Butler v. State (100 So. 3d 638, 2012)

PER CURIAM.

Harry Lee Butler was convicted of first-degree murder and sentenced to death for the March 1997 murder of his former girl-Mend, Leslie Fleming. This Court affirmed Butler’s conviction and death sentence on direct appeal. See Butler v. State, 842 So.2d 817 (Fla.2003). On July 13, 2004, Butler filed a motion to vacate his conviction and death sentence pursuant to Florida Rule of Criminal Procedure 3.851 in the Sixth Judicial Circuit in and for Pinellas County. Butler filed an amended rule 3.851 motion on February 4, 2005. The postconviction court held three evi-dentiary hearings on the motion, the first in May 2008, the second in November 2008, and the third in September 2009. On May 13, 2010, the postconviction court entered an order denying relief.

Butler now appeals the denial of his rule 3.851 motion and also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Having considered the briefs filed by the parties and having heard oral argument, we affirm the postconviction court’s denial of relief and deny Butler’s petition for writ of habeas corpus.

I. STATEMENT OF THE CASE AND FACTS

We described the facts of this case when Butler’s conviction and death sentence were reviewed on direct appeal:

On the night of March 13, 1997, or early morning hours of March 14, 1997, Leslie Fleming (Fleming), also known as Bay, was stabbed multiple times and asphyxiated by her former boyfriend, Harry Butler (Butler). Shawna Fleming (Shawna), Leslie’s sister, discovered Fleming’s body at about 7:15 a.m. on the morning of March 14 when LaShara Butler (LaShara), the couple’s six-year old daughter, opened the apartment door for Shawna. According to LaSh-ara’s trial testimony, on the night before the body was discovered, she had been sleeping with her mother when her father entered the bedroom, picked her up, and took her to her own room. LaShara testified that she saw his face during this process. LaShara also stated she heard her mother say, “Stop,” saw her father’s leg pinning down her mother’s leg, and heard her mother screaming as though she were being hurt. Officer Scott Ballard, one of the first officers on the scene, testified that on the way to the police station, LaSh-ara said, “My daddy hurt mommy. I heard him yelling at her.”

Lola Young, a long-time neighbor of Fleming’s who had also known Butler for some time, testified she saw Butler hiding in the bushes near Fleming’s apartment between 3:30 and 4 a.m., around the same time as the murder. She also stated that soon after seeing Butler, she saw a blue car speed through the housing complex, stop abruptly, pick up Butler, and speed off. Latwanda Allen (Allen) testified that she, Butler and Martisha Kelly (Kelly) are cousins. Allen said Kelly told her Butler killed Fleming. At trial, Kelly denied having made the statement.

Detective Green testified Kelly told him the murder weapon could be found in a dumpster near a food store where a pair of blue shorts, a white T-shirt, a pair of underwear, a towel, and a pair of tennis shoes having no laces were eventually found. However, no weapon was recovered from this location. Dr. Jeannie Eberhardt, a forensic scientist specializing in DNA serology, testified she found the presence of blood on the white T-shirt, but she was unable to confirm a DNA profile of the blood. Blood stains found on the denim shorts, towel, and boxer shorts were also tested, with the same result. The blood was either of an inadequate amount or degraded. The dyes of the denim shorts inhibited DNA testing. However, testing of the sneakers revealed a DNA profile consistent with that of the victim.

Butler, 842 So.2d at 821.

At trial, Butler admitted that the sneakers were his, but he maintained that another man, Dennis Tennell, had borrowed them prior to Fleming’s murder. Other testimony established that Butler moved out of the apartment he shared with Fleming on March 9, 1997, several days before the murder. Lakisha Miller (nicknamed “Red”), Butler’s cousin and Fleming’s best friend, testified that Butler was upset because of the breakup and because Fleming was having an affair with another man, Adonis Hartsfield. Terry Jackson, Butler’s coworker, testified that the day before the murder, Butler said he was going to “kill Bay and Red.” At the end of the guilt phase, the jury found Butler guilty of first-degree murder. See id. at 821-22.

At the penalty phase, the State relied on the evidence presented during the guilt phase, while the defense presented two witnesses: Butler’s father, Junior Butler, and Butler’s sister, Sandra Butler. The jury recommended that Butler be sentenced to death by a vote of eleven to one. The trial court conducted a Spencer hearing at which the defense presented the testimony of a psychiatrist, Dr. Michael Maher. The trial court later issued a sentencing order in which it concurred with the jury recommendation and sentenced Butler to death. The court found one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel (HAC), no statutory mitigating circumstances, and four nonstatutory mitigating circumstances. See Butler, 842 So.2d at 822-23.

Butler raised six claims of error on direct appeal. This Court rejected each claim and affirmed the conviction and death sentence. First, we held that the trial court did not err in admitting evidence concerning prior acts of violence committed by Butler. Id. at 823-27. Second, we held that the trial court properly allowed Dr. Eberhardt, the State’s DNA expert, to testify at trial. Id. at 827-29. Third, we rejected Butler’s claim that the trial court should have granted his motion for a new trial because of the State’s alleged failure to disclose a probation violation report concerning witness Lola Young. Id. at 829-30. Fourth, we held that Butler’s challenge to the jury instruction on the HAC aggravator was unpre-served and without merit. Id. at 830-31. Fifth, we held that the trial court did not fail to consider mitigating evidence of Butler’s impaired mental capacity. Id. at 831-32. Finally, we held that Butler’s death sentence was proportionate. Id. at 832-34. On rehearing, Butler argued that Florida’s capital sentencing scheme violates the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We held that Florida’s death penalty does not violate Ring. Butler, 842 So.2d at 834.

