author:
BURKE, Judge.
      JOINER, Judge,

text:
    Curtis Wardnell CAVER v. STATE of Alabama
    CR-15-0300
    Court of Criminal Appeals of Alabama.
    Sept. 9, 2016

      William Gregory Hughes, Mobile, for appellant.
    Luther Strange, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   BURKE, Judge.

Curtis Wardnell Caver appeals his convictions of first-degree unlawful possession of marijuana, a violation of § 13A-12-213, Ala. Code 1975, and first-degree possession of drug paraphernalia, a violation of § 13A-12-260(a)(5), Ala. Code 1975, and his resulting sentences of 50 years’ imprisonment and 12 months in the Mobile Metro Jail, respectively. The sentences were to run consecutively with each other and any other sentence he was serving at the time of the sentencing hearing.

At trial, the State presented the following evidence: Officer Julian Nettles, an officer with the Mobile Police Department’s Narcotics and Vice Unit at the time of the incident, testified that on May 1, 2014, he and seven other officers executed a search warrant at a specific address on Melrose Street. Through his prior investigation, Officer Nettles had determined that Caver and Deidra White, Caver’s girlfriend, lived at the location. When the officers arrived at the location, they observed a “silverish-gold” Chevrolet Impala automobile parked in the driveway; and the vehicle was occupied by Caver, Deidra White, Shawna White, and another individual. (R. 98.) As the officers approached the vehicle, Officer Nettles saw smoke coming from the vehicle, and it appeared that the individuals inside the vehicle were smoking marijuana. Officer Nettles also observed a hand that appeared to be tossing something out of the vehicle. Officers later found a partially burnt marijuana blunt in between the seats of the vehicle. The officers removed the occupants from the vehicle and detained them in handcuffs for the safety of the officers. As the officers approached the house, they saw three other people on the porch and detained them. The officers then entered to the house and secured the residence.

Officer Nettles stated that, once inside the house, he recovered a medium-sized black tote bag in a bedroom. Inside the tote bag, he found eight individually wrapped clear bags containing a green plant-like substance he believed to be marijuana. Officer Nettles also recovered a small pink tin can from the tote bag. Officer Nettles popped open the can and found two more small bags that he believed to be “analogue marijuana.” (R. 101.) The tote bag also contained a digital scale. A picture of each item found in the tote bag was entered into evidence and published to the jury, as well as a picture of mail with Caver’s name on it that was recovered inside the room near the tote bag. In addition to the mail found in the room, Officer Nettles stated that he also identified who the bedroom belonged to by a framed picture that depicted Caver and White. Officer Nettles testified that there were no other drugs found in the house except in the bedroom.

Officer Nettles testified that, through his training and experience, the manner in which the marijuana was packaged in small individual bags was consistent with the illegal sale of narcotics. Officer Nettles also knew from his training and experience that the digital scale found with the marijuana was similar to ones he had seen used in the sale of drugs. The marijuana seized at the scene was packaged and sent to the Department of Forensic Sciences (“DFS”) for testing.

Mary Burns, a forensic scientist with DFS, testified that one of the eight small clear bags found at the residence tested positive for marijuana.

The State rested its case, and defense counsel moved for a judgment of acquittal, arguing that the State “failed to prove who this marijuana belonged to.” (R. 124.) The circuit court denied the motion.

Deidra White, testified on behalf of the defendant. She claimed that the house on Melrose Street was owned by her grandmother and that Caver did not live there. She claimed that the bag and the marijuana found in the bedroom belonged to her and that the mail with Caver’s name on it was some letters that she had written to Caver when he was in prison on an unrelated case. She claimed that the letters had been returned to her because she had put an incorrect address on the envelopes.

I.

Caver argues that the State failed to present sufficient evidence to convict him of the unlawful possession of marijuana, a violation of § 13A-12-213, Ala. Code 1975. Specifically, Caver maintains that the State failed to prove that he constructively possessed the marijuana.

It is well settled that,
“ ‘ “[i]n determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘“The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have’ found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘“When .there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 567 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role' ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).”

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004)(quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)).

“ ‘ “Circumstantial evidence alone is enough to support a guilty verdict of the most, heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.” White v. State, 294 Ala. 265, 272, 314 So.2d 857 (Ala.1975), cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). “Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.” Cochran v. State, 500 So.2d 1161, 1177 (Ala.Crim.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).’ ” Hollaway v. State, 979 So.2d 839, 843 (Ala.Crim.App.2007)(quoting White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989)).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most .favorable to the prosecution. The test . to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of .guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).”

