Hernandez v. State (180 So. 3d 978, 2015)

Citations

180 So. 3d 978

Full opinion text

PER CURIAM.

Michael A. Hernandez, Jr., appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus, alleging ineffective assistance of appellate counsel. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the order denying postconviction relief and deny his petition for a writ of habeas corpus.

BACKGROUND AND FACTS

Michael A. Hernandez, Jr., age twenty-three at the time of the crime, was convicted of the November 18, 2004, first-degree murder of Ruth Everett (“Everett”) in Milton, Florida. Hernandez and a friend, Christopher Shawn Arnold, went to the home of Everett and her son David Everett, also known as “Snapper,” from whom Arnold sometimes obtained drugs. Arnold and Hernandez went there looking for crack cocaine. When Everett answered the door and told them that her son was not home, Hernandez grabbed her and forced her into the house. Once Hernandez and Arnold were inside, Arnold demanded money and then went looking around the house for drugs. He returned, however, with a pillow, which he put over Everett’s face in an attempt to smother her while Hernandez held her. During the struggle or thereafter she suffered a broken neck. Arnold left the house with the victim’s purse and Hernandez then stabbed her in the neck. Hernandez returned to the car with blood on his clothes, and he and Arnold drove away. They used her ATM card several times to withdraw money which they used to buy crack cocaine.

The evidence presented at trial showed that Hernandez’s former stepfather Richard Hartman, Sr., his wife Tammy Hartman, and Arnold’s girlfriend .Michelle Rose, who is Tammy Hartman’s daughter, were, told by Arnold about the murder. Richard and Tammy then went to Hernandez’s home and confronted him. Subsequently, both Arnold , and Hernandez turned themselves in to police and gave statements. Hernandez was indicted for one count of first-degree premeditated or felony murder while carrying a knife and one count of robbery with a deadly weapon. He was later also charged with burglary with an assault or battery. Arnold, who was also charged, entered a plea and received a sentence of life in prison and Hernandez proceeded to trial. At trial, the medical examiner testified that Everett died from the combined effects of blunt and sharp force injuries to the neck, and that either the broken neck with laceration of the spinal cord or the slash through her neck could have been fatal, but also could have been survivable if medical help had been summoned. Hernandez was convicted on February 6,2007, of all three counts.

At the penalty phásé proceeding, the defense called two family members and two mental health experts to present evidence in mitigation, including statutory mental health mitigation. The State presented evidence of statutory aggravation and also presented its own expert, Dr. Harry McClaren, who disagreed that statutory mental health mitigation was present. The jury recommended death by a vote of eleven to one and a Spencer hearing was held before sentencing. On March 22, 2007, the trial court entered an order sentencing Hernandez to death, finding four aggravating circumstances and giving each great weight, as follows: (1) the de~ fendant was convicted of prior violent felonies (§ 921.141(5)(b), Fla. Stat. (2007)); (2) the murder was committed during a robbery with a deadly weapon and a burglary of an occupied dwelling with an assault or battery while armed with a dangerous weapon (§ 921.141(5)(d), Fla. Stat. (2007)); (3) the murder was committed to avoid or prevent a lawful arrest (§ 921,141(5)(e), Fla. Stat. (2007)); and (4) the murder was especially heinous, atrocious, or cruel (HAC) (§ 921.141(5)(h), Fla. Stat. (2007)). The trial court rejected the statutory mental health mitigators that the murder was committed while Hernandez was under the influence of extreme mental or emotional disturbance (section 921.141(6)(b), Florida Statutes (2007)), and that Hernandez’s capacity to appreciate the criminality of his conduct or conform his conduct to the law was substantially impaired (section 921.141(6)(f), Florida Statutes (2007)). The trial court did find the statutory miti-gator of lack of significant criminal history and gave it some weight. See § 921.141(6)(a), Fla. Stat. (2007). The trial court also found nonstatutory mitigating circumstances, which were given varying degrees of weight. See § 921.141(6)(h), Fla. Stat. (2007).

On direct appeal, Hernandez raised eight claims, and this Court also decided sufficiency of the evidence and proportionality. We affirmed in Hernandez v. State, 4 So.3d 642 (Fla.2009), and in the opinion, we recounted Hernandez’s statement given to law enforcement shortly after the murder as follows:

According to Hernandez’s statements, the following events occurred on November 18 and 19, 2004. Hernandez left his house at 8:30 a.m. on November 18 to go to work, but he and [Shawn] Arnold instead “went to a crack friend’s house and got some crack ... with the gas money and cigarette money [Hernandez] had for the day.” Although he had used crack before moving to Florida, Hernan-d¿z had not used it since moving to Florida. They were “doing crack,” and Arnold suggested going to the house of “Snapper,” an individual whom Arnold knew. -Arnold had done cocaine with “Snapper” before, but Hernandez did not know him. Arnold told him “he was going to try and get some money.” Hernandez and Arnold drove to “Snapper’s” house in Arnold’s car. They went to the door and spoke with an “old lady” at the house, Arnold told Hernandez to “grab her,” and Hernandez grabbed the lady by the mouth and pulled her into the house. Hernandez “got her quiet” and told .her, “shh, calm down,. calm, down. We ain’t going to hurt you.” The lady sat down in a chair. Arnold told the lady that “Snapper” owed him $300 and that Arnold had a gun put to his head over this money. Arnold had made up this story. Arnold told her that they would try to get the money from her and that they would leave her son alone if they got the money. The lady told them that all she had was $20. Arnold said, “All right,” and then asked to use the bathroom and cáme back' with a pillow. Arnold stuck the pillow over the lady’s face while she was still in the chair. Arnold told Hernandez to grab the lady’s hands, and Hernandez did. Hernandez and Arnold were “suffocating her” and she was “struggling.” While Hernandez' and Arnold were “choking her,” “she stopped moving for a minute.” Hernandez said the following then occurred: “And we let her up and tried to drag her over to the couch and lay her down. And she drops, and I go to grab her, and I grab her head. And her head cracked. And Shawn helped me get her. on the couch. And I ... got the knife from him and cut her neck— After she was déad.” Hernandez had grabbed Arnold’s pocket knife before entering the house and had used it to “chop up a crack block earlier.” Hernandez said he did not know why he cut the lady’s neck.

