author: McMILLAN, Presiding Judge. COBB, Judge,

text:
    Ralph Ashton BEAVERS v. STATE.
    CR-04-1257.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.
    Rehearing Denied June 23, 2006.
    Certiorari Denied Sept. 15, 2006
    Alabama Supreme Court 1051395.
    Charles Todd Henderson, Columbiana; and David Luker, Birmingham, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, J., concurs.

BASCHAB and SHAW, JJ., concur in the result.

COBB, J., concurs in part and dissents in part, with opinion.

COBB, Judge,

concurring in part and dissenting in part.

I respectfully dissent from that portion of the unpublished memorandum stating that the trial court’s failure to give a jury charge requested by the appellant, Ralph Ashton Beavers, on the lesser offense of possession of a prescription drug and its giving the State’s requested charge on constructive possession were not preserved because the record does not disclose Beavers’s specific grounds in support of these requested charges.

Beavers was convicted of five counts of trafficking in illegal drugs, violations of § 13A-12-231(3)a, Ala.Code 1975. Succinctly, on five separate occasions, Beavers forged prescriptions for Oxycontin and had those forged prescriptions filled at pharmacies. Each of the five forged prescriptions were for 60 40-milligram Oxycontin tablets. He was sentenced to serve in prison 5 concurrent 18-year sentences.

Beavers argues on appeal that the trial court erred in overruling his objection to the court’s grant of the State’s request to charge the jury on constructive possession as follows:

“Constructive possession is possession of a substance where actual possession at the time of the arrest cannot be shown but where there is an inference that there has been possession one time, which is exceedingly strong.”

(C.R. 41-42.)

Beavers also argues on appeal that the trial court erred in refusing his request to charge the jury on § 34-23-7, Ala.Code 1975, as a lesser-included offense. Section 34-23-7, Ala.Code 1975, states:

“Any person found in possession of a drug or medicine limited by law to dispensation by a prescription, unless such drug or medicine was lawfully dispensed, shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000.00 and, in addition thereto, may be imprisoned in the county jail for hard labor for not more than one year. This section shall not apply to a licensed pharmacy, licensed pharmacist, wholesaler, manufacturer or his representative acting within the line and scope of his employment, physician, veterinarian, dentist or nurse acting under the direction of a physician, nor to a common carrier or messenger when transporting such drug or medicine in the same unbroken package in which the drug or medicine was delivered to him for transportation.”

The unpublished memorandum holds that these issues were not preserved for appellate review because, it reasons, the charge conference, wherein these charges were apparently discussed, was not transcribed, “and neither Beavers nor the trial court stated for the record the grounds of the objections when the charge conference was later mentioned.” It cites Rule 21.3, Ala. R.Crim. P.; Greenhill v. State, 746 So.2d 1064 (Ala.Crim.App.1999); Sanders v. State, 683 So.2d 14 (Ala.Crim.App.1996); Chavers v. State, 714 So.2d 341, 346 (Ala. Crim.App.1997); and Hagood v. State, 588 So.2d 526 (Ala.Crim.App.1991).

It is undisputed that these objections were raised at the charge conference because at the close of the defense’s case, the following discussion was had outside of the presence of the jury.

“MR. HENDERSON [defense counsel]: We are going to rest.
“THE COURT: Just for the record, I went over the charge conference with the attorneys. Counsel for the defendant wanted me to put on a lesser included offense. It was under Title 34-23-7 which is the charge of illegal possession of illegal drugs. The state referred me to the case of—
“MR. BRADLEY [the prosecutor]: Roger v. State [619 So.2d 946 (Ala.Crim.App.1993) ].
“THE COURT: 619 So.2d 946, and that was a Court of Criminal Appeals case. I denied the defendant’s motion to include or his request to include that as a lesser included offense. And he will — we don’t need to cover this now, we can cover it later, but he also mentioned problems about charges on constructive possession but we can mention that when we are through.
“MR. HENDERSON: May I make one comment on Roger v. State? I think what is an important issue here in the case at bar as compared to Roger v. State, I think there was a definite — or the facts were established that he definitely possessed more than 28 grams of cocaine here. I don’t feel that that — or the fact that there was four or more grams of any opiate or derivative thereof has been established here beyond a reasonable doubt, which is the standard that is required, to prove that that amount actually existed. Everything that was testified about the weight is a hypothetical. I would take exception to Your Honor not allowing the illegal possession of a prescription.
“THE COURT: Actually, there was testimony dealing with the amount of pills, that they were each 40 milligrams, I think. I forget how much each one of them weighed, but by the time you got through with the number of pills, it was actually closer to eight grams, so there is sufficient evidence. Actually there was another case, Cano v. State, 543 So.2d 724 [ (Ala.Crim.App.1989) ], also a Court of Criminal Appeals case. The defendant mentioned that one as well.
“Bring them in.
“(Open court, jury present.)”

(R. 491-93.)

First, I believe that the above comments were sufficient to advise the trial court of Beavers’s grounds in support of his request for a charge on a lesser-included offense. Moreover, the trial court’s reference to the caselaw discussed in the charge conference suggests that the trial court understood those grounds.

The record is less obvious regarding the grounds supporting Beavers’s objection to the State’s requested charge on constructive possession. However, I believe that the above, considered together with the following, which transpired after the trial court had concluded its jury instructions, suggests that the trial court understood the ground underlying both objections and that both objections were preserved for appellate review.

“[THE COURT:] At this time we will get you to go back to the jury room and one of us will tell you when you can begin those deliberations.
“(Jury exits the courtroom.)
“(Open court, jury not present.)
“THE COURT: What says the defendant? I know you want to reiterate the fact that he did have — he excepted and objected to constructive possession charges and not giving he lesser included offenses as well. Other than that, there is no exceptions; is that correct? “MR. LADNER [the prosecutor]: We’re satisfied.
“MR. HENDERSON [defense counsel]: Yes, sir.
“(Jury deliberating.)”

(R. 549.)

Thus, I believe that Beavers’s claims were sufficiently preserved for appellate review. Based on the above, I respectfully dissent.

      . "(3) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, four grams or more of any morphine, opium, or any salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 20-2-23(2) or Section 20-2-25(l)a., or four grams or more of any mixture containing any such substance, is guilty of a felony, which felony shall be known as ‘trafficking in illegal drugs.’ If the quantity involved:
      "a. Is four grams or more, but less than 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of fifty thousand dollars ($50,000).” (footnote cont’d.) § 13A-12-231(3)a, Ala.Code 1975.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eric Scott BRANCH, Appellant, v. STATE of Florida, Appellee. Eric Scott Branch, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC05-433, SC05-1558.
    Supreme Court of Florida.
    Aug. 31, 2006.
    Rehearing Denied March 12, 2007.

      Michael P. Reiter, Tallahassee, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Cassandra K. Dolgin, Assistant Attorney General, Tallahassee, FL, for Appel-lee/Respondent.
   PER CURIAM.

Eric Scott Branch, a prisoner under a sentence of death for a conviction of first-degree murder, appeals an order of the circuit court denying a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. After review, we affirm the denial of relief and deny the petition for writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

The underlying facts of the case are set out in this Court’s decision in Branch’s direct appeal:

Eric Branch was wanted by police in Indiana and because the car he was driving, a Pontiac, could be traced to him, he decided to steal a car from the campus of the University of West Florida in Pensacola. When Susan Morris, a young college student, approached her car after attending an evening class, January 11, 1993, Branch accosted her and stole her red Toyota. Morris’s nude body was found later in nearby woods; she had been beaten, stomped, sexually assaulted and strangled. She bore numerous bruises and lacerations, both eyes were swollen shut, and a wooden stick was broken off in her vagina. Branch was arrested several days later in Indiana and charged with first-degree murder, sexual battery, and grand theft.
Evidence introduced at trial showed the following: On the night of the murder, a friend saw Branch with a cut hand, which Branch said he had gotten in a bar fight; that same night, Branch was seen on campus wearing a pair of black and white checkered shorts and driving a “smallish red vehicle”; Branch was sighted in Bowling Green, Kentucky, two days later, and Morris’s car was recovered the next day in a parking lot there; when Branch was arrested, he had in his possession a pair of black and white checkered shorts stained with his own blood; a bloodstain matching Morris was found on the back of the passenger seat of the red Toyota; when Branch’s Pontiac was discovered abandoned in the Pensacola airport parking lot, “medium velocity splatter” bloodstains matching Morris’s DNA profile were found on boots and socks inside. Branch testified on his own behalf and was convicted as charged.

Branch v. State, 685 So.2d 1250, 1251-52 (Fla.1996). Branch was convicted by a jury of first-degree murder, sexual battery, and grand theft. The jury returned a death recommendation on the first-degree murder count by a vote of ten to two.

