source: Caselaw Access Project

author: PER CURIAM. POLSTON, J.,

license: Public Domain

text:
    Nelson SERRANO, Appellant, v. STATE of Florida, Appellee. Nelson Serrano, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC15-258
    No. SC15-2005
    Supreme Court of Florida.
    [May 11, 2017]

      See also, 2013 WL 2448043.

      Robert S. Friedman, Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida; and Louis G. Carres, Special Assistant Capital Collateral Regional Counsel, Northern Region,- West Palm Beach, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake, Assistant Attorney General, Tampa, Florida, for Appellee/Respondent
   PER CURIAM.

Nelson Serrano appeals the denial of his postconviction motion filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. For the following reasons, we affirm the denial of his guilt phase postconviction claims, deny his habeas petition, but vacate his sentences, and remand for a new penalty phase.

I. BACKGROUND

In 2011, this Court affirmed Serrano’s four convictions for first-degree murder and his four death sentences. Serrano v. State, 64 So.3d 93 (Fla. 2011). This Court explained the background of the case and murders as follows:

On May 17,2001, Nelson Serrano was indicted under seal on four counts of first-degree murder for the deaths of George Gonsalves, Frank.Dosso, Diane Patisso, and George Patisso. The murders occurred, on December 3, 1997, at Erie Manufacturing, and Garment Conveyor Systems in Bartow. George Gon-salves was one of Serrano’s business partners. And Frank Dosso, Diane Pa-tisso, and George Patisso were respectively the son, daughter, and son-in-law of Serrano’s other business partner, Felice (Phil) Dosso. Serrano, a dual citizen of the United States and Ecuador, was arrested in Ecuador on August 31, 2002, and brought to the United States.
At the guilt phase, which occurred in 2006, the State presented the following evidence. In the 1960s, Phil Dosso and George Gonsalves started a tool and die business, Erie Manufacturing Cooperative, in New York. Their business provided parts to support the garment industry. In the 1980s, Phil Dosso and George Gonsalves met Nelson Serrano, who was working for a New Jersey company selling slick rail systems for the garment industry. In the middle of the 1980s, the three men created a separate company, Garment Conveyor Systems. Serrano was responsible for designing, selling, and installing slick rail systems, while Dosso and Gonsalves built the parts.
In the late 1980s, the partners moved the business to Bartow, Florida. At that time, they closed Erie Manufacturing Cooperative and transferred all the assets to Erie Manufacturing, Inc. As part of their oral agreement, Serrano bought into the Erie partnership and agreed to pay Phil Dosso and George Gonsalves $75,000 each. Therefore, all three men were equal partners in both Garment Conveyor Systems and Erie' Manufacturing. Garment moved to Bartow as well. Serrano’s son, Francisco Serrano, began working at the business soon after they relocated to Bartow, and Phil Dosso’s son, Frank Dosso, began working there at a later date. Phil Dosso’s son-in-law, George Patisso, was also an employee of the business.
By the early 1990s, the business was doing well. However, friction bétween the three partners had developed. Nelson Serrano had failed to pay the $75,000 to each of his partners. Further, there were disagreements about the distribution of assets and accusations that there were two sets of books. Then, in the summer of 1997, Phil Dosso and George Gonsalves fired Francisco Serrano. Also in the summer of 1997, Nelson Serrano opened a separate business checking account with a different bank and deposited two Erie checks totaling over $200,000. And Serrano instituted a civil suit against his partners. Ultimately, Serrano was removed as president by a vote of the other two partners, and the locks were changed on the building.
Numerous Erie employees testified to the strained relations between Serrano and the other, two partners, particularly Serrano’s dislike of Gonsalves. Serrano made statements indicating that he wished Gonsalves were deceased. Additionally, Phil Dosso testified to hearing Serrano state that he felt like killing Gonsalves.
Gn the evening of the murders, most Erie employees left work at 5 p.m. or shortly thereafter. However, as was his usual practice, George Gonsalves worked late. David Catalan, an employee at Erie, testified that when he left with another employee shortly after 5 p.m. George Gonsalves’ car was the only car in the parking lot. Although George Pa-tisso and Frank Dosso remained at Erie with Gonsalves, they did not have a car parked in front because George Patisso’s -wife, Diane Patisso, had plans to pick them up and take them to Frank Dos-so’s home for a family birthday party.
When family members began calling Frank Dosso and could not get an answer, Phil Dosso. and his wife decided to drive to Erie. As Phil and Nicoletta Dosso entered Erie’s unlocked front door, they discovered the deceased body of their daughter, Diane Patisso. Phil Dosso called 911 and ran to Frank Dos-so’s office, where he discovered the bodies of George Gonsalves, George Patisso, and Frank Dosso.
When the first law enforcement officers arrived at the scene at 7:36 p.m., there were only three cars parked in front of the entrance: Phil Dosso’s car, Diane Patisso’s car, and George Gon-salves’ car. Inside Erie, law enforcement discovered twelve shell casings, eleven from a .22 and one from a .32. All of the victims had been shot in the head with .22 bullets, and Diane Patisso was also shot once with a .32 bullet. The three men were shot execution-style. While neither murder weapon was ever located, the State introduced evidence that Serrano possessed and owned multiple .22 and .32 caliber firearms.
In the office containing the three male victims, officers discovered a blue vinyl chair with shoe impressions on the seat. Directly above the chair, a ceiling tile had been dislodged. Although this office was Frank Dosso’s office at the time of the murders, it had been Nelson Serrano’s office when he worked at Erie. David Catalan testified that on one occasion, he saw Serrano in his office with a gun. Serrano was standing on a chair, moving a ceiling tile, and taking papers out of the ceiling. Further, Erie employee Velma Ellis testified that the blue chair in Frank Dosso’s office was never used and always remained under a desk in the office and that there were papers and a box piled on top of the chair’s seat. Ellis testified that the chair was in its usual position under the desk when she left work on December 3, 1997, at 5 p.m. Crime analysts tested the shoe impressions on the dusty seat of the blue vinyl chair and found that the class characteristics and wear pattern were consistent with a pair of shoes Serrano owned and later loaned to a nephew.
The State’s theory at trial was that Serrano kept a .32 caliber firearm hidden in the ceiling of his office. Once he was ousted from the company and the locks were changed he was unable to retrieve the gun until the night of the murders. After Serrano had shot the three male victims in his former office and was leaving the scene, Diane Patisso entered the building and was shot with both a .22 and the retrieved .32. An FDLE agent testified that Serrano told the agent that he would hide a gun in the ceiling of his office when he was out of town on business. However, Serrano’s fingerprints and DNA were not discovered at the crime scene.
When officers first discovered the four victims at Erie, their investigation immediately focused on Serrano. As soon as Serrano returned to his home from a business trip to Atlanta on December 4, 1997, detectives requested that he come to the police station for an interview. At the police station, Serrano told law enforcement about his problems with his partners and explained to the detective that he had learned of the murders the previous evening when he had called his wife from his Atlanta hotel.
During his interview with law enforcement, Serrano detailed his business trip itinerary, which included leaving Lake-land early on the morning of December 2, flying from Orlando to Washington, D.C., and, on the evening of December 2, flying from Washington to Atlanta. Serrano indicated that he remained in Atlanta until December 4, 1997. When asked by the detective what he thought may have happened at Erie, Serrano replied that “somebody is getting even; somebody they cheated, and George is capable of that.” Thereafter, the detective took Serrano’s taped statement, which was played for the jury. During his taped statement, Serrano stated that maybe Diane Patisso “walked in the middle of something.”
Officers traveled to Atlanta to investigate Serrano’s alibi and met with Larry Heflin of Astechnologies regarding his business meeting with Serrano. Heflin testified that he met Serrano in Atlanta on December 3 at about 9:45 a.m., and the meeting lasted approximately one hour. Investigators also obtained the La Quinta Inn airport hotel’s surveillance videotapes. The video showed Serrano in the Atlanta hotel lobby at 12:19 p.m. on December 3. Ten hours later, at 10:17 p.m., Serrano was again seen on the video, entering the hotel lobby from the outside, wearing the same sweater and jacket as earlier in the afternoon.
Alvaro Penaherrera, Serrano’s nephew, testified that on two separate occasions Serrano asked Penaherrera to rent a car for him so that Serrano’s wife would not find out about the rentals. On October 29, 1997, Serrano drove Penah-errera to the Orlando airport, where Penaherrera picked up a rental car. Penaherrera then drove the car and left it at a nearby valet lot. Thereafter, Serrano drove Penaherrera back to his apartment. Penaherrera had no further contact with the rental car and did not know who returned it on October 31, 1997, at 7:30 p.m.
