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    Justin Curtis HEYNE, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. SC09-2323.
    Supreme Court of Florida.
    April 19, 2012.

      James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Dayto-na Beach, FL, for Appellee/Cross-Appel-lant.
   PER CURIAM.

Justin Curtis Heyne appeals his convictions for the first-degree murders of Benjamin Hamilton, Sarah Buekoski, and Ivory Hamilton, and his sentence of death for the murder of Ivory. For the reasons stated below, we affirm his convictions and sentence.

I. BACKGROUND

On March 80, 2006, Sarah Buekoski returned to her home with her five-year-old daughter, Ivory Hamilton, to find Heyne and Ivory’s father, Benjamin Hamilton, engaged in a verbal dispute. The dispute centered on money Heyne owed to Benjamin and took place in the master bedroom, a 12-by 13-foot room in which law enforcement later discovered drug paraphernalia and several pounds of marijuana. Heyne worked with Benjamin and was temporarily residing with Benjamin, Sarah, and Ivory in Titusville, Florida. Heyne was 24 years old. Benjamin and Sarah were 26 and 24, respectively.

As the argument escalated, Heyne began to feel disrespected. He started to walk away when he heard Benjamin cock a 9-mm gun. Heyne left, retrieved a .38 Special from his room, and then returned to the master bedroom to continue the argument with Benjamin. The two argued while holding their respective guns but did not point them at one another while arguing. Heyne pushed Benjamin onto the bed. At some point during the dispute, Ivory entered the room, prompting Benjamin to drop the 9-mm. Heyne picked up Benjamin’s 9-mm. Benjamin told Ivory to leave the room, and she turned to walk out.

In its sentencing order, the trial court detailed the shootings as follows:

Benjamin Hamilton was shot at a distance of no more than four or five feet. At that point, Sarah Buckoski dove to the floor on the far side of the bed near the wall and started screaming. The defendant shot her next. She was shot one time, but the bullet passed through her arm before it entered the center of the back of the head. At that point, Ivory began to pull on the defendant’s shorts and the defendant shot her one time in the head at point blank range.

When law enforcement arrived on the scene, Benjamin was struggling for air on the bed, Sarah was on the floor next to the bed in a fetal position screaming, and Ivory was lying on the floor without a pulse. An autopsy revealed that just prior her death, Ivory was slapped in the face in a manner violent enough to cause a rupture of the blood vessel beneath the skin. A bullet fired from Heyne’s .38 Special was found in her skull.

After the shooting, Heyne ran out of the back door with his gun in a pillowcase and with marijuana and cocaine he took from the master bedroom. Heyne called a friend, Roxanne Larabie, and asked her to pick him up. Larabie testified that Heyne admitted to shooting Benjamin and Sarah and that when she asked about Ivory, Heyne “just looked at me and said she was gone.” Larabie helped Heyne obtain new clothes identical to the ones he was wearing. When they arrived at Larabie’s house, Heyne washed the new clothes in an effort to make them appear worn. He removed his old shoes and clothes, wrapped up his gun in the pillowcase, and put all of the items in a box in Larabie’s attic. Law enforcement retrieved the items and discovered bloodstains matching Benjamin’s DNA profile on Heyne’s pants and the pillowcase.

Heyne was apprehended and questioned regarding the murder, and a videotape of the interrogation was played for the jury at trial. Initially, Heyne denied that he was at the house at the time of the murder. But when an investigating officer interrupted the interrogation with news that Heyne’s gun, bloodied clothing, and pillowcase were discovered in a box in Larabie’s attic, Heyne confessed to shooting Benjamin and Sarah and acknowledged seeing Ivory “go down.” At the time, Heyne could not remember shooting Ivory and repeatedly denied that he would have shot her on purpose. However, he acknowledged shooting both the 9-mm and the .38 Special and directed the interrogating officer as the officer drew a diagram of the room depicting the placement of Heyne and all three victims during the shootings. Heyne said that his argument with Benjamin began as a non-violent confrontation in which Benjamin never threatened him or pointed his gun in Heyne’s direction.

At trial, Heyne advanced the theory that he shot Benjamin and Sarah in self-defense, specifically suggesting in closing arguments that Sarah may have been trying to access a shotgun under the bed. As for Ivory, Heyne argued that the evidence supported an accidental shooting. The prosecution attempted to foreclose the possibility of self-defense and accident, relying heavily on the diagram drawn during Heyne’s interrogation to show that the relative positioning of Heyne and the victims precluded either scenario. Ultimately, the jury found Heyne guilty of first-degree premeditated murder of all three victims.

At the penalty phase, Heyne presented mitigation testimony from former educators, family members, and evaluating psychologists. His former educators attested to Heyne’s status as a special education student, and his family members testified that he was a caring but difficult child. Dr. Joseph Wu testified that imaging from a PET scan showed damage to Heyne’s temporal and parietal lobes, evidencing learning difficulties, causing problems regulating aggression and impulse, and making addiction to alcohol and drugs more likely. Dr. Wu also testified that imaging was consistent with a history of traumatic brain injuries and specifically noted two concussions Heyne suffered as a child, another head injury when Heyne was incarcerated in 2004, and a slow processing speed relative to his IQ score of 88. Dr. William Riebsame diagnosed Heyne with ADHD and possible bipolar disorder — one or both of which caused Heyne to have impulse control disorder— as well as cocaine and alcohol use and dependence at the time of the offense. Dr. Riebsame also discussed Heyne’s history of impulsivity, including two documented suicide attempts. Dr. Riebsame revealed that Heyne had confessed to shooting Ivory, whom Heyne said was crying and pulling on his shorts after he shot Benjamin.

The jury recommended life imprisonment for the murder of Benjamin, the death penalty for the murder of Sarah by a vote of eight to four, and the death penalty for the murder of Ivory by a vote of ten to two.

The trial court followed the jury’s recommendation of death for the murder of Ivory but sentenced Heyne to life imprisonment for the murders of Benjamin and Sarah. For the murder of Ivory, the trial court found three aggravators: (1) Heyne was previously convicted of a felony involving the use or threat of violence (great weight); (2) the murder was especially heinous, atrocious, or cruel (HAC) (great weight); and (3) the victim was less than twelve years of age (great weight). The trial court found the following mitigators: (1) Heyne suffers from a mental illness (great weight); (2) Heyne has brain damage and brain deficits (great weight); (3) Heyne had a problem with substance abuse and dependence (moderate weight); (4) Heyne had an impaired capacity to appreciate the criminality of his conduct or conform it to the requirements of law (moderate weight); (5) Heyne was under the influence of a mental or emotional disturbance (little weight); (6) Heyne was a good, caring father to a handicapped son (very little weight); (7) Heyne cared for and helped elderly neighbors when he was a child (very little weight); (8) Heyne gave his flannel jacket to a homeless person (very little weight); (9) Heyne protected younger, weaker children when he was a child (very little weight); (10) Heyne played football and other sports as a child and was devastated when he could no longer play (very little weight); (11) Heyne was recommended to receive in-patient psychiatric treatment at age five but did not receive treatment (moderate weight); (12) Heyne has a history of suicide attempts and self-destructive behavior (moderate weight); and (13) Heyne exhibited good behavior during trial (some weight).

II. ISSUES RAISED ON APPEAL

Heyne raises four issues on appeal: (A) the trial court erred in denying his motion for judgment of acquittal; (B) the trial court erred in finding the HAC aggravator for the murder of Ivory; (C) the trial court erred in assessing the mental health mitigating evidence; and (D) the death sentence is not proportionate. None of these claims warrant relief.

A. Denial of Motion for Judgment of Acquittal

Heyne argues that the trial court erred in denying the motion for judgment of acquittal at the conclusion of the prosecution’s guilt-phase case because the evidence of premeditation was circumstantial and did not disprove every reasonable hypothesis of innocence. For the reasons that follow, we disagree.

This Court has defined premeditation as “a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Miller v. State, 42 So.3d 204, 228 (Fla.2010) (quoting Asay v. State, 580 So.2d 610, 612 (Fla.1991)), cert. denied — U.S. —, 181 S.Ct. 985, 178 L.Ed.2d 776 (2011). “Circumstantial evidence of premeditation can include the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Pearce v. State, 880 So.2d 561, 572 (Fla.2004).

A trial court’s determination on the sufficiency of evidence to prove premeditation is guided by the following principles:

Premeditation is a factual issue for the jury, Asay [, 580 So.2d at 612], and several standards of review are applicable. The following standard applies where the evidence of premeditation is direct, whether in whole or in part: as with other factual findings, a jury’s finding of premeditation will be sustained if supported by competent, substantial evidence in the record. See, e.g., Wheeler v. State, 4 So.3d 599, 605 (Fla.), cert. denied, — U.S. —, 130 S.Ct. 178, 175 L.Ed.2d 112 (2009). Where the evidence of premeditation is wholly circumstantial, on the other hand, the following standard applies: not only must the evidence be sufficient to support the finding of premeditation, but the evidence, when viewed in the light most favorable to the State, must also be inconsistent with any other reasonable inference. Cochran v. State, 547 So.2d 928, 930 (Fla.1989).

