Terry Smith v. State of Florida & Terry Smith v. Mark S. Inch, etc.

Supreme Court of Florida
____________

No. SC18-1763
____________

TERRY SMITH,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC19-680
____________

TERRY SMITH,
Petitioner,

vs.

MARK S. INCH, etc.,
Respondent.

October 21, 2021

PER CURIAM.

Terry Smith appeals the denial of numerous guilt-phase

claims raised in his initial motion for postconviction relief filed

under Florida Rule of Criminal Procedure 3.851 and petitions this
Court for a writ of habeas corpus. We have jurisdiction. See art. V,

§ 3(b)(1), (9), Fla. Const. For the reasons expressed below, we

affirm the denial of postconviction relief as to the guilt phase and

deny Smith’s habeas petition.

I. BACKGROUND

Terry Smith was convicted of the first-degree murders of

Desmond Robinson, Berthum Gibson, and Keenethia Keenan. He

was sentenced to death for the murders of Gibson and Keenan and

to life for the murder of Robinson. Smith v. State, 139 So. 3d 839,

841 (Fla. 2014). On direct appeal, this Court set forth the facts of

the murders as follows:

While looking for narcotics on June 5, 2007, Terry
Smith, then age nineteen, called an acquaintance, Breon
Williams. Williams, a street level drug dealer, informed
Smith that he was going to purchase some drugs and
invited Smith to join him. Smith took Williams up on his
offer. In the late evening of June 5, Williams picked
Smith up from the home of Smith’s mother. From there
they rode on Williams’ motorized scooter to a house in
Jacksonville, Florida, where Desmond Robinson and
Berthum Gibson sold drugs.
Williams had previously purchased drugs from
Desmond Robinson at that location. On previous
occasions, Williams had entered through the back door of
the home, which was locked and contained a sheet of
Plexiglas on its interior. When Williams and Smith
arrived at the house, they pulled into the driveway,
parked Williams’ scooter, and walked up to the back

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door. Williams knocked on the door, and Robinson let
them in.
After Williams and Smith entered the kitchen,
Robinson locked the door and left the key in it. When
they entered, Gibson and Keenethia Keenan were sitting
at a table in the kitchen and dining room area of the
home. Williams walked to the kitchen counter, which
was located near the door, and began to count his money
to determine how much cocaine he could purchase.
While Williams was counting his money, he heard Smith
say “[g]ive it up,” followed by gunshots. Williams turned
to run out of the residence, which required turning the
key that was already in the door to unlock it. Before
exiting, Williams saw Smith shoot Robinson multiple
times. Williams was in such a hurry to leave the house
that he left approximately $400 on the kitchen counter
and his scooter in the driveway.
The State then presented circumstantial evidence
that instead of escaping out the back door after killing
Robinson, Smith stepped over Robinson’s body and
proceeded into the hallway, where he shot in the
direction of Gibson and Keenan. Gibson and Keenan
each died from a single gunshot wound that was
attributed to Smith’s ten millimeter handgun. Keenan’s
body was found unarmed in the back of the southeast
bedroom, where she died within seconds of the gunshot
piercing her heart. When police arrived, they found
Gibson, who was still alive despite a gunshot wound to
his abdomen. He was leaning against the bed in the
same bedroom with a rifle in his hands. Paramedics
transported Gibson to the hospital, where he died due to
internal injuries from the gunshot wound. Police found
shell casings from the gun used by Smith in the kitchen
and dining room area as well as in the living room area of
the home. They also found shell casings from the rifle
used by Gibson in the southeast bedroom and the
hallway leading up to the bedroom.
After shooting Gibson and Keenan, Smith ran out
the back door of the house, touching the Plexiglas portion

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 of the door on his way out. When police arrived, they
found Williams’ money on the kitchen counter and drugs
on the dining room table. After exiting the crime scene,
Smith called Ullysses Johnson to pick him up from the
area. At the time, Johnson was at home playing video
games with his brother Raylan Johnson and Jonathan
Peterson. The three then picked Smith up near the crime
scene. In the car, Smith told them that he had shot
three people.
After arriving at the Johnsons’ home, Ullysses
Johnson and Peterson went inside, while Smith and
Raylan Johnson remained outside. Smith gave his gun
to Raylan Johnson, who buried it in the yard and then
sold it a few days later to Walter Dumas. They also
burned Smith’s clothes in a bin that was in the yard.
The jury found Smith guilty of first-degree murder
for the deaths of Robinson, Gibson, and Keenan.

Smith, 139 So. 3d at 841-42 (alteration in original). We affirmed the

convictions and sentences in 2014. Id. at 841.

II. POSTCONVICTION APPEAL

Smith filed a motion for postconviction relief under Florida

Rule of Criminal Procedure 3.851 and several amendments thereto,

ultimately raising sixteen claims. After holding a case management

conference, the trial court granted an evidentiary hearing on nine

claims. Subsequent to the evidentiary hearing, the trial court

entered an order denying in part Smith’s motion for postconviction

relief and granting in limited part Smith’s motion for postconviction

relief as to a new penalty phase under Hurst v. State, 202 So. 3d 40

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(Fla. 2016), receded from in part by State v. Poole, 297 So. 3d 487

(Fla. 2020). 1 This appeal follows.2

A. Ineffective assistance of counsel during the guilt phase

Smith first raises a claim of ineffective assistance of counsel

during the guilt phase. Under Strickland v. Washington, 466 U.S.

668, 686-88 (1984), a defendant alleging that he received ineffective

assistance of counsel has the burden to demonstrate that counsel’s

performance fell below an objective standard of reasonableness. In

order to prevail on a claim of ineffective assistance of counsel, a

defendant must show both that trial counsel’s performance was

deficient and that the deficient performance prejudiced the

defendant. Strickland, 466 U.S. at 687. “Both prongs of the

Strickland test present mixed questions of law and fact.” Johnson v.

State, 135 So. 3d 1002, 1013 (Fla. 2014). “In reviewing a trial

1. Although we have since receded from Hurst, we do not
disturb the trial court’s order granting a new penalty phase. See
State v. Jackson, 306 So. 3d 936, 945 (Fla. 2020).

2. At the outset, the State questions whether this Court has
jurisdiction of this case given the postconviction court’s order
granting a new penalty phase pursuant to Hurst. We have
previously rejected this argument. See Merck v. State, 260 So. 3d
184, 188 n.1 (Fla. 2018) (“[T]he pending resentencing [under Hurst]
does not affect our exclusive jurisdiction over this appeal.”).

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court’s ruling after an evidentiary hearing on an ineffective

assistance of counsel claim, this Court defers to the factual findings

of the trial court to the extent that they are supported by

competent, substantial evidence, but reviews de novo the

application of the law to those facts.” Id. (quoting Mungin v. State,

932 So. 2d 986, 998 (Fla. 2006)).

As to the first prong, the defendant must establish “that

counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. A court reviewing the second prong

must determine whether “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.”

Id. “[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.” Id. at 697.

Contained within Smith’s claim of ineffective assistance of

counsel are numerous subclaims. We now address each subclaim

in turn.

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 1. Introduction of evidence of lack of remorse

Smith first claims that counsel was ineffective for introducing

into evidence an additional portion of Smith’s taped interrogation in

which detectives repeatedly accused Smith of having no remorse for

the murders.3

On April 1, 2009, Detectives Nelson and Chizik of the

Jacksonville Sheriff’s Office conducted a video-recorded

interrogation of Smith regarding the murders of Robinson, Gibson,

and Keenan, which occurred at Robinson’s house on Ahmad Drive.

At trial, the State introduced portions of the recording, in which

Smith repeatedly denied being involved in the murders or ever

having been inside the Ahmad Drive house. On cross-examination,

defense counsel played an additional portion of the video recording,

in which Detective Nelson continued to ask Smith questions even

after Smith had repeatedly requested to stop the interrogation.

