PER CURIAM.
The State appeals, and Gerald Delane Murray cross-appeals, the partial grant and partial denial of Murray's initial postconviction motion filed under Florida Rule of Criminal Procedure 3.851. Murray also appeals the denial of his successive postconviction motion and petitions this Court for a writ of habeas corpus.
In 2009, this Court affirmed Murray's conviction for first-degree murder and sentence of death after four trials and three convictions for the murder of 59-year-old Alice Vest in 1990. Murray v. State, 3 So.3d 1108, 1112 (Fla. 2009). On direct appeal, this Court described the facts as follows:
Murray, 3 So.3d at 1112-14 (footnotes omitted).
This Court affirmed Murray's convictions and sentence on direct appeal. Id. at 1126.
Id. at 1125. Murray petitioned the United States Supreme Court for certiorari, which was denied. Murray v. Florida, 558 U.S. 949, 130 S.Ct. 396, 175 L.Ed.2d 273 (2009).
Thereafter, Murray filed a motion for postconviction relief that was amended four times. After holding two evidentiary hearings, the postconviction court granted a new penalty phase pursuant to Hurst,
The State appeals the grant of Hurst relief, and Murray cross-appeals the denial of his other initial postconviction claims, and the summary denial of his successive postconviction motion. Murray also petitions this Court for a writ of habeas corpus.
The State argues that the trial court erred by granting Murray a new penalty phase pursuant to Hurst. However, because Murray's jury recommended the death penalty by a vote of eleven to one, and because this Court has consistently and repeatedly granted capital defendants new penalty phases post-Hurst where there were nonunanimous jury recommendations in cases that became final after Ring,
Murray argues that the postconviction court erred when it denied his newly discovered evidence claim based on evidence that the State's witness, Anthony Smith, was coerced to testify against Murray and believed the State would reduce Smith's sentence in exchange for testifying. Murray bases this claim on statements Smith alleged in Smith's own 3.850 motion and a letter Smith wrote to the prosecutor on January 26, 2006. Murray asserts that it is probable that a jury on retrial hearing the impeachment evidence against Smith
To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. Jones v. State, 709 So.2d 512, 521 (Fla. 1998). First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known it though due diligence. Id. "Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Id.
Newly discovered evidence satisfies the second prong of the Jones test if it "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla. 1996)). In determining whether the evidence compels a new trial, the postconviction court must "consider all newly discovered evidence which would be admissible" and must "evaluate the `weight of both the newly discovered evidence and the evidence which was introduced at the trial.'" Id. at 521 (quoting Jones v. State, 591 So.2d 911, 916 (Fla. 1991)). This determination includes
Id. (citations omitted). "When a claim of newly discovered evidence is based upon the recantation of testimony by a witness for the prosecution, the second prong of Jones II [709 So.2d at 521] is met only where the defendant first establishes that the recanted testimony is truthful." Spann v. State, 91 So.3d 812, 822 (Fla. 2012).
This Court "review[s] the trial court's findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence." Green v. State, 975 So.2d 1090, 1100 (Fla. 2008). However, we "review the trial court's application of the law to the facts de novo." Id.
Although Smith's 3.850 motion and letters would constitute a recantation of testimony if the allegations contained in them were taken as true, Murray's claim of newly discovered evidence is not based upon the recantation of testimony, but on the impeachment value of Smith's untruthful pleadings. When confronted at Murray's postconviction evidentiary hearing with his 3.850 motion and letter to the prosecutor, Smith admitted that those were not true but instead a ploy to attempt to get a sentence reduction. Smith repeatedly testified at Murray's second evidentiary hearing that Smith was truthful in his testimony at Murray's trial. The postconviction court found that "Smith was credible when he made clear that his 3.850 claims were false and that the State did not offer him a reduced sentence if he testified against" Murray in his testimony at Murray's postconviction evidentiary hearing. "[I]n determining whether the record supports the trial court's finding that the recantation was not credible, we give great deference to the trial judge's observations ...." Spann, 91 So.3d at 825. The veracity of Smith's evidentiary hearing testimony is further corroborated by the fact that Smith testified consistently through four trials about Murray's admission to him after they escaped jail together.