Butler raised eleven issues in his amended rule 3.851 motion. Butler’s first claim concerned the State’s failure to release evidence relating to postconviction DNA testing. Butler argued in his second through tenth claims that his trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In his final claim, Butler argued that the cumulative effect of all alleged errors sufficiently prejudiced him as to merit relief. Three evidentiary hearings were held on Butler’s amended motion. Two of Butler’s trial attorneys, Richard Watts and Anne Borghetti, testified at the hearings. On May 8 and 9, 2008, the postconviction court heard testimony regarding the development and presentation of evidence during the guilt phase of Butler’s trial. On November 6 and 7, 2008, witnesses testified regarding Butler’s claim that counsel was deficient during the penalty phase. Finally, on September 29, 2009, Butler presented as a witness Professor David Dow of the University of Houston Law Center, who testified as an expert in norms and standards governing attorney conduct in death penalty litigation.

The postconviction court entered an order on May 13, 2010, denying Butler’s amended motion. As to Butler’s first claim, concerning the State’s failure to furnish him with certain public records relating to DNA testing, the court denied the claim as moot, citing an acknowledgement by Butler’s counsel that the issue had been resolved. As to Butler’s claims of ineffee-five assistance of counsel, the court denied each claim due to Butler’s failure to establish deficiency or prejudice or both under the standards set out in Strickland and its progeny. Lastly, the court held that because it found each of Butler’s individual claims to be without merit, cumulative error analysis was not appropriate.

Butler now appeals the postconviction court’s denial of relief. He argues that the postconviction court erred in denying relief based on each of his nine claims of ineffective assistance of counsel, and further asserts cumulative error as a basis for relief before this Court. In addition, Butler has filed an accompanying petition for writ of habeas corpus, in which he raises the following claims: (1) appellate counsel provided ineffective assistance by failing to file a petition for certiorari with the United States Supreme Court; (2) appellate counsel provided ineffective assistance by abandoning the claim that LaShara Butler was incompetent to testify at trial; (3) Florida’s lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution; and (4) Butler’s right against cruel and unusual punishment will be violated because he may be incompetent at the time of execution. We address each of these claims below.

II. RULE 3.851 MOTION

A. Ineffective Assistance of Guilt Phase Counsel

In claims I through VIII in his Initial Brief, Butler argues that the post-conviction court erred in denying his claims that trial counsel rendered ineffective assistance during the guilt phase of his trial. Claims of ineffective assistance of counsel are governed by the decision of the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. As the Supreme Court explained in Strickland, the right to counsel guaranteed by the Sixth Amendment of the United States Constitution “is the right to the effective assistance of counsel.” Id. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). For a claim of ineffectiveness of counsel to be considered meritorious, two requirements must be satisfied, commonly identified as “deficiency” and “prejudice.”

“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.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). In order to meet this first prong of the Strickland test, “the defendant must prove that counsel’s performance was unreasonable under ‘prevailing professional norms.’” Floyd v. State, 18 So.3d 432, 443 (Fla.2009) (quoting Morris v. State, 931 So.2d 821, 828 (Fla.2006)).

“Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Maxwell, 490 So.2d at 932. To establish prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

For the second prong, “Strickland places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different.” Wong v. Belmontes [558 U.S. 15], 130 S.Ct. 383, 390-91, 175 L.Ed.2d 328 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Strickland does not “require a defendant to show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of his penalty proceeding, but rather that he establish ‘a probability sufficient to undermine confidence in [that] outcome.’ ” Porter v. McCollum [558 U.S. 30], 130 S.Ct. 447, 455-56, 175 L.Ed.2d 398 (2009) (alteration in original) (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052).

Everett v. State, 54 So.3d 464, 472 (Fla.2010).

“Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo.” Hitchcock v. State, 991 So.2d 337, 346 (Fla.2008) (citing Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004)). With these standards in mind, we turn to Butler’s claims of ineffectiveness of guilt phase counsel.

1. DNA Evidence

In his first claim, Butler challenges his trial attorneys’ development and presentation of DNA evidence. Butler’s argument relies on the postconviction testimony of Dr. Elizabeth Johnson. At trial, the State presented testimony by Dr. Jeannie Eber-hardt, a serologist with the Florida Department of Law Enforcement (FDLE), who conducted pretrial testing on DNA samples collected in the investigation of Fleming’s death. On cross-examination, the defense questioned Dr. Eberhardt regarding two reports she authored concerning a pair of sneakers identified as belonging to Butler. In the first report, dated August 18, 1997, Dr. Eberhardt reported on testing conducted on a blood DNA sample taken from the outside of the left sneaker. Dr. Eberhardt determined that the sample was consistent with the DNA of Leslie Fleming. In the second report, dated September 3, 1997, Dr. Eberhardt reported on testing that was conducted on five DNA samples taken from inside the left sneaker. She testified that three of the samples resulted in no reaction, while the results of testing on two of the samples, labeled 56A-4 and 56A-5, were inconclusive.

During postconviction proceedings, Dr. Johnson testified that despite the finding contained in Dr. Eberhardt’s report, the samples inside the left shoe contained sufficient information to determine that the donor was male and to eliminate Butler as a source of the DNA. Dr. Johnson explained that this information could not have been discovered by reading Dr. Eber-hardt’s report, which merely labeled the results as “inconclusive,” but could have been found by reviewing the raw data contained in Dr. Eberhardt’s bench notes. Butler argues that this information would have supported his argument that another individual committed the murder, specifically by providing evidence that an unidentified male was wearing the shoes at the time of the murder. He contends that his trial counsel rendered ineffective assistance by failing to adequately consult with a DNA expert and for failing to obtain Dr. Eberhardt’s bench notes in discovery. Below, the postconviction court denied relief on these claims. We affirm, finding neither deficiency nor prejudice in counsel’s handling or presentation of this evidence.

