author: PER CURIAM.

text:
    Derrick Tyrone SMITH, Appellant, v. STATE of Florida, Appellee. Derrick Tyrone Smith, Petitioner, v. James R. McDonough, etc., Respondent.
    Nos. SC03-454 & SC05-100.
    Supreme Court of Florida.
    March 9, 2006.
    Rehearing Denied June 8, 2006.

      Martin J. McClain of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant/Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Derrick Smith, a prisoner sentenced to death, appeals orders of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. As explained below, we affirm the circuit court’s denial of relief and deny Smith’s petition.

I. HISTORY OF THE CASE

In November 1983, Smith was tried, found guilty, and sentenced to death for the March 1983 murder of cab driver Jeffrey Songer. In brief, Smith and his code-fendant Derrick Johnson called a cab with the intent to rob the driver. After the driver took them to the provided address and stopped the cab, all three exited the vehicle. When Songer tried to flee, Smith fatally shot him.

In Smith v. State, 492 So.2d 1063, 1067 (Fla.1986), we reversed Smith’s conviction and sentence of death, remanding the case for a new trial. Upon retrial in May 1990, a jury again convicted him of capital murder, and the court sentenced him to death. On direct appeal, we affirmed. Smith v. State, 641 So.2d 1319 (Fla.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1129, 130 L.Ed.2d 1091 (1995).

Subsequently, Smith filed in circuit court an amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised numerous claims. After a Huff hearing, the circuit court issued an order denying claims on which an evidentiary hearing was not ordered. After the evi-dentiary hearing, the court denied all remaining claims.

Smith appeals. He also has filed a petition for writ of habeas corpus. We first address the issues raised on appeal and then the claims urged in the habeas petition.

II. THE ISSUES ON APPEAL

Smith raises five claims in this appeal: (A) that the State withheld material and exculpatory evidence and knowingly presented false or misleading evidence; (B) that the circuit court erred in limiting the scope of the postconviction evidentiary hearing; (C) that trial counsel provided ineffective assistance during the guilt phase of trial; (D) that newly discovered evidence proves Smith’s innocence; and (E) that trial counsel provided ineffective assistance during the penalty phase of trial. Several of these issues contain sub-claims. We discuss each issue in turn below and affirm the circuit court’s denial of relief as to all of them.

A. The Brady and Giglio Claims

Smith contends that the State violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the state’s failure to provide defendant with favorable, material evidence violates due process), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (holding that a defendant’s due process right is violated when the State knowingly allows false, material testimony to be presented at trial). We will address each alleged violation in turn.

1. Failure to Disclose

Smith alleges the State violated Brady by failing to disclose favorable information contained in State documents related to the murder investigation. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

To establish prejudice, the defendant must demonstrate that the suppressed evidence is material. The test for materiality is whether there exists a reasonable probability'that the jury verdict would have been different had the suppressed information been used at trial. Id. at 289, 296, 119 S.Ct. 1936. In other words, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

In this case, the circuit court was correct to deny relief on Smith’s Brady claims. As we explain below, even those documents that meet the first two prongs of Strickler are not material; thus, the State’s failure to disclose them does not violate Brady.

a. Undisclosed Contact between Codefendant Johnson and Witness Jones

Smith argues that the circuit court erred in determining that a document showing that Melvin Jones, an eyewitness to the murder, and Derrick Johnson, Smith’s codefendant, met in jail was not material under Strickler. Smith claims the document demonstrates that Jones and Johnson collaborated before trial to implicate Smith as the shooter.

At retrial, Jones testified that as he walked home that evening, he witnessed the murder, and he identified Smith as the killer. Jones and his wife lived within a block of the murder scene, and both testified that within a short time after the murder, Jones arrived home and told her he had witnessed it. The previously undisclosed internal report shows that in September 1983, the prosecutor requested an investigation into whether Jones and Smith had any contact in jail. The prosecutor’s handwritten note reflected that the two were “never together” and that Johnson first saw Jones on July 11 in a holding cell before a preliminary hearing. At that time, Jones showed Johnson a map of the crime scene and said that he or it would help Johnson at trial.

After an evidentiary hearing, the circuit court determined, and in fact the State conceded, that the first two prongs of the Strickler test were met. That is, the State failed to disclose this evidence that could have been used for impeachment. The court, however, determined that Smith failed to show that this evidence casts the trial in such a different light as to undermine confidence in the verdict. We agree.

At most, Johnson’s statement acknowledging contact was of limited value to support a theory of collusion between Johnson and Jones. First, the evidence from the evidentiary hearing and trial demonstrated that Johnson and Jones did not know each other before the murder and did not discuss the facts of the case during their brief meeting. In fact, Johnson was so unnerved by the encounter with this stranger that he asked to be removed from the cell. Further, the State did not provide Jones with a deal in exchange for his testimony. In addition, at retrial, the defense challenged Jones’s credibility in light of his felony convictions and his efforts to make a deal in exchange for his testimony.

Smith’s theory of defense was that he was not in the cab that night and that Jones and Johnson were lying. The evidence at retrial, however, showed that on the day of the murder, Smith tried to sell a gun to Carolyn Mathis and later that evening told Regina Mathis that he was going to “hustle” some money because he had none. Before going out on the night of the murder, Smith showed a gun to his friend James Matthews, who in turn showed it to his live-in girlfriend, Priscilla Walker. Smith told Matthews he was going out to get some money that evening. Later that evening, Smith was at a nightclub, where Ernest Rouse saw him place a revolver under a turntable in the disc jockey booth and later retrieve it. Jones and Johnson saw the handgun and saw Smith fire the fatal shot.

After the murder, in the early morning hours, Smith returned to his friends’ home and admitted to both Matthews and Walker that he had shot someone. To Walker, he said that he shot a cab driver who would not give him any money. He told Matthews he was scared and needed a place to stay. Within twelve hours after the murder, Smith robbed two Canadian tourists, using a handgun. Finally, Smith’s uncle testified that his revolver was missing. The descriptions of the gun Smith had immediately preceding, during, and after the murder matched his uncle’s gun, which was missing. In addition, a bullet from the victim was consistent with the bullets from Smith’s uncle’s ten-year-old box of bullets.

Finally, Smith made a call from a restaurant telephone, and his fingerprint was found on the phone. A request for a cab was made on that phone at 12:28 a.m. on March 21, 1983, and Smith and Johnson were seen entering the cab that arrived shortly thereafter. Accordingly, the undisclosed evidence of a brief jail contact does not meet the materiality prong of Brady.

b. Undisclosed Police Reports

Smith argues that the State violated Brady by failing to disclose information in police reports and other documents and that the failure to disclose them undermines confidence in the outcome of the trial. Smith first alleges error regarding the State’s failure to disclose that Jones initially was listed as a suspect in the murder. The evidence showed that Jones was so listed shortly after the murder because he lived within a block of the crime scene and had outstanding warrants for his arrest. We find that the evidence' is neither exculpatory nor impeaching. See Wright v. State, 857 So.2d 861, 870 (Fla.2003) (rejecting claim that “information contained in police files concerning other possible suspects and other criminal activity in the same neighborhood” was Brady material that had to be disclosed), cert. denied, 541 U.S. 961, 124 S.Ct. 1715, 158 L.Ed.2d 402 (2004); Carroll v. State, 815 So.2d 601, 620 (Fla.2002) (“As noted by the State, the prosecution is not required to provide the defendant all information regarding its investigatory work on a particular case regardless of its relevancy or materiality.”). Further, even if it should have been disclosed, it was not material under the Strickler. The bases for Jones’s early listing as a “possible suspect” were known to Smith, and the jury was informed of them as well. Failure to disclose this information does not undermine confidence in the outcome of the trial.

Smith next argues that the State failed to disclose a police report demonstrating the police contacted Jones’s wife, Mellow Jones, in their house-to-house canvassing of the neighborhood both immediately after the murder and a few hours later, with negative results each time. He alleges that the report constituted valuable impeachment evidence. This claim was not raised below and thus is not preserved for our review. In his postconviction motion, Smith claimed generally that counsel was ineffective for failing to impeach Mrs. Jones with police reports. He did not claim the documents were not disclosed or allege facts contained in them that would serve as impeachment. The circuit court was correct to summarily dismiss this con-clusory claim.

Although Smith’s newly formulated claim is not preserved, we point out that the police report is neither exculpatory nor impeaching. Contrary to Smith’s claim, the report does not contradict the testimony of either Mr. or Mrs. Jones.

