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    Lenard James PHILMORE, Appellant, v. STATE of Florida, Appellee. Lenard James Philmore, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC04-1036, SC05-250.
    Supreme Court of Florida.
    June 15, 2006.

      John W. Jennings, Capital Collateral Regional Counsel, James V. Viggiano, Jr. and Richard E. Kiley, Assistant OCR Counsel Middle Region, Tampa, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee/Respondent.
   PER CURIAM.

In 2002, this Court affirmed Lenard James Philmore’s sentence of death. See Philmore v. State, 820 So.2d 919 (Fla.2002). Philmore now appeals an order of the circuit court denying a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained in this opinion, we affirm the trial court’s order and deny the petition for a writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

Philmore was convicted of first-degree murder, conspiracy to commit robbery with a deadly weapon, carjacking with a deadly weapon, kidnapping, robbery with a deadly weapon, and third-degree grand theft based upon the events surrounding the 1997 abduction and murder of Kazue Perron. The facts of this case are fully set forth in this Court’s opinion on direct appeal. See Philmore, 820 So.2d at 923-25. Briefly stated, on November 14,1997, Phil-more and codefendant Anthony Spann devised a plan to rob a bank to obtain money to travel to New York. See id. at 923. Spann told Philmore that to facilitate this robbery they would need to steal a getaway vehicle and kill the driver of the vehicle they stole. See id.

They ultimately spotted Perron driving a gold Lexus in a residential community, and the two followed her.
At approximately 1 p.m., Perron entered the driveway of a friend with whom she intended to run errands. Upon entering the driveway, Spann told Philmore to “get her.” Philmore approached the driver’s side of the vehicle and asked Perron if he could use her phone. Perron stated that she did not live there, and Philmore took out his gun and told Perron to “scoot over.” Phil-more drove Perron’s car, with Spann following in his Subaru....
Philmore and Spann passed a side road in an isolated area in western Martin County, and Spann flashed his lights, indicating that they turn around and head down the road. Philmore chose the place to stop. Philmore ordered Perron out of the vehicle and ordered her to walk towards high vegetation containing maiden cane, which is a tall brush.... Philmore then shot her once in the head. Philmore picked up Per-ron’s body and disposed of it in the maiden cane. Spann did not assist in disposing of the body.

Id. at 924.

Philmore and Spann drove the two vehicles to Indiantown, where Philmore entered the bank and took approximately $1100 that a teller was counting. After robbing the bank, Philmore and Spann returned to the Lexus, which they had parked a short distance from the bank, and concealed the Subaru. See id. After a high-speed chase on Interstate 95, the two were apprehended hiding in an orange grove. See id. at 925.

From November 15 through November 26, Philmore gave several statements to the police in which he ultimately confessed that he robbed the bank and abducted and shot Perron. On November 21, Philmore led the police to Perron’s body, which was found in the maiden cane. Philmore was charged in a six-count indictment, and the jury found Philmore guilty on all counts.

Id. (footnote omitted).

During the penalty phase, several witnesses who were the victims of previous crimes committed by Philmore testified for the State. Perron’s husband, Jean Claude Perron, and Perron’s friend, Chandra Bill, also testified, describing their relationships with Perron and discussing Perron’s positive impact on the lives of others.

In mitigation, Philmore’s family members testified that he was both the victim and witness of physical and mental abuse by his father, that he witnessed the murder of his niece when he was thirteen years old and subsequently started drinking, and that he suffered a number of injuries to his head. These witnesses also testified about Philmore’s relationship with codefendant Spann. In an attempt to establish statutory mitigation factors, Phil-more also presented the expert testimony of Dr. Frank Wood and Dr. Robert Ber-land. In rebuttal, the State presented the testimony of Dr. Gregory Landrum and Dr. Helen Mayberg.

The jury recommended the death penalty by a vote of twelve to zero. See Philmore, 820 So.2d at 925. After weighing the aggravating and mitigating circumstances, the trial court followed the jury’s recommendation and sentenced Philmore to death.

Philmore raised eleven issues on direct appeal. The Court denied without prejudice Philmore’s claim that he received ineffective assistance of counsel related to his preindictment statements to law enforcement officers regarding Perron’s abduction and murder. See id. at 928-29. The Court rejected all of Philmore’s other arguments as either unpreserved or merit-less and affirmed Philmore’s convictions and sentence of death. See id. at 940.

Philmore filed a timely motion for post-conviction relief under rule 3.851, in which he raised multiple claims. The circuit court held an evidentiary hearing at which Philmore presented testimony on his claims that trial counsel was ineffective during jury selection, during the penalty phase, and in conceding Philmore’s guilt and that preindictment counsel provided ineffective assistance by allowing Philmore to give multiple statements to police.

Thomas Garland, Philmore’s lead trial counsel, who conducted voir dire and was primarily responsible for the penalty phase, testified regarding his recollection of his actions during trial preparation and trial. Dr. Michael Maher, an expert in forensic psychiatry, examined Philmore before trial and participated in a pretrial deposition, but was never called to testify at trial. Dr. Maher testified at the hearing that had he been called at trial he would have testified that Philmore suffers from organic brain -injury and that at the time of the murder Philmore was operating under extreme mental or emotional disturbance, and that his capacity to appreciate the criminality of his conduct was substantially impaired. John Hetherington, the assistant public defender who represented Philmore prior to his indictment on the kidnapping and murder charges, testified regarding his recollection of the events that led to Philmore’s confession that he shot Perron. Lastly, Philmore’s mother testified about her conversations with Hetherington during his representation of Philmore.

The trial court issued a comprehensive order denying relief, and Philmore appeals, raising four issues for this Court’s review. Philmore also petitions for a writ of habeas corpus, raising six claims for relief.

ANALYSIS

A. MOTION FOR POSTCONVICTION RELIEF

On appeal, Philmore asserts that the trial court erred in denying several of his claims of ineffective assistance of counsel. Because the trial court denied these claims after holding an evidentiary hearing, the Court defers to the trial court’s factual findings to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts. See Stephens v. State, 748 So.2d 1028, 1031-32 (Fla.1999).

To obtain relief on a claim of ineffective assistance' of counsel Philmore must establish

deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674] (1984). See Rutherford v. State, 727 So.2d 216, 218 (Fla.1998). As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland, 466 U.S. at 688[, 104 S.Ct. 2052]. Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694[, 104 S.Ct. 2052]; Rutherford, 727 So.2d at 220.

Gore v. State, 846 So.2d 461, 467 (Fla.2003) (parallel citations omitted). “[W]hen a defendant, fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.” Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001). Further, as the United States Supreme Court explained in Strickland,

[¡judicial scrutiny of counsel’s performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....

466 U.S. at 689, 104 S.Ct. 2052. We address each of Philmore’s issues on appeal below.

1. Ineffective Assistance of Preindictment Counsel

In his motion, Philmore asserted that preindictment representation by attorney John Hetherington was ineffective assistance of counsel for several reasons: (1) Hetherington failed to investigate Phil-more’s case before advising Philmore to give incriminating statements to police; (2) Hetherington allowed Philmore to give incriminating statements to police after Hetherington knew Philmore would implicate himself in Perron’s murder; (3) Heth-erington was not present when Philmore gave statements to police; and (4) Hether-ington failed to secure a plea agreement prior to allowing Philmore to give statements to police. The trial court addressed this claim in a comprehensive order that included ten pages of detailed findings. We commend the trial court for conducting a thorough, well-reasoned analysis of this claim and conclude that the trial court’s determination that Hetherington’s actions were informed, strategic choices is supported by competent, substantial evidence.

At the hearing, Hetherington testified at length regarding his decisions during his representation of Philmore. Although Hetherington could not recall exactly when in the sequence of Philmore’s confessions he learned of specific pieces of information, Hetherington consistently testified that his advice to Philmore to cooperate was based on Philmore’s statements, first that Philmore was not involved in the abduction and then that Philmore was not the shooter. Hetherington also testified that while he views information given by defendants with some skepticism, he believed Philmore because Hetherington had information that Spann was wanted for other murders. After it became apparent that Philmore had lied about his lack of involvement in the abduction, Hetherington admonished Philmore about telling Heth-erington the truth. Hetherington believed that Philmore understood the importance of being honest and would no longer be untruthful.