Twilegar v. State, 42 So.3d 177, 190 (Fla.2010), cert. denied, — U.S. —, 131 S.Ct. 1476, 179 L.Ed.2d 315 (2011).

This Court reviews de novo the trial court’s denial of a motion for judgment of acquittal. Delgado v. State, 71 So.3d 54, 65 (Fla.2011). “Where the State has presented competent, substantial evidence of the crimes charged, the trial court does not err in denying a motion for judgment of acquittal and submitting the case to the jury.” McDuffie v. State, 970 So.2d 312, 332 (Fla.2007).

Here, even assuming the wholly circumstantial test applies to all three murders, the trial court did not err in finding sufficient evidence of premeditation because the evidence is inconsistent with any other reasonable inference. See McWatters v. State, 36 So.3d 613, 631 (Fla.2010). We address each murder in turn.

1. Benjamin

The evidence concerning the shooting of Benjamin was sufficient to support a finding of premeditation and was inconsistent with any other reasonable inference. Specifically, the prosecution presented the following evidence, much of which derives from Heyne’s statement to law enforcement: (1) Heyne and Benjamin were arguing, and Benjamin treated Heyne in a manner that made Heyne feel disrespected; (2) Heyne heard Benjamin cock his gun and then went to his room to retrieve his own gun; (3) Heyne returned to the room with his gun and continued to argue with Benjamin; (4) the two continued to argue while holding their respective guns, but Benjamin neither pointed his gun at Heyne nor waved it around; (5) Heyne pushed Benjamin onto the bed, yet an autopsy revealed no additional signs of a struggle between the two; (6) before any shots were fired, Benjamin voluntarily relinquished his gun, and Heyne picked it up; and (7) Heyne admitted to pointing his gun at Benjamin and firing it in his direction. This evidence provided a basis for the jury to conclude that Heyne had time to reflect and form the intent to kill Benjamin because it demonstrated that Heyne left in the middle of the argument to deliberately select a deadly weapon, then returned to shoot Benjamin even after Benjamin disarmed himself. See Floyd v. State, 850 So.2d 388, 397 (Fla.2002) (“Floyd’s deliberate selection and transportation of a gun to the victim’s home is clearly inconsistent with his theory that he argued with the victim and simply shot her in a moment of uncontrolled rage without having fully formed a conscious purpose to kill.”).

Because the evidence was sufficient to support a finding of premeditation and was inconsistent with any other reasonable inference, we affirm the trial court’s denial of the motion for judgment of acquittal as to the first-degree murder of Benjamin.

2. Sarah

Likewise, the evidence concerning the shooting of Sarah was sufficient to support a finding of premeditation and was inconsistent with any other reasonable inference. First, Heyne’s statement provided evidence that (1) Sarah ran into the bedroom after Heyne shot Benjamin, and she “panicked and got on the floor” on the opposite side of the bed; (2) Heyne was motivated to shoot Sarah “because she was screaming”; (3) Heyne also shot Sarah because it crossed his mind that she could have served as a witness to the shooting of Benjamin.

Second, the prosecution presented evidence inconsistent with Heyne’s suggestion at closing argument that he shot Sarah in a panic because she was accessing a shotgun underneath the bed. See Henry v. State, 574 So.2d 73, 74 (Fla.1991) (holding that physical evidence inconsistent with Henry’s hypothesis of innocence provided “enough evidence.to present a jury question on the issue of premeditation”). On this point, the prosecution presented evidence that (1) the latched case housing the shotgun had not been accessed when it was found underneath the bed; (2) Sarah had come from a room in which Heyne knew there to “always” be a loaded firearm; (3) Heyne shot Sarah when she had her arm up and her head turned, possibly in an attempt to protect herself; (4) Sarah was on the side of the bed opposite Heyne when shot but was shot in the back of the head, making it unlikely that she was facing toward and reaching underneath the bed; and (5) there were no bullet holes through the mattress, eliminating the possibility that her head was turned from Heyne because it was under the bed.

Because the prosecution presented evidence that was sufficient to support a finding of premeditation and was inconsistent with any other reasonable inference, we affirm the trial court’s denial of the motion for judgment of acquittal as to the first-degree murder of Sarah.

3. Ivory

Finally, although Heyne repeatedly denied that he purposefully shot Ivory, the circumstantial evidence surrounding the shooting of Ivory was sufficient to support a finding of premeditation and was inconsistent with any other reasonable inference. Specifically, the prosecution presented evidence that (1) Heyne told law enforcement that he remembered Ivory pulling on his shorts after he shot her father and that he remembered firing at least two more shots; (2) Heyne had time to see that Ivory appeared to be “in shock” after he shot Benjamin; (3) Ivory was five years old and posed no physical threat to Heyne; (4) Ivory was violently slapped in the face just prior to her death, likely by a man; (5) the muzzle of the gun was less than two feet from Ivory’s face when it was fired; and (6) according to Heyne’s diagram of the room, Heyne and Ivory were positioned in the room in a way that Heyne would have had to walk around the bed in order to slap Ivory and then shoot her from a distance less than two feet.

Accordingly, we affirm the trial court’s denial of Heyne’s motion for judgment of acquittal.

B. HAC Aggravator

Heyne argues that the trial court erred in finding the HAC aggravator because there was no evidence that Ivory experienced terror and fear prior to her death. We disagree.

The HAC aggravator applies when “[t]he capital felony was especially heinous, atrocious, or cruel.” § 921.141(5)(h), Fla. Stat. (2009). Additionally, this Court has held “that for this factor to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim.” Diaz v. State, 860 So.2d 960, 966 (Fla.2003). In determining whether the victim experienced such fear, the trial court views the circumstances “from the unique perspective of the victim,” Banks v. State, 700 So.2d 363, 367 (Fla.1997), and “in accordance with a common-sense inference from the circumstances.” Allred v. State, 55 So.3d 1267, 1280 (Fla.2010) (quoting Swafford v. State, 533 So.2d 270, 277 (Fla.1988)), cert. denied, - U.S. -, 132 S.Ct. 181, 181 L.Ed.2d 91 (2011). “[F]ear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel.” Lynch v. State, 841 So.2d 362, 369 (Fla.2003) (quoting James v. State, 695 So.2d 1229, 1235 (Fla.1997)).

When this Court reviews the sentencing court’s finding of an aggravator,

“[I]t is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt — that is the trial court’s job.” Willacy v. State, 696 So.2d 693, 695 (Fla.1997). Rather, “[i]n reviewing an aggravating factor challenged on appeal, this Court’s task ‘is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance, and, if so, whether competent substantial evidence supports its finding.’ ” Hernandez v. State, 4 So.3d 642, 667 (Fla.2009) (quoting Douglas v. State, 878 So.2d 1246, 1260-61 (Fla.2004)).

Serrano v. State, 64 So.3d 93, 113-14 (Fla.2011).

Here, the trial court applied the right rule of law, and there is competent, substantial evidence to support the trial court’s finding that the victim experienced fear and terror prior to her death. In its sentencing order, the trial court recognized that, because “[d]eath by gunshot is generally instantaneous,” a finding of HAC does not usually follow “unless the shooting is accompanied by additional acts resulting in mental or physical torture to the victim.” Here, the trial court found that Ivory, who was five years old, witnessed the murder of her father and her mother prior to her own death, all within the same room. The trial court then determined that Ivory was crying and pulling on Heyne’s shorts and “experienced terror and fear no five year old child should ever experience in those brief moments” leading up to the murder.

Accordingly, because the trial court applied the correct rule of law and because the HAC aggravator was supported by competent, substantial evidence, we affirm the trial court’s finding.

C. Mental Health Mitigating Evidence

Next, Heyne argues that the trial court erred in rejecting expert testimony introduced to establish both statutory mental health mitigators. However, we conclude that the trial court did not abuse its discretion when rejecting the proposed statutory mitigators.

This Court has established several broad principles applicable to the trial court’s evaluation of proposed mitigators:

A trial court must find as a mitigating circumstance each proposed factor that has been established by the greater weight of the evidence and that is truly mitigating in nature. However, a trial court may reject a proposed mitigator if the mitigator is not proven or if there is competent, substantial evidence to support its rejection. Even expert opinion evidence may be rejected if that evidence cannot be reconciled with other evidence in the case. Finally, even where a mitigating circumstance is found a trial court may give it no weight when that circumstance is not mitigating based on the unique facts of the case.

