Lead Opinion
Richard Knight appeals an order of the Seventeenth Judicial Circuit Court in and for Broward County denying his motion to vacate his sentence of death filed under Florida Rule of Criminal Procedure 3.851. Knight also petitions this Court for a writ of habeas corpus. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the circuit court’s denial of Knight’s rule 3.851 motion and deny his petition for a writ of habeas corpus.
I. STATEMENT OF THE CASE & FACTS
On April 26, 2006, a jury found Richard Knight guilty of two counts of first-degree murder for the deaths of Odessia Stephens and her four-year-old child, Hanessia Mull-ings. The jury unanimously recommended a death sentence for each murder. Knight v. State,
A. Trial & Direct Appeal Proceedings
On direct appeal, we set forth the following relevant factual and procedural background:
The evidence presented at trial established that Knight lived in an apartment with his cousin, Hans Mullings, Mull-ings’ girlfriend, Odessia Stephens, and their daughter, Hanessia Mullings. Mull-ings and Odessia had asked Knight to move out numerous times.
On the night of the murder, June 27, 2000, Mullings was at work. At approximately 9 p.m., Mullings spoke to Odes-sia, who said she was going to bed, and then Mullings left his office to run errands. Knight was at the apartment with Odessia and Hanessia.
Around midnight, an upstairs neighbor heard multiple thumping sounds on the apartmеnt walls and two female voices, one of which was a child crying. The neighbor called 911 at 12:21 a.m. on June 28, 2000, The cries continued after the police arrived.
Officer Vincent Sachs was the first to respond. He arrived at 12:29 a.m. and noted that the lights were on in the master bedroom and hall area, and that a second bedroom’s window was slightly ajar. After knocking and receiving no response, he walked around the unit and noticed that the lights had been turned off and that the previously ajar window was now completely open and blinds were hanging out of it. Sachs shined his flashlight through the dining room window. He saw blood in the dining room and master bedroom. Further, he noticed Hanessia curled in the fetal position against the closet door. Once inside, he observed Odessia’s body in the living room. All of the doors were locked and there had been no ransacking of the apartment.
Officer Natalie Mocny arrived next and walked around the unit. She also saw the open window and noticed Knight on the other side of some hedges approximately 100 yards from the building. She beckoned him over for questioning. Officer Sachs joined Mocny. According to the officers, Knight had a scratсh on his chest, a scrape on his shoulder, and fresh cuts on his hands. Although it was not raining, Knight was visibly wet. Knight was wearing dress clothes and shoes, yet told Mocny that he had been jogging, and that he lived in the apartment, but did not have a key to get inside. There was blood on the shirt he was wearing and on a ten-dollar bill in his possession.
The crime scene investigation recovered two wet towels in Knight’s bedroom, a shirt, boxers, and a pair of jean shorts under the sink in the bathroom near Knight’s bedroom, all of which belonged to Knight and had numerous bloodstains. Two knife blades were also recovered, one from under the mattress in the master bedroom, and another from under Odessia’s body.
Odessia’s blood was found in the master bedroom between the bed and the wall, on the master bedroom blinds, on the living room carpet, on the knives’ handles and blades, and on the knife holder in the kitchen. Odessia’s blood was also discovered on Knight’s boxers, shirt, jean shorts, the clothing Knight had been wearing when arrested, and his hand. Fingernail scrapings taken from Odessia contained Knight’s DNA profile.
Hanessia’s blood was found on . one of the knives, on Knight’s boxers, jean shorts, and on the shower curtain. The shower curtain also contained the blood of Knight’s acquaintance, Victoria Marti-no.
Dr. Lance Davis, the medical examiner, observed the bodies at the scene. Odessia was found on the living room floor near the entrance with several broken knife pieces around her. She had twenty-one stab wounds: fourteen in the neck, one on the chin, and the rest on her back and chest. Additionally, she had twenty-four puncture or scratch wounds and bruising and ligature marks on her neck. The bruises appeared to have been made by a belt or similar object. She also had defensive wounds on both hands and wounds on her leg, chest, back and neck. Several of the knife wounds were fatal but none would have resulted in an instantaneous death. She had bruises from being punched on her scalp and mouth. Davis opined that Knight began his attack in the bedroom with Odessia fleeing to the living room. He estimated that Odessia was conscious for ten to fifteen minutes after the attack.
