Margaret A. Allen v. State of Florida

Supreme Court of Florida

No. SC l7-l623

MARGARET A. ALLEN,
Appellant,

VS.

STATE OF FLORIDA,
Appellee.

December 20, 2018
PER CURIAM.

Margaret Allen, a prisoner under sentence of death, appeals an order denying
her motion for postconviction relief filed under Florida Rule of Criminal Procedure
3.851. We have jurisdiction See art. V, § 3(b)(l), Fla. Const. For the reasons that
folloW, We affirm the circuit court’s order denying Allen’s motion for
postconviction relief.

BACKGROUND
ln 2010, Allen Was convicted of the kidnapping and first-degree murder of

Wenda Wright. Allen v. State, 137 So. 3d 946, 953 (Fla. 2013). On direct appeal,

We affirmed her convictions and sentences, including a sentence of death for the
murder, and summarized the guilt-phase evidence as folloWs:

Johnny [Dublin, Wenda Wright’s domestic partner], testified
that on the day Wright Went missing, Allen came to Dublin and
Wright’s house and Whispered something into Wright’s ear. In
response, Wright and Allen left the house together. A little While
later, Allen returned to Dublin’s house and told Dublin that Wright
stole about $2000 of Allen’s money and Allen asked Dublin if she
could search his house. Dublin obliged and Allen searched Dublin’s
house. Dublin testified that he noticed that Allen had scratches on her
When she came back to his house. Dublin asked Allen Where Wright
Was, and Allen responded that she Was still at Allen’s house. Dublin
testified that the next day, Allen came back to his house and asked
him Where Wright Was. Dublin testified that Quintin [Allen, a
neighbor and friend of Allen] Was With Allen. Quintin . . . testified for
the State . . . that he Was at Allen’s house on the day of the murder
When Allen noticed that her purse Was missing. Allen left her house, .
. . returned . . . With Wright and asked Quintin to come inside. Allen
told Quintin that Wright must have stolen Allen’s purse because
Wright Was the only person at Allen’s house before the purse Went
missing. Allen and Quintin searched for the purse. Allen left the
house again and told Quintin not to let Wright leave if she tried. At
one point While Allen Was gone, Wright tried to leave; Quintin told
Wright that Allen Wanted her to stay, and Wright obliged.

Upon Allen’s return, Quintin plaited Allen’s hair. Quintin
testified that at one point Wright started crying and begged Allen to
let her go home. Wright attempted to leave Allen’s house and Allen
hit Wright on the head; Wright fell to the ground. Quintin testified
that Allen had a gun and told him that if he did not help her With
Wright, she Would shoot him, so Quintin held Wright down on the
floor. While he held Wright doWn, Allen found chemicals including
bleach, fingernail polish remover, rubbing alcohol and hair spritZ and
poured them all onto Wright’s face. At one point, one of Allen’s
children Walked into the room in Which this Was taking place, and
Allen told the child to rip off a piece of duct tape for Allen. Allen
attempted to put the duct tape over Wright’s mouth, but because
Wright’s face Was Wet from the chemicals that Were poured on her

_2_

face, the duct tape would not stick to her skin. Allen retrieved belts
from her closet and beat Wright with them. Quintin then tied
Wright’s feet together with one of the belts. Quintin testified that at
that point Wright was not struggling. Allen then put one of the belts
around Wright’s neck and pulled. At one point, Wright said, “Please,
stop. Please stop. l am going to piss myself.” Wright’s body started
shaking and after about three minutes, Wright did not move. Allen
then told Quintin to get some sheets to tie Wright’s hands together in
case Wright woke up.

Quintin left soon after the incident. Allen called Quintin
throughout the night, but he did not answer her calls. The next day,
Allen found Quintin at the barbershop. Quintin testified that Allen
still had the gun. Quintin got into the truck that Allen was driving;

J ames Martin [a friend of Allen] was also in the truck. Allen told
Quintin that Wright was dead. Allen then told Quintin that he had to
help her get rid of the body. Allen, Quintin, and Martin drove to
Lowe’s to buy plywood to help move Wright’s body from inside the
house into the truck. They also borrowed a dolly hand truck from a
local shop to help move the body. Quintin testified that upon
returning to Allen’s house, Wright’s body had been moved from
where he had last seen her and had been wrapped in Allen’s carpet.
They were eventually able to get Wright’s body into the truck. Then,
all three took shovels from Allen’s mother’s tool shed and drove to an
area off of the highway to dump Wright’s body. Quintin and Martin
dug a hole while Allen stood as a lookout. They placed Wright’s
body in the hole, covered the hole with debris, and took the carpet
with them. They threw the carpet into a dumpster outside of a truck
stop and picked up Allen’s daughter from school. Quintin went to the
police and turned himself in. Quintin also took the police to the place
where Wright’s body had been buried.

J ames Martin testified . . . that on the day of the murder, he was
at Allen’s house helping her repair a car. Allen asked Martin to help
her search for her purse, and Martin did. He testified that he left
Allen’s house around l() p.m. to get a starter belt for the car. Martin
finished repairing the car and asked Allen if she had any cocaine. She
did not, so Martin left Allen’s house, found cocaine, came back to
Allen’s house, and smoked it. Martin testified that when he got back
from finding the cocaine, Wright was the only one at Allen’s house.

_3_

Martin testified that the timing of the events of the day was unclear
because he had been high. Martin testified that he slept at Allen’s
house until the morning and got a ride from Allen when she took her
children to school. At that point, Allen told Martin that she needed
help. Allen and Martin went back to Allen’s house, and Martin saw
Wright’s body. Martin testified that Allen told him, “He must have
hit her too hard.” Martin testified that he noticed a bandana tied
around Wright’ s hands. Allen told Martin that they had to bury
Wright’s body. Allen sent Martin to Allen’s brother’s house to
borrow a truck. Martin testified that the truck was never found by
police. Martin testified that the entire plan, including getting the
plywood at Lowe’s was Allen’s idea. Martin testified that he was the
only smoker of the group, and he dumped all of the ashtrays out of the
car after they buried the body. When they got back to Allen’s house,
Quintin left, and Martin cleaned the nylon strap that had been used to
secure the carpet around Wright’s body. Martin also washed the truck
but testified that he did not know what became of the vehicle. Martin
was at Allen’s house when the police came to Allen’s house with a
search warrant.

Denise Fitzgerald, a crime scene technician, testified that she
exhumed Wright’s body and located a cigarette butt in the vicinity.
The State and defense stipulated that the DNA found on the cigarette
butt was consistent with Martin’s DNA. Dr. Sajid Qaiser, a forensic
pathologist and chief medical examiner for Brevard County, testified
that . . . a body cannot bruise once dead and that Wright had bruising
in the following places: upper and lower eye lid, front and back of her
ear, left torso, all over the left side, trunk, right hand, thigh, knee, left
eyebrow, forehead, upper arm and shoulder area. Additionally,
Wright’s chest, hands, torso, face, and lower lip had contusions.
Wright’s wrist showed signs of ligation, meaning her hands were tied.
Wright’s neck showed signs of ligation, meaning that she was either
hung or something was tied tightly around her neck. Dr. Qaiser
testified that his medical conclusion was that Wright’s death was the
result of homicidal violence, and strangulation and ligature were an
important cause of death. Dr. Qaiser testified that Wright was
morbidly obese, with an enlarged heart, which contributed to her
death. He testified that it would take from four to six minutes of
strangulation to die. He could not tell whether she was rendered
unconscious during the beating.

Id. at 951-53. The record also shows that while the autopsy report concluded that
cocaine intoxication was a cause of Wright’s death, Dr. Qaiser testified that he did
not agree with the conclusion.

After convicting Allen of kidnapping and first-degree murder, Allen’s jury
unanimously recommended a death sentence. The trial court followed the jury’s
recommendation, finding two aggravators1 and four nonstatutory mitigating
circumstances.2 On appeal, this Court affirmed the death sentence. Id. at 969.
Allen’s death sentence became final in 2014. Allen v. Florida, l35 S. Ct. 362
(2014).

Thereafter, Allen timely filed her initial motion for postconviction relief
under Florida Rule of Criminal Procedure 3.851, raising fourteen claims with

subparts. Allen sought leave to amend her rule 3.851 motion to add a Hurst v.

l. The trial court found the following aggravators: (l) the capital felony was
committed while the defendant was engaged, or was an accomplice, in the
commission of, or an attempt to commit, or flight after committing or attempting to
commit a kidnapping (great weight); and (2) the capital felony was especially
heinous, atrocious, or cruel (great weight). Id. at 955.

2. The mitigating circumstances found were the following: (l) Allen
was the victim of physical abuse and possible sexual abuse in the past (some
weight); (2) Allen has brain damage as a result of prior acts of physical
abuse and the brain damage results in episodes of lack of impulse control
(some weight); (3) Allen grew up in a neighborhood where there were acts
of violence and illegal drugs (some weight); and (4) Allen helped people in
her life (little weight). Id.

Florida claim and a Hurst v. State claim.3 The postconviction court accepted the

amendments and held an evidentiary hearing on the fourteen claims.4 The trial

3. Hurst v. Florida, 136 S. Ct. 616 (2()16); Hurst v. State, 202 So. 3d 40
(Fla. 2016), cert. denied 137 S. Ct. 2161 (2()17).

4. Allen raised the following claims in her amended rule 3.851 motion: (1)
trial counsel was ineffective for failing to strike juror Carll for cause or
peremptorily; (2) trial counsel was ineffective for failing to properly impeach
former-codefendant-turned-State-witness Quintin’s testimony with his prior
inconsistent statement indicating that Allen poured chemicals on the victim; (3)
trial counsel was ineffective in eliciting improper testimony on cross-examination
of Quintin; (4) trial counsel was ineffective for failing to impeach Quintin with
prior inconsistent statements and for failing to cross-examine Quintin about his
statement regarding his possession of $4,000 two days after the victim’s death; (5)
trial counsel was ineffective for failing to object to prosecutorial misconduct in the
guilt phase closing arguments; (6.1) trial counsel was ineffective in failing to
object that the prosecutor misrepresented evidence and testified to facts not in
evidence in the guilt phase closing arguments; (6.2) trial counsel was ineffective in
failing to object and request a curative instruction when the prosecutor
misrepresented Dr. Qaiser’s testimony regarding the time it takes for strangulation
to lead to death; (6.3) trial counsel was ineffective in failing to object when the
prosecutor misrepresented Dr. Qaiser’s testimony regarding evidence of petechia
on the victim; (6.4) trial counsel was ineffective in failing to object and request a
curative instruction when the prosecutor read from the autopsy report and
misrepresented its findings during the guilt phase closing argument; (6.5) trial
counsel was ineffective in failing to object when the prosecutor misstated the
elements of first-degree felony murder; and (6.6) the cumulative effects of the
errors in counsel’s performance constituted prejudice for Allen; (7) trial counsel
was ineffective in failing to object to Dr. Qaiser’s testimony that unconscious
people can feel pain; (8.1) trial counsel was ineffective during the penalty phase
for failing to object and move for a mistrial on the ground that the prosecutor
presented information about Allen’s drug convictions as an inadmissible
nonstatutory aggravator; (8.2) trial counsel was ineffective during the penalty
phase for failing to object and move for a mistrial on the ground that the prosecutor
argued lack of remorse during cross-examination of Dr. Wu; (8.3) trial counsel was
ineffective during the penalty phase for failing to object and move for a mistrial on
the ground that the prosecutor twice referenced Allen’s future dangerousness; (8.4)

