text:
    STATE of Alabama v. Paige Tidwell GARGUS.
    CR-01-1468.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellant.
    Alexander M. Smith, Oneonta, appellee.
   SHAW, Judge.

The State of Alabama appeals from the trial court’s order granting, in part, Paige Tidwell Gargus’s motion to suppress evidence seized as the result of a traffic stop.

On May 25, 2001, Gargus was indicted for unlawful possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975, and unlawful possession of a controlled substance, methamphetamine, a violation of § 13A-12-212, Ala.Code 1975. Gargus filed three motions to suppress the marijuana and methamphetamine evidence. The trial court conducted a suppression hearing on Gargus’s motions, during which the State offered into evidence, with Gar-gus’s consent, a transcript of testimony taken at the preliminary hearing.

At the preliminary hearing, Benny Richardson, a corporal with the Oneonta Police Department, testified that, on the night of September 24, 2000, at approximately 11:30 p.m., he was on patrol when he observed a Pontiac Trans Am automobile traveling extremely slow on Jefferson Avenue. He began to follow the vehicle, and he noticed that the driver, whom he later identified as Gargus, was driving and braking erratically, that the vehicle was traveling 10-15 miles per hour in a 25-mile-per-hour zone, and that the vehicle frequently crossed over the center of the road into the oncoming lane of traffic. Cpl. Richardson testified that Gargus made several turns and then stopped in the road. At that point, Cpl. Richardson activated his emergency lights, stopped his patrol vehicle, and approached the Trans Am on foot.

When he reached the vehicle, Cpl. Richardson said, he asked Gargus if she was lost or if she needed help. She replied that she had just come from a Wal-Mart discount store. During this initial dialogue with Gargus, Cpl. Richardson noticed that she was “clenching something in her left hand in her pocket” and, for his own safety, requested that she remove her hand from her pocket, which she did. (C. 44.) Cpl. Richardson then continued talking to Gargus and noticed that her speech was slurred; he also detected a strong odor of “burnt marijuana smoke” emanating from the vehicle. (C. 44.) Cpl. Richardson testified that he asked Gargus where she lived, to which she replied that she lived right down the street, and that he then asked for her driver’s license, which she produced after having what Cpl. Richardson described as difficulty finding it in her purse despite the fact that, according to Cpl. Richardson, the license was in plain view when she first opened her purse.

At that point, Cpl. Richardson said, he became suspicious that Gargus was intoxicated, and he asked her to step out of her vehicle to perform field sobriety tests. According to Cpl. Richardson, when Gargus got out of the car, she stumbled and was unsteady on her feet, as if she were “lightheaded.” (C. 44.) When Cpl. Richardson began conducting the field sobriety tests, he noticed that Gargus put her hand on her left front pants pocket, the same pocket he had observed her hand in when he initially approached her car. Because he did not know what was in her pocket and because he was concerned for his own safety, he asked Gargus if she would mind emptying her pockets; she agreed to do so. Cpl. Richardson testified that as Gar-gus emptied her left front pants pocket a plastic baggie became partially visible. According to Cpl. Richardson, it was “immediately apparent” that the baggie “could” contain contraband. (C. 45.) When the baggie became visible, Cpl. Richardson said, Gargus pushed it back into the pocket. Cpl. Richardson then told Gargus to remove the baggie from her pocket. Cpl. Richardson testified that as Gargus removed the baggie and handed it to him, she said, “All I have is a small amount of marijuana and a pipe.” (C. 46.) The substance in the bag was later determined to be marijuana and it was determined that the pipe contained marijuana residue. At that point, Cpl. Richardson arrested Gargus, handcuffed her, and placed her in the backseat of his patrol vehicle.

After securing Gargus, Cpl. Richardson called a wrecker to tow the Trans Am and conducted what he called an inventory search of the vehicle, which, he said, was a policy of the police department whenever the sole occupant of a vehicle is taken into custody. During the search, Cpl. Richardson discovered a red plastic bowl in the console containing what appeared to be, and what was later determined to be, methamphetamine.

At the suppression hearing, Gargus proffered to the court that, if she were to testify, she would dispute two portions of Cpl. Richardson’s testimony at the preliminary hearing. First, according to Gargus, when Cpl. Richardson activated his emergency lights and executed a traffic stop of her vehicle, she was not stopped in the road, as Cpl. Richardson testified, but was traveling at approximately 5-10 miles per hour. In addition, Gargus said, when Cpl. Richardson initially approached her, she, not Cpl. Richardson, spoke first; she said that she immediately asked why she was being stopped and that Cpl. Richardson then asked her whether she was lost. The trial court accepted this proffer as evidence at the suppression hearing.

Gargus argued to the trial court that both the marijuana and methamphetamine evidence should be suppressed because, she said (1) Cpl. Richardson had no reasonable suspicion or probable cause for the initial stop of her vehicle; (2) there was no probable cause to order her to empty her pockets after she got out of the vehicle; and (3) the State failed to prove that the “inventory” search of her vehicle after she was arrested was conducted in accordance with the policies and procedures of the Oneonta Police Department. The State argued that there was reasonable suspicion to stop Gargus’s vehicle, that Gargus voluntarily emptied her pockets for Cpl. Richardson and admitted to possessing marijuana, and that the State did not have the burden of showing the rules and regulations for conducting an inventory search.

After a short recess, the trial court denied Gargus’s motion to suppress the marijuana evidence, specifically finding that Cpl. Richardson had reasonable suspicion to initiate a stop of Gargus’s vehicle, and that Gargus had voluntarily produced the marijuana from her pocket. However, the court granted Gargus’s motion to suppress the methamphetamine evidence discovered in the car. The court made the following findings of fact regarding the search of Gargus’s vehicle:

“The defendant was taken into custody for possession of marijuana. A wrecker was called. The vehicle was duly towed. At that time, the officer conducted an inventory search of the vehicle. The court has been furnished an inventory of the vehicle. The court has not been furnished with any evidence of what the policies and procedures are of the City of Oneonta for conducting an inventory search. The court finds that if at all in the record of the [preliminary] hearing there was merely a cursory conclusory statement by the officer that the policies and procedures of the Department were followed.... [T]he State has failed to produce at this hearing sufficient evidence to substantiate the inventory search of the vehicle.... ”

(R. 33-34.) Although the wording of the trial court’s findings suggests that Gar-gus’s vehicle was towed before the search was conducted, at a later point in the hearing, the trial court indicated that the search was conducted while Cpl. Richardson was waiting for the wrecker to arrive, and the undisputed evidence at the hearing showed that the search was conducted before the wrecker arrived at the scene. Therefore, it is clear to us that the trial court determined that the search was conducted before the wrecker arrived at the scene.

After the trial court issued its ruling, the State moved for a reconsideration of the ruling and offered a copy of the Oneonta Police Department’s policies and procedures with regard to inventory searches. The State also argued, for the first time, that even if the search was not a valid inventory search, it was a valid search incident to a lawful arrest. The trial court denied the State’s motion to reconsider. It allowed the State to introduce the policy-and-procedure manual into evidence for identification purposes only, but refused to consider the manual on the ground that the State had had the opportunity to introduce the manual during the suppression hearing and before the court issued its ruling, but chose not to do so. In addition, the court rejected the State’s argument that the search was incident to a lawful arrest on the ground that Gargus had already been handcuffed and placed in the backseat of Cpl. Richardson’s patrol car at the time the search was conducted.

On appeal, the State argues, among other things, that the trial court erred in suppressing the methamphetamine evidence because, it says, the search of Gar-gus’s vehicle was a valid search incident to a lawful arrest. Although the State does not concede that the search was not a valid inventory search, it argues that this Court need not reach that issue because the search was proper as a search incident to a lawful arrest. We agree.

Initially, we note that the standard of review in this case is de novo. It is well settled that “[i]n reviewing a decision of a trial court on a motion to suppress evidence, in a case in which the facts are not in dispute, we apply a de novo standard of review.” State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999). See also State v. Hill, 690 So.2d 1201 (Ala.1996); Tuohy v. State, 776 So.2d 896 (Ala.Crim.App.1999); and Barnes v. State, 704 So.2d 487 (Ala.Crim.App.1997). Although two portions of Cpl. Richardson’s testimony — whether he activated his emergency lights and executed the traffic stop before or after Gargus stopped her vehicle and whether, when Cpl. Richardson first approached Gargus’s vehicle, he spoke first or she spoke first— were disputed by Gargus, those two disputed portions of testimony do not pertain to the search of Gargus’s vehicle. The facts surrounding the search of the vehicle — which is the only issue before this Court — are undisputed. Therefore, the proper standard of review in this case is de novo.

In Baird v. State, 849 So.2d 223 (Ala.Crim.App.2002), this Court stated:

“ ‘ “ ‘This court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chevere v. State, 607 So.2d 361, 368 (Ala.Cr.App.1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985); Chevere, supra, 607 So.2d at 368.’ ”
‘State v. Mitchell, 722 So.2d 814 [, 820] (Ala.Cr.App.1998), quoting Rokitski v. State, 715 So.2d 859 [,861] (Ala.Cr.App.1997).’
“[State v. Otwell,] 733 So.2d [950,] 952 [(Ala.Crim.App.1999)].
“ ‘ “When officers lawfully arrest an automobile occupant, they may search the passenger compartment of the automobile as a contemporaneous incident of the arrest, and they also may examine the contents of containers found in the automobile.” ’ State v. Otwell, 733 So.2d at 954, quoting United States v. Diaz-Lizaraza, 981 F.2d 1216, 1222 (11th Cir. 1993). ‘This is so even though the appellant was already handcuffed and placed in the police officer’s car when the appellant’s car was searched.’ Mason v. State, 768 So.2d 981, 999 (Ala.Crim.App.1998), aff'd, 768 So.2d 1008 (Ala.2000), citing Gundrum v. State, 563 So.2d 27 (Ala.Crim.App.1990).”

