Brooks v. State (175 So. 3d 204, 2015)

PER CURIAM.

Lamar Brooks appeals an order of the circuit court that denied his initial motion to vacate his convictions of first-degree murder and sentences of death filed pursuant to Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. As explained below, we affirm the postcon-viction court’s denial of relief on all claims and deny Brooks’ petition for a writ of habeas corpus.

FACTS AND BACKGROUND

Lamar Brooks was convicted and sentenced to death for the first-degree murders of Rachel Carlson and her three-month-old daughter, Alexis Stuart. Brooks v. State, 918 So.2d 181, 186-87 (Fla.2005) (Brooks II). However, this Court reversed Brooks’ convictions and sentences on direct appeal, concluding that the trial court erroneously admitted extensive inadmissible hearsay testimony that prejudicially impacted Brooks’ trial. Brooks v. State, 787 So.2d 765, 781-82 (Fla.2001) (Brooks I). Upon retrial, Brooks was again convicted of the murders of Carlson and Stuart. Brooks II, 918 So.2d at 187. A jury recommended a sentence of death by a vote of nine to three for the murder of Carlson and eleven to one for the murder of Stuart, and the trial court again sentenced Brooks to death for both murders. Id. This Court affirmed Brooks’ convictions and sentences on direct appeal. Id. at 211. The portions of the opinion relevant to the facts of the murders are as follows:

In the late night hours of April 24, 1996, Rachel Carlson and her three-month-old daughter, Alexis Stuart, were found stabbed to death in Carlson’s running vehicle in Crestview, Florida. Carlson’s paramour, Walker Davis, and Brooks were charged with the murders. Davis was married and had two children, and his wife was pregnant with their third child. However, the victim believed Davis was also the father of her child and demanded support from him. [n.l] Davis became concerned about this pressure. He was convicted of the murders and sentenced to life imprisonment. However, he did not testify at Brooks’ trial.

[N.l.] DNA tests performed after the murders revealed that Davis was not the father [of Stuart].

Brooks lived in Pennsylvania but had traveled to Florida from Atlanta with his cousin Davis and several friends on Sunday, April 21, 1996. Brooks stayed with Davis at Eglin Air Force Base for a few days before returning to Pennsylvania. In interviews with the police, he informed them that on the following Wednesday evening, the night of the murders, he helped Davis set up a waterbed, watched some movies, and walked Davis’s dog. Contrary to Brooks’ statements, several witnesses placed him and Davis in Crestview on the night of the murders, although no physical or direct evidence linked him to the crimes.

[D]uring this trial, Mark Gilliam related detailed, substantiated information regarding the two failed attempts he, Brooks, and Davis had made on Carlson’s life. Gilliam testified that on Monday, April 22, 1996, Davis phoned Carlson from the hospital asking her to meet him at his home where Gilliam and Brooks were secretly waiting in Gilliam’s car. According to Gilliam, he and Brooks followed the vehicle occupied by Davis and Carlson in the direction of the predesignated place in Crestview where, according to plan, Brooks was to shoot Carlson. Gilliam established that Brooks had a pistol-grip shotgun and latex gloves with him in the car. Gilliam’s version of events was partially corroborated by the testimony of a law enforcement officer who performed a consensual search of Davis’s home after the murders and discovered a short-handled shotgun. In addition, the crime scene analyst testified that the smudged hand impressions found at the crime scene were consistent with the perpetrator wearing latex gloves.

Gilliam further testified that during the course of the duo following Carlson’s car on the night of the first failed murder attempt, Carlson was stopped by a law enforcement officer for speeding. Gilliam explained that he drove by Carlson’s stopped car, made two u-turns, and pulled up a short distance behind her. This testimony was partially corroborated by that of Florida State Trooper Michael Hulion, who reported that he stopped Carlson for speeding on Monday, April 22, and noted the presence of a baby in the back seat as -well as a black male in'the passenger seat. ¡Gilliam further described that as this was occurring a second .police officer drove to a position behind his vehicle, approached his car, and began questioning the two men as to why they had positioned their vehicle behind Carlson’s stopped vehicle. Testimony at trial confirmed that a sheriffs deputy had in fact run a check on Gilliam’s license plates that evening in the vicinity of Crestview.

Gilliam also described in detail the second attempt to effectuate the murder, which occurred on the following day, Tuesday, April 23, and followed largely the same sequence of events with Carlson picking Davis up at a local shopping center and Gilliam and Brooks following behind. According to Gilliam, the spcond attempt ended in failure because Gilliam became separated from Carlson’s car at a stop light. Gilliam stated that he and Brooks proceeded to the predesignated location in Crestview and waited for the plan to'unfold, but Davis and Carlson did not appear. Gilliam’s testimony was supported by the testimony of the officers who questioned Gilliam after the murders and related that he placed “Xs” on a map of Crest-view that corresponded to the area in which the victims’ bodies were found. Finally, Gilliam stated that he backed out of the murder plan and left Eglin the morning of April 24 to return to his base at Fort Benning, Georgia.

Record evidence also firmly establishes Brooks’ presence in Crestview in the vicinity of the- crime scene in close proximity to the time of the murders. Witnesses Irving Westbrook and Charles Tucker testified that they saw two men walking in the vicinity of the murder scene, away from where Carlson’s car was later found, around the time of the murder. According to Irving West-brook, one of the men -had a limp. Their testimony was corroborated by witness Kea Bess who had previously been introduced to Davis by a mutual friend on the Sunday prior to the murders. Bess testified that she saw Davis, whom she recognized because of the east on his leg, and another man walking rapidly in the- opposite direction from the crime scene. According to Bess, one of the men was carrying a bag.

Witness [Melissa] Thomas testified that Davis and Brooks visited her Crest-view apartment, located only a few blocks from the scene of the crime, on the night of the murders shortly after 9 p.m. She stated that both men were wéaring black nylon pants and that Brooks carried a black backpack. Thomas testified that Brooks used the bathroom, Davis asked for a towel, and both men used the telephone, [n.10] The presence of Brooks and Davis in Thomas’s apartment that evening was also corroborated by the testimony of Nikki Henry, a friend of Thomas, who arrived just as the two men were walking away from the location.

