hearing, heard much of the

childhood mitigating evidence that was presented at the evidentiary hearing.

Dr. Hyde’s testimony of possible frontal lobe damage was subject to impeachment

by Dr. Riordan’s testimony and by the fact that Dr. Hyde did not refer Hayward for

in-depth psychological testing. The aggravation in this case was heavily weighted,

especially by the fact that one of the prior violent felonies was a murder. Thus, we

conclude that even if Hayward had carried his burden to show that trial counsel’s

- 38 -
decisions were not reasonable, strategic ones, prejudice has not been shown.

Accordingly, relief is denied on this claim.

B. Claim of Ineffective Assistance of Counsel at the Suppression Hearing

Hayward next contends that trial counsel was deficient in failing to obtain a

copy of the written policy of the Fort Pierce Police Department for transporting

persons in patrol cars, and if he had done so, he would have found that the written

policy only applied to prisoners, not to mere passengers. Hayward contends that

had counsel obtained the written policy on prisoner transport, he could have

effectively impeached Officer Darren Mace, an officer with the Fort Pierce Police

Department who testified at trial that there was a written policy governing

handcuffing of non-prisoners in patrol cars. Hayward further contends that if

counsel had secured a copy of the actual policy, he would have been able to obtain

a favorable ruling suppressing Hayward’s first statement and those that followed.

Hayward characterizes as “a lie” the testimony of Officer Mace that the policy

calling for handcuffing anyone transported in a patrol car was a written policy.

Hayward contends that the State failed to correct this false testimony, a violation

under Giglio v. United States, 405 U.S. 150 (1972), and failed to supply trial

counsel with the written policy at trial in order for defense counsel to use it to

impeach Officer Mace, a violation under Brady v. Maryland, 373 U.S. 83 (1963).

- 39 -
 At the suppression hearing held before trial, the State presented Officer

Mace, who testified in pertinent part that while at Hayward’s rooming house, he

asked Hayward to step outside to discuss his hand wound. Officer Mace testified

that he did not handcuff Hayward at that time. Officer Mace testified he then

asked Hayward if he would come to the police station to discuss the hand wound,

which Hayward had described as a cut inflicted by Dorothy Smith, his girlfriend.

Hayward did not object to that request and was then handcuffed for the ride to

police headquarters. On cross-examination, Officer Mace testified at the

suppression hearing, “It’s policy that any time we transport anybody in our police

cars, that they’re secured or handcuffed” for officer safety. Mace also said that it

was “written in our POP, our policy from [the] police department. Anybody that

travels in our vehicle in the back seat will be secured.” Officer Mace said, “I

advised him, I said, sir, you’re not under arrest but for the purpose of and policy of

my department I have to secure you.” When asked, “If one reviewed that, that

would be in there?” Officer Mace answered, “Yes, sir.”

When Hayward was handcuffed in front of his body and, just before he got

into the police vehicle, Hayward said something to the effect that he was not going

to lie, that he was robbed the other day and he may have gotten shot. Officer Mace

conveyed this information to Officer Flaherty, who was in the rooming house with

Hayward’s girlfriend, Dorothy Smith, who then told Flaherty that Hayward had

- 40 -
knocked on her window in the early morning of February 1, 2005, and had a

gunshot wound to his hand.

Fort Pierce Police Captain Greg Kirk testified at the evidentiary hearing that

the police department had a written policy for prisoner transport but did not have a

written policy for transport of non-prisoners. That decision is left to the discretion

of the officer, but he agreed there is an unwritten policy regarding transport of non-

prisoners in the back seat of patrol cars. Captain Kirk trains Fort Pierce police

officers regarding transportation of people who are not under arrest and has done

so since 2004, and he was involved in the training class which Officer Mace

attended. Captain Kirk said the unwritten policy that is taught to the officers is that

if the officer believes there is a need to assure safety in the transportation of a

person, the person should be handcuffed and told that the procedure is for their

safety and officer safety, even if the person is volunteering to come to the police

station.

The postconviction court held:

Hayward presented no evidence rebutting the [Fort Pierce
Police Department] handcuff practice or the related officer training, or
proving that the State knew that the handcuff practice was unwritten.
And it is undisputed that Officer Mace told Hayward he was being
cuffed for officer safety and that he was not under arrest. Thus, the
court finds no exculpatory or impeaching evidence in the fact that
Officer Mace erroneously believed that there was a written handcuff
policy where there was a memorialized training practice; and finds
Officer Mace’s misstatement that there was a written policy harmless
beyond a reasonable doubt where the substance of the memorialized

- 41 -
 training practice was conveyed to Hayward, so Hayward could not
have reasonably believed that he was being detained.

Under Brady, a violation occurs “when the government fails to disclose

evidence materially favorable to the accused.” Youngblood v. West Virginia, 547

U.S. 867, 869 (2006); see also Riechmann v. State, 966 So. 2d 298, 307 (Fla. 2007)

(citing Mordenti v. State, 894 So. 2d 161, 168 (Fla. 2004)). This obligation

extends to “impeachment evidence and to evidence ‘known only to police

investigators and not to the prosecutor.’ ” Youngblood, 547 U.S. at 869-70

(quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)).

In order to demonstrate a Brady violation, the defendant has the burden to

show (1) that favorable evidence, either exculpatory or impeaching, (2) was

willfully or inadvertently suppressed by the State, and (3) because the evidence

was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263,

281-82 (1999); see also Way v. State, 760 So. 2d 903, 910 (Fla. 2000). In order to

meet the materiality prong of Brady, the defendant must demonstrate “ ‘a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.’ ” Youngblood, 547 U.S. at

870 (quoting Strickler, 527 U.S. at 280). “[A] showing of materiality does not

require demonstration by a preponderance that disclosure of the suppressed

evidence would have resulted ultimately in the defendant’s acquittal.” Id. at 870

(quoting Kyles, 514 U.S. at 434). A reasonable probability is a probability

- 42 -
sufficient to undermine confidence in the outcome. Way, 760 So. 2d at 913; see

also Strickler, 527 U.S. at 290. “[R]eversal of a conviction is required upon a

‘showing that the favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.’ ”

Youngblood, 547 U.S. at 870 (quoting Kyles, 514 U.S. at 435).

A claim under Giglio alleges that a prosecutor knowingly presented false

testimony against the defendant. In order to demonstrate a Giglio violation, “a

defendant must show that: (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.” Tompkins v. State, 994 So. 2d 1072, 1091 (Fla. 2008)

(citing Guzman v. State, 941 So. 2d 1045, 1050 (Fla. 2006)). Once the first two

prongs are established by the defendant, the false evidence is deemed material if

there is any reasonable possibility that it could have affected the jury’s verdict.

Tompkins, 994 So. 2d at 1091. The State then “has the burden to prove that the

false testimony was not material by demonstrating it was harmless beyond a

reasonable doubt.” Id. at 1092. The harmless error standard requires the State to

prove “that there is no reasonable possibility that the error contributed to the

conviction.” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)).

Giglio and Brady postconviction claims present mixed questions of law and

fact and, where the trial court has conducted an evidentiary hearing, this Court will

- 43 -
defer to the factual findings of the trial court that are supported by competent,

substantial evidence, but will review the application of the law to the facts de novo.

