author: PER CURIAM. PARIENTE, J.,

text:
    Charles C. PETERSON, Appellant, v. STATE of Florida, Appellee. Charles C. Peterson, Petitioner, v. Michael D. Crews, etc., Respondent.
    Nos. SC12-1442, SC13-47.
    Supreme Court of Florida.
    June 26, 2014.
    Rehearing Denied Dec. 2, 2014.

      David Dixon Hendry, Assistant CCRC, Capital Collateral Regional Counsel-Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Katherine Vickers Blan-co, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Charles C. Peterson appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

BACKGROUND

Trial

Peterson was convicted and sentenced to death for the murder of John Cardoso. Peterson v. State, 2 So.3d 146 (Fla.2009). On direct appeal, we set forth the relevant factual and procedural background as follows:

Karen Smith testified that she worked as an assistant manager at a Big Lots in St. Petersburg, Florida, on the evening of December 24, 1997. She testified that while she and two other employees were in the store’s office after the store closed at 6 p.m., she heard a “ruckus.” She explained that when she opened the locked office door, she was immediately confronted by a man pointing a gun at her.... He wore a “nylon scarf” over his face and off-white latex gloves. Soto described the man as black, between five feet six inches and five feet eight inches tall, and noted that he wore latex gloves.
[Ms. Smith and Maria Soto] testified that the man escorted the three employees from the office through the employee break room into the stockroom. The man held the gun to Smith’s head as they walked. Smith testified that John Cardoso, another employee, was lying on the floor of the break room when they entered. Soto testified that the man forced her and the other employees to step over Cardoso.... Smith testified that after collecting money from the office, the man moved everyone into the break room and made them lie on the floor near Cardoso’s body. The man then exited through the store’s back emergency exit, which he previously had Smith unlock. After the man left, Soto and [Wanda] Church got up to seek help.
Officer Richard L. McKee, of the City of St. Petersburg Police Department, testified that when he arrived at Big Lots at approximately 6:30 p.m. on December 24, 1997, he found a shooting victim lying face down in a break room and three other individuals who appeared to be in shock also lying face down in the room with their hands behind their heads.

Id. at 148-49.

On July 27, 2005, the jury found Peterson guilty of first-degree murder by general verdict. The trial court conducted a one-day penalty phase during which the State and the defense presented evidence.

Id. at 151.

On July 29, 2005, the jury recommended the death sentence by an' eight-to-four vote. After conducting a hearing pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993) ... the trial court followed the jury’s recommendation and sentenced Peterson to death.

Id. at 152 (citation omitted). The trial court found and assigned weight to the following aggravation:

(1) Peterson was under a sentence of imprisonment at the time of the murder — life parole for three 1981 robberies (assigned great weight); (2) Peterson was previously convicted of a violent felony, based on thirteen convictions, resulting in a total of nine life sentences (assigned great weight); and (3) Peterson committed the murder during the commission of a robbery (assigned significant weight).

Id.

The trial court found the age statutory mitigating factor, despite Peterson’s age of thirty-eight at the time of the offense, based on expert testimony that he functioned at the emotional level of a fourteen- to sixteen-year-old. This factor was given little weight.

Id.

The nonstatutory mitigating factors were: (1) Peterson had a low to normal IQ (assigned little weight); (2) Peterson had some limited mental impairment (assigned little weight); (8) Peterson had a good relationship with at least two family members (assigned some weight); (4) Peterson had a consistent work history (assigned some weight); and (5) Peterson had an exemplary disciplinary record in jail and likely will behave properly when placed in prison (assigned little weight).

Id.

Direct Appeal

On direct appeal, Peterson raised six issues:

(A) the trial court erred by admitting evidence of three collateral robberies; (B) death by lethal injection constitutes cruel and unusual punishment; (C) his death sentence is disproportionate; (D) the trial court erred in denying defense counsel’s motion for a new penalty phase due to the presentation of evidence and argument that Peterson lacked remorse; (E) Florida’s capital sentencing process is unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (F) the penalty-phase jury instructions unconstitutionally shifted the burden of proof to the defendant.

Peterson, 2 So.3d at 152-53. In addition, this Court reviewed the sufficiency of the evidence to support the conviction. Id. at 153. We affirmed Peterson’s conviction of first-degree murder and his death sentence. Id.

Postconviction Motion for Relief

On or about September 21, 2010, Peterson filed a postconviction motion in the circuit court, raising four claims: (1) trial counsel was ineffective for failing to strike five biased jurors either for cause or by exercising a peremptory challenge, thus violating Peterson’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and equivalent provisions of the Florida Constitution; (2) trial counsel was ineffective for failing to object to improper comments, arguments and other conduct of the State and request curative instructions and mistrial, and for failing to investigate exculpatory evidence, thus violating Peterson’s constitutional rights; (3) trial counsel was ineffective during the penalty phase for failing to object to or limit testimony and evidence, thus violating Peterson’s constitutional rights; and (4) the effect of cumulative errors denied Peterson his constitutional -rights. After an evidentiary hearing on the three substantive claims of the four raised, held on December 12, 13, and 14, 2011, the postconvietion court denied relief.

Peterson now appeals, claiming that the postconviction court erred by denying Peterson’s claim that his trial counsel was ineffective for: (1) failure to strike five biased jurors either for cause or by exercising peremptory challenges; (2) failure to object to improper comments, arguments and other conduct of the State and request curative instructions and mistrial, and for failing to investigate affirmative evidence of innocence; (3) failure to present available mitigation evidence during the penalty phase; and (4) by denying relief based on the cumulative effect of counsel’s errors. Peterson also petitions this Court for a writ of habeas corpus, claiming ineffective assistance of appellate counsel.

ANALYSIS

Any claim that defense counsel provided ineffective assistance at trial must be analyzed under the standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Carratelli v. State, 961 So.2d 312, 321 (Fla. 2007).

First, counsel’s performance must be shown to be deficient, meaning “counsel’s performance fell below the standard guaranteed by the Sixth Amendment.” McCoy v. State, 113 So.3d 701, 707 (Fla.2013). The defendant must point to “particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.” Bolin v. State, 41 So.3d 151, 155 (Fla.2010). “[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.” Burns v. State, 944 So.2d 234, 239 (Fla.2006). “The defendant bears the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” McCoy, 113 So.3d at 707 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). However, there is a strong presumption that counsel’s performance was not deficient, and great deference is given to counsel’s performance. Johnston v. State, 63 So.3d 730, 737 (Fla.2011). Moreover, counsel cannot be deemed ineffective for failing to make a meritless argument. See Lukehart v. State, 70 So.3d 503, 513 (Fla.2011).