[N.10] The presence of Brooks in the apartment was corroborated by the DNA found on a cigarette butt recovered from Thomas’s ashtray which matched Brooks’ DNA.

The presence of Brooks and Davis in Crestview on the night of the murders was further established and verified by the testimony of Rochelle Jones. ' Jones stated that she received a call from Davis on the night of the murders requesting that she come to a particular location to provide transportation for the duo. Davis gave Jones directions to drive to a street in Crestview between a credit union and' an animal hospital. Jones’s testimony was corroborated by telephone records, and the testimony of a police officer who stopped Jones for speeding as she drove back to Eglin Air Force base, who noted the presence of two black males in her vehicle and requested that Davis assume operation of the vehicle because Jones was operating the vehicle with a suspended license. The testimony of Jones was further corroborated by that of Glenese Rushing, who was using the automatic teller machine at the Crestview credit union on the night of the murders and reported seeing two people across the street at the animal hospital entering a car that subsequently made a u-turn in the credit union parking lot. The testimony of Jones also establishes that whatever transportation Brooks and Davis may have used to travel to Crestview that evening was apparently unavailable for the return trip.

Record evidence also demonstrates the guilty knowledge of Brooks regarding the murders. In contrast to the multitude of witnesses who placed Brooks in Crestview near the crime scene on the night of the murders, Brooks consistently denied being in the community during his police interviews. According to Air Force Office of Special Investigations Agent . Karen Garcia, Brooks claimed that he and his cousin remained in Davis’s apartment near Eg-lin Air Force base assembling a waterbed on the night of the murders, leaving only briefly to walk Davis’s dog. At one point during his interview with Agent Garcia, Brooks stated, “Walker is on his own. If he did something, he’s on his own.” The investigator from the office of the State Attorney, Michael Hollinhead, also interviewed Brooks shortly after the murders. Hollinhead testified that when he attempted to develop information from Brooks regarding the person named “Mark” (subsequently identified as Gilliam), who had accompanied Brooks to Davis’s home on April 21, Brooks became “evasive.”

The identity of Brooks as the individual who killed Carlson and Stuart is also supported by substantia! evidence. Forensic evidence established that both Carlson and Stuart were killed by a person seated in the rear driver’s-seat of the vehicle, [n.13] and that no one occupied the front passenger’s seat at the time of Carlson’s stabbing. Other evidence demonstrated that Brooks was the individual seated in the back seat of Carlson’s vehicle. Importantly, Davis was in a leg cast at the time of the murder. That fact renders it highly unlikely that Davis would have been able to sit in the back seat of a car in a position that would have left him able to muster the leverage utilized to mount this attack from behind. Moreover, a shoe print was found on Carlson’s shoulder. A forensic expert opined that the print was consistent with the killer extricating himself from the vehicle'by climbing over the victim’s body, which was found in the front seat, or opening the driver’s-side front door and kicking' Carlson over. Either feat would have been almost impossible for a man in a leg cast. Moreover, Davis sat in the front passenger seat during the prior failed murder attempts as established by the trooper who stopped Carlson for speeding and testified to seeing a baby in the back seat and a black man in the right front seat,

[N.13] This evidence included nondescript contact blood stains found on the exterior of the vehicle on the driver’s-side front and rear doors; contact blood stains on the interior rear driver’s-side door that were consistent with someone with blood, on their hands attempting to exit the vehicle; contact stains on the driver’s headrest consistent with placement of a bloody-hand; and medium-velocity blood spatter and arterial spurting on the front passenger’s door panel. Based on this evidence, the crime scene analyst concluded that Carlson was behind the steering wheel when the attack began, that the attack continued as she moved to the front passenger’s side of the vehicle, and that her attacker was seated in the driver’s-side back seat. Another forensic expert concurred with this conclusion.

Brooks II, 918 So.2d at 186-87, 194-97 (quoting Brooks I, 787 So.2d at 768-69) (some footnotes omitted).

As a basis for imposing sentences of death for the murders of Carlson and Stuart, the trial court found that four statutory aggravating circumstances had been proven beyond a reasonable doubt for each murder: (1) Brooks was previously convicted of another capital felony (the contemporaneous murder of the other victim); (2) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP); (3) the murder was committed for pecuniary gain; and (4) the murder occurred while the defendant was engaged in the commission of aggravated child abuse. Id. at 187. The trial court additionally found as an aggravating factor that Carlson’s murder was especially heinous, atrocious, or cruel (HAC). Id.

Although Brooks waived his right to present mitigating evidence, counsel described for the trial court the mitigating evidence they would have presented. Id. Based on this information, the trial court found the following statutory mitigating circumstances: (1) Brooks lacked a significant criminal history (little weight); and (2) Brooks was twenty-three years old at the time of the murders (little weight). Id. at 187 n. 2. The trial court additionally found the following nonstatutory mitigating circumstances: (1) Brooks’ codefen-dant, Walker Davis, Jr., was sentenced to life imprisonment (little weight); (2) Brooks has strong family ties and participated in community affairs (very little weight); (3) Brooks is his family’s only living son (some weight); (4) Brooks’ military service (little weight); (5) Brooks demonstrated good character and an ability to establish loving relationships (little weight); (6) Brooks is the father of a six-year-old child (some weight); (7) Brooks exhibited good courtroom behavior and demeanor (some weight); (8) Brooks regularly attended church and had Christian training (little weight); (9) Brooks’ employment history (little weight); (10) the sufficiency of life in prison without the possibility of parole as punishment (little weight); and (11) the sufficiency of life in prison without parole to protect society (some weight). Id.

