Citations
- 622 F. Supp. 2d 1169
Full opinion text
ORDER
SUSAN C. BUCKLEW, District Judge.
This cause is before the Court on Petitioner Patrick Hannon’s amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 13) (hereinafter “petition”). Hannon is a Florida prisoner under sentence of death.
Hannon filed a memorandum in support of the petition. (Doc. No. 10) (hereinafter “memo”). Respondent filed a response to the petition (Doc. No. 19), and Hannon filed a reply to the response. (Doc. No. 24). The petition was timely-filed and venue in this Court is proper because Hannon was tried and sentenced in Hillsborough County, Florida, within this Division of the Middle District of Florida.
Upon due consideration of each of Han-non’s claims, the Court has determined that none have merit and that the petition should be DENIED.
BACKGROUND
On March 27, 1991, Patrick Hannon and Ronald Richardson were charged by superseding indictment with the premeditated murders of Brandon Snider (Count One) and Robert Carter (Count Two). (App. A14/1683-1685). Due to their differing speedy trial expiration dates and Richardson’s request for a continuance, their cases were ultimately severed for trial. Hannon’s jury trial began July 15, 1991 and concluded July 24, 1991. (App. A13/1634; A14/1657-1658; 1783-1784; 1792).
On direct appeal, the Florida Supreme Court set out the pertinent facts:
Brandon Snider, a resident of Tampa, went to Indiana to visit relatives. While there, he went to the home of Toni Acker, a former girlfriend, and vandalized her bedroom. On January 9, 1991, Snider returned to Tampa. On January 10, 1991, Hannon, Ron Richardson, and Jim Acker went to the apartment where Snider and Robert Carter lived. Snider opened the door and was immediately attacked by Acker, who is Toni Acker’s brother. Acker stabbed Snider multiple times. When Acker was finished, Han-non cut Snider’s throat. During the attack, Snider’s screams drew the attention of his neighbors. They also drew the attention of Carter, who was upstairs. Hearing the screams, Carter came downstairs and saw what was happening. He then went back upstairs and hid under his bed. Hannon and Acker followed Carter upstairs. Then Hannon shot Carter six times, killing him.
In July 1991, Hannon was brought to trial for the murders of Snider and Carter. During the trial, Richardson reached an agreement with the State. He pled guilty to being an accessory after the fact and testified against Han-non. Hannon was found guilty of both murders. After a penalty proceeding, the jury unanimously recommended death. The trial court found the following aggravating circumstances applicable to both murders: (1) previous conviction of a violent felony (the contemporaneous killings); (2) the murders were committed during the commission of a burglary; and (3) the murders were heinous, atrocious, or cruel. Sec. 921.141(5)(a), (d), and (h), Fla. Stat. (1991). As to Carter, the court found the additional aggravating factor that the murder was committed to avoid or prevent a lawful arrest. Sec. 921.141(5)(e), Fla. Stat. (1991). In mitigation, the court considered testimony from Hannon’s mother and father that Hannon was not a violent person. Also, the court considered the fact that Hannon’s original co-defendant, Richardson, was no longer facing the death penalty. The trial court found that the aggravating factors outweighed the mitigating factors and followed the jury’s recommendation, imposing separate death sentences on Hannon for the murders of Snider and Carter.
Hannon v. State, 638 So.2d 39, 41 (Fla. 1994) (footnotes omitted).
On direct appeal, the Florida Supreme Court affirmed Hannon’s convictions and death sentences. See Hannon v. State, 638 So.2d 39 (Fla.1994), decided June 2, 1994, as revised on denial of rehearing, September 8, 1994. Hannon then filed a petition for writ of certiorari in United States Supreme Court. Review was denied on February 21, 1995. Hannon v. Florida, 513 U.S. 1158, 115 S.Ct. 1118, 130 L.Ed.2d 1081 (1995). (App. B1-B3).
Next, Hannon filed an interlocutory appeal related to DNA testing. See FSC Case No. SC01-2774. (App. C2). On April 17, 2002, the Florida Supreme Court dismissed this appeal. Hannon v. State, 817 So.2d 847 (Fla.2002) (citing Trepal v. State, 754 So.2d 702 (Fla.2000)).
On March 17, 1997, Hannon filed a motion for postconviction relief in the trial court, raising 34 grounds for relief. Han-non filed an amended motion on April 10, 2000, raising 21 grounds for relief. (App. D3/385-526).
The state trial court held a Huff hearing on November 16, 2001. See Huff v. State, 622 So.2d 982 (Fla.1993). On that same day, the state trial court issued an order reflecting its determination that an evidentiary hearing was required to address claims IV (in part), V (in part), IX, X (in part), XVI (in part), XIX (in part), and XXI of Hannon’s motion for postconviction relief. The evidentiary hearing was conducted by the state trial court on February 18, 2002, and June 21, 2002.
The state trial court entered two comprehensive written orders addressing the postconviction claims. The first order, which summarily denied postconviction relief, in part, was 102 pages in length, and included excerpts from the trial record. (App. D6/1073-1174). Following the evidentiary hearing, on February 3, 2003, the state trial court issued its final written order denying postconviction relief. (App. D10/1998-2043).
Hannon appealed the denial of postconviction relief in FSC Case Number SC03893. The Florida Supreme Court affirmed the state trial court’s denial of postconviction relief in Hannon v. State, 941 So.2d 1109 (Fla.2006), decided August 31, 2006, rehearing denied by Hannon v. State, 2006 Fla. LEXIS 2627 (Fla., Oct. 27, 2006).
STANDARD OF REVIEW
Because Hannon filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir.2003); Maharaj v. Sec’y for Dept. of Corrections, 304 F.3d 1345, 1346 (11th Cir.2002). The ultimate issue with respect to each claim is whether the Florida Supreme Court’s resolution of the claim was “contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Robinson v. Moore, 300 F.3d 1320 (11th Cir.2002); Van Poyck v. Florida Department of Corrections, 290 F.3d 1318 (11th Cir.2002). The standard Hannon must meet could not be higher; it is not enough that the state court “got it wrong.” Hannon must show that the result of the state court’s decision was objectively unreasonable. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citing Williams v. Taylor, supra).