Hetherington also advised Philmore not to speak with law enforcement officers or submit to polygraph examinations if Phil-more was not being candid about his role in Perron’s murder. Philmore nonetheless chose to make statements to law enforcement officers. Philmore presented no evidence to rebut Hetherington’s testimony that Philmore wanted to speak to law enforcement officers even after counsel advised him of the risk.

Moreover, Philmore’s first statement to police after Hetherington began representing him was consistent with what Philmore had told Hetherington — that he was not involved in Perron’s abduction or murder. It was Philmore’s spontaneous statement prior to the first polygraph examination that exposed his deceit. The trial court found that even if Hetherington had been present at this time, Hetherington could not have stopped Philmore from admitting that he was present during the abduction. Hetherington testified that after Phil-more’s first confession about his involvement in the abduction, Hetherington had to reevaluate his strategy. Hetherington stated that he believed that if Philmore was not the shooter, Philmore’s best chance to avoid the death penalty was to present Philmore as a cooperating non-shooter who played a minor role in the felony murder. Once Philmore admitted he was the shooter, Hetherington believed that Philmore had nothing to lose by making additional statements to law enforcement officers.

In sum, the evidence presented at the hearing supports the trial court’s finding that “Mr. Hetherington’s actions ... were informed, strategic choices, based on the information that Mr. Hetherington had at the time, which were substantially influenced by the Defendant’s own statements and wishes, which seemed reasonable in consideration of all the facts and circumstances known to Mr. Hetherington at the time each statement was made.” Accordingly, Philmore has failed to establish that Hetherington provided ineffective assistance of counsel. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (“[Sjtrate-gic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”).

2. Ineffective Assistance of Trial Counsel During Jury Selection

Philmore next asserts that the trial court erred in denying his claim that trial counsel was ineffective for failing to challenge the State’s use of a peremptory strike to remove juror Holt, an African-American female. Specifically, Philmore argues that trial counsel failed to adequately challenge the State’s proffered reason for the strike as pretextual.

In making this argument, Philmore appears to be seeking review of the validity of the strike. This substantive issue was raised and addressed on direct appeal and is therefore procedurally barred. See Kimbrough v. State, 886 So.2d 965, 983 (Fla.2004) (concluding that to the extent the defendant seeks review of the substantive issue underlying his ineffective assistance of counsel claim, the claim is procedurally barred because it could have been raised on direct appeal).

To the extent Philmore contends that trial counsel was ineffective, we conclude that Philmore cannot establish prejudice. On direct appeal, Philmore argued that “the trial court erred in granting the State’s peremptory challenge regarding prospective juror Tajuana Holt, because the State’s reason for excusing her was pretextual and she was in fact stricken because of her race.” Philmore, 820 So.2d at 929. We first concluded that the claim had been waived because “although Phil-more objected at the time the State sought to exercise a peremptory strike of Holt, he failed to renew his objection prior to the jury being sworn.” Id. at 930. However, we also addressed the merits of Philmore’s claim and determined that “it has no merit because the State has advanced a facially race-neutral non-pretextual reason for peremptorily challenging Holt.” Id. Therefore, any alleged deficiency in counsel’s performance in challenging the State’s strike of juror Holt did not “so affeet[ ] the fairness and reliability of the proceedings that confidence in the outcome is undermined.” Gore, 846 So.2d at 467. The trial court correctly denied this claim for relief.

3. Ineffective Assistance of Trial Counsel During the Penalty Phase

In his next issue on appeal, Philmore asserts that the trial court erred in rejecting his claim that trial counsel was ineffective for failing to present Dr. Maher to explain the presence of organic brain damage in support of the statutory miti-gator that Philmore suffered from extreme mental or emotional disturbance. This Court has recognized that “the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated.” State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002). “[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” Ragsdale v. State, 798 So.2d 713, 716 (Fla.2001) (alteration in original) (quoting State v. Riechmann, 777 So.2d 342, 350 (Fla.2000)); see also Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“[The] principal concern in deciding whether [counsel] exercised ‘reasonable professional judgmen[t]’ is not whether counsel should have presented a mitigation case. Rather, [the] focus [is] on whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable.”). However, when evaluating claims that counsel was ineffective for failing to present mitigating evidence, the defendant has the burden of showing that counsel’s ineffectiveness “deprived the defendant of a reliable penalty phase proceeding.” Rutherford v. State, 727 So.2d 216, 223 (Fla.1998).

In denying this claim, the trial court ruled that Philmore “failed to overcome the presumption that his attorney’s actions under the circumstances were sound strategy” and “failed to demonstrate that he was prejudiced.” In reaching this conclusion, the trial court found that Dr. Maher’s opinions were inconsistent with the trial testimony of defense experts Dr. Wood and Dr. Berland. Specifically, the trial court found that Dr. Maher’s opinion that Philmore’s organic brain injury was in the frontal lobe was inconsistent with Dr. Wood’s testimony at trial that the area of the abnormality was to the back left side of Philmore’s brain. The trial court also found that Dr. Maher’s testimony that he did not believe that Philmore was under the substantial domination of another would have undermined Dr. Berland’s testimony that Philmore was under the substantial domination of codefendant Spann.

Philmore asserts that because Dr. Ber-land’s conclusions had already been impeached by the State, the prospect of conflicting expert testimony by Drs. Berland and Maher on the substantial domination mitigator did not justify the decision not to call Dr. Maher. Even if Dr. Maher would have been more successful at establishing statutory mitigation than Dr. Berland, the standard for assessing ineffective assistance claims “is not how present counsel would have proceeded, in hindsight, but rather whether” the defendant has established both deficient performance and prejudice under Strickland. Brown v. State, 846 So.2d 1114, 1121 (Fla.2003) (quoting Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995)). Moreover, Philmore’s presentation of a conflicting expert opinion would have further undermined the defense’s credibility. Trial counsel “cannot be deemed ineffective for not presenting ... conflicting opinions.” Jones v. State, 855 So.2d 611, 618 (Fla.2003).

Philmore also asserts that the trial court’s finding that Garland made a tactical decision not to call Dr. Maher is not supported by the record. Garland testified that he decided not to call Dr. Maher at trial after reviewing Dr. Maher’s report and deposition and speaking to Dr. Maher several times. Although Garland did not explain with specificity his reasons for not utilizing Dr. Maher, Garland clearly considered this alternative and rejected it. We conclude that the trial court did not err in finding that Philmore failed to establish that Garland’s decision not to call Dr. Maher to testify was deficient performance.

Even if Garland’s decision not to call Dr. Maher to testify could be considered deficient performance, this failure did not “de-privet ] the defendant of a reliable penalty phase proceeding.” Rutherford, 727 So.2d at 223. Garland presented two experts and several lay witnesses to establish mitigation. Our confidence in the outcome of the penalty phase is not undermined by the absence of Dr. Maher’s testimony even though the State had some success impeaching Dr. Berland’s testimony. Further, given the impeachment of Dr. Ber-land and Dr. Wood, it is likely that the State would also have had some success in contradicting Dr. Maher’s conclusions. Accordingly, we affirm the trial court’s denial of this claim for relief.

4. Ineffective Assistance of Counsel in Conceding Philmore’s Guilt

In Philmore’s final issue on appeal, he asserts that the trial court erred in denying his claim that trial counsel was ineffective during the guilt phase for conceding Philmore’s guilt of the conspiracy to commit robbery, carjacking, kidnapping, and robbery charges, and to the lesser included offense of second-degree murder. The trial court found that the concessions were a reasonable trial tactic and that Philmore consented to this strategy.

The only evidence presented at the evi-dentiary hearing on this issue was the testimony of Garland. He stated that because. Philmore had already confessed to the murder and been sentenced to life imprisonment in another case, the strategy was to save Philmore’s life. Although Garland could not remember the details of the discussions he and Chip Bauer had with Philmore about this strategy, Garland recalled Philmore being aware of and consenting to this strategy. Accordingly, there is competent, substantial evidence to support the trial court’s finding that Phil-more consented.