Bradford v. State, 948 So.2d 574, 578-79 (Ala.Crim.App.2006)(quoting Cumbo v. State, 368 So.2d 871, 874-75 (Ala.Crim.App.1978)).

Caver was convicted of the unlawful possession of marijuana, a violation of 13A-12-213, Ala. Code 1975,' which provides that'“[a] person commits the crime of unlawful possession of [marijuana] in the first dégree if.. .[h]e possesses [marijuana] for other than personal use.”

It is undisputed that Caver was not in actual possession of the marijuana; thus, the State had to demonstrate that he was in constructive possession of the marijuana. In Ex parte J.C., 882 So.2d 274 (Ala.2003), the Alabama Supreme Court stated the following regarding constructive possession:

“ ‘In order to establish constructive possession, the State must prove “(1) [a]etual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.”.’
“Ex parte Fitkin, 781 So.2d 182, 183 (Ala.2000)(quoting Bright v. State, 673 So.2d 851, 852 (Ala.Crim.App.1995)). Where contraband is seized inside a residence, ‘constructive possession can only arise “where the prohibited material is found on the premises owned or controlled by the appellant.”’ Crane v. State, 401 So.2d 148, 149 (Ala.Crim.App.1981)(quoting Williams v. State, 340 So.2d 1144, 1145 (Ala.Crim.App.1976)). ‘ “When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that-the accused had knowledge of the presence of the controlled substances.” ’ Ex parte Tiller, 796 So.2d [310], at 312 [(Ala.2001)] (quoting Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App.1997)).
“ While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some, evidence that connects a defendant with the contraband is required. Generally, the circumstances that provide that connection include:
“‘“(1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had-substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that illicit drugs will be found; (5) evidence that debris of the contraband was found on defendant’s person or with,his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.” ’
“Grubbs v. State, 462 So.2d 995, 997-98 (Ala.Crim.App.1984)(quoting Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App.1978)).”

882 So.2d at 277-278.

In Posey v. State, 736 So.2d 656 (Ala.Crim.App.1997), officers executed a search warrant on the premises of Posey’s business and, in the shop area of the business, found two individuals, one of whom was in possession of illegal drugs. Officers continued into a trailer on the property and found Posey and a female in a back bedroom, which contained both men’s and female’s clothing; however, there was no testimony indicating that any of the clothing belonged to Posey. Officers found marijuana and drug paraphernalia in a dressér drawer of the bedroom in which Posey had been sleeping, as well as methamphetamine in the freezer in the kitchen. During the search, another individual also arrived on the premises. Posey was later convicted of trafficking in methamphetamine. At trial, to support a theory of constructive possession, the State presented evidence that Posey owned the trailer and paid property taxes on the trailer.'This Court in Posey determined that the evidence “did not establish that Posey was in exclusive possession of the trailer,” 736 So.2d at 658, and that although Posey owned the premises and was in the trailer when the methamphetamine was found, the evidence was “insufficient to prove that he had any more knowledge of its presence in the [freezer] than anyone else on the premises at the time of the search.” 736 So.2d at 659. This Court also noted in Posey that, when considering the marijuana found in the drawer in the bedroom with Posey, “we encounter the same constructive possession problem .... as exists with, the methamphetamine in the [freezer]” because “Posey was not alone in the bedroorn with the marijuana, nor was any evidence presented beyond ownership of the premises that would tend to identify him as the owner of the marijuana.” 736 So.2d at 659.

Likewise, in Meeker v. State, 801 So.2d 850 (Ala.Crim.App.2001), this Court found that evidence that the defendant’s driver’s license was found on a TV stand in a spare bedroom of his brother’s residence and that he had visited his brother’s residence on two occasions was insufficient to prove that the defendant had any rights of possession to the house or that he had knowledge of the presence of marijuana that was found on the same TV stand in the spare bedroom.

In the present case, as in Posey and Meeker, there was no evidence indicating that Caver was in exclusive possession of the house. The only evidence presented by the State linking Caver to the marijuana found in the bedroom of the house was Officer Nettles’s testimony that, through his investigation, he determined that Caver lived at the residence, as well as letters addressed to Caver and a photograph of Caver and White. There was no evidence as to whether Caver had any knowledge that the marijuana was present in the house at the time the house was searched. There was no evidence of any of the factors enumerated above, which might have established a connection between Caver and the marijuana. We find the evidence insufficient to prove that Caver had exclusive rights of possession in the house or that he had knowledge of the presence of the marijuana confiscated during the search. Therefore, we reverse as to Caver’s conviction for first-degree possession of marijuana and render a judgment for Caver as to the offense.

