author: PARIENTE, C.J. BELL, J., LEWIS, J., WELLS, J.,

text:
    Julio ARAVENA, etc., Petitioner, v. MIAMI-DADE COUNTY, Respondent.
    No. SC04-2349.
    Supreme Court of Florida.
    April 6, 2006.

      Martin E. Leach of Feiler, Leach and McCarron, PL, Coral Gables, Florida, for Petitioner.
    Robert A. Ginsburg, Miami-Dade County Attorney, Jeffrey P. Ehrlich, and Susan Torres, Assistant County Attorneys, Miami, Florida, for Respondent.
    Melinda L. McNichols, Miami, Florida, on behalf of the School Board of Miami-Dade County, Florida; and Margaret E. Sojourner of Langston, Hess, Bolton, Znosko and Shepard, Maitland, Florida, on behalf of Florida Defense Lawyers Association, for Amici Curiae.
   PARIENTE, C.J.

We have for review the Third District Court of Appeal’s decision in Miami-Dade County v. Aravena, 886 So.2d 303 (Fla. 3d DCA 2004), which expressly and directly conflicts with the Fourth District Court of Appeal’s decision in Palm Beach County v. Kelly, 810 So.2d 560 (Fla. 4th DCA 2002). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue is whether county employees who work at different physical locations for different departments, have different supervisors, and perform different duties and functions in their primary assignments fall within the unrelated works exception to workers’ compensation immunity. We answer this question in the affirmative and conclude that the unrelated works exception was intended to cover this precise set of circumstances. We hold that although no bright-line rule governs, the unrelated works exception has both locational and operational components and requires consideration of several factors, which we set forth herein.

FACTS AND PROCEDURAL HISTORY

Miami-Dade County is the largest of Florida’s sixty-seven counties, and its government comprises forty-five departments and approximately 30,000 employees. Gregoria Vega was employed by Miami-Dade County’s Police Department as a part-time elementary school crossing guard. Her job was to help children cross the street at the intersection of Southwest 16th Street and 62nd Avenue. On October 24, 2001, the traffic lights at the intersection were not operating properly. As a result, two vehicles collided in the intersection and one veered off the road, killing Vega. Vega was standing on the swale of the road at the time of the accident, which occurred at approximately 7:20 a.m.

Julio Aravena, Vega’s husband, initiated a wrongful death case against the county, alleging that the accident was caused in part by the negligence of the county’s traffic signal repair personnel who failed to repair the malfunctioning traffic lights at the intersection. The traffic signal repair personnel worked for the maintenance section of the Miami-Dade County Public Works Department, which ■ is located at 3655 Southwest 25th Terrace. The maintenance section receives information from the traffic control section of the Public Works Department, which is responsible for all traffic lights in Miami-Dade County and is located at 7100 Northwest 36th Street.

In response to the complaint, the county claimed that Aravena’s action was barred by the portion of Florida’s Workers’ Compensation Law that accords tort immunity to coemployees “acting in furtherance of the employer’s business” and that the exception for employees “assigned primarily to unrelated works” did not apply. § 440.11(1), Fla. Stat. (2001). The county filed a motion for summary judgment, which was denied. After a jury verdict in favor of Aravena, the county filed a motion for judgment notwithstanding the verdict based on workers’ compensation immunity. The trial court denied the county’s motion and entered judgment for Aravena. The parties did not dispute the facts relevant to the determination of the issue of workers’ compensation immunity and this issue was never argued to the jury.

The county appealed. The Third District reversed the trial court’s order denying the county’s motion for judgment notwithstanding the verdict and remanded for entry of judgment for the county based on workers’ compensation immunity. See Aravena, 886 So.2d at 305. Noting this Court’s recent decision in Taylor v. School Board of Brevard County, 888 So.2d 1 (Fla.2004), the Third District concluded that Vega and the county’s traffic signal repair personnel were not assigned primarily to unrelated works. See Aravena, 886 So.2d at 304-05. The district court explained:

[I]t cannot be said that these co-employees worked on entirely different projects. Nor can it be clearly demonstrated that the work of the County’s traffic signal repair personnel, whose job was to regulate vehicular and pedestrian traffic, was unrelated to the work of the school crossing guard, whose job also was to regulate vehicular and pedestrian traffic at the same intersection. To hold otherwise would contravene the overall legislative intent of the workers’ compensation law, which “was meant to systematically resolve nearly every workplace injury case on behalf of both the employee and the employer.” Taylor, 888 So.2d at 4.

Aravena, 886 So.2d at 305.

ANALYSIS

The issue before the Court is whether county employees who work at different physical locations for different departments, have different supervisors, and perform different duties and functions in their primary assignments fall within the exception to the general immunity provision of Florida’s Workers’ Compensation Law, which provides that immunity is not available in cases involving coemployees that are “assigned primarily to unrelated works.” § 440.11(1). Both the trial court and district court decided this issue as a matter of law based on the undisputed facts. Thus, our review is de novo. See generally Blanton v. City of Pinellas Park, 887 So.2d 1224, 1226 (Fla.2004).

Conflict between Aravena and Kelly

Initially, we address whether an express and direct conflict exists between the decision reached in this case and the decision reached by the Fourth District in Kelly. The county asserts that there is no conflict. We disagree.

In Kelly, the Fourth District held that two coemployees, who began and ended their work days at the same general location but who worked at different locations and performed different job duties, were assigned primarily to unrelated works. See 810 So.2d at 562. One employee, Kevin Kelly, worked as a maintenance equipment operator for the maintenance division at Palm Beach International Airport. Kelly began and ended his day at 3700 Belve-dere Road, Building G. See id. The other employee, Rostant John, was an equipment mechanic for Palm Beach County’s Fleet Management Division, who usually worked at the county’s shell rock pit in Boca Raton. See id. John began and ended his day at 3700 Belvedere Road, Building D.

Similar to the coemployees in Kelly, Vega and the traffic signal repair personnel worked at different locations. Vega worked for the Miami-Dade County Police Department and was assigned primarily to work at a specific location as a school crossing guard. The traffic signal repair personnel were employees of the Miami-Dade County Public Works Department and were assigned primarily to maintain the traffic lights at the numerous intersections throughout Miami-Dade County. The Third District’s conclusion that the coemployees had jobs involving the regulation of vehicular and pedestrian traffic in effect defines “related works” as any jobs that are generally related. The same could be said for the coemployees in Kelly who were both engaged in the generally related jobs of maintenance.

Further, we note that there was a greater connection between the coemploy-ees in Kelly than exists in this case. Unlike Vega and the traffic signal repair personnel, the coemployees in Kelly began and ended their days at the same location. The facts of this case therefore present a stronger argument for concluding that Vega and the traffic signal repair personnel were assigned primarily to unrelated works. The holdings of Aravena and Kelly sere irreconcilable, which is one of the tests for conflict jurisdiction. See Crossley v. State, 596 So.2d 447, 449 (Fla.1992) (concluding that because the court below “reached the opposite result on controlling facts which, if not virtually identical, more strongly dictated” the result reached by the alleged conflict case, a conflict of decisions existed that warranted accepting jurisdiction)..

Florida’s Workers’ Compensation Law

Having concluded that an.express and direct conflict exists between this case and Kelly, we next review Florida’s Workers’ Compensation Law, chapter 440, Florida Statutes. The.Workers’ Compensation Law is a “comprehensive scheme ... that generally provides workers’ benefits without proof of fault and employers immunity from tort actions based upon the same work place incident.” Taylor, 888 So.2d at 2. The Legislature has declared its intent that

the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer. It is the specific intent of the Legislature that workers’ compensation cases shall be decided on their merits. The workers’ compensation system in Florida is based on a mutual renunciation of common-law rights and defenses by employers and employees alike. In addition, it is the intent of the Legislature that the facts in a workers’ compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Additionally, the Legislature hereby declares that disputes concerning the facts in workers’ compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or of the employer on the other hand, and the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer. It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker.

§ 440.015, Fla. Stat. (2001).

Section 440.09(1), Florida Statutes (2001), provides that “[t]he employer shall pay compensation or furnish benefits ... if the employee suffers an accidental injury or death arising out of work performed in the course and the scope of employment.” (Emphasis supplied.) Section 440.10, Florida Statutes (2001), sets forth the employer’s liability for compensation and section 440.11(1) provides that this liability is “exclusive and in place of all other liability” as to third-party tortfeasors and employees, save for certain legislatively created exceptions.

The immunity afforded to the employer under section 440.11(1) also extends to “each employee of the employer when such employee is acting in furtherance of the employer’s business.” However, this coemployee immunity does not apply

to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, ... [or] to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.

§ 440.11(1) (emphasis supplied). Thus, if one of these exceptions applies, the injured employee can seek remuneration from a coemployee despite the fact that the injury arose out of the scope of employment.

