Cox v. State (966 So. 2d 337, 2007)

PER CURIAM.

Allen W. Cox appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

FACTUAL AND PROCEDURAL HISTORY

Allen W. Cox was convicted of the first-degree murder of fellow inmate Thomas M. Baker, Jr. See Cox v. State, 819 So.2d 705, 710 (Fla.2002). In the opinion affirming Cox’s conviction and sentence, we detailed the facts surrounding the murder:

On December 20, 1998, the appellant discovered that someone had broken into his personal footlocker and stolen approximately $500. Upon making this discovery, Cox walked out onto the balcony of his dorm and announced that he would give fifty dollars to anyone willing to identify the thief. He also indicated that when he discovered who had stolen from him, he would stab and kill that person, and that he did not care about the consequences.

During the prison’s lunch period on December 21, the appellant called Baker over to him, and then hit him with his fists to knock him down. During the attack, the victim continuously attempted to break free from Cox, and also denied stealing from him multiple times. At a lull in the beating, the appellant said, “This ain’t good enough,” and stabbed Baker with an icepick-shaped shank [n.2] three times. After the stabbing, Appellant walked away stating, “It ain’t over, I’ve got one more ... to get.” He then walked behind the prison pump house and hid the shiv in a pipe. Cox proceeded from the pump house to his dorm, where he encountered Donny Cox (unrelated to the appellant). There, Appellant questioned him about his stolen money and told him that if Cox had his money, he would kill him also. Following this exchange, the appellant returned to his cell, where he next attacked his cellmate, Lawrence Wood, advising him that Wood was “lucky I put it up, or I’d get [you].”

While the appellant was returning to his cell, the stabbing victim fled the attack scene and ran to corrections officers in a nearby building. The officers present at the time testified at trial that Baker had blood coming from his mouth, and that he was hysterically complaining that his lungs were filling with blood. Baker also responded to the prison officials’ questions regarding who had attacked him by saying, “Big Al, Echo dorm, quad three.” Although the corrections officers attempted to expedite emergency treatment of the victim by placing him on a stretcher and carrying him on foot to the prison medical center, Baker died before arriving at the hospital.

Doctor Janet Pillow testified that upon her autopsy of the victim, she found that the victim had been stabbed three times. Two of the wounds inflicted were shallow punctures of the lower torso, but the fatal wound had entered the victim’s back and traveled through the chest cavity, between two ribs, and finally pierced the lungs and aorta. She testified that a conscious person with this wound would suffer from “air hunger,” and would be aware of the “serious danger of dying.” She described the wound as being approximately 17.5 centimeters deep, although only two millimeters wide. Doctor Pillow verified that the shank found by the pump house was consistent with the victim’s injuries, despite the fact that the wound was deeper than the length of the weapon. She attributed the discrepancy between the length of the weapon and the depth of the wound to the elasticity of human tissue.

The appellant also testified, contending that all of the previous witnesses were correct, except that they had not seen what truly happened when he, Baker, and Vincent Maynard, a third inmate, were close together. According to Cox, it was he who had in fact dodged Baker and Maynard’s attempts to stab him, and it was Maynard who actually stabbed Baker in the back accidentally. In Cox’s version of the events, he had only struck the victim because he was defending himself from both of the other attacking men. Following the conclusion of the guilt phase testimony and argument, the jury deliberated, apparently rejected the view of the evidence offered by Cox, and found the appellant guilty of first-degree murder.

[n.2] A “shank” or “shiv” is a homemade knife.

Id. at 709-10.

During the penalty phase, the State presented five witnesses who testified with regard to Cox’s prior convictions. Mary Louise Hamilton and Michael Bishop testified that they each worked at a convenience store in Lebanon, Kentucky. Hamilton testified that in May of 1980 and February of 1981, Cox used a firearm to rob the store in which she was working. Michael Bishop was also present during the May 1980 robbery and testified about the event. Judith and Earl Turner provided testimony with regard to an incident which occurred during November 1989, in which Cox broke into their Margate, Florida, home and beat Earl with a three-hole punch. Finally, Bonnie Primeau testified that during October of 1989, Cox entered the store in which she was working at 2:30 a.m., dragged her out of the store, and pushed her over a cement wall, which caused a fractured pelvis. According to Primeau, Cox attempted to force her to perform oral sex, and then he attempted to sodomize her. When both attempts failed, Cox raped her vaginally.

Defense counsel presented the testimony of four witnesses and read the deposition testimony of Cox’s father, Ray, to the jury. Donald Johnson, an inmate housed with Cox at Lake Correctional Institution, testified that he and Cox were friends, and that Cox never bothered anyone before the incident with Baker. Cox’s grandmother, Hazel Cox, established that Cox’s parents were distant relatives, and that Cox had attempted suicide when he was fifteen years old. Cox came to live with her when he was approximately ten years old, and he lived with her for four or five years. During that period of time, he took care of her and obeyed her, and she never mistreated him.

Cox’s sister, Elizabeth Veatch, testified with regard to the emotional and physical abuse suffered by herself and Cox at the hands of their mother, and that Cox was beaten more frequently by the mother because Cox looked like his father, Ray, and the mother disliked Ray. Veatch stated that when Cox was ten, his mother abandoned him on the road in front of his father’s house. Finally, Veatch related that the maternal grandfather “went crazy” and was placed in an institution. The father, Ray Cox, described fights in which he was involved with Cox’s mother, Barbara, in the presence of the children, and testified that when Barbara abandoned Cox in front of the father’s house, she stated that she would kill Cox if he ever returned to her house. Ray further testified that when Cox was younger, he had been injured in a motorcycle accident and was not wearing a helmet at the time.