Davis discovered Hanessia on the floor next to the closet door. There were broken knife pieces around her. She had a total of four stab wounds in her upper chest and neck. Her hand had one аdditional stab wound and numerous defensive wounds. Hanessia’s arms and upper body had numerous bruises and scratches. There were bruises on her neck that were consistent with manual strangulation and bruises on her arms consistent with being grabbed.
Stephen Whitsett and Knight were housed together from June 29, 2000, to July 22, 2000, at the Broward County Jail. Knight confessed to Whitsett about the murders as follows: The night of the murders Knight and Odessia argued. She told him that she did not want to support him and that he would have to move. He asked for some more time because he had just gotten a job, but Odessia refused and told him to leave in the morning. Knight left the house to go for a walk and he became increasingly angry. He returned that night, confronted Odessia in her room, and they argued.
Knight went to the kitchen and got a knife. When he went back to the master bedroom, Odessia was on one side of the bed and Hanessia was on the other. He began by stabbing Odessia multiple times. Odessia eventually stopped defending herself and balled up into a fetal position. Knight then turned to four-year-old Hanessia. The knife broke while he was stabbing Hanessia, so he returned to the kitchen for another. Upon returning, Knight saw Hanessia had crawled to thе closet door 'and was drowning in her own blood.
Again, Knight returned to the kitchen and accidentally cut his hand on one of the broken knives that he had used to stab Odessia and Hanessia. He grabbed another knife. Odessia had crawled from the master bedroom to the living room and was lying in her own blood. He rolled her over and continued his attack. Odessia’s blood covered Knight’s hands, so he wiped them on the carpet.
Knight further confessed that, after he finished with Odessia, he went to the bathroom, took off the blood soaked shorts and T-shirt, and tossed them under the sink. He showered.and put on blue' polo pants. He wiped down the knives in the living room. At that time, Knight heard a knock on the dobr and saw the police outside through the peep hole. He ran to his room and out the window. In an attempt to deflect suspicion away from himself, Knight returned to his bedroom window where he saw a female police officer.
Knight was charged by indictment on August 15, 2001, for the murders of Odessia Stephens and Hanessia • Mailings. The jury found Knight guilty of both-counts of first-degree murder.
At the penalty phase, Knight called six witnesses, several of whom testified about his childhood and upbringing in Jamaica. His teacher, Jоscelyn Walker, told the jury that Knight was a respectful and loving boy raised in' a very respected family. He said that Knight did have a temper when provoked and would become extremely frustrated at times. Walker had to restrain him from time to time when Knight wanted to fight another child. Knight’s high school art teacher, Joscelyn Gopie, described Knight as a pleasant, eager boy who was quite talented at art. Gopie explained that Knight was adopted as a toddler by his family. Knight left high school before he graduated.
Barbara Weatherly is the mother of Knight’s former fiancée. She described him as a decent, honorable guy who respected her rules regarding her daughter. He always helped her younger children with their drawing. He was a quiet and'peaceful person who spent a lot of time alone. One night at her house .he got sick; his- eyes rolled back in his head and he frothed at the mouth before passing out. They took him to the hospital where the doctor said that he needed 'to see a psychiatrist. She last saw him in 1998 when he left to go to the United States; • :
A former boss and coworker- of Knight’s, Stanley Davis, also 'testified. Davis explained ' that Knight had been adopted into a well respected family and had a close loving relationship with his family members. Knight took over many of his father’s duties when his father lost a leg. Knight worked with him at a construction company and was a good worker. On one occasion Knight fell and blacked out, after which he had difficulty concentrating and became timid.
Valerie River, the defense investigator, and Knight’s attorney journeyed to Jamaica to interview Knight’s family and friends. Knight was abandoned by his mother and the Knight family found him at a hospital and took him home. He was a good brother and son. Knight’s close friends and family said that he was a nice and good person. Knight’s sister-in-law used to have Knight babysit her children but eventually stopped because he was careless around the house. Knight blacked out on one occasion. Knight’s former boss Stedman Stevenson said he was a hard worker and a quick learner. He took Knight to Florida, and Knight decided to stay.
