Overton v. State (976 So. 2d 536, 2007)

PER CURIAM.

Thomas Mitchell Overton seeks review of the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. Overton also appeals the trial court’s denial of his second motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. Finally, Overton petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.; Fla. R.Crim. P. 3.853.

FACTUAL AND PROCEDURAL HISTORY

Overton was convicted for the first-degree murders of Susan and Michael Macl-vor, for the killing of the Maclvors’ unborn child, for sexual battery upon Susan, and for the burglary of the Maclvor home. See Overton v. State, 801 So.2d 877, 888 (Fla.2001). This Court detailed the facts surrounding these murders and other crimes in the direct appeal of Overton’s convictions and death sentences:

On August 22, 1991, Susan Michelle Maclvor, age 29, and her husband, Michael Maclvor, age 30, were found murdered in their home in Tavernier Key....

Once law enforcement officers arrived, a thorough examination of the house was undertaken. In the living room, where Michael’s body was found, investigators noted that his entire head had been taped with masking tape, with the exception of his nose which was partially exposed.... The investigators surmised that a struggle had taken place because personal papers were scattered on the floor near a desk, and the couch and coffee table had been moved....

Continuing the search toward the master bedroom, a piece of clothesline rope was found just outside the bedroom doorway. Susan’s completely naked body was found on top of a white comforter. Her ankles were tied together with a belt, several layers of masking tape and clothesline rope. Her wrists were also bound together with a belt. Two belts secured her bound wrists to her ankles. Around her neck was a garrote formed by using a necktie and a black sash, which was wrapped around her neck several times. Her hair was tangled in the knot. Noticing that a dresser drawer containing belts and neckties had been pulled open, officers believed that the items used to bind and strangle Susan came from inside the home.... Also under the comforter was her night shirt; the buttons had been torn off with such force that the button shanks had been separated from the buttons themselves. Near the night shirt were her panties which had been cut along each side in the hip area with a sharp instrument.

The medical examiner determined that Susan was approximately eight months pregnant at the time and proceeded to examine the fetus. The doctor determined that the baby would have been viable had he been born, and that he lived approximately thirty minutes after his mother died. The doctor testified that there was evidence that he tried to breath on his own.

The discovery of this death scene produced a large-scale investigation, and comparable media coverage focused on the murders. Over the years following the murders, law enforcement agencies investigated several potential suspects. Through this investigatory process, Thomas Overton’s name was brought up during a brain-storming session in May 1992. The reason he was considered a suspect was because he was a known cat burglar, whom police suspected in the murder of 20 year old Rachelle Surrett. At the time of the Maclvor murders, Overton worked at the Amoco gas station which was only a couple of minutes away from the Maclvor home....

In June of 1993, the cuttings from the bedding were sent to the FDLE lab.... Through a process known as restriction fragment length polymorphism (RFLP), Dr. Pollock was able to develop a DNA profile from two of the cuttings.... Dr. Pollock compared the profile to samples from several potential suspects. No match was made at that time.

In late 1996, Overton, then under surveillance, was arrested during a burglary in progress. Once in custody, officers asked him to provide a blood sample, which Overton refused. Days later, Overton asked correction officers for a razor, and one was provided. Overton removed the blade from the plastic razor using a wire from a ceiling vent, and made two cuts into his throat. The towel that was pressed against his throat to stop the bleeding was turned over to investigators by corrections officers ....

In November of 1996, over five years after the murders, Dr. Pollock was able to compare the profile extracted from the stains in the bedding to a profile developed after extracting DNA from Overton’s blood. After comparing both profiles at six different loci, there was an exact match at each locus....

In 1998, the cuttings from the bedding were submitted to yet another lab, the Bode Technology Group (Bode).... The Bode lab conducted a different DNA test, known as short tandem repeat testing (STR), from that performed by the FDLE. Overton’s DNA and that extracted from a stain at the scene matched at all twelve loci.

Id. at 881-84 (footnotes omitted).

After Overton was convicted for the crimes surrounding this incident, the jury recommended the death penalty by a vote of nine to three for the murder of Susan and by a vote of eight to four for the murder of Michael. See id. at 888-89. The trial judge found the following five aggravators with regard to both victims: (1) the murders were heinous, atrocious, and cruel (“HAC”); (2) the murders were committed in a cold, calculated, and premeditated manner; (3) the defendant had a previous conviction for a violent felony (contemporaneous conviction for murder); (4) the murders were committed while Overton was committing a sexual battery and burglary; and (5) the murders were committed for the purpose of avoiding or preventing a lawful arrest. See id. at 889. The trial judge found no statutory mitigating circumstances and two nonstatutory mitigating circumstances. The trial court found that “in weighing the aggravating circumstances against the mitigating circumstances, the scales of life and death tilt unquestionably to the side of death” and imposed the death sentence on Overton for each of the murders. Id. With regard to the other offenses, Overton was given a fifteen-year sentence of imprisonment for the killing of an unborn child, a life imprisonment term for the burglary, and a life imprisonment term for the sexual battery. See id.

On direct appeal, this Court considered the following claims: (1) the trial court erred in denying Overton’s challenges for cause with regard to prospective jurors Russell and Heuslein; (2) the trial court erred in not compelling discovery of documents from the Bode Lab relating to the STR DNA tests and in not granting a continuance so that Overton’s counsel could review these documents; (3) the trial court erred in not appointing an additional defense expert to rebut the State’s evidence relating to the defense theory concerning Nonoxynol; (4) the trial court erred in denying Overton’s motion for mistrial after the State made statements during the rebuttal closing argument that Overton had requested only one Nonoxy-nol test but the State had sought additional testing; (5) the trial court erred in allowing the State to improperly bolster Zientek’s testimony through the alleged hearsay testimony of a prison chaplain; (6) the trial court erred in ruling that the State could elicit from Detective Visco the context from which the internal affairs complaint that Overton filed against him arose; (7) the trial court erred in finding the HAC aggravator with regard to the murder of Michael; (8) the trial court erred in not instructing the jury that it should use great caution in relying on the testimony of the informants; and (9) the trial court erred in not considering certain available mitigation that Overton chose not to present. See id. at 889-905. This Court denied all of these claims. See id. at 906. This Court also determined that sufficient evidence existed and the death sentences were proportionate. See id. at 905. Accordingly, this Court affirmed Overton’s convictions and death sentences. See id. at 906.