Finally, Dr. Elizabeth McMahon testified that she met with Cox for a total of thirteen hours. In addition, she interviewed Cox’s mother, father, his two sisters, and his grandmother. She detailed the extensive list of documents she reviewed in evaluating Cox, which included Department of Corrections (DOC) medical records and notes, witness depositions, and a twenty-five page forensic assessment from the public defender’s office that was completed by Cox. She also administered a battery of tests to Cox, including the Wechsler Adult Intelligence Scale, the Stroupe Color Word Test, the Memory Assessment Scale, the Raised Complex Figure Test, the Wisconsin Card Sorting Test, the Minnesota Multi-Phasic Personality Inventory, the Rorschach Test, the Personality Disorder Questionnaire, the Projective Drawings and Hand Test, and the Trauma Symptom Inventory.

Dr. McMahon was of the opinion that Cox had a deficit with regard to visual memory. According to McMahon, the neurons connecting the area of his brain in control of visual memory to the frontal lobes, which control executive functions, were disrupted. McMahon believed the deficit to be mild, but concluded that Cox’s brain is not one hundred percent functional. Cox appeared to have the most difficulty with being flexible in his thinking and the ability to shift his thinking process to move in another direction. She testified that Cox was legally sane, but suffered from chronic ongoing depression. The DOC medical records indicated that Cox suffered from antisocial personality disorder and alcohol dependence. According to McMahon, Cox did not see other people as trustworthy and, therefore, he had no positive feelings with regard to others. She testified that Cox was “by far one of the emptiest individuals I have ever seen in twenty-five years, of doing evaluations.” McMahon characterized his upbringing as “horrible,” stating that the abuse suffered by Cox was neither consistent nor predictable. She stated that his parents were physically abusive toward him, and relied on an incident in which his father beat him with a two-by-four piece of wood. McMahon testified that Cox’s inability to feel concern for or connect with others is a product of being raised in an environment where there was no trust or security, and Cox was told that he was worthless.

In rebuttal, the State presented the testimony of Dr. Michael Gutman, who was of the view that although Cox suffered from depression, the abuse that Cox suffered as a child toughened him so that he was able to survive in a difficult environment. As a result, he became a successful businessman in prison selling drugs. Gutman testified that he believed the killing of Baker was a business decision made by Cox to protect his money and his status in the prison as a drug dealer. Therefore, Gut-man concluded that the abuse suffered by Cox during his childhood did not play a role in the killing of Baker. Gutman disagreed with Dr. McMahon’s conclusion that Cox was an emotionally empty person with poor social skills. Gutman concluded after speaking with Cox that he was “smooth, and..comfortable in talking, articulate, communicated well.” To the extent that Cox might be shy, Gutman concluded that “he compensates for that by having a very positive on-stage personality.”

On March 20, 2000, the jury returned a recommendation of death by a vote of ten to two. In sentencing Cox to death, the trial judge found four aggravating circumstances — (1) previous conviction of a violent felony; (2) capital felony committed by person previously convicted of a felony and under sentence of imprisonment; (3) the capital felony was committed in a cold, calculated, and premeditated manner; and (4) the murder was heinous, atrocious, or cruel. See Cox, 819 So.2d at 710 n. 4. Although no statutory mitigation existed, the trial court found and weighed numerous nonstatutory mitigators as follows:

(1) severe domestic violence in Cox’s childhood home — slight weight; (2) Cox’s mother was very cruel and unpredictable — slight weight; (3) Cox’s mother was very cruel to the children — slight weight; (4) frequently absent father who failed to protect Cox from mother’s physical abuse; — slight weight; (5) Cox’s mother was emotionally unstable — slight weight; (6) Cox was forced to haul firewood as a small child until he dropped from physical exhaustion — slight weight; (7) Cox’s parents divorced and remarried only to divorce again — some weight; (8) Cox has no happy memories from his childhood — slight weight; (9) Cox’s mother abandoned him when he was eleven years old, forcing his father to send him to his grandmother’s house for her to raise — some weight; (10) Cox was the frequent victim of inconsistent and unpredictable patterns of discipline as a child — no separate weight; (11) Cox’s mother failed to demonstrate any maternal affection — no additional weight; (12) Cox grew up feeling unwanted, unloved, and worthless — no additional weight; (13) Cox is able to form friendships — ■ slight weight; (14) Cox suffers from dys-thymic disorder, a chronic depressive disorder unrelated to substance abuse; the disorder is amenable to treatment— slight weight; (15) Appellant has been diagnosed additionally with adjustment disorder with depression; major depressive disorder, recurrent and severe; anti-social personality; alcohol dependence; and mixed personality disorder — slight weight; (16) Cox has been on antidepressant medication since 1991 — no additional weight; (17) Cox suffers from severe depression — no additional weight; (18) Cox attempted suicide once in his youth and still has suicidal thoughts — slight weight; (19) Cox demonstrates brain impairment possibly from a head injury or a congenital birth defect or both — slight weight; (20) Cox’s early childhood left him with feelings of hopelessness, insecurity, rejection, and inadequacy — no additional weight; (21) Cox was severely injured in a motorcycle accident when he was sixteen rendering him unconscious — no additional weight; (22) Cox suffers from very rigid and repetitive thinking — no additional weight; (23) Cox is alienated and isolated and is distrustful of others — little weight; (24) Cox suffers from a severely impaired spectrum of emotional responses — slight weight; (25) as a result of his childhood, Cox has no sense of moral development — no additional weight; (26) Cox’s mental illness could have been treated and controlled with medication or counseling or both — no additional weight; (27) at the time of the offense, Cox’s ability to exercise good judgment was impaired — no additional weight; (28) Cox behaved well throughout these court proceedings — some weight; (29) Cox’s moral development was similar to a retarded person — no additional weight; (30) Cox is able to function and grow in prison — some weight; (31) Cox is loved by his family — slight weight; and (32) Cox is a human being — no additional weight.

Id. at 710 n. 5.

