& SC16-224 Enoch D. Hall v. State of Florida & Enoch D. Hall v. Julie L. Jones, etc.

Supreme Court of Florida
____________

No. SC15-1662
____________

ENOCH D. HALL,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC16-224
____________

ENOCH D. HALL,
Petitioner,

vs.

JULIE L. JONES, etc.,
Respondent.

[February 9, 2017]

PER CURIAM.

Enoch Hall appeals an order of the postconviction circuit court denying his

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

filed pursuant to Florida Rule of Criminal Procedure 3.851. He also petitions this
Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9),

Fla. Const. For the reasons that follow, we affirm the postconviction court’s denial

of relief on all claims and deny Hall’s petition for a writ of habeas corpus.

Trial and Appeal

Enoch Hall was convicted and sentenced to death for the first-degree

premeditated murder of Corrections Officer (CO) Donna Fitzgerald. Hall v. State,

107 So. 3d 262, 267 (Fla. 2012). In affirming Hall’s convictions, this Court

previously detailed the facts surrounding the murder:

On July 10, 2008, Enoch Hall was indicted by the grand jury
for the murder of Florida Department of Corrections Officer Donna
Fitzgerald. Hall was an inmate at [Tomoka Correctional Institution
(TCI)], who worked as a welder in the Prison Rehabilitative Industries
and Diversified Enterprises, Inc. (PRIDE) compound where inmates
work refurbishing vehicles. Sergeant Suzanne Webster was working
as the TCI control room supervisor, where she was responsible for
getting a count from all areas of the prison as to the number of
inmates in each area. When Webster had not heard from Fitzgerald,
who was working in the PRIDE compound that night, Webster
radioed Officer Chad Weber, who went to the PRIDE facility with
Sergeant Bruce MacNeil to search for Fitzgerald. Weber saw Hall run
through an open door on the other end of one of the PRIDE buildings
and Weber and MacNeil pursued Hall. Weber caught up to Hall, who
repeatedly stated “I freaked out. I snapped. I killed her.” Hall
responded to Weber’s commands and placed his hands on the wall
and was handcuffed. Weber took possession of the PRIDE keys that
Hall had in his hands. Officer Chad Birch shouted from inside the
building, “Officer down!” and Hall remained outside with other
officers while Captain Shannon Wiggins and Officers Weber and
MacNeil entered the building and located Fitzgerald’s body.
Fitzgerald’s body was found lying face down on top of a cart in the
paint room. The upper part of her body was wrapped in gray wool
blankets, and the bottom half of her body came over the back of the

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cart, with her pants and underwear pulled down to her knees. Inside a
bucket of water that was on the floor next to Fitzgerald’s legs was
Hall’s bloody T-shirt. Hall was escorted to the medical facility
(MTC) of the prison by Officers Brian Dickerson and Gary Schweit.
Several officers took turns watching Hall while he sat in the MTC.
Hall was later escorted to a conference room to talk with investigators
from the Florida Department of Law Enforcement (FDLE) and then to
a cell. Hall gave three statements to FDLE agents throughout the
night regarding the events of the murder.

Guilt Phase

A jury trial commenced on October 12, 2009. Daniel Radcliffe,
a crime scene investigator for FDLE, testified that he found two
packets of pills in a file cabinet in the paint room of PRIDE where the
body was discovered. The pill packets had an inmate’s name on them,
Franklin Prince, and were labeled Ibuprofen 800 milligrams and
Carbamazepine, a generic equivalent of Tegretol, 200 milligrams, an
anti-seizure medication. Hall’s white T-shirt was found in a bucket of
water with other shirts in the paint room, and Hall’s pants were found
in a pile of clothes, also in the paint room. Months later, Hall’s blue
prison shirt was found lodged on top of a paint booth. Granules of
Speedy Dry, an oil absorbent material, were found on the ground in
front of the welding shed and in a coffee can next to the shed. The
granules tested positive for blood and DNA testing confirmed that it
was Fitzgerald’s. A broom found nearby had Fitzgerald’s blood on
the broom head. Blood was found on the walls of the welding shed.
Also found in the welding shed was a cap, which had Fitzgerald’s
blood on it. Hall’s clothes, including his underwear, tested positive
for Fitzgerald’s blood. A sexual assault analysis was performed on
Fitzgerald’s body. Jillian White, a crime lab analyst with the FDLE,
testified that there was no evidence of semen on the body. Wiggins
testified that he was a commander of the TCI rapid response team and
as part of his job would search prisons for weapons. Wiggins testified
that shanks made in the PRIDE facility differed from the usual ones
made by inmates in that they had a machined edge made by a grinder.
Wiggins testified that the shank recovered from the wall of the paint
room which appeared to be the murder weapon had a meticulously
sharpened point like those made from a tool grinder in the PRIDE
facility.

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 The State played the three confessions Hall made on the night
of the murder. In the first statement, given to FDLE agents and TCI
personnel, Hall admitted to killing Fitzgerald and stated that he had
taken four pills that Frank Prince, another inmate working in PRIDE,
had given to him. Later that day, when his shift ended, Hall went
looking for more pills, but was unable to find any and became angry.
Officer Fitzgerald came in and laughed and called Hall by his
nickname, “Possum, come on, get out of there.” Hall told her to get
out. Fitzgerald grabbed Hall’s arm and he “freaked out” and began to
stab her with a sharp piece of metal that he found on the floor of the
room. Hall then took off his bloody shirt, put it in a bucket of water,
and put on one of Prince’s shirts. He picked up the PRIDE keys and
continued to look for pills. Hall stated that he did not remember
pulling Fitzgerald’s pants down. Hall said that he did not want to
have sex with Fitzgerald. Hall repeatedly stated that he just wanted to
get high.
The second statement, given at about 1:30 a.m., was taken by
Agent Stephen Miller of the FDLE upon Hall’s request in the cell in
which Hall had been placed. During this interview, Hall admitted that
he killed Fitzgerald somewhere other than the room where she was
found. Fitzgerald found Hall searching for pills in the office. He ran
out past her, she chased him to the welding shed, and he stabbed her
there. Hall carried her to the office and placed her on the cart. Hall
said he threw some dirt on the blood outside the welding shed. Hall
told Miller that he hid the knife in a cinderblock wall near the welding
shed. Hall also told Miller he did not think he was “going to make it
to tomorrow.” Miller told Hall that he would transport him to the
branch jail in a little while.
The third statement was given at about 3:30 a.m. and was made
only to the FDLE agents. In this third statement, Hall agreed that in
his first statement he said he killed Fitzgerald inside the PRIDE
building, but in his second statement he admitted to killing her in the
welding area outside the PRIDE building. Hall admitted that he
stayed behind in the PRIDE compound to look for drugs. While
looking for drugs, Hall found the shank by the sink in Prince’s office
and took it with him. When he realized Fitzgerald was looking for
him, Hall hid inside the welding shed. Fitzgerald opened the shed
door and came in and tried to grab him. He tried to run past her, but
she would not let go, so he stabbed her. Hall did not recall how many
times he stabbed her, but said he stabbed her enough times “just to get

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by.” Fitzgerald fell to the ground inside the shed; he did not know
whether or not she was alive. He hid the shank in the wall and spread
some Speedy Dry on the ground in the welding area to soak up the
blood. Hall wrapped her up in a towel and blankets and carried her
back to the paint room/office. Hall placed her on a cart. He then
continued to look for pills, but was not able to find any. Hall went
back to the room where Fitzgerald was and pulled down her pants. He
did not sexually assault her. Hall said he put his shirt in a bucket of
water, put on Prince’s shirt, but kept on his own pants. Corrections
officers entered the PRIDE facility and he attempted to run from
them.
Dr. Predrag Bulic, the Volusia County associate medical
examiner, testified for the State about the injuries Fitzgerald sustained
based on her autopsy results. He testified that Fitzgerald’s body bore
evidence of blunt force injuries, mostly on her face, consistent with
those caused by punches from a hand. Fitzgerald’s hands and arms
had sustained defensive wounds caused by a sharp instrument
consistent with a knife. Fifteen additional stab wounds were inflicted
upon Fitzgerald, including on her stomach, back, and chest. Dr. Bulic
also testified that a gold chain necklace on Fitzgerald’s body had been
pulled tightly around her mouth and neck from behind in a manner so
as to exert sufficient force to leave a postmortem mark consistent with
ligation. On October 23, 2009, Hall was convicted of first-degree
murder.

Penalty Phase

The penalty phase commenced on October 27, 2009. The
defense renewed its previously argued motion to preclude the State
from offering evidence of the length of Hall’s sentences he was
serving when he killed Fitzgerald. The trial court denied the motion
and the State offered evidence that Hall was serving two consecutive
life sentences when he murdered Fitzgerald.
The State also offered evidence that Hall had committed prior
violent felonies, introducing testimony from two women whom Hall
had raped. The defense objected to the testimony of the two women
as highly prejudicial and irrelevant. The trial court overruled the
objection and allowed the testimonies.
Victim impact statements were published for the jury. Donald
and Dana Shure, Officer Fitzgerald’s younger brother and sister,

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prepared written statements and read them to the jury. Joanne Dunn,
Fitzgerald’s mother, also read a statement to the jury.
The defense presented several witnesses during the penalty
phase to support mitigation. James Hall, Hall’s father, testified that
Hall was a good son and got along well with his two younger brothers.
He also testified that Hall had been raped in jail at age 19, when his
girlfriend’s mother’s boyfriend, a law enforcement officer, arranged to
have him put in jail after a dispute. After his release, Hall became
afraid and mostly stayed home, and he eventually started living in a
shelter in the woods. James Hall had not seen his son since 1995.
Hall’s mother, Betty Hall, also testified regarding her son’s love for
sports growing up. Dr. Reid Hines, a dentist, testified telephonically
that he and Hall had played sports together in high school and that
Hall was an excellent athlete. Bruce Hall, the former plant manager
for PRIDE, testified that Hall started at PRIDE as an apprentice
welder and eventually worked his way up to lead welder. Rodney
Callahan, an inmate who used to work with Hall, described him as a
very good worker, conscientious, and responsible.
Dr. Daniel Buffington, a pharmacologist, testified for the
defense that, among other possible side effects, both Ibuprofen and
Tegretol have the capacity to alter someone’s behavior. The State
called Dr. Wade Myers on rebuttal, who testified that most people
who take an overdose of Ibuprofen do not have any side effects and
the remaining people typically complain of nausea, and that Tegretol
has an anti-aggression component to it, and, in his opinion, it “would
be very unlikely” to cause aggression—“You’re going to get the
opposite effect.”
The jury returned a recommendation of death by a unanimous
vote.
Spencer [n.2] Hearing

[n.2] Spencer v. State, 615 So. 2d 688 (Fla. 1993).