Hernandez, 4 So.3d at 649-50. In affirming, the majority of the Court found that the claims were without merit, the evidence was sufficient, and the sentence was proportionate. The United States Supreme Court denied certiorari in Hernandez v. Florida, 558 U.S. 860, 130 S.Ct. 160, 175 L.Ed.2d 101 (2009).

Postconviction Proceedings

Hernandez ‘ filed his initial motion for postconviction relief under Florida Rule of Criminal Procedure 3.851 in September 2010 in the circuit court of Santa Rosa County. The motion alleged ineffective assistance of lead trial counsel Ted Stokes and lead penalty phase Counsel Michael Rollo. The motion also alleged a Bra dy/Giglio claim.

A case management conference was held on February 25, 2011, and the circuit court entered an order granting an evidentiary hearing on most of the subclaims raised in claim one of the motion and on the Brady claim raised in claim two of the motion. The claims raised in claim one, subclaims A and G, and the Giglio claim raised in claim two were denied by the court without an evidentiary hearing. The circuit court held an evidentiary hearing in four different sessions, on January 9-13, 2012; May 25, 2012; July 16, 2012; and July 25, 2012, and denied postconviction relief on all claims in an order entered on March 28, 2013. Thus, the court denied the Defendant’s Motion to Vacate Conviction and Sentence in its entirety, although not all of those claims have been appealed here. Because most of the postconviction claims contend that trial counsel was ineffective in representation of Hernandez in either the guilt phase or the penalty phase, the standard of review for those claims is set forth next.

Standard of Review for Claims of Ineffective Assistance of Counsel

Pursuant to the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), two requirements must be satisfied to establish ineffective assistance of counsel:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Downs v. State, 453 So.2d 1102 (Fla.1984). A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review. The Court will defer to the circuit court’s factual findings that are supported by competent, substantial evidence, and will review the circuit court’s application of the law to those facts de novo. See Johnson v. State, 135 So.3d 1002, 1013 (Fla.2014). There is a strong presumption that trial counsel’s conduct falls within the “wide range of reasonable professional assistance,” and “a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s' perspective at the time.” Deparvine v. State, 146 So.3d 1071, 1097 (Fla.2014) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). The defendant must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Deparvine, 146 So.3d at 1083 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed, 83 (1955)). “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Under the prejudice prong of Strickland, the defendant must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” White v. State, 964 So.2d 1278, 1285 (Fla.2007) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Importantly, that reasonable probability is one “sufficient to undermine confidence in the outcome.” Id. Where the defendant claims that counsel provided ineffective assistance in the penalty phase; “the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” State v. Woodel, 145 So.3d 782, 798 (Fla.2014) (quoting Sochor v. State, 883 So.2d 766, 771 (Fla.2004) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052)), cert. denied, — U.S. —, 135 S.Ct. 1735, 191 L.Ed.2d 702 (2015). As we reiterated in Foster v. State, 132 So.3d 40 (Fla.2013), a defendant is not required “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.’ ” Id. at 52 (quoting Porter v. McCollum, 558 U.S. 30, 44, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052)).

Within this framework, we turn to the claim that trial counsel was ineffective in handling the testimony of Tammy Hartman.

ANALYSIS

Testimony of Tammy Hartman

Hernandez first contends that trial counsel was ineffective in failing to investigate and develop , a meaningful challenge to the testimony of Tammy Hartman (“Tammy”). Hernandez argues, as he did below, that reasonably competent counsel would have investigated her pretrial statements and been prepared to cross-examine her in detail about certain inconsistencies between her pretrial statements, her deposition, and her trial testimony. Hernandez also claims that counsel should have moved to exclude any of her testimony that related what Arnold told her, as opposed to what Hernandez told her — and that when she expressed confusion over which one told .her, counsel should have objected based on hearsay.

Hernandez cites several examples of Tammy’s testimony that he contends trial counsel should have impeached as inconsistent or objected to as inadmissible hearsay. For example, he cites Tammy’s trial testimony that Hernandez told her Arnold tried to revive the victim by having her breathe into a bag after Arnold tried to smother her with the pillow. She amended that testimony by noting that.it might have been Arnold who told her that. This trial testimony was,also in conflict with her first statement to police, and Arnold’s deposition, which indicate that Arnold gave a bag to the victim to breathe into before the smothering incident began. In another example, Hernandez contends that counsel was deficient in failing to object to hearsay when Tammy testified she was not sure who told her that Arnold complained to Hernandez at the time of the incident that they “weren’t going to do this.” Hernandez cited other specific examples of testimony he contends counsel should have impeached or to which he should have objected. The postconviction court denied the claim, finding that counsel did object to hearsay statements told to her by Arnold, that he did obtain a copy of her deposition and read it before she testified, and that it was trial counsel’s reasonable strategy to allow Tammy to show she was confused and inconsistent in her testimony.

Without doubt, Tammy’s trial testimony was sometimes inconsistent with earlier statements and was often confused. In fact, trial counsel Stokes testified at the evidentiary hearing that it was his strategy to use her confusion to argue that “she did not know wh'at shé was talking about” and, thus, her testimony was not reliable. Stokes explained that it was also his trial strategy to show that Tammy was partial to Arnold because he was the father of her granddaughter, and that “we weren’t so concerned with her inconsistencies as we were her motivation.” Hernandez also argues that trial counsel should have attempted. to present Arnold to testify because his deposition and evidentiary hearing testimony showed conflicts with some of Tammy’s testimony.. Even if counsel should have objected to more of her testimony when it was inconsistent with earlier statements or when she was not sure if the facts she was testifying to'.were told to her by Arnold or Hernandez, prejudice has not been shown. Nor was prejudice shown in counsel’s failure to secure Arnold’s trial testimony.