Around Thanksgiving 1997, Serrano again asked Penaherrera to rent a car for him under Penaherrera’s name because Serrano had a girlfriend from Brazil coming into town. On November 23, 1997, Penaherrera made a telephone reservation for a rental car for December 3, 1997. On December 3, 1997, at 7:53 a.m., Serrano called Penaherrera from Atlanta and asked him to call to confirm the rental car reservation. Serrano called Penaherrera back at 8:06 a.m. to verify that the rental car would be ready. Penaherrera then drove to Orlando’s airport and parked his car in the parking garage, rented the car from the terminal dealership, and drove the rental car back to the Orlando airport parking garage, where he left it as his uncle requested. Later that day, Serrano called Penaherrera,' and Penaherrera told Serrano where the car was located and where the keys were hidden.
As on the previous occasion in October, Penaherrera did not expect to have any further involvement with the rental car after he left it at the Orlando airport parking garage on December 3.- However, Serrano called Penaherrera the next day, December 4, to tell Penaherrera that the rental car was in Tampa, not Orlando, and that Penaherrera needed to drive to Tampa and return the car there. Serrano told Penaherrera if he went to Tampa and returned the car, Serrano would pay off Penaherrera’s credit card bill and Penaherrera could pay him back without interest. Penah-errera agreed to this arrangement and returned the rental car in Tampa at 2:10 p.m. on December 4,1997. Gustavo Con-cha, Serrano’sfriend and Penaherrera’s godfather, subsequently paid Penaherr-era’s Visa bill.
Penaherrera next saw Serrano when he was visiting relatives in Ecuador for Christmas of 1997. Serrano informed Penaherréra of the murders at Erie and told Penaherrera that he could not say anything about the rental cars because it would jeopardize his marriage and the police would frame him for the murders.
In June 2000, Penaherrera, his girlfriend, and his brother were subpoenaed to testify before the grand jury. The three spent the night at Serrano’s house the night before their testimony. That night Serrano asked Penaherrera to tell the grand jury, that he had rented the car for a friend with whom he had subsequently lost contact. Serrano also gave Penaherrera and his brother suits and dress shoes to wear to court. The pair of shoes that Serrano gave Penaherrera were seized by law enforcement, and subsequent, testing indicated that the right shoe was consistent with the impression on the seat of the blue chair at the murder scene.
Also in June 2000, Penaherrera spoke for the first time with law enforcement regarding the December 1997 rental ear transaction. And after his testimony and discussions with law enforcement, Pen-aherrera returned home to Orlando, where Serrano contacted him to find out what information he had given to the grand jury and law enforcement. After Penaherrera testified before the grand jury, Serrano sold his home, car, and other assets and moved to Ecuador.
The State introduced evidence regarding Serrano’s air travel for his.December 1997 business trip. As explained previously, Serrano flew from Orlando to Washington, D.C., and then to Atlanta, on December 2,1997. However, contrary to his statements to law enforcement, the State also introduced evidence that Serrano traveled back to Florida on the day of the murders using two aliases. The State theorized that on the day of the murders Serrano flew from Atlanta to Orlando under the name Juan Agacio. Serrano then drove the car rented by Penáherrera on December 3 from the Orlando airport to Bartow, where he killed the four victims. Thereafter, he immediately drove the rental car to the Tampa airport, where he departed on a flight back to Atlanta using the alias John White.
To support its theory and timeline of Serrano’s activities on the day of the murders, the State introduced the videotape evidence demonstrating that Serrano was in the La Quinta Inn’s lobby in Atlanta shortly after noon on December 3, 1997. According to Serrano, he returned to his hotel room for the next'ten hours because he was" suffering from a migraine headache. However, the State introduced evidence that at 1:36 p.m. on December 3 a passenger calling himself Juan Agacio boarded Delta flight 1807 in Atlanta, scheduled to depart at, 1:41 p.m. for Orlando. At 3:05 p.m., the passenger purporting to be Juan Agacio arrived in Orlando on flight 1807, and at 3:49 p.m., the rental car that Penaherrera had rented exited the Orlando parking garage.
Serrano’s fingerprint was located on the parking garage ticket, indicating that Serrano departed from the Orlando airport garage at 3:49 p;m. on December 3,1997. And Serrano has a son, who was named Juan Carlos Serrano at birth and whose mother’s maiden name is Gladys Agacio. Additionally, the round-trip ticket for the Atlanta-to-Orlando flight of the passenger flying under the name Juan Agacio was purchased with cash at the Orlando airport on November 23, 1997, which is the same date that Penah-errera reserved the rental car for December 3, 1997. The State also introduced evidence that Serrano’s vehicle left the Orlando airport’s parking garage about twenty minutes after the passenger traveling under the name Juan Aga-cio purchased his ticket. The return portion of the flight was never used.
At approximately 5:30 p.m. on December 3,-1997, a person was seen standing off the side- of the road near Erie’s building. When John Purvis left work'on December 3, 1997, he noticed the man wearing a- suit standing in the grassy area with no car in the vicinity. The man was holding his coat and hands in front of his face as. if he were lighting a cigarette. Both Alvaro Penaherrera and Maureen Serrano testified that Serrano smoked, but they did not testify that he specifically smoked cigarettes. Purvis described the man, and law enforcement made a composite sketch that was shown to the jury.
Approximately two hours after the murders, at 7:28 p.m., the passenger flying under the name John White arrived at Tampa International Airport and checked into Delta Airlines for flight 1272 to Atlanta. Similar to the purchasing process for the ticket in the name of Juan Agacio, the purchaser paid for a round-trip ticket at Tampa International Airport on November 23, 1997, and never used the return portion of the ticket. Flight 1272 was scheduled to arrive in Atlanta at 9:41 p.m.
At 10:17 p.m., Serrano was observed in Atlanta on videotape walking into the La Quinta Inn airport hotel lobby from the outside, wearing the same clothes he had been wearing ten hours earlier. After being observed in the hotel lobby, Serrano used his cell phone to call various individuals, including his wife. The next morning he made multiple calls to Alvaro Penaherrera telling him he had to return the rental car that was now located at Tampa airport.
Furthermore, the State presented evidence that the car rented by Penaherr-era on December 3 had been driven 139 miles. The distance from the Orlando airport to Erie is eighty miles, and the distance from Erie to the Tampa airport is fifty miles, totaling 130 miles.
While incarcerated awaiting trial, Serrano spoke to fellow inmate and “jailhouse lawyer,” Leslie Todd Jones, about his case. Serrano denied any involvement in the murders, telling Jones that he believed a mafia hitman may have committed the murders, or alternatively, that Frank Dosso wanted to take over the business from George Gonsalves. The main theory Serrano described involved a hitman Serrano knew only as John, who was owed a substantial amount of money by the Dosso and Gon-salves families. Serrano explained to Jones that he and the hitman drove to the airports in Tampa and Orlando and that John purchased tickets under the names of Todd White and Juan Agacio. Serrano told Jones that the hitman had planned to approach the business partners on Halloween night, but it was raining and the business was closed. Serrano also told Jones about his fingerprint being found on a parking ticket in Orlando, but Serrano claimed that an FDLE agent had planted his fingerprint.
After law enforcement learned about the Halloween incident from inmate Jones, they began investigating and discovered almost an identical pattern of travel as the travel surrounding the December 3, 1997, murders. Serrano once again was traveling on a business trip from Orlando to Charlotte from October 30 to November 2, 1997. And as previously discussed, on October 29, Serrano took Alvaro Penaherrera to the Orlando airport, where Penaherrera rented a car for Serrano and left it at a nearby valet lot. The next morning, October 30, 1997, Serrano flew from Orlando to Charlotte with his flight arriving in Charlotte at 8:34 a.m. The following day, Halloween, someone traveling under the name Juan Agacio took a flight departing from Charlotte at 1:40 p.m. and arriving in Orlando at 3:07 p.m. At 7:30 p.m., a passenger identified as John White was scheduled to depart on a flight from Tampa to Charlotte.
During the guilt phase, the defense maintained that Serrano had been in an Atlanta hotel room with a migraine at the time of the murders. The defense emphasized that no forensic evidence linked Serrano to the scene of the crimes. The defense also pointed out that there was evidence of robbery at the scene as several offices were in disarray, Frank Dosso’s Rolex watch was missing, and George Patisso’s gold chain was missing. However, the jury returned a verdict finding Serrano guilty on four counts of first-degree murder.
At the penalty phase, the State presented victim impact statements, and the parties stipulated that Serrano was fifty-nine years of age at the time of the murders and that Serrano had no prior criminal history. The defense presented evidence that Serrano never received any disciplinary reports while incarcerated awaiting trial. The jury recommended a sentence of death by a vote of nine to three for each of the four murder counts.
At the Spencer hearing, Serrano presented numerous witnesses, some of whom testified by videotape from Ecuador. Then, on June 26, 2007, the trial court sentenced Serrano to death for each of the four murders.