On direct appeal, Cox presented the following issues: (1) the trial court erred in denying his motion for a mistrial based upon a discovery violation; (2) the trial court erred in denying his motion for a mistrial after a testimonial violation of court order in limine; (3) the trial court erred in ordering his penalty phase mental health expert to turn over her notes and testing materials to the State prior to trial; (4) the trial court erred in refusing to accept his offer to stipulate to his prior violent felony convictions; (5) the prosecutor’s misstatements of the law and allegedly improper argument amounted to fundamental error; (6) the trial court erred by instructing the jury on the heinous, atrocious, or cruel aggravator and in finding that this aggravator was proven; (7) the trial court erred by instructing the jury on the cold, calculated, and premeditated ag-gravator and in finding that this aggravator was proven; (8) the trial court erred by failing to consider all available mitigating evidence and in giving little weight to valid mitigation; (9) the death penalty is disproportionate in the instant case; and (10) Florida’s death penalty scheme violates the Florida and United States Constitutions. See id. at 711 n. 6. This Court denied relief on all of his claims and upheld his conviction and sentence. See id. at 725.

MOTION FOR POSTCONVICTION RELIEF

On January 6, 2004, Cox filed a motion for postconviction relief raising five claims, two of which presented multiple sub-claims. On July 16, 2004, the trial court entered an order requiring an evidentiary hearing on claims I, II (in part), and III. After an evidentiary hearing was held, the trial court entered an order denying Cox’s motion. This appeal followed.

I. Ineffectiveness of Trial Counsel

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 to establish ineffective assistance of counsel, 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. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Because each prong of the Strickland test presents mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

A strong presumption exists 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)). In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), we concluded 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.” It is under this legal framework that these claims of ineffectiveness of trial counsel will be addressed.

A. Ineffectiveness During Voir Dire

Cox contends that his trial counsel was ineffective during voir dire in failing to object to prosecutorial misstatements of the law, in failing to probe the jury panel as to several issues in death penalty litigation, such as mental health mitigation, and for questioning a juror in the presence of the entire panel with regard to her response on the jury form which stated “fry him,” “once they get cooked they ain’t gonna kill anyone else.”

Prosecutorial Misstatements

On direct appeal, we concluded that on multiple occasions during voir dire the prosecution misrepresented the responsibility of the jury with regard to the weighing of the evidence in making a sentencing recommendation:

During jury selection, the prosecutor misstated Florida law by advising the prospective jurors that if “the evidence in aggravation outweighs the evidence in mitigation, the law says that you must recommend that Mr. Cox die.” (Emphasis supplied.) The substance of this statement was repeated five times to the jury, four times during voir dire and once during closing argument. It is unmistakable that these statements are improper characterizations of Florida law regarding the weighing of mitigators and aggravators, as we have declared many times that “a jury is neither compelled nor required to recommend death where aggravating factors outweigh mitigating factors.”

Cox, 819 So.2d at 717 (quoting Henyard v. State, 689 So.2d 239, 249-50 (Fla.1996)). We further noted that defense counsel failed to object to these misstatements. See id. Nonetheless, we ultimately held that the misstatements constituted harmless error:

Despite the lucidity of the law here, and the unavoidable conclusion that the prosecution’s comments during Cox’s trial were error, we hold that no fundamental error occurred in the instant case. Fundamental error “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). During voir dire, the prosecutor made the following additional statement:

Well, maybe I’m being a little too simplistic here. What the law says is that you need to weigh the evidence against and weigh it in the other direction, and depending upon which way it balances out, that is supposed to decide your recommendation. You’re supposed to make your recommendation based on the weight. It’s not worded that way, but that’s a short rendition.

Also, the trial court did not repeat the prosecutor’s misstatements of the law during its instruction of the jury — indeed, the trial court’s instructions properly informed the jury of its role under Florida law. Thus, the prosecutorial misrepresentation of the law was harmless error, and certainly does not constitute fundamental error.

Cox, 819 So.2d at 717-18.

We addressed the concept of fundamental error in our analysis on direct appeal because a claim of error that is not preserved by an objection during trial is procedurally barred on appeal unless it constitutes fundamental error. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003). Trial counsel did not object to the statements of the prosecutor, and, therefore, the only way that Cox could obtain relief on this claim was if the misstatements constituted fundamental error. We concluded that they did not because the prosecutor later clarified the law, conceding that his prior statements had been overly “simplistic,” and because the trial court read to the jury instructions that provided, an accurate description of its role in reaching a recommendation. We reaffirm today our conclusion that the prosecutor’s misstatements of the law did not constitute fundamental error because they did not “reach [ ] down into the validity of the trial itself to the extent that [the] ... jury recommendation of death could not have been obtained without the assistance of the alleged error.” Card v. State, 803 So.2d 613, 622 (Fla.2001).

In addition to holding that the prosecutor’s misstatements were not fundamental error, we further concluded on direct appeal that even if the claim had been preserved, any error that occurred was harmless. This conclusion is fatal to Cox’s claim in the instant proceeding that his trial counsel was ineffective for failing to object to these statements. The harmless error test as articulated by this Court requires the State “as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Thus, in concluding that the prosecutor’s misstatements of the law during voir dire constituted harmless error, we held that there was no reasonable probability that these misstatements contributed to Cox’s conviction. See id. Therefore, regardless of whether counsel was deficient for failing to object to improper statements by the prosecution, Cox cannot demonstrate prejudice under the second prong of Strickland. See Maxwell, 490 So.2d at 932 (stating that under the second prong of Strickland, “the clear, substantial deficiency shown must ... be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined,” and holding that “[a] court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied”).

Despite our conclusion that Cox is not entitled to relief in this case, we do caution trial courts to be especially vigilant to ensure that prosecutors do not make inaccurate statements with regard to the law during voir dire.