Additionally, Smith was impeached at Murray's fourth trial in several respects. First, Smith was impeached with evidence
Accordingly, it is not probable that the additional impeachment evidence would produce an acquittal on retrial. Therefore, we affirm the postconviction court's denial of this claim.
Murray argues that his counsel was ineffective for failing to present an expert microscopist in rebuttal to the State's hair expert. The postconviction court found that counsel was not deficient because he consulted with a hair and fiber expert and made a strategic decision not to call him as a defense expert. We affirm the denial of relief.
Following the United States Supreme Court's decision in Strickland,
Bolin v. State, 41 So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)).
Regarding Strickland's deficiency prong, 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 bears the burden to "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 S.Ct. 83 (1955)). Regarding the prejudice prong, "Strickland requires defendants to show `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [A] `reasonable probability' is a `probability sufficient to undermine confidence in the outcome.'" Henry v. State, 948 So.2d 609, 621 (Fla. 2006) (citations omitted) (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 circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004). Moreover, "when a defendant fails to make a showing as to one
Here, Murray did not demonstrate deficiency. At both postconviction evidentiary hearings, Murray's counsel testified that he did not call a hair and fiber expert to testify because the hair at issue had been consumed by DNA testing. Thus, counsel made the strategic decision to use information gained from discussion with the expert to call into question the testing methods utilized by Joseph DiZinno, the State's expert.
Additionally, Murray did not prove prejudice. Trial counsel effectively utilized the information he gained from talking to an independent expert to challenge DiZinno's testing and to elicit through cross-examination that there was no proficiency testing, no written protocols, and no database of hair characteristic when the hair analysis was conducted. Therefore, Murray has not shown a reasonable probability that the sentence imposed would have been different had defense counsel presented its own expert witness. In other words, our confidence is not undermined.
Accordingly, we affirm the postconviction court's denial of relief.
Next, Murray argues that the postconviction court erred in denying his newly discovered evidence claim regarding Joseph DiZinno's trial testimony. Specifically, Murray claims that newly discovered evidence — a 2013 review by the Department of Justice (DOJ) of DiZinno's lab work and testimony in Murray's trial — establishes that DiZinno's trial testimony regarding the hair evidence is false and misleading. However, we affirm the denial of this claim.
A defendant must satisfy a two-prong test in order to obtain relief on the basis of newly discovered evidence:
Marek v. State, 14 So.3d 985, 990 (Fla. 2009). "Newly discovered evidence satisfies the second prong of this test if it `weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.'" Henry v. State, 125 So.3d 745, 750 (Fla. 2013) (quoting Heath v. State, 3 So.3d 1017, 1023-24 (Fla. 2009)).
Murray has met the first prong of the newly discovered evidence test because the 2013 DOJ review could not have been previously discovered by Murray or trial counsel by due diligence because it did not exist at the time of trial.
However, in Duckett v. State, 231 So.3d 393, 396-401 (Fla. 2017), this Court rejected claims of newly discovered evidence, Brady,
Similar to Duckett, Murray has failed to meet the second prong of the newly discovered evidence test because Murray has failed to demonstrate that the alleged newly discovered evidence, the 2013 DOJ review, would probably produce an acquittal on retrial. First, Murray has not established that DiZinno's trial testimony, when considered in its full context, was false. Although the 2013 DOJ review concluded that DiZinno's lab reports or trial testimony contained some erroneous and invalid statements that exceeded the limits of science, the full context of DiZinno's trial testimony indicates that DiZinno used limiting language intended to limit his conclusions. This is supported by the testimony of Richard McNally, the section chief of the science and technology branch in the General Counsel's office at the FBI, who testified at Murray's postconviction evidentiary hearing that the review did not take into account the limiting language of DiZinno in context, but looked only at the individual statements. Second, DiZinno's testimony was challenged at trial. Murray's counsel extensively challenged DiZinno's credibility during cross-examination and even objected prior to his testimony as to the lack of procedures and protocols. Third, even according to Jason Beckert, who testified for Murray on the subject of microscopy at the postconviction evidentiary hearing, the field of forensic hair analysis has not been discredited and the FBI has not discontinued the use of such analysis. Beckert further testified at the postconviction hearing that the errors attributed to DiZinno were not errors at all. As explained in the letter from the FBI itself, the science underling microscopic hair comparison was not the subject of the 2013 DOJ review. Given this context, the newly discovered evidence does not give rise to a reasonable doubt as to Murray's culpability.
