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    Guerry Wayne HERTZ, Appellant, v. STATE of Florida, Appellee.
    No. SC05-59.
    Supreme Court of Florida.
    June 22, 2006.
    Rehearing Denied Oct. 27, 2006.

      Baya Harrison, III, Monticello, FL and Clyde M. Taylor, Jr., Tallahassee, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   PER CURIAM.

Guerry Wayne Hertz, a prisoner under sentence of death, appeals the circuit court’s order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the denial of relief.

FACTS AND PROCEDURAL HISTORY

Guerry Wayne Hertz was convicted of the first-degree murders of Melanie King and Robin Keith Spears, burglary of a dwelling while armed' with a firearm, armed robbery with a firearm, arson of a dwelling, and use of a firearm in the commission of a felony. See Hertz v. State, 803 So.2d 629, 637 (Fla.2001). The jury, by a vote of ten to two, recommended the death penalty. See id. Following that recommendation, the trial judge sentenced Hertz to death for each murder. In its opinion affirming the convictions, this Court detailed the facts surrounding the murders of King and Spears, as follows:

At approximately 11 p.m. on July 26, 1997, Hertz and his codefendants [Jason Looney and Jimmy Dempsey] left an acquaintance’s house on foot within walking distance from the victims’ home. All three men were armed with guns. A resident who lived about 500 yards from the victims testified that Hertz appeared at her door at about 2 a.m. asking to use her phone because “his truck had broken down.” When she refused, the trio continued down the road towards the victims’ home and, upon seeing the victims’ black Mustang, Looney said, “There’s my car right there. That’s the one I want.”
Dempsey and Hertz went to the victims’ front door as a decoy and asked if they could use the phone. King provided them with a cordless phone, and Dempsey feigned making a phone call. When Dempsey attempted to return the phone, Hertz pointed his gun at King and forced his way in. Looney then entered and pointed his rifle at Spears. Spears and King were bound and gagged with duct tape and placed face down on their bed. Hertz and his code-fendants removed a significant amount of the victims’ property, including a VCR, a television, jewelry, furniture, and CDs, and loaded the victims’ belongings into the victims’ two vehicles. Looney also found approximately $1500 of the victims’ money in an envelope, which was ultimately divided equally among the three.
Hertz and Looney concluded that they could,leave no witnesses and informed Dempsey of their decision. Dempsey said Hertz and Looney then poured ac-celerants throughout the victims’ home. All three men, still armed, went to the bedroom where the victims were bound, side-by-side, face down on their bed. When they entered the back bedroom, King said that she would “rather die being burnt up than shot.” She stated, “Please, God, don’t shoot me in the head.” Hertz replied, “Sorry, can’t do that,” and then he proceeded to open fire; Looney followed and then Dempsey. The victims died as a result of the gunshot wounds.
Subsequent to the shootings, the victims’ home was set ablaze. Hertz drove away in the victims’ white Ford Ranger, and Looney drove the victims’ black Ford Mustang, with Dempsey as a passenger. According to Dempsey, the whole episode at the victims’ home lasted about two hours. The trio proceeded to Hertz’s house and unloaded the stolen items and divided up the money. Two employees at the Wal-Mart in Tallahassee testified that the three men made purchases at the store at around 5 a.m. the morning of the murders, before “showing off’ their new vehicles, i.e., a black Mustang and a white Ford Ranger, to both of the employees. A Wal-Mart receipt for a clothing purchase was later found in the victims’ Mustang, corroborating the employees’ testimony.
Hertz and his codefendants made their way to Daytona Beach Shores where, later that day, they were involved in a pursuit and shootout with police. Looney and Dempsey were arrested after abandoning and fleeing from the victims’ black Mustang. Hertz abandoned the victims’ Ford Ranger after being shot, and he paid a cabdriver $100 to drive him to his aunt’s house in St. Augustine. Hertz was arrested that same day in St. Augustine, and victim Spears’ .9mm gun was recovered from Hertz’s bag.

Id. at 635-36.

The Competency Hearing

Prior to trial, defense counsel Robert Rand (“Rand”) filed a motion to declare Hertz incompetent to stand trial. This motion was based on the inability of Hertz to recall details of the events preceding his arrest or to understand the pretrial process, and on the opinions of two mental health experts, forensic psychologist Dr. Michael T. D’Errico and neuropsychologist Dr. Joseph Sesta, that Hertz was incompetent to stand trial. On April 7, 1999, a competency hearing was conducted. See id. at 640. Among the witnesses presented by the defense at the competency hearing were two mental health experts, Dr. D’Errico and Dr. Sesta, both of whom provided interpretations of various psychological tests administered to Hertz. See id. Subsequent to the hearing, the trial court issued an order declaring Hertz competent.

The Guilt Phase

The evidence presented during the guilt phase of Hertz’s trial was summarized in this Court’s opinion affirming his convictions on direct appeal, as follows:

A firearms expert with FDLE testified that one of the bullets recovered from the area of the victims’ burned bed was fired from the .380 Lorcin handgun recovered from Looney at the time of his arrest in Daytona Beach, i.e., the same handgun owned by Keith Spears and used, according to Dempsey, by Hertz to shoot the victims. The other bullet was fired from a .30 caliber carbine rifle, not inconsistent with .30 caliber rifle used by Looney to shoot the victims, and later recovered in the victims’ Mustang. A roll of duct tape, Looney’s wallet with $464, and Dempsey’s wallet with $380 were also found in the Mustang. A fingerprint analyst with FDLE analyzed latent fingerprints taken from the Mustang and concluded that Hertz and his codefendants had all touched the car. The chemist found evidence of various accelerants on items of clothing found in the Mustang. In addition, a law enforcement investigator with the State Fire Marshal’s Office testified that the kind of damage that was done by the fire does not happen unless an accelerant is used.
The state medical examiner testified that the bodies were severely burned. He graphically detailed the condition of the bodies as depicted in the photographs: the legs were burned off below the knees, the hands were burned to nubs, the bones of the arms were fractured by the fire, and the skulls were burned partially away. The victims had to be positively identified by dental records. The medical examiner also testified that there could have been other injuries that were not detected due to the extensive burns.
King was shot at least two times in the head, which caused her death. However, the medical examiner was not able to trace the path of the bullet because the skull was burned away. He testified that it was possible that other bullets struck the body, which could not be determined because of the fire. King lived one to two minutes after she was shot. However, there was no soot in the trachea, indicating that she was not alive when the fire started. Spears was shot at least one time in the head, which caused his death. The bullet went in the back of the neck and exited above the right eye. Spears also lived one to two minutes after he was shot, and again, no soot was discovered in his trachea, meaning that he was dead at the time of the fire. The defense did not present any evidence.

Id. at 686-37.

The Penalty Phase

At the penalty phase, the State presented three witnesses. Reginald Byrd, a probation officer, provided evidence that Hertz was in violation of his felony probation status on July 7, 1997, when he committed the murders in the instant case. Karen King and Janet Spears, the mothers of victims Melanie King and Keith Spears, respectively, both read previously prepared victim impact statements into the record.

The defense presented six witnesses: four relatives of Hertz, Dr. D’Errico, a mental health expert, and Donnie Williams, a Wakulla County deputy sheriff. Family members presented evidence directed to many aspects of Hertz’s background. Dr. D’Errico diagnosed Hertz as having Attention Deficit Hyperactivity Disorder (“ADHD”) and discussed other results of his psychological testing. The defense also presented evidence in a thick book of background materials to portray Hertz’s life.

In entering a sentence of death, the trial judge found seven individual aggravating factors: (1) that the murders were committed by a person convicted of a felony and who was on felony probation; (2) that the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person; (3) that the murders were committed while the defendant was engaged in the commission of a burglary, arson, and robbery; (4) that the murders were committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (5) that the murders were committed for financial gain; (6) that the murders were especially heinous, atrocious or cruel (“HAC”); and (7) that the murders were committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification. See id. at 637.