First, Tammy’s testimony was consistent that Hernandez told her he initially had the victim in a choke hold and that he slit the victim’s throat because she would not die. Further, much of what Tammy testified to was confirmed in the statement Hernandez gave police soon after the murder. Moreover, we agree with the post-conviction court that Tammy’s confused testimony was more helpful to Hernandez than Arnold’s deposition testimony. After entering his plea in this murder, Arnold gave a May 25, 2006, deposition, prior to Hernandez’s trial, taken by Hernandez’s first, attorney. Arnold testified that when they went to the victim’s home looking for David Everett and found he was not home, Hernandez pushed the victim into the house into a recliner chair. Arnold testified in his deposition that he went in and Hernandez had the victim in “a neck hold sort of kind of pushing on her neck.” He further testified that he told Hernandez, “Come on, don’t do this” and that Hernandez released the victim, who was still in the recliner and was hysterical. Arnold said that is when he gave the victim the bag to breathe into because she was very upset as he was asking her where her son was. Arnold said the victim was still in the recliner, and did calm down some. Arnold said he asked to use the bathroom, but came back with a pillow which he “put ... over Ms. Everett’s head.... over her face.” Arnold testified that when he did that, Hernandez had his hands around the victim’s throat.

Arnold also testified in his deposition that when he pulled the pillow off the victim’s face and announced he “could not do this,” Hernandez asked him to hold her arms because she was struggling. Arnold then said Hernandez “grabbed her [by her head] and sort of slung sher onto the floor.-... Pulled her out of the chair and slung her on the floor.” Arnold testified that he took the pillow and her purse and left. He also testified that when Hernandez returned to the-car, he had blood on his clothes and told him he had stabbed the victim in the neck because he wanted to make sure she was dead. The sworn statement Arnold gave on November 19, 2004, the day- after the murder, was consistent in most respects with this later deposition. Postconviction counsel also contends that if trial counsel-had questioned Arnold prior to trial,- he eould have used his testimony to dispute Tammy’s testimony that Hernandez knocked Arnold out of the way-after Arnold said they “weren’t going to do this.” Arnold testified-at the evidentiary hearing that it was the action of the recliner after Hernandez jumped on it during the smothering incident that knocked Arnold back against the walk Beeaúse Arnold’s pretrial statement to police and his deposition taken -before trial show he did not address the issue of being knocked aside — either, by Hernandez or by the action of the recliner, the claim that counsel could have obtained this testimony to dispute Tammy’s version is speculative.

Even if some of his testimony eould have disputed portions of Tammy’s version of events, the overall effect of his testimony would have been more damaging to Hernandez’s defense than Tammy’s • confused and inconsistent testimony. Further, postconviction counsel- did not establish that Arnold would- have testified at Hernandez’s trial. . Arnold testified at the evi-dentiary hearing that he had advised his attorney that he was not going to testify at Hernandez’s trial,, and trial counsel also believed that if Arnold had been forced to testify at trial, his testimony would not have been helpful to Hernandez. Even if counsel was-deficient in several minor respects in failing to bring out discrepancies in portions of Tammy’s testimony, or discrepancies between her testimony and Arnold’s, prejudice has not been shown. Hernandez’s own confession disclosed that he forced the victim into the house and into the recliner, he held her while Arnold tried to smother her, he grabbed the victim’s, head and felt a snap, and he cut the victim’s neck after Arnold left.

Hernandez also argues briefly in this appeal that Stokes should have retained an expert such ás Dr. Leroy Rid-dick, a medical examiner, who testified in the evidentiary hearing that the victim’s neck was not broken by “a violent twisting” as Tammy had testified Hernandez reported having done. Dr. Riddick testified at the hearing that of three hypothetical' scenarios — where the neck was broken by twisting, by having the head pushed back by force with the pillow, and by the head hitting the floor — -the “most reasonable would be the pillow with a lot of force being pushed against her face” and that due to spinal shock and lack of oxygen, she “could” have been “brain dead” at that point. Postconviction counsel contends that this type of testimony would have shown that the victim’s neck was broken when the pillow was forcefully pushed against her face by Arnold, 'and that she “could have been” brain dead, but with a beating heart, before Hernandez cut her throat and she bled profusely. However, on cross-examination' at the evidentiary hearing, Dr. Riddick stated that he did not disagree with any of the testimony and opinions of Dr. Andrea Minyard, the medical examiner who testified at trial. He also agreed that the victim’s neck could have broken when Hernandez was “manhandling” her head, as Hernandez stated in his confession.

Furthermore, the jury did hear from Dr. Minyard that the victim’s neck could have been broken by having her head forced back by the pillow when she was in the recliner or when her head hit the floor when she was dropped. Dr. Minyard testified that the victim was not dead, however, when the knife cut was made to her neck because, had she been dead, she would not have bled so much. Trial counsel did argue to the jury in closing that Dr. Minyard testified the broken neck could have resulted from Arnold forcefully smothering her with the pillow. Trial counsel also argued that the evidence showed Hernandez thought, the victim was dead after Arnold smothered her and that when they went to move her, she was accidentally dropped and could have broken her neck then, according to the medical examiner. Thus, trial counsel was not deficient in failing to call an independent medical expert to say that the twisting motion to the victim’s neck that Tammy testified about could not have caused the injury. The jury heard testimony and argument that would have allowed them to conclude the victim’s neck was broken while Arnold was attempting to forcefully suffocate her. Trial counsel argued that is how it most likely occurred and no deficiency has been shown.

