author: PER CURIAM. ANSTEAD, C.J.,

text:
    Wayne TOMPKINS, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. SC01-1619.
    Supreme Court of Florida.
    Oct. 9, 2003.
    As Revised on Denial of Rehearing April 22, 2004.
    Rehearing Denied June 25, 2004.

      Todd G. Scher, Litigation Director, Capital Collateral Regional Counsel-South, Martin McClain, Special Assistant Capital Collateral Regional Counsel and Suzanne Myers, Assistant Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Appellant/Cross-Appellee.
    Charles J. Crist, Jr., Attorney General and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee/Cross-Appellant.
   PER CURIAM.

Wayne Tompkins, a prisoner under sentence of death and an active death warrant, appeals an order of the circuit court denying in part his successive motion for posteonviction relief under Florida Rule of Criminal Procedure 3.850. The State cross-appeals the circuit court’s order granting Tompkins a new penalty phase based on evidence that the trial court directed the State to prepare the sentencing order in an ex parte communication after the trial court imposed the death penalty. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the portion of the trial court’s order denying Tompkins’ motion for posteonviction relief and reverse the portion of the trial court’s order granting a new penalty phase.

FACTS AND PROCEDURAL HISTORY

In 1985, Tompkins was convicted of the first-degree murder of Lisa Deearr and sentenced to death on the recommendation of a unanimous jury. See Tompkins v. State, 502 So.2d 415 (Fla.1986). This Court’s opinion on direct appeal sets forth the following facts:

The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on March 24, 1983. In June 1984, the victim’s skeletal remains were found in a shallow grave under the house along with her pink bathrobe and jewelry. Based upon a ligature (apparently the sash of her bathrobe) that was found tied tightly around her neck bones, the medical examiner determined that Lisa had been strangled to death. In September 1984, Wayne Tompkins, the victim’s mother’s boyfriend, was charged with the murder.
At trial, the state’s three key witnesses testified as follows. Barbara De-Carr, the victim’s mother, testified that she left the house on the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins at his mother’s house a few blocks away. Some time that morning, she sent Tompkins back to her house to get some newspapers for packing. When Tompkins returned, he told Barbara that Lisa was watching television in her robe. Tompkins then left his mother’s house again, and Barbara did not see or speak to him again until approximately 3 o’clock that afternoon. At that time, Tompkins told Barbara that Lisa had run away. He said the last time he saw Lisa, she was going to the store and was wearing jeans and a blouse. Barbara returned to the Osborne Street house where she found Lisa’s pocketbook and robe missing but not the clothes described by Tompkins. Barbara then called the police.
The state’s next witness, Kathy Stevens, a close friend of the victim, testified that she had gone to Lisa DeCarr’s house at approximately 9 a.m. on the morning of March 24, 1983. After hearing a loud crash, Stevens opened the front door and saw Lisa on the couch struggling and hitting Tompkins who was on top of her attempting to remove her clothing. Lisa asked her to call the police. At that point, Stevens left the house but did not call the police. When Stevens returned later to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins had made sexual advances towards Lisa on two prior occasions.
Kenneth Turco, the final key state’s witness, testified that Tompkins confided details of the murder to him while they were cellmates in June 1985. Tur-co testified that Tompkins told him that Lisa was on the sofa when he returned to the house to get some newspapers for packing. When Tompkins tried to force himself on her, Lisa kicked him in the groin. Tompkins then strangled her and buried her under the house along with her pocketbook and some clothing (jeans and a top) to make it appear as if she had run away.

Id. at 417-18.

The jury recommended death by a vote of twelve to zero. After finding three aggravating circumstances and one mitigating circumstance, the trial court imposed a sentence of death.

Tompkins raised ten issues on appeal, _ , , . four related to the guilt phase and sue related to the penalty phase. See id. at 419. This Court found no reversible error and affirmed both the conviction and death sentence. See id. at 421.

Tompkins’ first motion for postconviction relief under Florida Rule of Criminal procedure 3.850 included nineteen claims. See Tompkins v. Dugger, 549 So.2d 1370, 1372 (Fla.1989). After an evidentiary hearing at which Tompkins presented evidence primarily related to his Brady and ineffective assistance of counsel claims, the trial court denied relief. See id. This Court affirmed the trial court’s denial 'of relief on appeal. See id. With respect to Tompkins’ Brady claims, we stated:

Tompkins claims that the state should have provided defense counsel with jail records showing that Tompkins was given Sinequan while in jail; school records indicating that Lisa had been seen by schoolmates after she allegedly was killed; and information suggesting that Tompkins’ cell mate, who had testified that Tompkins confessed, was a state agent.
The record clearly reflects that counsel knew that Lisa reportedly was seen after the time established for her murder. Counsel attempted to introduce this very evidence through the hearsay testimony of Lisa’s mother. We also agree that counsel’s lack of knowledge that Tompkins asked for medication while in custody had no prejudicial effect on the outcome of the trial. Finally, we find no evidence in the record to support any theory that Tompkins’ cell mate was a state agent. Accordingly, we affirm the trial court on the Brady issue.

Id.

As to Tompkins’ claims of ineffective assistance of trial counsel, this Court concluded that counsel was not ineffective during the guilt phase but was deficient in failing to investigate and present evidence of mitigation in the penalty phase. See id. at 1373. However, we agreed with the trial court that this mitigating evidence would not “have affected the penalty in light of the crime and the nature of the aggravating circumstances.” Id.

Tompkins also filed a petition for a writ 'of habeas corpus in this Court, raising nine claims. See id. at 1371. We denied relief on all of Tompkins’ claims. See id.

Subsequently, Tompkins filed a petition for :a writ of habeas corpus in the federal district court. See Tompkins v. Moore, 193 F.3d 1327, 1329 (11th Cir.1999). The federal district court denied relief and Tompkins appealed to the Eleventh Circuit Court of Appeals. See id. The Eleventh Circuit affirmed without discussing several of the issues addressed by the district court.

The Eleventh Circuit also rejected Tompkins’ argument that trial counsel was ineffective during the guilt phase for failing to introduce several pieces of evidence, including witness Wendy Chancey’s testimony that she had seen Lisa alive after the date the murder was alleged to have occurred. See id. at 1334-35 & n. 3. With respect to Tompkins’ claims of counsel’s ineffectiveness during the penalty phase, the Eleventh Circuit concluded that the “weight of [the] aggravating circumstances overwhelmed] the mitigating circumstance evidence that was and could have been presented.” Id. at 1339. Lastly, the Eleventh Circuit addressed Tompkins’ argument that the State knowingly presented false testimony of Stevens, Turco, and the medical examiner in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Eleventh Circuit rejected the claims as to Stevens and Turco outright, agreeing with the district court that Tompkins’ “contentions are palpably without merit.” Id. at 1342 n. 14.

With respect to Tompkins’ Giglio claim regarding the medical examiner’s testimony that dental records identified the skeleton as that of Lisa DeCarr, the Eleventh Circuit held that even if this had been false testimony and the State knew it was false, Tompkins’ claim would still fail to meet the materiality element of the Giglio test. See id. at 1341. The Eleventh Circuit noted that there was “overwhelming” evidence that the skeletal remains belonged to Lisa and found Tompkins’ argument that “ ‘there was very little evidence of the identity of the deceased’ ... preposterous.” Id. at 1341-42.

On March 22, 2001, Governor Bush signed Tompkins’ third death warrant, which resulted in Tompkins filing a second postconviction motion in state court. After a Huff hearing, the trial court concluded that an evidentiary hearing was required only on Tompkins’ claim that the sentencing judge, Harry Lee Coe, erred in failing to (1) independently weigh the aggravating and mitigating circumstances, and (2) disclose that the State had prepared the sentencing order. After hearing several witnesses presented by Tompkins and argument from both Tompkins and the State, the trial court found that these errors entitled Tompkins to a new penalty phase.

The day after the evidentiary hearing, the trial court granted Tompkins’ motion for a stay of execution. In a subsequent order on Tompkins’ postconviction motion, the trial court provided written findings supporting the denial of all of Tompkins’ other claims and the granting of'the new penalty phase. The trial court also denied Tompkins’ motions for DNA testing and to compel the disclosure of public records.

Tompkins now appeals, raising four issues: (1) -whether the trial court erred in denying his Brady claims without an evi-dentiary hearing; (2) whether the trial court erred in denying his motion for DNA testing; (3) whether the State’s failure to preserve evidence violated his due process rights; and (4) whether the trial court erred in denying his motion to compel the production of public records. The State cross-appeals the trial court’s order granting a new penalty phase.

