State of Florida v. Raymond Bright

Supreme Court of Florida
____________

No. SC14-1701
____________

STATE OF FLORIDA,
Appellant,

vs.

RAYMOND BRIGHT,
Appellee.

[June 16, 2016]

PER CURIAM.

This is an appeal from an order entered on Raymond Bright’s initial motion

to vacate his convictions of first-degree murder and sentences of death filed

pursuant to Florida Rule of Criminal Procedure 3.851. The State of Florida

appeals the postconviction court order to the extent that it granted Bright a new

penalty phase trial. Bright cross-appealed the postconviction court’s order to the

extent that it denied his challenges to the convictions. We have jurisdiction. See

art. V, § 3(b)(1), Fla. Const. As explained below, we affirm the postconviction

court’s order and remand this case to the circuit court for a new penalty phase

proceeding.
 FACTS AND BACKGROUND

Trial and Direct Appeal

A jury convicted Bright for the first-degree murders of Derrick King and

Randall Brown. Bright v. State, 90 So. 3d 249, 254 (Fla. 2012). The jury

recommended death by a vote of eight to four for the murders of both victims, and

the trial court sentenced Bright to death for both murders. Id. at 256.

On direct appeal, we previously detailed the facts leading to Bright’s death

sentences:

On February 18, 2008, Michael Majors went to the home of
fifty-four-year-old defendant Raymond Bright in Jacksonville,
Florida. Twenty-year-old Derrick King, sixteen-year-old Randall
Brown, and Bright were in the house. At approximately 8 p.m.,
Majors and Brown both left the home.
Brown returned to his mother’s home and, after receiving a
phone call, borrowed his mother’s rental vehicle and left her house
between 9 and 9:30 p.m. At approximately 11 p.m., Brown spoke
with his mother by phone and advised that he would be home shortly;
however, he never returned. At around 8 a.m. the next morning,
Majors attempted to call Brown on his cellular phone, but there was
no answer. Majors called Brown’s mother and was advised that
Brown had not returned. Majors then went to Bright’s house and,
having no response to his knock at the door, Majors climbed into the
house through an open window. Upon entering the family room,
Majors discovered the bodies of King and Brown.
Derrick King was lying face down on the carpet next to a sofa,
partially wrapped in a sleeping bag or comforter. The sofa was
saturated with blood on one end, which was adjacent to where King’s
head rested on the floor. The wall behind the sofa and the ceiling
above the sofa evidenced blood. An evidence technician testified
during trial that the blood on the ceiling was cast-off blood, [FN. 1]
and the pattern was consistent with someone being on the couch and
swinging his arm back.

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 [FN. 1] Cast-off blood is defined as droplets of
blood that are flung from a weapon so as to make a trail
of blood where it lands.

Randall Brown was found seated sideways in a recliner with his
head leaning up against a wall and a blanket covering his head. The
wall against which Brown’s body rested presented a pattern of blood
that radiated from his head, and there was also blood on the ceiling.
When crime scene technicians moved the recliner away from the wall,
a pool of blood was discovered on the floor. Above Brown’s head
was a framed picture with one side of the frame broken away. That
one side was indented, consistent with having been struck by
something round, such as a hammer.
Outside the house, the crime scene technicians located a loaded
nine-millimeter Smith & Wesson pistol, a loaded assault rifle, and a
pair of mechanic’s gloves. During a subsequent search of Bright’s
yard, technicians recovered a hammer that had been buried. DNA
testing on the hammer revealed two separate DNA profiles, one of
which was a major contributor and the other of which was a minor
contributor. During trial, the parties stipulated that the DNA of the
major contributor matched the known profile of Derrick King.
Randall Brown could not be excluded as the minor contributor. The
gloves did not test positive for blood. Further, no latent fingerprints
of value were found on the hammer, the nine-millimeter handgun, the
assault rifle, or their magazines or ammunition. No foreign DNA was
detected on the fingernail clippings of either victim.
At 7:30 a.m. on the morning of February 19 (the day that the
victims were discovered), Bright’s ex-wife picked him up at a church
near his home. The ex-wife testified that she and Bright had made
plans to secure the admission of Bright to a United States Department
of Veterans Affairs [(VA)] clinic for treatment of his cocaine
addiction. She testified that they had agreed to meet at the church
because she “was in fear of what was going on” at Bright’s house.
During the Spencer hearing, see Spencer v. State, 615 So. 2d 688 (Fla.
1993), the ex-wife testified that she and Bright had previously made
multiple calls to law enforcement—including the narcotics division of
the Jacksonville Sheriff’s Department and Crime Stoppers—to report
that Bright wanted certain individuals removed from his house
because they had essentially taken over the house for the purpose of

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selling drugs. While one officer suggested that Bright accompany the
police to the house and identify the persons who were allegedly
dealing drugs, Bright and his ex-wife refused to agree to this proposal
because they feared retaliation. [FN. 2]

[FN. 2] Bright’s sister, Janice Jones, also testified
during the Spencer hearing as to her efforts to remove
individuals who were staying in Bright’s house. When
asked what their names were, she replied Lavelle and
Derrick. During the guilt phase, Michael Majors testified
that Bright rented a room to an individual named Lavelle
Copeland, who was friends with Majors and King. Jones
managed to convince Copeland to call her and, when he
called, she informed him that she was coming to
Jacksonville and would bring the police with her.
Copeland responded that he would not leave until Bright
paid the money owed to him. When Jones offered to pay
the money so that Copeland would leave the house, he
responded, “You need to stay out of this. You don’t
know what you’re getting into. It’s between me and your
brother.” Copeland was not at Bright’s house on the
night of the murders because he was in jail.

After the ex-wife met Bright at the church on the morning of
February 19, she called a lawyer and arranged for Bright to speak with
homicide detectives the next day. However, at 1:45 a.m. on February
20, law enforcement arrived at the home of the ex-wife and Bright
was placed in custody. Subsequent to the arrest, the ex-wife disposed
of Bright’s bloody clothes because she did not want them in her
house.
Bright made statements to separate individuals with regard to
what allegedly occurred on the night of the murders. Prior to his
arrest, Bright informed friend and former coworker Benjamin Lundy
that he had “screwed up” and may have killed two people. Bright told
Lundy that the murders occurred after a confrontation erupted when
one of the victims accused Bright of stealing drugs. After his arrest,
Bright also described the events to Mickey Graham, who was in jail at
the same time with Bright on unrelated charges. According to
Graham, Lavelle Copeland had moved in with Bright, and he and
others were running a crack cocaine operation out of the house. [FN.

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3] Bright was afraid of them and felt threatened because they
possessed guns. Bright did not want them there and had called the
police in an attempt to remove them from the premises.

[FN. 3] On a table in the home, an evidence
technician found scales, money, and a “push rod,” which
is used to pack drugs into a pipe or a bong. However, no
drugs were found in the house other than 4.6 grams of
marijuana, which was discovered inside Derrick King’s
sneaker.

Bright told Graham that he went into the kitchen at 2 a.m. on
February 19. King was on the sofa and Brown was in the recliner.
Brown had a nine-millimeter handgun in his hand and started waving
it around. King rose from the sofa and removed the gun from
Brown’s hand. Bright saw an opportunity and attempted to take the
gun away from King. The men struggled and the gun discharged.
[FN. 4] The gunshot startled King and caused him to release the
handgun. Bright then pointed the gun at King and attempted to shoot
him, but the gun misfired. Bright dropped the weapon and attempted
to run out of the house, but he tripped and fell. He grabbed a hammer
that was within reach, turned around, and commenced striking King,
knocking him back toward the sofa where King had previously been
lying down. When Bright turned around, he saw that Brown was
about to pick up the handgun. Bright then began to strike Brown with
the hammer. The next time Bright turned toward the sofa, he saw
King reaching for an assault rifle. At that time, Bright again struck
King with the hammer. When Bright stopped, he could still hear King
and Brown breathing and gurgling, but then the room became silent.
Bright described his actions to Graham as having “lost it.”

[FN. 4] In the vicinity of King’s body was a
section of carpet that appeared to be stained with gunshot
residue. Testing on the carpet was positive for gunshot
residue, and a firearms expert testified that, based upon
the location of the residue, a weapon had been fired
within six inches of the carpet. From that stain, the
evidence technicians traced a bullet trajectory and
ultimately discovered a bullet lodged in the wall near the
front door of the house. However, neither of the victims’

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 hands tested positive for gunshot residue. A firearms
expert confirmed that the bullet lodged in the wall had
been fired from the nine-millimeter handgun that had
been discovered in the yard.

The autopsies of King and Brown were conducted by different
medical examiners. However, both independently concluded that
each victim died from blunt impact trauma to the head. King was
struck thirty-eight times about the neck and head, and twenty
additional times on his body, for a total of fifty-eight individual
injuries. The wounds were consistent with a hammer-type instrument,
and injuries were present on the front, back, top, left, and right sides
of King’s head. Further, the injuries to his body were consistent with
defensive wounds. The medical examiner testified that the injuries
were consistent with King defending himself against being hit in the
head with a hammer and eventually succumbing to the attack.
Toxicology results were positive for cocaine and marijuana in King’s
system.
Brown’s skull was fractured in eight to ten separate locations,
and he also received fourteen other independent injuries to his body.
The injuries to the body, which included a fractured ulna, were
consistent with defensive wounds. Based upon the number of injuries
to Brown’s body, the medical examiner opined that the attack was not
brief, but lasted for minutes. Based on the nature of the defensive
wounds, the medical examiner concluded that the only injury that
would have been fatal on its own, and would have rendered Brown
unconscious immediately—a depressed skull fracture—could not have
been the first injury inflicted. The medical examiner testified that all
of the injuries inflicted upon Brown would have been painful, and
they were consistent with a scenario in which Brown was either sitting
in a recliner, or fell back onto a recliner, and was repeatedly hit with a
hammer as he tried to defend himself. No alcohol or drugs were
detected in Brown’s system. The jury found Bright guilty of two
counts of first-degree murder.
During the penalty phase, the parties stipulated that in 1990,
Bright was convicted of armed robbery. A Pensacola police sergeant
testified that Bright was arrested for robbing a convenience store
while using a knife. During the robbery, Bright leaned over the
counter in an attempt to remove money from the register, but he never
went behind the counter. The State also introduced victim impact

