PER CURIAM.
Jerone Hunter appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. For the reasons that follow, we affirm the denial of his postconviction motion and deny his habeas petition.
On direct appeal, this Court described the facts as follows:
Hunter v. State, 8 So.3d 1052, 1057-59 (Fla.2008) (footnotes omitted).
Following the penalty phase, "[t]he jury recommended a death sentence for the murder of Gleason by a vote of ten to two, a death sentence for the murder of Gonzalez by a vote of nine to three, a death sentence for the murder of Nathan by a vote of ten to two, a death sentence for the murder of Vega by a vote of nine to three, and life sentences for the murders of Belanger and Ayo-Roman." Id. at 1060-61. The trial court followed the jury's recommendations, finding that the aggravating circumstances
On direct appeal, this Court affirmed Hunter's convictions and sentences.
On April 14, 2010, Hunter filed a motion for postconviction relief. After summarily denying several claims and after holding an evidentiary hearing on Hunter's claims alleging ineffective assistance of trial counsel during the penalty phase and guilt phase, the postconviction court denied relief. Hunter now appeals the denial of his postconviction motion. He also petitions this Court for a writ of habeas corpus.
First, Hunter argues that his trial counsel provided ineffective assistance during the penalty phase for: (1) failing to present further nonstatutory mitigation evidence; (2) failing to develop and present evidence of Hunter's future conduct in prison as mitigation; and (3) his statement during closing arguments that a majority vote was required to impose a death sentence. Because Hunter has failed to establish the requirements necessary for relief, we affirm the trial court's denial of relief.
Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court explained that two requirements must be met for ineffective assistance of counsel claims to be successful:
Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).
Regarding the deficiency prong of Strickland, there is a strong presumption that trial counsel's performance was not ineffective. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover, "[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." Id. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged
Regarding the prejudice prong of Strickland, the defendant "must show that but for his counsel's deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider `the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the [postconviction] proceeding' — and `reweig[h] 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)); see also Dennis v. State, 109 So.3d 680, 690 (Fla.2012) ("[T]he defendant must show that there is a reasonable probability that, `absent the [deficient performance], the factfinder would have [had] a reasonable doubt respecting guilt.'") (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). "A reasonable probability is a `probability sufficient to undermine confidence in the outcome.'" Dennis, 109 So.3d at 690 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court's factual findings that are supported by competent, substantial evidence, but reviewing the trial court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).
Hunter argues that trial counsel were ineffective for failing to present further nonstatutory mitigation evidence at the penalty phase. Specifically, Hunter asserts that trial counsel should have introduced numerous aspects of Hunter's social history, including Hunter's stressful home environment, his family history of mental illness, and his being kicked out of his family's house prior to the offenses. We affirm the denial of this claim.
First, Hunter has failed to demonstrate deficiency. At the postconviction evidentiary hearing, trial counsel testified that in their case preparation they focused on Hunter's mental health. Trial counsel explained that they met with Hunter's family members a number of times, but they were uncooperative and not willing to admit the family history of mental illness. Additionally, trial counsel testified that they retained an investigator, Odalys Rojas, to interview Hunter's family members and others and summarize the findings. Trial counsel involved Ms. Rojas in several meetings in efforts to obtain a comprehensive social history on Hunter but did not call her to testify at trial, noting that her testimony may have opened the door for negative testimony about Hunter's aggression. See Everett v. State, 54 So.3d 464, 474 (Fla.2010) ("This Court has also consistently held that a trial counsel's decision to not call certain witnesses to testify at trial can be reasonable trial strategy."). Instead, during the penalty phase, trial counsel called three mental health experts, including a psychiatrist, neuropsychologist, and psychologist, to testify to Hunter's mental health and Hunter's family history of mental illness. And "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). Therefore, Hunter has failed to demonstrate deficiency.
Additionally, Hunter has not demonstrated prejudice. During the postconviction
Accordingly, we affirm the trial court's denial of relief.
Hunter also argues that trial counsel were ineffective for failing to develop and present evidence of Hunter's future conduct in prison as mitigation at the penalty phase. Specifically, Hunter claims that trial counsel should have introduced evidence that Hunter is not a psychopath and conclusions of psychological measures that show Hunter's risk of future violence is lower than the base rate. We affirm the denial of this claim.
First, Hunter has failed to demonstrate deficiency. At the evidentiary hearing, trial counsel testified that their strategy regarding mitigation was to focus on Hunter's mental health issues. And evidence about Hunter's future conduct in prison, including his potential for rehabilitation and nonviolent existence in prison, would have been contradictory to trial counsel's mitigation theory. For example, at the penalty phase, Hunter presented family members and experts who testified to Hunter's mental health issues, including schizophrenia and a profile consistent with a person with a psychotic mental illness. See Hunter, 8 So.3d at 1060. In contrast, during the postconviction proceeding, Dr. Brown and Dr. McClaren agreed with the conclusion that Hunter is not a psychopath. Therefore, because it appeared to contradict the mental health testimony, trial counsel's decision not to present evidence
Additionally, Hunter has not demonstrated prejudice. While Hunter presented evidence of future conduct in prison in the postconviction proceeding, evidence was also presented that the findings were based on speculation. Moreover, even considering future conduct in prison with the other mitigation evidence presented during the postconviction proceeding, as well as the mitigation presented at the penalty phase, the mitigating circumstances would not outweigh the five aggravating circumstances presented in this case, namely conviction of a capital felony, during the course of a burglary, for the purpose of avoiding or preventing a lawful arrest, HAC, and CCP. See Tanzi v. State, 94 So.3d 482, 491 (Fla.2012) ("The mitigating evidence adduced at the evidentiary hearing combined with the mitigating evidence presented at the penalty phase would not outweigh the evidence in aggravation as this case included six aggravating circumstances given great and utmost weight."). Therefore, there is not a reasonable probability that investigating and presenting evidence of Hunter's future conduct in prison would have led to a different result. In other words, our confidence in the outcome is not undermined.