Lynch v. State, 2 So. 3d 47, 56 (Fla. 2008) (citing Sochor v. State, 883 So. 2d 766,

771-72 (Fla. 2004)); see also Lowe v. State, 2 So. 3d 21, 29 (Fla. 2008)

(“Generally, this Court’s standard of review following a denial of a postconviction

claim where the trial court has conducted an evidentiary hearing accords deference

to the trial court’s factual findings.” (citing McLin v. State, 827 So. 2d 948, 954

n.4 (Fla. 2002))). “ ‘[T]his Court will not substitute its judgment for that of the

trial court on questions of fact, likewise of the credibility of the witnesses as well

as the weight to be given to the evidence by the trial court.’ ” Id. at 30 (quoting

Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997)).

Simply because Officer Mace erroneously stated that the policy on

transporting persons in the patrol car was written does not prove that the falsity

was purposeful, or that the State knew that it was false or knew that there was a

written policy that contradicted Officer Mace’s testimony. Thus, no Giglio

violation was shown.

Under Brady, however, exculpatory or impeaching evidence that is

inadvertently suppressed by the State can be the basis for a finding of violation if

the evidence was material, thus causing prejudice to the defendant. In this case,

the State did not disclose that the written policy did not expressly extend to

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handcuffing non-prisoner passengers in the patrol car. Even so, Hayward failed to

demonstrate that had trial counsel been provided the written policy, and had it been

used to impeach Officer Mace, there is a reasonable probability—defined as one

sufficient to undermine this Court’s confidence in the outcome—that the

statements would have been suppressed after the hearing or that the jury at trial

would have found the statements involuntary. It cannot be said that if Officer

Mace had been confronted with, and impeached by, a copy of the written policy,

the whole case would have been viewed in such a different light that confidence in

the verdict would be undermined. It is likely that Office Mace would have simply

responded that he was in error concerning the terms of the written policy, but that

there was clearly an unwritten policy that he had been taught concerning

handcuffing of persons traveling in the back of a patrol car. As evidenced by the

testimony of Captain Kirk at the evidentiary hearing, the officers were taught to

use their discretion and to err on the side of safety whenever transporting persons

in the back of a patrol car.

Based on the foregoing, we conclude that no Giglio or Brady violations have

been established in regard to Officer Mace’s testimony at the suppression hearing

or trial. Even though the trial court granted an evidentiary hearing on the issue of

the written transport handcuffing policy only as it related to the Brady and Giglio

claims, Hayward now states the issue as primarily one of ineffective assistance of

- 45 -
counsel and primarily argues it in that context. The postconviction court did

address this Strickland claim very briefly in denying relief as to the handcuffing

policy claim. After concluding that nothing impeaching or exculpatory arose from

Officer Mace’s erroneous testimony, the postconviction court also held that

Hayward had failed to carry his burden under Strickland.

Hayward contends on appeal that trial counsel was deficient in not obtaining

a copy of the Fort Pierce Police Department prisoner transport policy prior to the

suppression hearing. He contends that because Udell did not seek out a copy of a

written policy on handcuffing, “trial counsel was not able to impeach Mace’s

credibility after he lied to the court about the written policy.” Hayward points out

that a simple public records request would have resulted in disclosure of any

handcuffing policy at the police department, but that Udell made no such efforts.

Hayward also points out that trial cocounsel Jerome Stone testified at the

evidentiary hearing that if Officer Mace could be shown to be “flat out lying,” such

would adversely affect his credibility. Hayward contends Officer Mace’s “false

testimony was material” and Hayward was prejudiced, because it was after he was

handcuffed for the ride to the police station that Hayward made the incriminating

statement that he had been shot in the hand.

We disagree that ineffective assistance of counsel has been established.

Even if trial counsel should have sought out any written or unwritten handcuffing

- 46 -
policy prior to the suppression hearing and trial, Hayward has failed to prove the

second prong of Strickland—prejudice. To establish prejudice, the defendant must

prove that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” White v. State, 964

So. 2d 1278, 1285 (Fla. 2007) (quoting Strickland, 466 U.S. at 694). Importantly,

that reasonable probability is evaluated and expressed in terms of “a probability

sufficient to undermine confidence in the outcome.” Id.

Regardless of the existence or non-existence of a written policy concerning

transport of non-prisoners, and regardless of Officer Mace’s error in testimony, the

incriminating statement that Hayward gave after being handcuffed was

spontaneous and not the product of interrogation. Further, once at the police

station, and after Hayward was given Miranda warnings, Hayward made several

more incriminating statements to the police which did not involve Officer Mace.

Thus, Hayward has failed to prove both prongs required under Strickland, in that

the matters brought to light here do not undermine our confidence in the outcome

of either the suppression hearing or the jury trial.

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 C. Summary Denial of Certain Postconviction Claims

1. Summary Denial of Claim that Trial Counsel was Ineffective in Failing to
Object to Prosecutorial Comment in Closing Argument

In penalty phase closing argument, the prosecutor used victim impact

evidence to discuss, and essentially compare, the life choices made by the victim

with the life choices made by Hayward. Trial counsel failed to object and a claim

of fundamental error was raised on direct appeal. This Court found the argument

to be erroneous, but not fundamental. Hayward contends that if counsel had timely

objected, the error would have been measured not by the fundamental error

standard but by the harmless error standard in which the burden would have been

on the State to prove it was harmless beyond a reasonable doubt. On direct appeal,

we stated:

During the penalty phase closing argument, the prosecutor
reminded the jury about how Destefano had worked toward his goal
of buying a Harley-Davidson, and then stated, in part, as follows:
One thing we learned about Danny was that Danny
set his sights on something and then worked towards that
. . . goal . . . . Because he had a goal in mind. And he
recognized that choices, you see, choices that he made in
his life will take him to his goal. Because in the end,
ladies and gentlemen, it all comes down to choices we
make. As human beings we have free will. We have the
ability to control our destiny. When you make a choice,
you may make a choice that is well [intentioned] and bad
things happen. And we recognize it that unfortunately
you may have to pay the consequences for that.
Sometimes you make decisions, good things happen, they
turn out the way you want.

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 Sometimes you make decisions in your life for the
wrong reasons but knowing why. Steven Hayward did
just that. Steven Hayward sits at this table today not as a
result of anything anybody did to him, any of the
conditions in his life, but because of very simply he made
some choices. He exercised his free will and his free will
brings him here today and this places him in this
condition of life.

Hayward, 24 So. 3d at 40.

On direct appeal, we held that although the victim impact evidence itself was

proper, the prosecutor’s use of it to make the comparison was improper. Id. at 41.

We stated:

Having reviewed the improper prosecutorial comments in the context
of the entire closing argument and in light of the evidence presented in
the penalty phase, we conclude that the improper prosecutorial
comments in this case do not rise to the level of fundamental error.
Given the strength of the evidence against Hayward and the gravity of
the aggravators, we cannot say that the jury would not have
recommended a death sentence or that the trial court would not have
imposed a death sentence if the prosecutor had not made the improper
victim impact comparison.

Id. at 42. For these same reasons, we conclude that Hayward has not established

the second prong of Strickland.