Coday v. State, 946 So.2d 988, 1003 (Fla.2006).

When this Court reviews a trial court’s finding on a mitigator, it operates under the following standards of review:

Where it is clear that the trial court has considered all evidence presented in support of a mitigating factor, the court’s decision as to whether that circumstance is established will be reviewed only for abuse of discretion. See Harris v. State, 843 So.2d 856, 868 (Fla.2003); Foster v. State, 679 So.2d 747, 755 (Fla.1996). The trial court’s findings will be upheld where there is competent, substantial evidence in the record to support each finding. See Lebron v. State, 982 So.2d 649, 660 (Fla.2008). The weight assigned to an established mitigating circumstance is also reviewed for abuse of discretion. Id.
... However, a trial court’s findings on mitigation are also subject to review for harmless error, and this Court will not overturn a capital appellant’s sentence if it determines that an error was harmless beyond a reasonable doubt. See Lebron, 982 So.2d at 661; Singleton v. State, 783 So.2d 970, 977 (Fla.2001).

Ault v. State, 53 So.3d 175, 186-87 (Fla.2010).

The proposed statutory mitigators are addressed in turn.

1. Impaired capacity mitigator

Here, Dr. Riebsame testified that, because of Heyne’s mental disorders— ADHD and possible bipolar disorder — and self-reported drug and alcohol use at the time of the shootings, Heyne’s capacity to conform his conduct to the requirements of law was substantially impaired. The trial court partially rejected this expert testimony, finding that Heyne did have an impaired capacity but that the impairment was less than substantial. This finding was based in part on a separate finding that Heyne used drugs on the day of the murders but that the drugs did not hinder his ability to obtain a murder weapon, fire it with fatal accuracy, contact Larabie, or conceal incriminating evidence. The trial court gave moderate weight to the miti-gator of impaired (but less than substantially impaired) capacity.

The trial court’s finding on the impaired capacity mitigator was not an abuse of discretion because it was supported by competent, substantial evidence. See Ault, 53 So.3d at 187. Therefore, we affirm the trial court’s finding.

This Court has held that competent, substantial evidence supports the rejection of expert testimony in support of the substantially impaired capacity miti-gator where other evidence concerning the defendant’s capacity conflicts with the expert testimony. See Coday, 946 So.2d at 1003 (“Even expert opinion evidence may be rejected if that evidence cannot be reconciled with the other evidence in the case.”); see also Williams v. State, 37 So.3d 187, 204 (Fla.2010) (“[T]he rejection of expert testimony must have a rational basis, such as conflict with other evidence ....”) (emphasis added). Under similar reasoning, “[t]his Court has previously upheld rejection of this statutory mitigating factor where a defendant ‘took logical steps to conceal his actions from others.’ ” Zommer v. State, 31 So.3d 733, 750 (Fla.2010) (quoting Nelson v. State, 850 So.2d 514, 531 (Fla.2003) (quoting trial court’s order)). Evidence of “logical steps” conflicts with expert testimony on this mitigator because they constitute “purposeful actions ... indicative of someone who knew those acts were wrong and who could conform his conduct to the law if he so desired.” Hoskins v. State, 965 So.2d 1, 18 (Fla.2007) (quoting Nelson, 850 So.2d at 531).

In this case, the record includes evidence that conflicts with the expert testimony, specifically, Heyne’s “purposeful actions ... indicative of someone who knew those acts were wrong and who could conform his conduct to the law if he so desired.” Id. (quoting Nelson, 850 So.2d at 531). Following the shootings, Heyne took one of the murder weapons and placed it in a pillowcase, ran from the house, contacted an ex-girlfriend, and went back to her house. In an effort to conceal his involvement, Heyne took a shower, obtained replacement clothing identical to the clothing he wore when he committed the murders, washed the replacement clothing to make it look worn, hid the murder weapon and bloody clothes in the attic, and then lied to police about his involvement in the murder.

Additionally, there was a conflict in the evidence regarding Heyne’s self-reported drug use on the day of the murder, a factor vital to the experts’ evaluation of Heyne’s impulse control. In its sentencing order, the trial court observed that if Heyne was intoxicated on the day of the shooting, his intoxication was not so significant that it limited his ability to obtain a weapon, fire it accurately, contact Larabie, and then conceal the murder weapon, clothing, and drugs. See Zommer, 31 So.3d at 750 (“[A]lthough Zommer may have had some drugs in his system at the time of the murder, the evidence does not support a finding that those drugs substantially impaired his capacity....”). Additional conflicting evidence not referenced in the sentencing order included the observations of the officers, who said that Heyne did not appear intoxicated later that day, and the toxicology report showing an absence of cocaine in Benjamin, with whom Heyne claimed to have used cocaine earlier that day.

Therefore, we affirm the trial court’s finding on impaired capacity.

2. Emotional disturbance mitigator

Dr. Riebsame testified that the combination of Heyne’s mental disorders and self-reported intoxication at the time of the shootings placed him under the influence of an extreme mental or emotional disturbance. He clarified on cross-examination, however, that his opinion on extreme emotional disturbance would be different absent intoxication. Dr. Joseph Wu also testified that Heyne was under the influence of an extreme mental or emotional disturbance, but in questioning Dr. Wu, defense counsel asked the expert to assume intoxication in forming his opinion. As with the impaired capacity mitigator, the trial court partially rejected this expert testimony, finding that Heyne was under an emotional disturbance that was less than extreme. Again, the trial court referenced the separate finding on drug use at the time of the murder. Still, the evidence on Heyne’s less-than-extreme emotional disturbance was treated as a nonstatutory mitigator and was given little weight.

The trial court did not abuse its discretion because its finding on the emotional disturbance mitigator was supported by competent, substantial evidence. Therefore, we affirm.

“[E]xpert testimony alone does not require a finding of extreme mental or emotional disturbance.” Foster, 679 So.2d at 755. Instead, the trial court may disregard expert opinion where it determines that the opinion is unsupported by the facts or conflicts with other evidence. See, e.g., Ault, 53 So.3d at 189 (determining that evidence of a planned attack conflicted with a finding of extreme emotional disturbance). More specifically, we have held that testimony from lay witnesses concerning the defendant’s condition on the day of the murder may serve as competent, substantial evidence to support rejection of expert testimony on the extreme emotional disturbance mitigator. See, e.g., Nelson, 850 So.2d at 530; Rose v. State, 787 So.2d 786, 803 (Fla.2001) (holding that the trial court did not abuse its discretion in rejecting expert testimony regarding intoxication where two law enforcement officers testified that the defendant appeared to be sober and a bartender testified that he did not see the defendant at the bar he claimed to have visited).

Here, the trial court’s finding was based on competent, substantial evidence. Dr. Riebsame expressly stated that his opinion on the extreme emotional disturbance circumstance would be different if Heyne was not intoxicated on the day of the murder, yet the sole source of Dr. Riebsame’s belief that Heyne was intoxicated was Heyne’s self-report. Heyne’s second expert, Dr. Wu, was asked by the defense to assume intoxication in rendering his opinion. Meanwhile, the prosecution presented testimony from law enforcement officers in close contact with Heyne on the day of the murder who said that they observed no sign of alcohol or cocaine intoxication. A toxicology report indicated that Benjamin had no cocaine in his system just hours after the shooting, contrary to Heyne’s report that they used cocaine together that day. Therefore, the trial court did not abuse its discretion in finding that the disturbance was something short of “extreme.” See Foster, 679 So.2d at 756 (“It is clear from the sentencing order that the trial court gave some weight to non-statutory mitigation; however, the trial court did not find that it rose to the level of this statutory mitigator. Accordingly, we find that the trial court did not abuse its discretion....”).

In sum, the trial court did not abuse its discretion in assessing the mental health mitigating evidence. The trial court’s findings were supported by competent, substantial evidence.

D. Proportionality

Heyne argues that his sentence of death is not proportionate. For the reasons that follow, we disagree.

This Court is required to review the proportionality of a death sentence “in order to prevent the imposition of unusual punishments under the Florida Constitution.” Phillips v. State, 39 So.3d 296, 305 (Fla.2010), cert denied, — U.S. —, 131 S.Ct. 520, 178 L.Ed.2d 384 (2010). However, in analyzing proportionality, “[t]his Court’s function is not to reweigh the mitigating factors against the aggravating factors; that is the function of the trial judge.” Id. (quoting Blake v. State, 972 So.2d 839, 846 (Fla.2007)). Instead, “[i]n deciding whether death is a proportionate penalty, this Court considers the ‘totality of the circumstances in a case’ and compares the case with other capital cases.” Id. (quoting Sliney v. State, 699 So.2d 662, 672 (Fla.1997)). As it compares the case with others, this Court performs “a two-pronged inquiry ... to ‘determine [whether] the crime falls within the category of both (1) the most aggravated, and (2) the least mitigated of murders.’ ” Ault, 53 So.3d at 196 (quoting Almeida v. State, 748 So.2d 922, 933 (Fla.1999)). The review is “a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.” Urbin v. State, 714 So.2d 411, 416 (Fla.1998). In other words, “comparison is not simply a calculation of the number of aggravators and mitigators.” Lebron, 982 So.2d at 668.

