& SC15-1233 Richard Knight v. State of Florida & Richard Knight v. Julie L. Jones, etc.

Supreme Court of Florida
______________

No. SC14-1775
______________

RICHARD KNIGHT,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

______________

No. SC15-1233
______________

RICHARD KNIGHT,
Petitioner,

vs.

JULIE L. JONES, etc.,
Respondent.

[January 31, 2017]

PER CURIAM.

Richard Knight appeals an order of the Seventeenth Judicial Circuit Court in

and for Broward County denying his motion to vacate his sentence of death filed

under Florida Rule of Criminal Procedure 3.851. Knight also petitions this Court
for a writ of habeas corpus. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons

discussed below, we affirm the circuit court’s denial of Knight’s rule 3.851 motion

and deny his petition for a writ of habeas corpus.

I. STATEMENT OF THE CASE & FACTS

On April 26, 2006, a jury found Richard Knight guilty of two counts of first-

degree murder for the deaths of Odessia Stephens and her four-year-old child,

Hanessia Mullings. The jury unanimously recommended a death sentence for each

murder. Knight v. State, 76 So. 3d 879, 884 (Fla. 2011).

A. Trial & Direct Appeal Proceedings

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

background:

The evidence presented at trial established that Knight lived in
an apartment with his cousin, Hans Mullings, Mullings’ girlfriend,
Odessia Stephens, and their daughter, Hanessia Mullings. Mullings
and Odessia had asked Knight to move out numerous times.
On the night of the murder, June 27, 2000, Mullings was at
work. At approximately 9 p.m., Mullings spoke to Odessia, who said
she was going to bed, and then Mullings left his office to run errands.
Knight was at the apartment with Odessia and Hanessia.
Around midnight, an upstairs neighbor heard multiple thumping
sounds on the apartment walls and two female voices, one of which
was a child crying. The neighbor called 911 at 12:21 a.m. on June 28,
2000. The cries continued after the police arrived.
Officer Vincent Sachs was the first to respond. He arrived at
12:29 a.m. and noted that the lights were on in the master bedroom
and hall area, and that a second bedroom’s window was slightly ajar.
After knocking and receiving no response, he walked around the unit
and noticed that the lights had been turned off and that the previously
ajar window was now completely open and blinds were hanging out

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of it. Sachs shined his flashlight through the dining room window.
He saw blood in the dining room and master bedroom. Further, he
noticed Hanessia curled in the fetal position against the closet door.
Once inside, he observed Odessia’s body in the living room. All of
the doors were locked and there had been no ransacking of the
apartment.
Officer Natalie Mocny arrived next and walked around the unit.
She also saw the open window and noticed Knight on the other side of
some hedges approximately 100 yards from the building. She
beckoned him over for questioning. Officer Sachs joined Mocny.
According to the officers, Knight had a scratch on his chest, a scrape
on his shoulder, and fresh cuts on his hands. Although it was not
raining, Knight was visibly wet. Knight was wearing dress clothes
and shoes, yet told Mocny that he had been jogging, and that he lived
in the apartment, but did not have a key to get inside. There was
blood on the shirt he was wearing and on a ten-dollar bill in his
possession.
The crime scene investigation recovered two wet towels in
Knight’s bedroom, a shirt, boxers, and a pair of jean shorts under the
sink in the bathroom near Knight’s bedroom, all of which belonged to
Knight and had numerous bloodstains. Two knife blades were also
recovered, one from under the mattress in the master bedroom, and
another from under Odessia’s body.
Odessia’s blood was found in the master bedroom between the
bed and the wall, on the master bedroom blinds, on the living room
carpet, on the knives’ handles and blades, and on the knife holder in
the kitchen. Odessia’s blood was also discovered on Knight’s boxers,
shirt, jean shorts, the clothing Knight had been wearing when arrested,
and his hand. Fingernail scrapings taken from Odessia contained
Knight’s DNA profile.
Hanessia’s blood was found on one of the knives, on Knight’s
boxers, jean shorts, and on the shower curtain. The shower curtain
also contained the blood of Knight’s acquaintance, Victoria Martino.
Dr. Lance Davis, the medical examiner, observed the bodies at
the scene. Odessia was found on the living room floor near the
entrance with several broken knife pieces around her. She had
twenty-one stab wounds: fourteen in the neck, one on the chin, and the
rest on her back and chest. Additionally, she had twenty-four
puncture or scratch wounds and bruising and ligature marks on her
neck. The bruises appeared to have been made by a belt or similar

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object. She also had defensive wounds on both hands and wounds on
her leg, chest, back and neck. Several of the knife wounds were fatal
but none would have resulted in an instantaneous death. She had
bruises from being punched on her scalp and mouth. Davis opined
that Knight began his attack in the bedroom with Odessia fleeing to
the living room. He estimated that Odessia was conscious for ten to
fifteen minutes after the attack.
Davis discovered Hanessia on the floor next to the closet door.
There were broken knife pieces around her. She had a total of four
stab wounds in her upper chest and neck. Her hand had one additional
stab wound and numerous defensive wounds. Hanessia’s arms and
upper body had numerous bruises and scratches. There were bruises
on her neck that were consistent with manual strangulation and
bruises on her arms consistent with being grabbed.
Stephen Whitsett and Knight were housed together from June
29, 2000, to July 22, 2000, at the Broward County Jail. Knight
confessed to Whitsett about the murders as follows: The night of the
murders Knight and Odessia argued. She told him that she did not
want to support him and that he would have to move. He asked for
some more time because he had just gotten a job, but Odessia refused
and told him to leave in the morning. Knight left the house to go for a
walk and he became increasingly angry. He returned that night,
confronted Odessia in her room, and they argued.
Knight went to the kitchen and got a knife. When he went back
to the master bedroom, Odessia was on one side of the bed and
Hanessia was on the other. He began by stabbing Odessia multiple
times. Odessia eventually stopped defending herself and balled up
into a fetal position. Knight then turned to four-year-old Hanessia.
The knife broke while he was stabbing Hanessia, so he returned to the
kitchen for another. Upon returning, Knight saw Hanessia had
crawled to the closet door and was drowning in her own blood.
Again, Knight returned to the kitchen and accidentally cut his
hand on one of the broken knives that he had used to stab Odessia and
Hanessia. He grabbed another knife. Odessia had crawled from the
master bedroom to the living room and was lying in her own blood.
He rolled her over and continued his attack. Odessia’s blood covered
Knight’s hands, so he wiped them on the carpet.
Knight further confessed that, after he finished with Odessia, he
went to the bathroom, took off the blood soaked shorts and T-shirt,
and tossed them under the sink. He showered and put on blue polo

