author: PER CURIAM. PARIENTE, J., LAWSON, J.,

text:
    Michael Shane BARGO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC14-125
    Supreme Court of Florida.
    [June 29, 2017]

      Valarie Linnen, Atlantic Beach, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee,' Florida; and Vivian' Singleton, Assistant Attorney General, ’ Daytona Beach, Florida, for Appellee
   PER CURIAM.

Michael Shane Bargo, Jr., appeals his first-degree murder conviction and sentence of death for the killing of Seath Jackson. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Bargo’s conviction but vacate the death sentence • and remand for a’ new penalty phase based on the United States Supreme Court’s opinion in Hurst v. Florida (Hurst v. Florida), — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court’s opinion on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017).

BACKGROUND

The evidence presented at trial established that on the night of April 17, 2011, Bargo and codefendants Amber Wright, Kyle Hooper, Charlie Ely, and Justin Soto murdered the victim. Bargo planned the murder and directed his codefendants throughout the commission of the murder. At the time of the crime, Bargo was eighteen years old and the victim was fifteen years old.

Wright and the victim began dating in December 2010, but broke up bitterly in March 2011. Wright became romantically involved with Bargo around the time of her breakup with the victim. According to-William Samalot, the victim’s friend, Bargo wrongly believed that the victim had abused Wright. Nevertheless, Wright and the victim continued to send text messages to one another after their breakup.

Two or three weeks before the murder, Bargo and the victim threatened one another at Wright’s home. Only one week before the murder, Bargo went to the victim’s home and argued with him. During that argument, the victim’s mother heard Bargo tell her son, “I have a bullet with your name on it.”

Hooper, Wright’s half-brother, was initially friends with the victim. However, their friendship deteriorated after Wright and the victim, broke up. Their friendship further- deteriorated when Hooper discovered the victim in bed with a girl in whom Hooper was romantically interested, Hooper admitted that, one week before the murder, he sent a text message to the girl stating that he was going to kill the victim.

In the weeks preceding the murder, Ely allowed some of her friends to move into her two-bedroom home in Summerfield, Florida. Bargo, one such friend, owned and kept a .22 caliber Heritage revolver inside Ely’s home. Bargo was known to fire his revolver on Ely’s property. Approximately two weeks before the murder, Bargo and Hooper contacted Samalot and the victim to- challenge them to a fight at Ely’s home. However, when Samalot and the victim approached Ely’s home, they heard a gunshot and left the area. Hooper testified that Bargo shot his revolver at Samalot and the victim “to scare them a little bit off.” Approximately one week before the murder, two of the home’s occupants moved out after Bargo threatened one of them with his revolver, during an argument. At the time of the murder, Bargo, Hooper, Soto, and Ely were living at Ely’s home, where Wright would sometimes stay overnight.

Hooper testified that on April 17, 2011, the day of the murder, he and Bargo “had a conversation about killing [the victim].” Bargo “wanted to make a plan tó' do it,” and he went to Hooper “because [Hooper] had issues with [the victim] also.” That afternoon, Bargo asked Wright to go get the victim and bring him to Ely’s home. She agreed. The plan was that Wright would walk with the victim and lure him to Ely’s home. Then Bargo, Hooper, and Soto would attack when the victim came inside Ely’s home. First, Soto would hit the victim with a wooden object; next, Bargo and Hooper would jump the victim from behind; and finally, Bargo would shoot the victim.

Later that evening, Samalot and the victim visited some neighborhood friends. Samalot noticed that the victim was exchanging text messages with Wright. In those text messages, Wright implemented Bargo’s plan. Wright told the victim she wanted to “work things out” with him, asked him to meet her and Ely, and told him not to tell anyone about their meeting. The victim, apparently suspicious this could be a trap, warned Wright in his reply text: “Amber if you have me jump[ed] I will never give you the time of day so if I g[e]t jump[ed] say good[bye] al[right].” She responded that “I could never do that to y[o]u” and “I just want me and y[o]u back.” Later, the victim received a phone call from Wright, and Sam-alot advised the victim not to talk with her. At approximately 9 p.m., Samalot and the victim left a friend’s home. They parted ways at approximately 9:15 p.m. Samalot went home, but the victim walked in the direction of Ely’s home.

A short time later, Wright and Ely met the victim and the three walked to Ely’s home. After the victim entered the home, he sat down in a chair in the living room. Because Soto did not initiate the attack as planned, Hooper grabbed a wooden object and ran into the living room where he delivered a blow to the victim’s head. Meanwhile, Wright and Ely ran into Ely’s room. Then Bargo, following close behind Hooper with his revolver in hand, began firing at the victim and shot him. The victim fled towards the kitchen and ran out the front door of the home. Soto followed and tackled the victim in the front yard, where Bargo shot the victim again. Bargo and Soto, also beat the victim. At Bargo’s direction, Hooper joined them and the three of them carried the victim back into the home and put him in the bathtub.

Bargo’s plan was to keep the victim alive after the initial assault so that Bargo could kill him and the victim would know his killer before he died. To that end, Bargo stayed in the bathroom with the victim and hit him, cursed at him, and fired more bullets into him. |5argo ultimately killed the victim by shooting him in the face. Thereafter, Bargo and Soto carried the victim’s body in a sleeping bag to Ely’s fire pit and placed it into a large fire. Bargo and Wright later went to bed, and Hooper tended the fire until about 2:30 a.m.

On the morning of April 18, 2011, James Havens—Wright’s and Hooper’s “step-dad”—arrived at Ely’s home and helped dispose of the victim’s remains. Hooper had previously helped Wright and Ely clean up the blood in the home with bleach. The remains from the fire pit had been stored in three paint buckets with lids, which Bargo and Soto put in the back of Havens’ truck along with cinder blocks and cable. Havens drove Bargo and Soto— at Bargo’s direction—to a remote water-filled rock quarry in Ocala, Florida, where they dumped the cinder block laden buckets.

Later that afternoon, after returning from the quarry, Havens and Bargo drove to pick up Hooper from work. Along the way, Havens received a phone call from Wright’s and Hooper’s mother. She informed him that the police were in the neighborhood investigating the victim’s disappearance. After Havens and Bargo picked up Hooper from work, Bargo informed Hooper about the police investigation. Bargo borrowed some money from Hooper so that he could leave town.

That same day, Havens drove Bargo to Ocala so that Bargo could see Kristen Williams, an out-of-town girlfriend. Bargo told Kristen that he and some friends had been in a fight with a kid, Bargo shot him, and they “t[ook] him apart- and burn[ed] him and then took him to the rock quarry” near her home. Next, Havens drove Bargo to Starke, Florida, where Kristen’s father lived. During his stay at the Williamses, Bargo told James Williams, Jr., Kristen’s brother, that he had shot a boy eight times with a .22 caliber pistol and killed him, Bargo also told him that they busted his kneecaps in the bathtub, placed him in'a sleeping bag, burned him, put his remains in paint buckets, and took the paint buckets to a rock quarry. Bargo told Crystal Anderson, James Williams, Sr.’s girlfriend, that he killed a guy who raped his little sister, Bargo described beating him, chasing him outside, shooting him outside, placing him in a bathtub, beating him some more, and shooting him twice in the face, which killed him. Bargo also told her that the body was put in a sleeping bag and then burned. However, because the body did not burn completely, Bargo used pliers to pull the remaining teeth out of the skull one by one. Bargo told James Williams, Sr., that he shot and killed someone who raped his sister. Bargo also told Joshua Padgett, a neighbor of the Williamses, that he shot a guy, dragged him into , a home, shot him again, burned him, .and carried him into the woods. Law enforcement arrived at the Williamses’ home on April 19, 2011, and took'Bargo into custody. Before being taken into custody, Bargo destroyed his cell phone.