In this case, the jury recommended death for the murder of Ivory by a ten to two vote. The trial court found three ag-gravators and gave them all great weight: (1) prior violent felony; (2) the murder was especially heinous, atrocious, or cruel (HAC); and (3) the victim was less than twelve years of age. “[T]he heinous, atrocious, or cruel aggravator is one of the ‘most serious aggravators set out in the statutory sentencing scheme.’ ” Aguirre-Jarquin v. State, 9 So.3d 593, 610 (Fla.2009) (quoting Larkins v. State, 739 So.2d 90, 95 (Fla.1999)). And “the prior violent felony aggravator is considered one of the weightiest aggravators.” Silvia v. State, 60 So.3d 959, 974 (Fla.2011). The trial court found thirteen mitigators: (1) Heyne suffers from a mental illness (great weight); (2) Heyne has brain damage and brain deficits (great weight); (3) Heyne had a problem with substance abuse and dependence (moderate weight); (4) Heyne had an impaired capacity to appreciate the criminality of his conduct or conform it to the requirements of law (moderate weight); (5) Heyne was under the influence of a mental or emotional disturbance (little weight); (6) Heyne was a good, caring father to a handicapped son (very little weight); (7) Heyne cared for and helped elderly neighbors when he was a child (very little weight); (8) Heyne gave his flannel jacket to a homeless person (very little weight); (9) Heyne protected younger, weaker children when he was a child (very little weight); (10) Heyne played football and other sports as a child and was devastated when he could no longer play (very little weight); (11) Heyne was recommended to receive in-patient psychiatric treatment at age five but did not receive treatment (moderate weight); (12) Heyne has a history of suicide attempts and self-destructive behavior (moderate weight); and (13) Heyne exhibited good behavior during trial (some weight).

This Court has found the death sentence proportionate in similar cases. See, e.g., Lynch, 841 So.2d 362 (death sentence proportionate in double homicide where, for the murder of the child victim, the trial court found aggravators of HAC, prior violent felony, and commission in the course of a felony; statutory mitigation of no significant criminal history; and non-statutory mitigation of mental or emotional disturbance, impaired capacity, mental illness, and alcohol abuse); Ocha v. State, 826 So.2d 956 (Fla.2002) (death sentence proportionate with aggravators of HAC and prior violent felony and nonstatutory mitigators including learning disability, post-traumatic stress disorder, intoxication on the night of the offense, psychiatric disturbance, and “extensive history” of substance abuse); Rogers v. State, 783 So.2d 980 (Fla.2001) (death sentence proportionate with aggravators of HAC and pecuniary gain; statutory mitigation of impaired capacity; and nonstatutory miti-gators including alcohol use on the day of the offense); Singleton v. State, 783 So.2d 970 (Fla.2001) (death sentence proportionate with aggravators of HAC and prior violent felony; statutory mitigators of extreme disturbance, impaired capacity, and age; and nonstatutory mitigators including alcoholism, mild dementia, and intoxication at the time of the offense).

Accordingly, we find the death penalty proportionate here.

III. SUFFICIENCY OF THE EVIDENCE

This Court independently reviews the record of a death penalty case to determine whether the evidence is sufficient to support the murder conviction. See Winkles v. State, 894 So.2d 842, 847 (Fla.2005). Here, there is competent, substantial evidence to support the murder convictions. See Durousseau v. State, 55 So.3d 543, 559-60 (Fla.2010), cert. denied, — U.S. —, 132 S.Ct. 149, 181 L.Ed.2d 66 (2011).

In his confession, Heyne described a verbal dispute he had with Benjamin, during which Heyne retrieved a gun from his room and returned to continue the argument with Benjamin. Heyne admitted that Benjamin dropped the gun and that he picked up Benjamin’s gun before pointing a gun at Benjamin and shooting. Blood found on Heyne’s clothing and pillowcase matched Benjamin’s DNA profile. He then admitted to shooting Sarah “because she was screaming” and because she could have served as a witness against him in the murder of Benjamin. As for Ivory, Heyne initially said that he could not remember shooting Ivory, but the evidence at the guilt phase demonstrated that Ivory was violently slapped in the face and then shot at close range with the same gun Heyne admitted to using in the murder and then hiding in Larabie’s attic. Heyne admitted seeing Ivory “go down” prior to leaving the scene and told his ex-girlfriend after the murder that Ivory was “gone.” He later admitted to his psychologist that he shot Ivory.

Because there is competent substantial evidence to support the murder convictions, we affirm.

IV. CONCLUSION

For the reasons expressed above, we affirm Heyne’s convictions and sentence of death for the murder of Ivory Hamilton.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . Heyne also claims that his sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Yet Ring does not apply to cases where, as here, the prior violent felony aggravator exists. See Hodges v. State, 55 So.3d 515, 540 (Fla.2010), cert. denied, - U.S. -, 132 S.Ct. 164, 181 L.Ed.2d 77 (2011).

      . The State cross-appealed, arguing that the trial court erred in rejecting the aggravator of commission for the purpose of avoiding or preventing a lawful arrest for the murder of Ivory. Because we affirm the death sentence for the murder of Ivory, we need not address the State’s cross-appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Shannon WALKER, II, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. SC10-638.
    Supreme Court of Florida.
    April 19, 2012.

      Bill Jennings, Capital Collateral Regional Counsel, Raheela Ahmed and Carol C. Rodriguez, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Cross-Appellee.

      Pamela, Jo Bondi, Attorney General, Tallahassee, FL, and Barbara Curtis Davis, Assistant Attorney General, Dayto-na Beach, FL, for Appellee/Cross-Appel-lant.
   PER CURIAM.

Robert Shannon Walker, II, was convicted of the 2003 first-degree murder, kidnapping, and aggravated battery of David “Opie” Hamman and sentenced to death. On direct appeal, this Court affirmed Walker’s convictions and death sentence. Walker v. State, 957 So.2d 560, 570 (Fla.2007). Walker later filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. Walker appeals from the postconviction court’s denial of his guilt-phase claims, and the State cross-appeals the postconviction court’s grant of a new penalty phase.

I. FACTS AND PROCEDURAL HISTORY

The facts of this case were fully set out in this Court’s opinion on direct appeal:

In the late evening hours of January 26, 2003, the victim, David “Opie” Ham-man, arrived at the second-floor apartment of Joel Gibson in the city of Palm Bay, located in Brevard County, Florida. Accompanying Hamman were two women, Leslie Ritter and Hamman’s girlfriend, Loriann Gibson. The appellant, Robert Shannon Walker, II, was waiting inside the apartment with his girlfriend, Leigh Valorie Ford, and Joel Gibson.
Immediately after Hamman entered Joel’s apartment, Walker and Ford viciously attacked Hamman, beating him with various objects including the head of a metal Maglite flashlight, a baton type weapon, and a blackjack. Although not actively participating, Joel seemed to be supervising the attack. The attack on Hamman was drug-related. About a half hour into the attack, Joel, Walker, and Ford forced Hamman to strip down to only his socks to ensure he was not wearing a wire because they suspected that Hamman was a Drug Enforcement Administration (DEA) agent. They also forced Ritter and Loriann Gibson to strip down to their underwear in order to check for wires but permitted the women to redress.
After being searched, the women went to the back bedroom. They last saw Hamman lying on a bloody sheet on the living room floor, naked, with one of his eyes halfway hanging out. There was blood all over the apartment. From the back bedroom, the women heard Walker and Ford asking Hamman, “Are you ready to die?” and heard Joel saying Hamman was going to die that night. They also heard Hamman plead for his life and scream, “Please, stop, I don’t want to die. Please don’t kill me. It hurts.”
The attack on Hamman at Joel’s apartment lasted between two and three hours. Sometime around midnight, Hamman tried to escape. While Walker and Ford were distracted, Hamman ran out of the apartment and made his way down the stairs, leaving a trail of blood behind him. When Walker and Ford discovered Hamman had escaped, Ford said, “Get the bag and stuff and put them in the trunk,” and “get the tarp and lay it in the trunk.” Hamman made it a short distance down the road leading away from Joel’s apartment before being caught by Walker and Ford. He had left drops of blood on the parking lot and the road at the point where Walker and Ford caught him, near the apartment mailboxes.
Walker and Ford put the tarp in the trunk of Ford’s automobile and forced Hamman to get in. Walker told Ford to find a remote spot to take Hamman. Ford drove her car with Hamman in the trunk, and Walker drove Hamman’s pickup truck. On the way, they stopped at the house of Joel Gibson’s girlfriend, Lisa Protz. Protz saw that Walker had a gun. Walker asked Protz for gasoline, rope, and tape, but she only gave him tape. A few minutes later, Ford arrived, and not long after that, Joel called on Protz’s phone. While talking to Joel, Walker wrapped the tape around his fingers.
Walker and Ford then left and drove to a remote area down a dirt road just outside the gates to the Tom Lawton Recreation Area, a state park. At some point between Joel Gibson’s apartment and the park, Hamman’s hands were bound behind his back with a plastic cable tie. Just outside the park gates, Hamman was taken out of the trunk and forced to lie down with his back on the ground. Walker then shot Hamman six times in the face with a Llama .45 pistol. Walker left Hamman on the road and drove back to Joel Gibson’s apartment.
After waiving his Miranda rights and signing a waiver-of-rights form, Walker gave a taped statement to Agents Herrera and Heyn in which he confessed to beating, kidnapping, and shooting David Hamman. Walker admitted to beating Hamman with a Maglite flashlight when Hamman arrived at Joel’s apartment but claimed that they mainly argued. Walker said that he made Hamman sit on the couch and questioned Hamman about being wired and about being a “cop.” He told Hamman to strip, and Hamman complied. Walker claimed that he hit Hamman only three to four more times before Hamman ran naked from the apartment. Walker explained he “just wanted to slap the piss out of [Hamman] because he scared me.”
Walker also admitted to chasing Ham-man down and taking him for a ride in the trunk of Ford’s car, but claimed that Hamman got in and out of the trunk on his own. Walker claimed that when they arrived outside the state park, Hamman told Walker that he knew the address of Walker’s parents and was going to rape Walker’s mother while he videotaped it. Walker then admitted to binding Hamman’s hands and shooting Hamman with the Llama .45. Walker said that Hamman’s body was lying face up beside the truck at the time he was shot. Walker said that he only meant to scare Hamman and humiliate him by driving him out to a remote location and forcing him to walk back naked. He explained that he only killed Hamman after Hamman scared him by making threats to harm his family. After that, Walker confirmed that he went back to Joel Gibson’s apartment and asked Rit-ter and Loriann Gibson to take him for a ride in Hamman’s truck. When they stopped in Live Oak, the women left Walker at the gas station.

Walker, 957 So.2d at 565-67 (footnotes omitted).

At the penalty phase, Walker presented testimony from two mental health experts, which this Court summarized as follows:

Both Dr. Radin and Dr. Bernstein diagnosed Walker as having bipolar disorder. Dr. Radin admitted that he “hardly observed” Walker’s mood swings and did not really have evidence of bipolar disorder apart from Walker’s self-reporting. Walker had never been previously diagnosed as bipolar. Although Walker reported that he had seen someone for therapy for eight to ten months when he was fifteen years old, Dr. Radin did not perceive Walker’s condition as being longstanding.
Dr. Radin also testified that people facing serious charges often manifest anxiety or depression and that some people with Walker’s bipolar condition might self-medicate with alcohol, marijuana, cocaine, or methamphetamines. He testified that consumption of these types of drugs alters one’s thinking capacity. Dr. Bernstein also testified that people who are depressed tend to self-medicate with something that is fast acting, such as crack cocaine, methamphet-amines, or “speed.” He further testified that speed is not a narcotic but a central nervous system stimulant, and if a bipolar person used speed for a few days, the person’s mental activity would likely become more hyperactive. He further testified that ingestion of drugs would aggravate the bipolar disorder.

Id. at 583. The jury recommended death by a seven to five vote. Id. at 569.

At the Spencer hearing, the trial court indicated that it received letters from Walker’s sister and Walker’s friend requesting that the trial court show mercy on Walker. At the sentencing hearing, another one of Walker’s friends, Jean Re-bert, testified that Walker had been addicted to drugs and that the drugs made him violent. Rebert had a counseling background but had only, in her words, a “grandmotherly-type” relationship with Walker that lasted “on and off for about three years.”

The trial court found three aggravators and four mitigators. The trial court followed the jury’s recommendation and imposed the death penalty. And on direct appeal, this Court affirmed Walker’s convictions and death sentence. Id. at 570.

Walker subsequently filed a motion for postconviction relief in the trial court alleging numerous instances of ineffective assistance of counsel. He also raised various constitutional challenges to the death penalty. The postconviction court denied the guilt-phase and constitutional claims but granted a new penalty phase after finding that defense counsel was ineffective at the penalty phase for failing to investigate mitigating evidence. Walker now appeals the denial of postconviction relief on his guilt-phase claims. The State cross-appeals the trial court’s decision to grant relief on Walker’s penalty-phase claim.

II. MOTION FOR POSTCONVICTION RELIEF

On appeal from the partial denial of postconviction relief, Walker claims that the trial court erred in summarily denying his claim that counsel was ineffective for (A) failing to object to evidence on possible blood stains outside the apartment; and (B) failing to present evidence to the jury that Walker’s statement to law enforcement was involuntary. Walker also alleges (C) cumulative error. We affirm the trial court’s denial of relief on these issues.

Following the United State Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

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.

Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)). Where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).

There is a strong presumption that trial counsel’s performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court 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.”

Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

In determining entitlement to an eviden-tiary hearing, this Court has provided the following standard:

Because a court’s decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003) (holding that “pure questions of law” that are discernible from the record “are subject to de novo review”). Accordingly, when reviewing a court’s summary denial of an initial rule 3.851 motion, the Court must accept the movant’s factual allegations as true, and the Court will affirm the ruling only if the filings show that the movant has failed to state a facially sufficient claim or that there is no issue of material fact to be determined. See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000) (Amendments I). However, to the extent there is any question as to whether a rule 8.851 movant has made a facially sufficient claim requiring a factual determination, the Court will presume that an evidentiary hearing is required. See id.
... In other words, a postconviction claim may be summarily denied only when the claim is “legally insufficient, should have been brought on direct appeal, or [is] positively refuted by the record.” Connor v. State, 979 So.2d 852, 868 (Fla.2007).

Seibert v. State, 64 So.3d 67, 75 (Fla.2010) (footnote omitted).

A. Failure to object to possible blood stains

Walker argues that the postconviction court erred in summarily denying his claim that defense counsel was ineffective for failing to object in a timely manner to the admission of photographs depicting possible blood stains outside the apartment on the stairs. Specifically, he alleges that, although defense counsel objected when the prosecution sought to admit the photographs at trial, his counsel was ineffective for failing to object to the photographs earlier, before the jury heard the crime scene detective characterize the photographs as depicting “apparent blood stains.” We disagree.

Walker’s defense counsel cannot be deemed deficient for failing to lodge an earlier objection to the photographs because an earlier objection, like the later objection, would have been meritless. See Raleigh v. State, 932 So.2d 1054, 1064 (Fla.2006) (“[D]efense counsel cannot be deemed deficient for failing to make a meritless objection.”). As Walker recognized in his postconviction motion, defense counsel objected to the admission of the photographs of the apartment stairs at trial, and the trial court’s decision to admit the photographs over defense counsel’s objection was affirmed by this Court on direct appeal. Walker, 957 So.2d at 569. Walker’s attempt to focus his argument on the timing of counsel’s objection to the same evidence does not alter the underlying issue of admissibility of the photographs.

Even if defense counsel should have objected prior to the witness’s description of the photographs, Walker cannot establish prejudice. “Under Strickland, a defendant is prejudiced by his counsel’s deficient performance if ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Porter v. McCollum, — U.S. —, 130 S.Ct. 447, 453, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Here, this prejudice prong of Strickland cannot be satisfied because Walker confessed to the murder and, specifically, to beating the victim in the apartment, chasing him down, and putting him in the trunk of Ford’s car. The prosecution presented evidence independent of the photographs to demonstrate that the victim was severely beaten and bloodied and that blood matching the victim’s DNA profile was located inside the upstairs apartment and in Ford’s trunk.

Therefore, Walker’s claim was properly denied without a hearing by the trial court.