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pants. He wiped down the knives in the living room. At that time,
Knight heard a knock on the door and saw the police outside through
the peep hole. He ran to his room and out the window. In an attempt
to deflect suspicion away from himself, Knight returned to his
bedroom window where he saw a female police officer.
Knight was charged by indictment on August 15, 2001, for the
murders of Odessia Stephens and Hanessia Mullings. The jury found
Knight guilty of both counts of first-degree murder.
At the penalty phase, Knight called six witnesses, several of
whom testified about his childhood and upbringing in Jamaica. His
teacher, Joscelyn Walker, told the jury that Knight was a respectful
and loving boy raised in a very respected family. He said that Knight
did have a temper when provoked and would become extremely
frustrated at times. Walker had to restrain him from time to time
when Knight wanted to fight another child. Knight’s high school art
teacher, Joscelyn Gopie, described Knight as a pleasant, eager boy
who was quite talented at art. Gopie explained that Knight was
adopted as a toddler by his family. Knight left high school before he
graduated.
Barbara Weatherly is the mother of Knight’s former fiancée.
She described him as a decent, honorable guy who respected her rules
regarding her daughter. He always helped her younger children with
their drawing. He was a quiet and peaceful person who spent a lot of
time alone. One night at her house he got sick; his eyes rolled back in
his head and he frothed at the mouth before passing out. They took
him to the hospital where the doctor said that he needed to see a
psychiatrist. She last saw him in 1998 when he left to go to the
United States.
A former boss and coworker of Knight’s, Stanley Davis, also
testified. Davis explained that Knight had been adopted into a well
respected family and had a close loving relationship with his family
members. Knight took over many of his father’s duties when his
father lost a leg. Knight worked with him at a construction company
and was a good worker. On one occasion Knight fell and blacked out,
after which he had difficulty concentrating and became timid.
Valerie River, the defense investigator, and Knight’s attorney
journeyed to Jamaica to interview Knight’s family and friends.
Knight was abandoned by his mother and the Knight family found
him at a hospital and took him home. He was a good brother and son.
Knight’s close friends and family said that he was a nice and good

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person. Knight’s sister-in-law used to have Knight babysit her
children but eventually stopped because he was careless around the
house. Knight blacked out on one occasion. Knight’s former boss
Stedman Stevenson said he was a hard worker and a quick learner.
He took Knight to Florida, and Knight decided to stay.
Knight also presented expert Dr. Jon Kotler who practices
nuclear medicine and specializes in PET scans of the brain. He
explained that Knight’s physical symptoms indicated that he might
have a brain injury. The MRI done on him was normal. Dr. Kotler
did a PET scan which he interpreted as showing asymmetrical brain
activity indicating possible pathology of the brain, perhaps a seizure
disorder. He could not say exactly what the pathology might be or
how it might manifest itself in Knight’s behavior. Dr. Sfakianakis,
another nuclear medicine doctor, read the PET results as showing only
a mild difference between the brain hemispheres which was within the
normal fluctuations of the brain.
Following the presentation of penalty-phase testimony, the jury
unanimously recommended the death penalty for both murders.
The trial court subsequently conducted a [Spencer v. State, 615
So. 2d 688 (Fla. 1993),] hearing on August 18, 2006. At the hearing,
the defense submitted the report and deposition of neuropsychologist
Dr. Mittenberg who examined Knight but refused to testify at trial.
The State submitted the report and deposition of Dr. Lopickalo,
another neuropsychologist. Mullings and Eunice Belan also gave
victim impact statements.
Subsequent to the Spencer hearing, the trial court followed the
jury’s [unanimous] recommendation and sentenced Knight to death.
In pronouncing Knight’s sentence, the trial court determined that the
State had proven beyond a reasonable doubt two statutory aggravating
circumstances for the murder of Odessia Stephens: (1) a previous
conviction of another violent capital felony, and (2) that the murder
was especially heinous, atrocious, or cruel (HAC). The court also
found three statutory aggravating circumstances for the murder of
Hanessia Mullings: (1) a previous conviction of another violent
capital felony, (2) HAC, and (3) the victim was under twelve years of
age. The court found no statutory mitigating circumstances but found
eight nonstatutory mitigators, which are set forth in our
proportionality discussion.

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Knight, 76 So. 3d at 881-84 (footnote and headings omitted). On direct appeal,

Knight raised five claims: (1) the trial court abused its discretion by denying

Knight’s motion for a mistrial based on Hans Mullings’ comment that he knew

Knight to have a violent background; (2) the trial court abused its discretion in

denying Knight’s motion for a mistrial based on the allegation that jurors saw him

wearing shackles; (3) the trial court erred in ruling that no discovery violation

occurred and in denying Knight’s motion for a mistrial based on the State’s

expert’s testimony regarding DNA evidence; (4) the trial court erred in denying

Knight’s motion to seat a new jury based on Mullings’ testimony; and (5) Florida’s

death sentencing statute violates the Sixth Amendment and ignores Ring v.

Arizona, 536 U.S. 584 (2002). Knight, 76 So. 3d at 885. n.3.

We affirmed Knight’s convictions and sentence of death. Id. at 885.

Knight’s sentence became final on May 14, 2012, when the United States Supreme

Court denied certiorari. Knight v. Florida, 132 S. Ct. 2398 (2012) (Mem).

B. Postconviction Relief Proceedings

On May 10, 2013, Knight filed his “Motion to Vacate Judgment of

Conviction and Sentence with Special Request for Leave to Amend,” pursuant to

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

was improperly denied access to public records; (2) the one-year deadline in

Florida Rule of Criminal Procedure 3.851 was unconstitutionally applied to him;

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(3) he was denied adversarial testing at the guilt phase; (4) he was denied

adversarial testing at the penalty phase; (5) the rule prohibiting juror interviews is

unconstitutional; and (6) Florida’s lethal injection protocol and procedures are

unconstitutional. The circuit court granted an evidentiary hearing on Knight’s

claims. The evidentiary hearing took place on March 27 and 28, 2014, when the

circuit court heard testimony on Knight’s claims of ineffective assistance of

counsel. On July 30, 2014, the circuit court denied all of Knight’s claims for

postconviction relief.

II. POSTCONVICTION RELIEF CLAIMS

A. Ineffective Assistance of Counsel During Guilt Phase

Knight argues that he is entitled to a new trial because trial counsel rendered

ineffective assistance. First, Knight argues that trial counsel was ineffective for

failing to call as a witness Dr. Nora Rudin, a DNA analyst who worked for the

defense prior to trial. Second, Knight argues that trial counsel was ineffective for

failing to request a Frye1 hearing to examine the reliability of the DNA testing

procedures employed by the State. Third, Knight argues that trial counsel failed to

discover and introduce a memorandum from one of the State’s experts requesting a

1. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

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voluntary demotion. For the reasons below, we conclude that the postconviction

court did not err in denying Knight’s claims of ineffective assistance of counsel.