Knight also presented expert Dr. Jon Kotler who practices nuclear medicine and specializes in PET scans of thebrain. He explained that Knight’s physical symptoms indicated that he might have a brain injury. The MRI done on him was normal. Dr. Kotler did a PET scan which he interpreted as showing asymmetrical brain activity indicating possible pathology of the brain, perhaps a seizure disorder. He could not say exactly what the pathology might be or how it might manifest itself in Knight’s behavior. Dr. Sfakianakis, another nuclear medicine doctor, read the PET results as showing only a mild difference between the brain hemispheres which was within the normal fluctuations of the brain.
. Following the presentation of penalty-phase testimony, the jury unanimously recommended the death penalty for both murders.
The trial court subsequently conducted a [Spencer v. State,615 So.2d 688 (Fla. 1993),] hearing on August 18, 2006. At the hearing, the defense submitted the report and deposition of neuropsy-chologist Dr. Mittenberg who examined Knight but refused to testify at trial. The State submitted the report and deposition of Dr. Lopickalo, another neu-ropsychologist. Mullings and Eunice Be-lan also gave victim impact statements.
Subsequent to the Spencer hearing, the trial court followed the jury’s [unanimous] recommendation and sentenced Knight to death. In pronouncing Knight’s sentence, the trial court determined that the State had proven beyond a reasonable doubt two statutory aggravating circumstances for the murder of Odеssia Stephens: (1) a previous conviction of another violent capital felony, .and (2) that the murder was especially heinous, atrocious, or cruel (HAG). The court also found three statutory aggravating circumstances for the murder of Hanessia Mullings: (1) a previous conviction of another violent capital felony, (2) HAC, and (3) the victim was under twelve years of age. The court.found no statutory mitigating circumstances but found eight nonstatutory mitigators, which are set forth in our proportionality discussion.
Knight,
We affirmed Knight’s convictions and sentence of death. Id. at 885. Knight’s sentence' became. final on May 14, 2012, when the United States Supreme Court denied certiorari. Knight v, Florida, — U.S. —,
B. Postconviction Relief Proceedings
On May 10, 2013, Knight filed his “Motion to Vacate Judgment of Conviction and Sentence with Special Request for Leave to Amend,” pursuant to Florida Rule of Criminal Procedure 3.851. He raised the following claims: (1) 'he was improperly denied access to public records; (2) the one-year deadline in Florida Rule of Criminal Procedure 3.851 was unconstitutionally applied to him; (3) he was denied adversarial testing at the guilt phase; (4) he was
II. POSTCONVICTION RELIEF CLAIMS
A. Ineffective Assistance of Counsel During Guilt Phase
Knight argues that he is entitled to a new trial because trial counsel rendered ineffective assistance. First, Knight argues that trial counsel was ineffective for failing to call as a witness Dr. Nora Rudin, a DNA analyst who worked for the defense prior to trial. Second, Knight argues that trial counsel was ineffective for failing to request a Frye
In accordance with Strickland v. Washington,
deficient performance and prejudice, as set forth in Strickland v. Washington,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984). See Rutherford v. State,727 So.2d 216 , 218 (Fla. 1998). As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland,466 U.S. at 688 ,104 S.Ct. 2052 . Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694,104 S.Ct. 2052 ; Rutherford,727 So.2d at 220 .
Gore v. State,846 So.2d 461 , 467 (Fla. 2003) (parallel citations omitted).
“[W]hen a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.” Waterhouse v. State,792 So.2d 1176 , 1182 (Fla. 2001). Further, as the United States Supreme Court explained in Strickland,
[judicial scrutiny of counsel’s performance must be highly deferential.... 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....
Mungin v. State,
1. Failure to Call Dr. Rudin
At trial, the State’s DNA evidence was presented through the testimony of Kevin Noppinger of the Broward County Sheriffs Office, who conducted the actual DNA testing, and Kevin McElfresh of Bode Technology Group, who analyzed Noppinger’s results. Dr. Rudin worked for Knight’s defense team. She employed Nop-pinger’s analysis to develop a report and aid the defense.