_6_

trial counsel was ineffective during the penalty phase for failing to object and
move for a mistrial on the ground that the prosecutor presented information about
Allen’s time in prison as an inadmissible nonstatutory aggravator; (8.5) trial
counsel was ineffective during the penalty phase for failing to object and move for
a mistrial on the ground that the prosecutor analogized pouring liquid on the
victim’s face to waterboarding; (8.6) trial counsel was ineffective during the
penalty phase closing argument for failing to object on the ground that the
prosecutor made an improper golden rule argument; (8.7) trial counsel was
ineffective during the penalty phase closing argument for failing to object on the
ground that the prosecutor made an improper golden rule argument; (8.8) trial
counsel was ineffective during the penalty phase closing argument for failing to
object and move for a mistrial on the grounds that the prosecutor added to the
authority of his office and misstated evidence; (8.9) trial counsel was ineffective
during the penalty phase closing argument for failing to object and move for a
mistrial on the ground that the prosecutor denigrated Dr. Gebel’s testimony and
misrepresented it; (8.1()) trial counsel was ineffective during the penalty phase
closing argument for failing to object and move for a curative instruction on the
ground that the prosecutor misstated the evidence presented by Dr. Wu; (8.11) trial
counsel was ineffective during the penalty phase closing argument for failing to
object and move for a mistrial on the ground that the prosecutor introduced
evidence of bad character; (8.12) trial counsel was ineffective during the penalty
phase closing argument for failing to object and move for a mistrial on the grounds
that the prosecutor attempted to gain sympathy and cloaked the State’s case with
legitimacy as a death case; (8.13) the cumulative effects of the errors in counsel’s
performance constituted prejudice for Allen; (9) trial counsel was ineffective in
questioning Allen’s aunt about the culture of “drugs, thugs, and violence,” which
opened the door to other questions about Allen’s participation in that environment;
(1()) the State committed a Giglio v. United States, 405 U.S. 150 (1972), violation
in the penalty phase by eliciting and failing to correct false testimony that Allen
was convicted several times for selling drugs; (11) trial counsel was ineffective in
failing to acquire and present expert witness testimony to refute and clarify Dr.
Qaiser’s testimony; (12) trial counsel was ineffective in failing to elicit testimony
from Dr. Wu about two statutory mitigators; (13) trial counsel was ineffective in
failing to investigate and present mitigation testimony; and (14) trial counsel was
ineffective in failing to call Quintin at the penalty phase to testify to Allen’s
demeanor at the time of the offenses.

court denied the motion in its entirety, including summarily denying the Hurst v.
Florida and the Hurst v. State claims.

Allen appealed the denial of her rule 3.851 motion, arguing that the
postconviction court erred with respect to the following claims: (1) that trial
counsel was ineffective for failing to object to improper prosecutorial comments
and misstatements and for failing to move for a mistrial during guilt phase
closings; (2) that trial counsel was ineffective for failing to investigate and present
certain mitigation evidence; (3) that trial counsel was ineffective for eliciting
testimony from former-codefendant-tumed-State-witness Quintin that Allen
poured chemicals on the victim; (4) that trial counsel was ineffective for failing to
object to Dr. Qaiser’s testimony that unconscious people feel pain; (5) that trial
counsel was ineffective for failing to object and move for a mistrial during penalty
phase closings based on prosecutorial misconduct; (6) that trial counsel was
ineffective for asking if Allen became a part of the culture of “drugs, thugs, and
violence”; (7) that trial counsel was ineffective for failing to call his own forensic
expert; (8) that trial counsel was ineffective for failing to impeach Quintin with
prior inconsistent statements; (9) that trial counsel was ineffective for failing to
adequately challenge or strike a juror during voir dire; (1()) that the State

committed a Giglio violation by eliciting and failing to correct false testimony that

Allen was convicted several times for selling drugs; and (11) that Allen is entitled
to a new penalty phase under Hurst v. Florida and Hurst v. State.
ANALYSIS

Allen argues that the circuit court erred in denying eleven claims in her
postconviction motion. Nine of the claims allege ineffective assistance of
counsel_one pertaining to the guilt phase, five to the penalty phase, two to both
phases, and one to jury selection; the tenth claim alleges a Giglio violation; and the
final claim alleges a Hurst error. We address each claim in turn.

I. Ineffective Assistance of Counsel

Allen first argues that her trial counsel was ineffective. Claims of
ineffective assistance of counsel are analyzed in accordance with Strickland v.
Washington, 466 U.S. 668 (1984). To be entitled to relief, the defendant must
establish the following two prongs, deficient performance and prejudice:

First, the claimant must identify particular acts or omissions of the

lawyer that are shown to be outside the broad range of reasonably

competent performance under prevailing professional standards.

Second, the clear, substantial deficiency shown must further be

demonstrated to have so affected the fairness and reliability of the

proceeding that confidence in the outcome is undermined.
Peterson v. State, 221 So. 3d 571, 583 (Fla. 2017) (quoting Schoenwetter v. State,
46 So. 3d 535, 546 (Fla. 2010)).

To establish the Strickland deficiency prong, “the defendant must

demonstrate that counsel’s performance was unreasonable under ‘prevailing

_9_

professional norms.’ ” Id. at 583-84 (quoting Strickland, 466 U.S. at 688). There
is a strong presumption that 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. Moreover, counsel’s
“strategic decisions do not constitute ineffective assistance of counsel if alternative
courses have been considered and rejected and counsel’s decision was reasonable
under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037,
1048 (Fla. 2000).

The Strickland prejudice prong requires the defendant to show that “there is
a reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different,” where “[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. Specifically for claims of ineffective assistance of counsel during the
penalty phase, a defendant must show that, absent the errors, “the sentencer . . .
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death,” id. at 695, meaning that counsel’s
ineffectiveness “deprived the defendant of a reliable penalty phase proceeding,”

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

_1()_

Further, “because the Strickland standard requires establishment of both
prongs, when a defendant fails to make a showing as to one prong, it is not
necessary to delve into whether he has made a showing as to the other prong.”
Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001). We review the
postconviction court’s factual findings for competent, substantial evidence, while
reviewing its ultimate conclusions on both prongs de novo. See Peterson, 221 So.
3d at 584. We affirm the postconviction court’s denial on the merits of Allen’s
nine ineffective assistance of counsel claims as set forth below.

l. Failure to object to improper prosecutorial comments and misstatements
and to move for a mistrial during guilt phase closing arguments

Allen argues that her trial counsel was ineffective for failing to move for a
mistrial and object to the prosecutor’s improper comments during the guilt phase
closing arguments.

Subclaim 1

Allen first claims that trial counsel should have objected and requested a
curative instruction when the prosecutor misstated that, to prove first-degree felony
murder, the State only needed to prove that Wright died during the kidnapping, not
how she died.

The record shows that the prosecutor stated during closing argument, “All
we have to prove is that during the course of the kidnapping she died. And it

doesn’t matter how.” However, earlier in the argument, the prosecutor also

_11_

accurately described each of the elements of first-degree felony murder, which
includes proving that the death occurred as a consequence of the kidnapping. The
State also correctly presented the elements of first-degree felony murder on a
visual display to the jury, and the elements were contained in the jury instructions.
Allen argues that counsel’s performance prejudiced her jury by influencing
them to believe that Allen could still be guilty of felony murder even if the cocaine
intoxication, and not the strangulation, caused Wright’s death. However, Allen has
failed to demonstrate prejudice, considering the totality of the correct descriptions
of the elements of felony murder available to the jury. See Carratelli v. State, 961
So. 2d 312, 324 (Fla. 2007) (“Under Strickland, to demonstrate prejudice a
defendant must show that there is a reasonable probability_one sufficient to
undermine confidence in the outcome_that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”) (citing Strickland,
466 U.S. at 694). There is no reasonable probability that, but for counsel’s failure
to object, the outcome would have been different. Our confidence in the outcome
is not undermined. Because Allen has failed to establish the prejudice prong, we
need not address deficiency. See Strickland, 466 U.S. at 697 (“[T]here is no reason
for a court deciding an ineffective assistance claim . . . to address both components
of the inquiry if the defendant makes an insufficient showing on one.”). Therefore,

we conclude that the trial court properly denied postconviction relief on this claim.

_12_

Subclaim 2

Allen claims that trial counsel should have objected when the prosecutor
mentioned his distaste for plea bargaining with codefendants and indicated that
Allen was more culpable than Quintin. Allen also claims that counsel should have
objected when the prosecutor denied that evidence of a plea offer to Allen existed,
and that counsel should have requested that the jury be instructed about the plea
offer discussions that took place. However, this claim was not raised in Allen’s
postconviction motion before the circuit court. lt therefore was not preserved for
review. “ln order to preserve an issue for appeal, the issue ‘must be presented to
the lower court and the specific legal argument or grounds to be argued on appeal
must be part of that presentation.’ ” Bryant v. State, 901 So. 2d 810, 822 (Fla.
2015) (quoting Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)). Allen has
waived the claim, and it is therefore procedurally barred. In any event, the claim is
without merit because Allen has failed to establish prejudice. There is not a
reasonable probability that, but for counsel’s failure to object, the outcome would
have been different. Allen is therefore not entitled to relief on the merits.

Subclaim 3

Allen claims that trial counsel should have objected when the prosecutor

stated that petechia results from a tight strangulation. Allen argues that counsel’s

_13_

deficient performance prejudiced her jury because it reduced doubt in the jury
members’ minds that strangulation actually occurred.

The record shows that in the guilt phase closing argument, the prosecutor
stated that “[Allen] is the one holding that belt around her neck so tightly that it
would even cause petechia, the little pinpoint blood vessels that pop in your eyes.
Okay? So tight that Dr. Qaiser said that you don’t get it unless it is held real tight.”
On cross-examination, Dr. Qaiser testified that “whenever the strangulation is
complete and really tight, you won’t see petechia” and noted that he “did not see”
evidence of petechia in the autopsy photographs.

Allen has failed to demonstrate that counsel’s failure to object to the
prosecutor’s misstatement prejudiced her. The evidence presented at trial showed
that Wright was tortured, bound, and strangled by Allen. Whether petechia
occurred from the strangulation of Wright does not weaken the evidence made
available to the jury. Further, the jury heard from Dr. Qaiser that petechia does not
occur during a tight strangulation, and that the autopsy photos did not reveal that
petechia occurred. ln light of this, there is no reasonable probability that, but for
counsel’s failure to object, the outcome would have been different. Our
confidence in the outcome is not undermined. Because Allen has not demonstrated

prejudice, we need not address the deficient performance prong. See Strickland,

_14_

466 U.S. at 697. Therefore, we conclude that the circuit court properly denied
relief on this claim.

Subclaim 4

Allen argues that trial counsel should have objected when the prosecutor
stated that it takes “three or four minutes” to die of strangulation.