In accordance with Strickland v. Washington, 466 U.S. 668 (1984), to obtain

relief on a claim of ineffective assistance of counsel, a defendant must establish

deficient performance and prejudice, as set forth in Strickland v.
Washington, 466 U.S. 668 (1984). See Rutherford v. State, 727 So.
2d 216, 218 (Fla. 1998). As to the first prong, deficient performance,
a defendant must establish conduct on the part of counsel that is
outside the broad range of competent performance under prevailing
professional standards. See Strickland, 466 U.S. at 688. Second, as to
the prejudice prong, the deficient performance must be shown to have
so affected the fairness and reliability of the proceedings that
confidence in the outcome is undermined. See id. at 694; Rutherford,
727 So. 2d at 220.

Gore v. State, 846 So. 2d 461, 467 (Fla. 2003) (parallel citations
omitted).

“[W]hen 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).
Further, as the United States Supreme Court explained in Strickland,
[j]udicial scrutiny of counsel’s performance must be
highly deferential. . . . 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. Because of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. . . .

466 U.S. at 689.

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Mungin v. State, 932 So. 2d 986, 996 (Fla. 2006). “In reviewing a trial 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. at 998 (citing Stephens v. State, 748 So. 2d 1028,

1031-32 (Fla. 1999)).” With this standard of review in mind, we turn to Knight’s

arguments of ineffective assistance of counsel.

1. Failure to Call Dr. Rudin

At trial, the State’s DNA evidence was presented through the testimony of

Kevin Noppinger of the Broward County Sheriff’s Office, who conducted the

actual DNA testing, and Kevin McElfresh of Bode Technology Group, who

analyzed Noppinger’s results. Dr. Rudin worked for Knight’s defense team. She

employed Noppinger’s analysis to develop a report and aid the defense.

Originally, McElfresh opined that Knight’s DNA could be excluded from

the DNA samples obtained from the clothing found below the sink at the crime

scene. Knight, 76 So. 3d at 887. However, at trial McElfresh testified that

Knight’s DNA could not be excluded from the shorts and boxers found in the

bathroom at the crime scene. Id. McElfresh explained that Knight’s DNA could

no longer be excluded because an additional sample, that of Victoria Martino,

Knight’s girlfriend, was tested, and it changed the outcome of the initial analysis.

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Defense counsel objected to the testimony as a discovery violation, but the

objection was denied. Id. Defense counsel called Dr. Rudin and relayed

McElfresh’s testimony. He then sent her a transcript of the testimony of the State’s

expert. She explained to Knight’s counsel that even with the new sample, she

agreed with Noppinger’s DNA analysis. Later, while the trial was ongoing, Dr.

Rudin produced a second report, dated April 28, 2006. The report stated that the

DNA procedures may have had some errors and that McElfresh’s testimony was

not scientifically sound. Notably, Dr. Rudin’s second report ultimately supported

the State’s DNA findings.

At the postconviction evidentiary hearing, trial counsel explained that he did

not call Dr. Rudin as a witness because her conclusions ultimately bolstered the

State’s arguments. Trial counsel also stated that because the rule at the time

allowed the defense to have the last word, he did not want to lose that opportunity.

Dr. Rudin also testified at the evidentiary hearing. She testified that her

second report addressed her concerns with Noppinger’s DNA testing procedures

and with McElfresh’s analysis of that testing as it pertained to the clothes found in

the bathroom. Dr. Rudin found McElfresh’s trial testimony problematic,

explaining that his conclusions were questionable because he arrived at them

through an unreliable testing method. However, even with the possibly flawed

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procedures, Dr. Rudin stated that she would have testified consistent with

Noppinger’s report.

Knight now argues that trial counsel was ineffective for failing to call Dr.

Rudin as a witness. He posits that had she testified at trial, the jury would have

doubted the State’s DNA evidence and ultimately would have found him innocent.

While it is possible that Dr. Rudin’s testimony may have cast doubt on the State’s

DNA evidence, we conclude that Knight fails to meet either prong of Strickland.

This Court has stated that “[a]s long as the trial court’s findings are

supported by competent substantial evidence, ‘this Court will not substitute its

judgment for that of the trial court on questions of fact, likewise of the credibility

of the witnesses as well as the weight to be given to the evidence by the trial

court.’ ” Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (quoting Demps v.

State, 462 So. 2d 1074, 1075 (Fla. 1984)); see also Cox v. State, 966 So. 2d 337,

357-58 (Fla. 2007) (noting that the trial court is frequently in a superior position to

evaluate the testimony based upon its observation of the bearing, demeanor, and

credibility of the witnesses) (quoting Stephens v. State, 748 So. 2d 1028, 1034

(Fla. 2009)).

The record reveals competent, substantial evidence to support the

postconviction court’s finding that defense counsel’s decision not to present Dr.

Rudin during the guilt phase was a reasonable trial strategy. At Knight’s

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evidentiary hearing, trial counsel testified that he made a strategic decision before

trial not to call Dr. Rudin as a witness because her original report supported the

State’s conclusions. Trial counsel also stated that prior to trial, he asked Dr. Rudin

whether she would call herself as a witness, and she said that she would not

because she could not help Knight’s case. Moreover, her report ultimately

concluded that her findings were consistent with Noppinger’s conclusions and that

McElfresh’s unreliable testimony was “inconsequential.”

Knight also cannot establish that trial counsel’s actions or omissions were

prejudicial to him. To establish prejudice, Knight must establish that “but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. In reviewing the prejudice prong, the

postconviction court concluded that even if Dr. Rudin had testified, there was no

reasonable probability that the outcome of the trial would have been different in

light of the other evidence presented by the State. We agree.

At trial, the State presented evidence that Knight lived with the victims, he

had ongoing disagreements with one of the victims, and he was at the apartment on

the night of the murders. Knight, 76 So. 3d at 881. The State also showed that on

the night of the murders, Knight told a detective that he had been out for a run, yet

Knight was wearing a dress shirt, slacks, and dress shoes. Id. at 882. Accordingly,

trial counsel’s actions did not prejudice Knight.

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 2. Failure to Request a Frye Hearing Regarding DNA Evidence

Knight asserts that trial counsel was ineffective for failing to request a

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

argues that a Frye hearing would have shown that the State’s DNA expert

employed unreliable testing procedures and, thus, exponentially weakened the

State’s case. We disagree.

As a general rule, a Frye hearing is “utilized in Florida only when the

science at issue is new or novel.” Overton v. State, 976 So. 2d 536, 550 (Fla.

2007) (quoting Branch v. State, 952 So. 2d 470, 483 (Fla. 2006). The Frye test

places the burden of proof “on the proponent of the evidence to prove the general

acceptance of both the underlying scientific principle and the testing procedures

used to apply that principle to the facts of the case at hand.” Id. (quoting Ramirez

v. State, 651 So. 2d 1164, 1168 (Fla. 1995)). Where the testing procedures are at

issue, “DNA test results are generally accepted as reliable in the scientific

community, provided that the laboratory has followed accepted as reliable testing

procedures” to prevent false readings and contamination. Id.

