Bell v. State (965 So. 2d 48, 2007)

PER CURIAM.

Michael B. Bell appeals an order of the circuit court denying his motion to vacate his two convictions of first-degree murder and two sentences of death filed under Florida Rule of Criminal Procedure 3.850, and petitions this Court for a writ of habe-as corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court’s denial of the motion for postconviction relief and deny Bell’s petition for a writ of habeas corpus.

I. FACTS AND PROCEDURAL HISTORY

Bell was convicted of two counts of first-degree murder. The facts as described by this Court on direct appeal are as follows:

On December 9, 1993, appellant Michael Bell shot to death Jimmy West and Tamecka Smith as they entered a car outside a liquor lounge in Jacksonville. Three eyewitnesses testified regarding the murders, which the trial court described in the sentencing order as follows. In June 1993, Theodore Wright killed Lamar Bell in a shoot-out which was found to be justifiable homicide committed in self-defense. Michael Bell then swore to get revenge for the murder of his brother, Lamar Bell. During the' five months following Lamar Bell’s death, Michael Bell repeatedly told friends and relatives he planned to kill Wright. On December 8, 1993, Michael Bell, through a girlfriend, purchased an AK-47 assault rifle, a thirty-round magazine, and 160 bullets. The next night, Bell saw Theodore Wright’s car, a yellow Plymouth. Bell left the area and shortly returned with two friends and his rifle loaded with thirty bullets. After a short search, he saw the yellow car in the parking lot of a liquor lounge. Bell did not know that Wright had sold the car to Wright’s half-brother, Jimmy West, and that West had parked it and had gone into the lounge. Bell waited in the parking lot until West left the lounge with Tamecka Smith and another female. Bell picked up the loaded AK-47 and approached the car as West got into the driver’s seat and Smith began to enter on the passenger’s side. Bell approached the open door on the driver’s side and at pointblank range fired twelve bullets into West and four into Smith. The other female ducked and escaped injury. After shooting West and Smith, Bell riddled with bullets the front of the lounge where about a dozen people were waiting to go inside. Bell then drove to his aunt’s house and said to her, “Theodore got my brother and now I got his brother.” ■

Appellant was charged with two counts of first-degree murder. At trial in March 1995, appellant pléaded not guilty by reason of self-defense, stating that he believed West had reached for a weapon just before appellant began shooting. The defense presented no evidence or witnesses. A jury found appellant guilty of the first-degree murders of Smith and West and unanimously recommended the death penalty for both murders. During the penalty phase, a lounge security guard testified for the State that he and seven or eight other people were in the line of fire and hit the ground when appellant sprayed bullets in the parking lot of the lounge. He also testified that appellant shot four or five bullets into a house next door in which three children were residing at the time. The State introduced a copy of a record showing that appellant was convicted of armed robbery in 1990. Also during the penalty phase, appellant’s mother testified for the defense that she and appellant had received death threats from Wright and West. She testified that appellant was in good mental health and was gainfully employed and that she believed he did not commit the murders.

Bell v. State, 699 So.2d 674, 675-76 (Fla.1997). Following the jury’s unanimous recommendation to impose the death sentence for both convictions, the trial court sentenced Bell to death for each conviction, finding three aggravating circumstances and. one statutory mitigating eir-cumstance. State v. Bell, No. 94-9776 CF (Fla. 4th Cir. Ct. order filed June 2, 1995).

Bell appealed to this Court, raising four issues. This Court rejected each of Bell’s claims and affirmed the convictions and sentences. Bell, 699 So.2d at 679. The United States Supreme Court thereafter denied Bell’s petition for a writ of certiora-ri. Bell v. Florida, 522 U.S. 1123, 118 S.Ct. 1067, 140 L.Ed.2d 127 (1998).

Bell filed a motion for postconviction relief, which the circuit court summarily-denied. State v. Bell, No. 94-9776 CF (Fla. 4th Cir. Ct. order filed Jan. 13, 2000). Following oral argument, we reversed the summary denial and remanded the case to the circuit court for the purpose of conducting an evidentiary hearing. Bell v. State, 790 So.2d 1101 (Fla.2001).

On October 3, 2001, the circuit court granted Bell’s motion to represent himself at his postconviction proceedings. The circuit court also appointed Jeanine Sasser to serve as stand-by counsel. Bell then filed an amended pro se motion for postconviction relief, raising twenty-nine claims. The circuit court held evidentiary hearings on fourteen of the claims raised in this motion on April 8-10, 2002. Bell called a number of witnesses to testify in support of his claims, including various witnesses who had testified at trial, character witnesses, and his trial counsel, Richard Nichols.

The circuit court denied each of Bell’s posteonviction claims. State v. Bell, No. 94-9776-CF (Fla. 4th Cir. Ct. order filed May 31, 2002) (Postconviction Order). Bell appeals the circuit court’s denial of his postconviction motion through appellate counsel to this Court, raising twenty-four issues. Bell also petitions this Court for a writ of habeas corpus, raising eight issues.

II. ANALYSIS OF POSTCONYICTION CLAIMS

Bell argues that the circuit court erred in denying his claims in his postconviction motion. Finding no error in the circuit court’s conclusion that several of Bell’s claims are procedurally barred, we affirm the circuit court’s denial of those claims.

The remainder of Bell’s claims assert that trial counsel was ineffective. To establish a claim of ineffective assistance of counsel, a defendant must first show that counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney’s performance is deficient when it falls below an objective standard of reasonableness. under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. Second, the defendant must show that counsel’s deficiency prejudiced the defendant, which occurs when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims are mixed questions of law and fact. We review the legal issues under a de novo standard of review. The circuit court’s factual determinations are given deference if they are supported by competent, substantial evidence. We affirm the circuit court’s denial on the merits of Bell’s ineffective assistance of counsel claims as set forth below.

A. Failure to Object to Comments Regarding Dale George’s Plea

Bell first alleges that his trial counsel was ineffective for failing to object to the introduction of statements that Dale George, who admitted to driving Bell’s car on the night of the murders, pled guilty to a charge of accessory after the fact for his participation in this crime.