849 So.2d at 229-30. In Sheffield v. State, 606 So.2d 183 (Ala.Crim.App.1992), this Court stated:

“After arresting the driver of an automobile, an officer ‘may, as a contemporaneous incident of that arrest, search the passenger compartment’ of that car, including ‘the contents of any containers found within the passenger compartment.’ New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Daniels v. State, 416 So.2d 760, 763 (Ala.Cr.App.1982). See also, State v. Calhoun, 502 So.2d 808 (Ala.1986).”

606 So.2d at 187. Additionally, in Mason v. State, 768 So.2d 981 (Ala.Crim.App.1998), aff'd, 768 So.2d 1008 (Ala.2000), this Court stated:

“Even if we were to conclude that the search was not authorized pursuant to an inventory search, the trial court’s denial of the motion to suppress is due to be affirmed because the search of the appellant’s vehicle was lawful as a search incident to an arrest. Sheffield, 606 So.2d at 187. This is so even though the appellant was already handcuffed and placed in the police officer’s car when the appellant’s car was searched. Gundrum v. State, 563 So.2d 27 (Ala.Crim.App.1990).”

768 So.2d at 999.

Moreover, in Adams v. State, 815 So.2d 578 (Ala.2001), the Alabama Supreme Court stated:

“A police officer’s detecting the smell of raw or burned marijuana coming from a particular place or person is sufficient to provide probable cause to search that place or person. See Blake v. State, 772 So.2d 1200 (Ala.Crim.App.2000) (holding that the odor of burning marijuana emanating from the defendant’s automobile constituted probable cause to search the defendant and his passenger and to arrest either for possession of marijuana); State v. Betterton, 527 So.2d 743, 745-46 (Ala.Crim.App.1986); State v. Mathews, 597 So.2d 235, 237 (Ala.Crim.App.1992). In Mathews, the Court of Criminal Appeals stated:
“ ‘ “It appears to be generally accepted that the smell of marijuana in its raw form or when burning is sufficiently distinctive to come within the rule of ... Johnson [v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 ... (1948), that probable cause to believe that an illegal substance is present may be established by smell]. Consequently, the courts have found probable cause to search when the distinctive odor of marijuana is found emanating from a particular place and have likewise found probable cause to arrest when the odor was detected coming from a particular person.”
“ ‘ “The odor of fresh marijuana or marijuana smoke, standing alone, has ... been held or recognized as providing probable cause to conduct war-rantless searches of ... persons and their clothing.” ’
597 So.2d at 237 (alterations in original; citations omitted).
“In Blake, the Court of Criminal Appeals addressed an issue of first impression, namely, ‘whether the odor of burned marijuana emanating from an automobile may be enough to provide probable cause to arrest the occupants of the vehicle.’ 772 So.2d at 1205. The Court of Criminal Appeals answered the question in the affirmative:
“ ‘The odor of burning marijuana emanating from [the defendant’s] car alerted the officers to the fact that marijuana was likely present or that it had been burned only shortly before and, also, that the car’s two occupants — particularly [the defendant], the driver in “control” of the car— likely possessed marijuana. This provided probable cause to arrest [the defendant] for possession of marijuana. Under the facts of this case, where two persons were sitting in the front seat of an automobile, we do not believe that an individualized suspicion was required to arrest either [the defendant] or his passenger. To require such individual suspicion in all cases would be to say that even where the odor of burning marijuana is emanating from the relatively close confines of an automobile — therefore clearly justifying a search of the automobile — if the occupants of the vehicle have the foresight to quickly secrete the controlled substance in their pockets, they may drive away after the search of the vehicle proves fruitless. See Brunson [v. State], 327 Ark. [567,] 572, 940 S.W.2d [440,] 442 [(1997), cert. denied, 522 U.S. 898, 118 S.Ct. 244, 139 L.Ed.2d 173 (1997)]; [see] also 3 W. LaFave, Search and Seizure, § 7.2(e) at 508 (3d ed.1996).’ ”

815 So.2d at 581-82 (footnote omitted).

Based on our review of the record, it is clear that the search of Gargus’s vehicle was valid as a search incident to a lawful arrest. When Gargus was initially stopped, Cpl. Richardson smelled the odor of “burnt marijuana smoke” emanating from Gargus’s vehicle. This, by itself, established probable cause and, also considering the inherent mobility of automobiles, see Seagroves v. State, 726 So.2d 738, 743 (Ala.Crim.App.1998); Sheffield, 606 So.2d at 187, justified a warrantless search of the vehicle. In addition, once Gargus was arrested for possession of marijuana, which the trial court found was a lawful arrest, Cpl. Richardson could properly search the vehicle incident to that lawful arrest, despite the fact that Gargus was handcuffed and secured in the backseat of his patrol car. Therefore, the trial court erred in suppressing the methamphetamine evidence.

Based on the foregoing, the judgment of the trial court is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . In fact, the record reflects that the vehicle was never actually towed or impounded, but instead, was released to Gargus’s husband at the scene.

      . Gargus argues, on the other hand, that this Court should not consider whether the search was valid as a search incident to a lawful arrest because, she says, "[t]here is no testimony in the record from the arresting officer that he at any time considered this search a search incident to a lawful arrest." (Gargus’s appellate brief at p. 15.) However, it is well settled that " '[a]s long as the police officer is doing only what is objectively authorized and legally permitted, the officers subjective intent in doing it is irrelevant.’ ” Woods v. State, 695 So.2d 636, 640 (Ala.Crim.App.1996), quoting Hutcherson v. State, 677 So.2d 1174, 1184 (Ala.Crim.App.1994), rev’d on other grounds, 677 So.2d 1205 (Ala.1996).

      . We note that Gargus argues that this Court should not uphold the search as valid incident to a lawful arrest because, she says, the search exceeded the scope of a search incident to a lawful arrest because Cpl. Richardson searched the trunk of the vehicle, not merely the passenger compartment. However, as the State correctly points out in its reply brief, the methamphetamine evidence was found in the console in the passenger compartment, not in the trunk.


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    Remus Lashun McNEALY v. STATE of Alabama.
    CR-01-2102.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.

      M. Adam Jones, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   BASCHAB, Judge.

On October 11, 2001, the appellant, Remus Lashun McNealy, was convicted of second-degree receiving stolen property. The trial court sentenced him to serve a term of fifteen years in prison, but suspended the sentence and ordered him to serve two years on supervised probation. On April 16, 2002, the appellant’s probation officer filed a motion to revoke and an “Officer’s Report on Delinquent Probationer.” After conducting a revocation hearing, the circuit court revoked the appellant’s probation. This appeal followed.

The appellant argues that, in its written revocation order, the circuit court did not adequately state the evidence upon which it relied and its reasons for revoking his probation, as required by Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). The State asks that we remand this case and instruct the circuit court to enter an adequate written revocation order. The case action summary sheet in this case merely includes the notation “Probation is revoked.” (C.R.2.) That notation does not include a statement of the evidence upon which the circuit court relied in revoking the appellant’s probation or the circuit court’s reasons for revoking his probation. See Durr v. State, 807 So.2d 595 (Ala.Crim.App.2001). Accordingly, we remand this case to the circuit court with instructions that that court enter a written order that specifically states the evidence upon which it relied and its reasons for revoking the appellant’s probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 21 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

       Note from the reporter of decisions: On February 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: PER CURIAM.

text:
    Ex parte Jimmy Lee BROOKS, Jr. (In re State of Alabama v. Jimmy Lee Brooks, Jr.).
    CR-02-0692.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 2003.

      L. Joel Collins, Phenix City; and Jeffrey M. Compton, Sr., Phenix City, for petitioner.
    Submitted on petitioner’s brief only.
   PER CURIAM.

The petitioner, Jimmy Lee Brooks, Jr., filed this petition for a writ of mandamus directing Judge Albert L. Johnson to re-cuse himself from Brooks’s capital-murder trial.

Brooks and his codefendant, Michael David Carruth, were indicted for four counts of murder made capital because the victim, 12-year-old William Brett Bowyer, was less than 14 years of age and because the victim was murdered during the course of a kidnapping, burglary, and robbery. Brooks was also indicted for the attempted murder of Butch Bowyer, William’s father. Judge George Greene was originally assigned to preside over his case. However, Brooks filed a petition for a writ of mandamus requesting that we direct Judge Greene to recuse himself because his name was on the supposedly false search warrants that Brooks, posing as a police officer, allegedly used to gain entry into the Bowyer house. We issued the writ and directed Judge Greene to recuse himself from the case. See Ex parte Brooks, 847 So.2d 396 (Ala.Crim.App.2002). The case was then reassigned to Judge Johnson. Brooks then moved for Judge Johnson to recuse himself because he had signed the search warrant pursuant to which evidence against Brooks was obtained. Judge Johnson denied the motion; this petition followed.

Brooks argues that we should direct Judge Johnson to recuse himself from Brooks’s capital-murder trial because he will be called upon to examine the sufficiency of the affidavit in support of the search warrant — a warrant he has already approved. He cites our case of Ex parte Fowler, [Ms. CR-00-2513, .November 2, 2001] - So.2d - (Ala.Crim.App.2001) (pending on certiorari review), in support of his argument that we should direct Judge Johnson to recuse himself because, he says, his presiding creates an appearance of impropriety.

This Court has addressed a similar issue and stated:

‘“Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge’s presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence.’
“Withrow v. Larkin, 421 U.S. 35, 56, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712 (1975).
“ ‘A trial judge’s participation in a previous proceeding in a case does not ipso facto render him disqualified to preside at trial. A judge is not disqualified to sit in a trial on the merits by-having heard and decided a preliminary proceeding in the same cause. So, the fact that he conducted the preliminary examination which resulted in the prosecution of the accused does not, in the absence of any showing as to any personal bias or prejudice, disqualify him from presiding at the trial. Nor is a judge disqualified to try a criminal case because he had ordered the grand jury which indicted the defendant, and had presided throughout the grand jury proceedings, and had passed on numerous preliminary motions.’
“46 Am.Jur.2d Judges § 181 (1969).
“Thus, absent a showing of prejudice, an issuing magistrate may properly serve as the trial judge on the same cause.”