The trial court sentenced Branch to death for the murder count, and imposed a life sentence for the sexual battery conviction and five years’ incarceration for the grand theft charge. This Court found no error and affirmed Branch’s conviction and sentence. Id. at 1253. Branch’s petition for writ of certiorari to the United States Supreme Court was denied on May 12, 1997. Branch v. Florida, 520 U.S. 1218, 117 S.Ct. 1709,137 L.Ed.2d 833 (1997).

Branch filed a shell motion for postcon-viction relief on May 7, 1998, in order to toll the time periods for federal habeas corpus relief. Subsequently, on April 1, 2003, Branch filed his second amended motion to vacate judgment of conviction, raising fourteen claims for relief. At the Huff hearing on December 8, 2003, the trial court determined that an evidentiary hearing would be held on claims (1), (2), and (3) of the petition. Following the evi-dentiary hearing, the circuit court denied all claims.

RULE 3.850 APPEAL Branch argues in this appeal that the postconviction court was in error in not finding that (1) trial counsel was ineffective for failing to file a motion to suppress the items taken from the Pontiac; (2) trial counsel was ineffective for failing to investigate and present sufficient mitigation evidence during the penalty phase; (3) trial counsel was ineffective for failing to hire experts; (4) trial counsel was ineffective for failing to object to the introduction of the abstract of judgment during the penalty phase; (5) trial counsel was ineffective for failing to impeach witnesses; (6) trial counsel was ineffective for failing to investigate for the guilt phase; (7) trial counsel was ineffective for failing to object at the guilt and penalty phases; (8) Branch’s Indiana conviction was not a felony under Florida law in order to establish the prior violent felony aggravating circumstance; (9) Branch was entitled to relief based on cumulative error.

Ineffective Assistance of Counsel Claims

In accordance with the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that two elements must be met in order for ineffective assistance of counsel claims to be successful: (1) the claimant must identify particular acts or omissions of the lawyer that are outside of the broad range of reasonably competent performance under prevailing professional standards and (2) the deficiency shown must be demonstrated to have so affected the proceeding that confidence in the outcome is undermined. See, e.g., Lott v. State, 931 So.2d 807, 815 (Fla.2006); Miller v. State, 926 So.2d 1243,1249 (Fla.2006).

Motion to Suppress

Initially, Branch contends that trial counsel was ineffective for not filing a motion to suppress evidence seized from the Pontiac Bonneville — a vehicle belonging to Branch’s family in Indiana — that Branch had been driving in Florida. The trial court denied relief and articulated the facts set out in the police affidavit upon which a search warrant for the vehicle was issued:

1. Susan Morris was reported missing on January 12,1993; ■
2. Later that afternoon, the defendant was reported driving Miss Morris’s vehicle by his brother, Robert Branch;
3. The defendant had previously been driving the 1982 Pontiac Bonneville in question;
4. That Branch was a fugitive from charges out of Evansville, Indiana, and was also wanted by the Bay County Sheriffs Office for charges of Sexual Battery;
5. Presumably on the afternoon of January 12, 1993, Florida Department of Law Enforcement was dispatched to the Pensacola Airport to investigate an identification of the Pontiac Bonneville in question;
6. The FDLE officer confirmed the identification of the Bonneville and observed that the rear end of the vehicle appeared lower to the ground than the front, consistent with weight being in the trunk;
7. The FDLE officer opened the trunk to determine whether it contained Miss Morris;
8. Miss Morris was not in the trunk;
9. The Bonneville was sealed and transported to the Escambia County Sheriffs Office where it was stored in a secure garage;
10. The only reference to items inside the vehicle prior to the issuance of the search warrant was the sentence “there appeared to be suitcases and clothing throughout the vehicle”;
11. Around 5:00 p.m. January 13, 1993, Susan Morris’s body was found unclothed and crudely covered with woodland debris; and
12. FDLE believed that evidence existed in the car, to wit: “trace evidence including human blood, hair, fiber, fingerprints, and other trace evidence.”

The trial court then explained:

In the instant case, an investigation was clearly ongoing at the time the car had been seized. The trunk had been opened in search of the victim. Although the car was moved to a secure garage, there has been no evidence presented to this Court that it was further searched prior to the issuance of the warrant — beyond the notation of “suitcases and clothing throughout the vehicle” which were presumably in plain view. There certainly was probable cause to support the issuance of the search warrant, which was applied for only a day or two after the car was seized. There is no evidence that the car would have been removed from that lot by the Defendant, who was on the run in Miss Morris’ car at the time. The police’s alleged misconduct — the seizure of the car — did not provide them with any extra evidence that was obtained without a valid search warrant.
The evidence before the Court does not, under a preponderance of the evidence standard, demonstrate that a motion to suppress had the slightest probability of success. The Court does not find persuasive Public Defender Loveless’ testimony that he “would expect” to have filed motions to suppress the evidence in question. It was ultimately Mr. Allbritton’s opinion that there was not a sufficient legal basis to file such a motion. Based on the testimony given at the evidentiary hearing, the Court’s independent review of the record regarding this issue, and the lack of viable substantive evidence to support the defense’s allegation, the Court finds that the Defendant has not overcome the strong presumption that counsel provided effective representation regarding this issue. Counsel cannot be ineffective for failing to file a motion which would have been properly denied.

We find no error in the trial court’s analysis and we can add little to it.

Branch asserts that his trial counsel, John Allbritton, should have filed a motion to suppress the evidence seized from the Pontiac. Allbritton testified at the eviden-tiary hearing that he did not believe that there was a sufficient basis for challenging the search and seizure of the Pontiac. Essentially, the trial court found that the circumstances that existed at the time supported both the legality of the seizure and search of the vehicle and defense counsel’s opinion that there was no valid basis upon which to challenge the search and seizure. Based on the foregoing circumstances, we conclude that Branch has not demonstrated that the trial court erred in concluding that trial counsel was not ineffective for failing to file a motion to suppress. See Zakrzewski v. State, 866 So.2d 688, 694 (Fla.2003) (holding that counsel is not ineffective for not filing a motion to suppress when he reasonably believes it would be futile).

Investigating and Presenting Mitigation Evidence for the Penalty Phase

Branch argues that trial counsel was ineffective during the penalty phase because of counsel’s failure to investigate and present mitigation evidence. In a written order, the trial court denied this claim by concluding that no credible evidence of substantial mitigation value, other than evidence that was presented at the original penalty phase, was presented at the postconviction evidentiary hearing:

The final claim discussed at the evi-dentiary hearing involved the assertion that counsel was ineffective for failing to present mitigation evidence. However, the defendant failed to show that he suffered positive, specific, and factual prejudice regarding this claim because no evidence of improperly excluded mitigation was presented at the hearing. In its post-hearing memorandum, the defendant claims that his expert found three statutory mitigators:
1. “Extreme Emotional Distress” mitigator — based upon the Defendant being on the run from law enforcement both in Indiana and Bay County, Florida. That was coupled with the fact that he had consumed a substantial amount of alcohol that evening;
2. “Unable to Conform Actions to the Law” mitigator — based upon his opinion that the defendant suffered from some personality disorders. That was coupled with the fact that he had consumed a substantial amount of alcohol that evening and was running from the police; and
3. “Substantial Domination of Another” mitigator “may have been present” — based upon the size difference between the defendant and the alleged “other Eric.”

The idea that counsel was ineffective for failing to present evidence that the defendant was on the ran from two separate charges of sexual battery as mitigation is so absurd that the Court finds that the defendant could not have suffered any prejudice as a matter of law. Further, the jury and the Court rejected the story that the defendant had an accomplice, as illustrated in the sentencing order. The defendant’s characterization that the expert’s testimony proved the defendant could not conform his actions to the law is patently incorrect. In fact, the defendant’s expert, Dr. Henry Dee, testified during cross-examination to the exact opposite conclusion on all three of these mitigators:

Q. [by Mr. Pitre] And in this particular instance, based on what you reviewed, there’s no clinical diagnosis that the defendant was under any extreme mental or emotional disturbance?
A. [By Dr. Dee] That’s correct.
Q. No indication that the defendant was under the duress of any other person?
A That’s correct.
Q. Isn’t it true that you found that the defendant was, in fact — had the ability, the capacity, to appreciate the criminality of his conduct?
A. Yes.
Q. He had the ability to conform his conduct to the requirements of the law; isn’t that also correct?
A. Yes. I think it was impaired but certainly not obliterated.
In light of the testimony elicited during cross-examination, the defendant has not demonstrated that a mental health expert would have provided any significant aid to the defense during mitigation. Since the defendant was not prejudiced by such an omission, the Court need not determine whether counsel’s performance was deficient.
In fact, some of the expert’s testimony at the evidentiary hearing would have been harmful to defendant’s position during the penalty phase. The Court found that the defendant had good personality traits and afforded that miti-gator slight weight. Dr. Dee’s opinion that the defendant has several antisocial tendencies would have nullified that mit-igator while at the same time failing to establish any diagnosable psychological disorder.
Dr. Dee further testified to several events regarding the defendant’s life history, including incidents of abuse, abandonment and rejection. That testimony was corroborated at the hearing by Connie Branch. During the penalty phase, the Court found the nonstatutory mitigator of “the defendant had an unstable childhood” in its sentencing order, and afforded that mitigator some weight. Upon reviewing the testimony before it during the penalty and sentencing phases of trial the Court finds that the additional evidence of abuse, rejection or abandonment would not have had a measurable effect on the defendant’s sentence. In fact, it would not have given this mitigator any more weight than it was attributed in this Court’s order. Therefore, the defendant has failed to demonstrate that he suffered any prejudice regarding this claim.