Shortly after his arrest, while in a holding cell, Bargo told a fellow inmate that he killed a kid who raped his girlfriend. Bargo described shooting him in a chair, placing him in a bathtub, shooting him in the bathtub when he awoke to make sure he was' completely dead, and accidentally burning his own face while trying to burn the body. In addition, David Smith, a retired corrections officer, overheard Bargo tell another inmate that “[tjhere were only two witnesses that saw me shoot him.”

During the course of their investigation, law enforcement obtained and executed search'-warrants for Bargo’s room in his grandmother’s home,. Ely’s home; and the Ocala quarry. In Bargo’s room in his grandmother’s home, law enforcement found a Heritage gun box and a spent .22 caliber cartridge.. In Ely’s home, law enforcement found a loaded .22 caliber Heritage revolver and two boxes of live ammunition hidden inside a floor vent. Law enforcement found .22 caliber casings and live ammunition in several rooms of the home. In • Ely’s yard, law enforcement found dried paint on the ground, a rake with dried paint on the tines, drag marks, a, pressure washer, and a fire pit that contained possible human remains. Finally, in the Ocala quarry, law enforcement found a. five-gallon bucket with- a plastic bag floating in the water. A dive team found two more such buckets attached to cinder blocks underwater.

Dr. Robert Beaver, an expert in DNA typing and kinship analysis, testified regarding the analysis of the human remains recovered by law enforcement and found they were 63,000 times more likely to be from a biological child of the victim’s parents than a randomly chosen Caucasian individual from the United States population. Dr. Michael Warren, an expert in forensic anthropology and human identification, examined the rémains from the fire pit and found human bones from various parts of a body that were most likely from a male aged fourteen to eighteen. Having also examined the remains from the quarry, during which he found a projectile in a ‘large mass of burned. tissue and bone,” Dr. Warren concluded that they were from the same individual as the remains found in the fire pit. Ronald Lai, a forensic DNA analyst, compared the partial DNA profile from the- liver of the victim to known samples from the victim’s parents and opined that “the liver could not be excluded from coming from a child of Sonia Jackson and Scott Jackson.” Nicole Lee, a Florida Department of Law Enforcement (FDLE) crime laboratory analyst, also testified that DNA analysis of a mass of burned tissue from the fire pit at Ely’s home was consistent with being a biological child of the victim’s parents.

Crime scene investigators found blood evidence on the bathroom floor,- kitchen floor, living room floor, bathroom wall, and kitchen ceiling of Ely’s home. Lee testified that she ivas unable to obtain any DNA evidence from the blood found on the bathroom floor or the kitchen floor, but found Ely’s DNA in a mixture in the blood found on the bathroom wall, Hooper and the victim’s DNA in a mixture in the blood found on the living room floor, and Bargo’s DNA in the blood found on the kitchen ceiling.

Maria Pagan, an FDLE expert in firearms examination and identification, testified that the projectile found in the human tissue was a ,22 caliber bullet. Pagan compared a bullet she fired from Bargo’s .22 caliber Heritage revolver with the projectile from the victim’s tissue and found that they both had the,same.class characteristics—six grooves with a right twist and correct dimensions—as Bargo’s revolver. Pagan was unable to determine whether the projectile from the victim’s tissue was fired from Bargo’s revolver due, in part, to the condition of the projectile. Ultimately, Pagan concluded that Bargo’s revolver could not be excluded as being the murder weapon.

Dr. Kyle Shaw, the medical examiner, testified that he observed a pattern of bright dots consistent with a projectile or bullet impact in an X-ray of a skull fragment found among the victim’s remains. Dr. Shaw found this evidence was in turn consistent with a gunshot wound to the head or face. From the totality of the evidence examined and information obtained, Dr. Shaw concluded the cause of death “was [a] gunshot wound or wounds and blunt force trauma and ... the manner of death [was] homicidé.”

Bargo testified at trial in the form of a narrative. Bargo denied participating in the murder, but he admitted his involvement in disposing of the victim’s remains. According to Bargo, he argued with Hooper on the evening of the murder and accused Hooper of stealing his revolver. In the resulting fight against Hooper, and Soto, Bargo claimed to be the loser and said they broke his nose, blackened his eyes, and busted his lip. Bargo claimed that he showered, drank some beer, searched for his revolver, and left to visit a girlfriend.

Bargo testified that he began walking to his girlfriend’s home about 9 p.m. the night of the murder, moving slowly because of a recent injury to his knee. Bargo stated that after more than two hours of walking, including stopping to roll and smoke two joints and vomit, he gave up reaching his destination. He claimed that he called his father, who purportedly picked him up and took him, back to Ely’s home. Bargo testified that he found Ely scrubbing the floor with bleach and Wright drinking and crying. Bargo claimed that he went to his room and encountered Soto who said he had Bargo’s revolver, but would not return it until Bargo talked to Hooper. Bargo claimed that Hooper told, him that he shot and killed the victim with Bargo’s .22 caliber revolver. According to Bargo, Hooper threatened to blame the murder on Bargo when Bargo suggested that they should call the police.

The jury found Bargo guilty of first-degree murder with a firearm. During the penalty phase, neighbors, friends, and family testified- in support of Bargo, and three expert witnesses testified regarding Bar-go’s mental health. The jury recommended that Bargo be sentenced to death by a vote of ten to two.

After the Spencer hearing, the trial court sentenced Bargo to death. In imposing the death sentence, the trial court concluded that the two aggravating factors greatly outweighed the two statutory miti-gators and fifty nonstatutory mitigators.

ANALYSIS

On appeal, Bargo raises seven issues: (1) trial counsel provided ineffective assistance that deprived Bargo of a fair trial; (2) the evidence is not sufficient to convict Bargo of first-degree murder; (3) the trial court erred by denying Bargo’s motion for the appointment of a crime scene expert; (4) Florida’s death penalty statute is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (5) the trial court abused its discretion by excluding evidence of threats made t»y the victim proffered by Bargo during the penalty phase; (6) Bargo’s death sentence is disproportionate; and (7) Florida’s death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

I. Ineffective Assistance of Counsel

In the first issue raised in this appeal, Bargo raises four claims of ineffective assistance of counsel. We decline to address these claims on direct appeal because ineffective assistance of counsel does not appear on the face of the record. See Gore v. State, 784 So.2d 418, 437-38 (Fla. 2001) (“A claim of ineffective assistance of counsel may be raised on direct appeal only where the ineffectiveness is apparent on the face of the record.”). Bargo is free to raise them in an appropriate postconviction motion.

II. Sufficiency of the Evidence

Bargo claims that the evidence presented at trial does not support his first-degree murder conviction. “In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Bradley v. State, 787 So.2d 732, 738 (Fla. 2001).

We find that sufficient evidence exists to support Bargo’s first-degree murder conviction. Hooper testified at trial that, on the day of the murder, Bargo spoke with him about murdering the victim and directed Wright to bring the victim to Ely’s home. Hooper further testified that he saw Bargo shoot and beat the victim at Ely’s home. Havens testified that he overheard Bargo and the codefendants discuss killing someone the evening before the murder. Havens also testified that Bargo called him the night of the murder and said, “The deed is done.” On the night of the murder, a neighbor saw two or three males chase and beat a kid with their fists in Ely’s yard and then carry him inside Ely’s home. The State presented evidence that, hours before the murder occurred, Wright asked Bargo if it was time to start the fire in Ely’s fire pit yet and Bargo responded “no.” The State also presented evidence that the fire was started before the victim actually arrived at Ely’s home and that the victim’s remains were burned in the fire. Bargo confessed the murder to an out-of-town girlfriend, her brother, her father, her father’s girlfriend, and her father’s neighbor. Bargo also confessed the murder to two inmates, and one of those confessions was overheard by a retired corrections officer. Accordingly, competent, substantial evidence exists to support the murder conviction in this case.