Originally, McElfresh opined that Knight’s DNA could be excluded from the DNA samples obtained from the clothing found below the sink at the crime scene. Knight,
At the postconviction evidentiary hearing, trial counsel explained that he did not call Dr. Rudin as a witness because her conclusions ultimately bolstered the State’s arguments. Trial counsel also stated that because the rule at the time allowed the defense to have the last word, he did not want to lose that opportunity.
Dr. Rudin also testified at the evidentia-ry hearing. She testified that her second report addressed her concerns with Nop-pinger’s DNA testing procedures and with McElfresh’s analysis of that testing as it pertained to the clothes found in the bathroom. Dr. Rudin found McElfresh’s trial testimony problematic, explaining that his conclusions were questionable because he arrived at them through an unreliable testing method. However, even with the possibly flawed procedures, Dr. Rudin stated that she would have testified consistent with Noppinger’s report.
Knight now argues that trial counsel was ineffective for failing to call Dr. Rudin as a witness. He posits that had she testified at trial, the jury would have doubted the State’s DNA evidence and ultimately would have found him innocent. While it is possible that Dr. Rudin’s testimony may have cast doubt on the State’s DNA evidence, we conclude that Knight fails to meet either prong of Strickland.
This Court has stated that “[a]s long as the trial court’s findings are supported by competent substantial evidence, ‘this Court will not substitute 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.’” Blanco v. State,
The record reveals competent, substantial evidence to support the postconviction court’s finding that defense counsеl’s decision not to present Dr. Rudin during the guilt phase was a reasonable trial strategy. At Knight’s evidentiary hearing, trial counsel testified that he made a strategic decision before trial not tó call Dr. Rudin as a witness because her original report supported the State’s conclusions. Trial counsel also stated that prior to trial, he asked Dr. Rudin whether she would call herself as a witness, and she said that she would not because she could not help Knight’s case. Moreover, her report ultimately 'concluded that her findings were consistent with Noppinger’s conclusions - and ' that McElfresh’s unreliable testimony was “inconsequential.” . .
Knight also cannot establish that trial counsel’s actions or omissions were prejudicial to him. To establish prejudice, Knight must establish that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
At trial, the Stаte presented evidence that Knight lived with the victims, he had ongoing disagreements with one of the victims, and he was at the apartment on the night of the murders. Knight,
2. ' Failure to Request a Frye Hearing Regarding DNA Evidence
Knight asserts that trial counsel was ineffective for failing to request a hearing pursuant to Frye v. United States,
As a general rule, a Frye hearing is “utilized in Florida only when the science at issue is new or novel.” Overton v. State,
To show deficiency, Knight must specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonable, competent performance under prevailing norms. Bolin v. State,
Noppinger and trial counsel both testified at the evidentiary hearing that the “Preliminary Chain Reaction and Short Tandem Repeats” techniques employed in this case were generally accepted by the community at the time of Knight’s trial. Second, even though Dr. Rudin pointed out the possible flaws in Noppinger’s labeling procedures, her report and testimony at the evidentiary hearing supported Noppinger’s scientific conclusions. It seems that although the labeling procedures were different, Dr. Rudin was unable to actually find any errors, and counsel would not have had a reason to challenge the DNA methodology to exclude the evidence. Counsel cannot be deficient for failing to make an ultimately fruitless request. Likewise, because a Frye hearing would not have resulted in the exclusion of the State’s DNA evidence, the absence of a Frye hearing did not prejudice Knight.
3. Failure to Locate Evidence
Third, Knight alleges that trial counsel was ineffective for failing to locate a memorandum prepared by Kevin Nop-pinger, in which Noppinger requested a voluntary demotion. The entirety of Knight’s argument in his initial brief is comprised of two sentences that do not cite any case law or refer to any facts that could have supported his argument that trial counsel was ineffective for failing to locate Noppinger’s memorandum. Accordingly, we conclude that this claim is insufficiently pled. See Bryant v. State,
B. Ineffective Assistance of Counsel During Penalty Phase.
Knight also asserts that trial counsel was deficient during the penalty phase of trial. First, Knight argues that trial counsel was ineffective for failing to properly investigate and introduce mitigating evidence regarding child abuse that Knight allegedly endured. Second, Knight argues that counsel was ineffective for failing to ensure that he was examined by a competent mental health expert. We disagree with both arguments.'