On direct appeal, Brooks presented fourteen claims. Id. at 187-211. Specifically, Brooks contended that the trial court erred when it: (1) admitted a life insurance policy; (2) permitted testimony regarding child support records; (3) admitted notes seized from Davis’ leg cast; (4) permitted the State to impeach Melissa Thomas regarding whether, on the night of the murders, Brooks changed clothes in her apartment; (5) permitted Mark Gilliam to testify regarding Brooks’ desire to shoot the police officer who approached Gilliam’s vehicle during the first failed attempt to murder the victims; (6) denied several objections to comments made by the prosecutor during closing statements; (7) refused to instruct the jury on section 90.803(18)(e), Florida Statutes (1996); (8) denied Brooks’ motion for mistrial; (9) denied Brooks’ motion to change venue; (10) found that Brooks committed the murder during the course of an act of aggravated child abuse and relied upon this fact to justify the imposition of the death sentence; (11) found the pecuniary gain and CCP aggravating circumstances applied to the murder of Stuart; (12) found that the sentences of death were proportionate; (13) refused to require the jury to return a special verdict that specified which aggravating circumstances were found and the accompanying vote; and (14) assigned the jury’s recommendation great weight. Id. at 187-211.

This Court determined that five errors of law occurred during the course of Brooks’ retrial, including: (1) the erroneous admission of testimony concerning the child support records; (2) the erroneous admission of the notes recovered from Davis’s leg cast; (3) the improper impeachment of Thomas; (4) the trial court’s failure to read the jury instruction for section 90.803(18)(e) as requested by defense counsel; and (5) the erroneous reliance by the trial court on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse. Id. at 202. However, we concluded that there was no reasonable probability that any of these errors, either individually or cumulatively, contributed to Brooks’ convictions, and affirmed Brooks’ convictions and sentences. Id. at 197, 199-202, 211. The United States Supreme Court denied certiorari review on May 22, 2006. Brooks v. Florida, 547 U.S. 1151, 126 S.Ct. 2294, 164 L.Ed.2d 820 (2006).

Postconviction Proceedings

On May 18, 2007, Brooks filed an initial seven-claim motion to vacate judgment of convictions and sentences. Brooks later amended his motion to add two additional claims. The claims presented were: (1) counsel performed ineffectively when they failed to present and/or the State failed to disclose, critical exculpatory evidence during the guilt phase; (2) counsel performed ineffectively when they failed to present available evidence to the jury, despite promising to do so during opening statements; (3) counsel performed ineffectively when they failed to investigate and present available mitigation; (4) counsel performed ineffectively when they failed to provide Brooks with adequate mental health assistance during trial; (5) Florida’s rules prohibiting postconviction counsel from interviewing jurors unconstitutionally inhibit Brooks from détermining if constitutional errors occurred; (6) the lethal injection procedures violate the Eighth Amendment; (7) Brooks’ convictions and sentences of death constitute cruel and unusual punishment; (8) the State would violate the Eighth Amendment ban against cruel and unusual punishment by executing Brooks, a brain-damaged, mentally impaired individual; and (9) Brooks is exempt from execution under the Eighth Amendment because he suffers from severe brain damage and other mental limitations.

The postconviction court granted an evi-dentiary hearing on claims 1, 2, 3, 4, and 9, and summarily denied claims 5, 6, 7, and 8. The evidentiary hearing was held over the course of four days between January and May 2008. However, in January 2009, the postconviction court judge died unexpectedly before a final order on Brooks’-post-conviction claims was issued. The' case was reassigned to a successor judge, and a new evidentiary hearing was held on &e same claims.

During the second evidentiary hearing, Brooks presented five witnesses. Two of the witnesses, Wilden Davis, Brooks’ cousin, and Joanne Washington, Brooks’ childhood friend, testified that Brooks was an intelligent, witty, and happy child. However, both Davis and Washington testified that after Brooks joined the military and returned from overseas, he became reclusive, withdrawn, irritable, and occasionally verbally and physically aggressive. Brooks started drinking heavily and occasionally smoked marijuana.

Dr. Hyman Eisenstein, a clinical psychologist with a specialty in neuropsychol-ogy, testified that Brooks exhibited brain dysregulation, and diagnosed Brooks with chronic post-traumatic stress- disorder (PTSD) and alcohol abuse, Dr. Eisenstein testified that at the time of the murders, Brooks was additionally suffering from an extreme mental or emotional disturbance, was abusing alcohol, and could not conform his conduct to the requirements of law. However, Dr. Eisenstein’s testimony was significantly impeached during cross-examination. Dr. Eisenstein admitted that Brooks was generally uncooperative, did not give his best effort during the initial evaluation, and refused to see him for a second evaluation. Thus, Dr. Eisenstein ■admitted that his diagnosis of PTSD and his conclusion that Brooks was ■ suffering from an extreme emotional disturbance were only “tentative” because Brooks was uncooperative during the evaluation process. Dr. Eisenstein additionally admitted that his belief that Brooks was drinking on the night of the murders was merely an assumption based on prior conduct.

Finally, Brooks presented Kepler Funk and Keith Szachacz, the attorneys who represented Brooks during his initial direct appeal and, after his convictions were reversed, during the retrial. Both Funk and Szachacz testified in detail regarding their relationship with Brooks, their approach to Brooks’ retrial, and the strategic decisions they made both before and during Brooks’ retrial.

The State' presented three witnesses. Barry Beroset, Brooks’ counsel during the first trial, testified regarding his trial strategy, the extent of his mitigation investigation, and whether he pursued mental health mitigation. Debbie Carter, a legal assistant with the State Attorney’s Office* and Robert Elmore, the Assistant State Attorney who prosecuted Brooks and his codefendant, testified regarding the State’s discovery procedures and whether certain documents were disclosed to the defense during pretrial discovery.

On March 9, 2011, after the evidentiary hearing was completed, but before a final order was issued, Brooks filed a successive postconviction motion in which he alleged that newly discovered evidence established he did not murder Carlson or . Stuart. A third evidentiary hearing was held on this claim, during which Brooks presented four witnesses.

During the evidentiary hearing, Ira Ferguson, who was incarcerated and serving sentences for convictions of second-degree murder, grand theft auto, and robbery with ,a deadly weapon, testified that he met Walker Davis in prison. Ferguson in-formed Davis that he had visited in Crest-view and knew several people who lived there. Ferguson later testified that he knew Gerrold Gundy, and that Carlson was Gundy’s girlfriend. Ferguson testified that on the night of the murders, he arrived at a club between 10:30 and 11 p.m. Outside the club in the parking lot, Ferguson saw Gundy, Carlson, and a baby inside Carlson’s vehicle. Ferguson testified that he approached them, asked for a cigarette, and departed from the area. When he returned, Ferguson noticed that the vehicle had been moved onto a side street. Shortly thereafter, Ferguson heard a door slam and saw Gundy and Carlson arguing. Ferguson left the scene and drove to a friend’s house. The next day, Ferguson learned of Carlson’s and' Stuart’s deaths, but he did not contact the authorities.