I. BRADY CLAIMS

In Tompkins’ first issue on appeal, he argues that the trial court erred in summarily denying his claim that the State withheld evidénce in violation of Brady. Specifically, Tompkins contends that the State withheld several police reports and other documents which he claims contain the following exculpatory evidence: (1) statements by individuals that tend to contradict the testimony of Barbara DeCarr, Stevens, and Turco; (2) information about other possible suspects; (3) information about a police investigation in the disappearance of Jessie Albach, one of Lisa DeCarr’s friends, which was being investigated in conjunction with the DeCarr case; and (4) information related to the credibility of witnesses Stevens and Turco. Tompkins asserts that he was entitled to an evidentiary hearing and that the trial court erred in denying his Brady, claims without holding a hearing.

In a case such as this, where the defendant files a successive motion for postcon-viction relief, the trial court may dismiss the motion if it “fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of procedure governed by these rules.” Fla. R.Crim. P. 3.850(f). However, if the trial court does not dismiss the successive motion for the above stated reasons, the trial court must hold an evidentiary hearing unless “the motion, files and records in the case conclusively show that the movant is entitled to no relief.” Fla. R.Crim. P. 3.850(d).

When the trial court denies post-conviction relief without conducting an evi-dentiary hearing, “this Court must accept [the defendant’s] factual allegations as true to the extent they are not refuted by the record.” Rose v. State, 774 So.2d 629, 632 (Fla.2000); see also Valle v. State, 705 So.2d 1331, 1333 (Fla.1997) (“Under rule 3.850, a movant is entitled to an evidentia-ry hearing unless the motion and record conclusively show that the movant is entitled to no relief. Thus we must treat the allegations as true except to the extent they are rebutted conclusively by the record.”) (citation omitted). However, the defendant has the burden of establishing a legally sufficient claim. See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). If the claim is legally sufficient, this Court must then determine whether the claim is refuted by the record. See id.

In Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the United States Supreme Court enunciated the three components of a true Brady violation as follows:

The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.

See also Cardona v. State, 826 So.2d 968, 973 (Fla.2002) (evaluating a Brady claim under the. three prong test set forth in Strickler); Way v. State, 760 So.2d 903, 910 (Fla.2000) (same). Under the prejudice prong, the defendant must show that the suppressed evidence is material. See Strickler, 527 U.S. at 282, 119 S.Ct. 1936. “[Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Way, 760 So.2d at 913 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)) (alteration in original); see also Strickler, 527 U.S. at 290, 119 S.Ct. 1936. In determining materiality, the “cumulative effect of the suppressed evidence must be considered.” Cardona, 826 So.2d at 973; see also Way, 760 So.2d at 913. With these principles in mind, we now address Tompkins’ specific allegations.

First, we agree with the trial court that Tompkins’ claim that the State withheld information related to the credibility of witnesses Stevens and Turco—specifi-cally, that Stevens served time in jail for committing perjury in 1986 and that Turco pled guilty to extortion in 1995—was insufficiently pled. Tompkins summarily states that these undisclosed facts about Stevens and Turco could have been used to impeach Stevens’ and Turco’s credibility at trial. However, he presents no explanation for how he could have accomplished this given that these events occurred after his trial. Further, Tompkins fails to allege any basis to establish that Stevens or Tur-co perjured themselves at his trial. Accordingly, we find no error in the trial court’s summary denial of this claim.

We also agree with the trial court’s conclusion that the March 24, 1983, police report was not withheld by the State. As the trial court noted, “[djuring argument, defense counsel conceded that he had obtained a copy of ... [the March 24] report in 1989, however, he was unable to read it.” Because defense counsel knew of the report and could have requested a legible copy, a Brady violation is conclusively refuted. Cf. Way, 760 So.2d at 911-12 (noting that evidence is not “suppressed” where the defendant was aware of the exculpatory information).

As to the list of questions to be asked of Detective Burke and the Jessie Albach files, these documents fail to meet the first prong of Brady because they do not contain information that is favorable to Tompkins. The few answers indicated on the question sheet are irrelevant to Burke’s substantive testimony. Contrary to Tompkins’ assertions, the alleged nondisclosure of the. list of questions in this case is not analogous to the situation presented in Rogers v. State, 782 So.2d 373, 384 (Fla.2001), where this Court held that a cassette tape, which revealed coaching by the prosecutor and conflicting accounts of the witness’s testimony, was favorable to the defendant. Unlike the tape at issue in Rogers, the list of questions in this case does not show any attempt by the prosecutor to direct Burke’s testimony. Nor does the list indicate any testimony contrary to that presented at trial.

We also reject Tompkins’ argument that because the Albach and DeCarr cases were investigated together and there are statements regarding Lisa in the Al-bach reports, these reports constitute Brady material. In Rogers, this Court held that police reports generated in a joint law enforcement investigation of robberies similar to the one for which the defendant was arrested were favorable to the defendant. See id. at 380-82. This Court concluded that the police reports were favorable to Rogers .because they could have been used to show that a person other than Rogers was involved in the robbery with the codefendant' and, therefore, the reports could have been used to impeach the eodefendant’s testimony at trial. See id. at 382.

The Albach documents contain statements regarding Lisa DeCarr and provide information about a W.H. Graham, a person who Tompkins apparently claims is another likely suspect. However, other than the fact that Jessie and Lisa were friends, there, is no indication in these reports that Lisa ever had contact with W.H. Graham. Further, the statements about Lisa are general — that Lisa was missing and was friends with Jessie. Thus, these files do not provide the same type of information that this Court concluded was favorable to the defendant in Rogers.

As to the remaining documents, we conclude that even if the information they contain could be said to be favorable to Tompkins, the record in this case conclusively demonstrates that the documents are not material because they cannot “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Cardona, 826 So.2d at 982 (quoting Way, 760 So.2d at 913). Tompkins argues that the information related to police by Maureen Sweeny in the June 8, 1984, police report supports Wendy Chancey’s version of the events and supports the defense’s theory that Lisa ran away. We reject this argument for several reasons. First, as previously noted, Chancey did not testify at trial. Second, although Tompkins appears to assume that Sweeny’s information was gained from Barbara DeCarr and Tompkins, the report does not indicate who told Sweeny about the version of the events she gave to the police. Third, the fact that Lisa DeCarr’s brother and boyfriend went to look for her does not shed any new light on her disappearance because it is clear from the record that Lisa was originally classified as a runaway. Lastly, other than conclusory statements, Tompkins provides no evidence or argument to support his claims of an unreliable investigation by police. Therefore, the only part of the June 8, 1984, report that is even conceivably favorable to Tompkins is a statement made by Sweeny’s fiance, Mike Glen Willis, that includes an account of the events on the day Lisa disappeared that is inconsistent with Barbara DeCarr’s trial testimony. However, this one piece of undisclosed inconsistent information, even taken together with any other favorable evidence the State may have failed to disclose to Tompkins, does not rise to the level necessary to undermine our confidence in the verdict in this case.

Tompkins also argues that a July 28, 1988, report contains an account of a phone call from Barbara DeCarr that contradicts her trial testimony. We disagree. In the phone call, Ms. DeCarr stated that she reported that Lisa ran away on March 24, 1983, and that she thought Lisa might be with Jessie. At trial, Ms. DeCarr never stated that she did not, at first, believe that Lisa ran away. In fact, Ms. DeCarr testified that after Tompkins told her Lisa ran away, she called the police. She also testified that she contacted Child Search of Florida and that prior to May 1984 she refused to suspect that Tompkins was involved in Lisa’s disappearance. Accordingly, the record conclusively refutes Tompkins’ claim that the July 28 report is material evidence because the report would not have impeached Ms. DeCarr’s trial testimony. Compare Cardona, 826 So.2d at 981 (concluding that withheld impeachment evidence regarding the State’s key witness was of such a degree that it “could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict”).

Finally, we conclude that as to Burke’s lead sheets, prejudice is conclusively refuted by the record. Tompkins contends that the lead sheets show that Burke spoke with Lisa’s boyfriend, Junior Davis, and had Tompkins known this he would have ascertained whether Davis told police about meeting Stevens at the corner store on the day of Lisa’s disappearance. Tompkins also asserts that the lead sheets indicate the true identity of a Bob McKel-vin, who allegedly attempted to solicit Lisa. However, the record shows that defense counsel was aware of both Junior Davis and Bob McKelvin during trial. Defense counsel asked1 Stevens on cross-examination about her encounter with Davis at the corner store. Defense counsel also questioned both Detective Burke and Barbara DeCarr about McKelvin. Detective Burke testified that he could not recall hearing the name McKelvin but he was aware of a neighbor who made sexual advances towards Lisa. Barbara DeCarr testified that McKelvin did proposition her daughter.