In the event constitutional error is found in a habeas proceeding, the relevant harmless error standard is set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The test is “less onerous” then the harmless error standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). “The test is whether the error had substantial and injurious effect or influence in determining the jury’s verdict. Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’” Brecht, 507 U.S. at 637, 113 S.Ct. 1710. Although no constitutional error has occurred in Han-non’s case, any .possible error would be harmless beyond any reasonable doubt based on the facts and the record herein.
No evidentiary hearing is required because none of Hannon’s claims turn on any unresolved issue of fact; all involve issues of law argued on the basis of the existing record.
DISCUSSION
Ground One
Mr. Hannon was denied the effective assistance of counsel due to trial counsel’s failure to investigate and present mitigation and due to his failure to obtain adequate mental health assistance at the penalty phase of his capital trial in violation of the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Hannon contends that trial counsel was ineffective in- allegedly failing to investigate and present additional mitigation, including mental health experts, at the penalty phase. See, Amended Petition at 5 (Doc. 13: Memo at 12-30) (Doc. 10).
Hannon’s ineffective assistance of counsel (IAC) penalty phase claims were the subject of an evidentiary hearing in the state trial court and were rejected on both the prejudice and deficiency prongs under Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Because the state court adjudicated Hannon’s IAC/penalty phase claims on the merits, this Court may grant relief only if the state court’s adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).
In order for Hannon to obtain federal habeas corpus relief, he must demonstrate that his case satisfies the requirements set forth in either § 2254(d)(1) or § 2254(d)(2). In addition, it is the petitioner’s burden under § 2254(e) to overcome the state court’s fact finding by “clear and convincing evidence.” For the following reasons, Hannon has not demonstrated any basis for federal habeas relief under AEDPA.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), establishes the test that governs claims of ineffective assistance of counsel, ie., the “clearly established Federal law” relevant to this case under 28 U.S.C. § 2254(d). See, Alderman v. Terry, 468 F.3d 775, 791 (11th Cir.2006). In rejecting Hannon’s IAC/penalty phase claims, the Florida Supreme Court evaluated Hannon’s claims under Strickland, and stated, in its comprehensive analysis:
II. Ineffective Assistance of Counsel at the Penalty Phase
To succeed in an ineffective assistance of penalty phase counsel claim, the claimant must demonstrate that counsel performed deficiently and that such deficiency prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Pursuant to Strickland, trial counsel has an obligation to conduct a reasonable investigation into mitigation. See id. at 691, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Counsel’s decision to not present mitigation evidence may be a tactical decision properly within counsel’s discretion. See Brown v. State, 439 So.2d 872, 875 (Fla.1983) (“The choice by counsel to present or not present evidence in mitigation is a tactical decision properly within counsel’s discretion.”); Valle v. State, 705 So.2d 1331, 1335 n. 4 (Fla. 1997) (same); Gorham v. State, 521 So.2d 1067, 1070 (Fla.1988) (same). When evaluating claims that counsel was ineffective for failing to investigate or present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness “deprived the defendant of a reliable penalty phase proceeding.” Asay v. State, 769 So.2d 974, 985 (Fla.2000) (quoting Rutherford v. State, 727 So.2d 216, 223 (Fla.1998)). Further, as the United States Supreme Court recently stated in Wiggins:
[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.... [A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments..
...... [0]ur principal concern in deciding whether [counsel] exercised “reasonable professional judgmen[t]” is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable. In assessing counsel’s investigation, we must conduct an objective review of their [sic] performance, measured for “reasonableness under prevailing professional norms,” which includes a context-dependent consideration of the challenged conduct as seen “from counsel’s perspective at the time.”
539 U.S. at 521-23, 123 S.Ct. 2527 (citations omitted) (fifth alteration in original) (first emphasis supplied) (quoting Strickland, 466 U.S. at 688-89, 691, 104 S.Ct. 2052).
Contrary to the critical dissenting view, the counsel provided was neither standardless nor empty. As evidence of trial counsel’s deficiency, Hannon asserts that trial counsel advanced an invalid lingering doubt argument during the penalty phase, hopeful that the jury would believe Hannon did not have the type of character to be involved in these crimes, and that trial counsel failed to investigate and present mitigation during the penalty phase. Specifically, Hannon asserts that trial counsel was ineffective in pursuing the innocence/alibi defense even after Hannon’s alibi, Richardson, had changed his testimony to assist the State at the end of the trial and the jury had found Hannon guilty.
The nature of our bifurcated system in Florida places an onerous burden on death penalty counsel to be informed when making strategic and tactical decisions throughout both the guilt and penalty phases. Such is neither standard-less nor an empty promise. We require and encourage death penalty counsel to conduct reasonable investigations as are appropriate to ensure that he or she can properly counsel and inform a defendant with regard to the nature and extent of the mitigation that may be viable in the case. However, not every death penalty investigation will find mitigating evidence, and an investigation into mitigation will run the gamut from discovering latent superficial mental disabilities to very open and evident brain damage. In addition, Strickland does not require defense counsel to present mitigating evidence at sentencing in every case. See Wiggins, 539 U.S. at 533, 123 S.Ct. 2527. However, if defense counsel decides not to investigate mitigation, that “particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Wiggins, 539 U.S. at 521-22, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052); see also Rose v. State, 675 So.2d 567, 572 (Fla.1996) (stating that in evaluating the competence of counsel “the actual performance of counsel in preparation for and during the penalty phase proceedings, as well as the reasons advanced therefor,” must be considered).