Contrary to Philmore’s assertion, this case is not like Nixon v. State, 857 So.2d 172 (Fla.2003), rev’d, Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), on remand 932 So.2d 1009 (Fla.2006). In Nixon, this Court concluded that no competent, substantial evidence existed to support the trial court’s finding that Nixon consented to trial counsel’s strategy of conceding guilt because trial counsel testified that Nixon did nothing when trial counsel discussed this strategy with him. See 857 So.2d at 176. In this case, Garland testified that Philmore expressly consented to the strategy to concede his guilt. Moreover, this Court’s requirement in Nixon that a defendant must affirmatively and explicitly agree to a strategy to concede guilt was overruled by Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 563, 160 L.Ed.2d 565 (2004), in which the United States Supreme Court held:

When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.

Accordingly, Philmore’s reliance on this Court’s 2003 decision in Nixon to support his claim of ineffective assistance is without merit. We affirm the trial court’s denial of relief on this claim.

B. PETITION FOR WRIT OF HABEAS CORPUS

1. Trial Court’s Failure to Consider Expert Testimony

In Philmore’s first claim for habe-as relief, he argues that the trial court erred in failing to consider Dr. Wood’s testimony in support of the mitigating factor that Philmore suffered from an extreme mental or emotional disturbance at the time of the offense. A trial court’s rejection of mitigating circumstances is an issue that is properly raised on direct appeal. Cf. White v. State, 729 So.2d 909, 911 n. 4 (Fla.1999) (concluding that the postconviction court properly rejected as procedurally barred the claim that the trial court applied an improper standard in rejecting mental health mitigation). In fact, Philmore argued on direct appeal that the trial court erred in rejecting the statutory mitigator that Philmore suffered from an extreme mental or emotional disturbance at the time of the murder. This Court concluded that the trial court’s rejection of this mitigating circumstance was supported by competent, substantial evidence. See Philmore, 820 So.2d at 937. Phil-more’s claim that the trial court erred in failing to consider Dr. Wood’s testimony in support of this mitigation is procedurally barred. Cf. Griffin v. State, 866 So.2d 1, 18 (Fla.2003) (concluding that the defendant’s claim that the trial court’s sentencing order failed to consider and weigh unrefuted mitigating evidence presented at trial was procedurally barred because it could have been raised on direct appeal); Cherry v. Moore, 829 So.2d 873, 876 (Fla.2002) (concluding that defendant’s claim that the trial court did not consider a psychiatric report in evaluating mitigation was procedurally barred because it was raised on direct appeal).

To the extent that Philmore attempts to raise this issue as an ineffective assistance of appellate counsel claim, we deny relief. Philmore’s assertion that appellate counsel was ineffective for not arguing that the trial court erred in failing to consider Dr. Wood’s testimony in relation to this mitigation is merely an additional argument in support of the claim previously raised on direct appeal. We addressed in detail Philmore’s claim that the trial court erred in rejecting the statutory miti-gator that Philmore suffered from an extreme mental or emotional disturbance at the time of the murder, and noted the “trial court’s thorough consideration” of the issue. Philmore, 820 So.2d at 937. Accordingly, we conclude that Philmore’s ineffective assistance of appellate counsel claim is without merit.

2. Constitutionality of Florida’s Death Penalty Statute

Philmore next argues that Florida’s death penalty statute is unconstitutional as applied to him under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). However, Philmore states that he is raising this issue only to preserve it for possible federal review. Further, this Court has held that Ring does not apply retroactively. See Johnson v. State, 904 So.2d 400, 412 (Fla.2005).

To the extent that Philmore attempts to raise this issue as an ineffective assistance of appellate counsel claim, we deny relief. “If a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Rutherford, 774 So.2d at 643 (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994)). First, at the time the Court issued its decision in Philmore’s direct appeal, Ring had not been decided. Second, this Court has rejected claims under Ring in direct appeals where the trial judge has found the aggravating factor of a previous conviction of a violent felony based on either prior or contemporaneous felony convictions. See, e.g., Duest v. State, 855 So.2d 33, 49 (Fla.2003); Caballero v. State, 851 So.2d 655, 663-64 (Fla.2003). In this case, one of the aggravating circumstances found by the trial court was that Philmore was previously convicted of another capital felony or of a felony involving the use or threat of violence. In addition, the jury unanimously recommended the‘death sentence. Cf. Anderson v. State, 863 So.2d 169, 189 (Fla.2003) (rejecting a Ring claim on direct appeal where the jury recommended the death sentence by a unanimous vote and one of the aggravating circumstances found by the trial judge was that the defendant had been convicted of a prior violent felony for the contemporaneous conviction of attempted murder). Accordingly, Philmore’s claim is without merit. Appellate counsel was not ineffective for failing to raise this issue on direct appeal.

3. Ineffective Assistance of Trial Counsel

Philmore next argues that trial counsel was ineffective for failing to object to the following comments by the prosecutor: (1) references to “how lucky” an unknown woman was when Philmore and Spann were unable to attack her; (2) references to the personal opinions of the investigators; (3) the stereotyping of Phil-more as wearing a “white tank top” and “gold necklaces” and referring to Phil-more’s , gun as “the great equalizer”; (4) attempted personalization of the prosecution as a joint effort between law enforcement and the community; (5) assertion that the prosecution was being presented by “their state attorney”; (6) remarks about Philmore’s brain damage being in “the murder center of the brain ... or kidnapping center of the brain”; (7) references to the polygraph examinations; and (8) statements that the only expert testimony that the jury should accept regarding the brain imaging were the witnesses participating “on behalf of the people of the State of Florida” with “no interest other than an interest in making sure that the science ... is properly represented to the public.” This claim of ineffective assistance of trial counsel is not appropriately raised in a petition for writ of habeas corpus. See Reed v. State, 875 So.2d 415, 439-40 (Fla.2004) (“To the extent that Reed claims his trial counsel rendered ineffective assistance of counsel, this issue is improperly raised in a petition for writ of habeas corpus.”). Accordingly, we decline to address this issue.

To the extent that Philmore asserts that appellate counsel was ineffective for failing to sufficiently argue this issue on direct appeal, we deny relief. Appellate counsel raised this precise issue on direct appeal, pointing to all the prosecutorial comments Philmore now contends were improper. We concluded that even when considered cumulatively, neither the alleged guilt phase errors nor the alleged penalty phase errors rose to the level of fundamental error. See Philmore, 820 So.2d at 932.

4. Jury Instructions

Philmore’s fourth claim for habeas relief is that the jury was unconstitutionally instructed that its role was advisory. This claim should have been presented on direct appeal and is therefore procedurally barred. See Dufour v. State, 905 So.2d 42, 67 (Fla.2005) (“[A] claim of error regarding the instructions given by the trial court should have been presented on direct appeal and is not cognizable through collateral attack.”). Further, as we reiterated in Dufour, this claim is meritless. See id. (“This Court has repeatedly determined that challenges to ‘the standard jury instructions that refer to the jury as advisory and that refer to the jury’s verdict as a recommendation violate Caldwell v. Mississippi 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)’ are without merit.”) (quoting Card v. State, 803 So.2d 613, 628 (Fla.2001)); see also Globe v. State, 877 So.2d 663, 673 (Fla.2004) (rejecting the defendant’s argument on direct appeal that “the trial court erred by instructing the jury that it was giving an ‘advisory sentence,’ in violation of’ Caldwell and Ring). We thus deny this claim for relief.

5. Cumulative Effect of Trial Errors

Philmore argues that the cumulative effect of the trial errors deprived him of a fundamentally fair trial. Because we have concluded that Philmore’s other claims are without merit or are procedurally barred, we further conclude that Philmore was not deprived of a fundamentally fair trial. See Melendez v. State, 718 So.2d 746, 749 (Fla.1998) (concluding that where claims were either meritless or procedurally barred there was no cumulative effect to consider).