Funk testified that he never encountered Ferguson during the course of his investigation of the murders. He further testified that he investigated Gundy as a possible suspect, but'-ultimately decided, with Brooks’ consent, that the best course of action was to not attempt to connect Gundy to the murders. In addition, he testified that he and Szachacz conducted an extensive investigation and concluded that there was no “indication in any way, shaped or form ... that Ms. Carlson was alive at 10:45. I think that it was contradicted by the evidence, frankly.”

Daniel Ashton, a private investigator, testified that he became involved with Brooks’ case in 2006. The first time he learned of Ferguson was in July 2010, when he received a phone call from Davis’ mother. He testified that while he was investigating the murders, he never encountered any evidence that: (1) placed Ferguson in Crestview at the time of the murders; or (2) corroborated Ferguson’s testimony that he saw Gundy with Carlson at a nearby club at 10:45 .p.m. on the night of the murders. Ashton additionally testified during cross-examination that no evidence found diming the investigation supported Ferguson’s testimony that Gundy fought with someone outside of the club on the night of the murders or that Gundy knew Carlson. Ashton was also unable to locate Michelle Roberts, the friend whose house Ferguson allegedly went to on the night of the murders.

Elizabeth Hutchinson testified that she met Ferguson through mutual friends who travelled from Miami to visit her in Crest-view in 1996. Hutchinson testified , that she also knew Gundy "and she had never seen Ferguson and Gundy together.

The State presented several witnesses in rebuttal. Glenn Swiatek, who briefly represented Walker Davis on appeal, testified that he introduced himself to Ferguson shortly before Ferguson was deposed. During that conversation, Ferguson asked Swiatek to provide him information as to the date on which the murders occurred. Immediately after Swiatek provided the information, he observed Ferguson write the date at the top of an affidavit. Swia-tek testified that Ferguson told him that he asked Swiatek for this date information only to determine whether Swiatek was an undercover agent.

Gerrold Gundy testified that he had never met Carlson, but that around the time of the murders he had a girlfriend named Shawna Tatum, who, like Carlson, was a white female with blonde hair. Also like Carlson, Tatum had a young child and drove a small red vehicle. Gundy recalled an incident in 1999 in Crestview where he and three men who were related to Ferguson were arrested on drug charges. Gun-dy testified that he did not know these men and was later released when the police determined that he had no connection to the crime. When Gundy was shown two pictures of Ferguson, he stated it was possible that he had seen Ferguson before, but that he and Ferguson were not friends and he did not interact with Ferguson on the night of the murders.

Margaret Summers, a sergeant with the Florida Department of Corrections (DOC) who worked at the Wakulla Corrections Institution Annex from October 2008 to June 2011, testified that she studied the internal movement records of Davis and Ferguson while they were incarcerated in that facility. She testified that she never saw Ferguson and Davis together, nor did she locate a time when they were housed in the same dormitory. Although there was a two-month period when Davis and Ferguson could have interacted during recreational hours, she could recall only one occasion when Ferguson and Davis were in the same location at the same time. Sylvia Williams, a records custodian for the Florida Department of Law Enforcement (FDLE), testified that from April 2010 to November 2010 and from April 2003 to July 2003, Davis and Ferguson were housed in the same facility.

On March 12, 2012, the postconviction court issued an order denying all of Brooks’ claims, including the newly discovered evidence claim presented in the successive motion. This appeal follows.

ANALYSIS

Strickland Standard of Review

Brooks’ first two claims on appeal challenge the postconviction court’s determination that counsel did not perform ineffectively during the guilt phase of his retrial. This Court recently described what a defendant must establish to succeed on a claim of ineffective assistance of trial counsel:

[T]he test when assessing the actions of trial counsel is not how, in hindsight, present counsel would have proceeded. See Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995). On the contrary, a claim for ineffective assistance of trial counsel must satisfy two criteria. First, counsel’s performance must be shown to be deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance in this context means that counsel’s performance fell below the standard guaranteed by the Sixth Amendment. Id. When examining counsel’s performance, an objective standard of reasonableness applies, id. at 688, 104 S.Ct. 2052 and great deference is given to counsel’s performance. Id. at 689, 104 S.Ct. 2052. The defendant bears 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)). This Court has made clear that “[strategic decisions do not constitute ineffective assistance of counsel.” See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 669, 104 S.Ct. 2052.

Second, the deficient performance must have prejudiced the defendant, ultimately depriving the defendant of a fair trial with a reliable result. [Id. at] 689, 104 S.Ct. 2052. A defendant must do more than speculate that an error affected the outcome. Id. at 693, 104 S.Ct. 2052. Prejudice is met only if there is a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Both deficient performance and prejudice must be shown. Id.

Bradley v. State, 33 So.3d 664, 671-72 (Fla.2010).

Ineffective assistance claims are reviewed under a mixed standard of review because the performance and prejudice prongs of Strickland present mixed questions of law and fact. Id. at 672. Postconviction courts hold a superior vantage point with respect to questions of fact, evidentiary weight, and observations of the demeanor and credibility of witnesses. See Cox v. State, 966 So.2d 337, 357-58 (Fla.2007). As a result, this Court defers to the posteonviction court’s factual findings so long as those findings are supported by competent, substantial evidence. See Bradley, 33 So.3d at 672. However, this Court reviews the postconviction court’s legal conclusions de novo. Id. Finally, because Strickland requires that a defendant establish both deficiency and prejudice, an appellate court evaluating a claim of ineffectiveness is not required to issue a specific ruling on one component of the test when it is evident that the other component is not satisfied. See Mungin v. State, 932 So.2d 986, 996 (Fla.2006).