In cases where the employer is a governmental entity such as a county, the coemployee tortfeasor is immune from personal liability for torts under section 768.28(9)(a), Florida Statutes (2005), which requires that any civil action for the employee’s negligence be maintained against the governmental entity. Under this provision, any negligence claim arising under the unrelated works exception against a public coemployee must be brought against the governmental entity employer. See Holmes County Sch. Bd. v. Duffell, 651 So.2d 1176, 1179 (Fla.1995); see also Taylor, 888 So.2d at 7 (Lewis, J., concurring in result only) (explaining that a public employee “may seek recovery from the otherwise immune employer, because the employer is not being sued in its capacity as employer, but rather is being sued as a surrogate defendant based on the negligent acts of the public co-employee”).

Case Law Interpreting the Unrelated Works Exception

The scope of the unrelated works exception has been addressed by all of the district courts of appeal. See, e.g., Kelly, 810 So.2d at 561-62; Taylor v. Sch. Bd. of Broward County, 790 So.2d 1156, 1157-58 (Fla. 5th DCA 2001), approved, 888 So.2d 1, 6 (Fla.2004); Lopez v. Vilches, 734 So.2d 1095, 1096-98 (Fla. 2d DCA 1999), disapproved of by Taylor v. Sch. Bd. of Brevard County, 888 So.2d 1, 6 (Fla.2004); Dade County Sch. Bd. v. Laing, 731 So.2d 19, 20 (Fla. 3d DCA 1999); Vause v. Bay Med. Ctr., 687 So.2d 258, 261-63 (Fla. 1st DCA 1996). Prior to this Court’s decision in Taylor, the district courts had been split as to the appropriate test for determining whether coemployees were assigned primarily to unrelated works. The First, Third, and Fifth District Courts of Appeal applied a broad “same project” test in determining whether coemployees were assigned primarily to unrelated works. See, e.g., Vause, 687 So.2d at 263 (“Each individual defendant was assigned to duties related to the purpose and function of decedent’s job: The provision of health care to patients of the medical center.”); Laing, 731 So.2d at 20 (concluding that the unrelated works exception did not apply because the coemployees “were both working on the same project, in the sense that they were co-employees providing education related services to students”); Taylor, 790 So.2d at 1157 (agreeing with the trial court’s finding that the coemployees were not assigned primarily to unrelated works because “they had in common the provision of transportation services to Bre-vard County school children”) (internal quotation marks omitted).

In contrast to the “same project” test, the Second District Court of Appeal in Lopez applied a narrower bright-line test that focused on the physical location of the coemployees and the scope of their duties. See 734 So.2d at 1097. The Fourth District has noted the two differing approaches of the other district courts, which it described as “(1) a ‘case-by-case approach,’ which examines whether co-employees were engaged in the same project and were ‘part of a team,’ and (2) a ‘bright-line’ test based on the physical location where the employees were primarily assigned and the unity of their business purpose.” Kelly, 810 So.2d at 562 (citation omitted). However, the Fourth District has declined to adopt either approach, concluding in the cases before it that the results were the same under either test. See id.; Sch. Bd. of Broward County v. Victorin, 767 So.2d 551, 554 (Fla. 4th DCA 2000).

In Taylor, this Court attempted to resolve a conflict between the Second District’s decision in Lopez and the Fifth District’s decision in Taylor. We considered whether a school bus driver and a school bus mechanic were assigned primarily to unrelated works. See Taylor, 888 So.2d at 2. After noting the Legislature’s express “admonition that the worker’s compensation law not be construed liberally in favor of the employee or the employer” and the Legislature’s “mandate[ ] that the ordinary rules of statutory construction be invoked,” the Court concluded that the unrelated works exception must be interpreted narrowly. Id. at 4^5. We then set forth the analysis to be used to determine whether the unrelated works exception applies in a given case. In doing so, we did not adopt either the case-by-case “same project” test or the bright-line test. Rather, we concluded “that the exception to this scheme for unrelated works should be applied only when it can clearly be demonstrated that a fellow employee whose actions caused the injury was engaged in works unrelated to the duties of the injured employee.” Id. at 5 (emphasis supplied). We explained:

While we would like to be more precise in providing guidance to those initially charged with deciding disputes based upon this exception, we are limited by our lack of precise knowledge of the legislative intent behind the exception and the reality that we could not hope to contemplate the myriad of factual circumstances that may give rise to the issue.

Id. (emphasis supplied). Applying these principles, we held that the school bus driver and the school bus mechanic were not engaged in unrelated works because they “shared a common goal of providing safe transportation to the students.” Id. at 6.

In reaching the decision in Taylor, we disapproved the Second District’s decision in Lopez. See id. In Lopez, a funeral home worker was injured when the vehicle he was operating malfunctioned. See 734 So.2d at 1096. The funeral home worker filed suit against three coemployees, alleging that his injury was sustained as a result of their negligent maintenance of the vehicle. See id. The Second District held that the undisputed facts did not preclude the unrelated works exception and, thus, reversed the summary judgment entered in favor of the defendants. See id. at 1097. The Second District reasoned that “[t]he physical location of [the coem-ployees’] work appears to be separate and their specific purpose, general funeral home duties versus vehicle maintenance, appear distinct.” Id. This Court disagreed and instead adopted the reasoning of the dissent in Lopez, which focused on the fact that all of the employees had duties related to the vehicle:

I disagree and would affirm the trial court’s determination that the unrelated works exception to the exclusivity of workers’ compensation benefits is not applicable to this situation. Lopez, Vilches, Brito and Kelly work for the same employer. All of them have some duties related to the van in question. Lopez drives the van to facilitate the moving of flowers from the chapel to the cemetery. The other employees use the van in their duties of maintaining and repairing the vehicles owned or leased by the employer. Under these circumstances, it cannot be said that the co-employees are engaged in unrelated works. See Abraham v. Dzafic, 666 So.2d 232 (Fla. 2d DCA 1995).

Taylor, 888 So.2d at 6 (emphasis supplied) (quoting Lopez, 734 So.2d at 1098) (Quince, Associate Judge, dissenting).

This Case

In this case, the Third District held that the unrelated works exception did not apply because

it cannot be said that [Vega and the traffic signal repair personnel] worked on entirely different projects. Nor can it be clearly demonstrated that the work of the County’s traffic signal repair personnel, whose job was to regulate vehicular and pedestrian traffic, was unrelated to the work of the school crossing-guard, whose job also was to regulate vehicular and pedestrian traffic at the same intersection.

Aravena, 886 So.2d at 305.

Although the Third District claimed to adhere to our recent pronouncement in Taylor, we conclude that the Third District’s decision is inconsistent with the reasoning of Taylor. The Third District initially used the case-by-case, same project analysis despite the fact that we did not approve of this approach in Taylor. Further, to comport with Taylor’s holding that the exception applies only “when it can clearly be demonstrated that a fellow employee whose actions caused the injury was engaged in works unrelated to the duties of the injured employee,” the Third District resorted to an overly broad definition of the coemployees’ jobs as “regulat[ing] vehicular and pedestrian traffic” without considering other factors.

It is true that in Taylor this Court broadly categorized the duties of the school bus driver and the school bus mechanic by stating that these coemployees shared a more general “goal of providing safe transportation to the students.” 888 So.2d at 6. However, in that case both the school bus driver and the school bus mechanic had duties relating to the same equipment — the school bus’s wheelchair lift. See id. at 4. In addition, both the school bus driver and the school bus mechanic worked out of the same facility. See id. Similarly, this Court’s conclusion in Lopez that the coemployees were not assigned primarily to unrelated works was supported by the fact that each had duties related to the use of the funeral home vehicle. See 734 So.2d at 1096. As in Taylor, the duties of the coemployees in Lopez were linked by the connection to the very equipment that caused the injury.

In this case, unlike the coemployees in Taylor, Vega and the traffic signal repair personnel did not work out of the same facility or with the same equipment. Therefore, the Third District’s reliance solely on a broad definition of the coem-ployees’ duties, without regard to any other factors, to conclude that the employees were not engaged primarily in unrelated works is not supported by Taylor.

The Third District’s reasoning is also inconsistent with that court’s most recent decision addressing the unrelated works exception. See Lluch v. American Airlines, Inc., 899 So.2d 1146 (Fla. 3d DCA 2005). There, Lluch was a custodian/janitor employed by ABM Janitorial Services, which had a contract with American Airlines (American) to provide cleaning services for American at Miami International Airport. See id. at 1146. Lluch was injured when Carlton Service, an American baggage handler who was operating an American tractor pulling several baggage carts, hit a trash cart causing the cart to fall on top of Lluch, breaking his foot. See id. at 1147. After concluding that American was Lluch’s statutory employer under the workers’ compensation law, the Third District determined that the trial court erred in granting summary judgment in favor of American and Service based on coemployee immunity. See id. at 1147-48.

In analyzing the unrelated works exception based on this Court’s decision in Taylor, the Third District indicated that it was persuaded by Justice Lewis’s separate opinion in Taylor, in which he proposed applying “a consolidated ‘physical location/business purpose’ test and ... ‘same project’ test.” Id. at 1149. Applying the “physical location/business purpose” test, the Third District explained that although

both Lluch and Service worked at the airport in the area where the baggage is unloaded from the airplanes[,] ... Lluch’s job required him to be elsewhere for a significant part of his work day because he had to remove the trash from American offices and haul it away to the garbage dumpsters. He was not required to clean under the baggage carousel on a regular basis. Lluch had nothing to do with Service and, in fact, had no idea who Service was.