In his third subclaim regarding nondisclosure, Smith argues that the State failed to disclose a handwritten note of August 9, 1989, (after the first trial but before the retrial) on which he was entitled to question Jones at trial. Written by a prosecutor in the first trial, the note indicates that Jones telephoned her, saying that to prevent him from reuniting with his wife, his daughter had recently falsely accused him of sexually abusing her several years before. He feared arrest and wanted to take a polygraph and have his daughter take one as well. We agree with the circuit court’s denial of this claim. See Carroll, 815 So.2d at 620 (stating that “prosecution is not required to provide the defendant all information regarding its investigatory work on a particular case regardless of its relevancy or materiality”). The note does not provide exculpatory evidence or impeachment material. The note was not relevant either to the retrial or to Jones’s motivation to provide testimony.

Next, Smith asserts that the circuit court erred in determining that a prosecutor’s internal investigation synopsis dated April 4, 1983, did not have to be disclosed and was not material under Strickler. In the document, the prosecutor summarized the testimony of David McGruder, a restaurant employee who saw Smith make a phone call and get in the cab. The prosecutor noted that McGruder was unable to pick Smith out of a photopack. We find that the State should have disclosed the document, but hold this evidence was not material. See Young v. State, 739 So.2d 553, 560 (Fla.1999) (holding that information in state attorney’s notes of witness interviews constituted evidence favorable to defense subject to disclosure but was not material to Young’s murder conviction).

When the prosecutor dictated his synopsis, the police had not yet shown McGru-der a photopack actually containing Smith’s picture. McGruder did not identify Smith’s picture until April 8. That was the first photopack that included Smith’s picture. Further, at retrial Smith impeached McGruder on his tardy photopack identification, and the jury heard McGru-der’s confusing testimony regarding his uncertain identification of the photo.

Finally, Smith argues that the State did not disclose a police report about Jones’s polygraph test, which Smith could have used to impeach Jones at trial. The circuit court found that Smith did not rebut the State’s evidence that such a report was disclosed and further did not demonstrate that polygraph tests were admissible at trial as impeachment evidence. See Sochor v. State, 883 So.2d 766, 787 (Fla.2004) (“As for the polygraph tests, their results would not have been admissible at trial without the consent of both parties.”); Walsh v. State, 418 So.2d 1000, 1002 (Fla.1982). We agree with the circuit court that Smith failed to establish materiality.

2. Intentional Deception

Smith next claims that in several instances the State intentionally deceived or misled the defendant and the trier of fact in violation of Giglio, 405 U.S. at 150, 92 S.Ct. 763. “To establish a Gig-lio violation, it must be shown that: (1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Guzman v. State, 868 So.2d 498, 505 (Fla.2003). The third prong of the test is not identical to the materiality prong of the Strickler test for a Brady violation. Instead, on the issue of materiality or prejudice, the question is whether there is any reasonable likelihood that the false testimony could have affected the jury’s verdict. In other words, the State has the burden to demonstrate that the false testimony was harmless beyond a reasonable doubt.

Smith argues that the prosecutor’s investigatory notes indicating that codefen-dant Johnson and eyewitness Jones once encountered each other in a holding cell demonstrates that Jones and Johnson gave false testimony and that the State knew this and failed to correct it. Smith alleges, however, that Jones gave the perjurious testimony in his deposition taken before the first trial and that both Jones and Johnson testified falsely at the first trial. At retrial, however, neither Jones nor Johnson was questioned about even the possibility that they colluded on their testimony. Smith has thus failed to show that any of the retrial testimony was false and that the State failed to correct it. Accordingly, Smith’s Giglio claim is unsubstantiated and we affirm the trial court’s denial of relief.

In his second Giglio claim, Smith urges that the State allowed Jones to testify falsely at retrial regarding the deal Jones made with the State in exchange for his testimony and how much time he served as part of the deal. First, as the circuit court correctly found, the claim was insufficiently pled. Second, it is refuted by the record. There is no evidence that the State gave Jones a deal regarding his unrelated felony charges to obtain his trial testimony, and Smith has not shown any of Jones’s testimony to be false. Smith thus failed to establish the elements of a Giglio claim.

Finally, Smith alleges that the circuit court failed to give cumulative consideration to his Giglio claims. As explained above, Smith failed to demonstrate that any false or misleading testimony was given at retrial. We find no error in the court’s cumulative error analysis.

B. The Scope of the Evidentiary Hearing

In his second issue on appeal, Smith contends that at the evidentiary hearing, the circuit court improperly precluded him from presenting “some evidence” on some of his Brady and Giglio claims and thus was unable to conduct a cumulative analysis. This claim fails for two reasons. First, Smith’s contention is vague and conclusory. In his initial brief, Smith does not identify any evidence that was improperly excluded. Nor does he specify any claim that the court wrongfully excluded from the evidentiary hearing. Second, Smith fails to demonstrate that the circuit court erred in requiring the evidence admitted at the evidentiary hearing to be related to the issues before it. The circuit court summarily denied several of Smith’s postconviction claims and ordered an evidentiary hearing on others. Later, the court expanded the number of claims set for hearing. During the hearing, the court did not allow Smith to argue or present evidence regarding previously denied claims. Smith has not demonstrated this to be error. Accordingly, we deny relief on this issue.

C. Ineffective Assistance of Counsel in the Guilt Phase

Smith’s third issue on appeal presents several claims that defense counsel provided ineffective assistance during the guilt phase of his trial. To establish that counsel was ineffective, a defendant must cite specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the defendant must establish prejudice by “showing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Claims of ineffective assistance of counsel present mixed questions of law and fact subject to plenary review. Occhicone v. State, 768 So.2d 1037, 1045 (Fla.2000). This Court independently reviews the trial court’s legal conclusions and defers to the trial court’s findings of fact. We address below each of Smith’s ineffective assistance claims.

1. Undiscovered Witness

Smith argues that the circuit court erred in determining that he was not prejudiced by trial counsel’s failure to locate witness Vincent Gibson, also referred to as Ventura Gibson. He claims that Gibson’s testimony would have proven Jones’s eyewitness testimony was false. Jones had told police that Gibson dropped him off near his home that night, and Jones then witnessed the murder as he walked home. At the postconviction evi-dentiary hearing, Gibson testified that he did not remember taking Jones home, that he did not take Jones home, and that he would not have taken Jones home that late at night. Based on this testimony, the circuit court found that Smith met the first prong of Strickland, but not the second. We hold that Smith failed to meet either prong of the standard.

Gibson’s testimony does not prove Jones was not an eyewitness to the murder. At best, his testimony calls into question Jones’s statement of how he arrived at the crime scene — a minor, collateral issue. The fact that Jones lived within a block of the crime scene explains his presence there. Accordingly, counsel’s failure to interview Gibson on this collateral matter does not constitute a serious error under Strickland.

Further, Smith failed to establish prejudice. Using Gibson’s equivocal testimony to impeach Jones on how he got to the crime scene would be of little value. Jones told his wife that he had witnessed a murder when he arrived home shortly after the murder occurred. In fact, because of the proximity of Jones’s home to the crime scene, the police conducting a neighborhood canvass for information came to Jones’s house shortly after the murder. Further, Jones’s eyewitness testimony was not the only evidence placing Smith at the crime scene with a gun. In fact, Smith admitted having shot the cab driver to friends within hours of committing the crime. Accordingly, our confidence in the verdict is not undermined.

2. Bullet Lead Analysis

Next, Smith alleges that counsel was ineffective for failing to challenge an FBI expert’s testimony regarding bullet lead compositional analysis and that counsel was unprepared because he did not obtain his own expert. We hold that the trial court correctly denied relief.

The evidence presented at the evidentia-ry hearing amply demonstrated that Smith’s trial counsel hired an expert to examine the scientific evidence in question and to challenge it. The expert, however, found no problems with the FBI analysis. In addition, defense counsel himself researched the FBI’s scientific methodology. Finally, Smith’s expert admitted at the postconviction hearing that no research, including his own, was available to challenge the FBI evidence at the time of retrial. Accordingly, Smith failed to meet the first prong of the Strickland standard.

3. Miscellaneous Ineffectiveness Claims

Smith makes several unrelated ineffectiveness claims. Smith alleges that counsel was ineffective for failing to strike unnamed jurors for expressing bias in favor of imposing death upon conviction for first-degree murder and for failing to object to improper comments made by the State in its closing arguments. We affirm denial of these conclusory claims. Smith has presented neither facts nor argument to support the statements.

Smith also alleges that defense counsel failed to adequately investigate two potential alibi witnesses, Smith’s friends Khan Campbell and James Hawkins, and did not call these witnesses based solely on a “feeling” that they would commit perjury. This argument was not raised below and is therefore not preserved for appellate review.

In his postconviction motion, Smith alleged the different claim that counsel was ineffective because he was “laboring under a conflict of interest when he refused to present alibi witnesses at trial.” The circuit court denied the claim, holding that the issue could and should have been raised on direct appeal. The court further held that the evidence demonstrated counsel’s decision not to call the witnesses was strategic in nature and that counsel acted pursuant to a court ruling. We agree. Our review of the record reveals that the issue was thoroughly-developed at retrial and therefore could have been raised on direct appeal. Further, competent, substantial evidence supports the circuit court’s determination that counsel’s decision not to call Campbell and Hawkins was both strategic and pursuant to court order. The retrial court determined that under rule 4-3.3 of the Rules Regulating the Florida Bar counsel could not call these two witnesses.