At Bell’s trial, the prosecutor stated in his opening argument that Dale George pled guilty to the charge of accessory after the fact for the instant crime and that he negotiated an agreement with the State that in exchange for his testimony, he would receive a prison sentence of no more than five years. At the start of George’s testimony, he admitted that he pled guilty to this charge and detailed the terms of his agreement. The prosecutor reiterated these facts in his closing argument. Bell argues that his trial counsel should have objected to any statements about George pleading guilty to participating in the crime because such statements implied that Bell was also guilty.

The circuit court denied this claim, finding that the prosecutor’s comments about George’s plea were “legitimate comments on the evidence anticipated and presented at trial, and were not improper.” Postcon-viction Order at 3.

In support of his argument to the circuit court and to this Court on appeal, Bell cites to several cases in support of his claim that trial counsel should have objected to the prosecutor’s statements concerning George’s plea. However, in each of the cases cited by Bell, the accomplice whose plea was referenced had not testified at trial. See Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (codefendant’s confession inadmissible against defendant because since codefendant did not testify, right to confrontation was violated); Parker v. State, 458 So.2d 750, 753 (Fla.1984); Thomas v. State, 202 So.2d 883, 884 (Fla. 3d DCA 1967); Moore v. State, 186 So.2d 56 (Fla. 3d DCA 1966).

Evidence that a witness has received a lighter sentence in exchange for his or her testimony goes to the bias of the witness and is therefore a proper subject for impeachment. § 90.608, Fla. Stat. (1995). The State addressed these matters in an effort to fully disclose the terms of the plea agreement, in anticipation of trial counsel’s cross-examination of George. We have held that there is no violation of the Florida Evidence Code when a party attempts to “mitigate the impact of inconsistent statements likely to be introduced, nor anything intrinsic to the jury’s truth-finding function in an arbitrary requirement that opposing counsel’s trial strategy may not be undercut.” Bell v. State, 491 So.2d 537, 538 (Fla.1986). The State clearly could anticipate that competent trial counsel would introduce the details of any plea agreement exchanged for a witness testifying against the defendant. Thus, we affirm the circuit court’s finding that Bell failed to demonstrate that trial counsel was ineffective for failing to object to these legitimate comments on the evidence presented at trial.

B. Improper Questioning of Penalty-Phase Defense Witness

In this claim, Bell asserts that trial counsel was ineffective because trial counsel inquired of Margo Bell, the defendant’s mother and the sole witness presented by the defense at the penalty phase, whether she was aware that Bell “had gone to prison for a period of time because of a robbery.” When questioned about this at the evidentiary hearing, trial counsel Richard Nichols explained that the prosecutor “could have gone into that subject matter anyway” and that he “was trying to minimize the impact of his questioning by bringing the subject up initially” as a “tactical decision.” The circuit court found this explanation credible and denied Bell’s claim, finding that this questioning was a tactical decision made “with the best interests of Defendant in mind.” Postconviction Order at 4-5.

In support of his argument that this questioning was improper and necessitates a new sentencing hearing, Bell cites to this Court’s decision in Geralds v. State, 601 So.2d 1157 (Fla.1992). There, we held that the prosecutor’s cross-examination of - a mitigation witness at the penalty phase constituted reversible error when he inquired whether the witness knew about the defendant’s eight prior felony convictions. Id. at 1161. We held that the door had not been opened to permit the introduction of this evidence during direct examination and that it was impermissible for the State to present this inadmissible evidence of the defendant’s prior nonviolent felony convictions. Id. at 1162.

However, Geralds is distinguishable because in the instant case, the prior -armed robbery judgment and conviction had already been introduced to the penalty-phase jury by the State as an aggravating factor. Moreover, to the extent that Bell asserts that the State used this questioning as an opportunity to get more details introduced about his prior conviction and sentence, the trial court sustained counsel’s objections to the State’s attempt to introduce these additional details. Thus, even if Bell could demonstrate the first prong of the Strickland test, he could not demonstrate that the questioning of his mother in any way prejudiced his sentencing. Information regarding his prior conviction was already before the jury. Therefore, we affirm the circuit court’s determination that no prejudice has been demonstrated.

C. Advising Bell Not to Testify

In this claim, Bell asserts that trial counsel was ineffective for advising Bell not to testify. Before the defense rested at trial without presenting any evidence, Nichols indicated to the trial court that the defendant did not wish to testify. Bell stated on the record, after the trial court instructed him on his rights, that it was his decision not to testify. Bell now essentiak ly argues that it was Nichols’ incorrect advice that he could be questioned regarding his prior convictions that led him to refuse to testify.

At the evidentiary hearing, when asked by Bell about his advice regarding the defendant testifying at his trial, Nichols stated:

I told you that if you took the stand you would be subject to cross examination. That one of the items of cross examination would be the number of your prior felony convictions, that if you — if the State asked you if you had been convicted of felonies and you answered yes, that they could ask you how many times. If you answered truthfully how many times that would be the end of that, that particular inquiry, but that if you did not answer truthfully that the State could then cross examine you about the specific convictions. And I never told you that they would have the absolute right to talk — to question you about specific convictions unless you were untruthful about the number of convictions.

On cross-examination at the hearing, Nichols explained that he felt that it is not good strategy for a defendant to testify at trial if the defendant would be a weak witness and would not add anything beneficial to the defense. He stated that he thought the jury would react “very poorly” to “Bell’s general demeanor and style of communication.”

The circuit court denied this claim, finding first that Bell failed to show any evidence of what his testimony would have been had he taken the stand at trial, because he did not testify at the hearing. Postconviction Order at 5. Furthermore, the circuit court noted that Bell stated at trial that it was his decision not to testify and that Bell was bound by that representation. Finally, the circuit court set forth that it found Nichols’ explanation for his advice not to testify more credible than Bell’s allegations.