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statements from Randall Brown’s mother, aunt, and sister, and
Derrick King’s grandmother, cousin, and sister.
Bright presented the testimony of his sister, Janice Jones, who
stated that Bright and another brother had taken care of her when she
was young. Bright had also stepped in and served as the father that
her daughter never had. She testified that Bright repaired the roof on
her house and saved her $3000 after Hurricane Ivan caused damage.
There was an eighteen-month waiting list for roofers when Bright
performed the repairs.
Attorney and former [M]arine James Hernandez testified that
Bright served nine-plus years in the United States Marine Corps
(USMC), during which he served as a fighter jet mechanic.
Hernandez described Bright’s multiple promotions during his service
in the USMC. Hernandez testified that Bright received two separate
awards for good conduct, a prerequisite of which is three continuous
years of honorable service in the USMC. Hernandez also explained
that Bright received a Meritorious Mast Award for noticing a problem
on a jet upon take-off which required it to land, thereby preventing a
“tragic mishap.” Bright received two separate honorable discharges
from the USMC, and one general discharge under honorable
conditions. The reason for the general discharge was listed as
“Alcohol Abuse Rehabilitation Failure.”
Bright’s girlfriend[, Maxine Singleton,] and two of his former
coworkers, Benjamin Lundy and Brian Williams, testified that Bright
struggled with drugs and alcohol. The girlfriend stated that when she
first met Bright, he was smart, intelligent, hardworking, and clean.
However, in November and December of 2007, she noticed that he
was continuously fatigued and no longer wanted to do anything. She
stated that “[a]fter the drugs took him over he couldn’t do nothing, his
whole life was just gone.” The girlfriend testified that when Bright
was away from his house, he wanted to seek assistance and clean up
his life. However, she observed that as soon as he returned to the
house, “that was it.” Brian Williams testified as to one incident where
Bright’s ex-wife called and asked him to come to her house to check
on Bright. When Williams arrived, Bright was intoxicated and upset,
and he threatened suicide. Williams contacted the police, who
responded and spoke with Bright, but then left. Lundy testified that
he suspected Bright was involved in something more serious than
alcohol when Bright started to miss work, which was out of character
for him. In addition to being coworkers, Williams and Lundy also

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considered Bright to be a friend. Lundy stated that when he or anyone
else needed help, Bright was always available. Bright helped
Williams surprise his children one Christmas by bringing the children
the bicycles that Williams had previously hidden.
Lester Baker, who supervised Bright at a mattress
manufacturing company during the early 1990s, and Lundy and
Williams, who previously worked with Bright at a commercial diesel
truck shop, testified that Bright was likable, dedicated, and a hard
worker. Lundy and Williams stated that Bright mentored young
mechanics and would often volunteer to stay late to complete a project
but not charge the shop for the time. They also testified that Bright
never appeared to be under the influence of drugs or alcohol while at
work.
Finally, Bright presented the testimony of the records custodian
of the Jacksonville Sheriff’s Office jail, who established that there
was no record of any disciplinary reports for Bright.
On September 1, 2009, the jury recommended by a vote of
eight to four that Bright be sentenced to death for the murders of
Derrick King and Randall Brown.
During the Spencer hearing, in addition to the previously
discussed testimony of Bright’s sister and his ex-wife, Bright
presented the testimony of Dr. Ernest Miller, who diagnosed Bright as
suffering from substance abuse along with a dependency problem
involving alcohol and cocaine. Miller noted that there was a history
of alcohol abuse in the Bright family, which made Bright five to eight
times more likely to develop a substance abuse problem. Miller
testified that during Bright’s various attempts in rehabilitation, his
addiction issues were treated, but the underlying emotional issues
were not. Therefore, only half of the problem was addressed, and
Bright would thereafter go through the “revolving door” of
alcoholism. Miller stated that Bright’s extensive criminal history—at
least twenty-five convictions—appeared to be connected with feeding
his drug habit. While Bright asserted to Miller that he acted in self-
defense when he killed King and Brown, Miller explained that use of
alcohol and cocaine could have caused Bright to be paranoid and led
him to believe that the victims intended to harm him even if they did
not.
Bright’s sister, Janice Jones, testified that their father was a
binge drinker who would disappear for several days at a time. She
first noticed Bright’s drinking problem when he was discharged from

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the [M]arines. She believed that he became involved with cocaine
after a trip to North Carolina, when an attempt to reconcile with his
wife failed. Jones testified that when Bright is sober, he is “amazing,”
but when he drinks or is on drugs, she does not like him, and he does
not like himself.
Attorney James Hernandez, who briefly represented Bright in
these proceedings, and attorney Michael Bossen, whom Bright and his
ex-wife called the morning after the murders, both testified that Bright
was remorseful and cried when he tried to recount the events
surrounding the murders. Bossen also related what Bright told him:

That these people were dealing drugs out of the house.
That they paid the rent in drugs, some money but mostly
drugs. . . . [Bright] was threatened all day the day before
the killings. And then he was—he himself was
threatened, that they were threatening to kill him if he
didn’t basically comply with whatever they were doing.
So he basically told me that he tried to get them out and
whenever he tried to get them out they threatened him,
there were guns. . . . And then basically he said that
between 5:00 and 7:00 [a.m.] there was an altercation, he
used the hammer to defend himself, the hammer was still
in the house. And that he believed that he as a former
[M]arine he fought to eliminate that threat.

Finally, a letter from inmate Charles Ferguson was placed in
evidence. In the letter, Ferguson stated that Bright had taught him
how to read and write, and about God. He also stated that Bright had
become a father figure to him.
On November 19, 2008, the trial court sentenced Bright to
death for the murders of King and Brown. The court found the same
aggravating and mitigating circumstances for each victim. In
pronouncing Bright’s sentence, the trial court determined that the
State had proven beyond a reasonable doubt the existence of the
following statutory aggravators: (1) He had previously been convicted
of a felony involving the use or threat of violence to the person, §
921.141(5)(b), Fla. Stat. (2008) (the 1990 conviction for robbery)
(great weight); (2) He had previously been convicted of a felony
involving the use or threat of violence to the person, § 921.141(5)(b),
Fla. Stat. (2008) (the contemporaneous murder of the other victim)

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(great weight); and (3) the murder was especially heinous, atrocious,
or cruel (HAC), § 921.141(5)(h), Fla. Stat. (2008) (great weight).
The trial court found that one statutory mitigating circumstance
had been established—the murders were committed while Bright was
under the influence of an extreme mental or emotional disturbance, §
921.141(6)(b), Fla. Stat. (2008) (some weight). In support of this
mitigating circumstance, the trial court relied on Dr. Miller’s
testimony that Bright’s underlying emotional problems were never
treated, and the testimony of Bright’s girlfriend and Brian Williams
with regard to the changes in Bright’s behavior toward the end of
2007, including the threat of suicide.
The trial court also found nineteen nonstatutory mitigating
circumstances: (1) a long and well-documented history of drug abuse
(some weight); (2) Bright repeatedly sought help for his problems
(some weight); (3) remorse (little weight); (4) Bright was afraid of the
victims and took steps to remove them from his house (little weight);
(5) ten years of service in the USMC with two honorable discharges
and a third discharge under honorable circumstances (considerable
weight); (6) Bright has skills as a mechanic and served as an aviation
mechanic in the USMC (some weight); (7) Bright’s actions as a
USMC aviation mechanic likely saved lives (some weight); (8) Bright
mentored young mechanics (some weight); (9) Bright was a good
employee (some weight); (10) Bright was a loving and giving
boyfriend (slight weight); (11) Bright is a good brother (some weight);
(12) Bright was a good father, and imposition of the death penalty
would have a serious, negative impact on others (slight weight); (13)
Bright shares love and support with his family (slight weight); (14)
Bright was a good friend (slight weight); (15) Bright has been an
exceptional inmate (some weight); (16) Bright exhibited good
behavior throughout the court proceedings (slight weight); (17) Bright
maintained gainful employment (considerable weight); (18) Bright is
amenable to rehabilitation and a productive life in prison (slight
weight); and (19) Bright has bonded with another inmate and taught
him how to read (slight weight). [FN. 5]

[FN. 5] The trial court found that the following
mitigating circumstances were not proven: (1) the
capacity of Bright to appreciate the criminality of his
conduct or to conform his conduct to the requirements of
law was substantially impaired; (2) Bright provided

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 information that assisted with the resolution of the case;
and (3) Bright has attempted to have a positive influence
on family members despite his incarceration.

The trial court concluded that the established aggravating
circumstances substantially outweighed the mitigating circumstances
and imposed a sentence of death for each of the murders. However,
the sentencing order noted that, had the HAC aggravating
circumstance not been present, “this Court may have found a life
sentence to be appropriate.” When pronouncing the sentencing in
open court, the trial court further stated:

And Mr. Bright, I don’t mind telling you that I take no
delight in imposing the [death] sentence[s] in this case.
Quite frankly, but for the heinous and atrocious and cruel
aggravator in this case, I would not be imposing [the
sentences] that I am going to impose.

Id. at 252-57.

In his direct appeal to this Court, Bright claimed that: (1) the prosecutor

improperly commented upon Bright’s right to remain silent; (2) the trial court

improperly found and weighed as two separate aggravating circumstances his 1990

conviction for robbery and his conviction for the contemporaneous murder of the

other victim; (3) the trial court improperly accorded the HAC aggravating

circumstance great weight in each of the murders; and (4) Florida’s death penalty

statute is unconstitutional in light of the decision of the United States Supreme

Court in Ring v. Arizona, 536 U.S. 584 (2002). See Bright, 90 So. 3d at 258-62,

64 n.7. We also evaluated the sufficiency of the evidence and the proportionality

of Bright’s death sentences. Id. at 257, 262. Ultimately, we affirmed Bright’s

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convictions and sentences. Id. at 265. The United States Supreme Court

subsequently denied Bright’s petition for a writ of certiorari. Bright v. Florida, 133

S. Ct. 300 (2012).

Bright’s Rule 3.851 Motion

Pursuant to Florida Rule of Criminal Procedure 3.851, on November 6,

2013, Bright filed a timely amended motion to vacate his judgment and sentences.