Second, “the deficient performance must have prejudiced the defendant, ultimately depriving the defendant of a fair trial with a reliable result.” McCoy, 113 So.3d at 708. “[A] defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. Rather, he “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052; see also Bolin, 41 So.3d at 155.

Additionally, both deficient performance and prejudice must be shown. McCoy, 113 So.3d at 708. Therefore, “when a defendant fails to make a showing as to one element, it is not necessary to delve into whether he has made a showing as to the other element.” Thompson v. State, 796 So.2d 511, 516 (Fla.2001). “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.” McCoy, 113 So.3d at 708.

Peterson initially raises four general issues, which are comprised of eighteen sub-claims. Because we find that the following claims are without merit, we affirm the postconviction court’s denial of these claims without further discussion: (1) II.A (failure to object during voir dire); (2) II.B (failure to file motion in limine and object during State’s case-in-chief); (3) II.C.l (State’s mischaracterization of evidence during closing arguments); (4) II.C.2 (inadequately cross-examining M.P., witness of the Hillsborough County Family Dollar collateral crimes); (5) II.C.3 (failure to impeach Detective Jerry Herren); (6) II. C.4 (failure to make an opening statement); (7) II.C.5 (failure to address State’s failure to prove collateral crimes beyond a reasonable doubt); (8) II.D (failure to challenge Williams rule evidence based on Apprendi); (9) II.E (inadequate handling of sexual battery evidence from Family Dollar collateral ease); (10) II.F (failure to object to and challenge fingerprint evidence); (11) II.H (admission of Williams rule evidence violated Peterson’s rights to due process, confrontation, and effective assistance of counsel); (12) III.A (failure to object to State’s use of Williams rule cases as aggravation); (13) III.B (failure to object to State arguing facts not in evidence); (14) III.C (presenting only two lay witnesses as mitigation); and (15) III.D (failure to rely on Peterson’s intellectual impairment and failing to mitigate State’s branding of Peterson with antisocial personality stigma). See Lukehart, 70 So.3d at 513; see also Schoenwetter v. State, 46 So.3d 535, 546 (Fla.2010) (“mere this Court has previously rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument.”).

We now turn to the discussion of Peterson’s remaining claims.

A. Biased Jurors

1. Failure to Challenge Jurors for Cause

Peterson first claims that trial counsel should have challenged jurors Aundrea Johnson, Marilyn Breen, Thomas Walbolt, Necole Tunsil, and Christine Salgado for cause on grounds of juror incompetency. “[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.” Carratelli, 961 So.2d at 324. The actual bias standard requires a showing that the questionable juror was not impartial, that is, “was biased against the defendant, and the evidence of bias must be plain on the face of the record.” Id. (citing Patton v. Yount, 467 U.S. 1025, 1038-40, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)). In other words, the test for juror competency is whether a juror “can lay aside any bias or prejudice and render [his or her] verdict solely upon the evidence presented and the instructions on the law given to [him or her] by the court.” Id. (quoting Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984)).

For each of the challenged jurors, Peterson has failed to allege actual bias. See id. Furthermore, our review of the record does not uncover any indication that a biased juror sat on Peterson’s' jury. Because Peterson has not demonstrated actual bias, the postconviction court properly denied this claim. See Thompson, 796 So.2d at 516 (requiring both prongs under Strickland be established in order to prevail on ineffective assistance of counsel claim); Smithers v. State, 18 So.3d 460, 464 (Fla.2009) (requiring showing of actual bias in order to establish prejudice prong); see also McCoy, 113 So.3d at 708 (“Further, a court evaluating a claim of ineffectiveness is not required to issue a specific ruling on the performance component of the test when it is evident that the prejudice component is not satisfied.”).

2. Failure to Effectively Use Peremptory Challenges

Peterson also claims that the postconviction court erred in denying his ineffective assistance of counsel claim based on trial counsel’s failure to strike biased jurors during jury selection. Regarding Peterson’s specific argument that trial counsel should have exercised peremptory challenges to strike jurors Johnson, Breen, Walbolt, Tunsil, and Salgado, “[e]ffective assistance of trial counsel includes a proficient attempt to empanel a competent and impartial jury through the proper utilization of voir dire, challenges to venire members for cause, and the proper employment of peremptory challenges to venire members.” Nelson v. State, 73 So.3d 77, 85 (Fla.2011).

The postconviction court found that trial counsel, an experienced defense attorney, made thoughtful inquiries to reach an intelligent decision in selecting the jury. This finding is supported by competent, substantial evidence. During the postcon-viction evidentiary hearing, Richard Watts, trial counsel for Peterson, testified that it is most important to him in death-eligible cases to focus on the sentencing recommendation. He'acknowledged that he has sometimes, including in the instant case, had to select jurors that were not favorable to the defense in the guilt phase, but were favorable in the penalty phase. Furthermore, Attorney Watts testified that in his experience of selecting nearly eighty jurors in death-eligible cases, he has never achieved seating a “perfect jury”; the same was true for the instant case.

Trial counsel attempted to empanel a competent and impartial jury that would have been favorable to the defense in the penalty phase. See id. This Court has recognized such a strategy as a reasonable one. See Dillbeck v. State, 964 So.2d 95, 102-03 (Fla.2007) (finding trial counsel adopted a reasonable trial strategy of avoiding a death sentence by attempting to seat jurors likely to recommend a life sentence); see also Burns, 944 So.2d at 239. Peterson does not point to any particular venire member that would have been better qualified to serve in place of a seated juror. See Johnson v. State, 903 So.2d 888, 896 (Fla.2005) (rejecting appellant’s argument that trial counsel could have used peremptory challenges in a different manner to obtain a more defense-friendly jury; “[sjuch speculation fails to rise to the level of ineffective assistance under Strickland .... ”). Moreover, the record shows that Peterson heavily participated in selecting the jury panel and discussed with defense counsel his desires to retain certain jurors, which further undermines Peterson’s claim of ineffective assistance as to counsel’s exercise of his peremptory challenges. See Gamble v. State, 877 So.2d 706, 714 (Fla.2004) (“[I]f the defendant consents to counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel.”).