Finally, Smith has failed to demonstrate any error. Accordingly, his claim of cumulative error merits no relief.

D. The Newly Discovered Evidence Claim

In his next issue, Smith contends that the circuit court erred in denying his claim that newly discovered impeachment evidence establishes his innocence and he is entitled to a new trial. For a conviction to be set aside based on a claim of newly discovered evidence, two requirements must be met. First, to qualify as newly discovered, the evidence must not have been known at the time of trial by the court, the party, or counsel, and “it must appear that the defendant or his counsel could not have known [of it] by the use of diligence.” Jones v. State, 591 So.2d 911, 916 (Fla.1991) (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)). Second, the nature of the evidence must be such that on retrial it would probably produce an acquittal. Id. at 915.

Smith alleged in his postconviction motion that in 2000 — ten years after his retrial — his counsel discovered Charles Hill, who would testify that Johnson, Smith’s codefendant, admitted killing the cab driver. At the evidentiary hearing, Hill testified that two years after the first trial, he and Johnson were twice in the same prison. On both occasions, Johnson confessed that he, not Smith, was the triggerman. Hill also testified that he and appellant Smith had been friends since before the 1983 murder, that they shared a longtime group of friends, that he repeatedly visited Smith in the Pinellas County jail over the years preceding the postconviction hearing, and that he was an intermediary between Smith and the mother of Smith’s child.

The circuit court denied relief, finding that (a) Smith failed to show Hill’s testimony could not have been discovered earlier through due diligence, (b) Hill’s testimony was “unworthy of belief,” (c) Hill never explained why he waited until he was contacted by postconviction counsel fifteen years later to report the confession, (d) Johnson testified at the evidentiary hearing that he never came into contact with Hill in 1985 and never claimed to be the killer, and (e) the evidence showed that Hill and Johnson were at the same correctional facility for about five hours on one occasion and less than a day on the other, and this evidence contradicted Hill’s testimony that they were together for a week on each occasion. Finally, the court determined that even if Hill were credible, Hill’s testimony was insufficient to probably produce an acquittal.

Each of the court’s factual findings is supported by the record. In addition, the court found Hill’s testimony not credible. This Court does not substitute its judgment for that of the trial court on issues of fact when competent, substantial evidence supports the circuit court’s factual findings or on issues of witness credibility. Windom v. State, 886 So.2d 915, 921 (Fla.2004) (“So long as its decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court.”). Accordingly, we affirm the circuit court’s denial of Smith’s newly discovered evidence claim.

E. Ineffective Assistance in the Penalty Phase

The trial court sentenced Smith to death after finding two aggravating factors (murder committed while attempting robbery and prior violent felony conviction) and one statutory mitigator (no significant criminal history). During the penalty phase, defense counsel presented the testimony of Smith’s relatives, two ministers, Smith’s defense counsel, and Smith himself.' Based on this testimony, the trial court also found nonstatutory mitigation regarding Smith’s record, background, and character.

In his last appellate issue Smith argues that the circuit court was wrong to deny his claim that defense counsel provided constitutionally ineffective assistance by failing adequately to investigate, prepare, and present available mitigating evidence during the penalty phase of trial. As explained above, to obtain relief on an ineffective assistance claim, a defendant must establish a serious, professional error or omission of counsel and demonstrate that as a result of the error, confidence in the result is undermined. See Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052.

After the evidentiary hearing, the circuit court denied relief, finding that neither prong of Strickland was satisfied and concluding that much of Smith’s proffered mitigation was cumulative or, if presented, would have carried little weight. Further, counsel made a tactical decision not to present the remaining evidence.

On appeal, Smith alleges that the first prong of Strickland is met by defense counsel’s testimony at the postconviction hearing that he did not know what he would have found, but he felt he “should have looked harder.” Counsel’s statement alone, however, is insufficient to establish constitutionally deficient representation. See Mills v. State, 603 So.2d 482, 485 (Fla.1992) (emphasizing that reasonableness is the standard for determining counsel’s competence and counsel’s statement that she should have investigated an issue was not persuasive); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fan-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.”). Smith has thus failed to meet the first prong of Strickland by failing to identify an error, much less a serious error committed by counsel.

Smith contends that if certain facts about his childhood and background had been presented in the penalty phase, the aggravating factors would have been “knocked out.” He lists facts such as living in poverty before his mother’s death, his difficulty adjusting to life with his aunt afterwards, and his drug habit. The record shows, however, that witnesses, including Smith, testified on each of these subjects; thus, any additional evidence would have been cumulative. Other facts not presented, such as Smith’s recent breakup with his girlfriend at the time of the murder, would have carried little, if any, weight. Finally, defense counsel testified that he specifically decided not to use the negative report of his mental health expert because it contradicted his strategy for presenting a positive picture of Smith. This was a strategic decision. See Occhicone, 768 So.2d at 1048 (“Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions.... Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”); see also Haliburton v. Singletary, 691 So.2d 466, 471 (Fla.1997) (determining that counsel, whose strategy was to humanize defendant to jury, was not ineffective for not calling expert witness to testify to defendant’s possible brain damage because expert also would testify defendant was extremely dangerous and would kill again). We agree with the circuit court that neither prong of the Strickland standard was met. Accordingly, we affirm the denial of relief on this issue.

III. THE HABEAS PETITION

Smith has filed a petition for writ of habeas corpus in which he presents the following four issues: (1) whether this Court’s disposition of Smith’s direct appeal rests upon an error of fact; (2) whether the State failed to disclose pertinent facts regarding Smith’s direct appeal; (3) whether appellate counsel was ineffective for failing to raise meritorious issues; and (4) whether Florida’s capital sentencing procedure violates Ring, 536 U.S. at 584, 122 S.Ct. 2428. We address each in turn below.

A. Error of Fact/Ineffective Assistance

On direct appeal from Smith’s conviction and sentence, this Court addressed Smith’s claim that the trial court violated Smith’s constitutional right to effective assistance of counsel by failing to inquire into Smith’s November 6, 1989, letter in which he expressed dissatisfaction with court-appointed counsel. Smith, 641 So.2d at 1320. We held that the trial court was not required to conduct a hearing because our examination of the letter revealed that Smith had not questioned the competence of defense counsel’s representation. Id. at 1321 (citing Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988)).

In his petition, Smith now argues that in a prior letter to the retrial court he did question counsel’s competence. He notes that the November 1989 letter referred to a prior letter and has attached what he claims is that letter. He alleges that the prior letter was misfiled in another case pending against him at the time of retrial and that postconviction counsel located it in a district court appellate record. Smith further alleges that the newly found letter demonstrates that the appellate record was incomplete and thus this Court’s decision was based on an error of fact. This is incorrect. Our prior decision was based on the letter that was of record. Any claim regarding this newly discovered letter is separate from the issue of the November 1989 letter and has no effect on our holding regarding it.

Alternatively, Smith contends that appellate counsel was ineffective for failing to locate this letter and raise a claim regarding it on appeal. The requirements for establishing a claim based on ineffective assistance of appellate counsel parallel the standards announced in Strickland. The “[pletitioner must show 1) specific errors or omissions which show that appellate counsel’s performance deviated from the norm or fell outside the range of professionally acceptable performance and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.” Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985). Under this standard, counsel cannot ordinarily be considered ineffective for failing to raise issues that are procedurally barred because they were not properly raised during the trial court proceedings. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Moreover, appellate counsel cannot be deemed ineffective for failing to raise non-meritorious claims on appeal. See id.

Assuming, without deciding, that this letter is genuine and was misfiled as Smith alleges, we deny the claim. Our review of the letter reveals that Smith’s statements can best be characterized as generalized complaints that are simply insufficient to warrant any inquiry. See Logan v. State, 846 So.2d 472, 477 (Fla.2003) (holding hearing unnecessary “where the defendant merely expresses dissatisfaction with his attorney”). Because the issue lacks merit, appellate counsel was not ineffective for failing to raise it in the direct appeal. In addition, appellate counsel has no duty to go beyond the record on appeal. See Rutherford, 774 So.2d at 646 (“Appellate counsel cannot be deemed ineffective for failing to investigate and present facts in order to support an issue on appeal. The appellate record is limited to the record presented to the trial court.”).