Accordingly, we affirm the postconviction court's denial of this claim.
Murray also argues that his trial counsel was ineffective in failing to object to hearsay testimony related to an officer's testimony identifying the jewelry as the victim's. We conclude that the postconviction court did not err in denying this claim.
First, Murray failed to demonstrate deficiency. Trial counsel testified at the postconviction evidentiary hearing that he did not object to Detective O'Steen's comment about the jewelry because he recalled that O'Steen had visibly seen a photograph of the victim wearing that particular jewelry item prior to discovering the jewelry and had made that conclusion on his own. Additionally, trial counsel testified that the issue of the jewelry being the victim's was well-settled and strategically not an issue worth fighting. This was a strategic decision. See Patrick v. State, 246 So.3d 253, 262 (Fla. 2018) ("A decision that
Second, Murray failed to demonstrate prejudice. At the postconviction evidentiary hearing, trial counsel testified that Murray's theory of the case was that Taylor was the sole perpetrator of the crime, a trial strategy established by the record. Counsel further testified that the jewelry discovered in Taylor's backyard supports this theory and that it was strategically not worth trying to fight about it because it was a well-settled issue that the jewelry was identified as being the victim's. Thus, Murray has not demonstrated a reasonable probability of a different outcome had counsel objected. In other words, our confidence is not undermined.
Accordingly, we affirm the denial of relief.
Additionally, Murray claims that trial counsel was ineffective for failing to retain an expert on shoeprint analysis to rebut the testimony of the State's expert, John Wilson. Murray alleges that a defense expert could testify that the shoeprints found in the victim's home were from one individual. We affirm the denial of this claim.
This Court has explained that it is not necessary for defense counsel to retain a defense expert "where defense counsel cross-examined the State's experts to establish the facts necessary for the defense." Belcher v. State, 961 So.2d 239, 250 (Fla. 2007). Even if "arguably trial counsel's strategy may have ultimately been unsuccessful, [the defendant] cannot now properly challenge an informed, strategic decision of counsel in the hindsight of postconviction." Dufour v. State, 905 So.2d 42, 62 (Fla. 2005). "The defendant bears the burden to `overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."'" McCoy v. State, 113 So.3d 701, 707 (Fla. 2013) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
In this case, Murray failed to demonstrate deficiency. Trial counsel testified at the postconviction evidentiary hearing that he spoke with Wilson prior to trial, and Wilson told counsel there was only one set of footprints. Thus, counsel's strategic decision to not call a shoeprint expert was reasonable given the information he had been provided by the State's expert that there was only one set of footprints. Ultimately at trial, Wilson's testimony implied that one print may have come from a different shoe. Because this testimony was different from Wilson's prior reports, counsel thoroughly cross-examined Wilson about the discrepancy dealing with the shoe impressions, specifically asking Wilson to read from his report anywhere it mentions the possibility of any shoes other than Britannia shoes. Further, trial counsel moved to strike Wilson's testimony, and that was denied. Counsel further addressed the discrepancy in Wilson's testimony in closing argument. Because trial counsel's cross-examination brought out all the material points Murray claims an expert could have presented, Murray did not demonstrate deficiency.
Second, Murray failed to demonstrate prejudice. Wilson explained at trial that he could not say for sure that the unidentified print came from a different shoe. Further, Wilson testified that there was no way he could testify as to how many people were inside the victim's house at the time of the victim's murder. Murray's argument to this Court that "no expert has ever testified that there was more than one type of shoeprint found at the
Accordingly, we affirm the denial of this claim.