3. Smith also asserts that the additional portion of the video
contained the detectives’ opinions of Smith’s guilt, but this
argument was not raised in his motion for postconviction relief or
the amendments thereto, and it cannot be raised for the first time
on appeal. Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982).

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During the portion of the video recording played by defense counsel,

the detectives made multiple references to Smith’s lack of remorse.

At the evidentiary hearing, lead trial counsel, Richard Kuritz,

testified that he introduced the additional portion of the video in

order to portray the detectives as dishonest and unethical and show

that they were “running all over” Smith’s constitutional rights.

Counsel said that he wanted to show the jury that the lead detective

was not as charming and nice as he seemed during direct

examination and that he thought that the conduct of the detectives

on the video was more damning to the State’s case than anything

else. Counsel used the interrogation practices displayed on the

video to argue in closing that the detectives also disregarded the

rights of and used heavy-handed interrogation techniques on the

witnesses against Smith in this case—Breon Williams, Ullysses

Johnson, and Jonathan Peterson—in order to get them to implicate

Smith. The trial court concluded that trial counsel’s decision to

introduce the additional portion of the video was a sound, strategic

decision, intended to provide a concrete example of the lead

detective’s aggressive interrogation tactics.

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 The trial court’s conclusion that counsel’s decision to

introduce the additional portion of the video despite references to

lack of remorse was a sound strategy is supported by competent,

substantial evidence. Smith makes no argument regarding

prejudice except to say that evidence of lack of remorse “has been

found consistently by Florida courts to be highly prejudicial.”

Appellant’s Initial Br. at 67. But Smith does not make clear how

the detectives’ statements about lack of remorse prejudiced him in

the guilt phase, where his defense was that he did not commit the

murders and was not present when they occurred. Because

counsel did not perform deficiently, and Smith has not established

that he was prejudiced by the introduction of the additional portion

of the video, Smith is not entitled to relief on this claim.

2. Stipulation to booking photos and statements written
on them

Smith next argues that trial counsel was ineffective for

stipulating to the admission of what appear to be three different

booking photographs of Smith, on each of which a statement was

written by one of the witnesses, which Smith contends is

inadmissible hearsay. The three photographs at issue are State’s

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exhibit 12, admitted at trial through Breon Williams; State’s exhibit

85, admitted through Ullysses Johnson; and State’s exhibit 86,

admitted through Jonathan Peterson.

At the evidentiary hearing, when asked why he stipulated to

the admission of the photographs, counsel said that he typically

confers with the State to review exhibits and “try to stipulate to

whatever is going to come into evidence anyway and not to be

obstructionist and not to waste time” if such matters are admissible

or if the witness would otherwise testify to such matters. Each

exhibit will be addressed in turn.

a. State’s exhibit 12

State’s exhibit 12 is a photo of Smith wearing a shirt with the

words “Inmate” and “Department of Corrections” on it. The photo

was part of a six-photograph identification photospread that law

enforcement used to confirm that the shooter Breon Williams knew

as “Terry” was, in fact, Terry Smith. During his interview with

police, Williams identified Smith as the “Terry” he saw shooting at

the Ahmad Drive house by writing on the booking photograph,

“Terry I saw him shoot Desmond. It happened in the kitchen of

Ahmad Drive.” The trial court limited its analysis of this claim to

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the prejudice prong and concluded that Smith was not prejudiced

by the admission of Williams’ written statement on the photograph

or the fact that State’s exhibit 12 was a booking photo.

The trial court did not err in reaching these conclusions. By

the time the photo was admitted into evidence, the complained-of

hearsay on the photo—that Williams witnessed Smith shoot

Desmond Robinson—had already been properly testified to by

Williams. See Ventura v. State, 794 So. 2d 553, 568 (Fla. 2001)

(finding no merit to a claim of ineffective assistance where the

complained-of hearsay contained testimony that was properly

admitted through other channels (citing United States v. Brooks, 82

F.3d 50, 53 (2nd Cir.1996) (holding that defendant established no

prejudice from counsel’s failure to object to hearsay testimony

where the hearsay contained facts that were already testified to in

admissible form))). Further, there is no reasonable probability that

Smith would have been acquitted had the photo been cropped to

show just Smith’s face.

b. State’s exhibit 85

State’s exhibit 85 is closely cropped, but appears to also be a

booking photograph of Smith, because he is wearing clothing

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similar to the clothing in State’s exhibit 12, although no writing can

be seen on the clothing in State’s exhibit 85. On the photo,

Ullysses Johnson wrote: “He said he had shot three people, two

dudes and a girl.” The trial court also limited its analysis regarding

State’s exhibit 85 to the prejudice prong, concluding that exclusion

of the written statement would not have created a reasonable

probability that the jury would have acquitted Smith. The trial

court also concluded that Smith was not prejudiced by the fact that

State’s exhibit 85 was a booking photograph, because the photo is

closely cropped, with no writing or insignia visible, and the State

did not refer to the photo as being a “mug shot” or otherwise

suggest that Smith had a criminal background.

The trial court did not err in reaching these conclusions. By

the time State’s exhibit 85 was admitted into evidence, Ullysses

Johnson had already testified that Smith admitted to shooting three

people at the Ahmad Drive house. Further, the State only used the

booking photograph to ask Ullysses Johnson if he could identify the

face in the photo as the person who got in his car and said he shot

three people in June of 2007. There is no reasonable probability

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that the jury would have acquitted Smith if State’s exhibit 85 had

not been admitted.

c. State’s exhibit 86

State’s exhibit 86 is very closely cropped to Smith’s face and

the clothing he is wearing is not clearly discernible. On the photo,

Jonathan Peterson wrote:

Terry got in the car after we went and picked him
up. He said he had touched the door and that he left
something on the table, to go back. He had a gun on him
when he got in the car, also. When we got back to the
house, he changed clothes and told the third man to get
rid of the gun. About 30 minutes later he left. A week
later he told me that he shot Bert[4] and Desmond. He
said that Desmond opened the door and he shot him in
the kitchen. Then he said he shot Bert in the living
room. He said somebody came through the hallway
shooting back at him in the house. He said he then left
the house.

The trial court concluded that Peterson’s written statement was

admissible as a prior consistent statement, because trial counsel

extensively attacked Peterson’s credibility by suggesting that his

testimony was motivated by his desire to comply with a favorable

plea agreement he entered, which was contingent upon him

4. “Bert” was a nickname for Berthum Gibson.

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testifying truthfully against Smith, and trial counsel therefore did

not perform deficiently by stipulating to its admission.

We find no error in the trial court’s conclusion. Peterson’s

written statement would not have been admissible on direct

examination had defense counsel objected. See Demps v. State, 462

So. 2d 1074, 1075 (Fla. 1984) (“The general rule regarding prior

consistent statements, or bolstering testimony, is that such

evidence is inadmissible absent impeachment based on an attempt

to show a recent fabrication or other reason for the witness’s lack of

credibility.”). But the statement would have ultimately been

admitted once trial counsel attacked Peterson’s credibility based on

improper motive. Counsel testified at the evidentiary hearing that

he chose to attack Peterson’s credibility with the plea agreement

even though he knew the result would be that Peterson’s prior

consistent statement would be admissible on redirect to rebut the

charge of improper motive. Counsel considered the alternative

course of action of objecting to the prior consistent statement but

ultimately decided that it was most beneficial to Smith to be able to

attack Peterson with his plea agreement even though it would make

the prior consistent statement admissible. Thus, because counsel

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knew the statement would ultimately be admitted, it was a

reasonable strategic decision not to object to its admission, and

counsel’s performance was not deficient. See Occhicone v. State,

768 So. 2d 1037, 1048 (Fla. 2000) (“[S]trategic decisions do not

constitute ineffective assistance of counsel if alternative courses

have been considered and rejected and counsel’s decision was

reasonable under the norms of professional conduct.”).

