Hayward v. State (183 So. 3d 286, 2015)

PER CURIAM.

Steven Douglas Hayward appeals an order of the circuit court denying his motion filed under Florida Rule of Criminal Procedure 3.851 to vacate his conviction of first-degree murder and sentence of death after an evidentiary hearing on certain issues raised in the motion. 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 set forth below, we affirm the denial of postconviction relief and deny his petition for a writ of habeas corpus.

I. BACKGROUND AND FACTS

Hayward’s convictions for first-degree murder, armed robbery, armed burglary of a conveyance, and possession of a firearm by a convicted felon, and his death sentence, were affirmed on direct appeal in Hayward v. State, 24 So.3d 17 (Fla.2009), cert. denied, 559 U.S. 1097, 130 S.Ct. 2385, 176 L.Ed.2d 777 (2010). The facts of the case were set forth in this Court’s direct appeal decision in detail. Hayward shot and robbed Daniel Destefano in St. Lucie County in the early morning hours of February 1, 2005. Trial was held in 2007. Destefano was a newspaper delivery person in Fort Pierce and was filling a newspaper stand at a convenience store around 4 a.m. when he was accosted by Hayward. A witness heard Destefano shouting “I don’t have no more,” and heard two gunshots followed by a louder gunshot. Id. at 24.

Hayward shot Destefano twice with a .22 caliber pistol and Destefano, who had a concealed weapons permit for his .357 caliber revolver, shot Hayward once in the hand. The witness saw a black man searching Destefano’s car and then going under a street light where he appeared to examine his hand. The man was wearing some sort of head covering. Id, The witness say Destefano limp away in an easterly direction and saw the black male leave the area in a westerly direction by way of a short-cut around the witness’s nearby rooming house. Id. Hayward’s blood was later found at the crime scene on personal items around Destefano’s car, on the outside wall of the witness’s rooming house, and on a fence post near the witness’s rooming house. Id. at 26. Not long after he was shot, Destefano was found about a block away. When paramedics and police responded, an officer asked him, “What happened?” to which Destefano responded that a black male with a stocking cap over his face had shot him. Soon thereafter Destefano died. Id. at 24.

Hayward’s girlfriend testified that Hayward came to their rooming house near the convenience store just before dawn on the day of the shooting with' an injury to his hand. Two. days after the shooting, police responded to the rooming house after receiving a report that someone there had a possible gunshot wound to his hand and had asked a resident to sew it up. Id. at 24-25. The police were allowed by other residents to enter and found Hayward coming out of a communal bathroom. They asked to see his wound, which was wrapped, and he showed it to them, claiming it was a knife wound inflicted by his girlfriend. Hayward consented to go outside and speak with officers. Hayward was subsequently asked to come to the police station to discuss the injury to his hand, to which he agreed, and was handcuffed for the ride in the back seat of the police car. The officer told Hayward he was not under arrest, and that it was “policy” to handcuff anyone being transported in the police car. Hayward suddenly stated that he “wasn’t going to lie” and that he had been robbed and shot several days earlier. Hayward’s girlfriend also informed the officers that she had stabbed Hayward in the hand, but that he had reported to her that he had been shot when two black men were robbing him. She said he was shot in the same hand where she had earlier stabbed him. Id. at 25.

Once at the police station, Hayward was uncuffed but secured by an ankle bracelet, and was advised of his Miranda rights. During the interview, he told police he had not been stabbed in the hand, but had been shot in the robbery attempt by two men, one black and one Mexican, when he attempted to take their gun away. He later changed the story to say he was not robbed, but had witnessed Destefano being robbed and shot by a lone man,, and that when he, Hayward, attempted to pick up a gun at the scene, he was accidentally shot. He also admitted going through Destefa-no’s car looking for anything of value. Id. at 25. Several months later, the murder weapon, a .22 caliber revolver, was found behind a wall board in the rooming house where Hayward’s girlfriend lived. Hayward’s blood was found inside the gun’s firing chamber. Id. at 26.

At the penalty phase, the State presented evidence of Hayward’s prior conviction for second-degree murder and armed robbery. Hayward presented mitigation through testimony from four family members and an expert. Id. at 27. The jury returned a verdict recommending death by a vote of eight to four, and the trial court followed the recommendation, finding two aggravators: (1) prior violent felony convictions (extremely great weight); and (2) murder during the course of a robbery merged with pecuniary gain (great weight).

No statutory mitigators were offered or found, but the trial court found the following nonstatutory mitigation: (1) Hayward could have received a life sentence; (2) he grew up without a father; (3) he was loved by his family; (4) he had academic problems; (5) he obtained a GED in prison; (6) he would make a good adjustment to prison; (7) he had financial stress at the time of the crime;. and (8) he had some capacity for rehabilitation. Each mitigating factor was given “little weight” except fot the factor that Hayward could have gotten a life sentence, which was given “very little weight,” and the factor that he grew up without a father, which was given “some weight.” Id. ,

On direct appeal, Hayward raised a number of claims of error pertaining to his conviction and his sentence, which were found to be without merit or harmless beyond a reasonable doubt. We affirmed the convictions and sentence, finding that Destefano’s statements to the first responders describing his attacker qualified as an excited utterance exception to the hearsay rule and not as a dying declaration. Id. at 31. However, we also concluded that the statements were a Confrontation Clause violation under the authority of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), although we found the error to be harmless beyond a reasonable doubt.

As to the police encounter with Hayward, in the rooming house, we found that the encounter was consensual and that the police had probable cause to detain Hayward for questioning. As to the claim that Hayward was illegally detained when handcuffed as a matter of policy for the ride to the police station, we ■ explained:

The State concedes that handcuffs are restraining devices -but contends that Hayward was not detained because the use of handcuffs during transport was a routine safety measure followed by the police. Although Hayward was in the ■process of being handcuffed pursuant to police policy at the time of his statement, the totality of the circumstances, including the. purpose of the officer’s conduct and the spontaneous nature of Hayward’s statement, demonstrate that his statement was not the result of any alleged illegal detention.