Overton filed an initial rule 3.851 motion for postconviction relief on April 30, 2003. On October 30, 2003, Overton filed an amended motion for postconviction relief, in which he presented the following allegations: (I) access to files and records that were in possession of state agencies were improperly withheld in violation of Florida Rule of Criminal Procedure 3.852; (II) trial counsel failed to adequately investigate/prepare a case and challenge the State’s case due in part to the actions of the trial court and the State; (III) the State committed Brady and Giglio violations and, trial counsel was ineffective for the failure to present this during the trial; (IV) the State improperly used James Zientek (a jailhouse informant) as an undisclosed agent of law enforcement; (V) Overton was prejudiced by pre-indictment delay; (VI) trial counsel operated under an actual conflict of interest; (VII) an improper jury instruction with regard to expert testimony was used during trial; (VIII) the rule prohibiting attorneys from interviewing jurors prevented trial counsel from being effective; (IX) the voir dire by trial counsel was improper; (X) the combination of errors prevented a fair trial; (XI) trial counsel was ineffective for the failure to object to the introduction of time-barred offenses; and (XII) Overton’s sentence was unconstitutional under Ring. On March 26, 2004, a Huff hearing was held. The trial court ordered an evidentiary hearing on Claims II, IV, V, and VI. This Court denied a petition by Overton to delay the evidentiary hearing. On October 8, 2004, Overton filed a third amended motion for postconviction relief in which he presented Claim XIII, which alleged that trial counsel was ineffective for the failure to request a Richardson hearing. The trial court denied an evidentiary hearing on Claim XIII. The evidentiary hearing began on November 15, 2004, and continued until November 17, 2004. On February 14, 2005, the trial court issued an order that denied postconviction relief on all of Overton’s claims.

Overton also filed a motion for DNA testing on April 4, 2004, which sought the testing of several previously untested items of evidence. On May 17, 2004, the trial court issued an order that denied in part and granted in part the motion for DNA testing. Although the trial court found the motion insufficient, the court granted the motion with regard to the sexual assault kit and fingernail scrapings. The trial court denied the motion with regard to the remaining evidence, finding that there was no evidence as to when the DNA evidence was deposited on those items or that the source of that DNA participated in the crime. On August 10, 2004, Overton filed a second motion that requested DNA testing of the hairs attached to the tape used to bind Susan. On August 19, 2004, the trial court denied the second motion, finding that unless the hairs were determined to belong to Over-ton, the results would not be relevant and could not be admitted during the trial. Additionally, the trial court found that the results of any DNA testing on the hairs would not give rise to a reasonable probability that Overton would have been exonerated or given a lesser sentence because there was no way to establish the origin of the tape or hairs, when the hairs attached to the tape, or whether there was any connection between the hairs and the crimes.

Overton filed a petition for a writ of habeas corpus with this Court on February 8, 2006. This appeal followed.

MOTION FOR POSTCONVICTION RELIEF

I. No Full and Fair Evidentiary Hearing

Overton contends that he was denied a full and fair evidentiary hearing at the postconviction stage due to the following: (1) the trial court engaged in questioning during the evidentiary hearing that functioned as questioning from a “second prosecutor”; (2) the evidentiary hearing occurred without proper discovery of the Bode Lab documents; (3) the trial court improperly denied Overton’s request for additional experts to rebut the State’s testing; (4) the trial court placed improper restrictions on Overton’s questioning of witnesses while giving the State “free reign [sic]” to question on any topic; (5) the evidentiary hearing improperly began before all DNA testing had been completed; and (6) the trial court’s denial of discovery requests for FDLE documents prevented a full and fair hearing.

The arguments with regard to the allegedly improper conduct by the trial judge at the evidentiary hearing are all procedurally barred because there was no objection during the evidentiary hearing. To preserve error for appellate review, the general rule requires that a contemporaneous, specific objection occur at the time of the alleged error. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). There is no indication in the record that Overton ever objected or attempted to disqualify Judge Jones due to his alleged improper conduct during the evidentiary hearing. See Schwab v. State, 814 So.2d 402, 407 (Fla.2002) (holding that the judicial bias claim was procedurally barred due to the failure to file a motion to disqualify based upon the reasoning that “where the grounds for a judicial bias claim are known at the time of the original trial, yet are not raised, such claims are waived and cannot be raised in a postcon-viction appeal”). For example, when the trial judge first began asking questions of witnesses during the evidentiary hearing, which Overton alleges functioned as action from a “second prosecutor,” Overton’s postconviction counsel failed to object. But cf. Teffeteller v. Dugger, 676 So.2d 369, 370 (Fla.1996) (addressing the merits of the due process concerns with regard to the hearing after concluding that the appellants’ counsel objected to the hearing procedure). This inaction by Overton’s postconviction counsel is inconsistent with Overton’s current argument that Judge Jones acted as a “second prosecutor.”