We affirm the circuit court’s denial of this claim. We find no error in the trial court’s finding that Bell failed to demonstrate that his counsel was deficient. In the trial record, Bell clearly and voluntarily waived his right to testify. In response to the trial court’s inquiry, Nichols indicated that he had fully informed Bell of the consequences of testifying at trial. Bell told the trial court that it was his decision not to testify. Thus, competent, substantial evidence supports the trial court’s determination that the defendant knowingly and voluntarily elected not to testify. See Lott v. State, 931 So.2d 807, 818 (Fla.2006) (while trial court does not have to make on-the-record inquiry regarding defendant’s waiver of right to testify, there must be support in record that waiver was knowingly, voluntarily, and intelligently made).

Moreover, counsel testified that his advice to Bell was made for strategic reasons. We have noted 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.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). Because we agree that Nichols’ decision was reasonable, we affirm the circuit court’s denial of this claim. See Shere v. State, 742 So.2d 215, 222 (Fla.1999) (affirming a circuit court’s determination that counsel’s advice to Shere not to testify was a reasonable, tactical decision due to Shere making inconsistent statements and being a difficult client).

To the extent that Bell asserts that his trial counsel incorrectly advised him of what evidence the State would introduce regarding his prior convictions, the only evidence presented as to what Nichols told Bell is Nichols’ testimony at the hearing. Nichols’ statement is an accurate statement of evidentiary law. This case is in contrast to the case cited by Bell, Jennings v. State, 685 So.2d 879, 880 (Fla. 2d DCA 1996). There, the Second District Court of Appeal reversed for an evidentia-ry hearing the summary denial of Jennings’ claim that trial counsel advised the defendant that if he elected to testify, the violent details of his criminal history would be brought forth before the jury and guarantee conviction. The circuit court here has held an evidentiary hearing and found Nichols credible. In evaluating the circuit court’s order, “this Court will not substitute its judgment for that of the trial court on ... the credibility of the witnesses and the weight to be given to the evidence,” provided its order is supported by competent, substantial evidence. Porter v. State, 788 So.2d 917, 923 (Fla.2001). Bell fails to show that the circuit court’s determination was not supported by competent, substantial evidence, and we affirm its assessment that trial counsel was not deficient.

In addition, Bell failed to demonstrate any prejudice resulting from the absence of his testimony at trial. Bell did not testify at the evidentiary hearing, so besides the bare allegations of his motion and brief, there is no evidence to establish what else he would have revealed about the facts of this case had he testified. Any assertion that his testimony would have provided evidence to support a self-defense claim is without support in the record before this Court. Therefore, because Bell fails to satisfy either prong of Strickland, we affirm the denial of this claim.

D. Improper Prosecutorial Comments

Bell next asserts that his trial counsel was ineffective for failing to object to various comments made by the State in its closing arguments at both the guilt and penalty phases of the trial. At the guilt-phase closing arguments, these comments included three separate remarks that Bell lived “by the law of the jungle.” The prosecutor also stated: “I submit to you that the blood, the blood of Tamecka Smith and the blood of Jimmy West that that defendant spilled in the parking lot, that cold pavement of that Moncrief Liquors parking lot, their blood cries out for justice.”

Bell also cites comments during the penalty-phase closing argument that he claims were reversible error to which counsel should have objected. These comments included that the State had screened the case to determine whether it was worthy of the death penalty; that the jury should show the defendant the same mercy he had shown the victims; that laws could change such that the defendant could serve less than twenty-five years in prison if the jury did not recommend a death sentence; and that the jury must recommend a death sentence. We have previously held many comments similar to these to be error. See Brooks v. State, 762 So.2d 879 (Fla.2000); Urbin v. State, 714 So.2d 411 (Fla.1998); Rhodes v. State, 547 So.2d 1201 (Fla.1989); Pait v. State, 112 So.2d 380 (Fla.1959).

At the evidentiary hearing, Bell asked Nichols whether he thought these various comments were improper, and Nichols responded:

No. And even if it were something that appellate courts said — described as being improper, not every improper argument is something that [a] defense lawyer wants to object to because sometimes when a prosecutor makes what would otherwise be considered an improper comment, it essentially opens the door for the defense to attack that strategy in rebuttal. And I have many times let prosecutors, without objection, say things that I thought were objectionable but did it so that I could make a comment on it when I got my next chance to speak.

On cross-examination by the State, Nichols further explained:

You have to sort of gauge the pace of the trial and make a decision whether these comments that taken out of context sound like damaging comments and make a decision whether they truly are in the flow of things either significant or damaging.

And you have to guard your own credibility with the jury with regard to just hopping up and down out of your chair and making objections when things are happening that the jury really doesn’t see as having very much meaning.

And sometimes improper — sometimes comments that might genuinely be labeled as miss — as improper are once [sic] that open the door for me to make a response that I want to have an opportunity to make and so I’ll allow the comment to go forward.

The circuit court denied Bell’s claims, first finding that they were procedurally barred because they could and should have been raised on direct appeal. Postconviction Order at 8. The court also denied the ineffective assistance of counsel claims on their merits, finding that defense counsel gave a legitimate, reasonable strategy for his decisions not to object and that it was improper to view those reasons in hindsight. Id. at 27. The court finally concluded that Bell failed to demonstrate any prejudice as a result of these remarks.

To the extent that Bell’s claim asserts that the prosecutor’s comments were error, this claim should have been raised on direct appeal and is procedurally barred as a postconviction claim. See, e.g., Lamarca v. State, 931 So.2d 838, 851 n. 8 (Fla.2006) (claims of prosecutorial misconduct were procedurally barred because they could have been raised on direct appeal).

However, Bell’s claim that trial counsel was ineffective for failing to object to these remarks is properly raised on postconviction appeal. Bell cites to this Court’s decision in Brooks as evidence that these comments were improper. In that case, we reversed Brooks’s death sentence on direct appeal on the basis that the prosecutor (the same prosecutor who tried the instant case) made a variety of improper statements, some of which were objected to and some of which were not, in his penalty phase closing statements. Brooks, 762 So.2d at 898. After our review of the entire closing argument and in consideration of the jury’s close seven-to-five death recommendation, “we determine[d] that the objected-to comments, when viewed in conjunction with the unobjected-to comments, deprived Brooks of a fair penalty phase hearing.” Id. at 899.