On balance, Peterson has failed to demonstrate that counsel acted beyond the broad range of reasonably competent performance under prevailing professional standards. And, as discussed above, Peterson cannot demonstrate prejudice because no biased juror sat on his jury. See Phillips v. State, 894 So.2d 28, 36 (Fla. 2004) (rejecting claim of ineffective assistance of counsel for failure to exercise two remaining peremptory challenges because defendant failed to demonstrate that his resentencing counsel’s performance was deficient during voir dire and that such deficiency created a jury that was not impartial). Accordingly, we affirm the post-conviction court’s denial of relief with respect to this claim.

B. Failure to Challenge In- and Out-of-Court Identifications

Peterson argues that trial counsel was ineffective for not filing a pretrial motion to suppress various in- and out-of-court identifications of Peterson on the ground that the identifications were made in violation of Peterson’s due process rights. Peterson also claims ineffective assistance in that counsel should have elicited testimony from an eyewitness identification expert to discuss the factors that potentially affected the accuracy of the witnesses’ identifications in the instant case as well as the Williams rule cases.

Regarding counsel’s failure to consult an eyewitness identification expert, Peterson has not demonstrated that counsel’s failure to consult with such an expert in eyewitness identification was deficient. Peterson was identified by three different individuals who were at the scene of the crime on the night of the murder and were able to identify Peterson, including witnesses who identified Peterson before the robbery. The postconviction court explained that the witnesses’

in-court identifications were bolstered in the instant case by the photo-pack identification of Peterson by another black male, Mr. Davis, who placed Peterson in the store just prior to the robbery; by Maria Soto who identified Peterson in court, both by facial features and by clothing as being the robber and as a person who had been in the store just prior to the robbery; and by Karen Smith’s photo-pack identification of Peterson after the crime and in court.

As also found by the postconviction court, each of the Williams rule collateral crime cases introduced into evidence supports the witnesses’ identifications. These three collateral cases, which each involved a signature modus operandi, were based on a combination of DNA, shoeprint and fingerprint evidence, videotape surveillance, and Peterson’s possession of the stolen goods.

Further, it is well-established that trial counsel cannot be ineffective for failing to present cumulative evidence. See Duckett v. State, 918 So.2d 224, 236 (Fla.2005); Marquard v. State, 850 So.2d 417, 429-30 (Fla.2002); Patton v. State, 784 So.2d 380, 393 (Fla.2000). This rule is consistent with the Florida Evidence Code, which allows for the exclusion of cumulative evidence. See § 90.403, Fla. Stat. (2013). “Cumulative evidence” calls for-a mere “repetition of testimony.” See Gracy v. Atl. Coast Line R.R. Co., 53 Fla. 350, 42 So. 903, 906 (1907).

The record shows that Attorney Watts familiarized himself with Dr. Brigham’s area of expertise by reading eyewitness identification literature authored by Dr. Elizabeth Loftus and others. This, in conjunction with Attorney Watts’ trial experience, training and attendance at related seminars, taught him the various areas in eyewitness identification testimony that are ripe for attack as well as the tactics to employ in attacking those areas. Further, there is competent, substantial evidence to support the postconviction court’s findings that trial counsel effectively cross-examined each Big Lots witness regarding these points of attack, including their ability to see the perpetrator, their level of stress, the fact that a gun was in close proximity to their faces, and the passage of time. Moreover, the record shows that counsel reiterated this information at various points throughout closing arguments. Dr. Brigham’s testimony, therefore, would have been repetitive, that is, cumulative, of the eyewitness identification evidence elicited by trial counsel. See Duckett, 918 So.2d at 236; Marquard, 850 So.2d at 429-30; Patton, 784 So.2d at 393; see also Owen v. State, 986 So.2d 534, 546 (Fla. 2008).

Accordingly, while it may have been useful to have consulted with an eyewitness identification expert, the failure is not deficient given all the circumstances of this case. Simply put, this is not the type of case in which there was a substantial likelihood of misidentification such that the failure to consult with an expert in eyewitness identification is deficient or where such testimony, if introduced, would have resulted in a reasonable probability of a different result, that is, one that undermines confidence in the outcome. Therefore, neither deficiency nor prejudice can be established.

As to Peterson’s contention that trial counsel was ineffective for failing to file a motion to suppress the various identifications, this Court has recognized that counsel cannot be deemed ineffective for failing to file a pretrial motion to suppress identifications where the decision not to -file a motion was a strategic one. Maha-raj v. State, 778 So.2d 944, 959 (Fla.2000). In addition, we do not second-guess counsel’s reasonable trial decisions. See Jones v. State, 845 So.2d 55, 65 (Fla.2003). According to the record, the defense team strategized not to attack the eyewitness identifications in the collateral Williams rule cases, given that physical evidence existed which connected Peterson to those identifications. Rather, the defense stra-tegized to attack the eyewitness identifications in the instant case because there was no physical evidence associated with Peterson. For instance, the trial transcript shows that counsel elicited cross-examination testimony from Big Lots witness Karen Smith tending to show that her photo identification of the Big Lots perpetrator may have been tainted by a newsflash picture designated to be Peterson that she saw shortly after the robbery. Further, Attorney Watts testified that the focus was to attack the identifications in front of the jury so the jurors could perceive for themselves that the alleged identifications of Peterson were tainted. On review, it appears that trial counsel employed a reasonable trial strategy, given counsel’s efforts to weaken the identifications in the instant case for which Peterson was actually charged. Therefore, because Peterson has failed to demonstrate ineffective assistance, we affirm the postconviction court’s denial of this claim. See Maharaj, 778 So.2d at 959.

HABEAS PETITION

In his petition for a writ of habeas corpus, Peterson alleges that appellate counsel was ineffective for erroneously conceding guilt of the three Williams rule cases, which prejudicially led to the denial of relief in this case. Consistent with the Strickland, standard, to grant habeas relief for ineffective assistance of appellate counsel, this Court follows a two-prong test:

[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Schoenwetter, 46 So.3d at 563. The defendant bears the burden of “alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Id. (quoting Freeman v. State, 761 So.2d 1055, 1069 (Fla. 2000)).

Our opinion in Peterson reflects that appellate counsel informed this Court that Peterson was “either convicted or pled guilty to each collateral robbery,” including the Family Dollar, McCrory’s, and Phar-Mor cases. See Peterson, 2 So.3d at 153. However, the record indicates that Peterson was only charged and convicted in the Family Dollar case. Therefore, we find that appellate counsel was deficient for providing incorrect information to the Court. See Fla. Bar R. 4-3.3(a) (no lawyer shall knowingly make a false statement of fact or law to a tribunal). Nonetheless, we find that Peterson failed to demonstrate the second prong under Schoenwetter. Based on the record, the trial court found that there was clear and convincing evidence that Peterson was the perpetrator in the three collateral cases. Because we based our decision in Peterson to affirm Peterson’s conviction on substantially identical factual findings, he cannot show that appellate counsel’s misstatement “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” See Schoenwet-ter, 46 So.3d at 563. Accordingly, we deny Peterson’s petition for a writ of habeas corpus.