Further, Smith was not prejudiced by Peterson’s written

statement. By the time State’s exhibit 86 was introduced into

evidence, Peterson had already testified that Smith admitted on two

separate occasions to shooting the three victims on Ahmad Drive.

Even if the written statement had been excluded, the jury still

would have learned from Peterson and others that Smith confessed

on multiple occasions, as well as heard from an eyewitness that

Smith shot Robinson, learned that Smith’s palm print was on the

back door of the Ahmad Drive house although he had denied ever

having been there, and learned that Smith carried a ten-millimeter

handgun, which he had on his person the night of the murders.

Thus, there is no reasonable probability that Smith would have

been acquitted had Peterson’s written statement been excluded.

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 Counsel also did not perform deficiently, and Smith was not

prejudiced by the fact that State’s exhibit 86 was a booking photo.

The State did not refer to the photograph as a booking photo, and it

is so closely cropped that the jury would not have been able to

identify it as a booking photo. Thus, any objection to the photo on

the basis that it was a booking photo would have been overruled.

Counsel did not render deficient performance by failing to make a

meritless objection.

d. Ray Dukes’ testimony regarding Breon Williams’
statements

At trial, Ray Dukes, the father of Breon Williams, testified that

a few days after the murders, Williams told him that he and Smith

went to the Ahmad Drive house to purchase narcotics, and while

Williams was counting his money, he heard Smith say “give it up.”

Williams then heard gunshots and ran out the back door. The trial

court concluded that trial counsel did not render deficient

performance by failing to object to this testimony because Williams’

statement was a prior consistent statement that “was admissible to

rebut the inference that Breon Williams’ testimony was a product of

the improper and coercive influence of the detectives,” and trial

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counsel’s decision not to object to this testimony was a sound

strategic decision.

The trial court was correct that Williams’ statements to Dukes

were admissible as prior consistent statements. “A statement is not

hearsay if the declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement and the

statement is . . . [c]onsistent with the declarant’s testimony and is

offered to rebut an express or implied charge against the declarant

of improper influence, motive, or recent fabrication.” § 90.801(2)(b),

Fla. Stat. (2010). Thus, trial counsel did not render deficient

performance by failing to make a meritless objection. Further,

counsel’s strategic decision to attack Williams’ implication of Smith

as a recent fabrication was sound. Although it led to Williams’

statements to Dukes becoming admissible nonhearsay, counsel was

able to argue in closing the common sense inference that Dukes’

testimony may have been motivated by an interest in keeping his

son out of prison.

There was also no prejudice to Smith by the admission of

Dukes’ testimony because Williams had already testified that in the

days following the murders, he told his father what happened at the

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Ahmad Drive house. Thus, there is no reasonable probability that

the jury would have acquitted Smith had this testimony been

excluded.

3. Failure to investigate and challenge forensic evidence

Smith argues that counsel was ineffective for failing to

challenge the State’s theory that Smith shot all three victims with a

ten-millimeter Glock, first shooting Robinson in the front of the

house near the kitchen. Smith asserts that counsel should have

hired an expert to advance the theory that Keenan was shot by

Gibson’s AK-47, not Smith’s ten-millimeter. At trial, the medical

examiner, Dr. Giles, testified that Keenan’s gunshot wound was

consistent with a medium to large caliber weapon. Based on the

exterior of the wound and the damage inside her body, he did not

believe that her injury was caused by a high velocity rifle or an AK-

47.

At the evidentiary hearing, Smith presented testimony from

Christopher Robinson, an expert in issues related to crime scene

reconstruction, blood spatter evidence, and firearms. Robinson

testified that it was his opinion that Keenan was shot by Gibson’s

AK-47, but he also testified that it is possible that Keenan was shot

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by the ten-millimeter. Robinson further testified that the confession

Smith gave to trial counsel that he shot the three victims is

“absolutely” consistent with the evidence in this case.

Smith also presented testimony at the evidentiary hearing

from Dr. Kathryn Pinneri, a forensic pathologist, who testified as an

expert in the field of forensic pathology and gunshot wounds. Dr.

Pinneri did not disagree with Dr. Giles’ opinion at trial that the

injuries to Gibson and Keenan were consistent with a medium to

large-caliber handgun. Dr. Pinneri testified that it was possible that

Keenan was shot with an AK-47 or a ten-millimeter and that the

jury had to look at the totality of the evidence to conclude which

gun shot Keenan. The trial court concluded that counsel was not

ineffective for failing to retain forensic experts.

We agree that trial counsel did not render deficient

performance by failing to hire forensic experts. Trial counsel

testified at the evidentiary hearing that Smith confessed to him that

he killed the three victims with a ten-millimeter handgun, which

aligned with the State’s theory.

We have explained that “[a] decision that lodging a particular

challenge to the validity of evidence would be a waste of resources

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in light of counsel’s knowledge of corroborating facts [including the

defendant’s confession] can be a reasonable strategic decision.”

Patrick v. State, 246 So. 3d 253, 262 (Fla. 2018) (citing Darling v.

State, 966 So. 2d 366, 382 (Fla. 2007)). Counsel cannot be faulted

for failing to investigate a theory that he had no reason to suspect

would be valid and supported by the evidence. See Rompilla v.

Beard, 545 U.S. 374, 383 (2005) (“[T]he duty to investigate does not

force defense lawyers to scour the globe on the off chance

something will turn up; reasonably diligent counsel may draw a line

when they have good reason to think further investigation would be

a waste.”). Thus, given Smith’s confession to trial counsel that he

shot all three victims with a ten-millimeter handgun, “it was

reasonable trial strategy for counsel not to challenge forensic

evidence that was consistent with this position.” Darling, 966 So.

2d at 382. Counsel’s decision not to hire experts to challenge the

State’s theory that Smith shot Keenan was reasonable under the

circumstances and does not amount to deficient performance.

Further, Smith was not prejudiced by counsel’s failure to call

these experts at trial. As demonstrated by the experts at the

evidentiary hearing, any evidence that counsel could have

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presented at trial to “challenge” the State’s theory that Smith shot

Keenan would have been equivocal at best and would not have

created a reasonable probability that the outcome of the trial would

have been different. Moreover, the evidence presented at trial that

all three victims were shot by a medium to large-caliber handgun

was not inconsistent with the defense theory that Smith did not

shoot any of the victims.

4. Failure to impeach critical witnesses

Smith next contends that trial counsel was ineffective for

failing to impeach State witnesses Breon Williams, Ray Dukes, Kirk

Brewer, and Jonathan Peterson. Each witness will be addressed in

turn.

a. Breon Williams

First, Smith claims that trial counsel was ineffective for failing

to effectively develop Williams’ self-interest—avoiding charges of

murder and giving false information to a law enforcement officer

concerning the commission of a capital felony—in supporting the

State’s theory of the case and to impeach him with his inconsistent

statements.

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 We agree with the trial court that this claim is conclusively

refuted by the record. At trial, counsel repeatedly highlighted the

fact that Williams initially lied to detectives, claiming that he lacked

any knowledge of the murders. Counsel also pointed out that the

police threatened to charge him for his involvement but that

Williams was never arrested for anything having to do with the

events surrounding the murders. “[C]ounsel cannot be held

ineffective for what counsel actually did.” Bates v. State, 3 So. 3d

1091, 1106 n.20 (Fla. 2009).

b. Ray Dukes

Smith contends that counsel performed deficiently for failing

to impeach Ray Dukes with a prior felony conviction.

Counsel testified at the evidentiary hearing that he made a

strategic decision not to impeach Dukes because Dukes was merely

the father of a key witness, Breon Williams, and Dukes’ testimony

did not damage Smith’s case, because the jury had already heard

the same evidence from Williams. The trial court concluded that

counsel’s reasonable strategic decision not to impeach Dukes did

not constitute deficient performance. Because Smith has failed to

demonstrate that counsel’s actions were outside the wide range of

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reasonable professional assistance tolerated by Strickland, we find

no error in the trial court’s conclusion.