Murray further contends that the postconviction court erred in denying several of his initial postconviction claims without an evidentiary hearing. Specifically, Murray claims that the postconviction court erred in summarily denying the following eight
Additionally, "because all issues which were not barred were meritless, we
In the appeal of the denial of his successive postconviction motion, Murray contends that newly discovered evidence demonstrates that Murray is innocent, entitling him to an evidentiary hearing and a new trial. This alleged newly discovered evidence is from James Dixon, a person of interest during the original homicide investigation in this case, who claims that Walter Holton committed the murder, not Murray or Taylor. The affidavit of James Dixon, taken on September 15, 2017, states the following:
We have affirmed the summary denial of a newly discovered evidence claim filed in Taylor's case based on James Dixon's affidavit. See Taylor v. State, No. SC18-520, 260 So.3d 151, 2018 WL 6695985 (Fla. Dec. 20, 2018). We do so as well here.
As this Court has explained:
Kormondy v. State, 154 So.3d 341, 351 (Fla. 2015) (quoting Walton v. State, 3 So.3d 1000, 1005 (Fla. 2009)). This "Court will uphold the summary denial of a newly-discovered-evidence claim if the motion is legally insufficient or its allegations are conclusively refuted by the record." Ventura v. State, 2 So.3d 194, 198 (Fla. 2009).
Here, the factual allegations of the newly discovered evidence claim based on James Dixon's affidavit are directly and conclusively refuted by the following portions of the record: (1) testimony from Joseph DiZinno, the expert at the FBI, matching the pubic hair recovered from Ms. Vest's body and nightgown with the microscopic characteristics as Murray's pubic hair;
Accordingly, we affirm the summary denial of Murray's successive postconviction motion.
In his petition for habeas relief, Murray alleges that appellate counsel was ineffective for failing to allege fundamental error based on the unobjected to "remaining in" language contained in the jury instruction for burglary. However, we deny relief.
The standard of review for claims of ineffective assistance of appellate counsel mirrors the Strickland standard for ineffective assistance of trial counsel. Valle v. Moore, 837 So.2d 905, 907 (Fla. 2002). In order to grant habeas relief on ineffectiveness of appellate counsel, this Court must determine
Pope v. Wainwright, 496 So.2d 798, 800 (Fla. 1986) (citing Johnson v. Wainwright, 463 So.2d 207, 209 (Fla. 1985)).
Additionally, appellate counsel cannot be deemed ineffective for failing to raise meritless issues or issues that were not properly raised in the trial court and are not fundamental error. Valle, 837 So.2d at 908. "In fact, appellate counsel is not necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivolous issue." Id. (citing Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Provenzano v. Dugger, 561 So.2d 541, 549 (Fla. 1990)). Jury instructions "are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred." State v. Delva, 575 So.2d 643, 644 (Fla. 1991).
Murray did not meet his burden of proving that appellate counsel was ineffective for not litigating this claim of instructional error on direct appeal because Murray did not demonstrate that the unobjected to "remaining in" language included in the burglary instruction was error that rises to the level of fundamental error.
This case is factually distinguishable from Floyd v. State, 850 So.2d 383 (Fla. 2002). In Floyd, this Court reversed a burglary conviction where the jury instruction included the "remained in" language. Id. at 402. The evidence in Floyd supported that the victim and the defendant knew each other, had an extended discussion on the victim's porch and in the house prior to the shooting. Id. This Court reasoned that the facts did not support a
In the present case, the record supports that Murray broke into the victim's house in order to gain entry, and not after a consensual entry. Specifically, this Court summarized that "one of her window screens was out of the window and that her screen door was propped open. Her phone lines had been cut." Murray, 3 So.3d at 1113. There is no plausible analysis under which the jury could have concluded that the defendant entered the victim's house without criminal intent and only formed criminal intent while "remaining in" the victim's house. As applied to the facts of Murray's case, the inclusion of the "remaining in" language in the burglary instruction was mere surplusage and not fundamental error. Thus, because including the "remaining in" language in the jury instruction was not fundamental error, appellate counsel cannot be deemed ineffective for not raising an unpreserved claim on appeal. See Rodriguez v. State, 919 So.2d 1252, 1281 (Fla. 2005).