Failure to Present “Critical, Exculpatory” Evidence

In his first claim, Brooks contends that his trial attorneys performed ineffectively when they failed to present several pieces of “critical, exculpatory evidence” during the guilt phase of his retrial. The postcon-viction court denied this claim, concluding that Brooks had failed to establish either deficiency or prejudice. Before addressing these claims individually, we note that there is an abundance of evidence which demonstrates that Brooks clearly and unequivocally waived his right to present a defense case-in-chief during his retrial. For example, the court conducted the following colloquy with Brooks to address whether he agreed with the decision not to present a defense:

COURT: Let me ask at this time. You’ve already stated on the record that it’s the position of the defendant that he’s not going to put on any witnesses at this time.

COUNSEL: That’s correct.

COURT: And, Mr. Brooks, you realize you have a constitutional right to testify on your behalf, and as I understand it, you’re waiving that opportunity at this point, is that correct?

BROOKS: Yes.

COURT: And you’re also waiving the constitutional right that you’d have to present witnesses on your behalf, is that correct?

BROOKS: Yes.

COURT: So [counsel’s] assertion that you’re going to rest ... that’s what you want to do, is that correct?

BROOKS: Yes.

Further, Brooks’ attorneys, Funk and Szachacz, testified extensively during the evidentiary hearing regarding their trial strategy and their relationship with Brooks. Funk testified that during the retrial he and Szachacz met with Brooks daily to discuss the case. They asked for Brooks’ input and involved him in every decision. After the State rested, Funk and Szachacz reviewed the record, examined the evidentiary value of presenting witness testimony, and considered the strategy of prior counsel, who had unsuccessfully presented a defense during the first trial. They then discussed the case with Brooks, and with his input, determined that the best course of action was to not present a defense. Counsel testified that while they would have liked to present the evidence discussed below, none of that evidence, independently or collectively, was strategically important enough to outweigh the benefits of retaining first and last closing statements, especially considering that Brooks had been charged with the emotionally charged crime of brutally murdering a three-month-old baby and her mother.

Additionally, Brooks contends that prejudice has been established because during trial, his attorneys proffered much of the evidence discussed below. Brooks asserts the proffers demonstrate that his attorneys wanted to present the proffered evidence and felt the information was critical to the defense. However, prejudice is not established based solely on the subjective assessments of a party or his or her counsel regarding the importance of evidence. Rather, prejudice is established only when the defendant can establish a reasonable probability, which is a probability sufficient to undermine confidence in the outcome of that proceeding, that but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Bradley, 33 So.3d at 671-72. Thus, simply because trial counsel wished to present certain evidence, does not establish that Brooks was prejudiced by counsel’s failure to do so. Although the facts indicate that trial counsel made a reasonable, strategic decision not to present a defense case-in-chief, we address each of the individual pieces of evidence Brooks claims counsel failed to present.

Lack of Forensic Evidence Linking Brooks to the Murders

Brooks contends that trial counsel performed deficiently when they failed to present witnesses to emphasize that no forensic evidence discovered either at the crime scene or found on Brooks’ person linked him to the murders. Although Brooks does not dispute that counsel attempted to establish reasonable doubt, he contends that they performed deficiently when they neglected to utilize the lack of forensic evidence to further establish a reasonable doubt imthe minds of the jury.

During the evidentiary hearing, Funk testified he and Szachacz believed the lack of forensic evidence that connected Brooks to the crime was a critical fact that significantly favored the defense. To maximize the value of this fact, Funk and Szachacz testified that their trial strategy was to bolster the credibility of the State forensic experts by portraying them as experts in their field. According to Funk, if the jury believed that the forensic experts were “the greatest thing since sliced bread [who] could find a needle in any haystack,” he and Szachacz could establish reasonable doubt during closing statements by emphasizing that even the best forensic experts failed to uncover any evidence that linked Brooks to the crimes. Both Funk and Szachacz were aware that several pieces of evidence — including the hair discovered in the victim’s hand, vacuum sweepings taken from the victim’s car, and Brooks’ backpack — had been forensically analyzed and revealed no scientific connection between Brooks and- the murders. However, Brooks’ counsel testified that they ultimately made the strategic decision not to present forensic experts so that they could assert during the final closing statement:

We’ve got the experts that can gather evidence. Why do you think they do it, for fun? It’s for this purpose. This is what their job is, to gather evidence. Some examples of those in cases are DNA, DNA. Do you have it this case? None. Okay? That FDLE’s got serolo-gists, DNA folks, microanalysis, handwriting experts, voice stress experts, document examiners, pen pressure testing, paper testing, ink, fibers, ropes, shoeprints. They havepeople there, scientists, that test this stuff[,] ... like Jan Johnson who are solely trained ... to make sure I preserve [evidence] so it doesn’t get contaminated, and properly collect it, package it, to get it to those people. Hair fibers. What do we have in this case? None. Saiiva, none. Skin cells, none. Shoeprints, none. I’m talking about evidence in criminal trials where the Government is able to meet their burden. Confessions, happen in criminal cases. In this case, none. Handwriting analysis? This case, none, none. Blood on. people? ■ This case, [Brooks], none. = ■

This Court has, on several occasions under similar circumstances, concluded that the decision to preserve the first and last closing statements constitutes a sound trial strategy. See Van Poyck v. State, 694 So.2d 686, 697 (Fla.1997) (concluding that counsel made a tactical decision to refrain from presenting a defense case-in-chief to preserve the first and last closing statements); see also Evans v. State, 995 So.2d 933, 945 n. 16 (Fla.2008). Thus, both the record and our prior precedent demonstrate that trial counsel made a reasonable, strategic decision to retain the tactical advantage of presenting the final closing statement and to pursue the theory of reasonable doubt by arguing, through inference rather than witness testimony, that no forensic evidence linked Brooks to the murders. See Johnston v. State, 63 So.3d 730, 737 (Fla.2011) (holding that strategic decisions do not constitute ineffective assistance if counsel considers and rejects alternative courses when the final strategy was reasonable under the norms of professional conduct). Therefore, because it is evident that Brooks has failed to establish deficiency, we need not address the prejudice prong of Strickland and conclude that counsel did not perform ineffectively. We affirm the postconviction court’s denial of this subclaim. See Mungin, 932 So.2d at 996.