Investigating and presenting mental health mitigation is not always but certainly at times may be inconsistent with presenting an innocence defense during the penalty phase. However, failing to investigate and present mental health mitigation is not the sine qua non of ineffective assistance of counsel. We therefore must determine whether trial counsel’s particular decision in this case not to investigate and develop mitigation was reasonable under the circumstances. See Wiggins, 539 U.S. at 521-22, 123 S.Ct. 2527. Based on the record in this case, Hannon has not and cannot demonstrate that his trial counsel was deficient during the penalty phase because, under these circumstances, Hannon’s trial counsel at the time had specific tactical and calculated reasons for the strategy adopted. Counsel did not default in his obligation, as characterized by the dissent, but strategically adopted a different path. Further, the path taken was one with which Hannon agreed and which he fully supported. [n8]
n8 The dissent asserts that when trial counsel initially stated that he would not be offering evidence in mitigation, the trial court “directed [counsel] to reconsider” his decision, see dissenting op. at 1158; however, the trial court merely gave Hannon’s trial counsel overnight to review pertinent case law and “thoroughly discuss whether or not the defendant should put on mitigating evidence.” With regard to the initial decision not to present mitigation, trial counsel stated, ‘We have discussed it, but I was expressing [Hannon’s] wishes. I will continue to discuss it.” (Emphasis supplied.) Even the trial judge expressly noted that “[i]f Mr. Hannon knowingly and intelligently waives his right to present mitigating evidence or circumstances, he has that right under the law.”
In Koon v. Dugger, 619 So.2d 246, 250 (Fla.1993), this Court acknowledged the “problems inherent in a trial record that does not adequately reflect a defendant’s waiver of his right to present any mitigating evidence” and announced the following prospective rule to be applied in such situations:
When a defendant, against his counsel’s advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant’s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.
Id. at 250. Hannon’s trial preceded this Court’s decision in Koon. Therefore, counsel could not benefit from the aforementioned rule in memorializing on the record that Hannon had knowingly and voluntarily waived the presentation of any type of mitigation that would detract from Hannon’s assertion that he was not at the crime scene and he did not possess the type of character to commit the murders.
At the postconviction evidentiary hearing, trial counsel testified that Han-non, as well as Hannon’s parents, adamantly maintained Hannon’s innocence throughout the guilt and penalty phases. Trial counsel therefore decided to focus on obtaining an acquittal during the guilt phase, arguing that Hannon was totally innocent and not present at the crime scene, and then only if necessary proceed to establish during the penalty phase that Hannon did not have the type of character to commit such murders. Trial counsel testified that Hannon assisted in every aspect of his defense, [n9] including testifying in his own defense during the guilt phase, and agreed to continue with the presentation of the innocence theme defense during the penalty phase, even after he was convicted. Trial counsel stated that he explained mitigation to Hannon and advised Hannon that he could change his position and admit his involvement in the murders during the penalty phase, but Hannon said he did not wish to do so. Cf. Cummings-El v. State, 863 So.2d 246, 252 (Fla.2003) (concluding that counsel was not ineffective in limiting mitigation investigation where defendant was adamant about not wanting his family to “beg for his life,” and the defendant understood the nature and consequences of his decision not to present mitigating evidence). [nlO]
n9 Trial counsel testified that Hannon understood the jury process and his rights in the criminal proceedings, that he paid attention to the progress of his case, and that he exhibited no signs of mental impairment.
nlO Hannon’s decision not to present evidence in mitigation is demonstrated by Mrs. Hannon stating as she testified at the penalty phase that Hannon “didn’t want us to [testify] because he knows how badly we’re hurting.”
Trial counsel further testified that he had discussions with Hannon’s parents and his sister Moreen, and he sought their input with regard to Hannon’s defense. According to counsel, Hannon’s parents and Moreen also agreed with a penalty phase strategy of character and to continue maintaining Hannon’s innocence. Trial counsel stated that Han-non’s parents “continued to believe their son did not and could not do this.” Therefore, the dissent’s assertion that counsel “blindly follow[ed] his client’s desire to limit mitigation,” see dissenting op. at 1161, is unsupported by the postconviction record. Rather, counsel’s adoption of a strategy that focused on Hannon’s character was the product of discussions with not only Hannon, but with his most intimate family members. According to counsel, Hannon and his family agreed not to pursue a strategy where, after proceeding during the guilt phase on the theory that Hannon was not present at the time of the murders, Hannon at the penalty phase would suddenly admit he committed the crimes and begin offering evidence in mitigation of the murders. Counsel stated that he, Hannon, and his family “decided that [changing tactics] wasn’t what it was going to be because Mr. Hannon was adamant. I can’t tell you how much he was adamant he wasn’t there.” Neither Hannon nor any of his family members suggested any mitigation matters for the penalty phase. Rather, Hannon, his parents, and his sister consistently urged the strategy that counsel ultimately adopted and pursued; that is, “keepfing] a consistent defense and a consistent position.”
Trial counsel further testified that he was fully aware that lingering doubt was not a statutory mitigator. However, trial counsel stated that providing evidence during the penalty phase that Hannon did not have the type of character to commit the murders, and continuing to support the underlying innocence defense, had a real and practical jury effect that would mitigate in favor of the jury sparing Hannon’s life, [nil] It was the character and demeanor of Hannon that trial counsel advanced in a very practical way. Even an expert in capital cases presented by Hannon during the postconviction evidentiary hearing admitted that the consistent approach had a practical and real impact factor in the juror’s vote in terms of whether to vote for life imprisonment, notwithstanding that lingering doubt is not a recognized and valid statutory mitigating factor,
nil Contrary to the dissent’s assertion, we have not “transformed counsel’s continuing innocence strategy into a lingering doubt strategy” or a “reasonable doubt” strategy. Dissenting op. at 1158. We reiterate that counsel’s strategy was to demonstrate to the jury that Hannon in no way possessed the type of character to commit the crimes. Counsel also testified at the postconviction hearing that it was his strategy to persuade the jurors to recommend life over death by virtue of the fact that Han-non, who had already been found guilty of two murders, was not “begging for his life” but instead addressed and emphasized demeanor and character to continue to insist that he did not and could not commit the crimes.