The record shows that during the State’s direct examination, Dr. Qaiser
testified in response to the question, “How long does it take a person to strangle _
to die from strangulation?” that “[w]ithin four to six minutes only a person can
die.” Quintin testified at trial that Allen held the belt “around [Wright’s] neck for
three minutes,” and that Wright stopped moving after three minutes. In the guilt
phase closing argument, the prosecutor made the following statement: “[Y]ou can
take this for discussion, that placing a rope around someone’s neck and holding it
there for three or four minutes, because that is what Dr. Qaiser said it would take,
okay, three or four minutes, all right, that may have some aspects of premeditation
here.”

Allen has failed to demonstrate prejudice. The prosecutor’s statement that it
takes “three or four” minutes to die of strangulation was not wholly inconsistent
with the evidence presented at trial that it takes “four to six minutes” to die of
strangulation, because “four” is a correct amount of time. Allen has not shown that

there is a reasonable probability that, but for hearing the misstated amount of time,

_15_

the jurors would not have found Allen guilty. Therefore, no prejudice occurred.
See Carratelli, 961 So. 2d at 324. Our confidence in the outcome is not
undermined. Because Allen has not demonstrated prejudice, we need not address
the deficient performance prong. See Strickland, 466 U.S. at 697. Therefore, we
conclude that the circuit court properly denied relief on this claim.

Subclaim 5

Allen argues that trial counsel should have objected and requested a curative
instruction when the prosecutor misstated that Wright’s neck injuries were internal
instead of external. Allen argues that this prejudiced her jury because the
misstatement regarding internal injuries would have convinced them that Wright
was violently strangled, a conclusion they might not have reached had they heard
the truth that her neck injuries were merely extemal.

The record shows that the prosecutor stated during direct examination of Dr.
Qaiser that the autopsy report “refers to external evidence of injury.” In the guilt
phase closing argument, the prosecutor read aloud from Dr. Whitmore’s autopsy
report, stating, “Then on top of that Dr. Whitmore said_it’s sort of vague what he
said_atraumatic neck, but then he says, ‘see evidence of internal injuries,’ and
then we read that in which he says there is contusions on both sides of the neck.”

Counsel’s failure to object to this minor misstatement was not prejudicial to

Allen. Based on the totality of the record, which shows that Allen bound, tortured,

_16_

beat, and strangled Wright, confidence in the outcome is not undermined so as to
establish prejudice. See Carratelli, 961 So. 2d at 324. Had the jury not heard the
prosecutor say that Wright’s neck injuries were “intemal,” there is no reasonable
probability that the outcome would have been different. We need not address the
deficient performance prong. See Strickland, 466 U.S. at 697. Accordingly, we
conclude that the circuit court properly denied relief on this claim.

Subclaim 6

Allen argues that the cumulative impact of the alleged errors deprived her of
her right to a fair trial. However, Allen has failed to establish error as to the denial
of any claim raised. Because each individual subclaim is either without merit or
procedurally barred, the claim of cumulative error fails. See Anderson v. State, 18
So. 3d 501, 520 (Fla. 2009) (rejecting a cumulative error claim when the individual
claims did not establish ineffective assistance of counsel); Israel v. State, 985 So.
2d 510, 520 (Fla. 2008) (holding that where individual alleged claims of error are
“procedurally barred or without merit, the claim of cumulative error also
necessarily fails”) (quoting Parker v. State, 904 So. 3d 370, 380 (Fla. 2008)).
Accordingly, we affirm the circuit court’s finding that Allen is not entitled to relief
on this claim.

2. Failure to properly investigate and present additional mitigation evidence

_17_

Allen argues that trial counsel was ineffective for failing to investigate and
present certain mitigating evidence about Allen’s traumatic background and mental
health during the penalty phase. Specifically, she claims that additional mitigation
evidence should have been uncovered and presented, including the existence of
post-traumatic stress disorder (PTSD) and extensive sexual and physical abuse.
We conclude that the absence of this mitigating evidence does not satisfy
Strickland’s requirement of prejudice.

At the evidentiary hearing, Allen presented the testimony of Allen’s former
boyfriend, who testified that he sold drugs with Allen and frequently physically
abused her throughout the duration of their relationship. He recounted instances of
extremely violent episodes, described Allen having frequent anxiety attacks, and
stated that he could not say whether he would have testified at trial had he been
asked. He testified that at the time of Allen’s trial in 2010, he was living in a
federal halfway house after serving ten years in prison. ln addition, another of
Allen’s aunts gave extensive and detailed testimony that Allen suffered physical
and sexual abuse as a child at the hands of her mother, grandfather, and brother and
that she experienced severe domestic violence as an adult. She stated that Allen
suffered from intense anxiety and that she would have testified at trial had she been
asked. Allen’s daughter also stated that she would have testified at trial if she had

been asked. She testified to seeing her mother being beaten up by multiple

_13_

boyfriends and admitted that she had not been forthcoming in her deposition
immediately after the murder. Allen’s son testified that he would have been
available to testify at Allen’s trial, if asked, and that he witnessed Allen’s physical
abuse and frequent mood swings when he was a child.

Dr. Russell testified at the evidentiary hearing for Allen. In preparation for
his testimony, he met with Allen and several family members to discuss her
childhood and behavioral problems. He testified of his theory that Allen’s
childhood traumas caused her to suffer from PTSD, which he said she experienced
at the time of Wright’s murder. He then testified that in light of Allen’s history,
records, discussions with her family, and observable emotional dysregulation, she
could have been in a state of extreme emotional disturbance at the time of the
homicide. He stated that persons who are unable to control their emotions would
eventually lose their ability to think rationally if faced with the situation that Allen
faced the day of the homicide. He testified that had he only reviewed the limited
information given to Dr. Gebel at trial, he would not have been able to come to the
PTSD diagnosis. He admitted on cross-examination that Allen did not tell him
what she was thinking or feeling at the time of the homicide, and that Allen denied
murdering Wright.

Dr. Gamache, the State’s expert at the evidentiary hearing, testified that after

reviewing numerous records, including the discovery related to the case and

_19_

investigation and Allen’s medical and psychological records, he did not believe
that any significant mitigation evidence was left out of Allen’s penalty phase. He
testified that the jury was informed by Dr. Gebel and Dr. Wu in sufficient detail of
Allen’s childhood trauma, past sexual and physical abuse, and domestic violence.
He also explained that Allen currently exhibited no PTSD symptoms and had never
been diagnosed with the disorder, other than by Dr. Russell. He also stated that
there was no evidence that Allen displayed PTSD symptoms at the time of the
homicide.

Allen’s trial counsel testified at the evidentiary hearing that he made several
attempts to talk to Allen’s family members and asked Allen’s aunt, Myrtle Hudson,
several times when he could speak with them. He testified that Allen did not want
to discuss the case when he met with her and that she did not want her daughter
involved in the case. He stated that he made no attempts to talk with Allen’s
daughter because he was told that she would be uncooperative and did not want
anything to do with Allen. He testified that he was hesitant to put her on the stand
because she could be impeached. He further testified that he did not feel that there
was a need to talk to Allen’s son in light of the information he already had
obtained from other family members. He testified that he called Allen’s former

boyfriend twice but he got no answer.

_2()_

Trial counsel also testified that he believed that psychologist Dr. Gebel and
neuropsychiatrist Dr. Wu were sufficient to testify to Allen’s mental health issues
at the penalty phase. Dr. Gebel reviewed Allen’s history and interviewed Allen
once, telling the jury about the significant intracranial injuries she suffered, as well
as her frontal lobe disorder, decreased cognitive ability, and impulse control issues
that would prevent Allen from behaving normally and from understanding the
consequences of her behavior. Dr. Wu explained to the jury that certain areas of
Allen’s brain did not function normally and that she suffered from lack of impulse
control.

At trial, counsel presented the testimony of Dr. Wu, Dr. Gebel, and Allen’s
aunt Myrtle Hudson that outlined Allen’s mental health issues and the physical and
sexual abuse she suffered while growing up and as an adult. The jury heard of her
issues with impulse control, her intracranial brain injuries, and the traumatic
childhood and violent relationships she endured.

Upon review of the trial court’s order and record, we conclude that defense
counsel’s mitigation investigation did not prejudice Allen. Had the additional
mitigation evidence been introduced as Allen claims, there is no reasonable
probability that the outcome would have been different. First, Allen
overemphasizes the value of evidentiary hearing testimony presented by Allen’s

family members and Dr. Russell. The testimony presented regarding Allen’s

_21_

background was cumulative to the mitigation already presented at trial. This Court
has “repeatedly held that counsel is not ineffective for failing to present cumulative
evidence.” JOnes v. State, 998 So. 2d 573, 586 (Fla. 2008); see also Rhodes v.
State, 986 So. 2d 501, 512-13 (Fla. 2008) (“Even if we were to find counsel’s
conduct deficient, [the defendant] cannot demonstrate prejudice. Any testimony
the additional witnesses would have provided would have been cumulative to that
provided by the witnesses at resentencing. . . . The additional testimony would only
have added to the mitigation already found. Even if given more weight, the
mitigation would not outweigh the . . . strong aggravators . . . .”). The absence of
the more specific evidence regarding Allen’s traumatic upbringing therefore does
not render the penalty phase unreliable. Further, the jury’s recommendation of
death was unanimous, and the trial court found that the State established two
significant aggravators: (1) committed while Allen was engaged in the commission
of kidnapping; (2) especially heinous, atrocious, or cruel. See Allen, 137 So. 3d at
953-54. ln light of this aggravation, Allen has not established how the additional
mitigation presented at the evidentiary hearing would impact the balancing of
aggravating and mitigating factors by the jury. See England v. State, 151 So. 3d
1132, 1138 (Fla. 2014) (“For a defendant to establish that he was prejudiced by
trial counsel’s failure to investigate and present mitigation, the defendant ‘must

show that but for his counsel’s deficiency, there is a reasonable probability he

_22_

would have received a different sentence. To assess that probability, we consider
the “totality of the available mitigation evidence_both that adduced at trial, and
the evidence adduced in the [postconviction] proceeding”_and “reweig[h] it
against the evidence in aggravation.” ’ ”) (quoting Dennis v. State, 109 So. 3d 680,
695 (Fla. 2012))).

Moreover, defense counsel’s failure to present more evidence of Allen’s
mental health did not prejudice Allen. Dr. Russell testified that Allen was likely
under the influence of an extreme emotional disturbance at the time of the crime,
but admitted on cross-examination that Allen never told him what was going
through her mind at the time of the capital felony. He also conceded that she
denied killing Wright. The value of his opinion that she suffered from an extreme
mental or emotional disturbance at the time of the homicide is therefore weakened.
Further, the State’s rebuttal expert, Dr. Gamache, rebutted Dr. Russell’s findings,
testifying that there was insufficient evidence from which to conclude that Allen
suffered from PTSD throughout her life and at the time of the homicide. The
additional mitigation presented would not have outweighed the established
aggravating factors to undermine the confidence in the outcome such that Allen
would have received a life sentence. See J0nes, 998 So. 2d at 585 (determining
that there was no reasonable probability that evidence of the defendant’s mental

health history would have led to a different outcome where the State had

_23_

established three aggravating factors, including the HAC aggravator); Breedlove v.
State, 692 So. 2d 874, 878 (Fla. 1997) (holding that aggravating factors of HAC,
prior violent felony, and murder committed during the course of a burglary
overwhelmed mitigation testimony presented regarding childhood abuse and
alcohol abuse).