In relevant part, Bright claimed that his counsel were unconstitutionally ineffective

during both the guilt and penalty phases of his trial and that he was deprived of a

fair trial by the cumulative effect of any errors. After holding a Huff1 hearing, the

postconviction court granted an evidentiary hearing on the ineffective assistance of

counsel claims, during which Bright presented twenty-one witnesses and the State

did not present any witnesses.2

1. Huff v. State, 622 So. 2d 982 (Fla. 1993).
2. Bright presented the expert testimony of Dr. Harry Krop and Dr. Stephen
Gold, clinical psychologists; Dr. Robert Ouaou, a neuropsychologist; Dr. Eugene
Scheureman, the medical examiner who performed the autopsy on King’s body;
Dr. Daniel Buffington, a toxicologist; Detective Brookins, the State’s crime scene
detective from trial; and Janice Johnson and Michael Knox, experts in crime scenes
and blood spatter. With regard to lay witnesses, Bright presented the testimony of
Janice Bright Jones, his sister who testified during trial; Michael Bossen, his
original attorney; Refik Eler, his second attorney; Richard Kuritz, his ultimate lead
counsel; Isidore Knight and Samuel Knight, his childhood neighbors; Brian
Williams; Mickey Graham; Detective Cesar Parrales; Tenneka Bright-Lewis, his
daughter; Maxine Singleton, his girlfriend who testified during trial; Valerie
Kemp; and Charity Kemp.

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 Although the postconviction court granted Bright’s penalty-phase ineffective

assistance of counsel claims and his penalty-phase cumulative error claims, it

denied Bright’s remaining claims. As a result, the postconviction court granted

Bright a new penalty phase. The State appealed the postconviction court order to

the extent that it granted claims resulting in a new penalty phase and Bright cross-

appealed to the extent that it denied certain claims pertaining to the guilt phase of

his trial.3 This review follows.

ANALYSIS

State’s Appeal

In his amended motion for postconviction relief, Bright claimed that he was

deprived of his Sixth Amendment right to effective assistance of counsel during

the penalty phase of his trial. Specifically, Bright claimed that his counsel

rendered ineffective assistance in failing to investigate and provide sufficient

background information, including school and mental hospitalization records, to

the mental health expert his counsel retained. He further claimed that his counsel

were ineffective in failing to conduct an adequate mental health investigation and

3. Bright did not appeal the denial of his claims that: (1) the State violated
Brady v. Maryland, 373 U.S. 83 (1963); (2) the State violates the Eighth
Amendment through its arbitrary use of discretion in selecting which cases to seek
the death penalty for in Duval County; and (3) Florida’s death penalty statute
violates the Eighth Amendment because it does not require a unanimous jury
recommendation of death.

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failing to present the results of that investigation to the jury and sentencing court

for the purposes of mitigation.

Although the postconviction court heard testimony from several witnesses

pertinent to these claims, one of Bright’s penalty phase counsel passed away before

the evidentiary hearing and consequently was unavailable to testify. Ultimately,

the postconviction court agreed with Bright and granted him relief in the form of a

new penalty phase. On appeal, the State contends the postconviction court erred.

We disagree with the State and affirm the postconviction court’s order for the

following reasons.

Strickland Standard of Review

The Sixth Amendment to the United States Constitution provides that “In all

criminal prosecutions, the accused shall enjoy the right . . . to have the assistance

of Counsel for his defence.” Amd. VI, U.S. Const. This right, which was

incorporated to the States through the Due Process Clause of the Fourteenth

Amendment, includes the right to effective assistance of counsel. See McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970); see generally Gideon v. Wainright,

372 U.S. 335 (1963) (incorporating Sixth Amendment right to assistance of

counsel to the States).

However, not all ineffective assistance of counsel is unconstitutional. For

this reason, a defendant seeking relief on this basis must establish both that his

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penalty phase counsel’s performance was deficient and that the deficient

performance prejudiced him so as to deprive him of a reliable proceeding. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Hoskins v. State, 75 So. 3d

250, 254 (Fla. 2011). Because both prongs of the Strickland test present mixed

questions of law and fact, this Court employs a mixed standard of review,

reviewing the postconviction court’s legal conclusions de novo, but deferring to

the postconviction court’s factual findings that are supported by competent,

substantial evidence. See Mungin v. State, 79 So. 3d 726, 737 (Fla. 2011); Sochor

v. State, 883 So. 2d 766, 771-72 (Fla. 2004).

Postconviction Evidentiary Hearing

During the Spencer hearing, Dr. Miller suspected, but had no proof, that

Bright’s substance abuse and related prior convictions reflected deeper emotional

issues and mental health struggles. The evidence presented in postconviction

confirmed Dr. Miller’s suspicions for the first time. Indeed, postconviction

evidence revealed that Bright once lamented “I hope not[,] but if I do I know

where to come,” when asked whether he needed mental health treatment. The truth

is that Bright was quite familiar with mental health problems as he had previously

been treated on multiple occasions from 1983 until 1997.

Most notably, records reveal that Bright had at least one incident in which he

was involuntarily committed to a mental health institution because he was thought

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to be suicidal, a process commonly referred to as being “Baker Acted.”4

According to the Baker Act record, dated June 26, 1997, Bright had exhibited

erratic behavior, including destroying furniture, walking in front of cars, and

having sleep disturbances. During his involuntary commitment, Bright was

diagnosed with depressive disorders, for which he was prescribed antidepressant

medication. Furthermore, while the Baker Act record indicated that Bright did not

appear suicidal or homicidal during his evaluation, the record nevertheless

indicated that Bright should be closely observed for depressed, agitated, and

suicidal behavior.

Furthermore, in a 1994 Florida Department of Corrections (DOC) initial

psychological screening, Bright reported that he had seen a psychiatrist once every

two weeks and that he was diagnosed with depression, anxiety, and bipolar

disorder. In connection with those diagnoses, Bright reported to the DOC that he

was prescribed Benadryl for three years and had taken stress medication up until

1992. During the DOC screenings, Bright was also observed to be nervous and

stuttering. Moreover, Bright reported to the DOC, and his sister corroborated

during the postconviction evidentiary hearing, a family history of mental health

4. Although there are no corresponding medical records before us, there was
evidence to indicate that Bright self-reported that he had been involuntarily
committed on one other occasion.

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problems—two of his paternal aunts were previously committed to mental health

wards for extended periods of time.

Bright’s school records were not much better. Contrary to penalty-phase

testimony, postconviction records indicated that Bright was a poor student. In

terms of quarterly averages, Bright’s school records were littered with Fs.

Somehow, Bright was able to yield marginally better year-end grades and pass

each year, but not without the presence of many Cs and Ds. School records

revealed that Bright’s teachers expressed concern about him on numerous

occasions. An early school record noted that Bright’s “attention span is very

short.” Another record indicated that in seventh grade Bright “was nervous and

has a speech impediment. He is very playful.” Bright’s ninth grade teacher noted

that Bright “is very playful and childish. He does not perform as he is capable.” In

addition, Bright’s punctuality and attendance in school were lackluster.

Bright’s low academic performance was not the result of low intelligence,5

but rather the effect of a horrific childhood. Although she had testified during the

penalty phase, Janice Bright Jones, Bright’s sister, testified once again during the

postconviction evidentiary hearing, but this time painting a far more complete

5. Bright was of average to high intelligence. He scored a 100 on an IQ test
and was thought of as rather intelligent by experts who testified during the
evidentiary hearing.

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picture of the troubled environment into which she and Bright watched their

childhoods vanish.

Bright’s childhood home was destitute. It did not have running water,

adequate heating, trash collection, or toothpaste. Instead, the children would

routinely fill up a bucket with water from the property next door, incinerate their

trash, and brush their teeth with baking soda. They bathed themselves in the sink

and manually filled the toilet with water.

Furthering the detrimental conditions of Bright’s home, it doubled as a

junkyard operated by Bright’s father. Bright’s father would make him and his

siblings work long hours at their junkyard, before and after school. Bright began

working when he was just five years old. He would toil in the junkyard, stripping

cars down to their parts. The demanding nature of the work and his father were

unforgiving. For example, Bright was never able to participate in pickup

basketball games with other children in the neighborhood or even meaningfully

associate with other children. Furthermore, Bright suffered an eye injury while

working that has caused him to excessively blink in one eye for the rest of his life.

On another occasion, when Bright was in the second grade, a door at school was

closed on his hand and his father made him work in the junkyard despite receiving

stitches and losing the top of his thumb. To add insult to injury, although Bright’s

- 18 -
father told Bright and his siblings that he was setting aside savings for their work,

they were never actually compensated.

Instead of accruing savings, Bright only accrued punishments to be

dispensed in bulk. Bright was not punished one incident at a time; rather, his

father would “add it up” for later. Thus, when Bright’s father would actually

punish Bright, he would beat him for hours at a time in the bedroom, drawing

blood, leaving welts, and rendering him unconscious. He would beat Bright with

an electrical cord, his leather belt, or his hand, and say that the beatings were

compelled by the Bible.

To make matters worse, Bright was beaten for common childhood behavior,

such as wetting the bed or stuttering. Indeed, Bright’s stutter tremendously

aggravated his father, which would only further a vicious cycle because Bright

stuttered more when he was in fear of his father. Moreover, while Bright’s father

required Bright to work in the junkyard in the mornings and caused Bright to be

late for school, he would then beat Bright for tardiness. On another occasion,

Bright and his siblings were beaten severely because they forgot to obtain clean

water from their neighbor.

Bright’s father also instilled fear in the family with his gun. He would say

things about killing Bright’s mother, which genuinely concerned the children

because he kept a loaded gun around the house. Indeed, when he reached his

- 19 -
tipping point, Bright’s father would fire the gun around the house. One time,

Bright’s father reportedly fired a shot in the direction of Bright’s older brother who

was attempting to run away. Fearing that her father would act on his threats,

Bright’s sister would take advantage of their father’s drunkenness to protect

everyone by hiding their father’s loaded gun.

Bright’s household also featured spousal abuse. Specifically, Bright’s sister

remembered that their father raped their mother at least twice. She recounted a

particular occasion where their father entered the house and instructed the children

to wait in the car just before they were supposed to depart as a family for church.

