& SC13-1959 Lucious Boyd v. State of Florida & Lucious Boyd v. Julie L. Jones, etc.

Supreme Court of Florida
____________

No. SC13-244
____________

LUCIOUS BOYD,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC13-1959
____________

LUCIOUS BOYD,
Petitioner,

vs.

JULIE L. JONES, etc.,
Respondent.

[December 17, 2015]

PER CURIAM.

Lucious Boyd appeals a final order of the circuit court denying his motion to

vacate his conviction of first-degree murder and sentence of death filed under

Florida Rule of Criminal Procedure 3.851. Boyd also petitions this Court for a writ
of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For

the reasons discussed below, we affirm the circuit court’s denial of Boyd’s rule

3.851 motion and deny relief on his petition for writ of habeas corpus.

I. BACKGROUND AND FACTS

Lucious Boyd was convicted for the first-degree murder, armed kidnapping,

and sexual battery of Dawnia Dacosta and sentenced to the penalties of death, life

imprisonment, and fifteen years’ imprisonment, respectively. Boyd v. State, 910

So. 2d 167, 176-77 (Fla. 2005).

A. Trial and Direct Appeal Proceedings

On direct appeal, we set forth the relevant factual and procedural

background as follows:

The evidence presented at trial revealed the following facts. In
the early morning hours of December 5, 1998, Dawnia Dacosta’s car
ran out of gas while she was on her way to her home in Deerfield
Beach, Florida, from a midnight church service. She had just exited
from Interstate 95 (I–95) onto Hillsboro Beach Boulevard and pulled
onto the shoulder. She then took a red gas can she kept in her car,
walked about a block east to a nearby Texaco gas station, and bought
a gallon of gas. At approximately 2 a.m., during the time she was at
the gas station, Dacosta spoke with two other customers, Lisa Bell and
Johnnie Mae Harris. She asked Bell for a ride back to her car, but
Bell had walked to the station and so could not give Dacosta a ride.
Bell and Harris then watched Dacosta speak with a black male in a
van in the station’s parking lot. Harris asked the man if he was going
to help Dacosta, and the man nodded, indicating yes. Bell later told
the police that the van she saw was greenish-blue in color, while
Harris said that she thought the van was burgundy. Though somewhat
unsure about the van’s color, Harris was certain that she saw the word

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“Hope” on its side. In a photo lineup and at trial, Harris identified the
man she saw in the van that night as Lucious Boyd.
Boyd spent the evening of December 4 with Geneva Lewis, his
girlfriend, at her mother’s home. Boyd left the house around 10 or 11
p.m., and Lewis did not see him again until the morning of December
5, at around 9 or 10 a.m. Lewis testified that on December 4 and 5,
Boyd was driving a green church van with writing on its side and that
the van belonged to Reverend Frank Lloyd of the Hope Outreach
Ministry Church, for whom Boyd performed occasional maintenance
work.
Dacosta’s family began searching for her after she did not
return home on December 5. They found her car at an I–95 exit and
began circulating fliers with Dacosta’s photograph, indicating that she
was missing, throughout the area. Bell and Harris saw the fliers,
recognized Dacosta as the woman with the gas can at the Texaco
station on December 5, and contacted the police with their
information.
On December 7, Dacosta’s body was discovered in an alley
behind a warehouse on 42nd Street in Deerfield Beach. The body was
wrapped in a shower curtain liner, a brown, flat bed sheet, and a
yellow, flat bed sheet. A purple duffel bag and two large black trash
bags covered her head. It was determined that she had been dead for
between thirty-six and seventy-two hours.
At trial, it was stipulated that Dacosta died due to a penetrating
head wound and that the bruising on her head was consistent with but
not exclusive to the face plate of a reciprocating saw. Wounds to her
chest, arms, and head were consistent with but not exclusive to a Torx
brand torque screwdriver, and she had defensive wounds on her arms
and hands. There was bruising to her vagina that was consistent with
sexual intercourse, although the medical examiner could not
determine whether the intercourse was consensual or nonconsensual.
Dacosta had thirty-six superficial wounds on her chest, four on the
right side of her head, and twelve on her right hand, some being
consistent with defensive wounds and some being consistent with bite
marks. One fatal wound to the head perforated the skull and
penetrated Dacosta’s brain.
On March 17, 1999, while Detectives Bukata and Kaminsky of
the Broward County Sheriff’s Office were investigating another crime
unrelated to Dacosta’s death, they saw a green van in the Hope
Outreach Ministry Church parking lot. The van had burgundy writing

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on it that read “Here’s Hope.” Bell would later identify the church’s
van as the same van she had seen on the morning of December 5 at
the Texaco station. The detectives decided to investigate, and their
inquiries as to the owner of the van led them to Reverend Lloyd.
When the detectives questioned Lloyd about the location of the van on
the night of December 4, Lloyd’s secretary, who was present at the
questioning, remarked that Lucious Boyd had driven the van on that
weekend. On December 4, Boyd had taken Reverend Lloyd to pick
up a rental car in the church’s green 1994 Ford van. Reverend Lloyd
further testified that he instructed Boyd to take the van back to the
church but that Boyd did not return the van until Monday, December
7. Reverend Lloyd also stated that when he left the van with Boyd,
various tools owned by the church, including a set of Torx brand
screwdrivers and a reciprocating saw, were in the van, as well as a
purple laundry bag that the pastor used to deliver his laundry to the
cleaners. When Reverend Lloyd returned on December 15, he
discovered that the screwdrivers, the saw, and the laundry bag were
missing.
Boyd was arrested for Dacosta’s murder on March 26, 1999.
Seminal fluid taken from Dacosta’s inner thigh matched the DNA
profile of Boyd. Tests also did not eliminate Boyd as a match for a
hair found on Dacosta’s chest. A DNA profile consistent with Boyd’s
was found in material taken from under Dacosta’s fingernails. In
addition, fingerprints taken from the trash bag found around the
victim’s head matched fingerprints of Boyd’s girlfriend, Geneva
Lewis, and her son, Zeffrey Lewis. Tire marks on a sheet covering
the victim’s body were consistent with the tires on the church van,
although trial expert Terrell Kingery, a senior crime laboratory analyst
for the Orlando Regional Crime Laboratory, testified that he could not
say for certain that the van’s tires made the marks because over 1.5
million tires could have made the tracks on the sheet. Dr. Steven
Rifkin, a private dentist and a forensic odontologist with the Broward
County Medical Examiner’s Office, testified that bite marks on
Dacosta’s arm were, within a reasonable degree of certainty, made by
Boyd’s teeth.
On April 1, Detective Bukata obtained a warrant to search the
apartment of Boyd and Lewis, which was a block east of the Texaco
station. Detective Bukata arrived at the apartment and told Lewis to
leave with her children for a few days so that the officers could fully
search the apartment. The investigators found blood at various

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 locations throughout the apartment. Blood found on the underside of
the carpet and on the armoire matched Dacosta’s DNA profile. The
shower curtain rings were unsnapped, and there was no liner to the
shower curtain. Carpet fibers taken from the yellow sheet in which
Dacosta’s body was wrapped matched characteristics of carpet
samples taken from Boyd’s apartment.
Lewis had previously lived with Boyd at his apartment but had
moved out in October of 1998. While living with Boyd, Lewis had
purchased a queen-size bed, which she left at the apartment when she
moved. Lewis and her three children moved back in with Boyd in
February of 1999 and discovered that the bed was no longer at Boyd’s
apartment. When she asked about it, Boyd told her that he had given
it away but would get it back. When she inquired about it again, Boyd
told her that she would not want that bed and that he would get her
another one. Lewis also identified the flat bed sheets, one brown and
one a “loud yellow,” that were found around Dacosta’s body as
similar to ones she had owned while living at Boyd’s apartment but
that she no longer knew where they were or if they were at Boyd’s
apartment or at her mother’s home.
A jury convicted Boyd of first-degree murder, sexual battery,
and armed kidnapping. The trial court subsequently conducted a
penalty phase proceeding, during which both sides presented
evidence. The jury unanimously recommended that Boyd be
sentenced to death. The trial court followed the jury’s
recommendation and imposed a death sentence, finding and weighing
two aggravating factors, one statutory mitigating factor, and five
nonstatutory mitigating factors. State v. Boyd, No. 99–5809 (Fla.
17th Cir. Ct. order filed June 21, 2002) (sentencing order). The trial
court also sentenced Boyd to fifteen years’ imprisonment for the
sexual battery and to life imprisonment for the armed kidnapping
charges.