Smith was also not prejudiced by counsel’s decision not to

impeach Dukes with his prior felony conviction. The jury had

already heard the same substance of Dukes’ testimony from Breon

Williams, which was corroborated by the testimony of Ullysses

Johnson, Jonathan Peterson, and Smith’s palm print on the door at

the Ahmad Drive house. Thus, there is no reasonable probability

that Smith would have been acquitted if Dukes had been

impeached with his prior felony conviction.

c. Kirk Brewer

Smith contends that counsel was deficient for failing to

impeach Kirk Brewer with a prior felony conviction. Brewer testified

at trial that on the night of the murders, Breon Williams asked him

to retrieve Williams’ scooter from Robinson’s house, which Brewer

did. At the evidentiary hearing, counsel stated that there was no

reason to impeach Brewer with his prior conviction because he did

not give any incriminating information against Smith and did not

know that Smith had been at Robinson’s house that night. The

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trial court concluded that counsel’s decision not to impeach Brewer

was a reasonable strategic decision.

The trial court’s decision is supported by competent,

substantial evidence. Further, counsel did call Brewer’s credibility

into question with the fact that he lied to law enforcement the first

two times he spoke with them about the events surrounding the

murders and that it was not until after the police had already told

Brewer that they knew he had retrieved the scooter for Williams and

after Brewer asked what he had to tell the police in order to end the

interview and be permitted to go home that he finally told police

that he retrieved the scooter for Williams. Counsel even pointed out

that Williams made Detective Nelson put in writing that Brewer

could go home if Brewer said what Detective Nelson wanted him to

say. Counsel did not perform deficiently in declining to impeach

Brewer with his prior felony conviction, and there is no reasonable

probability that Smith would have been acquitted had counsel done

so.

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 d. Jonathan Peterson

Smith contends that counsel was deficient for failing to

impeach Jonathan Peterson based on his four felony convictions

and the testimony of Anthony Vaughn.

As the trial court correctly acknowledged:

On direct examination, the State pointed out Jonathan
Peterson pleaded guilty to two counts of manslaughter
and one count of possession of a firearm by a convicted
felon, was residing in county jail awaiting sentencing,
and had a plea deal with the State in return for testimony
against Defendant and others. The possession of a
firearm by a convicted felon charge would lead a
reasonable jury to conclude Jonathan Peterson had
previously been convicted of at least one other felony.

(Citation omitted.)

Further, on cross-examination, trial counsel went over

Peterson’s plea deal, pointing out that his second-degree murder

charge had been reduced to two counts of manslaughter to which

he pleaded guilty. And in closing, trial counsel argued that

Peterson’s felony convictions and plea deal undermined his

credibility. Thus, there was no deficiency. See Ferrell v. State, 29

So. 3d 959, 972 (Fla. 2010) (finding no deficiency where the State

brought out the witness’s prior convictions, pending charges, and

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plea deal on direct examination, and defense counsel discussed the

prior convictions on cross-examination and in closing).

Smith also contends that trial counsel was ineffective for

failing to call Anthony Vaughn at trial to impeach Jonathan

Peterson. At the evidentiary hearing, Vaughn testified that while

he, Peterson, and Raylan Johnson were housed in the Duval

County Jail, Raylan Johnson asked Vaughn to help him

communicate with Jonathan Peterson via sign language regarding

blaming the murders on Smith. Subsequently, Vaughn met Smith

in a different part of the jail and told him about the conspiracy to

blame the murders on him. At the time, Smith and Vaughn were

represented by the same trial counsel. Vaughn told the investigator

on Smith’s case what he knew about Raylan Johnson and Jonathan

Peterson’s plan to blame Smith for the murders. By the time of

Smith’s trial, Vaughn had been transferred to prison, but he was

transported back to Duval County for the purpose of testifying for

the defense at Smith’s trial, although he ultimately did not do so.

At trial, counsel explained that after he, co-counsel, and Smith

discussed the pros and cons of Vaughn’s testimony, it was decided

that he would not testify. The State, who had deposed Vaughn, put

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on the record at trial that Vaughn would have testified to

communications between Raylan Johnson and Jonathan Peterson

at the time they were all housed in the county jail. The State also

put on the record that it would call a records custodian from the jail

as a rebuttal witness to refute Vaughn’s timeline of when the

communications regarding the alleged conspiracy occurred. The

trial court then conducted a colloquy with Smith, during which

Smith testified that he agreed with the decision that Vaughn would

not testify and that he had had sufficient time to confer with

counsel regarding that decision.

At the evidentiary hearing, trial counsel explained that the

decision not to call Vaughn was based on concerns about Vaughn’s

credibility and associating Smith with Vaughn, who is a convicted

murderer. The trial court concluded that counsel was not deficient

for declining to call Vaughn because from the colloquy conducted

during trial, it was clear that Smith “voluntarily and knowingly

chose not to call Anthony Vaughn as a defense witness to impeach

the credibility of Jonathan Peterson. . . . [T]he record conclusively

refutes Defendant’s desire to call Anthony Vaughn.”

- 27 -
 We have held that there is no merit to a claim of ineffective

assistance of counsel if the defendant consents to counsel’s

strategy. Gamble v. State, 877 So. 2d 706, 714 (Fla. 2004). Thus,

because it is clear from the record that Smith consented to

counsel’s strategic decision not to call Vaughn, there is no merit to

his claim of ineffectiveness. We have “also consistently held that a

trial counsel’s decision to not call certain witnesses to testify at trial

can be reasonable trial strategy.” Everett v. State, 54 So. 3d 464,

474 (Fla. 2010). Because counsel made a reasonable strategic

decision in light of his concerns about Vaughn’s credibility and

associating Smith with a convicted murderer, there was no deficient

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

5. Failure to object to improper character evidence

Smith argues that counsel was ineffective for failing to object

to the State’s repeated elicitation of improper evidence of Smith’s

character from its witnesses.

a. Evidence that Smith harbored Edward Haney

At trial, Edward Haney, who was Smith’s best friend around

the time of the murders, testified that Smith allowed Haney to stay

at his house in 2008, knowing that Haney was wanted in

- 28 -
connection with another unrelated shooting and attempting to

evade arrest. Smith asserts that counsel should have objected to

this testimony as inadmissible collateral crime evidence under

section 90.404(2), Florida Statutes (2010), because it was relevant

solely to prove bad character or propensity. The trial court

concluded that trial counsel did not perform deficiently in failing to

object to this testimony because it was relevant to and probative of

Haney’s credibility.

In general, under Williams v. State, 143 So. 2d 484 (Fla. 1962),

evidence of any facts relevant to a material fact in issue, except

where sole relevancy is character or propensity of accused, is

admissible unless precluded by some specific exception or rule of

exclusion. Since evidence that Haney was staying with Smith while

he was wanted for murder was relevant to explain why Smith

confessed to Haney nearly a year after the murders in this case, its

sole relevancy was not the character or propensity of Smith. Smith

has not identified any rule or exception that would preclude

admission of this evidence. Therefore, it was admissible at trial,

and Smith has failed to establish that counsel performed deficiently

by failing to object.