Thus, we affirm the trial court’s summary denial of Tompkins’ Brady claims. Either the undisclosed documents are not Brady material because they are neither favorable to Tompkins nor suppressed, or Tompkins has not demonstrated that he was prejudiced by the lack of disclosure. Further, even if we were to engage in a cumulative analysis and consider the undisclosed, favorable documents in conjunction with Tompkins’ claims raised in his first motion for postconviction relief, our conclusion as to prejudice would not change. See Way, 760 So.2d at 915 (noting that conducting a cumulative analysis would not change the Court’s conclusion that the defendant failed to establish prejudice).

II. DNA TESTING

On April 10, 2001, Tompkins filed a motion for DNA testing, seeking to have several pieces of evidence tested, including hair samples discovered with Lisa’s remains at the grave site. A hearing was held on April 11, 2001, at which Tompkins argued that since the time this evidence was originally submitted for testing by the State in 1984, mitochondrial DNA testing had developed and would now allow DNA to be extracted from the hair samples. After the trial court orally denied the motion at the hearing, the State revealed that it could not locate the hair samples and Tompkins was permitted to question several witnesses regarding this missing evidence.

In an order dated April 12, 2001, the trial court denied Tompkins’ motion, finding that the evidence sought to be tested had been available since 1984, that mitochondrial DNA testing had been available in judicial proceedings since 1996, and that mitochondrial DNA testing had been used in the Thirteenth Judicial Circuit in 1999. The trial court also found that Tompkins failed to set forth any compelling reasons for the DNA testing and that mitochondrial DNA testing would not prove or disprove any material issues in the case.

The trial court again denied Tompkins’ request for DNA testing in its order denying Tompkins’ motion for postconviction relief and in its order denying Tompkins’ motion for rehearing. In the latter order, entered on June 15, 2001, the trial court expanded on its reason for denying the motion for DNA testing in light of the enactment of section 925.11, Florida Statutes (2002).

Section 925.11 requires that the trial court make the following findings after the defendant has filed a sufficient petition and the State has responded:

1. Whether the sentenced defendant has shown that the physical evidence that may contain DNA still exists.
2. Whether the results of DNA testing of that physical evidence would be admissible at trial and whether there exists reliable proof to establish that the evidence has not been materially altered and would be admissible at a future hearing; and
3. Whether there is a reasonable probability that the sentenced defendant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

§ 925.11(2)(f), Fla. Stat. (2002). In this case, the trial court rejected Tompkins’ claim that there is an issue of the identity of the remains, noting that the Eleventh Circuit Court of Appeal had addressed this issue and found Tompkins’ argument that “ ‘there was very little evidence of the identity of the deceased’ ... preposterous.” Tompkins, 193 F.3d at 1342. The trial court further found that any samples of DNA obtained from the hairs, bone fragments, robe or pajamas would be “unreliably contaminated due to the location of the remains and would not prove [Tompkins’] innocence or result in a mitigation of sentence.”

We agree 'with both of the trial court’s findings. Given the evidence presented at trial regarding the identity of the remains and the location of the remains, we conclude that even if the DNA analysis indicated a source other than Lisa DeCarr or Tompkins, there is no reasonable probability that Tompkins would have been acquitted or received a life sentence. See § 925.11(2)(f), Fla. Stat. (2002); Fla. R.Crim. P. 3.853; see also King v. State, 808 So.2d 1237, 1247-49 (Fla.2002) (affirming trial court’s denial of defendant’s motion for mitochondrial DNA testing, where trial court found that even if test showed that hair found on victim’s body did not come from victim or defendant, there was no reasonable probability that defendant would have been acquitted or have received a life sentence). Accordingly, we affirm the trial court’s denial of Tompkins’ motion for DNA testing.

In a related claim, Tompkins argues that the trial court erred in finding that there was no bad faith on the part of the State regarding the loss of hair samples discovered with Lisa’s remains. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”); see also King, 808 So.2d at 1242-43 (approving trial court’s application of Youngblood in evaluating defendant’s claim regarding State’s destruction of evidence). In light of our conclusion that the trial court did not err in denying Tompkins’ motion for DNA testing, we conclude’ that this issue is moot.

III. PUBLIC RECORDS

In his final issue on appeal, Tompkins argues that he has been denied effective assistance of counsel because the trial court denied him access to public records from the Hillsborough County Sheriffs Office, the State Attorney’s Office of the Thirteenth Judicial Circuit, the Florida Department of Law Enforcement, the Division of Elections, the Department of Corrections, the Florida Parole Commission, and the Board of Executive Clemency. In denying Tompkins’ motion to compel the production of records, the trial court found that Tompkins “failed to provide sufficient ■ specific and identifiable reasons as to the request for public records.” The trial court noted that the only issue raised at the hearing on Tompkins’ motion to compel was related to juror misconduct and that postconviction counsel both conceded that this issue was known to “himself and trial counsel in 1985” and “provided no explanation as to why requests were not made until after the Governor signed the death warrant.” The trial court also expressed concern “regarding the timing of the voluminous public records requests,” finding that the requests “appear to be at best a ‘fishing expedition’ and at worst a dilatory tactic.”

We review the trial court’s denial of Tompkins’ motion to compel for an abuse of discretion. See generally Glock v. Moore, 776 So.2d 243, 254 (Fla.2001) (concluding that trial court did not abuse discretion in denying defendant’s motions to compel and determining that defendant’s right to public records was not denied). In Sims v. State, 753 So.2d 66 (Fla.2000), we addressed the issue of public records where the request is made after the death warrant has been signed:

The language of section 119.19 and of rule 3.852 clearly provides for the production of public records after the governor has signed a death warrant. However, it is equally clear that this discovery tool is not intended to be a procedure authorizing a fishing expedition for records unrelated to a colorable claim for postconviction relief....
... Rule 3.852 is not intended for use by defendants as, in the words of the trial court; “nothing more than an eleventh hour attempt to delay the execution rather than a focused investigation into some legitimate area of inquiry.”

Id. at 70. Thus, a defendant must show how the requested records relate to a col-orable claim for postconviction relief and good cause as to why the public records request was not made until after the déath warrant was signed. See Glock, 776 So.2d at 254; Bryan v. State, 748 So.2d 1003, 1006 (Fla.1999).

Tompkins argues that he could not have made this public records request earlier because at the time this Court issued its decision in Buenoano v. State, 708 So.2d 941 (Fla.1998), making it clear that any such claim will be barred if counsel fails to exercise due diligence, Tompkins was litigating in federal court and then was precluded by the adoption of Florida Rule of Criminal Procedure 3.852 from filing his request before his death warrant was signed. This argument fails for three reasons.

First, although a request for public records under rule 3.852(h)(3) is contingent upon the signing of a death warrant, rule 3.852(i) “allows collateral counsel to obtain additional records at any time if collateral counsel can establish that a diligent search of the records repository has been made and ‘the additional public records are either relevant to the subject matter of the postconviction proceeding or are reasonably calculated to lead to the discovery of admissible evidence.’ ” Sims, 753 So.2d at 70-71 (quoting rule 3.852(i)(l)). Accordingly, Tompkins was not required to wait until the death warrant was signed to make an additional public records request, provided he could have made the required showing under rule 3.852(f).

Second, Tompkins’ request for information from the Division of Elections related to Judge Coe’s campaign contributions could have been made years ago, and Tompkins has not indicated any good cause as to why he did not make this request until after the death warrant was signed. Similarly, Tompkins’ request for juror criminal records could also have been made years ago. As noted by the trial court, counsel conceded that this issue was known to trial counsel in 1985 and provided no explanation as to why the requests were not made until after the death warrant was signed. Accordingly, we conclude that the trial court did not abuse its discretion in denying Tompkins’ motion to compel the production of public records.

IV. THE STATE’S CROSS-APPEAL

On cross appeal, the State seeks reversal of the trial court’s decision to grant Tompkins a new penalty phase trial. In its order granting the new penalty phase, the trial court stated:

The Court finds that testimony demonstrates that there was an ex parte communication between the sentencing judge and the State in this case. The Court finds that the limitation of argument that the Court imposed for the State is not a sufficient “weighing” by the trial judge. The Court finds that the failure to independently weigh aggravating and mitigating circumstances in this case entitles Defendant to relief.

State v. Tompkins, No. 84-10538, order at 10 (Fla. 13th Cir. Ct. order filed Apr. 20, 2001). Based on our review of the record of the trial, direct appeal, and postconviction proceedings in the state and federal courts, we conclude that the trial court erred in granting Tompkins a new penalty phase trial.