We agree with Bell that many of the comments that were the basis for our reversal of the penalty phase in Brooks are similar to those that are the basis for Bell’s arguments in the instant case. We also note that similar comments were made by the same prosecutor and similarly reversed in Urbin.

Nichols also served as defense counsel at the trial in Brooks. He explained at the evidentiary hearing in the instant case that he objected to some similar comments in Brooks’s trial but not in the present case because “whether or not I thought it was proper to object to it would depend on the total environment that we were in at the case at the time that that was made.”

For purposes of our review, a material difference between this case and Brooks and Urbin is that Bell’s claims are here for our review on postconviction appeal and raised as ineffective assistance of counsel claims, while in Brooks and Urbin we reviewed the comments as substantive error on direct appeal. In a direct appeal review, there is no prejudice prong consideration like there is in consideration of a claim of ineffective assistance of counsel in a postconviction claim under Strickland.

We find no error in the circuit court denying relief on this claim based upon our determination that Bell failed to demonstrate the necessary prejudice to satisfy the second prong of the Strickland test. We agree that even assuming Nichols was deficient in not objecting to the prosecutor’s closing argument, Bell has not demonstrated prejudice in either the guilt or the penalty phase of the trial. Our confidence in the outcome has not been undermined.

Conclusive evidence of Bell’s guilt was presented at trial, including the testimony of several eyewitness who testified that Bell planned, carried out, and confessed to these murders. At the penalty phase, the State proved three strong aggravating factors beyond a reasonable doubt (prior violent felony, created great risk of death to many, and CCP). Only one statutory mitigating factor was found to be established and weighed against these aggravators. The jury recommendation of a death sentence was unanimous. Cf Brooks, 762 So.2d at 899 (“[CJonsidering the jury’s close seven-to-five recommendation that Brooks be sentenced to death, we determine that the objected-to comments, when viewed in conjunction with the unobjected-to comments, deprived Brooks of a fair penalty phase hearing.”). We deny Bell’s claim.

E. Ericka Williams’ Recorded Statement

Bell claims that trial counsel was ineffective because he faded to discover a tape which would have demonstrated that a key State witness’s testimony was false. Ericka Williams was Bell’s girlfriend at the time of these murders. She testified against Bell at trial about statements he made before the crime indicating his intention to kill Theodore Wright; that she purchased for Bell the AK-47 that was used to kill the victims; and that immediately after the murders, Bell confessed to her that he had evened the score against Wright. Bell asserts that before trial, he told Nichols that a tape existed in which Williams confessed that her statements and testimony were coerced by Detective William Bolena of the Duval County Sheriffs Office, the lead investigator in this case, and that she actually gave the AK-47 to Dale George before the victims were killed. Supposedly Rod Gregory, an attorney, had possession of this tape.

At the postconviction evidentiary hearing, Williams maintained that her trial testimony was the truth. She remembered having a conversation with Rod Gregory at the insistence of Bell but could not recall the substance of that conversation. While investigator Don Marks was not asked specifically about this tape, he testified at the evidentiary hearing that he investigated every issue Bell asked him to and that he found nothing favprable to the defense. Nichols testified that it was his understanding that the tape was investigated by Marks but was never produced. Although the tape was not mentioned in Marks’s report, his notes were submitted at the hearing as a defense exhibit and reflected that on January 12, 1995, he attempted to call Rodney Gregory, but Gregory was out of town and never returned Marks’s call. The circuit court denied this claim, finding that Bell failed to present any evidence to substantiate his assertions. Postconviction Order at 11.

Trial counsel has a duty to investigate any potential impeaching or exculpatory evidence that may assist his or her client. See Rompilla v. Beard, 545 U.S. 374, 383, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (“[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.”). However, we agree with the circuit court that Bell has failed to demonstrate that the evidence he claims would have impeached Williams’ testimony ever existed. Rod Gregory did not testify at the eviden-tiary hearing, and Williams maintained that she was not coerced into giving her trial testimony. While she remembered speaking to Gregory, she could not recall the substance of their conversation. Because Bell has failed to demonstrate that a tape existed which counsel could have discovered, we agree that he has failed to demonstrate that Nichols was deficient. We affirm the circuit court’s denial of this claim.

F. Failure to Present the Testimony of Andre Mayes

In this issue, Bell argues that the circuit court erred in concluding that his claim of ineffective assistance based on the failure to call an impeachment witness was “whol: ly” not demonstrated at the hearing. This claim relates to the testimony of Charles Jones, a key State witness at Bell’s trial. Jones testified at trial that Bell attempted to sell him and several other people an AK-47 a few weeks before Christmas in 1993, just after the murders of West and Smith. He stated that Bell “was just really anxious, trying to sell it and nobody still wouldn’t buy it, then he drop the price down to 300 and nobody still didn’t buy it.” Jones also testified that he later had an encounter with Bell in which he asked Bell why he killed Jimmy West and not Theodore Wright, and that Bell stated, “He killed my brother, and that was the closest thing to me and I kill his.” When Jones asked about why he killed the girl in the car, Bell allegedly responded, “Bullets don’t know nobody.” On cross-examination, Jones admitted that he did not like Bell and that they had quarreled in the past.

At the evidentiary hearing, Andre Mayes testified that he shared a cell with Jones in 1994 at the Duval County Jail. According to Mayes, Jones would leave for interrogations and would return having received benefits. Mayes stated that Jones told him, “The ease that I got something to do with, the detective on [it] called me over and while I’m over there my family ... members come to see me.” Mayes testified that he assumed from certain events that Jones was fed while in the other building. Mayes also stated that Jones told him about a confrontation he had with Bell. On cross-examination, Mayes admitted that Jones never stated that he was forced to testify against Bell. He stated that Jones did say that he was going to make sure Bell went to prison, but Jones never stated that he was going to lie in his testimony.