In support of the defense’s contention that Hall should receive
the emotionally and mentally disturbed statutory mitigator, Dr. Harry
Krop testified for the defense that Hall had a cognitive disorder, not
otherwise specified, coercive paraphilia disorder-multiple sexual
offender, and an alcohol substance abuse disorder. Krop testified that
Hall had a serious emotional disorder at the time of the offense and

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that Hall’s ingestion of Tegretol could bring out his underlying
psychological traits.
The State offered rebuttal testimony from Dr. William
Riebsame, a forensic psychologist and professor of psychology, and
Dr. Jeffery Danziger, a board certified forensic psychiatrist.
Riebsame testified that the results of the tests administered to Hall by
Krop were questionable, because Krop failed to test for malingering.
Danziger testified that he administered two tests to determine whether
Hall was mentally ill or was malingering. A score of more than 14 is
highly correlated with malingering and Hall’s score was 29. Danziger
arrived at the opinion that Hall has a history of substance abuse, adult
anti-social behavior, history of sexually-related charges, possible
psychosexual disorder, and pseudo-seizure disorder by history.
Danziger strongly disagreed with any attempt by Buffington to
diagnose a psychological condition and disagreed with Buffington’s
opinion that Tegretol could unmask an underlying psychological
illness. The trial court found that Hall did not establish the existence
of mental or emotional disturbance as a statutory mitigating
circumstance and gave it no weight.
In the trial court’s Sentencing Order, the court found five
aggravators: (1) previously convicted of a felony and under sentence
of imprisonment—great weight; (2) previously convicted of another
capital felony or of a felony involving the use or threat of violence to
the person—great weight; (3) committed to disrupt or hinder the
lawful exercise of any governmental function or the enforcement of
laws—great weight; (4) especially heinous, atrocious or cruel—very
great weight; (5) cold, calculated, and premeditated—very great
weight; (6) the victim of the capital felony was a law enforcement
officer engaged in the performance of his or her official duties—no
weight—merged with aggravator number 3 as listed above. In
mitigation, the sentencing court found no statutory mitigators and
eight non-statutory mitigating circumstances: (1) Hall was a good son
and brother—some weight; (2) Hall’s family loves him—little weight;
(3) Hall was a good athlete who won awards and medals—little
weight; (4) Hall was a victim of sexual abuse—some weight; (5) Hall
was productively employed while in prison—some weight; (6) Hall
cooperated with law enforcement—some weight; (7) Hall showed
remorse—little weight; and (8) Hall displayed appropriate courtroom
behavior—little weight. The trial court concluded that the
aggravating circumstances far outweighed the mitigation and gave

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 great weight to the jury’s unanimous recommendation of death. Thus,
the trial court imposed the sentence of death.

Id. at 267-71 (footnote omitted).

On direct appeal, this Court held that the trial court’s finding of the cold,

calculated, and premeditated aggravator was not supported by competent,

substantial evidence and thus it was stricken. Id. at 278-79. Nevertheless, the

Court ultimately affirmed Hall’s conviction and sentence. Id. at 281. The United

States Supreme Court denied certiorari review on October 7, 2013. Hall v. Florida,

134 S. Ct. 203 (2013).

Postconviction Proceedings

Pursuant to Florida Rule of Criminal Procedure 3.851, on September 17,

2014, Hall filed a motion to vacate his judgment of conviction and sentence. Hall

claimed that his counsel were ineffective during both the guilt and penalty phases

of his trial and that he was deprived of a fair trial by the individual and cumulative

effect of any errors. Hall also claimed that his execution will violate his

constitutional rights because he may be incompetent at the time of execution.

Furthermore, in his petition for writ of habeas corpus to this Court, Hall presents

two claims: (1) the jury instructions in capital sentencing are unconstitutional; and

(2) trial counsel was ineffective in litigating the facial and as-applied constitutional

challenges to Florida’s capital sentencing statute.

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 Hall presented ten witnesses during the evidentiary hearing: (1) Lt. Stephan

Farrow, the officer who recorded Hall’s transport video from the Volusia County

Jail to Florida State Prison; (2) John Joiner, the officer who conducted the

investigation with regard to PRIDE prison procedures for the Inspector General’s

Office; (3) Elizabeth Lasseter, Hall’s half-sister; (4) Rodney Callahan, a fellow

inmate and PRIDE employee; (5) Jesse Eugene Hall, Hall’s uncle; (6) Enoch

James Hall, Hall’s father; (7) Walter Schell, a fellow inmate and PRIDE employee;

(8) Dr. Michael Maher, M.D., a psychiatrist; (9) James Valerino, one of Hall’s two

trial attorneys; and (10) Matthew Phillips, Hall’s second trial attorney. The State

presented three witnesses: (1) Agent Steven Miller, a Special Agent with FDLE

who investigated the crime and interviewed Hall after the murder; (2) Investigator

Robert Ryan, an investigator for the Office of the Public Defender who conducted

Hall’s mitigation investigation; and (3) Dr. Jeffrey Danziger, M.D., a psychiatrist

for the State.

Hall’s motion for postconviction relief was denied on July 8, 2015, and his

motion for rehearing was denied on August 7, 2015. This appeal follows.

ANALYSIS

Strickland Standard of Review

Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant

seeking relief on the basis of ineffective assistance of counsel must establish both

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that counsel’s performance was deficient and that this deficient performance

prejudiced the defendant, thus depriving him of a reliable proceeding.

Because both prongs of the Strickland test present mixed questions of law

and fact, this Court employs a mixed standard of review, deferring to the court’s

factual findings that are supported by competent, substantial evidence, but

reviewing the court’s legal conclusions de novo. See Sochor v. State, 883 So. 2d

766, 771-72 (Fla. 2004). Moreover, because Strickland requires that a defendant

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

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

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

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

There is a strong presumption that trial counsel’s performance was not

ineffective. See Strickland, 466 U.S. at 690. “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. at 689. This

Court has held 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).

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 Juror Challenge

Hall first asserts that trial counsel was ineffective for using a peremptory

strike on prospective juror Rapone, instead of striking her for cause, and that this

peremptory strike should have been used to challenge prospective juror Roddy

instead. Hall argues that Roddy was biased because he supervised a full time TCI

corrections officer at his work and he had discussed Hall’s case with this officer.

We disagree.

Deficiency

First, Hall has failed to establish deficient performance. There is competent,

substantial evidence to support the postconviction court’s conclusion that trial

counsel’s failure to challenge juror Rapone for cause and the subsequent use of a

peremptory challenge, rather than a for-cause challenge, was likely the result of

reasonable trial strategy and, therefore, did not rise to deficient performance. See

Evans v. State, 995 So. 2d 933, 942 (Fla. 2008) (“Although [the juror] clearly

supported the death penalty and initially indicated that a case of self-defense would

be the only time she would recommend life, she immediately confirmed that she

would listen to the judge’s instructions, ‘consider all circumstances’ and follow the

law. Based on her clear confirmation of her ability to follow the law and counsel’s

belief that she would be a good guilt-phase juror, counsel’s decision not to

challenge [the juror] was reasonable and a matter of trial strategy.”) (citing Dufour

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v. State, 905 So. 2d 42, 54-55 (Fla. 2005)). Specifically, although juror Rapone

initially stated that she had a preexisting opinion as to Hall’s guilt, she retreated

from that view during extensive questioning by attorney Valerino.1

1. Juror Rapone’s testimony regarding both her opinion of guilt and her
subsequent rehabilitation read as follows:

MR. VALERINO: Had you formed any opinion about the case [given
your media exposure]? . . .

PROSPECTIVE JUROR RAPONE: Well, you know, when you see
rape and you see a prisoner’s involved, you know, you seem to think,
well, he’s already in jail, he’s already in prison, he’s supposed to be
learning a lesson, and what’s going on. And yes, I formed an opinion.
It was not a good opinion.

MR. VALERINO: Okay. And so have you formed an opinion as to
whether he’s guilty or not guilty, based on the information you’ve
received?

PROSPECTIVE JUROR RAPONE: Well, now that I’m in this
situation, I’ve learned some things, and I know my duty, you know,
my—probably, I know my opinion should not matter until I’ve
learned all the facts. However, I have formed an opinion. So, yes.

MR. VALERINO: What is that opinion?

PROSPECTIVE JUROR RAPONE: That he’s guilty. . . .

MR. VALERINO: Having an opinion that he’s guilty, do you have an
opinion, having read in the newspaper that he was serving a life
sentence, and having read in the newspaper it was for rape, as to what
sentence he should receive, death or life in prison without parole?

PROSPECTIVE JUROR RAPONE: I did not have an opinion until I
was asked, probably today, about the death penalty, and I really don’t
have an opinion now. I know it’s on my mind. It’s something I may

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 Furthermore, this strategic decision was reinforced by Valerino’s testimony

that juror Rapone had been sufficiently rehabilitated, thus explaining counsel’s use

of a peremptory challenge. Specifically, attorney Valerino explained:

Okay. In regards to Juror Rappone [sic], she is the one who I
had the words—and I don’t know if Mr. Phillips did, too, but I had the
words cause next to her name in different areas.
In reviewing the voir dire of Ms. Rappone [sic], in Volume XV,
starting at page 503, the Court asked Ms. Rappone whether or not
what she had heard and her opinions—what she had heard about the

have to consider in the next few days, if I am chosen. But I did not
have an opinion at that time, no.

MR. VALERINO: So are you able to set aside the information you’ve
received that you’ve told us about in making a decision on guilt or
innocence, and, also, if we get to the second phase, the possible
penalty?

PROSPECTIVE JUROR RAPONE: As I said before, I believe I can.
Yes. . . .

THE COURT: Ms. Rapone, is the opinion that you have that you
expressed to Mr. Valerino, so I’m certain, is the opinion that you
expressed as to his being guilty, is that so fixed in your mind that you
believe you would be unable to set it aside and keep an open mind for
the purpose of this case, listen to the evidence and the law the Court
gives to you, to discuss the case with your fellow jurors in
deliberation, after hearing argument of counsel, and returning a fair
verdict, could you still do that?

PROSPECTIVE JUROR RAPONE: Yes.

THE COURT: You could do that?

PROSPECTIVE JUROR RAPONE: Yes.

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 case could be set aside and if she could hear the—decide the case
based on what she just heard in the courtroom and the arguments of
the attorney and return a fair verdict.
And she indicated that she could do that. And so based on that
answer, I’m kind of assuming, based on that answer, we felt that she
had been rehabilitated for a cause challenge.

Thus, we hold that Hall has failed to show deficient performance for this claim.

Prejudice

Furthermore, Hall has not established prejudice. In the postconviction

context, we have held that a defendant must establish that an actually biased juror

sat on the jury 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 v. State,

63 So. 3d 730, 744-45 (Fla. 2011).

Hall has failed to show that the juror in question was actually biased.

Competent, substantial evidence supports the postconviction court’s determination

that juror Roddy’s work relationship with a TCI officer did not establish actual

bias. Notably, the postconviction court judge was the same judge that presided

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

juror Roddy’s demeanor and the genuineness of his answers relating to his ability

to be fair and impartial. See Carratelli, 961 So. 2d at 319 (“[T]he trial court ‘has a

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

the record.”).