The record supports trial counsel’s postconviction testimony that a defense based on the notions that Hannon did not commit the murders and was not even the type of person who could have committed the murders was developed from the beginning of trial. Even during the guilt phase, trial counsel presented Rusty Horn and Paul Kilgore to show that Hannon did not have the type of character to commit the murders and moved all of their guilt phase testimony into evidence during the penalty phase. Horn, Hannon’s roommate and supervisor at his stucco job, described Hannon as a “teddy bear” type who had a reputation for nonviolence. Kilgore, another of Hannon’s roommates, testified that Hannon was a nice person. Trial counsel decided it was not necessary, and likely would not have made any difference, to recall Horn and Kilgore during the penalty phase to reiterate that to which they had already testified. The record also demonstrates that trial counsel presented mitigation during the guilt phase through Hannon, who testified that he attended high school through the eleventh grade; wanted to work, earn money, and learn a trade; was a hard worker; obtained a job with Rusty Horn where he received an extra fifty cents an hour if he did not drink; worked at a gas station; delivered auto parts and pizza; and visited his sister’s house on Christmas and celebrated with his nieces and nephews.
Trial counsel presented further evidence that Hannon did not have the type of character to commit these murders through the penalty phase testimony of Toni Acker and Hannon’s mother and father. Acker testified that Hannon was “a good-time guy, carefree, liked to have fun”; that Hannon had cared for her child; and that Hannon was incapable of conduct such as these murders. Han-non’s mother testified that Hannon had never hurt anyone in his entire life and that Hannon could not hurt any animal or person. Hannon’s mother also pleaded with the jury, “Please, you’ve taken away his freedom for something he didn’t do. Don’t take away his life. Give us a chance, please, to prove that he never did anything like this. He couldn’t.” Hannon’s father testified that Hannon had never been a violent person, and that he was always a “teddy bear.” Hannon’s father also testified that “[Hannon] says he’s innocent. I believe he’s innocent, and I think he ought to be given a chance to prove that he is innocent. That’s it.” The record supports trial counsel’s postconviction evidentiary hearing testimony that his penalty phase strategy was to establish that Hannon did not have the type of character to commit the murders.
Contrary to the dissent’s misdirected charge, we have not failed to recognize our legal precedent with regard to “lingering doubt” and have expressly factored that consideration into our decision today. This Court has repeatedly observed that residual doubt is not legally appropriate as a mitigating circumstance, see, e.g., Darling v. State, 808 So.2d 145, 162 (Fla.2002), and has consistently concluded that it is not error to deny an instruction that would allow a jury to consider lingering doubt or exclude evidence of lingering doubt during the penalty phase. See Duest v. State, 855 So.2d 33, 40 (Fla.2003) (concluding that the trial court did not err in denying an instruction that the jury could consider lingering doubt in rendering its advisory sentence).
Although this Court has previously rejected an argument that trial counsel was ineffective in the penalty phase for failing to argue lingering doubt as a mitigating circumstance, see Trepal v. State, 846 So.2d 405, 434 (Fla.2003), it has never expressly determined that trial counsel is per se ineffective for pursuing the practical impact that character evidence may create jury doubt and the impact it may have during the penalty phase. But see Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 787 (11th Cir. 2003) (“Parker’s attorneys were not deficient in focusing their time and energy on acquittal at trial and focusing their arguments at sentencing on residual doubt instead of other forms of mitigation.” (parentheses omitted)). Further, contrary to the dissent’s claim that we are ignoring United States Supreme Court case law, see dissenting op. at 1157, that Court has never resolved the issue advanced by the dissent either, not even in its most recent decision touching upon lingering doubt. See Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006). [nl2] However, trial counsel’s strategy in the instant case of presenting evidence to demonstrate that Hannon did not have the type of character to commit the murders was a tactical method used by trial counsel in an attempt to sway the jury’s recommendation in favor of life over death. See Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (concluding that the Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character that the defendant proffers as a basis for a sentence less than death). [nl3] It is certainly logical that a jury of laypersons is less likely to recommend death if they have some lingering concerns about guilt than if there is absolute certainty on the issue of guilt. See Lockhart v. McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (“[J]urors who decide both guilt and penalty are likely to form residual doubts or ‘whimsical’ doubts ... about the evidence so as to bend them to decide against the death penalty. Such residual doubt has been recognized as an extremely effective argument for defendants in capital cases.”) (quoting Grigsby v. Mabry, 758 F.2d 226, 247-48 (8th Cir.1985) (Gibson, J., dissenting)); Parker, 331 F.3d at 787-88 (“Creating lingering or residual doubt over a defendant’s guilt is not only a reasonable strategy, but is perhaps the most effective strategy to employ at sentencing.”) (internal quotation marks omitted). The dissent refuses to even consider that lawless conduct related to illegal drugs or alcohol at times may even itself operate to be aggravating in the eyes of a lay jury rather than mitigating, as the dissent portrays those factors present. See generally Cummings-El, 863 So.2d at 267 (“Counsel acknowledged that drug abuse can have a double-edged sword effect on the jury, as juries are not sympathetic to junkies generally.”) (quoted from trial court’s denial order attached to opinion).
nl2 In none of the cases cited by the dissent does the United States Supreme Court address the effectiveness of counsel for arguing that the commission of a murder was completely out of line with a defendant’s character. Hence, contrary to the dissent’s claim that we are ignoring Supreme Court case law on lingering doubt, see dissenting op. at 1157, we instead conclude that such case law is not dispositive as to the issue that we decide today.