For the purpose of analyzing the trial court’s ruling, we have assumed, without deciding, that there was competent, substantial evidence presented at the eviden-tiary hearing for the trial court to conclude that Judge Coe either himself communicated or had his assistant communicate to the prosecutor that the prosecutor was to prepare the written sentencing order, and that the prosecutor did in fact prepare the written sentencing order which was entered by Judge Coe. Although we do not condone the ex parte communication, we conclude that under the circumstances of this case, which we here set out in detail, Tompkins is not entitled to a new penalty phase because he has not demonstrated that he was denied his right to a neutral, detached judge or that Judge Coe failed to independently weigh the aggravating and mitigating circumstances. Compare Randolph v. State, 853 So.2d 1051, 1057 (Fla.2003) (concluding that the defendant was not denied a neutral, detached judge where the judge’s law clerk engaged in an ex parte communication with the prosecutor but there was no evidence that the judge either determined that the defendant would receive a death sentence prior to the sentencing proceedings or did not independently weigh the aggravating and mitigating circumstances) with Porter v. State, 723 So.2d 191, 197 (Fla.1998) (concluding that the defendant was entitled to a new sentencing based on evidence that the trial judge made up his mind to sentence the defendant to death before the penalty proceedings began).

Our analysis begins with the return of the jury in the 1985 penalty phase trial. Upon receiving the jury’s recommendation • of death by a 12-0 vote, the court immediately pronounced sentence:

THE COURT: Okay. Record the verdict. Discharge the jury. Approach the bench. No, I mean out there. Bring the defendant forward. Any further comments?
MR. HERNANDEZ [DEFENSE COUNSEL]: No, your honor.
THE COURT: Okay. I will accept the jury’s finding of guilt and its recommendation of the death penalty. Make an adjudication of guilt. Can you or your client show cause why sentence should not-be pronounced at this time?.
MR. HERNANDEZ: No, your honor.
THE COURT: It’s the judgment, order, and sentence of this Court that the defendant be sentenced to death in the electric chair.

Although we changed this procedure after the penalty phase in this 1985 trial, at the time of this penalty phase trial, this Court had held that the pronouncement of a death sentence at the time of the jury’s return with a recommendation of death was not reversible error. See Randolph v. State, 463 So.2d 186, 192 (Fla.1984). Moreover, if Tompkins were to pursue an issue with respect to Judge Coe’s having pronounced the sentence upon the return of the jury’s advisory sentence, Tompkins had to do so in his direct appeal. This issue is therefore not presently before this Court. However, the above portion of the record establishes what has been a known fact since 1985 — • that Judge Coe had considered and decided that death was the appropriate sentence before the written sentencing order was entered.

The sentencing order which was thereafter entered set out three aggravating circumstances: (1) Tompkins was previously convicted of felonies involving the use or threat of violence to a person; (2) the murder was committed while Tompkins was engaged in an attempt to commit sexual battery; and (3) the murder was especially heinous, atrocious, or cruel (HAC). The only mitigating circumstance provided in the order was Tompkins’ age (twenty-six) at the time of the murder.

On direct appeal, this Court found that competent, substantial evidence in the record supported those three aggravating factors. Importantly, for present purposes, this Court stated the following:

Appellant next contends that the trial court did not give adequate consideration to the evidence of nonstatutory mitigating circumstances. With respect to nonstatutory mitigating circumstances, the trial court stated that it found “NONE, notwithstanding testimony to the effect that the defendant was a good family member and good employee.” We conclude that the judge did consider the evidence but found that it did not rise to a sufficient level to be weighed as a mitigating circumstance.
Appellant’s final claim of error-is that the trial judge did not make a reasoned independent judgment of whether or not the death penalty should be imposed. Appellant bases this argument on the trial judge’s written order stating that thé jury’s death recommendation is “entitled to great weight.” We reject this claim. The trial court expressly stated: “After considering only the evidence before the jury, the court finds that the aforesaid statutory aggravating circumstances clearly outweigh the statutory mitigating circumstance.” There is nothing in the court’s order or elsewhere in the record to suggest that the trial court imposed the death penalty because it felt compelled to do so by the jury’s recommendation.

Tompkins, 502 So.2d at 421 (emphasis supplied).

This statement shows that on direct appeal this Court conducted a detailed record review of the trial court’s order. Based on that .review, this Court concluded that the record supported the finding of three very weighty aggravators and the finding of only one weak mitigator. It remains evident that the three weighty aggravators outweigh the one weak mitigator of age. Thus, based upon the record in this case through direct appeal, we conclude that the issue concerning the preparation of the sentencing order is not a substantive issue of whether the aggravators outweighed the mitigators, but rather is a procedural issue of whether Judge Coe himself conducted the requisite weighing of aggravators and mitigators at the time the sentencing order was prepared.

Because the relevant concern underlying the requirement that the trial judge prepare the sentencing order is assuring that the judge independently weigh the aggravating and mitigating circumstances, see Patterson v. State, 513 So.2d 1257, 1261 (Fla.1987), we have determined that this procedural issue was resolved during the pendency of this case. Following this Court’s decision' affirming Tompkins’ conviction and death sentence on direct appeal, Tompkins filed his initial rule 3.850 motion for postconvietion relief, and Judge Coe held an evidentiary hearing on the motion on May 19 and 20, 1989. At the hearing, Tompkins argued that his trial counsel was- ineffective in failing to present additional mitigating evidence during the penalty phase at trial. See Tompkins v. Dugger, 549 So.2d 1370, 1372 (Fla.1989). Following that evidentiary hearing, Judge Coe denied relief. He expressly found that the additional mitigators asserted by Tompkins “would not have affected the penalty in light of the crime and the nature of the aggravating circumstances.” Id. at 1373. Judge Coe reasoned that the additional mitigating evidence did not create “a reasonable probability that but for the counsel’s errors, the results in the sentencing phase would have been different, given the 12/0 verdict, given the egregious nature of the offense, given the two prior rapes.” Record at 470, Tompkins v. Dugger (No. 74235). Judge Coe stated, “I don’t think there was a reasonable possibility, given proper investigation, preparation and presentation, that the outcome would have been different, nor do I think this lack undermined any confidence in the outcome.” Id.

This Court approved Judge Coe’s conclusion based on his weighing of the aggravating and mitigating circumstances following an evidentiary hearing. See Tompkins, 549 So.2d at 1373. Furthermore, this Court affirmed the death sentence after additional mitigating evidence which had not been presented at trial, was presented and weighed at the evidentiary hearing.

On review of the denial of Tompkins’ federal habeas petition, the Eleventh Circuit Court of Appeals similarly “considered all of the mitigating circumstance evidence Tompkins says should have been presented at the sentence stage, along with that which was actually presented,” and concluded that the weight of the “multiple, strong aggravating circumstances ... overwhelmed] the mitigating circumstance evidence that was and could have been presented.” Tompkins v. Moore, 193 F.3d 1327 (11th Cir.1999).

Accordingly, based upon this examination of the record in this case, we conclude that Tompkins has not demonstrated that he was denied a neutral, detached judge or that' Judge Coe failed to independently weigh the aggravating and mitigating circumstances at the time the sentencing order was prepared.

CONCLUSION

Based on the forgoing, we affirm the trial court’s summary denial of Tompkins’ Brady claims and affirm the trial court’s denial of Tompkins’ motion for DNA testing and motion to compel the production of public records. However, we reverse the trial court’s order granting a new penalty phase trial and reinstate the death sentence. The stay of executibn is dissolved effective 30 days after this decision becomes final.

It is so ordered.

WELLS, PARIENTE, LEWIS, CANTERO and BELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

QUINCE, J., recused.

ANSTEAD, C.J.,

concurring in part and dissenting in part.

The only disagreement I have with the majority is the holding that the trial court erred in.granting Tompkins a new sentencing phase based on his claim .that the sentencing judge failed to independently weigh the aggravating and mitigating circumstances and failed to disclose that the State prepared the sentencing order. This holding is directly contrary to our controlling law, .fails to respect the role of the trial judge as fact-finder, and conflicts with the outcome of a recent case involving almost identical circumstances and the same sentencing judge.