CONCLUSION

Based on the foregoing analysis, we affirm the postconviction court’s denial of relief. We also deny Peterson’s petition for a writ of habeas corpus.

It is so ordered.

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

PARIENTE, J., concurs with an opinion in which QUINCE, J., concurs.

CANADY, J., concurs in result.

PARIENTE, J.,

concurring.

I concur in the majority opinion affirming the posteonviction court’s denial of relief and denying Peterson’s habeas corpus petition, and agree that counsel’s failure to utilize an eyewitness identification expert in this ease did not constitute ineffective assistance of counsel. However, because I am concerned that our prior jurisprudence has left the impression that testimony of an eyewitness identification expert is generally inadmissible, I write separately to explain why such testimony should be generally admissible to assist the jury in determining the reliability of eyewitness identifications, especially in cases resting substantially or entirely on eyewitness testimony.

Specifically, I would adopt the rationale of the Supreme Court of Connecticut in State v. Guilbert, 306 Conn. 218, 49 A.3d 705, 720 (2012), and conclude that this Court’s precedent, which suggests that factors affecting eyewitness testimony are within the common experience of jurors, is “out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.” Indeed, as noted in Guilbert, the widely accepted scientific research available today “convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification.” Id. at 721. Accordingly, in cases involving eyewitness testimony, I encourage trial courts to truly exercise their discretion in determining whether to admit expert testimony on eyewitness identifications, which oftentimes has the potential to aid the jury in evaluating this extremely weighty evidence.

Among multiple claims and subclaims of guilt-phase ineffectiveness, Peterson claimed that his lawyer was ineffective in dealing with the eyewitness identification evidence presented to the jury. Although I agree with the majority that the defense attorney’s failure to consult with an eyewitness identification expert did not constitute ineffective assistance of counsel in this case, I remain concerned that this Court’s prior precedent may erroneously lead some practitioners and judges to the conclusion that this type of expert testimony is per se inadmissible. In actuality, the admissibility of expert testimony regarding the reliability of eyewitness identifications is properly determined on a case-by-case basis depending on the specific factual circumstances of the case. See Johnson v. State, 438 So.2d 774, 777 (Fla.1983) (adopting an abuse of discretion standard for determining whether the trial court erred in excluding expert testimony on eyewitness identification). Moreover, although trial counsel’s failure to consult with an expert in eyewitness identification was not deficient in this case, it is simply against the weight of scientific authority and the recent decisions of courts throughout the country that have addressed this issue to conclude'that jurors never require “special knowledge or experience” to determine the reliability of eyewitness identification. Id.

As the Supreme Court of New Jersey recognized in State v. Delgado, 188 N.J. 48, 902 A.2d 888, 895 (2006), “[mjisidentifi-cation is widely recognized as the single greatest cause of wrongful convictions in this country.” For that reason, the Innocence Commission appointed by the Florida Supreme Court to analyze the causes of wrongful convictions chose eyewitness mis-identification as its first area of study. Florida Innocence Commission, Final Report to the Supreme Court of Florida 18 (2012). Indeed, citing analysis undertaken by the Innocence Project, the Florida Innocence Commission noted that eyewitness misidentification has played a role in more than seventy-five percent of convictions that were subsequently overturned through DNA testing. Id.

Thirty-one years ago, prior to the scientific studies available today pointing out the flaws in eyewitness testimony, I can understand how this Court might have concluded that “a jury is fully capable of assessing a witness’ ability to perceive and remember ... without the aid of expert testimony.” Johnson, 438 So.2d at 777. However, even in reaching this conclusion, rather than electing a per se rule of exclusion, this Court adopted an abuse of discretion standard. Id.

Unfortunately, though, this Court offered no real guidance as to how a trial court should determine the admissibility of an eyewitness identification expert and even indicated that there was no reason to admit such testimony, stating as follows:

A trial court has wide discretion concerning the admissibility of evidence and the range of subjects about which an expert can testify. Expert testimony should be excluded when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions. We hold that a jury is fully capable of assessing a witness’ ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony.

Id. (citations omitted). As I have previously explained, “[i]n so. holding, we signaled to trial judges that expert testimony in this area is unnecessary because the assessment of eyewitness identification is within the common experience of jurors.” Simmons v. State, 934 So.2d 1100, 1123-24 (Fla.2006) (Pariente, C.J., specially concurring). However, subsequent research in the area of eyewitness identification has clearly demonstrated that the reliability of eyewitness identification testimony is subject to a multitude of factors, the effects of which are often not within the realm of an average juror’s general knowledge.

The powerful impact that eyewitness identification evidence has on jurors cannot be overstated. That such testimony has the potential to sway a jury towards a conviction provides even more reason for this Court to take note of subsequent studies on the issue of eyewitness identification that have undermined this Court’s conclusion in Johnson that expert testimony is unnecessary for a jury to assess eyewitness identification evidence. As I have previously noted:

For example, common sense would lead us to believe that greater certainty by an eyewitness in making an identification corresponds to greater accuracy. Yet research shows that a witness’s degree of certainty correlates weakly, at best, with the accuracy of the identification. See Elizabeth Loftus & James Doyle, Eyewitness Testimony: Civil and Criminal § 8-12, at 67 (3d ed. 1997) (“The consensus of the literature that deals with [whether eyewitness confidence is an indication of eyewitness accuracy] seems to indicate that eyewitness confidence is not a very good indicator of eyewitness accuracy.”). In fact, the “certainty an eyewitness expresses in his identification can be a misleading indicator of the identification’s accuracy.” Gary L. Wells, Eyewitness Identifications: Scientific Status, in Science In the Law: Social and Behavioral Science Issues 391, 412 (David L. Faigman et al. eds., 2002). Other features of eyewitness unreliability, such as difficulty identifying persons of another race, have also become well established. See Loftus & Doyle, supra. § 4-9, at 86; Wells, supra, at 404.

Simmons, 934 So.2d at 1124 (Pariente, C.J., specially concurring).