Moreover, to the extent the dissent asserts that in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the United States Supreme Court, and in Rose v. State, 675 So.2d 567 (Fla.1996), this Court “explicitly disapproved” of a continuing assertion of innocence defense, see dissenting op. at 1157, this statement is misdirected. In neither Wiggins nor Rose did the Court hold that counsel was ineffective for pursuing an innocence strategy, nor prohibit a defense based on the character of the defendant. Rather, in both cases the Courts found that counsel was ineffective for failing to adequately investigate into mitigation that could have been discovered had counsel conducted a reasonable investigation. The instant case is distinguishable from Wiggins and Rose in that Hannon’s counsel made a reasoned decision to limit his investigation into mitigation based on Hannon’s express desire that he pursue a strategy that Hannon did not possess the type of character to commit-the murders. Further, the instant case is distinguishable from Rose in that, while counsel in Rose pursued a penalty phase strategy that he believed to be ill-conceived, counsel in the instant case agreed with his client that maintaining a consistent position during the penalty phase was a viable strategy.
n13 See also King v. Dugger, 555 So.2d 355, 360 (Fla.1990) (Barkett, J., dissenting) (“I believe that a jury is entitled to, and often does, mitigate a sentence because of ‘lingering doubt’ about the defendant’s guilt.”); Melendez v. State, 498 So.2d 1258, 1263 (Fla. 1986) (Barkett, J., specially concurring) (“There is certainly nothing irrational — indeed, there is nothing novel — about the idea of mitigating a death sentence because of lingering doubts as to guilt.”) (quoting Heiney v. Florida, 469 U.S. 920, 921, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984) (Marshall, J., dissenting from denial of certiorari)); see also Way v. State, 760 So.2d 903, 924 (Fla.2000) (Pariente, J., concurring) (“I urge the Legislature [to] consider including evidence of residual doubt as a statutory mitigating factor that could be considered by juries in making a sentence recommendation, the trial court in imposing the death sentence, and this Court in determining whether the death penalty should be affirmed.”). Although the dissent criticizes the reference to these views, they are presented not for authority, but for the common sense and grounded logic they set forth.
The conduct of Hannon’s trial counsel does not constitute per se ineffective assistance of counsel. In Haliburton v. Singletary, 691 So.2d 466 (Fla.1997), this Court determined that conduct similar to that of Hannon’s counsel did not constitute ineffective assistance. See id. at 471. At the evidentiary hearing in Haliburton, trial counsel testified that, although he was aware that Haliburton had suffered physical and sexual abuse as a child and that he had a history of substance abuse, and that these factors would be considered mitigating in many cases, they were more harmful than helpful in the case. See id. This information would have been more mitigating than any factor in the present case. Trial counsel in Haliburton testified that he elected not to call the mental health expert, even though she could have testified that there was a strong indication of brain damage, because she would have also testified that Haliburton was an extremely dangerous person and that he was likely to kill again. See id. According to trial counsel, testimony that Haliburton’s emotional problems and deprived upbringing caused him to commit the crime or lessened his culpability would have conflicted with the picture of charity and pacifism painted by the other defense witnesses and would have been inconsistent with Haliburton’s strategy. See id. The testimony that the defense witnesses offered in Haliburton is similar to the character evidence presented by trial counsel in the instant case. Trial counsel’s penalty phase strategy was to humanize Haliburton by dwelling upon his close family ties and on the positive influence he had on his family and fellow inmates. See id. This Court held that “[e]ven though this strategy was unsuccessful in persuading the court and jury to sentence Haliburton to life imprisonment, we cannot conclude that he was ineffective. In light of the substantial, compelling aggravation found by the trial court, there is no reasonable probability that had the mental health expert testified, the outcome would have been different.” Id.; see also Henry v. State, 862 So.2d 679, 686 (Fla.2003) (determining there was no deficient performance in counsel’s decision to humanize defendant rather than use mental health testimony); Shere v. State, 742 So.2d 215, 223-24 (Fla.1999) (determining that counsel was not ineffective for failing to request a neuro-psychological or neurological exam by a qualified expert even though trial counsel had obtained evidence of defendant’s “severe head injury as a youth and his subsequent headaches” where counsel’s penalty phase strategy was to portray the defendant as “a kind, gentle, God-fearing man”); Rutherford v. State, 727 So.2d 216, 223 (Fla.1998) (determining there was no error where retrial counsel was aware of mental mitigation “but made a strategic decision under the circumstances ... to instead focus on the ‘humanization’ of Rutherford through lay testimony”); Bryan v. Dugger, 641 So.2d 61, 64 (Fla.1994) (determining that trial counsel was not ineffective for choosing a mitigation strategy of humanizing the defendant and not calling a mental health expert).
Similar to trial counsel’s evidentiary hearing testimony in Haliburton, trial counsel in this case testified that his primary goal was to convince the jury that Hannon was not at the crime scene and that he was not the type of person to commit these murders, and that counsel intentionally sought to avoid contra-dieting that defense by presenting witnesses to testify that Hannon had used illegal drugs, was unstable, failed at school, or was abused. [nl4] Trial counsel’s strategy in this case from the beginning of trial and through the penalty phase was to emphasize Hannon’s good character traits. According to trial counsel, attempting to present testimony that Hannon may have had drug and alcohol problems that may have influenced him to commit the murders, or hiring a mental health expert attempting to discuss possible mental health mitigation to lessen his culpability would have been in total conflict with the picture of the nonviolent, “teddy bear” image of Hannon and would have been inconsistent with his innocence/alibi defense. Even though ultimately this strategy was unsuccessful in convincing the court and the jury to sentence Hannon to life imprisonment, we conclude, as in Haliburton, that trial counsel was not ineffective in this case. The dynamics of a jury and. a jury trial may often place practical considerations of human nature and citizen interaction on a level that cannot be simply ignored notwithstanding guiding statutory considerations when issues of life or death are involved.
nl4 The dissent proclaims that counsel was “unfamiliar with the prevailing death penalty case law on mitigation, such as Ake v. Oklahoma [470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) ],” see dissenting op. at 1164; however, this statement is hugely conclusory and not supported by the postconviction evidentiary transcript. The dissent takes counsel’s statement that he was not familiar with the Ake case “off the top of my head,” and untenably uses this one statement to reach the sweeping conclusion that counsel lacked knowledge about case law concerning mitigation in death penalty cases. Indeed, it is a conclusory statement in itself to presume that any particular case is “prevailing” in a particular legal area. Further, the Ake case is not even relevant to the instant proceedings because counsel’s strategy during the penalty phase — a strategy that Hannon himself approved — was to present evidence that Hannon did not possess the character to commit the murders and that he was innocent of the crimes — not that he suffered from some sort of brain injury or mental illness at the time of the murders.