To show deficiency, Knight must specifically identify acts or omissions of

counsel that were manifestly outside the wide range of reasonable, competent

performance under prevailing norms. Bolin v. State, 41 So. 3d 151, 155 (Fla.

2010). Knight argues that counsel was aware of the deficiencies of the DNA

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testing by Noppinger and, as such, should have requested a Frye hearing. We

reject Knight’s argument because there is competent, substantial evidence

supporting the postconviction court’s denial of Knight’s claim.

Noppinger and trial counsel both testified at the evidentiary hearing that the

“Preliminary Chain Reaction and Short Tandem Repeats” techniques employed in

this case were generally accepted by the community at the time of Knight’s trial.

Second, even though Dr. Rudin pointed out the possible flaws in Noppinger’s

labeling procedures, her report and testimony at the evidentiary hearing supported

Noppinger’s scientific conclusions. It seems that although the labeling procedures

were different, Dr. Rudin was unable to actually find any errors, and counsel

would not have had a reason to challenge the DNA methodology to exclude the

evidence. Counsel cannot be deficient for failing to make an ultimately fruitless

request. Likewise, because a Frye hearing would not have resulted in the exclusion

of the State’s DNA evidence, the absence of a Frye hearing did not prejudice

Knight.

3. Failure to Locate Evidence

Third, Knight alleges that trial counsel was ineffective for failing to locate a

memorandum prepared by Kevin Noppinger, in which Noppinger requested a

voluntary demotion. The entirety of Knight’s argument in his initial brief is

comprised of two sentences that do not cite any case law or refer to any facts that

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could have supported his argument that trial counsel was ineffective for failing to

locate Noppinger’s memorandum. Accordingly, we conclude that this claim is

insufficiently pled. See Bryant v. State, 901 So. 2d 810, 827 (Fla. 2005) (holding a

claim is insufficiently pled when the entire argument is contained in a phrase, and

stating that “[s]uch a cursory argument is insufficient to preserve the issue for

consideration”).

B. Ineffective Assistance of Counsel During Penalty Phase

Knight also asserts that trial counsel was deficient during the penalty phase

of trial. First, Knight argues that trial counsel was ineffective for failing to

properly investigate and introduce mitigating evidence regarding child abuse that

Knight allegedly endured. Second, Knight argues that counsel was ineffective for

failing to ensure that he was examined by a competent mental health expert. We

disagree with both arguments.

The postconviction court found that Knight was unsuccessful on both claims

because he did not present any evidence during the hearing regarding a history of

abuse or his alleged brain injury. Further, the court reasoned that counsel had

presented all social and personal history known to him in the form of several

witnesses who knew Knight as a child, a witness who knew of his seizures and

blackouts, and testimony from the defense investigator who interviewed many

members of Knight’s adoptive family. For the reasons below, we conclude that

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there is competent, substantial evidence supporting the postconviction court’s

order denying Knight’s claims.

With respect to the investigation and presentation of mitigation evidence, the

Supreme Court of the United States observed that Strickland does not require

“counsel to investigate every conceivable line of mitigating evidence no matter

how unlikely the effort would be to assist the defendant at sentencing. Nor does

Strickland require defense counsel to present [mitigating] evidence at sentencing in

every case.” Wiggins v. Smith, 539 U.S. 510, 512 (2003). Rather, in deciding

whether trial counsel exercised reasonable professional judgment with regard to

the investigation and presentation of mitigation evidence, a reviewing court must

focus on whether the investigation resulting in counsel’s decision not to introduce

certain mitigation evidence was itself reasonable. “When making this assessment,

‘a court must consider not only the quantum of evidence already known to counsel,

but also whether the known evidence would lead a reasonable attorney to

investigate further.’ ” Taylor v. State, 62 So. 3d 1101, 1110 (Fla. 2011) (quoting

Wiggins, 539 U.S. at 527) (citations omitted); see also Lebron v. State, 135 So. 3d

1040, 1062 (Fla. 2014) (“One of our principle concerns in deciding whether

counsel exercised reasonable professional judgment during a penalty phase

proceeding is whether counsel should have presented a mitigation case. We also

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focus on whether the investigation supporting counsel’s decision to not introduce

certain mitigating evidence was itself reasonable.”).

1. Sexual Abuse

The State argues that Knight did not pursue this claim at the evidentiary

hearing, but the record reflects that Knight did argue this claim and introduced the

investigator’s report as evidence. Thus, we conclude that Knight did not waive his

argument that counsel was ineffective for failing to investigate his background and

possible sexual abuse.

This Court has repeatedly considered claims of ineffective assistance of

counsel during the penalty phase of a trial. See Brooks v. State, 175 So. 3d 204

(Fla. 2015); Diaz v. State, 132 So. 3d 93, 114 (Fla. 2013). In Diaz, this Court

reiterated that “trial counsel was not ineffective for failing to discover that the

defendant was sexually abused when the defendant and his family were not

forthcoming with the information, even though trial counsel was aware of the

defendant’s rough childhood.” Id. at 114. In Diaz, trial counsel testified at the

evidentiary hearing that Diaz and Diaz’s family were not forthcoming with

information about Diaz’s alleged sexual abuse. Id.

Here, we conclude that the postconviction court’s denial of Knight’s claim is

supported by competent, substantial evidence. At trial, counsel presented

testimony from Knight’s teachers, who testified regarding Knight’s family,

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Knight’s personality, and his bad temper when provoked. Knight, 76 So. 3d at

883-84. During the evidentiary hearing, counsel testified that while investigating

Knight’s background, counsel traveled to Jamaica, where Knight grew up. Trial

counsel also stated that he “spent a great deal of time” getting to know Knight’s

family and teachers. Trial counsel testified that Knight’s family was “very

cooperative” and that at no time during the many conversations with family and

friends, did Knight’s alleged sexual abuse come up. Further, counsel testified that

he did not recall ever being notified by Knight or others that Knight had been

sexually abused as a child. Counsel was shown an investigative report in which

Knight’s sister said that an aunt once told that her that Knight may have been

abused as a child. The report also stated that the same sister said she was reassured

by another family member that this was not true and no such claims had been

made. To this, counsel testified that he had never once heard from a family

member or Knight that there had been sexual abuse. Because we uphold the

postconviction court’s finding that Knight’s trial counsel was not deficient for

failing to discover this childhood abuse, we decline to address whether this failure

prejudiced Knight.