Voir Dire by Defense Counsel

With regard to the failure to conduct individual voir dire of the juror who wrote “fry him” on her questionnaire, defense counsel William Stone admitted during the evidentiary hearing that it was not his preference to question some of the “extreme ultra-conservative” arguments expressed by certain jurors in the presence of the other jurors. In fact, the trial court record reveals that two motions were filed by defense counsel requesting individual juror voir dire. The first requested sequestered voir dire on certain topics, including juror opinions concerning the death penalty. In the second motion, counsel alleged in pertinent part that “[sjhould voir dire inquiry be conducted concerning the potential jurors’ attitudes concerning the death penalty, individual and sequestered voir dire is necessary and collective voir dire inadequate to explore fully this sensitive and important issue.” With regard to the first motion, the trial court reserved ruling on the portion of the motion requesting individual voir dire with regard to the juror attitudes toward the death penalty. The trial court explained at a pretrial hearing:

With regard to specific questions to specific jurors about the death penalty, I’m going to not tell you that I’m going to do it either way, other than to tell you that if we get an answer from someone that looks a little bit shaky in terms of what might be happening, we’re going to stop and I’m going to leave it up to everybody, including me, to be paying close attention and we’re going to stop with the questioning and ... bring that juror up here....

So, I’m not going to grant or deny [this portion of the motion], at this point in time, subject to what occurs during trial and we are all going to be on our toes to make sure that nothing untoward occurs.

The trial court then denied the second motion subject to its ruling on the first motion.

The trial transcript reveals that, in speaking to the juror in question (juror Gordon), counsel Stone was seeking clarification of her answers on her questionnaire based upon her responses to questions that had been posed by the State during voir dire:

COUNSEL: We really need some understanding of what your answer really is on this question because I read your questionnaire and you told Mr. Gross a minute ago, I can vote for life, then you said before that, it would have to be a solid case.

JUROR: Yes, if he was guilty and there was no evidence to prove otherwise, you know, I’d have to go for the death penalty really, because—

COUNSEL: Okay. So that must mean what you meant in your questionnaire when it was asked whether you have feelings or opinions regarding the death penalty, and you wrote, “fry him,” right?

JUROR: Yeah.

COUNSEL: Then you went on to clarify once they get cooked, they ain’t going to kill anyone else, right.

JUROR: Right.

COUNSEL: Are there any of the rest of you that feel that way? Because it sounds to me like what Miss Gordon is saying is that if you are convicted of First Degree Murder ... then you automatically get the death penalty.

JUROR: Yes.

Thus, counsel Stone, in referencing the “fry him” comment, was attempting to clarify juror Gordon’s position with regard to the death penalty because her written answers on the questionnaire and her verbal statements during voir dire appeared to be inconsistent. Juror Gordon’s responses to counsel Stone’s questions were not inflammatory or aimed toward contaminating or intimidating the other members of the panel; rather, she concisely clarified her position with regard to the death penalty. We conclude that counsel’s questioning of juror Gordon in the presence of the other jurors did not fall below a reasonable standard of care. See Johnson v. State, 903 So.2d 888, 897 (Fla.2005) (“A venire member’s expression of an opinion before the entire panel is not normally considered sufficient to taint the remainder of the panel.”).

With regard to the allegation that defense counsel failed to adequately probe the jury panel because too few questions were asked concerning mitigation and mental health issues, Cox does not elaborate upon or provide insight as to what questions counsel should have asked, or explain the inadequacy of the questions asked. Moreover, as noted by the trial court, Cox failed to allege in his postcon-viction motion or his argument how he was prejudiced by the allegedly incomplete voir dire or by the above exchange between counsel and juror Gordon in the presence of the other jurors. Accordingly, the instant claims are insufficient. See Waterhouse v. State, 792 So.2d 1176, 1181 n. 10 (Fla.2001) (concluding that ineffective assistance of counsel claim was insufficient where defendant failed to alleged how he was prejudiced by counsel’s conduct).

In light of the foregoing, we conclude that the trial court properly rejected the assertion that counsel rendered ineffective assistance during voir dire.

B. Ineffectiveness During Opening Statements

Cox next contends that his trial counsel was ineffective during the opening statement because he conceded that Cox fatally stabbed Baker, and also due to the presentation of argument on defenses that are not recognized in Florida law.

Whether Counsel Conceded Guilt

The two relevant portions of the opening statement during which Cox contends that defense counsel conceded his guilt are as follows:

If there had been a guard there, quite possibly Venezuela would have lived. The fight could have been broken up before it escalated to the point where Venezuela ended up dying.

As far as the medical care goes, Venezuela was able to get up, and if Venezuela was able to get up, given the difference in size between the two men, it’s only because Allen [Cox] let him.

Having carefully reviewed counsel’s opening statement, we conclude that it is clearly distinguishable from that of counsel during the trial of Joe Elton Nixon, which the United States Supreme Court determined to be an acknowledgement of Nixon’s guilt: “In this case, there won’t be any question, none whatsoever, that my client, Joe Elton Nixon, caused Jeannie Bickner’s death.... [T]hat fact will be proved to your satisfaction beyond any doubt.” Florida v. Nixon, 543 U.S. 175, 182, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).

Unlike counsel in Nixon, counsel here specifically contended during his opening statement that the State would be unable to demonstrate beyond a reasonable doubt that Cox stabbed Baker:

In this particular case, the State will not be able to prove the case beyond a reasonable doubt, because what the evidence will show is that there is a lack of evidence.

[T]he evidence in this case will show that they don’t have any videotape of this fight.... [T]hat will contribute to the State’s lack of evidence and their inability to prove their case beyond a reasonable doubt.

Second, there is a lack of physical evidence connecting Allen Cox to the crime.