6. Competency at the Time of Execution

In his final habeas claim, Philmore asserts that his Eighth Amendment rights will be violated because he may be incompetent at the time of execution. Philmore acknowledges that a claim of incompetency to be executed cannot be asserted until a death warrant has been issued because the claim is not ripe, and that a defendant must submit this claim in accordance with section 922.07, Florida Statutes (2005). Philmore raises this claim solely to preserve the issue for federal review. We therefore deny this claim for relief. See Griffin, 866 So.2d at 22-23 (“While Griffin is under a death sentence, no death warrant has been signed and his execution is not imminent. Thus, the issue of Griffin’s sanity for execution is not ripe.... ”).

CONCLUSION

For the reasons discussed above, we affirm the trial court’s denial of Philmore’s motion for postconviction relief and deny Philmore’s petition for a writ of habeas corpus.

It is so ordered.

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

      . The trial court found five aggravating circumstances: (1) Philmore was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; (2) the capital felony was committed while Philmore was engaged in the commission of a kidnapping; (3) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (4) the capital felony was committed for pecuniary gain; and (5) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. See id. The trial court found no statutory mitigation but found the following nonstatutory mitigation: (1) Phil-more was both the victim and witness of physical and verbal abuse by an alcoholic father; (2) Philmore has a history of extensive drug and alcohol abuse; (3) Philmore suffered severe emotional trauma and subsequent posttraumatic stress; (4) Philmore was molested or raped, or both, at a young age; (5) Philmore was classified as severely emotionally handicapped; (6) Philmore has exhibited the ability to form close loving relationships; (7) Philmore cooperated with the State; and (8) Philmore has expressed remorse for causing the death of Perron. See id. at 925-26.

      . These issues were: (1) the trial court erred in failing to suppress Philmore’s statements to law.enforcement officers; (2) the trial court erred in allowing the State to exercise a peremptory challenge against prospective juror Tajuana Holt; (3) the trial court erred in denying Philmore’s motion to exclude a photograph depicting Perron; (4) the State made improper arguments throughout the guilt phase; (5) the State made improper arguments throughout the penalty phase; (6) the trial court erred in compelling a mental health examination of Philmore by the State's expert witness, and Florida Rule of Criminal Procedure 3.202 is unconstitutional; (7) the trial court erred in finding the "cold, calculated, and premeditated" aggravator; (8) the trial court erred in finding the "avoid arrest" aggravator; (9) the trial court erred in rejecting the "under the influence of extreme mental or emotional disturbance” statutory miti-gator; (10) the trial court erred in rejecting the "substantial domination of another” statutory mitigator; and (11) the trial court erred in rejecting the "impairment of capacity to appreciate the criminality of conduct" statutory mitigator. See id. at 926 n. 11.

      . Chip Bauer, who was appointed as second chair and was primarily responsible for the guilt phase, did not testify at the hearing.

      . These issues are: (1) whether the trial court erred in denying Philmore’s claim that trial counsel was ineffective for failing to challenge the State's use of a peremptory strike to remove juror Holt; (2) whether the trial court erred in denying Philmore’s claim that he received ineffective assistance of counsel pri- or to his arrest for the murder of Perron; (3) whether the trial court erred in denying Phil-more’s claim that trial counsel was ineffective during the penalty phase for failing to present evidence that Philmore suffered from organic brain damage; and (4) whether the trial court erred in denying Philmore’s claim that trial counsel was ineffective during the guilt phase for conceding Philmore’s guilt.

      . These claims are: (1) Philmore's death sentence is invalid because the trial court ignored expert testimony that, if considered, would have established statutory mitigation; (2) Philmore’s death sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (3) trial counsel was ineffective for failing to object to prosecutorial misconduct and appellate counsel was ineffective to the extent that appellate counsel failed to litigate the cumulative effect of this misconduct; (4) the instructions to the jury unconstitutionally diluted the jury's role in sentencing; (5) cumulative procedural and substantive errors deprived Philmore of a fair trial; and (6) Philmore’s Eighth Amendment right against cruel and unusual punishment will be violated because he may be incompetent at the time of execution.

      . Because we conclude that Philmore has failed to establish that he received ineffective assistance of counsel during police questioning, we decline to address the State's argument that Philmore's Sixth Amendment right to counsel for the murder had not attached at this time. Cf. Smith v. Rogerson, 171 F.3d 569, 572 (8th Cir.1999) (declining to consider exactly when the defendant's Sixth Amendment right to counsel "came into play" because the merits of the defendant’s arguments showed that he had not met the Strickland test).

      . Philmore told police that he was involved in abducting Perron but that he had no knowledge about what happened to her.


source: Caselaw Access Project

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

license: Public Domain

text:
    William TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. SC04-2243.
    Supreme Court of Florida.
    June 29, 2006.

      Marion Moorman, Public Defender, and Andrea M. Norgard, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and a corresponding sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the conviction and sentence of death.

FACTS AND PROCEDURAL HISTORY

On August 26, 2001, a grand jury returned an indictment for appellant William Taylor on one count of first-degree premeditated murder for the murder of Sandra Kushmer, one count of attempted first-degree murder for the attempted murder of William Maddox, one count of robbery with a deadly weapon, one count of robbery with a firearm, and one count of armed burglary of a dwelling.

At trial, Renata Sikes established that on Friday, May 25, 2001, she, along with her daughter Sandra Kushmer and her son William Maddox, went to visit her husband in the hospital. Kushmer and Maddox left the hospital in a rental car. At approximately 10:30 p.m. that night, Sikes called her home and spoke to Kushmer, who advised that “Ken” was there with Kush-mer and Maddox, and, according to Sikes, it sounded as though she was having fun. Thirty minutes later, Sikes again called home to inform her children that she would remain at the hospital, but there was no answer. Sikes called her home repeatedly thereafter, but the calls were never answered. At approximately 3:30 p.m. on Saturday, May 26, 2001, Sikes returned home. Upon arriving, Sikes noticed that the rental car was gone, and she observed blood on the outside of her house. In addition, Sikes discovered her daughter’s medication, purse, and shoes lying outside on the ground. Upon entering the house, Sikes found Kushmer lying in a puddle of blood. As Sikes walked further into the house, she discovered Maddox lying on the bed in a back bedroom. Sikes observed that Maddox’s face was black and blue, his pillow black with blood, but he was still alive. Sikes later determined that cameras belonging to her husband which had been stored in the closet of Maddox’s room were missing.

Cynthia Byrnes was working at Harry’s Country Bar on the night of Friday, May 25, 2001, the night of these events. She saw Kushmer and Maddox enter the bar that night, while Taylor was also present. According to Byrnes, Maddox was drinking the most expensive liquor sold at the bar, paying for his drinks with twenty-dollar bills, and leaving good tips. Byrnes testified that Maddox, Kushmer, and Taylor left the bar together.

On Saturday, May 26, 2001, Tommy Riley awoke to see Taylor on his doorstep. Later that morning, Taylor asked Riley to cash a $580 check, but Riley refused. The name on the two-party check was William Maddox, and it was from a bank in California, where Maddox lived. Later that evening, Taylor was in a bar where Riley worked as a bartender, paying for drinks with twenty-dollar bills. The following morning, Sunday, May 27, 2001, Riley was advised by an employee at Harry’s Bar, where Taylor, Kushmer, and Maddox had been the night of the murder, that detectives were looking for Taylor. Riley conveyed this information to Taylor, and he immediately left Riley’s house in his pickup truck.

The detective in charge of investigating these crimes obtained information that Maddox’s credit cards had been used in Tampa, Florida; Valdosta, Georgia; and Memphis, Tennessee. Based on this information, she contacted the United States Marshal’s Office in Tampa, which then relayed the information to the Marshal’s Office in Tennessee. Deputy Marshal Scott Sanders of the Memphis office received the information on May 29, 2001, from the Tampa office that two warrants for Taylor’s arrest for federal probation violations were outstanding and that Taylor might be in the Memphis area because he was believed to be in possession of credit cards that were being used in that location.