Since our decision in Simmons, courts throughout the country have continued to take notice of the growing body of scientific research on eyewitness identifications and have repeatedly recognized that expert testimony on eyewitness identification provides jurors with information that is beyond an average juror’s general knowledge. For example, only three years after this Court’s decision in Simmons, the Supreme Court of Utah, in concluding that a trial court had abused its discretion by excluding expert witness testimony, held that “the testimony of a qualified expert regarding factors that have been shown to contribute to inaccurate eyewitness identifications should be admitted whenever it meets the requirements of [the Utah rules of evidence].” State v. Clopten, 223 P.3d 1103, 1112 (Utah 2009). Further, the Supreme Court of Utah went on to explain that it expected its decision in Clopten to “result in the liberal and routine admission of eyewitness expert testimony.” Id.

The Supreme Court of Connecticut reached a similar conclusion in Guilbert, noting that while the court had previously concluded that expert testimony on eyewitness identification was inadmissible because. “the reliability of eyewitness identification is within the knowledge of jurors,” State v. Kemp, 199 Conn. 473, 507 A.2d 1387, 1389 (1986), its prior decisions on the issue were “out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.” Guilbert, 49 A.3d at 720. Relying on “extensive and comprehensive research, as reflected in hundreds of peer reviewed studies and meta-analyses,” the Supreme Court of Connecticut explained that scientific evidence “convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification.” Id. at 721. Thus, the Supreme Court of Connecticut concluded that “[m]any of the factors affecting the reliability of eyewitness identifications are ei-. ther unknown to the average juror or contrary to common assumptions, and expert testimony is an effective way to educate jurors about the risks of misidentifi-cation.” Id. at 731.

Citing the Supreme Court of Connecticut’s decision in Guilbert, the Supreme Court of Oregon stated that “courts around the country have recognized that traditional methods of informing factfin-ders of the pitfalls of eyewitness identification — cross-examination, closing argument, and generalized jury instructions — frequently are not adequate to inform factfin-ders of the factors affecting the reliability of such identifications.” State v. Lawson, 852 Or. 724, 291 P.3d 673, 695 (2012) (citing Guilbert, 49 A.3d at 705). In light of this conclusion, the Supreme Court of Oregon explained that “the use of experts may prove vital to ensuring that the law keeps pace with advances in scientific knowledge, thus enabling judges and jurors to evaluate eyewitness identification testimony according to relevant and meaningful criteria.” Id. at 696.

These decisions represent the modern trend among courts that have addressed the admissibility of expert testimony on eyewitness identification. As noted by the Supreme Court of Connecticut, there is now a “widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.” Guilbert, 49 A.3d at 720. By bringing to light research findings on factors that affect an eyewitness identification, which would otherwise be beyond a juror’s general knowledge, expert testimony within this area can assist the trier of fact in correctly determining a defendant’s guilt.

Given the widespread judicial acceptance of the fact that the reliability of eyewitness testimony is subject to factors beyond the common knowledge of jurors, I once again encourage trial courts to “truly exercise their discretion as to the admission of this testimony.” Simmons, 934 So.2d at 1126 (Pariente, C.J., specially concurring). As the burgeoning body of scientific research indicates and courts across the country increasingly recognize, expert witness testimony on the reliability of eyewitness identifications can be a “powerful tool in helping the criminal justice system achieve its goal of convicting the guilty while acquitting the innocent.” Id. It is my hope that when this Court is squarely faced with the issue in a direct appeal case, we will seize the opportunity to recede from Johnson, join the modern trend, and hold that eyewitness identification expert testimony should be generally admissible, especially in cases resting substantially or entirely on eyewitness testimony, as long as the other predicates for admissibility are met.

QUINCE, J., concurs.

      . We also deny Peterson’s claim that due to the cumulative effect of errors that occurred during the guilt and penalty phases, he is entitled to relief. Because Peterson has not demonstrated that he is entitled to relief on any of the claims he has raised, his cumulative effect claim is meritless. See Brown v. State, 846 So.2d 1114, 1126 (Fla.2003) ("Each of Brown's claims is insufficient under Strickland, and because this is the case, the claim for cumulative error fails as well.”).


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA BOARD OF BAR EXAMINERS re D.W.S.
    No. SC14-2251.
    Supreme Court of Florida.
    Dec. 3, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and D.W.S. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of five years.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on March 5, 2012, and by extending the contract to cover the entire period of probation, if necessary;
(d) participate actively in Alcohol-ies/Narcoties Anonymous by attending, at least, weekly meetings at such frequency as required by FLA; practice AA/NA principles in all of his affairs; and carry the AA/NA message to other substance dependent individuals;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA;
(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and
(g) continue to consult with Dr. Jeffrey A. Danziger, or other licensed mental health provider, at least quarterly or more frequently as his mental ■ health provider deems necessary;
(h) follow promptly, diligently, and completely all instructions by his mental health provider, including the taking of any medication in the recommended manner as may be prescribed by his mental health provider;
(i) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the applicant’s continuing ability to engage in the active practice of law;
(j) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and
(k) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the entire probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d), (e), (f), (g), (h), and (i) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1 — 3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court .shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10.By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    FLORIDA BOARD OF BAR EXAMINERS re F.J.A.P.
    No. SC14-2252.
    Supreme Court of Florida.
    Dec. 3, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and F.J.A.P. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of six months.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of al- ■ coholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on October 7, 2014, and by extending the ' contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings at such frequency as required by FLA; practice AA/NA principles in all of his affairs; and carry the AA/NA message to other individuals with a substance use disorder;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA;
(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and
(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d), and (e) above.

3.The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


author: CANADY, J.

text:
    Richard R. McDADE, Petitioner, v. STATE of Florida, Respondent.
    No. SC13-1248.
    Supreme Court of Florida.
    Dec. 11, 2014.

      Christopher E. Cosden, Fort Myers, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Robert Jay Krauss, Bureau Chief, and Christina Zuccaro, Assistant Attorney General, Tampa, FL, for Respondent.
    Thomas Richard Julin and Patricia Acosta of Hunton & Williams LLP, Miami, FL, on behalf of the Florida Press Association and the Florida Society of News Editors, for Amici Curiae.
   CANADY, J.

In this case, we consider a certified question of great public importance concerning the application of the prohibition under chapter 934, Florida Statutes (2010), on intercepting certain oral communications. Specifically, we consider whether the prohibition applies to recordings of solicitation and confirmation of child sexual abuse when the recordings were surreptitiously made by the child in the bedroom of the accused.