2. Mental Health Mitigation

Dr. Mittenberg was the defense’s mental health expert. He performed tests

on Knight and determined that Knight suffered from a brain abnormality. This

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determination was further supported by Knight’s PET scans. Knight’s trial counsel

testified at the evidentiary hearing that he was relying on Dr. Mittenberg’s

testimony to show that Knight’s brain abnormality impacted his behavior and to

prove the mitigator that on the night of the crime, Knight was unable to control his

behavior. However, during trial but before Dr. Mittenberg was scheduled to

testify, he notified trial counsel that he would not be testifying due to emotional

distress. Counsel later discovered from Dr. Mittenberg’s attorney that the

emotional distress was caused by his excessive drinking, which began because he

believed that he had committed a federal crime by inappropriately scoring Knight’s

Minnesota Multiphasic Personality Inventory (MMPI). A hearing was held, during

which Dr. Mittenberg asserted his Fifth Amendment privilege, and trial counsel

moved for a mistrial. Trial counsel’s motion was denied, but the court granted a

two-month recess to find another mental health expert. Trial counsel then hired

Dr. Arias, who was unable to replicate Dr. Mittenberg’s results and was unable to

confirm that Knight had a brain abnormality. During the penalty phase of trial,

trial counsel could have introduced Dr. Mittenberg’s pretrial deposition as well as

the report of his findings. However, at the evidentiary hearing, trial counsel

testified that he did not introduce either the deposition or the report due to the

flaws in Dr. Mittenberg’s analysis.

- 20 -
 Knight asserts that trial counsel failed to ensure that Knight had the

assistance of a competent mental health expert. Consequently, he argues that had

the jury been offered mitigating evidence that Knight suffered from a mental health

problem, Knight’s sentence would have been different. For the reasons below, we

conclude that there is competent, substantial evidence to support the postconviction

court’s finding that Knight failed to show that counsel’s performance was deficient

and prejudicial.

In Hoskins v. State, 75 So. 3d 250, 255 (Fla. 2011), this Court reiterated the

rule that “counsel’s entire investigation and presentation will not be rendered

deficient simply because a defendant has now found a more favorable expert.”

Hoskins also failed to show prejudice because “his experts in both the penalty

phase and postconviction hearing testified that Hoskins suffered from brain

damage. . . . The jury in the penalty phase, however, did not find such evidence

sufficient to overcome aggravation in this case.” Id. at 255 (quoting Card v. State,

992 So. 2d 810, 818 (Fla. 2008); see also Pham v. State, 177 So. 3d 955, 962 (Fla.

2015) (“As we have repeatedly stated, trial counsel is not deficient simply because

postconviction counsel can find a more favorable expert.”).

The postconviction court did not err in finding that Knight failed to prove

either prong of Strickland. Trial counsel was not deficient, as he provided Knight

with a mental health expert, Dr. Mittenberg, and when that expert was unable to

- 21 -
testify, trial counsel sought to find another expert to replicate Dr. Mittenberg’s

findings. Trial counsel reached out to another doctor, Dr. Arias, to perform the

same tests on Knight. Trial counsel testified at the evidentiary hearing that Dr.

Arias could not replicate Dr. Mittenberg’s results and, in fact, found the opposite.

Trial counsel was unable to find another doctor to administer more testing within

the two-month period. It is likely that Dr. Arias was unable to replicate Dr.

Mittenberg’s results because Dr. Mittenberg used an illegal method of scoring

Knight’s MMPI exam. Furthermore, Knight is unable to show prejudice.

Accordingly, we affirm the postconviction court’s findings.

Knight’s next argument is that trial counsel was deficient because he failed

to introduce at trial Dr. Mittenberg’s deposition, which would have shown that

Knight suffered from a brain abnormality. Trial counsel testified that he did not

introduce Dr. Mittenberg’s report to the jury because the deposition weakened Dr.

Mittenberg’s reliability, since he stated in the deposition that he may have a

conflict of interest, lied about the reliability of the scoring of Knight’s MMPI test,

and confessed that he had used an unlicensed scoring system. Additionally, even if

counsel was deficient, counsel’s actions were not prejudicial. Trial counsel

introduced evidence of Knight’s brain abnormality through Dr. Kotler’s testimony.

Even with some evidence of Knight’s brain abnormalities, the jury still

recommended that Knight be sentenced to death.

- 22 -
 Last, Knight argues that trial counsel was deficient because he did not

present Dr. Mittenberg’s report to the jury. Knight argues that if the jury had heard

Dr. Mittenberg’s results and opinions, the jury would have recommended a

different sentence. At the evidentiary hearing, trial counsel explained that he did

not want to introduce Dr. Mittenberg’s report because it would have prompted the

State to introduce its expert and call into question Dr. Mittenberg’s reliability. He

further explained that had Dr. Mittenberg been available to testify, he would have

called him as a witness, despite the fact that the State would have called its own

expert, because trial counsel believed that Dr. Mittenberg’s analysis would seem

sounder if he were on the stand. Without him, trial counsel felt that using the

report would do more harm than good. We conclude that trial counsel employed a

reasonable strategy that does not constitute deficient performance under Strickland.

Further, Knight was not prejudiced because the jury still heard evidence of

Knight’s alleged brain abnormality in the form of witness testimony.

C. Brady Violations

Next, Knight asserts that the State withheld (1) evidence regarding a

memorandum by Kevin Noppinger requesting a voluntary demotion, (2)

information regarding proof that newspapers existed in the cell area shared by

Knight and Steven Whitsett, who testified against Knight; and (3) information

- 23 -
regarding a false confession by Knight to another inmate, George Greaves. For the

reasons below, we conclude that none of Knight’s claims require relief.

To successfully raise a Brady violation claim, Brady v. Maryland, 373 U.S.

83 (1963), Knight must show that (1) the evidence was favorable to him, either

because it was exculpatory or impeaching; (2) the evidence was suppressed by the

State; and (3) the suppression of material evidence resulted in prejudice. Conahan

v. State, 118 So. 3d 718, 729 (Fla. 2013) (citing Strickler v. Greene, 527 U.S. 263,

281-82 (1999)). “To establish the materiality element of Brady, the defendant

must demonstrate ‘a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.’ ” Id. at 730

(quoting Guzman v. State, 868 So. 2d 498, 506 (Fla. 2003)). A “reasonable

probability” is defined as “sufficient to undermine confidence in the outcome.”

Johnson v. State, 135 So. 3d 1002, 1028 (Fla. 2014). This Court reviews a

postconviction court’s denial of this claim under a mixed standard: we defer to the

lower court’s factual findings that are supported by competent, substantial

evidence and review the application of law de novo. Id.

1. Noppinger Memorandum

Kevin Noppinger worked at the Broward County Sheriff’s Office and

conducted the DNA testing in Knight’s case. On July 29, 2002, before he testified

at Knight’s trial, Noppinger wrote a memorandum to his superior requesting a

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voluntary demotion. As the reason for his decision to request a demotion,

Noppinger’s memorandum cited to conflict with upper management related to his

request to improve testing to search the National DNA Index System (NDIS). This

memorandum was never discovered by trial counsel or turned over by the State.

Knight argues that this memorandum should have been turned over to the

defense because it would have been useful to impeach Noppinger and ultimately

would have lessened the confidence the jury had in the DNA testing procedures.