Upon being questioned by trial counsel, juror Roddy assured the court that

he was willing to “weigh all the facts, both pro and con, for and against, and render

a decision based on that.” Further, Roddy also assured counsel that his work

relationship with a TCI corrections officer would not pressure or affect his

decision-making process as a juror. Similar to the facts in Carratelli, where the

Court found the record supported the challenged juror’s lack of bias because he

“held no firm opinion except that he could be fair, listen to the evidence, and

follow the law,” 961 So. 2d at 327, here, juror Roddy similarly assured the court

that he had no set opinion and would abide by the law and consider the evidence

presented in making his determination. Therefore, we conclude that Hall has failed

to establish juror Roddy’s actual bias as required under Carratelli.

In addition, even if counsel was deficient for failing to ask the court for an

additional peremptory challenge in order to strike juror Roddy, this deficiency is

unlikely to have prejudiced Hall, given the fact that the trial court had already

granted the defense three additional peremptory challenges and was unlikely to

grant another for juror Roddy. Thus, juror Roddy would likely have still served on

Hall’s jury, even if counsel had requested an additional peremptory challenge, and

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the result of Hall’s case thus would have remained the same. Therefore, we

conclude that this claim fails.

Ineffectiveness at the Guilt Phase

Hall next argues that his trial counsel was ineffective at the guilt phase for

failing to adequately investigate, develop a defense, and challenge the State’s case.

We disagree.

Primarily, Hall has failed to establish prejudice. Competent, substantial

evidence supports the postconviction court’s findings that trial counsel were not

ineffective at the guilt phase. Notably, for all of the sub-claims addressed below,

none of the alleged deficiencies would have rebutted Hall’s own confession that he

hid from CO Fitzgerald in the welding shed with a shank after she confronted him

in Prince’s office while he was looking for pills. This confession established the

requisite premeditation in the State’s case, and none of the alleged deficiencies

would have rebutted this evidence. Therefore, we conclude that Hall has failed to

establish prejudice with regard to this claim.

Stress at PRIDE

In his first sub-claim, Hall claims that trial counsel was deficient for failing

to introduce evidence of the stressful work conditions at PRIDE in an attempt to

explain what caused Hall to “freak out” on the night of the murder. We hold that

Hall has failed to establish deficiency under this sub-claim.

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 We have repeatedly stated that, under Strickland, reasonable strategic

decisions do not constitute ineffective assistance of trial counsel. See Bradley v.

State, 33 So. 3d 664, 671-72 (Fla. 2010). We have also stated that mere

disagreement by a subsequent counsel with a strategic decision of a predecessor

does not result in a showing of deficient performance. See Occhicone, 768 So. 2d

at 1048. Differing, yet reasonable trial strategy comes in various forms. One

example is trial counsel’s decision to not call certain witnesses to testify. See

Johnston, 63 So. 3d at 741.

The postconviction evidence indicated, and the postconviction court found,

that counsel chose not to present evidence of stress to the jury during the guilt

phase because it was inconsistent with counsel’s theory of defense. Attorney

Valerino testified during the evidentiary hearing that the theory of Hall’s defense

was that he had taken pills earlier in the day and needed more, and he stayed late to

look for more pills.

Attorney Valerino further testified that presenting testimony from other

inmates about the stressful work conditions at PRIDE would not have helped

Hall’s case or been consistent with Hall’s theory of defense. Rather, attempting to

present testimony about stress would have potentially hurt Hall’s case due to the

lack of corroborating evidence to show that Hall was particularly stressed on the

day of the murder. Specifically, attorney Valerino testified:

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 I just don’t think that the issue of stress was an issue that was
going to help our case in light of the testimony of the other inmates
that, although they felt stress, they never got punished, never had
repercussions from the events.
Another reason not to call inmates, and this was the reason why
we selected the ones we did, is most of the other inmates had contact
with Mr. Hall during that day, and nobody saw anything unusual.
He wasn’t acting unusual that day. As a matter of fact, the—his
assistant, Mr. Geddis, he was a welding assistant.
We took his deposition, and he indicated that Mr. Hall did his
job normal that day. There was nothing unusual about him. He
wasn’t acting weird, nothing out of the ordinary.
So we were also reluctant to call witnesses who might have
testified, because we had this defense of the pills, that Mr. Hall was
testifying—or was acting normally, that he was acting like he did
every day and he wasn’t acting unusual.
We find that competent, substantial evidence supports the postconviction

court’s finding that attorneys Valerino and Phillips made a strategic decision not to

present evidence of the alleged stressful work conditions at PRIDE in light of the

lack of corroborating evidence from co-workers. Had they chosen to present this

evidence, the State almost certainly would have rebutted the evidence by bringing

to light the fact that all of the inmates at PRIDE may have experienced stress, yet

none of them murdered CO Fitzgerald. Furthermore, evidence about stressful

work conditions would likely have also led to rebuttal testimony about Hall’s

seemingly normal behavior on the days leading up to the murder and on the day of

the murder, which would directly contradict the defense’s theory that Hall was

high on the pills that caused him to “freak out.” Therefore, we find that this sub-

claim fails.

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 PRIDE Overtime Closing Procedures

Hall next argues that trial counsel were deficient for failing to present

evidence of PRIDE’s closing procedures for the overtime shift and officers’ use of

chemical agents and body alarms when supervising the PRIDE facility as a way to

rebut the State’s contention that he was lying in wait for CO Fitzgerald and place

fault on the victim for the murder. We find that Hall has failed to establish

deficiency under this sub-claim.

Competent, substantial evidence supports the postconviction court’s finding

that Valerino and Phillips considered the relevance of this evidence and ultimately

decided against presenting it due to the potential that the jury would see this

evidence as an attempt to blame the victim. In fact, attorney Valerino justified his

reasoning as follows:

We did not present any testimony regarding her failure to
apply—or follow the rules because I viewed that as that would almost
be an argument that the jury would think that she deserved what she
got by not complying with the rules of the Department of Corrections.
In addition, it’s somewhat—just by Mr. Hall’s own statement,
he knew Ms. Fitzgerald was back there because he first saw her in
Franklin Prince’s room when he ran out of there and then went and
hid in the welding—I think they called it the welding shed when she
came in, so.

Moreover, attorneys Valerino and Phillips testified that they considered

presenting evidence about PRIDE closing procedures and CO Fitzgerald’s unusual

actions of dismissing all of the other PRIDE inmates before going to find Hall by

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herself, without carrying any chemical agents or body alarms, and they weighed

the pros and cons of doing so. Ultimately, they decided not to present this

evidence to avoid the potential negative impact it could have on the jury. Trial

counsel’s decision not to present evidence that could potentially be seen as

advocating that CO Fitzgerald “deserved what she got” is certainly a reasonable

strategic decision under the norms of professional conduct. Therefore, we

conclude that Hall has failed to establish trial counsel’s deficiency.

Unsupervised Access to Sheet Metal and Grinders

Hall’s next sub-claim contends that trial counsel was deficient for failing to

introduce additional testimony to show that all inmates working at PRIDE had

unsupervised access to sheet metal and grinders, rather than the evidence presented

that the welders had unsupervised access to sheet metal and grinders.

We find that Hall has failed to establish trial counsel’s deficiency for failing

to present evidence of PRIDE inmates’ unsupervised access to sheet metal.

Testimony was presented at trial that other PRIDE welders had access to sheet

metal and grinders, and that these other inmates could have made the shank that

Hall ultimately used to kill CO Fitzgerald. Moreover, attorney Valerino testified at

the evidentiary hearing that he did not present additional evidence about the issue

of who made the shank because he was relying on Hall’s statement that he found

the shank. Thus, presenting more evidence about who had unsupervised access to

- 20 -
sheet metal and grinders would have been merely cumulative to Hall’s own

confession that he found the shank in Prince’s office while looking for pills and to

Captain Wiggins’ testimony about PRIDE welders’ access to sheet metal and

grinders. The failure to present cumulative evidence does not constitute deficient

performance. See Beasley v. State, 18 So. 3d 473, 484 (Fla. 2009). We therefore

hold that counsel were not deficient because they made a reasonable decision not

to present additional evidence about the unsupervised access to sheet metal and

grinders at PRIDE. This sub-claim thus fails.

Toxicology Screen

Hall’s next sub-claim asserts that trial counsel were deficient for failing to

request a toxicology screen to corroborate Hall’s own statement that he was under

the influence of Tegretol pills at the time of the murder.

We conclude that Hall has failed to establish trial counsel’s deficiency for

this sub-claim. Competent, substantial evidence supports the postconviction

court’s finding that trial counsel were not deficient for failing to request a

toxicology screen to test for drugs in Hall’s system. Attorney Phillips testified at

the evidentiary hearing that, to request a toxicology screen from an independent

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lab, the request must specifically allege what substances the lab must test for.2

Attorney Valerino testified that his first encounter with Hall was at first

appearance, and that he recalled having a brief conversation with Hall at that time,

but no mention was made of the facts of the case. There is no evidence in the

record demonstrating that Hall informed Valerino during their brief conversation at

first appearance that he was under the influence of drugs at the time of the murder.

Without having any notice about Hall’s alleged drug use at first appearance

or soon thereafter, trial counsel could not have had any way of knowing that a

toxicology screen was needed. Upon learning that Hall had taken white pills, there

was still no way for trial counsel to request a toxicology screen because Hall could

not specify what kind of pills he had ingested. Presumably, had Hall exhibited any

signs at first appearance evidencing he was still under the influence of drugs, trial

counsel might then have requested a court-ordered toxicology screen. However,

no mention was made about Hall exhibiting any type of unusual behavior that

would have placed trial counsel on notice of the need for a drug screening.

Moreover, the testimony of those closest to Hall immediately before and

2. Similarly, attorney Valerino testified that a toxicology screen was not
requested because the attorneys did not know what substances Hall had taken and
thus did not know what to ask the lab to test for.

- 22 -
immediately after the murder supports the assertion that Hall was not acting as

though he was intoxicated.3

In light of trial counsel’s lack of notice that a toxicology screen may have

been warranted, attorneys Valerino and Phillips cannot be deficient for failing to

request this screen. As the postconviction court noted, “Counsel cannot be

considered deficient for failing to do something they could not do.” Furthermore,

counsel was not provided with discovery that revealed Prince’s Tegretol blister

pack until three weeks after the murder, at which point a drug screen would have

been unreliable. Upon learning that Tegretol was found in Prince’s office, counsel

then diligently proceeded to hire Dr. Buffington to provide neuropharmacological

testimony about the effects of the drug.

3. FDLE Special Agent Steven Miller stated that he did not order a
toxicology screen because he “didn’t feel it was necessary, nor was I the only
person making that decision. I mean, we had a supervisor on scene, the deputy
chief. And I was not the case agent on the investigation, but quite frankly, I wasn’t
sure what to believe. He—there was several—during the three interviews, there
were several things that changed.” Similarly, attorney Valerino, in explaining why
the issue of stress was not presented to the jury, testified that multiple inmates were
deposed and none mentioned that Hall had been acting differently the day of the
murder. However, Inspector Joiner testified that Hall did not appear to be
intoxicated, although “he seemed to be dazed” and impaired by a substance, such
that drug testing may have been appropriate under DOC policy. Hall’s demeanor
improved as he gave the three separate interviews and he gradually became
increasingly responsive to FDLE’s questions.