At the evidentiary hearing, Branch’s trial counsel, Allbritton, testified concerning his defense preparation. Trial counsel testified he reviewed everything that was provided to him by former counsel, Chief Assistant Public Defender Earl Loveless, who had done extensive work on the case. He further testified that he spent well over 100 hours on Branch’s defense. He spoke with Branch concerning his family background, and while he did not recall specific facts, he concluded that due to Branch’s conflict with family members, some would not be helpful witnesses or did not want to testify. Further, he prepared other family members to testify and he presented their testimony to the judge and jury. He specifically denied that Branch had ever informed him that Branch was under the influence of alcohol at the time of the homicide or that he was aware of any other evidence of Branch’s possible intoxication.

Finally, counsel Loveless testified that during his representation he traveled to Indiana to speak with family and friends in furtherance of obtaining mitigating evidence, as well as to talk to Branch’s Indiana attorney and to look at court records. Loveless also arranged for Dr. James Larson to act as a confidential mitigation consultant, and had him evaluate Branch. However, Dr. Larson’s evaluation was not helpful to the defense. When Allbritton took over the defense, Loveless provided Allbritton with his complete defense file. And, according to Loveless, the two defense attorneys met at least one time to discuss the case.

Again, we can find no error in the trial court’s analysis, which relies in large part on the failure of Branch to demonstrate that substantial mitigation evidence existed that counsel failed to discover. While Branch argues on appeal that trial counsel did not obtain school records, medical records, or any other background records pertaining to Branch’s background, he fails to confront the fact that no such records were presented at the postconviction evi-dentiary hearing. Having failed to demonstrate the existence or availability of important and helpful mitigation evidence overlooked by trial counsel, Branch has failed to establish trial court error on this claim. As the trial court’s order makes clear, most of the evidence put forth at the postconviction hearing was cumulative to evidence that was presented earlier and considered as mitigation, was not credible, or would actually have been harmful to the defendant’s case.

Based upon the foregoing, we find no error in the trial court’s denial of Branch’s claim that trial counsel was ineffective for failing to prepare and present additional mitigation evidence at the penalty phase.

Hiring Experts

The trial court denied Branch’s claim of ineffectiveness for not hiring a pathologist and a blood spatter expert to counter the testimony of the State’s experts at trial. Trial counsel was questioned extensively about this issue and his testimony essentially was that he believed his ability to cross-examine the State’s witnesses coupled with the importance of the right to present first and last closing arguments were sufficient reasons to avoid the presentation of such witnesses. The trial court concluded that this was an acceptable trial strategy, especially in light of Branch’s defense and testimony at trial that he did not commit the crime.

The trial court also evaluated the credibility of testimony of the blood spatter expert and pathologist presented by the defense at the postconvietion hearing and the weight of their evidence in light of the actual evidence presented at trial. Importantly, neither postconviction expert identified any substantial factual mistakes made by the State’s experts. Rather, they expressed some differing opinions. The State’s medical examiner testified again at the postconviction hearing and emphasized the importance of his actual examination of the victim’s body as a basis for his opinions. Furthermore, both experts presented by the defense in postconviction conceded the possibility of the correctness of the State’s experts’ testimony at trial. Therefore, we find no error in the trial court’s holding that trial counsel’s decision to only cross-examine the State’s experts so as to retain both first and last closing arguments was not an unreasonable trial strategy. The court rejected the claim on the basis that it constituted mere second-guessing of defense counsel’s trial strategy. We find no error in the trial court’s analysis. “The standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result.” Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995); see also Brown v. State, 846 So.2d 1114, 1121 (Fla.2003).

Objecting to the Introduction of an Abstract

Branch argues that trial counsel was ineffective for failing to object to the introduction of the abstract of a prior judgment of conviction from Indiana at sentencing to prove the prior violent felony aggravator against Branch. We agree with the trial court that no prejudice was established on this claim since the record reflects the subsequent admission at sentencing of the certified court record from Indiana demonstrating that Branch was the defendant in the Indiana case. There is no assertion here of mistaken identity.

Impeaching Witnesses

Branch alleges that trial counsel was ineffective for-his failure to impeach two State witnesses, Melissa Cowden and Joshua Flarm. Upon review of the record, we find no error in the trial court’s denial of this claim first, on the basis of trial counsel’s testimony that any impeachment would have been of little value compared with the risk of alienating the jury and, second, based upon the limited value of the alleged impeachment, no prejudice was established.

Guilt Phase Investigation

Branch contends that he demonstrated below that trial counsel was ineffective based upon his failure to investigate in relation to the guilt phase of trial. However, in rejecting Branch’s claim, the court below explained:

[T]he Defendant failed to present any substantive evidence at the hearing to support this claim, instead relying on speculation. This is especially significant because the Defendant has had over ten years between the time of his trial and the date the evidentiary hearing to further investigate his case. Yet, the Defendant could not produce one single piece of material evidence which went undiscovered by his trial counsel.

Although both defense counsel testified extensively as to their efforts on behalf of Branch, postconviction counsel for Branch failed to present evidence that there was other significant defense evidence that counsel failed to explore or uncover. We find no error in the trial court’s rejection of this claim on the basis of a failure of proof at the postconviction hearing.

Objecting During the Guilt and Penalty Phases

Branch contends that the trial court erred in not finding his counsel ineffective for failing to object to certain actions of the prosecutor. First, he asserts that the prosecutor requested that a State witness speculate on an event without a good-faith basis to believe the event occurred and that counsel should have objected. We have reviewed the questioning asserted as improper and, like the trial court, find no basis for faulting trial counsel for not objecting. The questioning resulted in an explanation by the medical examiner that a ligature used to choke the victim could also have been used to control the free movement of the victim. On appeal, Branch has demonstrated no legal basis for excluding this testimony or counsel’s neglect in not seeking its exclusion.

The three remaining instances in which Branch finds counsel deficient for not objecting arose during the State’s guilt phase closing argument. Branch asserts that the prosecutor improperly invoked sympathy for the victim during closing argument by citing his reference to her as “this poor girl” and “look at what happened to that poor girl.” After reviewing the arguments in context, we concur in the trial court’s conclusion that no deficiency or prejudice has been shown. First, Branch has not demonstrated any error in the prosecutor’s use of the adjective “poor” to describe the victim. Second, trial counsel testified during the evidentiary hearing that he confronted the issue of sympathy directly, rather than objecting to any particular references to the victim. The trial court found this to be a reasonable trial strategy.

Next, Branch argues that trial counsel was ineffective for failing to object to the prosecutor’s alleged improper bolstering or vouching for the testimony of Melissa Cowden:

You had an opportunity to see Melissa Cowden testify, to be careful to tell you the truth regarding what she saw and she heard. She held nothing back. I’m sure her testimony was embarrassing for her with regard to some aspects of it but she told the truth. The Eric that 'killed Susan Morris had a cut on his hand.

Trial counsel testified that he found nothing objectionable here, and he did not want to question Cowden’s credibility unduly because he was relying on her testimony to support certain aspects of Branch’s defense. Thus, he chose not to challenge her credibility directly so as to not affect the helpful aspects of her testimony, and also so as to not alienate the jury in keeping with his general strategy of not excessively objecting or cross-examining some State’s witnesses.

Finally, Branch argues that counsel was ineffective for not objecting to the prosecutor’s suggestion that Branch was driving around in a vehicle he had improperly taken and that he wanted to steal another car. Trial counsel testified at the evidentiary hearing that he did not object because he believed the evidence generally supported this argument. The trial court rejected this claim by finding that the argument was a reasonable inference in light of the testimony at trial, and hence, counsel was not deficient in his decision not to object. We find no error by the trial court in rejecting these claims.

Prior Violent Felony Aggravator

Branch argues that the trial court erred in denying his postconviction claim that his Indiana conviction of sexual battery should not have been used to establish the prior violent felony aggravating circumstance because his prior conviction would not be a felony under Florida law. However, Branch did not object at trial and failed to present this issue as it is now framed on direct appeal. As a result, Branch is proeedurally barred from raising this claim in postconviction proceedings or this appeal. See Porter v. State, 788 So.2d 917, 921 n. 6 (Fla.2001) (claim that trial court considered nonstatutory aggravating circumstance should be brought on direct appeal); see also Atwater v. State, 788 So.2d 223, 228 n. 5 (Fla.2001).

Cumulative Error

Finally, having found no individual error in the trial court’s rulings, we also find no merit in Branch’s claim of cumulative error by the trial court in denying postconviction relief.