Conversely, the State argues that because Knight’s case was not an unsolved case

requiring use of the NDIS, Noppinger’s memorandum was not useful to Knight, let

alone prejudicial to the outcome at trial. We affirm the postconviction court’s

denial of this claim because there is competent, substantial evidence supporting the

conclusion that a Brady violation did not occur.

Knight is unable to prove the first prong of Brady. The Noppinger

memorandum would not have been useful to Knight because it was unrelated to

Knight’s case. Although the memorandum was produced prior to Noppinger’s

testimony at trial, the memorandum cites to management disagreements as the

cause for his request to be demoted. Notably, the State points out that Knight’s

case is not a cold case that requires the use of the national DNA database, and as

such, Noppinger’s memorandum is entirely unrelated to Knight’s case.

- 25 -
 Next, Knight has to demonstrate that the postconviction court erred in

finding that the State did not willfully or inadvertently withhold evidence. “To

comply with Brady, the individual prosecutor has a duty to learn of any favorable

evidence and to disclose that evidence to the defense.” Mordenti v. State, 894 So.

2d 161, 170 (Fla. 2004) (citing Allen v. State, 854 So. 2d 1255, 1259 (Fla. 2003)).

Knight argues that because the crime lab was working on behalf of the State, the

prosecutor should have known about the memorandum. Conversely, the State

argues that the prosecutor was never made aware of the memorandum. The record

is dispositive on this point.

However, even if Knight satisfied prongs one and two of Brady, he is unable

to show prejudice. The test for prejudice or materiality under Brady, is whether,

had the evidence been disclosed to the defense, there is a reasonable probability of

a different result. Guzman, 868 So. 2d at 508. We conclude that there is

competent, substantial evidence that the postconviction court did not err in denying

relief on this claim. Knight is unable to show how the memorandum specifically

reduces the credibility of the State’s DNA expert or how that impeachment

evidence would have produced a different result. Even if the memorandum had

been introduced for the limited purpose of impeaching Noppinger, the State

introduced other evidence showing Knight’s guilt that would have overcome the

little weight the memorandum might have had.

- 26 -
 2. Stephen Whitsett

Stephen Whitsett and Knight were housed together from June 29 to July 22,

2000, at the Broward County Jail. Knight, 76 So. 3d at 883. Whitsett testified that

Knight confessed to murdering the victims. Knight argues that the State

improperly withheld favorable impeachment evidence in the form of a jail log

showing that Knight was reprimanded for having newspapers in his cell. Knight

argues that if he had access to the media, so did Whitsett, and the media reports

may have tainted his testimony against Knight. The State argues that the log does

not indicate that Whitsett fabricated his testimony because the log showed that

Knight had the newspapers in his cell, which he did not share with Whitsett. Since

Knight fails to show that the log was favorable to him, that the State suppressed it,

or that suppression prejudiced him at trial, we conclude that a Brady violation did

not occur.

3. George Greaves’ False Statements

After Knight’s trial, Knight made a supplemental request for a police report

made by Detective Doug Williams. Knight’s request was granted, and the Coral

Springs Police Department turned over the report of Detective Williams’ interview

of George Greaves, an inmate at Broward County Jail who contacted crime

stoppers stating that he had information regarding Knight’s case. Ultimately, it

became apparent that Greaves was gleaning information from media reports.

- 27 -
Knight asserts that the State’s withholding of the report was a Brady violation, and

he should have been granted a new trial. Knight argues that if defense counsel had

known about the false statements made on the basis of accessible media reports,

counsel could have discredited Whitsett’s testimony. After the evidentiary

hearing, the postconviction court found that Knight failed to meet the Brady

standards. We conclude that there is competent, substantial evidence that the

postconviction court did not err in its findings.

Knight asserts that the police report would have been favorable to him

because it would have helped to discredit Whitsett’s testimony against Knight.

However, Knight fails to show how the fact that Greaves had access to media

reports that led to false statements would have discredited the detail-intensive

testimony that Whitsett provided. Further, from the record it is unclear whether the

prosecutor knew or should have known that the police report existed, and Knight

fails to discuss this point.

Moreover, Knight is unable to show prejudice because the State introduced

other evidence of Knight’s guilt, including the victim’s blood on the clothes Knight

was wearing the night of the crime and that Knight was in the apartment that

evening.

D. Constitutionality of Rule Regulating the Florida Bar 4-3.5(d)(4)

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 Knight challenges the constitutionality of rule 4-3.5(d)(4) of the Rules

Regulating the Florida Bar. We reject this claim because it is procedurally barred.

The Court has held that claims challenging the constitutionality of rule 4-

3.5(d)(4) must be raised on direct appeal. See Deparvine v. State, 146 So. 3d 1071,

1106 (Fla. 2014) (“Deparvine’s claim is both procedurally barred because it was

not raised on direct appeal and meritless.”); Troy v. State, 57 So. 3d 828, 841 (Fla.

2011) (“First, this claim is procedurally barred because it should have been raised

on direct appeal.”).

E. Constitutionality of Lethal Injection Protocol

Knight argues that Florida’s administration of the death penalty by lethal

injection constitutes cruel and unusual punishment, in violation of the Eight

Amendment. We conclude that Knight’s claim is unsuccessful because this Court

has repeatedly denied such claims. See, e.g., Banks v. State, 150 So. 3d 797, 800-

01 (Fla. 2014); Chavez v. State, 132 So. 3d 826, 831 (Fla. 2014).

III. HABEAS CORPUS CLAIMS

A. Ineffective Assistance of Counsel

Claims of ineffective assistance of appellate counsel are appropriately raised

in a petition of writ of habeas corpus. See Jackson v. State, 127 So. 3d 447, 476

(Fla. 2013). This Court has stated the following standard of review:

The alleged error must first be of “such magnitude as to constitute a
serious error or substantial deficiency falling measurably outside the

- 29 -
 range of professionally acceptable performance” and, second, the
deficiency in performance must have “compromised the appellate
process to such a degree as to undermine confidence in the correctness
of the result.” Id. (quoting Pope v. Wainwright, 496 So. 2d 798, 800
(Fla. 1986)). Further, “appellate counsel will not be deemed
ineffective for failing to raise a claim that is without merit.” Id.
(citing Freeman v. State, 761 So. 2d 1055, 1070 (Fla. 2000)).
Hayward v. State, 183 So. 3d 286, 327 (Fla. 2015).

1. Admission of Photograph at Trial

At trial, Knight’s trial counsel challenged the admission of a photograph as

duplicative of other photographs depicting similar images. We have held that a

challenge to a photograph is not preserved for appeal when trial counsel does not

state specific grounds for an objection. In Doorbal v. State, 983 So. 2d 464 (Fla.

2008), we concluded that trial counsel did not properly preserve a similar issue for

appeal because trial counsel objected to the admission of a picture on the basis that

it was “duplicative.” Id. at 498-99. We stated that trial counsel failed to preserve

the issue because trial counsel did not challenge the photograph for being

“gruesome,” as he did in his postconviction case. Id. at 499. Similarly, Knight’s

trial counsel did not preserve the issue for appeal. As such, Knight’s appellate

counsel was not ineffective for failing to present a claim that was not properly

preserved.