Lluch, 899 So.2d at 1149 (emphasis supplied). The Third District also concluded that Lluch and Service were not part of the same team because

they had two different employers. Lluch is employed by ABM, and Service is employed by American. Service is a baggage handler, and Lluch cleans and removes trash. Lluch’s testimony reveals that the two men had never met each other before the date of the accident. They received different instructions from different people, unlike the scenario in Sanchez v. Dade County School Board, 784 So.2d 1172, 1173 (Fla. 3d DCA 2001), review dismissed as improvidently granted, 889 So.2d 778 (Fla.2004). The affidavit of Clifford Coll stated that ABM has responsibility for keeping the baggage loading area and conveyor belt in “clean debris free condition.” In opposition, Lluch stated that he has nothing to do with the operation, cleaning or maintenance of the baggage carousel, although sometimes ABM requested that he clean the floor area adjacent to the carousel. Lluch and Service were not true fellow employees.

Id. at 1149-50 (emphasis supplied).

Similar to the facts presented in Lluch in which the coemployees worked for different employers, in this case Vega worked for the county’s Police Department and the traffic repair signal personnel worked for the county’s Department of Public Works, each of which are headquartered at different locations. Vega and the traffic signal repair personnel were not supervised by the same individuals and did not have similar duties. In addition, Vega neither knew nor had any interaction with employees of the Department of Public Works. We note that even at the time of the tragic accident, Vega’s responsibilities of ensuring safe passage for school children had nothing to do with the regulation of the traffic lights.

In fact, the only significant distinction between the factual scenarios in this case and Lluch is that unlike the coemployees in Lluch, Vega and the traffic signal repair personnel did not work at the same location. Although location is not dispositive, the fact that the coemployees in this case worked primarily at different locations further supports a conclusion that the coem-ployees in this case were not assigned to related works.

Finally, the Third District’s conclusion in this case is inconsistent with all of the other district court decisions that addressed this question. The district courts have consistently focused on the physical business location and the coemployees’ job duties in determining whether the unrelated works exception applies. Until the Third District’s decision in this case, no district court of appeal had held that coem-ployees that were neither assigned to work at the same location nor assigned similar job duties were engaged in related works.

By using overly broad definitions of the same project and the coemployees’ job duties, the Third District ignored the other factors considered in Lluch. Its analysis also ignores the fact that the exception assumes that the coemployees are operating in “furtherance of the employer’s business,” § 440.11(1), and, thus, are all working on the same general project. Accordingly, we conclude that the Third District erred in holding that Vega and the traffic signal repair personnel were engaged in related works.

Factors Governing the Unrelated Works Analysis

Although we declined to adopt a specific test for determining the applicability of the unrelated works exception in Taylor, we recognize that we should provide further guidance to the trial courts and the district courts of appeal. We held in Taylor that the exception should be narrowly tailored. However, we did not intend to eviscerate the exception. Thus, we must return to the statutory language employed in section 440.11(1) to determine the scope of the exception and its application.

In deciding more precisely what the Legislature intended by the term “assigned primarily to unrelated works,” we focus on the use of the words “assigned primarily.” § 440.11(1). We conclude that the phrase “assigned primarily to unrelated works” in section 440.11(1) has both an operational and a locational component. Thus, where coemployees are assigned primarily to different departments and different locations, and are assigned primarily to different job functions, the fact that the coemployees may have some broad overlapping responsibilities is not dispositive.

Although we stated in Taylor that “we could not hope to contemplate the myriad of factual circumstances” that might arise in applying the unrelated works exception, 888 So.2d at 5, a review of the district court decisions shows common factors used in the analysis of the applicability of the unrelated works exception. These include: (1) whether the coemployees work at the same location, (2) whether the coemploy-ees must cooperate as a team to accomplish a specific mission; (3) the size of the employer; (4) whether the coemployees have similar job duties, (5) whether the coemployees have the same supervisor; and (6) whether the coemployees work with the same equipment.

In a case such as this one, in which the coemployees do not work at the same location, it is more likely that the coem-ployees will be considered to be assigned primarily to unrelated works. However, in making this determination the courts should also consider whether the coem-ployees must cooperate as a team to further a specific mission of the employer, not whether they further the same general mission of the employer. In deciding whether coemployees must cooperate as a team to further a specific mission of the employer, it may be helpful to look to the last four factors enumerated above: the size of the employer and whether the coemployees work with the same equipment, have the same supervisor, or have similar duties.

Further, although we recognize that when employees work at the same location, it is more likely that they will not be considered to be assigned primarily to unrelated works, we caution that in those circumstances, the courts must also consider whether the work being performed is part of a team effort. Clearly, as Justice Lewis observed, a large university that has thousands of employees across many acres warrants different consideration than a small, single-structure location such as an elementary school, where everyone from teachers to custodial staff may be considered part of the same team. See Taylor, 888 So.2d at 15 (Lewis, J., concurring in result only).'

Until the Legislature determines that it should further define the unrelated works exception, courts will continue to struggle with its application. However, we hope that the factors we have identified will provide guidance to the lower courts in applying this exception narrowly without eviscerating it.

CONCLUSION

For the reasons provided herein, we hold that coemployees who work for different departments and at different locations, answer to different supervisors, and have primary assignments involving different duties and functions are engaged in unrelated works triggering the exception to workers’ compensation immunity in section 440.11(1). Accordingly, we conclude that Vega, who was working as a school crossing guard, and the traffic signal repair personnel charged with maintaining the traffic signals at the intersection where she was working were engaged in unrelated works and that her husband’s wrongful death claim is not barred by worker’s compensation immunity. We therefore quash the decision of the Third District, which held to the contrary, and remand for entry of judgment for Aravena on the jury’s verdict in his favor.

It is so ordered.

ANSTEAD, QUINCE, and CANTERO, JJ., concur.

BELL, J., specially concurs with an opinion.

LEWIS, J., concurs in result only with an opinion.

WELLS, J., dissents with an opinion.

BELL, J.,

specially concurring.

Given the absence of any statutory definition for the unrelated works exception, I concur with the majority’s definition. However, as Justice Wells, I too believe that the question of what is “unrelated work” is a question of law, not a question of fact. I also join his call for the Legislature to address whether it intended the unrelated work exception to result in a county employee receiving from the county both workers’ compensation benefits and common law tort damages for injuries suffered in the same work-related accident.

LEWIS, J.,

concurring in result only.

I concur in result based on my continued belief that this Court should adopt the analytic parameters I previously outlined in Taylor v. School Board of Brevard County, 888 So.2d 1, 14-15 (Fla.2004) (Lewis, J., concurring in result only). Under the analytical framework I previously proposed in Taylor, the unrelated works exception would apply as a matter of law in the instant case because Vega and the traffic repair personnel were neither assigned to work at the same location nor were they working together from an operational perspective nor were they part of the same team or same joint project. See id. However, because the majority’s analysis is very similar to that which I proposed in Taylor and ultimately concludes that the exception applies, I concur with the result.

WELLS, J.,

dissenting.

I dissent. I would approve the decision of the Third District Court of Appeal in the present case.

I cannot join the majority because I conclude that the majority opinion is at a substantial variance from the majority opinion which we issued in 2004 in Taylor v. School Board of Brevard County, 888 So.2d 1 (Fla.2004). In Taylor, the majority opinion stated:

Hence, we are bound to apply these principles in our analysis. We initially note that, in one sense, all employees of the same employer could always be considered engaged in related works since they are all charged to carry out the mission of the employer. At the same time, however, some distinction could always be drawn between the work of most employees so as to make their work unrelated. Because the unrelated works exception set out in section 440.11(1) represents an exception to the broad exclusive remedy provisions of the Florida Workers’ Compensation Law, we conclude that under the ordinary rules of statutory construction we must interpret it narrowly. See Samara Dev. Corp. v. Marlow, 556 So.2d 1097, 1100 (Fla.1990) (“[I]t is a well-recognized rule of statutory construction that exceptions or provisos should be narrowly and strictly construed.”)

888 So.2d at 5. We further stated:

A contrary holding giving wide breadth to the rare exceptions to workers’ compensation immunity would merely erode the purpose and function of the Workers’ Compensation Law as established by the Legislature. We agree with the observations of the Fourth District in its recent decision in Fitzgerald v. South Broward Hospital District, 840 So.2d 460, 463 (Fla. 4th DCA 2003), that the unrelated works exception should be narrowly construed because “[a]n expansive construction would obliterate the legislative intent that the system operate at ‘a reasonable cost’ to the employer” and that to decide otherwise would “erode the immunity provided under the worker’s compensation law ... leading to a profusion of suits and a proliferation of costs.”

888 So.2d at 6. The present majority expands the exception rather than following these principles and construing the exception narrowly.

I conclude that the Third District in this case followed our decision in Taylor in holding:

In the instant case, it cannot be said that these co-employees worked on entirely different projects. Nor can it be clearly demonstrated that the work of the County’s traffic signal repair personnel, whose job was to regulate vehicular and pedestrian traffic, was unrelated to the work of the school crossing guard, whose job also was to regulate vehicular and pedestrian traffic at the same intersection. To hold otherwise would contravene the overall legislative intent of the workers’ compensation law, which “was meant to systematically resolve nearly every workplace injury case on behalf of both the employee and the employer.” Taylor, 888 So.2d at 4.