Bright’s sister recounted hearing her mother crying and screaming in pleas for the

father to get off of her. On another occasion, the mother called for help from a

neighbor. Moreover, Bright’s sister estimated that her father would physically and

verbally abuse her mother at least once a month.

Furthermore, instead of protecting Bright, his older brother would only

contribute to Bright’s nightmarish childhood. Specifically, he would mimic their

father and inflict abuse on Bright. Bright’s brother reportedly choked Bright to

unconsciousness at least twice, and even sexually abused him.

Not only did the evidentiary hearing reveal this abuse, but it also explained

for the first time how this abuse affected Bright by causing him severe trauma

leading to several mental disorders. Dr. Stephen Gold, a psychologist who

- 20 -
specializes in trauma and analyzing adults who have been abused as children,

opined that Bright experienced constant depression and Obsessive Compulsive

Disorder (OCD) as early as elementary school, which he correlated with Bright’s

poor performance in school. Ultimately, Dr. Gold testified that Bright’s childhood

caused him to suffer from major depression, OCD, social phobia, substance abuse,

and severe Post Traumatic Stress Disorder (PTSD).

Dr. Gold defined “trauma” as a life threatening event, an event with

potential for serious physical harm, or an event involving sexual violation.

According to Dr. Gold, trauma derails development, often adversely impacts

concentration and schooling, and creates chronic anxiety. PTSD leads to three

major symptoms: (1) unwanted thoughts and nightmares; (2) chronic anxiety; and

(3) the tendency to shut down emotionally. Dr. Gold explained that PTSD causes

the human reflex for survival in dangerous situations to stay constantly elevated or

easily triggered.

In evaluating Bright, Dr. Gold testified to employing the Adverse Childhood

Experiences (ACE) study, which identifies ten factors that suggest trauma and

adverse environments. The factors indicative of trauma are: (1) childhood physical

abuse; (2) childhood verbal abuse; (3) childhood sexual abuse; (4) childhood

physical neglect; (5) childhood emotional neglect; and (6) domestic violence in the

household. The factors indicative of an adverse environment are: (7) parents who

- 21 -
are separated or divorced; (8) growing up in a household where someone is

incarcerated; (9) growing up in a household where there is someone with a serious

alcohol or drug problem; and (10) growing up in a household where there is

someone with serious mental illness. If a person encounters just one of those

factors, then that person is considered significantly more at risk for psychological

and mental problems. Furthermore, the more factors applicable, the higher the

risk. For instance, an individual who has experienced five ACE factors is

predicted to live twenty years less than an individual without any ACE factor.

Bright faced and experienced all ten factors. According to Dr. Gold, the

applicability of all ten factors is highly unusual. Indeed, he could not think of

another case in his twenty-five years of experience that reflected the severity of

Bright’s case.

In reaching his conclusions, Dr. Gold testified that he was most concerned

by the fact that Bright grew up in a situation that could have easily been referred to

as child labor and slave labor. He was also concerned by evidence that Bright was

beaten for long periods of time, and left with welts, bleeding, and bruising; that

Bright’s father constantly put Bright down; and that Bright was not allowed to

socialize with other children. Dr. Gold also opined that Bright would stutter when

afraid and when confronting an authority figure, and that Bright did not stutter as

much in school because he felt safe there. In Dr. Gold’s view, Bright constantly

- 22 -
felt on edge as a result of his PTSD. Dr. Gold opined that Bright’s substance abuse

can be traced to his childhood trauma because it was a way for Bright to feel

comfortable and reduce his constantly elevated anxiety. In the end, Dr. Gold

lauded the tremendous effort Bright made to establish a solid adaptive life despite

his horrific upbringing.

However, this evidence was never presented during Bright’s trial. The

omission of this evidence can be traced to Bright’s now-deceased penalty phase

counsel, who retained Dr. Krop to evaluate Bright’s competency to stand trial, as

well as to potentially conduct more mitigation work. In an August 10, 2008, letter

to defense counsel, Dr. Krop advised him in pertinent part that Bright was

competent to proceed, but asked whether he should conduct a more comprehensive

mitigation evaluation and requested additional background information and

records, particularly his VA psychiatric records.

Ten days later, Dr. Krop followed up by providing defense counsel with a

detailed history report derived from his discussions with Bright, alerting counsel to

a history of family mental health problems, bipolar disorder, as well as a prior

involuntary commitment:

In reviewing his psychiatric history, Mr. Bright reported that he
received treatment at the VA for about three years in the early 80s.
He was treated primarily for anxiety at the Gulf port [sic] VA Hospital
but indicates that he also received a diagnosis of Bipolar Disorder. He
has also participated in anger management and substance abuse
treatment and has taken Xanax and another medication which he

- 23 -
 cannot recall. He described a familial history of mental illness on his
father’s side and also indicates that two aunts were hospitalized for
psychiatric disorders. He states that he was Baker Acted in 1996 or
1997 because his wife thought he wanted to commit suicide.
Although he suggests that “the thought has crossed my mind,” he
insists that he has never been “seriously” suicidal.[6]

Following that letter, defense counsel’s case management report indicates

that he conducted a further preliminary mitigation investigation into Bright’s

criminal history, determining that most of his arrests were drug related. In

addition, he indicated that he left in his files a “mitigation manual” and Bright’s

medical records from a stay at the Biloxi, Mississippi, VA hospital. Inexplicably,

however, the investigation ended there.

6. In addition, the criminal history section of Dr. Krop’s report indicated
that Bright admitted to being arrested four or five times. The substance use history
section detailed rampant alcohol and drug use from when Bright entered the
military at age nineteen until 1999. Although it appeared that Bright was sober
from 1999 to 2007, he began consuming drugs and alcohol after his separation
from his wife in 2007 until his arrest for the murders in 2008.
However, the report did not suggest any concerns and even dispelled some
potential mitigation leads with regard to the other categories. For instance, the
childhood history section indicated that Bright “was raised in an intact, nuclear
home by both natural parents and reported a normal childhood development, free
of abuse and trauma . . . . Mr. Bright was never exposed to domestic violence in
his family of origin.” Likewise, the academic history section noted that Bright
“graduated on time, with average grades. He never required specialized course
work and was not a disciplinary problem in the academic setting.” In its entirety,
the medical history section explained that “Mr. Bright denied any significant
medical history. Specifically, Mr. Bright denied a history of head trauma, seizure
activity, syncope, major surgery, and major illness.”

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 On July 23, 2009—nearly one year after his last letter—Dr. Krop sent

defense counsel another letter, once again requesting the same documents:

I am in receipt of your recent letter wherein you indicated that such
workup would be desired, and accordingly, Mr. Bright was seen for an
updated interview.

....

Accompanying your cover letter were his records from the VA,
which were reviewed by this examiner. Although the defendant
previously indicated that he received treatment at the VA for about
three years in the early 80s, the records you provided indicate that he
was primarily treated for alcohol abuse in 1997 and 1998. He was
also assessed as being Agoraphobic with panic attacks. It is possible
that his earlier records may have been destroyed.

As noted above, I would be happy to pursue a mitigation
evaluation. Accordingly, I would like to review the following
documents:

- All depositions and supplemental police reports
- Military records
- Records related to prior arrests
- Medical records
- Additional psychiatric records (Mr. Bright indicates that he was
Baker Acted on two occasions).

I would also like to interview family members and would
appreciate your assistance in coordinating these interviews. I would
also suggest a neuropsychological screening to determine whether
further neurological evaluations are necessary.

On September 16, 2009, Dr. Krop sent defense counsel what appears to be the last

correspondence between them, noting that counsel had not arranged the family

interviews that had been requested.

- 25 -
 Indeed, until the postconviction evidentiary hearing, Dr. Krop had never

seen Bright’s school records, DOC psychological screenings, or Baker Act records.

Following his last letter, inexplicably he was not contacted again until

postconviction proceedings began. In fact, Dr. Krop testified that he was

embarrassed to have found out that Bright had been convicted and sentenced to

death through Bright’s postconviction counsel.

Dr. Krop testified that Baker Act records would have supported the opinion

that Bright is an emotionally unstable individual. Moreover, the family interviews

he sought were important because, according to him, forensic clients tend to

minimize revealing abuse because they fear losing necessary family support.

However, Dr. Krop testified that he would not have felt comfortable testifying with

respect to mitigation at the time based on the limited information he had been

provided by defense counsel.

Unfortunately, the communication failures were not limited to Dr. Krop, but

were a cancer throughout Bright’s penalty phase. For instance, Bright’s lead

counsel was predominantly out of the loop. Indeed, lead defense counsel was

hampered, as was Dr. Krop, and counsel scrambled to present the limited evidence

of substance abuse presented during the Spencer hearing. The record reveals that

on September 30, 2009—after the jury had already recommended that Bright be

sentenced to death—lead defense counsel emailed his co-counsel, imploring that

- 26 -
“We still need to put some substance abuse testimony together.” Finally, on

October 1, 2009, lead defense counsel emailed the State and indicated that the

records in co-counsel’s file suggested that leads pertaining to Bright’s prior stays at

the Veterans Affairs hospitals were never pursued:

I went through his V.A. records yesterday and saw an entry that he
has been inpatient there before and in some other program 3 times.
Apparently, that information was never obtained so I am trying to
track that down.

Even though he was lead defense counsel, the surviving attorney testified

that he was unaware that Bright had endured physical abuse and that he had never

seen Bright’s school records, DOC psychological screenings, or Baker Act records.

He also had never seen the correspondence between Dr. Krop and co-counsel,

including Dr. Krop’s report detailing the mental health history concerns, which he

termed “red flags” that amounted to “missed opportunities.” Lead counsel further

testified that he did not know why Dr. Krop did not testify during either the penalty

phase or Spencer hearing, and that he did not recall any discussions with his co-

counsel about why Dr. Krop may not have been a good witness. Additionally, he

testified that he was not aware of whether a neurospsychology or trauma expert

was consulted, but believed such experts would have been important to consult in

this case.

Bright’s sister’s postconviction evidentiary hearing testimony further

revealed problems with the mitigation investigation. She explained that she had

- 27 -
neither been informed of nor understood the importance of mitigation in capital

cases. According to her, despite the fact that she testified during both the penalty

phase and Spencer hearing, Bright’s postconviction mitigation specialist was the

first person who explained the concept of mitigation to her. Had she known its

importance, however, she would have offered more detailed testimony during the

penalty phase and Spencer hearing. She further explained that she had only been

asked general questions about Bright’s schooling and personality—she was never

asked anything specific about abuse or their childhood difficulties. Instead, she

had been asked to testify only that Bright was a good person who struggled with

his drug and alcohol addictions.