In granting relief on this claim, the trial court explained:

During the April 17, 2001 hearing, the State conceded that an evidentiary hearing was necessary on this claim. On April 18, 2001, the Court conducted an evidentiary hearing on this claim. Based upon the testimony of the witnesses and the argument of counsel, the Court finds that Defendant'is entitled to relief with regard to this claim.
After the evidentiary hearing, the Court finds that the former State Attorney, Mike Benito, admitted drafting the sentencing order for the Defendant. The Court finds that Mr. Benito drafted the order after being contacted by the judge or the judge’s office. Additionally, the Court finds that the sentence of the Defendant was pronounced immediately after the jury provided its recommendation. {See Transcript of Sentencing, attached).
Florida Statutes require that the sentencing judge independently weigh the aggravating and mitigating circumstances. Fla. Stat. 921.141 (1985). It is impossible for a judge to request that any party draft any sentencing order which requires the weighing of aggravating and mitigating circumstances. See Card v. State, 652 So.2d 344 (Fla.1995) and Spencer v. State, 615 So.2d 688 (Fla.1993).
The Court finds that testimony demonstrates that there was an ex parte communication between the sentencing judge and the State in this case. The Court finds that the limitation of argument that the Court imposed for the State in arguing aggravating and mitigating circumstances is not sufficient “weighing” by the trial judge. The Court finds that the failure to independently weigh aggravating and mitigating circumstances in this case entitles Defendant to relief.

As noted above, these findings are supported by the evidence and this Court’s law.

In this case, prosecutor Benito testified that although he did not have a specific recollection of being called by Judge Coe’s office, he prepared the sentencing order in this case as he had done in other cases for Judge Coe. The State presented no evidence to refute Benito’s testimony that he was asked by Judge Coe, in an ex parte communication, to prepare the order. Further, the record supports the trial court’s finding that there was no weighing of the aggravating and mitigating circumstances in this case. Judge Coe pronounced sentence immediately following the jury recommendation, and as in State v. Riechmann, 777 So.2d 342 (Fla.2000), the record does not contain any oral findings reflecting any independent weighing of the aggravating and mitigating circumstances by Judge Coe.

Further, Tompkins’ trial counsel and prior postconviction counsel testified that they were unaware that the sentencing order had been prepared by the State. Although the State makes a due diligence argument, the State cites nothing in the record that would have led counsel to conclude that the State prepared the sentencing order.

In Roberts v. State, 840 So.2d 962 (Fla.2002), Maharaj v. State, 778 So.2d 944 (Fla.2000), and State v. Riechmann, 777 So.2d 342, 351 (Fla.2000), the defendants were granted new sentencing proceedings based on the same claim Tompkins presented in this case. In Maharaj, the State did not appeal the trial court’s granting of a new sentencing proceeding and this Court affirmed this issue without discussion. See 778 So.2d at 947-48, 959. In Riechmann, this Court reviewed the trial court’s order granting a new penalty phase and concluded that the trial court properly considered “the nature of the contact between the judge and the prosecutor, when the judge was given the order, and when he gave copies to the defendant,” in determining that “Riechmann was denied an independent weighing of the aggravating and mitigating circumstances.” 777 So.2d at 352. This Court noted that the record supported the trial court findings that “the record contains no oral findings independently made by the trial judge, which satisfies the weighing process required by section 921.141(3), nor did defense counsel know that the State prepared a sentencing order to which he failed to object.” Id.

Most recently, in Roberts, this Court affirmed the trial court’s findings that the sentencing order was prepared by the State after an ex parte communication with the trial judge. Although contradictory evidence was presented as to whether the trial judge asked the State to prepare the sentencing order, this Court found that the lower court’s ruling was supported by substantial competent evidence and. affirmed the grant of a new sentencing proceeding. See Roberts, 840 So.2d at 972-73.

Because the trial court’s order indicates that the judge properly considered the factors set forth in this Court’s controlling case law, I would affirm the trial court’s order for a new penalty phase.

      . Tompkins filed this successive motion after a death warrant was signed and the warrant was stayed by the trial court after the trial court vacated the death sentence and granted Tompkins a new penalty phase.

      . The aggravating circumstances found by the trial court were: (1) the previous conviction of felonies involving the use or threat of violence to the person; (2) that the murder was committed while the defendant was engaged in an attempt to commit sexual battery; and (3) that the murder was especially heinous, atrocious, or cruel ("HAC”).

      . The one mitigating circumstance the trial court found was that Tompkins was twenty-six at the time of the murder.

      . With respect to the guilt phase, Tompkins argued: (1) the trial court erred in admitting his confession through Turco's testimony; (2) the trial court erred. in limiting his cross-examination of State’s witnesses Barbara De-Carr and Detective Burke; (3) the trial court erred in permitting the State to elicit pertain testimony from Barbara DeCarr on redirect examination; and (4) death-qualified juries are unconstitutional.

      . As to the penalty phase, Tompkins argued: (1) the trial court erred in allowing two police officers to testify as to details of previous crimes he had committed; (2) the trial court erred in finding the aggravating circumstance of previous conviction of felonies involving the use or threat of violence; (3) the trial court erred in finding the aggravating circumstance that the murder was committed during an attempted sexual battery; (4) the trial court erred in finding HAC; (5) the trial court did not give adequate consideration to the evidence of nonstatutoiy mitigating circumstances; and (6) the trial judge did not make a reasoned independent judgment of whether or not the death penally should be imposed by giving undue weight to the jury's recommendation of death.

      . These claims were: (1) Florida Rule of Criminal Procedure 3.851 denies equal protection and access to the courts by empowering the Governor to shorten the two-year filing deadline of rule 3.850; (2) the trial court erred in excluding hearsay testimony offered to show that the victim was alive after the time of the alleged murder; (3) the proceedings were rendered fundamentally unfair when Tompkins' court-appointed counsel withdrew to accept a position with the prosecutor's office; (4) Tompkins’ right to counsel was violated when a jailhouse informant (Tur-co) was placed in his cell to elicit inculpatory statements; (5) the conviction and sentence resulted from an unreliable in-court identification; (6) the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), including (a) jail records showing Tompkins was given Sinequan, (b) information suggesting that Turco was a State agent, and (c) records indicating that the victim had been seen by schoolmates after she was allegedly killed; (7) Tompkins’ trial counsel was ineffective during the guilt phase by (a) failing to adequately investigate and prepare the issue regarding who was the last person to see the victim alive, (b) failing to present evidence that informant Turco had access to police reports that Tompkins had in his cell; (c) failing to object to hearsay testimony by the medical examiner as to the victim's identity, (d) failing to ensure compliance with the witness sequestration rule, and (e) failing to litigate the issues raised in claims 2, 3, 4 and 5; (8) Tompkins’ trial counsel was ineffective for 'failing to provide for an adequate evaluátion by a mental health expert; (9) Tompkins' counsel was ineffective during the penalty phase for (a) failing to adequately investigate and prepare mitigation evidence, (b) failing to limit damage caused by the introduction of prior sexual batteries, and (c) failing to challenge jury instructions and failing to object to other errors related to claims 11 and 16; (10) the State knowingly used false and misleading testimony of Detective Burke and the medical examiner; (11) the State made an improper "golden rule” argument; (12) the trial court’s finding of HAC was in violation of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); (13) there was an impermissible burden shift; (14) the jury was improperly instructed that sympathy toward the defendant was an improper consideration; (15) the trial court considered an unconstitutional aggravating circumstance; (16) the death sentence was founded upon impermissible "victim impact” evidence; (17) there was a violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (18) the death sentence was based on misinformation; and (19) there were improper jury influences.

      . These claims were: (1) the penalty phase jury instruction impermissibly shifted the burden to the defendant to show that the death penalty was inappropriate; (2) the jury- was improperly instructed that sympathy toward the defendant was an improper consideration; (3) Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), required reversal of the trial court's finding of HAC; (4) the State made an improper "golden rule” argument; (5) Tompkins' right to counsel was denied when the trial court erred in excluding hearsay testimony offered to show that the victim was alive after the time of the alleged murder; (6) there was a violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); (7) appellate counsel was ineffective for failing to object to photographs of the victim’s skeletal remains; (8) the death sentence impermissibly rested on the automatic aggravator of a prior felony conviction; and (9) there was a violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

      . These issues were: (1) whether Tompkins was denied the right to present a defense and confront witnesses; (2) whether the state withheld exculpatory evidence in violation of Brady; (3) whether appellate counsel was ineffective; (4) whether Tompkins’ conviction and sentence resulted from an unreliable in-court identification; (5) whether the judge and jury were misinformed; (6) whether there was improper argument and a jury instruction error during the penalty phase; and (7) whether the district court erred in failing to order the grand jury proceedings transcribed. See Tompkins, 193 F.3d at 1331 n. 1.

      . Under Giglio, a prosecutor has a duty to correct testimony he or she knows to be false. See 405 U.S. at 153-54, 92 S.Ct. 763. In order to establish a Giglio violation, a defendant must show that (1) the testimony was false; (2) the prosecutor knew of the false testimony; and (3) the testimony was material. See Routly v. State, 590 So.2d 397, 400 (Fla.1991).