B. Failure to present evidence to the jury that Walker’s confession was involuntary

Walker also argues that the post-conviction court erred in summarily denying his claim that defense counsel was ineffective for failing to present evidence to the jury that Walker’s confession was involuntary. Prior to trial, Walker moved to suppress his statement to law enforcement on the ground that it was involuntarily made under the influence of mind-altering drugs. The trial court viewed the videotaped interrogation and heard evidence on Walker’s drug use on the day of his arrest. Ultimately, the trial court found that “there was insufficient evidence as to the exact drugs used or the amount” and ruled that, based on the totality of the circumstances, Walker’s waiver and confession were knowingly and intelligently given. This Court affirmed, determining that the trial court’s ruling on voluntariness was supported by competent, substantial evidence. Walker, 957 So.2d at 575.

Walker asserts that defense counsel should have presented the same information to the jury during the trial because the jury could have decided that the confession was involuntary. In support, he references Florida Standard Instruction in Criminal Cases 3.9(e), which was given prior to deliberations in this case and advises the jury as follows:

A statement claimed to have been made by the defendant outside of court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made.
Therefore, you must determine from the evidence that the defendant’s alleged statement was knowingly, voluntarily, and freely made.
In making this determination, you should consider the total circumstances, including but not limited to:
1. whether, when the defendant made the statement, [he] had been threatened in order to get [him] to make it, and
2. whether anyone had promised [him] anything in order to get [him] to make it.
If you conclude the defendant’s out of court statement was not freely and voluntarily made, you should disregard it.

Emphasis added.

The trial court did not err in summarily denying Walker’s claim of ineffective assistance of counsel because the underlying claim that Walker’s statement was involuntary is meritless. On direct appeal, this Court concluded that there was “competent, substantial evidence to support the trial court’s conclusion that Walker made a knowing, voluntary, and intelligent decision to waive his Miranda rights and give his statement to police.” Walker, 957 So.2d at 576. Walker is not permitted to relitigate the voluntariness of his confession on postconviction appeal. See Green v. State, 975 So.2d 1090, 1106 (Fla.2008) (“Because the ... issue was raised on direct appeal, Green is not permitted to relitigate it on postconviction appeal.”).

However, even if defense counsel was deficient for failing to present evidence of intoxication to the jury, Walker cannot establish prejudice. The available evidence on drug impairment and sleeplessness was, as the trial court found, insufficient to show lack of voluntariness and conflicted with testimony from officers that Walker showed no signs of drug influence at questioning. See Thomas v. State, 456 So.2d 454, 458 (Fla.1984) (“[T]he drunken condition of an accused when making a confession, unless such drunkenness goes to the extent of mania, does not affect the admissibility in evidence of such confession ....”) (quoting Lindsey v. State, 66 Fla. 341, 63 So. 832, 833 (1913) (emphasis added)). Walker does not allege that counsel should have advanced any evidence beyond that previously presented to the trial court at the suppression hearing. Therefore, even if defense counsel was deficient for failing to present evidence of intoxication to the jury, there is no “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Porter, 130 S.Ct. at 453 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Our confidence is not undermined. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).

Accordingly, the trial court did not err in summarily denying this claim of ineffective assistance of counsel.

C. Cumulative error

Because Walker has failed to provide this Court with any basis for relief in any of his postconviction claims, Walker is not entitled to relief based on cumulative error. See Bradley v. State, 33 So.3d 664, 684 (Fla.2010).

III. STATE’S CROSS-APPEAL

The State argues that the post-conviction court erred in finding that defense counsel was ineffective at the penalty phase. We disagree and affirm the post-conviction court’s order granting a new penalty phase.

In evaluating alleged deficiency during the penalty phase, this Court has recognized that “an attorney has a strict duty to conduct a reasonable investigation of a defendant’s background for possible mitigating evidence.” State v. Riechmann, 111 So.2d 342, 350 (Fla.2000). “In the penalty phase of a trial, ‘[t]he major requirement ... is that the sentence be individualized by focusing on the particularized characteristics of the individual.’ ” Cooper v. Sec’y, Dep’t of Corr., 646 F.3d 1328, 1354 (11th Cir.2011) (quoting Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir.1987)). “Therefore, ‘[i]t is unreasonable to discount to irrelevance the evidence of [a defendant’s] abusive childhood.’” Id. (quoting Porter, 130 S.Ct. at 455). We have specified that “investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’” Blackwood v. State, 946 So.2d 960, 974 (Fla.2006) (quoting Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). This Court has also specifically noted that “both Wiggins [, 539 U.S. at 524,] and the ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases § 10.11 (rev. ed. 2003) on counsel’s duties mandate mitigation investigation and preparation, even if the client objects.” Henry v. State, 937 So.2d 563, 573 (Fla.2006) (emphasis added).

To show prejudice under Strickland, the defendant “must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider ‘the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the [postconviction] proceeding’ — and ‘reweig[h] it against the evidence in aggravation.’ ” Porter, 130 S.Ct. at 453-54 (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Henry v. State, 948 So.2d 609, 617 (Fla.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

In this case, defense counsel testified that he investigated potential mitigation evidence by conducting five phone conversations with Walker’s mother and sister and by talking to some mostly unidentified “local people.” Defense counsel never sought medical, educational, criminal, drug treatment, or social service records. He did not seek background information from any other immediate or extended family members prior to trial. Walker’s counsel also declined to contact Christopher Walker, Walker’s cousin, who provided extensive testimony on Walker’s family background at the evidentiary hearing, even though Walker was using Christopher’s name and identification at the time of his arrest. Once Walker’s trial began, defense counsel met with Walker’s mother and father, observed that “they were pathetic looking,” but did not do any research regarding the family’s background. Defense counsel did not attempt to speak with any former neighbors, correctional officers, or teachers familiar with Walker.

Defense counsel presented just two witnesses at the penalty phase, Dr. Radin and Dr. Bernstein, both of whom diagnosed Walker with bipolar disorder while in jail awaiting trial. Walker, 957 So.2d at 583. The experts together provided generalized information regarding the tendency of those with bipolar disorder to “self-medicate” with drugs and the likelihood that such drugs would aggravate the disorder. Id. Neither expert, however, discussed Walker’s history with drugs or their role in the crime. At the Spencer hearing, defense counsel declined to present any additional evidence and did not request a continuance to review the letters received by the judge, letters that defense counsel had not seen before.

In contrast, at the postconviction eviden-tiary hearing, Walker presented extensive testimony from family and friends concerning his background and family history as well as testimony from two additional experts with knowledge specific to Walker’s drug addiction and lifelong emotional and educational problems. First, Walker’s cousin, Anita Morris, testified that she was available and would have testified at the penalty phase if asked. She was “very close” with Walker growing up and frequently visited his home until she was a teenager. Morris testified that Walker’s parents hosted frequent, chaotic parties in which 30-40 visitors abused alcohol, marijuana, and hallucinogens. She remembered the environment as a scary one in which adults engaged in routine violence and laid on the floor intoxicated as the children were neglected and allowed to sample drugs. She would retreat from the home whenever possible.

Morris observed Walker taking drugs as a child and knew him to be exposed to drugs on a daily basis. According to Morris, Walker’s parents did not provide for his basic needs and instead spent money on drugs and alcohol. Walker’s mother believed she could talk to spirits and regularly abused marijuana and hallucinogenic mushrooms. One of Walker’s sisters was retarded, one had mental illness problems, and all three of his sisters had drug problems. Morris testified that when Walker was a child, he was overweight and had regular bowel control problems. His parents and other family members made fun of him, and Walker would frequently lose control and attack people.

Another cousin, Christopher Walker, testified that he was available and would have testified at the penalty phase if asked. Christopher was a year older than Walker, and the two grew up together like brothers. He too observed chaotic parties involving cocaine, LSD, and marijuana use and witnessed numerous occasions in which violence, sometimes involving Walker’s parents, resulted in severe injuries requiring hospitalization. Christopher remembered adults openly using drugs in front of them and recalled leaving the house to get away from violence. He said that Walker’s father abused drugs and alcohol and that Walker’s mother practiced witchcraft, abused LSD, cocaine, and marijuana, and would give drugs to members of the family. Christopher further testified that when he and Walker were children, Walker’s family would provide them with drugs if the children were unable to take it from the table. By age eleven, he and Walker were involved in the parties and were drinking and taking drugs on a daily basis. Christopher testified that Walker was using LSD at age fourteen or fifteen. He recalled all of Walker’s family members engaged in substance abuse and two of Walker’s sisters having serious mental issues.