PETITION FOR WRIT OF HABEAS CORPUS

Having affirmed the trial court’s denial of Branch’s 3.850 motion, we now consider Branch’s petition for writ of habeas corpus. Branch contends that appellate counsel was ineffective for (1) failing to argue that the Indiana conviction was not a felony under Florida law and the inadmissibility of the abstract of judgment; (2) failing to raise on appeal the trial court’s error in admitting into evidence DNA probability statistics without conducting a proper Frye hearing; (3) failing to raise the issue of the trial court’s order denying the defense’s request for a recess; and (4) failing to argue that the trial court had failed to conduct a proper Nelson inquiry.

This Court has consistently stated that appellate counsel cannot be ineffective for failing to raise claims which were not preserved due to trial counsel’s failure to object. See, e.g., Randolph v. State, 853 So.2d 1051, 1068 (Fla.2003); Brown v. State, 846 So.2d 1114, 1127 (Fla. 2003); Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993) (finding appellate counsel was not ineffective in failing to raise allegedly improper comments by the prosecutor which were not preserved for appeal by objection). The sole exception to the general rule is where appellate counsel fails to raise a claim which, although not preserved at trial, rises to the level of fundamental error. See, e.g., Rodriguez v. State, 919 So.2d 1252, 1282 (Fla.2005); Thomas v. State, 748 So.2d 970, 985 n. 10 (Fla.1999). In order for an error to be fundamental and justify reversal in the absence of a timely objection, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So.2d 481, 484 (Fla.1960); see also Rodriguez, 919 So.2d at 1282; Kilgore v. State, 688 So.2d 895, 898 (Fla.1996); State v. Delva, 575 So.2d 643, 644-45 (Fla.1991).

Prior Violent Felony

Branch contends that appellate counsel was ineffective for failing to argue that the abstract of judgment from the Indiana conviction was not admissible and that the conviction was not a felony under Florida law.

We must first determine whether the issue as to the admissibility of the abstract was preserved for appellate review. During the penalty phase, the State presented the testimony of Bruce Fairburn with the Florida Department of Law Enforcement concerning the Indiana conviction. He testified that the abstract of judgment was certified in front of him. Subsequently, the abstract of judgment was admitted into evidence. However, the admission of the abstract was not objected to at trial by the defense. Therefore, the issue was not preserved for appellate review. Furthermore, we conclude that the admission of the abstract does not rise to the level of fundamental error. As a result, we hold that appellate counsel was not ineffective for failing to raise this claim on direct appeal.

Next, Branch argues that appellate counsel provided ineffective assistance because he did not challenge the Indiana conviction on the basis that it was not a felony under Florida law. Branch acknowledges that appellate counsel argued that the trial court erroneously allowed the State to introduce, without any further proof, the Indiana judgment as proof of a “violent” felony conviction. That argument was made in furtherance of the defense’s claim at trial that the admission was improper because the State did not establish that the Indiana conviction was a violent felony as defined under Florida law. Here, Branch appears to disagree with the manner in which his appellate counsel raised the issue on direct appeal. However, this is an insufficient ground to be heard in a habeas corpus petition. See Brown v. State, 894 So.2d 137, 159 (Fla. 2004) (“Habeas petitions, however, should not serve as a second or substitute appeal and may not be used as a variant to an issue already raised.”); see also Swafford v. Dugger, 569 So.2d 1264, 1266 (Fla.1990) (“After appellate counsel raises an issue, failing to convince this Court to rule in an appellant’s favor is not ineffective performance.”).

Furthermore, even if Branch is correct in his assertion that the Indiana conviction did not qualify as a prior violent felony to support the aggravating circumstance, any error would be considered harmless. See Peterka v. State, 640 So.2d 59, 71 (Fla.1994) (holding that reversal “is permitted only if this Court finds that the errors in weighing the aggravating and mitigating circumstances, if corrected, reasonably could have resulted in a lesser sentence”). Here, the trial court found two other significant aggravators: the murder was committed in the course of a sexual battery and was especially heinous, atrocious, or cruel. The trial court determined that the mitigating evidence was marginal. Moreover, contrary to Branch’s assertions, the mitigating evidence presented at the evi-dentiary hearing adds little,more to what was previously presented. Therefore, Branch cannot demonstrate that confidence in the result on appeal is undermined, and appellate counsel will not be held ineffective for failing to raise a non-meritorious issue. See Spencer v. State, 842 So.2d 52, 74 (Fla.2003).

DNA Evidence

Branch asserts that appellate counsel was ineffective for failing to raise on appeal the issue of the trial’ court’s error by admitting into evidence DNA probability statistics without conducting a proper Frye hearing.

Under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), an expert scientific opinion must be based on techniques that have been generally accepted by the relevant scientific community and have been found to be reliable. See id. at 1014. Under Florida law, a Frye hearing is utilized in order to determine if the expert scientific opinion is admissible. See Smith v. State, 931 So.2d 790, 31 Fla. L. Weekly S159, S164 n. 10 (Fla. Mar. 9, 2006). However, Frye is utilized in Florida only when the science at issue is new or novel. See Brim v. State, 695 So.2d 268, 271-72 (Fla.1997).

At trial, defense counsel argued that the statistical conclusions from Dr. James Pollock, Jr. should not be admitted into evidence because the State had not established that the witness participated in the compilation of the data-sets that he relied upon in calculating the population frequency. The trial court rejected trial counsel’s argument and admitted the DNA probability statistics.

In contending that the trial court made no determination as to the qualifications of Dr. Pollock and did not mention specifically that the data-sets satisfied the Frye test, Branch argues that the trial court improperly admitted the DNA statistical evidence. However, under Florida law, the expert need not be a statistician himself to testify as to the statistical results. See Darling v. State, 808 So.2d 145, 158 (Fla.2002). Furthermore, admissibility is not contingent upon the expert having compiled the database himself. See id. at 158 (citing Lomax v. State, 727 So.2d 376 (Fla. 5th DCA 1999)). Instead, “a sufficient knowledge of the authorities pertinent to the database is an adequate basis on which to render an opinion.” Butler v. State, 842 So.2d 817, 828 (Fla.2003). Here, the record reflects that Dr. Pollock had sufficient knowledge to render an opinion. Therefore, Dr. Pollock had an adequate basis on which to render an opinion on the DNA statistics evidence.

Request for a Recess

Branch asserts that appellate counsel was ineffective for not raising the issue that the trial court improperly denied his request for a recess so that counsel could confer with petitioner before beginning redirect examination of Branch.

In Bova v. State, 410 So.2d 1343 (Fla.1982), this Court held that a trial court could not, without violating the constitutional right to counsel, preclude attorney-client consultation during a recess. Id. at 1344-45. However, in Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), the United States Supreme Court held that the Sixth Amendment right to counsel is not violated when a trial court denies such access during a short recess, on the basis that when a defendant becomes a witness, the defendant has no constitutional right to consult with his lawyer while he is testifying. Id. at 283-84, 109 S.Ct. 594. According to the Court, the defendant has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony periodically interrupted in order to give him the benefit of counsel’s advice. Id. at 281, 109 S.Ct. 594. Moreover, there is not a constitutional right to a recess and whether to grant one is a matter of discretion to be exercised by the trial court. See id. at 283,109 S.Ct. 594; Bova, 410 So.2d at 1344 (“[T]he trial court has complete discretion in permitting recesses and in controlling recess duration.”). Here, there was- no recess granted by the trial court. We conclude that the trial court did not abuse its discretion in denying Branch’s attempt to confer with counsel in the middle of his testimony. Based upon the foregoing, we hold that appellate counsel was not ineffective in failing to raise an issue that is without merit.

Nelson Inquiry

Branch asserts that his appellate counsel, who had argued on appeal that the trial court had failed to conduct a proper inquiry under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), was ineffective for failing to argue that Nelson is inadequate and unconstitutional as applied in Branch’s case, because Nelson only requires an inquiry of court-appointed counsel and fails to protect a defendant’s Sixth Amendment right to competent private counsel. Branch also argues that appellate counsel should have pointed out in the motion for rehearing that Branch’s grandfather requested counsel to withdraw and should have included the allegations made in his letter to the trial court.

However, a review of the record reflects that there is no basis, legally or factually, for appellate counsel to have made these arguments. The record reflects no necessity for a Nelson inquiry since Branch did not discharge private counsel and he made no attempt to demonstrate indigency in order for the public defender to be reappointed to his case. In fact, this Court found on direct appeal that Branch was not seeking to discharge counsel and that his comments appeared to constitute a general complaint rather than a formal allegation of incompetence. Branch, 685 So.2d at 1252. In that regard, this case is similar to Davis v. State, 703 So.2d 1055 (Fla.1997), to the extent that the defendant “never made an unequivocal request to discharge his court-appointed counsel; he subsequently allowed his attorney to represent him throughout the trial.” Id. at 1058. Indeed, in Davis, the defendant had at least filed a motion to discharge counsel, whereas here Branch simply sought court inquiry as to counsel’s representation. Further, unlike the situation in Davis, Branch could have discharged retained counsel at any time. See Fratcher v. State, 842 So.2d 1044, 1046 (Fla. 4th DCA 2003) (“A criminal defendant has the right to select his own private counsel, so long as he is not seeking to delay or otherwise subvert judicial proceedings.”). As we noted in Branch’s direct appeal, a Nelson inquiry into the effectiveness of counsel is not required when a defendant seeks to discharge a privately hired attorney. See Branch, 685 So.2d at 1252. Based upon the foregoing, we conclude that appellate counsel was not ineffective with regard to Branch’s Nelson claims.