The postconviction court found that Knight was unsuccessful on both claims because he did not present any evidence during the hearing regarding a history of abuse or his alleged brain injury. Further, the court reasoned that counsel had presented all social and personal history known to him in the form of several witnesses who knew Knight as a child, a witness who knew of his seizures and blackouts, and testimony from the defense investigator who interviewed many members of Knight’s adoptive family. For the reasons below, we conclude that there is competent, substantial evidence supporting the postconvietion court’s order denying Knight’s claims,
With respect, to the investigation and presentation of mitigation evidence, the Supreme Court of the United States observed that Strickland does not require “counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present [mitigating] evidence at sentencing in every case.” Wiggins v. Smith,
1. Sexual Abuse
The State argues that Knight did not pursue this claim at the evidentiary hearing, but the record reflects that Knight did argue this claim and introduced the investigator’s report as evidence. Thus, we conclude that Knight did not waive his argument that counsel was ineffective for failing to investigate his background and possible sexual abuse.
This Court has repeatedly considered claims of ineffective assistance of counsel during the penalty phase of a trial. See Brooks v. State,
Here, we conclude that the postconviction court’s denial of Knight’s claim is supported by competent, substantial evidence. At trial, counsel presented testimony from Knight’s teachers, who testified regarding Knight’s family, Knight’s personality, and his bad temper when provoked. Knight,
2. Mental Health Mitigation
Dr. Mittenberg was the defense’s mental health expert. He performed tests on Knight and determined that Knight suffered from a brain abnormality. This determination was further supported by Knight’s PET scans. Knight’s trial counsel
Knight asserts that trial counsel failed to ensure that Knight had the assistance of a competent mental health expert. Consequently, he argues that had the jury been offered mitigating evidence that Knight suffered from a mental health problem, Knight’s sentence would have been different. For the reasons below, we conclude that there is competent, substantial evidence to support the postconviction court’s finding that Knight failed to show that counsel’s performance was deficient and prejudicial.
In Hoskins v. State,
The postconviction court did not err in finding that Knight failed to prove either prong of Strickland. Trial counsel was not deficient, as he provided Knight with a mental health expert, Dr. Mittenberg, and when that expert was unable to testify, trial counsel sought to find another expert to replicate Dr. Mittenberg’s findings. Trial counsel reached out to another doctor, Dr. Arias, to perform the same tests on Knight. Trial counsel testified at the evi-dentiary hearing that Dr. Arias could not replicate Dr. Mittenberg’s results and, in fact, found the opposite. Trial counsel was unable to find another doctor to administer more testing within the two-month period. It is likely that Dr. Arias was unable to replicate Dr. Mittenbеrg’s results because Dr. Mittenberg used an illegal method of scoring Knight’s MMPI exam. Furthermore, Knight is unable to show prejudice. Accordingly, we affirm the postconviction court’s findings.
Knight’s next argument is that trial counsel was deficient because he failed to introduce at trial Dr. Mittenberg’s deposition, which would have shown that
Last, Knight argues that trial counsel was deficient because he did not present Dr. Mittenberg’s report to the jury. Knight argues that if the jury had heard Dr. Mittenberg’s results and opinions, the jury would have recommended a different sentence. At the evidеntiary hearing, trial counsel explained that he did not want to introduce Dr. Mittenberg’s report because it would have prompted the State to introduce its expert and call into question Dr. Mittenberg’s reliability. He further explained that had Dr. Mitten-berg been available to testify," he would have called him as a witness, despite the fact that the State would have called its own expert, because trial counsel believed that" Dr. Mittenberg’s analysis would Seem sounder if he were on the stand. Without him, trial counsel felt that using the report would do more harm than good. We conclude that trial counsel employed a rear sonable strategy that does not constitute deficient performance under Strickland. Further, Knight was not prejudiced because the jury still heard evidence of Knight’s alleged brain abnormality, in the form of witness testimony.
C. Brady Violations
Next, Knight asserts that the State withheld (1) evidence regarding a memorandum by Kevin Noppinger requesting a voluntary demotion, (2) information regarding proof that newspapers existed in the cell area shared by Knight" and Steven Whitsett, who testified against Knight; and (3) information regarding a false confession by Knight to another inmate, George Greaves. For the reasons below, we conclude that none of Knight’s claims require relief.