- 23 -
 Hall also contends that the State did not present any expert testimony at the

evidentiary hearing to prove that no comprehensive toxicological test exists. This

claim, however, ignores the fact that the defendant carries the burden to show that

counsel’s performance was deficient. See Robinson v. State, 707 So. 2d 688, 694

(Fla. 1998). Thus, it was Hall’s responsibility, not the State’s, to present testimony

that such comprehensive toxicological tests do in fact exist and could have been

utilized by trial counsel. Hall’s claim attempts to establish trial counsel’s

deficiency by using the distorting effects of hindsight to allege error. We conclude

that competent, substantial evidence supports the postconviction court’s finding

that counsel were not deficient.

Dr. Buffington’s Testimony

Hall next asserts that trial counsel were deficient for failing to successfully

present Dr. Buffington’s neuropharmacological testimony by arguing that this

testimony was relevant to prove motive, rather than a mental health defense.

We hold that Hall has once again failed to demonstrate that counsel was

deficient. Competent, substantial evidence supports the postconviction court’s

finding that counsel’s choice of argument was a strategic one and thus was not

deficient. Hall asserts that counsel argued for the admission of this testimony

based on the wrong legal justification, a mental health defense, and that this

amounted to deficient performance. At its core, however, this alleged failure is

- 24 -
based on postconviction counsel’s disagreement with trial counsel’s strategic

choice of argument, rather than trial counsel’s failure to do something that any

reasonable attorney would do under the norms of professional conduct.

Notably, although Hall contends that trial counsel failed to present Dr.

Buffington’s testimony to the jury, attorneys Valerino and Phillips did attempt to

present Dr. Buffington’s testimony by proffering his statement to Judge Walsh, but

were simply unsuccessful. See Bradley, 33 So. 3d at 680 (“Although the strategy

chosen by trial counsel . . . did not prevail, that fact alone does not render the

strategy unreasonable or deficient.”); Heath v. State, 3 So. 3d 1017, 1029 (Fla.

2009) (“The fact that this defense strategy was ultimately unsuccessful . . . does not

render counsel’s performance deficient.”); Henry v. State, 948 So. 2d 609, 616

(Fla. 2006) (“It is all too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence . . . .” (quoting Strickland, 466 U.S.

at 689)).

Attorney Valerino testified at the evidentiary hearing that he attempted to

offer Dr. Buffington’s testimony to challenge premeditation,4 but the court found

4. During counsel’s argument after the proffer, attorney Valerino explained
the relevance of Dr. Buffington’s testimony to the trial judge as follows:

The testimony of Dr. Buffington is important because it goes to
the issue of whether there was premeditation or not on the part of Mr.
Hall at the time that this unfortunate incident occurred. According to

- 25 -
the argument to be one of diminished capacity due to mental illness, which was

inadmissible at the guilt phase. Similarly, at the evidentiary hearing, when

attorney Phillips was asked if he considered “offering Dr. Buffington to explain to

a jury what Tegretol is, why you might want more, you know, motive for staying

[behind],” Phillips explained, “[Y]ou know, first off, we would like Dr. Buffington

to be able to testify to that, but I just don’t think there is—there is a mechanism for

that kind of testimony to come in during a—the guilt phase.” Trial counsel’s

testimony reflects that they attempted to present Dr. Buffington’s testimony to

challenge premeditation, but were ultimately unsuccessful in doing so because the

court ruled that the testimony was inadmissible. Additionally, attorney Phillips’

opinion that this testimony would not have been admissible to show Hall’s motive

the testimony of Dr. Buffington, Mr. Hall identified to him . . . that he
had taken Tegretol.
I think the testimony of Dr. Buffington shows that there are side
effects of Tegretol. Some are naturally associated, such as headaches,
dizziness, drowsiness, aggression, agitation, hallucinations,
disturbance of balance, confusion, speech abnormality, depression
with agitation, visual disturbance.
. . . And not only those side effects, but there’s the potential
side effects of the ability to unmask any underlying psychiatric
conditions.
....
So, again, we’re not going for voluntary intoxication. We’re
not asking for an instruction on insanity. We’re not asking for an
instruction on mental health.
This, we believe, is relevant as to the issue of premeditation.

- 26 -
for staying late further exemplifies the reasoning for the argument presented after

the proffer. See Lukehart v. State, 70 So. 3d 503, 513 (Fla. 2011) (“Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.” (citing

Ferrell v. State, 29 So. 3d 959, 975 (Fla. 2010); Mungin v. State, 932 So. 2d 986,

997 (Fla. 2006))).

Therefore, we conclude that trial counsel were not deficient for failing to

proffer Dr. Buffington’s testimony by not arguing that it was relevant to explain

Hall’s motive for staying late to search for pills, rather than unmasking an

underlying mental illness.

Inconsistencies in Hall’s Confessions

Hall next alleges that trial counsel were deficient, both at the suppression

hearing and the guilt phase of trial, for failing to present testimony and medical

evidence of Hall’s injuries to explain the inconsistencies in Hall’s confessions. We

hold that Hall has failed to establish deficiency under this sub-claim.

Suppression Hearing

With regard to deficiency for failing to obtain and present expert medical

testimony with regard to Hall’s black eye and alleged limp, we conclude that

competent, substantial evidence supports the postconviction court’s finding that

trial counsel were not deficient. The record reflects that the injury that was

primarily noticed by everyone who came into contact with Hall on the night of the

- 27 -
murder was his black eye. When asked why no medical expert testimony was

presented to attempt to explain when exactly might Hall have incurred the black

eye, attorney Valerino offered the following testimony:

Well, there was no doubt that Mr. Hall had a black eye, so I
don’t think that could be disputed.
The problem was trying to develop testimony in light of the—
some argument in light of the fact that all the corrections officers said
they didn’t hit him.
Something that we could try to convince the judge that maybe
they weren’t absolutely honest, but we would never be able to prove
the State—disprove the State’s argument that Mr. Hall could have
gotten these injuries, the black eye, in confrontation with Ms.
Fitzgerald during the incident where she was killed.
I mean, the reality of it was I did not believe Judge Walsh was
going to believe all these corrections officers were lying about who—
whether or not they hit Mr. Hall.
Valerino further supported his decision not to call a medical expert to testify about

Hall’s black eye, and compare its development to CO Fitzgerald’s black eye to

determine when the injury occurred, by explaining that he felt that he would not

have been able to “draw a corollary between the two because Officer Fitzgerald

was found with her head below her body, hanging upside-down, essentially, and

that she was deceased, so the blood would not have been pooling the same way and

along the same time lines.”

Similarly, Hall contends that he was limping after the alleged injuries and

that this limp was noted by a nurse who examined him the night of the murder and

was also evident in a video of him being transported to Florida State Prison.

- 28 -
However, aside from the nurse who originally noted a limp, whose testimony was

never presented, and Dr. Maher, who was retained for the evidentiary hearing, no

other witness noted Hall’s limp, including attorney Valerino, who briefly observed

him walking at first appearance. FDLE Special Agent Steven Miller testified that

Hall was shuffling his feet due to belly shackles, but did not seem to be in any

pain.

Hall also presented a picture of his shoulders and back at the evidentiary

hearing to show his bruised and scratched skin. Attorney Valerino testified that

this photo was not presented during the suppression hearing because he did not feel

that the photo definitively showed the existence of injuries. In sum, Hall asserts

that these injuries could have been used, and explained through expert testimony,

to corroborate his allegations of abuse. This assertion, however, is predicated on

Hall’s disagreement with trial counsel’s underlying strategy and his ability to find

a more favorable witness to testify at the evidentiary hearing.

Attorney Valerino testified that his strategy at the suppression hearing was to

try to call into question the correction officers’ testimony through cross-

examination to ultimately argue the possibility that the officers were not being

truthful. He considered presenting the picture of Hall’s back and shoulders but did

not find it to be persuasive. He also reviewed the video that Hall claims shows him

using the wall to support himself and testified that he did not note Hall limping, but

- 29 -
he did notice that he was belly-shackled, chained at the ankles, and shuffling to

walk in shower shoes. Attorney Valerino assessed the persuasiveness of the

evidence he had available to him and attempted to anticipate any shortcomings that

the State could capitalize on in deciding how to proceed at the suppression hearing.

We have observed that mere disagreement by a defendant’s subsequent

counsel with a strategic decision of a predecessor does not result in deficient

performance. See Occhicone, 768 So. 2d at 1048. In addition, we have previously

held that trial counsel’s strategy of relying on cross-examination of a witness—in

lieu of calling additional witnesses—was sound trial strategy. See id.

Postconviction counsel’s ability to find a more favorable witness for the

evidentiary hearing has no bearing on the effectiveness of trial counsel’s not

having done so. Stephens v. State, 975 So. 2d 405, 413-14 (Fla. 2007).

The record reflects that counsel chose to elicit testimony on cross-

examination to support the theory that Hall had been injured, through evidence

establishing the timeline of when Hall’s eye injury became noticeable to the

officers, rather than relying on expert medical testimony that would likely be

rebutted by the State. Counsel considered the possibility of introducing additional

evidence of the injuries through the photo of Hall’s back and the limp that was

only noted by one person, despite Hall’s encounter with multiple people on the

night of the murder, yet he ultimately rejected these avenues as being

- 30 -
unpersuasive. Hall’s current claim challenges trial counsel’s strategic decisions at

the suppression hearing and uses the more favorable testimony of Dr. Maher to

support it. Based on attorney Valerino’s testimony with regard to his actions at the

suppression hearing, we hold that competent, substantial evidence supports the

postconviction court’s finding that counsel’s conduct was justified as reasonable

trial strategy, and thus Hall has failed to show deficiency at the suppression

hearing.

Guilt Phase

With regard to the claim of deficiency for failing to present evidence of the

alleged injuries to the jury and failing to obtain a mental health expert to testify as

to the effects of fear, head trauma, epilepsy, cognitive disorders, and PTSD on

memory to justify the inconsistencies in Hall’s confessions, Hall has also failed to

establish deficient performance. While no testimony was elicited from trial

counsel at the evidentiary hearing about why a mental health expert did not testify

to the effects that epilepsy, cognitive disorders, and PTSD might have on memory,

attorney Phillips’ testimony regarding his decision not to call Dr. Krop during the

guilt or penalty phase provides some explanation. Throughout the trial, counsel

was careful not to elicit any testimony concerning Hall’s previous history of

violent sexual offenses or his mental health issues in an attempt to not taint the

jury’s mind with potentially negative information. For example, Dr. Krop did not

- 31 -
testify at the penalty phase because trial counsel wanted to avoid the jury hearing

the State’s rebuttal mental health expert testimony, including Hall’s paraphilia

diagnosis and his inconsistent statements to the State’s mental health expert.