Id. at 98-103 (footnote omitted).

On direct appeal, this Court affirmed Serrano’s convictions and sentences, rejecting the nine issues raised by Serrano and finding the death sentences proportionate.

Thereafter, Serrano filed a motion for postconviction relief and several amendments. During postconviction proceedings, Serrano obtained STR DNA testing of a plastic glove discovered at the crime scene under Diane Patisso’s body as well as STR DNA testing of two cigarette butts located in Erie’s parking lot. Serrano also obtained a postconviction order requiring fingerprint comparisons of several unknown fingerprints discovered at the crime scene, but the postconviction claim relating to the fingerprints was withdrawn after Serrano’s fingerprint was subsequently identified on a piece of paper that had been discovered near one of the victim’s body.

After holding an evidentiary hearing in May 2014, the trial court denied Serrano’s motion for postconviction relief. This appeal and habeas petition followed.

I. ANALYSIS

A. Letters

Serrano-alleges that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose a cover letter accompanying the United States’ extradition request, which indicated that the death penalty would not be sought if Serrano were extradited from Ecuador, and by failing to disclose a letter received by the state attorney from the Ecuadorian Consul, which expressed Ecuador’s displeasure with the potential imposition of the death penalty. However, we affirm - the denial of this claim.

“Under Brady, the State must disclose to the. defense knowledge of material exculpatory or impeachment evidence.” Jones v. State, 998 So.2d 573, 579 (Fla. 2008). As this Court has explained,

[t]o demonstrate a Brady violation the defendant must prove that (1) the evidence is favorable to him, either because it is exculpatory or because it is impeaching; (2) the State willfully or inadvertently suppressed it; and (3) that the suppression resulted in prejudice. Evidence is prejudicial or material under Brady if there is a reasonable probability that had the evidence been disclosed, the result of the trial would have been different. United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Thus, the critical question is whether the favorable evidence could reasonably be taken to put the whole case in'such a different light as to undermine confidence in the verdict. Strickler v. Greene, 527 U.S. 263, 290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting Kyles[ v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)]).

Id. at 579-80. “Questions of whether evidence is exculpatory or impeaching and whether the State suppressed evidence are questions of fact, and the trial court’s determinations of such questions will not be disturbed if. they are, supported by competent, substantial evidence.” Taylor v. State, 62 So.3d 1101, 1114 (Fla. 2011). For Brady claims, “the defendant" ultimately carries the burden of establishing a prima facie case based upon a legally valid claim.” Id. at 1115.

• Here, Serrano failed to demonstrate that the extradition packet cover letter and the Ecuadorian Consul’s letter constitute Brady material. The promise that the death penalty would not be sought if Ecuador extradited Serrano, which Ecuador did not do, is not favorable to Serrano as exculpatory or impeachment evidence. The Ecuadorian Consul’s letter expressing Ecuador’s opposition to the death penalty also does hot constitute exculpatory or impeachment evidence. - As such, Serrano’s Brady claim is without merit. See Hurst v. State, 18 So.3d 975, 1003 (Fla. 2009) (“The State’s failure to disclose the notes regarding Hess is not a Brady violation because the notes are not exculpatory or impeaching, and do not provide any basis to undermine our confidence in the verdict.”).

B. Closing Argument

Next, Serrano. claims that, trial counsel was ineffective for failing to object to portions of the State’s closing argument in. the guilt ph,ase, namely the State’s description of, Serrano as diabolical and a liar, the State’s comments that allegedly shifted the burden of proof, and the State’s discussion of the presumption of innocence. However, because Serrano failed to establish prejudice, this Court affirms the denial of relief.

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

Regarding the deficiency prong of Strickland, there is a strong presumption that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Moreover,.“[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. Further, 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)). And counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla. 1992), abrogated on other grounds by Deren v. State, 985 So.2d 1087 (Fla. 2008).

“Regarding the prejudice prong of Strickland, the defendant must show that there is a reasonable probability that, ‘absent the [deficient performance], the fact-finder would, have [had] a reasonable doubt respecting guilt.’” Dennis v. State, 109 So.3d 680, 690 (Fla. 2012) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052), “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

“Because both prongs of Strickland present mixed questions of lay and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo'.” Dennis, 109 So.3d at 690.

On direct. appeal, “Serrano allege[d] that the State improperly called Serrano diabolical and a liar during closing arguments.” Serrano, 64 So.3d at 111. Serrano also alleged on direct appeal “that the State improperly, shifted the burden of proof by stating the following during closing arguments: (1) ‘You can’t come up with any other theory that fits that anybody else would have done it;’ (2) ‘He talks about this being a professional hit.-There is no evidence. There is no evidence that these crimes are any kind of professional hit.’” Id. This Court rejected both claims, explaining that they were not preserved for appellate review by contemporaneous objections. Id. Additionally, with both claims, this Court concluded that, if there was error, the error did not constitute fundamental error. Id. Therefore, “[because [Serrano] could not show the comments were fundamental error on. direct appeal, he likewise cannot show that trial counsel’s failure to object to the comments resulted in prejudice sufficient to undermine the outcome of the case under the prejudice prong of the Strickland test.” Chandler v. State, 848 So.2d 1031, 1046 (Fla. 2003); see also Thompson v. State, 759 So.2d 650, 664 (Fla. 2000) (“Because none of these prosecutorial comments would have constituted reversible error had they been objected to at trial, we affirm the trial court ruling summarily denying this claim.”).

Regarding the State’s discussion of the presumption of innocence during closing argument, Serrano also cannot demonstrate prejudice. Even if the State’s brief discussion was erroneous, the jury was properly instructed about the presumption of innocence by the trial judge. And the trial judge instructed the jury that it must follow the law as set out in the jury instructions. Moreover, as the post-conviction court explained in its order denying relief, the State’s comments when read in their entirety appear to be an attempt to argue that the State had met its burden of proof in the case through the presentation of evidence. Cf. Taylor v. State, 62 So.3d at 1113 (concluding that comments “the presumption of innocence does not leave the defendant until evidence has been presented that wipes away that presumption” and that “[t]here is no longer a presumption of innocence as evidence has been presented” were not improper but were an attempt to state the belief that the State satisfied the burden of proof). As a result, there is not a reasonable probability of a different result. In other words, our confidence in the outcome is not undermined.

Accordingly, we affirm the denial of this claim.

C. Travel Timeline

Serrano also asserts that trial counsel was ineffective in failing to investigate and present evidence calling into question the State’s timeline for Serrano’s travel between Atlanta, Orlando, Bartow, Tampa, and back to Atlanta on the day of the murders. However, we affirm the postcon-viction court’s denial of this claim.

First, Serrano has failed to demonstrate deficiency. Trial counsel Norgard testified at the postconviction evidentiary hearing that he closely reviewed the alleged travel timeline and that, after considering his personal experiences traveling in these locations as well as comparing the timeline with others’ personal experiences, he believed the timeline was tight, but “doable.” And trial counsel strenuously argued to the jury at trial that the State’s timeline was very improbable, if not impossible. Serrano has not demonstrated that this investigation and strategy regarding the travel timeline was unreasonable. See generally Atkins v. Dugger, 541 So.2d 1165, 1166 (Fla. 1989) (“One tactic available to counsel is to present expert testimony. However, it is by no means the only tactic, nor is it required.”).

Second, Serrano has failed to demonstrate prejudice. During the post-conviction proceedings, Serrano never introduced any evidence indicating that a more complete investigation into the time-line or hiring an individual to reenact the timeline would have changed Serrano’s defense at trial or would have further called the State’s timeline into question. Cf. Conahan v. State, 118 So.3d 718, 727-28 (Fla. 2013) (holding that the defendant could not establish prejudice for trial counsel’s failure to hire an expert when the expert’s testimony would not have changed the nature of the State’s evidence). Thus, Serrano has failed to establish a reasonable probability of a different result. In other words, our confidence in the outcome is not undermined.

Accordingly, this Court affirms the denial of this claim.

D. Law Enforcement Testimony

Serrano next claims that trial counsel was ineffective for failing to object to law enforcement’s testimony during the guilt phase and the prosecutor’s comment during opening statement that the police did not believe the crime was motivated by robbery. However, this Court affirms the denial of relief.