Jones also testified at the evidentiary hearing and stated that he received no special visits or treatment in exchange for his testimony and that his testimony at Bell’s trial was the truth. Jones stated that he knew Mayes but that they never discussed Bell or Bell’s case. Jones thought that Mayes carried a grudge against him because Jones had refused to testify on Mayes’ behalf at Mayes’ trial. Jones’s wife also testified at the evidentia-ry hearing that she never made any special visits with him while he was in prison and that she only visited her husband in the regular visitor area.

The circuit court denied this claim, finding that the testimony of the Joneses was more persuasive and credible than the testimony of Mayes. Postconviction Order at 13. The court also found that the evidence presented by Bell “wholly failed” to support his assertions. Id.

Questions of credibility are left to the determination of the circuit court, and provided there is competent, substantial evidence to support those credibility assessments, we will defer to that court’s decision. Archer v. State, 934 So.2d 1187, 1196 (Fla.2006) (“This Court is highly deferential to a trial court’s judgment on the issue of credibility.”). Given that Jones’s wife’s testimony at the hearing supported his own, that Jones testified about a grudge that Mayes held against Mm, and that Jones’s testimony remained consistent with that which he gave at trial, competent, substantial evidence supports the circuit court’s determination that Jones was a more credible witness than Mayes. Thus, Bell failed to demonstrate that Jones received special treatment in exchange for his testimony. Moreover, Bell was never able to demonstrate that Jones’s testimony at trial was false as a result of the alleged special treatment. Bell cannot demonstrate that trial counsel was deficient for failing to present noncredible testimony at Bell’s trial. Therefore, we affirm the circuit court’s denial of this claim.

Bell also asserts that Mayes’s testimony would have provided support for the feud between Bell and Jones, thus further discrediting Jones’s testimony at trial. However, Jones explicitly testified at Bell’s trial on cross-examination that he did not-like Bell and that they had quarreled in the past. Therefore, this testimony would have been cumulative to evidence already presented at trial.

G. Failure to Investigate and Present a Credible Defense

In his next claim, Bell argues that trial counsel was ineffective for failing to fully investigate and present a credible defense. At trial, the defense rested without presenting any evidence or witnesses. The trial judge gave the jury an instruction on self-defense.

At the evidentiary hearing, Nichols testified regarding his strategy for defending Bell, stating that his hands were tied by Bell’s actions:

In your case, my recollection was that the State’s case was essentially overwhelming, and that in attempting to prepare with you, you would not tell me any information that I could use with regard to a defense. That your strategy, as I understood it, and I think the words that you used over and over again was that they were going to have to bring it to you in the courtroom.

My analysis of that was that you didn’t believe the State’s witnesses would actually show up to court. And when they did, I think you were surprised by it and there was no defense except to try to essentially hold the State’s feet to the fire, to test or at least to attack deficiencies in their case.

There were no affirmative defenses, although I think there had been a request for instruction of self-defense.

- There were no alibi defenses, and the strategy of trial was strategy of trying to expose any defects or deficiencies, inadequacies in the State’s case. And unfortunately there just weren’t any.

When asked about why he asked for a self-defense instruction when no evidence of self-defense had been given, Nichols responded:

Your [Bell’s] position had been apparently, as I recall, up until just about the time for the charge conference on the jury instructions, that you had not committed this crime. But then as we were getting ready for the charge conference you indicated in a vague sort of way that well, maybe what you had done was shot in self-defense because you thought this victim had gone for a gun because you knew him to carry a gun.

It was the first time I had ever heard anything like that because up until that time you had denied you committed the crime so we brought that—

You [Bell] brought that theoretical possibility to the attention of the Court and the Court, I think, in just abundance of caution said, okay, I’ll give you the self-defense instruction, even though there was really no self-defense theory in the case.

The only defense ... from what you had told me that was available was to attempt to attack the credibility of the State’s witnesses and we did that as carefully as we could. There was no other defense.

Following the evidentiary hearing, the circuit court denied this claim, finding that the information provided by Bell did not permit Nichols to proceed on a theory of self-defense. Postconviction Order at 14-15. The court stated that “[c]ounsel proceeded to trial and planned a defense strategy based upon Defendant’s representations to him concerning the crime and his lack of involvement.” Id. at 15.

Since no other evidence was presented and Nichols’ testimony was supported by competent, substantial evidence, we treat his testimony as an accurate statement of the interaction between Nichols and Bell at trial. Nichols’ testimony indicated that he had no defense or evidence available to him beyond what he argued at trial. We therefore find no error in the circuit court’s determination that Nichols was not deficient for failing to present a successful defense when no other defense has been demonstrated to have been available.

Moreover, Bell has failed to carry his burden of demonstrating prejudice. At the hearing, Bell presented no witness who could testify that West had a gun, reached for a gun, or in any way committed an overt act that would have caused Bell to react in self-defense. See Holland v. State, 916 So.2d 750, 760 (Fla.2005) (holding that to introduce negative evidence of victim’s character, defendant must show that an overt act of the victim at or about the time of the incident reasonably indicated a need for self-defense), cert. denied, 547 U.S. 1078, 126 S.Ct. 1790, 164 L.Ed.2d 531 (2006). Also, Bell has not presented any evidence to support any other claims of innocence. Therefore, we deny his claim that trial counsel was ineffective.

H. Improper Closing Arguments

In this claim, Bell asserts that trial counsel rendered ineffective assistance due to his improper closing arguments at the guilt and penalty phases of trial. The relevant argument during the guilt phase was as follows:

May it please the court, Mr. Bateh, ladies and gentlemen, there are neighborhoods in our community, some within a mile or two of this courthouse which are no safer than the jungle. Little safer than the front lines of some war zone. In order to understand at any level the events of December 9th, 1993, it is necessary for us to descend into that world. This is the world in which Michael Bell and his brother were born and lived and Michael Bell’s brother died. And it’s the world in which Theodore Wright and Jimmy West live, and Dale George and the others you heard testify. It is a world that is so alienate [sic] to most of our experience that although it’s only a mile or two away it might as well be on another planet.

