Citations
- 941 So. 2d 1109
Full opinion text
PER CURIAM.
Patrick Charles Hannon appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Han-non also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
FACTUAL AND PROCEDURAL HISTORY
Patrick C. Hannon was convicted of the first-degree murders of Brandon Snider and Robert Carter. See Hannon v. State, 638 So.2d 39, 41 (Fla.1994). The jury unanimously recommended the death penalty. See id. Following that recommendation, the trial court imposed separate death sentences on Hannon for the murders of Snider and Carter. See id. On direct appeal, this Court affirmed Han-non’s convictions and sentences. See id. at 44. There, the Court detailed the facts surrounding the murder:
Around Christmas 1990, 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, Hannon 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. [N. 1] 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.
[N. 1] Acker was tried in a separate proceeding, was convicted, and was sentenced to two life sentences.
In sentencing Hannon to death, the trial judge 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 (HAC). See id. With regard to Carter, the trial court found the additional aggravating factor that the murder was committed to avoid or prevent a lawful arrest. See id. In mitigation, the trial court considered testimony from Hannon’s mother and father that Hannon was not a violent person and also considered that Hannon’s original codefendant, Richardson, was no longer facing the death penalty. See id. The trial court found no statutory mitigating factors. See id. The trial court found that the aggravating factors outweighed the mitigating factors and sentenced Hannon to death for each murder. See id. On direct appeal, this Court upheld Hannon’s convictions and sentences. See id. at 44.
On direct appeal, Hannon asserted the following issues: the trial court erred in striking prospective jurors Ling and Trox-ler for cause; the trial court erred in admitting certain statements by a prosecution witness, over defense objection; the trial court erred in admitting into evidence the bloody shorts and shirt worn by Snider when he was murdered and the testimony of Judith Bunker, a forensic consultant in the field of blood stain pattern analysis and crime scene reconstruction; the HAC instruction given to the jury was unconstitutionally vague; the facts of the instant case did not support the finding of HAC; the evidence did not support the aggravating circumstance that the murder of Carter was committed for the purpose of avoiding or preventing lawful arrest; Florida’s HAC aggravating circumstance itself is unconstitutionally vague, is applied in an arbitrary and capricious manner, and does not genuinely narrow the class of persons eligible for the death penalty; the facts do not support the prior violent felony aggravating factor; and the sentencing order was insufficient. See id. at 41-44. This Court denied all of Hannon’s claims. See id.
MOTION FOR POSTCONVICTION RELIEF
On March 17, 1997, Hannon filed a shell motion for postconviction relief presenting 34 claims. Hannon filed an amended motion to vacate judgment on April 10, 2000, presenting 21 claims. A Huff hearing was held on November 16, 2001. On that same day, the trial court issued an order reflecting its determination that an eviden-tiary hearing was required to address seven of Hannon’s claims. The evidentiary hearing was conducted on February 18, 2002, and June 21, 2002. On February 3, 2003, the trial court issued an order denying Hannon postconviction relief. This appeal followed.
I. Ineffective Assistance of Counsel Pretrial and During the Guilt Phase
Hannon asserts that his trial counsel, Joseph Episcopo, provided ineffective assistance in failing to depose Ron Richardson or request a continuance; in failing to adequately prepare for the State’s blood spatter expert, Judith Bunker; and in failing to question Michelle Helm with regard to Ron Richardson’s alleged jealousy. Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings (if they are supported by competent, substantial evidence), but reviewing the circuit court’s legal conclusions de novo. See Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999).
There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A fair assessment of attorney performance requires that “every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. It is under this legal framework that Hannon’s claims are addressed.
A. Failure to Depose Ron Richardson or Request a Continuance
Hannon asserts that trial counsel was deficient in failing to depose Ron Richardson after discovering during trial that Richardson was to testify against Hannon. Hannon claims that trial counsel had a duty to investigate Richardson’s relationship with Hannon and his influence on Hannon, as well as to impeach Richardson. This Court has held that “when a failure to depose is alleged as a part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission.” Brown v. State, 846 So.2d 1114, 1124 (Fla.2003) (citing Magill v. State, 457 So.2d 1367, 1370 (Fla.1984)).