Even without these procedural bars, Overton’s claims with regard to his failure to receive a full and fair evidentiary hearing are without merit. With regard to the questioning by the trial court, which Overton contends functioned as action from a “second prosecutor,” there was not any bias displayed by the trial court in favor of either the State or Overton. Instead, the court questioned witnesses to clarify certain points after both parties asked initial questions and also to gain further knowledge into background information with regard to the witnesses. As evidenced by the length of the evidentiary hearing, we conclude that the trial court’s refusal to rush through the evidentiary hearing and the decision to ask questions to ensure that all pertinent information was on the record helped facilitate a full and fair hearing here. See Sims v. State, 754 So.2d 657, 666 (Fla.2000) (holding that the defendant was not deprived of a full and fair hearing on his postconviction motion by reasoning in part that the “trial court set aside several days for the hearing”). Moreover, the trial court elicited information that was clearly helpful to Overton. For example, through questioning by the trial court, Lori Figur, who was employed by Amoco at the time of the Maclvor murders, testified that she was never contacted by defense counsel Smith, Garcia, or an investigator who worked for them, which supported Overton’s claim that his counsel failed to adequately investigate his work alibi defense. The trial court’s reliance on the responses to such questions in issuing the order that denied postconviction relief is due to the fact that (as discussed below) Overton’s various claims lacked merit.

The alleged restrictions that the trial court placed on Overton’s questioning of witnesses and the “free reign [sic]” given to the State to question on any topic are not supported by the record. Overton contends that despite the summary denial of the claim that his counsel was ineffective for failing to investigate the work alibi defense, the trial court still allowed the State to question witnesses on the topic. The record establishes that Overton was also allowed to elicit testimony on the topic. For example, on redirect questioning of Garcia, Overton’s postconviction counsel elicited that Garcia hired an investigator to find the receipts from the Amoco station in support of the work alibi defense. Thus, contrary to Overton’s argument, the trial court did not deny this particular claim twice without ever allowing Overton the opportunity to present testimony on the topic.

The claim that it was improper to begin the evidentiary hearing before all DNA testing had been completed is without merit. Overton contends that the trial court’s denial of his motion for a continuance of the evidentiary hearing improperly allowed the hearing to proceed. As a general rule, a

court’s ruling on a motion for continuance will only be reversed when an abuse of discretion is shown. An abuse of discretion is generally not found unless the court’s ruling on the continuance results in undue prejudice to [the] defendant. This general rule is true even in death penalty cases.

Hernandez-Alberto v. State, 889 So.2d 721, 730 (Fla.2004) (quoting Israel v. State, 837 So.2d 381, 388 (Fla.2002)). The order that denied the motion for a continuance was not an abuse of discretion. The record does not support Overton’s argument that the ordered DNA testing was not completed prior to the evidentiary hearing, which began on November 15, 2004. For example, at a status hearing on November 7, 2004, which was only approximately one week before the evidentiary hearing, Over-ton’s counsel made no argument that the ordered DNA testing had not yet been completed. This is consistent with the State’s argument that Overton withdrew his motion for a continuance at a status hearing on October 29, 2004. Moreover, even if the ordered DNA testing had not been completed, there was no undue prejudice to Overton. Overton has not asserted any reason why DNA testing of the crime scene swabs will produce different results than the other DNA testing, which linked Overton to the scene. Overton’s argument that DNA testing of these crime scene swabs would have changed the outcome is purely speculative. See Martin v. State, 455 So.2d 370, 372 (Fla.1984) (holding that the trial court committed no abuse of discretion in denying the appointment of the defendant’s requested expert as there was no undue prejudice to the defendant because the defendant’s claim on the predicted effect of the expert’s testimony was purely speculative).

Overton’s claim that the trial court’s denial of discovery requests for FDLE documents prevented a full and fair hearing is without merit. A trial court’s determination with regard to a discovery request is reviewed under an abuse of discretion standard. See Reaves v. State, 942 So.2d 874, 881 (Fla.2006) (“The abuse of discretion standard of review also applies to the denial of a motion for discovery in a postconviction case.” (citing State v. Lewis, 656 So.2d 1248, 1250 (Fla.1994))). Here, Overton alleges that the trial court’s denial of his request for additional public records filed on September 30, 2002, before the evidentiary hearing denied him a full and fair hearing. The record establishes that those items on which the trial court denied discovery were not relevant. For example, the trial court denied the request of “any and all documents” relating to a lengthy list of FDLE employees. Only a few of these listed employees ever testified at either the trial or the evidentia-ry hearing. Like many of the other items that were denied, the request was unduly burdensome and overly broad. Therefore, it was certainly not an abuse of discretion for the trial court to partially deny the request for additional records from FDLE. See Moore v. State, 820 So.2d 199, 204 (Fla.2002) (discussing that a trial court has the discretion to deny public records requests that are “overly broad, of questionable relevance, and unlikely to lead to discoverable evidence”).

Accordingly, the claim that Overton’s due process rights were violated as a result of the failure of the trial court to provide him with a full and fair hearing is without merit.

II. Ineffective Assistance 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 for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. 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). “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In Occhicone v. State, 768 So.2d 1037 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Id. at 1048 (emphasis added).

A. Ineffectiveness During the Frye Hearing

Overton contends that his counsel was ineffective due to the failure to participate during the Frye hearing, which was requested by defense counsel on December 21, 1998, and occurred on January 7, 1999. As a general rule, a Frye hearing is “utilized in Florida only when the science at issue is new or novel.” Branch v. State, 952 So.2d 470, 488 (Fla.2006) (citing Brim v. State, 695 So.2d 268, 271-72 (Fla.1997)). “In utilizing the Frye test, the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995) (emphasis added). With regard to the testing procedures used, DNA test results are generally accepted as reliable in the scientific community, provided that the laboratory has followed accepted testing procedures that meet the Frye test to protect against false readings and contamination. Hayes v. State, 660 So.2d 257, 264-65 (Fla.1995). In addition to the importance of the burden of proof, it is crucial that the Frye hearing be conducted in a fair manner. Ramirez, 651 So.2d at 1168.