As to the blaim' that trial counsel was deficient in failing to object to Tammy’s testimony based on hearsay when she expressed uncertainty if certain statements were made by Arnold or by Hernandez, prejudice has not been demonstrated. ■ Hernandez’s sworn statement to Detective Shuler given on November 19, 2004, admitted the main points of the attack and the murder. From Hernandez’s own statement it can be seen that even though it was Arnold’s idea to go to Everett’s house, it was Hernandez who forced the victim into the home by grabbing her throat and mouth; it was Hernandez who pushed her into the recliner; and it was Hernandez who helped subdue her and was “choking her” while Arnold was attempting to ‘ smother her. By his own statement, Hernandez told police that when Everett ended up on the floor, he picked her up or dragged her by the head and heard something snap, and that after Arnold left, Hernandez stabbed the victim in the throat. Hernandez said in his statement that Arnold helped him get her to the couch and that after Arnold left with her purse and the pillow, Hernandez took the knife that he had obtained earlier from Arnold to chop up crack and “stuck her in the neck” with it. These statements by Hernandez were consistent with some of the most harmful aspects of Tammy’s testimony, and objections to her testimony when she related events that she thought either Arnold or Hernandez told her, even if sustained, would not have overcome the damaging • effects of Hernandez’s own statements to police. Further, it would have been clear to the jury from the totality of Tammy’s testimony and Stokes’ closing argument that she was confused in her recitation of events and that she favored Arnold, who was the father of her grandchild.

Giglio Claim Concerning Tammy Hartman’s Testimony

Hernandez also contends that the prosecutor presented testimony of Tammy Hartman about numerous statements she attributed to Hernandez, but knew at the time that Tammy had been inconsistent about whether it was Hernandez or Arnold who made the statements. In earlier statements, Tammy had identified Arnold as the source of some of the statements, not Hernandez. He argues that the prosecutor refreshed her recollection in one instance using a portion of her pretrial deposition when he knew that she said something contrary on a later page of her deposition. Hernandez contends that this amounts to presentation of testimony that the prosecutor knew was untrue, and thus violates Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

We have explained, as the Supreme Court held in Giglio, that a violation occurs if (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. Foster, 132 So.3d at 64. If the first two elements are proven, materiality is presumed and the State must prove that there is no reasonable possibility that the testimony affected the verdict because it was harmless beyond a.reasonable doubt. Conahan v. State, 118 So.3d 718, 728 (Fla.2013). The Court applies a mixed standard of review, deferring to the trial court’s findings of fact that are supported by competent, substantial evidence and reviewing de novo the application of the law to those facts. Id. at 729.

The postconviction court denied the claim, finding that Hernandez failed to prove that Tammy Hartman’s trial testimony was false. The court based this finding in part on the fact that Tammy’s evidentiary hearing testimony did not show that her trial testimony was false, but showed only that she was confused over who told her certain things. The court concluded that confusion is not the equivalent of a Giglio violation. We agree. The circuit court also found that Hernandez failed to prove that the prosecutor knew any of Tammy’s testimony was false, especially where other -witnesses corroborated much of her testimony.

At the evidentiary hearing, the trial prosecutor testified that he had- no reason to believe Tammy’s trial testimony was false. He testified, “There’s no statement that she’s made that I could look at and say, I know that statement is false.” . He explained that .she was, a witness who had great difficulty giving specific testimony about her recollections. He agreed there were inconsistencies in her statements made in her deposition and between her trial testimony and portions of the deposition. He also noted that she said several times she could not recall whether Arnold or Hernandez had told her certain things, but that if any of her trial testimony was in fact false, he did not knowingly present it.

Citing page thirty-five of the deposition, the prosecutor was asked at the evidentia-ry hearing about why he did not refresh Tammy’s recollection at trial with that part of her deposition concerning whether Hernandez told her he “knocked Shawn back” during the attack. The prosecutor agreed that he did not bring to Tammy’s attention, or to the attention of defense counsel, Tammy’s statements on page forty-two of the same deposition!. There, Tammy had testified, “I want to say that Shawn told me that Michael knocked him back, but I don’t know if Michael told me that or Shawn told me that.” In the deposition excerpt on page forty-two, the prosecutor cautioned Tammy, “If you’re not sure, I don’t want you to tell me,” to which she responded, “I don’t know then.” The fact that Tammy gave two inconsistent statements in her deposition and was asked about only one of them at trial does not prove that the trial testimony was false. She admitted that she did not recall whether Arnold or Hernandez told her; thus, either version could have been true— and no evidence has been provided to conclusively establish which version is the true one. Hernandez does not cite any other specific examples of alleged false testimony but makes reference generally to inconsistencies in her various statements.

Even though Tammy’s testimony and her earlier, statements and deposition demonstrate that there were inconsistencies, and some confusion.in her rendition of events, such “mere inconsis-tences” have, ..been- held insufficient to establish a Giglio- violation. See Franqui v. State, 59 So.3d 82, 104-06 (Fla.2011); Maharaj v. State, 778 So.2d 944, 956 (Fla.2000) (citing United States v. Bailey, 123 F.3d 1381, 1395-96 (11th Cir.1997)).. “[A] challenge to evidence through another witness or prior inconsistent statements [is] insufficient to establish prosecutorial, use of false testimony.” United States v. Martin, 59 F.3d 767, 770 (8th Cir.1995) (bracketed material added) (quoting United States v. White, 724 F.2d 714, 717 (8th Cir.1984)), “[M]ere differences .in testimony found in witness-. statements made at different times, or between witnesses on the same,subject, are not alone sufficient to show perjury.” Ferguson v. State, 101 So.3d 895, 897 (Fla. 4th DCA 2012). See also Barwick v. State, 88 So.3d 85, 104-05 (Fla.2011) (finding that witness’s description of events at different trials represented reinterpretation of facts, not false testimony); Ferrell v. State, 29 So.3d 959, 978 (Fla.2010) (finding no Giglio violation merely on showing that two witnesses contradict each other.). “In the Giglio context, the suggestion that a statement may have been false is simply insufficient; the defendant must conclusively show that the statement was actually false.” Maharaj v. Sec’y Dept. of Corrs., 432 F.3d 1292, 1313 (11th Cir.2005) (citing Moon v. Head, 285 F.3d 1301, 1315 (11th Cir.2002), and Brown v. Head, 272 F.3d 1308, 1317-18 (11th Cir.2001)).