The Tennessee marshals located Taylor’s pickup truck at a motel, and he was taken into custody. Sanders wanted to search Taylor’s motel room at that time but he was unable to do so because he could not locate a Marshal’s Office consent form. He then obtained a consent form from the Shelby County Sheriffs Office, added the words “and the U.S. Marshals Office” to the top of the form, and filled it out, writing in the motel name and the room number to be searched. Sanders explained the form to Taylor and told him the consent form was for his motel room. According to Sanders, Taylor did not express any hesitation in signing the form.

The search of Taylor’s room revealed a checkbook wallet containing checks in the name of Bill Maddox, three credit cards issued to Maddox, credit card receipts, a ticket from a pawn shop in Memphis, a Discover credit. card issued to Sandra Kushmer, and a Texaco card issued to Barry Sikes, which Renate Sikes testified she had given to Kushmer. Receipts dated May 29, 2001, indicated that the Maddox credit card had been used to purchase a gold chain and a wedding band. The pawn shop ticket with the same date indicated that Taylor had pawned the two items.

When the lead Florida detective met with Taylor in Tennessee on May 30, 2001, she asked him for consent to search his truck. She read the applicable consent to search form to Taylor and he signed it. Taylor was then presented a consent to interview form which he also signed. The interview revealed that on Friday, May 25, 2001, Taylor called Kushmer and arranged a meeting at Harry’s Bar. Taylor disclosed that early that evening, he encountered an unnamed individual who lived near the bar, and he told this individual that he (Taylor) wanted to rob the Sikes home. This other person also had an interest in participating in the crime. Later that evening, Maddox and Kushmer left the bar with Taylor and they went to the Sikes home. Taylor confirmed that after the trio had beer and sandwiches, Taylor and Kushmer left the house and traveled to another bar, where they remained until approximately 12:30 a.m. They then returned to the Sikes home. When they arrived, the individual with whom Taylor had previously discussed the crime was in the driveway. This individual struck Kushmer on the back of the head with a long black bar. Kushmer fell to the ground, and Taylor removed two credit cards from her purse. Taylor admitted that he then went into the Sikes home and discovered Maddox lying in a puddle of blood. Taylor described the scene as the other unnamed individual in the bedroom going through the dresser drawers and a jewelry box. According to Taylor, his partner in this crime heard a noise, checked outside, and advised Taylor that Kushmer was now sitting up against the house. Taylor stated that this other individual then took a shotgun that was leaning against the wall, telling Taylor, "I’m just going to hit her with it.” While Taylor was removing the bag containing cameras from Maddox’s room, he heard a gunshot and went to the back of the house, where this other individual stated that he had shot Kushmer. Taylor then carried Kushmer into the house and placed her on the floor. Taylor then fled from the scene in his truck. The next morning, Taylor and Jose Araño went to Ybor City. Taylor said it was in a bar there that he used Maddox’s credit cards to pay for drinks, and a card was also used to purchase food.

The day after the interview, the lead Florida detective searched Taylor’s truck and found a black bag on the floorboard which contained cameras and camera accessories. The detective presented these items to Sikes, who identified them as belonging to her husband. The detective then went to a bar in Memphis at which Taylor had used the Maddox credit cards and spoke with Pamela Williams, who disclosed that Taylor had purchased drinks for her at the bar on the night of May 28, 2001, and introduced himself to her as William Maddox. She also showed the detective a note given to her by Taylor which he signed as “Bill Maddox” and identified himself as the owner of his own financial corporation.

After speaking with Williams, the detective returned to interview Taylor again. When Taylor was advised by the detective that she did not believe everything he had related the day before, Taylor told her the interview was over. However, Taylor continued to speak, and at one point, he said, “I shot her.” The detective inquired if Taylor understood that he had terminated the interview and whether he wished to continue. Taylor replied that he did -wish to continue. Taylor then changed his prior version of the events and stated that after Kushmer had been hit by the unnamed individual with him, Taylor armed himself with a shotgun from his truck. Taylor then stated that after he had burglarized the house and as he was leaving, he saw a movement and fired the shotgun in that direction. Taylor described that when he discovered that he had shot Kushmer, he carried her inside the house, placed her on the floor, threw the gun in the back of his truck, and immediately left. Taylor then stated that he pawned the shotgun and threw the clothes he was wearing in a dumpster.

Almost a month later, the lead Florida detective was informed that Taylor wished to again speak with her at the jail. When she arrived, Taylor gave the detective a letter that he had written which stated that during the earlier interviews, the detective had been “absolutely correct in [her] constant believing in the [unidentified] person being [Jose Araño].” According to his letter, after Araño picked up Taylor’s ex-wife, Lorena, Taylor instructed him to go to the Sikes home and hide in front of the house with Lorena. Taylor’s letter disclosed that as Taylor and Kush-mer approached the front of the house at approximately 1:20 a.m., Lorena came from her concealment and hit Kushmer with a crowbar. Taylor then removed Kushmer’s keys from her purse, the three of them entered the Sikes home, and Taylor retrieved the shotgun from his truck. Taylor’s letter stated that it was Araño who had beaten Maddox with the crowbar. According to the letter, Lorena then heard a noise outside. As Taylor went outside, someone turned the corner, and Taylor fired the gun in that direction. When he realized that it was Kushmer, he brought her inside the house. Taylor took the cameras, a couple of watches, and the keys to the rental car. Taylor and Araño drove away from the Sikes home in separate vehicles (with Lorena riding in Taylor’s truck), and Taylor threw the car keys for the rental car in a ditch. The three stopped at a 7-11, where Araño cleaned the crowbar and placed it in Lorena’s car. Taylor gave Lorena the money and the watches and advised her to go to Miami.

The medical examiner, Dr. Lee Miller, testified that the cause of Kushmer’s death was a shotgun wound to the head that penetrated her arteries and veins, which caused her to bleed to death. Based on the available evidence, at the time of the shooting the shotgun had been pressed against Kushmer’s mouth. The wound path was consistent with Kushmer having been in a sitting position. The medical examiner was of the opinion that Kush-mer’s wound was inconsistent with being shot by a person standing in the doorway of the house as she appeared around the corner. Additionally, the laceration on the back of Kushmer’s head was consistent with being struck by the butt of a shotgun.

A blood spatter expert opined that the blood smears on the outside wall of the Sikes home were likely caused by Kush-mer’s bloody hair. Further, high-velocity blood spatter located to the left of the smears indicated that the spatter was caused by a gunshot wound. The impact site was consistent with a victim who had been shot in the mouth while sitting or kneeling at the time. The blood patterns inside the Sikes home were consistent with Kushmer’s body having been carried into the home and swung in an arc-like manner before being dropped on the floor.

Latent fingerprints were lifted from beer bottles found in the garbage at the scene. A fingerprint expert matched one latent fingerprint with the known print of Taylor’s right index finger. The Hillsbor-ough County Sheriffs Office collected the shotgun and the pawn ticket from the shop where Taylor had pawned the item. A different fingerprint examiner was of the opinion that a thumbprint on the pawn ticket from the shotgun transaction also matched the known fingerprints of Taylor. The Florida Department of Law Enforcement tested the shotgun, and two areas tested positive for blood. DNA testing on the blood from these two areas generated partial DNA profiles that matched the profile of Maddox at three and four genetic points.

After hearing the evidence, the jury rendered a verdict finding Taylor guilty of first-degree murder as to the death of Kushmer, attempted first-degree murder as to William Maddox, robbery with a deadly weapon as to Maddox, robbery with a firearm as to Kushmer, and armed burglary of a dwelling. During the penalty phase, the State presented the testimony of the victims of crimes from Taylor’s prior convictions for burglary, first-degree assault, and possession of a deadly weapon during the commission of a felony, who described the circumstances surrounding the crimes. The parties also stipulated that at the time of the murder, Taylor was on federal felony probation. Victim impact statements prepared by Renate Sikes, William Maddox, and William Maddox, Sr. (Kushmer’s father) were read to the jury.

During the penalty phase, the defense presented videotaped depositions of three witnesses and live testimony from three additional witnesses. Taylor’s maternal aunt disclosed that his stepfather physically and mentally abused him and beat his mother. Josephine Quattrociocchi, who met Taylor in prison while visiting another inmate, was of the view that Taylor was a sincere and nice person. Taylor worked as a painter at one time, and his employer summarized that Taylor was an excellent worker, had initiative and a good work ethic, his work product was good, he could follow special instructions, and he did not require excessive supervision. A former counselor at Glades Correctional Institution informed the jury that Taylor had completed a drug program that he operated, and afterwards Taylor became a facilitator who assisted inmates in the drug program.