III. Crime Scene Expert

Bargo claims that the trial court erred by denying Bargo’s motion for the appointment of a crime scene expert. “This Court reviews the denial of a motion for appointment of experts for an abuse of discretion.” Howell v. State, 109 So.3d 763, 776 (Fla. 2013). “In evaluating whether there was an abuse of discretion, courts have applied a two-part test: (1) whether the defendant made a particularized showing of need; and (2) whether the defendant was prejudiced by the court’s denial of the motion requesting the expert assistance.” Marshall v. Crosby, 911 So.2d 1129, 1133 (Fla. 2005) (quoting San Martin v. State, 705 So.2d 1337, 1347 (Fla. 1997)).

We conclude that the trial court did not abuse its discretion in denying Bargo’s motion for the appointment of a crime scene expert. The record indicates that Bargo’s trial counsel argued at a pretrial hearing that a crime scene expert was needed to answer unspecified anthropological questions, generally assist in preparing a defense, and possibly assist the jury in understanding the complexity of the crime scene and any exculpatory evidence in existence at or around the crime scene. However, Bargo’s unelaborated and speculative argument made no particularized showing of need.

Regardless, even if we were to assume that defense counsel established a particularized need for a crime scene expert, Bar-go could not demonstrate prejudice. Bargo argues that a crime scene expert would have assisted the defense in locating and testing a .22 caliber rifle depicted in crime scene photographs of Ely’s home to: (1) determine if the .22 caliber bullet found in the victim’s remains could have been fired from the rifle and (2) have the rifle examined for fingerprints. However, even if the bullet found in the victim’s remains could have been fired from the .22 caliber rifle, prejudice could not be demonstrated. Bar-go confessed to shooting and killing the victim on numerous occasions. On at least one such occasion, Bargo confessed that he shot and killed a boy with a .22 caliber pistol. Hooper testified at trial that Bargo shot the victim with his .22 caliber revolver, and the State presented expert testimony at trial that Bargo’s revolver could not be excluded as being the murder weapon. Accordingly, the evidence precludes any showing of prejudice by Bargo.

IV. Ring and Hurst

While Bargo’s appeal was pending before this Court, the United States Supreme Court issued its decision in Hurst v. Florida in which it held that Florida’s former capital sentencing scheme violated the Sixth-Amendment because it “required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty” even though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Hurst v. Florida, 136 S.Ct. at 619. On remand in Hurst we held that

before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.

Hurst, 202 So.3d at 57.

In light of the nonunanimous jury recommendation to impose the death sentence, it cannot be said that the failure of the jury to make the required determination was harmless. See Franklin v. State, 209 So.3d 1241, 1248 (Fla. 2016) (“In light of the non-unanimous jury recommendation to impose a death sentence, we reject the State’s contention that any Ring- or Hurst v. Florida-related, error is. harmless.”), petition for cert. filed, No. 16-1170 (U.S. March 23, 2017). We therefore reverse Bargo’s death sentence and remand for a new penalty phase. Because we remand for a new penalty phase under Hurst, we decline to address Bargo’s other penalty phase claims and need not address the proportionality of his death sentence.

CONCLUSION

For the reasons stated above, we affirm Bargo’s conviction, vacate his sentence of death, and remand for a new penalty phase.

It is so ordered.

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

PARIENTE, J„ concurs with an opinion,

LAWSON, J., concurs specially with an opinion.

CANADY and POLSTON, JJ., concur as to the conviction but- dissent as to the sentence.

PARIENTE, J.,

concurring.

I concur -in the reversal for a new penalty phase in light of Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017), based on the lack of a jury’s unanimous recommendation for death. Although the per curiam opinion does not address proportionality because we are reversing for a new penalty phase, I have serious concerns in this case about whether the death sentence is proportionate for this eighteen-year-old with significant mental health mitigation.

The defendant was eighteen years old at the time of the crime,‘ and the trial court found two statutory mitigators (age and under the influence of extreme emotional distress) and numerous nonstatutory miti-gators—including that defendant suffers from frontal lobe brain cjamage, bipolar disorder, schizoaffective disorder, complex partial seizure disorder, hallucinations, and diminished control over inhibitions, was abandoned by his father, grew up in a disadvantaged and abusive home, has a severe substance abuse problem which aggravated a neurological disorder, along with the possibility that the defendant was misdiagnosed and treated'for ADHD. The trial court did not ascribe great weight "to any of this mitigation.-However, a'review of the record indicates that Bargo’s mental health mitigation reaches far back into his childhood, rather than emanating from evaluations occurring after the murder occurred.

By the age of fourteen or fifteen, Bargo was self-harming. Dr. Berland testified that records “indicated ... a couple times where , [the defendant] had suicidal ideation, which is typical of someone who has a partial complex seizure disorder.” Further, when the defendant was in ninth grade and a subject of the Michigan Juvenile Justice System, a psychologist suggested that the defendant be sent to a mental institution. Rather than being institutionalized, Bargo was sent to boot camp for six months, during which he also attended counseling.

In March 2009, approximately two years before the crime in this case, Bargo was diagnosed with bipolar disorder diagnosis rapid cycling. Although not taking medication at the time of the crime, Bargo had been prescribed several strong medications in the past.

On this record, I am unable to conclude that the sentence should be reduced to life based on proportionality. However, our case law indicates that reliable, uncontro-verted evidence of mental health mitigation coupled with age indicates that a sentence of death may be disproportionate, even in light of substantial aggravation. See, e.g., Crook v. State, 908 So.2d 350, 352, 358 (Fla. 2005). Likewise, upon retrial, depending on the jury findings and verdict, the facts of this case may compel the conclusion that a sentence of death for this eighteen-year-old defendant with substantial mitigation is disproportionate,

LAWSON, J.,

concurring specially.

See Okafor v. State, 42 Fla. L. Weekly S639, S641, - So.3d -, -, 2017 WL 2481266, at *6, (Fla. June 8, 2017) (Lawson, J„ concurring specially).

      . Wright, Hooper, Ely, and Soto Were tried separately from Bargo, and each was convicted of first-degree murder. Wright v. State, 161 So.3d 442, 444, 445 n.2 (Fla. 5th DCA 2014). The Fifth District reversed Wright’s first-degree murder conviction and remanded for a new trial, affirmed Hooper’s first-degree murder conviction and remanded for resentenc-ing, and affirmed Ely’s first-degree murder conviction and life sentence. Id. at 445, 445 n.2. Soto did not appeal his first-degree murder conviction. Id. at 445 n.2.

      . Steven Montanez, a neighbor that lived two homes down and across the street from Ely’s home, saw two or three males chase and beat a kid with their fists in Ely’s yard and then carry him inside Ely’s home at approximately 9:30 p.m. on the day of the murder. Although Montanez testified that he did not hear a gunshot, he heard “doors and stuff” and someone yell, "Get him.”

      . The State presented evidence that, hours before the murder occurred, Wright asked Bargo if it was time to start the fire in Ely’s fire pit and Bargo responded "no.” The State also presented evidence that the fire was started before the victim actually arrived at Ely's home.