Id. at 174-77 (footnotes omitted). This Court affirmed Boyd’s convictions and

sentence of death. Id. at 194.

B. Postconviction Relief Proceedings

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 On February 14, 2007, Boyd filed a Motion to Vacate Judgment of

Conviction and Sentences with Special Request for Leave to Amend, pursuant to

Florida Rule of Criminal Procedure 3.851. He raised the following claims: (1)

denial of access to public records; (2) violation of his rights of due process and

equal protection by failing to apply rule 3.851; (3) counsel was ineffective by

failing to adequately conduct voir dire, challenge the admissibility of forensic

evidence pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and

utilize forensic experts; (4) juror misconduct; (5) denial of adversarial testing

during the sentencing phase, including counsel’s ineffectiveness for failure to

move for a mistrial based on inflammatory and prejudicial comments; (6) denial of

rights under Ake v. Oklahoma, 470 U.S. 68 (1985); (7) denial of the right to

interview jurors; (8) cumulative error; and (9) the unconstitutionality of Florida’s

lethal injection statute and procedure.

On May 29, 2009, Boyd filed an amended motion to vacate his convictions

and sentences, adding claims that newly discovered evidence undermined the

reliance of the forensic evidence used to convict and sentence, and that the State

committed a Brady1 violation. Boyd subsequently filed a second amended rule

3.851 motion on March 23, 2012.

1. Brady v. Maryland, 373 U.S. 83 (1963).

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 On June 5, 2012, the circuit court granted an evidentiary hearing on some of

Boyd’s claims. On August 28 and 29, 2012, the circuit court held an evidentiary

hearing on Boyd’s claims of ineffective assistance of counsel for failure to conduct

adequate voir dire concerning jurors’ prior criminal histories, juror misconduct,

and ineffective assistance of penalty phase counsel for failure to move for a

mistrial based on inflammatory and prejudicial comments. In a sixty-two page

order, dated January 2, 2013, the circuit court denied these three claims and

summarily denied Boyd’s remaining claims. Boyd now appeals the lower court’s

order denying postconviction relief and also petitions for a writ of habeas corpus.

II. POSTCONVICTION RELIEF CLAIMS

A. Actual Juror Bias Claims

Boyd asserts that he is entitled to a new trial because two jurors failed to

disclose information pertinent to his decision to retain them for jury service,

thereby denying him a fair and impartial jury. The present appellate claim

involves issues of fact considered and conclusions of law made by the circuit court.

This Court employs a mixed standard in reviewing a postconviction court’s denial

of postconviction relief, “deferring to the postconviction court’s factual findings

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

conclusions de novo.” Victorino v. State, 127 So. 3d 478, 486 (Fla. 2013) (citing

Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004)); Jackson v. State, 127 So. 3d

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447, 460 (Fla. 2013) (“This Court accords deference to the postconviction court’s

factual findings following its denial of a claim after an evidentiary hearing.”).

Boyd argues that jurors Tonja Striggles and Kevin Rebstock failed to

disclose information concerning their criminal histories, which denied Boyd a fair

and impartial jury at trial. According to Boyd, the presence of Juror Striggles and

Juror Rebstock—one, a convicted felon who had not timely had her civil rights

restored; the other, a former misdemeanor defendant for whom adjudication had

been withheld—on the jury of his criminal trial was inherently prejudicial to his

legal interests. Consequently, Boyd asserts, because his constitutional right to a

fair trial was denied when he was convicted by a jury that consisted of said jurors,

a new trial must be granted without any further showing of actual bias or prejudice.

We disagree.

As an initial matter, Boyd’s reliance on our decision in Lowrey v. State, 705

So. 2d 1367 (Fla. 1998), is misplaced. In Lowrey, the First District affirmed the

defendant’s conviction for carrying a concealed firearm but certified for review the

following question as one of great public importance:

MUST A CONVICTED DEFENDANT SEEKING A
NEW TRIAL DEMONSTRATE ACTUAL HARM
FROM THE SEATING OF A JUROR WHO WAS
UNDER CRIMINAL PROSECUTION WHEN HE
SERVED BUT THOUGH ASKED, FAILED TO
REVEAL THIS PROSECUTION?

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Id. at 1368 (emphasis added) (quoting Lowrey v. State, 682 So. 2d 610, 612 (Fla.

1st DCA 1996)). In answering the question in the negative, we distinguished our

decision in State v. Rodgers, 347 So. 2d 610, 613 (Fla. 1977), where we held that

the presence of a minor on the criminal defendant’s jury did not require a new trial

absent a showing that the minor’s age affected the verdict or prevented a fair trial.

Specifically, we explained that in Rodgers, “no evidence or perception existed to

indicate that the disqualified juror rendered an unfair or impartial vote,” whereas in

Lowrey, “there [was] a clear perception of unfairness, and the integrity and

credibility of the justice system [was] patently affected.” Lowrey, 705 So. 2d at

1369-70. In concluding, we emphasized that we were not overruling Rodgers, but

“simply carving out an exception based on the unique circumstances presented.”

Id. at 1370. Accordingly, we quashed the First District’s decision and remanded

with directions to grant a new trial. Id.

Juror Striggles’ criminal history consisted of the following incidents: (1)

making a bomb threat and committing extortion (August 1979); (2) making a

threatening phone call (December 1980); (3) twice pleading guilty to reporting

false bombings (August 1983 and October 1986), and violating the probation order

associated with each conviction; (4) pleading guilty to the misdemeanor of

contributing to the delinquency of a minor in Georgia (March 1986); and (5)

pleading guilty to one count of possession of a firearm by a convicted felon and

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one count of carrying a concealed firearm (March 1988). According to the record,

Striggles was about nineteen years old at the time of her first false-bombing

reporting in August 1983, and twenty-four at the time of her last known

adjudication in March 1988. Certified records indicate that Striggles’ civil rights

were restored on April 4, 2008—more than six years after she served on the jury of

Boyd’s 2002 trial. When asked by the trial court how long ago she was involved

with the criminal justice system, Striggles responded that she was a juvenile. She

did not otherwise apprise the court or counsel of her series of convictions as an

adult (beginning in August 1983).

The record also reflects that Juror Rebstock was arrested in Broward County

in November 1991 and charged with misdemeanor solicitation of prostitution;

however, the presiding court withheld adjudication. During voir dire in the present

case, Rebstock reported on the voir dire questionnaire form that he did not have

any family or friends involved in the legal system. He did not report his own

encounter with law enforcement, and no further inquiries were made by the trial

judge or counsel for either party concerning Rebstock’s answer to this question.

The circumstances found in the present case do not implicate the “clear

perception of unfairness” as contemplated in Lowrey. As the Second District

cogently explained, “[t]he purpose of disqualifying a person who has a pending

prosecution is to avoid the possibility that that person might vote to convict in the

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hope of getting more favorable treatment from the prosecution in [his or her] own

case.” Thompson v. State, 300 So. 2d 301, 303 (Fla. 2d DCA 1974). Conversely,

persons who have already undergone criminal prosecution and been convicted are

no longer in a position to curry favor from the State. This is especially true with

regard to Juror Striggles since her last known adjudication was approximately

fourteen years before Boyd’s trial, and with Juror Rebstock, for whom adjudication

had already been withheld on his misdemeanor charge approximately a decade

before Boyd’s trial. Moreover, we see no practical reason to believe that those

who, for instance, have not become rehabilitated since being prosecuted over a

decade before serving on the jury of a criminal trial are more likely than similarly

situated persons—but who have also had their civil rights restored—to favor the

State over the defense. See Oregon v. Benson, 384 P.2d 208, 210 (Or. 1963)

(“Many [jurors who were convicted of felonies or misdemeanors] have become

morally rehabilitated. And we have no reason to believe that those who have not

become rehabilitated and are called to jury duty are more likely to show partiality

for the state than for the defendant.”). We, therefore, reiterate that our decision in

Lowrey is limited to its unique set of circumstances and, thus, refuse to extend our

ruling therein to Boyd’s case and similarly situated cases.