Presumably, trial counsel did not want to elicit testimony with regard to

Hall’s numerous mental health issues because they did not want to taint the jury’s

mind, rather than supplement their case. Specifically, had trial counsel chosen to

present this testimony, the State would likely have presented their rebuttal expert to

testify about Hall’s mental health issues, including his diagnosis of paraphilia,

which could have significantly damaged the defense’s case, rather than help

explain the inconsistencies in Hall’s confessions.

Attorney Valerino testified at the evidentiary hearing that he filed Hall’s

motion to suppress because he felt obligated to do so upon learning of Hall’s

allegations against the TCI officers, but that the suppression of Hall’s confessions

would have been problematic in light of their anticipated theory of defense. Once

the motion to suppress was denied, trial counsel chose to pursue a different theory

for Hall’s trial than they had during the suppression hearing. Counsel made the

strategic decision not to present the alleged abuse to the jury because they felt that

it was inconsistent with the theory they were presenting. Specifically, at the

evidentiary hearing, Valerino explained:

[State]: But because your ultimate strategy was just that the
State didn’t prove its ultimate case and you were having to rely on

- 32 -
 Enoch Hall’s version of events, you didn’t want to really attack his
statements as to any inconsistencies because you were relying on his
statements; is that a fair—
[Attorney Valerino]: Right. And that’s why I didn’t want to
bring up issues about his statement was coerced or things of that
nature because our theory was he freely and voluntarily spoke with
the police.
(Emphasis added.)

Attorney Valerino had a similar explanation for why he chose not to present

evidence to the jury of the effect that fear and head trauma from beatings could

have on memory. He also explained the confession inconsistencies as being due to

Hall’s attempts to clarify his statements as he remembered more about what had

transpired. Thus, counsel justified his reasoning for not presenting evidence of the

injuries to the jury as being a reasonable strategic decision that was consistent with

the theory of defense presented. We conclude that Hall has failed to establish

deficiency in light of the pervasive evidence in the record that trial counsel’s

actions were strategic and reasonable.

CO Evins’ Testimony

Hall’s next claim contends that trial counsel was ineffective for failing to

object to CO Evins’ trial testimony concerning the procedures that he followed

when closing down the PRIDE overtime shift because he was not listed on the

State’s witness list and only testified about the procedures that he personally

- 33 -
followed in closing down PRIDE, rather than those that CO Fitzgerald and all

supervising PRIDE officers followed. We disagree.

Frederick Evins, who testified at trial for the State, worked the overtime shift

at PRIDE around the time of the murder. CO Evins testified as to the procedures

he followed when closing down the PRIDE overtime shift, which included locking

up all tools and offices before closing and searching all inmates before dismissing

them. Evins testified that he noticed that Hall had developed a habit of being the

last inmate to leave PRIDE, but he would never allow an inmate to stay behind

after the supervising officer left. Evins also testified that Hall usually worked

alongside another welder. When Hall was late coming to check out, the other

welder he worked with was, on occasion, also one of the last inmates to check out

of PRIDE.

Deficiency

Hall has failed to establish deficiency for this claim. Competent, substantial

evidence supports the postconviction court’s finding that trial counsel was not

deficient for failing to object to CO Evins’ testimony at trial. The record shows

that, although CO Evins was not listed on the State’s witness list before trial,

attorneys Valerino and Phillips were not surprised by Evins’ testimony because

they had already deposed him for their own mitigation investigation and thus had

knowledge of the substance of his testimony before trial. Moreover, attorney

- 34 -
Valerino testified at the evidentiary hearing that he did not object to CO Evins’

testimony because he “did not feel that his testimony was objectionable.” Attorney

Valerino explained that he would have objected, had he felt that the testimony was

irrelevant or had some valid theory under which to do so.

This Court, in Brown v. State, 846 So. 2d 1114, 1122 (Fla. 2003), agreed

with the trial judge’s finding that counsel was not deficient for failing to object to

the statements made by a witness because he found that counsel’s failures to object

were “trial tactics on his part not to object to what he perceived as very minor

hearsay matters.” Id.5 We ultimately agreed with the trial court that counsel’s

decisions not to object were strategic and thus not deficient, stating:

We concur in the trial court’s evaluation that, considering trial
counsel’s philosophy, it does not appear to be deficient performance
on his part not to object. “Counsel’s strategic decisions will not be
second-guessed on collateral attack.” Johnson v. State, 769 So. 2d
990, 1001 (Fla. 2000) (citing Remeta v. Dugger, 622 So. 2d 452 (Fla.
1993)).
Id.; see also Peterson v. State, 154 So. 3d 275, 280 (Fla. 2014) (counsel is not

deficient for failing to raise a meritless objection).


5. Similarly, the trial court in Brown also found that “counsel was not
deficient in failing to object to the prosecutor’s statements. Noting counsel’s
hearing testimony in which he stated that being judicious with his objections is a
part of his style, in order to avoid antagonizing the jury and losing credibility, the
court found no demonstration of ineffectiveness or prejudice.” Brown, 846 So. 2d
at 1122.

- 35 -
 Hall further argues that CO Evins’ testimony was irrelevant because PRIDE

officers received no formal training and there were no administrative procedures

for PRIDE officers to follow. Thus, CO Evins’ testimony only reflected his own

individual closing procedures, rather than those of PRIDE officers as a whole.

This assertion, however, disregards the internal operating practice that, while

PRIDE officers may have received no formal training, training procedures are in

fact informally passed down from previous PRIDE supervisors. This sheds light

on the relevance of CO Evins’ testimony by providing circumstantial evidence of

informal procedures that are passed down from one officer to another. In light of

this informal training, CO Evins’ testimony could reflect the possible procedures

that CO Fitzgerald used to close down PRIDE on the night of the murder, based on

these verbally transmitted training procedures. Thus, we conclude that trial

counsel was not deficient for failing to object to CO Evins’ testimony at trial

because it was a reasonable strategic decision.

Prejudice

Even if counsel was deficient for failing to object to CO Evins’ testimony,

Hall has failed to show that this deficiency prejudiced the outcome of his case.

Had this objection been sustained and Evins’ testimony not been presented to the

jury, the outcome of Hall’s case would likely have been the same because Evins’

brief testimony did not lay any foundation to establish the State’s case of

- 36 -
premeditation. While Hall contends that the lack of this testimony would have

allowed counsel to challenge the State’s theory of premeditation, this again ignores

Hall’s own confession that, after being confronted by CO Fitzgerald in Prince’s

office while Hall was looking for pills, he ran and hid in the welding shed with

Prince’s shank, knowing that she was looking for him, and stabbed her to death

once she found him. Hall’s anticipation that CO Fitzgerald was coming to look for

him alone and unarmed was not what established the State’s theory of

premeditation; rather, Hall’s own rendition of what happened on the night of the

murder established premeditation. Thus, the outcome of Hall’s case would likely

have been the same even without CO Evins’ testimony. Therefore, we conclude

that Hall was not prejudiced by counsel’s failure to object, and this claim of

ineffective assistance fails.

Mitigation Investigation

Hall next asserts that trial counsel were ineffective for failing to adequately

investigate and present mitigating evidence at the penalty phase. We disagree.

Deficiency

First, Hall has failed to establish deficiency. “An attorney has a duty to

conduct a reasonable investigation, including an investigation of the defendant’s

background, for possible mitigating evidence,” but not necessarily to run down

every possible lead. Sochor, 883 So. 2d at 772 (quoting Rose v. State, 675 So. 2d

- 37 -
567, 571 (Fla. 1996)). “Strickland does not require counsel to investigate every

conceivable line of mitigating evidence no matter how unlikely the effort would be

to assist the defendant at sentencing.” Taylor v. State, 3 So. 3d 986, 998 (Fla.

2009) (quoting Wiggins v. Smith, 539 U.S. 510, 533 (2003)). Furthermore, as the

Supreme Court noted in Strickland, “[t]he reasonableness of counsel’s actions may

be determined or substantially influenced by the defendant’s own statements or

actions.” Strickland, 466 U.S. at 691. We have previously concluded that trial

counsel is not ineffective for failing to discover mitigation that the defendant and

his family have concealed. Asay v. State, 769 So. 2d 974, 987-88 (Fla. 2000)

(finding no ineffectiveness for failing to discover that the defendant was sexually

abused when the defendant and his family were not forthcoming with the

information, even though trial counsel was aware of the defendant’s rough

childhood); Diaz v. State, 132 So. 3d 93, 114 (Fla. 2013) (finding no

ineffectiveness for failing to discover information regarding sexual abuse that Diaz

and his family did not disclose).6

6. For additional cases where the defendant either failed to disclose
mitigation or instructed counsel not to conduct a penalty phase investigation, see
Reed v. State, 640 So. 2d 1094, 1097 (Fla. 1994) (“[W]hen a defendant has given
counsel reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.”) (quoting Strickland, 466 U.S. at 691); Bryan v.
State, 748 So. 2d 1003, 1007 (Fla. 1999) (finding Bryan’s ineffective assistance of

- 38 -
 Competent, substantial evidence supports the postconviction court’s finding

that trial counsel’s investigation into Hall’s family background was comprehensive

and thus not deficient. The record supports the assertion that trial counsel,

Investigator Ryan, and Dr. Krop all, whether individually or together, traveled to

Hall’s hometown to interview his family, friends, and old coaches, extensively

searched the Florida Panhandle for any records that could serve as mitigation, and

presented testimony of relatives and friends to the jury to establish mitigation at the

penalty phase. Despite numerous interviews with Hall’s parents and brother, no

information surfaced with regard to adverse consequences related to his mother’s

infidelity, even when Hall’s father was briefly asked about his divorce.

Hall’s current claim exists only because he and his family were not

forthcoming with information concerning his mother’s infidelity and because Hall

specifically asked that Investigator Ryan not contact certain family members.

Nevertheless, trial counsel still provided effective representation by continuing to

investigate other avenues of mitigation, and doing so in such a diligent manner that

they were able to recover records concerning Hall’s alleged rape in Escambia

County Jail, despite encountering numerous hurdles along the way. Cf. Ventura v.

State, 794 So. 2d 553, 570 (Fla. 2001) (finding counsel deficient for relying on the

counsel claim was properly denied because he failed to provide his counsel with
the mitigating facts).

- 39 -
defendant as the sole source for mitigation after the defendant instructed counsel

not to involve his family in his trial).

Hall relies on two cases to show that trial counsel’s mitigation investigation

was not reasonable: Sears v. Upton, 561 U.S. 945 (2010), and Ferrell v. Hall, 640

F.3d 1199 (11th Cir. 2011). We find both of these cases to be distinguishable from

Hall’s case. In Sears, counsel was found deficient for presenting evidence of

Sears’ “ideal” childhood, when Sears was in fact seriously intellectually disabled

and was verbally, physically, and emotionally abused as a child. Sears, 561 U.S. at

946, 948. This is distinguishable from Hall’s case because Hall’s counsel

presented accurate mitigation about his childhood, but simply failed to discover

and present his mother’s infidelity. Moreover, in Ferrell, counsel was deficient

because of a failure to uncover pervasive mental health mitigation, despite clear

signs in the medical and academic records, due to the seriously limited

investigation and questioning by the defense team and mental health expert.