Further, despite the prosecutor’s brief comparison of the choices Destefano

made in life and those made by Hayward, the prosecutor did not argue that

Destefano’s life was somehow more valuable than Hayward’s life. The comment

appears to have been aimed more at pointing out that it was no one’s fault but

Hayward’s—based on the choices he made in life—that he was sitting in court

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convicted of the crime of murder. The prosecutor’s comparison, when considered

in context, while improper, does not undermine the Court’s confidence in the

outcome of the penalty phase. In the sentencing order, the trial court found three

aggravators. The court found the prior violent felony conviction aggravator based

on a conviction for second-degree murder and two counts of armed robbery for

which the court assigned “extremely great weight.” The court also found that the

murder in this case was committed during a robbery, which aggravator was merged

with the pecuniary gain aggravator. This combined aggravator was given “great

weight.” The jury and the court were provided strong evidence of these

aggravators.

Therefore, we conclude that even if counsel had objected to the improper

comparison, there is no reasonable probability that the result of the proceeding

would have been different—a reasonable probability being one sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694. Thus, relief is

denied on this claim.

2. Summary Denial of Claim that Trial Counsel Provided Ineffective
Assistance in the Motion to Suppress by Failing to Argue Coercion

Hayward contends the postconviction court erred in denying a hearing on the

claim that trial counsel was deficient in failing to argue at the motion to suppress

hearing that the statements at the police station were coerced. Hayward contends

that he was told he was not under arrest but was shackled to the floor, that he did

- 50 -
not understand the Miranda warnings, and did not fully waive his rights. Hayward

contends that he indicated he did not want to answer questions by asking numerous

times to make a telephone call, but his requests were denied. Hayward contends

that trial counsel was ineffective in failing to argue as grounds to suppress that he

was kept in the cold and in pain from his hand wound during the interrogation.

An evidentiary hearing was not required on this claim because all the facts

argued by Hayward appear in the transcript of the trial wherein the State

introduced Hayward’s statement made at the police station by way of a videotape

with accompanying transcript. At the outset of the videotape, when asked how he

was doing, Hayward stated that he was cold. Detective Flaherty responded, “Cold.

All right. We’ll see if we can get you something. Get this stuff out of the way.”

Although the record does not show if anything was done about Hayward being

cold, he did not complain about it again. Detective Flaherty also stated, “Before

we talk about that [the hand injury] we got to do the Miranda.” Detective Coleman

then read Hayward his Miranda warnings and, when asked if he understands his

rights, Hayward answered, “Yeah.” When asked if he was willing to answer some

questions, Hayward’s answer is recorded by the court reporter as “inaudible.”

Detective Flaherty then tells Hayward, “Just sign right here.”11

11. Much later in the interview, Hayward says he did not do anything
wrong, and if he had, he would not have signed “that paper” and would not be

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 Also at the outset of the interview, Detective Flaherty said, “Just go ahead

and tell us what happened, when it happened and where it happened and go from

there.” Hayward then proceeded to tell the detectives that he was at a building on

17th Street and was robbed by two men, and when Hayward grabbed for the gun, it

went off and he was shot in the hand. Hayward’s answer, and his description of

the event and what happened when he returned to the rooming house, continued for

a fairly lengthy period of time. At one point, the detective asked Hayward if he

wanted to go to the hospital for his hand injury, but Hayward declined.

Later, when Hayward said he was in pain, and his bandage had come off, the

officers said they would get some tape to put on a fresh bandage and left the room.

Some minutes later Hayward asked, for the first time, to make a telephone call to

his mother and was told, “Let’s get through this first.” Hayward then said, “I been

here for over two hour[s]” . . . I need to . . . talk to somebody.” He repeated that

he needed to talk to his “mama.” Again, Hayward was told, “[T]ell us from the

beginning so we can get through this.” Hayward then said again that he wanted to

talk to his “mama” but when the officer asked if he wanted to talk to his “mom,”

Hayward said, “I ain’t calling my mom. I want to call somebody else.” The

sitting there talking to the police. This confirms that Hayward understood the
content and import of the Miranda waiver and that he signed it.

- 52 -
detective responded, “I want to hear your story first though and then we’ll do that.”

Hayward never said he wanted to call an attorney.

Hayward then reiterated the statement he gave earlier about a Mexican man

and a black man robbing him, and that when he fought for the gun, it went off and

he was shot in the hand. He repeated his statement that he ran back to the rooming

house and told his girlfriend he had been shot, and that he refused to go to the

hospital for treatment. When asked about the man in the car who was shot,

Hayward strenuously denied shooting the “paper boy” in the car, referring to

Destefano, whose murder Hayward said he had heard about.

After being confronted with the fact that several witnesses had given

statements that conflicted with the story told by Hayward, and after discussing for

a period of time about whether Hayward shot Destefano, Hayward said, “I need a

pain pill, man, or something, man.” The detective responded, “Hey, don’t worry.

We’ll take care of you. . . . Get this off your shoulders, man.” There was no later

discussion about pain.

Hayward changed his statement, again, this time to say that he saw a man

rob and shoot Destefano. He said the man and Destefano were fighting, that there

was another man involved, and that when both men ran away, one dropped a gun.

Hayward said when he reached to pick up the gun, it fell and he was shot in the

hand. Hayward said he took the gun with him and later sold it for $50. He also

- 53 -
admitted to going through Destefano’s car and said that would account for any of

his blood the officers suggested would be found there. When Detective Coleman

told Hayward his story was not believable and was not in accord with what two

witnesses told them, Hayward reiterated that he went into the car but did not shoot

Destefano. The videotape statement was concluded.

There is no dispute that Hayward was read his Miranda rights and agreed to

waive them. He even referred to having signed the waiver. The fact that he was

cold or in pain did not interfere with the different self-serving versions of the

incident that he gave the detectives. He never asked to call an attorney and never

asked to cease the interrogation. Hayward has provided no authority holding that

an interrogation must cease if an adult suspect asks to telephone his mother or

some unspecified “somebody.” Nothing that transpired in the interrogation

supports the conclusion that Hayward did not know and waive his Miranda rights

or that he was coerced in any way during the interrogation.

Even if trial counsel had argued coercion or lack of understanding of the

Miranda rights or waiver, there is no reasonable probability—measured in terms of

whether our confidence in the outcome of the guilt phase of trial is undermined—

that the statements would have been suppressed or that a verdict of not guilty

would have been entered.

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 3. Summary Denial of Claim that Trial Counsel Provided
Ineffective Assistance in the Guilt Phase by Not Vigorously
Challenging the State’s Witnesses

Hayward contends that trial counsel was deficient in failing to vigorously

advocate for him by not effectively challenging the State’s witnesses during the

guilt phase by cross-examination or motion to disqualify. Hayward also contends

that an evidentiary hearing should have been granted. Although he broadly states

“numerous witnesses” were not challenged, Hayward focuses only on two—

Roosevelt McDowell and Dorothy Smith.

Roosevelt McDowell

Hayward focuses first on the testimony of Roosevelt McDowell, who gave

several statements to police and who testified during the guilt phase. Hayward

contends that McDowell’s statements were conflicting, in that he told police

variously that the suspect was a black male wearing dark clothing and some type of

ski mask or cap, that he had dreadlocks with nothing on his head, that McDowell

did not see any stocking cap, and that the suspect was wearing a hat. Hayward

contends McDowell’s pretrial statement and his trial testimony also conflicted as to

whether he saw the suspect with a gun, and whether he was awake when he heard

gunshots or whether the gunshots woke him up.