B. Failure to Disclose

In his second issue, Smith alleges that he was deprived of due process in his direct appeal because of the State’s failure to disclose facts pertinent to his direct appeal. These claims are procedurally barred because they were or should have been litigated on direct appeal or were or should have been brought in his 3.850 motion. See Wright, 857 So.2d at 874 (holding that habeas claims that “the State intentionally deceived this Court” regarding issues raised on direct appeal could have been presented on direct appeal or in 3.850 proceedings and “cannot be reconsidered in a petition for writ of habeas corpus”); Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992) (noting that “[h]abeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been ... or were raised on direct appeal”); see also Jones v. Moore, 794 So.2d 579, 586 (Fla.2001) (“This Court previously has made clear that habeas is not proper to argue a variant to an already decided issue.”). We address only one of the claims below because of Smith’s alternative argument.

On appeal, we affirmed the retrial court’s determination that the State’s failure to inform Smith that his own witness, Larry Martin, had prior felony convictions was not a discovery violation. Smith, 641 So.2d at 1321. We noted that Smith had not claimed the records were not available and stated that the State had no duty to prepare the defense’s case. Id. at 1321-22. Smith alleges that the United States Supreme Court overruled this conclusion in Banks v. Dretke, 540 U.S. 668, 675-76, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004), in which it stated that “[w]hen police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight.” In this case, however, the State did not “conceal” Martin’s prior convictions; they were a matter of public record. As we noted in our opinion, Smith never contended that the information about his witness was not readily available to him. Accordingly, we deny relief on this claim.

C. Ineffective Assistance

Smith next presents three claims of ineffective assistance of appellate counsel. As stated previously, to obtain relief on such claims, Smith must establish deficient performance and resulting prejudice. Wilson, 474 So.2d at 1163.

First, Smith contends that appellate counsel failed on appeal to argue that the trial court erred by not conducting adequate Frye inquiries into the scientific evidence presented by FBI witnesses. Trial counsel did not object to the testimony based on Frye, however, and appellate counsel cannot be deemed ineffective for failing to raise an unpreserved issue on appeal. See Rutherford, 774, So.2d at 643.

Also unpreserved for review is Smith’s allegation that appellate counsel was ineffective for failing to raise Smith’s absence from the beginning of a motion hearing and an in-chambers discussion regarding the parties’ seating arrangements at trial. In addition, Smith’s absence in these instances does not constitute fundamental error. See Orme v. State, 896 So.2d 725, 738 (Fla.2005) (stating that the right to be present at crucial trial stages does not confer a right to be present at every conference at which an issue relevant to the case is discussed). Accordingly, the claim fails both prongs of Strickland.

Smith next claims that appellate counsel was ineffective for not raising on appeal defense counsel’s refusal to call two alibi witnesses. He further asserts that the trial court erred in refusing to allow the witnesses to testify. The record shows that at retrial, Smith requested that his counsel present Khan Campbell and James Hawkins to testify. Defense counsel immediately moved to withdraw, but the trial court denied the motion, stating that the decision to call alibi witnesses is strategic. During trial, however, the issue again arose. Counsel explained that he was ethically constrained from presenting the witnesses. Because of privileged information, he knew their testimony would be perjurious. The retrial court ruled that under rule 4-3.3 of the Rules Regulating the Florida Bar counsel was prohibited from calling the pair to testify. It is clear that in refusing to present the testimony, defense counsel acted pursuant to the retrial court’s express ruling. Smith provides scant legal argument for his position, contending only that Smith had a due process right to present the witnesses. But Smith has no due process right to require his counsel to aid in the commission of a fraud upon the court by presenting perjurious testimony. See DeHaven v. State, 618 So.2d 337, 339 (Fla. 2d DCA 1993) (stating that defendant’s constitutional right to the effective assistance of counsel does not include a right to require counsel to commit a fraud on the court). Accordingly, Smith has failed to meet either prong of Strickland.

D. Constitutionality of the Death Penalty

Smith alleges that his death sentence is unconstitutional under Ring, 536 U.S. at 584, 122 S.Ct. 2428. Smith’s retrial and sentencing were held in 1990. This Court has held that Ring does not apply retroactively. Johnson v. State, 904 So.2d 400, 412 (Fla.2005) (“We therefore hold that Ring does not apply retroactively in Florida and affirm the denial of Johnson’s request for collateral relief under Ring.”). In addition, one of the aggravating factors in this case was prior violent felony conviction, a factor which does not require á jury finding. Jones v. State, 855 So.2d 611, 619 (Fla.2003) (“Further, we note that one of the aggravators found was that Jones had a prior violent felony conviction, a factor which under Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] and Ring need not be found by the jury.”). Accordingly, Smith is not entitled to relief.

IV. CONCLUSION

For the foregoing reasons, we affirm the postconviction court’s denial of relief on Smith’s 3.850 motion and we deny Smith’s habeas petition.

It is so ordered.

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

QUINCE, J., recused.

      . In the direct appeal following retrial, we addressed the following five issues and affirmed: (1) whether the trial court violated appellant’s right to effective assistance of counsel and self-representation; (2) whether the trial court conducted an adequate inquiry into an alleged discovery violation; (3) whether the trial court erred in admitting evidence of another robbery; (4) whether the trial court violated Smith’s constitutional right to confront witnesses by limiting cross-examination of a witness; and (5) whether the death sentence was disproportionate. Smith, 641 So.2d at 1320 n. 2.

      . In summary, Smith raised the following claims: (l)-(2) trial counsel was constitutionally ineffective regarding trial preparation and cross examination, and the State withheld material exculpatory evidence, presented false testimony, and knowingly misled the court; (3) newly discovered evidence rendered Smith’s conviction and sentence constitutionally unreliable; (4) the death sentence is arbitrary and capricious and violates state, federal, and international law; (5) postcon-viction counsel was ineffective; (6) the State’s failure to provide public records violated Smith's due process and equal protection rights; (7)-(8) no reliable trial transcript exists, which denied Smith's right to direct appeal; (9) the prohibitions against interviewing jurors denied Smith the effective assistance of postconviction counsel; (10)-(15) retrial counsel was ineffective during voir dire, because of a conflict of interest, and for failing to ensure Smith’s presence at critical stages of trial, to object to the State’s improper arguments at trial, and to obtain an adequate psychiatric evaluation, conduct an adequate background investigation, and present available mitigation; (16) Smith’s death sentence is fundamentally unfair, and trial counsel was ineffective for failing to object to the State's improper use of nonstatutory aggravating factors; (17) the judge and jury relied on misinformation of constitutional magnitude in violation of Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); (18) cumulative procedural and substantive errors deprived Smith of a fair trial; (19) section 119.19, Florida Statutes (2000), and Florida Rule of Criminal Procedure 3.852 are unconstitutional facially and as applied; (20) the penalty phase jury instructions unconstitutionally shifted to Smith the burden of proving death was inappropriate; (21) the penalty phase jury instructions unconstitutionally diluted the jury's sentencing responsibility; (22)-(23) the statutory aggravator of murder committed in the course of robbery or its attempt is an unconstitutional automatic ag-gravator and is unconstitutionally vague; (24) Florida’s capital sentencing statute is unconstitutional on its face and as applied; (25) Smith’s due process rights were violated by the denial of access to the state attorney’s investigative notes; (26) Florida’s capital sentencing statute is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (27) Smith’s death sentence is invalid because the indictment did not charge the elements of the offense.

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

      . Jones was arrested in June 1983 on bad check charges and other charges unrelated to the murder.

      . Smith also claims on appeal that Johnson’s polygraph test constituted valuable impeachment evidence. Smith did not make this claim in his postconviction motion, the circuit court did not address it, and it is not preserved.

      . At trial, the evidence was used to link the bullets for Smith's uncle's gun with the lead fragment found on the victim.

      . His brother and the aunt who raised him after his mother's death testified before the jury, and his sister testified in the hearing held pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993).

      . Smith alleges that the State’s failure to disclose pertinent facts undermines our determination that the evidence of Smith's commission of a robbery within hours after the attempted robbery was admissible and that Smith’s cross-examination of eyewitness Jones was not unconstitutionally limited.

      . In fact, the record shows that defense counsel knew Martin had prior convictions; he just did not know how many.

      . See Frye v. United States, 293 F. 1013, 1015 (D.C.Cir.1923) (holding that to be admissible, expert testimony must be premised on principles or techniques generally accepted in the relevant scientific field). Under Florida law, courts conduct a Frye hearing to determine whether expert scientific opinion evidence is admissible.

      .The retrial court sealed defense counsel's written statement of the confidential information. The postconviction court opened the document in determining Smith's related claim in his 3.850 motion. Defense counsel wrote in the document that Smith had revealed to him that Campbell and Hawkins were lying.


source: Caselaw Access Project

license: Public Domain

text:
    Ken E. LOTT, Appellant, v. STATE of Florida, Appellee.
    No. SC04-1814.
    Supreme Court of Florida.
    April 13, 2006.
    Rehearing Denied June 2, 2006.