As to the deficiency prong, Butler’s claims that counsel was deficient for failing to adequately consult with a DNA expert and for failing to obtain Dr. Eberhardt’s bench notes are not supported by the record. Richard Watts, one of Butler’s trial attorneys, testified that the defense retained and consulted with DNA expert Dr. Gary Litman. Watts testified that the defense obtained DNA laboratory reports from FDLE and provided them to Dr. Litman. Watts stated that the defense would have relied on Dr. Litman to tell them whether they needed to take additional action, such as obtaining Dr. Eber-hardt’s bench notes. Butler’s deficiency claim is further undermined by the testimony of Dr. Johnson, who stated that a layman reading Dr. Eberhardt’s report would not have been able to determine that the defendant was excluded as a source of the DNA sample taken from inside the left sneaker; only an expert reviewing Dr. Eberhardt’s notes and worksheets could have uncovered that fact. As the postconviction court concluded below, “Because the record is devoid of any evidence suggesting that counsel failed to diligently investigate the DNA results or otherwise acted deficiently, they cannot be said to have provided ineffective assistance of counsel in this regard.”

Nor do we find that Butler was prejudiced by the absence of the DNA evidence. At the postconviction evidentia-ry hearing, Dr. Johnson testified that there was no way to tell when or how the unidentified DNA was transferred to the shoe. She noted that the DNA could have been deposited through sweat or could have been transferred to the shoe from something in the dumpster where the shoes were found. The importance of this testimony is highlighted by the trial testimony of Detective Wilton Lee, Jr., who discovered the shoes in a convenience store dumpster not far from the crime scene. Detective Lee stated that the shoes were located one half to three quarters of the way down inside the dumpster among bags of trash, rotten food, flies, and maggots, and that the shoes and clothing were wet from rain. Since it could not be established whether the DNA was deposited before, during, or after the murder, this evidence would not have provided any significant support to the defense’s argument that an unidentified third person committed the murder while wearing Butler’s shoes.

2. LaShara Butler

Butler’s next Strickland claim is directed toward the trial testimony of then seven-year-old LaShara Butler, daughter of defendant Harry Butler and victim Leslie Fleming. At trial, LaShara testified that she was sleeping in her mother’s room on the night of the murder when her father entered the bedroom, picked her up, and took her to her own room. Butler, 842 So.2d at 821. During postconviction proceedings, Butler presented psychologist Dr. Janice Stevenson, who testified that during pretrial proceedings, the psychologist who evaluated LaShara, Dr. Joseph Crum, did not perform a sufficient evaluation to determine whether LaShara was competent to testify. Dr. Stevenson noted the existence of tests which could have been used to determine whether LaShara was suffering from psychological trauma, which Dr. Crum failed to perform. Dr. Stevenson stated that at the time of Butler’s trial, it was not uncommon for defense attorneys to retain mental health experts to evaluate the competency of child witnesses and the credibility of their testimony.

Here, Butler argues that his trial counsel was deficient for failing to retain an expert in child psychology and for failing to challenge LaShara’s competency and credibility before the trial court and the jury. In addition, Butler argues that counsel was deficient for failing to object to testimony by LaShara in which she indicated that her father had been to jail. The postconviction court rejected both claims based on its determination that Butler failed to establish prejudice under Strickland with regard to either claim. We agree.

a. Failure to Consult Expert in Child Psychology

Before trial, LaShara was evaluated by Dr. Crum at the request of the State Attorney’s Office. Dr. Crum was deposed by the Public Defender, who was then representing Butler, on August, 22, 1997. In his deposition, Dr. Crum stated that he interviewed LaShara twice. The first interview took place on March 24, 1997, ten days after her mother’s death, and the second interview took place on April 2, 1997. Each interview lasted approximately forty-five minutes. The purpose of the interviews was to assess LaShara’s competency and to explore whether she was capable of testifying at trial. Dr. Crum stated that he was not asked to assess LaShara’s credibility. He conducted an IQ test and found that LaShara’s cognitive abilities fell within an average to high average range. He determined that her ability to understand the difference between telling the truth and telling a lie was accurate for her age, and found no evidence of serious emotional difficulties that would impede her ability to testify. Dr. Crum stated that he reviewed a videotape of LaShara’s questioning by police and said that he asked LaShara briefly whether she remembered what happened to her mother, but also said that he did not inquire into the details of her memory.

LaShara was deposed by defense attorney Michael Schwartzberg on April 7, 1998. On June 24, 1998, the defense filed a motion to determine LaShara’s competency to testify. A competency hearing was held shortly before trial. Before the hearing, the court agreed, at the request of defense counsel, to review a videotape of the interview law enforcement officers conducted with LaShara shortly after her mother’s murder. At the competency hearing, the trial court questioned LaSh-ara. The court first asked LaShara general questions concerning where she lived, where she attended school, who her friends were, and whether she could remember things that happened when she was six years old. The court then questioned LaShara concerning whether she knew the difference between the truth and a lie, whether she understood when something is make-believe, whether she knew the consequences of telling a lie, and whether she was able to take an oath and make a promise to tell the truth.

LaShara was also questioned by both the State and the defense. On direct examination by attorney Schwartzberg, LaShara admitted that her grandmother had repeatedly told her that her father killed her mother and had instructed her to tell the court that her father killed her mother. Based on LaShara’s testimony, defense counsel argued that LaShara’s testimony was tainted by the continuous suggestions from her grandmother. Counsel also discussed the interview police officers conducted with LaShara shortly after her mother’s death. Counsel argued that the officers were aware that Harry Butler was the primary suspect, that LaShara’s statement that her father killed her mother was the result of suggestions by the officers, and that any statement made by LaShara after the interview would be tainted. The court agreed with the defense that the officers exhibited bias in the videotaped interview. Nonetheless, the court ruled that LaShara would be permitted to testify, explaining:

The long of the short of it is I don’t see anything that’s going to taint her testimony as a matter of law where it should be excluded from the jury. I will indicate to you that everything I have heard, everything I saw on that tape may go — will probably go into evidence if you all choose so that the jury can give it all proper weight. But this child is bright, articulate, well able to express the things she has observed back then and now, and she is going to be on her own when you start asking her questions about what was said, what was discussed, what was asked, whether that suggested something.