Hayward contends that these conflicts in McDowell’s testimony demonstrate

that he was “infirm” when the State presented his testimony, which is confirmed

- 55 -
by McDowell advising trial counsel that he had cancer and other ailments and was

taking medication for high blood pressure. Hayward contends that “his

inconsistent testimony and his inability to recall even the most basic details of the

events he purportedly witnessed put counsel on notice that he should be

disqualified as a witness because he lacked capacity to accurately observe, recall

and narrate facts.”

The State counters that these discrepancies do not support disqualification

but only go to the weight to be assigned by the trier of fact. The State points out

that Hayward failed to plead facts calling into question McDowell’s ability to

observe or his capacity to understand the oath, and failed to allege that McDowell

did not personally observe the facts he reported. The State also contends that trial

counsel brought out these conflicts in testimony on cross-examination, and that

trial counsel was not deficient for failing to move to disqualify McDowell because

he had no legal grounds to do so. The postconviction court summarily denied

relief on this claim, finding it legally insufficient for failing to allege facts

demonstrating that McDowell was incompetent or that there was any other legal

basis for disqualifying McDowell. The postconviction court did not err in denying

an evidentiary hearing and in denying relief on this claim concerning witness

McDowell.

- 56 -
 Regarding the summary denial of trial counsel’s failure to challenge the

capacity of Roosevelt McDowell to testify, the postconviction court was correct

that the facts alleged in the motion were legally insufficient upon which to base a

claim that trial counsel was deficient in failing to move to disqualify McDowell.

The claim filed by Hayward in his amended postconviction motion alleged that

McDowell’s various versions of events demonstrated his inability to recall basic

details, which Hayward argues is sufficient for counsel to have been obligated to

move to disqualify him as a witness. This Court has held that a witness is

incompetent to testify if the witness is unable to communicate to the jury, unable to

understand the duty to tell the truth, or is unable to perceive and remember events.

Rutherford v. Moore, 774 So. 2d 637, 646 (Fla. 2000). Section 90.603, Florida

Statutes (2007), provides that a person is disqualified as a witness if the person is

incapable of expressing himself or herself concerning the matter or is incapable of

understanding the duty to tell the truth. Section 90.604, Florida Statutes (2007),

provides that a witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the

matter. Had the motion to disqualify McDowell been made at trial, the court

would have had broad discretion in ruling as to his competence to testify. See,

e.g., Baker v. State, 674 So. 2d 199, 200 (Fla. 1996).

- 57 -
 The fact that the witness gave differing versions of events is not necessarily

attributable to an inability to remember. Thus, Hayward’s claim was legally

insufficient in this regard as it was founded on speculation. Moreover, Hayward

did not allege that the witness could not communicate, that he did not understand

the oath to tell the truth, or that he was not an eyewitness to the incident.

The record shows that trial counsel cross-examined McDowell extensively

concerning his differing versions of the event. McDowell, age 62, testified that at

approximately 4:30 a.m. on the morning of the murder, he was on the way to the

bathroom when he heard someone “hollering,” “I don’t have no more, I don’t have

no more.” He testified he then heard two “small” shots and then a “big shot.” He

first testified that there were ten to fifteen minutes between the shots, then he

immediately changed that to say the big shot occurred right after the small shots.

He testified that after the shots were over, he opened the door and looked out from

his ground floor apartment. He saw a car by the convenience store with the car’s

trunk and driver’s side door open.

McDowell testified he saw two people, one who looked like a “Mexican”

male on the ground on one knee. The other person, a black male, was standing up.

McDowell testified that the man standing had dreadlocks on his head and nothing

else. McDowell later testified on redirect that the man had something over his

face. McDowell testified that the black male had searched the car then “went to

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the light to hold his hand,” referring to looking at his hand under a street light.

McDowell further testified that the victim left the scene limping and holding his

side, while the black male remained by the light looking at his hand. He said the

man wrapped his hand and left the scene, going behind McDowell’s building.

On cross-examination by trial counsel Jerome Stone, McDowell said he

never saw a gun in the black man’s hand. McDowell again testified he did not see

anyone wearing a stocking cap over his face, although on redirect he said there was

something over the black male’s face. McDowell also agreed on cross-

examination that there could have been other people on the scene that he did not

see. McDowell admitted that during deposition he testified the black male roughed

up the victim, but at trial he testified that he saw no roughing up. Even though the

postconviction court denied a hearing on the claim concerning McDowell, trial

counsel Stone testified at the evidentiary hearing that he was selective in cross-

examining McDowell because he was an older gentleman in poor health and

counsel did not want to appear to be beating up on him in front of the jury.

McDowell’s prior inconsistent statements did not establish that he could not

remember the incident, but only that he did experience some confusion about

certain details. Much of his testimony concerning the event was confirmed by

other evidence, including that the victim left the scene, that the assailant had

something wrong with his hand, that the assailant went into the car where

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Hayward’s blood was found, and that the assailant left and went behind the

apartment building, again where Hayward’s blood was found on a post. Some of

McDowell’s apparent confusion was pointed out to the jury and would have been a

matter for them to consider in deciding what weight to give to this witness’s

testimony. Other conflicts in testimony, concerning whether the assailant wore a

hat or face covering, were apparent in the witness’s testimony, and again would

have been a matter for the jury to weigh in determining credibility. In closing

argument in the guilt phase, trial counsel argued that McDowell was in poor health,

and counsel pointed out the inconsistency in McDowell’s testimony concerning

whether the assailant roughed up Destefano and whether McDowell saw a hood or

a mask on the assailant.

Relief is denied on this claim. Hayward did not allege grounds to disqualify

McDowell and, even if such grounds did exist, our confidence in the guilty verdict

is not undermined by trial counsel’s failure to move to disqualify McDowell as a

witness or to more effectively cross-examine him at trial.

Dorothy Smith

Hayward also claims on appeal that the postconviction court erred in

summarily denying his claim that trial counsel was deficient in failing to challenge

the testimony of Dorothy Smith. He contends that it was not brought out before

the jury that she had a history of schizophrenia for which she had been hospitalized

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and was taking medication, all of which affected her ability to recall and narrate

facts and left her susceptible to police coercion. He argues that trial counsel’s

cross-examination was brief and inadequate, and failed to disclose that she had a

felony record.

The postconviction court denied the claim, finding it legally insufficient

because the motion failed to allege specific facts in relevant time frames, and did

not demonstrate prejudice. The amended postconviction motion alleged that Smith

had a history of mental illness that affected her ability to recall and narrate facts,

and left her susceptible to police coercion. It also alleged that trial counsel failed

to elicit from her on cross-examination the fact that she suffers from mental illness

and had previously been hospitalized for a mental illness. The motion alleged trial

counsel was aware of her mental health history and her prior arrests, and that she

had been coerced into changing her story in Hayward’s case by police. The motion

also alleged that trial counsel knew that Smith had lied to police about Hayward’s

whereabouts on the night of the crime but failed to cross-examine her on that fact.

The State counters that Hayward failed to explain how counsel was deficient

or how the result of the trial would have been different, and argues that his

conclusory allegations are insufficient. The State is correct that even without

Smith’s testimony, other eyewitness testimony and forensic evidence, along with

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Hayward’s own statements, established that Hayward killed Destefano during an

armed robbery.