      .Havens was present at Ely’s home the previous evening when Bargo and the codefen-dants discussed killing someone. Havens purportedly left Ely’s home because this made him uncomfortable. Later that night he received a call from Bargo who said, "The deed is done.”

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

      . The trial court found that the following two aggravating factors were proven beyond a reasonable doubt: (1) the murder was especially heinous, atrocious, or cruel (HAC)— great weight—and (2) the murder was cold, calculated, and premeditated (CCP)—great weight.

      . The trial court found two statutory miti-gators: (1) the murder was committed while Bargo was under the influence of an extreme mental or emotional disturbance—slight weight—and (2) Bargo was eighteen at the time of the murder'—slight weight. The trial court also found that Bargo established fifty nonstatutoiy mitigators and accorded each slight, little, or moderate weight.

      .Bargo alleges that trial counsel provided ineffective assistance by: (1) failing to refresh Hooper’s recollection and impeach Hooper at the guilt phase with his statement that “[t]he only thing we have left is to blame this all on Mike”; (2) arguing to the guilt phase jury that Bargo was "guilty, guilty as hell” of second-degree murder; (3) urging Bargo during allo-cution at the Spencer hearing that he should tell the trial court whether he wanted "[Regular or extra crispy”; and (4) failing to argue at the guilt phase that the projectile found in the victim’s remains did not match the bullets recovered from Bargo’s revolver.

      . If the Court were to conclude that the death sentence was disproportionate based on the record, as we did in Wood v. State, 209 So.3d 1217 (Fla. 2017), it would then be bur obligation to reduce the death sentence to life rather than remand for a new penalty phase.


source: Caselaw Access Project

author: PER CURIAM. LAWSON, J., CANADY, J.,

license: Public Domain

text:
    Robert Earl PETERSON, Appellant, v. STATE of Florida, Appellee. Robert Earl Peterson, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC16-289
    No. SC16-1279
    Supreme Court of Florida.
    [July 6, 2017]

      Frank Tassone and Casey Woplsey of Tassone & Dreicer, LLC, Jacksonville, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney General, Tallahassee, Florida, for Appel-lee/Respondent
   PER CURIAM.

Robert Earl 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. For the reasons explained below, we affirm the postconviction court’s order denying postconviction relief as to the guilt phase and also deny Peterson’s separate habeas petition. .However, because Peterson’s jury recommended death by a vote of seven to five and his sentence became final in 2012, see Peterson v. State, 94 So.3d 514, 523 (Fla.), cert. denied, 568 U.S. 1071, 133 S.Ct. 793, 184 L.Ed.2d 586 (2012), Peterson is entitled to a new penalty phase under Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (U.S. May 22, 2017). See Mosley v. State, 209 So.3d 1248, 1283 (Fla. 2016).

FACTS AND PROCEDURAL BACKGROUND

Peterson was convicted of first-degree murder and evidence tampering, and was sentenced to death for the first-degree murder of his 64-year-old stepfather, Roy Andrews, after Peterson’s jury recommended death by a vote of seven to five. Peterson, 94 So.3d at 519, 523. The facts of Peterson’s crime are set forth in this Court’s opinion affirming his conviction and sentences on direct appeal:

Peterson, who was 41 at the time of the crime, had been living at home with his mother and his stepfather. Andrews had been Peterson’s stepfather since Peterson was fifteen. Shortly before the murder, Peterson’s mother, at the urging of Andrews, told Peterson he had to move out. Also at Andrews’ insistence, Peterson’s mother stopped providing Peterson with money. Andrews was beaten and shot twice in Jacksonville, Florida, with his body left in the- Greenlawn Cemetery very close to where Peterson’s ex-girlfriend was buried/
Guilt Phase Evidence
The State first presented evidence to establish that about a month before the murder, Peterson told several people that he was going to kill Andrews. In early' July 2005, Peterson talked to Becky Price, his second cousin, and told her that Andrews had “kicked him out” and told his mother not to give him more money. Peterson informed Price that he was going to kill Andrews. About two weeks later, after his mother refused to give him money again based on Andrews’ direction, Peterson told Price a second time that he was going to kill Andrews. While the statements scared her, Price did not,take him seriously and did' not warn anyone. At the beginning of July, Peterson told his aunt that Andrews called his mother fat and that this made him “want to jump, across 'the table and beat him to death.”
On August 7, 2005, Peterson was staying at a hotel, the Masters Inn, with his girlfriend, Clara Keene. At 6:01 a.m. on August 8, the security cameras at his hotel showed Peterson leaving his room wearing jeans, shoes, a jacket, and a dark hat with a design on it.
At the time of the murder, Andrews was a counselor at a local drug clinic, Jacksonville Metro; Treatment Center, and generally worked from 5:00 a.m. until 2:00 p.m. On August 8, 2005, Andrews arrived at 4:45 a.m. but left early at 9:30 a.m. Between 9 and 10 that morning, two people who worked close to Greenlawn Cemetery heard two loud pops that sounded like gun fire and then saw an older green pick-up truck with faded paint and big tires [N.l] leaving the cemetery very quickly.
[N.l] Peterson’s girlfriend, Keene, had a truck that matched this description. On the night before the murder, she had given Peterson the keys to the truck and left it at the work place of Peterson’s brother, since she and Peterson went to the hotel together in his vehicle. She never saw her truck after that evening.
Andrews’ body was found shortly after his murder. He was lying on the ground in a pool of blood, relatively close to the grave of Peterson’s ex-girlfriend who had died about a year earlier. Near the body, law enforcement found a dark “Bike Week” baseball cap, which matched the hat that Peterson wore when he left the hotel room that morning. Andrews’ truck was nearby, with the keys in the truck, the passenger door opened, and the hood of the truck released but not fully opened. Andrews’ wallet was still in his pocket, and he had a considerable amount of money in his pocket. Andrews had been beaten around the head and shot in the head twice.
Around 10:30 a.m. that same day, Peterson called Keene at the hotel and asked her to let him into their room because he forgot his key. The' video surveillance cameras showed Keene opening the door for Peterson. In the video, Peterson was dressed in different clothes from those he had worn when he left the hotel a few hours earlier: he was wearing a different shirt and not wearing an undershirt, shoes, or his hat. According to Keene, Peterson was upset and told her they needed to go to his mother’s house.
A few days after the murder, the police arrested one of Peterson’s acquaintances, Jimmie Jackson, for driving on a suspended license. While Jackson was in custody, he agreed to call Peterson to ask about the murder. During their initial conversations, Peterson made a number of incriminating statements, implying that he had killed Andrews as he had planned. Jackson set up a meeting with Peterson, agreeing to meet him in a parking lot. Peterson drove up in his vehicle at the designated time and then entered Jackson’s truck, which the police had wired.
During their conversation, Peterson admitted to killing Andrews and provided numerous details about the crime, including that he killed Andrews in broad daylight at 9:45 in the morning. Peterson explained that he killed Andrews because Andrews crossed the line by slapping his mother and calling her names. He then told Jackson that his mother knew about it because he and his mother were close and his mother was “contracting it.” Peterson informed Jackson that even though the police took his red truck, he was not in that vehicle during the crime. He bragged that the vehicle he did use was “crushed and gone” on the same day as the crime. He then described the murder in detail, explaining that he was walking down Emerson Road, as though his truck had broken down, and Andrews picked him up and took him to the cemetery. Peterson described the crime as follows:
PETERSON: No, I busted his ass with brass knuckles. I tried to beat him to death so’s I could take him somewhere else.
[JACKSON]: Oh, oh, oh, oh.
PETERSON: The bitch wouldn’t fucking—I done broke his jaw, knocked all his teeth out, his eye ball hanging out his fucking head, the bitch wouldn’t go out, so I had to go pop pop and haul ass. By that time, I’m covered from head to toe—
[JACKSON]: Blood.
PETERSON: So I hauled ass out way out to the west—
[JACKSON]: Yeah.
PETERSON: Hauled ass out to the fucking—got brain matter, the whole fucking nine yards. I went out to fucking Baldwin, stripped down, took a shower, scrubbed myself with a brush, got dressed, come back, still hit the cameras ....
PETERSON: Set all my clothes, all my clothes, the vehicle I was driving, and the gun, you’ll never find it. I don’t give a fuck who you are. You can be Inspector [Clouseau], you ain’t finding this shit. Drove back, and the man that I was working for says I was there from 9:00 to 11:00 and from 11:00 to 12:00. I eat lunch and from 12:00 to 1:00. I was sitting at my mama’s house when they came and informed us he got killed.
Peterson next discussed his former girlfriend, who was buried in Greenlawn Cemetery, telling Jackson that Andrews “landed on her grave.” Peterson also admitted that he made mistakes regarding some aspects of the plan because during the crime, there was a struggle and Peterson lost his hat and left some fingerprints in the truck. [N.2] He planned to explain this evidence by saying that he left his fingerprints when he was with Andrews the night before and Andrews had a nose bleed.
[N.2] The police were unable to obtain any usable fingerprints from the truck.
Dr. Jesse Giles, the medical examiner, testified that Andrews had a significant number of blunt force injuries spread over his head and neck that were consistent with brass knuckles and that occurred shortly before the time of death. Andrews’ cause of death was two contact gunshot wounds, where the gun was pressed against the victim’s head. One gunshot wound was at Andrews’ left temple. The other wound entered over Andrews’ right ear, and the bone fragments from this wound severed the brain stem, which was fatal.
After the State rested, Peterson testified in his defense, denying that he killed Andrews. Peterson testified that he had visited Bike Week one time, and while there, he bought about four Bike Week hats. According to Peterson, on the day before the murder, he went to his mother’s house to buy lottery tickets for her and saw Andrews sitting in his truck. Andrews had a trickle of blood coming from his nose, so Peterson helped wipe it away. He then left and bought the tickets as he planned to do. When he brought the tickets back to his mother’s house, he noticed the interior light of the truck was on, so he reached into Andrews’ truck and turned off the light, knocking off his hat. He did not reach down to retrieve his hat because he was in a hurry to return to his hotel room with his girlfriend.
Peterson further testified that on the day that Andrews was killed, he got up at 5:30 that morning and wore a jacket because it was very cold in the hotel room. He spent the morning on various errands and went to his mother’s house. Around 9 a.m., Peterson began to work on a siding project near his mother’s house. Shortly after he began, he realized that his phone was missing, so he left to find it. Peterson -explained that the reason he was dressed differently when he arrived at his hotel room late that morning was because he had taken off his hat and left it at his mother’s house, along with his warmer clothes. He also was not wearing shoes because his- shoes got. dirty when he walked through a yard during the siding , project.
In explaining the-incriminating statements that he made to Jackson, Peterson testified that near the time of the murder, he had a drug deal going on with Jackson, where he had “invested” $10,000 so that Jackson could sell the drugs and he could make a $4,000 profit. In an attempt to get his money back, he made up a story that he beat his stepfather so badly that he knocked out his eyeball and all of his teeth—something that was not even accurate as to Andrews’ actual injuries.
In his defense, Peterson also called Joel Sockwell, who testified that he lived near Peterson’s mother’s house. On the day of the murder, Sockwell went to work, but left around 9 a.m. and' saw Peterson in the neighborhood while he was out on the patio. However, Sockwell was not certain about the times.
The jury found Peterson guilty of first-degree murder and tampering with evidence.