Hayward, 24 So.3d at 36. This Court found that once at the police station, Hayward was detained, but gave his statements voluntarily after waiving his Miranda rights. Id. at 36-37.

As to Hayward’s claim of fundamental error in prosecutorial comments comparing his life choices with those made by the victim, we found that the argument was error but not fundamental. Id. at 42. Hayward’s other claims on direct appeal were found to be without merit.

Postconviction Proceedings

On April 21, 2011, Hayward filed his initial motion for postconviction relief, which he subsequently amended on August 16, 2011. After a case management hearing held on December 19, 2011, the trial court ordered an evidentiary hearing on certain of the claims. The evidentiary hearing was held on February 27, 2012, through March 1, 2012, and March 28, 2012. At the hearing, Hayward presented the testimony of trial counsel Robert Udell and Jerome Stone, Jr.; family members Barbara Johnson (mother), Debra Fleury (sister), Derrick Green (brother), and Terrance Hayward (brother); Pamela Clark (mother of his child); forensic and clinical psychologist Dr. Michael Riordan; trial defense investigator Venus Oleyourryk; social worker Cecilia Alfonso; and behavioral neurologist Dr. Thomas Hyde. The State presented Fort Pierce Police Captain Greg Kirk, State Attorney Investigator Ed Arens, Jr., and Dr. Michael Riordan. The circuit court entered its order denying postconviction relief on June 14, 2012, and this appeal followed.

After Hayward filed his notice of appeal from denial of postconviction relief, he filed a petition for writ of habeas corpus in this Court on September 17, 2013,' raising one claim. He contends in his petition that his appellate counsel was ineffective for failing to raise as fundamental error a claim that State’s witness Roosevelt McDowell was incompetent to testify and should have been disqualified as a witness. Hayward contends that McDowell was “old and sick” and could not recall even the most basic details of the event he witnessed, and that admission of this testimony was fundamental error without which the jury would not have had a basis to find that the murder occurred in the course of a robbery and was committed for pecuniary gain; and that the jury would not have recommended a sentence of death. We turn first to the issues raised in Hayward’s appeal from denial of postconviction relief.

II. ANALYSIS

A. Claim of Ineffective Assistance of Counsel in the Penalty Phase

Hayward contends that both of his trial counsel were deficient in investigating and presenting mental health mitigation and family background mitigation in the penalty phase of his trial. Hayward further claims that this deficient performance prejudiced him and that, had the information been developed for the jury and the judge, he probably would have received a life sentence.

To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s representation fell below an objective standard of reasonableness and, but for counsel’s deficiency, there is a reasonable probability that the result of the proceeding would have been different — a reasonable probability being one sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where the defendant claims counsel rendered 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.” Id. at 695, 104 S.Ct. 2052; see also Foster v. State, 132 So.3d 40, 52 (Fla.2013). “To assess that probability, [the Court] considers] ‘the totality of the available mitigation evidence ... ’ and ‘reweigh[s] it against the evidence in aggravation,”’ Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

However, Strickland cautions that “[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.” 466 U.S. at 689, 104 S.Ct. 2052. We must “indulge a strong presumption that counsel’s conduct falls within, the wide range of reasonable professional assistance; that is, the defendant must 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)).

The Supreme Court also recognized that “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Id. at 691, 104 S.Ct. 2052. Because both deficient performance and prejudice must be shown, a reviewing court is not required to issue a ruling on one prong of the test when it is apparent that the other element is not satisfied. See id. at 697, 104 S.Ct. 2052; Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). With this standard in mind, we turn to the question of whether Hayward demonstrated that trial counsel was deficient in investigation and presentation of mental health and background mitigation at trial.

"Hayward was represented at trial by Robert Udell and Jerome Stone, who were assisted for a short time by an investigator named Venus Oleyourryk. The defense theory developed by the team was that Hayward came from a reasonably good background with productive relatives and would do well if given life in prison. Stone testified that- defense counsel decided not to present testimony from any of Hayward’s siblings who were in prison or had criminal records because presenting testimony of relatives who had been incarcerated or had a criminal history would only emphasize the fact that Hayward had been in prison. At the penalty phase of trial, counsel presented testimony of Hayward’s sister Debra, who was a Sheriff’s deputy, his mother, and his brother Terrance, who had been in the military. Trial counsel also reviewed school records and obtained a life history of Hayward. Stone did not recall Hayward reporting any abuse by family members when he was growing up.

Robert Udell, lead counsel in Hayward’s trial, testified that in preparation for the penalty phase, he reviewed Hayward’s medical records, school records, criminal history, Florida Department of Corrections records, and some social history records. He spoke with Hayward’s family members in a group setting and' spoke with Hayward’s mother and sister numerous times by telephone. He recalled that the family members told him the family was somewhat dysfunctional and poor, but loving. Udell learned that Hayward’s father suffered from alcohol abuse and was sometimes violent in disciplining Hayward, but that Hayward was a loved family member.

Venus Oleyourryk, a registered nurse who also acted as an investigator in court cases, including Hayward’s beginning in June 2005, testified at the evidentiary hearing that she assisted' Udell with Háy-ward’s case and also assisted Udell in a California criminal case he litigated from 2006 to January 2007. In Hayward’s case, Oleyourryk spent 100 hours between June 2005 and May 2006 meeting with' Hayward, copying ' discovery, and going through documents. She spoke to" Hayward’s mother and sister early in the case. She did not perform any work on Hayward’s case after May 2006,’ and spent most of her time on the California case, which concluded with a verdict against Udell’s client in January of 2007, two months before Hayward’s trial. She testified that after Udell’s client in the California case was convicted, Udell appeared to be “in a haze.”