      . Two death warrants signed in 1989 by Governor Martinez were stayed because Tompkins' initial postconviction motions were still being litigated.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . These documents include: (1) a June 8, 1984, police report; (2) a legible copy of a March 24, 1983, police report; (3) a July 28, 1983, police report; (4) handwritten lead sheets prepared by Detective Burke; (5) a May 3, 1984, report concerning interviews with W.H. Graham; (6) an August 18, 1982, report; (7) a December 27, 1983, letter from the State Attorney; (8) a May 21, 1984, report; (9) records showing that “in June 1983, W.H. Graham was being investigated for raping one of the girls who worked at the 'Naked City’ on June 24th”; (10) a June 14, 1983, police report of a phone interview with Lori Lite; (11) a June 9, 1984, report; (12) a May 9, 1984, report; (13) a list of questions to be asked of Detective Burke during trial; and (14) undisclosed impeachment evidence regarding witnesses Stevens and Turco.

      . The fact that the Albach files indicate that W.H. Graham had a car that fit the description of the car that witness Wendy Chancey stated she "saw "Lisa get into on the day she disappeared does not alter our conclusion. Chancey did not. testify at trial and trial counsel was not found ineffective by this Court or the Eleventh Circuit Court of Appeals for failing to call Chancey to testify. See Tompkins, 549 So.2d at 1372; Tompkins, 193 F.3d at 1333. Thus, even if we were to assume that this limited piece of information in the Albach files is favorable to Tompkins, he has failed to demonstrate prejudice.

      . The report states in pertinent part:
      SWEENY advised that it was very strange the explanation given surrounding LISA'S disappearance. She advised that she was told thát LISA had come home, found WAYNE sitting at the kitchen table with her mother, and asked "what the hell is he doing here!” Her mother, BARBARA, explained that he had no place to go and that she was going to let him move in with them, until he could get on his feet. At that point LISA ran out the back door. According to MAUREEN [SWEENY], it was very unusual for LISA to be outside without her makeup and supposedly she had been outside and then come inside and then gone out again without her makeup. LISA’s brother BILLY left the house to go find her and came back to take care of JAMIE.
      SWEENY advised that she had been told that WAYNE had gotten up to chase LISA to try and catch her but she was gone, by the time he got outside. SWEENY advised that LISA had left her purse containing her makeup, etc. on the table.

      . With respect to the Willis statement, the report states in pertinent part: "That is when WAYNE and BARBARA told MIKE the story about the last time they saw LISA. The day they last saw LISA was the day WAYNE moved back into the house on Osborne. She became upset because of the fact that she [sic] was moving back and stormed out of the house."

      . When the hair samples were tested in 1984, nothing conclusive could be established.

      . Although the hair samples are no longer available, Tompkins contends that DNA testing is possible on other items found at the grave site, including the skeletal remains, robe, pajamas and miscellaneous debris.

      . This included dental identification, as well as evidence that the skeletal remains were that of a midteen female, that jewelry identified as Lisa’s was found next to the remains, and that the remains were found wrapped in a robe identified as belonging to Lisa.

      . We do not address Tompkins’ requests to the Hillsborough County Sheriffs Office, the Department of Corrections, the Florida Parole Commission and the Board of Executive Clemency in further detail because Tompkins has failed to present any argument as to how the trial court erred in denying the motion to compel with respect to these agencies. See Share v. State, 742 So.2d 215, 217 n. 6 (Fla. 1999) (stating that where defendant did not present any argument or allege on what grounds trial court erred in denying claims in his postconviction motion, claims were "insufficiently presented for review”); Coolen v. State, 696 So.2d 738, 742 n. 2 (Fla.1997) (explaining that the defendant's "failure to fully brief and argue” specific points on appeal "constitutes a waiver of these claims”).

      . The trial judge at this successive rule 3.850 proceeding was Judge Perry. The trial judge at the trial and for the initial postconviction motion was Judge Coe, who is now deceased.

      . At the evidentiary hearing, the prosecutor testified that he had no specific recollection of being called by Judge Coe's office. The prosecutor testified that the notes in his office's records indicated that someone from Judge Coe's office called him shortly after the jury returned its recommendation of death. The prosecutor stated that he assumed the call was to prepare the sentencing order because that would not have been unusual for Judge Coe to do.

      . See Spencer v. State, 615 So.2d 688, 690-91 (Fla.1993) (setting forth exact procedure to be used in sentencing phase proceedings, including requirement 'that after hearing any additional evidence presented by the State or the defendant, the trial court "recess the proceeding to consider the appropriate sentence”); Grossman v. State, 525 So.2d 833, 841 (Fla.1988) (holding that "all written orders imposing a death sentence be prepared prior to the oral pronouncement of sentencing for filing concurrent with the pronouncement”).

      . Although we do not condone the ex parte communication in this case, we note that Tompkins was not denied either a neutral, detached judge or an impartial sentencer. Compare Randolph v. State, 853 So.2d 1051, 1064 (Fla.2003) (concluding that the defendant was not denied a neutral and detached judge where the judge’s law clerk engaged in an ex parte communication with the prosecutor but there was no evidence that the judge determined that the defendant would receive a death sentence prior to the sentencing proceedings) with Porter v. State, 723 So.2d 191, 197 (Fla.1998) (concluding that the defendant was entitled to a new sentencing based on evidence that the trial judge made up his mind to sentence the defendant to death before the penalty proceedings began).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Henry Alexander DAVIS, Appellee/Cross-Appellant. Henry Alexander Davis, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC02-803, SC03-186.
    Supreme Court of Florida.
    Feb. 19, 2004.
    Rehearing Denied April 21, 2004.

      Charles J. Crist, Jr., Attorney General and Scott A. Brown, Assistant Attorney General, Tampa, FL, for Appellant/Cross-Appellee, Petitioner.
    Leslie Anne Scalley, Assistant CCRC and Marie-Louise Samuels Parmer, Assistant CCRC, Capital Collateral Regional Counsel-Middle Region, Tampa, FL, for Appellee/Cross-Appellant, Respondents.
   PER CURIAM.

This case comes to us as a State appeal of a trial court order granting a new penalty phase on Davis’s motion for postconviction relief, a cross-appeal by Davis of the denial by the trial court of a new guilt phase, and a petition by Davis for a writ of habeas corpus. The trial court ordered a new penalty phase after concluding that Davis’s trial counsel was ineffective in failing to adequately investigate and present evidence of Davis’s brain damage and background, and in failing to assert the statutory “age” mitigator. We do not reach this issue, and instead conclude that a new guilt phase is warranted because the blatant expressions of racial prejudice by trial counsel in this case constitute ineffective assistance of counsel that affected the fairness and reliability of the proceedings to such an extent that our confidence in the outcome is undermined.

I. FACTS AND PROCEDURAL HISTORY

The,facts pertinent to the issue we decide today are as follows. Davis, an African-American male who was 22 at the time, was accused of stabbing to death Joyce Ezell, a 73-year-old white woman, in the foyer of Ezell’s house in Lake Wales on March 18, 1987. Davis was arrested two days after the murder. Two other attorneys preceded trial counsel in representing Davis on these charges. In preparing his defense, Davis’s first lawyer visited the home of Davis’s family, where a relative asked him about Davis’s seizures, a condition of which the attorney had been unaware. This discovery led that attorney to gather additional information and then successfully move to have Davis declared incompetent to stand trial in September ' 1988. The first attorney withdrew, and a second attorney represented Davis from September 1988 to June 1989, until he also withdrew. Davis was declared competent, and a third attorney, who is the subject of the ineffective assistance claim herein, then assumed representation of Davis. The third attorney, whom we refer to herein as- trial counsel, represented Davis in his January 1990 murder trial.

Trial counsel testified in the postconviction proceedings that in presenting his defense in this case, he favored a “minimalist,” “less is more” approach. Accordingly, trial counsel declined to present the testimony of two African-American witnesses whose testimony might have implicated others in the murder, consistent with Davis’s defense that he .was present during or just after a murder that was committed by someone else. Trial counsel also elected not to call friends and family members who would have contradicted testimony by an acquaintance of Davis that on the day after the murder, Davis had bloody scratches around his eyes. Additionally, as found by the trial court in its order granting Davis a new penalty phase, trial counsel “did not obtain Davis’s school records, never visited Davis’s family or neighborhood, [and] did not talk to his family members, coaches or friends.”