In mitigation, the trial court found two statutory mitigators: (1) an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law (some weight); and (2) his age (moderate weight). With respect to nonstatutory mitigation, the trial court found (1) a difficult childhood (significant weight); (2) no significant criminal history, no history of violence, and that Hertz posed no problems since his incarceration (marginal weight); (3) Hertz showed remorse and cried during some of the testimony and when he made his statement to the court (moderate weight); (4) society would be adequately protected if Hertz were given a life sentence without the possibility of parole (no weight); (5) codefendant Dempsey received a life sentence following a plea (significant weight). See id. at 637-38.

In imposing the sentence of death, the trial judge noted that “[a] review of all the evidence causes the evidence of mitigation to pale into insignificance considering the enormity of the proven and appropriately considered aggravating factors.”

Direct Appeal

On direct appeal, this Court affirmed the murder convictions and death sentences, denying all appellate claims, none of which are relevant to the instant postcon-viction appeal. See Hertz, 803 So.2d at 654. In June 2002, certiorari was denied by the United States Supreme Court. See Hertz v. Florida, 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 846 (2002).

Rule 3.851 Proceedings

On June 30, 2003, Hertz filed a rule 3.851 motion for postconviction relief. On March 9, 2004, Hertz filed an amended rule 3.851 motion which elaborated on his original claim that trial counsel was ineffective at the penalty phase for failing to present all available mental health mitigation. On March 11, 2004, the trial court held a Huff hearing to determine whether an evidentiary hearing on any collateral claims was warranted. In a post-Huff hearing filing, the State conceded that Hertz was entitled to an evidentiary hearing on the issue of trial counsel’s failure to present all available mental health mitigation at the penalty phase.

At the July 27, 2004, evidentiary hearing, Hertz presented Dr. Bill Mosman, a forensic psychologist who testified that Hertz had organic brain damage and was functioning at the mental age of fourteen. Dr. Mosman explained that this conclusion was based in large part on a 39-point differential in performance and verbal IQ scores when Hertz was tested. Cross-examination revealed that Dr. Mosman had reviewed neither the competency hearing, the guilt phase trial transcripts, nor the defense exhibits from the penalty phase. Dr. Mosman admitted that his opinion regarding Hertz’s brain damage and mental age was simply a different interpretation of the test results from that offered by a defense witness, Dr. D’Errico, during the penalty phase of the trial. Subsequent to the evidentiary hearing, the trial court denied the claims advanced by Hertz for postconviction relief based in large part on the determination that the trial court did not find Dr. Mosman to be a convincing witness. This appeal followed.

ANALYSIS

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that

[a] claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Downs v. State, 453 So.2d 1102 (Fla.1984). A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of. the test when it is clear that the prejudice component is not satisfied.

MaxWell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). The alleged ineffective assistance of counsel claim is a mixed question of law and fact, subject to plenary review based on Strickland. See Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999). Under this standard, the Court conducts an independent review of the trial court’s legal conclusions, while giving deference to the factual findings of the trial court. See id. at 1032-33.

A trial court’s determination of the credibility of witnesses and the weight to be given the evidence will be provided great deference. We have explained that “Mo long as the [trial court’s] 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.” Arbelaez v. State, 898 So.2d 25, 32 (Fla.2005) (quoting Sochor v. State, 883 So.2d 766, 781 (Fla.2004)). This deference is a recognition of “the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.” Porter v. State, 788 So.2d 917, 923 (Fla.2001).

There is a presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A fair assessment of attorney performance requires that efforts 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. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The defendant carries the burden to overcome the presumption of effective assistance and that, under the circumstances, the challenged action could be considered sound trial strategy. See id. at 689, 104 S.Ct. 2052. Our review of counsel’s performance is highly deferential. See id.

The Diminished Capacity Mitigator

Hertz alleges that the trial court did not give significant weight to his diminished capacity to appreciate the criminality of his conduct factor because trial counsel failed to present the testimony of Dr. Sesta as to brain dysfunction. Specifically, Hertz asserts that had Dr. Sesta’s findings of frontal lobe deficit been presented, the trial court and jury would have realized that the capacity of Hertz to control his behavior was substantially impaired as a result of this condition. Hertz points to Dr. Sesta’s testimony at the competency hearing, wherein the doctor explained that the frontal lobe of the brain “is what separates the behavior of a five year old from the behavior of a thirty year old. It essentially provides the breaks for human behavior.” Hertz argues that the failure of counsel to bring out this powerful evidence during the penalty phase constituted ineffective assistance of counsel.

In the sentencing order, the trial court found that the capacity of Hertz to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was a mitigating factor. With respect to the decision to afford the mental problems only “some weight,” the trial court explained:

With respect to the defendant’s mental status and his attention deficit disorder, the Court is reasonably convinced that the defendant has this disorder which has been so diagnosed but finds that his condition was adequately attended by medication. It is also noted that in two competency hearings, this Court as well as another circuit court in Florida have found the defendant was competent and have so ruled. The evidence does not support any finding or conclusion that the capacity of the defendant to conform his conduct to the requirements of law and to appreciate the criminality of his conduct was substantially impaired, accordingly, while entitled to some weight it was not entitled to moderate weight.

As mentioned above, the weight to be given to the evidence is a trial court decision entitled to reasonable deference on appeal. See Arbelaez, 898 So.2d at 32.

It is clear from the record that trial counsel presented during the penalty phase ample evidence of the mental health problems and history Hertz experienced. His mother and grandmother both testified that Hertz had been diagnosed as having Attention Deficit Hyperactivity Disorder (“ADHD”). Evidence was presented that his behavior improved markedly when he was taking the Ritalin the doctors prescribed but he was not consistently provided the medication. In addition to lay testimony, Rand also presented expert testimony from Dr. D’Errico. After personally examining Hertz and reviewing all of Ms records, both mental health and otherwise, Dr. D’Errico agreed that the ADHD diagnosis was correct. Dr. D’Errico also addressed cognitive testing that he performed which revealed a 39-point differential in performance and verbal IQ scores. In explaining the significance of this disparity, Dr. D’Errico was of the opinion that although this point differential would “suggest to me that some brain damage had occurred ... [a]f-ter a neuropsychological evaluation ... it was apparent that the difference was due to developmental reasons ... [because] he was raised in a home where spoken language was not used.” (Emphasis added.)

The current assertion that the testimony of Dr. Sesta would have provided more compelling evidence as to the diminished capacity mitigator is refuted by the record. Although Dr. Sesta did testify during the competency hearing with regard to “flagrant deficits in frontal [lobe] functions,” he later elaborated that the 39-point IQ differential on which he based this conclusion represented “a neurodeficit developmental disorder ... consistent with in part with some of the defendant’s upbringing in a nonverbal household, being raised by deaf parents, as well as the presence of other forms of psychiatric disorder, ADHD and learning disability.” On cross-examination, Dr. Sesta testified that he found no indication of retardation, borderline intellectual functioning, or Axis I major mental illness. Dr. Sesta described Hertz as having a “cognitive disorder not otherwise specified which is — which described the functioning of his brain that we discussed earlier with his poor verbal skills versus intact visual skills and the frontal lobe deficits that he had.” In the order denying rule 3.851 relief, the trial court stated:

The record reflects that Dr. Sesta, a neuropsychologist, did not find brain “damage.” ... He found “no indication of neurological disease or trauma”; no indication of “retardation,” or “borderline intellectual functioning”, or any major Axis I mental illness.... [H]e gave him a diagnosis of “cognitive disorder not otherwise specified” to describe the functioning of the defendant’s brain with very poor verbal skills and frontal lobe deficits that he had found. His final analysis was that the defendant had a “neurodeficient developmental disorder.” He interpreted this “as being consistent with in part some of his upbringing in a non-verbal household, being raised by deaf parents, as well as his ADHD and learning disability which indicated some brain dysfunction.”