At trial, LaShara was first questioned by the State and was then cross-examined by Schwartzberg. LaShara admitted during cross-examination that she had a conversation with a policeman on the day following her mother’s murder. She also agreed that her grandmother had told her “a lot” that her father killed her mother. She agreed that her grandmother becomes angry when she talks about LaShara’s father; LaShara further admitted that when her grandmother gets angry, she also becomes angry. Defense counsel also read from a deposition transcript LaShara’s previous statements which conflicted in certain respects with statements she made at trial. Schwartzberg later discussed weaknesses in LaShara’s testimony when delivering the defense’s closing argument, in which he argued to the jury that LaSh-ara’s testimony was unreliable and was the result of pressure from the police and from her grandmother to identify her father as the killer.

Here, Butler argues that trial counsel was deficient for failing to have LaShara evaluated by an expert in child psychology. He argues that if counsel had presented such an expert at the pretrial competency hearing, the trial court would have found LaShara incompetent to testify. Butler further argues that even if the trial judge had found LaShara competent, an expert could have done more to call LaShara’s reliability into question at trial, leading the jury to disregard her testimony and acquit Butler.

First, we find that Butler has not established that counsel was deficient. As discussed above, in order to satisfy the deficiency prong of Strickland, “the defendant must prove that counsel’s performance was unreasonable under ‘prevailing professional norms.’” Floyd, 18 So.3d at 443 (quoting Morris, 931 So.2d at 828). The only evidence supporting Butler’s claim of deficiency is the testimony of Dr. Stevenson, who said that at the time of Butler’s trial it was not uncommon for defense attorneys to employ experts in child competency to evaluate child witnesses. However, Butler has not presented evidence that the failure to do so fell outside “prevailing professional norms,” id., particularly in light of the efforts that were in fact made by Butler’s counsel to exclude and discredit LaShara’s testimony.

Second, Butler has not established a reasonable probability that the result of the proceeding would have been different had such an expert been presented. See Everett, 54 So.3d at 472. With regard to the trial court’s decision to admit LaSh-ara’s testimony, this Court has explained:

In Florida, whether a child witness is competent to testify is based on “his or her intelligence, rather than his or her age, and, in addition, whether the child possesses a sense of obligation to tell the truth.” Lloyd v. State, 524 So.2d 396, 400 (Fla.1988); see Bell v. State, 93 So.2d 575, 577 (Fla.1957). Accordingly, when evaluating the competency of a child, the trial court should consider the following:

(1) whether the child is capable of observing and recollecting facts; (2) whether the child is capable of narrating those facts to the court or to a jury, and (3) whether the child has a moral sense of the obligation to tell the truth.

Griffin v. State, 526 So.2d 752, 753 (Fla. 1st DCA 1988) (citing Lloyd, 524 So.2d at 400); see also Baker v. State, 674 So.2d 199, 200 (Fla. 4th DCA 1996). The trial judge has the discretion to decide whether a witness of tender age is competent to testify and, accordingly, the decision to allow a child to testify is reviewed for abuse of discretion. See Lloyd, 524 So.2d at 400.

Floyd, 18 So.3d at 443-44.

In the instant case, the trial court ruled that LaShara was competent to testify after a hearing in which LaShara was questioned by the court, the State, and the defense. During the postconviction evi-dentiary hearing, Dr. Stevenson expressed the opinion that LaShara was not properly evaluated to determine whether she was suffering from trauma, which may have affected her ability to recall the events surrounding her mother’s death. Dr. Stevenson also explained that a child in LaSh-ara’s position would have been highly suggestible. However, many of these issues were in fact raised by the defense at the pretrial competency hearing. The trial court agreed that LaShara’s testimony may have been affected by the bias of the adults around her, but found that these issues went toward the credibility of her testimony, not toward whether she was competent to testify as a matter of law. Whether LaShara’s testimony was tainted by the bias of the police interviewer or her grandmother was also raised by the defense both during cross examination and during closing argument. Thus, while an expert witness may have provided additional support to the defense’s arguments, the trial court and the jury were already made aware of the issues raised by Dr. Stevenson. Butler has not shown a reasonable probability that the result of the proceedings would have been different had such an expert been presented.

b. Failure to Object

Additionally, Butler argues that counsel rendered deficient performance in faffing to object to a statement made by LaShara in the course of her trial testimony. On direct examination, the prosecutor questioned LaShara regarding the house she lived in with her mother. LaShara was asked how many other children lived with them. She responded that her two younger sisters also lived there. She then stated: “When my daddy got out of jail one time, my other sisters and my one brother they came and then they left.” The State did not comment on or inquire further into LaShara’s reference to her father’s time in jail, but continued its questioning by asking where LaShara, her mother and her sisters slept when they lived in the house.

Butler argues here that defense counsel should have objected to LaShara’s statement, which he claims prejudiced his case by alerting the jury that he had previously been incarcerated. We find that Butler was not prejudiced, however, because the jury was already aware of at least some of Butler’s criminal history. For example, attorney Watts informed the jury in the defense’s opening statement that Butler was a cocaine dealer and that he had previously been to jail for domestic battery. Additionally, Butler himself testified that he had several prior felony convictions and had been to prison. In light of this testimony, trial counsel’s failure to object to LaShara’s statement does not does not undermine confidence in the result of Butler’s trial. See Floyd, 18 So.3d at 443.

3. Terry Jackson

Third, Butler argues that trial counsel was deficient for faffing to sufficiently investigate and cross-examine witness Terry Jackson. At trial, Jackson testified that he gave Butler a ride in his car the day before the murder, and that while they were driving Butler said he was going to “kill Bay and Red,” i.e., Leslie Fleming and Lakisha Miller. See Butler, 842 So.2d at 822. Butler alleges that evidence existed at the time of trial indicating that there were criminal charges pending against Jackson when Fleming’s murder was being investigated and that Jackson’s testimony was procured in exchange for favorable treatment. Butler argues that had counsel conducted a sufficient investigation, counsel would have uncovered this evidence, which would have discredited Jackson’s testimony. Butler also contends that counsel should have cross-examined Jackson concerning inconsistencies between his testimony at trial and his initial police statement. We agree with the postconviction court’s finding that these claims are without merit.