Miami-Dade County v. Aravena, 886 So.2d 303, 305 (Fla. 3d DCA 2004). The district court should not be quashed for following this Court’s majority opinion.

By broadening this exception so that many county employees will not be subject to workers’ compensation immunity, the majority subjects counties to many employees collecting both workers’ compensation benefits and common law damages from counties. This is a result of the present decision in combination with this Court’s 1995 decision in Holmes County School Board v. Duffell, 651 So.2d 1176 (Fla.1995). The conclusion in Holmes County only made sense because the unrelated works exception was very narrow and only a few county employees would have the right to both. In light of the present decision, Justice Grimes’ dissent, which was joined by Justices Overton and Harding, looks to be prophetic and the wiser view. I do not believe that the Legislature intended that the unrelated works exception expose the counties to the claims of many employees for both workers’ compensation benefits and common law damages.

I do agree with the majority that the Legislature should define “unrelated works” so that the concept has a statutory definition. I believe that the Legislature needs to also specifically address the Holmes County decision and expressly state whether a county employee can collect workers’ compensation benefits and sue the county for common law tort damages arising from the same work-related accident.

Finally, I do not agree with the majority’s reliance on Lluch v. American Airlines, Inc., 899 So.2d 1146 (Fla. 3d DCA 2005). I cannot agree with that decision’s holding that what is an unrelated work is a question of fact. The issue is a question of law. This Court has treated the issue as a question of law. I appreciate the majority’s footnote 3, majority op. at 1171, which states that the majority does “not decide whether the Third District correctly held that the applicability of the unrelated works exception should be decided as an issue of fact.” My concern is that by not deciding this issue, the majority is creating inequities for workers and application problems in the trial courts and appellate courts. The Third District’s decision in Lluch creates a situation in which different juries can conclude that the same jobs are both within the unrelated works exception and not within the unrelated works exception. This will obviously lead to inequitable results. Whether the exception applies or does not apply should uniformly be a matter of law based on the Taylor standard for application of the exception so as to avoid inequities among workers and to avoid further confusion in the trial courts and appellate courts.

      . The defense of immunity is an affirmative defense that must be raised by a defendant. See Carib Ocean Shipping, Inc. v. Armas, 854 So.2d 234, 235 (Fla. 3d DCA 2003) (holding that the trial court abused its discretion by denying the defendant's motion to amend its answer to include the affirmative defense of workers' compensation immunity). The unrelated works exception to an immunity defense is an avoidance that must be plead and proved by the plaintiff. See Fla. R. Civ. P. 1.100(a) ("If an answer ... contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance.").

      . We note that the "same project” language is derived from earlier cases involving construction sites, which did not analyze the words used in the statute. See Abraham, 666 So.2d at 233; Johnson v. Comet Steel Erection, Inc., 435 So.2d 908, 909 (Fla. 3d DCA 1983). In concluding that the unrelated works exception did not apply to coemployees who were "employed on-site in the same construction project,” the Johnson court relied only on "prior cases [that] indicate the broad scope of immunity afforded a subcontractor for injuries to an employee of a general contractor.” 435 So.2d at 909. Abraham in turn relied on Johnson. See 666 So.2d at 233.

      . In reversing summary judgment in favor of American and Service based on workers' compensation immunity, the Third District concluded that was a factual issue. Id. at 1148. We do not decide whether the Third District correctly held that the applicability of the unrelated works exception should be decided as an issue of fact. Indeed, almost all of these unrelated works cases have been decided based on undisputed facts as a matter of law. We discuss Lluch simply to demonstrate that under similar circumstances to those presented in this case, the Third District did not foreclose the application of the unrelated works exception.

      . Although a majority of the Court in Taylor declined to set forth a specific test for evaluating the unrelated works exception, in a concurring in result only opinion Justice Lewis articulated the parameters he would have adopted:
      First, if co-employees are not assigned to work at the same physical business location, and the work being performed at the injury location is not part of a team or the same joint project, I would conclude that the unrelated works concept should apply as a matter of law. Second, even if the employees are not assigned to work at the same physical business location but are directed to perform tasks at the injury location and the work being performed is part of a team or specific business project with co-employees, the exception would not apply with regard to the particular team or specific project co-employees. Third, if the co-employees are assigned to work at the same physical business location and the work being performed at the injury location is part of a team or directed to the same joint business project, the unrelated works exception would not apply. Finally, even if the co-employees are assigned to work at the same physical business location where the injury occurs but the work being performed is not part of a team or directed to the same joint business project, I would conclude that the unrelated works exception would be applicable as a matter of law....
      Within the final category, namely when the co-employees are assigned to work at the same physical location where the injury occurs but the work being performed there is not part of a team or directed to the same joint business purpose, the application of the unrelated works exception is dependent upon a number of factors, including the size of the facility, the diversity of the acts performed there, and the relationship of the diverse activities being performed at the location. These factors must be considered when a court is trying to determine when work is either related or unrelated. A large, single-owner facility with voluminous employees, such as a university, that consists of diverse activities and diverse purposes warrants different consideration than a small, single-structure location with a dominant unitary purpose and only minor variations in duties, such as custodial staff to support the singular activity.

        Taylor, 888 So.2d at 14-15 (Lewis, J., concurring in result only).

      . In many of the district court decisions, an important factor in the analysis of whether the unrelated works doctrine is applicable appears to be whether the coemployees were assigned to the same work location. Had the Legislature intended to allow all employees who did not work at the same location to sue a coemployee and preclude all employees who did work at the same location from suing a coemployee, the Legislature could have used more precise language to effectuate this intent. For example, as noted by the county, an earlier version of what eventually became the unrelated works exception in section 440.11(1) provided that an employee could sue a fellow employee where "they are not assigned to the same job site or are assigned primarily to unrelated works.” Fla. S. Comm, on Com., CS for SB 636 (1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Jeffrey LOVELACE, Respondent.
    No. SC05-1395.
    Supreme Court of Florida.
    April 6, 2006.
    Charles J. Crist, Jr., Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, FL, Celia Teren-zio, Bureau Chief, and Laura Fisher Zibu-ra, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Charles D. Barnard, P.A., Fort Lauder-dale, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review Lovelace v. State, 906 So.2d 1258 (Fla. 4th DCA 2005), a decision of the Fourth District Court of Appeal which certified conflict with the First District Court of Appeal’s decision in State v. Jackson, 784 So.2d 1229 (Fla. 1st DCA 2001). See art. V, § 3(b)(4), Fla. Const. Upon further consideration, we have now determined that Lovelace and Jackson address different situations and are not in conflict.

In Jackson, the defendant was charged with misdemeanor driving under the influence. The prosecutor filed a nolle prose-qui in county court before the ninety-day speedy trial period expired. The misdemeanor charge was refiled in circuit court along with the felony driving under the influence charge well before the applicable 175-day speedy trial period had expired. See Jackson, 784 So.2d at 1230. However, in Lovelace, the “no information” on the misdemeanor driving under the influence charge was filed in county court after the speedy trial time had run, and the misdemeanor was not refiled in circuit court along with the felony charge. See Lovelace, 906 So.2d at 1259. Thus, the courts in Jackson and Lovelace addressed two distinct situations — one where the misdemeanor speedy trial period had not expired and one where the period had expired. Moreover, the factual circumstances under which the Jackson court found the county court no longer had jurisdiction was based on the fact that the circuit court acquired jurisdiction over the misdemeanor charge when it was filed with the felony. That situation is not present in Lovelace.

Based on the aforementioned distinctions, there is no conflict between Lovelace and Jackson. We therefore exercise our discretion and discharge jurisdiction. Accordingly, the review proceeding is hereby-dismissed.

It is so ordered.

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

WELLS and CANTERO, JJ., dissent.


text:
    STATE of Florida, Petitioner, v. Little Willie HARPER, Respondent.
    No. SC04-928.
    Supreme Court of Florida.
    April 13, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and David M. Schultz, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Little Willie Harper, Pro se, Clermont, FL, for Respondent.
   PER CURIAM.

We have for review Harper v. State, 874 So.2d 673 (Fla. 4th DCA 2004), in which the Fourth District Court of Appeal certified conflict with the Second District Court of Appeal’s decision in Wright v. State, 864 So.2d 1153 (Fla. 2d DCA 2003), approved, 911 So.2d 81 (Fla.2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We grant the petition for review and, on the authority of our decision in Wright v. State, 911 So.2d 81 (Fla.2005), the decision under review is quashed, and this matter is remanded to the Fourth District Court of Appeal for reconsideration upon application of this Court’s decision in Wright.

It is so ordered.

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

PARIENTE, C.J., recused.


text:
    Marvin JONES, Appellant, v. STATE of Florida, Appellee.
    No. SC04-282.
    Supreme Court of Florida.
    April 13, 2006.