[Baker’s and Cox’s] clothes were sent off for analysis at FDLE, and those clothes came back with a little bit of Allen Cox’s blood on Allen Cox’s clothes, and a little bit of Thomas Baker’s blood on Thomas Baker’s clothes. We have a victim who bled to death and miraculously Allen Cox is clean as a whistle. And there is no blood at the scene.

Consequently, you have a lack of physical evidence. Take that lack of physical evidence and the lack of a videotape and there has to be a reasonable doubt beginning to grow in your mind.

Thus, unlike defense counsel in Nixon, counsel here never stated that Cox was responsible for Baker’s death. Additionally, counsel did not relieve the State of its duty to demonstrate beyond a reasonable doubt that Cox killed Baker. Indeed, the gist of counsel’s opening statement was the State could not meet the burden of proof required to convict Cox for the murder.

Moreover, the evidence presented during trial demonstrated that the defense theory of the case was that inmate Vincent “Pig” Maynard, not Cox, fatally stabbed Baker. During trial, Cox testified that when he and Baker began to fight, Cox saw Maynard running up to them with a knife in his hand. Cox testified that Maynard was “planning on sticking me, I seen it plain as day.” According to Cox, the following occurred:

I take one step back. I got ahold of Baker’s hand — as a matter of fact, I think both of our hands was on the knife, we were wrestling over the knife. When I backed up and pulled him with me, Pig’s swing come around and stabbed him in the back. Pig is the one that stabbed Venezuela in the back.

During closing argument, defense counsel reiterated this testimony that it was Maynard (Pig) who had inflicted the fatal wound.

As the above testimony reflects, Cox admitted that he and Baker had been fighting during the time that the stabbing occurred. During the postconviction hearing, defense counsel explained that he made a strategic decision to concede during opening statements the fact that Baker and Cox had been fighting at the time of the stabbing because a large number of inmate witnesses were prepared to testify that such an altercation had occurred:

A lot of it had to do with the credibility of the people presenting the case, and to go in there — to go into that trial — and say that, you know, that there wasn’t a fight and our guy wasn’t even in that prison at that time and — I mean, you can only — a suspension of disbelief is a great thing for the movies. It’s not so good for juries. So we have to deal — we had to play the hand that we were dealt, and choose our battle, I guess, would be the best phrase.

Counsel testified that enough inmates had witnessed the fight that disputing the altercation during opening statement would have been detrimental to the credibility of the defense.

In fight of the foregoing, we conclude that defense counsel did not concede Cox’s guilt during the opening statement. Further, to the extent that counsel conceded during the opening statement that an altercation had occurred between Cox and Baker, this was a reasoned strategic decision. See Occhicone, 768 So.2d at 1048 (“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.”).

Ineffectiveness for Arguing Defenses Not Recognized in the Law

During opening statement, defense counsel made the following statements with regard to the care received by Baker after the stabbing:

Thomas Baker ran in and he said to Officer Parker, “I’m hit. I’ve been stabbed.” ... Officer Parker, the first thing she did, she picked up that phone and she called the medical emergency number and she heard the phone ring once, and then she heard the phone ring again, and again, and again after that. And the phone kept on ringing.

[T]hey have a rule. The rule is to get the inmate into medical treatment within three minutes of the call. And that didn’t happen in this case.... That they sat there and waited for medical to respond, not three minutes, not four minutes, not five minutes, but as many as fifteen minutes.

So we’re left to look at the poor medical care and what role that plays in ... Baker’s demise.... And because it could have changed the picture so drastically, it should leave you to wondering where the fault for this case lies. Whether or not this killing was premeditated as Mr. McCune and Mr. Gross would like you to believe.

After defense counsel concluded his opening statement, the State moved (outside the presence of the jury) to preclude the defense from cross-examining any witnesses or presenting any evidence with regard to the medical care that Baker received, asserting that the issue was legally irrelevant. When the trial court asked defense counsel to respond, counsel provided the following explanation:

[T]he standard of care or the care that Mr. Baker received goes to the issue of premeditation. This is not a situation ... where we had many, many, many, stab wounds and Allen Cox should have known that Thomas Baker’s death was likely to result.

In fact, if the State’s theory is, and it, under a First Degree prosecution must be, is that Allen Cox’s purpose was to kill Thomas Baker and that theory, that effort was abandoned by Allen Cox when he released Thomas Baker and Thomas Baker ran off to C dorm. Allen Cox didn’t chase him. Allen Cox didn’t beat him unconscious and did not stab him until he didn’t move anymore.

The trial court ultimately agreed with the State that faulty medical care at the prison was not a valid defense. The trial court stated that it was “probably going to preclude [the defense] from arguing this at closing, but I believe that the law is clear that I’ve got to give them wide latitude on cross-examination.... I’m making the Defense aware of my position that I don’t think it’s relevant either.”

In the order denying postconviction relief, the trial court concluded that counsel’s discussion of the medical care that Baker received constituted a reasoned strategic decision to attack the State’s assertion that Cox had committed the crime with premeditation. The court also stated that counsel’s argument “was an aspect of the case that could have blunted premeditation and provided ‘grist for consideration’ should the jury ever consider penalty.” In further concluding that defense counsel was not ineffective, the trial court noted that the faulty medical care claim was not the only argument submitted by counsel. Rather, defense counsel asserted that the State would not be able to prove its case against Cox beyond a reasonable doubt.

We agree with the trial court’s determination that counsel’s discussion of the faulty medical care received by Baker constituted a reasonable trial court strategy to attack the element of premeditation in the State’s case. Counsel’s primary defense strategy was to assert that inmate Vincent “Pig” Maynard fatally stabbed Baker. Nonetheless, even if the jury did not accept this strategy (which it did not, since Cox was convicted of the murder of Baker), the defense’s assertion that Cox intended to stab Baker, but not to kill him, evidenced by Cox allowing Baker to run away after the stabbing, could have factored into the jury’s weighing of whether to impose a life sentence or death.