At the evidentiary hearing, Hannon’s trial counsel testified that the defense theory was an alibi defense, specifically that neither Hannon nor Richardson was at the crime scene when the crimes were committed, and that both Hannon and Richardson were playing a drinking game at Richardson’s house the night of the crimes. Trial counsel testified that he did not direct any investigation into Richardson’s background and did not remember if he had ever obtained Richardson’s criminal history before the trial began. Trial counsel further testified that he did not obtain any additional investigative material concerning Richardson’s relationship with Hannon after Richardson, in a surprise move, turned to testify for the State during trial. Trial counsel stated that the trial judge offered him an opportunity to depose Richardson after the State disclosed during trial that Richardson would be presented as a witness for the State but Hannon’s trial counsel decided that he would not conduct a deposition at that point because he believed Richardson’s story was totally fabricated, and that his best trial strategy was to question Richardson immediately in the presence of the jury instead of creating an opportunity for Richardson to rehearse his testimony during a deposition.
Counsel cannot be deemed ineffective merely because postconviction counsel disagrees with trial counsel’s strategic decisions. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight....”); Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) (“The standard is not how present counsel would have proceeded, in hindsight....”). In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”
The record demonstrates important time factors, although not considered by the dissent, and shows that on Friday, July 19, 1991, during the guilt phase of the trial, the State indicated for the first time to the trial court that it had received information that Richardson, who was listed as a defense witness for the trial in this case, might reverse himself and decide to be a prosecution witness against Hannon. On the morning of Monday, July 22, 1991, prior to resting its case, the State listed Richardson as a witness and at that late date provided Hannon’s counsel with a copy of a statement by Richardson that had been taken only hours before at 8 p.m. the prior evening. The State had entered into an agreement with Richardson in which he would enter a guilty plea to one count of accessory after the fact and in return receive a sentence of only five years in prison in exchange for his testimony against Hannon.
At that point, Hannon’s counsel, believing that the evidence would disclose to the jury that Richardson’s story was clearly fabricated for purposes of obtaining the “deal” with the State, decided that his best strategy was to continue with the innocence defense and the alibi basis. Trial counsel testified at the evidentiary hearing that he consciously and strategically decided that he would not depose Richardson after this last-minute turn of events because it was his strategy and approach to now use the element of total surprise in questioning Richardson with regard to the details of the crime and prevent the State from using the deposition to better prepare Richardson for his trial testimony. Moreover, trial counsel related that Richardson was an integral part of Hannon’s alibi defense and, thus, his strategy and goal after Richardson turned to assist the State was to demonstrate and emphasize that Richardson was not familiar with any of the details of the crime scene, thereby bolstering Hannon’s argument that neither Richardson nor Hannon was at the scene and that Richardson had changed his story to procure his last-minute agreement with the State. Trial counsel also testified that he was not interested in attempting to portray Richardson as a bad person or as a guilty party before the jury because that would also undermine Hannon’s alibi defense, which was predicated on Hannon drinking with Richardson at the time of the murders. Hannon’s trial counsel testified that his trial tactic and examination of Richardson was in fact ultimately successful, which the dissent does not consider, because on cross-examination, the defense elicited that Richardson actually knew very little with regard to the victims’ apartment:
Q. Please describe Mr. Snider and Mr. Carter’s apartment or house, apartment house.
A. I’m sorry. I can’t do that. I’m not familiar with their apartment house. I’ve only been there one time prior to this — this deal.
Q. So you can’t describe any of the rooms?
A. Well, as you come in, you come straight into the living room, but that’s as far as I’ve ever been in that house. Q. What color was the furniture?