In McDade v. State, 114 So.3d 465, 467 (Fla. 2d DCA 2013), the Second District Court of Appeal rejected McDade’s argument that two recordings of conversations he had in his bedroom with his stepdaughter should have been suppressed under chapter 934’s statutory exclusionary rule. The court also rejected McDade’s argument that testimony of the stepdaughter’s boyfriend recounting statements of the stepdaughter that McDade had raped her should have been excluded as hearsay. Regarding the recorded conversations, the Second District held “that the narrow factual circumstances of this case do not fall within the statutory proscription of chapter 934.” ' Id. at 469. The Second District concluded that the boyfriend’s testimony was non-hearsay because the statements made by the stepdaughter “were introduced to show why the boyfriend encouraged the victim to make the recordings,” not for the truth of the matter asserted. Id. at 468-69.

The Second District certified the following question as one of great public importance:

DOES A RECORDING OF SOLICITATION AND CONFIRMATION OF CHILD SEXUAL ABUSE MADE BY THE MINOR CHILD VICTIM FALL WITHIN THE PROSCRIPTION OF CHAPTER 934, FLORIDA STATUTES (2010)?

Id. at 471. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In line with the analysis we adopt, we rephrase the certified question as follows:

DOES A RECORDING OF SOLICITATION AND CONFIRMATION OF CHILD SEXUAL ABUSE SURREPTITIOUSLY MADE BY THE CHILD VICTIM IN THE ACCUSED’S BEDROOM FALL WITHIN THE PROSCRIPTION OF CHAPTER 934, FLORIDA STATUTES (2010)?

For the reasons we explain, we answer the rephrased certified question in the affirmative. We also conclude that the Second District erred regarding the boyfriend’s testimony concerning statements made by the stepdaughter. We quash the Second District’s decision.

I. BACKGROUND

McDade was arrested and charged with various sex crimes after his then sixteen-year-old stepdaughter reported that he had been sexually abusing her.since she was ten years old. Prior to McDade’s arrest, his stepdaughter recorded two conversations with McDade. The stepdaughter provided these recordings to law enforcement, and McDade was arrested that same day. Prior to trial, McDade moved to suppress the recording’s under chapter 934, Florida Statutes. The trial court denied McDade’s motion, and the case proceeded to a jury trial. The recordings were introduced at trial over McDade’s objection.

At trial, the State presented the testimony of McDade’s stepdaughter, her boyfriend, and multiple law enforcement officers. The State did not introduce any forensic evidence. In defense, McDade testified on his own behalf, and he presented the testimony of his wife and his treating physician. The Second District summarized the facts as follows:

The victim in this case was born in Mexico in 1994. In 2001, she and her mother moved to Florida. Though their immigration status was a matter of dispute during the trial, the victim testified that she believed that they were illegally in the country. In 2005, the mother ■ married McDade, who was approximately sixty years of age at the time. The mother testified that the couple never had a sexual relationship because they both had health issues. Indeed, McDade and the mother both testified that he suffered from erectile dysfunction. However, the victim alleged that he sexually abused her over a period of years, threatening that she and her mother would be returned to Mexico if she reported what he was doing.
McDade operated an ice cream truck, and the victim’s mother worked as a janitor. During the period of time when the alleged abuse occurred, the victim was typically home alone with McDade for several hours in the afternoon each school day. She testified that on one such afternoon McDade instructed her to come into his bedroom and told her to take off her clothes. He covered her face with a blanket and he penetrated her with both his finger and his penis. She was ten years old at the time. McDade allegedly continued to engage in this conduct weekly until April 2011, when she was sixteen.
Over the years, the victim claimed that she reported this abuse to several people, including her mother, a doctor, and two ministers at her church. Her mother admitted that her daughter reported this abuse to her and that she took her daughter to a doctor. The mother adamantly did not believe her daughter. When pressed about her accusations, the victim recanted on more than one occasion. Perhaps because of her retractions, no one reported her claims even though any person who has reasonable cause to suspect child abuse must report it. See § 39.201, Fla. Stat. (2012). She explained that she retracted her claims due to the fear of being sent to Mexico.
In October 2010, the victim started going out with a boy. Her mother and McDade did not like the boyfriend, and this created conflict within the family. In an effort to prevent her from sneaking out of the house, her mother and McDade made her sleep in a closet near their bedroom. She told her boyfriend that McDade was raping her, and he encouraged her to gather proof of the abuse. He loaned her his MP3 player to use as a recording device. In April 2011, with the MP3 player hidden in her shirt, she approached McDade in his bedroom on two occasions when they were alone after school. She was essentially conducting her own investigation, hoping to prompt McDade into making incriminating statements that she could secretly record as evidence of abuse.
The recordings supported the victim’s testimony that McDade would regularly ask her to have sex with him after school. On both occasions, though he did not use sexually explicit language, he appeared to be asking her to have sex with him. He pressured her by suggesting that if she did not have sex with him he would get physically sick. McDade also indicated he was doing her a favor by not telling her mother that they were having sex because if the mother knew she would take the victim back to Mexico.

Id. at 467-68.

The jury convicted McDade on two counts of sexual battery on a child younger than twelve, two counts of sexual activity •with a child by a person in a position of familial or custodial authority, and one count of solicitation of sexual activity with a child by a person in a position of familial or custodial authority. McDade was sentenced to two sentences of life imprisonment for the counts of sexual battery on a child younger than twelve, two sentences of fifteen years of imprisonment for the counts of sexual activity with a child by a person in a position of familial or custodial authority, and five years of imprisonment for the count of solicitation of sexual activity with a minor by a person in familial or custodial authority, with the sentences to run concurrently.

McDade appealed to the Second District, arguing that the trial court erred when it admitted the recordings into evidence and when it permitted the boyfriend to testify about the stepdaughter telling him that McDade raped her. The district court first addressed McDade’s hearsay argument. The district court concluded that “[bjecause the statements in question were introduced to show why the boyfriend encouraged the victim to make the recordings,” the boyfriend’s statements did “not constitute hearsay and thus the court did not abuse its discretion in admitting them.” Id. at 468-69.