In light of the foregoing, we conclude that counsel did not render ineffective assistance during opening statements.

C. Ineffectiveness During the Guilt Phase

In his next challenge, Cox contends that counsel was ineffective for failing to object to testimony given by the medical examiner during the guilt phase with regard to (1) the possibility of blood being wiped off the murder weapon, and (2) Baker’s awareness of his imminent death. Cox contends that his counsel was further ineffective for the manner in which he questioned inmate Vincent “Pig” Maynard, which led this witness to reveal the prejudicial and inadmissible fact that Cox was serving two life sentences at the time of the murder of Baker. Finally, Cox contends that counsel was ineffective for failing to investigate evidence of a pattern of alleged threats and intimidation by State investigators against potential inmate defense witnesses. We address each challenge in turn.

Testimony by the Medical Examiner.

During trial, Dr. Janet Pillow provided the following testimony:

Q: Doctor, let’s assume that the shank in the photograph was plunged into Mr. Baker’s body and then drawn out through cloth, because of the lack of a significant amount of bleeding, is it possible that the cloth itself would wipe off the blood as the weapon is being pulled back out of the cloth?

A: That’s possible but also because of the type of injury and the narrowness of the injury, stab wound, of the size of the skin, as the weapon, or whatever is being used, is drawn out of the body, by just the drawing out could wipe away any visible effects of blood, and certainly anything else that the blade might come through, whether it’s cloth or any other substance, could also possibly wipe off the blood, if there were blood.

Q: So even though the weapon goes through a big blood vessel right off the heart, as it’s being pulled out, the mechanical rubbing of the skin, could clean the blade of detectable blood?

A: Yes, sir.

Q: And the cloth as well?

A: Correct.

Dr. Pillow also testified that it was “certainly possible” that a person who had experienced injuries similar to those suffered by Baker would recognize that he was “in serious danger of dying.” Cox contends that counsel was ineffective for allowing the prosecution to elicit testimony from the medical examiner about mere possibilities of the victim’s awareness of imminent death, and also for allowing Dr. Pillow to speculate as to whether the blood on the shank “could” have been wiped clean by drawing it out of the body and through cloth or fabric. Cox asserts that only when testifying as to the actual cause of death may a medical examiner expert testify with less than a reasonable degree of probability. Having considered these claims, we conclude that Cox is not entitled to relief.

During the postconviction hearing, defense counsel testified that he did not object to Dr. Pillow’s testimony regarding the blood on the shank for two reasons. First, he believed Dr. Pillow’s testimony fell within the realm of her qualified expertise. Second, it was the defense contention that the shank in evidence was not the one used to stab Baker and, because the shank in evidence did not have any DNA evidence on it, Dr. Pillow’s testimony was not inconsistent with this theory of the defense. Counsel further reasoned that Dr. Pillow’s theory that DNA evidence could be completely wiped off of a murder weapon was “preposterous” and “anybody else with walking-around sense would think the same thing ... in this day and age of watching CSI.”

With regard to the admissibility of expert testimony, this Court has stated:

Section 90.702 requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105. First, the court must determine whether the subject matter is proper for expert testimony, i.e., that it will assist the trier of fact in understanding the evidence or in determining a fact in issue. Second, the court must determine whether the witness is adequately qualified to express an opinion on the matter.

Terry v. State, 668 So.2d 954, 960 (Fla.1996). This Court has further held that “trial courts have wide discretion concerning the admissibility of evidence and the range of subjects about which an expert can testify.” McMullen v. State, 714 So.2d 368, 371 (Fla.1998). In the order denying relief, the trial court agreed that Dr. Pillow’s opinions fell within the realm of her qualified expertise. The trial court proceeded to conclude that “trial counsel’s objection to such testimony would have been futile. Trial counsel cannot be deemed ineffective for failing to object to admissible testimony.”

We conclude that even if defense counsel had objected to this opinion testimony, the trial court would not have abused its discretion in allowing this testimony. During trial, Dr. Pillow was qualified as an expert in forensic pathology. She testified that the shank in evidence was consistent with the type of weapon that caused the fatal injuries suffered by Baker. She testified that the depth of a victim’s wound could be longer than the weapon itself based upon the force used and the sharpness of the weapon. She also testified that the width of an injury could be broader than the width of the weapon -based upon tissue elasticity. Given that Dr. Pillow was qualified to express an opinion on the effect of a weapon on a human tissue, it similarly was within her expertise to express an opinion as to the availability of DNA evidence or blood on that same weapon upon its extraction from human tissue. Accordingly, we conclude that this evidence was admissible at trial, and counsel was not ineffective for failing to object. See generally Gordon v. State, 863 So.2d 1215, 1223 (Fla.2003) (“Counsel cannot be deemed to be ineffective for failing to raise a motion that would have been futile.”); see also Holland v. State, 916 So.2d 750, 758 (Fla.2005) (holding that trial counsel was not ineffective for failing to object to testimony that fell within the permissible range of ordinary police experience), cert. denied, 547 U.S. 1078, 126 S.Ct. 1790, 164 L.Ed.2d 531 (2006).

We further conclude that Cox was not prejudiced by the failure to object to Dr. Pillow’s statement that it was “certainly possible” that a person who had experienced injuries similar to those suffered by Baker would recognize that he was “in serious danger of dying.” In the postcon-viction order, the trial court detailed the substantial evidence supporting the conclusion that Baker was aware of his imminent death:

Captain Brack Johnson ... testified that after the stabbing it was apparent that [Baker] was struggling, blood was trickling out of his mouth, and that he had stated his lungs were filling up with blood. Susan Parker testified that [Baker] was very scared and hysterical after the stabbing. She stated that [Baker] was coughing and spitting up from his mouth. Ms. Parker stated that she could tell he was getting worse and he was getting paler. Sergeant Joseph McBrayer testified that [Baker] was having trouble breathing and that [Baker] felt that his lungs were filling with blood.