... But in truth and fact how can any of us who live in such a different world than Jimmy West and Theodore Wright and Michael Bell consider ourselves their peers? It is easy for us to sit here in this guarded, safe, quiet, protected environment and chairs elevated off of the floor and in the sense of kind righteous indignation want to strike out in revenge and condemn people who live in a world different than ours. And certainly regardless of what neighborhood or community or type of social structure someone lives in, there are certain acts and events that we can never condone, but we must make some attempt in honoring our oath as jurors and our duty as jurors of — as peers to understand and make some sense of these things.

In remarking on the incident in which Bell’s brother was shot, Nichols commented on Theodore Wright’s behavior that night:

Almost like a scene out of some Wild West sort of sleuth [sic] out, he borrows a gun, strolls out into the road and they have a shoot out. That’s the kind of environment these people were living in.

At the evidentiary hearing, Nichols explained his remarks and stated that he did not think the facts of this case matched up to a traditional self-defense argument. As set forth in the analysis of the previous issue, Bell first indicated to Nichols that he could pursue a self-defense claim prior to the jury charge conference. Thus, closing argument marked the first time Nichols could argue self-defense. Nichols stated at the evidentiary hearing that he hoped to convince the jury that if they could understand the environment in which Bell lived and his feelings about Wright and West, they could possibly accept a self-defense argument. The circuit court denied Bell’s claim, finding that this argument was the product of a reasonable tactical decision. Postconviction Order at 17.

We find that the circuit court’s determination that this was a reasonable tactical decision is supported by competent, substantial evidence. Nichols was arguing in accordance with' this stated goal at the time of his guilt-phase closing argument, as evidenced by the following statement:

And it’s important for you to keep that in mind because the Judge is going to read you an instruction on self-defense. And self-defense is a little more pervasive than what we might think of at first blush because it takes into account if we know that there are people out there trying to kill us, and we reasonably do things to try to protect ourselves from that or even in a situation of confrontation. And the Judge will explain that to you and it’s a fairly long instruction and I invite you to listen to it carefully, but part of it assumes and you must understand that whole environment in which these acts took place.

This trial record supports counsel’s claim that the remarks regarding Bell’s neighborhood were to support his self-defense argument to the jury. Moreover, given the State’s closing arguments describing Bell as living by the “law of the jungle,” it is not unreasonable in this context for trial counsel to have made the comments he made. Because there is evidence to support the determination that trial counsel’s strategy was reasonable, we find that the circuit court properly denied Bell’s claim of ineffectiveness.

Bell also argues that counsel was ineffective in his penalty-phase closing argument. The remainder of Bell’s claims regarding penalty-phase closing arguments are similar to his objections to the argument made about the guilt-phase arguments. Nichols again differentiated between the environment in which the jury lived and the environment in which Bell and the victims lived. Nichols also referred to the events of that night as a “tragedy.” The majority of Nichols’ argument in closing at the penalty phase appears to be in answer to the State’s closing arguments asking that Bell be given the same mercy that he had given to the victims. Essentially, Nichols argued that the jury was not in the same situation or raised in the same community as Bell and should reject the prosecutor’s same-mercy argument. While this ultimately was not a persuasive or successful argument, it is important not to view defense counsel’s actions with the benefit of hindsight or the knowledge that the argument was ultimately unsuccessful. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Since the focus of the penalty phase was on demonstrating the fear that Bell was in when he approached West, this closing argument comported with the evidence presented.

Moreover, Bell has failed to demonstrate that he was prejudiced by Nichols’ performance. In the guilt phase, there were numerous eyewitnesses who testified that Bell planned, carried out, and admitted to having committed these murders. At the penalty phase, the State presented three strong aggravating factors, and there was little evidence presented in mitigation. Because our confidence in the outcome of Bell’s trial is not undermined, we affirm the circuit court’s denial of this claim.

I. Shackling of Bell Before Jury

Bell asserts that his trial counsel was ineffective because counsel failed to object to the jury viewing Bell in shackles. Shackling a defendant before the jury is considered an “ ‘inherently prejudicial practice’ [that] must not be done absent some showing of necessity.” Bello v. State, 547 So.2d 914, 918 (Fla.1989) (quoting Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)).

At the evidentiary hearing, Bell repeatedly inquired of many trial witnesses whether they recalled seeing him shackled. All responded negatively, except his mother, Margo Bell. When asked on cross-examination at what point she saw him chained, however, she responded: “I can’t say, really, to tell you the truth. I know he was in chain cause I was at every hearing, everything, every day. I can’t say what day, time, you know, when or what cause it’s been many years ago, but I remember the chains because I cried looking at him.... ” Dale George also thought that Bell had his feet chained, but he was uncertain because the trial had happened a long time ago. Nichols stated that it was his recollection that Bell was never shackled in front of the jury. He continued:

And frankly, if somehow a jury had inadvertently seen you shackled, I would have thought it would do more harm to your case than good to explain to them why it was you were being shackled. I think and from the defense’s standpoint I would not want them to have seen it. But had they seen it, I’d hate for them to know everything that I knew or the government knew or the law enforcement knew that caused them to think that was a necessary precaution.

The circuit court denied Bell’s claim, finding that there was no evidence to support the assertion that Bell was shackled during the trial, and that even if he had been, he failed to demonstrate that the jury was aware of this shackling. Postcon-viction Order at 18.

Competent, substantial evidence supports the circuit court’s determination that Bell was not shackled at trial. The only testimony that Bell was shackled was that of his mother and Dale George, both of whom were unable to pinpoint at what phase of trial they observed Bell shackled. Bell points to no evidence from the trial record that he was shackled in front of the jury. Thus, we affirm the circuit court’s determination that Bell has failed to demonstrate that trial counsel was deficient because he has failed to demonstrate that he was ever shackled in the presence of the jury. See Sireci v. Moore, 825 So.2d 882, 888 (Fla.2002) (because there was nothing in the record to lead the Court to conclude that the jury ever saw defendant in restraints, appellate counsel was not ineffective for failing to raise the issue on direct appeal).