To successfully raise a Brady violation claim, Brady v. Maryland,
1. Noppinger Memorandum
Kevin Noppinger worked at the Broward County Sheriffs Office and con
Knight argues that this memorandum should have been turned over to the defense because it would have been useful to impeach Noppinger and ultimately would have lessened the confidence the jury had in the DNA testing procedures. Conversely, the State argues that because Knight’s case was not an unsolved case requiring use of the NDIS, Noppinger’s memorandum was not useful,to Knight, let alone prejudicial to the outcome at ■ trial. We affirm the postconviction court’s denial of this claim because there is competent, substantial evidence supporting the conclusion that a Brady violation did not occur.
Knight is unable to prove the first prong of Brady. The Noppinger memorandum would not have been useful to Knight because it was unrelated to Knight’s case. Although the memorandum was produced prior to Noppinger’s testimony at trial, the memorandum cites to management disagreements as the cause for his request to be demoted. Notably, the State points out that Knight’s case is not a cold case that requires the use of the national DNA-database, and as such, Noppinger’s memorandum is entirely unrelated to Knight’s case.
Next, Knight has to demonstrate that the postconviction court erred in finding that the State did not willfully or inadvertently withhold evidence. “To comply with Brady, the individual prosecutor has a duty to learn of any favorable evidence and to disclose that evidence to the defense.” Mordenti v. State,
However, even if Knight satisfied prongs one and two of Brady, he is unable to show prejudice. The test for prejudice or materiality under Brady, is whether, had' the evidence been disclosed to the defense, there is a reasonable probability of a different result. Guzman,
2. 'Stephen Whitsett
Stephen Whitsett and Knight were housed together from June 29 to July 22, 2000, at the. Broward County Jail. Knight,
3. George Greaves’ False Statements
After Knight’s trial, Knight made a supplemental request for a police report made by Detective Doug Williams. Knight’s request was granted, and the Coral Springs Police Department turned over the report of Detective Williams’ interview of George Greaves, an inmate at Broward County Jail who contacted crime stoppers stating that he had information regarding Knight’s case. Ultimately, it became apparent that Greaves was gleaning information from media reports. Knight asserts that the State’s withholding of the report was a Brady violation, and he should have been granted a new trial. Knight argues that if defense counsel had known about the false statements made on the basis of accessible media reports, counsel could have discredited Whitsett’s testimony. After the evidentiary hearing, the postconviction court found that Knight failed to meet the Brady standards. We conclude that there is competent, substantial evidence that the postconviction court did not err in its findings.
Knight asserts that the police report would have been favorable to him because it would have helped to discredit Whii> sett’s testimony against Knight. However, Knight fails to show how the fact that Greaves had access to media reports that led to false statements would have discredited the detail-intensive testimony that Whitsett provided. Further, from the record it is unclear whether the prosecutor knew or should have known that the police ■report existed, and Knight fails to discuss this point.
Moreover, Knight is unable to show prejudice because the State introduced other evidence of Knight’s guilt, including the victim’s blood on the clothes Knight was wearing the night of the crime and that Knight was in the apartment that evening.
D. Constitutionality of Rule Regulating the Florida Bar 4-3.5(d)(4)
Knight challenges the constitutionality of rule 4—3.5(d)(4) of the Rules Regulating the Florida Bar. We reject this claim because it is procedurally barred.
The Court has held that claims challenging the constitutionality of rule 4-3.5(d)(4) must be raised on direct appeal. See Deparvine v. State,
E. Constitutionality of Lethal Injection Protocol
Knight argues that Florida’s administration of the death penalty by lethal injection constitutes cruel and unusual punishment, in violation of the Eight Amendment. We conclude that Knight’s claim is unsuccessful because this Court has repeatedly denied such claims. See, e.g., Banks v. State,
III. HABEAS CORPUS CLAIMS
A. Ineffective Assistance of Counsel
Claims of ineffective assistance of appellate counsel are appropriately raised in a petition of writ of habeas corpus. See Jackson v. State,
The alleged error must first be of “such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance” and, second, the deficiency in performance must have “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Id. (quoting Pope v. Wainwright, 496 So.2d 798 , 800 (Fla. 1986)). Further, “appellate counsel will not be deеmed ineffective for failing to raise a.claim that is without merit.” Id. (citing Freeman v. State,761 So.2d 1055 , 1070 (Fla. 2000)).