Dr. Pillow testified during the autopsy that she found 1000 milliliters of blood free in the left chest cavity and 300 milliliters of blood free in the right cavity for a total of approximately 1.3 liters (or about one quart) of blood. Dr. Pillow said that the stab wounds would not have rendered [Baker] unconscious immediately and that the wounds would be painful and affect [his] ability to breathe. Finally, Dr. Pillow testified that [Baker] would feel his lungs fill with blood and he would have experienced air hunger.

Further, on direct appeal this Court, in approving the finding of the HAC aggravator, noted that “[a]n inmate witness testified that Baker said, ‘Ms. Parker, please don’t let me die.’ ” Cox, 819 So.2d at 720.

Given this copious evidence through which the jury could have independently reached the conclusion that Baker was aware of his impending death, the failure to object to Dr. Pillow’s testimony did not “so affect [ ] the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Maxwell, 490 So.2d at 932. In light of the foregoing, we affirm the trial court’s denial of relief on this claim.

Cross-Examination of Inmate Maynard

On direct appeal, this Court described the circumstances surrounding inmate Maynard’s revelation of the fact that Cox was serving two life sentences:

In preparation for the testimony of the witnesses to the appellant’s “reward announcement,” the trial court granted a defense motion in limine to preclude the State from introducing any evidence of the appellant’s statement during his proclamation that he did not care about the consequences of killing the thief, because he was already serving two life sentences. To ensure compliance with the order, the court instructed the State to inform all of its witnesses of the ruling, and the court also did so before each of them testified.- All of the State’s witnesses complied with the order.

- During the defense case-in-chief, the appellant’s attorneys elicited the testimony of Vincent Maynard, another LCI inmate. After an initial period of neutral direct examination, the defense began to explicitly attempt to blame Maynard for the death of the -victim. The defense proffered reverse Williams rule evidence of Maynard’s prior crimes, and started to question him in an openly hostile manner, resulting in an argumentative exchange of questions and -answers between the examining attorney and witness. Not long after direct examination in the presence of the jury commenced, Maynard responded to a wholly unrelated but hostile line of questioning by saying, “Sir, he has two life sentences already.” The defense moved for a mistrial, however, the court denied this motion and gave the following curative instruction:

Ladies and gentlemen, you are instructed that the sentence that Mr. Cox was serving at Lake Correctional Institution is not relevant to this case in any way. He has never been convicted nor is he serving any sentence for homicide or any type of murder.

Cox, 819 So.2d at 713 (footnote omitted). This Court ultimately concluded that the trial court did not abuse its discretion in denying defense counsel’s motion for a mistrial:

In the instant case, the fact that Cox was serving two life sentences was certainly not critical to the State’s case, and was not related to its theories — the jury already knew that he was an inmate at the Lake Correctional Institution where the events occurred. Additionally, defense counsel knew and assumed the risks of argumentatively questioning an openly hostile witness, and chose to do so in an extraordinarily combative manner. While the defense may have been chagrined that the jury was informed that the appellant was serving two life sentences due to the defense strategy, this information did not “vitiate the entire trial.” Duest v. State, 462 So.2d 446, 448 (Fla.1985). Therefore, a mistrial was not proper. The trial court properly addressed the situation presented by giving the jury a proper curative instruction and proceeding with the trial.

Id. at 714 (citations and parenthetical omitted).

In the instant case, Cox contends that defense counsel was ineffective for questioning Maynard in a manner that led to the introduction of the evidence that Cox was serving two life sentences. During the postconviction hearing, defense counsel testified that he anticipated Maynard would be á hostile witness because the defense theory was that Maynard actually killed Baker. The defense strategy was to convey to the jurors through Maynard’s demeanor at trial and his prior criminal history that he had the propensity to commit the murder. While defense counsel disputed that he questioned Maynard in an openly hostile manner, he acknowledged that “some of the questions might have been uncomfortable to Mr. Maynard, and that was the idea behind calling him as a witness and the idea behind the line of questioning.” The attorney testified that as a result of this strategy, “we elicited every bit of testimony, emotion, reaction, demonstrative exhibits, anything that you want from Maynard, Pig, that we wanted and anticipated, except when he blurted out ... about the life sentences.” According to counsel, Maynard’s revelation of the two life sentences “wasn’t responsive to anything I said to him at all.”

Cox has failed to demonstrate that his counsel was deficient in the manner in which he questioned Maynard. The defense strategy was to demonstrate “to the jury as thoroughly as possible that this guy had the propensity to [kill Baker] and he was a nasty guy.” In the order denying relief, the trial court concluded that “trial counsel had a duty to aggressively question Mr. Maynard,” and that, had trial counsel failed to do so, “post-conviction counsel could argue that trial counsel was ineffective for failing to aggressively question Mr. Maynard.... [T]he record bears out that Mr. Maynard had to be repeatedly admonished during his testimony.” Having reviewed the trial transcripts, we conclude that defense counsel cannot be faulted for the revelation of prejudicial information in testimony that was nonre-sponsive to a question propounded, and where the trial court explicitly instructed Maynard to only answer the questions asked.

Nonetheless, even if we were to conclude that counsel was deficient in the manner in which he questioned Maynard, Cox cannot demonstrate that he was prejudiced by this deficiency. As noted by this Court on direct appeal, the trial court gave a curative instruction to the jurors informing them that the life sentences being served by Cox were not for any type of murder or homicide. See Cox, 819 So.2d at 713. Further, the jurors were aware that the killing of Baker occurred in a prison and Cox was an inmate in that prison. See id. at 714. Finally, Cox himself testified at trial that he had been convicted of twelve prior felonies. Thus, because the trial court provided a curative instruction and there was independent evidence presented at trial establishing that Cox was a convicted felon with an extensive criminal history, Cox cannot demonstrate that he suffered prejudice as a result of counsel’s performance.