Further, based on trial testimony, the trial court found, as nonstatutory
mitigating factors, that Allen was a victim of physical abuse, possible sexual abuse,
and that she has brain damage. The additional mitigation testimony would have, at
most, only added weight to these mitigating circumstances. Allen has failed to
establish that her sentence would have been different had the court given more
weight to these nonstatutory mitigators. See J0nes, 998 So. 2d at 587. Our
confidence in the outcome is not undermined.

For these reasons, we affirm the postconviction court’s denial of this claim.
3. Improper eliciting of testimony that Allen poured chemicals on the victim

Allen claims that trial counsel was ineffective during his recross of Quintin
because counsel’s questioning elicited testimony that Allen argues was harmful to
the defense.

The record reflects that in Quintin’s deposition he stated that Allen poured
caustic substances “on” Wright’s face. ln his police statement, Quintin stated that

he could not remember which specific substances were poured onto Wright, but

_24_

that it was “a whole bunch of stuff.” During direct examination, when asked if he
knew the types of liquids that were poured onto Wright’s face, he answered, “lt
was the bleach, the green rubbing alcohol, the spritz for hair, fingernail polish
remover.” On cross-examination, trial counsel asked if each of the chemicals was
poured separately into Wright’s eyes and mouth, and Quintin answered, “Yes, sir.”
On redirect examination, Quintin testified that he was not sure what liquids were
poured onto Wright other than rubbing alcohol. Then, on recross-examination,
when trial counsel asked several times which specific substances were poured onto
Wright, Quintin testified that “bleach, nail polish remover, and ammonia” were
poured “in” Wright’s face and eyes and down her mouth. The record also shows
that Dr. Qaiser testified that the autopsy report did not indicate that any bleach or
caustic substances were ever poured down Wright’s throat.

Allen asserts that Quintin’s testimony on recross-examination that Allen
poured bleach, nail polish remover, and ammonia in Wright’s face, mouth, and
eyes was more specific and damaging to her case than his previous, more generic,
testimony. Allen argues that the elicitation of this testimony was deficient
representation because it harmed the defense’s case by painting for the jury a more
painful picture of the specific harmful ways that Wright was tortured. The

postconviction court found that trial counsel’s tactics were not unreasonable, and

we agree. The record demonstrates that counsel was not deficient in eliciting

_25_

Quintin’s testimony on recross-examination that bleach, ammonia, and nail polish
remover were poured into Wright’s eyes, mouth, and face. Quintin’s testimony on
direct examination specifically mentioned bleach and nail polish remover, but was
inconsistent with his other testimony. ln his police statement, Quintin said that he
could not remember which substances were used, and he also stated on cross- and
redirect examination that he could not specifically identify the types of substances
poured onto Wright. Counsel’s questions regarding which substances were
poured, and the elicitation of Quintin’s answer regarding nail polish, ammonia, and
bleach, were appropriate because counsel was impeaching Quintin by attempting to
show the inconsistencies in his testimony. Counsel’s elicitation of this testimony
on recross-examination was a reasonable tactical decision that resulted in the
impeachment of Quintin. Additionally, his testimony about the bleach was further
impeached by the forensic evidence and Dr. Qaiser’s testimony that no evidence of
bleach was found on Wright. Trial counsel was therefore not deficient for the
strategic decision to impeach Quintin in that manner.

Moreover, even if counsel was deficient, Allen has not suffered prejudice.
The trial court’s HAC aggravator determination was based on a multitude of
evidence that was unrelated to the types of chemicals poured onto Wright. The
record shows that Allen tied and bound, beat, tortured, and strangled Wright.

There is not a reasonable probability that the outcome would have been different

_26_

had the jury not heard the specific testimony regarding which chemicals were
poured onto Wright and where they were poured. Brant v. State, 197 So. 3d 1051,
107 (Fla. 2016) (finding no prejudice in light of the evidence for the HAC
aggravator). Our confidence in the outcome is not undermined. Therefore, we
affirm the denial of relief.

4. Failure to object to Dr. Qaiser’s testimony that unconscious people feel
pain

Allen argues her trial counsel was ineffective for failing to object to Dr.
Qaiser’s testimony in the penalty phase that unconscious people have the ability to
feel pain.

The record reflects that Dr. Qaiser testified for the State that,

[W]hether people who are unconscious, either they are minimally

unconscious, mildly, moderately, or severely or profoundly

unconscious, do they perceive pain or not. There is [very] little

known about that. But the studies have been done, especially in

Belgium, in Europe, and here also in the United States and all the

other parts of North America . . . . So the conclusion was . . . that they

register the pain, but it is not necessarily that they will outwardly

manifest it.

The prosecutor then asked, “And [the victim] also could have been
experiencing pain even if she is unconscious?” Dr. Qaiser answered, “That’s true.”
On cross-examination, Dr. Qaiser also testified, “[lt] is not necessary that the

outward manifestation of pain will be there. But as far as the perception of pain by

the subject, you cannot rule that out. And studies have shown that this has taken

_27_

place.” Dr. Qaiser then admitted that he definitely could not testify within a
reasonable degree of medical probability that “there was a sensation of pain in the
present case” while Wright was unconscious.

At the evidentiary hearing, trial counsel testified that he planned to refute
Dr. Qaiser’s testimony that unconscious people feel pain by cross-examining him.
Trial counsel also testified that Dr. Qaiser admitted on cross-examination that in
this case specifically he “couldn’t say one way or the other” whether Wright
experienced pain.

Allen claims that trial counsel should have objected to Dr. Qaiser’s
testimony because the testimony was speculative and inflammatory hearsay.
However, the record establishes that counsel made a strategic decision not to object
and rather to cross-examine Dr. Qaiser because he chose as a matter of strategy to
attempt to refute the testimony. He ultimately succeeded in getting Dr. Qaiser to
acknowledge on cross-examination that he could not definitively say that Wright
felt pain within a reasonable degree of medical probability. This discredited his
earlier testimony. Accordingly, the record establishes that counsel’s decision was
a reasonable one under the norms of professional conduct and, therefore, not
deficient. Given that finding, we conclude that counsel was not deficient for

failing to object to the testimony.

_23_

Allen has also not demonstrated prejudice. Here, there was a large amount
of evidence supporting the HAC aggravator finding that was unrelated to Dr.
Qaiser’s testimony regarding unconscious people feeling pain. Quintin testified
that Allen kidnapped, bound, beat, and strangled Wright, and Dr. Qaiser testified
regarding Wright’s contusions and ligature marks. Allen, 137 So. 3d at 953. This
evidence was completely separate from the question of whether Wright felt pain
after she was rendered unconscious. Given Quintin’s testimony that Allen
strangled Wright even while Wright pleaded to be released and screamed that she
would wet her pants, as well as the forensic evidence of contusions on Wright’s
torso, there is no reasonable probability that an objection to the admissibility of Dr.
Qaiser’s testimony regarding pain would have affected the outcome of Allen’s
trial. Our confidence in the outcome is not undermined. Therefore, we affirm the
postconviction court’s denial of relief on this claim.

5. Failure to object to several instances of prosecutorial misconduct or move
for a mistrial during the penalty phase

Allen argues her trial counsel was ineffective for failing to object to multiple
instances of prosecutorial misconduct during the penalty phase.

Subclaim 1

Allen claims that trial counsel should have objected, requested a curative
instruction, and moved for a mistrial when the prosecutor stated during cross-

examination of Dr. Gebel that Allen was involved in drugs and had previously

_29_

served time in prison, and misstated during cross-examination of Myrtle Hudson
that Allen was convicted several times for selling drugs. She argues that counsel’s
deficiencies prejudiced her penalty phase by making the jury believe she was a
career criminal unworthy of mercy.

The record shows that Dr. Gebel testified for the defense at trial that Allen
suffered traumatic brain injuries. On cross-examination, the prosecutor asked Dr.
Gebel if he had reviewed Allen’s prison records, and Dr. Gebel answered that
according to his notes, he did not know what type of records they were. The
prosecutor responded, “So, you don’t know if those were county jail records or
prison records where she had been in prison before?” The prosecutor also asked if
Dr. Gebel was aware that Allen had been “involved in drugs for a number of
years.” Myrtle Hudson also testified for the defense at trial, and the prosecutor
asked her if she was “aware that [Allen] was convicted several times for selling
drugs, right?”

However, nothing in the record undermines confidence in the outcome of the
penalty phase, but rather supports the postconviction court’s finding that there is no
prejudice. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004) (citing
Strickland, 466 U.S. at 694). The prosecutor’s comments about Allen’s time in
prison and her convictions for drug sales were isolated, and did not approach the

same level of impropriety as comments in other cases where this Court has granted

_3()_

relief. See Brooks v. State, 762 So. 2d 879, 905 (Fla. 2000) (remanding for new
penalty phase in light of the “cumulative effect of the numerous, overlapping
improprieties in the prosecutor’s penalty phase closing argument”). Further, the
testimony that Allen was involved in a lifestyle of drugs led the trial court to find
that such involvement was a nonstatutory mitigator. ln light of the penalty phase
evidence and the aggravating circumstance of HAC, which is among the weightiest
in Florida’s death penalty scheme, see Martin v. State, 151 So. 3d 1184, 1198 (Fla.
2014), it is clear that counsel’s deficiencies did not prejudice Allen. Our
confidence in the outcome is not undermined. Because Allen has not demonstrated
prejudice, we need not address the deficient performance prong. See Strickland,
466 U.S. at 697. Therefore, we conclude that the circuit court properly denied
relief on this claim.

Subclaim 2

Allen claims that trial counsel should have objected and moved for a mistrial
when the prosecutor improperly asked Dr. Wu two questions regarding Allen’s
future dangerousness in prison. Allen argues that counsel’s deficiencies prejudiced
her in the penalty phase by leading the jury to believe that she was a danger to
society.

Prior to trial, the trial court entered an order granting Allen’s motion to

preclude improper argument. The record shows that the State violated the court’s

_31_

order not to make arguments about Allen’s future dangerousness by asking two
questions about Allen’s future threat to prison guards. During cross-examination
of Dr. Wu, the prosecutor asked, “So, [an episode of a violent act from Allen]
could happen, say, in the future to a prison guard, correct?” The prosecutor then
asked, “So, you are saying to a reasonable degree of medical probability she is a
risk to any prison guard who is watching her in the future?”