- 29 -
 Further, Smith has failed to establish prejudice. There is no

reasonable probability that the jury would have acquitted Smith but

for the fact that they were made aware that Haney was wanted at

the time he was staying with Smith.

b. Evidence that witnesses feared retaliation

Smith next complains that trial counsel did not object when

Breon Williams, Jonathan Peterson, and Ullysses Johnson testified

they were afraid of retaliation by Smith while citing to no specific or

general threats. Breon Williams testified that he did not contact

police after fleeing from the murder scene and that he initially lied

to the police—telling them that he did not know anything about the

murders—because he feared retaliation from Smith. Ullysses

Johnson testified that he did not contact the police with his

knowledge of Smith’s involvement in the murders and that he

initially lied when he was brought in for questioning because he

was nervous about being at the police station, scared that he might

be in trouble, and concerned that Smith might retaliate. Jonathan

Peterson also testified that he did not go to the police with his

knowledge of Smith’s involvement in the murders because he feared

retaliation and because he “liv[es] by the code in the streets,”

- 30 -
meaning “you just don’t go volunteer information” because “[i]t gets

you killed.” Peterson also said that when he was interviewed by

police, he was reluctant at first for the same two reasons.

The trial court concluded that evidence that these three

witnesses feared retaliation by Smith was relevant to their

credibility and admissible “because it provide[d] a plausible

explanation for why they did not voluntarily come forward and

initially denied having knowledge about the triple homicide”;

therefore, counsel’s failure to object did not amount to deficient

performance.

There is competent, substantial evidence in the record to

support the trial court’s conclusion. The credibility of witnesses is

always in issue, and this testimony was relevant to explain why the

witnesses did not come forward on their own and why they initially

lied to law enforcement when questioned about the murders.

Although the testimony regarding the witnesses’ “fear of retaliation”

was prejudicial to Smith, its probative value was not outweighed by

the danger of unfair prejudice to Smith. Counsel was therefore not

deficient for failing to object to this admissible evidence.

- 31 -
 Further, even if evidence that the witnesses feared retaliation

were inadmissible, Smith would not have been prejudiced by

counsel’s failure to object. As Smith acknowledges in his brief, the

witnesses testified “they were afraid of Smith while citing to no

specific or general threats.” It would have been far more prejudicial

to Smith, had the witnesses elaborated and testified to specific

threats Smith had made to them or provided other reasons to

justify their fear of him. The testimony of each witness’s fear of

retaliation was also brief and not a feature of any witness’s

testimony. It is clear from the context in which each statement was

elicited that these statements were being used to explain the

witnesses’ reluctance to talk about what they knew about the

murders rather than to denigrate Smith’s character. There is no

reasonable probability that Smith would have been acquitted had

this testimony been excluded.

c. Reference to Smith “picking” the witnesses

Finally, Smith points to statements made by the State in its

closing argument in which the State acknowledged that Jonathan

Peterson, Ullysses Johnson, and Edward Haney may not be “liked”

by the jury and stated that Smith “chose these witnesses” by

- 32 -
confessing to them. Smith faults counsel for failing to raise “any

relevance objection for offering evidence of uncharged bad acts” and

argues that “[d]ue to counsel’s failure to object to this inadmissible

testimony, the jury was allowed to hear irrelevant, improper

testimony that only served to denigrate Smith’s character and

invited the jury to convict based on facts unrelated to the charges.”

Appellant’s Initial Br. at 100-01. But because the State’s closing

argument was not evidence or testimony, the relevance objection

that Smith argues should have been raised would have been

overruled. Thus, this claim is without merit.

6. Failure to raise a Confrontation Clause challenge to the
medical examiner’s testimony

The autopsies of the three victims in this case were conducted

by three different medical examiners. Smith asserts that trial

counsel was ineffective for failing to object to Dr. Giles testifying to

the findings and conclusions of the other two medical examiners

regarding the cause and manner of death of Gibson and Keenan

and the exhibition of photographs from those autopsies, because he

argues that testimony violated the Confrontation Clause. But

- 33 -
because there was no violation of the Confrontation Clause, any

such objection would have been meritless.

We have previously held that a testifying medical expert may

offer an opinion based on an autopsy performed by a non testifying

expert without violating the Confrontation Clause. Brooks v. State,

175 So. 3d 204, 237 (Fla. 2015); see also Capehart v. State, 583 So.

2d 1009, 1012-13 (Fla. 1991) (concluding that there was no error in

allowing chief medical examiner, who based her opinion on autopsy

report, toxicology report, evidence receipts, photographs of body,

and all other paperwork filed in case, to testify regarding cause of

death and condition of victim’s body, although she did not perform

autopsy); Geralds v. State, 674 So. 2d 96, 100 (Fla. 1996) (finding

no abuse of discretion where the trial court allowed a pathologist

who had not performed the victim’s autopsy to offer expert

testimony as to the manner and cause of death of the victim).

Dr. Giles testified that he reviewed the files prepared by the

two medical examiners who conducted the autopsies on Gibson and

Keenan. The autopsy reports were not admitted into evidence, and

it is clear from the record that Dr. Giles testified to his independent

opinions, formed after reviewing technical facts contained in the

- 34 -
reports and the photographs taken during those autopsies.

Because his judgment and methods were subject to cross-

examination, the Confrontation Clause was not violated. Trial

counsel was not deficient in declining to raise a futile objection.

Smith has failed to develop his claim that Dr. Giles’ use of the

photographs taken during the autopsies of Gibson and Keenan

violated the Confrontation Clause and is therefore not entitled to

relief on that claim. See Heath v. State, 3 So. 3d 1017, 1029 n.8

(Fla. 2009) (“Vague and conclusory allegations on appeal are

insufficient to warrant relief.”).

7. Failure to advance Smith’s defense

Smith alleges that trial counsel performed deficiently by

ignoring Smith’s account of what happened at the Ahmad Drive

house on the night of the murders and choosing to present a false

defense instead by arguing that Smith did not commit the murders

and suggesting that Raylan Johnson was the responsible party.

At the evidentiary hearing, trial counsel testified that Smith

confessed to him that he committed the murders. Smith told

counsel that he went with Breon Williams to purchase drugs from

Robinson, but in the course of the drug transaction, initiated a

- 35 -
robbery, and told Robinson to “give it up” before shooting him.

Smith admitted that he then proceeded further into the home and

shot both Gibson and Keenan. Smith said that he fled the home

without taking the drugs or money that were left out because

somebody was shooting back at him. Trial counsel found Smith’s

confession to be consistent with his evaluation of the physical

evidence. Trial counsel also testified that Smith told him that he

had confessed to Haney, Peterson, Ullysses Johnson, and Raylan

Johnson.

Smith testified at the evidentiary hearing that he told trial

counsel that when he and Williams arrived at the Ahmad Drive

house, Smith said he saw an unknown man with a light brown

complexion standing in the kitchen area and arguing with Robinson

about money the man was owed. Williams stepped outside to take

a phone call, and after Robinson locked the door behind Williams,

the unknown man pulled out a handgun and started shooting.

Smith unlocked the door, ran to some nearby apartments, and

called Raylan Johnson to pick him up.

Smith said that because he had told police that he had never

been to the house on Ahmad Drive, trial counsel advised him that

- 36 -
this version of events would not go over well with the jury. Smith

said trial counsel told him that it would be better to present the

defense that Raylan Johnson and Breon Williams were responsible

for the murders, because Raylan Johnson had been going around

bragging about committing the murders and Williams had admitted

to being at the scene.

The trial court found Smith’s testimony incredible. The court

concluded that Smith never told trial counsel about an unidentified

man being the assailant and denied relief on this claim.

“This Court is highly deferential to the postconviction court’s

factual findings and ‘will not substitute its judgment for that of the

trial court on . . . the credibility of the witnesses and the weight to

be given to the evidence.’ ” Mosley v. State, 209 So. 3d 1248, 1263

(Fla. 2016) (alteration in original) (quoting Wyatt v. State, 71 So. 3d

86, 105 (Fla. 2011)). “This is because ‘the trial judge is there and

has a superior vantage point to see and hear the witnesses

presenting the conflicting testimony.’ ” Wyatt, 71 So. 3d at 105

(quoting State v. Spaziano, 692 So. 2d 174, 178 (Fla. 1997)). Here,

the trial court denied relief on the basis that trial counsel’s

testimony was more credible than Smith’s testimony and Smith’s

- 37 -
testimony was wholly inconsistent with the evidence presented at

trial and the evidentiary hearing. The record provides competent,

substantial evidence supporting the trial court’s findings, and we

will not substitute our judgment for that of the trial court on the

credibility of the witnesses.