When pressed by the State, she also noted that evolving domestic violence

and child abuse standards were partially to blame for her decision to not discuss

the abuse in response to Spencer hearing questioning concerning their father. She

explained that although today she considers such abuse criminal, she did not

consider it so at the time of their childhoods. Additionally, she conceded that she

testified to the jury about “whoopings,” but noted that it was not to a level of detail

and that she did not tell the jury that electrical cords were part of the beatings

because she did not recognize the importance of the details.

- 28 -
 Deficient Performance

To establish a Strickland deficiency, the defendant must prove that “counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” See 466 U.S. at 687. There is a strong

presumption, however, that trial counsel’s performance was not deficient. Id. at

689. The defendant carries the burden to “overcome the presumption that, under

the circumstances, the challenged action ‘might be considered sound trial strategy.’

” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Furthermore,

“[j]udicial scrutiny of counsel’s performance must be highly deferential.” Id.

Indeed, “[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.” Id. For instance, we have explained that

“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).

Thus, with regard to the penalty phase, “[t]he failure to investigate and

present available mitigating evidence is a relevant concern along with the reasons

for not doing so.” Rose v. State, 675 So. 2d 567, 571 (Fla. 1996). While counsel’s

- 29 -
decision to not present certain mitigation evidence may at times qualify as a

tactical decision within his or her discretion, “[i]t is unquestioned that under the

prevailing professional norms . . . counsel ha[s] an ‘obligation to conduct a

thorough investigation of the defendant’s background.’ ” See Porter v. McCollum,

558 U.S. 30, 39 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000));

Hannon v. State, 941 So. 2d 1109, 1124 (Fla. 2006). “Among the topics that

counsel should consider presenting in mitigation are the defendant’s medical

history, educational history, employment and training history, family and social

history, prior adult and juvenile correctional experience, and religious and cultural

influences.” Parker v. State, 3 So. 3d 974, 985 (Fla. 2009) (emphasis added).

Consistent with that precept, this Court has found counsel’s performance deficient

where counsel “never attempted to meaningfully investigate mitigation,” although

substantial mitigation could have been presented. Asay v. State, 769 So. 2d 974,

985 (Fla. 2000).

As to counsel’s duty of securing evidence of mental health mitigation, this

Court has recognized that “[w]here available information indicates that the

defendant could have mental health problems, ‘such an evaluation is fundamental

in defending against the death penalty.’ ” Jones v. State, 998 So. 2d 573, 583 (Fla.

2008) (quoting Arbelaez v. State, 898 So. 2d 25, 34 (Fla. 2005)). In light of its

significance, “a reasonable investigation into mental mitigation is part of defense

- 30 -
counsel’s obligation where there is any indication that the defendant may have

mental deficits.” Hurst v. State, 18 So. 3d 975, 1010 (Fla. 2009) (emphasis added).

In fulfilling this critical obligation, counsel must not ignore pertinent avenues for

investigation of which he should have been aware. See Porter, 558 U.S. at 40.

In a 168-page order, the postconviction court found that Bright’s penalty

phase counsel performed deficiently on multiple grounds. With regard to

counsel’s cooperation with Dr. Krop, the postconviction court found that the

failure to follow up with and present Dr. Krop could not have been a strategic

decision. Furthermore, the postconviction court found that an unfavorable opinion

by Dr. Krop could not have explained the failure to present Dr. Krop because he

was never afforded the opportunity to render an informed opinion. Similarly, the

postconviction court found that the failure to collect or present Bright’s school

records, DOC psychological screenings, and Baker Act records could not have

been a strategic decision. With regard to the testimony of Janice Bright Jones and

Dr. Gold, the postconviction court found that the omission of their testimony could

not have been a strategic decision because lead defense counsel testified that he

was not aware of the abuse Bright suffered. Likewise, the postconviction court

found that all the evidence discovered by Bright’s postconviction mitigation

specialist demonstrated that his penalty-phase counsel performed deficiently in

failing to hire a mitigation specialist.

- 31 -
 The State contends that the postconviction court erred because it did not

accord Bright’s now-deceased counsel the presumption of reasonable trial strategy

and instead relied on the fact that it did not have the benefit of his testimony. The

State maintains that Bright’s counsel purposely, following their investigation,

made a strategic decision to present a “good guy” mitigation case rather than a

mental health mitigation case. We disagree.

In support of its contention that the postconviction court failed to accord

Bright’s deceased penalty phase counsel the presumption of reasonable trial

strategy, the State refers this Court to Gore v. State, 964 So. 2d 1257 (Fla. 2007),

and Callahan v. Campbell, 427 F.3d 897 (11th Cir. 2005). While both of those

cases also involved a trial counsel who was unavailable during the evidentiary

hearing to testify as to strategy, the similarities with Bright’s case end there.

In Gore, the lead counsel was not presented as a witness during the

evidentiary hearing and, thus, only his co-counsel was available to testify as to

strategy. See 964 So. 2d at 1269. Noting that the alleged deficiencies in Gore

were plausibly within the realm of reasonable trial strategy, we held that the lack of

testimony compelled us to hold that Gore had not overcome the presumption of

reasonable trial strategy. See id. For example, with regard to allegations that

Gore’s counsel performed deficiently in failing to present evidence of neurological

disorders, we noted that Gore’s trial counsel presented two mental health experts

- 32 -
during the penalty phase and asked his family about medical history, and that there

was no medical evidence in the record that Gore had a neurological disorder. See

id. Moreover, even if Gore did have a neurological disorder, the evidence was

“extremely tenuous, at best,” particularly where the family members expressed

doubt about the theory and the postconviction experts confirmed the tenuous nature

of the alleged evidence. Id. at 1274. In light of the lack of supporting evidence,

which would have also placed Gore’s counsel on notice had it existed, we

determined that it was within the range of sound trial strategy for Gore’s counsel

not to pursue the theory. See id.

Likewise, in Callahan, one of the penalty-phase counsel passed away before

the postconviction evidentiary hearing and, as a result, the United States Court of

Appeals for the Eleventh Circuit relied on the record and presumed that counsel

had reviewed the relevant documents, questioned Callahan’s family and friends

about mitigation, and had a discussion with Callahan about what mitigation to

present during the penalty phase. See 427 F.3d at 932-36. As the Eleventh Circuit

noted, the burden was on Callahan to prove that his deceased counsel did not take

those steps. See id. at 933. However, the record demonstrated that Callahan’s

counsel had conducted significant mitigation investigations. See id. For instance,

his counsel knew that he had been evaluated by six psychiatrists, two

psychologists, and a psychiatric social worker—none of whom reported any mental

- 33 -
health problems. See id. at 933-34. In addition, Callahan’s counsel had ample

psychiatric and medical records from Callahan’s childhood, none of which

mentioned abuse, and there were no other indications of problems. See id. at 934-

36. The Eleventh Circuit concluded that Callahan failed to overcome the

presumption of reasonable strategy, given the lack of unpursued mitigation leads in

the record. See id.

Thus, this case is distinguishable from Callahan and Gore because the record

before us demonstrates affirmative evidence that the now-deceased attorney who

was unavailable to testify was placed on notice as to mitigation leads but did not

pursue them. Specifically, Dr. Krop’s letters placed him on notice that Bright had

a history of mental health problems, and yet counsel failed to follow up and

uncover the information necessary to make a reasonable and informed decision.

Moreover, the now-deceased attorney failed to obtain Bright’s school records, a

basic first step that would have yielded more leads. Given the notice that he

received, as the postconviction court found, the failure to follow up could not have

been a tactical decision. Gore and Callahan lacked the affirmative evidence of

unpursued leads known to counsel that are glaring in this case. Unlike in Callahan,

Bright has satisfied his burden of proving that counsel responsible for the penalty

phase did not take the steps that reasonable trial counsel should have taken.

- 34 -
 Rather, this case is strikingly similar to Douglas v. State, 141 So. 3d 107

(Fla. 2012), in which trial counsel had no independent recollection as to whether

omissions were attributable to strategy, and we found deficiency under very similar

facts:

The record establishes that almost two years before the
commencement of Douglas’s guilt-phase proceeding, trial counsel
contacted Dr. Krop, a licensed psychologist, to aid in addressing
Douglas’s mental state at the time of the offense and to uncover
possible mitigating factors. In May 2000, Dr. Krop conducted a
clinical interview with Douglas, during which he administered a
battery of psychological tests. Following this evaluation, Dr. Krop
issued a June 2000 report to trial counsel indicating that Douglas was
competent to proceed and requesting from counsel the opportunity to
review depositions, school records, police reports, prior presentence
investigation reports, and any other relevant materials that might
pertain to possible mitigation. The report further requested that trial
counsel schedule a follow-up evaluation so that Dr. Krop could
discuss the crime with Douglas and coordinate interviews with
relevant family members. According to Dr. Krop’s files, he never
received any of these materials from trial counsel. Dr. Krop also did
not have an independent recollection of discussing this report with
trial counsel over the phone, and such a discussion was never recorded
in Dr. Krop’s notes.

....
The testimony of Douglas’s penalty-phase witnesses
demonstrates counsel must have known, at the very least, that Douglas
had difficulty reading, was placed in a special academic program,
dropped out of school in the seventh grade due to a learning disability,
and had a father who was physically and emotionally abusive.
Despite having access to this information, there is no evidence that
counsel sought to further investigate Douglas’s mental health either
by seeking background records or by consulting with a mental health
expert. In fact, even after Dr. Krop’s request for additional materials,
the record does not disclose that counsel made any effort to provide

- 35 -
 Dr. Krop with readily available evidence. Certainly, counsel should
not have considered Dr. Krop’s competency evaluation as “a reliable
substitute for a thorough mitigation evaluation.” Ponticelli v. State,
941 So. 2d 1073, 1096 n.24 (Fla. 2006) (quoting Arbelaez, 898 So. 2d
at 34); id. at 1095-96 (noting that counsel should not have considered
a mental health expert’s fifteen-minute competency evaluation
conducted prior to trial as a reliable substitute for a thorough
mitigation evaluation). We conclude that there were sufficient facts in
this case to place counsel on notice that further investigation of mental
health mitigation was necessary. Consequently, counsel’s failure to
investigate this line of defense was not reasonable under prevailing
professional norms.