CONCLUSION

For the reasons discussed above, we affirm the circuit court’s denial of postcon-viction relief and deny the petition for writ of habeas corpus.

It is so ordered.

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

      .Branch's motion alleged: (1) ineffective assistance of trial counsel at the guilt phase and violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); (2) ineffective assistance of trial counsel during the penalty phase and violations of Brady and Giglio; (3) newly discovered evidence shows that the jury and trial court considered a nonstatutory aggravating circumstance of an improper prior violent felony; (4) counsel was ineffective for failing to obtain an adequate mental health evaluation; (5) postconviction counsel was unconstitutionally hindered because of the rules prohibiting counsel from interviewing jurors; (6) jury instructions diluted the jury's sense of overall responsibility in Florida's death penalty scheme; (7) Florida’s death penalty sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (8) unconstitutionality of execution by electrocution and lethal injection; (9) defendant may become mentally incompetent by the time of his execution; (10) felony underlying felony murder was an automatic aggravating circumstance; (11) improper direct appeal and ineffective assistance of appellate counsel; (12) public records are being withheld; (13) Florida's capital punishment statute is unconstitutional because it fails to prevent the arbitrary imposition of the death penalty; and (14) cumulative error.

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

      . An order denying Branch’s amended motion for postconviction relief was entered on March 4, 2005.

      . The trial court also concluded that Branch had abandoned the car. See State v. Lampley, 817 So.2d 989, 991 (Fla. 4th DCA 2002) ("The test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.”) (quoting 14A Fla.Jur.2d Abandoned Property § 633 (2001)); State v. Terzado, 513 So.2d 741, 742 (Fla. 3d DCA 1987) ("If Terzado abandoned his car, he lost his reasonable expectation of privacy in it, and may not claim a violation of his fourth amendment rights.”). In fact, we previously noted on direct appeal that "when Branch’s Pontiac was discovered abandoned in the Pensacola airport parking lot, 'medium velocity splatter’ bloodstains matching Morris's DNA profile were found on boots and socks inside.” Branch, 685 So.2d at 1252 (emphasis added).

      .To avoid this potential procedural default, Branch has also filed a habeas petition asserting that direct appeal counsel was ineffective for failing to raise the issue as Branch has done on postconviction review.

      . Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Meryl S. McDONALD, Appellant, v. STATE of Florida, Appellee. Meryl S. McDonald, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC03-648, SC04-708.
    Supreme Court of Florida.
    Nov. 2, 2006.
    Rehearing Denied March 12, 2007.

      John William Jennings, Capital Collateral Regional Counsel, Middle Region, and Peter James Cannon and Daphney Elaine Gaylord, Assistant CCR Counsel, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Meryl S. McDonald, a prisoner under a sentence of death for a conviction of first-degree murder, appeals an order of the circuit court denying a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. After review, we affirm the denial of relief and deny the petition for writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

The underlying circumstances of this case are set out in our opinion affirming the conviction and death sentence of McDonald’s codefendant, Robert R. Gordon. Gordon v. State, 704 So.2d 107, 108-09 (Fla.1997). Dr. Louis A. Davidson was murdered on January 25, 1994. Five persons, including McDonald, were indicted for the crime of murder in the first degree by a grand jury on April 27, 1994. Dr. Davidson’s estranged wife, Denise A. Davidson, and her boyfriend, Leonardo A. Cisneros, hired McDonald and Gordon to kill Davidson. The fifth person indicted, Susan C. Shore, was hired by McDonald and Gordon to drive them to the victim’s apartment in St. Petersburg. On the day of the murder, McDonald and Gordon murdered the victim inside his apartment while Shore remained outside in her car. After the murder, Shore drove Gordon and McDonald to a Days Inn motel in Tampa where they changed clothes and eventually met with Denise Davidson and Cisneros, whom they had also met the day before the murder. After Gordon and McDonald conferred with Denise Davidson and Cisneros, out of Shore’s hearing, Shore drove Gordon and McDonald back to Miami.

McDonald and Gordon were tried together and convicted of first-degree murder. The jury recommended by identical votes of nine to three that each should be sentenced to death. The trial court followed the jury’s recommendation and sentenced McDonald to death. In imposing the death penalty, the trial court found four aggravating factors: (1) the murder was committed during the commission of a burglary/robbery; (2) the murder was committed for pecuniary gain (based on a contract killing); (3) the murder was heinous, atrocious, or cruel (HAC); and (4) the murder was cold, calculated, and premeditated (CCP). McDonald v. State, 743 So.2d 501, 502 (Fla.1999). The trial court found no statutory mitigating factors and three nonstatutory mitigators: (1) Mc Donald’s good prison behavior; (2) McDonald’s advanced age at the time he would be eligible for release if sentenced to imprisonment; and (3) codefendant Denise Davidson’s receipt of a life sentence. Id. On appeal, this Court found no error and affirmed McDonald’s conviction and sentence. Id. at 507.

After initiation of postconviction proceedings, McDonald was represented by the Office of Capital Collateral Regional Counsel (CCRC), which initially prepared McDonald’s motion for postconviction relief. When McDonald would not sign and swear to this motion, CCRC filed the un-sworn motion and McDonald filed his own separate motion. CCRC thereafter filed a certification of conflict and a motion to withdraw and for appointment of conflict-free counsel because McDonald would not sign and verify the motion prepared by CCRC. At a hearing, the circuit court determined that there was no legal conflict, and McDonald later agreed to sign and verify an amended motion prepared by CCRC. ■

Subsequently, however, McDonald filed “Defendant’s Motion to Remove Conflict Counsel, and to Strike Counsel 3.850 Motion, and Motion for Reconsideration, and for Self-Representation.” , The circuit court decided that there still was no conflict, and, thus, no reason for CCRC not to represent McDonald. When McDonald insisted that he wanted to represent himself, rather than have CCRC represent him, the circuit court conducted an extensive inquiry on the record pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Based upon McDonald’s insistence and the failure of CCRC to cite any legal grounds to the contrary, the circuit court determined that it had no legal alternative but to allow McDonald to represent himself. Thereafter, CCRC was appointed as stand-by counsel, and appeared as stand-by counsel for McDonald throughout the remainder of the postconviction proceedings. The circuit court further allowed McDonald, acting as his own counsel, to withdraw the motion filed by CCRC and substitute his own postconviction motion that he had previously filed. Later, McDonald filed “Defendant’s Motion to Amend and Supplemental 3.850 Postconviction Relief Motion,” in which he raised sixteen claims. In his 3.850 motion, McDonald raised the following issues: (1) trial counsel was ineffective with regard to the jury selection; (2) there was no waiver of defendant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (3) trial counsel was ineffective for failing to challenge the hair evidence; (4) trial counsel was ineffective for failing to challenge the carpet fiber evidence; (5) the State’s cashmere fiber testimony was false and trial counsel was ineffective for not challenging it; (6) trial counsel was ineffective with regard to the bloodstain evidence; (7) trial counsel was ineffective by failing to raise an argument concerning the contamination of the sweatshirt; (8) trial counsel was ineffective by failing to challenge the shoe print and tennis shoes evidence; (9) trial counsel was ineffective for failing to keep Susan Shore from testifying; (10) State witnesses lied about identification issues; (11) trial counsel was ineffective for not pursuing a severed trial; (12) trial counsel was ineffective for failing to investigate and present an alibi defense; (13) trial counsel was ineffective for failing to object to an improper closing argument by the' prosecutor; (14) trial counsel was ineffective for failing to file a motion for a speedy trial; (15) the trial court lacked jurisdiction because the autopsy failed to establish the cause of death; and (16) when the claims are examined collectively, trial counsel provided ineffective assistance of counsel.

The circuit court held a preliminary hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), and at the hearing, McDonald waived issues (2) and (10). The circuit court summarily denied issues (1), (3), (4), (5), (7), (8) through (13), (15), and (16) and granted an evidentiary hearing on issues (6), (11), (12), and (14). An eviden-tiary hearing was conducted, and thereafter, the circuit court entered a written order denying all claims for postconviction relief.

On appeal, CCRC filed an amended brief with this Court on behalf of McDonald, raising thirteen issues.