First, the admission of this testimony and the prosecutor’s comment about the testimony were not improper. Evidence of a defendant’s motive and testimony about the course of law enforcement’s investigation are admissible. See generally Craig v. State, 510 So.2d 857, 863 (Fla. 1987) (“While evidence of motive is not necessary to a conviction, when it is available and would help the jury to understand the other evidence presented, it should not be kept from them merely because it reveals the commission of crimes not charged.”); Kearse v. State, 662 So.2d 677, 684 (Fla. 1995) (“We find no error in the admission of Tedder’s testimony regarding the transmissions to dispatch or the tape of those transmissions. The State did not offer this evidence to prove the truth of the matter asserted, but rather to establish the sequence of events and to explain why the police investigation focused on Kearse as the perpetrator.”). And trial counsel cannot be deemed deficient for failing to make a meritless objection.

Moreover, even if there was any error, Serrano could not demonstrate prejudice. The jury heard evidence that Serrano himself told law enforcement that he did not believe the murders were motivated by robbery. Further, trial counsel was not prevented from arguing that robbery might have been the motive based upon the evidence presented by the State that two victims were missing a watch and necklace respectively and that the crime scene was discovered in disarray. Thus, there is no reasonable probability of a different result had trial counsel objected. In other words, our confidence in the outcome is not undermined.

Accordingly, we affirm the denial of this claim.

E. Shoe Size

Additionally, Serrano argues that trial counsel was ineffective for failing to present evidence of Serrano’s shoe size. However, we affirm the denial of relief.

Serrano has failed to demonstrate deficiency. At the evidentiary hearing, trial counsel testified that he decided to not present evidence of Serrano’s shoe size in order for the defense to retain first and last closing argument. Trial counsel stated that he believed the State’s presentation of the size 8½ shoes obtained from Serrano would suffice. Trial counsel’s decision was not “outside the broad range of reasonably competent performance under prevailing professional standards.” Bolin, 41 So.3d at 155 (quoting Maxwell, 490 So.2d at 932).

Furthermore, Serrano has faded to demonstrate prejudice. The investigator hired by postconviction counsel to measure Serrano’s feet determined that Serrano wore a size 9 shoe in October 2013. And, while evidence was presented at trial that the shoe Serrano loaned his nephew Alvaro Penaherrera, which was consistent with the shoeprint discovered at the crime scene, is a size 7, evidence was also presented at trial that Serrano loaned his other nephew size 8½ shoes in a different style. See Serrano, 64 So.3d at 101. Moreover, the State’s podiatrist testified at the evidentiary hearing that an individual’s shoe size often increases as an individual ages, and the murders in this case took place nearly 16 years before Serrano’s feet were sized during postconviction proceedings. Also, the State presented evidence at the evidentiary hearing that the size 7 DeRizzo shoes loaned to Penaherrera that matched the print at the crime scene were almost the exact same size as the size 8½ Bostonian Florentine shoes that Serrano loaned to his other nephew. In fact, the size 7 shoes were only .1 centimeters shorter than the 8½ shoes. Thus, there is no reasonable probability of a different result had trial counsel introduced evidence of Serrano’s shoe size. In other words, our confidence in the outcome is not undermined.

Accordingly, we affirm the denial of this claim.

F. Giglio Claim Regarding John Purvis

Serrano claims that the State, in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), presented false testimony from John Purvis regarding the individual Pur-vis witnessed standing outside Erie near the time of the murders. However, we affirm the denial of this claim.

“To establish a Giglio violation, it must-be shown that: (1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Guzman v. State, 868 So.2d 498, 505 (Fla. 2003). “Under Giglio, once a defendant has established that the prosecutor knowingly presented false testimony at trial, the State bears the burden to show that the false evidence was not material.” Id. at 507.

Here, there is competent, substantial evidence to support the postconviction court’s factual finding .that John Purvis’ testimony was not false. See Davis v. State, 136 So.3d 1169, 1186-87 (Fla. 2014) (“[T]he postconviction court concluded that Williams’ deposition testimony was ambiguous and.thus did.not demonstrate that her trial testimony was false. The postcon-viction court did not err in denying relief. The postconviction court’s factual conclusion that Williams’ testimony was not false is supported by competent, substantial evidence.”). John Purvis’ testimony at trial in 2006 was relatively consistent with his pre: hypnosis statements to law enforcement in 1999. He testified at trial that the man he saw outside Erie, was holding his hands “like he was lighting a cigarette.” And, in 1999, Purvis stated that the individual “had pulled his coat up like this and was lighting a cigarette in the wind.” Further, both at trial and in his statement to law enforcement in 1999, Purvis described the individual as non-Caucasian and possibly Hispanic with black hair even though Pur-vis also included the possibility in his statement in 1999 that the non-Caucasian individual might be Hispanic or Asian. However, the slight differences and ambiguities in Purvis’ descriptions appear to be the result of the same witness giving multiple statements describing the same thing over time. Serrano has failed to demonstrate that the State presented false testimony.

Additionally, Serrano failed to present any testimony during postconviction proceedings to show the falsity of Purvis’’ testimony at trial that the pre-hypnosis composite sketch introduced at trial “resemble[d] the person best you could describe it for this artist that you saw outside Erie Manufacturing that day.” Serrano’s argument is based on the assumption that Purvis’ second, post-hypnotic composite sketch must be a more reliable reflection of his recollection at trial than the pre-hypnotic composite sketch, but that assumption is not necessarily true. As this Court has explained, “although some experts profess the belief that hypnotically refreshed, testimony is reliable, many more experts have arrived at the opposite conclusion.” Stokes v. State, 548 So.2d 188, 194 (Fla. 1989) (footnote omitted) (ruling that additional hypnotically refreshed testimony is inadmissible).

.Accordingly, this Court affirms the denial of this Giglio claim.

G. Ineffective Assistance of Counsel Claim Regarding John Purvis

Next, Serrano alleges that trial counsel was ineffective for failing to object to John Purvis’ allegedly false testimony that was presented in violation of Giglio. Serrano also claims that trial counsel was ineffective for failing to depose Purvis, for failing to cross-examine him regarding his pre-hypnosis description of the.man he saw outside as being non-Caucasian and possibly Asian or Hispanic and lighting a cigarette, and for failing to seek the admission of Purvis’ post-hypnotic statements and composite sketch. However, because Serrano failed to demonstrate deficiency, we affirm the postconviction court’s denial of relief.

First, as explained previously, John Pur-vis’ testimony describing the man he saw outside Erie was not false testimony in violation of Giglio. Therefore, trial counsel cannot be deficient for failing to raise a meritless objection based on Giglio.

Second, Serrano failed to establish that trial counsel was deficient for failing to seek the admission of Purvis’ hypnotically refreshed, statements and composite sketch. In Stokes, 548 So.2d at 196, this Court held that “the testimony, of .a witness who has undergone hypnosis for the purpose of refreshing his or her memory of the events at issue is inadmissible as to all additional facts relating to those events from the time of the hypnotic session forward.” However, this Court explained that “[a] witness who has been hypnotized may testify to statements made before the hypnotic session, if they are properly recorded.” Id.

Serrano argues that Purvis’ hypnotically refreshed statements fall under an exception outlined in the United States Supreme Court’s decision in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). However, Rock involved hypnotically refreshed statements in the context of a criminal defendant’s constitutional right to testify in his or her own defense. Since Purvis was a State witness, not .the defendant, Rock is inapplicable here. Consequently, because Purvis’ hypnotically refreshed statements and the post-hypnosis composite sketch were inadmissible, trial counsel cannot be deemed deficient for failing to present it. See Owen v. State, 986 So.2d 534, 546 (Fla. 2008) (“Trial counsel cannot be deemed ineffective for failing to present inadmissible evidence.”).

Third, Serrano failed to demonstrate that trial counsel was deficient for failing to depose Purvis and cross-examine him regarding alleged discrepancies in his descriptions of the individual he saw the night .of the murders. At the evidentiary hearing, trial counsel explained that he. did not want to diminish Purvis’ testimony or undermine his credibility because Purvis’ description of the individual being 25 to 30 years old was favorable to the defense’s case. Serrano was significantly older than the man Purvis described, and trial counsel “were arguing that Mr. Purvis' saw somebody other than Mr. Serrano out there[. W]e were trying to convince the jury that he saw who was the killer.” Trial counsel’s strategic decision was reasonable, and Serrano has failed to demonstrate deficiency under Strickland.

. Accordingly, this Court affirms the denial of relief.

H. DNA Tésting

Further, Serrano alleges postcon-viction STR DNA testing results warrant a new trial and that trial couiisel was ineffective for failing to seek STR DNA testing. However, we affirm the denial of both claims.