Allen previously raised this issue on direct appeal, and we found that the
questions did not amount to fundamental error. Allen, 137 So. 3d at 962. Allen
therefore cannot demonstrate that the questions were prejudicial under Strickland.
See Serrano v. State, 225 So. 3d 737, 751 (Fla. 2017) (holding that the defendant
could not establish prejudice under Strickland because he failed to show the
comments were fundamental error on direct appeal). Our confidence in the
outcome is not undermined. Because Allen has not demonstrated prejudice, we
need not address the deficient performance prong. See Strickland, 466 U.S. at 697.
Therefore, we conclude that the circuit court properly denied relief on this claim.

Subclaim 3

Allen claims that trial counsel should have objected when the prosecutor
asked Dr. Wu if he saw Allen display signs of remorse following the murder. She
argues that counsel’s deficiency prejudiced her in the penalty phase by putting a

nonstatutory aggravating circumstance before the jury.

_32_

The record shows that Dr. Wu testified for the defense that people suffering
from lack of impulse control often feel remorseful after a violent outburst. On
cross-examination, the prosecutor asked Dr. Wu, “Did you see and study anything
about Margaret Allen that she had any level of remorse after this murder
occurred?”

Allen has failed to demonstrate prejudice. Even if this question were not
proper cross-examination in light of Dr. Wu’s testimony on direct, given the
overwhelming evidence of guilt presented, as well as the aggravating
circumstances found by the court, there is not a reasonable probability that the
jurors would have changed their minds regarding the balancing of the aggravating
and mitigating circumstances solely due to hearing this question about Allen’s lack
of remorse. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694).
Our confidence in the outcome is not undermined. Because Allen has not
demonstrated prejudice, we need not address the deficient performance prong. See
Strickland, 466 U.S. at 697. Therefore, we conclude that the circuit court properly
denied relief on this claim.

Subclaim 4

Allen also argues that the prosecutor made an improper Golden Rule
argument during closing argument. “A ‘ golden rule’ argument asks the jurors to

place themselves in the victim’s position, [and] asks the jurors to imagine the

_33_

victim’s pain and terror or imagine how they would feel if the victim were a
relative.” Hatchinson v. State, 882 So. 2d 943, 954 (Fla. 2004). ln this case, the
prosecutor stated:

A sense of this pain above and below the ligature mark. The desire to

survive. That basic human instinct. You know, l want to live. l don’t

want to die. l want to see my children again. l want to see my

companion again. And finally the jerky movements Dr. Qaiser told us

about. The movement of the head and the neck. . . . Those are the last

few moments of Wenda Wright’s life.

Allen claims that the prosecutor’s argument improperly described the crime
scene with an imaginary script and invited the jurors to place themselves in the
position of the victim. Allen argues that counsel’s deficiency in failing to object
prejudiced her in the penalty phase by unduly inflaming the sympathy and passions
of the jury against her. However, Allen has failed to demonstrate prejudice.
Hearing these comments during closing argument would not have caused the jurors
to weigh the aggravation or mitigation differently. The significant amount of
evidence supporting the HAC aggravator in this case, such as Quintin’s testimony
that Allen kidnapped and tortured Wright and the medical forensic evidence of
contusions and ligatures on Wright’s body, shows that there is no reasonable
probability that hearing the comments in question affected the jury’s sentencing
recommendation. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at

694). Failing to object to the prosecutor’s argument did not affect the fairness and

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

_34_

Because Allen has not demonstrated prejudice, we need not address the deficient
performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that
the circuit court properly denied relief on this claim.

Subclaim 5

Allen claims that trial counsel should have objected when the prosecutor

$, 44

stated that “in certain cases the law calls for” a death penalty recommendation,
because it improperly gained sympathy for the prosecutor and misstated the law.
She argues that counsel’s deficiency prejudiced her because the comment told the
jurors that they were required to recommend death.

During penalty phase closing arguments, the prosecutor stated:

[T]here are cases where the recommendation for the death penalty is

warranted. This is that case . . . . lt is not going to be an easy

decision. lt’s not easy to stand up here and ask a jury to recommend a

death penalty. But in certain cases it is what the law calls for. lt’s

what justice calls for.

Allen cannot show the prosecutor’s comments prejudiced her. The jury
instructions correctly informed Allen’s jury of the law relating to the weighing of
aggravators and mitigators. Cf Anderson, 18 So. 3d at 517 (finding no prejudice
and citing previous cases where this Court “determined that the defendants were
not prejudiced by the improper statements of the prosecutors because the juries

were given the proper instructions for analyzing aggravating and mitigating

circumstances”). Our confidence in the outcome is therefore not undermined.

_35_

Because Allen has not demonstrated prejudice, we need not address the deficient
performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that
the circuit court properly denied postconviction relief on this claim.

Subclaim 6

Allen claims that trial counsel should have objected when the prosecutor
stated during closing arguments that, because Dr. Gebel was paid for his testimony,
he refused to change his opinion even when faced with new facts of the case. She
argues that this misrepresentation of Dr. Gebel’s testimony prejudiced her by
denigrating him as an expert witness, undermining her mitigation.

The record shows that during cross-examination, the prosecutor asked Dr.
Gebel if his diagnosis of Allen’s poor executive functioning would change a bit
now that he knew more facts of the case, and Dr. Gebel replied, “lt might change
the degree with which she’s injured, but it wouldn’t change the fact that she has
been injured throughout the years.” Dr. Gebel then answered in the affirmative
when asked if his new knowledge of the facts “might change the severity or the
degree of that injury.” The prosecutor also stated during closing arguments:

And then l said, well, Doctor, what if you knew those were the facts

in this case because that is exactly what she did? Wouldn’t that

change your opinion? Well, blah, blah, blah, no, that really wouldn’t

change my opinion. And you know why? Because he was paid
$3,000 to come in here and say that she had cognitive disorders.

_36_

Allen did not suffer prejudice. Allen has failed to demonstrate a reasonable
probability that, but for counsel’s failure to object to the State’s characterization of
Dr. Gebel’s testimony, the result of the proceeding would have been different. See
Strickland, 466 U.S. at 694. Given the overwhelming evidence of guilt presented,
there is no reasonable probability that the jurors would have changed their minds
regarding the balancing of aggravating and mitigating circumstances solely due to
hearing that the expert witness was paid to testify and would not change his
opinion. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694). Our
confidence in the outcome is not undermined. Because Allen has not demonstrated
prejudice, we need not address the deficient performance prong. See Strickland,
466 U.S. at 697. Therefore, we conclude that the circuit court properly denied
relief on this claim.

Subclaim 7

Allen claims that trial counsel should have objected when the prosecutor
during closing arguments characterized Allen’s pouring of liquids or water on
Wright’s face as waterboarding torture, because the comment was inflammatory
and the record contained no evidence that Allen waterboarded Wright.

During closing argument, the prosecutor stated:

We have heard a lot of things on the news in the last couple of years

about torture, systematic torture. Water boarding, pouring water on

someone’s face making them think that they are drowning. That is
torture. That is an attempt to get somebody to fess up to something.

_37_

That didn’t work. And all the while, all the while, you know, think of

what is going through Wenda Wright’s mind. So, the liquids doesn’t

[sic] work.

Allen has failed to demonstrate that the prosecutor’s description of Wright’s
suffering as waterboarding prejudiced her penalty phase. ln light of Quintin’s
testimony that liquids were poured on Wright’s face and that she was tortured, as
well as the HAC aggravating factor found by the trial court, there is no reasonable
probability that the jurors would have changed their minds regarding the balancing
of aggravating and mitigating circumstances solely due to hearing the prosecutor
describe Allen’s actions as waterboarding. See Sochor, 883 So. 2d at 771 (citing
Strickland, 466 U.S. at 694). Our confidence in the outcome is not undermined.
Because Allen has not demonstrated prejudice, we need not address the deficient
performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that
the circuit court properly denied relief on this claim.

Subclaim 8

Allen claims that trial counsel should have objected and requested curative
instructions during closing arguments because the prosecutor misstated the
evidence. She claims the prosecutor wrongly stated that Dr. Wu testified that a

PET scan is not a standalone test and that he relies on MRls and CAT scans in

diagnosing brain trauma.

_33_

The record shows that during cross-examination, Dr. Wu stated that an MRI
is not always done in conjunction with a PET scan, and although it would be
“preferable” to have an MRI in conjunction with a PET scan, it “is not essential”
and he would not lack any necessary information without it. During closing
arguments, the prosecutor stated:

Dr. Wu admitted in his own slide_did you see it in his own slide that

the PET scan is not a standalone test. Remember? He said, l don’t

use this as standalone. We rely on MRls, CAT scans, and the

neuropsych’ testing. Well, there is no MRI. There is no CAT scan.

Allen has not suffered prejudice. The amount of evidence supporting the
two aggravating circumstances in this case shows that there is no reasonable
probability that, but for hearing the comments in question, the jury’s recommended
sentence would have been different. See Sochor, 883 So. 2d at 771 (citing
Strickland, 466 U.S. at 694). Our confidence in the outcome is not undermined.
Because Allen has not demonstrated prejudice, we need not address the deficient
performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that
the circuit court properly denied relief on this claim.

Subclaim 9

Allen claims that trial counsel should have objected and moved for a mistrial
during closing arguments because the prosecutor introduced evidence of Allen’s

bad character_that she was a bad mother because her children were in prison_

without her counsel’s previously opening the door by presenting evidence of good

_39_

character. Allen argues that this prejudiced her because the comments portrayed
her as unsympathetic and inflamed the jurors’ passions.

The record shows that Myrtle Hudson testified that two of Allen’s children
are in prison and one of them stays with her grandmother. The prosecutor stated
during closing arguments:

You heard about the Defendant’s time in prison for previous drug sale

convictions. You heard about her children, her son in prison for 11

years and one of her daughters is in prison for five years. And her

other daughter is with her grandmother. And we can only hope that

there may be some hope for that daughter.

Allen did not suffer prejudice because there is no reasonable probability that
hearing about Allen’s poor mothering influenced the jurors’ weighing of the
aggravating and mitigating circumstances. Our confidence in the outcome is not
undermined. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694).
Because Allen has not demonstrated prejudice, we need not address the deficient
performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that
the circuit court properly denied postconviction relief on this claim.

Subclaim 10

Allen claims that trial counsel should have objected and moved for a mistrial
during closing arguments because the prosecutor added to the authority of his

office by saying that he wrote down Dr. Gebel’s testimony. She also claims that

the prosecutor misstated the doctor’s testimony by claiming that the doctor said

_4()_

that Allen had no major brain issues or brain injury. Allen argues that this
prejudiced her because the comments devalued her mental health mitigation.

The record shows that on direct examination, Dr. Gebel stated that Allen
suffered “intracranial injuries” and reasoned that “[w]ithin a reasonable degree of
medical probability she does fit a patient who has brain damage.” Dr. Gebel also
testified that he was unsure if Allen had any structural brain damage, and that she
did not have “any brain injury in terms of weakness in an arm or leg.” In closing,
the prosecutor stated, “First of all, what l wrote down was [Dr. Gebel] said, no
major brain issue with the Defendant. No major brain issues with the Defendant.
Okay?” The prosecutor also stated, “And, again, the first doctor says no major
brain injury.”