At the postconvietion evidentiary hearing, attorney Watts testified that he was unaware of any pending charges against Jackson and that he was not familiar with any deal Jackson might have received in exchange for his testimony. The trial record shows that during pretrial proceedings, attorney Schwartzberg discussed Jackson’s statement to law enforcement with the trial court and sought to have Jackson’s statements excluded as irrelevant and unduly prejudicial. The trial court denied the motion. At trial, Schwartzberg cross-examined Jackson. Jackson clarified his direct examination testimony, stating that Butler made the statement concerning Fleming and Miller while they were in Jackson’s car, after Jackson agreed to drive Butler to the bank. On redirect examination, the prosecutor asked Jackson whether he made a statement to the police after Fleming’s murder. Jackson replied that he was questioned by law enforcement after being arrested on a misdemeanor warrant. Jackson was not questioned by either party concerning the details of his arrest or whether he was charged with any offenses.

Below, Butler submitted several documents relating to Jackson’s criminal history to the postconviction court in support of his rule 3.851 motion to vacate his conviction and sentence. One of the documents is a report by Detective Marvin Green concerning his investigation of several burglaries reported by victim Laticia Tucker. In the report, Detective Green described how he and several other officers encountered Jackson on March 18, 1997, while investigating a homicide, and took Jackson into custody based on an outstanding misdemeanor warrant. Detective Green wrote that he began to interview Jackson, who stated that he and Tucker had made amends and that she did not want to press charges. Detective Green responded that he would contact Tucker after the interview. Jackson then waived his Miranda rights and described the circumstances surrounding the alleged burglaries. At the end of the report, Detective Green wrote that he contacted Tucker, who affirmed that she wanted the burglary charges to be dropped. Detective Green then stated in his report that the burglary cases would be closed because the victim did not want Jackson prosecuted.

Additional documents concern an investigation of Jackson for the offense of throwing a deadly missile. One of the documents is a police report dated May 27, 1997, describing the incident. The report states that an officer encountered a man who was bleeding from his right ear. The man told the officer that someone had thrown a cement block through his car window. Shortly thereafter, Jackson arrived on the scene and the man stated that Jackson was the one who threw the block. Jackson denied the accusation, but was placed under arrest and charged with throwing a deadly missile. The report states that the officer could not locate any other witnesses to the incident. Also included is a letter from the State Attorney’s Office dated August 11, 1997, discussing the office’s recommendation that no information be filed against Jackson due to a lack of corroborating evidence.

Based on the documents described above, Butler has not established that Jackson’s testimony was procured in exchange for any promise of leniency in his criminal cases. The documents in fact show the opposite; Jackson’s burglary charges were dropped because the victim decided not to press charges, while the charge of throwing a deadly missile was dropped due to a lack of corroborating evidence. Under these circumstances, even if Butler’s trial attorneys had investigated Jackson more thoroughly, Butler has not demonstrated that they would have discovered any evidence that would have aided his case. Accordingly, we find that Butler has not established prejudice under Strickland.

As to Butler’s argument that trial counsel failed to impeach Jackson concerning inconsistencies between his initial statement and his testimony at trial, the postconviction court determined that the two statements were not inconsistent. In his trial testimony, Jackson explained that he and his brother encountered Butler in front of the Blue Chip Bar and that Butler asked for a ride to the bank. Jackson stated that while they were driving, Butler told him that he was going to kill Bay and Red. Butler asserts that in Jackson’s statement to Detective Green, Jackson inconsistently claimed that he did not drive Butler anywhere. The postconviction court rejected any claim of deficiency on the part of Butler’s attorneys, observing:

Looking at Jackson’s statement to the police in full context, however, it appears that the detective was at that time asking Jackson if he aided Butler in the murder in any way, and so it is unclear whether the detective is asking Jackson if he drove Butler on March 12, 1997, or two nights later when the murder occurred.

The postconviction court’s description accurately characterizes Jackson’s interview with Detective Green. The relevant portion of the interview states:

Q. Did you in any way help Harry? Drive Harry to the scene?

A. No.

Q. Did you take any items to hide for Harry?

A. No.

Q. Did you see Harry with any weapons at all?

A. No.

While this exchange occurred immediately after Detective Green asked Jackson to describe the events of Wednesday, March 12 (the day Jackson claimed Butler made the statement that he wanted to kill Fleming and Miller), it is clear that Detective Green’s question — whether Jackson “dr[ove] Harry to the scene” — was directed toward the murder itself. Because the statements are not inconsistent, trial counsel’s failure to raise the issue during cross-examination was not deficient and did not result in prejudice to Butler.

4. Conflict of Interest

In his fourth claim, Butler contends that he was denied effective assistance of counsel due to a conflict of interest between himself and attorney Anne Borghetti, who had previously represented witness Terry Jackson in a criminal case. Butler argues that because Borghetti was ethically prohibited from revealing information she learned about Jackson in the course of her representation, and because Jackson was a material witness at Butler’s trial, Borghetti’s failure to disclose her prior representation prejudiced Butler’s defense and violated his right to conflict-free counsel. The following standard of review applies to Strickland claims based upon an alleged conflict of counsel:

[I]n order to establish an ineffectiveness claim premised on an alleged conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” A lawyer suffers from an actual conflict of interest when he or she “actively represents] conflicting interests.” To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.”

Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002) (citations omitted) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).