“This Court has previously held that for a conviction tó be set aside based on a claim of newly discovered evidence, the defendant must meet two requirements^]”

First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (“Jones II”). Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla. 1996)). In determining whether the newly discovered evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones v. State, 591 So.2d 911, 916 (Fla. 1991) (“Jones I”).

Spann v. State, 91 So.3d 812, 815-16 (Fla. 2012). Moreover, this Court has explained that “[w]hen the trial court rules on a newly discovered evidence claim after an evidentiary hearing, we accept the trial court’s findings on questions of fact, the credibility of witnesses, and the weight of the evidence if based upon competent, substantial evidence.” Waterhouse v. State, 82 So.3d 84, 101 (Fla. 2012) (quoting Hitchcock v. State, 991 So.2d 337, 349 (Fla. 2008)).

Here, the second prong of the newly discovered' evidence standard is not satisfied. At the evidentiary hearing, all three DNA witnesses testified that Serrano could neither be included nor excluded from the DNA located in the palm of the plastic glove discovered under Diane Patis-so’s body. And while one of the witnesses testified that Serrano could be excluded as a contributor to the mixture of approximately three people on the glove fingers, the other two experts disagreed. The other two experts, one of whom was even called by Serrano, testified that there was not enough information using STR technology to either exclude or include Serrano as having contributed to the mixture. All three explained that victim George Patisso was the major contributor to the mixture on the glove fingers. Considering this evidence as well as the evidence presented at trial, it is clear that the inconclusive STR DNA evidence would not probably produce an acquittal on retrial because it does not give rise to a reasonable doubt as to Serrano’s culpability.

Additionally, Serrano failed to establish that trial counsel was ineffective for failing to seek this STR DNA testing. At the evidentiary hearing, trial counsel explained that the State had no DNA evidence linking Serrano to the crime scene, and he did not want to risk the possibility of establishing such a link with a defense request for additional DNA testing. Instead, trial counsel chose to stress to the jury that there was no physical evidence demonstrating that Serrano was at Erie the night of the murders. This decision was reasonable and not “outside the broad range of reasonably competent performance under prevailing professional standards.” Bolin, 41 So.3d at 155 (quoting Maxwell, 490 So.2d at 932). Consequently, Serrano did not establish deficiency.

Serrano also failed to demonstrate prejudice. There is not a reasonable probability of a different result if trial counsel had presented the inconclusive STR DNA testing of the plastic glove. Three experts agreed that the further DNA testing of the palm of the glove found under one of the four victims could not exclude Serrano, and two of three experts agreed that further DNA testing of the glove fingers could not exclude Serrano. In other words, our confidence in the outcome is not undermined.

Accordingly, this Court affirms the denial of these newly discovered evidence and ineffective assistance of counsel claims.

I. Motion For New Trial

In his habeas petition, Serrano alleges that appellate counsel was ineffective for failing to assert trial counsel’s ineffectiveness on the record for not including a challenge to the sufficiency of the evidence in Serrano’s motion for a new trial after the jury’s verdict. However, we deny relief.

Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus. Valle v. Moore, 837 So.2d 905, 907 (Fla. 2002); Freeman v. State, 761 So.2d 1055, 1069 (Fla. 2000). The standard of review for claims of ineffective assistance of appellate counsel mirrors the Strickland standard for ineffective assistance of trial counsel. Valle, 837 So.2d at 907. In order to grant habeas relief on ineffectiveness of appellate counsel, this Court must determine

first, 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.

Pope v. Wainwright, 496 So.2d 798, 800 (Fla. 1986) (citing Johnson v. Wainwright, 463 So.2d 207, 209 (Fla. 1985)).

Additionally, appellate counsel cannot be deemed ineffective for failing to raise meritless issues or issues that were not properly raised in the trial court and are not fundamental error. Valle, 837 So.2d at 908. “In fact, appellate counsel is not necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivo-lous issue.” Id. (citing Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Provenzano v. Dugger, 561 So.2d 541, 549 (Fla. 1990).

In Reed v. State, 875 So.2d 415, 439 (Fla. 2004), this Court denied a similar habeas claim regarding trial counsel’s alleged ineffectiveness for the failure to file a motion for new trial or other motion “challenging the legal sufficiency of the State’s case.” In Reed, this Court first explained that “[t]o the extent that Reed claims his trial counsel rendered ineffective assistance of counsel, this issue is improperly raised in a petition for writ of habeas corpus.” Id. at 439-40. Then, this Court in Reed noted that “trial counsel moved for directed judgment of acquittal at the conclusion of the State’s case-in-chief.” Id. at 440. Finally, this Court in Reed explained that, because this Court found the evidence sufficient on direct appeal, it would not have found any merit to a claim challenging sufficiency if one had been raised by appellate counsel. Id.

Likewise, trial counsel here moved for a directed verdict after the State’s case-in-chief, and, on direct appeal, this Court concluded that the circumstantial evidence was sufficient to support Serrano’s four convictions for first-degree murder. Serrano, 64 So.3d at 104-05. The end result of this Court’s sufficiency analysis would not have been any different. Accordingly, appellate counsel cannot be deemed ineffective for failing to raise this meritless issue.

J. Polygraph Evidence

In his next habeas claim, Serrano asserts that appellate counsel was ineffective for failing to challenge the trial court’s ruling regarding the admissibility of polygraph examinations. Prior to trial, trial counsel moved to introduce evidence of polygraphs given to three State witnesses, namely Alvara Penaherrera, Gustavo Concha, and David Catalan. After holding a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial court denied the motion.

This Court has repeatedly explained that polygraph evidence is generally inadmissible in Florida. See Duest v. State, 12 So.3d 734, 746 (Fla. 2009); Walsh v. State, 418 So.2d 1000, 1002 (Fla. 1982). (“[P]olygraph evidence is inadmissible in an adversary proceeding in this state.”). And, in Gosciminski v. State, 132 So.3d 678, 701-04 (Fla. 2013), after reviewing the evidence presented at the Frye hearing, this Court affirmed the trial court’s ruling that polygraphs are not generally accepted in the scientific community and are, therefore, inadmissible.

Accordingly, appellate counsel cannot be deemed deficient for failing to, raise a mer-itless claim regarding the admissibility of polygraph evidence. We deny this habeas claim.

K. Firearms

Serrano also alleges that appellate counsel was ineffective for failing to more directly argue on direct appeal that evidence of Serrano’s gun collection was inadmissible at trial. However, because Serrano cannot demonstrate prejudice, we deny this habeas claim.

In the direct appeal, appellate counsel raised a variation of this claim, which this Court rejected. Specifically, as part of Serrano’s claim that prosecutorial- misconduct required reversal, appellate counsel alleged “that the State improperly elicited evidence that Serrano owned multiple guns •for the purpose of implying that since Serrano owned a lot of guns, he must have been the killer in this case.” Serrano, 64 So.3d at 110. This Court explained that, “[a]lthough general ownership of guns does not provide evidence that one committed a murder, the evidence introduced in this case demonstrated that Serrano was .familiar with and owned the caliber of firearms used to commit these murders.” Id. at 110-11. Importantly, this Court also stated that, “even if the admission of this gun evidence were considered error, the error would be. harmless beyond a reasonable doubt.” Id. at 111.

Because this Court determined that any error in admitting the gun evidence was harmless, Serrano cannot’ demonstrate prejudice under Strickland. See Cox v. State, 966 So.2d 337, 347 (2007) (“The harmless error test as articulated by this Court requires the State ‘as the beneficiary of the error, to prove beyond a reasonable "doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed' to the conviction.’ State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Thus, in concluding that the prosecutor’s misstatements of the law during voir dire constituted harmless error, we held that there was no reasonable probability that these misstatements contributed to Cox’s conviction. See id. Therefore, regardless óf whether counsel was deficient for failing to object to improper statements by the prosecution, Cox cannot demonstrate prejudice under the second prong of Strickland.”).

Accordingly, we deny relief.

L. Hurst

Finally, we consider whether Serrano is entitled to relief after the United States Supreme Court issued its decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Because the jury recommended the death penalty on all four counts by a vote of nine to three, we conclude that Serrano’s death sentences violate Hurst. See Kopsho v. State, 209 So.3d 568, 569-70 (Fla. 2017). We must then consider whether the Hurst error was harmless beyond a reasonable doubt:

The harmless error test, as set forth in Chapman[v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Hurst v. State, 202 So.3d 40, 68 (Fla. 2016) (quoting DiGuilio, 491 So.2d at 1138), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

Because the jury in this case recommended death on all four counts by a vote of nine to three, “we cannot determine that the jury unanimously found that the ag-gravators outweighed the mitigation.” Kopsho, 209 So.3d at 570. “We can only determine that the jury did not unanimously recommend ... sentence^] of death.” Id. Therefore, because we cannot say that there is no possibility that the error did not contribute to the sentences, the error in Serrano’s sentencing was not harmless beyond a reasonable doubt.