An analogy can also be drawn to Straight v. Wainwright, 422 So.2d 827 (Fla.1982), a case in which the defendant challenged his trial counsel’s failure to investigate for the purpose of developing evidence of mitigating circumstances. See id. at 832. There, trial counsel, as did trial counsel in this case, stated that he did not present mitigating circumstances because he felt them to be, even after the verdict of guilt, fundamentally inconsistent with the entire defense. See id. This Court concluded that trial counsel’s performance was not ineffective where trial counsel viewed evidence of mitigating circumstances as fundamentally damaging to the integrity of his client’s case. See id. Similar to trial counsel in Straight, Hannon’s counsel here believed that any evidence of mitigating circumstances available would only damage the integrity of Hannon’s case. Further, Hannon agreed with counsel in this case that mitigation evidence should not be presented during the penalty phase. Under the totality of the circumstances at the time of trial, counsel was not deficient in strategically choosing not to present mitigation evidence that would be in conflict with and contradict Hannon’s innocence/alibi defense. See Parker, 331 F.3d at 788 (counsel not ineffective for failing to introduce evidence of mental defects and personality disorder where counsel did not see any signs of brain damage or mental disorder, and counsel further thought such evidence would be inconsistent with the defendant’s alibi defense and would undermine defendant’s credibility); Cummings-El, 863 So.2d at 252 (determining that counsel’s performance was not deficient where penalty phase strategy was to present defendant in a positive light and not to present evidence of defendant’s drug use, poor upbringing, and family members’ criminal backgrounds; counsel believed that such evidence would have an adverse effect on the jury and, further, introducing any evidence of mental illness would have been inconsistent with the aforementioned strategy); Brown v. State, 439 So.2d 872, 875 (Fla.1983) (concluding that under the totality of the circumstances at the time of trial, counsel was reasonably effective where he testified that in his opinion presentation of mitigation evidence during the penalty phase was contradictory to the alibi defense and the defendant did not assist in pursuing mitigating evidence).
Neither the United States Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), nor its recent decision in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), compels a different conclusion. In Wiggins, the Court concluded that defense counsel’s performance fell below an objective standard of reasonableness where counsel abandoned their investigation into mitigation even though their limited investigation revealed information that would have led a “reasonably competent attorney to investigate further.” 539 U.S. at 527, 123 S.Ct. 2527. The Supreme Court noted that defense counsel’s investigation included a review of reports which noted that Wiggins had spent most of his life in foster care and had displayed emotional difficulties while there and that Wiggins’ mother was a chronic alcoholic who on at least one occasion left her children alone for days without food. See id. at 523, 525, 123 S.Ct. 2527. The Supreme Court concluded that a reasonable attorney would have realized the need to pursue these leads further, but defense counsel abandoned the investigation at this juncture. See id. at 527, 123 S.Ct. 2527. [n15] The Supreme Court determined that counsel’s failure to investigate further into Wiggins’ background resulted from inattention rather than reasoned strategic judgment, in part because during opening statements, counsel informed the jurors, ‘You’re going to hear that [Wiggins] has had a difficult life,” but then failed to provide the jury with any details of Wiggins’ life history. See id. at 526, 123 S.Ct. 2527. In holding that counsel’s performance was deficient, the Supreme Court nonetheless noted 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,” id. at 533, 123 S.Ct. 2527, and distinguished Wiggins’ case from others where the High Court had concluded that limited investigations into mitigation were reasonable. See id. at 535, 123 S.Ct. 2527.
nl5 The Supreme Court noted in part that further inquiry likely would have revealed repeated incidents of sexual abuse suffered by Wiggins that could have been offered in mitigation. See id. at 525, 123 S.Ct. 2527.
In the recently decided Rompilla, the Supreme Court concluded that the defense counsel’s conduct in preparation for the sentencing phase fell below the level of reasonable performance that is required by Wiggins and Strickland where defense counsel failed to review a court file on the defendant’s prior conviction. See 125 S.Ct. at 2463-64. The Court stressed that it was not creating a per se rule requiring defense counsel to “do a complete review of the file on any prior conviction.” Id. at 2467. Rather, the High Court found that counsel’s performance fell below a level of reasonable performance because counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving Rompilla’s prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim’s testimony given in that earlier trial. Id. at 2464.
The Supreme Court in its conclusion emphasized that “the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried,” yet “counsel did not look at any part of that file, including the transcript, until warned by the prosecution a second time,” the day before the evidentiary sentencing phase began. Id. Although the facts of Rompilla led the Court to the conclusion that defense counsel’s performance was unreasonable, the Court held that “[o]ther situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment.” Id. at 2467.