Heard v. State, 574 So.2d 873, 874-75 (Ala.Crim.App.1990).

Our holding in Heard is consistent with the majority of other jurisdictions that have specifically addressed this issue. The Mississippi Court of Appeals, in Wallace v. State, 741 So.2d 938 (Miss.Ct.App.1999), summarized the holdings of other jurisdictions on this issue:

“The question of whether a judge is automatically disqualified from hearing a case simply because he learned some of facts and circumstances of the case by signing a search warrant has never specifically been addressed by our supreme court. However, a review of other jurisdictions has turned up considerable authority that recusal is not required.
“In Stokes v. State, 853 S.W.2d 227, 242 (Tex.App.1993) (citations omitted [in Wallace]), the court noted that it has been held in numerous Texas cases ‘that the mere fact that a judge authorized arrest and search warrants involved in a case is not a barrier to that judge presiding over the trial of that case on its merits.’ In Bussell v. Commonwealth, 882 S.W.2d 111, 112 (Ky.1994) (citations omitted [in Wallace]), the court found to be without merit appellant’s claim that the trial judge should have recused himself because he had ruled on an ex parte request for a search warrant, holding that ‘[rjecusal is appropriate only when the information is obtained from an extrajudicial source.’ Finally, in People v. McCann, 85 N.Y.2d 951, 626 N.Y.S.2d 1006, 650 N.E.2d 853, 854 (1995), the court held that it was not necessary for a judge who issued a warrant to recuse himself even from ruling on the motion to suppress evidence seized pursuant to that warrant. See also People v. DeJesus, 38 Cal.App.4th 1, 15-16, 44 Cal.Rptr.2d 796 (1995).”

741 So.2d at 941-42. People v. Antoine, 335 Ill.App.3d 562, 781 N.E.2d 444, 269 Ill.Dec. 647 (2002) (fact that a judge signed a search warrant is not alone sufficient to show prejudice so as to warrant the judge’s recusal); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987) (Canon 3(C)(1)(a) of the Code of Judicial Ethics does not require a judge who signed the search warrant to recuse himself or herself from presiding over the case); Hawkins v. State, 586 S.W.2d 465 (Tenn.1979) (judge who signed the search warrant is not so interested in the cause as to be disqualified from presiding over further proceedings); People v. Tambe, 71 N.Y.2d 492, 506, 527 N.Y.S.2d 372, 379, 522 N.E.2d 448, 455 (1988) (“There is no basis to conclude that [judges who issue warrants and then rule on suppression motions] fail to give suppression motions anything less than fair and impartial consideration....”).

Any other conclusion would be unduly burdensome and virtually impossible for many smaller counties, such as the one involved in this case, to enforce. The Mississippi Supreme Court also recognized the problems associated with the holding urged by the petitioner when that Court stated:

“ ![I]f we should hold that a trial judge is disqualified merely because he has previously presided at the trial of a case involving the same evidence and transaction, then it would be necessary for him to stand aside and turn the duties of his office over to a special judge in every case in which there has been a mistrial, in every case where on appeal a new trial has been ordered, in every case where he himself has granted a new trial, and in every case growing out of the same transaction or based upon the same facts. The Legislature has not so enacted and we decline to adopt such a rule.’ ”

Farmer v. State, 770 So.2d 953, 957 (Miss.2000), quoting Garrett v. State, 187 Miss. 441, 455, 193 So. 452, 456 (1940).

Alabama courts have never held that a judge should disqualify himself or herself because of a prior involvement in a case in a judicial capacity. Neither does our holding in Fowler, supra, suggest otherwise. See Giles v. State, 554 So.2d 1073 (Ala.Crim.App.1984), rev’d on other grounds, 554 So.2d 1089 (Ala.), on remand, 554 So.2d 1094 (Ala.Crim.App.1987) (trial judge was not required to recuse himself in second capital-murder trial after judgment in first trial was reversed); Murphy v. State, 403 So.2d 314 (Ala.Crim.App.), cert. denied, 403 So.2d 316 (Ala.1981) (trial judge who presided over the district-court hearing to transfer juvenile for trial as an adult was not required to recuse himself from presiding over the juvenile’s capital-murder trial).

The issue presented in this case is unlike the situation that we addressed in the previous petitions filed by Brooks and his codefendant Carruth. Ex parte Brooks, supra. We issued the writs in those petitions because the judge assigned to the case had direct personal knowledge of the facts and elements of the offenses — knowledge not gained in his judicial capacity.

This petition fails to disclose any reason for Judge Johnson to recuse himself from presiding over Brooks’s capital-murder trial. The mere fact that Judge Johnson signed the search warrant used to obtain evidence against Brooks is not alone sufficient to warrant Judge Johnson’s recusal. This petition is due to be, and is hereby, denied.

PETITION DENIED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Carruth also filed a petition for a writ of mandamus directing Judge Johnson to recuse himself from presiding over Carruth’s case. Carruth alleged that Judge Johnson showed bias toward the owner of a bonding company — Carruth's ex-wife. We are today denying Carrath's petition without opinion.


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

text:
    Alfred Lewis FENNIE, Appellant, v. STATE of Florida, Appellee. Alfred Lewis Fennie, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC01-2480, SC02-1180.
    Supreme Court of Florida.
    July 11, 2003.
    Rehearing Denied Sept. 18, 2003.

      Michael P. Reiter, Capital Collateral Regional Counsel-North, John M. Jackson, Assistant CCRC-N, Judy K. Walker, Staff Attorney, Office of the Capital Collateral Regional Counsel-North, Tallahassee, FL; and D. Todd Doss, Registry Counsel, Lake City, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee/Respon-dent.
   PER CURIAM.

Alfred Lewis Fennie appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Fennie also petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. For the reasons stated herein, we affirm the circuit court’s denial of Fennie’s rule 3.850 motion and deny his habeas petition.

BACKGROUND AND FACTS

On September 27, 1991, Alfred Lewis Fennie was indicted by a grand jury and charged with one count each of first-degree murder, robbery with a firearm, and armed kidnapping. Fennie pled not guilty and proceeded to trial in November 1992. In our decision affirming Fennie’s conviction and sentence, this Court summarized the facts of the case. See Fennie v. State, 648 So.2d 95, 96 (Fla.1994). Our earlier opinion outlined the facts pertinent to this proceeding.

The victim in the instant case, Mary Elaine Shearin, was found dead beside a Hernando County road with her hands bound behind her back and a single gunshot wound to the back of her head. During the investigation, it was discovered that she had been placed in the trunk of her vehicle for a period of time prior to her death. A man, subsequently identified as Fennie, was found in possession of the victim’s car, the murder weapon, and a piece of rope matching that used to bind the victim’s hands. Upon questioning by law enforcement, Fennie gave several conflicting accounts regarding why he was in possession of the victim’s car, and with respect to the identity of a second suspect in the murder. Fennie eventually identified the second suspect as Michael Frazier and admitted that he had driven the victim’s car, at Frazier’s behest, to the remote location where, according to Fennie, Frazier shot Shearin.

Frazier, in turn, relayed to police and eventually testified at trial that Fennie was responsible for Shearin’s kidnapping and murder. According to Frazier, it was Fennie who waved the victim down on the street and then forced her into the trunk of her car at gunpoint. Frazier testified that he rode with Fennie as Fennie attempted to use Shearin’s credit cards and to obtain money from several ATM machines. Frazier also testified that Fennie stopped to procure concrete blocks and rope prior to picking up Pamela Colbert, who was both Frazier’s cousin and Fen-nie’s girlfriend. Fennie told Frazier and Colbert that he planned to use the rope and concrete blocks to drown Shearin, but ultimately decided to shoot her. According to Frazier, Colbert drove the victim’s car to a wooded area where Frazier and Fennie removed Shearin from the trunk. Fennie then walked Shearin down a dirt road until the two were out of sight and he then shot her. Frazier was charged with robbery with a firearm, armed kidnapping, and first-degree murder. He was convicted on all three counts and agreed to cooperate in Fennie’s prosecution in exchange for the State’s promise not to seek the death penalty.

Fennie was charged with and convicted on three identical counts. A day later, the penalty phase of Fennie’s trial commenced, with the jury returning a unanimous recommendation for the death penalty. See Fennie, 648 So.2d at 96. The trial judge accepted and followed the sentencing recommendation. See id. In support of the imposition of the death penalty, the trial judge found the following five aggravating factors: (1) the crime was committed while Fennie was engaged in the commission of a kidnapping; (2) the crime was committed to avoid arrest; (3) the crime was committed for financial gain; (4) the crime was heinous, atrocious or cruel (HAC); and (5) the crime was cold, calculated, and premeditated (CCP). See id. at 96-97. The court also found ten nonstatutory miti-gators, but determined that the aggravating factors far outweighed the mitigating factors. See id. at 97. In mitigation, the court found that Fennie (i) came from a broken home; (ii) grew up in the Tampa housing projects; (iii) is the father of three children; (iv) paid child support when he could; (v) has some talent as an artist; (vi) spent time caring for his sister’s children; (aúí) had counseled children about the perils of a life of crime; (viii) was a model prisoner; (ix) is a human being; and (x) was not known to be violent. See id. at 97 n. 6.

Fennie timely filed a motion for postcon-viction relief. Hearings were held pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), after which the lower court ordered an evidentiary hearing on five claims. The evidentiary hearing was conducted on several days in June 2001, and on October 10, 2001, the trial court entered an order denying relief on all claims. In his appeal of the trial court’s decision, Fennie alleges six claims, most with several subclaims. Fennie’s appeal is accompanied by a petition for writ of habeas corpus in which Fennie advances three claims for relief. We address certain of Fennie’s claims herein, and deny the remainder as merit-less.