Accordingly, we vacate the death sentences and remand for a new penalty phase. See Hurst, 202 So.3d at 69.

III. CONCLUSION

For the foregoing reasons, we affirm the denial of Serrano’s postconvietion guilt phase claims, deny his habeas petition, vacate his death sentences, and remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. '

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY and LAWSON, JJ., concur.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentences pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Because we are remanding for a new penalty phase, we do not address Serrano's penalty phase claims.

      . "The trial court found the following aggra-vators in regards to all four murders: (1) the murders were committed in a cold, calculated, and premeditated manner (great weight); and (2) Serrano was convicted of other capital felonies (the contemporaneous murders) (great weight). The trial court also found that the murder of Diane Patisso was committed for the purpose of avoiding arrest (great weight). Additionally, the trial court found the following mitigators: (1) Serrano had no significant history of prior criminal activity (great weight); (2) Serrano was in his late fifties at the time of the crimes (some moderate weight); (3) Serrano performed well in school (moderate weight); (4) Serrano has a good social history (moderate weight); (5) Serrano had no history of drug or alcohol abuse (some weight); (6) Serrano was a successful Hispanic immigrant (moderate weight); (7) Serrano displayed positive behavior during his pretrial incarceration (some weight); (8) Serrano displayed positive behavior during his court appearances (some weight); (9) Serrano expressed remorse regarding the death of Diane Patisso (slight weight); (10) Serrano had a good employment history (some weight); (11) Serrano was a good husband (some weight); (12) he was a good father (some weight); (13) Serrano was positively involved in his religion (some weight); and (14) he had a significant history of good works (moderate weight).” Serrano, 64 So.3d at 103.

      . Serrano raised the following on direct appeal: “(1) whether the circumstantial evidence is sufficient to support his convictions; (2) whether Serrano’s statements to FDLE Agent Tommy Ray were admissible; (3) whether the trial court properly denied Serrano’s motions to dismiss the indictment and divest itself of jurisdiction; (4) whether the prosecutor engaged in misconduct that entitles Serrano to relief; (5) whether the trial court properly denied Serrano’s motion for a change of venue; (6) whether the testimony of the State’s bloodstain pattern expert was admissible; (7) whether the State improperly cross-examined Serrano’s character witnesses about collateral crimes at the Spencer hearing; (8) whether the avoid arrest aggravator was properly submitted to the jury and found by the trial court; and (9) whether Serrano’s death sentence is constitutional.” Id. at 104.

      . Testimony regarding post-hypnosis statements is inadmissible. See Stokes v. State, 548 So.2d 188, 196 (Fla. 1989) (‘‘[T]estimony . of a witness who has undergone hypnosis for the purpose of refreshing his or her memory of the events at issue is inadmissible as to all additional facts relating to those events from the time of the hypnotic' session forward. A witness who has been hypnotized may testify to statements made before the hypnotic session, if they are properly recorded.”).


author: CANADY, J. LEWIS, J.,

text:
    GRETNA RACING, LLC, Petitioner, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, etc., Respondent.
    No. SC15-1929
    Supreme Court of Florida.
    [May 18, 2017]

      David S. Romanik of David S. Romanik, P.A., Oxford, Florida; and Marc W. Dunbar, Tallahassee, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, and Denise M. Harle and Jonathan L. Williams, Deputy Solicitors General, Tallahassee, Florida, for Respondent
    Philip J. Padovano of Brannock & Hum-phries, Tallahassee, Florida, for Amicus Curiae City of Gretna
    John M. Lockwood and Kala Kelly Shankle of The Lockwood Law Firm, Tallahassee, Florida, for Amici Curiae Investment Corporation of Palm Beach, Bonita-Fort Myers Corporation, and Melbourne Greyhound Park, LLC
    David J. Weiss of Ausley & McMullen, P.A., Tallahassee, Florida, for Amicus Curiae Gadsden County
    Dan Gelber, Adam Schachter, and Freddy R. Funes of Gelber Schachter & Greenberg, P.A., Miami, Florida, for Ami-cus Curiae Honorable Daniel Robert “Bob” Graham
    David K. Miller of Broad and Cassel, Tallahassee, Florida, and Mark M. Barber of Broad and Cassel, Tampa, Florida, for Amicus Curiae No Casinos, Inc.
   CANADY, J.

“Shall slot machines be approved for use at the pari-mutuel [horse track] facility in Gretna, Florida]?” This is the question presented by the Gadsden County Commission to the county’s voters in a ballot question. And it is the question we now must decide. A majority of the voters answered the question in the affirmative, but the Division of Pari-Mutuel Wagering subsequently denied a slot machine permit to Gretna Racing, LLC. In Gretna Racing, LLC v. Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 178 So.3d 15 (Fla. 1st DCA 2015), the First District upheld the Division’s denial of the permit and certified a question of great public importance, which establishes our jurisdiction. See art. V, § 3(b)(4), Fla. Const. Gretna Racing contends that the Division was required to issue the permit once the voters had answered the ballot question in the affirmative. Based on the provisions of chapter 551, Florida Statutes (2013), governing slot machines and the law establishing the powers of non-charter counties, we conclude that the Division’s denial of the slot machine permit sought by Gretna Racing was correct because submission of the ballot question to the voters was not legally authorized.

I.

In 2004, Florida’s voters adopted a constitutional provision authorizing countywide referenda in Miami-Dade and Bro-ward Counties to approve slot machines at certain existing pari-mutuel facilities. See art. X, § 23, Fla. Const. (2004). Under this provision,

the governing bodies, of Miami-Dade and Broward Counties each may hold a county-wide referendum in their respective counties on whether to authorize slot machines within existing, licensed parimutuel facilities (thoroughbred and harness racing, greyhound racing, and jai-alai) that have conducted live racing or games in that county during each of the last two calendar years before the effective date of this amendment.

Id. § 23(a). The provision specified that slot machines will be authorized for qualifying facilities upon approval by the voters, id., and directed the Legislature to adopt implementing legislation, id. § 23(b).

Section 551.104(1), Florida Statutes (2013), provides for the issuance by the Division of licenses “to conduct slot machine gaming.” Under section 551.104(1), the Division is authorized to issue such licenses to an “eligible facility”—a term that is defined in section 551.102(4). But section 551.104(2) goes on to establish an additional condition for the issuance of licenses: “An application may be approved by the division only after the voters of the county where the applicant’s facility is located have authorized by referendum slot machines within pari-mutuel facilities in that county as specified in s. 23, Art. X of the State Constitution.” So by its plain terms, section 551.104(2) limits licenses to facilities in counties where the voters have approved slot machines as provided by article X, section 23—which does not extend beyond Miami-Dade and Broward Counties.

Yet the definition of “eligible facility” in section 551.102(4), Florida Statutes (2013), contemplates the issuance of licenses in additional circumstances:

“Eligible facility” means [1] any licensed pari-mutuel facility located in Miami-Dade County or Broward County existing at the time of adoption of s. 23, Art. X of the State Constitution that has conducted live racing or games during calendar years 2002 and 2003 and has been approved by a majority of voters in a countywide referendum to have slot machines at such facility in the respective county; [2] any licensed pari-mutuel facility located within a county as defined in s. 125.011, provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required license fee, and meets the other requirements of this chapter; or [3] any licensed parimutuel facility in any other county in which a majority of voters have approved slot machines at such facilities in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section in the respective county, provided such facility has conducted a full schedule of live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required licensed fee, and meets the other requirements of this chapter.

This statutory definition contains three clauses—indicated by the bold bracketed numerals—that address distinct circumstances. The first clause implements article X, section 23. It was adopted in 2005. See ch. 2005-362, § 1, Laws of Fla. The second and third clauses were both adopted in 2009. See ch. 2009-170, § 19, Laws of Fla. The second clause pertains' to facilities in counties “defined in s. 125.011”—that is, “any county operating under a home rule charter adopted pursuant to ss. 10,11, and 24, Art. VIII of the Constitution of 1885, as preserved by Art. VIII, s. 6(e) of the Constitution of 1968, which county, by resolution of its board of county commissioners, elects to exercise the powers” conferred on such counties. § 125.011(1), Fla. Stat. (2013). The second clause has no referendum requirement. And it has no application to Gadsden County.