Id. at 117-118, 121.
With regard to deficiency, the conduct in this case is nearly indistinguishable

from Douglas and arguably more alarming. Bright’s trial counsel were given at

least the same or stronger notice of mental health concerns by Dr. Krop. Indeed,

Dr. Krop told counsel multiple times that Bright indicated he had been

involuntarily committed. Despite this notice, just like in Douglas, counsel failed to

follow up with Dr. Krop’s requests. Moreover, the failure to follow up cannot be

explained by concerns about harmful evidence because, unlike in Douglas, Bright

has not been diagnosed with any antisocial or psychopathic traits. See id. at 123-

24. Plainly, defense counsel’s utter failure to follow up was not reasonable under

prevailing norms of professional conduct.

The fact that some preliminary family interviews indicated that Bright’s

history was normal did not render a meaningful investigation dispensable. The

unhelpful answers of Bright’s family members were partly the fault of Bright’s

- 36 -
counsel. The postconviction court expressly found that Bright’s family members

were not properly questioned about or instructed on the purpose of mitigation.

Specifically, the postconviction court found that Bright’s witnesses were asked,

even during the investigative stage, to only discuss Bright’s good qualities.

Rompilla v. Beard, 545 U.S. 374 (2005), provides us guidance where family

interviews might suggest there is no mitigation, but available records suggest

otherwise. There, the United States Supreme Court held that:

even when a capital defendant’s family members and the defendant
himself have suggested that no mitigating evidence is available, his
lawyer is bound to make reasonable efforts to obtain and review
material that counsel knows the prosecution will probably rely on as
evidence of aggravation at the sentencing phase of trial.

Id. at 377. Undoubtedly, the same principle applies when family members and the

defendant suggest that there is no mitigation available, but the competency

evaluation process alerts counsel to extensive and multiple mental health concerns,

including an involuntary commitment.

In sum, we conclude that competent, substantial evidence supports the

postconviction court’s findings that Bright’s trial counsel performed deficiently

during the penalty phase because no strategic decisions could have supported the

investigative failures in this case. See Wiggins v. Smith, 539 U.S. 510, 522 (2003)

(“[C]ounsel’s failure to uncover and present voluminous mitigating evidence at

sentencing could not be justified as a tactical decision . . . because counsel had not

- 37 -
‘fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s

background.’ ” (quoting Williams, 529 U.S. at 396)).

Prejudice

With regard to Strickland prejudice, we must determine whether the

deficient performance of counsel during the penalty phase undermines this Court’s

confidence in the sentence of death and the reliability of the penalty phase

proceedings. See Hurst, 18 So. 3d at 1013. We make this determination by

viewing the sentence of death in the context of the penalty phase evidence, the

mitigating and aggravating circumstances found, and the previously undiscovered

postconviction evidence. See id. This standard does not “require a defendant to

show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of

his penalty proceeding, but rather that he establish ‘a probability sufficient to

undermine confidence in [that] outcome.’ ” Porter, 558 U.S. at 44 (quoting

Strickland, 466 U.S. at 693-94). “To assess that probability, [the Court]

consider[s] ‘the totality of the available mitigation evidence’ and ‘reweig[hs] it

against the evidence in aggravation.’ ” Id. at 41 (quoting Williams, 529 U.S. at

397-98).

After considering the evidence revealed during the postconviction

evidentiary hearing, the postconviction court found that Bright was prejudiced

because the jury did not hear any evidence of Bright’s abusive childhood or mental

- 38 -
health problems, or any evidence of how that troubled history shaped Bright.

Furthermore, had that evidence been presented during the penalty phase or Spencer

hearing, the postconviction court found that the trial court may have found the

statutory mitigating circumstance of lack of capacity to conform conduct to the

law. Thus, the postconviction court found that the deficient performance of

Bright’s counsel undermined reliability in the outcome of Bright’s penalty phase.

The State, however, theorizes that Bright was not prejudiced because the

evidence that was not presented during the penalty phase would have been

inconsistent with the “good guy” portrayal of Bright. Furthermore, the State

asserts that the evidence was not sufficiently strong to overcome the evidence

presented in aggravation. We disagree.

In Bright’s case, the previously undiscovered evidence is considerable in

contrast with the mitigation that was actually presented during the penalty phase

and Spencer hearing. Indeed, the undiscovered “mitigating evidence, taken as a

whole, ‘might well have influenced the jury’s appraisal’ of [Bright’s] moral

culpability.” See Wiggins, 539 U.S. at 538; see also Penry v. Lynaugh, 492 U.S.

302, 319 (1989) (“[E]vidence about the defendant’s background and character is

relevant because of the belief, long held by this society, that defendants who

commit criminal acts that are attributable to a disadvantaged background . . . may

be less culpable.”). The incomplete picture the jury was presented during trial here

- 39 -
notably omitted Bright’s history of child labor, rampant and violent beatings,

educational difficulties, social isolation, poor hygiene, sexual abuse, and mental

health problems, including at least one confirmed involuntary commitment.

With regard to reweighing the aggravating and mitigating circumstances, the

postconviction court appropriately referred to Simmons v. State, 105 So. 3d 475

(Fla. 2012), for the proposition that a finding of HAC will not preclude a new

penalty phase when there is substantial new mitigation. Id. at 509. In Simmons,

this Court reversed the postconviction court’s denial of relief where the jury found

three aggravating circumstances in an interrogatory verdict, including HAC; the

defendant and his family were not told of the importance of mitigation; and no

mental health mitigation was presented during the penalty phase. See id. Here,

Bright’s penalty phase counsel similarly failed to impress upon him or his family

the importance of mitigation and failed to present any mental health mitigation. In

addition, even without the substantial mental health and childhood evidence that

emerged in postconviction, the trial court that sentenced Bright to death expressed

notable hesitation in imposing the ultimate punishment. Indeed, the trial court

expressly stated that, but for the HAC aggravator, it may have sentenced Bright to

life. Thus, we think the new evidence, including support for an additional statutory

mitigating circumstance, undermines the reliability of Bright’s penalty phase and

ensuing sentences of death.

- 40 -
 While it is true that in Douglas we did not consider Douglas sufficiently

prejudiced by similar deficiencies of counsel, the evidence in Douglas carried a

serious risk of being more harmful than helpful to Douglas’ case. Specifically, two

experts testified that Douglas exhibited antisocial personality traits, that he was a

dangerous man, and that he was susceptible to being enraged when his sexual

advances were rejected. See Douglas, 141 So. 3d at 123-24. In addition, the

expert testimony would have opened the door to his criminal history, including a

rape charge that had been dropped, two domestic violence convictions, a drive-by

shooting charge that had been dropped, and drug charges. Id. at 124. Douglas also

risked disclosure of “his history of violence, including an incident where he pulled

a gun on the mother of one of his children because she had ‘nagged him.’ ” Id.

Thus, in Douglas, where counsel testified to pursuing a good person strategy, we

concluded that the record supported the finding that the previously undisclosed

evidence would have been more harmful than helpful. See id.

Unlike in Douglas, Bright’s previously undiscovered mitigation carries little

risk of new harmful evidence. To the extent that Bright had a criminal or violent

past, that information was already presented during the penalty phase or Spencer

hearing. For instance, the penalty phase jury was read a stipulation regarding

Bright’s armed robbery conviction in 1990, but it heard testimony that Bright did

not actually use the weapon during the robbery. In addition, during the Spencer

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hearing, the trial court heard about one report of domestic violence where Bright

was not alleged to have hit his ex-wife, but only grabbed a phone off the wall and

broke a door. The trial court also heard that Bright had approximately twenty-two

convictions for making or altering a forged instrument, a DUI, several hit and run

accidents, and a burglary. Dr. Miller opined, however, that those convictions were

all related to Bright’s drug habit. This evidence, which was already disclosed

during trial, is a far cry from Douglas’ far more violent history that would have

emerged for the first time. See id. Moreover, unlike Douglas, Bright has not been

diagnosed with any antisocial personality disorder traits or psychopathic traits.

Therefore, there is no risk of harmful information emerging from the presentation

of Bright’s full mitigation.

Douglas is also distinguishable simply because Bright has suffered far more

prejudice than Douglas. In Douglas, we expressly agreed with the postconviction

court’s finding that the mental health mitigation would have been entitled to little

weight, given that the expert testimony was not compelling. See id. In addition,

the evidence in Douglas’ school records and his history of abuse would have been

cumulative to testimony presented during the penalty phase. See id. at 125. We

also determined that, to the extent evidence was noncumulative, the omission of

evidence in Douglas was less prejudicial than the sufficiently prejudicial omission

of evidence in Rompilla, 545 U.S. 374; Porter, 558 U.S. 30; and Wiggins, 539 U.S.

- 42 -
510; cases in which the evidence included far more compelling mitigation. See

Douglas, 141 So. 3d at 124-26.

Here, the testimony was not cumulative to the evidence presented during the

penalty phase and was compelling mitigation. For example, the evidence from

Bright’s school records, showing that Bright failed many of his classes and

underperformed in school, was not cumulative to any testimony during the penalty

phase. Furthermore, while Bright did present the testimony of Dr. Miller during

the Spencer hearing, his testimony was limited to a simple unexplained diagnosis

of substance abuse. Far beyond unexplained substance abuse, the mental health

evidence that emerged during postconviction shows that Bright was involuntarily

committed, has a notable history of mental health problems in his family, and

suffers from severe PTSD—including all ten ACE factors.

This noncumulative mitigation is the very type of mitigation presented in

Rompilla and Porter that this Court reasoned was lacking in Douglas. See

Douglas, 141 So. 3d at 124-26 (distinguishing Rompilla, 545 U.S. at 390-93, and

Porter, 558 U.S. 30). For example, while Bright did not fight in two horrific

battles during his service in the Marine Corps or have brain abnormalities, c.f.