Allen has failed to establish prejudice under Strickland. Allen has not
demonstrated a reasonable probability that the outcome of the proceeding would
have been different but for the prosecutor’s summarizing Dr. Gebel’s testimony as
opining that Allen did not have a maj or brain injury_as Dr. Gebel equivocated
regarding possible structural brain damage, which is consistent with having no
maj or brain damage. Our confidence in the outcome is therefore not undermined.
See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694). Therefore, we

conclude that the circuit court properly denied relief on this claim.

_41_

Subclaim 11

Allen argues that the alleged errors by counsel cumulatively deprived her of
a fair trial. However, because each subclaim, addressed individually, is without
merit, the claim of cumulative error also necessarily fails. See Israel, 985 So. 2d at
520 (denying a claim of cumulative error when the individual claims did not
establish ineffective assistance of counsel); Bell v. State, 965 So. 2d 48, 75 (Fla.
2007) (“[B]ecause we conclude that none of the [individual ineffective assistance
of counsel] claims has merit, we affirm the circuit court’s determination that there
is no cumulative error.”). Therefore, we conclude that the circuit court properly
denied postconviction relief on this claim.

6. Asking if Allen became part of the culture of “drugs, thugs, and violence”

Allen argues that trial counsel was ineffective for asking if Allen became a
part of the culture of “drugs, thugs, and violence.”

The record shows that in the penalty phase of Allen’s trial, trial counsel
questioned Allen’s aunt, Myrtle Hudson, about Allen’s neighborhood:

Q: Describe the area of town that she lived in, if you would for the
jury?

A: We stayed in a drug neighborhood. She stayed in a drug
neighborhood.

Q: And so, she grew up around drugs?

A: Drugs and thugs.

_42_

Q: And violence?

A: Yes, sir. Drugs, thugs, and violence. Yes, sir.

At the evidentiary hearing, trial counsel testified that he asked Hudson about
Allen’s neighborhood, which elicited from her the phrase, “drugs, thugs, and
violence.” He testified that he did this in order to show “the atmosphere in which
[Allen] lived, and that it had an effect on her.” He also testified that the general
theme of his mitigation was to show the negative atmosphere of Allen’s cultural
upbringing to the jury and its impact on her. He testified that the phrase at issue
was specifically brought up by Hudson, not by him.

Allen’s claim is refuted by the record. The record reflects that trial
counsel’s questioning regarding Allen’s upbringing was strategic and purposeful_
he aimed to show the jury the challenging culture in which Allen lived. When
asked to describe the area of town in which Allen grew up, Hudson described the
neighborhood using the phrase “drugs, thugs, and violence.” This evidence
supported the trial court’s finding of the nonstatutory mitigator that Allen grew up
in a violent and drug-infested neighborhood. The testimony elicited by trial
counsel thereby amounts to the same information established by counsel and found
by the trial court. Counsel was not deficient in bringing up that line of questioning,

despite the phrase that was elicited during it.

_43_

Moreover, Allen has failed to show prejudice. There is no reasonable
probability that the jury hearing that Allen grew up surrounded by “drugs, thugs,
and violence” impacted their balancing of the aggravating and mitigating
circumstances in light of the evidence of torture and the victim’s desperate pleas to
go home prior to her death. See Sochor, 883 So. 2d at 771 (citing Strickland, 466
U.S. at 694); Brant, 197 So. 3d at 1070 (finding no prejudice in light of the
evidence for the HAC aggravator). Our confidence in the outcome is not
undermined. We therefore conclude that the circuit court properly denied relief on
this claim.

7 . Failure to call a forensic expert

Allen argues the postconviction court erred in denying the claim that trial
counsel was ineffective during both the guilt and penalty phases of her trial for
failing to call his own forensic expert.

We have held that trial counsel’s decision not to call certain witnesses to
testify is often reasonable trial strategy, and mere disagreement with that reasoning
is not enough to show deficient performance. See Johnston v. State, 63 So. 3d 730,
741 (Fla. 2011) (holding that counsel’s failure to call defendant’s friend to offer
mitigation testimony was reasonable trial strategy). Cross-examination is often

sufficient to reveal deficiencies in an expert’s presentation, especially when re-

_44_

presenting the same evidence through other witnesses would not alter the outcome.
See Anderson v. State, 220 So. 3d 1133, 1146 (Fla. 2017).

A number of factors must be considered when determining whether trial
counsel’s decision not to call an expert to rebut the State’s expert constitutes
deficient performance:

First among these are the attomey’s reasons for performing in an
allegedly deficient manner, including consideration of the attomey’s
tactical decisions. See State v. B0lender, 503 So. 2d 1247, 1250 (Fla.
1987); Lightboarne v. State, 471 So. 2d 27, 28 (Fla. 1985). A second
factor is whether cross-examination of the State’s expert brings out
the expert’s weaknesses and whether those weaknesses are argued to
the jury. Card v. Dugger, 911 F.2d 1494 (1 1th Cir. 1990). See Rose
v. State, 617 So. 2d 291, 297 (Fla. 1993)[.] The final factor is whether
a defendant can show that an expert was available at the time of trial
to rebut the State’s expert. See Elledge v. Dagger, 823 F.2d 1439,
1446 (11th Cir. 1987).

State v. Riechmann, 777 So. 2d 342, 354 (Fla. 2000).
The postconviction court’s order states:

Attomey Bankowitz . . . cross-examined Dr. Qaiser extensively with
Dr. Whitmore’s report and felt that he did not need any other expert to
come in and say the same thing Dr. Whitmore said . . . . Dr. Qaiser
admitted that Dr. Whitmore performed the actual autopsy, and he was
only able to view photographs. Dr. Qaiser testified that he found
ligature marks on the neck, that she suffered a ligature strangulation.
He agreed that Dr. Whitmore’s report found contusions on the neck,
and made no mention of ligature marks. Dr. Qaiser disagreed that
cocaine intoxication was a contributory factor, although he admitted
that was in Dr. Whitmore’s report. Dr. Qaiser testified that there was
no evidence of bleach or a caustic substance on Ms. Wright. Dr.
Qaiser testified that he could not state within a reasonable degree of
medical probability that the victim felt pain while unconscious.

_45_

Everything Dr. Spitz testified to was brought out on cross-

examination of Dr. Qaiser. While Dr. Spitz disagreed with Dr.

Qaiser’s findings, Dr. Spitz did not completely discredit those

findings as scientific impossibilities, but instead agreed they were

possibilities. The Court finds that counsel’s strategic decision not to

hire a forensic expert, but instead to challenge Dr. Qaiser’s findings

through crossexamination, [sic] was not unreasonable under

prevailing professional norms.

The record supports the postconviction court’s findings. The record reflects
that Dr. Qaiser testified that Dr. Whitmore, not Dr. Qaiser, performed the autopsy;
that the autopsy report did not mention ligature marks and did mention cocaine
being a contributing factor in Wright’s death; that no evidence of a caustic
substance on Wright existed; and that he could not state within reason that Wright
experienced pain while unconscious. Further, these admissions and weaknesses
elicited from Dr. Qaiser on cross-examination were the same admissions and
weaknesses that Dr. Spitz testified to at the evidentiary hearing. Therefore, the
jury was informed as to the conclusions Dr. Spitz would have made if he had
testified. The record also reflects that trial counsel understood the science of the
case and decided that he did not need an expert to say the same thing that he
elicited out of Dr. Qaiser on cross-examination with Dr. Whitmore’s autopsy
report. There is no deficiency when counsel had a tactical reason for not calling

his own expert and his cross-examination elicited the same weaknesses that the

expert would have. Rigterink v. State, 193 So. 3d 846, 867 (Fla. 2016).

_46_

Accordingly, counsel’s decision not to call the forensic expert was a strategic one
and he was not deficient.

Moreover, Allen cannot show prejudice. The evidence at trial included
Quintin’s testimony that Wright was kidnapped, bound, beaten, and unable to
leave, even as she begged to be released before and while being strangled. Dr.
Spitz agreed that the death was a homicide and that ligature strangulation was
possible and that he could not rule it out. He even agreed that the bruising on
Wright’s body could have occurred by restraint. Everything testified to by Dr.
Spitz was brought out on Dr. Qaiser’s cross-examination. This testimony shows
that even if counsel had presented the testimony of Dr. Spitz, it would not have
undermined the State’s case to any significant extent. See Abdool v. State, 220 So.
3d 1106, 1114-15 (Fla. 2017) (concluding that there was no prejudice where the
expert that trial counsel “fail[ed] to consult and retain actually provided
information that is consistent with the testimony presented by the State’ s arson
expert”). Our confidence in the outcome is not undermined, and we conclude that
the circuit court properly denied postconviction relief on this claim.

8. Failure to impeach Quintin with prior inconsistent statements

Allen argues that trial counsel was ineffective for failing to impeach Quintin

with prior inconsistent statements. She contends that counsel failed to impeach

Quintin with his police statement indicating that Allen did not pour bleach on

_47_

Wright, which conflicts with his trial testimony that Allen poured bleach on
Wright.

The record reflects that in his police statement, Quintin stated that he could
not remember all of what was poured onto Wright before the homicide. He stated
that Allen procured “alcohol” and hair products to pour onto Wright, that she had
boxes of bleach, and that she did not have a bleach bottle but rather used a hair
products bottle. He also stated that Wright’s legs were tied with a belt while the
liquids were poured onto her. On direct examination, Quintin testified that he
personally held Wright’s arms and legs down as Allen poured bleach and other
chemicals on Wright’s face. On cross examination, Quintin admitted that his trial
testimony conflicted with his previous testimony regarding how Wright was
restrained while the substances were poured on her. He testified that the statement
he gave to the police was the truth, and that he had lied on direct examination.

Quintin’s police statement shows that he never actually stated that bleach
was not poured onto Wright, but rather stated that although Allen had boxes of
bleach, she did not have a bottle of bleach and that he was unsure what chemicals,
other than alcohol, were used. These statements are not wholly inconsistent with
his trial testimony. Moreover, as discussed in relation to claim three, counsel did
cross-examine Quintin about many inconsistencies in his testimony and brought

out this inconsistency on re-cross_choosing to rely on Dr. Qaiser’s testimony that

_43_

no evidence of bleach was found on Wright to demonstrate that Quintin’s
testimony should not be believed. This trial strategy was not unreasonable.

For similar reasons, Allen has not demonstrated prejudice. Given that trial
counsel did impeach Quintin with other inconsistent statements at trial, there is not
a reasonable probability that the jury would have found Allen not guilty or that the
jurors would have weighed the aggravation and mitigation differently had counsel
impeached Quintin as Allen claims. “No prejudice result[s] from counsel’s failure
to present cumulative evidence of inconsistent statements.” Green v. State, 975
So. 2d 1090, 1104 (Fla. 2008) (holding that counsel was not ineffective for failing
to impeach with one statement because counsel impeached witness with many
other inconsistent statements). The jury was aware that Quintin had lied on the
stand and that his testimony was inconsistent in places. Our confidence in the
outcome is therefore not undermined. We therefore conclude that the circuit court
properly denied relief on this claim.