Here, the evidence submitted to the posteonviction court established that Borghetti was appointed to represent Jackson regarding the charge of throwing a deadly missile on June 19, 1997, after the Public Defender’s Office withdrew from Jackson’s case. Borghetti filed a notice of appearance on June 26. The letter from the State Attorney’s Office declaring its intention not to prosecute Jackson on that charge is dated August 11. Borghetti filed a notice of appearance in Butler’s case approximately five months later, on January 15, 1998. At the posteonviction evi-dentiary hearing, Borghetti acknowledged that her signature appeared on the June 26 notice of appearance. However, she testified that she had no recollection of representing Jackson, or even of speaking with him, and stated that her records contained no file under his name. She explained that she was on the conflict counsel list at that time, and assumed that she was appointed to represent Jackson because of the withdrawal of the Public Defender’s Office, but noted that she found no record of ever appearing in court on Jackson’s behalf.

Based on this evidence, Butler has not established that an “actual conflict of interest adversely affected his lawyer’s performance.” Hunter, 817 So.2d at 791 (quoting Cuyler, 446 U.S. at 350, 100 S.Ct. 1708). As the posteonviction court determined in denying this claim,

[A]ll evidence appears to indicate that all Borghetti did on the Jackson case was file a boilerplate notice of appearance before the State filed its notice that no information would be filed, that Bor-ghetti did not even recall having briefly appeared in Jackson’s case before representing Butler, and did not realize that there was any connection between the two men.

Because there is no evidence in the record suggesting that Butler’s interests were compromised by Borghetti’s prior representation of Jackson, we affirm the post-conviction court’s decision.

5. Unidentified Print

Butler’s next claim is based on the post-conviction testimony of Carol Beauchamp, a latent print examiner with the Pinellas County Sheriffs Office. Beauchamp (née Davis) testified at Butler’s trial concerning latent prints recovered from the crime scene. At trial, Beauchamp testified that 113 prints were recovered from the crime scene, in the form of both lifts and photographs. Of those 113 prints, eighty-four had no comparable value, twenty-one were unidentified, and eight positive identifications were made. Three of the identified prints were from Harry Butler, four were from Leslie Fleming, and one was from one of Fleming and Butler’s daughters. During posteonviction proceedings, Beau-champ testified concerning one of the twenty-one unidentified prints. The print was found on a telephone at the crime scene, was in blood, and appeared to Beau-champ to be a partial palm print. Beau-champ said that she compared the print to available print sets from the defendant, the victim, and other individuals, but was unable to make a positive identification.

Butler now argues that his trial counsel rendered ineffective assistance by failing to discover this print and by failing to alert the jury of its significance. Butler asserts that because the print was in the victim’s blood, it could only have been left at the time of the murder. Thus, the print supported trial counsel’s argument that the murder was committed by an unidentified third person, and provided evidence that an unidentified person was at the scene of the crime. In the alternative, Butler argues that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose the existence of the bloody print. The postconviction court found both claims to be without merit, and we agree.

a. Brady Claim

Initially, we address the State’s alleged failure to disclose evidence concerning the print and find Butler’s claim unsupported by the record. Under the decision of the United States Supreme Court in Brady, “the State is required to disclose material information within its possession or control that is favorable to the defense.” Floyd, 18 So.3d at 450. To prove the existence of a valid Brady claim, a defendant must demonstrate “(1) that favorable evidence — either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.” Rodriguez v. State, 39 So.3d 275, 285 (Fla.2010) (quoting Riechmann v. State, 966 So.2d 298, 307 (Fla.2007)). To show that the defendant was prejudiced by the suppression of evidence, “the defendant must demonstrate ‘a reasonable probability that the jury verdict would have been different had the suppressed information been used at trial.’ ” Floyd, 18 So.3d at 450 (quoting Smith v. State, 931 So.2d 790, 796 (Fla.2006)).

As to the second prong, “this Court has explained that ‘[t]here is no Brady violation where the information is equally accessible to the defense and the prosecution, or where the defense either had the information or could have obtained it through the exercise of reasonable diligence.’” Floyd, 18 So.3d at 451 (quoting Provenzano v. State, 616 So.2d 428, 430 (Fla.1993)). In this case, the record establishes that evidence concerning the bloody print was not withheld from the defense. Beauchamp testified that she provided copies of all identifiable prints, as well as a copy of her report containing the results of all fingerprint comparisons, to the defense. Additionally, attorney Watts testified that evidence concerning the print was included in the materials provided to the defense and was further mentioned in the deposition of Donald Barker, the investigator who documented the print at the crime scene. Under these circumstances, evidence of the print was clearly available to the defense. Accordingly, Butler has failed to establish that evidence was “willfully or inadvertently suppressed by the State.” Rodriguez, 39 So.3d at 285. Thus, Butler’s Brady claim is without merit.

b. Strickland Claim

As to Butler’s Strickland claim, the trial court held that the failure of counsel to highlight the significance of this print to the jury did not result in sufficient prejudice to warrant relief. Again, this conclusion is supported by the evidence presented at trial and in the postconviction record. Butler’s prejudice argument is based on his contention that the existence of the bloody print supported his attorneys’ argument at trial that the murder was committed by an unidentified third person. However, according to Beau-champ’s postconviction testimony, the print did not conclusively establish that a third person was at the crime scene.

Beauchamp stated that the print appeared to her to be a partial palm print. She explained that while she compared the print to print sets from the victim, the defendant, and numerous other individuals, she was not able to identify its source. However, Beauchamp also explained that the area of the palm between the thumb and forefinger, which a person would use in grabbing an item, is not included on a standard set of fingerprint cards, but rather is only included if major case prints are taken. Beauchamp said that she did not have a set of major case prints from Leslie Fleming. Thus, she was unable to exclude the victim as a source of the print. Furthermore, Shawna Fleming, the victim’s sister, testified that when she discovered Leslie’s body on the morning of March 14, 1997, the body was next to the phone. As the postconviction court also observed, Beauchamp testified that Dennis Tennell and Adonis Hartsfield, the two possible alternative perpetrators identified by the defense, were conclusively eliminated as sources of the print.