3.850 APPEAL

Ineffective Assistance of Counsel during Voir Dire

In the first issue meriting discussion, Fennie alleges that guilt phase trial counsel was functionally and constructively absent during voir dire in Fennie’s case because he failed to effectively question jurors on the issues of race and racial tensions in the community in which the trial was held, request individual voir dire to ensure effective questioning on these issues, and seek a change of venue. According to Fennie, a thorough voir dire examination was necessary, given the interracial nature of the crime, the State’s allegation that Fennie raped the victim prior to her death, and the history of racial tension in the trial community of Brooksville, Florida. Fennie asserts that these tensions were exacerbated by the beating death of a white teenager by a group of black youths less than two years prior to Fennie’s trial (hereinafter, the “Smith case”). Based on counsel’s alleged inaction, Fennie urges this Court to apply the presumption of prejudice standard articulated by the United States Supreme Court in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

In Cronic, the “Supreme Court created an exception to the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], standard for ineffective assistance of counsel, and acknowledged that certain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed.” Stano v. Dugger, 921 F.2d 1125, 1152 (11th Cir.1991). These circumstances include those where the accused is denied the presence of counsel at a critical stage in the proceeding, where counsel entirely fails to subject the State’s case to a meaningful adversarial testing, and where the circumstances are such that even competent counsel could not render assistance. See Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Fennie attempts to invoke the first prong of the Cronic framework, arguing that prejudice to his defense should be presumed because trial counsel’s failures during jury selection rendered him constructively and functionally absent.

While it is well settled that an egregiously deficient performance by counsel during trial can amount to constructive denial of counsel under Cronic, the facts of the instant case do not support application of the Cronic presumption of prejudice standard. Fennie’s trial counsel conducted a vigorous voir dire, the transcript for which covered 900 pages. During the questioning of two of the four panels of prospective jurors, counsel posed a series of race-related questions to several individuals. The jury ultimately empaneled to decide Fennie’s case included two African Americans; both alternate jurors were also African American. Clearly, Fennie’s counsel did not stand mute during the jury selection process or otherwise completely fail to test the impartiality of jurors on important matters. See White v. Luebbers, 307 F.3d 722, 729 (8th Cir.2002) (refusing to apply the Cronic standard where trial counsel deliberately failed to ask potential jurors questions relating to the death penalty). Thus, this is not a case in which counsel’s conduct fits within the “narrow spectrum of cases [under Cronic ] where the defendant was completely denied effective assistance of counsel.” Nixon, 758 So.2d at 622.

The lower court properly analyzed Fennie’s claim of ineffective assistance of counsel under the two-part Strickland test, and determined that Fennie could demonstrate neither deficient performance during voir dire nor prejudicial impact. In reviewing claims of ineffective assistance of counsel, this Court will defer to the lower court’s findings of fact and review as questions of mixed law and fact whether counsel’s performance was ineffective, and whether the defendant was prejudiced by that ineffective performance. See Ragsdale v. State, 798 So.2d 713, 715 (Fla.2001). We conclude that the trial court’s denial of Fennie’s ineffective assistance of counsel claim is fully supported by the record, consistent with the evidence and consistent with controlling caselaw.

The record reveals that trial counsel made a strategic decision not to ask each prospective juror specific race-based questions. Trial counsel testified during the postconviction proceeding that he does not automatically ask race-related questions in interracial crimes, and that his decision to do so turns on the composition of the prospective panels and the facts of the case involved. Counsel further asserted that he did not regard Fennie’s case as racially motivated, and that he wanted to avoid offending or alienating potential jurors by asking each of them questions related to race. In trial counsel’s experience, the risk of jury alienation would not have been cured through the use of individual voir dire. Counsel confirmed that he went over each juror strike with Fennie and consulted him before the jury was empaneled. Counsel further testified that having successfully selected a jury, there was no basis on which to request a change of venue under controlling caselaw. See Henyard v. State, 689 So.2d 239, 245 (Fla.1996). The record supports the reasonableness of counsel’s decision to avoid the creation of racial conflict during the voir dire process, and belies any basis for an ineffective assistance of counsel claim. See Maharaj v. State, 778 So.2d 944, 959 (Fla.2000).

The reasonableness of counsel’s course of action is further underscored by his experience. Alan Fanter had practiced in Brooksville for eleven years at the time of Fennie’s trial, and had previously successfully litigated interracial crimes. Indeed, Fanter represented John Smith, the only black youth to be brought to trial for the 1990 beating death of a white teenager, and succeeded in obtaining a third-degree murder conviction from a Brooksville jury in the face of intense publicity and an all white jury pool. In response to questions from the court during the postconviction proceeding, Fanter confirmed that he had represented the defendant in the Smith case in accordance with the knowledge and experience he had gained in prior cases and applied that experience in representing Fennie in the present case. Far from constituting ineffective assistance, counsel’s actions in the instant ease demonstrate a level of competency beyond that which exists in many cases that involve sensitive matters. We therefore deny Fennie’s ineffective assistance of counsel claim as to this aspect of the proceedings.

Ineffective Assistance of Counsel in the Penalty Phase

Fennie advances a second ineffective assistance of counsel claim comprised of three allegations pertaining to counsel’s performance during the penalty phase of the trial. First, Fennie contends that his defense was prejudiced by penalty phase counsel’s deficient preparation of mitigation witnesses, especially his mother and sister. Fennie next asserts that trial counsel was deficient in failing to call witnesses who would have cast doubt on Fennie’s identity as the triggerman. Finally, Fen-nie alleges that he was prejudiced by counsel’s failure to secure expert testimony regarding his dependent and compliant personality traits.

To establish ineffective assistance of counsel, a defendant first must show that counsel’s performance was deficient and, second, that the deficiency prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. As set forth in greater detail below, Fennie cannot demonstrate that his defense was prejudiced by any of the identified conduct. Our confidence in the outcome is not undermined when all of the material is considered. Having resolved that Fennie is unable to demonstrate one of the necessary elements of the Strickland test, we need not delve into whether counsel’s performance was deficient. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.”).

As evidence of counsel’s deficient preparation of mitigation witnesses, Fennie highlights the fact that his sister, Kathy Reed, offered more compelling mitigation evidence during the postconviction proceeding than she presented during the original trial. Fennie also relies on his mother’s trial testimony, which he claims mistakenly informed the jury that the family moved to the housing projects when Fennie was in his late teens, mischaracter-ized life in the projects as acceptable if one kept to oneself, and unexpectedly disclosed damaging information including that Fen-nie was previously incarcerated, had a gambling habit, worked infrequently, and accepted money from women. Fennie also claims that he was prejudiced by counsel’s failure to perpetuate the testimony of his other sister, Deborah Fennie, who was recovering from surgery at the time of trial.

Based on the record in this case, Fennie cannot demonstrate that he was prejudiced by counsel’s purportedly deficient preparation of mitigation witnesses. As the lower court found, Fennie’s penalty phase presentation included most of the testimony introduced in postconviction. Indeed, after conclusion of the original proceedings, the court specifically found that Fennie was from a broken home, grew up in Tampa’s housing projects, and was not known to be violent all as mitigating factors. Thus, much of the testimony Fennie introduced in the postconviction proceeding would have been redundant or cumulative of testimony presented at trial. See Provenzano v. Dugger, 561 So.2d 541, 546 (Fla.1990).

Moreover, Fennie fails to establish that certain mitigating evidence introduced for the first time during the postconviction proceeding, most notably that Fennie was physically abused and went without parental supervision for long periods of time, would have overwhelmed the substantial aggravation present in this case, nor is our confidence in the outcome undermined. We reiterate that the presentation of additional nonstatutory mitigating evidence in the postconviction proceeding does not conclusively substantiate ineffective assistance, and that this Court must also consider the nature of the aggravating and mitigating evidence presented at trial. See Asay v. State, 769 So.2d 974, 988 (Fla.2000). In this case, the trial judge found a significant amount of aggravation, including commission of a crime to avoid lawful arrest, CCP, and HAC, and little mitigation. See Fennie, 648 So.2d at 96-97. Given those findings, it is highly unlikely that the alleged absence of the evidence pertaining to an unpredictable and abusive upbringing would have swayed six jurors to change their recommendation from death to life imprisonment. See Asay, 769 So.2d at 988; Breedlove v. State, 692 So.2d 874, 878 (Fla.1997). The burden to demonstrate prejudice has not been carried and the material presented is not sufficient to undermine our confidence in the outcome of this case.

Fennie next asserts that his defense was prejudiced by counsel’s failure to call code-fendant Pamela Colbert as a witness during the penalty phase. At her own trial, which preceded Fennie’s, Colbert testified that both Fennie and codefendant Michael Frazier accompanied the victim down the dirt road where Shearin was subsequently murdered. Colbert’s trial testimony corroborated the first statement she gave to police regarding the incident, but contradicted a second statement in which she asserted that Frazier accompanied Fennie and the victim part of the way down the road, but returned to the car prior to the shooting. According to Fennie, Colbert’s testimony would have planted a seed of doubt about his guilt in the minds of the penalty phase jurors that would have been reasonably likely to lead to a recommendation of life imprisonment.

In rejecting Fennie’s claim of ineffective assistance of counsel on this point, the lower court determined that counsel had made a reasonable strategic decision not to present Colbert as a witness, whom the trial judge characterized as an “unpredictable witness.” The court below found that Fennie’s counsel was in constant contact with Colbert’s defense counsel and had been warned by her counsel that Colbert’s testimony would inculpate his client. The record conclusively supports the trial court’s determination.