However, even if the trial court’s assessment of Dr. Sesta’s final diagnosis is in dispute, trial counsel cannot be faulted for failing to call Dr. Sesta as a witness at the penalty phase because he had a valid strategic reason for his decision.

Rand testified at the postconviction evi-dentiary hearing that he did not call Dr. Sesta as a witness at the penalty phase based on his weakness during cross-examination at the competency hearing. In the order denying rule 3.851 relief, the trial court stated:

After seeing what happened to Dr. Sesta on cross examination ... [Rand] decided that the doctor was not a good witness and not that helpful. Among other things, Dr. Sesta testified as to possible frontal lobe' damage on direct examination, then essentially backed off that testimony upon cross examination.

Additionally, Dr. Sesta admitted on cross-examination that Hertz could “certainly” be faking his test results by performing well when he chose to do so.

This Court has held 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.” Howell v. State, 877 So.2d 697, 703 (Fla.2004) (quoting Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000)). In the instant case, Rand made a strategic decision that he would not use Dr. Sesta as a witness at the penalty phase because Dr. Sesta had not been a good witness at the competency hearing. Rand was of the view that on cross-examination during the competency hearing, Dr. Sesta had retracted his conclusion that the IQ score differential indicated that Hertz had frontal lobe damage. Rand’s decision is supported by the trial court’s observation that Dr. Sesta did not find any brain “damage.” The poor performance of Dr. Sesta on cross-examination during the competency hearing and the trial court’s conclusion that Dr. Sesta found no brain damage demonstrate that the decision to not use Dr. Sesta as a witness at trial was clearly within “the broad range of reasonably competent performance” contemplated by the Supreme Court in Strickland and does not undermine our confidence in the outcome of the proceedings below. See Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052.

The Extreme Mental Illness Mitigator

Hertz alleges that the testimony of forensic psychologist Bill Mosman at the postconviction evidentiary hearing demonstrates that trial counsel clearly failed to properly develop and present the statutory mitigator of extreme mental or emotional disturbance. Dr. Mosman testified that based on interviewing Hertz and reviewing both his mental health and other records, it was his opinion that Hertz suffered from incurable organic brain damage which had a genetic origin. Dr. Mosman agreed with Dr. Sesta’s assessment that the large point differential in Hertz’s verbal and performance IQ scores indicated frontal lobe damage. It was Dr. Mosman’s opinion that there was no reason, strategic or otherwise, for not presenting evidence of this compelling mitigator.

Although Dr. Mosman’s firm stance that the test results indicate brain damage in the frontal lobe could have benefited Hertz if presented during his penalty phase, this Court has repeatedly emphasized that a reasonable investigation into mental health mitigation “is not rendered incompetent merely because the defendant has now secured the testimony of a more favorable mental health expert.” Asay v. State, 769 So.2d 974, 986 (Fla.2000); see also Davis v. State, 875 So.2d 359, 371 (Fla.2003) (“[T]rial counsel was not deficient where the defendant had been examined prior to trial by mental health experts and the defendant was simply able to secure a more favorable diagnosis in postconviction.”) (citing Asay). In this case, the trial court stated that defense counsel

conducted a very thorough investigation of the defendant’s entire life, encompassing all areas of his upbringing, including discussing the defendant’s hardships, difficulties and troubles with family members and reviewed and obtained all schooling and medical records, psychological history, disciplinary history, and criminal history....
[Counsel] made a strategic and reasonable decision as to presenting this information through the mental health expert he utilized.

Rand’s assistance is not considered ineffective simply because Hertz was able to locate a mental health expert to testify more favorably at the postconviction evidentiary hearing.

Additionally, even if the alleged additional mitigation that Dr. Mosman found could have been discovered by Rand and presented at the penalty phase, the trial judge determined that Dr. Mosman’s testimony at the evidentiary hearing as to both the asserted brain damage and that Hertz was functioning at the mental age of a fourteen-year-old was not credible. In the order denying collateral relief, the trial court stated:

There is no evidence in the record to lend weight that any mental age or extreme mental disturbance mental health mitigator asserted by Dr. Mosman, as either statutory or nonstatutory, contributed to the defendant’s actions in committing his crimes. Dr. Mosman’s testimony likely would have been entitled to insignificant weight had it been presented in the penalty phase. His asserted additional statutory mitigators are without basis in the record and clearly conflict with the evidence of the defendant’s conduct and behavior presented during trial. He was not familiar with the significant facts and circumstances or the evidence presented during the guilt phase and his assertions of mitigation were somewhat conjectural. Dr. Mosman essentially presented no other supportable credible mitigation that would have been found that was not presented by trial counsel through the expert and lay witnesses presented. The defendant has simply presented an additional mental health expert with different conclusions than those of the expert relied upon by trial counsel. There has been no convincing demonstration that the evaluation of trial counsel’s expert was insufficient. The penalty phase jury was aware of most, if not all, of the mitigation regarding the defendant’s background and childhood.

This Court has established that it will not substitute its judgment for that of a trial court on the credibility of witnesses if the trial court’s judgment is supported by competent, substantial evidence. See Porter, 788 So.2d at 923. The trial court order here describes the evidence as follows:

Upon cross examination, Dr. Mosman admitted that he had not read the defendant’s guilt phase trial transcripts but had read only the penalty phase....
He also admitted that he had not read the defendant’s competency hearing transcripts during which three doctors: Dr. D’Errico, Dr. Sesta, and Dr. Conger, testified, nor had he read the competency hearing evaluation. He talked to Dr. Sesta and reviewed his report, but had not talked to Dr. D’Errico or Dr. Conger, nor read their reports....
[He] further acknowledged that he had not talked to the defendant’s trial attorney, Robert Rand, with respect to his presentation of the defendant’s mitigation, had not read defense counsel’s argument, had no knowledge of and had not read the exhibit introduced into evidence and argued by Mr. Rand during the penalty phase which compiled a complete, detailed and extensive history of the defendant’s background and all of his records, and also conceded that he did not know everything that the defendant’s trial attorney presented.

These circumstances support the trial court’s determination that Dr. Mosman’s testimony would have been given insignificant weight even if it had been presented at trial.

Hertz relies on State v. Lara, 581 So.2d 1288 (Fla.1991), as supporting his assertion that Rand was ineffective for failing to present evidence of extreme emotional disturbance. Lara is inapposite here because it is clearly distinguishable. In Lara, this Court stated that defense counsel “failed to present testimony of mental health experts regarding the defendant’s diminished mental capacity” and “should have investigated and prepared [mental health mitigation] for presentation to the jury as evidence in mitigation at penalty phase.” Lara, 581 So.2d at 1289 (quoting trial court’s order). In the instant matter, the trial court specifically concluded that

[cjounsel did conduct a very thorough and reasonable investigation of mental health mitigation prior to trial and made a strategic and reasonable decision as to presenting this information through the mental health expert he utilized.

Based on this record, we conclude that defense counsel did perform a reasonable investigation into mental health mitigation and that the alleged additional mental health mitigation presented in Dr. Mos-maris testimony deemed unconvincing by the trial court does not undermine our confidence in the proceedings below.

The Statutory Age Mitigator

Hertz asserts that his attorney failed to properly present the statutory age mitigator because counsel did not emphasize that the mitigator is intended to encompass both emotional and mental age as well as chronological age. Dr. Mosman testified that Hertz had a mental age of fourteen. Hertz asserts that the State did not contest Dr. Mosmaris opinion on this point and instead attempted to discredit him by directing the Court to another recent capital case in which Dr. Mosman opined in postconviction proceedings that the defendant’s mental age was also fourteen. The trial court found Dr. Mosmaris testimony with regard to the mental age of the defendant to be unpersuasive and concluded that there was no evidence in the record which would lend weight to the notion that any mental age mitigator was applicable.