Accordingly, we deny this claim.
Murray next argues that appellate counsel was ineffective for failing to raise on direct appeal a claim that the trial court abused its discretion in denying his cause challenge of juror Vaccaro. However, we disagree.
"The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984). "A trial court has great discretion when deciding whether to grant or deny a challenge for cause based on juror competency." Conde v. State, 860 So.2d 930, 939 (Fla. 2003). "This is because trial courts have a unique vantage point in their observation of jurors' voir dire responses." Id. As a result, "this Court gives deference to a trial court's determination of a prospective juror's qualifications and will not overturn that determination absent manifest error." Id.
Here, the trial court did not abuse its discretion. Although Mr. Vaccaro initially indicated that it may be true that he would be more likely to believe a police officer due to his familial relationships, upon further questioning he affirmed that he could follow the judge's instruction to evaluate witness testimony individually and not give more weight to a witness's testimony because the witness is a police officer. The trial judge noted that in observing Mr. Vaccaro, he seemed very sincere and honest in his assertion. Appellate counsel was not ineffective for failing to raise this meritless issues. See Mosley v. State, 209 So.3d 1248, 1271 (Fla. 2016).
Accordingly, we deny relief.
Murray next claims that appellate counsel was ineffective for serving as both trial counsel and counsel on direct appeal, violating Murray's rights to conflict-free counsel, due process, and equal protection. However, no relief is warranted.
"An actual conflict of interest that adversely affects counsel's performance violates the Sixth Amendment of the United States Constitution." McWatters v.
However, because ineffective assistance of counsel claims for failing to preserve issues at trial are properly raised in postconviction, there arises no potential for conflict when counsel is the same for trial and direct appeal. Additionally, "[a]ppellate counsel's failure to raise an issue which was not preserved for appellate review and which does not present a fundamental error does not amount to a serious deficiency in performance." Bertolotti v. Dugger, 514 So.2d 1095, 1097 (Fla. 1987). As a result, Murray cannot demonstrate the deficiency prong of Strickland regarding counsel's decision to represent Murray during trial and on direct appeal.
Accordingly, we deny this habeas claim.
Murray contends that appellate counsel was ineffective on direct appeal for failing to argue fundamental error and ineffective assistance of counsel on the face of the record regarding John Wilson's testimony reconciling the chain of custody of the hair on the victim's nightgown in relation to the lotion bottle. However, this habeas claim is procedurally barred.
To the extent Murray is utilizing this claim as an attempt to relitigate the admission of the hair evidence that was raised and rejected on direct appeal, it is procedurally barred. See Murray, 3 So.3d at 1115-16. Moreover, this claim is very similar to the claim of ineffective assistance of counsel raised in Murray's initial postconviction motion that was summarily denied by the postconviction court. Although claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus, Valle, 837 So.2d at 907, claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion. Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000).
Accordingly, we deny this habeas claim.
Murray also claims that appellate counsel was ineffective for failing to more directly challenge DiZinno's testimony when he gave new testimony during the fourth trial that a lab assistant named Angie Moore probably placed his initials on the hair evidence slides at the lab based on a review of his notes. DiZinno had previously testified that he thought another technician had placed his initials on the slides, but he also testified previously that he was not certain about that. Because appellate counsel raised claims related to DiZinno's testimony and the chain of custody regarding this evidence, we conclude that he was not ineffective for failing to raise such claims.