Hayward v. State,
1. Admission of Photograph at Trial
At trial, Knight’s trial' counsel challenged the admission of a photograph as duplicative of other photographs depicting similar images. We have held that a challenge to a photograph is not preserved for appeal when trial counsel does not state specific grounds for an objection. In Doorbal v. State,
2.' Denial of Motion for Mistrial
Knight argues that appellate counsel was ineffective for failing to appeal the trial court’s denial of a mistrial following Officer Moony’s testimony concerning Knight⅛ prearrest statements. When reviewing claims of ineffective assistance of appellate counsel,
“[t]he criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel.” Wilson v. Wainwright,474 So.2d 1162 , 1163 (Fla. 1985). Thus, the Court must consider
first, whether the allege^ omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Teffeteller v. Dugger,734 So.2d 1009 , 1027 (Fla. 1999) (quoting Suarez v. Dugger,527 So.2d 190 , 192-93 (Fla. 1988)).
Mungin,
Knight asserts that Officer Mocny testified on the topic, of Knight’s right to remain silent,.thus violating Knight’s constitutional .rights. We reject Knight’s argument because Officer Mocny’s testimony of her conversation with Knight did not violate Knight’s constitutional rights. Accordingly, appellate counsel was not ineffective for raising a meritless claim.
This Court has repeatedly recognized the concept that courts must prohibit all evidence or argument that may be interpreted by the jury as a comment on the defendant’s right to remain silent. Brown v. State,
Based on its interpretation of article I, section 9 of the Florida Constitution, the court in Hoggins held that a prosecutor may not comment upon or attempt to impeach a defendant with his or herpost-arrest, pre-Miranda[ 2 ] or post-Miranda silence. This, prohibition is premised upon the generally, accepted principle that a defendant does not waive his or her right to remain silent at the time of arrest by testifying in his or her own defense at trial. The same test applies regardless of whether the evidence of post-arrest silence is admitted in the state’s case in chief or during impeachment' of the defendant: “If the comment is fairly susceptible of being construed by the jury as a comment on the defendant’s exercise of his or her right to remain silent, it violates the defendant’s right to silence.” [State v.] Hoggins, 718 So.2d [761] at 769 [ (Fla. 1998) ].
Robbins v. State,
The record shows that Moony’s testimony referenced Knight’s statements before he was arrested regarding his whereabouts on the night of the crime and whether he had a key to Stephens’ apartment. Mocny’s testimony did not comment on Knight’s silence. Because this claim would have been meritless on direct appeal, we conclude that Knight’s appellate counsel was not ineffective.
3. Hurst v. Florida
In two rounds of supplemental briefs, Knight argues that he was unconstitutionally sentenced to death because his penalty phase jury did not find all of the facts necessary to impose the death penalty. We agree. See Hurst v. Florida, — U.S. —,
Knight also asks that' we vacate his death sentence and sentence him to life imprisonment pursuant to section 775.082(2), Florida Statutes, or alternatively, that 'we remand for a new penalty phase proceeding. We decline to do either. First, we recently held that section 775.082(2), Florida Statutes, does not mandate the imposition of a life sеntence in the event of a Hurst v. Florida violation. See Hurst v. State,
In Davis, this Court held that, the Hurst v. Florida error was harmless: “With regard to. Davis’s .sentences, we emphasize the unanimous jury recommendations of death. These recommendations allow us to conclude beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravators .to outweigh the mitigating factors.” Id. at 174 (emphasis omitted). Knight’s jury likewise recommended a death sentence by a unanimous twelve-to-zero vote. Knight’s jury received substantially the same standard jury instruction as we cited in Davis, ensuring that the jury “determined whether sufficient aggravators existed and whéther the aggravation outweighed the mitigation before it .., recommend[ed] a sentence of death.” Id. (citing Fla. Std. Jury Instr. (Crim.) 7.11). As with the jury in Davis,
To be sure, Knight’s jury and the Davis jury were not identically instructed. For instance, the Davis jury “was instructed that it was not required to recommend death even if the aggravators outweighed the mitigators,” while Knight’s jury was not. Id (citing Fla. Std. Jury Instr. (Crim.) 7.11). Nonetheless, we believe that Knight’s jury received substantially the same critical instructions as Davis’s jury, allowing us to conclude beyond a reas'onable doubt that here, as in Davis, “the jury unanimously made the requisite factual findings to impose death before it issued the unanimous recommendations.” Id.