We conclude that the limited participation of counsel during the Frye hearing did not constitute deficient performance because it was a strategic decision made by counsel. During the evidentiary hearing, both Garcia and Smith testified that they came to the mutual decision that the defense would not participate further during the Frye hearing. Counsel was of the view that they would not participate due to the lack of discovery with regard to the procedures and protocols that the Bode Lab used in testing. Consistent with this belief, both Dr. Litman and Dr. Libby, who were experts hired by Overton’s counsel, expressed to Overton’s counsel that they could not give adequate testimony if called during a Frye hearing due to the lack of discovery. Overton’s counsel asked for a continuance to provide more time to prepare, but the trial court denied the request. Based upon these circumstances, it was a reasonable decision by Overton’s counsel to not participate to a greater extent. The fact that counsel may not have been prepared to fully participate during the Frye hearing does not establish they were not equipped to make a strategic decision with regard to whether they should participate to a greater extent. During the evidentiary hearing, Smith testified that the defense made a strategic decision not to participate further to properly preserve the issue of the lack of discovery with regard to the Bode Lab, which could then be attacked on direct appeal. Consistent with the strategy, appellate counsel argued the discovery issue on direct appeal, but this Court found the argument to be without merit. See Overton, 801 So.2d at 895-96.

In making the strategic decision, Over-ton’s trial counsel understood that even if they were able to prevent the STR DNA testing by the Bode Lab from being admitted into evidence, the RFLP DNA testing by the FDLE Lab would still be admitted and would similarly link Overton to the crime. Prior to the Frye hearing, even the trial court acknowledged that case law established that RFLP DNA testing results would be admitted here and the Frye hearing was unnecessary on that DNA matter. Moreover, Dr. Litman previously advised Overton’s counsel that RFLP DNA evidence should be admitted in this case. Overton’s counsel requested the Frye hearing to challenge only the newer STR technology. Overton correctly concedes that his counsel possessed proper discovery from the FDLE Lab to challenge the RFLP testing that the FDLE Lab conducted, but, contrary to Overton’s position, there was no reason to challenge the clearly admissible RFLP DNA evidence.

Moreover, despite the decision to not participate further during the Frye hearing, other attempts were made by Over-ton’s counsel to exclude these DNA testing results. First, Overton’s counsel asked that the DNA evidence be excluded and renewed the motion immediately before the Frye hearing. Second, Overton’s counsel understood that the chain of custody issue would not be waived and they could still challenge witnesses during trial with regard to the alleged broken chain of custody. An alleged broken chain of custody was significant to the defense to support the defense theory that law enforcement had the opportunity to plant Overton’s DNA which was found in this case. With this goal, it was reasonable for Overton’s counsel to believe that an alleged broken chain of custody did not need to be addressed during the Frye hearing, but rather, should be addressed during trial. During trial, Overton’s counsel thoroughly cross-examined Dr. Pope and Detective Petrick, both of whom worked for law enforcement agencies and gathered evidence from the crime scene, on the alleged broken chain of custody, which illustrated that this chain of custody issue was not waived. With regard to Pope, cross-examination on the issue included the following: (1) envelopes that were used to store DNA evidence were misdated; (2) there were no property receipts to account for the swabs that were used to obtain fluids from Susan’s body at the scene; (3) the swabs were transported to his home, which was not a certified storage facility; (4) these swabs were placed in his home refrigerator; (5) the first property receipt for the envelopes of clippings, which provided a match to Overton’s DNA, was dated June 10, 1994; (6) the bedding (quilt, mattress pad, comforter, and bed sheet) on which semen stains were found were placed in paper bags and transported to his home to be air dried; (7) the bedding was transported to the Key West property evidence storage room on August 26, 1991; and (8) he transported the mattress pad in a paper bag by car to Orlando to have a psychic conduct an inspection. Cross-examination of Petrick on the challenged chain of custody included the following: (1) the paper bags in which he collected evidence did not resemble the particular paper bag that allegedly had his signature on it; (2) this alleged signature on the paper bag, which read “Detective R. Petrick,” was not his signature; and (3) the property receipts with regard to the clippings in envelopes had writing on them that was not his writing. Contrary to Overton’s assertion that the cross-examination was insufficient, Overton’s counsel attacked the alleged broken chain of custody with regard to both the brown paper bag and the envelopes that contained the clippings.

Finally, we conclude that the decision by Overton’s counsel to not address a potential degradation of the DNA evidence during the Frye hearing on the basis of an alleged broken chain of custody was reasonable. First, notwithstanding that Over-ton’s counsel had not conceded at the time of the Frye hearing that the DNA evidence taken from the scene belonged to Overton, the location of DNA evidence matching Overton would be consistent with his theory that his DNA had been planted there. See McDonald v. State, 952 So.2d 484, 495 (Fla.2006) (holding that there was no ineffective assistance for failing to hire a DNA expert because the defense’s theory was that the defendant’s DNA was planted so “the DNA evidence would not seem to be an issue”). Second, an expert (Dr. Litman) with whom Overton’s counsel consulted had dismissed the dangers of degradation and false positives from an alleged broken chain of custody here. For these reasons, the strategic decision to not participate further was a reasonable decision at the time it was made; thus, we conclude that there was no deficiency.

Even if the lack of participation by Overton’s counsel during the Frye hearing was deficient, there was no prejudice for multiple reasons. First, the chain of custody was intact. When the evidentiary hearing concluded, the trial court found that “there can be no doubt that the chain of custody was absolutely intact and well documented.” This finding is supported by competent, substantial evidence. See Williamson v. State, 961 So.2d 229, 237 (Fla.2007) (“This Court does not substitute its judgment for that of the trial court on issues of fact when competent, substantial evidence supports the circuit court’s factual findings .... ” (quoting Smith v. State, 931 So.2d 790, 803 (Fla.2006), cert. denied, — U.S. -, 127 S.Ct. 587, 166 L.Ed.2d 436 (2006))). The trial court specifically noted that “the Defendant uses a selective reading of the trial transcript” to contend that the chain of custody was broken. The trial court specifically found that the mystery of who signed for Detective Petrick on the paper bag was resolved because Dr. Pope testified that it was his writing. Moreover, it is not necessary that evidence be immediately catalogued with a property receipt at the police station for an intact chain of custody to exist. See Taylor v. State, 855 So.2d 1, 25-26 (Fla.2003) (concluding that a piece of evidence, which was not picked up by FDLE for two weeks but instead was stored during that time in a locked cabinet that only officers had access to, was properly admitted into evidence). Although Dr. Pope stored evidence for a period of time in his personal refrigerator at his home, he testified during trial that only he had access to this evidence in his locked home. Thus, the chain of custody was in place.