Because we are reversing on the issue of the sufficiency of the evidence for Caver’s conviction of first-degree possession of marijuana, we pretermit any discussion of the other issues raised as it relates to this specific conviction.

We note that Caver was also convicted of first-degree possession of drug paraphernalia. However, unlike his challenge to his first-degree possession of marijuana conviction, Caver failed to preserve the issue whether the State presented sufficient evidence to support his conviction of first-degree possession of drug paraphernalia.

It is well settled that
“[t]he issue of the sufficiency of the evidence is preserved for review by a defendant’s motion for a judgment of acquittal that is entered at the end of the state’s case, at the close of the evidence, see [Ala. R. Crim. P.] 20.2(a), or after the verdict is entered, see [Ala. R. Crim. P.] 20.3. The motion must state the ground that the state failed to prove a prima facie case [or similar language]. See, e.g., Ex parte Maxwell, 439 So.2d 715 (Ala.1983). A defendant may also challenge the sufficiency of the evidence when moving for a new trial under [Ala. Crim. P.] 24.1 or when moving for an arrest of judgment under [Ala. R. Crim. P.] 24.2. [Ala. R. Crim. P.] 20.3(c); see Pearson [v. State], 601 So.2d [1119,] 1123-24 [ (Ala.Crim.App.1992) ]; Prather v. City of Hoover, 585 So.2d 257, 258 n. 1 (Ala.Cr.App.1991).”

Zumbado v. State, 615 So.2d 1223, 1241 (Ala.Crim.App.1993). Further,

“[t]he sufficiency of the evidence is subject to appellate review only where the defendant challenges the State’s lack of evidence by either a motion to exclude, a motion for judgment of acquittal, or a motion for new trial. Slaughter v. State, 424 So.2d 1365 (Ala.Crim.App.1982); see Johnson v. State, 500 So.2d 69 (Ala.Crim.App.1986). The appellant is bound by the specific objections that he made at trial and cannot raise a new ground on appeal. Bolding v. State, 428 So.2d 187 (Ada.Crim.App.1983).”

Washington v. State, 555 So.2d 347, 348 (Ala.Crim.App.1989).

At the conclusion of the State’s case, defense counsel made a motion for judg-merit of acquittal “based on the fact that the State has failed to prove who this marijuana belonged to.” (R. 124.) However, he failed to raise any challenge to the sufficiency of the evidence for the charge of the unlawful possession of drug paraphernalia. At the conclusion of the presentation of the evidence, defense counsel merely “renewed the previous motion.” (R. 137.) Caver did not file a motion for a new trial in this ease. Accordingly, any challenge to the sufficiency of the evidence of Caver’s first-degree unlawful possession of drug paraphernalia conviction is not preserved for appellate review.

Consequently, although our reversal on the issue of the sufficiency of the evidence for Caver’s conviction of first-degree possession of marijuana pretermits any discussion of the other issues raised as they relate to that specific conviction, we will address one of Caver’s additional issues as it relates specifically to his conviction for first-degree possession of drug-paraphernalia.

II.

Caver argues that the circuit court erred in allowing the State to elicit testimony regarding his prior convictions. Specifically, Caver claims that “the doctrine of opening the door” is not applicable in this case and that the admission of the testimony that he was serving time for burglary and sodomy was highly and unfairly prejudicial. (Caver’s brief, at 20.) Caver maintains that the evidence that he was serving time for burglary and sodomy was irrelevant and had no purpose other than to show bad character.

During the direct examination of defense witness Deidra White, the following occurred:

“[Defense counsel:] Ma’am, can you tell the jurors what that is?
“[White:] That’s an open letter that I done wrote to Curtis Caver while he was in prison, but they sent it back due to the address. I had it wrong. I had a wrong address to it,
“[Defense counsel:] And you—is that your handwriting?
“[White:] Yes, sir.
“[Defense counsel:] And why was it sent back to you?
“[White:] I had—it was loaded with mail and I had to add another stamp to it.”