The defense also presented mental health experts. One diagnosed Taylor as suffering from a cognitive disorder, with deficits related primarily to the frontal lobe. He also opined that Taylor met the criteria for Antisocial Personality Disorder and most of the criteria for Borderline Personality Disorder. This expert also noted that Taylor himself and medical reports indicated that Taylor suffered a traumatic brain injury by falling from a scaffold in or around 1981, and after that, Taylor began to have headaches and seizures. This expert ultimately concluded that Taylor has a chronic emotional disorder; i.e., frontal lobe syndrome, which was aggravated or exacerbated on the night of the murder by Taylor’s extensive consumption of alcohol. Due to the circumstances of that evening and Taylor’s frontal lobe syndrome, his judgment was compromised to the extent that his ability to conform his conduct to the requirements of the law was impaired.

A second expert diagnosed that Taylor had presented brain dysfunction in the form of frontal lobe impairment and evidenced impairment with regard to the formulation of intent and impulse control. He concluded that Taylor suffered from epilepsy, which is consistent with a traumatic brain injury, based on the history that Taylor relayed and the medical records which detailed Taylor’s response to the antiseizure medication Dilantin.

A State expert responded to this mental health evidence and concluded that Taylor met the criteria for both Borderline and Antisocial Personality Disorders. In his view, while Taylor may have suffered seizures after the head injury that Taylor claimed to have suffered, there was no indication of a permanent seizure disorder. The State expert found no evidence of frontal lobe or temporal lobe impairment in Taylor, and he concluded that Taylor’s reported head injury in the 1980s did not result in any permanent brain damage. This expert concluded that on the night of the murder, Taylor did not suffer from any mental disease or defect that substantially impaired his capacity to appreciate the criminal nature of his conduct or his ability to conform his conduct to the requirements of the law.

After consideration of the evidence, the jury returned a recommendation of death by a vote of twelve to zero. During the Spencey hearing, a defense mental health expert estimated that Taylor consumed ten beers and eight ounces of tequila and had smoked two or three marijuana joints on the day of the murder. He testified that Taylor’s poor performance on tests that measure frontal lobe function was strongly indicative of frontal lobe damage and his neuropsychological deficits were more likely developmental in nature and likely preceded the head injury that Taylor suffered in the 1980s.

The trial judge sentenced Taylor to death for the murder of Kushmer. In pronouncing Taylor’s sentence, the trial court determined that the State had proven the existence of three statutory aggra-vators: (1) the murder was committed while Taylor was on felony probation, see § 921.141(5)(a), Fla. Stat. (2001); (2) Taylor had previously been convicted of a felony involving a threat of violence to the person, see § 921.141(5)(b), Fla. Stat. (2001); and (3) the murder was committed for pecuniary gain, see § 921.141(5)(f), Fla. Stat. (2001). The trial court assigned each of these factors great weight. The court did not find that any statutory mitigators existed, but found a total of thirteen non-statutory mitigating circumstances, two of which were assigned modest weight, six were assigned some weight, two assigned little weight, and three were assigned minimum weight. In imposing a sentence of death, the trial court concluded that “[t]he aggravating circumstances in this case far outweigh the mitigating circumstances.”

This direct appeal followed.

ANALYSIS Guilt Phase

In his only challenge to the guilt phase proceedings, Taylor asserts that the trial court erred in denying his motion to suppress the evidence that was obtained as a result of the search of his motel room in Memphis. In this motion, Taylor alleged that the evidence was seized without a warrant and as the result of an illegal search because he believed that the consent form he signed was only permission to search his truck.

We have stated that “[a] trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Connor v. State, 803 So.2d 598, 605 (Fla.2001) (quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997)). Nevertheless, “mixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Id.

At the suppression hearing, there was a dispute in the evidence with regard to the consent to search form that Taylor signed. Taylor testified that when the deputy marshal provided the consent form, it had no handwriting, and he believed that the consent was only for a search of his truck. According to Taylor, when the deputy marshal presented him with the form:

They read it to me and asked me would I sign it so they could take my pickup away because they needed to get inside and take stuff out, they needed to get evidence out of the pickup truck, and I said, yes, I’ll sign the warrant to take the evidence out of the pickup truck.

Taylor thought the form was only for a search of his truck because when he was initially taken into custody, officers went into his room at that time to search for other individuals. On cross-examination, Taylor testified that he never questioned why the consent to search form that he was asked to sign was blank. However, he also admitted that he was familiar with such forms because he had been arrested approximately four times in the past. Taylor conceded that he did not question why the Florida investigator requested that he sign a consent form to search his truck the next day (even though he believed he had already consented to a search of the truck), nor did he question the propriety of the search of his room when the Florida officer advised him that evidence had been found there.

The Tennessee deputy marshal, who at the time of trial had been employed with the Marshal’s Office for eighteen years, offered a different account of the events. He testified that after he obtained a consent form from the Shelby County Sheriffs Office, he “filled [it] out and then talked with Mr. Taylor and explained the form to him and asked for permission to search the room.” The deputy marshal stated that he read the form to Taylor line-by-line, including the handwritten additions, and testified at the suppression hearing that this has been his standard practice for years. He stated that he was not interested in searching the vehicle at that time because “[Florida officials] would be processing it for ... evidence.... [W]e knew it was going to be secured and it would be searched at a later time.” The deputy marshal did not believe there had been any discussion concerning a search of the vehicle at that time; at most, he may have asked Taylor if there were any narcotics or weapons in the truck. A second deputy marshal observed the reading of the consent form to Taylor, watched Taylor sign the form, and also signed the form.

The trial court ultimately found “the consent to search was signed freely and voluntarily” and denied the motion to suppress based on the following facts: (1) the deputy was a veteran supervisor of the Marshal’s Office; (2) Taylor’s claim that the form was blank at the time it was read to him “ma[de] no sense”; (3) Taylor’s familiarity with consent to search forms; (4) Taylor’s failure to question the signing of a second consent to search form for his truck; and (5) Taylor’s failure to object when the Florida officer stated that evidence had been recovered from his room. The trial court specifically found the deputy marshal’s testimony to be credible.

This Court “recognize[s] and hon-oris] the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact. The deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review. In many instances, the trial court is in a superior position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.’ ” Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999) (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). During the suppression hearing, the trial court considered the conflicting testimony of Taylor and the deputy marshal, observed their demeanor, and concluded that the testimony of the deputy marshal was more credible. We conclude that these findings of historical fact are supported by competent, substantial evidence, and we defer to the conclusion that Taylor gave free and voluntary consent to search his motel room. Therefore, we hold that the trial court did not err in denying the motion to suppress. See Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998) (concluding that “a search will be considered lawful if conducted pursuant to consent which was given freely and voluntarily”).

Penalty Phase

I. Jury Instructions

Taylor asserts that Florida’s standard jury instructions are unconstitutional for two reasons. He first claims that the instructions unconstitutionally shift the burden of proof to the defendant by instructing that the jury has the duty to recommend a sentence based on whether sufficient mitigating circumstances exist to outweigh any existing aggravating circumstances. Taylor further claims that Florida’s standard jury instructions unconstitutionally minimize and denigrate the role of the jury in violation of Caldtoell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), by repeatedly advising the jury that its verdict is only advisory and informing the jury that the decision as to sentence rests solely with the court. We reject both of these assertions.