A statutory age mitigator was found by the trial court and given “only moderate weight” “in light of all the facts and circumstances” surrounding the crime. Rand testified at the evidentiary hearing that Dr. Mosman’s testimony in postconviction was the first he had heard of Hertz having a mental age of fourteen. This Court has stated that trial counsel is not “ineffective for failing to pursue every possible defense based on a particular mental condition.” Jackson v. Dugger, 547 So.2d 1197, 1200 (Fla.1989). Additionally, this Court has stated that “[ejounsel cannot be deemed ineffective ... simply because he relied on what might have been less than complete pretrial psychiatric evaluations.” State v. Sired, 502 So.2d 1221, 1223 (Fla.1987). Even if Dr. Mosmaris conclusion as to the mental age of Hertz was correct, Rand would not have been ineffective for relying on the expert evaluation by Dr. D’Errico, who did not make such a finding.

Defense counsel was unaware of any theory that the defendant’s possible mental age was fourteen, and the trial court found Dr. Mosmaris testimony on this point not to be credible. Therefore, in our view, Rand was not ineffective for failing to present this mitigator, and our confidence in the proceedings below is not undermined by Rand’s failure to present this issue at the penalty phase.

The Nonstatutory Mitigation

Hertz also asserts that Rand failed to present evidence of available and relevant nonstatutory mitigation. Specifically, Hertz alleges that Rand failed to present evidence with regard to the following six issues: (1) an ability to be a positive person in the prison system; (2) genetic defects; (3) brain damage; (4) the impact upon mental health caused by a clubfoot deformity and by the surgeries to remedy that condition; (5) a family history of deafness; and (6) a history of drug and alcohol abuse. As the State correctly asserts, trial counsel either presented evidence as to each of these issues or had a reason for not doing so.

The assertion that Hertz had the ability to be rehabilitated or to be a positive person in the prison system was refuted by several facts established at trial. The State established that Hertz was in violation of felony probation on the date of the murders in the instant case and he was also involved in a shootout with police in an attempt to escape apprehension after he committed the murders. See Hertz, 803 So.2d at 636.

Rand presented ample evidence of genetic defects, specifically the clubfoot condition. Family members testified that Hertz was born with a clubfoot which was difficult to correct partially because of their own medical neglect. The trial court even mentioned the struggles Hertz encountered with this condition in the sentencing order, stating that “[ejvidence and argument was presented that the defendant was born with a physical disability (club foot).” The trial court considered this genetic defect and “was reasonably convinced that the defendant did suffer hardships during his youth and should be given significant weight.”

Hertz alleges that Rand failed to present evidence of his brain damage. As mentioned above, this alleged “brain damage” theory was presented by Dr. Mosman at the postconviction evidentiary hearing. The trial court found Dr. Mosman’s testimony unconvincing. Even if the trial court had found Dr. Mosman’s opinion on this point convincing, it still would have simply been a more favorable opinion of a new and different doctor postconviction which would not have rendered Rand’s reliance on other expert opinions ineffective assistance of counsel. See Asay v. State, 769 So.2d at 986. Additionally, ample evidence of the mental health problems was in fact presented through the testimony of Dr. D’Errico during the penalty phase.

In a similar manner, the family history of deafness was presented at trial. The trial court specifically mentioned in the sentencing order that Hertz was born to a deaf mother and a partially deaf father. This was considered as part of a difficult childhood to which the trial court gave significant weight in terms of mitigation.

Evidence of the long history of drug abuse was also presented at trial. Family members all testified that his parents were both drug addicts and would steal to support their drug habits. His father even testified that he gave Hertz marijuana when Hertz was only eight years old. Again, the trial court considered in the sentencing order that Hertz’s parents were “addicted to drugs and unable to provide a stable environment” for him.

Hertz directs our attention to Heiney v. State, 620 So.2d 171 (Fla.1993), to support his assertion that Rand was ineffective in failing to investigate and present the non-statutory mitigators discussed above. Heiney is inapposite in this case because it is clearly distinguishable. In Heiney, this Court stated that defense counsel “totally fail[ed] to investigate potential mitigating factors.” Heiney, 620 So.2d at 172. Here, on the other hand, the trial court found that “[cjounsel did conduct a very thorough and reasonable investigation of mental health mitigation prior to trial.”

In our view, all of the nonstatutory mitigation which is now advanced as having not been presented at trial was, in fact, presented during the penalty phase. Defense attorney Rand clearly provided effective representation on this point and our confidence in the outcome of the proceedings below is not undermined.

The Method of Presenting Mitigation

Hertz claims that Rand was ineffective for failing to present the mitigation he did address during trial in an effective manner. He points to the failure of Rand to specifically mention the statutory miti-gators individually in his opening or closing statements to the jury at the penalty phase. Hertz also stresses that the State enumerated seven aggravators during its opening statement at the penalty phase that it intended to present to the jury. Hertz alleges that Rand should have enumerated each mitigator individually and required that the jury be instructed on them in that manner so as to have presented more mitigators than the State enumerated as aggravating factors.

In the order denying postconviction relief, the trial court addressed the issue of enumerating the mitigators and concluded that:

Even if the mitigation evidence presented had been enumerated as argued on postconviction relief, it has been repeatedly held by appellant [sic] majorities that a laundry list of enumeration of mitigation aspects, factors or circumstances relating to a defendant’s character, record and background is not required to supplant the standard Section 941.141(6)(h) approved jury instruction form. Such a specific enumeration may raise a spectre of impermissible double consideration of the same mitigation aspects, factors or circumstances and create real risk of misleading a jury into not considering some mitigation aspect with respect to a defendant’s background, character, or record that it has heard because it has not been included in any enumeration. The standard jury instructions do not instruct a jury that aggravators are statutory or that certain mitigators are statutory and others non-statutory. The mitigation presented would not have been provided any more impact or weight for its consideration if it had been given multiple enumeration for multiplicative matching purposes with respect to the State’s aggravators. The jury was not left with the impression that the mitigation they could consider was limited nor that mitigation not specifically designated as statutory could not impact or be weighed against the State’s statutory aggravators. Furthermore, counsel made it clear and ably argued that any mitigator could outweigh all of the aggravators argued by the State.

With respect to Hertz’s general argument regarding counsel’s method of presenting mitigation, these methods are clearly trial strategy. This Court has established 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.” Howell v. State, 877 So.2d 697, 703 (Fla.2004) (quoting Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000)). Rand testified at the evidentiary hearing that he attempted to convey Hertz’s powerful life story through both an extensive history book admitted into evidence and live testimony of witnesses. Explaining his decision to present the background in this manner, Rand testified:

I felt like Mr. Hertz had a story to tell in the penalty phase that was very compelling. I wanted the jury to have the underlying facts and the support for the argument we were making. I thought it was important that they have the ability to look hands-on at the bits and pieces of the life. By the same token I felt that the argument that we were making was one that needed not to bog down in minutia, in detail, in papers, in trivia. So I tried to give the jury both. I tried to give them the minutia and the paper on the one hand in a form that they could take with them into the jury room, and I tried to create a mental image in their mind through argument of what this says and refer to it....

After weighing all postconviction testimony, the trial court did not find Rand’s performance ineffective and we agree.

CONCLUSION

Hertz has failed to satisfy the burden required by Strickland. All of the additional mitigators that Hertz asserts were not presented during the penalty phase were either presented or not supported by the record. Additionally, defense counsel’s decisions regarding which mental health expert to utilize during the penalty phase and his manner of presenting a book of evidence which extensively detailed Hertz’s background were reasonable trial strategies. Based on the foregoing, Hertz was provided effective assistance of counsel and none of the testimony presented at the postconviction evidentiary hearing undermines our confidence in the proceedings below. Therefore, we affirm the denial of postconviction relief under rule 3.851.