The Second District then rejected McDade’s argument that the trial court should have suppressed the recordings under the exclusionary rule of section 934.06, Florida Statutes (2010). The district court relied on State v. Inciarrano, 473 So.2d 1272 (Fla.1985) — a case involving an audio recording of a murder taking place — to conclude “that the narrow factual circumstances of this case do not fall within the statutory proscription of chapter 934.” McDade, 114 So.3d at 469, 470. The Second District explained that “the statutory proscription [on recording oral communications] of chapter 934 only applies where the person uttering the communication has a reasonable expectation of privacy in that communication under the circumstances.” Id. at 470. The district court then reasoned that:

As in Inciarrano, this case involves recordings made by a victim of the very criminal acts by which she was victimized. The minor victim recorded McDade soliciting her for sexual acts, as he had done for years. And though the conversation took place in McDade’s home, it was also the victim’s home. Considering these circumstances and consistent with the analysis and holding in Inciarrano, we conclude that any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable.

Id. (Emphasis added.)

However, two of the judges on the Second District panel expressed concerns with this Court’s decision in Inciarrano and its application to this case. See id. at 471-77 (Altenbernd, J., concurring specially; Vil-lanti, J., concurring in part and dissenting in part). Judge Villanti concurred in the panel’s decision regarding McDade’s hearsay argument but dissented as to resolution of McDade’s argument regarding the recordings. Id. at 475 (Villanti, J., concurring in part and dissenting in part). According to Judge Villanti, section 934.06 is unambiguous and the recordings clearly fall within the statute’s plain language. Id. Further, Judge Villanti reasoned that the majority erroneously relied on Inciar-rano to reach its result because the cases are factually distinguishable. Id. at 475-76. In Inciarrano, “the court considered ‘the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations.’ ” Id. at 476 (quoting Inciarrano, 473 So.2d at 1274). Conversely, the recording in this case was made while the defendant “was inside his own bedroom in his own residence.” Id.

Judge Altenbernd agreed with the panel’s resolution of both issues on appeal, but with reservations:

Under the “society is prepared to recognize” test, I conclude that in 2011 a person who regularly and consistently abused a teenager in a bedroom of their shared home had no reasonable expectation that their conversations about the abuse would never be recorded. In this modern digital world, any such adult should have expected that eventually a teenage victim would record such conversations in self-defense. Accordingly, I concur in this decision because Mr. McDade could not reasonably expect his statements to be protected oral communications.
Despite my concurrence, I frankly share some of Judge Villanti’s concerns about the direction that Inciarrano takes us in today’s decision.

Id. at 471-72 (Altenbernd, J., concurring specially).

II. ANALYSIS

In the analysis that follows, we examine the governing statutory provisions in chapter 934, Florida Statutes, discuss the decision in Inciarrano, and answer the rephrased certified question in the affirmative. We then discuss and accept McDade’s argument that the trial court erroneously admitted the boyfriend’s testimony concerning the stepdaughter’s statements.

A. Chapter 934 and the Recordings

Whether the provisions of chapter 934, Florida Statutes, apply to the recordings at issue in this case — where the facts relevant to the recordings are undisputed — is a question of statutory interpretation. “Judicial interpretations of statutes are pure questions of law subject to de novo review.” Johnson v. State, 78 So.3d 1305, 1310 (Fla.2012) (citing State v. Sigler, 967 So.2d 835, 841 (Fla.2007)). “In construing this statute, this Court must give the ‘statutory language its plain and ordinary meaning,’ and is not ‘at liberty to add words ... that were not placed there by the Legislature.’ ” Exposito v. State, 891 So.2d 525, 528 (Fla.2004) (quoting Seagrave v. State, 802 So.2d 281, 286 (Fla. 2001); Hayes v. State, 750 So.2d 1, 4 (Fla. 1999)). “Where the statute’s language is clear and unambiguous, courts need not employ principles of statutory construction to determine and effectuate legislative intent.” Johnson, 78 So.3d at 1310 (quoting Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009)).

Section 934.03(1), Florida Statutes (2010), contains a general prohibition on the interception of any wire, oral, or electronic communications. Section 934.02(2), Florida Statutes (2010), defines the term “oral communication” for purposes of chapter 934 as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.”

Section 934.03(2), Florida Statutes (2010), contains a list of specific exceptions to the general prohibition in section 934.03(1). One of these exceptions is for situations in which all parties to the conversation have consented. § 934.03(2)(d), Fla. Stat. (2010). None of the exceptions allow for the interception of conversations based on one’s status as the victim of a crime. The State does not argue that any of the exceptions listed in section 934.03(2) are applicable in this case.

Section 934.06 provides that the contents of any improperly intercepted communication may not be used as evidence:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.

This Court analyzed these statutory provisions in State v. Walls, 356 So.2d 294 (Fla.1978). In Walls, “the alleged victim of extortionary threats, electronically recorded a conversation” between himself and the defendants. Id. at 295. The Court concluded that the recording was inadmissible under section 934.06, Florida Statutes (1975). The Court explained:

We agree with the trial court that an extortionary threat delivered personally to the victim in the victim’s home is an “oral communication” within the definition of Section 934.02(2), Florida Statutes (1975); that pursuant to Section 934.03, Florida Statutes (1975), the electronic recording of such “oral communication” without the consent of all parties to the communication was prohibited; and that Section 934.06, Florida Statutes (1975), expressly prohibits the use of such electronic recording as evidence. The subject electronic recording did not fall within any of the situations permitting interception delineated in Section 934.08(2), Florida Statutes (1975). Section 934.06, Florida Statutes (1975), contains no exception to the prohibition against use of the illegally intercepted wire or oral communication as evidence.

Id. at 296.

Similarly, under the definition of oral communication provided by section 934.02(2), Florida Statutes (2010), McDade’s conversations with his stepdaughter in his bedroom are oral communications. The facts related to the recorded conversations support the conclusion that McDade’s statements were “uttered by a person exhibiting an expectation that [his] communieátion [was] not subject to interception” and that McDade made those statements “under circumstances justifying” his expectation that his statements would not be recorded. § 934.02(2), Fla. Stat. (2010). The recordings were made surreptitiously. McDade did not consent to the conversations being recorded, and none of the other exceptions listed in section 934.03(2) apply. The recordings, therefore, were prohibited. Because the recordings impermissibly intercepted oral communications, the recordings are inadmissible under section 934.06, Florida Statutes (2010).