      Frank J. Bankowitz, P.A., Orlando, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Ken E. Lott, a prisoner under sentence of death, appeals the circuit court’s orders denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and denying his motion for DNA testing under Florida Rule of Criminal Procedure 3.853. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As to both motions, we affirm the denial of relief.

I. FACTS AND PROCEDURAL HISTORY

Lott was convicted of first-degree murder and sentenced to death for killing Rose Conners in March 1994. We affirmed his conviction and sentence on direct appeal. See Lott v. State, 695 So.2d 1239 (Fla.), cert. denied, 522 U.S. 986, 118 S.Ct. 452, 139 L.Ed.2d 387 (1997). He then filed a motion for postconviction relief under rule 3.850, which the circuit court summarily denied. After holding oral argument, we remanded for an evidentiary hearing “on all issues raised on appeal.” See Lott v. State, 839 So.2d 698 (Fla.2003) (table). On remand, the circuit court again denied relief. Lott now returns to this Court.

The facts of the murder were as follows. On the morning of March 28, 1994, Rose Conners was found lying dead in her master bedroom. Her throat had been slashed, her larynx fractured, and her head struck with a blunt object. She had been stabbed once in the back. There were duct-tape lines on her legs, arms, and face, indicating she had been bound and gagged before being killed. Bruises on her arms matched the imprint of pliers found at the scene. She also had bruises on her thighs, abrasions on her elbows and knees, a broken fingernail, and a defensive wound on her thumb. Her panties were found, torn and soiled, in a different bedroom. Fecal material was also found on her foot and smeared on the floor. According to the medical examiner, Conners had been rendered unconscious by the combination of the blow to her head and the pressure to her neck. But the cause of death was the slashing of her neck, which partially severed her jugular vein. The medical examiner estimated that she died between 2 p.m. on Saturday, March 26, 1994, and 5 p.m. the next day.

While going through the victim’s possessions, her sister noticed that a diamond tennis bracelet was missing. In April 1994, Lott offered to sell a diamond tennis bracelet and a gold ring to his friend, David Pratt, who declined the offer. Shortly thereafter, Lott told a longtime acquaintance, Robert Whitman, how he obtained the jewelry. Needing money to buy drugs, Lott and a man named Ray Fuller had decided to rob Conners, a former customer of Lott’s lawn-care business. They went to her house in the morning. The plan was for Fuller, who did not know the victim, to tie, gag, and blindfold her, while Lott waited outside. But Conners escaped from the house and saw Lott hiding in the bushes. He caught her and brought her back inside, where he beat her and then tied her up. Lott could not find any money inside the house — only the jewelry. Lott told Whitman that Conners had begged for mercy and offered to transfer title to her car and to empty her bank account. But Lott decided to kill her because she knew him and would send him to prison. He then cut her throat with a boning knife. After dark, he returned to clean up the crime scene.

Whitman reported this confession to the Orange County sheriffs department, which devised a plan to have Whitman purchase the stolen jewelry from Lott. In a recorded telephone conversation, Whitman and Lott discussed a price for the jewelry and set a meeting time. Lott arrived early, and the police were still in the process of installing eavesdropping equipment in Whitman’s home. Whitman told Lott they were TV repairmen and asked him to come back in an hour or two. Lott returned as requested, but refused to enter the home. As a result, their meeting was not recorded. According to Whitman, however, Lott gave him the stolen jewelry for $600. When Lott drove away, deputies pursued and arrested him. They found $600 under his vehicle.

At trial, the State introduced other evidence connecting Lott to the crime. First, according to records and photographs from the automatic teller machine at the victim’s bank, a man fitting Lott’s description and driving a truck like Lott’s withdrew money from the victim’s account at 9:23 p.m. on Sunday, March 27, 1994 — only hours after the time frame of the murder. Second, coworkers of Lott’s wife Tammy testified that she wore the victim’s jewelry after the murder. Whitman also saw Tammy wearing the jewelry.

Finally, the State introduced forensic evidence from the crime scene. Three palm prints found in the victim’s home matched Lott’s palm print with a “large amount of detail.” One was on the glass around the front door. Another was on the doorjamb of the second bedroom, where the victim’s torn and soiled panties were discovered. The third was on the front edge of a sink in the master bathroom, near the victim’s body. Three footwear impressions were also found on the kitchen floor that, according to an expert witness, could only have come from the same mold as Lott’s size 9 Spalding tennis shoes. Additionally, fiber found during the sweep of the victim’s home was consistent with a Hanes' T-shirt collected from Lott’s house.

Facing this evidence, Lott focused his defense on the theory that Whitman framed him. Whitman admitted to having prior convictions and to supplying Lott with drugs. He also acknowledged that, twenty-three years earlier, Lott had informed the police about their mutual involvement in a theft, resulting in minor punishment for Whitman. The defense argued that Whitman concocted Lott’s confession as a means of getting revenge, and that he may have been the actual murderer. Lott himself did not testify at trial, nor did the defense make a serious attempt to prove an alibi. The only evidence suggesting an alibi came from Lott’s mother, who testified that Lott came to her house on Saturday afternoon and that she called him on Sunday morning. She also testified, as did Lott’s aunt, that Whitman told them just before Lott’s arrest that he had been waiting twenty years to get even with Lott.

After the jury left to consider the evidence, the trial judge asked Lott about his counsel’s performance. Lott told the judge he was satisfied with their efforts, and that they mutually agreed he would not testify at the guilt phase. Upon returning, the jury found Lott guilty of first-degree murder.

At the penalty phase, clinical psychologist Dr. Henry L. Dee testified that Lott has brain damage, which he attributed to a motorcycle accident that Lott suffered at age sixteen. Dr. Dee also testified that Lott might have psychopathy. He noted that Lott had been abused as a child, had abused drugs up to the time of the crime, and had a long history of criminal behavior. Lott’s mother also testified. She recalled that Lott suffered head injuries in a car accident at eighteen months old, as well as in the later motorcycle accident. Other witnesses characterized Lott as honest and nonviolent. Nevertheless, the jury unanimously recommended a death sentence.

At a subsequent Spencer hearing, Lott took the stand. He testified that Conners was a customer of his lawn-care business from 1992 until the end of 1993. He had entered her house “on several occasions.” Asked to explain his palm print in the victim’s master bathroom, he testified that he visited her home in February 1994 (the month before the murder) after a chance encounter at a barbecue restaurant. Con-ners could not get her car to start, so Lott drove her home to get jumper cables. While there, Conners asked Lott to look at her master bathroom to discuss how to decorate a garden window with plants. During their discussion, Lott “was leaning with my hands behind my back against the [sink counter].” Asked to explain his palm print in the other bedroom, Lott stated: “I know I haven’t been in that room.” Lott admitted to using the victim’s ATM card shortly after the murder, but claimed he obtained it from Whitman, whom he also encountered by chance. Whitman’s vehicle had broken down, just as Conners’s had, and Lott had stopped to help him. Whitman showed Lott a stolen ATM card and asked Lott to withdraw money for him. According to Lott, “at the time I used it, I didn’t know it was [the victim’s].” Lott claimed that Whitman also asked him to have his wife show off Conners’s jewelry at work, and that he “didn’t even know then that it was stolen jewelry.” As for his attempt to sell the jewelry to Whitman, Lott testified that Whitman asked him to pretend he owned the jewelry in order to deceive Mexican drug dealers who were listening to their conversation.

The trial court found six aggravators: (1) Lott had prior violent felony convictions; (2) the murder was committed during a burglary or kidnapping or both; (3) the murder was committed to avoid arrest; (4) the murder was committed for pecuniary gain; (5) the murder was especially heinous, atrocious or cruel (HAC); and (6) the murder was committed in a cold, calculated, and premeditated manner (CCP). The trial court also found six mitigators. Three were given considerable weight: (1) Lott was under extreme mental or emotional disturbance; (2) Lott’s capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired; and (3) Lott suffered from drug addiction. The court found other mitigators, as well, but gave them less weight: Lott’s performance of volunteer work (slight weight); his helpfulness to his parents (some weight); and his steady employment (some weight). Finding that the aggrava-tors outweighed the mitigators, the trial court followed the jury’s recommendation and sentenced Lott to death.

On direct appeal, we rejected all of Lott’s arguments, finding the evidence “more than sufficient to sustain Lott’s conviction of first-degree murder,” Lott, 695 So.2d at 1242, and to sustain the death penalty given “the physical torture and emotional trauma [the victim] suffered during the time leading up to her death,” among other factors. Id. at 1244.

Lott filed an amended postconviction motion in February 2001. He alleged, among other things, that his trial counsel was ineffective in interfering with his right to testify, failing to investigate His alibi, failing to challenge the State’s forensic evidence, and providing insufficient background information to Dr. Dee. The circuit court summarily denied relief. But after holding oral argument, we remanded the case for an evidentiary hearing on all issues. Lott, 839 So.2d at 698.