Porter, 558 U.S. at 454, he did suffer horrific child abuse and evidenced poor

performance in school, as did Porter. See id. In addition, while Bright did not

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have the identical mental health problems that Rompilla suffered,7 he and Rompilla

share other adverse conditions including: (1) a history of mental problems; (2)

severe and frequent beatings; (3) a childhood in which he was not allowed to

generally associate with other children; (4) a childhood home without running

water; and (5) having been sent to school with horrific hygiene and clothing. See

Rompilla, 545 U.S. at 390-93.

This case presents the same deficient performance found in Douglas, but

with sufficiently more prejudice. The jury never learned who Raymond Bright is.

Therefore, competent, substantial evidence supports the findings of the

postconviction court that Bright was prejudiced by the deficient performance of his

penalty phase counsel. We thus affirm the trial court’s order granting Bright a new

penalty phase.8

7. Rompilla manifested signs of schizophrenia and fetal alcohol syndrome.
See Rompilla, 545 U.S. at 390-93.

8. Although we ordered that Bright and the State submit supplemental
briefing in light of Hurst v. Florida, 136 S. Ct. 616 (2016), a request which both
parties ably answered, we need not address the applicability of Hurst to Bright’s
case in light of our holding today.

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 Bright’s Cross-Appeal

1. Ineffective Assistance of Counsel During the Guilt Phase

In his cross-appeal, Bright contends that the postconviction court erred in

finding that his trial counsel were not unconstitutionally ineffective during the guilt

phase of his trial. Bright claims that they were ineffective for failing to adequately

investigate and present his self-defense claim, for failing to present evidence of the

victims’ reputations, and for failing to challenge an allegedly biased juror for cause

that ultimately served on the jury.9 We disagree with all of Bright’s claims.

Failure to Adequately Investigate and Present Self-Defense

Bright contends that his trial counsel were unconstitutionally ineffective in

failing to adequately present his self-defense claim. In general terms, he claims

that his attorneys were ineffective because they did not consult with or present any

expert witnesses to support his self-defense claim and that they should have

presented more lay witnesses. The postconviction court, however, determined that

Bright suffered neither deficiency nor prejudice with regard to either contention.

9. Bright does not appeal the postconviction court’s denial of his additional
claims that his counsel were unconstitutionally ineffective for: (1) failing to object
to prosecutorial misconduct; (2) misadvising Bright to refrain from testifying; and
(3) failing to request or object to the omission of a presumption of fear jury
instruction.

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Because the postconviction court’s findings are supported by competent,

substantial evidence, we affirm.

In the postconviction context, evidence presented during an evidentiary

hearing is cumulative where the same evidence was previously elicited during trial

through cross-examination. See Ponticelli, 941 So. 2d at 1085. Furthermore,

postconviction evidence can be cumulative to evidence presented during trial even

where the postconviction evidence is more elaborate than the trial testimony. See

Sweet v. State, 810 So. 2d 854, 863 (Fla. 2002).

We have held that a failure to present cumulative evidence does not establish

unconstitutional ineffective assistance of counsel because its omission neither

constitutes deficient performance nor results in sufficient prejudice. See Beasley v.

State, 18 So. 3d 473, 484 (Fla. 2009) (citing Darling v. State, 966 So. 2d 366, 378

(Fla. 2007)) (not deficient); Sochor, 883 So. 2d at 784 (Fla. 2004) (insufficiently

prejudicial). In fact, the opposite can be true. As we have observed, “more

[evidence] is not necessarily better.” Woods v. State, 531 So. 2d 79, 82 (Fla.

1988).

Reflecting this principle, we have specifically recognized that the decision to

rely on evidence elicited through cross-examination of the State’s witnesses, in lieu

of calling additional witnesses, can be sound trial strategy. See Johnston v. State,

63 So. 3d 730, 741 (Fla. 2011); Occhicone, 768 So. 2d at 1048. The mere fact that

- 46 -
a defendant’s postconviction counsel later disagrees with the strategy makes no

difference. See Occhicone, 768 So. 2d at 1048.

Expert Witnesses

Bright contends that his trial counsel was deficient for failing to consult with

or present experts in crime scene reconstruction, blood spatter, toxicology, forensic

pathology, and gunshot residue and ballistics.10 As a result, Bright contends that

he was prejudiced because the jury did not hear evidence that a struggle occurred

between him and the victims. He specifically contends that these witnesses would

have shown that (1) a struggle with significant movement occurred throughout the

house; (2) Brown and King were awake when Bright first struck them; (3) King, in

particular, was awake due to recent cocaine ingestion; and (4) the gunshot occurred

before the events in question. According to Bright, the jury’s inability to hear this

evidence resulted in a trial for which confidence in the outcome was undermined.

We disagree.

Bright overlooks the evidence that was presented during trial. Despite

Bright’s claims to the contrary, the jury did hear evidence that a struggle occurred,

the gunshot was fired before the events in question, and the victims were awake.

10. In addition, Bright raised but waived claims with regard to a DNA
expert and latent print expert because he failed to present any such experts during
the evidentiary hearing. See Ferrell v. State, 918 So. 2d 163, 174 (Fla. 2005).

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Thus, we conclude that Bright has not established ineffective assistance of counsel

because competent, substantial evidence supports the postconviction court’s

determination that the evidence elicited during the postconviction evidentiary

hearing would have been cumulative to evidence presented during his trial.

With regard to postconviction evidence of a struggle, such evidence was

cumulative to the evidence elicited from multiple witnesses during trial, as well as

to the various pictures of the crime scene admitted into evidence. Specifically,

Lundy and Graham each detailed similar recollections of Bright’s account of the

events. Bright, according to both Lundy and Graham, indicated that both victims

were awake, there was a struggle over a gun, the victims were fighting Bright at

the point in time which Bright began swinging a hammer, and there was significant

movement throughout the living room. The medical examiner who performed the

autopsy on Brown also testified that a struggle occurred.

In addition, other evidence presented during trial was consistent with a

struggle. For instance, the pictures of the crime scene show blood everywhere and

a room in disarray, consistent with the possibility of a struggle. Defense counsel

highlighted the photographs’ consistency with a struggle during his closing

remarks to the jury. Moreover, counsel secured several concessions from the

State’s expert witnesses that were consistent with a struggle occurring in the

manner recounted by Bright to Graham and Lundy. For example, the State’s

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firearm expert conceded that a struggle over the gun, as recounted by Bright, to

Lundy and Graham could account for a gun to misfire in the manner Bright

alleged11 and that the gunshot discovered in the house could only have been fired

from within six inches of the floor. The State’s crime scene expert, Detective

Brookins, conceded that blood was everywhere in the room, ultimately leading her

to conclude that she could not rule out a struggle throughout the room.

Furthermore, the medical examiner conceded that the defensive wounds of the

victims and the abrasions to Bright could indicate a struggle.

Similarly, despite Bright’s claim to the contrary, the jury did hear evidence

that King and Brown were awake. As discussed above, Graham and Lundy both

testified to Bright’s account that King and Brown were awake, threatened him with

a gun, and attacked him. Moreover, Bright failed to demonstrate any substantial

evidence during the postconviction evidentiary hearing that either King or Brown

was awake.12

11. The expert’s testimony during direct examination, however, indicated
that there was no evidence that a misfire occurred and that the gun recovered from
the crime scene was in working condition.
12. With regard to King, Bright’s postconviction toxicology expert could
only testify that King had ingested cocaine within two to four hours of his death.
In contrast, the trial testimony of the medical examiner was that King had ingested
cocaine within “minutes to hours.” With regard to Brown, Bright failed to present
any evidence during the evidentiary hearing that Brown was awake. Consistent

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 With regard to evidence that the gunshot was fired earlier in the day of the

events in question, Bright failed to establish that evidence during the evidentiary

hearing and could only produce cumulative evidence. During trial, Murphy and

Lundy both testified as to Bright’s account that the gunshot occurred during the

struggle. Moreover, the State’s firearms expert did not testify as to when the

gunshot residue was deposited. Consistent with the lack of expert testimony

concerning the time the gunshot residue was deposited, during the postconviction

evidentiary hearing, Bright’s crime scene reconstruction experts testified that there

is no technology currently available that could indicate the time that gunshot

residue was deposited. The strongest postconviction evidence was that gunshot

residue is transient in nature and, therefore, not likely to last long in a house with

normal activity. Thus, the postconviction evidence did not prove precisely when

the gun was fired and was, at most, merely cumulative to the testimony presented

during trial.

We thus conclude that with regard to the lack of defense expert witnesses,

Bright has failed to show that he has suffered Strickland prejudice.13 Through

with that, Brown’s autopsy suggested that Brown had not recently consumed any
drugs.

13. Bright also contends that the failure to consult experts discussed above,
particularly in crime scene reconstruction and blood spatter analysis, resulted in
inadequate preparation for the impeachment of Detective Brookins. However, as

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cross-examination of various State witnesses, the jury did hear in some form the

evidence that Bright now claims was never presented. Therefore, this claim fails.

See Whitfield v. State, 923 So. 2d 375, 384 (Fla. 2005) (“[B]ecause the Strickland

standard requires establishment of both [the deficient performance and prejudice]

prongs, when a defendant fails to make a showing as to one prong, it is not

necessary to delve into whether he has made a showing as to the other prong.”).14

discussed above, we conclude that competent, substantial evidence supports the
postconviction court’s determinations that the cross-examination was adequate.
14. We also conclude that counsel made a reasonable strategic decision to
rely on cross-examination of the State’s witnesses in lieu of presenting expert
witnesses. He testified during the postconviction evidentiary hearing that in the
past he has refrained from hiring expert witnesses where the jury may not like the
expert, the jury may find the expert lacks credibility, there was a risk the State
would use the expert to its advantage, or points of evidence were obvious to a
layperson, thereby rendering an expert witness unnecessary.
In this case, counsel believed that the photographs of the crime scene, which
depicted blood “everywhere,” were self-explanatory and rendered hiring expert
witnesses unnecessary to demonstrate self-defense. Thus, counsel testified that he
purposely chose to rely on the State’s witnesses and the power of cross-
examination. Indeed, during guilt-phase closing remarks, he openly told the jury
that this was his strategy: “But you understand there’s only so many witnesses in a
case, and if the State calls the witnesses in the case that I need, then I can get the
evidence through them. And that’s what happened in this case. The State called
the witnesses that I needed.” (Emphasis added.) As discussed above, the record
demonstrates that counsel successfully cross-examined the State’s witnesses to
secure the evidence Bright now claims was lacking. Therefore, counsel’s choice
was not deficient.