Second, even if the chain of custody was broken, there was not sufficient evidence to establish a probability of tampering, which would support exclusion of the evidence. See Murray v. State, 838 So.2d 1073, 1082 (Fla.2002) (“Relevant physical evidence is admissible unless there is an indication of probable tampering.” (quoting Peek v. State, 395 So.2d 492, 495 (Fla.1980))). Contrary to Overton’s argument, this Court has not held that a broken chain of custody alone is enough by itself to establish probable tampering. See Taplis v. State, 703 So.2d 453, 454 (Fla.1997) (acknowledging that a fair reading of Dodd v. State, 537 So.2d 626 (Fla. 3d DCA 1988), is that the “State’s failure to account for a gap in the chain of custody which, when considered together with the other evidence of tampering, supports] a conclusion of probable tampering”) (emphasis added). Here, there was no evidence of tampering. On direct appeal, this Court held that there was not a “scintilla” of evidence that Overton’s DNA was planted. Overton, 801 So.2d at 897. Moreover, during the evidentiary hearing, multiple witnesses testified that there were no signs of significant degradation of the DNA evidence. Therefore, the record does not support the contention that Overton’s counsel could have established a probability of tampering, which would have arguably led to an exclusion of both the STR DNA testing and the RFLP DNA testing results, had evidence been introduced during the Frye hearing with regard to the alleged broken chain of custody.

Third, we conclude that the STR DNA testing completed at the Bode Lab meets the requirements of the Frye test. Under the first prong of the Frye test, there is strong evidence that the underlying scientific principle with STR DNA testing was generally accepted at the time of Overton’s trial in 1999. See McDonald, 952 So.2d at 495-96 (holding that counsel was not ineffective for failing to request a Frye hearing because there was general acceptance in the scientific community of the particular science at issue at the time of the defendant’s 1995 trial). During the Frye hearing, Dr. Bever, who was employed at the Bode Lab in 1999, testified that STR testing is “generally accepted in the scientific community as reliable.” Thus, the first prong of Frye would have been fulfilled even if Overton’s counsel presented a challenge. Additionally, under the second prong of the Frye test, there is strong evidence that the testing procedures actually used at the Bode Lab were sufficiently acceptable. See Ramirez, 651 So.2d at 1168. During the evi-dentiary hearing, Bever testified that in multiple Frye hearings in which he has presented testimony, his testimony on STR DNA testing results has never failed to meet the Frye standard. This is substantial evidence of the reliability of the STR DNA testing that has occurred at the Bode Lab. Moreover, this indicates that if Overton’s counsel had attempted to challenge the STR DNA testing here, it is highly unlikely that the evidence would have been excluded. Additionally, Bever testified that the following protocols and procedures were in place at the Bode Lab when the testing for the Maclvor murders occurred: (1) Bode Lab had a quality assurance program in place; (2) Bode Lab was accredited; and (3) accreditation was based on the lab meeting certain guidelines. From this testimony, the Bode Lab followed accepted testing procedures that meet the Frye test to protect against false readings and contamination. Hayes, 660 So.2d at 264-65. Thus, it is likely that a challenge to the protocols and procedures that were in place at the Bode Lab would have also been unsuccessful. Accordingly, there is no prejudice that resulted from the failure of Overton’s counsel to participate more fully during the Frye hearing.

B. Ineffectiveness During the Guilt Phase of the Trial

1. Failure to Adequately Challenge the Jailhouse Informants

Overton contends that counsel was ineffective for the failure to adequately challenge the jailhouse informants during the guilt phase of the trial. This claim fails on the merits because we conclude that Over-ton’s counsel did sufficiently challenge the jailhouse informants during trial. With regard to Guy Green, Smith elicited on cross-examination that Green had lied in the past to receive benefits, attempted to elicit that Green would receive benefits for the testimony here, and elicited the disciplinary problems that resulted in Green’s gain time being lost. With regard to Zien-tek (also referred to as “Pesci”), Smith elicited the following information on cross-examination: (1) Zientek had repeatedly lied in the past; (2) Zientek was receiving a benefit to testify in this case; (3) the Maclvor case was in the newspapers at the time Zientek was in jail; (4) Overton was a “big fish” in that he had the most serious charges pending while in the jail; (5) Zien-tek never disclosed to Overton the true facts of his case; (6) Zientek made additional assertions to law enforcement that he did not include in his initial statement; and (7) Zientek faced significant time on serious charges (i.e., sexual battery) if his case proceeded to trial. Overton’s counsel also unsuccessfully attempted to elicit that Zientek was known for entering the cells of other prisoners to view their personal documents.

With regard to the failure to reference specific issues on cross-examination, Overton’s counsel possessed sound strategic reasons for not challenging the jailhouse informants on these various points. First, during the evidentiary hearing, both Smith and Garcia testified that an investigation was conducted with regard to whether anyone witnessed Zientek in Overton’s cell, but nothing useful was produced by the investigation. Garcia testified that Overton provided the defense with a list of names of those who could supposedly corroborate that Zientek was in Overton’s cell. After investigating all of these persons, Garcia recalled “that none of them gave us [Zientek] in the cell.” Consistent with Garcia’s testimony, Smith testified that none of the persons identified by Overton as individuals who supposedly saw Zientek in Overton’s cell could actually make such a statement upon being deposed. Smith testified that anyone who observed Zientek in Overton’s cell would have been used as a witness. In addition to being unable to state that they saw Zientek in Overton’s cell, none of these people could confirm that Overton’s door was left open when Overton did not occupy his cell. Additionally, Jon Ellsworth, prosecutor for the State in this case, testified that upon being deposed, none of these people could corroborate Overton’s story that Zientek had access to Overton’s cell. Thus, Overton’s counsel was not deficient for the failure to challenge Zientek with testimony that he was seen in Overton’s cell. The testimony of Overton’s counsel during the evidentiary hearing establishes that this avenue of challenging Zientek was investigated and reasonably rejected as a matter of strategy due to the lack of evidence.