Ferrell, 640 F.3d at 1227-28. Conversely, here, Hall’s defense team conducted

extensive questioning, mental health testing, and investigation without limiting

their search, but were still unsuccessful in uncovering his mother’s infidelity or any

alleged adverse consequences. We conclude that the cases Hall relies on are

inapposite and that trial counsel were not deficient for failing to uncover evidence

of Hall’s mother’s infidelity in light of the comprehensive investigation conducted.

- 40 -
 Prejudice

Even if trial counsel was deficient for failing to adequately investigate Hall’s

family history, we hold that Hall has failed to establish prejudice. “To assess [the]

probability [of a different outcome under Strickland], we consider the totality of

the available mitigation evidence—both that adduced at trial, and the evidence

adduced in the [evidentiary hearing]—and reweig[h] it against the evidence in

aggravation.” Sears, 561 U.S. at 955-56 (first, second, and fourth alterations in

original) (quoting Porter v. McCollum, 558 U.S. 30, 41 (2009)). “[T]his Court has

reasoned that where the trial court found substantial and compelling aggravation,

such as commission while under sentence of imprisonment, prior violent felonies,

commission during a burglary, and CCP, there was no reasonable probability that

the outcome would have been different had counsel presented additional mitigation

evidence . . . .” Asay, 769 So. 2d at 988.

In Hall’s case, the trial court found five aggravators: (1) previously

convicted of a felony and under sentence of imprisonment; (2) previously

convicted of another capital felony or of a felony involving the use or threat of

violence to the person; (3) committed to disrupt or hinder the lawful exercise of

any governmental function or the enforcement of laws; (4) especially heinous,

atrocious or cruel; (5) cold, calculated, and premeditated (CCP); (6) the victim of

the capital felony was a law enforcement officer engaged in the performance of his

- 41 -
or her official duties—merged with aggravator number 3. We later rejected the

CCP aggravator on direct appeal. However, each of the four remaining

aggravators were afforded great weight or very great weight. Given the significant

aggravators found against Hall, and the comparatively weak mitigation found, it is

unlikely that evidence of Hall’s mother’s infidelity, and Hall’s alleged resulting

hostility towards women, would have sufficed to outweigh the established

aggravation. Therefore, we conclude that Hall’s case was not prejudiced by trial

counsel’s failure to further investigate and present Hall’s family background.

Failure to Present Dr. Krop

Hall’s next claim contends that trial counsel were ineffective for failing to

present the expert mental health testimony of Dr. Krop during the penalty phase.

We disagree.

Deficiency

Hall has failed to establish deficiency with regard to this claim. Competent,

substantial evidence supports the postconviction court’s finding that trial counsel

was not deficient for failing to call Dr. Krop to testify as to mental mitigation in

light of his negative testimony about Hall and the potential for the jury’s exposure

to even more negative evidence through the State’s rebuttal expert.

After the jury returned Hall’s guilty verdict, the State’s rebuttal expert, Dr.

Danziger, interviewed Hall. In preparation for his final meeting with Hall, Dr.

- 42 -
Krop reviewed Danziger’s interview and identified several inconsistencies in the

statements made by Hall to both experts, such as his motive for pulling CO

Fitzgerald’s pants down and how many pills he had ingested on the night of the

murder. When confronted with these inconsistencies, Hall admitted that he had

considered raping Fitzgerald after he had killed her. Attorney Phillips met with

appellate attorney Chris Quarles and Dr. Krop to discuss whether these new

statements changed Dr. Krop’s testimony. In his memo to the file, Dr. Krop

explained:

The following is a summary of a “strategy” meeting involving Mr.
Hall’s attorneys, Dr. Buffington, and myself held on October 27th,
2009. Based on extensive discussion, it was decided that testimony
from this expert would most likely be detrimental to Mr. Hall in that
the negatives would far outweigh any possible assistance.

Ultimately, the defense team made the decision not to present Dr. Krop, in light of

Hall’s harmful statements and Dr. Danziger’s opinion that Hall was malingering

and had paraphilia, not otherwise specified.

Hall relies on a number of cases in support of his assertion that counsel’s

actions concerning Dr. Krop were unreasonable. However, the cases presented fail

to address the issue of whether counsel’s strategic decision not to present mental

mitigation was reasonable under the circumstances. Instead, the cases Hall relies

on in support of his claim involve situations where counsel failed to investigate or

develop any mental mitigation, despite the clear warnings that this mitigation

- 43 -
existed. Hildwin,7 Orme,8 and Willacy9 all involve the total failure of counsel to

investigate mental health mitigation that existed and the resulting failure to present

this mitigation to the jury, rather than counsel’s strategic decision not to call

certain potentially harmful witnesses. Duncan10 involved trial counsel failing to

call his previously hired mental health expert to testify as to mental mitigation.

Unlike in Hall’s case, the Court in Duncan found no evidence in the record to

support the failure to present this mental health expert, nor could counsel justify

his decision not to do so at the evidentiary hearing. Duncan, 894 So. 2d at 825-26.

Conversely, counsel in the present case made the strategic decision not to

present Dr. Krop during the penalty phase based on Krop’s damaging testimony

about Hall’s inconsistent statements to the State’s mental health expert, his

statements that he considered raping CO Fitzgerald after he murdered her, his

statements that he was plotting to escape with CO Fitzgerald’s uniform, and his

varying statements concerning how many pills he consumed on the day of the

murder. Counsel’s ultimate decision was not unreasonable based on the evidence

in the record and the testimony from the evidentiary hearing; rather, it was a

7. Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995).

8. Orme v. State, 896 So. 2d 725 (Fla. 2005).

9. Willacy v. State, 967 So. 2d 131 (Fla. 2007).
10. State v. Duncan, 894 So. 2d 817 (Fla. 2004).

- 44 -
calculated decision aimed at avoiding exposing the jury to further damaging

testimony that could be considered additional aggravation.

We hold that Hall’s case is more comparable to that of Gaskin v. State, 822

So. 2d 1243 (Fla. 2002), because in Gaskin, the expert similarly warned trial

counsel that his testimony would likely be damaging due to Gaskin’s extensive

criminal history, sexual deviancy, and lack of remorse. Id. at 1248. Counsel in

Gaskin assessed the pros and cons of presenting the expert in light of his damaging

testimony and ultimately decided not to use the witness due to the risk that the jury

would consider Gaskin’s negative past as aggravation. Id. In Gaskin, we found

this to be a reasonable strategic decision because counsel did, in fact, conduct a

diligent mental health mitigation investigation, but later made the strategic decision

not to present that mitigation witness to the jury. Id.

Trial counsel will not be held to be deficient when she makes a
reasonable strategic decision not to present mental mitigation
testimony during the penalty phase because it could open the door to
other damaging testimony. See Ferguson v. State, 593 So. 3d 508,
510 (Fla. 1992) (finding that counsel’s decision to not put on mental
health experts was a “reasonable strategy in light of the negative
aspects of the expert testimony” because the experts had indicated that
they thought that the defendant was malingering, a sociopath, and a
very dangerous person).

Id. at 1248. We conclude that the decision on this expert witness was a reasonable

strategic decision, in light of the circumstances, and hold that Hall has failed to

establish deficiency.

- 45 -
 Prejudice

Hall has also failed to establish prejudice for this claim. Due to the

significant aggravation in Hall’s case, there is no reasonable probability that Dr.

Krop’s testimony regarding his mental health diagnoses would have outweighed

the substantial and compelling aggravation. It is more likely that the jury would

have heard Dr. Krop’s testimony and the State’s rebuttal mental health expert’s

testimony and decided that the testimony justified finding further aggravation.

Therefore, we conclude that trial counsel’s failure to call Dr. Krop to present

evidence that would include damaging mental evidence did not prejudice the

outcome of Hall’s case and Hall’s claim thus fails.

Extreme Mental and Emotional Disturbance Instruction

Hall’s next claim contends that trial counsel were ineffective for failing to

request the statutory mitigating instruction of extreme mental and emotional

disturbance. We disagree.

Deficiency

Hall has failed to establish trial counsel’s deficiency with regard to this

claim. Competent, substantial evidence supports the postconviction court’s finding

that trial counsel was not deficient for failing to request the statutory mitigating

instruction for extreme mental and emotional disturbance. We have previously

held:

- 46 -
 [T]he “Defendant is entitled to have the jury instructed on the rules of
law applicable to this theory of the defense if there is any evidence to
support such instructions.” Hooper v. State, 476 So. 2d 1253, 1256
(Fla. 1985), cert. denied, 475 U.S. 1098 (1986) (emphasis added);
Smith v. State, 492 So. 2d 1063 (Fla. 1986). Regarding mitigating
factors dealing with extreme mental or emotional disturbance, we
have stated that where a defendant has produced any evidence to
support giving instructions on such mitigating factors, the trial judge
should read the applicable instructions to the jury. Toole v. State, 479
So. 2d 731 (Fla. 1985).

Bryant v. State, 601 So. 2d 529, 533 (Fla. 1992) (emphasis in original) (footnote

omitted).

The State and the postconviction court correctly compare Hall’s case to

Nelson v. State, 43 So. 3d 20 (Fla. 2010), where trial counsel was not found to be

ineffective for failing to request the statutory mitigating instruction of extreme

mental or emotional disturbance because it was a reasonable tactical decision based

on counsel’s concern that the State would successfully argue that this mitigation

was not established. Id. at 32. Postconviction counsel in Nelson attempted to

argue that trial counsel’s strategy was not reasonable because it was based on

ignorance of controlling case law. Id.

Similarly, here, Hall alleges that counsel’s failure to request this mitigating

instruction was also based on ignorance rather than strategy. However, the record

reflects otherwise. As discussed above, counsel made a strategic decision not to

present Dr. Krop to address mental mitigation. Furthermore, Dr. Buffington’s

testimony at the penalty phase was limited only to the potential side effects that

- 47 -
Tegretol could produce, although counsel had originally hoped that Dr. Buffington

would also testify that Tegretol may have unmasked Hall’s underlying mental

illness on the night of the murder. Consequently, counsel did not have the

predicate evidence needed to support the request for the statutory mitigating

instruction of extreme mental and emotional disturbance and thus decided to use

the “catch all” instruction under the circumstances. See Looney v. State, 941 So.

2d 1017, 1030 (Fla. 2006) (“[S]trategic 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.”

(quoting Howell v. State, 877 So. 2d 697, 703 (Fla. 2004))). Therefore, we

conclude that Hall has failed to establish trial counsel’s deficiency for failing to

request this statutory mitigating instruction.