It is so ordered.

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

      . Officer Williams was used to rebut testimony by a codefendant which is not relevant to the instant postconviction appeal.

      .In its opinion affirming the convictions, this Court detailed Hertz’s direct appeal claims as follows:
      (1) The trial court improperly excused for cause a venire member whose opposition to the death penalty did not prevent or substantially impair her ability to perform her obligations; (2) Hertz was not competent to stand trial; (3) the trial court erred by admitting gruesome photographs of the bodies at the crime scene and the autopsy; (4) the details of the collateral crimes in Volusia county became a feature of the trial causing prejudice that substantially outweighed the probative value of the evidence; (5) the evidence was insufficient as a matter of law to sustain the convictions; (6) the statute authorizing the admission of victim impact evidence is an unconstitutional usurpation of the Court's rulemaking authority under article V, section 2, of the Florida Constitution, making the admission of such testimony unconstitutional and reversible error; (7) the trial court erred in denying the defense motion to require a unanimous verdict; (8) four of the seven aggravating factors upon which the jury was instructed and which the trial court found are legally inapplicable and their consideration was not harmless error; and (9) the death sentence in this case is disproportionate.

        Hertz, 803 So.2d at 638 n. 2.

      . In his written closing arguments following the postconviction evidentiary hearing, Hertz abandoned his original claims of ineffective assistance of counsel for failure to seek a venue change and failure to object to inadmissible victim impact statements. This left only the ineffectiveness claim relating to penalty phase mental health mitigation, which is the subject of the instant appeal, and a claim under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which the trial court denied in the order on postconviction relief.

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

      . Dr. Sesta’s findings resulted from cognitive tests performed as part of his competency evaluation of Hertz. While we acknowledge that a competency evaluation is undertaken for a different purpose than a mental heath evaluation to consider mitigation, see Rutherford v. State, 727 So.2d 216, 222 n. 3 (Fla.1998), the scientific underpinnings and testing are often the same for either evaluation. In fact, in the instant matter the cognitive tests that Dr. D’Errico discussed during the penally phase were actually originally performed by Dr. D'Errico as part of his competency evaluation of Hertz. Therefore, assertions regarding the possible value of Dr. Sesta’s findings if presented during the penalty phase are appropriate if well founded.


source: Caselaw Access Project

author: PER CURIAM. ANSTEAD, J.,

license: Public Domain

text:
    James GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. SC04-2016.
    Supreme Court of Florida.
    June 29, 2006.
    Rehearing Denied Oct. 27, 2006.

      William Jennings, Capital Collateral Regional Counsel, Eric C. Pinkard, Assistant CCRC — Middle Region, Tampa, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Kenneth S. Nunnel-ley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

James Guzman, a prisoner under sentence of death, appeals a circuit court order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the denial of relief.

I. BACKGROUND

In September 1992, James Guzman was convicted of the armed robbery and first-degree murder of David Colvin. He was subsequently sentenced to death. On direct appeal, this Court reversed and remanded for a new trial. Guzman v. State, 644 So.2d 996 (Fla.1994). Guzman was retried in a bench trial in December 1996. He again was convicted of armed robbery and first-degree murder and sentenced to death. This Court upheld the conviction and sentence on direct appeal. Guzman v. State, 721 So.2d 1155 (Fla.1998). In his postconviction proceedings, we affirmed the trial court’s denial of all but one of the claims raised. Guzman v. State, 868 So.2d 498 (Fla.2003). The one denial we did not affirm was Guzman’s assertion that the State violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Instead of addressing the merits of this claim, we clarified the Giglio standard and remanded the claim to the circuit court for further consideration. On remand, the circuit court again denied the claim. Guzman appeals this denial and requests that this Court vacate his conviction and sentence and order a new trial.

The following facts, taken from our earlier opinion, are pertinent to the resolution of Guzman’s Giglio claim:

On August 12, 1991, David Colvin’s body was found lying face down on the bed in the motel room where he lived. Colvin had been stabbed nineteen times. A samurai sword that belonged to Colvin was propped up in a light fixture above his bed; however, no blood or fingerprints were found on the samurai sword. The medical examiner determined that Colvin died between 3 p.m. and midnight on August 10.
After Colvin’s body was found, police officers interviewed other residents of the motel where Colvin had lived. About a week before the murder, Guzman and Martha Cronin, a prostitute and a crack cocaine addict, had begun living together at the motel. The police interviewed both Guzman and Cronin. Each denied having any information about Colvin’s murder. On August 16, 1991, the State published in two local newspapers a reward offer of $500 for information about the case.
The police investigation failed to lead to an arrest until November 23, 1991, when Cronin was arrested on prostitution charges. Cronin volunteered to testify about Colvin’s murder in exchange for a deal in her own case. Cronin then told the police that Guzman had confessed to her that he killed Colvin. The police took Cronin to a motel and paid for her room. Cronin used the room for prostitution and used crack cocaine; then she left the motel. The police later rearrested Cronin. On January 3, 1992, the police paid Cronin $500 by money order delivered to the Volusia County jail. The police detective who arranged the payment could not recall when she first discussed the reward money with Cronin.
At trial, the medical examiner testified that the weapon used to kill Colvin was a single-edged knife or knife-like object with a slightly curved, heavy blade. The medical examiner could not identify the murder weapon used, but he said that Colvin’s samurai sword could have inflicted some of Colvin’s wounds and that a survival knife like one owned by Guzman could have inflicted other wounds.
Guzman’s fingerprints were on the telephone in Colvin’s room. There were blood stains on other parts of the phone, but Guzman’s fingerprints on the phone were not bloody. Blood and saliva samples were taken from Guzman, but nothing was matched to anything found in Colvin’s room. No other physical evidence connected Guzman to the murder.
Guzman testified at trial that on the day before the murder, Guzman helped Colvin move from one room to another in the motel. Guzman said that he used the phone in Colvin’s room at that time and again on the morning of August 10. Cronin confirmed that Guzman telephoned her from Colvin’s room.
On the morning of August 10, Guzman and Colvin left the motel in Colvin’s car.... Guzman testified that he and Colvin returned to the motel at about noon. Guzman said that he gave Col-vin’s car and room keys back to Colvin and returned to his own room, where Cronin was getting ready to go to work as a prostitute. Cronin left the room at around noon.
Guzman testified that at about 3 p.m., Cronin returned to the room accompanied by Curtis Wallace. Guzman said that Wallace gave him a diamond ring, asking Guzman to trade the ring for crack cocaine. It is undisputed that on August 10, at around 4 p.m. or 5 p.m., Guzman took the ring, which had belonged to Colvin, to a drug dealer named Leroy Gadson. Guzman sold the ring to Gadson for drugs and cash. Guzman testified that he then returned to the room and gave Wallace some of the drugs.
Cronin’s testimony at trial contradicted Guzman’s. Cronin said that on the morning of August 10 Guzman told her that he was going to drive Colvin to the bank. Cronin stated that Guzman returned to their room at about 11 a.m. and showed her Colvin’s car keys and room keys, saying he was going to help Colvin move to another room in the motel. Cronin said she left the room at about 11 a.m. to work as a prostitute, and returned at about 2:30 p.m. She said that at about 3 p.m. Guzman came back to their room, looking upset and carrying a garbage bag that contained white rags. Cronin said that Guzman told her he killed Colvin. She said Guzman told her that Colvin woke up while Guzman was in the process of robbing him, so Guzman hit Colvin in the head and then stabbed him with the samurai sword. Cronin said that Guzman showed her a ring and some cash he had taken from Colvin. Cronin identified the ring at trial. Cronin said that Guzman told her before the murder that Colvin would be easy to rob because he was always drunk and usually had money. Cronin testified that Guzman had said in a separate conversation that if he ever robbed anyone he would kill them, and that Guzman was holding his survival knife when he said this.
Cronin said that when she was arrested for prostitution in November 1991, she offered to tell the arresting officers who killed Colvin. However, Cronin denied that she received any deal for her testimony against Guzman. She said she was taken to a motel room for protection, but that she used the room for prostitution and continued to use crack cocaine, so she got no deal from the State. The detective who paid the $500 to Cronin also testified at trial, stating that Cronin received no deal for her testimony against Guzman.
Guzman’s counsel attempted to impeach Cronin by bringing out that she was a prostitute and a drug addict, that she testified against Guzman while she faced charges of prostitution, and that she was angry at Guzman because he was involved with other women. Guzman’s counsel also presented the testimony of Carmelo Garcia, who said Cronin told him in February of 1992 that Guzman had not killed anyone and that Cronin admitted she had lied to the police because she had been arrested.
Paul Rogers, a jailhouse informant, corroborated Cronin’s testimony against Guzman. Rogers and Guzman shared a jail cell during the spring of 1992. At trial, Rogers testified that Guzman said that he robbed and killed Colvin. Rogers testified that Guzman told him that he used Colvin’s key to enter Colvin’s room, and that Colvin woke up while Guzman was robbing him. Rogers said that Guzman told him that he hit Colvin in the head with a samurai sword and stabbed him ten or eleven times. Rogers said Guzman confessed that he took Colvin’s ring and some cash, cleaned up the sword, and put everything in the dumpster.
Guzman’s counsel attempted to impeach Rogers by asking if Rogers had read Guzman’s trial papers, which Guzman kept in the cell they shared, but Rogers denied reading Guzman’s papers. Rogers also denied learning of the case by reading the newspaper. Rogers admitted that after he initially told police that Guzman confessed to him, Rogers had signed an affidavit saying he knew nothing about Colvin’s murder and indicating that he would not testify against Guzman.