The most that can be said is that Tammy Hartman gave inconsistent versions of several things she thinks she was told either by Arnold or Hernandez, and that she admitted at trial and in her deposition that she could not recall the exact- details of some of the conversations. However, this does not prove that the version the prosecutor presented at trial was actually false. The fact that a different version may have been marginally more favorable to Hernandez’s theory of .defense or mitigation does not make the trial version of Tammy’s testimony false. Nor does it establish prejudice. Whether Hernandez or Arnold told her that Hernandez knocked' Arnold back after he expressed a desire not to go forward with the murder did not change the fact that Arnold left "the home before the victim was killed, and Hernandez went forward with cutting the victim’s throat. Moreover, Tammy is not the only witness that testified Hernandez cut the victim’s throat. Hernandez confessed to cutting her throat in his statement to police. His wife, Stephanie, and Tiffany Te-lin also heard and testified about his statement. Because Hernandez has failed to establish that any of Tamnfy Hartman’s testimony was actually false, and has failed to demonstrate that the' prosecutor knowingly presented false evidence, his Giglio claim fails and was properly denied by the postconviction court.

Trial Counsel’s Performance Regarding Aggravating Circumstances

Hernandez next raises.three claims, of ineffective assistance of penalty phase counsel in regard to the evidence of aggravation. We discuss each in turn.

1. The conviction for battery on a jail detainee.

Hernandez contends, that penalty phase counsel was deficient in preparing to rebut the State’s evidence of prior violent felony convictions offered as aggravation. The State first presented evidence that Hernandez was convicted of battery on a jail detainee, • Shawn Arnold, which occurred while the two were in jail after their arrests. Battery by a jail detainee on another jail detainee is a third-degree felony. Hernandez contends that because penalty phase counsel did not. familiarize himself with the trial of this charge, he was not prepared to rebut the penalty phase testimony of Deputy Matthew Bart-ley that he saw Hernandez “strangling” Arnold in their shared cell. Hernandez also contends that had counsel reviewed the medical records for Arnold’s injury, he could have shown that Arnold had no neck injury; and that counsel should have presented Arnold to testify that Hernandez did not “strangle” him. Finally, Hernandez contends that if counsel had properly prepared to challenge this aggravator, he would have realized that the copy of the judgment of conviction that was entered into evidence stated that Hernandez had also been charged "with attempted first-degree murder — a charge on which the jury could not reach a verdict. After the verdict on battery on a jail detainee was entered, the State entered a nolle prosequi on the attempted' murder charge. Hernandez contends that although the judgment mentioned that the State had entered a nolle prosequi, the document was still confusing as to whether Hernandez was also convicted of attempted first-degree murder.

The circuit court denied relief on this claim, finding prejudice was not shown because the prosecutor made clear in the penalty phase that the conviction was for battery on a jail detainee, and that even if the judgment had been redacted to remove any reference to the charge of attempted first-degree murder, the jury would still have heard the details of the crime from Deputy Bartley. We agree. The court also denied relief on the claim that counsel should have objected to Deputy Bartley’s testimony that he saw Hernandez “strangling” Arnold. First, the court correctly noted that Deputy Bartley did not use the word “strangling” in his testimony and said only that he saw Hernandez and Arnold “wrestling around” and Hernandez “squeezing” Arnold’s throat. Second, the circuit court noted that the prosecutor did not use the term “strangling” in his closing argument but referred to the fact that Hernandez had his hands around Arnold’s neck. The postconviction court also found that Deputy Bartley’s testimony that he saw Hernandez squeezing Arnold’s neck and blood on Arnold’s face was not refuted by the medical records. The court noted that, at the evidentiary hearing, Arnold testified he was asleep when the attack began and did not know if Hernandez had his hands on his neck.

The circuit court was correct in denying relief on this claim based on Hernandez’s failure to demonstrate prejudice. Penalty phase counsel should have sought redaction of the reference in the judgment to the fact that Hernandez was originally charged with both attempted first-degree murder and battery upon a jail detainee. However, the judgment entered into evidence did indicate, immediately below reference to attempted first-degree murder, the phrase “nol prossed 9-18-06.” Moreover, the prosecutor only argued to the jury that Hernandez had been convicted of “battery upon a jail visitor or detainee.” Even if the judgment had been redacted, there were no grounds to exclude Deputy Bartley’s description of what he witnessed. And, the jury also had before it a conviction for a separate prior violent felony, which is sufficient to support the prior violent felony aggravator found by the trial court at sentencing. For these reasons, Hernandez failed to meet the second prong of Strickland and relief was properly denied.

2. The conviction for battery on a law enforcement officer.

Hernandez also contends that trial counsel was deficient in failing to familiarize himself with Hernandez’s separate trial on charges that he committed aggravated battery on a law enforcement officer. Thus, he contends, counsel was unprepared to rebut the jury’s belief in the penalty phase that Hernandez was convicted of aggravated battery “with great bodily harm.” At the penalty phase, the State presented, as evidence of a prior violent felony conviction aggravator, Hernandez’s judgment of conviction for an aggravated battery on Deputy John Wade Jarvis. Deputy Jarvis testified that when Hernandez was in jail prior to the trial in this case, the deputy transported him to the office of a Dr. Larson for an evaluation. Deputy Jarvis removed Hernandez’s handcuffs and waist chain at the request of the doctor’s staff, but Hernandez still had on ankle shackles. About an hour into the evaluation, Hernandez was escorted to the restroom without incident. About ninety minutes later, he was escorted to the restroom again and Deputy Jarvis waited outside the door. Deputy Jarvis testified that Hernandez opened the door and when Deputy Jarvis glanced away, Hernandez hit him on the head with the ceramic toilet tank lid, which shattered on impact. Deputy Jarvis then struggled with Hernandez until he was subdued and another deputy had a Taser aimed at Hernandez. When asked to describe his injuries, Deputy Jarvis said he “was scraped up, little small lacerations, and of course a big knot on my head.” The trial court admitted into evidence at the penalty phase, without objection, a copy of the judgment of conviction, which stated that Hernandez was convicted of “aggravated battery on a law enforcement officer with great bodily harm and with a weapon.”