During the State’s presentation of Dorothy Smith’s testimony at trial, she

reiterated that Hayward came to her window at the rooming house in the early

morning hours of February 1, 2005. She said she let him in and he told her he was

robbed by two men and had been shot in the hand. When she heard news about the

murder, she asked him about it and he told her he did not do it. This testimony was

in accord with one of the versions that Hayward told police. During his interview,

he told detectives that he ran to the rooming house and knocked on the window

because he did not have his key. Hayward also told detectives that he had not been

stabbed in the hand, but had been shot in the robbery attempt by two men when he

attempted to take their gun away. Smith also testified that the day after this

occurred, Hayward sold a silver gun. This testimony was in accord with

Hayward’s statement to detectives that he took the silver gun with which he was

shot in the hand and later sold it for $50. On cross-examination, trial counsel did

bring out the fact that Dorothy Smith was a convicted felon.

Smith’s testimony was not particularly harmful, in that it simply repeated

some of the same things that Hayward told police, although he admitted when he

testified that the claim he was robbed by two men was a lie. Cross-examining

Smith to bring out the fact that she had mental health problems or was on

- 62 -
medication that affected her memory would not have changed the fact that

Hayward told the police that he knocked on her window to be let in and that he told

her he had been shot in a robbery attempt, just as Hayward told police. Nor would

it have changed the fact that Hayward told detectives that he took the gun and sold

it. Thus, even if trial counsel was deficient in making only a cursory cross-

examination of Smith, Hayward has failed to demonstrate prejudice. For these

reasons, we conclude that denial of the claim regarding Smith was proper.

D. Whether Errors Occurred that Denied Hayward a
Fair Postconviction Proceeding

1. Motion to Disqualify Office of State Attorney

Hayward claims that several rulings of the circuit court deprived him of a

full and fair hearing. The evidentiary hearing in this case was held on February 27,

2012, through March 1, 2012, and was concluded on March 28, 2012. On

March 15, 2010, several years prior to the evidentiary hearing, Hayward filed a

motion to disqualify the Office of the State Attorney for the Nineteenth Judicial

Circuit, alleging that the office had violated Hayward’s right to attorney-client

privilege. The motion alleged that trial counsel had turned over trial files to the

Office of the State Attorney. This fact was learned in a March 2, 2010, e-mail

from Assistant State Attorney Ryan Butler confirming that his office had received

one banker’s box of trial files from Udell and that Butler would “submit it to the

Records Repository.” On that same date, postconviction counsel replied to Butler

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that he was extremely concerned that trial counsel had provided privileged and

confidential files to the State without Hayward’s knowledge or consent and further

demanded that the box of files not be sent to the records repository but be sent

instead to successor counsel. The motion to disqualify further alleged that as of

March 15, 2010, Capital Collateral Regional Counsel (CCRC) had not received the

box of files.

Because the State Attorney’s office was in possession of the files for several

weeks and thus had the opportunity to review, copy, disseminate, or alter the files,

Hayward alleged that the office must be disqualified. On March 16, 2010,

Assistant State Attorney Butler filed a notice with the court that the “sealed files of

petitioner’s trial counsel, Robert Udell, have been filed with the court.” On March

19, 2010, Hayward’s postconviction counsel filed an emergency motion for release

of the trial files to postconviction counsel. At a status conference on March 31,

2010, the postconviction judge noted that the box of trial files was in his office.

When asked how that came about, Jerome Stone stated that he and Udell had

spoken by telephone and Udell advised that since he was disbarred12 and had shut

down his practice, he was not able to store the file. Stone said Udell delivered the

box to Stone’s office and, because Udell told him it should go to the State

12. Robert Udell was disbarred for matters unrelated to this case.

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Attorney’s office, Stone gave the unsealed box to Ed Arens, a State Attorney

investigator.

Assistant State Attorney Butler was questioned by the court under oath and

stated that he contacted Udell after he heard Udell had been disbarred and asked if

Udell had a place to store the file, to which Udell answered that he did. Butler

testified that several weeks later, Udell called him and said he was requested by

CCRC to provide a copy of Hayward’s file and that Udell did not have the funds to

make the copy. Butler said that he knew that “under the case law we were going to

get the file anyway,” referring to what he thought would likely occur after a 3.851

motion alleging ineffective assistance of counsel was filed, so he agreed to copy

the files, keep a copy, and give the files to CCRC. Butler said he received the box

and when, several weeks later postconviction counsel objected, Butler sealed the

box with tape. He testified that he did not look in the box and believed no one else

in the State Attorney’s office did either. At that hearing, the court returned the

files to trial counsel Jerome Stone, to comply with Florida Rule of Criminal

Procedure 3.851(c)(4).

On April 1, 2010, the circuit court entered an order finding that “disbarred

attorney Robert Udell’s original trial files were improperly released to the Office

of the State Attorney” and that they should have been delivered to new counsel at

CCRC. Although the court also found that no evidence was presented

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demonstrating that the integrity or confidentiality of the files had been

compromised, the order allowed additional time for Stone to review the files with

Udell to determine if the integrity or confidentiality of the files had been

compromised. The court reserved ruling on the motion to disqualify the Office of

the State Attorney until after CCRC completed discovery concerning who had

access to the files after they were picked up from Stone’s office and before the box

was sealed by Assistant State Attorney Butler. Pursuant to the order, Udell filed a

sworn affidavit on April 13, 2010, stating that he had received the original trial file

and met with Jerome Stone to review it, and “[b]ased upon this review I have

determined there to be no compromise with the integrity or confidentiality of the

file.”

Postconviction counsel conducted depositions pursuant to the April 1, 2010,

order and, on August 9, 2010, filed a memorandum concerning the motion to

disqualify. The State also filed its memorandum and a hearing was held on

October 11, 2010, on the motion to disqualify at which the circuit court noted that

postconviction counsel would be required to show actual prejudice in order to

prevail on the motion to disqualify. Postconviction counsel conceded that “I have

to take the State’s representation that no one inspected the files and that there was

no privileged material that they’re aware of that they have learned of.” However,

counsel argued that because this is a death penalty proceeding, the circumstances

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surrounding the transfer of the files prejudices Hayward in his reliance on the

integrity of the process. When asked if he had any evidence of actual prejudice,

counsel had to concede that he did not.

In his ruling, the judge stated that he had reviewed all the depositions taken

by postconviction counsel, which included depositions of Thomas Bakkedahl,

Chief Assistant State Attorney and Hayward’s trial prosecutor; Carla Porter,

Executive Secretary to several attorneys in the State Attorney’s office; Jeff

Hamrick, State Attorney Investigator; Edward Arens, State Attorney investigator;

Christopher Taylor, Assistant State Attorney and Hayward’s trial prosecutor;

Robert Udell; and Ryan Butler, Assistant State Attorney in the postconviction

proceeding. The court held that, although the disposition of the file was improper,

postconviction counsel was unable to identify any actual prejudice that resulted

from the disposition of Udell’s trial file in the case. The court further found that

nothing in any of the depositions suggested that the file was viewed by anyone in

the State Attorney’s office, and that the box sat untouched in Butler’s office until it

was taken to the judge’s office. Thus, the motion to disqualify the Office of the

State Attorney was denied.