Finally, as in Davis, “the egregious facts of this case” provide “[further support[] [for] our conclusion that any Hurst v. Florida error here was harmless.” Id. at 175. In a violent and bloody struggle, Knight murdered a mother and her four-year-old daughter in an argument about whether Knight had to move out of the mother’s apartment. Knight strangled and repeatedly stabbed the mother with multiple knives in her bedroom in the middle of the night while the daughter was present. The mother could not yell for help because Knight’s attack had destroyed her larynx. The mother suffered, still conscious, through the attack for at least ten minutes following the fatal wounds. She tried and failed to escape. Knight also attempted to strangle and repeatedly stabbed the daughter. Knight’s stabbings caused the daughter’s lungs to fill with, blood, and she essentially drowned in her own blood. Both victims died gruesome, painful-deaths.
The trial' court found two statutory aggravating circumstances for the murder of [the mother]: (1) a previous conviction of another violent capital felony, and (2) HAC. The court also found three statutory aggravating circumstances for the murder of [the daughter]: (1) a previous conviction of another violent capital felony, (2) HAC, and (3) the victim was under twelve years of age.
Knight,
What we said in Davis is equally true here:
Here, the jury unanimously found all of the necessary facts for the imposition of death sentences by virtue, of its unanimous recommendations. In fact, although the jury was informed that it was not required to recommend. death unanimоusly,- and despite the mitigation presented, the jury still unanimously recommended that [the defendant] be sentenced to death .... The unanimous recommendations here are precisely what we determined in Hurst[v. State] to .be constitutionally necessary to impose a sentence of death.
Davis,
Based on the foregoing analysis, we affirm the circuit court’s denial of postcon-viction relief. We also deny Knight’s petition for a writ of habeas corpus.
It is so ordered.
Notes
. Frye v. United States,
. Miranda v. Arizona,
Concurrence Opinion
concurring in part and dissenting in part.
While I concur in most respects with the majority’s decision, I cannot agree with the majority’s analysis that the Hurst v. Florida, — U.S. —,
In Hurst v. State,
The majority’s reweighing of the evidence—particularly the gruesome facts of the victims’ deaths—to support its conclusion is not an appropriate harmless error review. The harmless error review is not a sufficiency of the evidence test, and the majority’s analysis should instead focus on the effect of the error on the trier of fact. State v. DiGuilio,
Because the harmless error review is neither a sufficiency of the evidenсe review nor “a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence,” DiGuilio,
As I have previously explained, the Legislature has decided that the appropriate remedy “[i]n the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court” is for “the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment.” § 775.082(2), Fla. Stat.; see also Hurst v. State,
The majority disagrees. See majority op. at 682 (citing Hurst v. State,
Knight’s death sentence is unconstitutional. That constitutional violation is not harmless beyond a reasonable doubt. The remedy for that violation is a sentence of life imprisonment.. To the extent that the majority finds harmless error and declines to order a sentence of life imprisonment, I respectfully dissent.
Concurrence Opinion
concurring in part and dissenting in part.
I concur with my colleagues that Knight is not entitled to relief on the majority of his claims, however, I cannot agree with the majority’s conclusion that the Hurst error in this case is harmless beyond a reasonable doubt. Because I would find that the Hurst error in this case requires a new penalty phase, I dissent.
I agree with Senior Justice Perry’s statement that “[t]he majority’s reweighing of the evidence ... to support its conclusion” contravenes our decision in Hurst v. State,
Here, although the jury unanimously recommended a death sentence, we cannot know that the jury found each aggravating factor unanimously. Because one of the aggravators found by the trial court for each murder in this case—that the murder was especially heinous, atrocious or cruel—requires specific factual findings, Hurst requires that the jury, not the trial judge, make that determination. The jury made no such determination in Knight’s case. Accordingly, I would vacate Knight’s death sentence and remand for resentencing. See Hurst,
PERRY, Senior Justice, concurs.