A. I — I couldn’t tell you.
Q. Did you ever notice any exercise equipment inside that apartment?
A. No.
Q. What kind of video equipment was in there?
A. I — I wasn’t familiar with the apartment.
Q. Where was the aquarium located in that apartment?
A. I’m not that familiar with that apartment, Joe. I couldn’t tell you.
Further, Richardson conveniently testified that he was leaving the apartment as the shooting of Snider occurred. Hannon’s counsel also testified that it was his intention to impeach Richardson with the testimony of his brother, Mike, who was expected to testify that Hannon and Richardson were at Richardson’s house at the time of the murder playing a drinking game. Hannon’s counsel further stated that he chose not to request a continu-anee to investigate Richardson after he was disclosed to be a witness for the State because he believed a continuance would only give the State an edge by affording the State additional time to prepare Richardson for trial testimony to the detriment of his client, also a factor not considered by the dissent.
The record supports trial counsel’s testimony that Richardson was unable to provide any meaningful details of the victims’ apartment for the jury. The record also clearly demonstrates that Hannon’s counsel successfully revealed to the jury that Richardson had previously supported Han-non’s alibi by stating that he and Hannon were playing a drinking game the night of the murders, and that he was not involved with the murder. Moreover, counsel elicited from Richardson that up until even the night before he testified, he denied seeing the wounds to Snider’s throat, but within twenty-four hours had completely changed his story. Richardson claimed that he suddenly remembered the wounds; however, it cannot be disregarded that Richardson’s memory was restored just in time for him to testify for the State in the case against Hannon. Further, when asked about his drastic change in testimony, Richardson affirmatively testified that he had lied not once, but several times previously. Finally, counsel highlighted to the jury that on the Sunday morning before Richardson’s new testimony he was facing the death penalty for two counts of first-degree murder, but by the evening of that same day, in exchange for his testimony against Hannon, Richardson had received a “deal” for only five years in prison.
Clearly, the record supports a carefully considered and planned defense strategy on behalf of Hannon by his trial counsel and provides a full and proper basis for the trial court’s determination that Han-non failed to meet the first prong of Strickland in that he has failed to prove that counsel acted deficiently when he made a strategic decision not to take further steps with regard to Mr. Richardson, look into his background, determine his motive for testifying, or develop further information that could have been used to impeach him. Although current counsel may disagree with trial counsel’s strategy at that time and would have chosen to abandon the alibi defense when Richardson changed at the last minute to assist the State during trial, such current disagreement does not render.trial counsel’s performance deficient. Accordingly, we conclude that Hannon has failed to demonstrate that trial counsel was deficient in strategically deciding not to depose Richardson, not to seek a continuance, or otherwise conduct an investigation into Richardson’s background.
Moreover, Hannon has failed to demonstrate any prejudice because he has not even suggested what evidence or information trial counsel would have procured had he deposed Richardson, or requested a continuance, or conducted further investigation, that would have so affected the proceeding that confidence in the outcome is undermined, nor does the dissent provide any insight into the subject. See Maxwell, 490 So.2d at 932. Based upon the foregoing analysis, this claim has no merit.
B. Failure to Adequately Prepare for State’s Blood Spatter Expert
Hannon asserts that his trial counsel acted deficiently in failing to investigate the credentials of the State’s blood spatter expert, Judith Bunker, as well as failing to question her credentials and challenge her testimony at trial. To satisfy the deficiency prong of Strickland, Hannon must demonstrate that trial counsel’s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
At the evidentiary hearing, trial counsel testified that he was aware that Bunker had been hired as the State’s expert but decided not to conduct an investigation into Bunker’s credentials because her testimony regarding the blood spatter at the crime scene was totally irrelevant to Han-non’s alibi defense that he was not at the crime scene on the night of the murders, a factor not considered by the dissent. Trial counsel stated that he did not obtain Bunker’s personnel file, was not aware whether Bunker ever completed high school or attended college, and had not seen a group of letters indicating that Bunker had not worked at various places or lectured at certain places as represented on her resume. Trial counsel stated at the postconviction evidentiary hearing that he most likely would not have used this information regarding Bunker to impeach her at trial. Although confronting this witness with this type of information would have made him look sharp, it would not have advanced Hannon’s defense in any way and would have only left the jury wondering why counsel was even taking the time to question Bunker if she truly had nothing to do with Hannon’s defense. The dissent provides no explanation for this gap. Trial counsel further testified that he chose not to question Bunker’s credentials at trial to avoid giving the jury the impression that he was attempting to present an inconsistent defense. Trial counsel testified that Bunker’s testimony did not adversely impact Hannon’s defense because Bunker was never able to confirm any of the victims’ blood on Hannon. He did object to the introduction of crime scene photographs because he believed the photographs were being admitted simply to emphasize the goriness of the crime but decided not to cross-examine Bunker with regard to these photographs. The defense strategy was to continue with the theory that Hannon was not at the crime scene and, therefore, cross-examining this witness would only confuse the jury with regard to why he was attacking a witness that was not at all relevant to Hannon’s case.