Christopher testified that Walker’s parents did not provide for Walker and would only occasionally provide Walker with food. He and Walker had to find their own meals and were not supervised as children. Christopher recalled Walker and his parents getting physically violent with one another and remembers running from the house with Walker to escape. He also testified that Walker would bite his teachers and pull their hair. Christopher said that Walker’s bowel control problems persisted until Walker was a teenager and that he developed “violent tendencies.” Christopher testified that Walker was in special education classes. When Walker was a teenager, an older man “took [Walker] under his wing” and introduced him to a criminal motorcycle gang known for dealing drugs, bombing cars, and shooting people. During this time, the quantity and types of drugs Christopher and Walker ingested started to increase and expanded to include crystal methamphetamines, “a lot of PCP,” and “lots of cocaine.” Christopher testified that he and Walker continued to abuse drugs together throughout their teenage years and into their twenties. Walker moved to Florida when Walker was in his mid- to late-twenties. When he came to visit once, however, Christopher observed that Walker was using crystal metham-phetamines and not sleeping. Walker appeared to be scared and “running from something.”

Jean Rebert, the friend who testified at the sentencing hearing, testified at the postconviction evidentiary hearing that she was not contacted until after the trial but that she would have been available and willing to testify at the penalty phase if asked. Rebert’s son knew Walker when Walker was a teenager and the two were involved in the motorcycle gang. Her son was later incarcerated for racketeering and drug dealing associated with that involvement. She testified that she met Walker when he came to Florida with his wife and that she never saw Walker using drugs. However, she learned from Walker’s sister that he was allowed to use drugs and alcohol as a toddler and that she saw Walker experience dramatic weight loss and begin to resemble someone addicted to crack cocaine or methamphetamine.

Another friend, Gene D’Oria, testified that he was never contacted but was willing and available to testify at the penalty phase. He met Walker when Walker was in the motorcycle gang, and the two started using drugs together. At first, he said, the methamphetamine use was “casual” and confined to weekends. After a year of methamphetamine, cocaine, ecstasy, and marijuana use, however, Walker was staying awake to use methamphetamine for days at a time, had “dope sores” on his stomach and arms, developed bad teeth, and lost a significant amount of weight. Six to eight months prior to the murders, Walker appeared “scary” and no longer trusted anyone. D’Oria’s friendship with Walker ended about a week before the murder because Walker became so paranoid that he attacked a mutual friend.

Walker also presented expert testimony from Edward Gratzick, a social worker and therapist to whom Walker was referred by the juvenile court when Walker was fifteen. Gratzick testified that Walker had no physical problems but would lose control of his bowels daily or every other day until he was nine years old. Gratzick testified that Walker started receiving special education as an emotionally disturbed child in second grade and that attempts to place him in mainstream classes did not work because of Walker’s “emotional verbal outbursts.” He said that Walker dropped out of school and quit therapy at age sixteen.

Finally, Walker presented expert testimony from Dr. William Morton, a psycho-pharmacologist, who reviewed records, interviewed Walker and others familiar with Walker, and testified regarding Walker’s addiction to methamphetamine and the effects of various drugs on Walker’s brain. Dr. Morton testified that Walker put methamphetamines in his coffee in the morning and swallowed and sniffed it throughout the day. He testified that Walker was using two to four grams of methamphetamine every day, a level of abuse that typically results in drug-induced delirium, pronounced paranoia, and psychosis. His discussions with witnesses and information gathered from police reports confirmed that at the time of the crime, Walker was suffering from impul-sivity, distorted perceptions, persistent paranoia, hallucinations, and very high anxiety.

In its order granting relief on this claim, the postconviction court found that the testimony presented at the evidentiary hearing, unlike the evidence at the penalty phase, “gave considerable insight into [Walker’s] childhood and young adulthood,” serving to humanize him to the jury. The postconviction court concluded that if the evidence had been presented at trial, it was likely to constitute “strong” and “important” mitigation likely to influence at least one juror. Furthermore, the postconviction court considered the information regarding Walker’s substance abuse to be a mitigator under these circumstances.

The postconviction court did not err in concluding that counsel was ineffective. Rodriguez v. State, 919 So.2d 1252, 1264 (Fla.2005) (“In the past, this Court has found ineffectiveness where no attempt was made to investigate mitigation even though substantial mitigating evidence could have been presented”). First, even if Walker was resistant to defense counsel’s efforts, defense counsel’s failure to attempt to collect background records and testimony from available family members and friends supports the conclusion that counsel’s performance was deficient. See Cooper, 646 F.3d at 1354; Henry, 937 So.2d at 573 (noting that counsel must investigate mitigation “even if the client objects”); of. Peede v. State, 955 So.2d 480, 493 (Fla.2007) (finding counsel not ineffective where “the record supports both the finding of lack of cooperation by Peede and counsel’s efforts notwithstanding Peede's recalcitrance ”) (emphasis added). Defense counsel’s failure to attempt to obtain reasonably available mitigating evidence from available sources precludes the State’s argument that counsel reasonably chose against advancing the potentially detrimental testimony presented at the evidentiary hearing. See Rose v. State, 675 So.2d 567, 572-73 (Fla.1996) (finding counsel’s decision neither informed nor strategic where “there was no investigation of options or meaningful choice”).

Second, Walker has established prejudice. After reweighing the evidence in aggravation against the mitigation evidence presented during the postconviction evidentiary hearing and the penalty phase, our confidence in the outcome of the penalty phase trial is undermined. See Porter, 130 S.Ct. at 453-54. Walker had a troubled history that was at minimum relevant to assessing his moral culpability. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ... may be less culpable than defendants who have no such excuse.”) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring)); Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (noting that consideration of the capital defendant’s background is a “part of the process of inflicting the penalty of death”) (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). Considering the lack of background evidence produced at trial, the wealth of such evidence produced at the postconviction hearing, and the trial court’s determination that its presentation was likely to result in “strong” or “important” miti-gators, our confidence in the outcome of the penalty phase trial is undermined. See Porter, 130 S.Ct. at 453-54; Ferrell v. State, 29 So.3d 959, 985 (Fla.2010) (affirming a finding of prejudice because “there was substantial mitigating evidence which was available but undiscovered”) (quoting State v. Pearce, 994 So.2d 1094, 1103 (Fla.2008)). The State’s argument that the evidence presented at the postconviction hearing was cumulative is unsupported by the record, which demonstrates a lack of penalty-phase testimony on Walker’s turbulent background, family history, and drug addiction.

Accordingly, the trial court did not err in concluding that defense counsel was ineffective during the penalty phase and in granting Walker a new penalty phase.

IV. CONCLUSION

Based on the foregoing, we affirm the trial court’s order denying Walker’s guilt-phase claims and granting a new penalty phase.

It is so ordered.

CANADY, C.J., and.PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

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

      . The trial court found the following aggrava-tors: (1) the murder was committed during the course of a kidnapping (great weight); (2) the murder was especially heinous, atrocious, or cruel (great weight); and (3) the murder was cold, calculated, and premeditated (great weight).

      . The trial court found the following miti-gators: (1) Walker was affected by the use of drugs, bipolar disorder, and sleep deprivation on the night of the murder (moderate weight); (2) Walker's codefendant received a life sentence (some weight); (3) Walker gave a statement to the police (moderate weight); and (4) Walker showed remorse (slight weight).

      . On direct appeal, Walker argued that (1) the trial court erred in denying his motion to suppress his statement to law enforcement because his statement was involuntary; (2) the trial court erred in denying his motion to declare Florida’s capital sentencing scheme unconstitutional because a judge rather than a unanimous jury determines death penalty aggravators; (3) the trial court erred in denying his motion for judgment of acquittal; (4) the trial court erred in weighing the aggravating and mitigating factors; (5) the trial court erred by admitting photographic evidence which was either irrelevant or gruesome and unduly prejudicial; (6) the trial court erred in denying Walker’s motion for a statement of particulars regarding the aggravating circumstances and the State’s theory of prosecution; and (7) the trial court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), by denying Walker’s motion for findings of facts by the jury in a special verdict form. Walker, 957 So.2d at 569.

      . Walker also argues that a postconviction evidentiary hearing was necessary so that the trial court could hear evidence of an unrelated fight on the same steps, suggesting that counsel was also ineffective for failing to investigate the possibility that the blood could be attributed to another source. However, even if blood from another source was also found on the trail between the apartment and the trunk, Walker could not satisfy the prejudice prong of Strickland..- And, to any extent that Walker attempts to present newly discovered evidence, the claim fails because the evidence is not "of such nature that it would probably produce an acquittal on retrial.” Jones v. State, 709 So.2d 512, 521 (Fla.1998).

      . Records from a social worker who worked with Walker as a child were found in defense counsel’s file during postconviction proceedings. But defense counsel did not remember receiving or viewing those records in preparation for the penalty phase, leading the post-conviction court to find that defense counsel "never pursued that lead.”

      . Walker also presented expert testimony from Dr. Joseph Sesta concerning possible brain injury. But, because Walker refused to receive an MRI in preparation for the eviden-tiary hearing, the postconviction court found no basis to conclude that the testimony would have constituted significant mitigation evidence.