Id. at 519-22.

During the penalty phase, the State presented four victim impact statements and relied upon the evidence already presented to establish the aggravating factors. Id. at 522. This Court summarized the evidence presented by Peterson during the penalty phase as follows:

The defense presented numerous witnesses, most of whom lost contact with Peterson in recent years but testified that years ago, Peterson was a good .worker and friend. Many of the witnesses who testified on Peterson’s behalf knew of Peterson’s involvement at the raceway where Peterson raced cars. For example, David Bradshaw testified that he had known Peterson since 1986, when they raced together. According to Bradshaw, during that time, Andrews and Peterson got along well and worked on cars together. However, Bradshaw did not have regular contact with Peterson during the last five years. During this period of time, Peterson was married, but he and his wife eventually divorced. A few witnesses testified, that they speculated that Peterson might have become addicted to drugs after .the divorce, but never actually witnessed Peterson use any illegal substances.
In addition, Peterson presented testimony to' establish that he had not received any disciplinary reports since he was in jail. Peterson also called his aunt, Láveme Rundall, who testified that she likewise had once contemplated whether Peterson was under the influence of drugs when she saw Peterson outside of Andrews’ office at the Jacksonville Metro Treatment Center and did not recognize him because he was so scruffy and skinny. She asserted that Andrews and Peterson had a good relationship until recently, when they argued about money. On cross-examination, she asserted that Peterson obtained his truck and most of his money through his mother and Andrews.
Peterson’s mother, Patricia Andrews, also testified on his behalf, asserting that Peterson and Andrews were, very close and previously were involved in racing together. At the time of the murder, Andrews had been Peterson’s stepfather for about eighteen years. According to Patricia, Peterson supported her significantly since she has chronic obstructive pulmonary disease.'and also provided a tremendous amount of support to Andrews when he was undergoing cancer treatment. They paid him for his help, including paying his child support and his truck insurance in exchange for his assistance. Andrews invited Peterson' to live with them and told Peterson that if he was not working, they would find things for him to do around the house. On cross-examination, she admitted that Andrews recently had changed the arrangement, so that Peterson could not obtain money from one person without telling the other person. They tried to talk to Peterson about obtaining a better job.

Id. at 522-23..

The jury recommended the death penalty by a vote of seven to five for the murder of Andrews.. Id. at 523. Following the jury’s recommendation, the trial court found three aggravating factors: (1) the murder was cold, calculated, and premeditated (CCP); (2) the murder was heinous, atrocious, or cruel (HAC); and (3) the murder was committed for pecuniary gain. Id. Peterson did not offer any statutory mitigation, and none was found. The court found two nonstatutory mitigating circumstances: (1) Peterson had a history of drug abuse, and (2) Peterson had numerous positive qualities. Id, The trial court “sentenced Peterson to death, concluding that ‘[t]he three weighty aggravators, when weighed against the two non-statutory mit-igatoria, which were assigned only at' best slight weight, support a death sentence.’ ” Id.

On direct appeal, Peterson raised eight claims: (1) the trial court erred in- admitting a statement that could imply Peterson committed a prior murder; (2) the trial court erred in permitting the State' to present certain victim impact evidence; (3) the trial court erred in denying the motion to suppress the statements that Peterson made to Jackson; (4) the trial court erred in finding the CCP aggravating factor; (5) the trial court erred in finding that the murder was committed for pecuniary gain; (6) the trial court erred in giving little weight to the evidence pertaining to Peterson’s cocaine’addiction; (7) the death sentence is disproportionate; and (8) this Court should reconsider whether Florida’s deáth penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Peterson, 94 So.3d at 523. We unanimously affirmed Peterson’s convictions, hi at 538, and Peterson’s sentence became' final in 2012. Id. at 514.