9. Failure to adequately challenge or strike a juror

Allen argues that counsel was ineffective for failing to challenge juror Carll
for cause or to strike her peremptorily because of the juror’s strong predisposition
for recommending the death penalty.

A valid claim of ineffective assistance of counsel for failure to raise or

preserve a for-cause challenge against the juror must establish that the juror “was

_49_

actually biased against the defendant,” such that he or she had a “bias-in-fact that
would prevent service as an impartial juror.” Carratelli v. State, 961 So. 2d at 323-
24. The evidence of the juror’s actual bias must “be plain on the face of the
record,” id. at 324, and amount to “something more than mere doubt about that
juror’s impartiality,” Mosley v. State, 209 So. 3d 1248, 1265 (Fla. 2016). We have
described the standard as follows:

Where reasonable people could disagree about a juror’s fitness to

serve, the showing of prejudice required for postconviction relief is

lacking.

Carratelli, 961 So. 2d at 323-24 (quoting Carratelli v. State, 915 So. 2d 1256,
1261 (Fla. 4th DCA 2005)). When a juror makes statements suggesting bias but
later makes clear his or her ability to be impartial, actual bias will not be found.
See id. at 327. The analysis of this issue begins with the Strickland prejudice
prong, “as it is necessary to establish that the juror was actually biased before
proving that counsel performed deficiently by failing to challenge that juror due to
bias.” Patrick v. State, 246 So. 3d 253, 263 (Fla. 2018).

Allen has failed to show that juror Carll was actually biased. Competent,
substantial evidence supports the postconviction court’s determination that juror
Carll’s comments about her opinion of the death penalty did not establish actual
bias. While juror Carll did express positive sentiment toward the death penalty and

expressly outlined several circumstances in which she would recommend it, she

_50_

confirmed upon follow-up questioning that she was flexible, would “absolutely”
listen to aggravation and mitigation, and would listen to mental health evidence.
juror Carll also stated that there were certain circumstances where she would not
recommend the death penalty, such as if someone was “a party of someone’s
death.” As in Carratelli, the record reveals that juror Carll assured the court that
she was willing to listen to the evidence, be fair, and follow the law. Her
statements showing that she would abide by the law and consider the evidence
presented refute the claim that juror Carll was biased. Allen therefore cannot
establish prejudice. See Barnhill v. State, 834 So. 2d 836, 844 (Fla. 2002) (holding
that a juror is unqualified only if she “expresses an unyielding conviction and
rigidity toward the death penalty”). Our confidence in the outcome is not
undermined. We therefore conclude that the circuit court properly denied relief on
this claim.
II. Giglio Claim

Allen next claims that the postconviction court erred in denying her claim
that the State committed a Giglio violation.

This claim is procedurally barred because it should have been raised on
direct appeal where the facts supporting the claim were available. See Robinson v.
State, 707 So. 2d 688, 693 (Fla. 1998) (finding defendant’s Giglio claim

procedurally barred because defendant failed to raise it on direct appeal).

_51_

However, even if the claim were not procedurally barred, it also fails on the merits.
Allen must prove the following to establish a Giglio violation:

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

the prosecutor knew the testimony was false; and (3) the false

evidence was material. lf the first two prongs are established, the

false evidence is deemed material if there is any reasonable possibility

that it could have affected the jury’s verdict. The State must then

“prove that the false testimony was not material by demonstrating it

was harmless beyond a reasonable doubt.” Under the harmless error

test, the State must prove “there is no reasonable possibility that the

error contributed to the conviction.”
Franqai v. State, 59 So. 3d 82, 101-02 (Fla. 2011) (citations omitted) (quoting
Tompkins v. State, 994 So. 2d 1072, 1091 (Fla. 2008), and Guzman v. State, 941
So. 2d 1045, 1050 (Fla. 2006)). Because Giglio claims present mixed questions of
law and fact, we defer to the postconviction court’s factual findings supported by
competent, substantial evidence and review the court’s legal conclusions de novo.
Green v. State, 975 So. 2d 1090, 1106 (Fla. 2008).

Allen argues that the State elicited and failed to correct false testimony that
Allen was convicted several times for selling drugs. The record shows that the
prosecutor asked Hudson on cross-examination, “You were aware that she was
convicted several times for selling drugs, right?” Hudson answered in the

affirmative. During closing arguments, the prosecutor stated to the jury, “You

heard about the defendant’s time in prison for previous drug sale convictions.”

_52_

The record demonstrates that the State violated Giglio with respect to
Hudson’s testimony. The prosecutor presented and failed to correct false
testimony from Hudson regarding Allen’s criminal record by asking if Hudson
knew that Allen was convicted many times for selling drugs. lt is undisputed that
Allen had only one conviction for selling drugs. The record shows that the State
had knowledge of this fact because it prepared Allen’s Criminal Code Scoresheet
prior to trial. However, the false evidence presented by the State is immaterial,
because there is no reasonable possibility that the number of prior drug convictions
that Allen had contributed to the jury’s sentencing recommendation. There is no
reasonable possibility that the fact that the jurors heard that Allen had multiple
prior drug convictions_as opposed to just one prior drug conviction_would have
had an impact on their vote in the face of the evidence detailing the horrific events
during Wright’s kidnapping that resulted in her murder. We conclude that the
State’s use of this false evidence was harmless beyond a reasonable doubt.
Therefore, we affirm the circuit court’s denial of Allen’s Giglio claim.

III. Hurst Claim

Allen lastly argues that the postconviction court erred in denying her relief
from her sentence of death under the Harst decisions. We affirm the
postconviction court’s ruling on this claim because the State proved beyond a

reasonable doubt that the Harst error was harmless and because Allen’s Harst-

_53_

induced Caldwell v. Mississippi, 472 U.S. 320 (1985), claim fails to show that the
standard jury instructions violate the Eighth Amendment.
ln Harst v. Florida, the United States Supreme Court held that “[t]he Sixth
Amendment requires a jury, not a judge, to find each fact necessary to impose a
sentence of death” and that “[a] jury’s mere recommendation is not enough.” 136
S. Ct. at 619. On remand, we reached the following holding:
[B]efore the trial judge may consider imposing a sentence of death,
the jury in a capital case must unanimously and expressly find all the
aggravating factors that were proven beyond a reasonable doubt,
unanimously find that the aggravating factors are sufficient to impose
death, unanimously find that the aggravating factors outweigh the

mitigating circumstances, and unanimously recommend a sentence of
death.

Harst v. State, 202 So. 3d at 57. We then concluded that Harst error is capable of
harmless error review. Id. We also explained that the standard to be used in
harmless-error analysis is whether there is a “reasonable possibility that the error
contributed to the sentence,” and stated that, in the context of Harst error, the
burden is on the State “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 [the] death sentence.” Id. at 68. ln Mosley, 209 So. 3d at 1283, we
held that Harst v. State applies retroactively to all defendants whose sentences of
death became final after the Supreme Court issued Ring v. Arizona, 536 U.S. 584

(2002).

_54_

Here, because Allen’s sentence was final in 2014, Allen v. Florida, 135 S.
Ct. 362 (2014) (denying certiorari), the Harst requirements are retroactive to her
sentence. The parties do not dispute that the Harst requirements were not met, but
disagree over whether the Harst v. State error was harmless.

ln King v. State, 211 So. 3d 866, 890 (Fla. 2017), we determined that a
jury’s unanimous recommendation of a death sentence in capital cases “begins 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.” We have also recognized that a unanimous recommendation
alone is insufficient to determine harmless error, and that we must also consider
other factors such as the jury instructions, the aggravators and mitigators, and the
facts of the case. See Reynolds v. State, 251 So. 3d 811, 816 (Fla. 2018); Kaczmar
v. State, 228 So. 3d 1, 9 (Fla. 2017); Davis v. State, 207 So. 3d 142, 174-75 (Fla.
2016). Here, the jury recommendation of death was unanimous. Although Allen’s
jury was instructed that it was “neither compelled or required to recommend
death,” and was informed that unanimous recommendations were not required, it
nevertheless unanimously recommended death. The jurors also heard standard jury
instructions informing them that they needed to determine whether sufficient
aggravators existed and whether any aggravation outweighed the mitigation before

recommending a sentence of death. The trial court instructed the jury, “Should you

_55_

find sufficient aggravating circumstances do exist to justify recommending the
imposition of the death penalty, it will then be your duty to determine whether the
mitigating circumstances outweigh the aggravating circumstances that you find to
exist.” Fla. Std. Jury lnstr. (Crim.) 7.11 (2014). Although the jurors were not
informed that the finding that sufficient aggravators existed and outweighed the
mitigation must be unanimous, the jury did return a unanimous verdict of death.
See id. (“lf, after weighing the aggravating and mitigating circumstances, you
determine that at least one aggravating circumstance is found to exist and that the
mitigating circumstances do not outweigh the aggravating circumstances, or, in the
absence of mitigating factors, that the aggravating factors alone are sufficient, you
may recommend that a sentence of death be imposed rather than a sentence of life
in prison without the possibility of parole.”). These instructions support the
conclusion that the jury unanimously made the requisite factual findings to impose
death before it recommended death unanimously. The Harst error in this case is
therefore harmless, as it is clear beyond a reasonable doubt that the jury’s failure to
find the facts necessary to impose the death penalty did not contribute to the death
sentence.

Allen’s jury also unanimously found her guilty of kidnapping, which the
trial court used to find the in the course of kidnapping aggravator. Allen, 137 So.

3d at 953, 955. Further, the trial court found that the murder was especially

_56_

heinous, atrocious, or cruel (HAC), by competent, substantial evidence. Id. at 955.
We have held that the HAC aggravator is among the most weighty and serious
aggravating factor in the sentencing scheme. See Knight v. State, 225 So. 3d 661,
683 (Fla. 2017). Moreover, as the trial court noted, the disturbing facts of this case
further support the conclusion that the Harst error is harmless. Wright was bound
and beaten, unable to leave Allen’s home. Allen, 137 So. 3d at 963-64. She was
strangled even as she screamed for mercy. Id. She died a terror-filled and painful
death. Id.

We therefore conclude that, beyond a reasonable doubt, a rational jury
would have unanimously found that sufficient aggravating factors outweighed the
mitigation.

Allen next contends that she is entitled to relief pursuant to the Supreme
Court’s analysis in Caldwell v. Mississippi, because her death sentence,
recommended by an allegedly improperly instructed jury, violates the Eighth
Amendment in light of Harst. She argues that the Harst decisions require that jury
verdicts be unanimous and not advisory, rendering the Standard Jury lnstruction
7.11 used in her trial violative of Caldwell because the improperly instructed jury
did not feel the weight of its sentencing responsibility_which contributed to the
jurors’ votes for death. As we recently held in Reynolds, this claim fails and does

not “provide an avenue for Harst relief.” 251 So. 3d at 828.