      Robert A. Norgard, Bartow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

Marvin Jones was convicted of first-degree murder and attempted first-degree murder and sentenced to death. We affirmed his convictions. See Jones v. State, 690 So.2d 568, 570-72 (Fla.1996). He now appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As we explain below, we affirm the circuit court’s order denying the motion on all issues.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jones purchased a used automobile from Ezra Stow, the owner of San Pablo Motors in Jacksonville, Florida. The following month, Jones returned the car to Stow because of a “blown engine.” They entered into an agreement to rebuild the engine for $1,500. Jones would pay Stow $800 up front, and Stow would finance the rest. When the repairs were complete, Stow asked for $800, but Jones instead gave him a check for $4,200 to pay the entire amount owed for the car and repairs and drove the car off the lot.

At the time, Jones had been unemployed for more than a year and knew that he only had five dollars in his bank account and had previously bounced six other checks. The bank notified Stow that Jones’s check had bounced. Stow’s twenty-two-year-old daughter Monique called Jones, who agreed to come to San Pablo Motors on March 3, 1992, and make good on the check. Jones arrived at San Pablo Motors, went into the trailer to Stow’s office, and told him he had to get something from his car.

Jones returned, to the trailer with a .25 caliber automatic pistol and shot Monique. Stow heard the shots and started to reach for his gun. Jones rushed into Stow’s office and aimed his gun to. shoot him in the face. Stow threw up his arm as Jones fired and the bullet went through his forearm and then grazed his head. Stow fell to the floor, momentarily unconscious. Jones then came around the desk and shot him a second time. Jones took the papers for the car from Stow’s desk and fled the scene. Stow survived his injuries, but Monique Stow died later that night.

The jury found Jones guilty of the first-degree murder of Monique Stow and -attempted first-degree murder of Ezra Stow. At the penalty phase, the jury recommended death by a vote of nine to three. The trial judge followed the recommendation, finding three aggravators: “(1) a previous conviction for a violent felony based on the contemporaneous conviction for at-temptéd first-degree murder of Ezra Stow; (2) that the murder of Monique Stow was committed in a cold, calculated, and premeditated manner; and (3) that the murder of Monique Stow was committed for pecuniary gain.” Jones, 690 So.2d at 569-70. The court determined that they outweighed two mitigating circumstances.

On appeal of the convictions and sentence, Jones raised four issues. This Court found no merit to any of them and affirmed his convictions.

In April 2002, Jones filed an amended 3.850 motion for postconviction relief, raising twenty-three claims. The circuit court denied relief on all of them. Jones now raises ten issues, many of which contain several subparts.

II. ANALYSIS

Of Jones’s many claims on appeal, we address only a few. Many of his claims are procedurally barred or legally insufficient, and therefore we deny them without discussion. See Johnson v. State, 593 So.2d 206, 208 (Fla.1992) (“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”). Other claims present merely conclusory arguments insufficient to state an issue. See LeCroy v. Dugger, 727 So.2d 236, 240 (Fla.1998) (upholding the summary denial of a postconviction motion because the defense alleged no facts to substantiate its conclu-sory 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)). Other claims are clearly meritless. See Teffeteller v. Dugger, 734 So.2d 1009, 1023 (Fla.1999) (“Trial counsel cannot be deemed ineffective for failing to raise meritless claims or claims that had no reasonable probability of affecting the outcome of the proceeding.”). Finally, some claims were raised on direct appeal and we decided them against Jones. We now address Jones’s remaining arguments.

A. Mental Health Testimony

Jones claims that trial counsel rendered ineffective assistance by failing to investigate and present mental health testimony. The following standards apply to all ineffective assistance claims:

An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of reasonableness.”

Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The prejudice prong of the analysis “requires showing that counsel’s errors were so serious as to deprive the defendant of. a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Therefore, to succeed on his claims, Jones must establish both deficient performance and prejudice.

Jones argues that trial counsel failed to present the testimony of Dr. Ernest Miller. This testimony, Jones argues, should have been presented to rebut the cold, calculated and premeditated (CCP) aggravating circumstance. At the evidentiary hearing, trial counsel testified that he retained Dr. Miller, a psychiatrist, to examine Jones because he wanted to resolve the tension between Jones’s “golden” past as a “model citizen” and the crimes he committed. In addition to his interview with Jones, Dr. Miller reviewed copies of the offense and incident report, the homicide continuation report, the motion and information filed, the affidavit for arrest warrant, and the evidence technician’s reports. He provided a report, dated November 5, 1993, to trial counsel stating that Jones was competent to proceed and not insane at the time of the offense.

From his testimony at the hearing, Dr. Miller would .have testified about specific aspects of Jones’s mental health. Dr. Miller confirmed that Jones had a “compulsive personality.” He further testified that, when a person of this nature faces disorder, more primitive emotions surface and destructive behavior can result. His mental state may result in “unpredictable and violent acts.” Jones’s problems finding employment after leaving the Navy, his financial problems, and his separation from his wife and two daughters substantially impacted him. Other “stressors” like his conflict with Stow and his car’s mechanical problems were also significant. Dr. Miller opined that Jones’s crimes were not “logically planned” but, instead, “emotionally reactive.” However, Dr. Miller also stated that “a compulsive personality can function quite well in this world.”

Trial counsel did not “think there were many, if any, areas of Dr. Miller’s report that at the time would have caused [him] alarm that [he] should have sought ... more psychiatric testimony.” Therefore, he did not discuss with Dr. Miller Jones’s mental state at the time of the crime or any information that could potentially rebut the CCP aggravator. He also never asked Dr. Miller to do any follow-up interviews, investigations, or evaluations.

In denying Jones relief on this issue, the circuit court found that “[t]he evidence Defendant suggests should have been presented during the penalty phase was inconsistent with evidéncé' that was actually presented by the defense at the penalty phase.” We have affirmed denials of relief in similar circumstances.' “Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected.” Rutherford v. State, 727 So.2d 216, 223 (Fla.1998) (quoting State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987)). In Banks v. State, 842 So.2d 788 (Fla.2003), the defendant argued that defense counsel was ineffective for failing to consult mental health experts. Id. at 790. However, counsel did consult experts and “decided on a strategy after considering his options.” Id. at 791. The experts’ reports discussed the defendant’s alcoholism and possible childhood physical abuse. Id. We found no deficient performance because counsel felt that the child abuse strategy would be ineffective and that introducing evidence of the defendant’s consumption of alcohol would be inconsistent with his theory of the case. Id.

Trial counsel have discretion in determining whether and how to present mental health evidence. In Jones’s case, counsel made a strategic decision not to call Dr. Miller as a witness to rebut the CCP aggravator. We find three bases for this conclusion: (1) Dr. Miller’s testimony would have been inconsistent with other evidence already presented; (2) counsel did not want to “open the door” to damaging cross-examination and rebuttal evidence; and (3) trial counsel decided to focus on the “humanization” of Jones through lay testimony. We explain each of these points in turn.

First, Dr. Miller’s testimony that Jones’s financial problems impacted him would have contradicted and undermined evidence already presented. For example, at the penalty phase Jones’s wife testified that she moved to Pensacola with their children not because of financial issues, but to be closer to her family. Meanwhile, Jones sought employment, turned down unsuitable job offers, and saved money from his unemployment checks. He was seeking a “better job” close to his family and never got frustrated over his unemployment. He also purchased a car during that time. His financial problems were clearly minimal at best, which would have contradicted Dr. Miller’s testimony.

In addition, the circuit court concluded that,“[t]he ... testimony ... during the penalty phase painted a picture ... of a loving family man.” The testimonies of Jones’s siblings, wife, friends, and parents established that Jones was not violent and had never been in trouble with the law. In particular, Jones’s brother-in-law testified that Jones was a “family man ... enjoyed being with the kids ... and with his wife.” He was not violent, but a “soft spoken type of guy, always went out of the way to help others.” Dr. Miller’s testimony regarding Jones’s “emotionally reactive” and destructive behavior would have been counterproductive and might have diminished this persuasive picture of a loving family man.

Second, “[c]ounsel cannot be deemed ineffective for failing to present evidence that would open the door to damaging cross-examination and rebuttal evidence that would counter any value that might be gained from the evidence.” Johnson v. State, 921 So.2d 490, 501 (Fla.2005) (citing Breedlove v. State, 692 So.2d 874 (Fla.1997)). Dr. Miller’s report merely indicates that Jones had a common problem coping with stressful situations. Nothing else in the record demonstrates that Jones was mentally ill. In fact, Dr. Miller admitted that individuals such as Jones “can function quite well in this world.” His testimony would have harmed, rather than helped, Jones. His statements regarding Jones’s “primitive emotions,” “emotionally reactive” and “destructive” behavior, and “unpredictable and violent acts” would have cast serious doubt on the jury’s “picture ... of a loving family man.” Therefore, trial counsel understandably did not want to “open the door” to these aspects of Dr. Miller’s testimony on cross-examination by calling him as a witness during the penalty phase. They would counter any marginal value that might be gained from the testimony as a whole. In light of the stronger evidence of Jones’s background, when viewing Dr. Miller’s report the right move for trial counsel was to do nothing. He made a strategic decision to withhold this less compelling, and potentially damaging, information.