(R. 126-27.) On cross-examination, the following occurred:

“[Prosecutor:] Okay. You’ve been dating for eight years?
“[White:] Yes, ma’am.
“[Prosecutor:] And you would write him letters when he was in prison?
“[White:] Yes.
“[Prosecutor:] And how long was he in prison?
“[White:] He did five years.
“[Prosecutor:] Okay. For another case. Is that right?
“[White:] Yes, ma’am.
“[Prosecutor:] Do you know what it was?
“[Defense counsel:] Judge, I would object to what he’s in prison for.
“THE COURT: You opened it.
“[Defense counsel:] It’s not relevant.
“[Prosecutor:] Judge, he opened the door.
“THE COURT: You opened it up, [defense counsel]. She’s going to walk into it.
“[White:] I think burglary and sodomy.
“[Prosecutor:] Burglary and sodomy?
“[White:] Uh-huh.
“[Prosecutor:] Okay. And during that time you dated him still while he was in prison?
“[White:] Yes.
“[Prosecutor:] And you said the letters that [defense counsel] was talking about that he showed you the picture of, this was sent to him?
“[White:] Yes, But they sent it back due to I guess the address, the address was wrong. And I had to give.it another stamp. They re-sent it back. That’s why they marked on the envelope.”

(R. 128-129.)

“The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). In Minor v. State, 914 So.2d 372 (Ala.Crim.App.2004), this Court stated that

“[i]t is well settled that ‘[w]hen one party opens the door to otherwise inadmissible evidence, the doctrine of “curative admissibility” provides the opposing party with “the right to rebut such evidence with other illegal evidence.” ’ Ex parte D.L.H., 806 So.2d 1190, 1193 (Ala.2001), quoting Charles W. Gamble, McElroy’s Alabama Evidence § 14.01 (5th ed.1996). ‘ “ ‘A party who has brought out evidence on a certain subject has no valid complaint as to the trial court’s action in allowing his opponent or adversary to introduce evidence on the same subject.’ ” ’ Id., quoting Hubbard v. State, 471 So.2d 497, 499 (Ala.Crim.App.1984), quoting in turn Brown v. State, 392 So.2d 1248, 1260 (Ala.Crim.App.1980).”

914 So.2d at 397. Further, in Wiggins v. State, 193 So. 3d 765 (Ala.Crim.App.2014), this Court stated:

“Section' 12-21-137, Ala. Code 1975, specifically provides: ‘The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him.’ ‘A defendant cannot complain about the state’s inquiring as to matters first brought into’ the case by the defendant.’ State v. Thomas, 820 S.W.2d 538, 545 (Mo.Ct.App.1991). “While evidence of a criminal defendant’s prior bad acts is generally inadmissible,' a defendant is not in a position to complain of the State inquiring about matters brought into the case by his own question.’ State v. Fassero, 256 S.W.3d 109, 118 (Mo.2008).
“‘“The doctrine of opening the door allows a party to explore otherwise inadmissible evidence on cross-examination when the opposing party has made unfair prejudicial use of related evidence on direct examination.” United States v. Lum, 466 F.Supp. 328, 334 (D.Del.) (citations omitted), aff'd without opinion, 605 F.2d 1198 (3d Cir.1979). “The doctrine ... is limited to testimony that might explain or contradict the testimony offered by the opposing party on direct examination; it cannot be ‘subverted into a rule for injection of prejudice.’ ” Id. at 335 (quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C.Cir.1971)).’
“United States v. Durham, 868 F.2d 1010, 1012 (8th Cir.1989).”

219 So. 3d at 5.

Caver relies on Wiggins in arguing that the circuit court erred in allowing the State to elicit testimony regarding his pri- or, convictions because, he claims, defense was not -trying to make unfair prejudicial use of related evidence on direct examination and that the “sole purpose of the State’s questions on cross-examination was to inject prejudicial matter that would not otherwise [be] admissible.” (Caver’s brief, at 21.) Conversely, the State also cites Wiggins to support its contention that the State had the right to inquire into,the matter because the defendant opened the door to the subject.

In the present case, defense counsel did open the door to the matter of Caver previously serving prison time. However, defense counsel’s question to White concerning Caver’s previous time in prison was designed to explain the reason the mail addressed to Caver was found in the house and to show that it was White who received and possessed the mail. Although the State could properly offer testimony to explain or contradict the testimony offered by the defense, the purpose for the State’s question regarding the specific offenses for which Caver was serving time was not merely for rebuttal purposes. Nor was the question designed to contradict testimony offered by the defense to correct an unfair prejudicial use of the evidence. Instead, it appears that the only purpose for the State’s introduction of the specific offenses was to inject the prejudicial nature of these offenses into the trial.