Next, case law—both from this Court and from other appellate courts

throughout the nation—supports our rejection of Boyd’s claim that he is entitled to

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a new trial by virtue of the fact that his jury included a statutorily disqualified

convicted felon who had not had her civil rights restored. The United States

Supreme Court has emphasized that “[t]he motives for concealing information may

vary, but only those reasons that affect a juror’s impartiality can truly be said to

affect the fairness of a trial.” McDonough Power Equip., Inc. v. Greenwood, 464

U.S. 548, 556 (1984); see also United States v. Carpa, 271 F.3d 962, 967 (11th Cir.

2001) (citing McDonough, 464 U.S. at 553). Specifically concerning a juror’s

status as a convicted felon, many appellate courts throughout our nation have

echoed this precise viewpoint. For example, the Supreme Court of Michigan

explained:

Although a criminal defendant has a constitutional right to be
tried by an impartial jury, a criminal defendant does not have a
constitutional right to be tried by a jury free of convicted felons.
Instead, the right to be tried by a jury free of convicted felons is
granted by statute. And by statute, a violation of this “right” only
requires a new trial if the defendant demonstrates that such a violation
“actual[ly] prejudice[d]” him.

Michigan v. Miller, 759 N.W.2d 850, 855-56 (Mich. 2008) (footnotes omitted); see

also Hunt v. Maryland, 691 A.2d 1255, 1266-67 (Md. 1997) (“What is required of

jurors is that they be without bias or prejudice for or against the defendant and that

their minds be free to hear and impartially consider the evidence and render a fair

verdict thereon.”); Washington v. Cleary, 269 P.3d 367, 370 (Wash. Ct. App.

2012) (“The disqualification criterion [for convicted felons addressed] here is by

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statute, not the state or federal constitution. The assignment of error does not then

implicate constitutional rights.” (citation omitted)); United States v. Humphreys,

982 F.2d 254, 261 (8th Cir. 1992) (holding trial court did not abuse discretion in

denying defendant’s motion for a new trial on the ground that one juror was

previously convicted on embezzlement charge; defendant did not pursue

questioning of subject juror on voir dire or further investigate or raise any

challenge during trial, and there was no evidence of either bias or unfairness as a

result of the seating of juror); United States v. Boney, 977 F.2d 624, 633 (D.C. Cir.

1992) (“W[hile] [w]e think, therefore, that the Sixth Amendment guarantee of an

impartial trial does not mandate a per se invalidation of every conviction reached

by a jury that included a felon[,] . . . there is still the question whether appellants

were entitled to a hearing to determine whether the juror was in fact biased.”

(internal citations and footnotes omitted)); United States v. Uribe, 890 F.2d 554,

562 (1st Cir. 1989) (denying defendants’ claim of entitlement to a new trial in

narcotics prosecution because one juror was a convicted felon; explaining “the

statutory violation—allowing a convicted felon to serve—did not implicate the

fundamental fairness of the trial or the defendants’ constitutional rights,” and

defendants did not otherwise demonstrate a “plausible link between the predicate

facts and the prejudice claimed”).

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 We acknowledge the contemplated reasons why felon-jurors sitting in

criminal trials may harbor bias in favor of the defense as well as the State.

Compare Johnston v. State, 63 So. 3d 730, 739 (Fla. 2011) (“In fact, juror

Robinson’s positioning as a prior defendant makes bias against Johnston especially

unlikely.”) (emphasis in original), and Uribe, 890 F.2d at 562 (“The district court

found not the slightest basis to conclude that the juror’s prior conviction, sentence,

or subsequent dealings with the court rendered him more prone to convict a

defendant in an unrelated case. We agree.”), with Companioni v. City of Tampa,

958 So. 2d 404, 413 (Fla. 2d DCA 2007) (outlining reasons why convicted felons

serving as jurors in criminal trials could be bias both in favor of and against

defendants) (citing Humphreys, 982 F.2d at 260-61; Rubio v. Super. Ct. of San

Joaquin Cnty., 593 P.2d 595, 600 (Cal. 1979) (en banc)).

However, if a criminal defendant has failed to establish that a particular juror

could not be fair and impartial and follow the law as instructed by the trial court,

then it is unreasonable to further ascertain whether the juror’s status as a convicted

felon rendered him or her more favorable to the State or the defense. In other

words, we do not see the efficacy in belaboring the direction in which a felon-

juror’s bias cuts in the absence of legally sufficient evidence showing that the juror

was actually biased against the defendant. See United States v. Boney, 97 F. Supp.

2d 1, 6 (D.D.C. 2000) (“Even if this Court did not credit the Juror’s explanation as

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to why he omitted a California conviction from his District of Columbia jury

questionnaire[,] . . . additional evidence would still be necessary to establish actual

bias and to demonstrate prejudice to defendant’s case.”).

Besides, we do not think that it is pragmatic to promulgate a per se rule that

one’s status as a convicted felon denotes inherent bias against a criminal

defendant’s legal interests. Otherwise, courts would be placed in the precarious

position of ordering new trials based not on legally sufficient evidence of actual

bias or prejudice, but wholly on gut reactions to sociological generalizations of

human tendencies. See Uribe, 890 F.2d at 562 (“To be accorded weight, a bias

claim requires more than subjective characterizations unanchored in the realities of

human experience.”); Boney, 977 F.2d at 633 (“A per se rule [requiring a new trial

whenever a felon serves on a jury] would be appropriate, therefore, only if one

could reasonably conclude that felons are always biased against one party or

another. But felon status, alone, does not necessarily imply bias.”).

Indeed, such a categorical rule is repugnant to the actual bias standard

established in our jurisprudence. As further analyzed below, for claims of juror

bias this Court has repeatedly required that the defendant bear the burden of

pointing to evidence on the face of the record which exhibits the subject juror’s

lack of impartiality. See Lebron v. State, 135 So. 3d 1040, 1058 (Fla. 2014) (citing

Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007)); see also Smithers v. State, 18

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So. 3d 460, 465 (Fla. 2009) (“Juror Collins’ statements did not show a biased

unwillingness to consider potential sentences other than death. . . . Thus, the

record does not demonstrate actual bias that would prevent juror Collins from

serving as an impartial juror.”). Maryland’s highest state court has expressed a

view of this issue that comports with our Carratelli line of cases. Specifically, the

Court of Appeals of Maryland has instructed: “ ‘[B]ias on the part of prospective

jurors will never be presumed, and the challenging party bears the burden of

presenting facts . . . which would give rise to a showing of actual prejudice.’ ”

Hunt, 691 A.2d at 1267 (emphasis in original) (quoting Davis v. Maryland, 633

A.2d 867, 873 (Md. 1993)); accord Miller, 759 N.W.2d at 857-58.

Hence, in light of the court decisions discussed above, again, we refuse to

accept Boyd’s position that a criminal defendant is per se entitled to a new trial

where he or she was convicted by a jury that included a convicted felon whose

civil rights had not been restored. Rather, we hold—as have many other appellate

courts throughout this nation—that a criminal defendant is not entitled to relief

under such atypical circumstances absent a showing, based on legally sufficient

evidence, of actual juror bias against the defendant. In other words, a person’s

disqualification from jury service by statute does not necessarily implicate a

violation of a criminal defendant’s constitutional rights if that person somehow

served as one of said defendant’s jurors. Thus, the only relevant issue presently

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before this Court is whether there is legally sufficient evidence that either Juror

Striggles or Juror Rebstock was actually biased against Boyd.