Accordingly, we affirm the trial court’s denial of this claim.

Testimony Regarding Threats and Intimidation

Cox next alleges that his trial counsel was ineffective in failing to present witnesses who could testify with regard to an alleged pattern of threats and intimidation by DOC employees against inmates who could have potentially assisted Cox in his defense against the murder charge. However, we reject this claim because Cox has failed to demonstrate that such a pattern actually existed.

During the postconviction hearing, the sole witness presented to testify with regard to this issue was former inmate Henry Wheeler. According to Wheeler, DOC Inspector Kenneth Williams insinuated to him that “life could be a living hell for me if I helped ... Cox in any way.” Further, Wheeler said that Inspector Williams repeatedly mentioned Washington Correctional Institution, a prison with an unfavorable reputation that was a great distance from where Wheeler’s family lived. Wheeler perceived Inspector Williams’s repeated references to this institution to be an implied threat; i.e., that if Wheeler assisted Cox, he would be transferred there. Wheeler testified that after he told Inspector Williams that he would not assist in the defense, he was transferred to Brevard Correctional Institution, which, according to Wheeler, is a nicer prison with air conditioning. Wheeler additionally testified that when he was released from prison and placed on conditional release, defense counsel contacted him to testify at the underlying trial. According to Wheeler, parole officer Tanya Folsom summoned him and told him that he was still under the guardianship of DOC, and “they can make things rough on you.” According to Wheeler, Folsom made it clear that he was to “stay out of it.” Wheeler subsequently informed defense counsel that he had nothing to say. See id.

In response to Wheeler’s testimony, the State called Inspector Williams and Ms. Folsom. Both testified that they had not threatened Wheeler with negative repercussions if he assisted Cox. According to Ms. Folsom, Wheeler advised her that he had been subpoenaed, and that if Cox was convicted, he would be called as a witness. Folsom told him that traveling to testify would be approved as long as Wheeler gave her a copy of the subpoena. According to Folsom, Wheeler called her later and informed her that he was not required to attend the hearing.

Inspector Williams testified that he had no involvement with Wheeler’s transfer to Brevard Correctional Institution and did not know why he was transferred there. He stated that he never used the transfer process as a reward for inmates. Prior to Baker’s murder and while Wheeler was incarcerated in Lake Correctional Institution, Williams investigated Wheeler for possible violations of Florida law and DOC regulations. In brief, Inspector Williams believed that Wheeler was bringing drugs into the prison compound because his work duty authorized him to go beyond the prison fence. As a result of an investigation, contraband was confiscated, Wheeler was placed in confinement, and his access to areas.beyond the prison fence was terminated.

The trial court concluded that Cox had failed to demonstrate a pattern of threats and intimidation by DOC employees against inmates because (1) Cox had only presented the testimony of one individual, Wheeler; (2) Wheeler’s testimony was contradicted by Inspector Williams and Ms. Folsom; (3) Wheeler has numerous felony convictions; and (4) Wheeler had a personal reason to dislike Williams. The trial court ultimately concluded that Wheeler was not a credible witness. This Court “reeognize[s] and honor[s] the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact. The deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review. In many instances, the. trial court is in a superior position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.’ ” Stephens v. State, 748 So.2d 1028, 1084 (Fla.1999) (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). In the proceedings below, the trial court reviewed the conflicting testimony of Wheeler, Inspector Williams, and Ms. Folsom, observed the demeanor of these witnesses, and concluded that Wheeler’s testimony was not credible. We defer to the trial court’s assessment of credibility and affirm its determination that Cox has failed to demonstrate a pattern of threats and intimidation against the inmates of Lake Correctional Institution.

D. Ineffectiveness During the Penalty Phase

Cox next asserts that counsel was ineffective for failing to conduct an adequate investigation into mitigating evidence. According to Cox, defense counsel did not begin the investigation into potential mitigation until shortly before the trial date. Cox asserts that counsel did not talk to any family members until the deposition of Hazel Cox, which occurred on February 23, 2000, less than two weeks before his trial began. Further, only five days before trial, defense counsel informed the court that their expert had found no statutory mitigators. Cox argues that a complete investigation would have revealed information that would have added to the weight of the existing mitigating circumstances, provided additional mitigation, and provided evidence necessary for the completion of a valid expert mental health evaluation.

Testimony at the Evidentiary Hearing

During the evidentiary hearing, the second wife of Cox’s father testified that before Cox’s mother abandoned him at their house, she would see bruises on him from beatings administered by the mother. She also testified that Cox’s father would beat her in front of Cox and her own children. She testified that when Cox eventually began living with his grandmother, Hazel, she failed to supervise him. As a result, when bad things happened, Cox would be blamed, regardless of whether he was actually responsible.

Cathy Null, another sister of Cox, testified about an incident where the father was holding the mother on the ground while she was pregnant, and Cox picked up a rock and said, “Get off my mama, or I’m going to kill you.” She testified that she saw the father punch Cox while he was handcuffed in the back of a police car, and the officers failed to intervene. She also testified that the grandmother was very lenient with Cox, and described one occasion in which Cox hid. from the police in his grandmother’s house and the sister was told that she must not disclose the location of Cox.

Cox’s father testified that when defense counsel visited Kentucky, he accompanied the attorney to a tavern to speak with Cox’s friends. According to the father, the attorney became drunk and required assistance to return to his hotel room. The father did not say anything at the time of Cox’s trial because he did not want the attorney to encounter trouble because counsel was attempting to help his son. The father related that counsel was in Kentucky for approximately two weeks, but only became intoxicated on that one occasion. With regard to background information, the father described an incident in which Cox was slammed into a tree by a mule while logging.

Dr. Robert Berland evaluated Cox