A habeas petition should not be used as a vehicle for relitigating claims that were raised and rejected by this Court in prior proceedings. See Thompson v. State, 759 So.2d 650, 657 n.6 (Fla. 2000). This Court has explained that when looking
On appeal, appellate counsel raised multiple claims of evidence tampering, and the trial court's failure to exclude some evidence. See Murray, 3 So.3d at 1115-16. This included a claim that the trial court erred by admitting the hair evidence despite indications of probable tampering. See id. Counsel specifically pointed to DiZinno's testimony and changing the name of the technician who worked for him that placed his initials on the slides. Initial Brief For Appellant at 23-26, 27-31, 47-49, Murray, 3 So.3d 1108. Therefore, because he in fact did so, appellate counsel cannot be deemed ineffective for failing to challenge the chain of custody through the change in DiZinno's testimony regarding who placed his initials on the slides.
Finally, Murray alleges that appellate counsel was ineffective for failing to raise a claim of prosecutorial misconduct based on inconsistencies in testimony of various witnesses on direct appeal. However, we deny relief.
Appellate counsel cannot be deemed ineffective for failing to raise a meritless issue. See Valle, 837 So.2d at 908. Murray has not cited one case involving prosecutorial misconduct based upon inconsistent testimony of witnesses on retrial. Cf. Ruiz v. State, 743 So.2d 1, 8-9 (Fla. 1999) ("Prosecutors Cox and Goudie attempted to tilt the playing field and obtain a conviction and death sentence in a number of improper ways: by invoking the immense power, prestige, and resources of the State (i.e., `What interest do we [prosecutors] as representatives of the citizens of this county have in convicting somebody other than the person—.'); by demeaning and ridiculing the defendant (i.e., `if that guy were Pinocchio, his nose would be so big none of us would be able to fit in this courtroom'); by characterizing the defendant as the archetypical liar and then equating truth with justice and justice with a conviction (i.e., `[t]ruth equals justice' and `justice is that you convict him'); by appealing to the jurors' raw emotions (i.e., recounting the anecdote concerning prosecutor Cox's cancer-stricken father); and by introducing improper evidence (i.e., the blown-up photo of the bloody head; testimony concerning the unrelated robbery charge; and testimony concerning the unrelated gun)."). Appellate counsel was not deficient for using the alleged inconsistencies in testimony as support for evidence tampering claims that were successful in previous direct appeals rather than as support for a novel prosecutorial misconduct claim.
Accordingly, we deny habeas relief.
For the reasons set forth above, we affirm the postconviction court's order granting Hurst relief but denying Murray's other initial postconviction motion claims. We also affirm the summary denial of Murray's successive postconviction motion and deny his habeas petition.
It is so ordered.
PARIENTE, J., concurs with an opinion.
LAWSON, J., concurs specially with an opinion.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, C.J., concurs.
PARIENTE, J., concurring.
I agree with the majority's decision affirming the postconviction court's order granting Murray a new penalty phase pursuant to Hurst
Taylor and Murray were both convicted of first-degree murder and sentenced to death for the same crime—the 1990 murder of Alice Vest. Id. at 166, at *12. Taylor's conviction and sentence of death became final in 1994. Id. at 165-66, at *11. However, as I explained in my concurring in result opinion in Taylor, Murray's conviction and sentence did not become final until 2009 because he received three retrials. Id. at 165-66, at *11. Therefore, "[e]ven though both defendants received nonunanimous recommendations for death—Taylor received a 10-2 jury recommendation for death and Murray received an 11-1 jury recommendation—Murray will receive a new penalty phase ... but Taylor will not." Id. This discrepancy between Taylor and Murray's cases illustrates how "the Court's line-drawing for the retroactivity of Hurst creates unconstitutional results for defendants." Id. at 166, at *12.
LAWSON, J., concurring specially.
I concur in that portion of the opinion affirming the postconviction court's order granting Hurst relief for the reasons explained in Okafor v. State, 225 So.3d 768, 775-76 (Fla. 2017) (Lawson, J., concurring specially), and I fully concur as to all other issues addressed in the majority opinion.
POLSTON, J., concurring in part and dissenting in part.
I concur with the majority's decision except its affirming the grant of a new penalty phase pursuant to Hurst.
CANADY, C.J., concurs.
Murray, 3 So.3d at 1114.