The controversy in this case in large part centers on the third clause. More particularly, it centers on whether Gadsden County is a “county in which a majority of voters have approved slot machines . . . in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section.” § 551.102(4), Fla. Stat. (2013). As we subsequently explain, we conclude that the third.clause—properly understood—is dispositive. But first we briefly review the grounds for the Division’s denial of a slot machine license to Gretna Racing, the ruling of the First District regarding those grounds, and the question of .great public importance certified by the First District.

II.

The Division denied a slot machine gaming license to Gretna Racing based on the Division’s conclusion that the requirements of neither section 551.104(2) nor the third clause of section 551.102(4) had been satisfied.

The Division ruled that the issuance of a license to Gretna Racing was foreclosed by section 551.104(2) because that section limits licenses to facilities in counties where the voters have approved slot machines as provided by article X, section 23 of the Florida Constitution, and Gadsden County is not within the ambit of article X, section 23. The Division thus rejected an argument made by Gretna Racing, that, the limitation imposed, by section 551.104(2) was implicitly repealed by the Legislature’s subsequent adoption of the second and third clauses of section 551.102(4).

Concerning the third clause of section 551.102(4), the Division focused on the portion of the text referring to “a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section.” (Emphasis added.) The Division interpreted this language as requiring that the “statutory or constitutional authorization” for a referendum be an authorization adopted “after the effective date” of the third clause. In adopting this interpretation, the Division relied on an opinion of the Attorney General. See Op. Att’y Gen. Fla. 2012-01 (2012) (concluding that “all pertinent considerations confirm that the Legislature intended that any statutory or constitutional authorization for a slots-approving referendum must occur after July 1, 2010, the effective date of the relevant portion of section 551.102(4), Florida Statutes”). The Division therefore rejected Gretna Racing’s reliance on section 125.01(1)(y), Florida Statutes (2013), which permits the governing body of a county to conduct “straw ballots,” because that “authorization” was adopted prior to the effective date of the third clause of section 551.102(4).

In upholding the Division’s denial of the license, the First District summed up its decision as follows:

Because the Gadsden County vote, was not an authorized “referendum,” amounting to only a non-binding vote of the electorate, it has no binding legal effect. Moreover, nothing in the language, structure, or history of slot machine legislation, including section 551,102(4), Florida Statutes, provides authorization for the holding of slot machine referenda in counties other than Miami-Dade and Broward counties.

Gretna Racing, 178 So.3d at 16. And the First District certified under article V, section 3(b)(4) of the Florida Constitution as a question of great public importance this question:

Whether the Legislature intended that the third clause of section 551.102(4), Florida Statutes, enacted in 2009, authorize expansion of slot machines beyond Miami-Dade and Broward Counties via local referendum in all other eligible Florida counties without additional statutory or constitutional authorization after the effective date of the act?

Id. at 29-30.

III.

On review, Gretna Racing has abandoned its specific argument that section 125.01(1)(y)’s provision for “straw ballots” constituted “authorization” within the meaning of the third clause of section 551.102(4). Instead, Gretna Racing argues that the “statutory or constitutional authorization” required by the third clause was provided under the “expansive scope of a non-chartered county’s constitutional and statutory home rule powers” established by article VIII, section 1(f) of the Florida Constitution and section 125.01, Florida Statutes (2013). The Division points out that this is a “new argument” but does not urge that it is unpreserved and therefore waived. In any event, we conclude that the argument is unavailing and that the failure of this argument is sufficient to resolve this 'case in-favor of the Division.

To explain our decision on this point, we turn first to the text of the constitutional provision and the general statutory provisions relied on by Gretna Racing.

Article VIII, section 1(f) of the Florida Constitution provides:

NON-CHARTER GOVERNMENT. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law ....

Art. VIII, § 1(f), Fla. Const.

As the text specifies, the powers granted to non-charter counties are “such powerfs] of self-government as [are] provided by general or special law.” Id. The general law relied on by Gretna Racing is section 125.01(1), Florida Statutes (2013), which provides broadly that “[t]he legislative and governing body of a county shall have the power to carry on county government.” The statute goes on to provide that the power to carry on county government, “[t]o the extent not inconsistent with general or special law, ... includes, but is not restricted to, the power to” do certain enumerated things. § 126.01(1), Fla. Stat. (2013). Among those enumerated things is the power specified in subsection (1)(y) to conduct a “Straw ballot.” § 125.01(1)(y), Fla. Stat. (2013). But none of the enumerated powers relate to slot machine gaming. Nor is a general power to conduct binding referenda among the enumerated powers.

Of course, the absence of a relevant enumerated power is not dispositive. In addition to- the provision in' section 125.01(1) that the “power?to carry on county government ... is not restricted to” the enumerated subjects, section 125.01(3)(a) provides that the enumeration of powers will “not be deemed exclusive or restrictive, but shall be deemed to incorporate all implied powers necessary or incident to carrying out such powers enumerated, including, specifically, authority to employ personnel, expend funds, enter into contractual obligations, and purchase or lease and sell or exchange real or personal property.” Further, section 125.01(3)(b) contains a rule of liberal construction: “The provisions of this section shall be liberally construed in order to effectively carry out the purpose of this section and to secure for the counties the broad exercise of home rule- powers authorized by the State Constitution.” Which brings us back to the constitutional specification of “such power of self-government as is provided by general or special law,” art. VIII, § 1(f), Fla. Const., and the general law provision of the “power to carry on county government” in a way that is “not inconsistent with general or special law,” § 125.01(1), Fla. Stat. (2013).

Based on the analysis we employ to resolve this case, we reframe the certified question as follows:

Is a referendum conducted. by a non-charter county concerning approval of slot machine licenses at pari-mutuel facilities authorized by the general powers conferred on non-charter counties by article VIII, section 1(f) of the Florida Constitution and section 125.01(1), Florida Statutes (2013)?

An affirmative answer to this question could only be given if we conclude that conducting such a referendum regarding the issuance of slot machine licenses by the Division is inherent in the “power to conduct county government.”

IV.

In support of its position on this point, Gretna Racing relies on two decisions upholding the authority of a county to conduct a referendum—Speer v. Olson, 367 So.2d 207 (Fla. 1978), which approved the issuance of bonds authorized by a referendum for the expansion of sewer and water systems, and Watt v. Firestone, 491 So.2d 592 (Fla. 1st DCA 1986), which rejected a challenge to a ballot initiative for a constitutional amendment authorizing casino gambling in certain areas if approved in an initiative referendum by county voters. An examination of these cases shows that they do not support Gretna Racing’s argument. In both cases, the authorization to conduct a referendum did not stem from the general home rule power conferred by section 125.01(1). Instead, the authority to conduct the referendum in each of the two cases was based on specific constitutional or statutory authority to act on a subject that required approval by referendum. Here, in contrast, there is no specific constitutional or statutory authority for Gadsden County to act on the subject of slot machine gaming.

In Speer, Pasco County had “enacted an ordinance creating a Municipal Service Taxing Unit ... composed of the entire unincorporated area of the county.” Speer, 367 So.2d at 208. The county had “called a special election by the residents of the Unit for the purpose of securing their approval for the issuance of ... general obligation bonds by the Unit.” Id. The purpose of the issuance of the bonds was “for the expansion of sewer and water systems.” Id. In rejecting the claim that the referendum was unauthorized, we referred to the enumerated power provided in section 125.01(1)(k), Florida Statutes, to “[pjrovide and regulate waste and sewage collection and disposal, water supply, and conservation programs.” Speer, 367 So.2d at 208-09. We also referred to the power in section 125.01(1)(q) to create municipal service taxing units for various purposes including “water” and “waste and sewage collection and disposal,” which includes “the authorization for all counties to levy additional taxes, within the limits fixed for municipal purposes, within such municipal service taxing units under the authority of the second sentence of Article VII, Section 9(b) of the State Constitution.” Speer, 367 So.2d at 209. Finally, we pointed to article VII, section 12(a) of the Florida Constitution, which provides that local government entities

with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad valorem taxation and maturing more than twelve months after issuance only: (a) to finance or refinance capital projects authorized -by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation.

Speer, 367 So.2d at 211-12 (emphasis added) (quoting art. VII, §. 12(a), Fla. Const.).

We noted the following:

There is no statute, general or special, which either specifically authorizes or restricts Pasco County with respect to the issuance of general obligation bonds to acquire sewage and water systems and to pledge for their payment the net revenues to be derived from the. operation of such facilities and ad valorem taxes levied within the area of the Unit.