As to the first challenge, this Court has repeatedly rejected the argument that the standard penalty phase jury instructions impermissibly shift the burden to the defense to prove that death is not the appropriate sentence. See, e.g., Elledge v. State, 911 So.2d 57, 79 (Fla.2005); Sweet v. Moore, 822 So.2d 1269, 1274 (Fla.2002). Further, despite this challenge to the standard jury instruction, the trial judge in this case did not use the standard instruction. The trial court in preliminary proceedings informed the parties that she was going to use a modified instruction which informed the jury that only if the jury finds that the aggravating circumstances outweigh the mitigating circumstances could a sentence of death be recommended:

Court: I would intend to read an instruction that indicates only if the ag-gravators outweigh. In other words, it does away with the possibility of shifting the burden. You understand what I am saying?
State: I understand. But that’s the standard instruction that I go off of.
Court: The standard isn’t going to get it, okay. This is a death penalty case. As far as I’m concerned, the standard is ... it’s extreme due process. So if there is a doubt as to which way — what harm is it? That’s really what you are asking them to do. The burden really is on the State.

Since the judge at trial did not read the standard jury instruction that Taylor asserts to be erroneous, but read an instruction that required the jurors to determine if the aggravators found outweighed the mitigators in rendering an advisory sentence, we conclude that Taylor’s claim is without merit on this issue.

With regard to Taylor’s Caldwell challenge, this Court has previously held that the standard jury instruction fully advises the jury of the importance of its role and does not unconstitutionally denigrate that role. See Brown v. State, 721 So.2d 274, 283 (Fla.1998) (citing Burns v. State, 699 So.2d 646, 654 (Fla.1997), and Johnson v. State, 660 So.2d 637, 647 (Fla.1995)). This Court has also held that the decision in Caldwell is inapplicable to death penalty cases in Florida. See Combs v. State, 525 So.2d 853, 856 (Fla.1988).

Further, as with Taylor’s first jury instruction challenge, the judge in this case did not give the standard jury instruction. Rather, at the beginning of the trial and in the actual jury instruction, the judge repeatedly informed the jury that great weight would be given to its recommended sentence. Even before voir dire, the court told the prospective jurors:

Now, it is the judge’s responsibility to impose a sentence in any case, including a case involving murder in the first degree. However, however — and this is important, I want you to hear me very carefully — in a case where a jury makes a recommendation of a sentence of either life or death, it is only under very, very rare circumstances where a Court would impose a sentence other than the one recommended by the jury.
I’m going to repeat that. Although it’s the judge’s job, in any case, to sentence a defendant, in any case, in a case involving the charge of murder in the first degree where a jury is called upon to make a' recommendation as far as sentencing is concerned, it is only under the very rarest of circumstances when a judge would not follow the jury’s recommendation.

During the penalty phase, the judge instructed the jurors as follows:

As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge.
However, your advisory sentence must be given great weight by the Court in determining what sentence to impose upon the defendant. And it is only under very rare circumstances that the Court could impose a different sentence.

The argument Taylor presents has been rejected by this Court, see Brown, 721 So.2d at 283, and the trial judge did not use the standard jury instruction; therefore, we conclude that this claim is similarly without merit.

II. Ring Claims

Taylor claims that the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), invalidated Florida’s capital sentencing procedures. Taylor also argues that Ring requires that: (1) the recommendation of death be unanimous; (2) the aggravators be alleged in the indictment; and (3) the aggravators be individually found by a unanimous jury verdict.

This Court has rejected each of Taylor’s arguments in prior decisions. In Jones v. State, 845 So.2d 55 (Fla.2003), we rejected the claim that Florida’s capital sentencing scheme violates the United States Constitution under Ring. See id. at 74 (citing Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002)). Furthermore, one of the aggravating factors found by the trial court in this case was a prior conviction of a violent felony, a factor “which under Apprendi and Ring need not be found by the jury.” Jones v. State, 855 So.2d 611, 619 (Fla.2003). Finally, this Court has rejected Ring claims in direct death appeals where the recommendations for the imposition of death were unanimous, as occurred in the instant case. See Crain v. State, 894 So.2d 59, 78 (Fla.2004), cert. denied, — U.S. —, 126 S.Ct. 47, 163 L.Ed.2d 79 (2005).

Taylor’s remaining challenges have already been rejected by this Court in prior decisions. See Parker v. State, 904 So.2d 370, 383 (Fla.2005) (“This Court has repeatedly held that it is not unconstitutional for a jury to recommend death on a simple majority vote ... [and] has rejected claims that Ring v. Arizona ... requires aggravating circumstances to be individually found by a unanimous jury verdict.”); Brown v. Moore, 800 So.2d 223, 224-25 (Fla.2001) (rejecting constitutional challenge predicated on the failure to list aggravating factors in the indictment). Accordingly, we conclude that Taylor’s claims are without merit.

III. Proportionality Review

Finally, Taylor asserts that the imposition of the death sentence for the murder of Sandra Kushmer is disproportionate because it constitutes one of the least aggravated and most mitigated of crimes. To ensure uniformity in death penalty proceedings, this Court conducts a comprehensive analysis to. determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, as we attempt to afford uniformity in the application of the sentence. See Floyd v. State, 913 So.2d 564, 578 (Fla.2005). Death is a unique punishment, and it is necessary that we engage in a thoughtful, deliberate proportionality review to consider the totality of circumstances and to compare each case with other capital cases. This process-is not a comparison between the number of aggravating and mitigating circumstances. See Crook v. State, 908 So.2d 350, 356 (Fla.2005) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)). Further, despite Taylor’s assertion to the contrary, the mere absence of the heinous, atrocious, or cruel, and the cold, calculated, and premeditated aggravators is not absolutely controlling as we conduct a proportionality analysis. See Larkins v. State, 739 So.2d 90, 95 (Fla.1999).

The jury here recommended the death penalty by a vote Of twelve to zero. The trial court found such punishment to be appropriate after considering all evidence and properly weighing the aggravation with the mitigation. In sentencing Taylor to death, the trial court found the following three statutory aggravators and gave each great weight: (1) Taylor had previously been convicted of a felony involving a threat of violence to the person; (2) the murder was committed for pecuniary gain; and (3) the murder was committed while Taylor was on felony probation.

With regard to the prior violent felony, the trial court found that Taylor had committed two prior felonies that involved the use or threat of violence. At the age of seventeen, Taylor shot a woman in the neck and back through a window in her home while she was sitting at a table. Taylor’s victim attempted to call her daughter for help, but she could not speak because her throat was filled with blood. She was forced to ultimately walk across the street to a neighbor’s house to obtain assistance. In a second prior criminal incident, Taylor struck a female acquaintance in the face when she discovered Taylor burglarizing her room. In concluding that the latter crime qualified as an aggravating violent felony, the trial judge stated:

[T]his is not a run-of-the-mill, push-and-shove, get out of the way. He took his fist and shoved it in her face full force, evidently.... You know, her jaw could have been broken. Her neck could have snapped.... So as far as I’m concerned she was lucky. She was very, very lucky....

In affording this aggravator great weight, the trial court noted that “each [of these] erime[s] definitely shows that at an early age and without provocation, [Taylor] acted violently toward others. Either crime standing alone, would have caused the Court to give this circumstance great weight.” The trial court found the defense assertion that the crimes occurred twenty-seven years ago to be without major impact because “for approximately twenty-three of the last twenty-seven years [Taylor] has been confined.”

In mitigation, the trial judge found the following thirteen nonstatutory mitigating factors: (1) Taylor was under some mental or emotional disturbance at the time of the crime (some weight); (2) Taylor suffered psychological trauma from abuse and neglect during his formative years (some weight); (3) Taylor suffered psychological trauma due to deprivation in parental nurturing (some weight); (4) Taylor’s stepfather provided Taylor with no emotional or parental support (modest weight); (5) Taylor suffered from neurological impairments affecting his ability to control impulses (some weight); (6) Taylor suffered from learning disabilities, attention deficit problems, and problems with social interactions (some weight); (7) Taylor had obtained his GED in prison (minimum weight); (8) Taylor had made attempts to address and recover from his drug dependence (modest weight); (9) Taylor was a good worker and dependable employee (minimum weight); (10) Taylor agreed to be interviewed and cooperated with the police (minimum weight); (11) Taylor has a history of substance abuse dating back to his preteen years (some weight); (12) Taylor was under the influence of alcohol at time of crime (little weight); and (13) Taylor behaved appropriately during trial (little weight).