“[E]ven where the proffered evidence of collateral bad acts is relevant, its probative value must not be substantially outweighed by the danger of undue and unfair prejudice for the evidence to be admissible. Ex parte Smith, 581 So.2d 531, 535 (Ala.1991); Hargress v. City of Montgomery, 479 So.2d 1137 (Ala.1985); Thomas[ v. State], 625 So.2d [1149] at 1153[ (Ala.Crim.App.1992) ]; Jones v. State, 473 So.2d 1197 (Ala.Cr.App.1985). See McElroy’s Alabama Evidence, §§ 20.01 and 21.01(4). ‘Prejudicial’ in this context means ‘ “an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” ’ Averette v. State, 469 So.2d 1371, 1374 (Ala.Cr.App.1985), quoting State v. Forbes, 445 A.2d 8, 12 (Me.1982).
“Before the probative, value of evidence of collateral bad acts may be held to outweigh its potential prejudicial effect, the evidence must be ‘reasonably necessary’ to the state’s case. Bush[ v. State], 695 So.2d [70] at 85[ (Ala.Crim.App.1995) ]; Averette, 469 So.2d at 1374.”

R.D.H. v. State, 775 So.2d 248, 253-54 (Ala.Crim.App.1997). See also Horton v. State, 217 So.3d 27 (Ala.Crim.App.2016).

Therefore, because the State’s question went beyond the.scope of the doctrine of curative admissibility, allowing it was erroneous.

Moreover, because of the lack of evidence to support a finding that Caver had constructive possession of the marijuana and the drug paraphernalia, we cannot say that the error in allowing the State to elicit testimony that Caver had previously been convicted of sodomy and burglary was harmless. See J.D.W. v. State, 176 So.3d 863, 870 (Ala.Crim.App.2014). “[T]he harmless error rule excuses the error' of admitting inadmissible evidence only [when] the evidence was so innocuous 'or cumulative that it could not have contributed substantially to the adverse verdict.” Ex parte Baker, 906 So.2d 277, 284 (Ala.2004). Accordingly, we must also reverse Caver’s conviction and sentence for first-degree possession‘of drug paraphernalia, and remand this case for proceedings consistent with this opinion.

REVERSED; JUDGMENT RENDERED AS TO CONVICTION AND SENTENCE FOR FIRST-DEGREE POSSESSION OF MARIJUANA; REMANDED AS TO CONVICTION AND SENTENCE FOR FIRST-DEGREE POSSESSION OF DRUG PARAPHERNALIA.

Welch, J., concurs. Kellum, J., concurs in the result. Joiner, J., concurs in part, and dissents in part, with opinion. Windom, ■ P.J., recuses herself.

JOINER, Judge,

concurring in part and dissenting in part.

I concur with the portion of this Court’s opinion that holds that Curtis Wardnell Caver is entitled to a new trial “because the State’s question [on cross-examination of Deidra White regarding why Caver had been in prison] went beyond the scope of the doctrine of curative admissibility.” 219 So. 3d at 11.1 disagree, however, with the portion of this Court’s opinion that holds that the State’s evidence was insufficient to support Caver’s conviction for first-degree possession of marijuana; thus, as to that part of the opinion, I respectfully dissent.

The State presented sufficient evidence to demonstrate that Caver constructively possessed the marijuana seized by the Mobile Police Department when it executed a search warrant at a home located on Melrose Street. Indeed, the evidence presented at trial demonstrated that Officer Julian Nettles, while conducting an investigation, learned that both Caver and his girlfriend, Deidra White, lived in a house located at a specific address on Melrose Street. Additionally, Officer Nettles testified that, when he went to that home to execute the search warrant, Caver, White, White’s mother (Shawna White), and another individual were sitting in a vehicle parked in the driveway of the house on Melrose Street. According to Officer Nettles, as he approached that vehicle he

“observed smoke coming from ... the vehicle. A hand motion went up in the air as if they were tossing. We actually found a burnt marijuana blunt between the seat, a partially burnt—burnt marijuana blunt in between the seat. It is unknown who tossed it but it appeared that the subjects that [were] ... inside the car [were] smoking marijuana when we arrived.”

(R. 98.) Officer Nettles explained that, after they detained everyone in the vehicle and three other people standing on the nearby porch, the officers went into the house to execute the search warrant. Officer Nettles testified that, “[i]n the first bedroom on the left, [he] recovered a ... medium-sized black tote bag. Inside the tote bag was eight individually wrapped clear baggies containing a green plantlike substance believed to be marijuana. Also in that same bag [he] recovered a small pink tin can” that contained “two more small baggies believed to be an analogue marijuana.” (R. 100-01.) Officer Nettles further explained that “inside the room near the tote bag” (R. 102) he found mail addressed to Caver. Additionally, Officer Nettles testified that on the television stand in that room there was a picture of Caver and White. When Officer Nettles was asked if he did “anything else to identify whose bedroom that was,” he responded:

“It was a couple of—it was one particular picture that was located in there with [Caver] and his girlfriend, [White], on the picture.
“And Ms. Shawna White stated that she think [Caver] stay up in there but she’s not for sure.”