Due to these problems, trial counsel could not resolve the tension between Jones’s “golden” past and the crimes he committed. Thus, at the penalty phase, he concentrated on the testimonies of Jones, Jones’s family, and his friends. We have found no deficient performance where, although counsel was aware of possible mental mitigation, he made a strategic decision to focus on the “humanization” of the defendant through lay testimony. See Rutherford, 727 So.2d at 222-23 (where trial counsel was aware of the defendant’s personality disorder and purported alcoholism, but instead focused on the lay testimony from a friend, family members, and the defendant himself regarding his positive character traits, his meager upbringing, and the consequences of his involvement in Vietnam). The testimonies of Jones, Jones’s family, and his friends clearly portray Jones as a “model citizen.” In his eight years in the Navy, Jones received two honorable discharges, two “good conduct awards,” top scores in his annual performance evaluations, and various medals, awards, commendations, and ribbons. Jones’s sister, Ardee Harris, testified that he “was one of those fun loving people [who] could get along with everybody.” He looked after his siblings and interacted well with them. He was not a violent person, and he always spent time with his family and interacted well with his wife’s family. Jones’s wife stated that he was a “loving, caring father.” Almost all of the witnesses testified that he never had any problems with the law. In addition, Jones expressed deep remorse for his crimes.

As in Rutherford, trial counsel elected, under the circumstances, to “humanize” Jones. Counsel made an informed choice and most likely reasoned that focusing on Jones’s background was the best strategy. Jones, therefore, cannot demonstrate that counsel’s performance was deficient.

Even if counsel had rendered deficient performance, however, Jones cannot demonstrate prejudice. Dr. Miller’s testimony was not persuasive and, even worse, could have damaged Jones’s chances for a life sentence. Furthermore, Jones fails to show that the testimony would have changed the jury’s recommendation of death or the trial court’s imposition of the death penalty. Dr. Miller’s unconvincing testimony does not undermine our confidence in that result. Accordingly, we deny this claim.

B. Mitigation Evidence

Jones next argues that trial counsel rendered ineffective assistance by failing to investigate and present mitigation evidence. In particular, Jones raises four ineffective assistance arguments: (1) failure to investigate mental health testimony; (2) failure to present mental health testimony from Drs. Miller and McMahon; (3) failure to present evidence of Jones’s positive and courteous behavior throughout the judicial proceedings and his model behavior while in prison; and (4) failure to present additional testimony from friends and family members regarding Jones’s remorse for his crimes. Under Strickland, Jones must establish both deficient performance and prejudice.

First, Jones argues that the testimony of Drs. Miller and McMahon established mitigating factors regarding his mental health problems. He claims that trial counsel rendered ineffective assistance by failing to investigate this evidence. “[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” State v. Riechmann, 777 So.2d 342, 350 (Fla.2000); see also Ragsdale v. State, 798 So.2d 713, 719 (Fla.2001) (finding counsel ineffective where his “entire investigation consisted of a few calls ... by his wife to [the defendant’s] family members”); cf. Pietri v. State, 885 So.2d 245, 261 (Fla.2004) (finding no ineffective assistance where trial counsel made reasonable efforts to secure a mental health expert to examine the defendant for mitigation purposes). Here, trial counsel retained Dr. Miller to examine Jones, thus complying with this duty.

Nevertheless, Jones argues that trial counsel was ineffective by failing to call Dr. Miller during the penalty phase and locate an expert such as Dr. McMahon and present her testimony. The analysis of Strickland’s performance prong includes “a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’ ” Wiggins, 539 U.S. at 523, 123 S.Ct. 2527 (emphasis added) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). We must “make every effort to eliminate the distorting effects of hindsight.” Blanco v. Wainwright, 507 So.2d 1377, 1381 (Fla.1987). Based on interviews with Jones’s family and friends, his reviews of Jones’s military and school records, Jones’s lack of a crimi nal record, and his- lack of addiction to drugs or alcohol, trial counsel found that Jones was neither insane nor incompetent. Trial counsel did not “think there were many, if any, areas of Dr. Miller’s report that at the time would have caused [him] alarm that [he] should have sought ... more psychiatric testimony.” We agree with the circuit court that “[everything in [Jones’s] family, school, Navy, and employment history indicated that [he] did not suffer from significant psychological disorders or deficits and was instead a well-rounded, loving family man.”

Furthermore, those aspects of Dr. Miller’s testimony regarding Jones’s background would have been cumulative. In denying relief, the circuit court stated that “there were several witnesses who testified and virtually all of the information contained in Dr. Miller’s report was presented to the jury.” The court further stated as follows:

[T]he testimony was presented by people who were either closely related to Defendant or shared a long-term relationship with him. These people ... were in a better position to testify about non-statutory mitigation than Dr. Miller.... Any testimony that Dr. Miller could have provided would have been largely cumulative to the testimony presented by Defendant’s family and friends.

Counsel does not render ineffective assistance by failing to present cumulative evidence. Cole v. State, 841 So.2d 409, 425 (Fla.2003) (holding that trial counsel did not render ineffective assistance by failing to present cumulative evidence of drug and alcohol abuse and child abuse) (citing Valle v. State, 705 So.2d 1331, 1334-35 (Fla.1997)).

The circuit court’s order states that Dr. Miller’s report contained information regarding Jones’s

relationships with his [siblings] ... education ... history in the Navy ... stable marital relationship ... stable residential history ... compulsive personality ... lack of history of violence ... that [Jones] never had a drinking problem and has never used, street-drugs; that [Jones] has been depressed since the incident ... his estimated intelligence ... positive recreations and hobbies; and his positive personality traits.

Trial counsel stated that he presented almost all of this information through other witnesses (Jones’s parents, sister, wife, and best friend), including Jones himself. Jones’s sister testified that Jones was “one of those fun loving people, could get along with everybody.” Jones’s father explained that Jones never got into trouble with the law. Jones’s mother testified that Jones interacted well with his siblings and that he expressed remorse for his crimes. Jones’s brother-in-law testified that Jones always spent time with his family and interacted well with his wife’s family. He further stated that Jones was not violent, but a “soft spoken type of guy, always went out of the way to help others.” Jones’s wife testified that Jones was a “loving, caring father” who participated in the marriage and the raising of their children. Jones himself testified at great length about his distinguished career in the Navy. Finally, Jones’s best friend, Robert Walker, testified that Jones engaged in recreational activities, including playing the trumpet, and playing in talent shows and fundraisers.

Through these- witnesses, trial counsel “felt that [he] had established ... Jones’s family life, his married life, his career to a substantial extent in front of [the] jury.” Any testimony from Dr. Miller would have been cumulative to the testimony from Jones’s wife, parents, siblings, and best friend.

In addition, trial counsel stated that “there were some areas of Dr. Miller’s report that [he] did not want the state to go into.” “Counsel cannot be deemed ineffective for failing to present evidence that would open the door to damaging cross-examination and rebuttal evidence.... ” Johnson, 921 So.2d at 501; see also Gaskin v. State, 822 So.2d 1243, 1249 (Fla. 2002) (noting that “the witnesses who [the defendant] alleges should have testified on his behalf were subject to being cross-examined about disturbing information about [the defendant], which would have defeated trial counsel’s strategy”). Trial counsel felt that, on cross-examination, if the State solicited information regarding his conversations with Dr. Miller, something from those conversations would have adversely affected Jones. He identified Jones’s stress at the time of the crimes as the problem he wanted to avoid on cross-examination. Furthermore, Dr. Miller felt that the circumstances in this case could arise again with the right amount of stres-sors or stress-related incidents. Trial counsel also maintained that Dr. Miller “had some concerns with ... Jones’s rendition of the story.”

Given this potentially damaging information as well as the unpredictable nature of cross-examination, counsel made a reasonable strategic decision to withhold the testimony. He had presented substantial mitigation through other witnesses and, therefore, the risk of calling Dr. Miller outweighed the cumulative benefit of his testimony. Jones cannot demonstrate that counsel’s decision was deficient. Furthermore, because the information in Dr. Miller’s report was presented through other witnesses, Jones also cannot demonstrate prejudice. Accordingly, we affirm the circuit court’s findings.

Regarding Dr. McMahon, the circuit court concluded as follows:

Dr. McMahon’s report perhaps provides a more detailed perspective of Defendant’s personality and psychological profile. However, her findings and conclusions are largely consistent with Dr. Miller’s opinion that Defendant was essentially normal from a psychological perspective.

Dr. McMahon examined Jones and interviewed his family. She prepared a written report and, at the evidentiary hearing, testified as to what was contained in that report as well as her observations and findings regarding Jones. She agreed that the resulting crimes were “totally out of character” for him. She stated that, when Jones experiences anxiety, he “tends to regress-tends to function at a less ... mature level,” which was not unusual. If Jones “can’t get out of a situation and it continues to be highly emotionally charged, then ... his emotions become more determinative of his behavior.” She added that, on the day of the incident, Jones perceived Mr. Stow as treating him like a child and stealing from him. In these situations, Jones regresses, and “his perceptions become distorted.” However, she testified that Jones’s IQ level did not suggest “any kind of cognitive disfunction.” Jones’s neuropsychological assessment was within normal limits, and he had good impulse control.