We agree with the trial court that counsel cannot be faulted for deciding against calling a witness who might have condemned Fennie with her testimony as related by the witness’s counsel. See Sweet v. State, 810 So.2d 854, 861 (Fla.2002) (determining that the decision not to call a witness who had made an out-of-court identification of the defendant did not constitute ineffective assistance of counsel). Fennie most certainly would have alleged ineffective assistance of counsel had trial counsel gambled and presented Colbert as a witness only to have her inculpate Fennie. Thus, the instant case provides a crystalline example of why tactical decisions regarding whether or not a particular witness is presented are “subject to collateral attack only in rare circumstances when the decision is so irresponsible as to constitute ineffective assistance of counsel.” Jackson v. State, 711 So.2d 1871, 1372 (Fla. 4th DCA 1998), discussed with approval in Ford v. State, 825 So.2d 358, 360-61 (Fla.2002).

Finally, Fennie claims that his defense was prejudiced by penalty phase counsel’s failure to bring forth evidence regarding Fennie’s compliant, easily dominated personality and related susceptibility to duress. Fennie bolsters his allegation with the postconviction testimony of psychologist Dr. Jethro Toomer. Dr. Toomer opined that Fennie demonstrated multiple personality deficits such as insecurity, the need for acceptance, and high dependency, which rendered him susceptible to manipulation and duress.

Fennie cannot demonstrate that his defense was prejudiced by the failure of trial counsel to introduce evidence pertaining to his generally compliant personality. In making this determination, we are guided by the principle that every effort must be made to eliminate the “distorting effects of hindsight” and to evaluate the conduct from counsel’s perspective at the time of trial. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Prior to trial, counsel had received a report from Dr. Ronald Peal, a psychologist engaged to assess Fennie’s competency and potential mitigation. Dr. Peal concluded that Fennie was not a violent, impulsive individual, but reported no findings of mental mitigating evidence. Ultimately, trial counsel decided not to call Dr. Peal as a witness out of concern that the jury would be apprised of inconsistencies between the statements Fennie made during the course of the evaluation and those he provided to law enforcement.

The fact that postconviction counsel is able to secure more expansive mental health mitigation than trial counsel does not, in and of itself, render trial counsel’s performance ineffective. See Provenzano, 561 So.2d at 546 (“The mere fact that Provenzano has now secured an expert who might have offered more favorable testimony is an insufficient basis for relief.”). We agree with the trial court’s conclusion that it is “highly speculative and conjectural” that the introduction of Dr. Toomer’s testimony would have impacted the outcome of the case. Counsel successfully conveyed Fennie’s nonviolent personality through lay witnesses, and introduced some evidence regarding Fennie’s lack of future dangerousness through the testimony of correctional officers. Fennie has shown no prejudice where there is no mental mitigating evidence of the nature that would have either seriously impacted the mitigation found or placed the grievous aggravating factors in a different posture. See Asay, 769 So.2d at 988; Breedlove, 692 So.2d at 878.

HABEAS CORPUS

Insufficiency of the Trial Court’s Sentencing Order

In the first of two claims we address from Fennie’s habeas corpus petition, it is contended that the trial court violated his constitutional rights by failing to independently weigh aggravating and mitigating circumstances. Fennie further alleges that appellate counsel was ineffective for failing to assert this issue on direct appeal. In support of his contention, Fen-nie directs attention to several purported violations of the requirement that aggravating and mitigating circumstances be independently evaluated and weighed. We address only the issue pertaining to the trial judge’s failure to assign individual weights to each of the ten nonstatutory mitigators which were determined to be established, and deny the remainder of the claim as meritless.

As a threshold matter, Fen-nie’s substantive claim, that the trial court erred in failing to independently weigh the aggravating and mitigating circumstances, is procedurally barred, as Fennie could, have and should have raised the issue on direct appeal. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995); Roberts v. State, 568 So.2d 1255, 1258 (Fla.1990). To succeed on the ineffective assistance of appellate counsel portion of the claim, Fen-nie must establish that counsel’s failure to raise the claim on appeal is of “such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Floyd v. State, 808 So.2d 175, 183 (Fla.2002) (quoting Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986)). The failure to raise a meritless issue does not constitute ineffective assistance of counsel. See Valle v. Moore, 837 So.2d 905, 908 (Fla.2002); Chandler v. Dugger, 634 So.2d 1066, 1068 (Fla.1994). In fact, appellate counsel is not required to raise every conceivable nonfrivolous issue. See Valle, 837 So.2d at 908. We conclude that Fennie cannot make the required showing of prejudice on this claim.

In Campbell v. State, 571 So.2d 415 (Fla.1990), this Court set forth guidelines for circuit courts to follow in weighing aggravating and mitigating factors. In the words of the Campbell Court:

When addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature .... The court next must weigh the aggravating circumstances against the mitigating and, in order to facilitate appellate review, must expressly consider in its written order each established mitigating circumstance.

Campbell, 571 So.2d at 419-20 (footnote omitted). Arguably, the assignment of individualized weights to aggravating and mitigating factors is not expressly and absolutely required by Campbell. Subsequent decisions from this Court have, however, interpreted Campbell as requiring individualized weighing of aggravating and mitigating factors. See Hurst v. State, 819 So.2d 689, 697 (Fla.2002) (citing Campbell for the proposition that written sentencing orders must “carefully evaluate each mitigating circumstance offered by the defendant, decide if it has been established, and assign it a proper weight”); Woodel v. State, 804 So.2d 316, 327 (Fla.2001) (deeming a sentencing order insufficient due, in part, to the trial court’s failure to assign individualized weights to aggravators and mitigators).

Although we believe the state of Florida law on this point to be clear, we again reiterate that Campbell, as subsequently interpreted by this Court, requires a trial judge to assign a weight to each aggravating factor and also to each mitigating factor that he or she deems has been established. This requirement is in addition to the other procedural dictates articulated in Campbell. Thus, pursuant to Campbell, a trial judge presiding over a capital case must: (1) expressly evaluate in his or her written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of non-statutory factors, it is truly of a mitigating nature; (2) assign a weight to each aggravating factor and mitigating factor properly established; (3) weigh the established aggravating circumstances against the established mitigating circumstances; and (4) provide a detañed explanation of the result of the weighing process.

The requirement to assign a weight to each aggravator and mitigator found both stems from, and advances, the constitutional requirement for individualized sentencing that compelled this Court to provide the Campbell guidelines in the first instance. See Campbell, 571 So.2d at 420 (“Hopefully, use of these guidelines wfil promote the uniform application of mitigating circumstances in reaching the individualized decision required by law.”). The process, as clarified herein, wfil engender an analytical discipline at the trial court level that will, in turn, enhance the trial court’s consideration of the unique circumstances surrounding each capital case and each individual defendant. This process will also facilitate a meaningful review of capital cases by ensuring that sentencing orders accurately and fully reflect the trial court’s sentencing determination. See Jackson v. State, 704 So.2d 500, 507 (Fla.1997). The importance of a complete understanding of the trial court’s reasoning and determination cannot be understated, as it is the responsibility of this Court to conduct a proportionality review of each capital case for the purpose of fostering uniformity in our death penalty jurisprudence. See Tillman v. State, 591 So.2d 167, 169 (Fla.1991).

The sentencing order in the instant case failed to assign weights to the aggravating and mitigating circumstances on an individualized basis, and thus did not strictly conform with the requirements of Campbell as subsequently interpreted by this Court. However, we determine that the nonconformity in the instant case does not constitute fundamental error because the sentencing order was otherwise thorough and detailed, addressed all of the matters claimed in mitigation and aggravation, and contained a proper weighing analysis even though individual weights were not assigned. See Griffin v. State, 820 So.2d 906, 914 n. 10 (Fla.2002). This Court was able to conduct a meaningful review of Fennie’s case on direct appeal, reaching the ultimate conclusion that “[t]he totality of the aggravating factors and lack of significant mitigating circumstances conclusively demonstrate that death is the appropriate penalty in this case.” Fennie, 648 So.2d at 99. On this basis, we conclude that Fennie was not prejudiced by appellate counsel’s failure to raise the insufficiency of the sentencing order on appeal.

Prosecutorial Misconduct

The second habeas claim that we address involves Fennie’s contention that inflammatory statements by the prosecutor rendered his death sentence unconstitutional, and that appellate counsel was ineffective for failing to present the issue on appeal. We address only those aspects of this composite claim pertaining to the State’s purportedly improper advancement of an uncharged rape as nonstatutory aggravation and alleged Golden Rule arguments, and deny the balance of the claim as meritless.

Fennie concedes that trial counsel failed to object to all but one of the comments challenged here, but attempts to circumvent the lack of proper preservation by arguing that the inflammatory comments, taken together, rise to the level of fundamental error and were thus cognizable on appeal. See Roberts v. State, 568 So.2d 1255, 1261 (Fla.1990) (determining that appellate counsel cannot be deemed ineffective for failing to raise claims that are not preserved for appeal by a contemporaneous objection at trial except where the claims rise to the level of fundamental error). To constitute fundamental error, “improper comments made in the closing arguments of a penalty phase must be so prejudicial as to taint the jury’s recommended sentence.” Thomas v. State, 748 So.2d 970, 985 n. 10 (Fla.1999). Fennie contends that this standard is satisfied in the instant case where the State argued an uncharged rape allegation as nonstatutory aggravation. Fennie further alleges that the State inappropriately characterized the victim as pleading for her life and the opportunity to see her children, and incited the jury to “send a message” to, or “do their duty” for, the community by sentencing Fennie to death. We conclude that Fennie cannot demonstrate that the unanimous death recommendation was improperly tainted by the allegedly improper comments.