Under the “actual bias” standard announced by this Court in Carratelli:

A juror is competent if he or she “can lay aside any bias or
prejudice and render his [or her] verdict solely upon the evidence
presented and the instructions on the law given to him [or her] by the
court.” Lusk[ v. State], 446 So. 2d [1038,] 1041 [(Fla. 1984)].
Therefore, actual bias means bias-in-fact that would prevent service as
an impartial juror. See United States v. Wood, 299 U.S. 123, 133-34
(1936) . . . . Under the actual bias standard, the defendant must
demonstrate that the juror in question was not impartial—i.e., that the
juror was biased against the defendant, and the evidence of bias must
be plain on the face of the record. See Carratelli [v. State], 915 So. 2d
[1256,] 1260 [(Fla. 4th DCA 2005)] (citing Jenkins[v. State], 824 So.
2d [977,] 982 [(Fla. 4th DCA 2002))]; see also Patton v. Yount, 467
U.S. 1025, 1038-40 (1984).

Carratelli, 961 So. 2d at 324.

Here, Boyd has not alleged actual bias, nor has he pointed to any evidence in

this record indicating that Juror Striggles or Juror Rebstock likely did not

deliberate the question of his guilt fairly and impartially. In fact, the record is

replete with evidence demonstrating facts that support the opposite conclusion.

For instance, when asked during voir dire, Striggles informed the trial court that

she was treated fairly by the juvenile system as a juvenile delinquent and that she,

as previously noted, had gotten over whatever negative feelings she may have

developed about that experience. Striggles also told the prosecutor during voir dire

that she did not have a problem recommending a sentence of death where

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appropriate because she expected the State to be fair in the presentation of its case

against Boyd. Further, Striggles was not part of the group of venire members that

expressed moral, religious, or personal beliefs that would have prevented them

from returning a verdict of guilty if the State satisfied its burden of proof. She,

however, was part of the group that affirmatively agreed with the prosecutor’s

statement that the verdict reached should be one based solely upon the evidence

presented, and not any juror’s personal biases or prejudices. Because this record

evidence gives no indication that either Juror Striggles or Juror Rebstock harbored

any bias against him, we conclude that Boyd has not shown that he is entitled to a

new trial. Accordingly, we deny relief on this claim.

B. Ineffective Assistance of Counsel Claims

Below, Boyd raised numerous ineffectiveness claims regarding defense

counsel’s performance during voir dire as well as the guilt and penalty phases. The

circuit court summarily denied some claims, and denied the remainder following

an evidentiary hearing. To prevail on an ineffective assistance of counsel claim

under Strickland v. Washington, 466 U.S. 668 (1984), the defendant must

demonstrate both deficiency and prejudice:

First, the claimant must identify particular acts or
omissions of the lawyer that are shown to be outside the
broad range of reasonably competent performance under
prevailing professional standards. Second, the clear,
substantial deficiency shown must further be
demonstrated to have so affected the fairness and

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 reliability of the proceeding that confidence in the
outcome is undermined.

There is a strong presumption that trial counsel’s performance
was not deficient. 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. The defendant carries the burden to overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy. Judicial scrutiny of counsel’s
performance must be highly deferential. 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. Furthermore, where this
Court previously has rejected a substantive claim on the merits,
counsel cannot be deemed ineffective for failing to make a meritless
argument.
In demonstrating prejudice, the defendant must show a
reasonable probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.

Long v. State, 118 So. 3d 798, 805-06 (Fla. 2013) (internal citations and alterations

omitted).

“[W]hen a defendant fails to make a showing as to one element [of the

Strickland standard], it is not necessary to delve into whether he has made a

showing as to the other element.” Thompson v. State, 796 So. 2d 511, 516 (Fla.

2001); McCoy v. State, 113 So. 3d 701, 708 (Fla. 2013). “Because both prongs of

the Strickland test present mixed questions of law and fact, this Court employs a

mixed standard of review, deferring to the circuit court’s factual findings that are

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supported by competent, substantial evidence, but reviewing the circuit court’s

legal conclusions de novo.” Id. Where a claim is summarily denied without an

evidentiary hearing, “this Court will affirm only when the claim is legally

insufficient, should have been brought on direct appeal, or is positively refuted by

the record.” Jackson, 127 So. 3d at 460 (internal citations and alterations omitted).

1. Failure to Conduct Adequate Voir Dire

Boyd first claims that defense counsel’s failure during voir dire to question

Juror Striggles more in depth about information she revealed concerning her

juvenile delinquency record prejudicially denied him the opportunity to discover

information material to excusing Striggles from jury service. However, Boyd has

not proffered any additional questions that defense counsel should have asked

Striggles during voir dire that would have elicited the now-complained-of

information from her. See Green v. State, 975 So. 2d 1090, 1105 (Fla. 2008)

(“Second, Parker did not render ineffective assistance in failing to ask Guiles more

questions, because an allegation that there would have been a basis for a for cause

challenge if counsel had followed up during voir dire with more specific questions

is speculative.” (citing Johnson v. State, 903 So. 2d 888, 896 (Fla. 2005); Reaves v.

State, 826 So. 2d 932, 939 (Fla. 2002))). Nevertheless, as discussed above, the

record in this case does not show that Striggles harbored any bias against Boyd,

and thus, it is not reasonable to conclude that she rendered her duties in any

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manner other than fairly and impartially. See Carratelli, 961 So. 2d at 324. The

record also reflects that Boyd participated in the jury selection process, agreed to

an abbreviated voir dire, and did not object to seating Striggles as a juror because

he gave informed consent to his defense team’s overall trial strategy. This belies

Boyd’s contention that he was prejudiced by Striggles’ presence on his jury. See

Gamble v. State, 877 So. 2d 706, 714 (Fla. 2004) (“[I]f the defendant consents to

counsel’s strategy, there is no merit to a claim of ineffective assistance of

counsel.”). Therefore, Boyd has failed to show that counsel’s declination to ask

Striggles more specific voir dire questions about her criminal record affected the

fairness and reliability of the trial proceedings such that our confidence in the

outcome is undermined. See Long, 118 So. 3d at 805. Accordingly, we deny

Boyd any relief as to this subclaim.

2. Failure to Properly Challenge Penalty Phase Outburst

The following cross-examination colloquy between the State and Boyd

transpired during the penalty phase:

Q. Remember when I stood here and said, Mr. Boyd, I’m sorry
I have to ask this of you, but did you have your own sperm in your
mouth when they swabbed your mouth with the Q-tip and you said no.
A. But they -- you’re right.
Q. Right. I know I’m right.
A. But they --
Q. Now, you said you’d never do nothing like that.
MR. LASWELL: Objection, your Honor. Mr. Boyd has a
right to finish his answer.
THE COURT: Mr. Loe, I’m going to give Mr. Boyd --

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 BY MR. LOE:
Q. I said --
THE COURT: Excuse me, gentlemen. Excuse me. Mr. Boyd,
finish your answer and then Mr. Loe may proceed with his next
question.
THE WITNESS: I didn’t have my sperm in my mouth, but my
sperm was in this young lady right here that they took from me in
1998. That’s where they got my sperm from, out of me. That young
lady right there. That’s where my sperm came from.
[J.M.]: You raped me.
THE WITNESS: Yes, sir. Not out of my mouth.
BY MR. LOE:
Q. My question was --
A. Yes, sir.
Q. -- did you have your sperm in your mouth when they
swabbed you in 1998, your answer was no?
A. No, sir.
Q. That was my question, wasn’t it? Your answer was no?
A. The answer is no.

(emphasis added).