Based on trial counsel’s testimony at the postconviction evidentiary hearing, Han-non has failed to demonstrate that trial counsel acted deficiently when he made these strategic decisions with regard to witness Bunker. Trial counsel’s performance did not fall below a standard of reasonableness in failing to challenge the credentials of a witness who was not at all relevant to any aspect of Hannon’s defense that he did not commit the murders and was not present at the victims’ apartment at the time of the murders. These reasonable strategic decisions were made in an attempt to avoid confusing the jury by attacking a witness that was not relevant to the defense case. Again, current counsel disagrees with the strategy and would have made the decision to challenge Bunker’s credentials, but the evidence does not support the conclusion that trial counsel’s performance was deficient. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover, trial counsel’s tactical decision not to challenge or impeach Bunker’s blood spatter testimony was reasonable because Bunker’s testimony did not implicate Hannon in the murders, nor was it even an element in the State’s case against Hannon.
Hannon has also failed to demonstrate prejudice with regard to these strategic decisions. This Court on direct appeal determined that Bunker’s testimony relating to the blood spatter evidence was properly admitted at Hannon’s trial only to assist the jury in understanding the facts. See Hannon, 638 So.2d at 43. Furthermore, this Court has previously determined in other cases that the presentation of Bunker’s allegedly exaggerated credentials to a jury has little effect on the outcome, given that she has been recognized as a blood spatter expert in numerous other cases. See Correll v. State, 698 So.2d 522, 523-24 (Fla.1997); see also Corby v. State, 819 So.2d 664, 677 (Fla.2002). In Correll, this Court stated:
[T]he discrepancies between the level of education, training, and experience Bunker testified to at trial and the asserted level of education, training, and experience she actually had were not so great as to make any difference in the outcome of the ease. Moreover, Bunker’s vita, which among other things, falsely set forth that Bunker had a high school diploma, was never seen by the jury. Thus, any misrepresentations contained in the vita are irrelevant to Cor-rell’s claim.
The only alleged misrepresentation of any import was Bunker’s assertion that she had worked as an assistant and technical specialist for the medical examiner’s office from 1970 through 1982, when in reality she was a secretary at the medical examiner’s office from 1970 to 1974, an assistant to the medical examiner from 1974 to 1981, and a technical specialist for the last five months of her employment with the medical examiner’s office. In view of the fact that it is undisputed that she worked on thousands of cases while in the employ of the medical examiner, even this discrepancy becomes less serious.
However, assuming for the sake of argument that Bunker’s testimony did contain serious discrepancies ... we are convinced that these discrepancies did not have any impact on the outcome of the case in light of the overwhelming evidence presented at trial in support of Correll’s guilt.
698 So.2d at 524. During Hannon’s trial, Bunker made misrepresentations with regard to her credentials similar to those this Court addressed in Correll. Specifically, Bunker testified that from 1970 to 1982 she was employed by the Office of the District Nine Medical Examiner with jurisdiction in Orange, Osceola, and Seminole counties. She testified that as an assistant to the medical examiner one of her primary responsibilities was to assist the medical examiner in the medical/legal investigation of death. She also testified that she had presented courses on blood stain evidence and conducted workshops and lectured at various colleges and institutions. Similar to this Court’s conclusion in Correll, any discrepancies in Bunker’s testimony in the instant case did not “so affect[ ] the proceeding that confidence in the outcome is undermined.” Maxwell, 490 So.2d at 932. Additionally, Bunker’s testimony with regard to the blood spatters did not link Hannon to the crime scene. The dissent fails to address this area of concern, but is critical without substantive support. Accordingly, this claim is also without merit.