On November 13, 2013, Peterson filed an initial motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.851. Peterson’s motion for postcon-viction relief raised the following ' ten claims: (1) Peterson’s due process rights were violated when counsel lost or - dé-stroyed records; (2) ineffective assistance of counsel; (3) Petersbn was denied his constitutional rights arid the effective assistance of counsel under the rules prohibiting Peterson’s lawyers from interviewing jurors; (4) the State improperly withheld material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 (S.Ct. 1194, 10 L.Ed.2d 215 1963); (5) Peterson- was denied his right to effective mental health assistance of a mental health expert as required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (6) Florida’s capital sentencing scheme is unconstitutional because it allows trial court judges unfettered discretion to assign weights to mitigating and aggravating factors without providing a baseline for their discretion; (7) Duval County prosecutor’s discretionary use of the death penalty is arbitrary and thus violates the Eighth Amendment as announced in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); (8) Florida’s use of the death penalty violates the Eighth Amendment’s evolving standards of decency because juries are not required to issue a unanimous death sentence and Florida still adheres to a widely criticized practice of allowing a judge to override a jury’s life verdict; (9) the cumulative prejudice resultant from numerous instances of counsel’s deficient performance resulted in an unfair trial; and (10) Peterson is innocent of first-degree murder.

After a four-part evidentiary hearing on claims 1,2, and 4, the postconviction court denied Peterson’s motion. Peterson appeals the denial of his motion, contending the postconviction court erred by: (1) denying Peterson’s motion to recuse or disqualify the postconviction judge; (2) denying Peterson’s motion to exclude the testimony of the State’s expert, Dr. Alan J. Waldman; (3) denying Peterson’s claim that his due process rights were violated when trial counsel lost or destroyed Peterson’s trial records; (4) determining that trial counsel was not ineffective in the guilt and penalty phases in failing to establish an attorney-client relationship and in failing to investigate and present experts and lay witnesses to demonstrate substantial mitigation; and (5) denying Peterson’s motion to appoint Dr. Morton, violating Peterson’s due process rights. Peterson also argues that Hurst v. Florida (Hurst v. Florida), 136 S.Ct. 616 (2016), applies to his case. Additionally, Peterson raises a claim, without briefing, that the postcon-viction court’s order was erroneous for thirteen other reasons, which we summarily deny. Peterson has also filed a separate petition for habeas corpus.

We affirm the denial of relief as to Peterson’s ineffective assistance of guilt phase counsel claim, but because we conclude that Peterson is entitled to a new penalty phase proceeding under Hurst, we decline to address his other penalty phase claims. Additionally, as we discuss first, we affirm the denial of Peterson’s motion to recuse or disqualify the postconviction judge.

ANALYSIS

Motion to Recuse or Disqualify Trial Judge in Postconviction Proceedings

At the outset, Peterson contends that the postconviction court erred in denying his motion to disqualify the trial judge during the posteonviction proceedings. “A motion to disqualify is governed substantively by section 38.10, Florida Statutes [ (2014) ], and proeedurally by Florida Rule of Judicial Administration 2.330.” Gore v. State, 964 So.2d 1257, 1268 (Fla. 2007). The statute requires that the moving party file an affidavit in good faith “stating fear that he or she mil not receive a fair trial ... on account of the prejudice of the judge” as well as “the facts and the reasons for the belief that any such bias or prejudice exists.” § 38.10, Fla. Stat. (2014). “The judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud. Admin. 2.330(f). A trial judge’s ruling on a motion to disqualify “may be assigned as error and may be reviewed as are other rulings of the trial court.” § 38.10, Fla. Stat. (2014).

Peterson’s motion alleged that the trial judge improperly made comments regarding the efficacy of mitigation coordinators in other cases, including a case where the mitigation coordinator—Sarah Flynn—was the same mitigation coordinator appointed to Peterson’s case during posteonviction proceedings. These comments, Peterson contends, displayed a bias against mitigation coordinators that created a belief that he would not receive a fair posteonviction hearing because the posteonviction court would “not neutrally consider mitigation that is offered through a mitigation coordinator.” Peterson’s motion does not allege that the trial judge made any statements in this case regarding mitigation coordinators, and in fact, the trial judge appointed a mitigation coordinator in Peterson’s posteonviction proceedings below.

We conclude that not only was the motion to disqualify or recuse legally insufficient, but the order denying the motion did not impermissibly exceed the scope of the inquiry by passing on the truth of the facts alleged. As this Court explained in Bundy v. Rudd, 366 So.2d 440 (Fla. 1978), “[w]hen a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.” Id. at 442.

This Court has previously considered whether the denial of a motion to recuse or disqualify a trial judge has exceeded the proper scope of the inquiry by considering whether the order “passed on the truth of the facts alleged and adjudicated the question of his disqualification.” Cave v. State, 660 So.2d 705, 708 (Fla. 1995) (emphasis added). We conclude that the posteonviction judge’s denial of Peterson’s motion to recuse or disqualify in this case did not “pass[] on the truth of the facts alleged and adjudicated the question of his disqualification.” Id Rather, the order denied Peterson’s motion as legally insufficient because the facts alleged—that the post-conviction court had made prior written statements in other cases regarding the use of mitigation specialists—would not “place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983). In short, the order only stated the basis for the legal insufficiency of the motion and went no further.

Accordingly, we deny this claim.

Lost or Destroyed Trial Records

Peterson alleges that his due process rights undér the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated when trial counsel Fletcher “lost or destroyed” Peterson’s trial records. This error, Peterson asserts, prohibited counsel from adequately investigating and pleading claims of ineffectiveness. Intertwined with this claim is Peterson’s contention that a conflict of interest- existed between him and trial counsel Fletcher due to Fletcher’s burdensome caseload and what Peterson describes as a “severely strained attorney-client relationship between Peterson and Fletcher.”

We “review for the circuit court’s denial of this claim [for] abuse of discretion.” Jones v. State, 928 So.2d 1178, 1192 (Fla. 2006) (citing Parker v. State, 904 So.2d 370, 379 (Fla. 2005)). However, “[t]he law is scarce on [the] issue” of whether the loss or destruction of trial counsel’s trial records hindered appellate counsel’s investigation and, therefore, violated the postconviction defendant’s due process rights. Id, We explained in Jones that “the Eleventh Circuit has stated that ‘[w]hen a. defendant asserts prejudice because of the loss of evidence, he must show that the loss impaired his ability to provide a meaningful defense.’” Id. at 1192-93 (quoting United States v. Solomon, 686 F.2d 863, 872 (11th Cir. 1982)). In .denying Peterson’s claim, the postconviction court found as follows;

Fletcher denied destroying any of Defendant’s case files. Fletcher instead testified that, in response to the Defendant’s complaints regarding Fletcher at sentencing and Defendant’s request that someone else hold onto the files, Fletcher packed Defendant’s records in ten or eleven boxes and delivered them to Nolan at the [Regional Collateral Counsel] office. Fletcher specifically recalled loading the boxes “into the back of [his] green [SUV] ” and taking them over to Nolan’s office. Fletcher also vehemently denied commenting on Defendant’s guilt or intentionally providing ineffective assistance of counsel. The Court finds Fletcher’s testimony worthy of belief. See Foster v. State, 929 So.2d 524, 537 (Fla. 2006) (“[T]he trial court has ‘the superior vantage point to see and hear the witnesses and judge their credibility.’ ”). Further, the Court must note, that before Defendant’s case was “closed out,” [Regional' Collateral Counsel] moved the location of its office and had to transport all of their files to the new location.

(Record citations omitted.)