Accordingly, we affirm the trial court's denial of relief.
Further, Hunter argues that trial counsel was ineffective for his statement during closing arguments that a majority vote was required to impose a death sentence. However, we affirm the denial of this claim.
Even assuming that trial counsel was deficient for his statement during closing arguments, Hunter has failed to demonstrate prejudice. In the jury instructions, the trial court correctly advised the jury of the vote required for the advisory sentence. Notably, the votes for each of the four victims to impose the death penalty were beyond the majority vote stated. Therefore, there is not a reasonable probability that, absent trial counsel's statement during closing arguments, that there would have been a different result. In other words, confidence in the outcome is not undermined.
Accordingly, we affirm the trial court's denial of Hunter's claim that trial counsel were ineffective during the penalty phase.
Next, Hunter argues that trial counsel were ineffective during the guilt phase for failing to properly preserve his objection and move for a mistrial regarding Robert Anthony Cannon's testimony. However, Hunter did not demonstrate that he was prejudiced by trial counsel's alleged error.
Cannon, the fourth perpetrator, negotiated a plea deal in exchange for agreeing to testify at the joint trial of the other three defendants, including Hunter. On direct appeal, this Court denied Hunter's claim "that the trial court erred in denying his motion for mistrial as his rights under the Sixth Amendment to confrontation and cross-examination were violated when the State's witness, Cannon, the fourth perpetrator, refused to be cross-examined." Hunter, 8 So.3d at 1065.
Hunter has not demonstrated that Cannon's testimony was so harmful as to merit a mistrial. In fact, Cannon's testimony and refusal to answer questions did not vitiate Hunter's trial. See England v. State, 940 So.2d 389, 401-02 (Fla.2006) ("A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial."). Cannon's comments regarding Hunter were brief and unelaborated. Specifically, on direct examination, Cannon's testimony regarding Hunter was the following: (1) Cannon knew Hunter for a couple days prior to the crimes, and (2) Victorino, Hunter, Salas, and Cannon entered the home armed with baseball bats. Therefore, similar to what we concluded in Victorino, Cannon's testimony mentioning Hunter did not vitiate Hunter's trial. Victorino, 127 So.3d at 489 ("[O]nly a few lines of testimony were harmful to Victorino ... As a result, Cannon's testimony was not essential to the State's case against Victorino.").
Further, the incriminating points made in Cannon's testimony regarding Hunter were established by other evidence. Specifically, in his statement to police, Hunter stated that on the night of the offenses, he went to the Telford home to get his belongings, and he had an aluminum baseball bat with him. Hunter, 8 So.3d at 1058. Hunter further stated that he hit victims Gleason and Gonzalez several times with the bat. Id. Additionally, "Salas testified about Hunter's involvement in the murders," that "Hunter ran into the house after Victorino[, and] Salas ran in next and saw Hunter swing his bat." Id. at 1059. Cannon's testimony was cumulative and merely "lent further support to ... fact[s] already known to the jury." Cherry v. State, 781 So.2d 1040, 1051 (Fla.2000). Therefore, Hunter was not prejudiced by trial counsel's error. See Victorino, 127 So.3d at 490 ("[T]he incriminating portions of Cannon's testimony were substantially cumulative to other evidence presented at trial. A defendant is not prejudiced by the improper admission of evidence if the evidence is merely cumulative.").
Accordingly, this Court affirms the trial court's denial of Hunter's claim that trial counsel were ineffective during the guilt phase.
Hunter also raises four constitutional challenges, all of which do not entitle him to relief: (1) rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar is unconstitutional; (2) the trial court unconstitutionally instructed the jury that its role was advisory; (3) Florida's capital sentencing scheme violates due process and constitutes cruel and unusual punishment on its face and as applied to him because Florida's death penalty statute does not ensure that defendants are not sentenced to death in an arbitrary and capricious manner; and (4) his sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). These claims are procedurally barred because they should have been or were raised on direct appeal.
Hunter also argues that he was denied a fundamentally fair trial based on cumulative error. "However, where the individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error also necessarily fails." Israel v. State, 985 So.2d 510, 520 (Fla.2008) (quoting Parker v. State, 904 So.2d 370, 380 (Fla.2005)). As discussed in the analysis of the individual issues above, the alleged errors are either procedurally barred or without merit. Therefore, the cumulative error claim is similarly without merit, and we affirm the denial of this claim.
In his habeas petition, Hunter contends that Florida's death penalty statute violates the Eighth Amendment's evolving standards of decency because most states require a unanimous jury verdict to recommend a death sentence. However, this Court recently reviewed and rejected this same argument in Kimbrough v. State, 125 So.3d 752, 753 (Fla.2013). As we explained in Kimbrough, Hunter's claim "is subject to our general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional." Kimbrough, 125 So.3d at 754 (quoting Mann v. State, 112 So.3d 1158, 1162 (Fla.2013)); see also Parker, 904 So.2d at 383 ("This Court has repeatedly held that it is not unconstitutional for a jury to recommend death on a simple majority vote."). Accordingly, we deny relief.
For the forgoing reasons, we affirm the denial of Hunter's postconviction motion and deny his habeas petition.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.