2. Denial of Motion for Mistrial

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 Knight argues that appellate counsel was ineffective for failing to appeal the

trial court’s denial of a mistrial following Officer Mocny’s testimony concerning

Knight’s prearrest statements. When reviewing claims of ineffective assistance of

appellate counsel,

“[t]he criteria for proving ineffective assistance of appellate counsel
parallel the Strickland standard for ineffective trial counsel.” Wilson
v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985). Thus, the Court
must consider

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

Teffeteller v. Dugger, 734 So. 2d 1009, 1027 (Fla. 1999) (quoting Suarez v.
Dugger, 527 So. 2d 190, 192-93 (Fla. 1988)).

Mungin, 932 So. 2d at 1003.

Knight asserts that Officer Mocny testified on the topic of Knight’s right to

remain silent, thus violating Knight’s constitutional rights. We reject Knight’s

argument because Officer Mocny’s testimony of her conversation with Knight did

not violate Knight’s constitutional rights. Accordingly, appellate counsel was not

ineffective for raising a meritless claim.

This Court has repeatedly recognized the concept that courts must prohibit

all evidence or argument that may be interpreted by the jury as a comment on the

- 31 -
defendant’s right to remain silent. Brown v. State, 197 So. 3d 569 (Fla. 3d DCA

2015) (citing State v. Smith, 573 So. 2d 306 (Fla. 1990)).

Based on its interpretation of article I, section 9 of the Florida
Constitution, the court in Hoggins held that a prosecutor may not
comment upon or attempt to impeach a defendant with his or her post-
arrest, pre-Miranda[2] or post-Miranda silence. This prohibition is
premised upon the generally accepted principle that a defendant does
not waive his or her right to remain silent at the time of arrest by
testifying in his or her own defense at trial. The same test applies
regardless of whether the evidence of post-arrest silence is admitted in
the state’s case in chief or during impeachment of the defendant: “If
the comment is fairly susceptible of being construed by the jury as a
comment on the defendant’s exercise of his or her right to remain
silent, it violates the defendant's right to silence.” Hoggins, 718 So.
2d at 769.

Robbins v. State, 891 So. 2d 1102, 1106 (Fla. 5th DCA 2004); see also Chamblin

v. State, 994 So. 2d 1165, 1168 (Fla. 1st DCA 2008) (concluding that “[t]he

Florida Constitution prohibits prosecutorial comment on a defendant’s silence at

the time of his arrest, prior to the administration of his Miranda warnings, as well

as attempts to impeach the defendant therewith.”).

The record shows that Mocny’s testimony referenced Knight’s statements

before he was arrested regarding his whereabouts on the night of the crime and

whether he had a key to Stephens’ apartment. Mocny’s testimony did not

2. Miranda v. Arizona, 384 U.S. 4336 (1966).

- 32 -
comment on Knight’s silence. Because this claim would have been meritless on

direct appeal, we conclude that Knight’s appellate counsel was not ineffective.

3. Hurst v. Florida

In two rounds of supplemental briefs, Knight argues that he was

unconstitutionally sentenced to death because his penalty phase jury did not find

all of the facts necessary to impose the death penalty. We agree. See Hurst v.

Florida, 136 S. Ct. 616, 624 (2016). Because Knight’s death sentence became final

in 2012, Hurst v. Florida applies retroactively to him. See Mosley v. State, No.

SC14-436, 2016 WL 7406506, at *25 (Fla. Dec. 22, 2016).

Knight also asks that we vacate his death sentence and sentence him to life

imprisonment pursuant to section 775.082(2), Florida Statutes, or alternatively, that

we remand for a new penalty phase proceeding. We decline to do either. First, we

recently held that section 775.082(2), Florida Statutes, does not mandate the

imposition of a life sentence in the event of a Hurst v. Florida violation. See Hurst

v. State, 202 So. 3d 40, 63-66 (Fla. 2016). We also decline to vacate Knight’s

death sentence because we find that this is one of the rare cases in which the Hurst

v. Florida violation is harmless beyond a reasonable doubt. See Davis v. State, 41

Fla. L. Weekly S528, S539-40 (Fla. Nov. 18, 2016).

In Davis, this Court held that the Hurst v. Florida error was harmless: “With

regard to Davis’s sentences, we emphasize the unanimous jury recommendations

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of death. These recommendations allow 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.” Id. at S539 (emphasis omitted).

Knight’s jury likewise recommended a death sentence by a unanimous twelve-to-

zero vote. Knight’s jury received substantially the same standard jury instruction

as we cited in Davis, ensuring that the jury “determine[d] whether sufficient

aggravators existed and whether the aggravation outweighed the mitigation before

it . . . recommend[ed] a sentence of death.” Id. (citing Fla. Std. Jury Instr. (Crim.)

7.11). As with the jury in Davis, Knight’s “jury was presented with evidence of

mitigating circumstances and was properly informed that it may consider

mitigating circumstances that are proven by the greater weight of the evidence.”

Id. (citing Fla. Std. Jury Instr. (Crim.) 7.11). As in Davis, Knight’s “jury was not

informed that the finding that sufficient aggravating circumstances outweighed the

mitigating circumstances must be unanimous, and . . . the jury did, in fact,

unanimously recommend death.” Id. (citing Fla. Std. Jury Instr. (Crim.) 7.11).

To be sure, Knight’s jury and the Davis jury were not identically instructed.

For instance, the Davis jury “was instructed that it was not required to recommend

death even if the aggravators outweighed the mitigators,” while Knight’s jury was

not. Id. (citing Fla. Std. Jury Instr. (Crim.) 7.11). Nonetheless, we believe that

Knight’s jury received substantially the same critical instructions as Davis’s jury,

- 34 -
allowing us to conclude beyond a reasonable doubt that here, as in Davis, “the jury

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

the unanimous recommendations.” Id.

Finally, as in Davis, “the egregious facts of this case” provide “[f]urther

support[] [for] our conclusion that any Hurst v. Florida error here was harmless.”

Id. at 539-40. In a violent and bloody struggle, Knight murdered a mother and her

four-year-old daughter in an argument about whether Knight had to move out of

the mother’s apartment. Knight strangled and repeatedly stabbed the mother with

multiple knives in her bedroom in the middle of the night while the daughter was

present. The mother could not yell for help because Knight’s attack had destroyed

her larynx. The mother suffered, still conscious, through the attack for at least ten

minutes following the fatal wounds. She tried and failed to escape. Knight also

attempted to strangle and repeatedly stabbed the daughter. Knight’s stabbings

caused the daughter’s lungs to fill with blood, and she essentially drowned in her

own blood. Both victims died gruesome, painful deaths.