With regard to the allegations leveled by the State that Fennie raped the victim prior to her death, Fennie has not and cannot show that the State argued an uncharged rape as a nonstatutory aggravator, or that the jury considered it as such. The State formed a basis for reference to a sexual encounter through the testimony of two witnesses and narrowly focused its inquiries regarding the allegation to test the veracity of Fennie’s contention that he had consensual sexual relations with the victim prior to her death. During the penalty phase, the State referenced the sexual conduct in closing arguments as part of the larger factual context of the criminal episode, and as factual predicate for the aggravating factors of commission of a crime to avoid arrest, HAC, and CCP. Given the factual predicate established for the statements and the relevance of the conduct to the statutory aggravators, Fen-nie cannot sustain the argument that a rape allegation was advanced as nonstatu-tory aggravation. Moreover, Fennie cannot demonstrate prejudice stemming from the jury’s consideration of the sexual contact in the context of the statutory aggra-vators as the State introduced ample evidence in support of the aggravators found by the trial judge.

In a similar manner, we resolve that Fennie has failed to demonstrate that the prosecutor’s purportedly improper Golden Rule arguments tainted the jury’s sentencing recommendation. The remarks that Fennie claims inappropriately characterized the victim as pleading for her life are not of the same nature or egregiousness as those previously deemed improper by this Court. Pertinent to our analysis is the fact that the prosecutor’s comments regarding the victim’s statements at the time of her death were based on Michael Frazier’s testimony regarding what he had actually witnessed and heard, as opposed to the prosecutor’s speculation or conjecture. Cf. Urbin v. State, 714 So.2d 411, 421 (Fla.1998) (determining that the prosecutor had engaged in a “subtle ‘golden rule’ argument” by creating an imaginary script demonstrating that the victim was shot while pleading for his life). We also recognize that in delivering his closing argument, the prosecution did not invite the jury to imagine themselves in the place of the victim, as this Court has previously deemed improper. See Garron v. State, 528 So.2d 353, 358-59 (Fla.1988); Bertolotti v. State, 476 So.2d 130, 133 n. 3 (Fla.1985). The comments concerning the evidence were not hypothetical nor were they improper.

Similarly, we determine that Fennie has failed to establish that the prosecutor’s comments run afoul of caselaw precluding the State from encouraging jurors to “do their duty” for the community or “send a message” through their sentencing decision. We have rejected arguments pertaining to comments similar to those which Fennie characterizes as objectionable. See Cox v. State, 819 So.2d 705, 718 (Fla.2002) (determining that prosecutor’s grandiose statement that he represented the law-abiding people of the community and state was not improper). Importantly, there is no evidence that the prosecutor expressly exhorted the jury to return a verdict of death, or equated the juror’s duty with a particular sentence. Cf. Urbin, 714 So.2d at 421 (deeming improper argument that “you may be tempted to take the easy way out, to not weigh the aggravating circumstances and the mitigating circumstances and not want to fully carry out your responsibility and just vote for life”); Garron, 528 So.2d at 359 (determining that it was improper for the prosecutor to admonish the jury that it was their “sworn duty as you came in and became jurors to come back with a determination that the defendant should die for his actions”). The prosecutor’s comments in the instant case are distinguishable from those that this Court has deemed improper, and in context do not rise to the level of fundamental error.

Conclusion

For the foregoing reasons, we affirm the trial court’s denial of Fennie’s rule 3.850 motion and deny Fennie’s petition for writ of habeas corpus.

It is so ordered.

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

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

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I concur in the majority opinion in all respects except for its discussion of the Ring issue. For the reasons I expressed in my opinion in Duest v. State, 855 So.2d 33 (Fla.2003), I cannot agree with the majority’s reasoning for rejecting the Ring claim. The majority cites the plurality opinions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (2002), as providing a basis for rejecting this claim despite the lack of a majority opinion in either case.

Initially, I find it telling that the majority feels compelled, in this postconviction case, to specifically recognize that the jury’s advisory sentence in this case was unanimous and that one of the aggravating circumstances was inherent in the jury’s guilt phase conviction. This recognition suggests, of course, that in cases where there is no unanimous recommendation or “exempt” aggravating circumstance, a postconviction argument based on Ring might be meritorious.

However, even if the majority is correct in considering one of the aggravating circumstances to be inherent in the jury’s guilt phase verdict, we cannot ignore the fact that the judge alone found four other serious aggravating circumstances, including the presence of the “heinous, atrocious, or cruel” and the “cold, calculated, and premeditated” aggravating circumstances, which are two of the most serious set out in Florida’s death sentencing scheme. Larkins v. State, 739 So.2d 90, 95 (Fla.1999). Ring, of course, prohibits death sentences predicated upon factual findings made by the judge alone.

      . Fennie contends that (1) trial counsel rendered ineffective assistance by failing to protect Fennie’s right to be tried by a fair and impartial jury; (2) penalty phase counsel rendered ineffective assistance of counsel by failing to present evidence in mitigation; (3) the lower court erred in denying Fennie's request to interview jurors; (4) guilt phase counsel rendered ineffective assistance by failing to impeach key witnesses and to call certain defense witnesses; (5) the lower court erred in denying Fennie an evidentiary hearing on two of his postconviction claims; and (6) the lower court erred in denying Fennie relief on the claim that he was denied the right to testify in his own defense.

      . Fennie argues that (i) the trial court violated Fennie’s constitutional rights by failing to independently weigh aggravating and mitigating circumstances and appellate counsel was ineffective for failing to raise the issue on direct appeal; (ii) inflammatory statements by the prosecutor rendered Fennie's death sentence unconstitutional and appellate counsel was ineffective for failing to raise the issue on appeal; and (iii) Florida’s death penalty statute is unconstitutional.

      .We address the balance of the claims raised in Fennie's 3.850 appeal as follows. Fennie’s claim (3), that the trial court erred in denying postconviction counsel's request to interview jurors, is meritless. The record demonstrates that counsel failed to show prima facie evidence of juror misconduct; and therefore, the trial court appropriately denied the request. See Cave v. State, 476 So.2d 180, 187 (Fla.1985). We deny claim (4) as Fennie has failed to establish that guilt phase counsel’s performance was deficient, or, assuming deficiency, that his defense was prejudiced as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With regard to claim (5), we conclude that the trial court appropriately summarily denied two of Fennie's postconviction claims as both were either legally insufficient or clearly refuted by the record. See Gaskin v. State, 737 So.2d 509, 516 (Fla.1999). Finally, we determine that the record conclusively contravenes claim (6), that Fennie was denied the right to testify in his own defense.

      . See Nixon v. Singletary, 758 So.2d 618, 623 (Fla.2000) (determining that absent a client's consent, an attorney’s admission of his client's guilt would amount to per se ineffectiveness); see also Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir.1997) (applying Cronic where defense counsel totally failed to advocate his client's cause and expressed contempt for his client in front of the jury); Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.1985) (noting that "a presumption of prejudice would be proper where counsel’s representation was so deficient as to amount in every respect to no representation at all”); Reyes-Vasquez v. United States, 865 F.Supp. 1539, 1546 (S.D.Fla.1994) (recognizing that counsel’s tactical decision to stand silent during defendant’s trial may constitute ineffective assistance of counsel under the Cronic standard).

      . This information included the fact that, as children, she and her siblings were left alone for long periods when their mother was working and outside the home gambling, forbidden from venturing or even looking outside during these times, and physically abused. Ms. Reed also testified that the children occasionally accompanied their mother on gambling trips where they witnessed violent altercations, and that Fennie was terrorized by bullies in the housing projects in which the family lived.

      . This finding renders irrelevant the discrepancy between the testimony of Fennie’s mother and sisters regarding when the family moved into the Tampa housing projects. Contrary to their mother’s testimony, Kathy Reed and Deborah Fennie asserted that the family moved to the housing projects when Fennie was approximately ten years old.

      . Fennie also claims that counsel was ineffective for failing to call as witnesses during the penalty phase Dwayne Jones, a man who committed a previous armed robbery with Frazier, and Dr. Kenneth Martin, a dentist who had been engaged by the State to opine as to the origin of the bite marks discovered on Michael Frazier’s hand. In a separate claim, Fennie contends that guilt phase counsel was ineffective for failing to call these witnesses during the guilt phase. We find no merit in Fennie's contentions pertaining to counsel’s decision not to call these witnesses during either phase of trial, and will not address Fennie’s assertions in further detail herein.

      . The record included the transcript of a recorded conversation between trial counsel and Fennie in which they discussed the witnesses that would be called during the defense case. The text of the recorded conversation shows that Colbert had been asked to testify and indicated that she would give damaging testimony if called to the stand.

      . Dr. Peal reported that the rendition of events relayed to him by Fennie contradicted Fennie's police statements, and that such inconsistencies placed Fennie's general truthfulness in doubt. Given the potential damage to the credibility of the version of events propounded by the defense, counsel’s decision not to call Dr. Peal amounted to a reasoned, strategic decision which is not susceptible to attack as ineffective assistance of counsel. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (no ineffective assistance of counsel in deciding against introducing a potentially damaging mental health evaluation).

      .We deny Fennie's third and final habeas claim in which he asserts that Florida’s death penalty statute is unconstitutional because it fails to require aggravators to be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002) and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and denied relief. We find that Fennie is likewise not entitled to relief on this issue. Additionally, we note that the jury in the instant case returned a unanimous recommendation in favor of the death penalty. Moreover, one of the aggrava-tors in the instant case was that the murder was committed while Fennie was engaged in the commission of a kidnapping, which was charged by indictment and found unanimously by the jury.

      . We determine that the record refutes Fennie's allegation that the trial court (1) inappropriately copied verbatim the State’s sentencing order, (2) failed to weigh the ag-gravators against the mitigators, (3) relied on nonrecord evidence in issuing the sentencing order, and (4) considered an uncharged rape as nonstatutory aggravation.

      . This Court receded from Campbell on different grounds in Trease v. State, 768 So.2d 1050, 1055 (Fla.2000).