After the remand, Lott filed a motion for DNA testing under rule 3.853. He claimed that genetic material from the crime scene might show that another person committed the crime, or that the crime did not involve heinous, atrocious, or cruel conduct. Id. The circuit court denied the motion. It noted that “[a]t trial, the prosecutor clearly conceded that another person might have been involved in the murder.” Additionally, the court noted that “the evidence was clear that the victim was tortured in some way.” Thus, it found “no reasonable probability that any of the results [of DNA testing] would tend to exonerate him or mitigate his sentence.” Although Lott could have appealed the DNA ruling immediately under rule 3.853, he did not.

II. EVIDENTIARY HEARING

The circuit court conducted a three-day evidentiary hearing in July 2004. At the hearing, Lott testified again about his business relationship with the victim. He reiterated that, as part of his lawn-care job, he entered her house “every ninety days” to change decorative plants. He also repeated the story that he told at the Spencer hearing about his chance encounter with the victim shortly before the murder, during which they spent “ten, fifteen minutes possibly” in her master bathroom “discussing about the plants and stuff going in there.” Some parts of this story differed from what Lott said at the Spencer hearing, most notably the specific place and time of the encounter.

Lott also gave an extensive alibi for the weekend of the murder: On Saturday morning he went with his wife, Tammy, to his boss’s house and then to his parents’ house, where he spent much of the afternoon. His parents were planning to drive to an RV park in St. Augustine, so he agreed to watch their puppies. A picture of him with the puppies, purportedly from that Saturday, was introduced as evidence. That night, Lott went to Blockbuster to rent videos, which he returned early the next morning. Then he went for a drive with Tammy that lasted most of Sunday. They drove first to Palatka and then toward Starke so that Lott could show his wife a prison where he was once incarcerated. Arriving around noon, they circled the parking lot. While driving out of Starke, they stopped at a convenience store and then a fruit stand. Lott recalled speaking with the stand’s owner about fishing and Lake Okeechobee. Then they drove to St. Augustine to make sure that Lott’s parents made it to the RV park. He saw their RV, but did not stop to say hello because “they’d have had me the rest of the day.” Next they stopped to eat at a Sonny’s restaurant in St. Augustine at about 2:30 p.m., paying in cash. Finally, they took the coastline down to Daytona, getting there at 4:30 p.m., and drove home to DeLand. Lott then left home again and came upon Whitman, whose truck had broken down. Lott offered to help. As explained at the Spencer hearing, Whitman showed Lott the victim’s ATM card and asked him to withdraw some money. Contrary to his testimony at the Spencer hearing, however, Lott admitted that he knew the card belonged to Conners. Being high on cocaine, he complied with Whitman’s request. The two men were alone together from dusk until 11:00 p.m.

From the beginning of the case, Lott told his attorneys that he wanted to testify about this alibi. But his lead attorney, Joel Spector, expressed concern about Lott’s prior violent felony convictions and bad temper. He feared that allowing the prosecutor to cross-examine Lott “would be like, quote, poking a dog in a cage.” The second-chair attorney, Scott Richardson, agreed with that assessment, but nevertheless felt that Lott “needed to testify” to rebut the evidence against him.

Toward the end of trial, Spector enlisted an experienced criminal defense attorney, Raymond Goodman, to assist him in persuading Lott that testifying would be more harmful than beneficial. Apparently, Lott was sitting in the jury box when the discussion occurred. Lott recalled being “really confused” and “nervous,” but acknowledged that he ultimately agreed not to testify because he “was trying to pacify” Spector, who was “sweating bullets for some reason.” According to Richardson, who witnessed the conversation, Spector and Goodman “were browbeating” Lott into not testifying. But Spector believed that Lott voluntarily took his advice and “guaranteed that if [Lott] insisted after that that he wanted to testify, then I would have put him on.” Even Richardson acknowledged that Lott “finally said, okay, I won’t testify,” which is why Richardson did not bring the issue to the court’s attention.

Lott also accused his attorneys of failing to locate witnesses to corroborate his alibi. Six months after taking the ease, Spector had assigned an investigator “to follow up all the leads relating to the alibi.” The investigator spent nine hours on a weekday attempting to locate witnesses from the fruit stand near Starke and from the Sonny’s restaurant in St. Augustine. Upon returning, he told Spector that “basically, in a nutshell, he couldn’t find anybody that remembered seeing Kenny Lott in that area that he visited during the time or at any time, really.” Together, they decided it would be futile to continue searching. To make matters worse, Lott’s wife Tammy, the central alibi witness, “contacted [Spector] shortly before the trial and indicated that she didn’t want to testify.” While not directly refuting the alibi, she told Spector, “I’m not going to lie for Kenny anymore and I’m not going to testify.” At that point, Spector decided that the alibi had “fallen pretty flat.”

Richardson, the second-chair attorney, felt that a sufficient investigation of Lott’s alibi was never conducted. He suspected that the investigator was “padding his time,” and testified that “it didn’t seem like the enthusiasm was there as far as tracking down the witnesses.” Spector denied this characterization, testifying that they “followed up every possible lead that we had in every direction” and that “if [the investigator] came back and told me, I couldn’t find a fruit stand or I couldn’t find a waitress, that was good enough for me.”

The postconviction investigator did manage to locate one new witness: a man named Elmer Jones, who used to operate a fruit stand near Starke. Jones testified at the evidentiary hearing. He recalled speaking with Lott about fishing and Lake Okeechobee at his stand, which was only open on Saturdays and Sundays. He believed the conversation happened on an afternoon. But he could not narrow down the date. He said it could have occurred anywhere from the “early eighties up until 1996.” He recalled that Lott “had been by my place more than once” and would “come by whenever I would go out to bring the trailer in.” Lott’s mother also recalled that her son used to visit the fruit stand to buy relish “whenever he had a chance to go get it.” Lott said his mother was thinking of another stand that he visited regularly to buy relish. He claimed to have visited Jones’s stand only once. But his mother said, “I don’t think I have the two of them confused.”

Dr. Dee, the clinical psychologist who testified for Lott at the penalty phase, did so again at the evidentiary hearing. He reexamined Lott in 2000 after receiving additional background information. From those materials he learned that Lott’s car accident as an infant was more extensive than previously realized. As he explained, “I was told about it [before the penalty phase], but never got records about it or told about the extent of it.” He testified that the severity of that accident “sort of ties things together much better” by explaining Lott’s antisocial behavior before his motorcycle accident at age sixteen. But Dr. Dee denied that his overall testimony at the penalty phase would have been much different: “I don’t know that [the new information] would change my diagnosis or opinion, but it certainly bolstered it.”

After the evidentiary hearing, the circuit court denied Lott’s motion for postconviction relief, concluding that Lott “has proven neither deficient performance nor prejudice” on any of the issues. Lott now appeals the circuit court’s ruling on his 3.850 motion and also appeals its earlier ruling on his motion for DNA testing. Each motion will be addressed in turn.

III. ANALYSIS OF 3.850 CLAIMS

Lott alleges that his trial counsel was ineffective in (A) investigating his alibi, (B) preparing the clinical psychologist for the penalty phase, (C) challenging the forensic evidence, (D) investigating how Lott obtained the victim’s PIN number, and (E) interfering with his right to testify. He also alleges (F) cumulative error. We address each of these claims separately below. The standard that governs them is the two-pronged test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): first, Lott must show that his counsel’s performance was deficient — i.e., unreasonable under prevailing professional norms; and second, he must show that the deficiency prejudiced the defense — i.e., that it undermines confidence in the outcome of the trial by creating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Valle v. State, 778 So.2d 960, 965-66 (Fla.2001) (quoting Williams v. Taylor, 529 U.S. 862, 891, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). In evaluating the deficiency and prejudice prongs, we must conduct “an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings” if they are supported by competent, substantial evidence. State v. Riechmann, 777 So.2d 342, 350 (Fla.2000).

A. Alibi Investigation

The first issue is whether Lott’s trial counsel was ineffective in failing to investigate his alibi. The circuit court concluded that the alibi investigation was neither deficient nor prejudicial. We need not address the deficiency prong, however, because Lott clearly has not shown prejudice. See, e.g., Pietri v. State, 885 So.2d 245, 256 (Fla.2004) (stating that “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’ ”) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

At the evidentiary hearing, Lott presented only one new alibi witness, Elmer Jones. Lott claimed that he stopped at Jones’s fruit stand near Starke on Sunday afternoon, during the time frame of the murder, and spoke with him about fishing and Lake Okeechobee. Jones did recall speaking with Lott about those subjects. He thought the conversation must have occurred on a weekend afternoon, because his stand was only open on weekends. But he could not pinpoint the date of the conversation. It could have taken place anywhere from the “early eighties up until 1996.” Moreover, Jones testified that Lott “had been by my place more than once” and would “come by whenever I would go out to bring the trailer in,” making it even more difficult to verify whether the conversation occurred on the weekend of the murder. Lott’s mother also thought that her son visited Jones’s stand multiple times, which Lott denied.