J. Improper Competency Reports

Bell claims that trial counsel was ineffective because he should have ensured that the competency reports complied with the rules of criminal procedure. Florida Rule of Criminal Procedure 3.211(a)(2) provides:

In considering the issue of competence to proceed, the examining experts shall consider and include in their report:

(A) the defendant’s capacity to:

(i) appreciate the charges or allegations against the defendant;

(ii) appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant;

(iii) understand the adversary nature of the legal process;

(iv) disclose to counsel facts pertinent to the proceedings at issue;

(v) manifest appropriate courtroom behavior;

(vi) testify relevantly; and

(B) any other factors deemed relevant by the experts.

Bell asserts that because the competency report did not specifically set out each of these elements, it was in violation of the rule and that trial counsel should have objected to it or demanded that an assessment in accordance with the rule’s provisions be provided in the report.

The competency report, a letter to the trial judge dated December 30, 1994, set out Bell’s statement of the basis for the trial, including his assertion that he is not guilty. The report stated that Bell “reason[s] concretely” and “understandfe] that he is involved in an adversary process.” The report stated that the experts’ clinical impressions were that Bell suffered from adjustment disorder with depressed and anxious mood but that ultimately Bell was competent to proceed at trial.

Bell called Dr. Ernest Miller at the evi-dentiary hearing. Dr. Miller examined him prior to trial and prepared the letter on his competency. When asked why the report did not set out each item required by rule 3.211, Dr. Miller responded:

The report ... when necessary can ... be clarified and each of these questions as you are properly addressing to me can be responded to in the manner of what’s obtained as a result of the examination. All of these ... questions which were invented, if you will, or developed by Paul McGary at Harvard and subsequently became part of the process of the law in Florida, are simply things which must come forth as a result of the psychiatric examination. It does not mean you have to nor even should address the patient with a specific question ....

Dr. Miller also testified that he did not think any additional information was necessary for his determination as to Bell’s competency. The circuit court denied Bell’s claim. Postconviction Order at 21.

The evidentiary hearing transcript demonstrates that Dr. Miller considered each factor. Therefore, the evidence supports the circuit court’s determination that Bell failed to demonstrate that counsel was deficient in his handling of the competency report. Moreover, there was no indication that Bell was prejudiced by counsel’s action because it is not now alleged that Bell was incompetent or that a more complete report would have changed the outcome of the trial.

K. Concession of Guilt and CCP Aggravator

Bell asserts that his trial counsel conceded Bell’s guilt and the CCP aggra-vator in counsel’s closing remarks at the guilt and penalty phases of trial. The relevant comment from the guilt phase that is cited as error was the following:

And it seems to me that oft[en] juries and certainly you are in a situation where you see senseless jungle like barbaric killing but you’re confronted with the situation where the witnesses for the state tell a number of different stories.

While Nichols commented on the ferocity of the killings, he did not concede that Bell committed those killings. Nichols was instead explaining that the fierceness of the killings did not mean that the jury should convict Bell if the evidence did not prove that Bell was guilty. Thus, we affirm the circuit court’s determination that Bell did not demonstrate that trial counsel was ineffective because of that remark.

Bell also asserts that trial counsel made several remarks conceding the CCP aggra-vator during his penalty-phase closing argument. These comments included:

The cold, deliberate, calculated], intentional killing of a human being is an unacceptable act. It should be utterly and completely unacceptable in a civilized society. It is just as unacceptable, it is just as much a tragic act of violence when it’s done by — whether it’s done by a masked gunman in a parking lot or whether it’s done by a hooded anonymous executioner at the Florida State Prison. It’s unacceptable and it’s tragic.

... But if you look at this, you’ll see that although there is no justification, moral or legal for the acts that were committed at Moncrief Liquors, that neither is this the kind of case that requires a death penalty as asked for by the State.

Bell has failed to demonstrate that Nichols conceded the CCP aggravator with these comments. In each instance, trial counsel is responding to the State’s same-mercy argument by explaining that the jury should not commit similar offenses to those committed in this case. While this argument was not successful, Bell has not demonstrated that this closing argument was outside the wide range of acceptable performance by trial counsel. See Window v. State, 886 So.2d 915, 929 (Fla.2004) (“[I]t was reasonable trial strategy for [trial counsel] to be realistic about the facts of the case in order to restore a measure of credibility to the defense as it moved into the penalty phase.” (quoting trial court’s order)); Reed v. State, 875 So.2d 415, 434 n. 11 (Fla.2004) (“Clearly, the point of this argument was not to concede the [heinous, atrocious, and cruel] aggravator but rather to acknowledge the brutality of the crime in an attempt to sympathize with the jury’s emotional reaction to it, warn them against a misguided desire to convict anyone on the basis of that emotional reaction, and ensure they held the State to its burden of proof in the guilt phase”).

Even if trial counsel was deficient for these remarks, Bell has not demonstrated that any prejudice resulted from counsel’s comments because, given the facts of this case, our confidence in the outcome is not undermined specifically as to the finding of the CCP aggravator. Id. (“Furthermore, given the facts of this case, we cannot find that, in the absence of this comment, the HAC aggravator would not have been found by the judge or jury.”). Thus, we affirm the circuit court’s denial of this claim.

L. Spectator’s T-shirt

Bell claims that trial counsel was ineffective for failing to get a conclusive ruling on his motion to strike the entire jury venire due to the presence during voir dire of a spectator in the courtroom who wore a T-shirt memorializing and depicting one of the victims. The discovery and inquiry occurred after the prospective jurors were excused for lunch:

THE COURT: Ask that lady with the picture on her shirt to step back in here. Is this picture, I can’t see from here, is that picture of someone on the T-shirt?

MR. NICHOLS: It’s a picture of the victim, is it not?