(R. 104.) Finally, as this Court’s opinion recognizes, “Officer Nettles testified that there were no other drugs found in the house except in Caver’s room.” 219 So. 3d at 5 (emphasis added). Although the main opinion holds otherwise, this evidence was sufficient to establish a prima facie case of first-degree possession of marijuana.

Additionally, although Caver correctly points out, and this Court recognizes, that White testified that Caver did not live at the house on Melrose Street; that the tote bag and the marijuana belonged to her; and that the mail addressed to Caver were letters that she wrote to Caver when he was in prison, White’s testimony served only to dispute a material fact at issue in this case—namely, whether Caver had substantial control over the area where the marijuana was found—and “disputed material facts ... arising out of testimony must be resolved by the jury.” Finch v. State, 445 So.2d 964, 966 (Ala.Crim.App.1983). White’s testimony did not render the State’s evidence insufficient to support a conviction for first-degree possession of marijuana.

Moreover, although this Court’s opinion holds that the State’s evidence was insufficient to support Caver’s conviction for first-degree possession of marijuana, in doing so, this Court overlooks one key aspect of the State’s case against Caver: The State proceeded against Caver on a theory of complicity—that is, that both Caver and White possessed the marijuana located in their bedroom. This Court has explained that “[cjases have held that where the appellant never actually had possession of the drugs during the commission of the crime, he may nonetheless be guilty of aiding and abetting as well as having constructive possession of the drugs via a co-conspirator.” Wright v. State, 494 So.2d at 937 (citing United States v. Cannington, 729 F.2d 702 (11th Cir.1984)). A defendant’s complicity in an offense is a question for the jury. Wright v. State, 494 So.2d 936, 937 (Ala.Crim.App.1986).

Because the State’s evidence was sufficient to establish a prima facie case of first-degree possession of marijuana, I dissent as to Part I of this Court’s opinion.

      . Additionally, I note that, although not mentioned in this Court's opinion, Caver was also indicted for one count of unlawful distribution of a controlled substance, see § 13A-12-211, Ala. Code 1975. That charge, however, was nolle prossed by the State before trial. (R. 7.) Because this Court now remands this case to the circuit court for that court to provide Caver a new trial on his charge of possession of drug paraphernalia, it is possible that the State could resurrect Caver’s unlawful-distribution-of-a-controlled-substance charge.


source: Caselaw Access Project

author: POLSTON, J..

license: Public Domain

text:
    Roger Dennis CHURCHILL, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. SC16-654
    Supreme Court of Florida.
    [April 13, 2017]
    Rocco J. Carbone, III, of Eakin & Sneed, Atlantic Beach, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Wesley Heidt, Bureau Chief, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   POLSTON, J..

Roger Dennis Churchill, Jr., seeks review of the decision of the Fifth District Court of Appeal in Churchill v. State, 169 So.3d 1260 (Fla. 5th DCA 2015), on the ground that it expressly and directly conflicts with a decision of. the Third District Court of. Appeal in Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc), on a question of law. We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the Fifth District’s decision in Churchill and hold that, in appeals from a conditional no contest plea, the appellate court is bound by a stipulation that a pre-plea ruling by the trial court is dispositive of the case.

BACKGROUND

Following his arrest in Citrus County in July 2013, Churchill was charged with one count of conspiracy to manufacture methamphetamine, one count of manufacture of methamphetamine, and one count of possession.of a listed chemical. Prior to trial, Churchill filed a motion in limine seeking to exclude witness testimony about the identity of the substances found at the scene of his arrest, as well as the results from the chemical field tests performed on those substances. He argued that such evidence should be excluded because none of the witnesses listed by the State were qualified expert witnesses under the standard for scientific evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and section 90.702, Florida Statutes. The trial court denied the motion in limine, finding that the law enforcement officer who performed the chemical field tests and identified the methamphetamine was sufficiently qualified to testify as an expert witness.