The record reflects that the trial judge did nothing to restore order in the

court from the gallery outburst or otherwise address the statement in the presence

of the jury. The record also reflects that counsel for the defense did not object or

move for a mistrial during the above exchange. Boyd asserts that such inaction in

the midst of the allegedly prejudicial, unsworn statement by the female spectator,

J.M., in open court constituted ineffective assistance of penalty phase counsel. We

disagree, since there is competent, substantial evidence in this record supporting

the circuit court’s finding that defense counsel made a strategic decision not to

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raise a challenge to the outburst so as to prevent it from becoming a contentious

issue in front of the jury.

This Court has repeatedly held that counsel does not render ineffective

assistance by employing strategic decisions made during trial that, in hindsight, did

not work to the defendant’s advantage. Reynolds v. State, 99 So. 3d 459, 483 (Fla.

2012); Maharaj v. State, 778 So. 2d 944, 959 (Fla. 2000) (citing Medina v. State,

573 So. 2d 293, 297 (Fla. 1990)). Stated differently, “[c]ounsel cannot be deemed

ineffective merely because current counsel disagrees with trial counsel’s strategic

decisions. Moreover, 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) (internal citation omitted).

Here, the transcript for opening statements reflects that defense counsel

informed the jury that they would hear testimony during trial that Broward County-

area law enforcement had attempted to prosecute Boyd for two unrelated sexual

battery incidents spanning over the decade prior to the present case. Counsel then

suggested that because they had been embarrassed by unsuccessfully obtaining a

conviction when they charged Boyd with a sex offense in an earlier case, the

Sheriff’s Office and Police Department opportunistically colluded to blame

McCloud for the death of Dacosta, the victim in this case. Defense counsel further

- 23 -
indicated during opening statements that the evidence to be presented at trial would

show that law enforcement maintained control of the forensic evidence that

allegedly linked McCloud to Dacosta’s murder, and linked Dacosta to the crime

scene—the apartment McCloud at one point had shared with his girlfriend, Geneva

Lewis. Indeed, the defense team attempted to elicit such testimony while, for

example, cross-examining the lead detective, Glenn Bukata, about the fact that he

ordered Lewis and her children to vacate the apartment for several days while

crime scene technicians processed the premises for forensic evidence. The defense

also elicited testimony from Lewis that, sometime after Boyd’s arrest but before

she was ordered to leave, Detective Bukata attempted to enter Lewis’ apartment

while her children were home but she was not. While testifying on his own behalf,

Boyd indicated that during his interrogation, Bukata mocked him by addressing

Boyd with a racial epithet and boasting: “[W]e told you we was going to get you.”

Finally, in the course of closing arguments, defense counsel stressed that none of

the State’s expert witnesses could explain how or when Dacosta’s DNA ended up

on the furniture in Lewis’ apartment. All the above evidence shows that the

defense relied heavily on a general trial theory that law enforcement had motive to,

and actually did, plant incriminating evidence to incriminate Boyd unlawfully in

this case.

- 24 -
 Further, defense counsel testified during the evidentiary hearing that he

immediately perceived the outburst incident as an opportunity to exploit this

theory. According to counsel, based on his prior success in obtaining an acquittal

under relatively similar circumstances, he believed the incident at issue in this case

presented a rare opportunity to allow the jury to connect law enforcement’s prior

failures to prosecute Boyd for unrelated sexual battery incidents with the

possibility that such failures motivated police to target him in the present sexual

battery case—as opposed to challenging the spectator’s outburst in open court and

risking it becoming a feature of the penalty phase. Thus, defense counsel clearly

considered and rejected alternative courses of action. In addition, this decision was

reasonable given that it was made under spur-of-the-moment circumstances and

based on a past experience that resulted in an outcome favorable to the defense.

We conclude, therefore, that defense counsel did not provide ineffective assistance

by failing to object or move for a mistrial in response to the asserted penalty phase

outburst. See Reynolds, 99 So. 3d at 483; Occhicone, 768 So. 2d at 1048.

Additionally, we agree with the circuit court’s determination that Boyd’s

own actions during the penalty phase invited the asserted error. It is well-settled

under Florida law that “ ‘a party may not make or invite error at trial and then take

advantage of the error on appeal.’ ” Universal Ins. Co. of N. Am. v. Warfel, 82 So.

3d 47, 65 (Fla. 2012) (quoting Sheffield v. Superior Ins. Co., 800 So. 2d 197, 202

- 25 -
(Fla. 2001)). In support of its finding that Boyd invited the asserted error in this

case by provoking J.M. in front of the jury, the circuit court cited Norton v. State,

709 So. 2d 87 (Fla. 1997). In Norton, we rejected the defendant’s argument that

the State’s witness improperly commented on cross-examination about the

defendant’s failure to testify at trial. In so ruling, we noted that error was invited

where, in an unsuccessful attempt to make a point on cross-examination, defense

counsel probed the witness as to why the defendant bought carpet cleaners when

there were no carpets in his car. Id. at 94.

The record here shows that Boyd goaded the woman present in the

courtroom gallery when he identified her in front of the jury by partially standing

while on the witness stand and twice pointing at the woman while insisting she was

the source of his semen that law enforcement officers collected in the State’s

attempt to convict him of a prior sexual battery charge. The record does not reflect

that the woman was causing any disruption during the penalty phase proceeding, or

that observers other than the State or Boyd knew of her presence.

Contrary to Boyd’s assertion, these circumstances are reminiscent of those

found in Norton, given that in both cases some member of the defense’s party

probed the allegedly prejudicial statements. In Boyd’s particular case, J.M. had

not responded to or interjected herself into Boyd’s testimony until, in an attempt to

bolster the defense’s theory that a DNA sample from his semen was intentionally

- 26 -
planted on the victim’s body by law enforcement, Boyd deliberately and overtly

made J.M.’s presence in the courtroom known when the jury was present.

Finally, in further contrast to Boyd’s observation, the record does not

indicate that the State engaged in “argumentative and antagonistic” cross-

examination. Rather, the record shows nothing more than adversarial questioning

aimed at calling into question the credibility of a hostile witness as well as the

defense’s overall theory that, against Boyd’s interest, law enforcement planted the

incriminating forensic evidence at, and collected it from, the crime scene. See

Blanton v. State, 880 So. 2d 798, 801 (Fla. 5th DCA 2004) (describing cross-

examination as an “adversarial tool” (citing Crawford v. Washington, 541 U.S. 36

(2004))), approved in part, disapproved in part, 978 So. 2d 149 (Fla. 2008); see

also Fla. Power Corp. v. Smith, 202 So. 2d 872, 881-82 (Fla. 2d DCA 1967) (“The

very rule that sanctions the calling of a hostile witness permits cross-examination

by the adverse party on the subject matter of his original examination as a hostile

witness and also permits new evidence to contradict or impeach him.”).

Accordingly, we deny relief as to this subclaim.

3. Failure to Question Jurors about Pretrial Publicity

Next, Boyd argues that the circuit court erred in summarily denying his

claim that defense counsel rendered ineffective assistance by failing to question

two prospective jurors—Barbara Berberich and then-prospective Juror Striggles—

- 27 -
adequately about their exposures to pretrial publicity concerning Boyd’s case.

Under Florida case law, it is well-established that “ ‘[t]he mere fact that jurors

were exposed to pretrial publicity is not enough to raise the presumption of

unfairness.’ The relevant inquiry is whether the jurors can lay aside any opinion or

impressions and render a verdict based on the evidence presented in court.”

Teffeteller v. Dugger, 734 So. 2d 1009, 1020 (Fla. 1999) (quoting Castro v. State,

644 So. 2d 987, 990 (Fla. 1994)).

The transcript in this case indicates that the State conducted its voir dire

prior to the defense and questioned the prospective jurors about pretrial publicity

and their knowledge of the case. Juror Striggles indicated that she had previously

overheard her family conversing about an aspect of the case related to the Boyd

Funeral Home, which was a business owned and operated by Boyd’s family.