Guzman, 868 So.2d at 501-03 (footnote omitted).

In our last opinion, we made the following determination regarding Guzman’s request for relief under Giglio:

The first two prongs of the Giglio test are satisfied in this case. [The false testimony prong was satisfied because] [b]oth Cronin and the lead detective on the case testified falsely at trial that Cronin received no benefit for her testimony against Guzman other than being taken to a motel rather than jail when she was arrested.... The knowledge prong is satisfied because the knowledge of the detective who paid the reward money to Cronin is imputed to the prosecutor who tried the case.
The only disputed issue with respect to Guzman’s Giglio claim is the third prong, which requires a finding that the false testimony presented at trial was material.

Id. at 505 (citation omitted). As previously stated, we clarified the standard to be applied in the third prong of Giglio, stating that a trial court must determine “whether there is any reasonable likelihood that the false testimony could have affected the court’s judgment as the fact-finder.” Id. at 507. Having clarified the legal standard, we remanded this issue to the circuit court for reconsideration. Specifically, we remanded the issue because the circuit court’s order denying postcon-viction relief did not state that there was no reasonable likelihood that the false evidence regarding a $500 payment to Cronin could have affected the judgment of the factfinder. Moreover, we wanted to ensure that the burden of proof was placed upon the right party, in particular, that the State was required to prove that the false testimony was harmless beyond a reasonable doubt. Id.

On remand, the circuit judge who had presided over the bench trial and the subsequent motion for postconviction relief reconsidered the claim. He again denied it. He determined that the testimony on the $500 payment to Cronin was not material under the third prong of Giglio. In reaching this ultimate conclusion, the circuit judge found that the State had met its burden of demonstrating that the false testimony was harmless beyond a reasonable doubt. Specifically, he found that “[t]he State has demonstrated that no Gig-lio violation occurred due to the ample impeachment and corroboration of Cronin’s testimony, and the independent evidence of the Defendant’s guilt.”

II. ANALYSIS

We agree with the circuit judge that the false statements by Cronin and Detective Sylvester do not meet the materiality prong of Giglio. To explain this result, we begin by stating the standard of review and the applicable law. We then apply this law to the facts of this case.

A. Standard of Review and Applicable Law

“This Court applies a mixed standard of review to Giglio claims, ‘deferring] to the factual findings made by the trial court to the extent they are supported by competent, substantial evidence, but reviewing] de novo’ ” the application of the law to the facts. Suggs v. State, 923 So.2d 419, 426 (Fla.2005) (quoting Sochor v. State, 883 So.2d 766, 785 (Fla.2004)). Because the question before us addresses only the application of law, we review it de novo.

Again, “[t]o establish a Giglio 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, 868 So.2d at 505. In our previous opinion, we found that Guzman had established the first two prongs and that only the third prong remained at issue. Id. We also made it clear that the State bears the burden of proof on this prong. We stated that it must prove that the presentation of the false testimony was harmless beyond a reasonable doubt. Id.; see also Davis v. State, 915 So.2d 95, 122 n. 7 (Fla.2005), cert. dismissed, — U.S. -, 126 S.Ct. 1649, 164 L.Ed.2d 357 (2006). To meet the harmless error standard, the State must establish “that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

Our previous opinion in this case used the term “reasonable likelihood” in setting-out the materiality standard of a Giglio claim. Guzman, 868 So.2d at 506-08. This term appears in the United States Supremé Court opinion in Giglio and elsewhere. However, assessing materiality in terms of a “reasonable likelihood” of a different result may foster confusion because of the similarity of that term to the “reasonable probability” standard applied to claims of suppression of evidence favorable to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In our previous opinion in this case, we acknowledged a lack of clarity in our precedent that led to improper merging of the two standards. Guzman, 868 So.2d at 506. As we stated then, the two standards are not the same. The test of materiality under Brady is whether disclosure of the evidence to the defense would have created a reasonable probability, sufficient to undermine confidence in the outcome, of a different result. Cardona v. State, 826 So.2d 968, 973 (Fla.2002). The same test applies under the prejudice prong of a claim of ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998); see also Trepal v. State, 846 So.2d 405, 438 (Fla.2003) (Pariente, J., specially concurring).

As we stated in our previous opinion in this case, the test of materiality under Giglio is more “defense friendly” than the Brady materiality test. Guzman, 868 So.2d at 507. In fact, the test under Giglio is the same as the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and DiGuilio. See United States v. Bagley, 473 U.S. 667, 680, 105 S.Ct. 3375, 87 L.Ed.2d 481 (“[T]he fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.”); Guzman, 868 So.2d at 508 (“The State bears the burden of proving that the presentation of the false testimony was harmless beyond a reasonable doubt.”). The DiGuilio harmless error test requires the State to prove “that there is no reasonable possibility that the error contributed to the conviction.” 491 So.2d at 1138. In the interest of greater clarity, the term “reasonable possibility” is preferable to “reasonable likelihood,” the term used by the trial judge in this case, in assessing the materiality prong of a Giglio claim. Whatever terminology is used, the dispositive question is whether the State has established beyond a reasonable doubt that the knowing use of perjured testimony, or failure to disclose the perjury once it was discovered, did not affect the verdict.

B. Application of the Law

The circuit judge denied Guzman’s claim on the grounds that the false testimony was not material. To affirm this determination, we have to conclude that there is no reasonable possibility that the false testimony of Cronin and Detective Sylvester regarding the $500 reward affected the verdict. That standard has been met here. For the reasons relied upon by the trial court, we conclude that the State has established beyond a reasonable doubt that the false testimony of the witnesses had no effect on the verdict.

The trial court found Cronin’s credibility as a witness was amply impeached and that Cronin’s testimony incriminating Guzman was independently corroborated and supported at trial. Our own de novo review of the record supports these conclusions. Indeed, impeachment of Cronin was substantial. She testified about her crack cocaine addiction, numerous arrests for prostitution, and agreement to testify against Guzman in exchange for a lesser charge on prostitution. She also acknowledged that she told witness Garcia that Guzman had not killed anyone but that she had lied to the police in accusing Guzman because she had been arrested and that she was angry with Guzman over his relations with other women. The judge also received evidence that the State had paid for a motel room and meals for Cronin. In light of this ample impeachment, the circuit judge was justified in concluding that Cronin and Detective Sylvester’s false testimony regarding the $500 reward was of “limited significance” and “merely cumulative and immaterial.” We agree with this conclusion. The addition of the truthful testimony about the $500 reward would not have made a material difference in Cronin’s credibility to the finder of fact.