RULE 3.850 APPEAL

Initially, CCRC raises several claims on appeal that it asserts were not adequately presented below because McDonald failed to raise them when he was allowed to represent himself during the postconviction proceedings. Because we conclude that the circuit court properly allowed McDonald to represent himself, these claims may not be raised for the first time on appeal. Similarly, some of the other claims now asserted by CCRC are procedurally barred because they were not raised below. See Perez v. State, 919 So.2d 347, 359 (Fla.2005) (holding that in order to preserve an issue for appeal, the issue “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation”) (quoting Archer v. State, 613 So.2d 446, 448 (Fla.1993)), cert. denied, — U.S.-, 126 S.Ct. 2359, 165 L.Ed.2d 285 (2006). Finally, we reject several other claims that present merely conclusory arguments insufficient to state an issue. See LeCroy v. Dugger, 727 So.2d 236, 240-41 (Fla.1998) (upholding the summary denial of a postconviction motion because the defense alleged no facts to substantiate its conclusory claims of ineffective assistance of counsel); see also Randolph v. State, 853 So.2d 1051, 1063 n. 12 (Fla.2003) (“[T]he purpose of an appellate brief is to present arguments in support of the points on appeal.”) (quoting Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990)). We now address McDonald’s remaining claims.

I. The Faretta Inquiry

CCRC argues that the circuit court violated both the Florida and Federal Constitutions by conducting an inadequate inquiry under Faretta, and allowing Mr. McDonald to proceed pro se at his post-conviction proceedings below. However, the circuit court performed a thorough and extensive Faretta inquiry, and CCRC, when given the opportunity to do so, asserted no basis for denying McDonald’s request to represent himself.

Initially, we examine the claim that the circuit court failed to conduct an adequate Faretta inquiry. We note at the outset, during the Faretta inquiry, the circuit court specifically requested additional input from CCRC by asking, “Do you know of any reason why I shouldn’t appoint him to represent himself?” In response to the circuit court’s question, CCRC’s “only concern” was the issue of “conflict-free counsel.” CCRC also conceded that no new grounds existed to arguably support the alleged “conflict-free counsel” claim, an issue which the circuit court previously addressed and denied. Despite the circuit court’s specific request for CCRC’s input, no challenge was ever raised concerning the adequacy of the Faretta inquiry or otherwise regarding the manner or substance of the trial court’s treatment of this issue.

Assuming that the current challenge to the adequacy of the circuit court’s Faretta inquiry is properly before us, the claim is without merit. The following excerpts from the Faretta inquiry demonstrate the thoroughness of the trial court’s inquiry:

THE COURT: Okay. As I go through this, I’m going to talk to you a little bit about some of the advantages and disadvantages of representing yourself. You obviously have put in your motion that you’re aware of that, and you’re quite aware of all the discussions of the disadvantage of representing yourself, right? THE DEFENDANT: Yes, your Honor. THE COURT: Okay. In your motion, I don’t have it in front of me, but I remember when I read it you have adopted a lot of what CCRC filed on your behalf, and then you put some other stuff with it, right? That’s my recollection. I may be wrong on that.
THE DEFENDANT: No, your Honor.
THE COURT: You did not?
THE DEFENDANT: No. What CCRC claims and my claims are different, in conflict. Two motion, but we all different grounds, different arguments.
THE COURT: Okay. If in your motion there are any, what we will call legal claims — not factual claims; I am innocent, this should have been done, the hair isn’t mine, factual things. If there are any legal issues raised, constitutionality of the death penalty, Caldwell issues, all those things CCRC may tend to raise in the State court hoping to obtain perhaps relief in a Federal court, those claims oftentimes have to be raised in the State court to get relief in the Federal court. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. And do you understand that if you are not successful in the State court, you may have a right to have a hearing on certain things in the Federal courts?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. You may find that if certain things weren’t done or raised in the State court, that you can’t raise them in the Federal court and, therefore, they’re gone.
THE DEFENDANT: I understand that.
THE COURT: You understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: And do you understand one of the problems with representing yourself at this stage, in a complex case like this, where the death penalty has been imposed, is that CCRC is usually up on things; they go to seminars, talk about those issues. We call them hot topics sometimes in seminars, things that it is believed that perhaps the Federal courts are going to take a look at and things that are probably dead issues and things that may be coming up on the horizon, is my terminology. But they will raise things that are pretty well settled in the State of Florida that they know they’re going to lose here, because they’re trying to preserve them for Federal review, hoping that they can get relief either in a District Court, Federal District Court, Eleventh Circuit Court of Appeals or the United States Supreme Court.
THE DEFENDANT: Yes, ma’am, I’m aware of that, your Honor.
THE COURT: Do you understand you may be at a disadvantage there because you would not have any way of having been to those seminars and know what those topics are?
THE DEFENDANT: Yes, your Honor.
THE COURT: And do you understand that the Federal court, just like I can’t give you any special privileges if you elect to represent yourself, neither will they? So if you had to raise something here to raise it in Federal court and you don’t, and I let you represent yourself, they’re going to say, just like as if you were represented by a lawyer, it’s waived. Do you understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: Can’t be raised. Might be valid, but it can’t be raised because Mr. McDonald chose to represent himself in State court and he didn’t raise it. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. That’s one of the disadvantages. Do you agree with that? Right?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. As I was reading through the petition that you had filed in the Supreme Court — and I have not read your motion for postconviction relief in some time, but I did receive what you filed in the Supreme Court — it appears to me as if you’re challenging or saying you want to challenge some things like DNA, Motions to Suppress, expert witnesses, hair analysis, this type of thing. Is that true? Is that some of the stuff you want to challenge?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Do you realize that you, as kind of a person with training, but not as much training as your lawyer, are at a certain disadvantage in kind of going toe to toe with an expert who supposedly is an expert in his or her field?
THE DEFENDANT: Repeat the question, your Honor.
THE COURT: Okay. Do you understand you may be at a disadvantage if in fact I grant you a hearing and you or the State calls an expert witness in the field of DNA, which is pretty technical, and you are representing yourself as your own lawyer, that you may be at a disadvantage in being able to challenge him on cross examination because you simply will not be as up on DNA expertise as a lawyer would be?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Do you understand that you would not be as knowledgeable as a trained lawyer would be on the rules of evidence?
THE DEFENDANT: Yes, ma’am.
THE COURT: And, therefore, the State may ask a question or a series of questions or go into a certain area that they may not be entitled to, but you wouldn’t know necessarily to object; you might, but you wouldn’t be as trained in those areas as a lawyer would be. You understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Okay. Now I’m going to read you some of the stuff they want me to read to you, okay? So listen carefully. It is almost always unwise to represent yourself in court. I’m telling you that. Let me tell you a few of the disadvantages of representing yourself in court. Do you understand that you will not get any special treatment from this court or any other court just because you are representing yourself? THE DEFENDANT: Yes, your Honor, I understand that.
THE COURT: Okay. This apparently is the ultimate question here, and I’m going to once again read it just the way they’ve got it: Having been advised of your right to counsel, do you understand you have the right to counsel?
THE DEFENDANT: Yes, ma’am.
THE COURT: You understand I have told you as much as I can the advantages of having counsel?
THE DEFENDANT: Yes, your Honor.
THE COURT: And the disadvantages of representing yourself?
THE DEFENDANT: Yes, your Honor.
THE COURT: The dangers of proceeding without counsel?
THE DEFENDANT: Yes, your Honor.
THE COURT: You know the nature and possible consequences if you do? In other words, you are on death row and you’re fighting for your life. You understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Are you certain that you want to represent yourself and not have a lawyer represent you?
THE DEFENDANT: Yes, your Honor.
THE COURT: You do understand — I mean, as I said, you and I have been together in court many times over the course of many days, so it just seems kind of silly to ask it: You do understand that you have received a death sentence and in the event that you are not successful at one of these stages, that you will have a death sentence carried out? You understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: You know what’s at stake here, quite clearly, right?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Does the State have any questions?
MS. KING: No, your Honor.
THE COURT: Correct me if I’m wrong, Miss King, but my recollection of the last time I read the law or was in a seminar where this was discussed, no matter how — I mean, I’m going to tell you in the strongest terms possible, Mr. McDonald, I really wish you wouldn’t do this, because I think it’s dangerous. I think you would receive better representation from a lawyer. I think you' have a better chance of succeeding if you had a lawyer. And I — I don’t want to just keep pounding on this, but I’m not saying this because I’d just as soon deal with a lawyer as deal with you, I mean it. Do you understand that?
THE DEFENDANT: Your Honor, counsel here, I respect his — his action. However, the motion that counsel prepared is motion that he prepared for postconviction relief. I disagree with the claim as argument. Now, if he can work with me, work with me with my claims, it be good. But his claim is what bother me. He try to demonstrate to this court on my behalf, which I object to.
THE COURT: That — that we kind of went through last time.
THE DEFENDANT: Yes, your Honor. THE COURT: In other words, you had a conflict, you and he. You and I talked about it, I ruled there wasn’t a conflict. THE DEFENDANT: Yes.
THE COURT: You’re appealing that ruling, so we’re kind of past that.
THE DEFENDANT: Okay, your Hon- or.
THE COURT: So I guess what I’m suggesting to you is, do you understand I am telling you in the strongest possible terms, I’ve got nothing — I’ve got nothing against you personally, I’m dealing within a legal system here, but I’m telling you as judge to another human being in this courtroom, I think it is a huge mistake for you to represent yourself in a case that carries the death sentence. Do you understand that?
THE DEFENDANT: Yes, your Honor. THE COURT: All right. And you still wish to do that?
THE DEFENDANT: Yes, your Honor.