During trial preparation, Udell also retained Dr. Michael Riordan shortly before Hayward’s trial. Dr. Riordan evaluated Hayward and informed Udell that Hayward exhibited some traits of antisocial personality disorder and suggested that additional testing could be done, but indicated it might not be fruitful in terms of mitigation. Udell testified at the eviden-tiary hearing that he did not want further testing to confirm antisocial personality disorder, which sounded more like aggravation than mitigation. Dr. Riordan told Udell that if the testing revealed a personality disorder “not otherwise specified,” rather than antisocial personality disorder, such result might be mitigating; although if the testing confirmed antisocial personality disorder, that might be considered aggravating. Dr. Riordan explained that the basis for concluding there were characteristics of antisocial personality disorder was Hayward’s history of criminal activity.

Although he was hired only shortly before trial, Dr. Riordan had sufficient time to prepare and did testify during the penalty phase of trial. He examined Hayward for mitigating evidence and took a psychological history, noting that Hayward appeared to be a “reliable historian/’ He reviewed Hayward’s school records, social history records, and Department of Corrections records. Dr. Riordan testified during the penalty phase that Hayward’s biological father was often intoxicated and offered Hayward alcohol when he was five years old. Dr. Riordan told the jury about Hayward not receiving guidance from his father and having to rely on older siblings because his mother was often absent. The jury heard that Hayward had a substance abuse problem and alcohol problem in his teen years and that Hayward functioned below his intellectual ability in school, necessitating placement in special education for a period of time. The jury also heard from Dr. Riordan that Hayward had suicidal thoughts while in prison, but, there was no indication of psychosis. Dr. Rior-dan told the jury about how well Hayward worked in prison and how he received outstanding ratings for his work there.

The subject of Hayward suffering physical abuse from his siblings did not come up during-Dr. Riordan’s trial • testimony, ■ although Hayward’s older sister Theresa testified in the penalty phase that she and her siblings often beat Hayward as a form of discipline. Dr. Riordan testified at the evidentiary hearing that he was aware the children in the family lived in a state of neglect but opined that because they did not think of it as neglect at the time, it might not have been reported as neglect. He agreed that the belief by the children that their upbringing was normal could account for why Hayward and his siblings did not report any abuse or neglect.

Hayward’s older sister, Debra Fleury, a Fort Pierce Sheriffs Deputy, testified at the penalty phase that their mother worked two jobs and provided the children a good clean home with food and clothing to the best of her ability. Fleury confirmed that her older sister Theresa would give Hayward a “whooping” as discipline. She said Hayward was a good brother but started getting into trouble around age 13 or 14 while she was in the military. She said Hayward was hard-headed and angry, especially when a baby cousin came to live with them.

At a Spencer hearing prior to sentencing, Fleury testified that she wanted the court to know that the siblings did not testify about “everything” in the penalty phase. She explained to the court, “They’re embarrassed. But the Court needs to know that my family was not the Huxtables and weren’t the Cleavers. We were totally different.' ■ We were I would say dysfunctional.” She testified that some of her brothers were now in prison and had drug problems, her sister is a recovering drug addict, and one brother did well in the military but came back with a drug abuse problem. She also testified at the Spencer hearing that her older brothers and sister were rough on Hayward as a child, and that Hayward’s biological father had anger problems and was an alcoholic, “but he didn’t give us any problems.”

At the postconviction evidentiary hearing, Fleury .testified that her sister Theresa was responsible for caring for her siblings, starting when Fleury- was only five years old and Hayward was a baby. Theresa was characterized as “bossy and mean,” and Fleury testified Theresa would hit the children. When Hayward’s stepfather Harold came home on weekends, the children would get “a whippin’.” Fleury said he beat them with tree branches, belts, extension cords, or a water hose on their arms, legs, backs — anywhere he could reach. They had to “hug the wall” during the beatings and if they ran, the other children had to bring them back and hold them for the beating. Fleury testified that her mother beat the children too if she was drinking alcohol, and her beatings were more methodical and took longer. She also used switches, extension cords, or a water hose, and would wake them up in the middle of the night to'beat them if the kitchen was not cleaned up. Hayward was not deterred by the beatings and would get beaten more and started running away at age 12 or 13.

Fleury testified at the evidentiary hearing that their mother and some of the children, including Hayward and infant cousin Sam Peaks, moved to Vero Beach when Fleury was around nine years old to get away from Hayward’s stepfather Harold. Tony Johnson, Hayward’s biological father who was a fruit contractor, lived with them in Vero Beach, and her mother and the children often worked in the orange groves. When Johnson was drunk, he was verbally abusive. He and their mother fought physically and their mother would sometimes call the police. Fleury testified she was aware 'that Hayward’s siblings beat him because she saw them doing it. Approximately twice a week, they would “body slam” him in the yard, throw him against the walls and furniture, and might have hit him with their fists.

Fleury testified that she met once with trial counsel Udell several weeks before the trial and then a couple of times during the trial. She never met with any of trial counsel Udell’s experts. She said Udell never asked about any beatings when the children were growing up and never asked about Tony Johnson’s behavior or the violent relationship with Harold Hayward, nor did he ask about her mother’s alcohol use.

Fleury agreed during the evidentiary hearing cross-examination that she told the judge at the Spencer hearing that the family was embarrassed to say what occurred in Hayward’s childhood. She also agreed that her testimony at the evidentia-ry hearing about Theresa’s treatment of the children differed only “in the details” from what she testified to at trial. She denied holding back information and denied misleading the court at the trial and Spencer hearing, and said that any discrepancies in her testimony were not intentional.