Hernandez points out that the jury verdict in the aggravated battery trial found him guilty of aggravated battery on Deputy Jarvis with a “deadly weapon” and only “slight injury.” (Emphases added). Hernandez contends that trial counsel was deficient in failing to inform the penalty phase jury that the verdict did not find “great bodily harm.” The postconviction court denied the claim, stating that it would have been clear to the penalty phase jury, based on his testimony, that Deputy Jarvis did not suffer great bodily harm; thus; no prejudice has been shown. The postconviction court also found no prejudice had been demonstrated because, in light of the other aggravators, there was no reasonable probability of a life sentence even if the jury’s verdict in the 'battery trial had been shown to the jury.

As the State points out, there are two forms of aggravated battery — one involving great bodily harm and one involving a deadly weapon. See § 784.045(l)(a), Fla. Stat. (2007). The jury found the heavy porcelain toilet lid was a deadly weapon but found only slight injury. On this basis, Hernandez was convicted of aggravated battery on a law enforcement officer, which properly served as a basis for the prior violent felony conviction aggravator regardless of whether the judgment incorrectly led the jury to believe the aggravated battery resulted in great bodily harm.

We agree with the postconviction court that Hernandez has failed to demonstrate prejudice. Even if trial counsel should have become more familiar with the trial proceedings in which Hernandez was convicted of aggravated battery on Deputy Jarvis, and should have clarified the discrepancy between the verdict and the judgment, prejudice has not been shown. The jury heard the direct testimony of Deputy Jarvis that after he was struck, he was able to subdue Hernandez and that his injury was a laceration and a big knot. Moreover, the conviction for aggravated battery 'supports the prior violent felony aggravator. There is no reasonable probability that, even if the matter had been clarified for the jury, a lesser sentence would have been recommended or imposed — a reasonable probability being measured in terms of whether our confidence in the outcome is undermined. For these reasons, relief on. this claim was properly denied.

3. The Marital Privilege.

The "State presented the testimony of Hernandez’s wife, Stephanie, at the penalty phase of trial. Stephanie was asked if Hernandez told her what happened to the victim when she, Hernandez, Tammy Hartman, and Richard Hartman were at the home of Hernandez and Stephanie discussing the incident. Penalty phase counsel Rollo objected and asked for a proffer to determine if marital privilege applied. When asked on proffer if she had had a private conversation with Hernandez about what happened, Stephanie replied, “It was always in front of somebody else.... in front of Tammy and Richard Hartman.” Stephanie testified that Hernandez told her and the Hartmans at the same time that he cut the victim’s throat “because he was afraid she wasn’t dead yet.” Penalty phase counsel did not object to her testimony after this proffer. When she testified before the penalty phase jury, Stephanie said that Hernandez told her “and the Hartmans” that he cut the victim’s throat “[t]o make sure she was dead.” Hernandez contends that counsel was ineffective in failing- to object to her penalty phase testimony on the ground of. marital privilege. Section 90.50.4(1), -Florida Statutes (2007), provides that “[a] spouse has a privilege during and after the marital relationship to refuse to.disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between spouses while they were husband and wife.” § 90.504(1), Fla. Stat. (Emphasis added).

In the postconviction evidentiary hearing, Stephanie confirmed that the statement that Hernandez cut- the victim’s throat because he was afraid she was not dead yet was made by Hernandez in front of her, but was directed to Tammy in response to her questions, and that it was not a private conversation between Stephanie and her husband. The postconviction court denied the claim that penalty phase counsel was deficient in failing to object to Stephanie’s testimony on the basis of the marital privilege, citing the fact that the statement was made in the presence of third parties and was directed to Tammy Hartman, hot Stephanie. We conclude the circuit court was correct.

Stephanie testified both .at trial and at the postconviction evidentiary hearing that Hernandez told her and the Hart-mans that he cut the.victim’s throat to make sure she was dead. Hernandez contends that even if the statement was overheard or recorded, it is still privileged if the spouse is the only person who can testify to it — and he contends that neither Tammy nor Richard - Hartman testified that Hernandez made that statement. Richard Hartman testified at the eviden-tiary hearing that when they were-at the Hernandez’s home and Tammy was confronting Hernandez about what had occurred with the victim, Hartman did “not think [Hernandez] said any details.” Tammy had testified at trial that when she confronted Hernandez at his home that morning, he did not tell her what happened at the victim’s home. However, Stephanie’s sister, Tiffany, testified in the guilt phase that she was present at the Hernandez home the day after the murder and that the other persons present were Stephanie, Tammy and Richard Hartman, and Tiffany’s husband.. Tiffany testified that Hernandez told them all that he and Arnold had -gone to the victim’s home for-crack, that Arnold put a pillow over the victim’s face, and. that Hernandez said he stabbed the victim in the throat when she was- “almost dead;” Even if Tammy or Richard Hartman did not hear or recall Hernandez making the statement at his home that he cut the victim’s throat, the marital privilege does not apply if .the statement was knowingly made in their presence without any reasonable expectation of privacy or intent that the statement be made only , to the spouse. Tiffany was also present and remembered hearing Hernandez discuss, in front of Stephanie and others, cutting the victim’s throat.

Hernandez cites Boyd v. State, 17 So.3d 812 (Fla. 4th DCA 2009), for the premise that the recording of a conversation does not compromise the privilege if the only person who can testify regarding its contents is a spouse. In Boyd, however, the husband and wife were conversing, ostensibly privately, in a police interrogation room. Id. at 814-15. Moreover, we noted in Boyd that section 90.507, Florida Statutes, provides that a privilege will be waived if a holder of the privilege makes the communication in circumstances in which he has no reasonable expectation of privacy. Id. at 817. Hernandez also cites Taylor v. State, 855 So.2d 1, 26 (Fla.2003), to contend that the privilege still applies if there are third parties nearby. In Taylor, the statements were made in the jail, but we noted that “there , was no third party involved, no one overheard the conversation.” Id. at. 27 n. 30. We also stated that, “[a]s a general rule, when third party eavesdroppers hear otherwise privileged communications, the communications are not privileged unless the communicating parties had reasonable expectation of privacy.” Id. at 27 n. 30.