A careful reading of the Supreme Court’s decisions in Wiggins and Rompilla reveals that those decisions are inapplicable to the facts of the instant matter. Unlike Wiggins, in the instant case there were no reports containing evidence of Hannon’s life history which should have prompted trial counsel to conduct a deeper investigation into Han-non’s background. In fact, trial counsel testified that during the criminal proceedings neither Hannon, his father, his mother, nor his sister Moreen ever mentioned that Hannon might suffer from some form of brain injury, that Hannon was abused or neglected, or that he had a traumatic childhood or a substantial drug problem. According to counsel, when asked if Hannon had been born with any problems, Hannon’s parents stated that they had “no problem with him.” Moreover, unlike Rompilla, there is no indication here that the State planned to rely on particular material in aggravation that was not obtained and reviewed by trial counsel prior to the penalty phase trial. Finally, and most distinguishing, unlike the defendants in Wiggins and Rompilla, Hannon adamantly expressed his wish to proceed consistent with the innocence defense during the penalty phase. The dissent’s assertion that we have “ignore[d] the mandate for defense counsel’s duty to investigate,” dissenting op. at 1157, does not accommodate these critical facts. Consistent with his client’s wishes, trial counsel sought to demonstrate that Han-non did not have the type of character to commit the murders rather than offering evidence on Hannon’s drug use, his mental fitness, or his family history. Therefore, unlike defense counsel’s deficient performances in Wiggins and Rompilla, trial counsel’s limited investigation into mitigation under the specific facts of the instant case, which was based on the express wishes of Hannon, was within the level of reasonable performance that is required by Strickland and Wiggins.
Hannon has also failed to demonstrate that he suffered prejudice. Contrary to the dissent’s view that a per se rule of reversal is required, upon application of all applicable authorities, including Wiggins and Rompilla, relief is not available here. In assessing prejudice, we reweigh the evidence in aggravation against the totality of the mental health mitigation presented during the postconviction evidentiary hearing to determine if our confidence in the outcome of the penalty phase trial is undermined. See Rutherford v. State, 727 So.2d 216, 223 (Fla.1998) (stating that in assessing prejudice “it is important to focus on the nature of the mental mitigation” now presented); see also Wiggins, 539 U.S. at 534, 123 S.Ct. 2527 (“In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.”). We conclude that it does not. There is no reasonable probability that had any of the mental health experts who testified at the postconviction evidentiary hearing testified at the penalty phase, Hannon would have received a life sentence. Our confidence has not been undermined in this outcome or proceeding.
At the evidentiary hearing, Hannon presented the testimony of Drs. Barry Crown, Faye Sulton, and Jonathan Lip-man. Dr. Crown, an expert in clinical and forensic psychology and neuropsychology as well as substance abuse, testified that he performed a neuropsychological evaluation of Hannon and had reviewed background materials, as well as a cognitive test that had already been performed by Dr. Sulton. Dr. Crown testified that Hannon scored within normal limits on most of the tests that were administered and opined that Hannon’s overall cognitive processing was “squarely within the heartland of what we would consider to be a typical person,” but he demonstrated some difficulty with rapidly retrieving stored information and applying it to a new situation. Dr. Crown also testified that Hannon may have had some brain damage but he could not state that the brain damage in any way affected Han-non’s behavior on the date of the crime because Dr. Crown had not been asked to consider or determine that in his evaluation.
Dr. Sulton, an expert in clinical psychology, testified that Hannon’s thinking was not disturbed, nor was he having hallucinations or so deeply depressed that his thinking would be distorted. She opined that Hannon did not have any obvious major mental illness and that his behavior did not make much sense in light of his normal intelligence. She also testified that by January of 1991, Hannon had experienced many failures personally and professionally, worked several jobs, had been unsuccessful in the military, used vast amounts of illegal substances over a long period of time, and that his ability to function on a day-to-day basis, reason, use good judgment, and logically and sequentially plan activities were all compromised. She also testified that she found only nonstatutory mitigation through her interviews with family members and Hannon. These included areas of general parental neglect, lack of structure, and lack of discipline and guidance in his early environment; a childhood history of illness that interfered with his school life at a crucial time; extreme dependence on other people to assist him in basic living skills; dependence on Ron Richardson for employment and drugs; substance abuse over many years; extraordinary impulsivity at times and great lack of concentration; and an inability to formulate goal-directed behavior and to live as an adult. Dr. Sulton further testified that Hannon’s personality changes, impulsivity, irritability, difficulty with concentration, and paranoid thinking would have impacted his day-to-day life. Ultimately, Dr. Sulton testified that in her opinion Hannon was not incompetent to stand trial at any point, was not insane at the time of the incident, and was of average intelligence. [nl6] Dr. Sulton agreed with Dr. Crown’s overall picture of Hannon’s normalcy with only some areas of deficit.
nl6Dr. Sulton testified that Hannon had a verbal IQ of 112, which is bright to average, a performance IQ of 102, which is average, and full scale IQ of 108, which is average.
Dr. Lipman, a neuropharmacologist, testified that Hannon’s degree of intoxication at the time of the offenses would not suggest to him that Hannon was unable to remember what occurred or would have rendered him unable to know what he was doing at the time of the crime. Dr. Lipman, however, admitted that he probably underestimated Hannon’s drug burden at the time of the offense because he was not aware that Hannon had used cocaine the night of the crimes. Dr. Lipman basically agreed with the State’s expert’s conclusions, which included a polysubstance abuse diagnosis.
The State’s expert, Dr. Merin, an expert in the fields of neuropsychology and forensic psychology, testified that he reviewed Drs. Sulton and Crown’s testing and administered the Wechsler Adult Intelligence Scale III test to Hannon. Dr. Merin testified that he agreed with Dr. Crown’s conclusions with the exception of Dr. Crown’s finding of prefrontal lobe impairment. Dr. Merin explained the discrepancy was based on Dr. Crown using a shorter version of the Category Test. Dr. Merin testified that when he did the longer version of the test, three years after Dr. Crown, there was no indication of any prefrontal lobe impairment. Dr. Merin testified that he did not find any significant brain injury. Dr. Merin also opined that because Han-non was heavily into drugs and alcohol, he probably had destroyed some neurons in his brain, but not to the extent that it interfered with his ability to reason, to make decisions on his own behalf, to maintain goal-directed behavior, or to think logically. Dr. Merin further testified that he found no indication of any thought disorder or suggestion of psychosis or brain-related problems.