Hannon further claims that the trial court erred in summarily denying the following claims with regard to Bunker: trial counsel was ineffective for failing to investigate Bunker’s background, the State presented unreliable and nonscientific blood spatter testimony through Bunker, and the State’s failure to disclose Bunker’s qualifications and misrepresentations of Bunker’s qualifications as an expert in the field of blood spatter constituted a Brady and Giglio violation. A criminal defendant alleging a Brady violation bears the burden to show prejudice, i.e., to show a reasonable probability that the undisclosed evidence would have produced a different verdict. See Strickler v. Greene, 527 U.S. 263, 281 n. 20, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). To demonstrate prejudice under Giglio it must be established that “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Hannon has failed to demonstrate prejudice relating to any aspect of Bunker’s testimony sufficient to establish either a Brady or Giglio violation. Therefore, the trial court’s rejection of these claims was not improper.
C. Failure to Question Michelle Helm
Hannon contends that his trial counsel was deficient in failing to question Michelle Helm, the former girlfriend of Ron Richardson, regarding her July 9, 1991, deposition testimony. Hannon asserts that Helm testified in her deposition that Richardson was a very jealous person who was violent and had threatened to kill her, often accusing her of sleeping with other men, especially Robbie Carter and Jim Acker. At the evidentiary hearing, trial counsel testified that he was present at Helm’s deposition but was not concerned with this information to attack Richardson’s testimony at trial because Richardson’s specific bad acts were not only irrelevant to Hannon’s alibi defense, such specific bad act evidence would not have been admissible at trial. Trial counsel testified that it was his strategy to lessen the focus on anything negative with regard to Richardson because it would be beneficial to Hannon’s case with Richardson being Hannon’s alibi witness until he altered his position at the end of the trial. Moreover, trial counsel’s main focus when cross-examining Richardson after the change in testimony at the last moment was to show the jury that Richardson did not remember the details of the victims’ apartment, and this negative information was not necessary to bolster the argument that Richardson’s story was fabricated.
Based on the foregoing, Hannon has not demonstrated that trial counsel acted defi-ciently when he made the strategic decisions with regard to the interrogation of Helm concerning her deposition testimony and chose not to use her to attack Richardson. Hannon was not prejudiced by these decisions and accordingly, this claim has no merit.
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:
[CJounsel 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 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 standard-less 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 Han-non 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 standardless 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, Han-non’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.
At the postconviction evidentiary hearing, trial counsel testified that Hannon, 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 Han-non assisted in every aspect of his defense, including testifying in his own defense during the guilt phase, and agreed to continue with the presentation of the inno-cenee 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).
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 Hannon’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 Han-non 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. 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.
The record supports trial counsel’s post-conviction 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 Han-non 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. Hannon’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). 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 sen-tencer 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). 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) (“[JJurors 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).
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 llad 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 Halibur-ton’s strategy. See id. The testimony that the defense witnesses offered in Hali-burton 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 contradicting that defense by presenting witnesses to testify that Hannon had used illegal drugs, was unstable, failed at school, or was abused. 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.
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. 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’ ease from others where the High Court had concluded that limited investigations into mitigation were reasonable. See id. at 535, 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 Hannon’s background. In fact, trial counsel testified that during the criminal proceedings neither Hannon, his father, his mother, nor his sister Mor-een 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 Rom-pilla, 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 evi-dentiary 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 postcon-viction 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 Lipman. 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 Hannon’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 drags; 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. Dr. Sulton agreed with Dr. Crown’s overall picture of Hannon’s normalcy with only some areas of deficit.
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