MR. BATEH: I didn’t see.

THE COURT: Picture of the victim in this case?

MR. NICHOLS: Yes.

THE COURT: You’re not allowed to do that. If you want to watch the trial at 1:15 if you want to come back with another T-shirt on you do that, that would be error. All it will do is cause this case to be reversed if that picture of the victim in this case is worn by anyone. If you want to come back you make sure you come back without it. You may step out in the hallway, please.

MR. NICHOLS: Your Honor, before she leaves I need to look at the T-shirt and see what it says on it and see what I need to raise.

MR. NICHOLS: It says — it’s got a photograph of one of the victims, Tamec-ka Smith, and it says — and the photograph fills up nearly the entire front of the T-shirt. Underneath it says — I think it says well remembered in the record in memory of our beloved Tamec-ka Smith and then birthday and date of her death.

MR. NICHOLS: Your Honor, I have noticed this lady being present, although I did not notice what was on the front of the T-shirt. She’s been present during the entire process this morning, I don’t know how many jurors have seen it. It’s a photograph of the top of the shoulders and head of Tamecka Smith. I think out of abundance of caution I should ask the court to strike this panel and get a new [panel].

THE COURT: Well, I don’t know how many of them saw it, I don’t know many of them saw the picture, I can see the picture from here but I can’t read the writing underneath the picture.

THE COURT: Well, what we will do since just make inquiry [sic] of the jury when they come back I will frame the question in such a way hopefully get response without any other problems.

When the jury returned, the trial court made the following inquiry:

THE COURT: Members of the jury panel, during the course of the proceedings this morning there were a number of women in the courtroom on the side opposite you sitting toward the rear and one of them had — was wearing a white T-shirt and had a picture on it and another as I understand had a picture and a frame. I don’t know how big the picture in the frame was. The question is: And I think the only opportunity you would have had to seen them [sic] is when you got up and turned around to leave the courtroom but did any of you see those persons? If so raise your hand.

All right. We’ve got seven of you saw those persons with the — either the picture in the frame or the picture on the T-shirt. Did any of you know who the person on the — in the picture was or on the T-shirt was? If so raise your hand. No one has raised their hand.

Would having seen the picture on the T-shirt or the picture in the frame, would that affect your ability to be a fair and impartial juror if you’re selected to serve on the jury in this case, would it affect your ability? If so raise your hand.

All right. No one has raised their hand.

Bell claims that the panel should have been stricken and that Nichols was ineffective for not pursuing his motion to strike the panel with the trial court. This claim was not addressed at the evidentiary hearing, and the circuit court neglected to address it in its order. Effectively, the circuit court summarily denied this claim since it ultimately denied Bell relief on his postconviction motion. In reviewing a summary denial of a postconviction claim, we “must accept the defendant’s factual allegations as true to the extent they are not rebutted by the record.” Mann v. State, 770 So.2d 1158, 1162 (Fla.2000).

The trial record fully rebuts Bell’s assertion that trial counsel was ineffective for failing to move to strike the jury following the trial court’s examination because the jury was not tainted. Considering a similar claim in a previous case, we denied the defendant’s claim that the jury was tainted and should have been excused following a spectator’s display of photos of the victim. Buckner v. State, 714 So.2d 384, 389 (Fla.1998). We stated:

Under certain circumstances, prejudicial exhibition of emotion may deprive a defendant of a fair trial. Woods v. Dugger, 923 F.2d 1454 (11th Cir.1991) (where prejudicial exhibition “extreme,” new trial warranted). Moreover, it is inappropriate for a judge to inquire into the emotions, mental processes, or mistaken beliefs of jurors. State v. Hamilton, 574 So.2d 124 (Fla.1991). However, a judge may objectively look to the extrinsic factual matters disclosed to the jury and then determine whether there was a reasonable possibility that the breach was prejudicial to the defendant. Id. at 129. In this case, a few of the jurors saw the photographs for a brief moment only and even then, saw them only from a distance; the photographs consisted of nothing more than the victim pictured with other individuals; and none of the jurors who saw the photographs could identify who was depicted in the photographs. On these facts, there is no reasonable possibility that the jury’s brief exposure to the photographs may have changed the outcome of the proceeding. See, e.g., Burns v. State, 609 So.2d 600 (Fla.1992) (widow crying three times in courtroom insufficient to prejudice jury). Consequently, we find this claim to be without merit.

Id. The trial judge in the instant case fully inquired into whether the jury had seen the T-shirt and found that none of the prospective jurors knew who was depicted and none would let the T-shirt influence their decision-making. Thus, there was no reason for the trial court to strike the panel, and trial counsel was not ineffective for failing to pursue a nonmeritorious objection which would have been properly overruled by the trial court. In addition, Bell cannot demonstrate that any prejudice occurred as a result of counsel’s actions. Therefore, we affirm the denial of this claim.

M.Comments on Jury’s Role in Penalty Phase

Bell claims that trial counsel was ineffective for failing to object to various comments made by the trial judge and the prosecutor that Bell claims violated the Supreme Court’s decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). However, we have repeatedly rejected objections to the Florida sentencing scheme based on Caldwell. See Sochor v. State, 619 So.2d 285, 291 (Fla.1993); Turner v. Dugger, 614 So.2d 1075, 1079 (Fla.1992). Therefore, because we have reviewed the comments and determined that they were consistent with Florida’s sentencing scheme, we affirm the circuit court’s determination that counsel was not ineffective for failing to object to them.

N.Peremptory Strike

Bell asserts that trial counsel was ineffective for failing to object to the State’s peremptory striking of a prospective juror. The prospective juror stated during voir dire that following his father’s murder, he was less in favor of the death penalty. He stated that he believed that the death penalty “[i]n a sense” had a place in the criminal justice system. The State subsequently used one of its peremptory strikes on this prospective juror.

The circuit court denied Bell’s claim, holding that any substantive claim was procedurally barred. The court also found that Bell failed to state a legal basis upon which the trial court could