_57_

ln Caldwell, the Supreme Court held that the death sentence resulting from
the jury’s unanimous recommendation of death violated the Eighth Amendment’s
standard of reliability required in capital cases because the jury instructions
impermissibly diminished the jurors’ sense of responsibility for a death sentence
by “[leading them] to believe that the responsibility for determining the
appropriateness of the defendant’s death rest[ed] elsewhere.” Caldwell, 472 U.S.
at 328-29. ln Romano v. Oklahoma, 512 U.S. 1, 9 (1994), the Supreme Court held
that, to establish a Caldwell error, a defendant must show that the jury instructions
improperly described their jury’s role assigned by local law.

Allen cannot make that showing. We have held that because it did not
violate Caldwell to refer to the jury’s role as advisory prior to the Harst decisions,
“a Caldwell claim . . . cannot [now] be used to retroactively invalidate the jury
instructions that were proper at the time under Florida law.” Reynolds, 251 So. 3d
at 825. At the time of Allen’s trial, the jury instructions correctly advised the jury,
stated the law applicable at the time, and did not diminish the jury’s role. Because
Allen’s jury was properly instructed based on the existing law, the jury instructions
given at her trial do not cause her death sentence to violate the Eighth Amendment.

We therefore affirm the postconviction court’s denial of Allen’s Harst claim.

_53_

CONCLUSION

For the reasons stated above, we affirm the circuit court’s denial of Allen’s
rule 3.851 motion for postconviction relief.

lt is so ordered.
LEWIS, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., and POLSTON, J., concur in result.
PARIENTE, J., dissents with an opinion.
QUlNCE, J., dissents.
ANY MOTION FOR REHEARING OR CLARlFlCATlON MUST BE FlLED
ON OR BEFORE DECEMBER 27 , 2018. A RESPONSE TO THE MOTlON
FOR REHEARING/CLARIFICATION MAY BE FlLED ON OR BEFORE
JANUARY 2, 2019. NOT FlNAL UNTlL THlS TlME PERlOD EXPlRES TO
FlLE A REHEARING/CLARIFICATION MOTlON AND, lF FlLED,
DETERMINED.
PARIENTE, J., dissenting.

lt is undisputed that this is a terrible crime. But, without a full picture of
Allen’s upbringing and background, the jury could never have understood the full
extent of the mitigation in her case, which could have caused at least one juror to
recommend life. Because Allen’s attomey’s failure to properly investigate and
present mitigation evidence_specifically the testimony of Allen’s aunt, Barbara
Capers, who could have given first-hand accounts of the abuse Allen suffered_
constitutes deficient performance and the absence of important mitigation

undermines confidence in the jury’s unanimous recommendation for death, l

dissent.

_59_

Capers, who was available and willing to testify, would have presented a
considerably more complete and detailed picture of Allen’s horrific childhood and
early adult life, including first-hand accounts and graphic details of the physical
and sexual abuse Allen suffered at the hands of her family members and former
boyfriends. The testimony would not have been cumulative to the testimony
presented at trial. Rather, it would have been compelling based on Caper’s first-
hand knowledge of the events of Allen’s life. However, Allen’s attorney never so
much as even contacted Capers, even though Capers was at all times available to
testify. Thus, because Allen has established ineffective assistance of counsel, l
conclude that Allen’s sentence of death should be vacated, and this case should be
remanded for a new penalty phase.

BACKGROUND

Approximately two and a half years before trial, Allen’s case was reassigned
from the public defender’s office to defense counsel. Upon taking Allen’s case,
counsel failed to conduct an independent investigation into mitigation. Trial
counsel only spoke with two mitigation witnesses before the trial_(l) Allen’s
aunt, Myrtle Hudson, and (2) Allen’s sister, whose name he did not remember. He
did not enlist the help of an investigator or mitigation specialist. At the

postconviction evidentiary hearing, counsel testified that he thought the “witnesses

_60_

were all lined up” before he took the case and it was just a matter of “putting [the
mitigation] on.”

Had she been asked to testify, Allen’s aunt, Barbara Capers, could have
added the following testimony: that she personally witnessed Allen’s mother
physically abusing Allen by beating her with her hands and fists almost every day;
Allen’s mother would also beat Allen with belts, whip her with sticks, and slap her
in the face; when Allen was twelve, her mother beat her so badly that Capers called
the police; Allen’s grandfather also physically abused Allen, he would line up the
boys and girls naked, including Allen, and go down the row beating them with oak
switches; Allen also witnessed her grandfather being abusive to her mother; in her
twenties, Allen was beat up by her boyfriend, Bill Skane, and was unrecognizable
when Capers visited her in the hospital; Capers witnessed Allen’s paramour abuse
her many times while she was pregnant, including one time he and another boy
kicked and punched Allen in the stomach; when Allen was a young girl, her
mother went to jail and Allen stayed with her grandfather, and Allen told Capers
that she wanted to stay with her instead because he was sexually molesting her;
Allen’s uncle Roy also sexually molested her when he visited the grandfather
every other weekend; Capers saw Roy touch and grab Allen in private places like

her breasts and kiss her on the mouth; Allen told Capers that her brother and

_61_

another man sexually molested her; Allen had a stroke as a teenager that affected
her speech and her memory; and Allen demonstrated signs of severe anxiety.
ANALYSIS

As the majority explains, to be entitled to relief on her claim of ineffective
assistance of counsel, Allen must satisfy both prongs of the Strickland v.
Washington, 466 U.S. 668 (1984), analysis_(l) that counsel was deficient and (2)
as a result of counsel’s deficiency, confidence in the outcome of the trial is
undermined.

l. Deficiency

Although Capers’ testimony would have involved the same subject as
evidence presented at trial, it is not merely cumulative_as the majority and
postconviction court suggest. lt is impossible to conclude that Capers’ testimony
would have been similar in breadth and detail to Hudson’s. Rather, Capers’
testimony was more detailed and included many personal, eyewitness accounts to
the abuse Allen suffered. Certainly, hearing first-hand accounts of the abuse
suffered by Allen would be far more impactful on the jury than Hudson’s vague
recollection of Allen’s childhood.

Further, Allen’s childhood and history of abuse were the most significant
mitigation the defense presented during the penalty phase. See per curiam op. at 5-

6, note 2. While Hudson’s testimony was a critical component of the mitigation

_62_

presented because it could help the jury understand why Allen committed this
heinous crime, Capers’ testimony would have undoubtedly painted an even clearer
picture for the jury of this mitigation, as explained above.

Thus, trial counsel’s investigation was wholly insufficient and “fell short of
the standards for capital defense work articulated by the American Bar Association
(ABA)_standards to which [the United States Supreme Court] long have referred

935

as ‘ guides to determining what is reasonable, which provide that efforts must be
made to discover all reasonably available mitigation and evidence to rebut
aggravators. Wiggins v. Smith, 539 U.S. 510, 524 (2003); see Am. Bar Ass’n,
Guidelinesfor the Appointment and Performance OfDefense Counsel in Death
Penalty Cases ]O.] ] (rev. ed. 2003). Accordingly, l would conclude that Allen has
satisfied the first prong of the Strickland analysis.

2. Prejudice

The postconviction court concluded that Allen failed to establish prejudice

because, with the “significant aggravators found and the comparatively weak
mitigation found, it is unlikely that the additional mitigation presented would have
been sufficient to outweigh the established aggravation.” Postconviction Ct. Order
at 76. Further, the majority asserts that Allen “overemphasizes the value of

evidentiary hearing testimony presented by Allen’s family members,” specifically

that the “testimony presented regarding Allen’s background was cumulative to the

_63_

mitigation already presented at trial.” Per curiam op. at 21-22. The majority
concludes that Allen could not have suffered prejudice because of the mitigation
already presented in this case and the strong aggravation that was presented, which
they argue is evidenced by the unanimous jury verdict. Id.

However, the majority fails to take into consideration the effect of Harst5 on
the analysis. As this Court explained in Bevel v. State, 221 So. 3d 1168 (Fla.
2017), the question of prejudice was significantly altered by this Court’s opinion in
Harst:

Thus, this Court unquestionably focuses on the effect the
unpresented mitigation could have had on the jury’s ultimate
recommendation. For instance, in Harst v. State, 18 So. 3d 975 (Fla.
2009), in addressing whether there was deficient performance and
prejudice, we reasoned that “[b]ecause this mitigation was not made
available for the jury or the trial judge to consider before the death
sentence was imposed, our confidence in the imposition of the death
penalty in this case is undermined.” Id. at 1015. After our more
recent decision in Harst, where we determined that a reliable penalty
phase proceeding requires that “the penalty phase jury must be
unanimous in making the critical findings and recommendation that
are necessary before a sentence of death may be considered by the
judge or imposed,” 202 So. 3d at 59, we must consider whether the
unpresented mitigation evidence would have swayed one juror to
make “a critical difference.” Phillips [v. State], 608 So. 2d [778,] 783
[(Fla. 1992)].

5. Hurst v. State (Harst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016). Hurst applies
retroactively to Allen’s sentence of death, which did not become final until 2014.
Allen v. State, 137 So. 3d 946 (Fla. 2013), cert. denied, 135 S. Ct. 362 (2014).

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221 So. 3d at 1182.

Hudson testified at the postconviction evidentiary hearing that she told
counsel about Capers and her willingness to testify in Allen’s case. Further,
Capers testified at the postconviction evidentiary hearing that she was contacted by
an attomey_not Allen’s trial counsel_before trial, was available to speak with an
expert, and wanted to testify, but was not asked to do so. Rather than looking into
Capers’ testimony, trial counsel relied solely on Hudson’s testimony for
information regarding Allen’s childhood and adult life. ln fact, Capers wanted to
help Allen but was never told that her testimony could help; she was even present
in the courtroom for the duration of the trial.

Clearly, as explained above, Capers’ testimony would have better illustrated
for the jury the trauma in Allen’s childhood, development, and surroundings as an
adult. lndeed, counsel conceded that it would have been beneficial to find
witnesses to substantiate Allen’s violent family life. See Walker v. State, 88 So. 3d
128, 140 (Fla. 2012). Further, the additional “insight into [Allen’s] childhood and
young adulthood” that Capers could have provided would have “serv[ed] to
humanize [her] to the jury” and could have persuaded jurors to be more
sympathetic and merciful. Id. at 140-41. Thus, l conclude that prejudice has been
established because our confidence in the unanimous jury verdict should be

undermined.

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CONCLUSION

lt is clear that Capers’ testimony would have provided the jury with a more
complete and accurate picture of the powerful mitigation in Allen’s case.
However, because of the failure of Allen’s attorney to investigate and present this
mitigation evidence, the jury only received a partial understanding of the abuse
Allen suffered as a child and into her adult life. This half-truth undoubtedly
undermines our confidence in Allen’s sentence of death. Thus, l would vacate
Allen’s sentence of death and remand for a new penalty phase.

Accordingly, l dissent.

An Appeal from the Circuit Court in and for Brevard County,
David Dugan, Judge - Case No. 052005CF048260AXXXXX

Maria DeLiberato, Capital Collateral Regional Counsel, Raheela Ahmed, Maria
Christine Perinetti, and Lisa Marie Bort, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,

for Appellee

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