      . Given that the sentencing order in the instant case was issued two years after our decision in Campbell, it could be argued that the trial judge substantially complied with then-current procedural constructs. However, a determination in this regard is unnecessary as we conclude that the deficiency in the sentencing order does not constitute fundamental error.

      . Fennie's allegation pertaining to the introduction of nonrecord evidence in the penalty phase closing argument is contravened by the record. Fennie is correct in his contention that the prosecutor misstated the law of sentencing by stating that a death recommendation was required if the aggravators outweighed the mitigators. However, we conclude that the prosecutor’s misstatement was harmless as the jury received proper instruction from the trial judge. See Cox v. State, 819 So.2d 705, 718-19 (Fla.2002), cert. denied, 537 U.S. 1120, 123 S.Ct. 889, 154 L.Ed.2d 799 (2003).

      . Compare Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003) (no improper consideration of nonstatutoiy aggravators where alleged ag-gravators constituted the facts of the case and were considered within the context of HAC) with Perry v. State, 801 So.2d 78, 90 (Fla.2001) (improper to introduce testimony of appellant's violence against wife during the penalty stage where such acts were not related to any aggravating circumstances).

      . Fennie's claim was based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Subsequent to the filing of Fen-nie's initial petition, the Supreme Court released its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which was then discussed in the State’s response and Fennie's reply.


text:
    Victor Tony JONES, Appellant, v. STATE of Florida, Appellee. Victor Tony Jones, Petitioner, v. James V. Crosby, Jr., Secretary, Department of Corrections, State of Florida, Respondent.
    Nos. SC01-734, SC02-605.
    Supreme Court of Florida.
    Sept. 11, 2003.
    Rehearing Denied Sept. 11, 2003.

      William M. Hennis, III, Assistant CCRC, Office of the Capital Collateral Regional Counsel, South, Fort Lauderdale, FL, for AppellanfiPetitioner.
    Charles J. Crist, Jr., Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee/Respon-dent.
   PER CURIAM.

Jones, an inmate currently incarcerated under a sentence of death, appeals an order of the circuit court denying relief, after an evidentiary hearing, on his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Jones also has filed a petition for writ of habeas corpus in this Court. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Having heard oral argument and considered each of the issues raised here, we both affirm the lower court’s order and deny the defendant’s petition.

I. FACTS

Appellant was convicted of two counts of first-degree murder and two counts of armed robbery. He was sentenced to death for both murders and to life imprisonment on each of the robbery counts, with all sentences to run consecutively. The facts of appellant’s crimes are more fully discussed in this Court’s opinion in Jones v. State, 652 So.2d 346 (Fla.), cert. denied, 516 U.S. 875, 116 S.Ct. 202, 133 L.Ed.2d 136 (1995). In December 1990, Jones, on his second day of work for Matilda and Jacob Nestor, an elderly couple, killed them both at their place of business. He stabbed Mrs. Nestor once in the back, severing her aorta. As Mr. Nestor approached, appellant stabbed him in the chest, penetrating his heart. Nestor, however, retreated to his office where he extracted the knife, attempted to telephone for help, and fired his .22 caliber pistol five times, striking Jones in the forehead once. No valuables were found on either victim or in Mrs. Nestor’s purse, and Mr. Nestor’s body had been rolled over for removal of valuables from his pockets. When the police arrived, they broke down the locked door and found appellant inside the locked building, slumped on a couch with Nestor’s pistol under his arm and with Mrs. Nestor’s purse. The couple’s personal valuables and wallets were retrieved from appellant’s pockets. After taking appellant outside, police realized appellant had been shot and took him to the hospital. Appellant told officers that Nestor shot him and told an intensive care nurse that he killed the couple because they owed him money.

On direct appeal, this Court afSrmed the convictions and sentences. Jones, 652 So.2d at 353. Jones later filed a motion and an amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, asserting 22 issues. After a Huff hearing, the court granted an evidentiary hearing limited to appellant’s claims of ineffective assistance of counsel related to a voluntary intoxication defense, mitigation, and appellant’s pretrial competency. After the evidentiary hearing, the lower court denied relief on all claims.

In this appeal Jones raises five issues, several of which include subissues. We find it unnecessary to address each claim here and affirm the lower court’s denial of relief as to all of the issues raised. We discuss only two of appellant’s claims: (1) that trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense at trial, and (2) that counsel failed properly to investigate and present available mitigation during the penalty phase.

II. STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL

Under the standard announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on a claim that counsel provided constitutionally ineffective assistance, a defendant must demonstrate specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Second, the defendant must demonstrate prejudice by “showfing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. With regard to penalty phase claims of ineffective assistance, this means that the death-sentenced defendant must show that but for counsel’s errors, the defendant probably would have received a life sentence. See Rose v. State, 675 So.2d 567, 570-71 (Fla.1996). A defendant meets this burden by showing that counsel’s errors deprived the defendant of a reliable penalty phase proceeding. Id. Ineffective assistance of counsel claims present mixed questions of law and fact subject to plenary review based on the Strickland test. Id. at 571. This requires the Court independently to review the trial court’s legal conclusions, while giving deference to the trial court’s factual findings.

III. VOLUNTARY INTOXICATION DEFENSE

Appellant claimed that his trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense, and that he was prejudiced because such intoxication negates specific intent, the requisite mental state for first-degree murder. The trial court concluded that trial counsel chose not to present a voluntary intoxication defense as a matter of trial strategy and that appellant failed to establish prejudice, the second prong of Strickland. We agree.

This Court has held that it will not second-guess counsel’s strategic decisions about whether to pursue an intoxication defense. Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); see Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (holding that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct”). At the hearing below, appellant’s trial counsel testified that he was aware that a toxicology report indicated that appellant’s blood contained trace indications of the presence of cocaine. He stated that he did not pursue a voluntary intoxication defense for several reasons. First, it was his experience that juries did not accept voluntary intoxication as a defense or mitigating factor, especially when the charge is murder. In addition, appellant told counsel that he was not intoxicated at the time of the murders and that he was innocent — i.e., that an intruder killed his employers. Thus, the evidence supports the trial court’s determination that counsel’s decision not to pursue an intoxication defense was a reasonable, strategic one. See Stewart v. State, 801 So.2d 59, 65 (Fla.2001) (holding that counsel was not ineffective for failing to employ a voluntary intoxication defense where, at an evidentiary hearing, defense counsel testified that he considered an intoxication defense but determined that it was not a viable defense based on the facts of the case). In addition, appellant maintained his innocence, a defense inconsistent with an intoxication defense. See Cherry v. State, 781 So.2d 1040, 1050 (Fla.2000) (stating that voluntary intoxication defense is wholly inconsistent with the defense of innocence), cert. denied, 534 U.S. 878, 122 S.Ct. 179, 151 L.Ed.2d 124 (2001); Combs v. State, 525 So.2d 853, 855 (Fla.1988) (rejecting ineffective assistance claim because the “presentation of an intoxication defense would have been inconsistent with Combs’ testimony that he was at home at the time of the murder and did not commit the offense”).

Finally, to assert a voluntary intoxication defense, a defendant must present evidence of intoxication at the time of the offense that would establish the defendant’s inability to form the requisite specific intent. Rivera v. State, 717 So.2d 477, 485 (Fla.1998); see also Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985) (emphasizing that voluntary intoxication is an affirmative defense and that defendant must come forward with evidence of intoxication, not just use of intoxicants, at the time of offense sufficient to establish an inability to form the intent necessary to commit the crime charged). The lower court found that not one of appellant’s witnesses who testified at the hearing on this issue was credible. Appellant’s cousin, a convicted felon and admitted drug user and dealer, testified that he and appellant used drugs and “got high” together one day, but he was uncertain whether it was the day before the murders. Further, two psychologists testified that appellant was intoxicated at the time of the murders, but their testimony was based on hearsay interviews with appellant’s family members, none of whom could say they saw appellant on the day of — or even the evening before — the murders. These experts also testified that they relied on the toxicology report, but neither knew what that report meant regarding appellant’s intoxication at the time of the murders. Matters of credibility fall within the trial court’s ambit. Appellant has not shown the court’s rejection of this testimony to be error. In addition, the State’s expert witness on toxicology and intoxication testified, based on the toxicology report, that appellant was not intoxicated at the time of the murders. Accordingly, the trial court’s determination that appellant failed to establish this claim of ineffective assistance of counsel is affirmed.

IV. INEFFECTIVE ASSISTANCE IN THE PENALTY PHASE

The second claim we address concerns the penalty phase of appellant’s trial. During this phase, Dr. Toomer, a psychologist, testified to the jury regarding mental mitigating factors. In addition, Dr. Eisenstein, a neuropsychologist, testified to the court, as did Ms. Long, the aunt who raised appellant. Following the penalty phase, the court found three aggravating factors, but nothing in mitigation, as follows:

As to each murder, the court found in aggravation: 1) Jones was under a sentence of imprisonment at the time of the murder, 2) Jones was convicted of a prior violent felony, 3) the murder was committed during the course of a robbery, and 4) the murder was committed for pecuniary gain, which the court merged with the “during the course of a robbery” aggravating factor. Although Jones presented evidence that he had been abandoned at an early age by his mother and that he suffered from extreme emotional or mental disturbance throughout his life, the court found nothing in mitigation.

652 So.2d at 348-49 (footnote omitted).

Although it is clear that evidence of mitigation was presented at trial, appellant now contends that his counsel provided ineffective assistance by failing adequately to investigate and present mitigation during the penalty phase. In support of this claim, at the evidentiary hearing appellant presented the testimony of two of his relatives regarding his childhood and of several expert witnesses who had evaluated appellant before his trial but did not testify. The trial court concluded that counsel’s investigation was reasonable and that appellant failed to establish prejudice. Competent, substantial evidence supports this determination.