Churchill subsequently entered an open plea of no contest on all charges. The trial court accepted the plea, and Churchill reserved his right to appeal the ruling on the motion in limine, which the State agreed was dispositive of the case. The trial court then adjudicated Churchill guilty and sentenced him to five years on the conspiracy count, a concurrent term of 15 years on the manufacture count, followed by a consecutive term of seven years for possession of a listed chemical.

Churchill filed a timely appeal in the Fifth District where he argued that the trial court erred in not excluding testimony and evidence about the results of the chemical field tests because such evidence failed to comply with the standard for admissibility in Daubert. Churchill, 169 So.3d at 1260 n.1. He did not challenge the trial court’s ruling that the law enforcement officer was qualified to testify about the identification of the methamphetamine. Id. The Fifth District declined to address the issue raised by Churchill, holding that “[bjecause the trial court’s order was not dispositive, it cannot be challenged on direct appeal.” Id. at 1260-61 (footnote omitted) (citing Fla. R.. App. P. 9.140(b)(2)(A)(i)). The Fifth District reasoned as follows:

Even though the State stipulated below that the trial court’s ruling was dis-positive, this Court is not bound to accept the State’s stipulation. See Ashley v. State, 611 So.2d 617, 618 (Fla. 2d DCA 1993) (finding that the attorneys and the trial court erred in their assumptions that the ruling on the motion in limine was dispositive, because the defendant could be brought to trial regardless of whether the appellate court affirmed or reversed the trial court’s ruling). Here, the stipulation was based on the exclusion of all of the deputy’s testimony, including his identification of the methamphetamine based on his training and experience. Churchill waived any argument as to this additional testimony by not raising it in his initial brief.

Id. at 1261 n.2. Accordingly, the Fifth District dismissed Churchill’s appeal for lack of jurisdiction. Id at 1261.

ANALYSIS

Churchill contends that the Fifth District erred in dismissing the appeal from his no contest plea for lack of jurisdiction because the appellate court was required to accept the parties’ stipulation that the trial court’s ruling on the motion in limine was dispositive of the case. We agree.

In 1971, this Court held that a defendant could enter a plea of no contest while reserving a question of law for appellate review. State v. Ashby, 245 So.2d 225, 228 (Fla. 1971). The Court concluded that this type of conditional plea was “not objectionable” because it “expedites resolution of the controversy and narrows the issues to be resolved.” Id. Eight years later, this Court narrowed the scope of Ashby, holding that a conditional no contest plea “is permissible only when the legal issue to be determined on appeal is dispositive of the case.” Brown v. State, 376 So.2d 382, 384 (Fla. 1979). The Court reasoned that the policies underlying the decision in Ashby were “poorly served” and “thwarted” when a defendant was allowed to appeal nondis-positive rulings because the defendant would still face the prospect of trial even if he or she prevailed on appeal, which would prolong rather than expedite resolution of the case. Id.

In Brown, we identified three types of trial court decisions that would constitute dispositive legal issues: rulings on “[m]o-tions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession.” Id. at 385. However, we held that a trial court’s ruling on a motion to suppress a confession was not dispositive of a case for purposes of a conditional no contest plea. Id, We explained that this decision was intended “to avoid a mini-trial on the sufficiency of the evidence in each case involving a confession” because “[s]uch a procedure would be unwieldy and time-consuming” for the trial courts. Id.

Subsequently, the First District applied Brown to the appeal of a trial court’s pre-plea determination that a defendant’s confession was admissible, holding that Brown did not preclude a stipulation by the parties that “the State has no case and would be unable to proceed with the prosecution without the confession.” Jackson v. State, 382 So.2d 749, 750 (Fla. 1st DCA 1980). Accordingly, the First District held that where such a stipulation exists, “the ruling on the admissibility of a confession would be ‘dispositive of the appeal.’ ” Id The First District then addressed the merits of the case and affirmed the trial court’s ruling. Id. This Court summarily affirmed the First District’s decision in Jackson. Jackson v. State, 392 So.2d 1324 (Fla. 1981).

Since Jackson, the district courts have been divided on the role of stipulations of dispositiveness in appeals from conditional no contest pleas. In Finney, the Third District granted a rehearing en banc to resolve an intra-district conflict on this point. 420 So.2d at 640-41. The defendant in Finney entered a no contest plea and reserved his right to appeal the denial of a motion to suppress evidence of stolen property and his identity as the perpetrator, which the State stipulated was disposi-tive of the case. Id. at 642. In reaching the merits of the appeal, the Third District relied on Jackson to determine that the trial court’s ruling on the motion to suppress was dispositive “by virtue of the stipulation.” Id. The Third District further noted that its decision was supported by the concern for judicial efficiency in Brown, reasoning that:

[w]here a stipulation has been entered into by both sides, the court will not be called upon to hear testimony as to the dispositive nature of the evidence. A stipulation is the parties’ recognition that, for whatever reason, they have presented all of the evidence that they care to and each is willing to abide the appellate consequences regarding the grant or denial of the motion to suppress.