Our confidence in the verdict is not undermined by Jones’s vague testimony. As the circuit court emphasized in finding no prejudice, Jones “could not even narrow the date down to the year in which he believed this possible encounter took place. He could in no way place Mr. Lott in North Florida at the time of the murder.” Without corroboration of a specific date and time, Jones’s testimony would have been of minimal value as alibi evidence. Moreover, even if the jury believed that Lott did speak with Jones on the Sunday afternoon in question, it still would have left plenty of room in the twenty-seven hour timeline for Lott to have committed the murder. Given that Lott’s palm prints were found inside the victim’s- home, along with shoe impressions consistent with his size 9 Spalding shoes and fibers consistent with his Hanes T-shirt, and given that he used the victim’s ATM card shortly after the murder and then tried to sell her jewelry, we remain confident in the verdict.

B.Preparing the Clinical Psychologist

Next, Lott alleges that his trial counsel was ineffective in providing background information to Dr. Dee, the clinical psychologist who examined Lott and testified during the penalty phase: The circuit court rejected this claim without discussion, because “postconviction counsel agreed that the evidence presented at the hearing failed to support the requested relief.” The record reveals that Lott did, in fact, abandon this claim. He cannot revive it on appeal. Cf. Anderson v. State, 822 So.2d 1261, 1266 (Fla.2002) (refusing to review claims under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the defendant “intentionally abandoned”). Even if Lott had preserved the claim, however, we would reject it for lack of prejudice. Dr. Dee admitted that the new information he received from the postconviction investigator would have “bolstered” his testimony, but would not necessarily have “change[d] my diagnosis or opinion.” Thus, our confidence in Lott’s sentence is not undermined.

C.Challenging the State’s Forensic Evidence

Lott also makes a conclusory allegation that his trial counsel was ineffective in failing to investigate and rebut the forensic evidence. The circuit court rejected this claim, finding neither deficiency nor prejudice. On the deficiency prong, the court noted that counsel “attacked the evidence on cross-examination by eliciting admissions that: (1) the fibers would match any Hanes brand T-shirt; and (2) the shoe print was not unique to Mr. Lott’s shoe and would match any same-sized Spalding tennis shoe manufactured using the same mold.” On the prejudice prong, the court noted that at the evidentiary hearing Lott “did not demonstrate anything else that trial counsel could or should have done to cast doubt on the relevance of the fiber and shoe print evidence.” We agree on both points. Moreover, we have repeatedly held that “conclusory allegations are insufficient to warrant relief’ on an ineffective assistance claim. Wright v. State, 857 So.2d 861, 877 (Fla.2003) (citing Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)). Accordingly, we reject this conclu-sory claim.

D.Investigating the PIN Number

Lott alleges that his trial counsel was ineffective in failing to investigate whether the victim’s PIN number and ATM card came in separate mailings. Lott presented evidence that the victim’s bank has a policy of always mailing the PIN number separately. According to Lott, this evidence would have helped rebut the State’s argument that the victim was tortured into revealing her PIN number, which he contends was the basis for the HAC aggravator. The State concedes that Lott’s attorney did not investigate this matter, but argues that whether the PIN number came in a separate mailing is irrelevant. The circuit court agreed with the State, explaining that it could “not see how it would tend to prove or disprove any material fact at trial had the defense proven that the victim’s PIN number was mailed to her in a separate envelope from her credit card, which Mr. Lott used to withdraw money following the murder.”

We agree that Lott’s claim lacks merit. Evidence that the PIN number came in a separate envelope from the ATM card would seem, if anything, to increase the odds that Lott—who obviously did have the ATM card—did not have the PIN number in writing, and thus might have tortured the victim into revealing it. Moreover, the trial court made clear in its sentencing order that the HAC aggravator was not dependent on whether Lott tortured the victim to get her PIN number:

Based on the evidence, this crime occurred over a period of time. From the minute the Defendant entered the home until the victim was choked into unconsciousness (hopefully), she suffered unspeakable humiliation, terror, and pain. She was so afraid that she defecated on herself, her panties with feces on them were removed in one bedroom, she was completely nude and died in the master bedroom. Her mouth, wrists, and ankles were taped making her totally defenseless. Plier marks were on her arm. The State suggests the pliers were used to get her to tell her attackers) her ATM number. That is a reasonable possibility and perhaps the least onerous. There is no way of knowing how long this tortuous assault lasted, but common sense dictates it could not have been brief. Once the Defendant got everything he needed from Rose Conners, he deliberately slashed her throat, and to be sure she was dead, he stabbed her in the back. These acts were definitely conscienceless, pitiless, and unnecessarily tortuous.

The trial court offered a litany of reasons why the crime was heinous, atrocious, or cruel — many of which had nothing to do with the PIN number. In fact, the trial court characterized the “possibility” that Lott tortured the victim to get her PIN number as “perhaps the least onerous” explanation of the crime, presumably because the victim would have revealed the number immediately and thereby ended the torture. Thus, disproving that “possibility” would not have prevented the HAC aggravator from being found. Moreover, the trial court found five other aggravating factors — CCP, avoid-arrest, pecuniary gain, prior violent felonies, and murder committed during a burglary or kidnapping or both — and the jury unanimously recommended a death sentence. Our confidence in this sentence has not been undermined.

E. The Right to Testify

The next issue is whether Lott’s trial counsel interfered with his right to testify. To prevail on this claim, Lott must satisfy the Strickland standard for ineffective assistance of counsel: first, he must prove deficient performance, and second, he must prove prejudice. See, e.g., Oisorio v. State, 676 So.2d 1363, 1364 (Fla.1996) (“We find that a defendant claiming ineffective assistance of counsel based on counsel’s interference with his right to testify must meet both prongs of Strickland ... in order to obtain postconviction relief.”). The circuit court found no deficiency. Although Lott “initially wanted to testify,” the circuit court determined that he made a “voluntary decision, and a joint decision” with counsel not to do so. Because there is competent, substantial evidence to support this ruling, we must affirm.

The United States Supreme Court has made clear that a criminal defendant “has the ultimate authority to make certain fundamental decisions regarding the case,” one of which is whether to “testify in his or her own behalf.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (citing Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring)). The Court has located this right to testify in the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment, see Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), and has also called it “a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Id. at 52, 107 S.Ct. 2704. Yet the Court has not specifically addressed what a defendant must do to waive the right.

We have addressed the waiver issue many times, beginning in the seminal case of Torres-Arboledo v. State, 524 So.2d 403 (Fla.1988). There, we acknowledged “a constitutional right to testify under the due process clause of the United States Constitution,” but rejected the view that it “fall[s] within the category of fundamental rights which must be waived on the record by the defendant himself.” Id. at 410-11. Rather, we held that “a trial court does not have an affirmative duty to make a record inquiry concerning a defendant’s waiver of the right to testify.” Id. at 411 n. 2. In dictum, however, we cautioned that to avoid posteonvietion disputes “it would be advisable for the trial court, immediately prior to the close of the defense’s case, to make a record inquiry as to whether the defendant understands he has a right to testify and that it is his personal decision, after consultation with counsel, not to take the stand.” Id.

Since Torres-Arboledo, “this Court has repeatedly refused to require an on-the-record waiver” of the right to testify. Brown v. State, 894 So.2d 137, 153 (Fla.2004); see also Peterka v. State, 890 So.2d 219, 235 (Fla.2004), cert. denied, - U.S. -, 125 S.Ct. 2911, 162 L.Ed.2d 301 (2005); Davis v. State, 875 So.2d 359, 368 (Fla.2003); Lawrence v. State, 831 So.2d 121, 132 (Fla.2002); Occhicone v. State, 570 So.2d 902, 905 (Fla.1990); Remeta v. State, 522 So.2d 825, 827 (Fla.1988). At the same time, we have demanded that the record at least “support a finding that such a waiver was knowingly, voluntarily, and intelligently made.” State v. Lewis, 838 So.2d 1102, 1112 (Fla.2002) (quoting Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993)).

In most cases where we have considered an ineffective assistance claim based on interference with the right to testify, we have found competent, substantial evidence to support the trial court’s finding that the defendant knowingly and voluntarily decided not to testify. See, e.g., Monlyn v. State, 894 So.2d 832, 838 (Fla.2004) (holding that “[t]he trial court’s finding, based on trial counsel’s unswerving testimony, that counsel always advised clients of this right [to testify at the penalty phase] and that he did so in this case, is supported by competent, substantial evidence”); Brown, 894 So.2d at 153 (holding that “the court’s discussion with Brown and his subsequent written waiver are more than sufficient”); Peterka, 890 So.2d at 235 (holding that, where defense counsel “advised Peterka not to testify because Peterka’s version of events were being introduced by his videotaped statement,” an ineffective assistance claim was “contrary to the evidence”); Lawrence, 831 So.2d at 131-32 (rejecting an ineffective assistance claim where counsel testified that “he had lengthy discussions with the Defendant concerning whether to testify” and “that the defendant agreed with his position that the Defendant should not testify in the guilt phase”).