The postconviction testimony presented failed to establish the existence of statutory mental health mitigation (and indeed underscored Hannon’s average intelligence and ability to reason), no expert was able to identify any significant brain damage, and there was contrary evidence. Even Dr. Crown, who arguably provided the most favorable testimony for Hannon, could not translate any brain damage as having any conceptual or actual impact on Hannon’s behavior, and there was no evidence to establish any nexus between Hannon’s mental health and his behavior or as it related to the crimes. Therefore, portraying Hannon as a drugged-out individual who had been involved in prior bad acts would have been more harmful, especially considering that the mental health implications were so equivocal.
Moreover, contrary to the dissent’s claim that an investigation by trial counsel would have revealed “voluminous evidence of mitigation,” see dissenting op. at 1169, the mitigation provided by witnesses during the postconviction evidentiary hearing was not compelling. [nl7] Indeed, the dissent offers what is actually a very one-sided presentation of post-conviction witness testimony which creates a distorted view of Hannon’s home life in an effort to bolster its assertion that trial counsel was ineffective for failing to conduct further investigation into mitigation. [nl8] Further, in sentencing Hannon to death, the trial judge found substantial aggravation in this case. Specifically, the trial court found three aggravating circumstances applicable to both the murders of Snider and Carter — (1) previous conviction of a violent felony (the contemporaneous killings); (2) the murders were committed during the commission of a burglary; and (3) the murders were heinous, atrocious, or cruel. See Hannon, 638 So.2d at 41. As to Carter, the trial court found the additional aggravating factor that the murder was committed to avoid or prevent a lawful arrest. See id. [n19] On direct appeal, we affirmed the court’s findings of aggravation. See Hannon, 638 So.2d at 43.
nl7 At the evidentiary hearing, information regarding Hannon’s drug and alcohol abuse as well as his upbringing and family situation was presented through the testimony of Hannon’s family. Hannon’s mother, father, and two sisters (Hellen Coker and Moreen Hannon) testified that their home life was difficult, especially when Stephanie, another of Hannon’s sisters, had scoliosis, at which time the parents were barely home. Hannon’s mother and father both testified with regard to the problems they had with Moreen, who began abusing drugs and alcohol at age thirteen and had a close relationship with Hannon. Moreen also testified with regard to her running away from home as well as her alcohol and drug use. Hannon’s mother testified that Hannon was a very good kid, had many friends, had developed rheumatic fever when he was seven or eight and was out of school for a few months, and was a pretty good student.
Moreen seemed to have more specific information with regard to Hannon’s substance abuse than the rest of his family. Moreen testified that she was aware of Hannon’s drug and alcohol use while growing up, that Hannon’s drug use escalated over the years, that Han-non drank on a regular basis in 1990, and that she, Hannon, Ron Richardson, and Mike Richardson all drank alcohol as well as used cocaine. Moreen also testified that Hannon was a good worker and did not have any trouble getting a job although he moved around from job to job, and she described Hannon’s behavior as agitated and irritated in 1990 during the time leading up to the murders. Hellen also testified that Hannon drank frequently when he was a teenager, and that Hannon was drinking and doing drugs excessively in 1990. Han-non’s mother and father testified that they were unaware of the existence and extent of the substance abuse problem that emerged during Hannon’s youth.
nl8 For example, the dissent references Hellen Coker’s testimony wherein she alleges physical abuse and emotional indifference by her parents. However, contrary to Hellen’s testimony, Hannon’s mother testified that she told her children that she loved them and hugged them, bought them birthday and Christmas presents, and that she never “smashed their facets] into the wall.” Hannon’s father testified that he never spanked his children or struck them with a belt. While Mrs. Hannon admitted that she drank “a lot of wine,” she also believed that it did not affect her ability to take care of the house and her children because “the kids looked terrific. The house was great.” Despite the fact that Hannon developed rheumatic fever as a child, Hannon’s mother testified that he did not have to make up the time he missed from school because his illness occurred partly during the summer, and further, “[Hannon] was a pretty good student, so he was okay.” The dissent further takes out of context Hellen’s statement that she left home five days after she turned eighteen because she “hated it.” A review of her full testimony reveals that her home situation was not the only factor that led to her departure: “I hated it. I didn’t like my home life. I didn’t like the town we lived in. I mean you couldn’t sneeze without somebody calling. They knew everything that went on. I just wanted to get away from there. - Something different.” Finally, Dr. Merin testified that when he asked Hannon about his relationship with his father, Hannon stated, “I got along great with him. My only regret was that he was away so much.” As to his mother, Hannon stated that they “[g]ot along great” and that he, as the Hannons’ only son, received lenient treatment. In noting such testimony, we do not seek to present a lopsided view of Hannon’s childhood in an effort to demonstrate that any existing mitigation was minimal. Rather, we only do so to demonstrate that the evidence in mitigation presented during the postconviction proceedings was equivocal and not “abundant,” as the dissent proclaims. See dissenting op. at 1167. The dissent characterizes our discussion of these elements of Hannon’s background as mere “lip service,” see dissenting op. at 1162; however, the dissent lacks any basis for this assertion other than its subjective disagreement with our conclusion regarding the insignificance of the mitigation evidence presented at the postconviction hearing. nl9 Hannon asserts he was denied effective assistance of counsel because his trial counsel failed to adequately challenge the aggravators. However, once Hannon was convicted of the murders based on the facts in evidence, regardless of what trial counsel would have argued, the prior violent felony aggravator (contemporaneous killings) and the committed during a burglary aggravator were applicable as a matter of law. Although trial counsel in the instant case arguably could have more effectively challenged the HAC and the avoiding or preventing a lawful arrest aggravators during the penalty phase, the nature of the murders and facts in evidence in this case support the application of these aggravators, which were both challenged and upheld on direct appeal. See id. at 43-44. Thus, assuming without deciding whether trial counsel was deficient in challenging the aggravators, this claim is meritless because Hannon has failed to demonstrate prejudice.
With regard to the HAC aggravator,