Hayward’s brother Terrance Hayward testified during the penalty phase at trial and was called to testify at the evidentiary hearing. At trial, Terrance testified that he previously served in the Army and was working in construction. He said Hayward’s biological father, who lived with them for a time, was an alcoholic, and that Hayward and his brothers were close and cared about each other.

At the postconviction evidentiary hearing, Terrance testified that when he and his brother were growing up, his father was away most of the time and their mother worked two jobs, so the children raised themselves. When his father Harold came home, his mother would report who had disobeyed that week and his father would give them a “whoopin’,” He reiterated that the children were hit with hoses, extension cords, tree branch switches, and other things on their arms, legs, and backs, which resulted in welts, bruises, and torn skin. He said Hayward was given the same treatment. His mother would also give the children whippings.

He testified that the children often went hungry because there was no food in the house. Terrance would obtain food with expired dates, which a friend got to feed his hogs, and bring it home to the family to eat. Terrance testified that Hayward’s biological father Tony Johnson lived with them in Vero Beach. He and Hayward’s mother would argue and fight when the children, including Hayward, were in the house and the fights resulted in several stabbings. Terrance said the whole family would work in the orange groves on weekends and after school, and sometimes as punishment. Terrance and his brothers would beat Hayward in what they called “initiation” to toughen him up. The toughening up happened two or three times a week and consisted of different wrestling moves. When it was done on Hayward, he was about eight years old, and they would “body slam” him, punch him, and perform other wrestling moves on him that they saw on television.

Terrance testified that he attended the group meeting with trial counsel Udell pri- or to trial and met once again in the courtroom during trial. Udell did not ask about any beatings, fights between his mother and Tony Johnson or Harold Hayward, eating expired food, or his father’s or mother’s alcohol consumption. Udell asked Terrance about himself, but not why he was discharged from the military, which was for drug addiction. Terrance confirmed that his brothers Leon and Derrick, and his cousin Samuel Peaks, had all-been in prison.

Hayward’s mother, Barbara Johnson, who also testified at the penalty phase of trial, testified at the evidentiary hearing about her two marriages and the children she raised — six of her own, plus Peaks, and several grandchildren. Postconviction counsel was not allowed to present testimony about Barbara Johnson’s childhood with a family in South Carolina. The testimony was proffered that Barbara’s mother placed her and her brother with “foster parents” Daisy and Lawrence Green.

Johnson related moving to Florida and having five more children in somewhat quick succession. She started working after Hayward, her youngest, was born. Because her husband, Harold, worked in construction and only came home on weekends, her seven-year-old daughter Theresa was in charge of taking care of toddler Hayward. The older boys had no caretaker most of the time. When her infant nephew Samuel Peaks came to live with them when Hayward was about five, Theresa had to take care of him too.

Barbara testified at the evidentiary hearing that when Harold came home on weekends, she would report what the children had done during the week and “[h]e would whip ‘em with a switch off a tree.” Barbara said she also beat the children with a switch when they werp little because that was what was used on hpr as a chile]. She and Harold got drunk when he was home on weekends and, when drinking, they fought in front of the children. Shé said she, Harold, and the children would work in the orange groves on the weekend to make money to buy alcohol.

Barbara and Harold fought a lot and separated several times, but the last time occurred when she came home and found that Harold had hit daughter Theresa with a rubber automotive belt and injured her leg. Tony Johnson, Hayward’s biological father, helped her and some of tlie children relocate to Vero Beach and moved in with them. Barbara and Tony,'who was an alcoholic, fought almost every night, and Tony would sometimes brandish a knife or a gun, so she often called the police. At one point, she cut him with a knife. Barbara testified that Hayward was in trouble a lot while in school and had difficulty with, school work, but she could not help him because she did not have much education and could not afford to obtain help for him.

She testified at the evidentiary hearing that she learned from a neighbor that Hayward’s brothers were “not treating” him right. The State objected that this was .hearsay,, so her testimony was proffered that when Hayward was a child, a neighbor, now-deceased Lucy Collins, told her that the older brothers “fought” Hayward when he was about age eleven. The court excluded the testimony, finding the hearsay “blatantly unreliable,” and because of the inability of the State to rebut it.

■In preparation for trial, Barbara met once with trial counsel Udell in hi's office for several hours, along with other family members, and she had several telephone conversations with Udell. Udell did not ask about Hayward’s childhood or her own childhood, whether Hayward was beaten, or about her fights with Harold Hayward or Tony Johnson. He did ask about Tony’s alcohol consumption and they discussed Terrance’s drug abuse. She only met co-counsel Stone in court.

Derrick Green, Hayward’s brother, testified at the- evidentiary hearing that he was currently incarcerated for armed robbery and other charges. At about age eleven, he was retrieved from the Greens in South Carolina by his mother, Barbara Johnson, and brought to live in Florida with her and Harold Hayward. Derrick was not allowed to testify about the abuse he suffered in South Carolina at the hands of Daisy and Lawrence Green, so that testimony was proffered. He was taken to Florida by his mother and lived in the household with his other half-brothers and sisters where he also received beatings when Harold Hayward came home. He was struck with switches, a water hose, a washing machine belt, and a piece of car tire. He said Harold appeared to enjoy beating the children. The boys, and especially Hayward, would get beaten more than the girls. Derrick also testified that their mother would sometimes give beer to the children, including Hayward. His mother separated from Harold after he got angry at Derrick and retrieved his gun, although she left Derrick and Leon at the house with Harold when she and the other children moved to Vero Beach.