However, she immediately stated that she knew nothing about the business or this

case. Juror Berberich likewise stated that, although she may have learned about

Boyd’s case after seeing it on television or reading about it in a newspaper, she did

not recall many details other than remembering Boyd’s name. Thus, because any

follow-up questioning by defense counsel likely would have elicited minimum

information not already brought out by the State’s voir dire, or otherwise would

have elicited cumulative information, Boyd has failed to prove the deficiency

prong under the Strickland standard. See id. (“The prosecutor also questioned the

- 28 -
prospective jurors about their exposure to news reporting. In light of this

questioning of the prospective jurors, we cannot fault trial counsel for failing to

repeat the questioning.”); Cole v. State, 841 So. 2d 409, 415 (Fla. 2003).

Assuming, however, that counsel was remiss in not asking Jurors Striggles

and Berberich additional questions about pretrial publicity and their knowledge of

this case, no prejudice resulted from such inaction. When asked by the State, both

prospective jurors explicitly assured that they would not permit whatever

information concerning Boyd’s case to which they may have been exposed to

affect them one way or the other during deliberations if chosen to serve on the jury.

Therefore, we find that the record positively refutes a showing that either juror had

actual bias against Boyd. See Carratelli, 961 So. 2d at 327 (“[T]he en banc

[district] court . . . held that [j]uror Inman’s slight familiarity with the case did not

rise to th[e] level of actual bias necessary for postconviction relief. We agree. The

record plainly shows that juror Inman held no firm opinion except that he could be

fair, listen to the evidence, and follow the law. Thus, Carratelli fails to

demonstrate prejudice under Strickland.”) (internal citation omitted). Accordingly,

we affirm the trial court’s summary denial of this claim and deny Boyd any relief

thereto.

4. Forensic Evidence

a. Failure to Request a Frye Hearing

- 29 -
 Boyd argues that defense counsel rendered ineffective assistance by failing

to request a Frye hearing to challenge the admissibility of the State’s bite-mark

comparison and fiber analysis evidence, as well as evidence regarding the DNA

testing performed by the Bode Laboratory. The Frye test is used to evaluate the

“admissibility of expert scientific opinion by ascertaining whether new or novel

scientific principles on which an expert’s opinion is based ‘have gained general

acceptance in the particular field in which it belongs.’ ” Rodgers v. State, 948 So.

2d 655, 666 (Fla. 2006) (quoting Frye, 293 F. at 1014). It follows that trial counsel

does not render ineffective assistance by failing to request a Frye hearing when, at

the time of trial, there was general acceptance in the scientific community of the

scientific evidence at issue. In other words, where the methodology was neither

new nor novel, existing case law recognizes that a Frye hearing is not necessary.

Foster v. State, 132 So. 3d 40, 69 (Fla. 2013); McDonald v. State, 952 So. 2d 484,

495-96 (Fla. 2006).

As Boyd concedes in his initial brief, the forensic methodologies and

evidence presented at trial: trace and microscopic fiber analysis; forensic

odontology and bite-mark analysis; and Short Tandem Repeat (STR) DNA

technology, were neither new nor novel at the time of his 2002 trial. See, e.g.,

Long v. State, 610 So. 2d 1276, 1281 (Fla. 1992) (holding State’s hair, fiber, and

tire-track evidence was admissible in trial for first-degree murder to establish

- 30 -
defendant’s identity and to connect him to victim); Mitchell v. State, 527 So. 2d

179, 181 (Fla. 1988) (recognizing admissibility of expert testimony concerning

bite-mark analysis as an analytical methodology that is widely accepted in the

scientific community); Lemour v. State, 802 So. 2d 402, 407 (Fla. 3d DCA 2001)

(holding use of STR DNA testing kit to obtain DNA test results did not present

new scientific technique where kit used testing methods that were generally

accepted by scientific community), review denied, 821 So. 2d 297 (Fla. 2002);

Bradford v. State, 460 So. 2d 926, 929-30 (Fla. 2d DCA 1984) (approving

admissibility of odontologist’s expert testimony similar to bite-mark analysis

(citing Bundy v. State, 455 So. 2d 330 (Fla. 1984))). Boyd, therefore, has failed to

demonstrate that a Frye hearing was necessary in this case and, in turn, that the

trial court would have granted such a hearing had defense counsel requested one.

See Foster, 132 So. 3d at 69; McDonald, 952 So. 2d at 495-96. As such, we

conclude that defense counsel was not ineffective in this regard. See Long, 118

So. 3d at 805 (holding defense counsel is not ineffective for failing to present

meritless argument).

Boyd maintains that the 2009 National Academy of Sciences (NAS) report

on forensic science, while it had not yet been published at the time of his 2002

trial, consisted of sources that were readily available at all relevant times and could

have been utilized by defense counsel to challenge the methodology, procedures,

- 31 -
and analyses of the forensic evidence for admissibility purposes at a Frye hearing.

Because we have previously addressed this issue in principle, we are not persuaded

by Boyd’s argument.

In Taylor v. State, 62 So. 3d 1101 (Fla. 2011), we determined that trial

counsel’s decision not to request a Frye hearing to challenge the admissibility of

DNA evidence was reasonable, given that the only authority proffered by the

defendant that both challenged the use of DNA evidence and existed at the time of

trial were academic articles and isolated, nonbinding decisions. Thus, we

concluded that “[w]hile this evidence certainly could have been presented at trial, it

was not essential for counsel to be determined to be effective.” Id. at 1111

(emphasis in original).

As to the fiber and bite-mark evidence at issue here, Boyd points our

attention mostly to a number of isolated articles, news reports, journals, book

chapters, and other nonbinding decisions from federal circuits. While these

documents were readily available at the time of his trial and could have been relied

upon throughout the trial proceedings, Boyd has not cited to any authority that

obligated counsel to rely upon the substance of the above documents in order to

persuade the trial court to grant a Frye hearing. See id. Regarding the DNA

analysis, Boyd has not articulated how or what part of the 2009 NAS report would

have called into question the admissibility of the DNA expert testimony in this

- 32 -
case. Rather, he alleges deficiency in a conclusory fashion, asserting “counsel

inexplicably failed to challenge the admissibility of DNA evidence analyzed by

Bode” and “failed to seek laboratory protocols, validation studies, accreditation

studies, equipment maintenance logs and operation manuals, contamination logs

and laboratory error rates from any of the three DNA labs involved.” Again, Boyd

has not pointed to any authority which requires counsel to pursue these measures,

and that indicates that counsel otherwise renders ineffective assistance if he fails to

do so. See id.

To the extent Boyd characterizes the 2009 NAS report as newly discovered

evidence, Boyd cannot show that the portions of the report upon which he relies

could “not have been known by the trial court, the party, or counsel at the time of

trial,” and that he “or defense counsel could not have known of it by the use of

diligence.” Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007). As Boyd

acknowledges, many of the statements in the Summary and Introduction sections

of the NAS report to which Boyd cites appear in sources that were readily

available at the time of his 2002 trial. Therefore, Boyd has failed to demonstrate

that the NAS report constitutes newly discovered evidence. See Johnston v. State,

27 So. 3d 11, 21-23 (Fla. 2010) (finding 2009 NAS report was not newly

discovered evidence, in part, because report cited existing publications, some of

which were published before victim’s murder).

- 33 -
 For all of the above reasons, we find this subclaim to be without merit and

deny relief thereto. See Long, 118 So. 3d at 805.

b. Failure to Utilize Forensic Experts

Boyd argues that defense counsel’s decision not to hire a forensic expert to

assist him in challenging the DNA and bite-mark evidence was unreasonable and

allowed the State to present its expert testimony virtually unchallenged. At the

time of Boyd’s trial, Florida Rule of Criminal Procedure 3.250 provided that “[a]

defendant offering no testimony in his own behalf, except his own, shall be entitled

to the concluding argument before the jury.” McAvoy v. State, 501 So. 2d 642,

643 (Fla. 5th DCA 1986). Florida courts have deemed “a defense attorney’s case-

specific tactical decision not to present evidence because of a desire to retain the

first and last closing argument” to be a reasonable trial strategy. Cole v. State, 700

So. 2d 33, 36 (Fla. 5th DCA 1997). However, counsel’s general practice or

blanket policy to preserve the closing argument “sandwich” without examining the

surrounding circumstances and potential defenses of the particular case is per se

deficient. Id.