The trial court found two statutory aggravating circumstances for the
murder of [the mother]: (1) a previous conviction of another violent
capital felony, and (2) HAC. The court also found three statutory
aggravating circumstances for the murder of [the daughter]: (1) a
previous conviction of another violent capital felony, (2) HAC, and
(3) the victim was under twelve years of age.

Knight, 76 So. 3d at 890. As we have repeatedly noted, “[t]he HAC and prior

violent felony aggravators have been described as especially weighty or serious

- 35 -
aggravators set out in the sentencing scheme.” Hildwin v. State, 84 So. 3d 180,

190 (Fla. 2011).

What we said in Davis is equally true here:

Here, the jury unanimously found all of the necessary facts for the
imposition of death sentences by virtue of its unanimous
recommendations. In fact, although the jury was informed that it was
not required to recommend death unanimously, and despite the
mitigation presented, the jury still unanimously recommended that
[the defendant] be sentenced to death . . . . The unanimous
recommendations here are precisely what we determined in Hurst[v.
State] to be constitutionally necessary to impose a sentence of death.

Davis, 41 Fla. L. Weekly at S540. Accordingly, we hold that the Hurst v. Florida

violation in Knight’s case was harmless beyond a reasonable doubt. See id. As in

Davis, the Hurst v. Florida violation here does not entitle Knight to a new penalty

phase.

IV. CONCLUSION

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

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

It is so ordered.

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

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

- 36 -
QUINCE, J., concurring in part and dissenting in part.

I concur with my colleagues that Knight is not entitled to relief on the

majority of his claims, however, I cannot agree with the majority’s conclusion that

the Hurst error in this case is harmless beyond a reasonable doubt. Because I

would find that the Hurst error in this case requires a new penalty phase, I dissent.

I agree with Senior Justice Perry’s statement that “[t]he majority’s

reweighing of the evidence . . . to support its conclusion” contravenes our decision

in Hurst v. State, 202 So. 3d at 49, and is the conduct the United States Supreme

Court reproached in Hurst v. Florida, 136 S. Ct. at 622.

Here, although the jury unanimously recommended a death sentence, we

cannot know that the jury found each aggravating factor unanimously. Because

one of the aggravators found by the trial court for each murder in this case—that

the murder was especially heinous, atrocious or cruel—requires specific factual

findings, Hurst requires that the jury, not the trial judge, make that determination.

The jury made no such determination in Knight’s case. Accordingly, I would

vacate Knight’s death sentence and remand for resentencing. See Hurst, 202 So.

3d at 69.

PERRY, Senior Justice, concurs.

PERRY, Senior Justice, concurring in part and dissenting in part.

- 37 -
 While I concur in most respects with the majority’s decision, I cannot agree

with the majority’s analysis that the Hurst v. Florida, 136 S. Ct. 616 (2016), error

was harmless beyond a reasonable doubt. To the extent that I would not find the

error harmless beyond a reasonable doubt, I dissent. I likewise dissent from the

majority’s determination that section 775.082(2), Florida Statutes, is inapplicable

to this case: I would follow the Legislature’s command to impose a sentence of life

imprisonment.

In Hurst v. State, 202 So. 3d 40, 69 (Fla. 2016), we declined to speculate

why the jurors voted the way they did; yet, here, the majority “conclude[s] beyond

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

were sufficient aggravators to outweigh the mitigating factors.” Majority op. at 33

(quoting Davis v. State, 41 Fla. L. Weekly S528, S539 (Fla. Nov. 18, 2016). Even

though the jury unanimously recommended the death penalty, whether the jury

unanimously found each aggravating factor remains unknown.

The majority’s reweighing of the evidence—particularly the gruesome facts

of the victims’ deaths—to support its conclusion is not an appropriate harmless

error review. The harmless error review is not a sufficiency of the evidence test,

and the majority’s analysis should instead focus on the effect of the error on the

trier of fact. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). By ignoring the

record and concluding that all aggravators were unanimously found by the jury, the

- 38 -
majority is engaging in the exact type of conduct the United States Supreme Court

cautioned against. See Hurst v. Florida, 136 S. Ct. at 622.

Because the harmless error review is neither a sufficiency of the evidence

review nor “a device for the appellate court to substitute itself for the trier-of-fact

by simply weighing the evidence,” DiGuilio, 491 So. 2d at 1139, I cannot conclude

beyond a reasonable doubt that the error here was harmless, and I would vacate

Knight’s unconstitutional death sentence. Rather than remand for resentencing,

however, I would apply the remedy that the Legislature explicitly provided: a

sentence of life imprisonment. See § 775.082(2), Fla. Stat. (2016).

As I have previously explained, the Legislature has decided that the

appropriate remedy “[i]n the event the death penalty in a capital felony is held to

be unconstitutional by the Florida Supreme Court or the United States Supreme

Court” is for “the court having jurisdiction over a person previously sentenced to

death for a capital felony shall cause such person to be brought before the court,

and the court shall sentence such person to life imprisonment.” § 775.082(2), Fla.

Stat.; see also Hurst v. State, 202 So. 3d at 75-76 (Perry, J., concurring in part and

dissenting in part). The death penalty in Knight’s capital felony has been held

unconstitutional by this Court. See majority op. at 32. Accordingly, Knight is

entitled to the clear and unambiguous statutory remedy that the Legislature has

specified: a sentence of life imprisonment.

- 39 -
 The majority disagrees. See majority op. at 33 (citing Hurst v. State, 202 So.

3d at 63-66). But the plain language of the statute does not rely on a specific

amendment to the United States Constitution, nor does it refer to a specific

decision by this Court or the United States Supreme Court. Further, it does not

contemplate that all forms of the death penalty in all cases must be found

unconstitutional. Instead, the statute uses singular articles to describe the

circumstances by which the statute is to be triggered. Indeed, the statute repeatedly

references a singular defendant being brought before a court for sentencing to life

imprisonment. I consequently cannot agree that the statute was intended as a fail-

safe mechanism for when this Court or the United States Supreme Court declared

that the death penalty was categorically unconstitutional. Cf. Hurst v. State, 202

So. 3d at 66.

Knight’s death sentence is unconstitutional. That constitutional violation is

not harmless beyond a reasonable doubt. The remedy for that violation is a

sentence of life imprisonment. To the extent that the majority finds harmless error

and declines to order a sentence of life imprisonment, I respectfully dissent.

Two Cases:

An Appeal from the Circuit Court in and for Broward County,
Eileen M. O’Connor, Judge - Case No. 062001CF014055A88810
And an Original Proceeding – Habeas Corpus

- 40 -
Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Todd
Gerald Scher, Assistant Capital Collateral Regional Counsel, Southern Region, and
Jessica Leigh Houston, Staff Attorney, Fort Lauderdale, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa-Marie Krause
Lerner, Assistant Attorney General, West Palm Beach, Florida,

for Appellee/Respondent

- 41 -