Hayward now contends that the trial court erred in denying his motion to

disqualify the office of the State Attorney and, as an additional ground for the

motion to disqualify, Hayward points out that Udell was given a contribution of

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between $300 and $500 from various attorneys, including some in the Office of the

State Attorney, from the time that he was disbarred up to the time he turned the

files over to that office. Chief Assistant State Attorney Bakkedahl confirmed in his

deposition that he and other personnel at that office made contributions after Udell

was disbarred and was in trouble financially. Hayward contends that “the fact that

State [Attorneys] gave money to a potential witness is a significant conflict of

interest” and that the “relationship alone jeopardized Hayward’s right to fair

postconviction proceedings, warranting the State Attorney’s disqualification.” The

State counters that the donations were anonymous in the form of Publix gift cards

when Udell was in financial difficulty following his disbarment.

The circuit court did not err in denying the motion to disqualify the Office of

the State Attorney. Denial of a motion to disqualify a State Attorney’s office is

reviewed for abuse of discretion. Rogers v. State, 783 So. 2d 980, 991 (Fla. 2001).

We explained in Rogers that “although we have stated that the appearance of

impropriety created by certain situations may demand disqualification, we have

evaluated such situations on a case-by-case basis.” Id. (quoting Bogle v. State, 655

So. 2d 1103, 1106 (Fla. 1995)). We held in Downs v. Moore, 801 So. 2d 906 (Fla.

2001), that “[t]o disqualify the State Attorney’s Office, a defendant must show

substantial misconduct or ‘actual prejudice.’ ” Id. at 914. “Actual prejudice” is

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more than the mere appearance of impropriety. Id.; see also Kearse v. State, 770

So. 2d 1119, 1129 (Fla. 2000).

In this case, the circuit court recognized the impropriety of the transfer of the

trial file to the Office of the State Attorney. However, the circuit court correctly

found that no evidence was presented that anyone at the State Attorney’s office

viewed any portion of the files. To the extent that the transfer simply provides an

“appearance of impropriety,” this does not rise to the level necessary to require

disqualification. The postconviction court did not specifically address the added

factor that some personnel at the State Attorney’s office donated funds toward the

gift card for Udell, who was struggling financially after his disbarment, but

Hayward has failed to provide any proof that the anonymous donations influenced

Udell’s testimony or prejudiced Hayward in any way. Moreover, the record shows

that Assistant State Attorney Butler, who handled the postconviction proceeding in

this case, did not donate any of those funds. Thus, Hayward’s claim that this

additional factor provides a basis for disqualification of the State Attorney’s office

lacks merit and relief is denied on this claim.

2. Claim that a Full and Fair Evidentiary Hearing was Denied by Denial of
Right to Call Mitigation Witness Samuel Peaks
Hayward contends that his inability to call proposed mitigation witness

Samuel Peaks deprived him of a full and fair evidentiary hearing. Peaks was

incarcerated at FCI Coleman, a federal correctional institution, at the time that a

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Writ of Habeas Corpus Ad Testificandum was issued by the circuit court for Peaks

to testify. Hayward contends the Federal Bureau of Prisons was not cooperative

and would not provide Peaks to testify. Because Peaks could not appear in person

to testify, postconviction counsel wanted to perpetuate Peaks’ testimony by

deposition, but the circuit court insisted that such was not authorized by Florida

Rule of Criminal Procedure 3.190 until Hayward could show that Peaks was

otherwise unavailable. Hayward states in his brief that eventually “counsel was

informed by FCI Coleman that there’s no way Peaks’ perpetuated testimony was

going to happen.” Hayward argues that “[t]he warden’s arbitrary denial, without a

reason or explanation, resulted in a denial of due process.” He does not allege any

error on the part of the circuit court.13

Rule 3.190(i)(6) provides in pertinent part that perpetuation of testimony by

deposition is allowed only if the attendance of the witness cannot be procured. The

circuit court was informed that the reason the prison denied access to Peaks was

because it was a security risk for Peaks to appear and because he was a behavior

management problem. The State and the circuit court both took the position that if

13. As noted, Hayward is not contending that the circuit court erred in any
respect in denying his request to perpetuate testimony under rule 3.190, nor would
such a claim have merit. This Court has held that rule 3.190 applies to trials, not
postconviction proceedings where discovery is limited, and that a motion to
perpetuate testimony lies within the discretion of the trial court. See, e.g., Hurst,
18 So. 3d at 1007 (citing Riechmann v. State, 966 So. 2d 298, 310 (Fla. 2000)).

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Peaks could testify by video, he was not unavailable under the rule, and thus

perpetuation was improper.

Hayward failed to establish that he was denied due process in his inability to

secure the testimony of Samuel Peaks. First, postconviction counsel repeatedly

advised the court that he would not present Peaks’ testimony by videoconference

because he believed that method was not in the best interest of his client.

Postconviction counsel argued to the circuit court that Peaks, who was the cousin

who came to live in Hayward’s household, could testify to “evidence of the family

and the effect of his coming to the family later on in life, as well as - - as an infant”

and that he had “a unique perspective on the situation in Mr. Hayward’s family

when he was growing up.” The postconviction court advised counsel that, based

on the amended postconviction motion, Hayward could present the same evidence

through his mother or by Hayward himself.

Somewhat later in the evidentiary hearing, which lasted several days,

postconviction counsel again told the court he would not present Peaks by

videoconference, but wanted to perpetuate testimony by deposition, to which the

court responded, “but you have to show he’s unavailable before you can; it’s not a

matter of choice.” When the court pointed out that it did not appear postconviction

counsel had attempted to secure the testimony by videoconference, counsel

responded, “I’m not sure I can ask a federal prison to make accommodations for

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me to do something that I have no intention of doing.” The court then advised

counsel, “[Y]ou’re still unilaterally pursuing a method to get his testimony before

me in a fashion that is not permitted by the rules until he’s found to be

unavailable.” The next day, counsel advised the court that there was nothing

further he could do concerning the request to call Peaks to testify because “I’m not

going to be able to call him the way that I feel that I should be able to call him.”

Counsel again told the court that even if the prison allowed Peaks to testify by

video, counsel had no intention to present him in that fashion. Again, the court

urged counsel to pursue any avenues with the prison to obtain Peaks’ testimony.

And, later in the same hearing, the court advised counsel that he could present

Peaks’ testimony by video if he so chose, although the court understood that

counsel had said in good faith that he did not want to do that.

Hayward claims he was denied due process, and received less than a full and

fair hearing, because the warden would not allow Peaks to appear and testify.

However, the testimony that counsel contended he would present through Peaks

could have been presented by either of Hayward’s older sisters or by his mother,

who were in a better position to know the effect on Hayward caused by an infant

coming into the home. In fact, Hayward’s sister, Debra Fleury, testified at the

evidentiary hearing that Samuel Peaks came to live with them when he was a baby

and Hayward was only several years older. She said this affected Hayward

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because he was not the center of attention anymore and “needed to move out of the

way so Sam could be cuddled.” Hayward “could not be the baby anymore.”

Regardless of what testimony Peaks could have provided, the circumstances

of Hayward’s inability to present Peaks’ testimony, either in person or by

deposition rather than by video, do not establish that he was denied due process or

a fair hearing because the federal prison refused to honor the subpoena in the case.

Moreover, he has not provided any basis on which the Court can conclude that he

was entitled to present Peaks’ testimony by way of perpetuated deposition

testimony, which is the only way in which he was willing to present this witness

regardless of the possibility of presenting his testimony by videoconference. It was

by choice that counsel did not seek to present Peaks’ testimony by

videoconference, and thus counsel failed to show the witness was unavailable

under rule 3.190. Accordingly, relief is denied on this claim.