Prejudice

Even if counsel were deficient in failing to request the statutory mitigating

instruction of extreme mental or emotional disturbance, Hall has also failed to

establish prejudice. Competent, substantial evidence supports the postconviction

court’s conclusion that this failure did not prejudice Hall. Even if the instruction

had been given, the outcome in Hall’s case still would not have changed because

the State presented significant evidence to disprove that Hall was under any mental

or emotional disturbance on the night of the murder. Thus, Hall cannot establish a

- 48 -
reasonable probability that this instruction would have changed the jury’s decision

to recommend the death penalty and our confidence is not undermined. Moreover,

as discussed above, given the substantial aggravation found in Hall’s case, it is

highly unlikely that the finding of the extreme mental or emotional disturbance

mitigator would have shifted the balance of the significant aggravation. Therefore,

we find that Hall has failed to establish that the outcome of his case was prejudiced

by the lack of this instruction and thus this claim fails.

Hall’s Medical History

Hall’s next claim argues that trial counsel were ineffective for failing to

bring Hall’s medical history of epilepsy to Dr. Krop’s attention through Hall’s

Department of Corrections (DOC) medical records, where he self-reported

experiencing a seizure in 2002, despite having no medical documentation of any

seizures in his records since 1995. Hall claims that trial counsel’s failure to

explicitly point this fact out to Dr. Krop amounted to ineffective assistance of

counsel. We disagree.

Deficiency

First, we conclude that Hall has failed to establish deficiency with regard to

this claim. We note that Hall’s brief merely incorporates the arguments made

under Issues 2, 4, and 5, rather than providing any independent analysis to support

- 49 -
this claim.11 Due to our conclusions above, we similarly conclude here that Hall

has failed to establish either deficiency or prejudice. Additionally, because Hall

did not present Dr. Krop to testify at the postconviction hearing as to what

evidence he did or did not consider in his analysis, Hall has failed to meet his

burden of proof on this issue. Nevertheless, in reviewing this claim on the merits,

we hold that competent, substantial evidence supports the postconviction court’s

finding that counsel was not deficient because Dr. Krop had the information at

issue and there is no evidence that he did not consider this information in making

his report.

Hall has provided no evidence in support of his claim that Dr. Krop failed to

review and consider Hall’s previous diagnoses of epilepsy and psychosis in making

his findings. Furthermore, the record shows that counsel provided Dr. Krop with

11. While we have nonetheless analyzed this claim, this Court has
previously commented on parties’ failure to offer arguments in support of their
claims. As we explained in Bradley, 33 So. 3d at 685,

vague and conclusory allegations are insufficient to warrant relief.
See Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008) (“[T]o merely
refer to arguments presented during the postconviction proceedings
without further elucidation is not sufficient . . . and these claims are
deemed to have been waived.”); Thompson v. State, 759 So. 2d 650,
668 (Fla. 2000) (denying habeas claim, in part, as legally insufficient
because defendant made only a conclusory statement without specific
supporting facts). The purpose of a legal brief is to offer argument in
support of the issues raised on appeal. See Doorbal, 983 So. 2d at
482.

- 50 -
all of Hall’s medical records, including the DOC records that reflected Hall’s

report of a 2002 seizure. Hall now attempts to present Dr. Maher’s more favorable

diagnosis of epilepsy in support of his claim of ineffective assistance of counsel.

Based on counsel’s comprehensive investigation in developing mitigation and the

fact that Dr. Krop had the records that Hall now claims were disregarded, we hold

that Hall’s claim of deficiency is meritless.

Prejudice

Furthermore, Hall has failed to establish prejudice. Competent, substantial

evidence supports the postconviction court’s findings that trial counsel’s actions

did not prejudice Hall. Hall’s current claim seemingly ignores the fact that counsel

chose not to have Dr. Krop testify at the penalty phase, due to his unfavorable

testimony with regard to the inconsistent statements Hall made to Dr. Danziger,

Hall’s paraphilia disorder, and his statement that he considered raping CO

Fitzgerald after he murdered her. In light of this fact, Hall cannot demonstrate that

he was prejudiced by the allegedly flawed investigation because Dr. Krop’s

testimony would not have been presented to the jury regardless. None of the

additional evidence that Hall uses to justify his claim would dispel trial counsel’s

concerns with regard to Dr. Krop’s potentially harmful testimony. Further, Hall’s

diagnoses of epilepsy and psychosis were disputed by the State’s mental health

expert, Dr. Danziger. Hall simply has provided no evidence to support his

- 51 -
argument that this testimony reasonably could have caused the jury to recommend

a life sentence rather than the death penalty. Therefore, we conclude that Hall has

failed to establish prejudice under Strickland in light of both the analysis in this

section and our conclusions in the issues discussed above.

Cumulative Error

Hall further contends that the postconviction court erred in finding that he

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

and penalty phases. We disagree. 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, So. 2d 370, 380 (Fla. 2005)); see

also Griffin v. State, 866 So. 2d 1, 22 (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, Hall has failed to demonstrate that the postconviction

court erred in finding that no Strickland error occurred. As a result, Hall has not

alleged a proper basis for cumulative error.

Incompetence at the Time of Execution

Hall asserts that his Eighth Amendment right under the United States

Constitution against cruel and unusual punishment will be violated because he may

- 52 -
be incompetent at the time of execution. We find that this claim is not ripe for

consideration. Individuals who lack the mental capacity to understand their

pending execution and the reasons for it cannot be executed. Fla. R. Crim. P.

3.811; see Barnes v. State, 124 So. 3d 904, 918 (Fla. 2013). However, claims of

future incompetence are not ripe for decision until a death warrant has been issued

for a given individual. See Fla. R. Crim. P. 3.811(c) (“No motion for a stay of

execution pending hearing, based on grounds of the prisoner’s insanity to be

executed, shall be entertained by any court until such time as the Governor of

Florida shall have held appropriate proceedings for determining the issue pursuant

to the appropriate Florida Statutes.”); Barnes, 124 So. 3d at 918 (“We have

repeatedly held that this claim may not be asserted until a death warrant has been

issued.”); Israel, 985 So. 2d at 521-22 (“Israel conceded that this claim is not ripe

for review . . . . He contends that he is only raising this issue for preservation

purposes. This Court has repeatedly found that no relief is warranted on similar

claims.”). No warrant has been signed in this case. We therefore reject Hall’s

claim as not ripe for review.

Petition for Writ of Habeas Corpus

Constitutionality of Section 921.141, Florida Statutes (2008)

In his habeas petition, Hall first asserts that appellate counsel was ineffective

for failing to challenge the constitutionality of section 921.141, Florida Statutes

- 53 -
because: (1) it is facially vague and overbroad in violation of the Eighth and

Fourteenth Amendments to the United States Constitution, and (2) the trial court’s

instructions to the jury unconstitutionally diluted its sense of responsibility in

determining the proper sentence. We disagree.

Claims of ineffective assistance of appellate counsel are appropriately

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

1055, 1069 (Fla. 2000). Consistent with the Strickland standard, to grant habeas

relief based on ineffectiveness of counsel, this Court must determine

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

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So.

2d at 1069; Thompson, 759 So. 2d at 660. In raising such a claim, “[t]he defendant

has the burden of alleging a specific, serious omission or overt act upon which the

claim of ineffective assistance of counsel can be based.” Freeman, 761 So. 2d at

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

ineffective assistance of appellate counsel may not be used to camouflage issues

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

See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).

- 54 -
 With regard to challenges to the standard jury instructions in death penalty

cases, this Court has repeatedly held that

challenges to “the standard jury instructions that refer to the jury as
advisory and that refer to the jury’s verdict as a recommendation
violate Caldwell v. Mississippi, 472 U.S. 320 (1985)” are without
merit. Card v. State, 803 So. 2d 613, 628 (Fla. 2001); see also Brown
v. State, 721 So. 2d 274, 283 (Fla. 1998) (holding that the standard
jury instructions fully advise the jury of the importance of its role,
correctly state the law, do not denigrate the role of the jury, and do not
violate Caldwell); Rose v. State, 617 So. 2d 291, 297 (Fla. 1993)
(rejecting the claim that the sentencing jury was misled by instructions
and argument that diluted their sense of responsibility pursuant to the
rationale of Caldwell and that counsel was ineffective for failing to
object because the jury instructions correctly informed the jury of its
sentencing role); Mendyk v. State, 592 So. 2d 1076, 1080-81 (Fla.
1992) (rejecting Mendyk’s position that counsel was ineffective for
failing to object to an alleged Caldwell violation).
Dufour, 905 So. 2d at 67.

“If a legal issue ‘would in all probability have been found to be without

merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel

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

ineffective.” Id. at 71 (quoting Rutherford, 774 So. 2d at 643). Due to the clear

and extensive case law that establishes that claims challenging the constitutionality

of the standard jury instructions, as they apply to the jury’s advisory role, are

entirely without merit, we conclude that appellate counsel was not ineffective for

failing to raise this meritless claim and thus deny Hall relief on this claim.

- 55 -
 Florida’s Unconstitutional Capital Sentencing Scheme

During the pendency of Hall’s postconviction appeal, the United States

Supreme Court issued Hurst v. Florida, 136 S. Ct. 616 (2016), in which it held that

Florida’s capital sentencing scheme violated the Sixth Amendment. Id. at 621.

The Supreme Court in Hurst concluded that “[t]he Sixth Amendment requires a

jury, not a judge, to find each fact necessary to impose a sentence of death. A

jury’s mere recommendation is not enough.” 136 S. Ct. at 619. On remand from

the Supreme Court, we held that “before a sentence of death may be considered by

the trial court in Florida, the jury must find the existence of the aggravating factors

proven beyond a reasonable doubt, that the aggravating factors are sufficient to

impose death, and that the aggravating factors outweigh the mitigating

circumstances.” Hurst v. State, 202 So. 3d 40, 53 (Fla. 2016). We further held that

a unanimous jury recommendation is required before a trial court may impose a

sentence of death. See id. at 53-54. Finally, this Court determined that Hurst error

is capable of harmless error review. See id. at 67. Recently, in Mosley v. State, 41

Fla. L. Weekly S629 (Fla. Dec. 22, 2016), we further held that our decision in

Hurst v. State applies retroactively to those postconviction defendants whose

sentences were final after the United States Supreme Court’s 2002 decision in Ring

v. Arizona, 536 U.S. 584 (2002). See Mosley, 41 Fla. L. Weekly at S638 (“We

conclude that . . . Hurst [v. State] should be applied to . . . defendants whose

- 56 -
sentences became final after the United States Supreme Court issued its opinion in

Ring.”).

Accordingly, because Hall’s sentence became final on October 7, 2013,

when the United States Supreme Court denied Hall’s petition for certiorari, Hall,

134 S. Ct. 203, we must consider whether any Hurst error during Hall’s penalty

phase proceedings was harmless beyond a reasonable doubt. In Hurst v. State, this

Court explained the standard by which harmless error should be evaluated:

Where the error concerns sentencing, the error is harmless only if
there is no reasonable possibility that the error contributed to the
sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
Although the harmless error test applies to both constitutional errors
and errors not based on constitutional grounds, “the harmless error
test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d
[1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
burden in cases involving constitutional error. Therefore, in the
context of a Hurst error, the burden is on the State, as the beneficiary
of the error, to prove beyond a reasonable doubt that the jury’s failure
to unanimously find all the facts necessary for imposition of the death
penalty did not contribute to Hurst’s death sentence in this case. We
reiterate:

The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.

DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.

- 57 -
Id. at 68 (third alteration in original). Finally, in Davis v. State, 41 Fla. L. Weekly

S528 (Fla. Nov. 10, 2016), we determined that a Hurst error was harmless beyond

a reasonable doubt and reiterated that “[a]s applied to the right to a jury trial with

regard to the facts necessary to impose the death penalty, it must be clear beyond a

reasonable doubt that a rational jury would have unanimously found that there

were sufficient aggravating factors that outweighed the mitigating circumstances.”

Id. at S539.

When the jury recommended that Hall be sentenced to death, it did not make

specific factual findings with regard to the existence of any aggravating

circumstances, nor did it make any findings with regard to the relative weight of

the aggravating and mitigating circumstances. Therefore, we conclude that Hall’s

sentence was contrary to Hurst v. Florida.

However, as in Davis, we conclude that this is one of those rare cases in

which the Hurst error was harmless beyond a reasonable doubt. We initially must

emphasize the unanimous jury recommendation of death in this case. This

unanimous recommendation lays a foundation for us to conclude beyond a

reasonable doubt that a rational jury would have unanimously found that there

were sufficient aggravators to outweigh the mitigating factors. The instructions

that were given informed the jury that it needed to determine whether sufficient

aggravators existed and whether any aggravation outweighed the mitigation before

- 58 -
it could recommend a sentence of death. See Fla. Std. Jury Instr. (Crim.) 7.11

(2009) (“[T]he final decision as to what punishment shall be imposed is the

responsibility of the judge; however, it is your duty to follow the law that will now

be given you by the court and render to the court an advisory sentence based upon

your determination as to whether sufficient aggravating circumstances exist to

justify the imposition of the death penalty and whether sufficient mitigating

circumstances exist to outweigh any aggravating circumstances found to exist.”).12

12. The jury was also presented with evidence of mitigating circumstances
and was properly informed that it could consider mitigating circumstances if it was
reasonably convinced that the mitigating circumstances existed. See Fla. Std. Jury
Instr. (Crim.) 7.11 (2009) (“A mitigating circumstance need not be proved beyond
a reasonable doubt by the defendant. If you are reasonably convinced that a
mitigating circumstance exists, you may consider it as established.”). Although the
standard jury instructions used in Hall’s case were different from the ones
currently in place, we explained the 2009 amendments to the burden of proof for
mitigating circumstances as follows:

Although the current and proposed instructions provide that the jury
need only be “reasonably convinced” that a mitigating circumstance
exists, our case law has stated this burden in terms of the greater
weight of the evidence or in terms of a preponderance of the evidence
which are synonymous. We conclude that the better terminology for
this standard is the more widely accepted “greater weight of the
evidence,” which means “more likely than not,” and we have made
the appropriate changes in the instruction.

In re Standard Jury Instructions in Criminal Cases – Report No. 2005-2, 22 So. 3d
17, 21 (Fla. 2009) (citations omitted).

- 59 -
 Even though the jury was not informed that the finding that sufficient

aggravating circumstances outweighed the mitigating circumstances must be

unanimous, and even though it was instructed that it was not required to

recommend death even if the aggravators outweighed the mitigators, the jury did in

fact recommend death unanimously. See id. (“Should you find sufficient

aggravating circumstances do exist, it will then be your duty to determine whether

mitigating circumstances exist that outweigh the aggravating circumstances.”);

Trial T. 3593 (“Regardless of your findings with respect to aggravating and

mitigating circumstance, you are never compelled nor required to recommend a

sentence of death.”). From these instructions, we conclude that the jury

unanimously made the requisite factual findings to impose death before it issued

the unanimous recommendation. Further supporting our conclusion that any Hurst

error here was harmless are the egregious facts of this case—Hall, who was

already imprisoned for four different rapes, hid from a corrections officer while

armed with a shank, stabbed her twenty-two times when she found him, cracking

multiple ribs and puncturing her heart, and then moved her body to a different

location, bent her over a paint cart, and pulled down her pants and underwear. The

evidence in support of the four aggravating circumstances13 found as to CO

13. (1) Previously convicted of a felony and under sentence of
imprisonment; (2) previously convicted of another capital felony or of a felony
involving the use or threat of violence to the person; (3) committed to disrupt or

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Fitzgerald’s death was significant and essentially uncontroverted. Three of the

four aggravators were without and beyond dispute.

Presuming that the jury did its job as instructed by the trial court, we are

convinced that it would have still found that the aggravators greatly outweighed

the mitigators in this case. Indeed, it is inconceivable that a jury would not have

found the aggravation in Hall’s case unanimously, especially given the fact that

three of the aggravators found were automatic (i.e., under sentence of

imprisonment, previously convicted of another violent felony, and the victim was a

law enforcement officer).

Furthermore, Hall’s claim that Florida’s capital sentencing scheme is

unconstitutional because it creates a presumption of death in any case where a

single aggravator applies is also meritless.

This Court has rejected the argument that Florida’s capital sentencing
scheme is unconstitutional because it provides for an automatic
aggravating circumstance and neither “narrow[s] the class of persons
eligible for the death penalty” nor “reasonably justif[ies] the
imposition of a more severe sentence on the defendant compared to
others found guilty of murder.” Parker v. State, 873 So. 2d 270, 286
n.12 (Fla. 2004) (alterations in original) (quoting Zant v. Stephens,
462 U.S. 862, 877 (1983)); see Blanco v. State, 706 So. 2d 7, 11 (Fla.
1997). As this Court pointed out in Blanco, this claim is meritless:

hinder the lawful exercise of any governmental function or the enforcement of
laws; (4) especially heinous, atrocious or cruel; and (5) the victim of the capital
felony was a law enforcement officer engaged in the performance of his or her
official duties, which was merged with aggravator number 3.

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 Eligibility for this aggravating circumstance is not
automatic: The list of enumerated felonies in the
provision defining felony murder is larger than the list of
enumerated felonies in the provision defining the
aggravating circumstance of commission during the
course of an enumerated felony.

Id. at 11 (footnote omitted); see also Francis v. State, 808 So. 2d 110,
136 (Fla. 2001).
Miller’s other claims have previously been held to be meritless.
See Proffitt v. Florida, 428 U.S. 242, 255-56 (1976) (upholding
constitutionality of Florida’s death penalty statute against multiple
challenges, including challenge [sic] based on vagueness and
overbreadth of aggravating and mitigating circumstances and the lack
of guidance for the jury in weighing such factors); Lugo v. State, 845
So. 2d 74, 119 (Fla. 2003) (reiterating that this Court has “rejected the
claim that the death penalty system is unconstitutional as being
arbitrary and capricious because it fails to limit the class of persons
eligible for the death penalty”).
Miller v. State, 926 So. 2d 1243, 1260 (Fla. 2006). Therefore, we deny Hall’s

claims relating to the unconstitutionality of the death penalty, and specifically hold

that any Hurst error with regard to Hall’s sentence, which was based upon a

unanimous recommendation of death, is harmless beyond a reasonable doubt.

CONCLUSION

For the reasons discussed, we affirm the postconviction court’s denial of

Hall’s postconviction motion and deny his petition for a writ of habeas corpus.

It is so ordered.

LABARGA, C.J., and LEWIS, J., concur.
PARIENTE, CANADY, and POLSTON, JJ., concur in result.
QUINCE, J., concurs in part and dissents in part with an opinion.
LAWSON, J., did not participate.

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

QUINCE, J., concurring in part and dissenting in part.

I agree with the majority’s decision to affirm the postconviction court’s

denial of Hall’s postconviction motion. I dissent, however, to the decision to deny

Hall’s petition for a writ of habeas corpus and would find that the Hurst error in

this case was not harmless beyond a reasonable doubt.

In Hurst v. State, 202 So. 2d 40 (Fla. 2016), we held that for a defendant to

be eligible for the death sentence, a jury must unanimously find the existence of

each aggravating factor, that the aggravating factors are sufficient, and that the

aggravating factors outweigh the mitigating circumstances. Hurst, 202 So. 3d at

44. Additionally, we held that the jury’s death sentence recommendation must be

unanimous. Id. While I agreed in Hurst that errors under Hurst v. Florida, 136 S.

Ct. 616 (2016), are subject to harmless error review, see Hurst, 202 So. 3d at 68, I

do not believe that we can ever find Hurst error harmless when there are

aggravating circumstances that require a factual determination based on evidence

presented to the jury. Because Hurst requires “a jury, not a judge, to find each fact

necessary to impose a sentence of death,” Hurst v. Florida, 136 S. Ct. at 619, the

error cannot be harmless where such a factual determination was not made.

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 The aggravating circumstances in this case were: (1) Hall was previously

convicted of a felony and under sentence of imprisonment; (2) Hall was previously

convicted of another capital felony or of a felony involving the use or threat of

violence to the person; (3) the murder was committed to disrupt or hinder the

lawful exercise of any governmental function or the enforcement of laws; (4) the

murder was especially heinous, atrocious or cruel; and (5) the victim of the capital

felony was a law enforcement officer engaged in the performance of his or her

official duties, which was merged with aggravator number 3. Three of these

aggravators are established without a factual determination by the jury, but the

remaining aggravators each required factual findings that, under Hurst, must now

be considered and weighed by a jury. As we stated in Hurst, without an

interrogatory verdict, we cannot determine which aggravators the jury

unanimously found beyond a reasonable doubt. See Hurst, 202 So. 3d at 67.

In Hurst, we declined to speculate why the jurors voted the way they did, yet

because here the jury vote was unanimous, the majority is comfortable determining

that “it is inconceivable that a jury would not have found the aggravation in Hall’s

case unanimously, especially given the fact that three of the aggravators found

were automatic.” Maj. op. at 61. Even though the jury unanimously recommended

the death penalty, whether the jury unanimously found each aggravating factor

remains unknown.

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 The majority’s reweighing of the evidence to support its conclusion is not an

appropriate harmless error review. The harmless error review is not a sufficiency

of the evidence test and the majority’s analysis should instead focus on the effect

of the error on the trier of fact. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.

1986). By ignoring the record and concluding that all aggravators were

unanimously found by the jury, the majority is engaging in the exact type of

conduct the United States Supreme Court cautioned against in Hurst v. Florida.

See Hurst v. Florida, 136 S. Ct. at 622. Because the harmless error review is not a

sufficiency of the evidence review nor “a device for the appellate court to

substitute itself for the trier-of-fact by simply weighing the evidence,” DiGuilio,

491 So. 2d at 1139, I conclude that the error here was harmful.

Two Cases:

An Appeal from the Circuit Court in and for Volusia County,
Joseph David Walsh, Judge - Case No. 642008CF033412XXXAES
And an Original Proceeding – Habeas Corpus

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region,
and Ann Marie Mirialakis, Richard Edward Kiley, and Ali Andrew Shakoor,
Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace,
Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stacey E. Kircher,
Assistant Attorney General, Daytona Beach, Florida,

for Appellee/Respondent

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