Second, the decision of Overton’s counsel to not offer themselves as witnesses (they saw Overton’s cell door open during their attorney visits with Overton) to contradict the testimony of Zientek during trial that he did not have access to Over-ton’s cell (Zientek testified that the cell door was never left open) was reasonable, rather than deficient performance. Neither Garcia nor Smith ever actually saw Zientek in Overton’s cell, but instead, only saw Zientek walking around the area in which Overton’s cell was located. During the evidentiary hearing, Garcia recalled Zientek’s testimony during trial that he did not have access to Overton’s cell, but he (Garcia) did not believe Zientek’s testimony made him a witness in the case to the extent that he needed to place his name on a witness list. Garcia did not consider himself a witness because when he saw Zientek, Zientek “wasn’t in the cell.” Similarly, Smith testified that it never occurred to him that he should bring this to the trial court’s attention. It was reasonable for Overton’s counsel to conclude that because they never saw Zientek in Overton’s cell, their knowledge that Overton’s cell door was left open during attorney visits was fairly insignificant. Moreover, Overton’s counsel elicited on cross-examination that Zientek had general access to Overton’s cell due to Zientek’s activities of sweeping and mopping in Cell Block A. Further, Ellsworth testified during the evidentiary hearing that he had witnesses (including several jailers who could testify that Overton’s cell was always locked in accordance with the jail’s rules) prepared to testify to rebut the allegation that Zientek could access Overton’s cell. This would have negated any significance that the jury would have attached to any evidence that the cell door was left unlocked. See Jones v. State, 928 So.2d 1178, 1185 (Fla.2006) (“[Cjounsel cannot be deemed ineffective for failing to present evidence that would open the door to damaging cross-examination and rebuttal evidence that would counter any value that might be gained from the evidence.” (quoting Johnson v. State, 921 So.2d 490, 501 (Fla.2005))).

Third, the decision of Overton’s counsel to proceed no further with impeachment on Zientek’s handwritten notes and the police report from which Zientek’s notes appeared to have been copied directly was a reasonable strategic decision. During the evidentiary hearing, Garcia testified that a major goal of the defense was to keep from the jury the fact that Overton was a past suspect in other crimes. Consistent with this goal, Overton’s counsel filed the “Motion in Limine Regarding Other Offenses” on January 20, 1999, which was granted by the trial court. Smith and Garcia decided against using this material for impeachment of Zientek because these documents also referenced uncharged and unsolved crimes for which Overton was a suspect and would have opened the door for the State to ask questions on this adverse topic. This strategy was discussed between counsel and it was also discussed with Overton. A motion in limine that was granted ensured that the jury would not learn that Overton was a convicted felon, and counsel did not want to reopen the door on the topic. Moreover, the State was prepared to go through the opened door by referencing the other crimes that appeared on these documents if Overton’s counsel had used this material for impeachment. Contrary to Overton’s argument, the fear of opening the door on this topic was legitimate as jury knowledge of Overton’s past involvement with crimes would have negatively affected counsel’s ability to defend on these more serious murder charges. Therefore, Overton’s counsel was not deficient for the strategic decision not to impeach Zientek in this manner. See Jones, 928 So.2d at 1185.

Fourth, the decision of Overton’s counsel to not explore Zientek’s relationship with Detective Daniels did not constitute deficient performance. The record supports that Zientek was not an agent of the State and also that there was a reasonable strategic reason for not questioning Zientek on his relationship with Daniels. Daniels became involved with Zientek only after the FBI contacted him (Daniels) about the fact that Zientek possessed information on the Maclvor murders. After Daniels received Zientek’s statement with regard to Overton’s confession, he advised Zientek to not solicit any further information from Overton. Moreover, Daniels testified that it was Zientek who initiated the contact, rather than Daniels attempting to find ways for Zientek to embellish his story (i.e., showing Zientek crime scene photos). This is inconsistent with the assertion that Zientek was an agent who worked for the State. There was also sound strategic reasoning for this decision.

Overton also contends that Zientek should have been questioned on his involvement with Daniels on other matters to illustrate that Zientek worked as an agent for the State. This mode of impeachment was considered and rejected by Smith because it would have opened the door to bolstering Zientek’s testimony if the information given to Daniels in subsequent cases was corroborated by Daniels as being truthful. See Jones, 928 So.2d at 1185. For all these reasons, the decision to not further explore the alleged relationship with Daniels was not deficient performance.

Even if any of these failures were deemed to constitute deficient performance, there was no prejudice. Green provided similar testimony that supported the conviction here. See Whitfield v. State, 923 So.2d 375, 380 (Fla.2005) (holding that the failure to call certain witnesses was not ineffective assistance because witnesses already presented similar evidence and “counsel is not required to present cumulative evidence”). Overton has failed to assert specific, additional actions that could have been taken by his counsel to challenge Green. Notwithstanding the challenges to Green that were in fact accomplished during trial by Overton’s counsel, Green provided damaging testimony that by itself would support the conviction here. During the evidentiary hearing, the State established the existence of a prosecutable case even before discovery of Zientek as a witness. Moreover, this Court has already determined on direct appeal that any error with regard to Zientek’s testimony can only constitute harmless error because other evidence identified Overton as the perpetrator, which includes the testimony of Green. See Overton, 801 So.2d at 899.