We agree with the postconviction court that Peterson cannot demonstrate that the absence of these eleven trial box records, which Fletcher testified contained “supplemental” files that were mostly duplicative of records that could be reproduced; such as general police records, violated his due process rights. This Court previously considered -whether the loss of “trial counsel’s personal notes of any interviews he had with [his client], [the client’s] relatives, or other witnesses, as well as phone messages and impressions and theories of the case” hindered “collateral counsel’s investigation;” Jones, 928 So.2d at 1193. As this Court explained, “these personal notes and impressions most likely would support the State’s position by identifying specific reasons for trial counsel’s choice not to call certain witnesses or pursue various courses of action.” Id. Unlike in Jones, the files in this case contained “the State’s discovery exhibits, copies of police reports, copies of depositions, DVD discs with interview, phone calls ... probably four boxes full of case law,” and “reproduction of the same things over and over-and over.”

Additionally, “[Peterson’s] counsel does not identify what records were not available, or what particular argument he is prevented from making due to a lack of records.” Asay v. State, 210 So.3d 1, 29 (Fla. 2016), petition for cert. filed, No. 16-9033 (U.S. Apr. 29, 2017) (rejecting similar claim relating to lost trial records); see Griffin v. State, 866 So.2d 1, 21 (Fla. 2003) (holding that defendant who “has not pointed to any errors that occurred during the portions of the proceedings that were not transcribed” is not entitled to habeas relief).

Peterson also does not point to any prejudice arising from the lost or destroyed trial records, presumably because he alleges, relying on United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), that an actual conflict of interest existed between him and trial counsel Fletcher. In Cronic, the United States Supreme Court held that the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate” by requiring defense counsel to put the prosecution’s case to meaningful adversarial testing. Id. at 656-59, 104 S.Ct. 2039. Cronic, thus, “created an exception to the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard for ineffective assistance of counsel and acknowledged. that certain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed.” Stano v. Dugger, 921 F.2d 1125, 1152 (11th Cir. 1991) (en banc).

We have explained that the Cronic standard is reserved for when “the assistance of counsel has been denied entirely or withheld during a critical stage of the proceeding such that the ‘likelihood that the verdict is unreliable is so high that .a case-by-case inquiry is unnecessary.’” Chavez v. State, 12 So.3d 199, 212 (Fla. 2009) (quoting Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)), Peterson has provided little -evidence as to how his - relationship with Fletcher or Fletcher’s burdensome caseload demonstrated the high standard of “per se ineffective assistance” of counsel. Id. at 212-13, 122 S.Ct. 1237. Therefore, we reject Peterson’s attempt to rely on the per se rule from Cronic to avoid establishing prejudice for his claim.

Accordingly, we deny this claim.

Ineffective Assistance of Guilt Phase Counsel

Because Peterson is entitled to a new penalty phase under Hurst, we do not address whether Peterson’s counsel was ineffective in the penalty phase of his trial. To determine whether Peterson is entitled to a new guilt phase, however, we address his claim that guilt phase counsel was deficient in failing to establish an attorney-client relationship and was operating under an actual conflict of interest.

Following the United States Supreme Court’s decision in Strickland, this Court has explained that for ineffective assistance of counsel claims to be successful, two requirements mpst 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.

Schoenwetter v. State, 46 So.3d 535, 546 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986) (citations omitted)).

To establish the - deficiency prong under Strickland, the defendant must prove that counsel’s performance was unreasonable under “prevailing professional norms.” Morris v. State, 931 So.2d 821, 828 (Fla. 2006) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

As to the prejudice prong of Strickland, this Court has explained:

With respect to those claims alleging ineffective assistance of counsel specifically during the penalty phase, penalty-phase prejudice under the Strickland standard is measured by “whether the error of trial counsel undermines this Court’s confidence in the sentence of death when viewed in the context of the penalty phase evidence and the miti-gators and aggravators found by the trial court.” Hurst [v. State, 18 So.3d 975, 1013 (Fla. 2009)]. Under this standard, a defendant is not required “to show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of his penalty proceeding, but rather that he establish ‘a probability sufficient to undermine confidence in [that] outcome.’ ” Porter v. McCollum, 558 U.S. 30, 44, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052).

Wheeler v. State, 124 So.3d 865, 873 (Fla. 2013).

“[T]his Court’s standard of review is two-pronged: (1) this Court must defer to the [trial] court’s findings on factual issues so long as competent, substantial evidence supports them; but (2) must review de novo ultimate conclusions on the deficiency and prejudice prongs.” Everett v. State, 54 So.3d 464, 472 (Fla. 2010) (quoting Reed v. State, 875 So.2d 415, 421-22 (Fla. 2004)). “Thus, under Strickland, both the performance and prejudice prongs are mixed questions of law and fact, with deference to be given only to the lower court’s factual findings.” Eaglin v. State, 176 So.3d 900, 906 (Fla. 2015) (quoting Stephens v. State, 748 So.2d 1028, 1033 (Fla. 1999)).

Peterson contends that his trial counsel was per se ineffective because of an actual conflict of interest and because of counsel’s failure to establish an attorney-client relationship. Peterson, however, presents little argument for his claim that counsel was deficient in establishing an attorney-client, relationship and operated under an actual conflict of interest that adversely affected his representation of Peterson. Peterson’s entire argument on appeal as to this claim is that because counsel Fletcher represented six other capital defendants during the time he represented Peterson, and in one of these cases, the assistant state attorney e-mailed Fletcher more than a year after Peterson was convicted to suggest that Fletcher withdraw in the case because of his busy schedule, Peterson was deprived of his Sixth Amendment right to counsel. Peterson also does not allege with any specificity how Fletcher failed to establish an attorney-client relationship with Peterson except to briefly reference that Fletcher only visited Peterson in jail intermittently. In short, Peterson has not raised before this Court a specific claim of deficiency, and instead relies on “speculative allegations of ineffectiveness.” Miller v. State, 161 So.3d 354, 368 (Fla. 2015). Moreover, we agree with the postconviction court’s analysis of Peterson’s subclaim that Peterson has failed to meet his burden in proving that Fletcher’s workload constituted an actual conflict of interest that deprived Peterson of his constitutional right to counsel. In fact, as already discussed, it appears that Peterson is attempting to “rely on the per se rule from Cronic to avoid establishing prejudice” for his claim. Chavez, 12 So.3d at 213.

Accordingly, we deny this claim.

Hurst Relief

Peterson contends that he is entitled to relief pursuant to the United States Supreme Court’s opinion in Hurst v. Florida, which held that Florida’s capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” 136 S.Ct. at 619. On remand, this Court held that a unanimous jury recommendation for death is required before the trial court may impose a sentence of death. Hurst, 202 So.3d at 54. Moreover, this Court held that “in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.” Id. We also determined that Hurst error is capable of harmless error review. Id at 67.

Hurst applies retroactively to defendants whose sentences became final after the United States Supreme Court issued its decision in Ring. Mosley, 209 So.3d at 1283. Thus, Hurst applies retroactively to this case, which became final in 2012.

Accordingly, we must determine whether the Hurst error during Peterson’s penalty phase proceeding was harmless beyond a reasonable doubt. “[I]n the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence.” Hurst, 202 So.3d at 68. As applied to the right to a jury trial with regard to the facts necessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that each aggravating factor was proven beyond a reasonable doubt, that the aggravating factors were sufficient to impose death, and that the aggravating factors outweighed the mitigating circumstances.