Gerrold Gundy

Brooks next contends that trial counsel performed deficiently when they failed to present several pieces of evidence that purportedly connected Gundy to the murders. Specifically, Brooks contends that: (1) Gundy was allegedly seen riding with a white female driver in a car similar to the one driven by the victim; (2) a crime scene dog tracked footsteps from the scene of the crimes to the doorstep of Gundy’s house; (3) a partially smoked Marlboro cigarette was found on the street near Gundy’s home, and an open pack of the same brand of cigarettes was found inside the victim’s car; and (4) a confidential informant told law enforcement that Gundy was Carlson’s friend or boyfriend.

However, for each piece of evidence, Funk or Szachacz logically explained why the defense strategically decided not to present it during the retrial. For example, Funk noted that the crime scene dog that tracked footsteps to Gundy’s doorstep did not begin the search from the crime scene, but rather began tracking from a dirt road about thirty yards away from the scene. Additionally, Brooks’ counsel was aware that Gundy had a Caucasian girlfriend who, like Carlson, had an infant child and drove a small red vehicle. This fact explains why the witnesses could have mistakenly thought that Gundy’s girlfriend was Carlson, and further supports the decision not to present this evidence during trial.

Based on this evidence, and other evidence that rebuts any potential connection between Gundy and the murders, Funk testified, “Did we think that [the State] had the ability to rebut any claim that Gundy was the one who committed these homicides? Yeah, we knew that. We knew we [were not] going to be able to prosecute Gerrold Gundy.” Funk added that to attack the credibility of the forensic experts, including the crime scene dog, would have undermined the defense strategy to bolster the credibility of the State forensic experts and then rely on their credibility to stress the lack of forensic evidence connecting Brooks to the crime. Thus, after he and Szachacz discussed the issue thoroughly with Brooks, they “made the decision that it wasn’t worth pursuing. The downside outweighed any potential upside.”

Accordingly, we conclude that Brooks’ trial counsel made a reasonable, strategic decision to not lose credibility with the jury and forego the ability to present the last closing statement to present evidence that initially appeared to connect Gundy to the murders, but ultimately would have been substantially impeached by the State. Counsel did not perform deficiently with respect to this claim, and we hold that the postconviction court properly rejected this challenge of ineffectiveness. See McCoy v. State, 113 So.3d 701, 716 (Fla.2013).

Green Nissan

Before trial, a confidential informant reported that a stolen green Nissan was recovered that matched the description of a vehicle suspected to be associated with the murders. The vehicle purportedly had blood spatter inside the cabin and on the hood. Although Brooks contends that counsel performed deficiently when they failed to present this evidence, he presented no evidence during the postcon-viction proceedings to demonstrate that this Nissan had any connection to the murders. Brooks has also failed to demonstrate that any further investigation of the Nissan would have rendered this evidence probative or admissible.

During the evidentiary hearing, Funk testified that nothing connected the stolen Nissan to any aspect of Brooks’ case. Sza-chacz similarly testified that the information regarding the Nissan was “worthless” and could not have been used to support Brooks’ defense. Funk explained that they discussed this issue with Brooks and agreed not to present evidence of the Nissan to the jury. We conclude that counsel made a reasonable assessment of the evi-dentiary value of the Nissan and tactically decided not to present it. Therefore, because Brooks has failed to establish either that his counsel performed deficiently by failing to present this evidence or that this failure undermined confidence in the outcome of his trial, we conclude that the postconviction court did not err when it denied this subclaim.

Timeline

Brooks contends that trial counsel performed deficiently when they failed to present evidence from two witnesses, La-Conya Orr and Tim Clark. According to Brooks, these witnesses would have presented evidence that would have contradicted the State’s timeline. Specifically, Brooks contends Orr told police that between 8:45 and 9 p.m. on the night of the murders, Davis and a “skinny, shorter black male” came to her house looking for her husband. The men left on foot when Orr told them that her husband was not home. Similarly, Brooks contends Clark would have testified that, between 9 and 10 p.m. on the same night, Clark saw Carlson in her vehicle conversing with a black male. Clark was shown pictures of Davis and Brooks, but he could not identify either of the men as the individual he saw with Carlson.

During the evidentiary hearing, Funk testified that he and Szachacz thoroughly researched whether testimony could be presented to rebut the State’s timeline. They reenacted what Clark told police to determine whether it was possible to identify Carlson from the location where Clark had allegedly seen Carlson sitting in her vehicle. Further, Funk and Szachacz discovered that although Clark had initially stated that he could not identify the person with Carlson on the night of the murders, he later changed his position and stated “with certainty" that Brooks was the black male with Carlson. In light of Clark’s statement, Szachacz testified that there was “no way we [could] call [Clark] because he was going to hurt [ ] Brooks.” Funk shared the same sentiments, stating that they did not present Clark because he could not imagine anything connecting Brooks with Carlson “ever helping because [ ] Davis was the one that had the link to [] Carlson.”

Similarly, Szachacz testified that Orr’s husband had given, a statement to law enforcement that placed Davis and Brooks at Orr’s house slightly after 8 p.m. Sza-chacz and Funk knew that timeframe left more than enough time for Brooks and Davis to drive from Eglin Air Force Base to Crestview and commit the murders because .they had driven the route themselves in preparation for trial. Further, Orr could not positively identify Brooks as the individual who approached her house with Davis. Based on the limitations of Orr’s potential testimony, Funk testified, “I know we talked about [presenting Orr as a witness] extensively.... And the bottom line analysis was, from a strategic standpoint, it was best not to go there. I think the jury would see through that.”

Based on these facts, we hold that the postconviction court did not err when it concluded that trial counsel did not perform deficiently by failing to present Orr and Clark as witnesses. Both attorneys thoroughly researched whether they could challenge the State’s timeline and ultimately concluded that: (1) Clark’s testimony would have placed Brooks with Carlson near the time of the murders; and (2) Orr’s testimony would likely have been substantially impeached by the prosecution. Thus, because neither witness’s testimony would have substantially aided the defense, we conclude that trial counsel made a reasonable, strategic decision not to present the witnesses. See Reynolds v. State, 99 So.3d 459, 498-99 (Fla.2012) (holding that counsel was not ineffective for failing to present unfavorable testimony). Therefore, because it is evident that Brooks has failed to establish deficiency, counsel cannot be deemed ineffective, and we affirm the denial of this subclaim. See Mungin, 932 So.2d at 996.