In this case, the record reflects that defense counsel filed a pretrial motion to

grant defendant the concluding argument to the jury pursuant to then-applicable

Florida Rule of Criminal Procedure 3.250. Throughout the course of trial, defense

counsel was vigilant in ensuring that the defense did not admit any exhibits in

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order to preserve the trial court’s grant of the closing argument “sandwich.” And,

other than Boyd’s testimony, the defense did not admit any evidence. The record

further shows that, using his experience as a former medical examiner, defense

counsel Ongley thoroughly cross-examined each of the State’s forensic expert

witnesses to expose the shortcomings of their conclusions, and echoed those points

during the defense’s first closing argument. Also, as previously discussed, Boyd

stressed during direct examination of his own testimony, and defense counsel

Laswell reiterated in the second closing argument the defense’s theory, that law

enforcement planted incriminating evidence against Boyd in an attempt to frame

him for the kidnapping, rape, and murder of Dacosta in this case. Likewise, the

defense elicited cross-examination testimony from the State’s witness that law

enforcement personnel ordered Boyd’s girlfriend to vacate the apartment unit

where the murder occurred and the forensic evidence was collected, and also that

law enforcement maintained unfettered control of the premises for several days.

In light of the above, Boyd failed to show from the record evidence that, in

exercising a reasonable trial strategy, counsel did not perform the minimum

requirements of professional conduct. See Branch v. State, 952 So. 2d 470, 478-79

(Fla. 2006) (agreeing with trial counsel that his ability to cross-examine the State’s

witnesses coupled with the importance of the right to present first and last closing

arguments were sufficient reasons to avoid the presentation of pathologist and

- 35 -
blood splatter expert, especially given that defense emphasized at trial that

defendant did not commit the crime, and that neither postconviction expert

identified any substantial factual mistakes made by State’s experts). Because,

therefore, he cannot establish the deficiency prong under the Strickland standard,

we deny Boyd relief as to this subclaim.

III. HABEAS PETITION CLAIMS

Claims of ineffective assistance of appellate counsel are appropriately

presented in a petition for writ of habeas corpus. Dufour v. State, 905 So. 2d 42,

70 (Fla. 2005). Consistent with the Strickland standard, in determining whether to

grant habeas relief for ineffective assistance of appellate counsel, this Court makes

the following inquiries:

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

Schoenwetter v. State, 46 So. 3d 535, 563 (Fla. 2010).

The defendant bears the burden of “alleging a specific, serious omission or

overt act upon which the claim of ineffective assistance of counsel can be based.”

Id. (quoting Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)). Ineffective

assistance of appellate counsel claims “may not be used to camouflage issues that

should have been presented on direct appeal or in a postconviction motion.” Id.

- 36 -
Further, appellate counsel cannot be deemed ineffective for not pursuing a

meritless claim. See id. (“If a legal issue would in all probability have been found

to be without merit had counsel raised the issue on direct appeal, the failure of

appellate counsel to raise the meritless issue will not render appellate counsel’s

performance ineffective.” (internal citation omitted)).

A. Failure to Raise Issue of Admissibility of Incriminating Statement

Boyd argues that the trial court erred, in violation of his constitutional right

against self-incrimination, when it denied his motion to suppress the statement he

made to police during custodial interrogation, to wit: “What took you so long to

catch me?” It is further asserted that because, according to Boyd, trial counsel

preserved the error for appellate review, appellate counsel rendered ineffective

assistance by failing to raise the issue on direct appeal.

Assuming trial counsel properly preserved the alleged error and that

appellate counsel’s failure to raise it satisfied the deficiency prong, such lack in

performance does not undermine our confidence in the correctness of the result of

the direct appeal proceedings. As indicated in our direct appeal decision, we found

competent, substantial evidence to support Boyd’s conviction of sexual battery:

The State presented substantial evidence that Boyd sexually
battered Dacosta, including evidence that Boyd and Dacosta did not
know each other before she encountered Boyd while looking for a ride
back to her vehicle after obtaining gas at the Texaco station; that
Boyd’s semen was on Dacosta’s inner thighs; that Dacosta’s blood
was in Boyd’s apartment; and that Boyd’s DNA was in material found

- 37 -
 under Dacosta’s fingernails. The State also presented testimony
establishing the chain of custody of the evidence collected, providing
evidence against Boyd’s theory that Detective Bukata planted
evidence so that it would match Boyd’s and Dacosta’s DNA.
Bruising on Dacosta’s inner thighs and vaginal area was consistent
with either consensual or nonconsensual intercourse. Dacosta was last
seen alive with Boyd.

Boyd, 910 So. 2d at 181.

This same evidence, in addition to evidence “that Dacosta was stabbed

with a Torx screwdriver thirty-six times in the chest and four times in the head”

and “had twelve wounds on her right hand that were consistent with defensive

wounds,” supported our determination that there was also competent, substantial

evidence to uphold the jury’s guilty verdicts for armed kidnapping and

premeditated murder. Id. at 182-84. Finally, we determined that, based on Boyd’s

convictions of sexual battery and armed kidnapping, the record on appeal further

supported the first-degree murder conviction on the basis of felony murder. Id. at

182. Therefore, even had Boyd’s statement: “What took you so long to catch me?”

not be adduced at trial, his convictions and sentence of death would have been

upheld, given the overwhelming amount of remaining evidence establishing

Boyd’s guilt. See Williamson v. State, 123 So. 3d 1060, 1056-66 (Fla. 2013)

(“[T]o establish prejudice under Strickland, . . . a court hearing an ineffectiveness

claim must consider the totality of the evidence before the judge or jury, and a

verdict or conclusion only weakly supported by the record is more likely to have

- 38 -
been affected by errors than one with overwhelming record support.” (citation

omitted)); Simmons v. State, 105 So. 3d 475, 492 (Fla. 2012) (holding that, even if

trial counsel’s stipulation that defendant was source of semen found inside victim’s

body constituted deficient performance, no prejudice could be shown in light of

overwhelming evidence of guilt, including evidence of victim’s blood found inside

defendant’s car; testimony of eyewitnesses who had seen victim screaming for help

from defendant’s car on the night of the murder; and the fact that tire tracks of

defendant’s car were found near the location where victim’s body was found).

Accordingly, Boyd is not entitled to relief on this claim.

B. Failure to Raise Fundamental Error as to Improper Comment

Boyd raises his previous ineffectiveness claim for failure to properly

challenge a penalty phase spectator’s outburst: “You raped me,” see Section

II.B.2., supra, but under the guise of ineffective assistance of appellate counsel for

failure to raise the claim on direct appeal. Because, as noted, defense counsel did

not preserve the issue for appeal during the penalty phase of trial, appellate counsel

cannot be ineffective for failing to raise the issue on direct appeal unless the claim

involves fundamental error. See Archer v. State, 934 So. 2d 1187, 1205 (Fla.

2006). An error is fundamental if it “reaches down into the validity of the trial

itself to the extent that a verdict of guilty could not have been obtained without the

assistance of the alleged error.” Rodriguez v. State, 919 So. 2d 1252, 1282 (Fla.

- 39 -
2005). Concerning improper comments made in the penalty phase, to be

fundamental error the comments “must be so prejudicial as to taint the jury’s

recommended sentence.” Fennie v. State, 855 So. 2d 597, 609 (Fla. 2003) (citing

Thomas v. State, 748 So. 2d 970, 985 n.10 (Fla. 1999)).