Derrick testified about Tony Johnson coming to live with them in Vero Beach. His mother admitted to him that Tony was Hayward’s biological father, although Hayward only learned of this when he was older. Derrick said his mother beat Hayward starting when Hayward was four or five years old, but Tony Johnson never hit the children. Derrick and the other family members worked in the groves with Tony on weekends or when school was out. Derrick testified that he and his brothers abused Hayward from the time he was about seven, thinking they were toughening him up, and when he cried they just did it more. They used Hayward as their “guinea pig” to practice the wrestling moves they saw on television. Derrick left home at age seventeen and, when Hayward went to trial for this murder, Derrick was in prison in Georgia and no one from the defense team contacted him.

On cross-examination, Derrick denied telling the State Attorney investigator Ed Arens prior to this hearing that his mother did not beat the children and denied telling the investigator that there was nothing to report concerning abuse of Hayward during his childhood. Derrick said he did not view the wrestling that the brothers did with Hayward as abuse at the time, but looking back on it now,. he thinks it was-abuse. Byway of impeachment of Derrick, the State presented the testimony of investigator Ed Arens that he interviewed Derrick Green in prison on February 7, 2012, about one month before the eviden-tiary hearing and asked Derrick if their mother had ever been abusive to the children. Arens testified Derrick did not tell him that his mother did any disciplining and did not mention 'the brothers or sister being abusive to Hayward, even though the question was asked if anyone had been abusive to Hayward when he was growing up. Derrick told him only his father and stepfather were abusive toward the children.

In addition to family members, postcon-viction counsel presented Pamela Clark, the mother of Hayward’s son, who said she could have testified at trial about Hayward being a loving father.

Cecilia Alfonso, a forensic social worker and mitigation specialist in death penalty cases, testified at the evidentiary hearing. Alfonso performed a “biopsychosocial assessment” of him after meeting with him for three and one-half hours. She also reviewed school, medical; and prison records, as well as trial transcripts. Based on school records, she concluded Hayward had a learning disability, poor school attendance, repeated several grades, and dropped out at age sixteen. She testified that his standardized testing scores were low. She concluded from the Department of Corrections’ records that he had suicidal thoughts at one time, and had some unresolved health problems.

She interviewed family members and Hayward’s former girlfriend Dorothy Smith. 'Alfonso was not allowed to testify about Hayward’s mother’s childhood or the childhood experiences of Hayward’s brother Derrick before Hayward was born. Alfonso was allowed to testify that Derrick reported to her that when living with Barbara Johnson and Harold Hayward, Harold would repeatedly beat the children with a switch, a belt, or a cord.

The court also excluded Alfonso’s proffered testimony that in her interview with Hayward’s sister, Theresa Williams, Alfonso was told that Theresa and her brothers were abused and that the mother was absent most of the time. Hayward’s mother reported to Alfonso that after she separated from Harold, Tony Johnson moved in and was a very heavy drinker. He did not beat the children, so the mother took over that responsibility of discipline and would hit them with a switch or a belt on their back and arms. Alfonso testified that her interview with Hayward’s brother Terrance confirmed that Hayward was raised in a “battle zone” and was subjected to repeated abuse, which taught Hayward that violence is acceptable.

Alfonso concluded that the violence Hayward suffered and was exposed to as a child deprived him of learning about nonviolent ways to live. She opined that his low-normal IQ indicates that he had the ability, but was not provided with the cognitive tools, to develop strategies for coping. She said his environment deprived him of a sense of competence in the area of academics, but taught him to value competence in fighting and being able to tolerate physical and emotional abuse. She said the mitigation she developed was different than that presented in the penalty phase of trial because there was no presentation of the nature, extent, and duration of the abuse that occurred and, although witnesses said it was a dysfunctional family, the details were not provided to the jury.

Hayward presented the testimony of Dr. Thomas Hyde, a behavioral neurologist, at the evidentiary hearing. Dr. Hyde was given background materials and records, and met with Hayward to evaluate his neuropsychiatric history, to perform an examination, and reach some general conclusions about his neuropsychiatric status. Dr. Hyde testified that he performed a “Mini Mental State Examination,” sometimes known as the Folstein Mental State Exam, a behavioral neurological examination, as well as cranial nerve, motor, gate, and sensory examinations and a limited general physical examination.

Dr. Hyde concluded that Hayward had poor complex motor sequencing in both hands, which he said is often indicative of frontal lobe dysfunction. Dr. Hyde also concluded that Hayward had subtle abnormalities that were significant — increased deep tendon reflexes at the left biceps, triceps, brachioradialis, knee and ankle, and crossed adductors on the left, all suggesting right frontal lobe dysfunction. Dr. Hyde concluded that Hayward suffered from right frontal lobe dysfunction which adversely affects his prioritization, reason, judgment, problem solving, attention span, focus, and manipulation of information. He explained that frontal lobe dysfunction can also cause impulsivity, inability to maintain long-term relationships, employment difficulty, and substance abuse; and can make the individual susceptible to mood disorders, such as depression and manic depressive illness. Dr. Hyde did not ask for an MRI, PET, or any other brain scan testing to be done.

Dr. Hyde opined that Hayward’s poor school performance despite a 91 IQ indicated either a learning disability or some type of developmental neurological dysfunction affecting his performance. He opined that school records and Hayward’s performance on the testing done by Dr. Hyde indicated Hayward suffered from attention deficit disorder. He said Hayward had elements in his history consistent with depression NOS (not otherwise specified) dating back to childhood but did not meet DSM-IV R criteria for major recurrent depressions. Overall, Dr. Hyde found that Hayward had circumscribed areas of cognitive deficits that were not pervasive but can be significant. Dr. Hyde testified that he asked Hayward if he suffered any abuse by anyone when he was a child and was advised there was no abuse history.