In light of the fact that the victim could not be eliminated as a source of the bloody print, this evidence provides little support for the defense’s argument that an unidentified third person was present at the scene of the murder. Nor does the print negate or weaken other evidence of Butler’s guilt, particularly Butler’s statement that he intended to kill Leslie Fleming, LaShara Butler’s identification of her father, and the fact that the victim’s blood was found on Butler’s shoes. Accordingly, counsel’s failure to bring the print to the jury’s attention does not undermine confidence in the result of the proceedings, and we affirm the postconviction court’s denial of relief.

6. Medical Examiner’s Testimony

Butler’s sixth Strickland claim is based on the asserted failure of his trial counsel to object to testimony by medical examiner Dr. Marie Hansen during the guilt phase. The challenged statements were made during redirect examination. Dr. Hansen was asked by the State to define the phrase “torturous wounds,” which she did. When asked whether the victim’s injures were torturous wounds, Hanson replied, “[T]hey could be consistent with torture wounds, yes.” Butler argues that counsel should have objected to this statement as irrelevant and speculative. He further argues that because Dr. Hansen is not an expert in neurology, she was not qualified to testify as to whether the victim was in pain.

Below, the postconviction court rejected Butler’s claims. As to the issue of relevance, the court found that, during cross-examination, defense counsel questioned Dr. Hansen concerning the possibility that the victim was unconscious when the wounds were inflicted. The postconviction court determined that in discussing the issue of torturous wounds, the State was attempting to establish that the victim was in fact conscious. As to Dr. Hansen’s qualifications, the court observed that “[although Dr. Hansen testified that tortuous [sic] wounds hurt, she did not express any opinion as to whether the victim suffered; her testimony regarding tortuous [sic] wounds simply dealt with the possibility that the victim could have been conscious.” Thus, the court concluded that the testimony was not irrelevant or improper, and that any objection would have been rejected by the trial court. See Hitchcock, 991 So.2d at 361 (“Counsel cannot be deemed ineffective for failing to make a meritless objection.”).

These conclusions are supported by the record. On direct examination, Dr. Hansen described the extent and nature of the victim’s wounds. She testified that the victim suffered twenty-five stab wounds, nine incised wounds, and eleven wounds that could not be labeled. Some of these wounds were defensive in nature. Additionally, the victim exhibited swelling on her face and a fractured jaw, which Dr. Hanson explained was consistent with being struck with blunt force. Multiple stab wounds were observed on the victim’s neck. Two of these wounds would have been fatal, causing the victim to bleed to death or causing her lungs to collapse. Dr. Hanson also observed hemorrhage marks on the victim’s neck, which were consistent with strangulation, asphyxiation, or suffocation.

On cross-examination, the defense questioned Dr. Hanson as to whether the victim might have been unconscious when many of the wounds were inflicted. Dr. Hansen explained that defensive wounds were indicative of consciousness or semi-consciousness, but otherwise agreed that there was no way to determine the order in which the victim’s injuries were inflicted. Dr. Hansen agreed that with the exception of the defensive wounds, the victim could have been unconscious when the injuries were inflicted. On redirect examination, the State asked Dr. Hansen to explain to the jury the definition of a “torturous wound.” She explained that torturous wounds are small wounds in the skin made in order to hurt or threaten a person. Dr. Hansen stated that some of the wounds on the victim’s chest, abdomen, and neck could be consistent with torturous wounds. The State then questioned Dr. Hansen concerning the length of time it would take to render a person unconscious from asphyxiation. Dr. Hansen responded that it would take “up to a couple minutes” if pressure to the neck were continuously applied. The State then asked, “Why would someone keep stabbing someone if they were unconscious?” The defense objected to the question as speculative, and the court sustained the objection.

Although the trial court sustained the defense’s objection to the State’s final question, we agree with the postconviction court that the overall inquiry was relevant to the issues raised during the direct and cross-examinations of Dr. Hansen. The defense sought to establish that the victim may have been unconscious when many of the wounds were inflicted. In response, the State sought to establish that the wounds were torturous in nature, indicating that the perpetrator inflicted the injuries in an effort to inflict pain on a conscious victim. Further, contrary to Butler’s argument, Dr. Hansen did not testify that the wounds in fact caused the victim pain, but only that they were “consistent with” the type of wounds inflicted with the intent of causing pain. Because this testimony was not irrelevant or improper, any objection would have been overruled. Because “[c]ounsel cannot be deemed ineffective for failing to make a meritless objection,” Hitchcock, 991 So.2d at 361, we affirm the postconviction court’s denial of relief.

7. Defense Counsel’s Opening Statement

Seventh, Butler argues that trial counsel rendered ineffective assistance based on a statement made by defense attorney Richard Watts. In the defense’s guilt phase opening statement, Watts argued that Butler did not kill Leslie Fleming, that Butler’s prosecution was the result of a rush to judgment by law enforcement, and that the jury would observe deficiencies in the State’s evidence due to the State’s failure to conduct a sufficient investigation of the murder. In the course of the opening statement, Watts incorrectly informed the jury that blood was discovered on a sliding glass door at the victim’s home containing DNA that belonged to neither Butler nor the victim. Watts further asserted that the blood on the door belonged to the real killer. In actuality, the blood was not found at Fleming’s home, but was instead found on a door at the apartment where Butler was living at the time of the murder. The State addressed the defense’s mistake in its closing argument, emphasizing that all the blood found at the crime scene belonged to the victim and that there was no way to tell when the blood found in Butler’s apartment was deposited there.

Butler asserts that this error deprived him of a fair trial by undermining the defense’s credibility with the jury. Below, the postconviction court rejected Butler’s claim, finding no reasonable possibility that the error impacted the result of the trial. We agree. First, as the post-conviction court observed, Watts’ statement was brief and did not become a focus of the trial. Secondly, defense attorney Michael Schwartzberg acknowledged the error in his closing argument and sought to use it in the defense’s favor. During closing, Schwartzberg reiterated the defense’s position that the arrest and prosecution of Butler was the result of a rush to judgment by police. Schwartzberg admitted that the blood referred to in opening argument was found at Butler’s apartment rather than Fleming’s home. However, he noted that while the blood had been tested against DNA samples from Butler and Fleming, it had not been tested against the DNA of other individuals involved in the case. Schwartzberg argued that law enforcement’s failure to thoroughly evaluate the evidence provided further support for the defense’s argument that law enforcement did not conduct a sufficient investigation.