2. Failure to Investigate Alibi or Alternative Theories of the Crime

Overton contends that his counsel was ineffective for the failure to investigate alibi or alternative theories of the crime. We conclude that this claim fails on the merits. The decisions by counsel to not present a work alibi defense that Over-ton was working at the Amoco gas station at the time of the Maclvor murders and alternative theories of the Maclvor murders were reasonable strategic decisions. The decision with regard to the work alibi defense was made only after an adequate investigation revealed that there was no evidence that Overton worked at Amoco on the night of the Maclvor murders. During the evidentiary hearing, Overton testified that he had worked at the Amoco station for just over one year at the time of the Maclvor murders in August 1991. The defense hired investigators Jeff Galler and Dave Burns to investigate the work alibi defense. Documents (timecards and receipts) that would have established whether Overton worked the night of the murders were no longer available for these investigators to review. Moreover, coworkers could not recall whether Overton worked that night. Multiple managers at Amoco at the time testified that they could not remember whether Overton worked the late shift that night, which covered from 11 p.m. to 7 a.m. A non-manager who normally worked the morning shift testified that she could not remember whether Overton worked that night. Defense counsel “considered an alibi defense, but ... were unable to come up with specific witnesses.” Additionally, Overton has not established that this evidence would have illustrated that Overton worked that night even if these witnesses had memory or if timecards had been available. See Pardo v. State, 941 So.2d 1057, 1065 (Fla.2006) (holding that the claim with regard to the failure to present an alibi was insufficiently pled because the motion did not describe how the alibi witness would have supported the alibi with exculpatory evidence (citing Jacobs v. State, 880 So.2d 548 (Fla.2004))); Lott v. State, 931 So.2d 807, 815 (Fla.2006) (holding that the failure to investigate the alibi did not constitute ineffective assistance as there was no prejudice because the one alibi witness that was offered during the evidentiary hearing could not pinpoint the date of the conversation, so his testimony would have possessed “minimal value as alibi evidence”).

Moreover, there was no prejudice from the failure to present the alibi defense because even if Overton’s counsel had established that Overton was working that night, sufficient time remained for him to commit the murders. At best, the work alibi was an incomplete alibi. Susan and Michael were last seen alive at a childbirth class on August 21, 1991, which ended at about 9 p.m., and their bodies were not found until the next morning by concerned co-workers and a neighbor. See Overton, 801 So.2d at 881. It is clear that the murders could have occurred between 9 p.m. and 11 p.m. The record does not provide any support that the murders occurred after 11 p.m. Due to the location of the Amoco station being only a “couple of minutes away” from the Maclvor home, see id. at 884, Overton could have easily committed the murders and still arrived timely for his shift. Therefore, this is an additional reason that the failure to present a work alibi defense did not constitute deficient performance, and in the alternative, there also was no prejudice. See Lott, 931 So.2d at 815 (holding that the failure to investigate the alibi did not constitute ineffective assistance as there was no prejudice because “even if the jury believed that Lott did speak with Jones on the Sunday afternoon in question, it still would have left plenty of room in the twenty-seven hour timeline for Lott to have committed the murder”); Reed v. State, 875 So.2d 415, 429-30 (Fla.2004) (holding that there was not deficient performance with regard to the. failure to investigate the alibi defense claim because “the available testimony provided, at best, an incomplete alibi” as the testimony still allowed for a two- to three-hour window for the defendant to commit the murder).

Overton further asserts that alternative theories for the murders were not presented. The record establishes that the other leads and suspects were considered and strategically rejected by Over-ton’s counsel. Counsel were aware of the other leads and suspects that law enforcement had pursued, but “there was nothing that [they] could come up with solid to put on” when they explored these leads and suspects. For example, counsel considered the alleged involvement of Hector Hernandez, but a strategic decision was made to not explore that avenue during trial after it was discussed with Overton. In addition to their belief that the statements of Hector Hernandez were not credible, Overton’s counsel recognized that the Hernandez theory also clearly placed Overton at the murder scene. This was inconsistent with the defense theory that was consistently presented at trial that Overton was not present and his DNA had been planted by law enforcement.

Overton’s specific claim that an alternative theory of the murders should have been presented during trial is without merit. Notwithstanding that the rationale provided by Katsnelson for this alternative theory may be argued as reasonable, there are numerous sound reasons why it was not presented by Overton’s counsel. For example, Overton’s counsel could have reasonably concluded that Katsnelson’s opinion was not credible due to his questionable qualifications as an expert witness. Evidence of his qualifications included the following: (1) he is currently unemployed; (2) he graduated from medical school outside the United States; and (3) he has never been in the private practice of medicine in the United States. Even though Katsnelson subscribed to an alternative opinion theory, this does not support the contention that another expert in the field would have come to a similar conclusion. See Johnson v. State, 769 So.2d 990, 1005 (Fla.2000) (refusing to find ineffective assistance simply because new expert doctors had a different opinion than prior doctors, in support of court’s conclusion that there had “been no showing that the attorneys’ conduct was ineffective in hiring the experts or in the material furnished”). Moreover, Overton’s counsel did present the expert testimony of Dr. Wright during trial, who was recommended and well known as one of the most qualified experts in the field of forensic pathology. The theory for a defense was discussed with Wright. Wright generally agreed with the conclusions of Dr. Nelms, who performed the autopsy of the Maclvors, and Over-ton’s counsel reasonably explored all possible alternate theories of defense with Dr. Wright. The testimony of Dr. Wright during the trial explored alternatives that: (1) the Maclvors could have been killed somewhere other than the house; (2) there was little evidence of a struggle at the scene; and (3) evidence existed to suggest there was more than one perpetrator. Wright rejected the opinion that Susan had not been sexually assaulted. Thus, the particular theory of Katsnelson was partially covered. See Whitfield, 923 So.2d at 381. Therefore, for all these reasons, the decision to not present the alternative theory does not constitute ineffective assistance.