This testimony, like Dr. Miller’s, does not suggest any serious mental disorders. We agree with the circuit court’s findings:

Dr. McMahon’s evaluation of Defendant largely corroborates that conducted by Dr. Miller. Both professionals found Defendant to be essentially normal.... The matters raised by Dr. McMahon concerning Defendant’s reaction to stress and anxiety appear to describe normal human behavior.

The circuit court further stated that “[t]he fact that after the trial is over, a second, arguably more favorable psychological report is obtained does not establish that the defendant received ineffective assistance at trial.” We have affirmed denials of relief in such circumstances. See, e.g., Davis v. State, 875 So.2d 359, 372 (Fla.2003) (finding that, although the new expert’s testimony “may be characterized as a ‘more favorable mental health expert’ ... trial counsel was not deficient simply because [the defendant] . . . secure[d] a ‘more favorable’ report on postconviction”); Asay v. State, 769 So.2d 974, 985 (Fla.2000) (finding that “counsel ... conducted] a reasonable investigation of mental health mitigation prior to trial and then made a strategic decision not to present this information,” even though the defendant secured the testimony of a more favorable mental health expert for a postcon-viction evidentiary hearing).

Even if trial counsel committed error, Jones cannot demonstrate prejudice. The circuit court concluded that, “[i]n many respects, Dr. McMahon’s testimony was consistent with Dr. Miller’s.” There is no reasonable probability that Dr. McMahon’s testimony would have changed the jury’s recommendation of death or the trial court’s imposition of the death penalty. It does not yield any new information and, therefore, does not undermine our confidence in the outcome of the penalty phase. Any failure to investigate mental health mitigation beyond Dr. Miller’s report, therefore, did not deprive Jones of a fair trial. Accordingly, we affirm the circuit court’s findings.

Jones next argues that trial counsel rendered ineffective assistance by failing to present mitigating evidence of his positive and cooperative behavior throughout the proceedings and while in jail. This claim is legally insufficient as pled. Jones makes the conclusory allegation that prejudice resulted from trial counsel’s failure, without specifying whether a reasonable probability exists that the outcome of the penalty phase would have been different. See Armstrong v. State, 862 So.2d 705, 712 (Fla.2003) (finding no error in the trial court’s denial of the defendant’s claim, in which he asserted a mere conclusory allegation of prejudice without any degree of specificity as to how the outcome of the proceeding would have been different). “A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). Because Jones merely asserts prejudice, without factual allegations illustrating how trial counsel’s failure deprived him of a fair trial, we need not address Strickland’s performance prong. Accordingly, we deny relief on this claim.

Lastly, Jones claims that trial counsel rendered ineffective assistance by failing to present additional mitigating evidence through testimony from friends and family members. In particular, he lists several witnesses who could have testified regarding Jones’s remorse for his crimes: Abigail Taylor, Porsha Hernandez, Harris (Jones’s sister), Lee Houston (Jones’s childhood friend), Walker (Jones’s best friend), Alton Jones (Jones’s brother), and Jones’s parents.

Counsel cannot be deemed ineffective for failing to present cumulative evidence. Cole, 841 So.2d at 425. Of the individuals listed above, Taylor, Hernandez, Harris, Alton Jones, and Jones’s father testified about Jones’s remorse at the evidentiary hearing. However, during the penalty phase, Jones’s mother and Jones himself testified that he experienced remorse daily for his crimes. Trial counsel considered and rejected calling additional witnesses to testify about this issue. Testimony from these additional witnesses would have been cumulative to what was presented. Therefore, Jones cannot demonstrate that trial counsel’s performance was deficient. Accordingly, we deny this claim.

C. Pecuniary Gain Aggravating Circumstance

In his third claim, Jones argues that trial counsel rendered ineffective assistance by failing to adequately contest the trial court’s application of the pecuniary gain aggravating circumstance. He claims that trial counsel did not argue other theories or motives to the jury — for example, that the murder was the result of anger, or that Jones’s taking of the paperwork was an afterthought.

“Where an ‘afterthought’ argument is raised, the defendant’s theory is carefully analyzed in light of the entire circumstances of the incident.” Bowles v. State, 804 So.2d 1173, 1179 (Fla.2001) (finding that sufficient evidence supported the pecuniary gain aggravator) (quoting Beasley v. State, 774 So.2d 649, 662 (Fla.2000)). Trial counsel raised this “afterthought” argument during the charge conference, but did not mention it to the jury during his closing argument. In addition, he alluded to an alternative theory at the beginning of his closing argument but never elaborated further. At the evidentiary hearing, he testified that he overlooked this other theory.

In denying this claim, the circuit court found as follows:

[Trial counsel] ... did argue that pecuniary gain was not a motive. He argued that ample independent records existed to prove Defendant’s debt to Pablo Motors so that Jones’s taking the records from Mr. Stow[ ]’s office would not allow him to avoid the obligation. Moreover, [trial counsel] noted that Jones left behind money found on Mr. Stow[ ] and in Ms. Stow[ ]’s wallet, demonstrating that Jones was not motivated by financial considerations.
[Trial counsel] was faced with a record that included his own client’s testimony regarding a financial dispute with ... Stow. In his penalty phase argument, [trial counsel] appropriately and understandably emphasized Defendant’s lack of any prior criminal record, his family history and the value of his past and future life. The Court finds that [trial counsel’s] penalty phase argument was “within the ... range of reasonable professional assistance” and that Defendant failed to show he was prejudiced by ineffective assistance of counsel.

(Citations omitted.) Trial counsel argued against the application of this aggravator by focusing on those facts that were favorable to his case. He contested the application of this aggravator to the extent he could in light of the overriding financial dispute between Jones and Stow. Accordingly, Jones cannot demonstrate that counsel’s performance was deficient.

Even if counsel erred by failing to raise an “afterthought” argument, Jones cannot demonstrate prejudice. On direct appeal, we held that Jones committed the murder for pecuniary gain:

[T]here is no reasonable hypothesis other than that Jones murdered Monique Stow and attempted to murder Ezra Stow in order to obtain ownership of the car and to resolve the problem over the dishonored check. The fact that the car papers were' missing from Ezra Stow’s desk after the murder and attempted murder support this finding as does the fact that after committing the crimes Jones disposed of the car papers and the gun and hid the car.

Jones, 690 So.2d at 570. In addition, Jones had been unemployed for more than a year and knew that he only had five dollars in his bank account. He had previously bounced six other checks. The check he used to pay Stow bounced. He appeared at San Pablo Motors on March 3 only because Stow requested that he make good on the check. The evidence in favor of the pecuniary gain aggravator was overwhelming and would have refuted any additional theories trial counsel could have used to explain the murder. There is no reasonable probability — one sufficient to undermine our confidence in the outcome — that these alternative theories would have changed the jury’s recommendation of death or the trial court’s imposition of the death penalty. Jones has not established either prong of the Strickland test. Accordingly, we deny this claim.

D. Juror Interviews

In his fourth claim, Jones alleges that the trial court erred in denying his request to interview jurors based upon comments some of them were reported to have made in an article published in the Florida Times-Union on March 12, 1995 (after his sentence was imposed). In the article, Zeke McGee, the jury foreman and one of the jurors who voted to recommend death, was reported to have stated: “This young man’s case, it was hard. But if you do it once, you could do it again. They say after the first time it gets easier....” Harold Rooks, who also voted to recommend death, stated the following:

I’m just sitting there saying the guy is guilty or he’s not guilty. I’m not saying he’s going to be electrocuted.... That’s got to be the judge’s decision because he could give him life or whatever.
I think the judge probably knows more about the case than we do ... because he’s got all the other documents. It’s good to have that other opinion, that other person, because none of us are perfect.

Finally, Stanley Jefson, who voted to recommend death, stated the following:

I was thinking more about the victims and what happened to them than the defendant. The victims tend to get forgotten in some of these cases....
You can’t help but feel an awesome responsibility when you vote for someone’s life to be taken.
[I]n this case, the sentence was left up to the judge, and I think that helped people a lot by making sure that the jurors understood that what they said was not the result....
It really didn’t enter into my mind that he could get out and do it again. I think that was kind of a one-time incident in Marvin Jones’s life. I don’t think he would have been a threat to society had he been released.... The fact that it seemed to be a one-time incident did not seem to make it harder ... to vote for [the] death penalty. I mean, when you vote as a member of the jury for the death penalty, I think you are in effect sending a message to others] that that is what can happen.

Jones argues that these comments, in part, “raise[ ] a substantial probability that the verdict in this case was compromised.”

“[J]uror interviews are riot permissible unless the moving party has made sworn allegations that ... would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire' proceedings.” Johnson v. State, 804 So.2d 1218, 1225 (Fla.2001) (citing Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 100 (Fla.1991)). “All that is required ... are facts which allege an overt act that may have prejudiced the jury....” Gould v. State, 745 So.2d 354, 358 (Fla. 4th DGA 1999) (where the defendant alleged that “a bailiff may have told the jurors that they comprised the third jury to sit on the case”). Jones has not alleged any overt act or error that may have prejudiced the jury and, instead, relies on the comments in the article.