3. Claim that Hayward Did Not Receive a Full and Fair Evidentiary Hearing
Because the Circuit Court Refused to Consider Certain Mitigation Evidence

The postconviction court excluded certain testimony by Hayward’s mother,

Barbara Johnson, concerning her childhood with foster parents Daisy and

Lawrence Green in South Carolina, and how she met her first husband, Harold

Hayward. As explained above, the testimony was proffered that Barbara’s mother

placed her and her brother with “foster parents” Daisy and Lawrence Green, where

she was beaten regularly, made to quit school in eighth grade, and forced to work

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in the fields picking crops. Hayward attempted to present his mother’s testimony

about how she was sent to New York where she became pregnant, and how she

returned to the Greens where she had the baby she named Derrick. Barbara was

made to marry Harold Hayward and they moved away.

The circuit court also excluded some of the mitigation testimony of Derrick

Green, Hayward’s half-brother. Green was not allowed to testify about the abuse

he suffered in South Carolina at the hands of the Greens, and on proffer, he

testified that he regularly received beatings from them with a switch or other object

from the age of five to eleven when his mother came to get him. When he was

eleven, his mother, Harold Hayward, and Tony Johnson took him away from the

Greens after his cousin called to report the abuse he was receiving there.

Some of the testimony of Cecilia Alfonso, a mitigation specialist who

attempted to testify about the cycle of violence in the Hayward family that began

with abuse of his mother, was also excluded. As with the testimony of Hayward’s

mother and brother, the circuit court held this evidence was not relevant. Alfonso

also testified on proffer that the mother’s childhood experiences were relevant

mitigation for Hayward because it showed she raised her children in an abusive

manner just like her foster parents raised her, and as a consequence, that type of

violence was internalized by Hayward, and his ability to develop a sound decision-

making process was adversely affected.

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 Hayward contends on appeal that evidence of his family history showing a

cycle of inter-generational violence was relevant because it shows what influences

shaped and contributed to the development of the defendant. Hayward also cites

the commentary to ABA Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases 10.7 (rev. ed. Feb. 2003), which states

that “[a] multi-generational investigation frequently discloses significant patterns

of family dysfunction and may help establish or strengthen a diagnosis or

underscore the hereditary nature of a particular impairment.” The State contends

that the evidence was properly excluded because it went more to the character of

the testifying witnesses than to Hayward’s character, citing our decision in Hill v.

State, 515 So. 2d 176 (Fla. 1987). In Hill, we held that the trial court did not abuse

its discretion in excluding testimony that Hill’s mother cared for his cousins as

well as her own children and testimony about the ill health and job responsibilities

of Hill’s father. We explained, “In our view, the excluded evidence focused

substantially more on the witness’s character than on appellant’s.” Id. at 178. In

the present case, just as in Hill, the excluded evidence focused substantially more

on the witnesses’ experiences that shaped their character before Hayward was

even born.

Hayward is correct that the commentary to ABA Guideline 10.7 states, “A

multi-generational investigation frequently discloses significant patterns of family

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dysfunction and may help establish or strengthen a diagnosis or underscore the

hereditary nature of a particular impairment.” However, this commentary provides

no blanket rule or constitutional requirement concerning testimony of abuse

suffered in the childhood of a defendant’s parents or siblings when that abuse

occurs somewhere other than in the home of the defendant. Moreover, the ABA

Guidelines are not mandatory, but are only guides. See, e.g., Strickland, 466 U.S.

at 688.

The admission of evidence is within the sound discretion of the trial court,

constrained by the application of the rules of evidence and the principles of stare

decisis. Davis v. State, 121 So. 3d 462, 481 (Fla. 2013). The circuit court did not

abuse its discretion in excluding the testimony of what occurred in the Green

household in South Carolina when Barbara Johnson lived there and when her son,

Derrick Green, was left there as a child. Ample evidence was presented that

Barbara Johnson and Hayward’s father disciplined him frequently with belts,

switches, hands, and other items, and did so harshly. Evidence was admitted that

his mother and his sisters believed that was normal discipline at the time.

Evidence that Barbara Johnson and Derrick Green were abused by the foster

parents in South Carolina does not add substantially to the mitigating nature of

what Hayward went through as a child and young teen.

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 For these same reasons, even if the circuit court abused its discretion in

excluding this testimony from Johnson, Green, and Alfonso, such error was

harmless beyond a reasonable doubt. To the extent that it was intended to support

evidence that Hayward’s mother beat him and thought that was proper discipline,

similar evidence was presented through other witnesses including Johnson herself.

Accordingly, the circuit court did not err in excluding this proffered evidence.14

4. Claim that a Full and Fair Evidentiary Hearing was Denied by the Court
Prohibiting Questioning of Trial Counsel Udell about Communications from
Assistant State Attorney Ryan Butler Prior to the Evidentiary Hearing

During the cross-examination of trial counsel Udell, postconviction counsel

noted that Udell had some documents before him while testifying. On redirect-

examination, postconviction counsel asked Udell what the documents were and

Udell replied he had a newspaper, a court opinion, and a facsimile copy of

14. In the order denying postconviction relief, the court ultimately rejected
all of the testimony of Alfonso, and stated, “In analysis of this claim the court finds
Alfonso’s testimony not credible because at the evidentiary hearing she first
testified to details of family abuse that she failed to reveal in her deposition despite
specific inquiry, she offered no explanation for her failure to disclose information
at deposition, she refused to admit her advocacy for the defense but later recanted,
and she inserted her irrelevant opinions and had to be cautioned by the court.
Consequently, for this claim the court does not rely upon Alfonso’s testimony.”
We have explained many times that this Court will not substitute its judgment for
that of the trial court on questions of credibility of the witnesses and the weight to
be given the evidence. See, e.g., Blanco v. State, 702 So. 2d 1250, 1252 (Fla.
1997).

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documents that he had recently received from Assistant State Attorney Ryan

Butler. When asked, Udell said the fax was a copy of his own trial invoices. Udell

also said that he received a letter from the Assistant State Attorney. When

postconviction counsel asked Udell, “And, what did the letter say?” the prosecutor

objected that the letter was work product. After an in camera review, the circuit

court ruled that the six-page, February 10, 2012, letter authored by Assistant State

Attorney Butler and addressed to Jerome Stone, but provided to Robert Udell, was

work product containing the attorney’s mental impressions and opinions, and

theories of the case, and for that reason was not subject to review or testimony.

In Evans v. State, 995 So. 2d 933 (Fla. 2008), concerning a similar letter, we

stated:

In his first issue on appeal, Evans asserts that his due process
rights were violated when the trial court denied his motion for public
records. Specifically, Evans sought the disclosure of a letter from
Assistant State Attorney Lawrence Mirman sent to Diamond Litty and
Mark Harllee, defense counsel from Evans’ trial, which purportedly
contained responses to areas of questioning to be asked by
postconviction counsel at the evidentiary hearing. Based on our
decision in Kearse v. State, 969 So. 2d 976 (Fla. 2007), we affirm the
trial court’s denial.
In Kearse, the assistant state attorney sent the defendant’s trial
counsel, who was listed as both a State and defense witness at the
evidentiary hearing, a letter in anticipation of the attorney’s testimony.
The letter contained the state attorney’s “mental impressions” about
the case and about the ineffective assistance claims that were raised in
Kearse’s postconviction motion. Id. at 988-89. The trial court
conducted an in-camera examination and ruled that, given the nature
of the letter and the fact that counsel was listed as a witness for both

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 parties, the letter was attorney work product exempt from disclosure.
See id. at 988. We held that the letter “clearly fits within the
exemption of attorney work product prepared with regard to the
ongoing postconviction proceedings” and affirmed the trial court’s
decision. Id. at 989.
Contrary to Evans’ contention that the letter went beyond mere
witness preparation, the State is correct that the letter contains nothing
more than the state attorney’s impressions of the pending litigation.
As in Kearse, the letter here was written by an agency attorney,
contained his mental impressions about the claims raised in the
postconviction motion, and was produced exclusively for the pending
evidentiary hearing as contemplated in section 119.071(1)(d)1,
Florida Statutes (2007). 969 So. 2d at 989. Accordingly, we affirm
the trial court’s denial.