Second, the record fully supports the circuit judge’s finding that Cronin’s testimony regarding Guzman’s guilt was independently corroborated and supported by other record evidence. In particular, the testimony of both Dr. Steiner and Rogers supports the circuit judge’s finding. Dr. Steiner, the medical examiner, supported Cronin’s testimony at trial by testifying that the samurai sword and the survival knife could have caused the victim’s injuries. Rogers, the jailhouse witness who shared a cell with Guzman, testified that Guzman admitted committing the crime. It is also undisputed that, shortly after the murder, Guzman sold the victim’s ring to Leroy Gadson, a known drug dealer, for drugs and cash. This evidence of Guzman’s guilt, wholly independent of Cronin, supports her testimony. In light of this independent and corroborating evidence, we conclude that there is no reasonable possibility that the false testimony regarding the $500 reward could have affected the judgment of the factfinder.

Inherent in the above analysis is our conclusion that the State met its burden of establishing that the false testimony was harmless beyond a reasonable doubt.

III. CONCLUSION

The circuit judge faithfully answered the two questions posed in our remand to him. Ensuring that the State bore the appropriate burden of proof, he determined that Guzman failed to meet the materiality prong of Giglio and denied relief. Having reviewed the question de novo, we affirm that decision.

It is so ordered.

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

ANSTEAD, J., dissents with an opinion.

ANSTEAD, J.,

dissenting.

Because I conclude that the majority’s analysis and holding on the Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), claim is contrary to controlling precedent of this Court and the United States Supreme Court, I am compelled to dissent. Contrary to this controlling precedent, the majority opinion sends out an alarming signal as to this Court’s concern with the presentation of perjured testimony in criminal trials generally, and in death penalty cases in particular.

Giglio Standard

It is apparent that in denying relief, the trial judge below erred both in applying an erroneous standard for Giglio claims and in subjectively deciding that the Giglio error would have made no difference to him personally, as the trial judge who previously tried the case. In essence, the trial court made it the burden of the defendant to prove that there was a “reasonable likelihood” that the uncontested Giglio error did affect the trial court’s judgment. Further, the trial court erred in basing its determination solely on the fact that there was other evidence of guilt and impeachment, and in ignoring our warning in DiGuilio that the harmless error test “is not a suffieiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). As the majority opinion correctly demonstrates, there is no “reasonable likelihood” component of our DiGuilio test. Rather, the test requires the State to prove that there is no reasonable possibility that the error could have affected the verdict. However, having acknowledged that the trial court was in error in applying an erroneous standard, the majority essentially approves this flawed analysis in affirming the order denying relief.

Subjective Standard

Initially, it is important to note that both the State and the trial judge are in error in advocating and applying a subjective standard in evaluating the effect of the Giglio error. The trial judge’s order denying the Giglio claim sets out the court’s reasoning:

That the Court states in answer to the proper question under Giglio, as presented by the Supreme Court of Florida, as to whether or not there is any reasonable likelihood that the false testimony could have affected the Court’s judgment as to the fact finder in this case, that this Court’s answer to that question is no, there is not any reasonable likelihood that the false testimony could have affected this Court’s judgment as the factfinder in this case.

(Emphasis supplied.) This order makes clear that the trial court not only applied an erroneous “reasonable likelihood” test to the Giglio claim, but also used a subjective standard in applying the test. It is apparent on the face of the order that the “this Court” referred to is the actual trial judge in the case who heard both the original proceeding and the postconviction Giglio claim. The trial court’s use of the words “this Court’s judgment” leaves no doubt that the judge was referring to himself “as the fact-finder in the case.”

Indeed, the State, in its brief, expressly advocates that we follow this erroneous subjective path by asserting that because the posteonvietion trial judge was the same judge who had heard the original case, his subjective determination that the error would have made no difference to him should control:

In the factual situation presented by Guzman’s case, the “subjective-objective” dichotomy is a non sequitor [sic] because in considering the Giglio violation Judge Johnson was not called on to evaluate the possible effect of the error on a jury^ — -he was directed to determine what the effect would have been on his verdict.

Answer Brief of Appellant at 24 (emphasis in original). The State makes clear that it supports the view that the trial judge was indeed called upon to subjectively determine the effect of the error “on his verdict.” The State even emphasizes the possessive “his.” But that is not the law. Rather, the State and the trial judge have expressly advocated and adopted an erroneous view of the law which the majority now fails to acknowledge and confront.

Bagley

The opinion in the federal case of Bagley v. Lumpkin, 798 F.2d 1297 (9th Cir.1986), demonstrates the errors made here by the trial judge and overlooked by the majority. In Bagley, the defendant requested that the government disclose, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), any impeachment evidence in its possession concerning “any deals, promises, or inducements made to [State] witnesses.” Bagley, 798 F.2d at 1298. The government responded with affidavits from two witnesses stating they had not been promised any rewards for their statements. Id. at 1298-99. After conviction, defendant Bagley learned that the two State witnesses had lied when they stated they had not been promised any reward for their cooperation, as they had been paid expense money for their cooperation. Id. at 1299. A government agent recommended that the two witnesses receive $500 each, and they were actually paid $300 each. Id. When this claim was presented in postconviction proceedings, the lower court judge who had presided over the nonjury trial denied Bagley’s Brady claim on the issue of materiality, much as the trial court denied Guzman’s Giglio claim:

After an evidentiary hearing, a United States magistrate recommended to the district court that it deny Bagley’s motion. The district court judge was the same judge who conducted the bench trial and imposed sentence. In its order denying relief, the district court stated that it was “in a unique position of being able to know what effect the disclosure ... would have had upon the decisions made by this Court in the criminal prosecution.” He concluded that “disclosure would have had no effect at all upon its finding that the government had proved beyond a reasonable doubt that defendant was guilty.”

Id. On appeal, the Ninth Circuit rejected the trial judge’s decision and subjective evaluation of the failure to disclose:

The proper inquiry is an objective one: whether “the Government’s failure to assist the defense by disclosing information that might have been helpful in conducting cross-examination” undermines confidence in the outcome of the trial. Therefore, the district judge erred when, in ruling on the section 2255 motion, he stated that the disclosure of the contracts would not have affected his decision. The inquiry is not how this or any other judge, as the trier of fact, would subjectively evaluate the evidence. It is, rather, how the absence of the evidence objectively might have affected the outcome of the trial.
The district court further erred by failing to recognize that the ATF contracts revealed that the witnesses lied under oath. The district court’s findings of fact in this action take into account only the extent to which the contracts demonstrate possible bias or prejudice. It is inconceivable that evidence of perjury loould not, as an objective matter, affect a factfinder’s assessment of a witness’ credibility. When the evidence shows that the government’s only witnesses lied under oath, it is contrary to reason that confidence in the outcome of the case would not objectively be undermined. This is particularly true here because the lies came from the only witnesses who testified against Bagley and the lies related to the reasons why they testified. Evidence of bias and prejudice is ceHainly material for impeachment, but lies under oath to conceal bias and prejudice raise the impeachment evidence to such a level that it is difficult to imagine anything of greater magnitude that would undermine confidence in the outcome of any trial

Id. at 1301 (emphasis added) (citations omitted). The majority simply ignores the Bagley court’s holdings on the subjective evaluation by the trial judge; and the patent prejudicial effect of the concealment of “bias and prejudice” and even greater prejudicial effect of “lies under oath to conceal bias and prejudice.”