We conclude that after McDonald requested to represent himself during posteonviction proceedings, the circuit court went above and beyond what is required under the dictates of Faretta. After reviewing the transcript, which consisted of over fifty pages, we recognize that the circuit court only reluctantly allowed McDonald to represent himself during the postconviction proceedings. Therefore, we deny CCRC’s claim that the court did not conduct an adequate Faretta inquiry. Further, because CCRC made no other arguments in the trial court contesting McDonald’s self-representation, we decline to address any arguments now asserted by CCRC for the first time on appeal.

II. Brady and Giglio Claims

In claim (4) of its amended brief, CCRC asserts claims pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), alleging that the State withheld crucial DNA evidence and that the State presented false evidence. However, McDonald did not assert a specified legal claim under Brady or Giglio in his pro se postconviction motion. Accordingly, some of CCRC’s current legal claims could be procedurally barred. See Perez, 919 So.2d at 359. However, CCRC does include some allegations that were presented in McDonald’s pro se supplemental motion before the circuit court on the underlying bloodstain evidence claim. Specifically, McDonald asserted below: (1) Agent Michael Vick never conducted the DNA tests; (2) Agent Vick had no training in DNA tests; (3) Agent Vick was not a DNA expert; and (4) no DNA match of the victim’s blood was found on the gray sweatshirt.

The circuit court denied these claims because it found that all of McDonald’s criticisms against Agent Vick were refuted by the trial testimony of Agent Vick. Furthermore, McDonald offered no evidence at the evidentiary hearing to refute Vick’s testimony or the DNA evidence. Because CCRC only resurrects some of McDonald’s arguments that were denied by the circuit court and asserts no basis, other than eon-elusory arguments, for a Brady or Giglio claim, this claim is denied.

III. Ineffective Assistance of Counsel

In accordance with the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that two elements must be met for ineffective assistance of counsel claims to be successful: (1) The claimant must identify particular acts or omissions of the lawyer that are outside of the broad range of reasonably competent performance under prevailing professional standards, and (2) the deficiency shown must be demonstrated to have so affected the proceeding that confidence in the outcome is undermined. See, e.g., Lott v. State, 931 So.2d 807, 815 (Fla.2006); Happ v. State, 922 So.2d 182,186 (Fla.2005).

A. Bloodstain Evidence

In his pro se motion for postconviction relief, McDonald alleged a three-part claim of ineffective assistance of counsel regarding the bloodstain evidence. First, McDonald alleged that trial counsel was ineffective in failing to move to suppress evidence of a bloodstain on the sweatshirt “as lost or destroyed.” Second, McDonald alleged that his trial attorney was ineffective for failing to obtain a DNA expert. Third, McDonald alleged ineffective assistance of counsel in failing to request a Frye hearing. The circuit court denied McDonald’s bloodstain evidence claims.

First, CCRC contends that McDonald is entitled to relief because the State’s evidence of a bloodstain on the sweatshirt has either been lost or destroyed. However, we have previously held that if evidence is lost or totally consumed during testing, the burden is on the defendant to show bad faith by the State in failing to preserve evidence. See King v. State, 808 So.2d 1237,1242-43 (Fla.2002) (citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). In denying postconviction relief after an evidentiary hearing, the circuit court ruled that even if the bloodstain evidence had been consumed in the testing, the DNA materials, such as photographs of the DNA test results, autoradiographs, x-rays, and perhaps more, are still available for comparison should anyone want to verify that the DNA is Dr. Davidson’s. Therefore, even if the bloodstain may have been unavoidably consumed in the DNA testing, the DNA materials from the test are not “lost or destroyed” because comparisons can still be made. As a result, the trial court concluded trial counsel was not ineffective for failing to file a motion to suppress the bloodstain evidence based on the theory that the evidence had been lost or destroyed, and we find no error in that determination.

Next, CCRC contends that trial counsel was ineffective for failing to engage the services of a DNA expert. However, trial counsel testified at the eviden-tiary hearing that he made a strategic, informed decision not to challenge the DNA evidence that showed the victim’s blood on McDonald’s shirt. The defense theory was that Gordon and McDonald went to the victim’s apartment to retrieve a document from the victim. After they left the apartment, Leo Cisneros killed the victim and later planted the DNA evidence on McDonald’s shirt. Given this defense theory, the DNA evidence would not seem to be an issue. In fact, the additional presence of unknown DNA on McDonald’s shirt would seem to bolster their claim that they were framed. Moreover, the defense DNA expert, Dr. Renee Herrera, agreed with Agent Vick that the identification of the bloodstain from the sweatshirt was consistent with the known victim’s blood sample. From the eviden-tiary hearing and trial transcripts, trial counsel decided after discussions with McDonald, codefendant Gordon, and codefen-dant Gordon’s counsel, to use the small amount of blood found on the sweatshirt at the motel to support the defense that someone else committed the murder and framed McDonald. Trial counsel testified that he discussed this strategy with McDonald, i.e., that they would not challenge the DNA because it was not harmful to their planned defense. Therefore, we conclude that McDonald has not demonstrated that the trial court erred in concluding that trial counsel’s tactical decision was not deficient performance.. See Whitfield v. State, 923 So.2d 375, 381 (Fla.2005) (“Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected.”) (quoting Rutherford v. State, 727 So.2d 216, 223 (Fla.1998)).

Finally, CCRC contends that the use of ethnic substructures and population frequencies was not generally accepted by the scientific community at the time of McDonald’s trial, and therefore, trial counsel was ineffective for not requesting a Frye hearing on the bloodstain evidence. CCRC relies on Vargas v. State, 640 So.2d 1139 (Fla. 1st DCA 1994), quashed on other grounds, 667 So.2d 175 (Fla.1995). In Vardas, the court concluded that the Frye standard could not be met when using DNA population frequencies because there was a lack of general acceptance in the scientific community of the FBI’s Hispanic Database. Vargas, 640 So.2d at 1150. However, Vargas was later distinguished in Crews v. State, 644 So.2d 338, 339 (Fla. 1st DCA 1994), which concluded that DNA test results are not per se inadmissible. The circuit court stated that at the time of McDonald’s 1995 trial, there was general acceptance in the scientific community for forensic population genetics to permit Agent Vick’s testimony, including his population frequency testimony. We find no error in the trial court’s conclusion that trial counsel was not ineffective for failing to request a Frye hearing.

B. Suppression of the Hair Evidence

McDonald’s pro se postconviction motion alleged three sub-claims of ineffective assistance of counsel concerning his hair sample obtained by police and submitted to the FBI for comparison with the hair found on the sweatshirt seized from the Days Inn. First, McDonald alleged that his hair samples were illegally seized by fraud, without court order, and that trial counsel was ineffective for failing to move to suppress. Second, McDonald alleged that the testimony of Detective Celona and FBI Agent Allen was false concerning the dates of submission of McDonald’s hair samples and the result of the FBI’s comparison, that the State knew it was false, and that trial counsel was ineffective for failing to move to suppress. Third, McDonald alleged fundamental error and ineffective assistance for failure to require adherence to Frye. In denying postconviction relief, the circuit court ruled that counsel was not deficient for not moving to suppress McDonald’s hairs, which could have been legally obtained and tested again at any time. Next, the circuit court ruled that McDonald did not show that the testimony of Detective Celona and Agent Allen was false. Finally, the circuit court concluded that no Frye hearing is required before the opinion testimony of a hair analyst can be admitted in a trial.

CCRC again asserts that trial counsel was ineffective in failing to adequately challenge the testimony of FBI Agent Allen and investigate the State’s hair evidence. “[W]here defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious.” Zakrzewski v. State, 866 So.2d 688, 694 (Fla.2003) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)).

First, with regard to the police illegally obtaining McDonald’s hair samples, the police may obtain a defendant’s hair sample without a search warrant if the defendant voluntarily consents to providing the sample. See Murray v. State, 692 So.2d 157, 159-60 (Fla.1997) (allowing for the seizure of hair samples after the defendant waived his Miranda rights and consented to giving the samples). Here, the detectives testified that they asked McDonald for his hair samples to eliminate him as a suspect. Further, McDonald signed Miranda waiver forms in the presence of Detectives Noodwang and Taranto on February 23 and 24, 1994, once as Rudolph Bowens and once as Meryl McDonald. Moreover, he voluntarily consented to giving the detectives samples of his hair. Based on the record, the circuit court stated that it would not have suppressed the hair evidence; therefore, trial counsel was not ineffective for failing to file a motion to suppress the hair evidence. We hold that the lower court did not err in finding that the hair samples were not illegally obtained and that trial counsel was not ineffective for not filing a motion to suppress this evidence.