Polygraph Examination . , of Melissa Thomas

During trial, Melissa Thomas testified that on the night of the murders, Davis and Brooks came to her Crestview apartment at approximately 9 p.m. wearing black nylon pants. Brooks II, 918 So.2d at 200. She testified that while inside her home, Brooks excused himself to use the bathroom. Id. Thomas then testi- • fied that she recalled being interviewed by police shortly after the murders. Id. When the prosecutor asked Thomas whether she recalled telling Agent Haley during the interview that Brooks exited the bathroom wearing shorts, Thomas answered, “No, I don’t remember.” Id.

The State subsequently presented Agent Haley, who testified that Thomas had previously told him Brooks’ changed into-shorts while in the bathroom.' Id. Counsel objected, asserting that the question constituted improper impeachment because Thomas’ trial testimony did not materially differ from her statement to Haley. Id. The trial judge allowed the impeachment on the basis that her trial testimony and her previous statement to Agent Haley were “contradictory to a degree.” Id.

On direct appeal, Brooks contended the trial court erred when it permitted the prosecutor to impeach Thomas with- the statement she had provided to Agent Haley. Id. This Court agreed, and held that:

the trial judge in the instant case allowed the impeachment of Thomas’s tes-timbny because he found her testimony inconsistent to a degree with her prior statement, not because he determined that she was fabricating her inability to recall the content of her. police statement. Given the other detailed evidence provided by Haley and the fact that Brooks’ retrial occurred six years after the murders were committed, there is no basis on which to conclude that Thomas fabricated her lack of recollection. For that reason, the trial court erred in permitting the impeachment of Thomas’s trial testimony with her previous statement.

Id. However, we determined that the error was harmless:

Permitting Agent Haley to testify to the prior statement of Thomas, in which she indicated that Brooks had changed into shorts in her bathroom, did not contribute to his conviction. Neither Thomas nor any of the witnesses who placed Brooks in Crestview on the night of the murders indicated that he or his clothes were covered in blood. The State did not recover or seek to introduce any blood-stained-clothing. In the absence of any such evidence, testimony that Brooks changed clothes in Thomas’s bathroom is of no consequence.

Id. (emphasis supplied).

During the postco'nviction proceedings, Brooks has alleged both Strickland and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), violations' relating to Thomas’ and Haley’s testimony. He contends his trial counsel performed deficiently when they failed to present the results of Thomas’ polygraph examination. During the examination, Thomas responded in the negative when asked whether she noticed if Brooks changed clothes in her apartment. This answer was deemed truthful by the polygraph administrator. Brooks alleges that counsel performed de-ficiently when they failed to present these results to rehabilitate Thomas’ trial testimony.

We conclude that this claim of ineffectiveness fails both prongs of Strickland. As the postconviction court noted, polygraph evidence is generally inadmissible, and trial counsel cannot be deemed deficient for failing to present inadmissible evidence. See Gosciminski v. State, 132 So.3d 678, 702 (Fla.2013) (noting that “[pjolygraph evidence has, as a matter of law, long been inadmissible as evidence in Florida”), cert. denied, - U.S. -, 135 S.Ct. 57, 190 L.Ed.2d 57 (2014); Given v. State, 986 So.2d 534, 546 (Fla.2008). Further, even if we were to conclude that counsel performed deficiently when they failed to rehabilitate Thomas with the results of her polygraph examination, Brooks has failed to demonstrate prejudice because we specifically held on direct appeal that any testimony relating to whether •Brooks changed clothes in Thomas’ bathroom was “of no consequence” and “did not contribute to his conviction.” Brooks II, 918 So.2d at 201. These conclusions demonstrate that counsel’s failure to present this evidence does not undermine confidence in the outcome of Brooks’ trial. Therefore, Brooks’ claim of ineffectiveness was properly denied by the postconviction court.

Brooks next contends that the prosecutor committed a Giglio violation by presenting Agent Haley’s allegedly misleading testimony during trial. Brooks claims that “despite knowing that Thomas was truthful in her response on the polygraph that Mr. Brooks did not change clothes, the prosecutor wanted the jury to believe otherwise.” A Giglio violation is demonstrated when: (1) the prosecutor presented or failed to correct false'testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. Davis v. State, 26 So.3d 519, 532 (Fla.2009). We conclude that Brooks has failed to establish any of the three Giglio prongs.

First, Brooks’ claim that Thomas definitively stated during the polygraph that Brooks did not change clothes is false. Instead, during the polygraph examination, Thomas was asked if she noticed “if [Brooks] changed clothes,” to which she responded “no.” Thomas testified during trial that she did not remember telling Agent Haley that Brooks changed clothes. Thus, Thomas never definitively stated that Brooks did not change his clothes in her apartment. Accordingly, the State did not knowingly present false testimony when it elicited from Agent Haley that Thomas told him during an interview that Brooks changed into shorts in the bathroom of her apartment. Therefore, the first and second prongs of Giglio have not been met. Second, even if we were to conclude that the prosecutor knowingly presented false testimony, which we do not, Brooks has failed to demonstrate that any evidence concerning whether Brooks changed clothes in Thomas’ apartment was material. In fact, we have previously determined that this evidence was “of no consequence” and not material. Brooks. II, 918 So.2d at 201. Therefore, the third prong of the Giglio test has not been met, and we deny relief on this claim.

Conclusion

In sum, we conclude that trial counsel did not perform ineffectively when they did not present the foregoing evidence during trial. We also conclude that Brooks has failed to establish a. Giglio violation. Thus, the postconviction court did not err in denying this claim.