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 Lay Witnesses

Bright also contends that his counsel were ineffective for failing to call or

elicit further testimony from several lay witnesses. Specifically, Bright contends

that his counsel were deficient for not calling Valerie Kemp, Charity Kemp,

Maxine Singleton, Tennaka Bright Lewis, or Bridget Bright as guilt phase

witnesses and for failing to adequately question Janice Bright Jones.15 He claims

that these failures prejudiced him because the jury did not hear evidence that: (1)

the house was not usually in the condition depicted in the crime scene photographs;

(2) Brown and King had taken over the house; (3) Brown had called Charity Kemp

moments prior to the events in question to say that he intended to confront Bright

15. Bright also generally avers that his counsel were deficient for failing to
present or more extensively question: (1) Lavelle Copeland; (2) Sergeant Kreeger;
(3) Joseph Lundy; (4) Michael Bossen; and (5) Brian Williams. However, Bright
waived his claims with regard to Copeland and Sergeant Kreeger due to
insufficient briefing by omitting any discussion of them, as well as to Lundy due to
his failure to present Lundy during the evidentiary hearing. See, e.g., Ferrell, 918
So. 2d at 174 (failure to present witness during evidentiary hearing constitutes
waiver); City of Miami v. Steckloff, 111 So. 2d 446, 447 (Fla. 1959) (insufficient
briefing constitutes waiver).
With regard to Bossen and Williams, the postconviction court refused to
accept their testimony because they were not included in any amended motion, and
Bright did not make a showing of good cause as required by rule 3.851. Bright
challenges this refusal on appeal. This Court reviews the refusal to grant a party
leave to amend a 3.851 motion under an abuse of discretion standard. See Doorbal
v. State, 983 So. 2d 464, 484 (Fla. 2008). We conclude that the postconviction
court did not abuse its discretion. See id. (finding no abuse of discretion where a
postconviction court denied amendment to a claim that was not timely filed).

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about drugs Bright had allegedly stolen; (4) Brown and King had reputations for

violence in the community; and (5) Bright feared for his life. However, competent,

substantial evidence supports the postconviction court’s findings that Bright has

established neither deficient performance nor prejudice.

With regard to evidence that the house was not in the same condition as

depicted in the photographs, such evidence was merely cumulative to the evidence

of a struggle as discussed above. Moreover, Bright has not presented any credible

witnesses that could testify to this point. The postconviction court determined that

neither Valerie Kemp nor Charity Kemp, the only witnesses Bright presented on

this point, had any credibility. Because the postconviction court has the superior

vantage point to assess the credibility of witnesses and judge their credibility, we

will not second guess the postconviction court’s credibility determination by

substituting our judgment on the credibility of witnesses and the weight to be given

to the evidence where the postconviction court’s determination is supported by

competent, substantial evidence. See Foster v. State, 929 So. 2d 524, 537 (Fla.

2006). Here, the postconviction court’s credibility determination is owed

deference because the postconviction court noted that both women exhibited

questionable demeanors and testified to rampant drug use—including when they

were at Bright’s home, as well as to multiple prior convictions for crimes involving

dishonesty. Thus, according the deference owed to the postconviction court on

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determinations of credibility, we conclude that competent, substantial evidence

supports the postconviction court’s conclusion that Bright has not sufficiently

demonstrated prejudice from the omission of their testimony.

With regard to evidence that Brown and King had taken over Bright’s house,

the evidence would merely have been cumulative to the testimony of Graham. The

jury heard Graham concede that, as far as he knew, Brown and King did not have a

living arrangement with Bright, but rather that the victims had imposed themselves

over Bright’s efforts to remove them, which included calling the police.

With regard to Charity Kemp’s account that Brown called her and told her

he was planning to confront Bright moments prior to the events in question, this

evidence would merely have been cumulative to the testimony of Graham and

Lundy. Both testified to Bright’s account that he was confronted by Brown and

King over drugs. Moreover, as noted, the postconviction court found that Charity

Kemp lacked credibility.

Although no evidence of the victims’ reputation for violence was presented

during trial, Bright nevertheless cannot establish prejudice. We have held that a

defendant is not prejudiced by the omission of evidence that would have been

inadmissible during trial. See Simmons, 105 So. 3d at 495. Evidentiary rulings on

the admissibility of evidence are reviewed for abuse of discretion. See Evans v.

State, 177 So. 3d 1219, 1229 (Fla. 2015). We apply the same standard when

- 54 -
reviewing postconviction claims of prejudice arising from trial counsel’s failure to

present or challenge evidence. See Arbelaez, 898 So. 2d at 44.

Bright has not established prejudice because the trial court would not have

abused its discretion in excluding the Kemps’ testimony with regard to the

reputations of the victims. We have held that a court does not abuse its discretion

when it excludes reputation evidence that is based only on the opinions of a very

limited community segment. See Larzelere v. State, 676 So. 2d 394, 399-400 (Fla.

1996) (finding no abuse of discretion in exclusion of testimony of two witnesses

who knew of a person’s reputation from a “small number of individuals”). Here,

both women testified that only one to four people told them of the victims’

reputations. Moreover, their testimony was inconsistent because they also testified

that “numerous” people or one hundred people told them this, none of whom they

could identify. Thus, even if the postconviction court had found the Kemps

credible (which it did not), their testimony concerning the reputations of the

victims would have been inadmissible because it was derived from an

insufficiently broad community. See id.

In sum, Bright has not been able to establish that any of the lay witnesses

would have testified to any noncumulative evidence or that the evidence of the

victims’ reputations would have been admissible. Therefore, he has not

established prejudice with regard to the lay witnesses he alleges should have been

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presented. Thus, we need not address deficiency and this claim fails. See

Whitfield, 923 So. 2d at 384.

Failure to Challenge an Allegedly Biased Juror for Cause

Bright contends that his counsel were unconstitutionally ineffective in

failing to challenge a juror for cause who was allegedly biased. Bright alleges that

the juror was biased because she stated during voir dire that she would think “a

tiny bit” that Bright was hiding something if he did not take the stand. We

disagree.

First, Bright has failed to establish deficient performance. Competent,

substantial evidence supports the postconviction court’s findings that Bright’s

counsel reasonably and purposefully left the juror in question on the jury. Indeed,

defense counsel testified that he would have used one of his six remaining

peremptory challenges had he perceived a problem. While he could not recall his

reason for not moving to strike the juror, counsel opined that he probably thought

the juror was a favorable juror because her answers to voir dire questioning

indicated that she was “middle of the road” with regard to the death penalty.

During cross-examination, counsel reiterated that generally he takes the totality of

a juror’s responses into account, particularly his or her predispositions concerning

the death penalty, as well as a juror’s demeanor. Thus, competent, substantial

- 56 -
evidence supports the postconviction court’s findings that defense counsel made a

strategic decision.

Moreover, Bright has not proven prejudice. In the postconviction context,

we have held that a defendant must prove that an actually biased juror sat on the

jury in order to succeed on a claim of ineffective assistance of counsel for failing to

make a cause challenge. See Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007).

This is a higher standard than on direct appeal—mere doubt about a juror’s

impartiality is insufficient under this standard. See id.; see also Johnston, 63 So.

3d at 744-45.

Bright has failed to prove that the juror in question was actually biased.

Competent, substantial evidence supports the postconviction court’s determination

that the singular “tiny bit” comment did not prove actual bias in the context of the

entire voir dire. Notably, the postconviction court judge was the same judge that

presided over the jury selection process and was, therefore, in a better position to

analyze the juror’s demeanor and the genuineness of her answers, among other

characteristics. See Carratelli, 961 So. 2d at 319 (“[T]he trial court ‘has a unique

vantage point in the determination of juror bias’ that is unavailable to us in the

record.”). Furthermore, the postconviction court noted that it repeatedly instructed

the jury that Bright was presumed innocent, did not have to present any evidence,

exercised his fundamental right to remain silent, and that the jury could not take his

- 57 -
invocation of that right as an admission of guilt or allow it to influence the verdict.

In addition, counsel testified that neither he nor his co-counsel nor Bright

perceived a problem and that he would have otherwise expended one of his

peremptory strikes. Therefore, this claim fails.

2. Cumulative Error

Last, Bright contends that the postconviction court erred in finding that he

was not deprived of a fair trial as a result of cumulative errors during the guilt

phase. We disagree. This Court has recognized under unique circumstances that

where multiple errors are found, even if they are individually harmless, the

cumulative effect can result in a constitutionally unfair trial. See Hurst, 18 So. 3d

at 1015; see also McDuffie v. State, 970 So. 2d 312, 328 (Fla. 2007). However,

this Court has repeatedly held that “where the individual claims of error alleged are

either procedurally barred or without merit, the claim of cumulative error also

necessarily fails.” See Israel v. State, 985 So. 2d 510, 520 (Fla. 2008) (quoting

Parker v. State, 904 So. 2d 370, 380 (Fla. 2005)); see also Griffin v. State, 866 So.

2d 1, 22 (Fla. 2003); Wright v. State, 857 So. 2d 861, 871 (Fla. 2003). In addition,

individual claims that fail to meet the Strickland standard for ineffective assistance

of counsel are also insufficient to establish cumulative error. See Israel, 985 So. 2d

at 520. As discussed above, with regard to every guilt phase claim, Bright has

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failed to demonstrate that the postconviction court erred in finding no Strickland

error occurred. As a result, Bright has not presented a basis for cumulative error.

CONCLUSION

We affirm the postconviction court’s order and remand for a new penalty

phase proceeding.

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.

An Appeal from the Circuit Court in and for Duval County,
Charles Warner Arnold, Jr., Judge - Case No. 162008CF002887AXXXMA

Pamela Jo Bondi, Attorney General, and Jennifer Lyn Keegan, Assistant Attorney
General, Tallahassee, Florida,

for Appellant/Cross-Appellee

Joseph Stewart Hamrick, Richard Adam Sichta, and Susanne Kaye Sichta of The
Sichta Firm, LLC., Jacksonville, Florida,

for Appellee/Cross-Appellant

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