An attorney has a duty to conduct a reasonable investigation for possible mitigating evidence. See Rose v. State, 675 So.2d 567, 571 (Fla.1996). The evidence demonstrates that appellant’s trial counsel fulfilled that duty. Appellant’s trial counsel testified that appellant told him that he was frequently beaten during his childhood, and counsel interviewed several people. The aunt who raised appellant contradicted appellant’s claims. She described appellant’s childhood as largely “idyllic,” as did another of appellant’s close relatives. In addition, one of appellant’s teachers described appellant as a good student, and school records obtained by counsel bore this out. She also said she never saw any evidence of abuse. At the evidentiary hearing, appellant presented the testimony of his sister and cousin to corroborate his claim. Although appellant’s sister Pamela, who lived in New York, arguably corroborated appellant’s claim, she testified that she did not know how to contact anyone in her family until 1997 and that no one in her family knew how to contact her during this time, either. The evidence therefore supports the court’s finding that she was unavailable. In addition, the court found both her testimony and that of appellant’s cousin was not credible and was contradicted by the evidence appellant’s trial counsel was actually able to obtain at the time of trial. Thus, there is no credible evidence that additional investigation by appellant’s trial counsel for family mitigation would have been fruitful.

Appellant’s related contention that trial counsel failed to conduct a reasonable investigation into mental health mitigation fails as well. Appellant’s trial counsel testified that he had appellant evaluated by six different experts: a neuropsychologist, a neurologist, and four psychologists. He then specifically chose to rely on Dr. Toomer and Dr. Eisenstein based on the quality and quantity of their work. Accordingly, as the trial court found, defense counsel’s decisions regarding which experts should testify was both reasonable and strategic in nature, and he cannot now be deemed ineffective for failing to call additional mental health witnesses to testify. See Haliburton v. Singletary, 691 So.2d 466, 471 (Fla.1997). Further, the evidence supports the trial court’s conclusion that the testimony of appellant’s experts at the evidentiary hearing conflicted with regard to diagnosis, the interpretation of the information provided them, and the applicability of mitigators, and defense counsel cannot be deemed ineffective for not presenting these conflicting opinions. See Asay v. State, 769 So.2d 974, 986 (Fla.2000) (“[T]he trial court correctly found that trial counsel conducted a reasonable investigation into mental health mitigation evidence, which is not rendered incompetent merely because the defendant has now secured the testimony of a more favorable mental health expert.”).

Appellant also claimed that counsel failed to provide the experts with additional information. As the lower court found, this claim fails as well. Dr. Toomer testified that all the “new information” appellant provided him before the evidentia-ry hearing merely reinforced, but left unchanged, his conclusions presented at trial.

V. INEFFECTIVE ASSISTANCE ON DIRECT APPEAL

Jones’s petition for writ of habeas corpus raises seven claims of ineffective assistance of appellate counsel. Because these claims are either barred or lack merit, we deny the petition as to these grounds without further discussion. Jones also contends that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We recently rejected this claim in Bottoson v. Moore, 833 So.2d 693, (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and we deny Jones’s claim as well. Further, we note that one of the aggravators found was that Jones had a prior violent felony conviction, a factor which under Apprendi and Ring need not be found by the jury. See Bottoson, 833 So.2d at 723 (Pariente, J., concurring in result only) (explaining that “in extending Apprendi to capital sentencing, the Court in Ring did not eliminate the ‘prior conviction’ exception”).

Accordingly, we affirm the lower court’s denial of Jones’s motion for postconviction relief, and we deny his petition for writ of habeas corpus.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ„ and SHAW, Senior Justice, concur.

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

ANSTEAD, C.J.,

concurring in part and dissenting in part.

While I concur with the majority opinion in virtually all respects, for the reasons expressed in my opinion in Duest v. State, 855 So.2d 33, 52-57, 2003 WL 21467248 (Fla. June 26, 2003), I cannot agree with the majority’s discussion of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Appellant argued that the trial court erred by denying his motion for judgment of acquittal on the two armed robbery counts; by failing to instruct the jury that if it found both the aggravating factors of "during the course of a robbery” and "for pecuniary gain,” that it had to consider the two factors as one; by rejecting Jones’s mitigation claim of mental or emotional disturbance at the time of the offense; by denying Jones’s motion for mistrial based upon various alleged improper comments made by the prosecutor during penalty phase closing argument; and by refusing to consider Jones’s abandonment by his mother as a mitigating circumstance. Jones, 652 So.2d at 349. In addition, appellant contended that a new sentencing proceeding was needed because the mental health experts failed to raise the possibility that Jones suffered from fetal alcohol syndrome.

      . The amended motion argued the following points: (1) postconviction counsel was ineffective because of the lack of sufficient funding fully to investigate and prepare the post-conviction motion; (2) appellant was denied due process and equal protection because records were withheld by state agencies; (3) no adversarial testing occurred at trial due to the cumulative effects of ineffective assistance of counsel, the withholding of exculpatory or impeachment material, newly discovered evidence, and improper rulings of the court; (4) trial counsel was ineffective for (a) failing adequately to investigate and prepare mitigating evidence, (b) failing to provide this mitigation to mental health experts, and (c) failing adequately to challenge the State's case; (5) trial counsel was burdened by an actual conflict of interest adversely affecting counsel’s representation; (6) appellant was denied due process because he was incompetent, and trial counsel failed to request a competency evaluation; (7) appellant was denied a fair trial because of improper prosecu-torial argument, and trial counsel was ineffective for failing to object; (8) appellant’s convictions are constitutionally unreliable based on newly discovered evidence; (9) appellant was denied due process because the state withheld exculpatory evidence; (10) appellant's death sentence is unconstitutional because the penalty phase jury instructions shifted the burden to appellant to prove death was inappropriate; (11) the jury instructions on aggravating circumstances were inadequate, facially vague, and over-broad, and trial counsel was ineffective for failing to object; (12) appellant’s death sentence is unconstitutional because the State introduced nonstatutory aggravating factors, and counsel was ineffective for failing to object; (13) jury instructions unconstitutionally diluted the jury’s sense of responsibility in sentencing, and trial counsel was ineffective for not objecting; (14) appellant was denied his constitutional rights in pursuing postcon-viction relief because he was prohibited from interviewing jurors; (15) appellant is innocent; (16) execution by electrocution is unconstitutional; (17) Florida’s capital sentencing statute is unconstitutional facially and as applied; (18) appellant’s conviction and sentence are unconstitutional because the judge and jury relied on misinformation of constitutional magnitude; (19) appellant’s death sentence is unconstitutional because it is predicated on an automatic aggravating circumstance, and counsel was ineffective for failing to object; (20) appellant "is insane to be executed”; (21) because of juror misconduct, appellant’s rights were violated; and (22) cumulative errors deprived appellant of a fair trial.

      . Huff v. State, 622 So.2d 982, 983 (Fla.1993) (requiring trial court to hold hearing on post-conviction motion in death penalty cases "to determinfe] whether an evidentiary hearing is required and to hear legal argument relating to the motion”).

      . Jones contends in his first issue that trial counsel was constitutionally ineffective for failing to investigate a voluntary intoxication defense, failing to present other evidence consistent with the defense at trial, failing to challenge several jurors for cause, and failing to ensure appellant's presence at all critical stages of trial, and that no reliable adversarial testing occurred at the guilt phase as a result of the combined effects of trial counsel's deficient performance. The claim regarding voluntary intoxication is addressed in the body of the opinion. Each of these claims fails to meet the standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because each is either insufficiently pled or is conclusively refuted by the record. Jones’s second issue alleges that defense counsel had a conflict of interest that denied appellant the effective assistance of counsel. This issue was fully argued during trial, and the court ruled on this issue. The claim thus could have and should have been raised on direct appeal and is procedurally barred. See Wike v. State, 698 So.2d 817, 820-21 (Fla.1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998); Waterhouse v. State, 596 So.2d 1008, 1015 (Fla.), 506 U.S. 957, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992). In his third issue, Jones argues that no adequate adversarial testing occurred at the penalty phase because trial counsel failed properly to investigate and present available mitigation, failed to present evidence to support the unconstitutionality of appellant’s prior convictions, and failed to object to constitutional error with regard to jury instructions. The claim regarding investigation and presentation of mitigation is addressed in the opinion, and the claim regarding appellant's prior convictions is conclusory and thus fails under Strickland. Appellant’s claims regarding the trial court’s giving or failing to give certain standard jury instructions could and should have been or were raised on direct appeal; the claims also fail because this Court has expressly upheld these instructions against identical challenges. See Asay v. State, 769 So.2d 974, 989 (Fla.2000); San Martin v. State, 705 So.2d 1337, 1350 (Fla.1997), cert. denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998); Oats v. Dugger, 638 So.2d 20, 21 n. 1 (Fla.1994), cert. denied, 513 U.S. 1087, 115 S.Ct. 744, 130 L.Ed.2d 645 (1995); Jackson v. State, 648 So.2d 85, 91 (Fla.1994); Combs v. State, 525 So.2d 853, 858 (Fla.1988) (rejecting defendant’s claim that standard jury instruction is unconstitutional under Caldwell). Appellant argues as his fourth issue on appeal that the lower court erred in determining that public documents were exempt from disclosure, but the claim as stated is legally insufficient. Finally, appellant asserts that he is “insane to be executed” but admits that this issue is not ripe for review.

      . Jones claims that appellate counsel was ineffective for failing to raise the following issues on direct appeal: (1) trial counsel’s conflict of interest and the trial court's denial of trial counsel’s motion to withdraw; (2) the denial of appellant’s motions to suppress; (3) trial counsel’s objection to the substitution of the medical examiner; (4) the voluntariness of Jones's pleas in prior cases; (5) the trial court's denial of Jones’s motion to compel psychiatric examination of a witness; (6) the trial court’s denial of defense counsel’s motion for mistrial based on the prosecutor's "inferential” comment on petitioner’s right to remain silent; and (7) the invalidity of the jury instructions under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).