3. Failure to Challenge the Burglary Charge with Regard to the Statute of Limitations

Overton further contends that the failure of his counsel to challenge the burglary charge on the basis of an expiration of the statute of limitations constituted ineffective assistance. Here, the State alleged that the burglary occurred in August 1991. Thus, assuming the statute of limitations was not extended or tolled, it would have expired in August 1995, because at the time of the incident, the limitation for a prosecution for a first-degree felony (such as the burglary charged here) was four years from the offense date. See § 775.15, Fla. Stat. (1991); Perez v. State, 545 So.2d 1357, 1358 (Fla.1989) (“[T]he limitations period in effect at the time of the incident giving rise to the criminal charges controls the time within which prosecution must be begun.”). Here, the charging document was not filed until December 1996. See § 775.15(4)(a), Fla. Stat. (1991). The State contends that even if Overton’s counsel had challenged the burglary charge based upon the statute of limitations, the State could have amended that charge to an armed burglary, which is a life felony, for which a prosecution could be “commenced at any time.” § 775.15, Fla. Stat. (1991); § 775.087(l)(a), Fla. Stat. (1991).

This ineffective assistance claim is without merit regardless of whether the State could have amended the charging document to include the more serious burglary charge. The State did not need to include a burglary charge in this case for the trial court to find the aggravating factor of murder committed during the course of a felony. See Occhicone v. State, 570 So.2d 902, 906 (Fla.1990) (“The state need not charge and convict of felony murder or any felony in order for a court to find the aggravating factor of murder committed during the course of a felony.” (citing Ruffin v. State, 397 So.2d 277 (Fla.1981))). Even without a burglary charge, the trial court would have had the basis to still find the murder during a felony aggravator here. There was clear evidence that the Maclvor murders occurred during the commission of a burglary of the MacIvor home by Overton. See Overton, 801 So.2d at 885 (discussing the testimony that “Overton had admitted to [Green] that Overton had ‘done a burglary at a real exclusive, wealthy, wealthy area down in the Keys,’ ” that Overton had admitted that “he had surveilled the house on several occasions [and] went to the home carrying a bag, which contained, among other things, a police scanner [and that] [o]ne of the first things [he] completed when he arrived was the cutting of phone wires”). This evidence of the burglary was an integral part of the description of the Maclvor murders. Therefore, even without the burglary charge, the evidence of the identical conduct would have still been presented during trial, and the trial court would have still had the basis to find the aggra-vator included in sentencing Overton to death. There was no prejudice.

4. Failure to Challenge the Preindictment Delay of Five Years

Overton contends that the failure of his counsel to challenge the preindictment delay of five years constituted ineffective assistance. Overton has not demonstrated prejudice because the underlying claim involving preindictment delay is without merit. To possibly establish that a preindictment delay is á due process violation, the defendant must first show actual prejudice from the delay, and the court must then weigh any demonstrable reasons for the delay against the significance of the particular prejudice on a case-by-case basis. See Rivera v. State, 717 So.2d 477, 483 (Fla.1998) (citing Rogers v. State, 511 So.2d 526, 531 (Fla.1987)). If Overton’s counsel had asserted a challenge based on the preindictment delay, the claim would have failed under both of the required elements.

Under the first, Overton could not establish there was actual prejudice from the delay. Even assuming alibi witnesses and Amoco timecards or receipts would have established that Overton worked the late night shift on August 21, 1991, this would only provide an incomplete alibi at best as discussed above. See Rivera, 717 So.2d at 483-84 (holding that the ineffective assistance of counsel claim for counsel’s failure to present the preindictment delay issue was without merit because there was no actual prejudice to the supposed alibi defense as the now unavailable witnesses would not have provided the defendant with an alibi for the time when the murder could have occurred). With regard to Loma Swaby no longer being available as a witness, this also does not constitute actual prejudice. Contrary to Overton’s argument, there is no evidence that she would have been able to provide any information involving the allegation that Detective Visco planted Overton’s DNA. See Overton, 801 So.2d at 897 (“[T]he defense failed to produce a scintilla of evidence that Detective Visco planted the seminal fluids.”) (emphasis added). During the evidentiary hearing, Detective Visco testified that he did not receive a used condom from Swaby and he had no knowledge that Overton’s semen was planted.

Finally, Overton’s argument that the delay led to degradation or contamination of the DNA evidence lacks any evidentiary support. During the evidentiary hearing, Dr. Libby testified that he could not make the determination that degradation in fact resulted with the DNA evidence here. Moreover, Dr. Bever testified that Over-ton’s DNA was a match and those samples “did not show any significant signs of degradation.” The evidence established that there were no signs of even minor degradation. Additionally, Dr. Pollock testified that degradation was not an issue here as any degradation was only a minor amount, which was insignificant to his opinion and examinations. The speculation by Overton that degradation must have occurred during the preindictment delay does not satisfy the actual prejudice requirement. See Maharaj v. State, 778 So.2d 944, 951 (Fla.2000) (holding that the ineffective assistance claim was without merit because the conclusions to support the claim were “sheer speculation” and “[pjostconviction relief cannot be based on speculation or possibility”).

Under the second element, there was justification for the delay by law enforcement. But cf. Scott v. State, 581 So.2d 887, 892-93 (Fla.1991) (holding that the prein-dictment delay was a due process violation because actual prejudice was shown and the State had shown “absolutely no need for any investigative delay”). During the evidentiary hearing, F.K. Jones, who was the initial lead detective for the Maclvor murders, testified that all leads were pursued. With the large number of leads and suspects that were pursued prior to the DNA match for Overton in 1996, which occurred only after Overton’s failed suicide attempt provided bloody towels because he had refused earlier requests to voluntarily provide a blood sample, it is reasonable that the other leads and suspects were investigated in a diligent manner. The preindictment delay of five years was not caused by any la