Evans, 995 So. 2d at 941-42 (footnote omitted). In this present case, the matters

contained in the letter were in the nature of attorney’s mental impressions,

opinions, and theories of the case, just as in Evans and Kearse. Where, as here, the

letter contains attorney work product with regard to the postconviction claims, the

same principles applicable in Evans and Kearse would apply to bar disclosure of

the letter written in anticipation of litigation or preparation for trial. Thus, the

circuit court did not err in finding this letter was work product and not subject to

examination or testimony.

III. CLAIM OF INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL

Claims of ineffective assistance of appellate counsel are appropriately raised

in a petition for writ of habeas corpus, as Hayward has done in this case. See

Jackson v. State, 127 So. 3d 447, 476 (Fla. 2013). The alleged error must first be

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of “such magnitude as to constitute a serious error or substantial deficiency falling

measurably outside the range of professionally acceptable performance” and,

second, the deficiency in performance must have “compromised the appellate

process to such a degree as to undermine confidence in the correctness of the

result.” Id. (quoting Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986)).

Further, “appellate counsel will not be deemed ineffective for failing to raise a

claim that is without merit.” Id. (citing Freeman v. State, 761 So. 2d 1055, 1070

(Fla. 2000)).

Hayward contends that appellate counsel was deficient in failing to raise a

fundamental error claim on direct appeal asserting that Hayward was denied due

process by the admission of the testimony of Roosevelt McDowell, who Hayward

contends was not qualified to be a witness in the case. For the reasons we discuss

below, we find no merit in this claim.

A witness is incompetent to testify if the witness is unable to communicate

to the jury, unable to understand the duty to tell the truth, or is unable to perceive

and remember events. Rutherford, 774 So. 2d at 646. If the issue is not preserved

by trial counsel, appellate counsel is only deficient in failing to assert it on appeal

if it is fundamental error; and fundamental error is error that “reaches down into

the validity of the trial itself to the extent that a verdict of guilty could not have

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been obtained without the assistance of the alleged error.” Id. (quoting Urbin v.

State, 714 So. 2d 411, 418 n.8 (Fla. 1998)).

A witness is presumed competent to testify until the contrary is established.

Hawk v. State, 718 So. 2d 159, 162 (Fla. 1998); see also § 90.601, Fla. Stat.

(2007). Section 90.603, Florida Statutes (2007), provides that a person is

disqualified as a witness if the person is incapable of expressing himself or herself

concerning the matter or is incapable of understanding the duty to tell the truth.

Section 90.604, Florida Statutes (2007), provides that a witness may not testify to a

matter unless sufficient evidence, which can include the witness’s own testimony,

is introduced to support a finding that the witness has personal knowledge of the

matter. We explained in Kennard v. State, 28 So. 858 (Fla. 1900), “Where,

however, a witness has knowledge of the facts, and speaks from a recollection of

the facts as they actually appeared to him, though his impression may not amount

to positive assurance, it is competent to be considered by the jury.” Id. at 859.

Hayward has cited no authority for the proposition that lack of clear memory on

every aspect of the incident, for example by McDowell’s conflicting accounts of

whether the assailant wore a hat or not and whether the witness was heading to the

bathroom or had already been when shots were heard, is sufficient lack of

recollection to entirely disqualify a witness. Other aspects of McDowell’s

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testimony were firmly recalled and recounted for the jury, and in some instances

corroborated by other evidence.

McDowell was an older man with health problems who, in the middle of the

night, heard gunshots and looked out his door. He heard the victim make the

statement, “I don’t have no more.” McDowell exhibited some uncertainty or

confusion about whether he was on his way to the bathroom or had already been,

and about whether the shots had minutes between them or just seconds. He gave

differing accounts of whether the assailant had on a hat or a mask. Even so, his

testimony never wavered that he heard the victim say several times, “I don’t have

no more.” He never wavered that the assailant went into the car and also went

under a streetlight and appeared to examine his hand. He was not confused about

which direction the assailant took when he left the scene, and that the victim also

left the scene. Other evidence confirmed that the victim shot at the assailant and

that the victim left the scene before dying, and that the assailant’s blood was found

on a post behind McDowell’s apartment house, in the direction that McDowell

testified the assailant fled. Other evidence also confirmed that Hayward’s blood

was found in the victim’s pockets and on the car.

The discrepancies in McDowell’s testimony did not prove that he failed to

observe or could not recall the most important points about which he testified.

Hayward is correct that the trial court relied on McDowell’s testimony that

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Destefano said “I don’t have no more” in finding that the murder occurred during a

robbery for pecuniary gain. However, that aspect of McDowell’s testimony never

wavered. Although McDowell was older, in poor health, and possibly confused

about some aspects of the event he witnessed, that does not provide a basis to

disqualify him. See, e.g., Belcher v. Johnson, 834 So. 2d 422, 422-23 (Fla. 2d

DCA 2003) (holding that an elderly woman with dementia is not disqualified as a

witness simply for those reasons). Even insanity of a witness has been found to

affect only the witness’s credibility, not their competence to testify, if the witness

can otherwise observe, recall, and relate what they have seen, and if they know the

meaning of the oath to tell the truth. See, e.g., Zabrani v. Riveron, 495 So. 2d

1195, 1198 (Fla. 3d DCA 1986).

As noted above, appellate counsel cannot be deemed ineffective for failing

to raise nonmeritorious claims on appeal. Even if error had been shown in the

admission of testimony of McDowell, such error does not “reach down into the

validity of the trial itself to the extent that a verdict of guilty could not have been

obtained without the assistance of the alleged error.” Jackson v. State, 983 So. 2d

562, 576 (Fla. 2008). Thus, appellate counsel had no obligation to raise a claim

that was unpreserved and did not constitute fundamental error. Accordingly, the

writ is denied.

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 IV. CONCLUSION

For all the foregoing reasons, the order of the circuit court denying

postconviction relief is affirmed and the petition for writ of habeas corpus is

denied.

It is so ordered.

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

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

Two Cases:

An Appeal from the Circuit Court in and for St. Lucie County,
James Walter McCann, Judge - Case No. 562005CF000436AXXXXX
And an Original Proceeding – Habeas Corpus

Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Paul
Edward Kalil, Assistant Capital Collateral Regional Counsel, Southern Region,
and Elizabeth Tandiwe Stewart, Staff Attorney, Capital Collateral Regional
Counsel, Southern Region, Fort Lauderdale, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie T. Campbell,
Assistant Attorney General, West Palm Beach, Florida,

for Appellee/Respondent

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