These considerations serve as a backdrop for trial counsel’s comments while questioning an apparently all-white panel of potential jurors during voir dire. Using what he described during the rule 3.850 hearing as a hand-drawn chart with a thermometer to discuss how the jurors’ “feelings might grow in intensity possibly towards black people,” trial counsel stated:

Now, Henry Davis is my client and he’s a black man, and he’s charged with killing Joyce Ezell who was a white lady, lived in Lake Wales. Now, all of us that are talking now, myself and all of y’all, are all white.
There is something about myself that I’d like to tell you, and then I’d like to ask you a question. Sometimes I just don’t like black -people. Sometimes black people make me mad just because they’re black. And, you know, I don’t like that about myself. It makes me feel ashamed. But, you know, sometimes if this was a thermometer of my feelings, and if you took it all the way up to the top, and this was one, this was five, all the way up here was ten, you know, my feelings would sometimes start to boil and I get so mad towards black people because they’re black that it might go all the way up to the top of that scale. And, you know, I’m not proud of that and it embarrasses me to tell y’all that, to say it in public.

(Emphasis supplied.) In followup questioning of individual jurors — none of whom stated that they shared counsel’s sentiments — trial counsel stated, “Well, I’m a white.southerner, and I’ve got those feelings in me that I — maybe I grew up with them.” During his penalty-phase closing argument, trial counsel reminded the jurors of his comments during jury selection:

Henry is a black man, Mrs. Ezell was a white woman. We are all of us white. I’m a white southerner. You have told me and the court that you , would disregard and not base your verdict on the question of race. I will believe you, I will trust you on that. It is hard for me to talk to you, my friends and neighbors, about something like this.. I will not believe that race will be a factor in your decision, but I will ask you to be especially vigilant, because being a white southerner, I know where I come from. And I told you a little bit when we were questioning you as to potential jurors about some feelings that I have, and maybe very deep down y’all have them too.

During the rule 3.850 hearing, trial counsel testified that he decided on the comments excerpted above as a way of getting jurors to “drop the mask” and acknowledge hidden feelings about race. He testified that his comments constituted “new ground” for him, but he felt the approach was warranted because this was an “extreme case, a very bad case on the facts.” Trial counsel testified that he discussed the strategy with Davis, who told him that blacks sometimes feel the same way about whites.

The jury found Davis guilty as charged of first-degree murder, robbery with a deadly weapon, and burglary with a battery, and recommended death for the murder by a vote of twelve to zero. The trial court imposed the death penalty for the murder, finding four aggravating circumstances and insufficient mitigation to justify a sentence other than death. On direct appeal, this Court struck two aggravators and remanded for resentencing. See Davis v. State, 604 So.2d 794, 797-99 (Fla.1992). The trial court again imposed death on remand, and this Court affirmed. See Davis v. State, 648 So.2d 107, 110 (Fla.1995).

In his motion for postconviction relief, Davis asserted multiple grounds for a new trial, including trial counsel’s comments during voir dire, the failure to call witnesses whose testimony would have tended to implicate others in the murder, and the failure to impeach a witness who testified to scratches on Davis’s face. The trial court denied relief on all these grounds. The trial court determined that the remarks on racial animus made by counsel during voir dire were a legitimate tactical approach by experienced counsel, and that Davis approved the tactic. The court concluded that “[njothing in the record supports Davis’ claim that his attorney is a racist and as a result failed to properly represent him.”

II. ANALYSIS

Claims of ineffective assistance of trial counsel require a showing of deficient performance and prejudice. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Gore v. State, 846 So.2d 461, 467 (Fla.2003). Second, the deficiency must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. The two prongs are related, in that “the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Rutherford v. State, 727 So.2d 216, 219 (Fla.1998) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). In reviewing a trial court’s ruling on an ineffective assistance claim, this Court defers to findings of fact based on competent, substantial evidence and independently reviews deficiency and prejudice as mixed questions of law and fact. See Gore, 846 So.2d at 468; Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999).

Applying these standards and principles, we conclude that the expressions of racial animus voiced by trial counsel during voir dire so seriously affected the fairness and reliability of the proceedings that our confidence in the jury’s verdicts of guilt is undermined. We cannot agree with the trial court’s conclusion that an explicit expression of racial prejudice can be considered a legitimate tactical approach. Whether or not counsel is in fact a racist, his expressions of prejudice against African-Americans cannot be tolerated.

Initially, we strongly reaffirm the principle that racial prejudice has no acceptable place in our justice system. As we stated in Powell v. Allstate Insurance Co., 652 So.2d 354, 358 (Fla.1995),

[t]he founding principle upon which this nation was established is that all persons were initially created equal and are entitled to have their individual human dignity respected. This guarantee of equal treatment has been carried forward in explicit provisions of our federal and state constitutions. It is not by chance that the words “Equal Justice Under Law” have been placed for all to see above the entrance to this nation’s highest court. If we are to expect our citizens to treat one another with equal dignity and respect, the justice system must serve as the great: example of maintaining that standard. And while we have been far from perfect in implementing this founding principle, our initial declaration and our imperfect struggle and efforts have served as a beacon for people around the world.

In Powell, wé considered whether to authorize an inquiry to ascertain whether racist jokes and statements were made by jurors in a trial involving’ a suit by the plaintiffs, who were black citizens of Jamaica, against an insurance company for claims arising from an automobile accident. See id. at 355. We authorized the inquiry, and ruled that if the trial court determined that the statements were in fact made, the comments warranted a new trial. See id. at 358. Rejecting any notion that this was not a proper concern within the purview of the justice system; we stated:

The issue of racial, ethnic, and religious bias in the courts is not simply a matter of “political correctness” to be brushed aside by a thick-skinned judiciary....
Despite longstanding and continual efforts, both by legislative enactments and by judicial decisions to purge our society of the scourge of racial and religious prejudice, both racism and-anti-Semitism remain ugly malignancies sapping the strength of our body politic. The judiciary, as an institution given a constitutional mandate to ensure equality and fairness in the affairs of our country when called on to act in litigated cases, must remain ever vigilant in its responsibility. The obvious difficulty with prejudice in a judicial context is that it prevents the impartial decision-making that both the Sixth Amendment and fundamental fair play require. A racially or religiously biased individual harbors .certain negative stereotypes which, despite his protestations to the contrary, may well prevent him or her from making decisions based solely on the facts and law that our jury system requires.

Id. (quoting United States v. Heller, 785 F.2d 1524, 1527 (11th Cir.1986)). The United States Supreme Court has observed that it has been compelled to “engage[] in ‘unceasing efforts’ to eradicate racial prejudice from our. criminal justice system.” McCleskey v. Kemp, 481 U.S. 279, 309, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (quoting Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)).

The necessity of vigilance against the influence of racial prejudice is particularly acute when the justice system serves as the mechanism by which a litigant is required to forfeit his or her very life. As the United States Supreme Court first stated more than twenty-five years ago, “death is different in kind from any other punishment imposed under our system of criminal justice.” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); see also State v. Dixon, 283 So.2d 1, 7 (Fla.1973) (stating that because “[d]eath is a unique punishment in its finality and in its total rejection of the possibility of rehabilitation ..., the Legislature has chosen to reserve its application to only the most aggravated and unmitigated of most serious crimes”). We have acknowledged that “death is different” in recognizing the need for effective counsel in capital proceedings “from the perspective of both the sovereign state and the defending citizen.” Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 932 (Fla.2002).

In Robinson v. State, 520 So.2d 1, 7 (Fla.1988), this Court emphasized that the “risk of racial prejudice infecting a criminal trial takes on greater significance in the context of a capital sentencing proceeding.” Accordingly, we vacated a death sentence because of the prosecutor’s suggestion during cross-examination of a defense expert that the black defendant preyed on white women.

In a noncapital case, the First District overturned- a second-degree murder conviction because of an improper appeal to racial prejudice. See Wallace v. State, 768 So.2d 1247, 1250-51 (Fla. 1st DCA 2000). In Wallace, the prosecutor disregarded the trial court’s admonition against emphasizing that before a fatal confrontation with another man, the black defendant was making vulgar remarks to a white woman. See id. at 1249. The First District stated:

" In the present case, the jurors were required to determine whether the homicide was justifiable. The race ' of' the woman with whom the defendant had been conversing in the café earlier in the evening had nothing to do with the issue of his guilt or innocence. All the prosecutor needed to do to put the events in the proper context was to elicit a brief statement that the defendant was asked to leave because he was arguing with another patron. Nevertheless, he repeatedly emphasized that the woman in the café was a white woman and he repeatedly stressed the fact that the defendant had been making vulgar comments to her.
These actions effectively invited the jury to make a decision based on a characterization of the defendant and not on the evidence of his guilt or innocence. Without even a pretense of relevancy the prosecutor managed to conjure up the image of a black man making rude and sexually offensive comments to a white woman. Some members of the defendant’s all-white jury may have reacted negatively to this portrayal of the defendant, regardless of their views of the evidence.
We are not suggesting that the jurors were affected by the prosecutor’s appeal to racial prejudice merely because all of them are white. The point is that no jury should be exposed to an argument like the one made in this case.