Based on this record, we agree that Butler has not demonstrated a reasonable probability that absent the error, the result of the proceedings would have been different. See Everett, 54 So.3d at 472. Because Butler has not satisfied the prejudice prong of Strickland, we affirm the denial of relief on this claim.

8. Butler’s Testimony

In his final claim concerning ineffectiveness of guilt phase counsel, Butler argues that counsel rendered ineffective assistance by failing to adequately prepare him to testify at trial concerning his prior felony convictions. During the guilt phase, Butler informed the jury on direct examination that he was “on [his] way to prison” when he first met the victim. On cross-examination, the State asked Butler how many felony convictions he had. Butler responded, “Approximately nine that I know of.” The State replied, “How about ten?” Butler answered, “Maybe so.” Butler contends that counsel deficiently failed to instruct him not to discuss his criminal history and to make certain that Butler was aware of the number of his prior felony convictions. The postconviction court rejected these claims, finding that counsel did not fail to prepare Butler to testify and that Butler was not prejudiced by the exchange with the State during cross-examination.

At the postconviction evidentiary hearing, Richard Watts acknowledged that he intended to bring out Butler’s prior felonies during direct examination as “anticipatory rehabilitation,” but stated that he forgot to do so. Watts said that he discussed the issue with the State before trial and that they had agreed on the number of Butler’s prior felonies. Watts stated that he informed Butler before trial that the number of his prior felony convictions, but not the nature of those felonies, could be used against him if he testified.

Based on this record, we find that Butler has not established prejudice under Strickland. With regard to counsel’s failure to tell Butler not to discuss his prior convictions, the jury was already aware prior to Butler’s testimony that Butler had been a cocaine dealer and that he was previously arrested for domestic battery against Fleming. As the postconviction court stated in denying this claim,

Given this testimony, it would hardly be a surprise to the members of the jury that Butler had, at some point in his past, served time in prison. While Butler’s testimony was not helpful, this brief reference to serving time in prison cannot be said to have changed the outcome of the trial.

Similarly, with regard to counsel’s failure to bring out the number of prior felonies during direct examination and to make certain that Butler was aware of the number of his prior felonies, we find no reasonable probability of a different outcome. The difference between Butler’s answer of “approximately nine” and the State’s correction of “ten” was negligible. Because we find that Butler was not prejudiced under Strickland, we affirm the postcon-viction court’s denial of this claim.

B. Ineffective Assistance of Penalty Phase Counsel

Next, Butler argues that the post-conviction court erred in denying his claim that trial counsel rendered ineffective assistance at the penalty phase of his trial. In keeping with Strickland, “To succeed in an ineffective assistance of penalty phase counsel claim, the claimant must demonstrate that counsel performed deficiently and that such deficiency prejudiced his defense.” Lynch v. State, 2 So.3d 47, 70 (Fla.2008) (quoting Hannon v. State, 941 So.2d 1109, 1124 (Fla.2006)). “When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness ‘deprived the defendant of a reliable penalty phase proceeding.’ ” Asay v. State, 769 So.2d 974, 985 (Fla.2000) (quoting Rutherford v. State, 727 So.2d 216, 223 (Fla.1998)). In meeting this burden, Butler “must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence.” Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 453, 175 L.Ed.2d 398 (2009).

At the postconviction evidentiary hearings, it was established that Butler was originally represented in his criminal case by the Public Defender’s Office. After the Public Defender withdrew due to a conflict of interest, the trial court appointed attorneys Michael Schwartzberg and Richard Watts to represent Butler. Watts, in turn, retained attorney Anne Borghetti to assist in the preparation of Butler’s case. Watts testified during postconviction proceedings that Schwartzberg took primary responsibility for the guilt phase of trial, while he and Borghetti were responsible for gathering mitigation to present during the penalty phase.

Borghetti described the defense’s investigation of Butler’s background and its development of mitigating evidence. She testified that she interviewed Butler, reviewed his school records, and prepared an assessment of his family history and upbringing. Borghetti also interviewed members of Butler’s family, including Butler’s father Junior Butler, sister Sandra Butler, and brother Terry Butler, as well as Robin Green, Butler’s former girlfriend and the mother of three of his children, and Butler’s employer James Wood, who testified during the guilt phase. An investigator was retained, although Borghetti admitted that the investigator was not specifically assigned to develop mitigating evidence. The defense also consulted with Dr. Alfred Fireman, a forensic psychiatrist, who interviewed Butler and reviewed his medical records.

As to the penalty phase itself, Borghetti and Watts testified that the presentation of evidence did not go as planned. The proceeding was held on Saturday, June 27, 1998, the day after the guilt phase was completed. According to Watts, the jury was given the option of waiting until Monday to proceed with the penalty phase or to continue through the weekend, and opted to proceed on Saturday. On the morning of the penalty phase, however, many of the defense’s expected witnesses failed to arrive at court. Watts explained that he intended to call several of Butler’s friends and family members as witnesses, including Robin Green and Butler’s son, Harry, Jr. Watts said that he had considered the witnesses who failed to arrive to be the most persuasive. Nonetheless, Watts decided to go ahead with the penalty phase, concluding that the jury would have been less favorable to Butler if the proceeding was delayed. Watts also stated that in his experience reluctant witnesses are not very helpful. He felt at the time of trial that if the witnesses intentionally chose not to show up, their testimony would likely be of limited value to the defense. The defense thus proceeded with only two mitigation witnesses available: Junior Butler a