In rebuttal, the State recalled Dr. Michael Riordan, who testified that there are a number of tests that a forensic neuropsy-chologist can administer to assess and diagnose brain damage in the various lobes of the brain. The Expanded Halstead-Reitan Battery is one of those tests, comprising twenty-one separate elements. Dr. Riordan examined the testing done by Dr. Hyde and the RBANS test (Repeatable Battery for the Assessment of Neuropsy-chological Status Update) administered by a Dr. Harvey, who did not testify. Based on this review, Dr. Riordan did not find any indication of frontal lobe damage. Dr. Riordan did not believe the “Mini Mental State Exam” performed by Dr. Hyde was the proper test to use to determine if there was frontal lobe impairment. He further concluded that Hayward’s score on the test was normal and did not indicate any problem. Dr. Riordan said Dr. Hyde’s examination did not go far enough and, to the extent any of his findings suggested frontal lobe damage, further neuropsychological testing should have been done.

The Postconviction Order Denying Relief

On this issue, the circuit court denied relief, concluding that Hayward presented no records that trial counsel had failed to provide to Dr. Riordan at trial, and Hayward failed to show that Dr. Riordan had insufficient time to review the records or perform' a thorough mental health examination, The court concluded that Dr. .Riordan found no reason to conduct neu-ropsychological testing, but recognized traits of antisocial personality disorder that would not be mitigating. The court also found that Dr. Hyde relied on the same records as Dr. Riordan and did not adminfeter' any psychological tests. The court held that the fact that Dr. Hyde arrived at a different conclusion than Dr. Riordan did not prove the initial evaluation by Dr. Riordan was inadequate. The court noted that Dr. Hyde found no history of head injuries and that, although he found soft signs of frontal lobe dysfunction, depression NOS, and childhood ADHD, Dr. Hyde could not describe the degree of neurological impairment or link these diagnoses to Hayward’s adult functioning and behavior. The court also noted that Dr. Riordan reviewed the results Of Dr. Hyde’s examination and found no evidence of frontal lobe impairment.

As to the claim that trial counsel was ineffective in discovering and presenting evidence of childhood abuse and neglect and in failing to properly prepare lay witnesses to testify in the penalty phase, the circuit court also denied relief. The court concluded that evidence that Hayward was punished from the time he was a- young child by -Whippings or beatings with a hand, belt, switch, extensión cord, water hose, or piece of tire and suffered welts and sores from that punishment was simply amplification and evolution of the nature, duration, and extent of the corporal punishment testified to at trial. The family members also admitted that they believed this punishment was a proper form of discipline and that “it was the way it was supposed to be,” although their opinions had now changed.

The court noted the evidence that Hayward lacked adult supervision and bonding as a child, his parents fought violently, and his brothers beat him and wrestled violently with him to “toughen him up.” The court found that his father'was an alcoholic, and Hayward-did not do well in schqol, but-that, much of this evidence was presented at trial and was simply being amplified in detail. The court also concluded that this evidence was undercut by the fact that the postconviction motion alleged the family members were embarrassed to testify to all this information at trial, by the fact that Hayward failed to report any abuse to his trial counsel or mental health expert, and by the inconsistent testimony of family members about abuse and neglect.

The court rejected the testimony of mitigation specialist Cecilia Alfonso, who presented testimony about ■ how, the circumstances of Hayward’s childhood had an ongoing adverse impact on his ability to make good judgments and conform to the .law as an adult. The court found that her testimony was not credible because at the evidentiary hearing she testified to details of .abuse that she failed to reveal in her deposition and refused to admit that she was an advocate for the defendant, but later recanted that position. Finally, the circuit court held that despite the fact that there was additional evidence -of mitigation which was not presented at trial, the court would assign little weight to those circumstances, and concluded that no prejudice was shown as to the outcome of the penalty phase. The circuit court stated that “the mitigating circumstances added to the totality of the mitigating circumstances found at trial are outweighed by each statutory aggravator.”

Discussion

The circuit court was correct that much of the information that was provided by evidentiary hearing testimony was also presented at the penalty phase. The penalty phase jury heard testimony that Hayward’s parents were mostly absent, his father was an alcoholic, Hayward did not do well in school, and Hayward’s older sister would give him a. “whooping” as discipline. The trial judge also heard in the Spencer hearing that Hayward’s brothers would violently wrestle him on a regular basis. The jury was told by Theresa Williams, Hayward’s sister, that she and her siblings would “beat him a lot” for discipline. By way of mental mitigation, the jury was told that Hayward had no bond with his father, that he developed a substance abuse problem, that he was the product of a dysfunctional family, that he had academic problems in school and was placed in special education, and had suicidal thoughts while incarcerated.

Trial counsel Udell and Stone testified at the evidentiary hearing that the trial strategy was to present Hayward as the product of a successful family with a hardworking mother who did her best to provide for her six children.' Udell believed evidence that Hayward had traits of antisocial personality disorder would be aggravating rather than mitigating, and that testimony from family members who were incarcerated or convicted felons would not have served to paint Hayward in the best light. Dr. Riordan testified at trial that Hayward would be a good candidate for a life sentence because he had been successful in prison before, had received commendations, helped other inmates, supported his child, and could adapt to life in prison without causing problems.

We have long recognized that trial counsel’s “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 Supreme Court in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), stated that

,.Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy.

Id. at 527, 123 S.Ct. 2527 (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052). In assessing the- reasonableness of an attorney’s investigation “a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.”. Wigging, 539 U.S. at 527, 123 S.Ct. 2527. Hayward never reported any childhood beatings to his counsel. Stone testified that he was never told of any childhood abuse even though he met with Hayward several times to talk about his background “from start to finish.” Stone said he also reviewed school records and psychological testing records, which were also provided to Dr. Riordan. Although counsel knew prior to the penalty phase that Hayward was essentially raised by his siblings, no one ever told counsel that the discipline or play the siblings engaged in with Hayward rose to the level of abuse.