The cases to which Boyd cites for support are factually distinguishable to the

present circumstances and, thus, are uninstructive. In Arbelaez v. State, 626 So. 2d

169 (Fla. 1993), for instance, the murder victim’s mother, upon being called by the

State to testify, was crying during the administration of the oath. Id. at 176. The

prosecutor requested a break for the mother to compose her emotions, after which

time she then called the defendant a “murderer” and a “son of a bitch” in Spanish

while the jury was still present. Id. Boyd also likened the facts of this case to

those in Evans v. State, 995 So. 2d 933 (Fla. 2008), where the defendant raised a

claim of ineffective assistance of counsel for failure to object to a juror’s

participation in the trial. Id. at 945. Particularly, the defendant asserted that he

was prejudiced when the juror interjected herself into the trial as an unsworn

witness to answer a question concerning a traffic light that was germane to the

defense’s theory of the case. Id. Neither of these decisions contemplates a

situation in which the defendant incited the complained-of outburst. Id.

To the contrary, Boyd goaded the spectator by partially standing while on

the witness stand and twice pointing at her while insisting she was the source of

- 40 -
Boyd’s semen that law enforcement officers collected in the State’s attempt to

convict him of a prior sexual battery charge. The record does not reflect that the

spectator was causing any disruption during the penalty phase proceeding, or that

observers other than the State or Boyd knew of her presence. In addition, before

the asserted outburst, the jury was twice informed that Boyd was the subject of

prior sexual battery charges. And, although the jury could have easily inferred that

the subject spectator was the alleged victim from at least one of the charges, there

was no reasonable basis upon which to believe that Boyd actually committed the

offense given that the jury was also informed of his acquittals from all prior

charges. In light of these circumstances, whatever prejudice that Boyd may have

suffered as a result of the outburst is self-inflicted. Further, we are not convinced

that the jury unanimously recommended the sentence of death only with the

assistance of this particular incident. Accordingly, we deny this claim as meritless.

See Schoenwetter, 46 So. 3d at 563; Rutherford v. Moore, 774 So. 2d 637, 644

(Fla. 2000) (“The failure to raise meritless claims does not render appellate

counsel’s performance ineffective.”).

IV. CONCLUSION

Based on the foregoing analysis, we affirm the circuit court’s denial of

postconviction relief. We also deny Boyd’s petition for writ of habeas corpus.

It is so ordered.

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LABARGA, C.J., and PARIENTE and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
LEWIS, J., concurs in result only with an opinion.
QUINCE, J., dissents with an opinion.

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

LEWIS, J., concurring in result only.

Under the Florida Statutes, a person who has been convicted of a felony is

disqualified from service on a jury unless and until his or her civil rights have been

restored. See § 40.013(1), Fla. Stat. (2015). However, the statute fails to provide

any specific remedy when a disqualified individual actually serves on a jury. In

my view, the dispositive issue should be whether the jury was properly comprised

under the law, not whether the defective jury performed properly. Therefore, when

a convicted felon serves on a jury, as occurred in this case, a structural defect is

present that invalidates the jury from the outset, and whether the jury reached the

correct determination is simply not the relevant standard. Instead, I would

conclude that the verdict is per se invalid.

I am surprised that neither Florida courts, nor many courts in other

jurisdictions that have addressed this issue, have reached this conclusion. Rather, a

significant number have determined, as the majority holds today, that actual bias is

the proper inquiry where a convicted felon serves on a jury. See, e.g., Companioni

v. City of Tampa, 958 So. 2d 404, 417 (Fla. 2d DCA 2007) (holding that in civil

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cases in which individuals with prior felony convictions serve on a jury, “it is

entirely appropriate to require a showing of actual bias or prejudice before setting

aside a verdict”); United States v. Bishop, 264 F.3d 535, 554 (5th Cir. 2001)

(“[O]nce the trial is complete, a felon’s serving as a juror is not an automatic basis

for a new trial. The defendant must demonstrate that the juror was actually biased

or fundamentally incompetent.”); Coughlin v. Tailhook Ass’n, 112 F.3d 1052,

1059 (9th Cir. 1997) (“[T]he participation of a felon-juror can be the basis for a

new trial if the juror’s participation in the case results in ‘actual bias’ to one or

more of the parties.”); United States v. Humphreys, 982 F.2d 254, 261 (8th Cir.

1992) (“In an effort to obtain a new trial, it is incumbent upon the defendant to

clearly demonstrate that the juror’s lack of qualifications presented actual bias or

prejudice, affecting the juror’s impartiality and impacting the fairness of the trial.

A challenge after the verdict without such a showing comes too late.” (footnote

omitted)); United States v. Boney, 977 F.2d 624, 633-35 (D.C. Cir. 1992) (holding

that “the Sixth Amendment guarantee of an impartial trial does not mandate a per

se invalidation of every conviction reached by a jury that included a felon” and

remanding for an evidentiary hearing to determine whether the juror’s failure to

disclose his status resulted in actual bias); Young v. United States, 694 A.2d 891,

895 (D.C. 1997) (“[T]he fact that the juror was statutorily ineligible to serve due to

a felony conviction does not constitute prejudice per se meriting automatic

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reversal.”); People v. Duffy, 923 N.Y.S.2d 822, 825 (N.Y. Dist. Ct. 2011) (noting

that “there is no per se rule requiring the setting aside of a jury verdict upon the

postverdict discovery that a juror had previously been convicted of a felony,” and

concluding that the defendant had failed to demonstrate actual bias).

In my opinion, whether actual bias existed should not be the appropriate

consideration where a disqualified juror served in violation of statutory law.

Rather, I would conclude that if a jury is not properly comprised pursuant to

section 40.013(1), it is incapable of rendering a valid verdict or advisory sentence.

Therefore, if writing on a clean slate, I would hold that the presence of a convicted

felon on Boyd’s jury invalidated his trial from the outset, and he would be entitled

to a new trial. Nevertheless, I recognize that the weight of the authority, including

Florida precedent, is contrary to my position.

Other states, such as Texas and Virginia, have provided statutory remedies

where a disqualified individual served on a jury. See Tex. Code Crim. Pro. Ann.

art. 44.46(2) (Vernon 2014) (criminal defendant must demonstrate “significant

harm” by service of disqualified juror); Va. Code Ann. § 8.01-352(B) (2014) (new

trial will not be granted unless it appears that the legal disability of juror “probably

cause[d] injustice”). As these states have done, I urge the Legislature to review the

current law in Florida and enact a specific remedy to address the situation where a

verdict is entered by a jury that was not properly comprised pursuant to the

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directives of the Florida Statutes. Without such a remedy in place, actual bias will

remain the standard, despite the fact that this burden is virtually impossible to

meet. Thus, the clear prohibition is meaningless. This extremely high standard

operates to undermine the statutory prohibition in section 40.013(1). If service by

a convicted felon almost never invalidates a verdict, subsection (1) basically has no

operational effect post-trial.

Despite my deep disagreement with the use of the actual bias standard in this

context, statutory change is required to address the current injustice in Florida.

Until the Legislature takes action, a party must meet a nearly insurmountable

burden to obtain relief where a convicted felon served on his or her jury in clear

violation of the law. Therefore, I am compelled to concur in result only.

QUINCE, J., dissenting.

I believe, under the circumstances of the case, the defendant is entitled to a

new trial because an unqualified person served on this capital jury. It is undisputed

that Juror Striggles was a convicted felon whose civil rights had not been restored

at the time she served on the jury that convicted Boyd. Section 40.013(1), Florida

Statutes (2001), provides that any person who has been convicted of a felony and

whose civil rights have not been restored shall not be qualified to serve as a juror.

This statutory directive is clear and unequivocal. Juror Striggles should not have

been on this jury.

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 It is impossible to tell whether bias from such a situation cuts for or against

the defendant, and a defendant should not be placed in the position of having to

demonstrate bias. Because in most instances demonstrating prejudice is difficult, if

not impossible, there should be a per se rule that would require a new trial when a

disqualified person serves on a jury. Thus, Boyd should be given a new trial.

Two Cases:

An Appeal from the Circuit Court in and for Broward County,
Andrew L. Siegel, Judge - Case No. 061999CF005809A88810
And an Original Proceeding – Habeas Corpus

Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region,
Suzanne Myers Keffer, Chief Assistant, Capital Collateral Regional Counsel,
Southern Region, and Scott Gavin, 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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