Further, in light of Smith’s palm print at the Ahmad Drive

house, his denial of ever having been there, evidence that he

confessed to four people on at least three occasions, and eyewitness

testimony that he initiated the shooting and shot Robinson, trial

counsel was not deficient in making the strategic decision to

present a defense of reasonable doubt after considering alternative

courses of action. See Occhicone, 768 So. 2d at 1048.

Cumulative Prejudice Analysis

We have resolved two of Smith’s claims based on a lack of

prejudice without resolving whether counsel’s performance was

deficient. These claims are those relating to (1) trial counsel’s

failure to challenge the admissibility of State’s exhibit 12, a

photograph in which Smith is wearing a shirt with the words

“Inmate” and “Department of Corrections” easily discernible, on

which Breon Williams wrote, “Terry I saw him shoot Desmond. It

- 38 -
happened in the kitchen of Ahmad Drive,” and (2) trial counsel’s

failure to challenge the admissibility of State’s exhibit 85, a closely

cropped photograph of Smith that appears to also be a booking

photograph, because he is wearing clothing similar to the clothing

in State’s exhibit 12, although there is no visible writing on the

clothing identifying Smith as an inmate, and on which Ullysses

Johnson wrote, “He said he had shot three people, two dudes and a

girl.”

Even if State’s exhibit 12 had been excluded or cropped down

to show only Smith’s face, the jury still would have heard from

Breon Williams that he saw Smith shoot Desmond Robinson in the

kitchen of the house on Ahmad Drive. And even if State’s exhibit

85 had been excluded or cropped down to only show Smith’s face,

the jury still would have heard Ullysses Johnson testify that Smith

confessed that he shot the three victims at the Ahmad Drive house.

Further, in addition to testimony from Williams that he saw Smith

initiate the shooting and shoot Robinson and Ullysses Johnson’s

testimony that he heard Smith confess, the evidence against Smith

included testimony from Jonathan Peterson and Edward Haney

that Smith confessed to each of them on different occasions and

- 39 -
Smith’s palm print on the interior of the back door of the house on

Ahmad Drive, which contradicted his assertion that he had never

been inside the house. As a result, Smith has not demonstrated

that any alleged deficiency in the failure to object to State’s exhibits

12 and 85 would undermine confidence in the outcome.

B. Newly discovered evidence

Smith argues that he is entitled to relief based on newly

discovered evidence in the form of Edward Haney’s recantation of

Smith’s confession to him. At trial, Edward Haney testified that he

was staying with Smith at his home in early April 2008, while

Haney was attempting to evade arrest in another, unrelated

shooting. While Haney was staying with Smith, the case in which

Haney was wanted was featured on the local news, and Haney’s

picture was shown as being wanted in connection with that

shooting. Haney testified that after his picture was shown on the

news, Smith told him that he had killed three people on Ahmad

Drive and was not caught. Smith told Haney that he and Breon

Williams went to buy drugs from Robinson. Smith said that he

started shooting at the people in the house and shot Robinson,

Gibson, and a female he did not know. Smith said that Williams

- 40 -
got scared and tried to leave but dropped the keys to the door

before he was eventually able to get the door unlocked and get out.

Smith told Haney that he left the murder scene on foot and that he

used a ten-millimeter handgun to shoot the victims.

After Haney was apprehended on April 15, 2008, Detective

Nelson went to the jail to talk to Haney about the Ahmad Drive

murders. Although Smith was Haney’s best friend, Haney took

Detective Nelson’s advice to look out for himself and told Detective

Nelson what he knew about Smith’s involvement in the murders. In

October 2010, Haney pleaded guilty to a number of charges in

connection with the unrelated shooting and received a number of

lengthy sentences, including a forty-year sentence with a twenty-

five-year minimum mandatory for attempted first-degree murder.

Haney was not promised anything for his testimony against Smith.

Haney testified at Smith’s trial that after his guilty plea in

October 2010, he was transferred to prison. Haney was transported

back to Duval County in December 2010 to give a deposition in

Smith’s case. Haney said that prior to that deposition, he had

never talked to the state attorney’s office about Smith’s case.

Haney further testified that the Monday before he testified in

- 41 -
Smith’s trial, Smith tried to convince him to testify that he had only

implicated Smith because the police told him to do so. Smith also

told Haney to testify that Raylan Johnson committed the murders.

Haney testified that he was telling the truth about what Smith told

him and that his only knowledge of the Ahmad Drive murders came

from Smith.

By the time of the evidentiary hearing in December 2017,

Haney’s story had changed drastically. Haney testified at the

evidentiary hearing that the prior statements he made to Detective

Nelson, at his deposition, and at Smith’s trial were not truthful and

that Smith never confessed to him. Haney said that some of the

information he gave to Detective Nelson and at his deposition came

from Raylan Johnson and other information he provided was just

what he had heard on the streets. Haney also testified that he met

with assistant state attorneys in October 2010 and was provided

with paperwork pertaining to Smith’s case at that time. Haney also

stated that he was not transferred back from prison for his

December 2010 deposition; he was not even transferred to prison

until January 2011. Haney said that he falsely testified that Smith

confessed to him because he and Smith had a falling out prior to

- 42 -
Haney’s arrest in April 2008. Haney also testified that Smith did

not ask him to lie on the stand the Monday before he testified at

Smith’s trial. The trial court concluded that “Haney’s recantation is

unreliable, devoid of credibility, and demonstrably false,” and not

likely to produce an acquittal on retrial.

In order to be entitled to relief based on a claim of newly

discovered evidence, a defendant must show that (1) the evidence

was unknown by the trial court, party, or by counsel at the time of

trial, and it must appear that defendant or his counsel could not

have known of it by the use of diligence, and that (2) the evidence is

of such a nature that it would probably produce an acquittal on

retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). With

regard to recanting testimony, we have explained:

“Recantation by a witness called on behalf of the
prosecution does not necessarily entitle a defendant to a
new trial. In determining whether a new trial is
warranted due to recantation of a witness’s testimony, a
trial judge is to examine all the circumstances of the
case, including the testimony of the witnesses submitted
on the motion for the new trial. ‘Moreover, recanting
testimony is exceedingly unreliable, and it is the duty of
the court to deny a new trial where it is not satisfied that
such testimony is true. Especially is this true where the
recantation involves a confession of perjury.’ Only when
it appears that, on a new trial, the witness’s testimony

- 43 -
 will change to such an extent as to render probable a
different verdict will a new trial be granted.”

Sweet v. State, 248 So. 3d 1060, 1066 (Fla. 2018) (quoting Consalvo

v. State, 937 So. 2d 555, 561 (Fla. 2006)). And regarding our role in

reviewing a trial court’s credibility determination of the recanting

witness, we have explained:

“When reviewing a trial court’s determination
relating to the credibility of a recantation, this Court is
‘highly deferential’ to the trial court and will affirm the
lower court’s determination so long as it is supported by
competent, substantial evidence.” Lambrix v. State, 39
So. 3d 260, 272 (Fla. 2010) (quoting Heath v. State, 3 So.
3d 1017, 1024 (Fla. 2009)). “Postconviction courts hold a
superior vantage point with respect to questions of fact,
evidentiary weight, and observations of the demeanor
and credibility of witnesses.” Ibar v. State, 190 So. 3d
1012, 1018 (Fla. 2016). “Unlike this Court, ‘the trial
judge is there and . . . see[s] and hear[s] the witnesses
presenting the conflicting testimony. The cold record on
appeal does not give appellate judges that type of
perspective.’ ” Spann v. State, 91 So. 3d 812, 816 (Fla.
2012) (quoting State v. Spaziano, 692 So. 2d 174, 178
(Fla. 1997)).