Next, in denying McDonald’s second sub-issue, we find no error in the conclusion that there was no hair evidence that defendant’s trial counsel could have moved to suppress because of the detectives’ alleged false testimony. Detective Celona testified that he received defendant’s hair sample from Detective Noodwang on March 1, 1994, placed it in evidence, and later sent it to the FBI on March 17, 1994, the same date that codefendant Gordon’s hair samples were sent. He identified the hair samples that he had received from Detective Noodwang. On direct examination, Agent Allen identified his initials and designations on McDonald’s hair samples that he found to match with trace evidence hair he collected from the sweatshirt. He explained that hair comparison is not a positive identification, as is fingerprint comparison, but did identify the hairs as included for a possible match. Agent Allen described the unusual dyed characteristics of defendant’s known hair samples and those of the facial and head hairs he had found on the sweatshirt. McDonald’s girlfriend, Carol Cason, testified at trial that McDonald had dyed his hair and beard but that it had gotten lighter by the time of trial. Trial counsel did not file a motion to suppress this evidence, but he did cross-examine these witnesses about the hair evidence. We find no error in the circuit court’s conclusion that trial counsel was not ineffective for failing to file a motion that would not have been granted.

Finally, Agent Allen conducted only a microscopic and visual comparison of the hair evidence. Visual and microscopic hair comparison is not based on new or novel scientific principles and, therefore, does not require a Frye analysis. See Jent v. State, 408 So.2d 1024, 1029 (Fla.1981). As a result, the trial court did not err in concluding that counsel was not ineffective for failing to request a Frye hearing.

PETITION FOR WRIT OF HABEAS CORPUS

Having affirmed the trial court’s denial of McDonald’s 3.850 motion, we now consider McDonald’s petition for writ of habe-as corpus. McDonald claims that he is entitled to relief because (1) the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and (2) the trial court conducted an inadequate inquiry under Faretta.

I. Ring Claim

Recently, this Court held that Ring does not apply retroactively. Johnson v. State, 904 So.2d 400, 407 (Fla.2005). Because Ring was decided after McDonald’s convictions became final, Ring is inapplicable. McDonald’s claim raises no new issues and therefore is without merit.

II. Inadequacy of the Faretta Inquiry

CCRC reasserts the same argument — the trial court conducted an inadequate Faretta inquiry — that it presented in Issue I of the postconviction appeal. As this Court has repeatedly stated, habeas corpus petitions cannot be used as a means to seek a second appeal or to litigate issues that could have been or were raised in a postconviction appeal. See Knight v. State, 923 So.2d 387, 395 (Fla.2005) (citing Baker v. State, 878 So.2d 1236, 1241 (Fla.2004); Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989)). Therefore, this claim is proeedurally barred. Furthermore, as discussed in our above analysis of the Faretta inquiry, this claim is also without merit. As a result, this claim is denied.

CONCLUSION

For the reasons discussed above, we affirm the circuit court’s denial of postcon-viction relief and deny the petition for writ of habeas corpus.

It is so ordered.

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

      .In its amended brief, CCRC argued: (1) the trial court erred by conducting an improper Faretta inquiry and allowing McDonald to proceed during the postconviction proceedings pro se; (2) trial counsel was ineffective for failing to challenge the racial composition of the jury venire; (3) trial counsel was ineffective for failing to object to the prosecutor’s closing argument concerning the pain and suffering felt by the victim; (4) the State suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and presented false evidence in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); (5) trial counsel was ineffective for failing to move to exclude the illegally obtained physical evidence; (6) trial counsel was ineffective for failing to challenge the State’s fiber testimony; (7) trial counsel was ineffective for failing to challenge forensic evidence; (8) trial counsel was ineffective for failing to challenge physical evidence; (9) trial counsel was ineffective for failing to challenge the expert shoe imprint testimony; (10) trial counsel was ineffective for failing to challenge the testimony of a co-conspirator; (11) trial counsel was ineffective for failing to move to sever; (12) trial counsel was ineffective for failing to investigate an alibi defense; and (13) McDonald did not make a knowing, intelligent, and voluntary waiver of his postconviction counsel.

      . As set out in CCRC’s brief,. these claims include issues (8) through (12): (8) (trial counsel was ineffective for failing to challenge physical evidence); (9) (trial counsel was ineffective for failing to challenge the expert shoe imprint testimony); (10) (trial counsel was ineffective for failing to challenge the testimony of a co-conspirator); (11) (trial counsel was ineffective for failing to move to sever); and (12) (trial counsel was ineffective for failing to investigate an alibi defense). ■ ■

      . The following claims are procedurally barred because they were not raised by McDonald below: (2) (trial counsel was ineffective for failing to challenge the racial composition of the jury venire), and (3) (trial counsel was ineffective for failing to object to the prosecutor's closing argument concerning the pain and suffering felt by the victim).

      . Claim (6) (trial counsel was ineffective for failing to challenge the State’s fiber testimony) is such a claim. CCRC has only restated McDonald’s allegations which were rejected below and has offered nothing to undermine the circuit court's analysis and rejection of this claim. Also, claim (13) (McDonald did not make a knowing, intelligent, and voluntary waiver of his postconviction counsel) is essentially a one-half page restatement of issue (1) raised in CCRC's amended brief.

      . We are troubled by the assertion made in CCRC’s amended brief that "this Court has no record of the Faretta inquiry and whether the correct colloquy was given.” However, we do have a record of the extensive Faretta inquiry performed by the circuit court. The supplemental record, which was filed approximately four months before the amended brief was filed with this Court, includes the transcript of the Faretta hearing held in the circuit court. This inaccurate statement was never corrected by CCRC prior to oral arguments before this Court.

      . Here, the circuit court warned McDonald numerous times of the severe disadvantages of proceeding pro se. The circuit court found that McDonald was competent to represent himself and granted McDonald's motion for self-representation. The record before us confirms that McDonald's decision was knowing, intelligent, and voluntary. The transcript of the hearing below shows that the circuit court conducted a detailed Faretta evaluation of the defendant, eliciting information that McDonald was forty-seven years old at the time of the hearing, had completed high school and two years of college, reads and speaks the English language, was not under any medication, and understood the purpose of the hearing. Additionally, the transcript reflects that McDonald repeatedly exhibited an understanding of the consequences of waiving his rights to postconviction counsel. Finally, McDonald’s responses to the questions posed by the circuit court demonstrated that he understood his legal options and the consequences.

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

      . Importantly, we previously denied codefen-dant Gordon's virtually identical postconviction ineffective assistance/DNA claims, finding that he was not entitled to relief on either his ineffective assistance/lost evidence or DNA/Frye claim:
      Next, Gordon asserts that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to seek to exclude the results of scientific tests where, through no fault of the State, the material tested was destroyed. Even if trial counsel’s performance was deficient, Gordon has not shown how the innocent consumption of the DNA prejudiced him. In order to prevail on a claim involving destruction of DNA samples, a defendant must prove that the State acted in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Additionally, Florida courts have held that the unavoidable consumption of testing material does not trigger a constitutional violation. See State v. T.L.W., 457 So.2d 566 (Fla. 2d DCA 1984); State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978). Therefore, as Gordon has neither asserted a claim of bad faith nor explained any prejudice in this instance, he is not entitled to relief here.

      Next, Gordon argues that trial counsel was ineffective for failing to challenge the admissibility of DNA evidence and failing to request a Frye hearing. At the evidentiary hearing, trial counsel and codefendant McDonald’s counsel expressly indicated that as a part of the defense strategy, it was actually desirable to present to the jury the unidentified DNA evidence that did not implicate either Gordon or McDonald, in order to corroborate the defense theory of what happened the day of the murder. It was also a part of the strategy to get before the jury the small amount of DNA that implicated McDonald because it supported the defense theory that the defendants merely went in to get a piece of paper and that another man, Leonardo Cisneros, was the real killer. In its order, the trial court discussed the lack of a challenge to the DNA evidence at length, identifying a variety of reasons that this claim does not merit relief. We agree with the sound reasoning of the trial court, which was primarily based on the fact that counsel's decision was an intended strategic one, and the courts will not second-guess such a decision. See Johnson v. State, 769 So.2d 990, 1001 (Fla.2000).

        Gordon v. State, 863 So.2d 1215, 1220-22 (Fla.2003).

      . As the circuit court correctly stated, McDonald's hair samples would have been inevitably obtained. The State would have had sufficient probable cause to obtain a warrant, as they did with codefendant Gordon. They then could have obtained McDonald’s hair samples and compared McDonald's newly acquired hairs to the unknown hairs on the gray sweatshirt. Therefore, the hair samples would have been inevitably discovered. See Fitzpatrick v. State, 900 So.2d 495, 514 (Fla.2005) (citing Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)).