■ We have held that a communication between spouses is not privileged where the parties were aware of the presence of a third party and were “speaking in a manner and place where they had a reasonable chance of being overhead, and they knew the possibility at that time.” Proffitt v. State, 315 So.2d 461, 465- (Fla.1975). We noted in Proffitt that there was “no testimony indicating that either the appellant or his'wife made any attempt, no matter how little, to keep the conversation from being overheard.” Id. Similarly, in this case, there was no indication that-Hernandez or his wife attempted to keep = the conversation private. Stephanie made clear in her testimony that Hernandez was telling her as well as Tammy and Richard Hartman what happened at the victim’s home. Whether Tammy or Richard Hartman retailed Hernandez making the statements does not change the fact that Hernandez made the statements in the obvious presence of third parties and exhibited no intent that the communication be in confidence, as required by statute; thus, he had no reasonable expectation of- privacy in making the statements.

Moreover, even if counsel had objected, there is no reasonable probability that the outcome of the penalty phase would- have been different — that being a probability sufficient to undermine this Court’s confidence. A wealth of other testimony was admitted that Hernandez stated that he stabbed the victim in the throat, and why. Tammy Hartman testified that Hernandez, told her later, from the jail, that he cut. the-victim’s throat because she would not: die and because she .had seen their faces. Tiffany Telin also heard, and testified to, Hernandez’s statement about cutting the victim’s throat. Thus, even if Stephanie’s testimony in the penalty phase had been excluded, the jury had ample testimony on which to find that Hernandez stabbed.the victim in the throat to make sure she was dead and because she had seen their faces. Because neither deficiency nor prejudice has-been estáblished, relief was properly denied on this claim.

Trial Counsel’s Performance Regarding Background and. Family Mitigation

In his next claim, Hernandez contends that trial counsel was ineffective in the investigation and presentation of background and family mitigation evidence in the penalty phase. He argues that counsel should have located arid presented- numerous friends, family members, and other significant persons ft-om Hernandez’s childhood to present a complete picture of the defendant’s life. He criticizes the fact that penalty phase counsel let Hernandez complete a “Confidential Assessment” form, by himself. On the form, Hernandez did list persons who had a significant role in the family, including Floyd Wayne Merritt, Deana Merritt,' Joe Rudis, Tiffany Merritt (Telin), Amber Merritt, and his mother, _ ‘

The postconviction court denied this claim, finding that trial counsel was not deficient in investigation and presentation of mitigation in the penalty phase. The circuit court found that - penalty phase counsel presented two mental health experts who discussed. Hernandez’s exceptionally dysfunctional childhood and exposure to drugs and alcohol at an early age. The circuit court noted that penalty phase counsel also presented the testimony of Hernandez’s mother Cheryl Walker and his half-brother Richard Travis Hartman. Further, a social services report from the Calaveras ■ Works and Human Services Agency of California, which detailed the abuse Hernandez received when he was informally “fostered” by Dan and Leola Estabrook, was admitted into evidence and discussed by the defense experts.

Penalty phase counsel Rollo testified at the evidentiary hearing that he was able to furnish the experts with all the information they needed to establish the mitigators in the best and most credible way, in accord with his strategy to have the background information come in primarily through the experts who could rely on reports, hearsay, and testing. The court found that in preparation for the penalty phase, Rollo spoke with Hernandez as well as other potential witnesses, and rejected the idea of calling some because their testimony would have been cumulative. The circuit court stated in its order, “Given the amount of evidence Rollo was able to present in this manner, it was hot necessary for him to identify and interview every other family member, friend, or other person involved in Defendant’s life.” The court also noted that numerous mitigating factors were supported by the evidence Rollo did present in the penalty phase. Based on that mitigation,' the trial court found twenty-four nonstatutory factors that were to varying degrees mitigating. The postconviction court also found prejudice was not established because the additional lay testimony presented at the post-conviction evidentiary hearing “provided nothing dramatically different than what was established at trial.” Further, the court concluded that “[t]o the extent the additional background information presents anything new, it would not have altered the sentencing profile presented to the judge and jury.” We agree with all these assessments and find relief is not warranted on this claim.

At the penalty phase of trial, counsel presented the testimony of Dr. John Bing-ham, a mental health counselor who met with Hernandez on three different occasions and was provided with the Calaveras County report and Arnold’s statement. Dr. Bingham also interviewed Hernandez’s wife and read the deposition of Hernandez’s mother. Dr. Bingham testified about Hernandez’s physical and emotional abuse as a child, his childhood introduction to drug use, his dysfunctional family life, his chronic substance dependency, and his cocaine intoxication on the day of the murder. Hernandez was exposed to drugs at a very early age and was taught how to use crack cocaine by his father. He was required to roll marijuana cigarettes for him at the age of five, and started smoking marijuana and using other illegal substances on a daily basis. His father introduced him to crack at age ten. Dr. Bing-ham testified that. Hernandez .first used alcohol at age nine, and continued to use it until he got married. Dr. Bingham explained that Hernandez also used hallucinogens, crystal methamphetamine, heroin, and • tranquilizing pills as a teenager, and that he met the diagnostic criteria for a chemical dependency to marijuana and cocaine. Dr. Bingham described for the jury the effects on the brain when crack cocaine is smoked, and when an individual becomes dependent upon it — chronic crack cocaine use blocks the ability to have empathy or compassion, and causes aggressive behavior.