Id. at 1066 (alterations in original).

The trial court’s determination that trial counsel’s testimony

that Smith told him that he did give Haney a detailed confession

regarding the murders was more credible that Haney’s recantation

is supported by competent, substantial evidence. Haney is

- 44 -
incredible because he has lied under oath and his testimony at the

evidentiary hearing completely contradicted his trial testimony and

other evidence presented.

Moreover, even if Haney’s recantation were determined to be

credible, Smith would still not be entitled to relief. If there were a

retrial at which Haney did not testify that Smith confessed to him,

there would still be two witnesses to testify that Smith confessed to

them as well as an eyewitness to Smith shooting Desmond

Robinson. Thus, the absence of Haney’s testimony of Smith’s

confession at a retrial would not probably produce an acquittal on

retrial, nor would the additional absence of State’s exhibits 12 and

85 probably produce an acquittal on retrial. Smith is therefore not

entitled to relief on this claim.

II. PETITION FOR A WRIT OF HABEAS CORPUS

In his petition for a writ of habeas corpus, Smith raises eight

claims of ineffective assistance of appellate counsel. We have

explained the applicable standard of review for claims of ineffective

assistance of appellate counsel as follows:

“The standard of review for ineffective appellate counsel
claims mirrors the Strickland standard for ineffective
assistance of trial counsel.” [Wickham v. State, 124 So.

- 45 -
 3d 841, 863 (Fla. 2013)]. Specifically, to be entitled to
habeas relief on the basis of ineffective assistance of
appellate counsel, the defendant must establish

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

Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986)).
Further, “appellate counsel cannot be deemed ineffective
for failing to raise nonmeritorious claims.” Valle v.
Moore, 837 So. 2d 905, 908 (Fla. 2002).

England v. State, 151 So. 3d 1132, 1140 (Fla. 2014).

We now address each claim of ineffective assistance of

appellate counsel.

A. Failure to raise a claim that the trial court erred in
overruling hearsay objections regarding testimony from three
witnesses

Smith first claims that appellate counsel was ineffective for

failing to raise a claim that the trial court erred in overruling

hearsay objections to testimony from Ray Dukes, Justin Harper,

- 46 -
and Detective Nelson when each of these witnesses repeated at trial

what Breon Williams told him.

At trial, Breon Williams testified that before he fled the Ahmad

Drive house, he saw Smith shoot Desmond Robinson. Ray Dukes

testified that a few days after the murders on Ahmad Drive,

Williams told him that he and Smith went to the house to purchase

narcotics and while Williams was counting his money, he heard

Smith say “give it up” and gunshots before running out the back

door. Justin Harper testified at trial that two days after the

murders, Williams told him that he “took a guy named Terry to go

purchase some drugs and somehow the guy Terry tried to rob the

people,” after which Williams ran out the back door. Detective

Nelson testified that in January 2009, Williams told him that he

saw Smith shoot Robinson.

Prior to the statements coming in through Dukes and Harper,

trial counsel objected on hearsay grounds, and the trial court

overruled the objection, finding the statements to be admissible

prior consistent statements under section 90.801(2)(b) “to rebut, if

not express, then certainly an implied fabrication based on

improper influence or other motives of favorable treatment with the

- 47 -
State, things of that sort.” Smith lodged a hearsay objection to the

prior consistent statement coming in through Detective Nelson

during Detective Nelson’s direct examination, which was also

overruled.

We have said:

With regard to evidentiary objections which trial
counsel made during the trial and which appellate
counsel did not raise on direct appeal, this Court
evaluates the prejudice or second prong of the Strickland
test first. In doing so, we begin our review of the
prejudice prong by examining the specific objection made
by trial counsel for harmful error. A successful petition
must demonstrate that the erroneous ruling prejudiced
the petitioner. If we conclude that the trial court’s ruling
was not erroneous, then it naturally follows that habeas
petitioner was not prejudiced on account of appellate
counsel’s failure to raise that issue. If we do conclude
that the trial court’s evidentiary ruling was erroneous, we
then consider whether such error is harmful error. If
that error was harmless, the petitioner likewise would not
have been prejudiced.

Jones v. Moore, 794 So. 2d 579, 583-84 (Fla. 2001).

The trial court’s admission of Williams’ prior consistent

statements through Dukes and Harper was not erroneous. When

cross-examining Williams at trial, trial counsel pointed out that

Williams initially denied knowing anything about the shooting for

the first two hours that the police questioned him in 2009, and that

- 48 -
it was not until the police started talking about the possibility of

charging Williams and him spending the rest of his life in prison

that Williams implicated Smith. That was when the motive to lie

arose.

Trial counsel also suggested that Williams’ implication of

Smith was only a regurgitation of what the police had told him by

pointing out that in the two hours that Williams lied to the police

and denied knowing anything about the murders, the police were

sharing information with him regarding what they knew about the

murders. And trial counsel implied that because Williams

ultimately cooperated with the police and gave them the information

they wanted to hear, he was never arrested for anything having to

do with the events surrounding the murders.

Had this issue been raised on appeal, we would have

concluded that the trial court did not abuse its discretion in

admitting the statements as prior consistent statements through

Dukes and Harper to rebut trial counsel’s implication during cross-

examination of Williams that his testimony that Smith was

responsible for the murders was the result of improper influence,

motive, or recent fabrication. Because the trial court’s ruling was

- 49 -
not erroneous, Smith was not prejudiced by appellate counsel’s

failure to raise this issue.

As to the prior consistent statement that came in through

Detective Nelson, had the issue been raised on appeal, we would

have concluded that the trial court erred in overruling Smith’s

objection, because Williams’ prior consistent statement to Detective

Nelson implicating Smith in the murders was not made until after

the alleged improper influence or motive arose. Despite the fact

that we would have concluded that the statement was admitted in

error, Smith would not have been entitled to relief because the

improper admission of prior consistent statements is subject to

harmless error review, Chandler v. State, 702 So. 2d 186, 198 (Fla.

1997), and any error would have been deemed harmless, because

the substance of Detective Nelson’s testimony was already properly

before the jury. Thus, Smith was not prejudiced by appellate

counsel’s failure to raise this claim on appeal and he is not entitled

to relief on this claim.

- 50 -
B. Failure to raise a claim that the trial court erred in
sustaining the State’s relevancy objection to Anthony Nixon’s
possible bias

Smith argues that the trial court erred in sustaining the

State’s relevancy objection and prohibiting the defense from

inquiring of Anthony Nixon why he did not trust the police, and that

appellate counsel was ineffective for failing to raise the error on

appeal.

Nixon testified on direct examination that he lives across the

street and four houses down from where Robinson lived on Ahmad

Drive. On the night of the murders, Nixon was sitting in his carport

when he heard gunshots from the direction of Robinson’s house.

He did not call the police after hearing the gunshots because,

according to Nixon, the police do not have a good reputation and he

does not trust them. After the gunshots, Nixon saw a frantic

woman running up and down the sidewalk looking for help and a

man, known to him only as “Kirk,” retrieve a scooter from

Robinson’s driveway. Nixon said the police arrived thirty to forty-

five minutes after the gunshots, but he did not talk to them.

On cross-examination, Nixon was asked why he does not trust

the police, but the court sustained the State’s relevance objection.

- 51 -
Nixon was then asked if the reason he did not trust or call the

police was based on his past experience. Nixon replied, “Yes,”

before another relevance objection was made and sustained.