This Court has made clear that “an attorney’s obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated because this is an integral part of a capital case.” State v. Pearce, 994 So.2d 1094, 1102 (Fla.2008). We also explained in Willacy v. State, 967 So.2d 131 (Fla.2007), that “[u]nder Strickland, ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” Id. at 143 (quoting Marshall v. State, 854 So.2d 1235, 1247 (Fla.2003) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052)). However,

[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.

Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). Therefore,’ strategic decisions must follow a reasonable and thorough investigation. In light of the records that trial counsel reviewed, and in light of what both trial counsel were told — and not told — by family members and Hayward himself about his childhood, and in light of the possibility that further psychological testing could have indicated antisocial personality disorder, we find that counsel made a reasonable investigation before deciding to present a strategy of “humanizing” Hayward and showing him in the best light possible.

In Rutherford v. State, 727 So.2d 216 (Fla.1998), we held that defense counsel properly relied on a strategy of “humanization” of the defendant rather than exposing his alcoholism and anxiety disorder. Id. at 223. In so holding, we drew a clear distinction between counsel’s actions in Rutherford and those in cases where counsel made a decision to forego mental mitigation without making any meaningful investigation, such as in Rose v. State, 675 So.2d 567 (Fla.1996), where we reversed because trial counsel’s mitigation decisions were “neither informed nor strategic” and “ ‘there was no investigation of options or meaningful choice.’ ” Rutherford, 727 So.2d at 223 (quoting Rose, 675 So.2d at 572-73). Similarly, this Court granted a new penalty phase in Hurst v. State, 18 So.3d 975 (Fla.2009), where counsel was presented with information that Hurst had a low IQ, had borderline intellectual function, and counsel had information that Hurst’s mother drank heavily when pregnant with him, suggesting the possibility of Fetal Alcohol Syndrome and brain damage. Id. at 1011. This Court concluded that counsel did not make an informed decision to ignore such mitigation and instead presented only insubstantial mitigar tion. In the present case, Stone testified that he did review school records and records of past psychological testing, which records were also given to Dr. Riordan to review; and counsel did meet with family members and relied on information provided by them and by Hayward.

In Jones v. State, 998 So.2d 573, 583 (Fla.2008), we explained that where available information indicates that the defendant could have mental health problems, a mental evaluation is fundamental in defending against the death penalty. In this case, available information did not indicate Hayward had any mental health problems requiring additional investigation. The frontal lobe deficits to which Dr. Hyde testified were based on his interpretation of several tests administered to Hayward, but Dr. Riordan disputed that the results of those tests indicated any frontal lobe damage. Trial counsel’s performance “is not rendered incompetent merely because the defendant has now secured the testimony of a more favorable mental health expert.” Asay v. State, 769 So.2d 974, 986 (2000). Nor does the presentation of additional mitigating evidence in the postconviction proceeding necessarily establish ineffective assistance of counsel. Hodges v. State, 885 So.2d 338, 347 (Fla.2004). “The pertinent inquiry remains whether counsel’s efforts fell outside the ‘broad range of reasonably competent performance under prevailing professional standards.’ ” Id. We find, based on the evidence presented at the evidentiary-hearing, and evidence that was presented to the jury in the penalty phase, that trial counsel were not deficient in investigating and presenting mental mitigation or mitigation based on Hayward’s childhood and family background.

Moreover, prejudice has not been established. Even if all the mitigation presented at the evidentiary hearing were presented to a penalty phase jury, there is no “reasonable probability that, absent the errors, the sentencer ,.. would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052; see also Foster, 132 So.3d at 52. To assess that probability, the Court considers “‘the totality of the available mitigation evidence ...’ and ‘reweigh[s] it against the evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. at 41, 130 S.Ct. 447 (quoting Williams, 529 U.S. at 397-98, 120 S.Ct. 1495). The totality of the mitigation in this case indicates that Hayward had a difficult childhood, suffered severe discipline by his parents and sister, and violent roughhousing by his brothers. The postconviction court was correct that the penalty phase jury, and the court in the Spencer hearing, heard much of the childhood mitigating evidence that was presented at the evidentiary hearing. Dr. Hyde’s testimony of possible frontal lobe damage was subject to impeachment by Dr. Riordan’s testimony and by the fact that Dr. Hyde did not refer Hayward for in-depth psychological testing. The aggravation in this case was heavily weighted, especially by the fact that one of the prior violent felonies was a murder. Thus, we conclude that even if Hayward had carried his burden to show that trial counsel’s decisions were not reasonable, strategic ones, prejudice has not been shown. Accordingly, relief is denied on this claim.

B. Claim of Ineffective Assistance of Counsel at the Suppression Hearing

Hayward next contends that trial counsel was deficient in failing to obtain a copy of the written policy of the Fort Pierce Police Department for transporting persons in patrol cars, and if he had done so, he would have found that the written policy only applied to prisoners, not to mere passengers. Hayward contends that had counsel obtained the written policy on prisoner transport, he could have effectively impeached Officer Darren Mace, an officer with the Fort Pierce Police Department who testified at trial that there was a written policy governing handcuffing of non-prisoners in patrol cars. Hayward further contends that if counsel had secured a copy of the actual policy, he would have been able to obtain a favorable ruling suppressing Hayward’s first statement and those that followed. Hayward characterizes as “a lie” the testimony of Officer Mace that the policy calling for handcuffing anyone transported in a patrol car was a written policy. Hayward contends that the State failed to correct this false testimony, a violation under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and failed to supply trial counsel with the written policy at trial in order for defense counsel to use it to impeach Officer Mace, a violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

At the suppression hearing held before trial, the State presented Officer Mace, who testified in pertinent part that while at Hayward’s rooming house, he asked Hayward to step outside to discuss his hand wound. Officer Mace testified that he did not handcuff Hayward at that time. Officer Mace testified he then asked Hayward if he would come to the police station to discuss the hand wound, which Hayward had described as a cut inflicted by Dorothy Smith, his girlfriend. Hayward did not object to that request and was then handcuffed for the ride to police headquarters. On cross-examination, Officer Mace testified at the suppression hearing, “It’s policy that any time we transport anybody in our police cars, that they’re secured or handcuffed” for officer safety, Mace also said that it was “written in our POP, our policy from [the] police, department. Anybody that travels in our vehicle in the back seat will be secured.” Officer Mace said, “I advised him, I said, sir, you’re not under arrest but for the purpose of and policy of my department I have to secure you.” When asked, “If one reviewed that, that would be in there?” Officer Mace answered, “Yes, sir.”