Dr. Bingham also testified about the records provided by the Calaveras Works and Human Services Agency of California, which detailed the abuse Hernandez received while living with the Estabrook family. Dr. Bingham related reports of physical and psychological abuse, including Hernandez being slapped, spanked, dragged by the hair, and punched in the face, chest, and stomach, all on an inconsistent basis without any understanding of what he had done wrong. This abuse lasted about three years, until the social services agency removed Hernandez from the Estabrook home.

Based on information learned from the Calaveras County report, Dr. Bingham testified that Hernandez received no psychological care and that “[b]ecause of the abuse he was placed in protective custody in May of 1996.” Dr. Bingham told the jury that he believed Hernandez “definitely was affected by the different types of abuse that he has experienced it [sic] in his lifetime, as well as other things that have occurred in his lifetime.” The jury heard that Hernandez was essentially abandoned by his parents and subjected to violence by his mother’s boyfriends when he was with her. Dr. Bingham also related that Hernandez’s step-grandmother, Barbara, confirmed that Hernandez’s parents were members of a motorcycle gang and contin-' uously used drugs. When his father died, Hernandez went to live with his mother but was unable to stay because of her dangerous lifestyle, resulting in his going to live with the Estabrooks. Dr. Bingham also testified that Hernandez had a good relationship with his wife, Stephanie, and was a good, loving father to his two daughters.

As to statutory mental health mitigation, Dr. Bingham testified at trial that Hernandez’s actions on November 18, 2004, appeared to reflect “an absence of thinking and more reaction to the situation as it unfolded.... All they were interested in is responding in the sense of getting crack cocaine.” Dr. Bingham testified that Hernandez’s ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired as a result of his chronic cocaine use and being under the influence at the time, as well as because of the psychological and physical abuse he had experienced.

As the postconviction court noted, a second defense mental health expert was presented in the penalty phase. Dr. Brett Turner, a neuropsychologist, became involved after Dr. Bingham identified a history of possible brain injuries and sought further testing to confirm brain damage. Dr. Turner explained that because of Hernandez’s lack of participation and lack of motivation during his testing, several of the tests were invalid, including the neurological testing. Although he was not able to substantiate damage to Hernandez’s frontal lobe because of the invalid neurological test score, Dr. Turner testified that Hernandez’s history suggested it. Dr. Turner also explained that Hernandez’s IQ score was accurate and was a full scale IQ score of 89, which is in the low-average range, and that Hernandez’s achievement testing identified a learning disability. The penalty phase jury heard from Dr. Turner that Hernandez was also diagnosed with polysubstance dependence disorder, meaning that he had a potential addiction to most drugs because of his lengthy drug history that started at an early age, as well as depressive disorder, post-traumatic stress disorder, impulse control disorder or cognitive disorder not otherwise specified, and antisocial personality disorder.

Dr. Turner opined that Hernandez was “under extreme emotional disturbance at the time of the offense as a result of a chronic history of emotional instability deficits and behavior control and deficits in his reasoning and cognitive abilities all acutely exacerbated by the effects of cocaine intoxication.” He explained, “[Hernandez’s] anxious and even manic state was also likely even more acute in the midst of even possibly recognizing that they were out of cocaine at the time, which again, would even inflame and exacerbate the anxiety and the feelings that were probably there — ” Dr. Turner also opined that Hernandez’s capacity to appreciate the criminality of his conduct was substantially impaired “because appreciate actually means to be fully aware, and I do not believe that he was fully aware at. the time of the incident offense. I believe he was engaged in a string of behavioral responses, one leading to the next....”

In addition to the two mental health defense experts, defense counsel also presented mitigation testimony at trial from Hernandez’s half-brother, Richard Hartman, Jr., and Hernandez’s mother Cheryl Walker. We discussed their testimony in the direct appeal opinion as follows:

The defense then presented testimony from Hernandez’s half-brother, Richard Hartman Jr., and Hernandez’s mother, Cheryl Walker, about Hernandez’s dysfunctional childhood in which he was exposed to drugs and violence from a young age. According to-their testimony, Cheryl and Hernandez’s father, Michael Hernandez Sr., used marijuana on a regular basis in Hernandez’s presence when he was a child and also used crystal methamphetamine and cocaine. They wandered around the country and were in hiding from the Bandidos, a motorcycle group from which'they had fell out of favor. Cheryl later left Michael Sr. and relocated to. California with Hernandez. In California, Cheryl, who was no longer using methamphet-amines but was drinking heavily, briefly reunited with Michael Sr. They later separated, and Cheryl left Hernandez, who was approximately three years old at the time, with his father while she sold drugs. Michael Sr. lived with the Esterbrooks (sic), who were also using and dealing drugs.

Richard Jr. and Cheryl testified that Hernandez returned to live with Cheryl several years later after she met and married Michael Murphy. Murphy, who also abused drugs, beat Cheryl in front of her children and was jailed for. putting a gun in her mouth. Cheryl sent Hernandez back to his father because she was -afraid for his life when she was with Murphy. Hernandez lived with his father in a hotel room until his father’s death from a drug overdose.

Richard Jr. and Cheryl also testified that Hernandez lived with Cheryl and her new husband, Anthony Walker. Anthony was verbally and physically abusive, and Hernandez witnessed him choke, beat, and shake Cheryl. Anthony also once • punched Hernandez so hard that he needed an appendectomy. Furthermore, both Cheryl and Anthony used alcohol and marijuana.

According to the testimony of Hernandez’s relatives, Cheryl later sent Hernandez to live with the Esterbrooks (sic) once more, and Hernandez never lived with her again. Hernandez reported being beaten and molested at the Esterbrooks’ (sic) home, and he eventually left their home and was in the custody of the state. . ,

In addition, Richard Jr. and Cheryl testified that Hernandez’s paternal grandparents, Al and Barbara Hernandez, later took him to live with them, and he never saw his mother again until he testified for her at her trial for killing Anthony. Hernandez then stayed with Richard Jr. as well as with his other half-brother, Shawn Hartman; Hernandez also lived on the streets. After Richard Jr. found this out, he talked H