The jury heard that Nixon did not trust the police based on his

past experiences. There was no proffer made at trial of what Nixon

would have said had he been permitted to explain specifically what

led to his distrust of the police. Smith has failed to make a

coherent argument as to why, beyond what the jury heard, the

specific past experiences of Nixon’s with the police that led to his

distrust of them would have been relevant. Thus, we cannot

conclude that the trial court abused its discretion in sustaining the

objection. Had the claim been raised on appeal, it would have been

deemed meritless, and appellate counsel cannot be found ineffective

for failing to raise a meritless claim. Further, Smith has failed to

explain in his petition how the alleged deficiency “compromised the

appellate process to such a degree as to undermine confidence in

the fairness and correctness of the appellate result.” Wilson v.

Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985).

- 52 -
C. Failure to raise a claim that the trial court erred in
overruling the objection to Edward Haney’s testimony that
Haney did not believe Raylan Johnson’s confession

At trial, Edward Haney testified that in the days after the

murders, Raylan Johnson told Haney that he killed some people on

Ahmad Drive. The State asked Haney whether he believed Raylan

Johnson. Smith objected to the question as calling for speculation.

The objection was overruled, and Haney responded, “No.” Smith

claims that the trial court erred in overruling his speculation

objection and allowing Haney to give improper opinion testimony,

and that appellate counsel was ineffective for failing to raise the

error on appeal. We disagree.

First, the trial court did not err in overruling Smith’s

speculation objection. The question to Haney was whether he

believed Johnson; the answer to that question did not require

Haney to speculate. Second, Smith argues in his petition that

Haney’s response was an improper opinion, but that is a different

legal ground for an objection. Thus, an objection to improper

opinion was not properly preserved. See Chamberlain v. State, 881

So. 2d 1087, 1100 (Fla. 2004) (“It is well-settled in Florida that ‘[t]o

be preserved for appeal, “the specific legal ground upon which a

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claim is based must be raised at trial and a claim different than

that will not be heard on appeal.” ’ ” (quoting Spann v. State, 857

So. 2d 845, 852 (Fla. 2003))). We have held that “[a]ppellate

counsel is not ineffective for failing to raise issues not preserved for

appeal.” Medina v. Dugger, 586 So. 2d 317, 318 (Fla. 1991); Jones,

794 So. 2d at 587 (“[A]ppellate counsel cannot be ineffective for not

raising unpreserved claims.”). Smith is therefore not entitled to

relief on this claim.

D. Failure to raise a claim that the trial court erred in denying
Smith’s motion for mistrial regarding Jonathan Peterson’s
testimony that he had previously seen Smith in possession of a
ten-millimeter handgun

During direct examination, Jonathan Peterson testified that

when he, Raylan Johnson, and Ullysses Johnson went to pick

Smith up in the area of Ahmad Drive shortly after the murders,

Smith said that he had shot three people and was in possession of a

gun. Peterson knew that the gun Smith had in his possession at

the time was a ten-millimeter because he had seen the same gun,

which he knew to be a ten-millimeter, in Smith’s possession on

prior occasions. Following Peterson’s direct examination, defense

counsel made a motion for mistrial, which the court denied.

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 A motion for mistrial should only be granted “when an error is

so prejudicial as to vitiate the entire trial.” Salazar v. State, 991 So.

2d 364, 372 (Fla. 2008) (quoting England v. State, 940 So. 2d 389,

401-02 (Fla. 2006)). “[T]his Court reviews a trial court’s ruling on a

motion for mistrial under an abuse of discretion standard.” Id. at

371. Because the trial court did not abuse its discretion in denying

Smith’s motion for mistrial, had a claim of error regarding the

denial of the motion been raised on appeal, it would have been

deemed meritless; therefore, appellate counsel was not ineffective

for failing to raise such a claim.

The prerequisite to the admissibility of evidence is relevancy.

Wright v. State, 19 So. 3d 277, 291 (Fla. 2009). “The concept of

‘relevancy’ has historically referred to whether the evidence has any

logical tendency to prove or disprove a fact. If the evidence is

logically probative, it is relevant and admissible unless there is a

reason for not allowing the jury to consider it.” State v. Taylor, 648

So. 2d 701, 704 (Fla. 1995) (quoting Charles W. Ehrhardt, Florida

Evidence § 401.1, at 95-96 (1994)). All evidence tending to prove or

disprove a material fact is admissible, unless precluded by law. See

§§ 90.401-90.402, Fla. Stat. (2010). But even “[r]elevant evidence is

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inadmissible if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of issues, misleading the

jury, or needless presentation of cumulative evidence.” § 90.403,

Fla. Stat. (2010).

The fact that the gun Smith possessed immediately after the

murders was a ten-millimeter was highly relevant and probative

because ten-millimeter casings were found at the crime scene, and

all wounds to the victims were consistent with ten-millimeter

bullets. The basis of Peterson’s knowledge was also relevant and

probative. The fact that Peterson had seen Smith with that gun

previously was necessary to explain how Peterson knew the gun

was a ten-millimeter; it was not used to confuse the issues or

mislead or improperly inflame the jury nor was its probative value

outweighed by those dangers.

Even if we were to conclude that Peterson’s testimony that

Smith had possessed the gun on prior occasions was improper, we

would still disagree with Smith’s contention that the trial court

erred in denying the motion for mistrial. Any error in allowing the

jury to hear this testimony was not so prejudicial as to vitiate the

entire trial. Thus, any claim raised on appeal regarding the denial

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of the motion for mistrial would have been rejected as meritless,

and appellate counsel was therefore not ineffective for failing to

raise a meritless claim.

E. Remaining claims of ineffective assistance of appellate
counsel

Each of Smith’s remaining claims of ineffective assistance of

appellate counsel5 alleges that appellate counsel was ineffective for

failing to raise a claim of fundamental error on direct appeal. As

previously explained, “appellate counsel cannot be ineffective for

not raising unpreserved claims.” Jones, 794 So. 2d at 587.

Moreover, claims of ineffective assistance of appellate counsel

raised in a petition for a writ of habeas corpus that are

“permutations of claims” raised in a postconviction motion are

5. The remaining claims are (1) appellate counsel was
ineffective for failing to raise a claim of fundamental error based on
prosecutorial misconduct by soliciting testimony that three
witnesses had a generalized fear of Smith; (2) appellate counsel was
ineffective for failing to raise a claim of fundamental error based on
the admission of evidence of Smith’s uncharged crimes; (3)
appellate counsel was ineffective for failing to raise a claim of
prosecutorial misconduct based on the State’s implication that
Smith was guilty by association with the State’s witnesses; and (4)
appellate counsel was ineffective for failing to raise a claim of
fundamental error based on the State’s introduction of the
detectives’ opinions as to Smith’s lack of remorse.

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procedurally barred. Calhoun v. State, 312 So. 3d 826, 854 (Fla.

2019), cert. denied, 141 S. Ct. 394 (2020). Defendants cannot

relitigate the substance of postconviction claims in a habeas

petition under the guise of ineffective assistance of appellate

counsel. Id.; see Knight v. State, 923 So. 2d 387, 395 (Fla. 2005)

(“[C]laims [that] were raised in [a] postconviction motion . . . cannot

be relitigated in a habeas petition.”). Each of Smith’s remaining

claims is a permutation of a subclaim raised in his postconviction

appeal and each is therefore procedurally barred from being raised

in this habeas petition.

III. CONCLUSION

For the reasons stated above, we affirm the postconviction

court’s order denying Smith’s motion for postconviction relief as to

the guilt phase and deny the petition for a writ of habeas corpus.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and
MUÑIZ, JJ., concur.
COURIEL and GROSSHANS, JJ., did not participate.

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

An Appeal from the Circuit Court in and for Duval County,
Adrian G. Soud, Judge

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 Case No. 162009CF004417AXXXMA
And an Original Proceeding – Habeas Corpus

Robert S. Friedman, Capital Collateral Regional Counsel, Karin L.
Moore and Elizabeth C. Spiaggi, Assistant Capital Collateral
Regional Counsel, Northern Region, Tallahassee, Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, and Jason William Rodriguez,
Assistant Attorney General, Tallahassee, Florida,

for Appellee/Respondent

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