Id. at 211. We concluded that “[t]he first sentence of Section 125.01(1), Florida Statutes (1975), therefore, empowers the coun,ty board to proceed under its home, rule power to accomplish this purpose,” and that “[tjhis was done by the enactment of the ordinance and the adoption of the bond resolution after the bond election.” Id. We thus recognized that the issuance of general obligation bonds to finance capital expenditures for purposes specifically authorized under section 125.01(1) was part and parcel of the “power to carry on county government.” This point is, of course, reinforced by the recognition in article VII, section 12(a) of the Florida Constitution of the power of local governments to issue bonds pledging ad valorem taxes “for capital projects authorized by law.”

And we went on to hold—on the point of particular relevance here—that the provision of article VII, section 12(a) regarding elections to approve bonds was “implemented” by the'provision of the ordinance establishing the municipal services taxing unit,

which requires that the issuance of bonds for which the full faith and credit of the Unit shall have been pledged as additional security, shall be approved at an election of the qualified electors residing in the Unit, such election to be called, noticed and’ conducted in the manner provided in the Florida Constitution and statutes for elections.

Speer, 367 So.2d at 212. We reasoned as follows:

Since the bonds proposed to be issued by the county pledge both net revenues to be derived from- the operation of the combined water and sewer system and ad valorem taxes to be levied and collected in the area of, the Unit, it was necessary to hold a bond election, as part of the authorization for their issuance.

Id. (emphasis added). The authority to conduct the referendum on the issuance of the bonds was therefore directly based on article VII, section 12(a)—and not on a broad home rule authority to conduct a referendum on any subject.

Watt addressed removal from the ballot of a proposed constitutional amendment providing for casino gambling if approved by initiative referendum of county voters. Removal was sought on the ground that the proposed amendment violated due process because of “the alleged lack of authority, by statute or ordinance, for many of Florida’s counties to conduct initiative re-ferenda.” Watt, 491 So.2d at 593. The challengers thus contended that “many Floridians .would be unable to implement casino gambling in their own counties because an initiative referendum on the subject could not be held.” Id.

The First District in Watt rejected this argument, reasoning as follows:

Charter counties have the authority to conduct such referenda under Article VIII, section 1(g) of the Florida Constitution and non-charter counties have similar power under Article VIII, section 1(f) of the state constitution and section 125.01 of the Florida Statutes. Even if some counties do not have currently valid ordinances to spell out the specifics of holding a referendum, we hardly find this to be grounds for invalidating a proposed constitutional amendment. If the proposal is approved and the governing body of a county fails to provide for referenda, an aggrieved citizen could seek redress in the courts.

Id.

We reject the suggestion that Watt supports a broad home rule authority to conduct binding referenda on any and every subject. Watt’s discussion of the legal powers of counties cannot be divorced from the authorization of initiative referenda in the proposed constitutional amendment. Watt simply holds that if a constitutional provision authorizes initiative referenda in certain counties then those counties will— under the general authority to exercise the power of self-government—have the power to establish the mechanism necessary to implement the constitutional provision. As in Speer, the authority to conduct a binding referendum was predicated on a constitutional provision empowering counties to conduct referenda on a particular' subject.

Here, no relevant analogous constitutional authority exists regarding the subject of slot machine, gaming. As the Division points out, in Florida gambling is generally illegal. Section 849.08, Florida Statutes (2013), provides that “game[s] of chance” are illegal. But certain forms of gambling are legal. See, e.g., ch. 550, Fla. Stat. (2013) (the “Florida Pari-mutuel Wagering Act”). And although slot machines and slot machine gaming are specifically outlawed under section 849.15(1), Florida Statutes (2013), in sweeping terms, slot machine gaming is permitted under tight restrictions as laid out by the Legislature in- chapter 551. Nothing in chapter 551, however, grants any authority to regulate slot machine gaming to- any county. The only role that counties play regarding slot machine gaming is conducting referenda when authorized by law.

Under the third clause of section 551.102(4), there must be “statutory or constitutional authorization” for any countywide referendum approving slot machines at qualifying pari-mutuel facilities. The 'third clause requires such a “statutory or constitutional authorization” but does not itself create the authorization. The authorization must be found elsewhere in the law. And it is nowhere to be found. It cannot be derived from the power of counties to' “carry on county government,” since slot-machine gaming is not the business of county government unless a constitutional or statutory provision has specifically made it the business of county government to conduct a referendum on the subject. In the absence of such a specific authorization, a county cannot initiate a referendum that will authorize the Division to issue a license any more than the county could itself issue a slot machine gaming license.

y.

The general power of non-charter counties to “carry on county government” does not constitute authorization to conduct a referendum to approve slot machine gaming. The referendum conducted by Gadsden County regarding slot machine gaming therefore was not conducted pursuant to a “statutory or constitutional authorization” as required by section 551.102(4). Because the.referendum was invalid, Gret-na Racing was not an “eligible facility” under the statute. The First District thus was correct in upholding the Division’s decision to deny the license sought by Gretna Racing. So we approve the result reached by the First District and answer the rephrased certified question in the negative.

It is so ordered.

LABARGA, C.J., and PARIENTE, POLSTON, and LAWSON, JJ., concur.

LEWIS, J., concurs in result with an • opinion.

QUINCE, J., recused.

LEWIS, J.,

concurring in result.

Although I concur in the result reached by the majority, I write separately to explain in more simple and direct term's the reason why Gretna is, not entitled to a license to conduct slot machine gambling. There can be no doubt that the legislative amendments and in futuro provisions have added to the confusion in this area of the law.

Aside from an amendment to the Florida Constitution that authorizes slot machine gambling in certain counties if a referendum approving slot machines is held in those counties, see art. X, § 23, Fla. Const. (2004), and certain implementing statutes in chapter 551 of the Florida Statutes, slot machine gambling is generally banned and criminalized by chapter 849 of the Florida Statutes. See § 849.08, Fla. Stat. (2013) (‘Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”); § 849.15(1), Fla. Stat. (2013) (“It is unlawful: (a) to manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport, or expose for sale or lease, or to offer to sell, rent, lease, let on shares, lend or give away, or permit the operation of, or for any person to permit to be placed, maintained, or used or kept in any room, space, or building owned, leased or occupied by the person or under the person’s management or control, any slot machine or device or any part thereof.”); see also §§ 849.16, .17-.21, Fla. Stat. (2013) (defining slot machines, providing .a rebuttable presumption that such a machine is “a prohibited slot machine,” providing for confiscation of slot machines by an arresting officer, providing for destruction of slot machines upon conviction, providing for no property rights in a confiscated machine, declaring slot machines and slot machine locations a nuisance, and providing a cause of action for an injunction against such a nuisance); but see § 849.235, Fla. Stat. (2013) (providing a statutory defense for antique slot machines not used for gambling).

Thus, in light of that framework, the salient issue in this case is whether any other statutory or constitutional provision authorizes counties to supersede this general ban bn slot machines by holding a referendum. Gretna has asserted that expansion of the definition of “eligible facility” in chapter 551 provides such an authorization. Specifically, “eligible facilities” now also include in pertinent part “any licensed pari-mutuel facility in any other county in which a majority of voters have approved slot machines at such facilities in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section in the respective county.” § 551.102(4), Fla. Stat. (2013). However, by its own plain language, this expanded definition is not self-executing as it requires a “statutory or constitutional authorization.” While it appears the Legislature has taken a highly unusual path in providing an expanded definition of eligible facility that will not currently apply to any existing factual predicate but rather will apply and enable a future factual circumstance, that appears to be exactly what the Legislature has done here. Because slot machines are generally prohibited, Gadsden County does not have and cannot assert home rule powers as a basis to support a referendum on slot machine gambling. In Florida, non-charter counties, such as Gadsden County, “shall have such power as is provided by general or special law” and “may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law.” Art. VIII, § 1(f), Fla. Const. (emphasis added); see also § 125.01(1), Fla. Stat. (2013) (“(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power includes, but is not restricted to, the power to: .... ” (emphasis added)). Thus, Gret-na’s reliance on Watt v. Firestone, 491 So.2d 592 (Fla. 1st DCA 1986), for the proposition that Gadsden County’s non-charter home rule powers includes that power and authorizes it to conduct a referendum approving slot machines over general law is misplaced.

For those reasons, I concur in the result.

      . Although the second and third clauses were adopted in 2009, their effective dates were expressly made contingent on, among other things, the ratification of a Gaming Compact between the Seminole Tribe of Florida and the State of Florida. See ch. 2009-170, § 26, Laws of Fla. The Gaming Compact was subsequently ratified during the 2010 legislative session, and the second and third clauses were then made effective as of July 1, 2010. See ch. 2010-29, §§ 4-5, Laws of Fla.

      . That "second sentence” of article VII, section 9(b) of the Florida Constitution provides as follows: “A county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes.”