The facts of Inciarrano are in important ways different from those in both Walls and the instant case. In Inciarrano, the trial court had determined that the “statements were not made under circumstances justifying an expectation to privacy,” based on factual circumstances including “the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations.” 473 So.2d at 1274. Thus, the recording was made in the victim’s place of business — a “quasi-public” place — and the recording device was visible. In addition, the recording contained sounds of the crime that were not “oral communications.” Arguably, the recording was admitted at trial not for the “contents” of any “oral communications.” The recording simply revealed the presence of the defendant — from the sound of his voice — and the sounds that accompanied the commission of the crime — that is, “five shots being fired ... several groans by the victim, the gushing of blood, and the victim falling from his chair.” Id. Conversely, the recordings at issue in this case were made in McDade’s bedroom, the recording device was hidden under the stepdaughter’s shirt, and the recordings contain conversations between McDade and his stepdaughter. Because of the differences in the location, visibility of the recording device, and content of the recordings at issue in Inciarra-no, it presented a set of circumstances that are starkly different from those present here.

The reasoning of Inciarrano turns, however, on the Court’s conclusion that any subjective expectation of privacy that Inci-arrano had was unjustified because it was not an expectation “that society is prepared to recognize as reasonable.” Id. at 1275. In reaching this conclusion, the Court focused on the fact that Inciarrano went to the victim’s office “to do him harm” and on Inciarrano’s resulting status as a “trespasser.” Id. The holding of Inciarrano thus is a narrow holding based on the view that a trespasser cannot have a justified expectation that his utterances in the premises where he trespasses are not subject to interception. Cf. United States v. Curlin, 638 F.3d 562, 565 (7th Cir.2011) (concluding that defendant who had previously been evicted from residence had “no legitimate expectation of privacy in the residence”); United States v. McRae, 156 F.3d 708, 711 (6th Cir.1998) (concluding that defendant who squatted in a vacant house “did not have a legitimate expectation of privacy by virtue of having stayed a week in the vacant premises that he did not own or rent”); United States v. Gale, 136 F.3d 192, 195-96 (D.C.Cir.1998) (concluding trespassing defendant “lacked the ‘legitimate expectation of privacy’ in the premises required to challenge the search”); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.1991) (concluding that defendant who occupied motel room that was not registered to defendant or someone he was sharing it with lacked a “legitimate expectation of privacy” under the Fourth Amendment in the motel room).

Inciarrano therefore is not based on a general rule that utterances associated with criminal activity are by virtue of that association necessarily uttered in circumstances that make unjustified any expectation that the utterances will not be intercepted. Nor can the holding in Inci-arrano be used as a basis for the decision reached by the Second District, which turns on McDade’s status as a person engaged in crimes involving the sexual abuse of a child. We thus do not understand the references in Inciarrano to “whether society is prepared to recognize [an expectation of privacy] as reasonable” to provide a basis for either such a general .rule or the view adopted by the Second District. Inciarrano, 473 So.2d at 1275.

The whether-society-is-prepared-to-recognize formulation has its genesis in the Fourth Amendment context. It first appears in Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), in his discussion of the objective expectation of privacy element of Fourth Amendment analysis. This formulation cannot be understood to justify a categorical rule that persons involved in criminal activities have no justified expectation of privacy in conversations related to those activities. Such a categorical rule makes no sense either in the Fourth Amendment context or under the definition of “oral communication” in section 934.02(2). The result in Katz itself — the suppression of recordings made by the government of telephone conversations relating to illegal gambling — illustrates this point regarding the meaning of the whether-society-is-prepared-to-recognize formulation.

“Privacy expectations do not hinge on the nature of [a] defendant’s activities— innocent or criminal. In fact, many Fourth Amendment issues arise precisely because the defendants were engaged in illegal activity on the premises for which they claim privacy interests.” United States v. Fields, 113 F.3d 313, 321 (2d Cir.1997) (internal citation omitted); see also United States v. Pitts, 322 F.3d 449, 458-59 (7th Cir.2003) (“We may not justify the search after the fact, once we know illegal activity was afoot; the legitimate expectation of privacy does not depend on the nature of the defendant’s activities, whether innocent or criminal.... If this were the case, then the police could enter private homes without warrants, and if they find drugs, justify the search by citing the rule that society is not prepared to accept as reasonable an expectation of privacy in crack cocaine kept in private homes.”).

It may well be that a compelling case can be made for an exception from chapter 934’s statutory exclusionary rule for recordings that provide evidence of criminal activity — or at least certain types of criminal activities. But the adoption of such an exception is a matter for the Legislature. It is not within the province of the courts to create such an exception by ignoring the plain import of the statutory text.

B. Hearsay

McDade’s argument that the trial judge erroneously permitted the boyfriend to testify about inadmissible hearsay statements is reviewed under an abuse of discretion standard. “A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. The trial court’s discretion is constrained, however, by the application of the rules of evidence and by the principles of stare decisis.” Hayward v. State, 24 So.3d 17, 29 (Fla.2009) (internal citations omitted).

In Penalver v. State, 926 So.2d 1118, 1131-32 (Fla.2006), the Court explained that:

Hearsay is defined in section 90.801(l)(c), Florida Statutes (2005), as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence tó prove the truth of the matter asserted.” (Emphasis added.) See also Hernandez v. State, 863 So.2d 484 (Fla. 4th DCA 2004). Thus, if the statement is offered for the truth of the facts contained in the statement, then the statement is hearsay and must fall within one of the recognized hearsay exceptions outlined in section 90.803 to be admitted into evidence. See Hutchinson v. State, 882 So.2d 943, 950-51 (Fla.2004). However, if the statement is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case. See Harris v. State, 843 So.2d 856 (Fla.2003); State v. Baird, 572 So.2d 904 (Fla.1990).

Here, the boyfriend’s testimony that the stepdaughter “told me that she was being raped when she was younger” was hearsay.

The Second District concluded that the boyfriend’s testimony was offered not to establish the truth of the matter asserted by the stepdaughter but to show why the boyfriend assisted the stepdaughter in making the recordings. See Krampert v. State, 13 So.3d 170, 174 (Fla. 2d DCA 2009) (concluding that out of court statements were not hearsay when they were introduced to explain subsequent conduct rather than to prove the truth of the matter asserted). Given our determination that the recordings were not admissible, this justification for the admission of the stepdaughter’s statement collapses. The boyfriend’s explanation of why he assisted the stepdaughter in making the inadmissible recordings is totally irrelevant. The State asserted no other basis in its brief to this Court for admitting the testimony. Therefore, the trial court abused its discretion in denying McDade’s hearsay objection.

III. CONCLUSION

We thus conclude that the recordings should have been suppressed under section 934.06, and the boyfriend’s testimony should have been excluded. We answer the rephrased certified question in the affirmative, quash the decision of the Second District, and remand this case to the Second District to reverse McDade’s convictions and sentences. McDade is entitled to a new trial.

It is so ordered.

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