Having independently reviewed the totality of circumstances, we conclude that this case falls among the most aggravated of murders. The record conclusively demonstrates that Taylor was with Kushmer for a significant part of the evening of May 25, 2001, while he planned the crime. He drove Kushmer and Maddox home from Harry’s Bar, and then proceeded to have drinks and food with them before going to another bar with Kushmer. From these actions, it is apparent that Taylor had secured Kushmer’s trust and she considered him to be a friend. However, when they returned to the Sikes home, Taylor, who is six feet, three inches tall, incapacitated Kushmer, who was five feet, two inches tall, and weighed ninety-five pounds, by striking her on the back of the head with the butt of a shotgun. Kushmer was left unconscious outside the house as he proceeded to enter the home, savagely beat Maddox with the shotgun as he slept, and steal items from the residence. When Kushmer began to regain consciousness, Taylor could have easily fled the premises with Kushmer on the ground, injured, possibly intoxicated, and she posed no immediate threat. Instead, Taylor chose to place a gun against Kushmer’s mouth and fire a shotgun into her head. After the murder, Taylor used the stolen credit cards to buy drinks for his friends and women at bars and to buy items that were pawned for quick cash. Taylor even identified himself at a bar as business owner Bill Maddox. Taylor had a history of violent felonies and, with the other aggravation, we conclude that this senseless and brutal murder falls under the category of the most aggravated of crimes, and it is not outweighed by the mitigation found to exist.

The cases advanced by Taylor to assert that the death penalty is disproportionate are clearly distinguishable. In Voorhees v. State, 699 So.2d 602 (Fla.1997), and Sager v. State, 699 So.2d 619 (Fla.1997), which involved codefendants to the same murder, we reversed the death penalty for each of the defendants in part because we concluded that the murder resulted from a spontaneous fight. See Voorhees, 699 So.2d at 605. We noted that both the victim and the defendants had been drinking and were intoxicated at the time of the incident. See id. at 615. In reversing the sentences, we reasoned that defendant Voorhees suffered from alcoholism and had an abnormal reaction to alcohol, see id., while defendant Sager suffered from mental illness, and “there was evidence that Voorhees was the leader of the two.” Sager, 699 So.2d at 623. On the other hand, Taylor’s actions prior to the murder of Kushmer were not part of a spontaneous confrontation, but rather were the result of a formulated plan by Taylor. Further, even though both Kush-mer and Taylor had been drinking that night, the murder of Kushmer was not preceded by a spontaneous drunken fight.

The other cases upon which the defense relies are similarly distinguishable. Cf. Kramer v. State, 619 So.2d 274, 278 (Fla.1993) (reversing death penalty where “[t]he evidence in its worst light suggests nothing more than a spontaneous fight, occurring for no discernible reason, between a disturbed alcoholic and a man who was legally drunk”); Terry v. State, 668 So.2d 954, 965-66 (Fla.1996) (reversing death penalty where murder resulted from a “robbery gone bad”; concluding that “the aggravation [was] not extensive given the totality of the underlying circumstances”). Instead, the instant case is significantly more analogous to Shellito v. State, 701 So.2d 837 (Fla.1997), wherein we affirmed the imposition of the death penalty. In Shellito, an eighteen-year-old defendant “saw a man walking down the street, stopped and shook him down, and, after determining that the man had no money, shot him.” 701 So.2d at 839. In that case, the trial court found the aggra-vators of prior violent felony and pecuniary gain/murder committed during a robbery (which were merged). See id. at 840. In the instant case, the prior violent felony and pecuniary gain aggravators were also found to exist. Further, like the present case, the defendant in Shellito was on probation at the time he committed the murder. See id. at 845. Additionally, in concluding that the trial court in Shellito did not err in giving the defendant’s claims of mental illness slight weight, we noted that evidence of the defendant’s mental condition was conflicting. See id. at 844. Likewise, in the instant case, the expert testimony conflicted as to whether Taylor suffered from frontal lobe impairment or a permanent seizure disorder.

In light of the foregoing, we hold that Taylor’s death sentence is not disproportionate to other capital cases where death has been imposed.

CONCLUSION

Having received oral argument and thoughtfully considered each of the issues presented in this direct appeal, we affirm Taylor’s convictions and the sentence of death.

It is so ordered.

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

PARIENTE, C.J., concurs with an opinion, in which ANSTEAD, J., concurs.

ANSTEAD, J., concurs as to the convictions and concurs in result only as to the sentence.

PARIENTE, C.J.,

concurring.

I concur in the majority opinion and write separately to commend the trial judge for using special instructions that gave jurors a better and more complete picture of their roles in the capital sentencing process than the standard instructions. However, I believe that under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), jurors should also be told that they are the finders of fact as to aggravating circumstances that qualify a defendant for the death penalty.

The trial court’s instruction on the weight that the court would give the sentence recommendation was an improved elaboration on the standard instruction, which informs the jury that its recommendation would be an “advisory sentence” and that the final sentencing decision would rest solely with the judge. See Fla. Std. Jury Instr. (Crim.) 7.11. Echoing instructions given before voir dire, the judge acknowledged that the final sentencing decision rested with her, but added:

However, your advisory sentence must be given great weight by the Court in determining what sentence to impose upon the defendant. And it is only under very rare circumstances that the Court could impose a different sentence.

(Emphasis supplied.) This instruction correctly reflected the law concerning the jury’s role and conveys to jurors the gravity of a death recommendation. See Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (stating that jury recommendation should be given great weight and life recommendation should not be overridden unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ”).

As noted by the majority, this Court has repeatedly rejected challenges to the standard instructions based on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in which the United States Supreme Court ruled that a prosecutor’s argument to a capital sentencing jury that its decision is reviewable and not final diminished the jurors’ sense of responsibility in violation of the Eighth Amendment. However, the eases cited by the majority predate Ring. As Justice Lewis stated shortly after Ring, the standard penalty phase instructions in Florida may inaccurately reflect the Sixth Amendment role played by the jury in deciding whether the defendant lives or dies. See Bottoson v. Moore, 833 So.2d 693, 731-33 (Fla.2002) (Lewis, J., concurring in result only). In my view, and as I have stated before, trial judges should also inform jurors that they are the finders of fact on aggravating circumstances. See Globe v. State, 877 So.2d 663, 680 (Fla.2004) (Pariente, J., specially concurring) (concluding that in light of Ring, “[a]t the very least, jurors should be told that they are the finders of fact on aggravating circumstances”).

ANSTEAD, J., concurs.

      . Taylor’s middle name is Kenneth.

      . Spencer v. State, 615 So.2d 688 (Fla.1993).

      . The trial court found the following nonstat-utoiy mitigating circumstances: (1) Taylor was under some mental or emotional disturbance at the time of the crime (some weight); (2) psychological trauma due to abuse and neglect in formative years (some weight); (3) psychological trauma due to deprivation in parental nurturing (some weight); (4) stepfather provided no emotional or parental support (modest weight); (5) neurological impairments affecting ability to control impulses (some weight); (6) learning disabilities, attention deficit problems, and problems with social interactions (some weight); (7) obtained GED in prison (minimum weight); (8) attempts to address and recover from drug dependence (modest weight); (9) good worker and dependable employee (minimum weight); (10) agreed to be interviewed and cooperated with the police (minimum weight); (11) history of substance abuse dating back to pre-teen years (some weight); (12) under the influence of alcohol at time of crime (little weight); and (13) appropriate conduct during trial (little weight).

      .Although not challenged by Taylor, this Court independently reviews the evidence to determine whether sufficient evidence exists to support his first-degree murder conviction. See Sexton v. State, 775 So.2d 923, 933 (Fla.2000) ("[I]t is this Court’s independent obligation to review the record for sufficiency of evidence.”). We conclude that there was competent, substantial evidence to find Taylor • guilty of the first-degree murder of Sandra Kushmer.

      . We reject Taylor's claim that the existence of a prior violent felony aggravator should not bar the application of Ring to death sentences.

      . At trial, Dr. Scott Gallagher, who was chief resident of surgery at Tampa General Hospital and treated Maddox for his head injuries, testified that Maddox's injuries were "the most significant or severe assault to the head in a patient that I have seen survive.”