We conclude that the State cannot establish that the error in Peterson’s case was harmless beyond a reasonable doubt. In Peterson’s case, the jury did not make the requisite factual findings and did not unanimously recommend a sentence of death. Instead, the jury recommended the sentence of death by a vote of seven to five. Therefore, this Court has no way of knowing if the jury unanimously found any of the three aggravating factors—CCP, HAC, pecuniary gain—that the aggravating factors were sufficient to impose a death sentence, or whether the aggravating factors outweighed the mitigating circumstances. Further, this Court cannot speculate why the five jurors who voted to recommend a sentence of life imprisonment determined that a sentence of death was not the appropriate punishment. Thus, we conclude that the Hurst error in Peterson’s case was not harmless beyond a reasonable doubt. In doing so, we note that the jury in Peterson’s case recommended a sentence of death by the same narrow vote that Timothy Lee Hurst’s jury recommended where the aggravating factors presented required a factual determination. See Hurst, 202 So.3d at 47. Accordingly, we vacate Peterson’s sentence of death and remand for a new penalty phase.

HABEAS PETITION

In addition to appealing the denial of his postconviction motion, Peterson has filed a petition for habeas corpus relief. Thepetition 'raises' six issues, the majority of which allege ineffectiveness of trial counsel and are therefore not properly addressed in a habeas petition. See Thompson v. State, 759 So.2d 650, 668 n.13 (Fla. 2000). Additionally, Peterson’s claim that the trial court violated his due process rights by appointing trial 'counsel with a high caseload which precluded counsel from providing effective representation merely uses “different grounds to reargue” his postcon-viction claim that- trial counsel operated under an actual conflict of interest, and.is therefore “improper.” Breedlove v. Singletary, 595 So.2d 8, 10 (Fla. 1992). Accordingly, we address only his first and third habeas claims that pertain to the ineffectiveness of direct appeal counsel.

Peterson claims that his appellate counsel was deficient in failing to raise a Fourth Amendment violation claim stating that the search of Peterson’s cell phone violated his Fourth Amendment guarantee against unreasonable search and seizure. However, Peterson devotes his argument to. alleging ineffectiveness of trial counsel for not arguing that the search was illegal and - moving to suppress the evidence. Therefore, it would appear that because trial counsel did not move to suppress the evidence gathered from Peterson’s cell phone, the issue of whether the police search of Peterson’s cell phone violated the Fourth Amendment was not preserved. Appellate*.counsel cannot be deemed ineffective for failing tb present' arguments that are unpreserved; and procedurally barred. See Nelson v. State, 43 So.3d 20, 35 (Fla. 2010). “The only exception to this is when the claim’ invblves fundamental error,” which Peterson has not alleged. Id. Accordingly, we deny Peterson’s claim.

Peterson, also contends that appellate counsel was ineffective in failing to ensure that the entire trial record was transcribed and became a part of the record on appeal. In Ferguson v. Singletary, 632 So.2d 53, 58 (Fla. 1993), this Court rejected a similar, elaim that appellate counsel was ineffective for failing to have transcribed portions of the record, including parts of voir dire, the charge conference, and a discussion of whether the defendant would testify. The Court reasoned that “[h]ad appellate counsel asserted error which went uncorrected because of the missing record, or had [the defendant] pointed to errors in this petition, this claim may have had merit.” Id. However, because the defendant “pointfed] to no specific error which occurred” during the portions of the record that remained un-transcribed, the Court concluded that appellate counsel was not ineffective. Id.; see also Turner v. Dugger, 614 So.2d 1075, 1079-80 (Fla. 1992) (finding, defendant had not been prejudiced by failure of counsel to have charge conference transcribed). More recently, in Thompson, 759 So.2d 650, this Court considered a similar claim of ineffective assistance of appellate counsel when counsel did not provide this Court with an adequate record during the direct appeal “because some pretrial hearings and bench conferences were not transcribed and included in the appellate record.” Id. at 660. In rejecting this claim, this Court explained, that “[a]s with the defendant in Ferguson, Thompson has not pointed to any errors that occurred during the untranscribed portions of the proceedings. Therefore, these habeas claims are without merit.” Id.

Peterson has not “pointed to any errors that occurred during the untranscribed portions of the proceedings.” Id. Accordingly, we deny this habeas claim.

CONCLUSION

For the foregoing reasons, we affirm the denial of postconviction relief and deny Peterson’s petition for habeas corpus relief. However, we vacate Peterson’s sentence of death and remand fór a new penalty phase proceeding under Hurst.

It is so ordered.

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

LAWSON, J., concurs specially with an opinion.

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

LAWSON, J.,

concurring specially.

See Okafor v. State, 42 Fla. L. Weekly S639, S641, — So.3d —, 2017 WL 2481266, at *6 (Fla. June 8, 2017) (Lawson, J., concurring specially).

CANADY, J.,

concurring in part and dissenting in part.

I concur with the majority’s decisions to affirm the denial of Peterson’s motion to recuse or disqualify the trial judge, to affirm the denial -of relief regarding the conviction, and to deny habeas relief.. However, I dissent from the decision to vacate the death sentence because, as I have previously explained, Hurst should not be given retroactive effect. See Mosley v. State, 209 So.3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part). The other penalty phase issues raised by Peterson are without merit. Accordingly, I would affirm Peterson’s death sentence.

POLSTON, J., concurs.

      . Justice Pariente, joined by; Chief Justice la-barga and Justice Periy, dissented as,to the sentence because none of the aggravators were unanimously found by the jury, relying on Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556, Peterson, 94. So.3d at 538 (Pariente, J., concurring as to conviction and dissenting as to sentence).

      . We once again repeat that this Court deems waived arguments made without briefing. See Barwick v. State, 88 So.3d 85, 101 (Fla. 2011). As this Court has explained, “to merely refer to arguments presented during the post-conviction proceedings without further elucidation is not sufficient ... and these claims are deemed to have been waived.” Doorbal v. State, 983 So.2d 464, 482 (Fla. 2008) (citation omitted). This Court has further explained that "[t]he purpose of a legal brief is to offer argument in support of the issues raised on appeal.” Bradley v. State, 33 So.3d 664, 685 (Fla. 2010).

      . Specifically, because we conclude Peterson is entitled to a new penalty phase, we do not address his claims that the postconviction court erred in not excluding the testimony of the State’s expert, neuropsychiatrist Dr. Alan J. Waldman, or erred in denying Peterson's motion to appoint Dr. William A. Morton, a psychophármacolgist, as both experts either testified or would have testified as to the ineffectiveness of penalty phase counsel.

      . On April 23, 2014, Peterson filed a petition for writ of prohibition seeking to disqualify the trial judge on the same basis he raises on appeal. On May 22, 2014, this Court unanimously denied the petition without prejudice to raise the issue on appeal. Peterson v. State, 145 So.3d 827 (Fla. 2014) (table).

      . We reject Peterson’s argument that section 775.082(2), Florida Statutes (2015), entitles him to be resentenced to life imprisonment. See Hurst, 202 So.3d at 44, 63-66.

      . Peterson’s six habeas claims are as follows: (1) whether Peterson’s direct appeal counsel was ineffective for failing to raise a Fourth Amendment claim; (2) whether Peterson’s trial counsel was ineffective for failing to test and investigate DNA evidence; (3) whether Peterson’s direct appeal counsel was ineffective in failing to ensure that the entire record was transcribed; (4) whether trial counsel was ineffective in failing to challenge the vol-untariness of Peterson’s confession; (5) whether the- trial court violated Peterson’s due process rights by appointing trial counsel with an unrealistically high caseload which prevented trial counsel from providing effective assistance; and (6) whether trial counsel was ineffective in failing to challenge the fact that the State’s confidential informant acted outside of the scope of what is allowed.