However, “[t]he Florida Evidence Code ... provides] that ‘[u]pon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.’ ” Devoney v. State, 717 So.2d 501, 502 (Fla.1998) (quoting 90.607(2)(b), Fla. Stat. (1993)). The jurors’ mental thoughts and beliefs which relate to what occurred in the jury room during the jury’s deliberation “inhere[] in the verdict.” Id. at 502, 504 (where, “contrary to the court’s explicit instructions, jurors had discussed the speeding ticket during deliberations,” finding that those “discussions ... inhered in the verdict”); see also Johnson, 593 So.2d at 210 (holding that the jury foreman’s testimony regarding jury pollings during deliberations and the jury’s understanding of the court’s instructions “essentially inheres in the verdict” as it relates to what occurred in the jury room during the jury’s deliberations). Jurors cannot be asked about their “emotions, mental processes, or mistaken beliefs." Maler, 579 So.2d at 99 (emphasis added) (quoting State v. Hamilton, 574 So.2d 124, 128 (Fla.1991)). This Court has “cautioned against permitting juror interviews to support postconviction relief for allegations which focus upon jury deliberations.” Parker v. State, 904 So.2d 370, 380 (Fla.2005); see also Mitchell v. State, 527 So.2d 179, 181-82 (Fla.1988) (denying the defendant’s request for juror interviews based on an affidavit alleging that one of the jurors stated she was pressured into returning a guilty verdict and other jurors had placed the burden of proof on the defendant).

The jurors’ comments in the newspaper article expressed their thoughts, impressions, reasoning, and rationale for .their verdict. Their comments do not reveal any improper external influence but, instead, show “proper, normal, jury deliberations and thought processes.” It is irrelevant whether the jurors’ thoughts and beliefs were incorrect or reflect a misunderstanding or misapplication of the facts or the law. Such mistakes are beyond inquiry. See Maler, 579 So.2d at 99. Accordingly, we deny this claim.

E. Loss of Trial Counsel’s Files

In his fifth claim, Jones argues that the loss of trial counsel’s files in a fire hindered collateral counsel’s investigation and violated Jones’s due process rights. At the evidentiary hearing, trial counsel testified that there was a fire in his office on or around March 21, 1994. The fire destroyed trial counsel’s office building and his files related to Jones’s case, including pleadings, correspondence, transcripts, and personal notes. The fire was caused deliberately because Molotov cocktails were thrown through the window. However, the trial court found that the fire was not specifically intended to destroy counsel’s files related to Jones’s case. In denying this claim, the circuit court found as follows:

Defendant’s trial file was destroyed through no fault of any one directly involved in this case. [Trial counsel’s] testimony establishes that the fire at his office was an uncontrollable and unforeseeable act that was not intended purposely to destroy Defendant’s ... file. Although the destruction of the ... file is unfortunate, this Court finds that the absence of a ... file has not prejudiced Defendant and thus a violation of Defendant’s constitutional rights has not been established. Defendant was granted a hearing and was permitted to question [trial counsel] concerning all aspects of his representation of Defendant. Accordingly, Defendant has been afforded a sufficient opportunity to adequately explore his claims for post-conviction relief.

The standard of review for the circuit court’s denial of this claim is abuse of discretion. Parker, 904 So.2d at 379. The law is scarce on this issue. However, the Eleventh Circuit has stated that “[w]hen a defendant asserts prejudice because of the loss of evidence, he must show that the loss impaired his ability to provide a meaningful defense.” United States v. Solo mon, 686 F.2d 863, 872 (11th Cir.1982) (citing United States v. Cederquist, 641 F.2d 1347 (9th Cir.1981)) (denying appellant’s claim that the records destroyed in a fire at his motel would have shown facts essential to his defense because he suffered minimal prejudice).

We agree with the circuit court’s analysis. Jones cannot demonstrate that the absence of trial counsel’s files hindered collateral counsel’s investigation. Furthermore, the only items destroyed in the fire that could not be recreated or replaced were trial counsel’s personal notes of any interviews he had with Jones, Jones’s relatives, or other witnesses, as well as phone messages and impressions and theories of the case. It is highly unlikely that these notes would have provided any additional information beyond what trial counsel testified about at the hearing. Moreover, these personal notes and impressions most likely would support the State’s position by identifying specific reasons for trial counsel’s choice not to call certain witnesses or pursue various courses of action. The circuit court did not abuse its discretion in denying this claim. Accordingly, we affirm that decision.

F. The Ring Claim

In his final claim, Jones argues that Florida’s capital sentencing procedures are unconstitutional in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Jones’s conviction and sentence were final in 1997, five years before the United States Supreme Court decided Ring. We recently held that Ring is not retroactive. Johnson v. State, 904 So.2d 400, 412 (Fla.2005). Thus, Jones’s claim is denied.

III. Conclusion

For the reasons explained above, we affirm the circuit court’s denial of Jones’s postconviction motion.

It is so ordered.

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

      . The facts are taken from Jones’s direct appeal. See Jones, 690 So.2d at 569-70.

      . These were: (1) Jones had no significant history of prior criminal activity and (2) aspects of his character and record, namely: that he served eight years in the Navy in responsible positions and with commendations and an honorable discharge, that he is married with two children that he and his wife supported, that during his formative years he had the advantage of a secure middle-class home with successful parents, that there was no evidence that he suffered any material, spiritual, or moral privation, and that Jones's parents were supportive, hardworking, industrious, and successful.

      .These were: (1) the trial court erred in finding that the murder was committed for pecuniary gain and in instructing the jury on pecuniary gain; (2) the trial court erred in giving the standard jury instruction to define the cold, calculated, and premeditated (CCP) aggravating circumstance; (3) the trial court ■erred in finding the CCP aggravator; and (4) the death penalty was not appropriate.

      . Jones filed a supplement to the amended 3.850 motion in August 2002, raising additional arguments based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . The following claims are procedurally barred because they should have been raised on direct appeal: 4(a) (the trial court erred in denying his request to interview jurors based upon the allegations in his 1994 Amended Motion for New Trial), 6(a)-(d) ((a) the use of a contemporaneous conviction to support the prior violent felony aggravating circumstance is unconstitutional; (b) Florida’s standard jury instructions impermissibly shift the burden of proof to the defendant; (c) Florida’s standard jury instructions violate Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (d) Florida’s standard jury instructions fail to properly instruct the jury regarding the nature, meaning, and effect of mitigation), 9(a)-(f) ((a) Florida's death penalty' statute provides no "standard of proof” for weighing aggravating and mitigating circumstances; (b) Florida's death penalty statute does not define "sufficient aggravating circumstances”; (c) Florida's death penalty statute does not sufficiently define each of the aggravating factors; (d) Florida’s death penalty statute does not have the independent reweighing of aggravating and mitigating factors; (e) aggravating factors are applied in a vague and inconsistent manner and juries have received unconstitutionally vague instructions; (f) Florida law violates the Eighth Amendment by creating a presumption of death if a single aggravating factor is found), and 10 (death by lethal injection is cruel and unusual punishment).

      . Claim 9(g) (ineffective assistance of counsel for failing to object to the penalty phase jury instructions) is such a claim. Also, claim 5(a) broadly asserts that Florida’s law governing access to public records is unconstitutional, • but Jones fails to identify the specific records he has been improperly denied. Therefore, that portion of his argument is unpreserved as insufficiently argued.

      . We have previously addressed claim 3(a) (the jury instructions for the pecuniary gain aggravator are unconstitutionally vague and overbroad) and have rejected it. See Kelley v. Dugger, 597 So.2d 262, 265 (Fla.1992) (citing Brown v. State, 565 So.2d 304, 308 (Fla.1990)). Other claims we summarily reject as meritless are 1(a) (ineffective assistance of counsel for failing to object to the CCP jury instructions, which this Court later rendered unconstitutional in Jackson v. State, 648 So.2d 85 (Fla.1994)), 4(b) (ineffective assistance of counsel for failing to pursue juror interviews), 3(b) (ineffective assistance of counsel for failing to object to the jury instructions for the pecuniary gain aggravator), and 6(e)-(g) ((e) ineffective assistance of counsel for failing to object to the jury instructions for the prior violent felony aggravator; (f) ineffective assistance of counsel for failing to request a limiting instruction on victim impact evidence; and (g) ineffective assistance of counsel for failing to object to the penalty phase jury instructions).

      . Claim 7(a) (Jones is innocent of the death penalty); and 7(b) (the death penalty is not appropriate).

      . These six issues correspond to claims 1(b), 2, 3(c), 4(c), 5(b), and 8.

      .In his brief, Jones also mentions the testimony of Dr. Elizabeth McMahon, who was hired as a witness only for the evidentiary hearing. However, Jones focuses mainly on Dr. Miller's testimony while briefly mentioning Dr. McMahon at the beginning of the analysis. In his second claim, Jones places more emphasis on Dr. McMahon's testimony. Furthermore, the issue of whether or not . counsel was ineffective for failing to secure Dr. McMahon and present her testimony properly belongs in the next section.

      . At the beginning of his closing argument, trial counsel stated: "[Y]ou can conclude the State’s theory ... for which ... there is proof to the contrary and I’ll get to that, that something happened in that trailer between ... Jones, Monique Stow and [Ezra] Stow....”