Failure to Present Evidence. Discussed During Opening Statements

In this claim, Brooks again contends that trial counsel performed ineffectively when they failed to present the “critical, exculpatory” evidence discussed above. However, here he claims that counsel performed ineffectively because they “promised” during opening statements to present this evidence, but then failed to present it during trial. The post-conviction court denied this claim, concluding that Brooks failed to demonstrate either deficiency or prejudice.

In the prior claim, we concluded that trial counsel made reasonable, strategic decisions not. to present several pieces of evidence, and at the time of trial Brooks also agreed not to present this evidence. Thus, whether trial counsel performed ineffectively concerning the failure to present this evidence was previously addressed and will not be discussed further. Rather, the only additional claim presented by this issue is whether trial counsel, by failing to present the evidence after they told the jury during opening statements that it would be presented, performed ineffectively.

Opening statements are not substantive evidence, but rather serve to outline-what an attorney expects-will be established by the evidence presented during trial. Occhicone v. State, 570 So.2d 902, 904 (Fla.1990). During the evidentiary hearing, Funk testified that he and Sza-chacz spent hours planning, rehearsing, and modifying their opening statement to incorporate what they believed the evidence would show during the retrial. However, during trial, the prosecutor strategically limited the direct examination of specific witnesses to prevent the defense from cross-examining them on certain subjects. When Funk and Szachacz attempted to cross-examine the witnesses concerning the evidence previously discussed, the prosecutor successfully objected to that questioning as outside the scope of direct examination. As a result, certain evidence counsel had previously stated “the jury would hear” was, in fact, only heard by the trial judge during a proffer. Funk testified that, as the trial progressed, he and Szachacz considered whether the benefits of presenting witnesses outweighed the procedural benefits afforded at the time to defendants who did not present a case-in-chief. They discussed the issue thoroughly with Brooks, and ultimately concluded that none of the evidence discussed by counsel during opening statements outweighed the value of retaining the opportunity to present the first and last closing statements.

We have, under similar circumstances, held such conduct by defense counsel to be reasonable and strategic. See Beasley v. State, 18 So.3d 473, 491-92 (Fla.2009) (concluding that counsel’s decision not to present a defense case-in-chief to preserve the benefits of giving both first and last closing argument was a “reasonable defense strategy based on the procedural rules in force at the time of trial.”). Based on the foregoing, we conclude that trial counsel did not perform deficiently when they failed to present the evidence previously discussed to support the assertions made during opening statements. Thus, the postconviction court did not err when it denied this claim.

Failure to Investigate and Present Mitigation

In his third claim, Brooks contends that his trial counsel failed to adequately inves; tigate and present mitigating evidence. According to Brooks, had counsel conducted a proper investigation, they would have uncovered evidence that Brooks suffered from alcohol abuse and various mental deficiencies.

To demonstrate that counsel was ineffective for failure to investigate or present mitigating evidence, a defendant must establish that the , deficient performance of counsel deprived the defendant of a reliable penalty phase proceeding. Hoskins v. State, 75 So.3d 250, 254 (Fla.2011). Furthermore,

It is unquestioned that under the prevailing professional norms ... counsel has an obligation to conduct a thorough investigation of the defendant’s background. Moreover, counsel must not ignore pertinent avenues for investigation of which he or she should have been aware. It is axiomatic that counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

In the context of penalty phase errors of counsel, the prejudice prong of Strickland is shown where, absent the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different or the deficiencies substantially impair confidence in the outcome of the proceedings.

[A defendant] must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider the totality of the available mitigation evidence— both that adduced at trial, and the evidence adduced in the evidentiary hearing — and reweigh it against the evidence in aggravation. However, the Supreme Court reiterated in Porter that “we do 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.’ ”

Simmons v. State, 105 So.3d 475, 503 (Fla.2012) (internal quotation marks and citations omitted).

We have further explained that a-competent defendant may control decisions that pertain to his or her defense, including the presentation of mitigation evidence, and that counsel will not be rendered ineffective for following the wishes of a competent defendant. Dessaure v. State, 55 So.3d 478, 484 (Fla.2010). However, a defendant may waive the presentation of mitigation only when the waiver is made knowingly, voluntarily, and intelligently. State v. Larzelere, 979 So.2d 195, 204 (Fla.2008). The decision to waive mitigation must not be made blindly. Rather, counsel must first investigate all avenues of potential mitigation and advise the defendant so that he or she reasonably understands what is being waived and its ramifications, and is able to make an informed and intelligent decision. State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002); see also Grim v. State, 971 So.2d 85, 100 (Fla.2007) (“We have recognized that a defendant’s waiver of his right to present mitigation does not reheve trial counsel of the duty to investigate and ensure that the defendant’s decision is fully informed.”).

Waiver and Investigation

During his first penalty phase trial, Brooks was not opposed to the presentation of mitigation. However, prior to the commencement of the second penalty phase on retrial, trial counsel Funk explained to the trial court that Brooks’ decision with regard to the presentation of mitigation had changed:

I can tell the Court that Mr. Brooks and Mr. Szachacz and myself have had long, long, long heart-to-heart discussions that include this topic about waiving mitigation, Judge. It’s not something that’s knee jerk as a result of a verdict that’s not favorable to Mr. Brooks. He’s maintained his innocence from day one and continues to. In terms of mental health mitigation, Mr. Brooks wouldn’t allow us. to pursue that route long before the guilty verdict, since we became involved in the- case. Mr. Szachacz and I are well aware of the mitigators that are out there available and would have been recognized, and I feel confident that Mr. Brooks is making a knowing, intelligent waiver of his right to present, and I think it is a right to present mitigation no matter what I recommended. I’m not saying I recommended one way or the other, but ! don’t think it1 matters. I think what matters is that we’ve investigated and we’re ready to put on the mitigation, Judge, and certainly we are, so I think the Court needs to go through that colloquy with Mr. Brooks.

Funk later told the trial court, “I don’t intend on saying a word to this jury. That’s what Mr. Brooks has instructed me to do, that-I am not to stand up before this jury, No. 1, to present any mitigation and therefore to argue in favor of mitigation, well, of course, because we’re not presenting any,” Thereafter, the trial court inquired on three additional instances whether Brooks wished to present mitigation. However, on each occasion, Brooks reiterated he had not changed his mind and that he did not