When ¡Hayward was handcuffed in front of his body and, just before he got into the police vehicle, Hayward said something to the effect that he was not going to lie, that he was robbed the other day and he may have gotten shot. Officer Mace conveyed this information to Officer Flaherty, who was in the rooming house with Hayward’s girlfriend, Dorothy Smith, who then told Flaherty that Hayward had knocked on her window in the early morning of February- 1, 2005, and had a gunshot wound to his hand.

Fort Piérce Police Captain Greg Kirk testified at the evidentiary hearing that the police department had" a written policy for prisoner transport but did not have a written policy for transport of non-prisoners. That decision is left to the discretion of the officer, but he agreed there is an unwritten policy regarding transport of non-prisoners in the back seat of patrol cars. Captain Kirk trains Fort Pierce police officers regarding transportation of people who are not under arrest and has done so since 2004, and he was involved in the training class which Officer Mace attended. Captain Kirk said the unwritten policy that is taught to the officers is that if the officer believes there is a need to assure safety in the transportation of a person, the person should be handcuffed and told that the procedure is for then-safety and officer safety, even if the person is volunteering to come to the police station.

The postconviction court held:

Hayward presented no evidence rebutting the [Fort Pierce Police Department] handcuff practice or the related officer training, or proving that the State knew that the handcuff practice was unwritten. And it is undisputed that Officer Mace told Hayward he was being cuffed for officer safety and that he was not under arrest. Thus, the court finds no exculpatory or impeaching evidence in the fact that Officer Mace, erroneously believed that there was a written handcuff policy where there was a memorialized training practice; and finds Officer Mace’s misstatement that there was a written policy harmless beyond a reasonable doubt where the substance of the memorialized training practice was conveyed to Hayward, so Hayward could not have reasonably believed that he was being detained.

Under Brody, a violation occurs “when the government fails to disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006); see also Riechmann v. State, 966 So.2d 298, 307 (Fla.2007) (citing Mordenti v. State, 894 So.2d 161, 168 (Fla.2004)). This obligation extends to “impeachment evidence and to evidence ‘known only to police investigators and not to the prosecutor.’ ” Youngblood, 647 U.S. at 869-70, 126 S.Ct. 2188 (quoting Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

In order to demonstrate a Brady violation, the defendant has the burden to show (1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760 So.2d 903, 910 (Fla.2000); In order to meet the materiality prong of Brady, the defendant must demonstrate “ ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Youngblood, 547 U.S. at 870, 126 S.Ct. 2188 (quoting Strickler, 527 U.S. at 280, 119 S.Ct. 1936). “[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Id. at 870, 126 S.Ct. 2188 (quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555). A reasonable, probability is a probability sufficient to undermine confidence in the outcome. Way, 760 So.2d at 913; see also Strickler, 527 U.S. at 290, 119 S.Ct. 1936. “[R]eversal of a conviction is required upon a ‘showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Youngblood, 547 U.S. at 870, 126 S.Ct. 2188 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555).

A claim under Giglio alleges that a prosecutor knowingly presented false testimony against the defendant. ■ ■ In order to demonstrate a Giglio violation, “a defendant must show that: (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.” Tompkins v. State, 994 So.2d 1072, 1091 (Fla.2008) (citing Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006)). Once the first two prongs are established by the defendant,, the false evidence is deemed material if there is any reasonable possibility that it could have affected the jury’s verdict. Tompkins, 994 So.2d at 1091. The State then “has the burden to prove that the false testimony was not material by demonstrating it was harmless beyond a reasonable doubt,” Id. at 1092. The harmless error standard requires the State to prove “that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

Giglio and Brady postconviction claims present mixed questions of law and fact and, where the trial court has conducted an evidentiary hearing, this Court will defer to the factual findings of the trial court that are supported by competent, substantial evidence, but will review the application of the law to the facts de novo. Lynch v. State, 2 So.3d 47, 56 (Fla.2008) (citing Sochor v. State, 883 So.2d 766, 771-72 (Fla2004)); see also Lowe v. State, 2 So.3d 21, 29 (Fla.2008) (“Generally, this Court’s standard of review following a denial of a postconviction claim where the trial court has conducted an evidentiaiy hearing accords deference to the trial court’s factual findings.” (citing McLin v. State, 827 So.2d 948, 954 n., 4 (Fla.2002))). “ ‘[T]his Court will not sub7 stitute its judgment for that of the trial court on questions of fact, likewise of the credibility of .the witnesses as well as the weight to be given to the evidence by the trial court.’ ” Id. at 30 (quoting Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997)).

Simply because Officer Mace erroneously stated that the policy on transporting persons in the patrol car -was written does not prove that the falsity was purposeful, or that the State knew that it was false or knew that there was a written policy that contradicted Officer Mace’s testimony. Thus, no Giglio violation was shown.

Under Brady, however, exculpatory or impeaching evidence that is inadvertently suppressed by the State can be the basis for a finding.of violation if the evidence was material, thus causing prejudice to the defendant. In this case, the State did not disclose