Id. at 1250 (emphasis supplied).

In light of the repeated admonitions by the United States Supreme Court, this Court, and others against allowing racial prejudice to play any part in the determination of guilt or imposition of sentence in a criminal case, we are greatly disturbed by trial counsel’s blatant acknowledgment to the jury, in defending an African-American defendant accused of an interracial crime, of his negative feelings toward “black people just because they’re black.” We condemn these statements not because counsel chose to discuss the topic of race in voir dire, which is permissible, but because he did so in a manner that fatally compromised his ability to effectively represent Davis in his capital trial and created a reasonable probability of unreliable convictions.

“[A] capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” Turner v. Murray, 476 U.S. 28, 36-37, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). The decision whether to question jurors on feelings about race is within trial counsel’s discretion. See id. at 37 n. 10, 106 S.Ct. 1683 (“Should defendant’s counsel decline to request voir dire on the subject of racial prejudice, we in no way require or suggest that the judge broach the topic sua sponte.”) Recently, this Court held that trial counsel was not ineffective in choosing not to explore the issue of racial prejudice during jury selection in a capital ease. See Fennie v. State, 855 So.2d 597, 603 (Fla.2003).

In this case, as in Fennie, see id., the defendant was black and the victim white, and there was no apparent racial motivation for the crime. Instead, the evidence pointed to a theft as the motive for the murder. The victim’s silver serving pieces, her purse and wallet, a pearl-handled pistol, some rare coins, jewelry, a ring belonging to her late husband, and her car were taken from her home.

The issue is not that Davis’s trial counsel chose to question jurors on their feelings about race but rather what counsel stated about his own racial prejudices. The manner in which counsel approached the subject unnecessarily tended either to alienate jurors who did not share his animus against African Americans “just because they’re black,” or to legitimize racial prejudice without accomplishing counsel’s stated objective of bringing latent bias out into the open. We conclude that counsel’s admission of his own racial prejudice constituted deficient performance satisfying the first prong of an ineffective assistance claim.

With respect to both the first and second prongs of the ineffective assistance of counsel claim, there is also evidence in this record to suggest that counsel’s expressions of racial bias during voir dire affected his performance in both the guilt and penalty phases of Davis’s trial, creating an unacceptable risk that prejudice clouded counsel’s judgment and diminished the force of his advocacy.

In the guilt phase, trial counsel rested without presenting a case. While not presenting a defense case in a first-degree murder prosecution is not inherently deficient performance, in making this decision counsel opted not to present two African-American witnesses whose testimony would have implicated others in the murder. Counsel testified that he declined to present the testimony of one of the witnesses, who would have placed two other men at the murder scene with Davis, because he considered a neighbor of the victim who saw Davis approach the victim’s house alone to be more credible. The neighbor was white. Asked whether it would have been beneficial nonetheless to place others who may have actually committed the murder at the victim’s house with Davis, trial counsel testified during the rule 3.850 hearing that “for some reason it was my decision then that this was not testimony that was going to help me.” A second African-American witness would have testified that he participated in helping one of the other men identified by the first witness as being at the victim’s house in disposing of bloody clothing at around the time of the murder. Trial counsel testified during the rule 3.850 hearing that he declined to present this witness because he “couldn’t get any corroboration or anything that I thought I could use at trial.”

Both witnesses would have supported the defense theory that, although Davis may have been present during or immediately after the killing, he did not commit the murder. We view these decisions by trial counsel as additional indications that his judgment may have been affected by improper considerations, consistent with the views he expressed during voir dire.

The grounds on which the trial court found counsel ineffective as to the new penalty phase also support our conclusion that improper racial considerations compromised counsel’s representation. We note that in its order granting Davis a new penalty phase, the trial court found that counsel admitted

that he did not obtain Davis’ school records, never visited Davis’ family or neighborhood, did not talk to his family members, coaches or friends.
[Trial counsel] could, through reasonable diligence, have discovered those mitigation witnesses Davis presented at the evidentiary hearing. Counsel failed to present this additional mitigation evidence at trial....
... Every single bit of mitigation offered may have had a substantial effect on the jury’s recommendation of the trial judge’s sentence. [Trial counsel] failed to properly investigate and present this available mitigation evidence.

There is simply no explanation why trial counsel would not have explored this type of standard mitigation testimony by visiting Davis’s nearby family or neighborhood.

We also note that trial counsel reprised his acknowledgments of racial prejudice in his closing argument during the penalty phase. As asserted by Davis in the post-conviction proceedings, these remarks may either have been perceived as an insult by the jurors, none of whom had acknowledged during voir dire that they shared counsel’s bias, or implicitly validated any latent racial bias on the part of the jurors.

For all these reasons, counsel’s overt admissions of racial prejudice compromised his representation to such an extent that it has undermined our confidence in the guilty verdicts. Thus, we conclude that Davis has also met the standard for prejudice, in that because of counsel’s deficient performance, “the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Accordingly, we reverse the trial court’s order denying Davis’s motion to vacate his convictions and remand for a new trial.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, CANTERO, and BELL, JJ., concur.

ANSTEAD, C.J., concurs with an opinion.

QUINCE, J., recused.

ANSTEAD, C.J.,

concurring.

I fully concur in the majority’s opinion that trial counsel’s conduct in this case constituted a patent deficient performance which prejudiced Davis to the extent that we can have no confidence in the outcome of his trial. I write separately to praise the prospective jurors in this case for then-enlightened responses to trial counsel’s blatantly improper questions and statements.

Despite trial counsel’s persistent attempts and invitations to elicit admissions of racial prejudice from the panel during voir dire, the panel members were steadfast in their rejection of counsel’s assumptions and in their refusal to allow Davis’s race to become a factor in the case they might soon hear. The following exchanges demonstrate the panel’s integrity and refusal to take the “bait” offered by counsel:

Prospective Juror Read: I get angry with people but never because of the color of their skin.
Counsel: OK, Mr. Davis, do you?
Prospective Juror Davis: Hart.
Counsel: Mr. Hart, I’m sorry. Mr. Hart?
Prospective Juror Hart: I don’t agree with you at all. I was born and raised in Brooklyn, New York. I was born and raised with black people. They were my best of friends when I was growing up. I judge everybody as they are. I don’t care what color their skin is. That’s very unfair.
Counsel: You know what I’m saying, Mr. Hart?
Prospective Juror Hart: Yeah, but I don’t agree with you on it. I’m sorry, I just don’t agree. You judge people for who they are, not what color skin they have. There’s bad white people, too, and Spanish and Mexican, Asian. We all have our faults.
Counsel: This is a young black man that’s asking you for justice.
Prospective Juror Yasquez: Uh-huh.
Counsel: You think you can give it to him?
Prospective Juror Vasquez: Same as a white person, yes. It’s whether they’re guilty or not.
Counsel: OK. Ms. Strong, how do you feel?
Prospective Juror Strong: I feel I could give him justice, too. I used to teach kindergarten kids, they’re black and white and Mexican. We all got along, no problems.
Counsel: OK. Mr. O’Leary?
Prospective Juror O’Leary: I went in the service in the early fifties when it was probably one of the only truly integrated organizations in the United States, and I spent 20 years there. I’ve been a teacher at the college ever since with both black and white students. I have no problem whatsoever with that, I really don’t.

It is of the utmost importance that racial prejudice not enter into Florida’s courtrooms. Attorneys, judges and all citizens must be the bearers of this standard. Today though, I acknowledge with great pride, the example set for us all by the citizen jurors who stood in for us in this case. We, as Americans and Floridians, have much to be thankful for. But we should be especially thankful for the courage and conviction of these citizens to reject counsel’s improper suggestion that they must surely suffer from the same affliction that he had. They were on the front line with no warning of what was to come, yet they rose to the occasion.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . The records on appeal in this case and in Davis’s direct appeal do not reflect any challenge to the composition of the venire or Davis’s jury. During the hearing on Davis’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, trial counsel acknowledged that no African Americans served on the twelve-person jury that found Davis guilty of murder and recommended the death penalty.

      . We do not address the additional issues raised in the State appeal and Davis’s cross-appeal and habeas petition because these issues are rendered moot by our decision herein.


author: PER CURIAM.

text:
    In the Interest of A.G., a child. R.L.G., Appellant, v. Department Of Children And Family Services, Appellee.
    No. 2D01-4973.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    R.L.G., pro se.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

FULMER, CASANUEVA, and SILBERMAN, JJ., Concur.