      . Additionally, the trial court correctly determined that Walker did not make a knowing, voluntary, and intelligent waiver of mitigation evidence. See State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002). Because defense counsel failed to reasonably investigate mitigating evidence as set forth above, Walker did not have the opportunity to make an informed, intelligent decision. See id. at 1113-14 ("Although a defendant may waive mitigation, he cannot do so blindly; counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision.”); see also Ferrell v. State, 29 So.3d 959, 983 (Fla.2010) (determining that the defendant’s waiver was invalid where there was "no indication that trial counsel performed any investigation into the penalty phase”); State v. Pearce, 994 So.2d 1094, 1102 (Fla.2008) (determining that the defendant's waiver was invalid where "counsel never investigated Pearce’s background, never interviewed members of Pearce’s family, and never investigated mental health issues”).


author: PER CURIAM. PARIENTE, J.,

text:
    In re AMENDMENTS TO FLORIDA RULE OF JUVENILE PROCEDURE 8.255.
    No. SC10-2010.
    Supreme Court of Florida.
    April 26, 2012.
    Joel M. Silvershein, Chair, Juvenile Court Rules Committee, Fort Lauderdale, Florida, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Michelle Hankey, West Palm Beach, Florida, on behalf of Legal Aid Society of Palm Beach County; Bernard P. Perlmut-ter, Kele M. Stewart, Coral Gables, FL, and Robin L. Rosenberg and Christina L. Spudeas, Coral Springs, FL, on behalf of University of Miami School of Law, Florida’s Children First, Inc., Florida Youth Shine, and Legal Aid Service of Broward County, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Rule of Juvenile Procedure 8.255. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

On October 21, 2010, the Florida Bar’s Juvenile Rules Committee (Committee) filed an out-of-cycle report proposing amendments to rule 8.255(b) (Presence of Child). The Executive Committee of the Florida Bar Board of Governors approved the proposal by a vote of 12-0. The Court published the proposal for comment. Two comments were filed, and the Committee filed a response to the comments. After considering the Committee’s proposal, the Court asked the Committee to consider whether the amendment should include a provision stating that, when the child is present at the hearing, the trial judge has a duty to inquire whether attendance is in the child’s best interest. See Letter from Thomas D. Hall, Clerk of the Florida Supreme Court, to Joel M. Silvershein, Juvenile Rules Comm. Chair (July 19, 2011) (on file with the Court in Case No. 10-2010). In response, on October 3, 2011, the Committee filed a revised proposal. The revised proposal has not yet been published for comment.

Upon consideration, we adopt the amendments to rule 8.255(b) as proposed by the Committee in its revised proposal. The amendments address the right of a child to be present at all hearings in dependency and termination of parental rights proceedings, as well as the duty of the trial judge to make the appropriate best interest determinations regarding the child’s presence. Subdivision (b)(1) states that the child has the right to be present at “all hearings.” Moreover, new subdivision (b)(3) is added requiring that, if the child is not present, the court shall inquire and determine the reason for the child’s absence. The trial judge must then determine whether it is in the child’s best interest to conduct the hearing without the presence of the child, or to continue the hearing so as to allow the child the opportunity to be present. Under new subdivision (b)(2), if the child is present at the hearing, the court may excuse the child if it would not be in the child’s best interest to remain.

Accordingly, Florida Rule of Juvenile Procedure 8.255(b) is hereby amended, as reflected in the appendix to this opinion. New language is indicated by underscoring, and deleted language is indicated by struck-through type. The amendments shall become effective June 1, 2012, at 12:01 a.m. Because the revised proposal of the Committee, which we have adopted, was not published for comment prior to adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion.

PARIENTE, J.,

concurring.

I commend the Florida Bar’s Juvenile Rules Committee for proposing amendments to rule 8.255(b) that will strengthen the provision that children have a right to be at hearings in their dependency cases. When this Court last made amendments to rule 8.255(b), I explained my view of the overriding purpose of the rule:

I read this rule as ensuring that children have the right to be present and be heard on the important issues affecting their lives. And certainly, as the child becomes a young adult, nothing can be more important than giving the child a voice in planning his or her future, ensuring that the child is aware of the services available, and is in fact taking advantage of and receiving the services provided by statute.

In re Amendments to Fla. Rule of Juvenile Procedure 8.255, 3 So.3d 1239, 1245 (Fla.2009) (Pariente, J., dissenting).

I agree with the addition of rule 8.255(b) because it ensures that before a hearing proceeds without the presence of a child, the trial court “shall inquire and determine the reason for the absence of the child.” In those cases where the child has an attorney or a guardian ad litem, the inquiry will assist the trial court in making sure that there was a specific informed reason for the child’s absence. When the child has neither a lawyer nor a guardian ad litem, the trial court must take steps to ensure that there is a meaningful inquiry as to why the child is absent.

At the core of the intent of the rule is the child’s right to be present. Unless the trial court affirmatively determines that it would be to the child’s detriment to be present based on specific facts and circumstances in that case, the trial court should ensure that the child is both present and has a meaningful opportunity to be heard. As set forth in Florida’s Dependency Benchbook (2011), a collaborative effort by Florida dependency judges and stakeholders throughout the State, the following explanation is given for the importance of children at hearings:

Aligning with the principles of family-centered practice, Florida courts are embracing the importance of including children and youth in court and are implementing practices that help them actively participate in dependency proceedings.
Florida Statutes define the child as a party to the dependency case. As a party to the case, children must be notified of all court proceedings (unless excused by the court when the age, capacity, or other condition of the child is such that notice would be meaningless or detrimental to the child). Furthermore, the federal Adoptions and Safe Families Act requires the court to conduct an age-appropriate consultation with the child during a permanency hearing.
Having the child physically present in court gives the judge an opportunity to observe and validate the child’s well-being and to ensure that the child’s needs are identified and appropriate treatment is provided. Direct observation can validate the Comprehensive Behavioral Assessment to give the judge the best information for making decisions about the child’s placement and recommendations for services.
This model serves as suggested guidelines for how to encourage children of all ages to actively participate in their dependency cases. It provides guidance on issues related to including children in all segments of the dependency proceedings so that Florida’s children are able to have a voice in the services that are provided and ultimately in the aspects of the case that impact their lives. Allowing children to actively participate in court proceedings is an important aspect of family-centered practice.

Id. at 4-1. My hope is that the amendments to rule 8.255(b) will help to ensure that our children in dependency cases are both present and have a meaningful opportunity to be heard.

APPENDIX

RULE 8.255. GENERAL PROVISIONS FOR HEARINGS

(a) [No change]

(b) Presence of Child.

(1) The child has a right to be present at tfaeall hearings unless the-eour-t-fiads that -the child’s mental or ph-ysical-condition-or-age-is-such that a court appearance is not in the best-interest , of the child.

(2) If the child is present at the hearing, the court may excuse the child from any portion of the hearing when the court determines that it would not be in the child’s best interest to remain.

(3) If a child is not present at a hearing, the court shall inquire and determine the reason for the absence of the child. The court shall determine whether it is in the best interest of the child to conduct the hearing without the presence of the child or to continue the hearing to provide the child an opportunity to be present at the hearing.

(4) Any party may file a motion to require or excuse the presence of the child.

(c)-(h) [No change]

Committee Notes

[No change]

      . An original and nine paper copies of all comments must be filed with the Court on or before June 25, 2012, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable Joel M. Silvershein, State Attorney’s Office, 201 SE 6th Street, Suite 660, Fort Lauderdale, Florida 33301-3334, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until July 16, 2012, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court’s administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

      . This excellent benchbook is a product of the statewide Dependency Court Improvement Panel, chaired by the Honorable Jeri B. Cohen, with support from the Office of Court Improvement. The benchbook is a compilation of "promising and science-informed practices as well as a legal resource guide. It is a comprehensive tool for judges, providing information regarding legal and non-legal considerations in dependency cases." Id. at 1-1.


text:
    Norman PARKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC11-473.
    Supreme Court of Florida.
    April 26, 2012.
    Neal A. Dupree, Capital Collateral Regional Counsel, Rachel L. Day, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Guillermo O. ARBELAEZ, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1207.
    Supreme Court of Florida.
    April 26, 2012.
    Neal A. Dupree, Capital Collateral Regional Counsel, and Rachel Lawrence Day, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Paul Christopher HILDWIN, Appellant, v. STATE of Florida, Appellee.
    No. SC11-428.
    Supreme Court of Florida.
    April 26, 2012.
    Martin J. McClain of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Dayto-na Beach, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Antonio Lebaron MELTON, Appellant, v. STATE of Florida, Appellee.
    No. SC11-973.
    Supreme Court of Florida.
    April 26, 2012.
    D. Todd Doss, Lake City, FL, for Appellant.

      Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ„ concur.