The case most similar to this one is Shere v. State, 742 So.2d 215 (Fla.1999), where we also rejected an ineffective assistance claim based on interference with the right to testify. In Shere, defense counsel worried that the defendant would not be credible because he kept changing his story. They repeatedly advised him not to testify, and their investigator and the Chief Assistant Public Defender gave similar advice. In the end, however, “they allowed the defendant to make the final decision on whether he should testify in the guilt stage.” Id. at 222. According to them, “[h]e agreed that he would not.” Id. Yet a second-chair attorney testified that the defendant “did not understand the decision of whether or not to testify.” Id. The defendant claimed that counsel “pressured him into deciding not to testify.” Id. at 221. Nevertheless, we upheld the trial court’s conclusion that the lead attorney’s “advice was a reasonable, tactical decision that was in the realm of counsel’s professional judgment — not ineffective assistance of counsel.” Id. at 222; see also United States v. Teague, 953 F.2d 1525, 1535 (11th Cir.1992) (en banc) (rejecting a claim of interference with the right to testify where defense counsel “advised [the defendant] that it would be unwise and unnecessary for him to testify,” and ultimately “believed that [he] had assented or acceded to her recommendation”).

We reach the same conclusion here. Notwithstanding Lott’s initial desire to testify, both his attorneys stated that he ultimately agreed not to do so. Lott confirmed as much during a colloquy with the trial judge at the end of the guilt phase:

COURT: Now that all the jurors are out of the room, Mr. Lott, are you satisfied with the representation of your two lawyers?
LOTT: Yes, ma’am.
COURT: Did the attorneys do everything that you anticipated they would do?
LOTT: Yes, ma’am.
COURT: And was it a joint choice by all three of you that you woidd not testify in the trial?
LOTT: Yes, ma’am.
COURT: Okay. Is there anything that they did that you didn’t want them to do?
LOTT: No.
COURT: So you’re satisfied with everything they’ve done?
LOTT: Yes, ma’am.

(Emphasis added). In light of this competent, substantial evidence, we must defer to the circuit court’s factual finding that Lott voluntarily agreed with counsel’s recommendation not to take the stand.

A separate question is whether Spector’s advice to Lott, even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged Lott from testifying. As the circuit court explained below, there were “many identifiable risks of placing Mr. Lott on the witness stand.” Spector identified three in particular: (1) there were no witnesses able to corroborate Lott’s alibi, because his wife Tammy did not want to “lie for Kenny anymore” and because the investigator could not locate any witnesses in north Florida; (2) Lott has a bad temper; and (3) Lott has a significant criminal history, including three armed robbery convictions and one attempted escape conviction. In retrospect, perhaps Lott’s testimony would have been worth these risks. But we have explained that “[t]o fairly assess counsel’s performance, the reviewing court must make every effort to eliminate the ‘distorting effects of hindsight’ and to evaluate the conduct from counsel’s perspective at the time.” Elledge v. State, 911 So.2d 57, 67 (Fla.2005) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052), cert. denied, - U.S. -, 126 S.Ct. 1173, 163 L.Ed.2d 1141 (2006). At the time of trial, Lott’s counsel did consider the possibility of advising Lott to testify, but gave the opposite recommendation due to reasonable, strategic considerations. Thus, his performance cannot be considered deficient. See, e.g., Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (explaining that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct”).

F. Cumulative Error

Finally, Lott alleges cumulative error. Even when considered cumulatively, however, Lott’s ineffective assistance claims do not undermine our confidence in the verdict or sentence. We therefore reject this claim as well.

IV. ANALYSIS OF 3.853 CLAIM

After we remanded for an eviden-tiary hearing, Lott filed a motion for DNA testing under rule 3.853 of the Florida Rules of Criminal Procedure. The circuit court denied the motion on December 4, 2003. Under the rule, “[a]n appeal may be taken by any adversely affected party within 30 days from the date the order on the motion is rendered.” Fla. R.Crim. P. 3.853(f). Lott, however, waited until the circuit court denied his 3.850 motion and then appealed both rulings together on September 2, 2004. The State contends that Lott’s appeal of the DNA ruling is untimely. We decline to construe rule 3.853 so strictly. When a prisoner has a pending motion for postconviction relief under rules 3.850 or 3.851, and in that context moves for DNA testing, the most efficient use of judicial resources will normally be to appeal all the circuit court’s rulings upon appeal from the final order determining the postconviction motion. In analogous circumstances, the rules allow parties to raise issues addressing nonfinal orders upon appeal of the final order. Cf. Fla. R.App. P. 9.110(k) (stating that “partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case”); Fla. R.App. P. 9.130(g) (stating that the rule allowing review of certain non-final orders “shall not preclude initial review of a non-final order on appeal from the final order in the cause”). To promote judicial efficiency, we grant Lott and others in his position the same choice.

On the merits, we agree with the circuit court that Lott is not entitled to DNA testing. Under rule 3.853, the defendant must begin by “show[ing] that physical evidence that may contain DNA still exists.” Fla. R.Crim. P. 3.853(c)(5)(A). Then, as we have explained, “[i]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Robinson v. State, 865 So.2d 1259, 1265 (Fla.), cert. denied, 540 U.S. 1171 (2004). Lott has not made a sufficient showing. He requested DNA testing of (1) hairs found in the victim’s shower drain and bed pillow; (2) the victim’s fingernails; (3) the pliers found at the scene; and , (4) the sheets, pillows, panties, vaginal and anal swabs of the victim, and fecal matter, primarily in search of sperm. But nothing in the record suggests that the pliers, which were dusted for fingerprints, or the victim’s fingernails, which were scraped and sent for analysis, contain any genetic material that could be submitted for testing. Lott is merely speculating about these items. Additionally, as Lott conceded in his motion, previous tests did not indicate the presence of sperm at the crime scene. Lott is not entitled to DNA testing to confirm its absence. As for the hairs found in the victim’s shower drain and on her pillow, Lott has not offered any reason to suspect they are specifically connected to the murder, as opposed to being hairs left behind by normal guests, which any house would have. He certainly has not shown “a reasonable probability that [he] would have been acquitted or would have received a lesser sentence” if they had been tested. Fla. R.Crim. P. 3.853(c)(5)(C).

We have repeatedly cautioned that “[r]ule 3.853 is not intended to be a fishing expedition.” Cole v. State, 895 So.2d 398, 403 (Fla.2004) (quoting Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004)). For example, in Hitchcock, we affirmed the denial of a rule 3.853 motion where “in [the defendant’s] motion, only a general reference and identification of the type of item was given, without any other relevant information.” 866 So.2d at 27. The defendant in that case merely listed a number of items of clothing, but did not indicate “whether those clothes belonged to the victim, the defendant, or [another person] ... or whether there is any indication from evidence logs, crime lab reports, or trial testimony that any bodily fluids may exist on these items.” Id. at 27 n. 2. In this case, too, the defendant has embarked on a fishing expedition for genetic material whose existence and potential relevance is pure conjecture. We therefore affirm the circuit court’s ruling that Lott cannot obtain DNA testing based on the speculative allegations in his motion.

V. CONCLUSION

For the reasons explained above, we affirm the denial of Lott’s postconviction motion under rule 3.850. We also affirm the denial of his motion for DNA testing under rule 3.853.

It is so ordered.

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

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

      . The guilt phase issues on direct appeal were (1) the sufficiency of the evidence; (2) whether Whitman’s brother should have been permitted to testify regarding Whitman’s reputation for truthfulness; (3) whether Lott's mother should have been permitted to testify that Lott told her he had done lawn work for the victim; (4) the admission of crime scene photographs; and (5) whether the trial court erred in denying Lott's motion for sanctions for violations of the rule of witness sequestration. Lott, 695 So.2d at 1242-43. The penalty phase issues were (1) the applicability of the HAC aggravator; (2) the applicability of the CCP aggravator; (3) whether the trial court erred in admitting letters from the Department of Corrections regarding a prior conviction; (4) whether the trial court improperly admitted victim impact evidence; (5) whether the trial court erred in allowing certain cross-examination of Lott’s stepfather; (6) the constitutionality of section 921.141, Florida Statutes (1993); and (7) the proportionality of the death sentence. Lott, 695 So.2d at 1244-45.

      . Lott criticizes the timing of this colloquy, claiming it happened too late in the trial. But we have never required that defendants make any waiver on the record, much less that they make it before a particular point in the proceedings.