It is apparent in Guzman’s case that the trial judge erred in the same two respects discussed in Bagley: first, in applying a subjective test, and second, in concluding that an objective fact-finder would not consider the perjury of witnesses in assessing their credibility. Unfortunately, and contrary to the analysis in Bagley, the majority essentially finds no fault with these errors in approving the trial court’s flawed order. Contrast this conclusion with the Bagley court’s conclusion that “it is difficult to imagine anything of greater magnitude that would undermine confidence in the outcome of any trial.” Id. And, of course, the harmless error standard applied to Giglio claims is an even more defense-friendly standard than the “undermine confidence” standard applied in Bag-ley.

Harmless Error Standard

Of course, as the above authorities make clear, there is no way that a proper Giglio harmless error analysis can be conducted using a subjective test. But that is not the only problem here. As the majority acknowledges, the trial court’s analysis is also flawed because it utilizes a “reasonable likelihood” standard to evaluate the Giglio error rather than the harmless error standard set out in DiGuilio:

The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

491 So.2d at 1135. And, contrary to the trial court’s “other evidence” analysis, we expressly noted in DiGuilio that it mattered not in the assessment of the harmfulness of legal error that there may be other evidence .of guilt. Id. at 1136-37. Once again, however, the majority overlooks the trial court’s mistaken analysis.

Napue

As with Bagley, the federal courts also provide us with proper guidance on the correct application of the harmless error test in a similar situation. In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), a case with almost identical circumstances to those here, the United States Supreme Court mandated a new trial where a prosecutor had given a prosecution witness a vague and indefinite oral promise of possible future help in seeking a sentence reduction, but the prosecution witness later denied any promises of assistance when cross-examined at trial. Id. at 266-67, 79 S.Ct. 1173. Despite the fact of the uncertainty and indefiniteness of the assurance, the Court in Napue declared:

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, [1 N.Y.2d 554, 154 N.Y.S.2d 885,] 136 N.E.2d 853, 854-855:
“It is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon defendant’s guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth.... That the district attorney’s silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.”
Second, we do not believe that the fact that the jury was apprised of other grounds for believing that the witness Hamer may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one.

Id. at 269-70, 79 S.Ct. 1173 (parallel citations omitted). Unfortunately, and directly contrary to the United States Supreme Court’s analysis in Napue, the majority misapplies our DiGuilio harmless error test by simply dismissing the significance of the perjured testimony and relying on other evidence of guilt and impeachment. As the Supreme Court said in Napue, “we do not believe that the fact that the jury was apprised of other grounds for believing that the witness Hamer may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one.” Id. at 270, 79 S.Ct. 1173. Why that reasoning should not apply here, where the facts are even more compelling, is left unexplained by the majority.

This Case

Because the Giglio violation here demonstrates that the State knowingly condoned perjured testimony by both the State’s key prosecution witness and the lead police detective investigating the case, there can be little doubt that the State has not carried its burden to objectively demonstrate beyond a reasonable doubt that the error could not possibly have affected a rational fact-finder. See Guzman v. State, 868 So.2d 498, 506 (Fla.2003) (recognizing the State’s burden on a Giglio claim to demonstrate harmless error beyond a reasonable doubt). Obviously, a rational and objective fact-finder would not only have considered the fact that Cronin, the most important witness for the State, was paid for her testimony, but would also have considered the fact that both this crucial witness and the lead detective in the case perjured themselves when they denied under oath that any compensation was paid to Cronin. And, critically, it would have been of especial concern to the fact-finder that this crucial State witness had previously and repeatedly denied any knowledge of the case and only implicated the defendant after the State offered compensation to her.

One need only read this Court’s assessment of the evidence and Cronin’s critical role in the case to see that an objective fact-finder would have necessarily considered both the undisclosed evidence and the perjury in evaluating the testimony of both important witnesses for the State. Guzman, 868 So.2d at 501-09. Indeed, this Court itself observed that “the State paid Cronin $500, a significant sum to an admitted crack cocaine addict and prostitute.” Id. at 505. Our opinion also details other consideration provided to this critical witness and the numerous twists and turns in her stories, including her initial denials to the police of any knowledge of the murder and her statements to others that Guzman had not killed anyone and that she had lied to the police about his involvement. Id. at 501-04. The bottom line is that Cronin was the key witness in the case and the credibility of her testimony was critical to the State’s case against Guzman. After making this plain in our prior opinions, we ignore it today.

In addition, the majority mischaracter-izes the nature and weight of the other evidence in the case. For example, the majority treats the medical examiner’s testimony as particularly important when the examiner actually testified that he could not identify the defendant’s knives as the murder weapons, and that any knife or knife-like object three to four inches in length could have inflicted the fatal wounds. (The weapon that inflicted the wounds could have been “any knife three to four inches at least in length or knife-like object.”) Of course, we know there are thousands, if not millions, of knives of such length in this country. As to the jailhouse informant, we know this witness was a seven-time convicted felon who had access to the defendant’s court records about the case in his cell and who also swore under oath that “Guzman never confessed to me.” As to the ring, Guzman testified at trial that he got the ring from Curtis Wallace, another suspect in the case, and sold it for $250 and a quantity of cocaine which he shared with Wallace and Cronin. In fact, only Cronin testified that Guzman got the ring from the victim. It is apparent that this “other evidence” of guilt is hardly overwhelming and is insufficient to render the perjury of Cronin and Detective Sylvester immaterial.

Conclusion

Ironically, the majority’s analysis makes it sound like Cronin’s testimony was so severely impeached that her credibility could not have been further undermined. In other words, it could not have gotten any worse. Yet, at the same time, it is apparent that it is this critical witness’s testimony that has been relied upon at all levels of judicial scrutiny to sustain both a conviction of premeditated murder and a sentence of death. There is something wrong with this picture. Today’s majority has simply chosen to ignore our own harmless error law and the controlling pronouncements from our nation’s highest Court in Napue concerning the effect of perjury of important prosecution witnesses on the fairness of a trial. Because our law and these pronouncements should especially be honored in death penalty proceedings, I respectfully dissent.

      . Guzman's initial postconviction motion was filed pursuant to Florida Rule of Criminal Procedure 3.850. On remand, his motion was reclassified under rule 3.851, Collateral Relief After Sentence of Death Has Been Imposed and Affirmed on Direct Appeal, pursuant to a change in the rules of criminal procedure.

      . A fall statement of the underlying facts can be found in our recent opinion in Guzman, 868 So.2d 498.

      . Notably, during the evidentiary hearing on the initial postconviction motion, Guzman's defense counsel revealed that, prior to trial, Guzman made him aware of allegations that Cronin had received the $500. Defense counsel chose not to pursue discovery or questioning at trial regarding the allegations.

      . In part, the dissent asserts that the trial court judge erred by subjectively deciding that the Gigiio error made no difference to him as the trier of fact. Dissenting op. at 1053. Nothing in the record supports this assertion. The findings of fact and conclusions of law in this trial judge’s September 2004 order indicate that his determination was the objective one required by Gigiio as articulated in our opinion remanding this cause to him. The order reads in pertinent part:
      That the Court states in answer to the proper question under Gigiio, as presented by the Supreme Court of Florida, as to whether or not there is any reasonable likelihood that the false testimony could have affected the Court’s judgment as to the fact finder in this case, that this Court's answer to that question is no, there is not any reasonable likelihood that the false testimony could have affected this Court's judgment as the fact finder in this case.
      Unlike Bagley v. Lumpkin, 798 F.2d 1297 (9th Cir.1986), where the trial judge used his “unique position" as the trier of fact to reach his conclusion, the trial judge here made no such error in his analysis of the impact of the false testimony in this case.

      . See also State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (stating that the burden is on the State to demonstrate beyond a reasonable doubt that there is no reasonable possibility that the error could have contributed to the verdict).