Id.

In contrast, in this case, the Fifth District expressly held that it was not required to accept the parties’ stipulation that the trial court’s ruling on Churchill’s motion in limine was dispositive. Churchill, 169 So.3d at 1261 n.2. The Fifth District then dismissed the case for lack of jurisdiction after determining that the issue raised on appeal (only one of the two addressed' in the motion in limine) was not legally dispositive on its own. Id.

Contrary to the Fifth District’s decision in Churchill, the district courts have jurisdiction to review the merits of a conditional no contest plea when the State stipulates that an issue reserved for appeal is dispositive of the case. See Fla. R. App. P. 9.140(b) (2) (A) (i) (providing that a defendant who pleads no contest “may expressly reserve the right to appeal a prior disposi-tive order of the lower tribunal”). In such circumstances, there is no need for the trial court nor the appellate court to determine whether a particular issue will end the case because the stipulation of disposi-tiveness establishes that the State cannot or will not continue with its prosecution if the defendant prevails on appeal. See Jackson, 382 So.2d at 750 (concluding that, notwithstanding Brown, a pre-plea ruling by the trial court was “dispositive of the appeal” based on the parties’ agreement that “the State ha[d] no case and would be unable to proceed with the prosecution without the confession”), aff'd, 392 So.2d 1324 (Fla. 1981); Finney, 420 So.2d at 644 (Pearson, J., concurring specially) (explaining that “where there is an agreement on dispositiveness, Brown’s ‘legal dispositiveness’ is, by definition in Jackson, irrelevant”); see also Williams v. State, 134 So.3d 975, 976 (Fla. 1st DCA 2012) (“An issue is dispositive only when it is clear that there will be no trial, regardless of the outcome of the appeal.”). In other words, the stipulation on its own “is sufficient to establish a basis for appellate review ‘even though [an] issue would otherwise be deemed not dispositive as a matter of law.’ ” Beermunder v. State, 191 So.3d 1000, 1001 (Fla. 1st DCA 2016) (Makar, J., concurring in result) (quoting Zeigler v. State, 471 So.2d 172, 175 (Fla. 1st DCA 1985)).

As Judge Zehmer explained in Zeigler, requiring all stipulations of dispositiveness to be binding will prevent the appellate courts from improperly second-guessing the parties’ strategic decisions and making factual determinations:

The rule preventing us from engaging in selective disapproval of stipulations made by the state and the accused is necessary to assure that appellate courts are not thrust into the position of reviewing acts of the parties or their attorneys instead of judicial acts of the court below. The trial court was not required to look behind the state’s stipulation to determine if it was provident or improvident, appropriate or inappropriate, much less whether it was ill advised. The trial court’s conditional acceptance of the nolo contendere plea did not constitute a judicial ruling on the validity or propriety of that stipulation, but only that he acknowledged it as the agreed basis for the plea and appeal. If we are going to be required to look behind a stipulation for the first time on appeal to determine whether it is proper, without having the benefit of a previously made factual record supporting a ruling by the court below, we shall become a de novo court rather than an appellate court.

Zeigler, 471 So.2d at 177 (Zehmer, J., concurring).

Additionally, requiring stipulations to be binding will further the interests of judicial efficiency and expeditious resolution of controversies cited in Ashby and Brown. Judge Pearson’s concurrence in Finney is instructive on this point:

Sanctioning agreements as to disposi-tiveness does away with the time-consuming process which occurs when an appellate court questions whether an issue is legally dispositive, relinquishes jurisdiction to the trial court for a hearing on that issue, finds the issue not disposi-tive, dismisses the appeal, and permits the defendant to withdraw his plea. Moreover,.- encouraging and accepting agreements between the State and the defendant will have the salutary effect of avoiding potential collateral- attacks on nolo contendere pleas entered in the erroneous belief, gained from.counsel or the trial judge, that a preserved issue is legally dispositive and.an appeal is viable.

Finney, 420 So.2d at 644 n.4 (Pearson, J., concurring specially) (citation omitted).

Finally, allowing the parties to stipulate to potentially nondispositive legal issues does not disturb the concern with finality discussed in Brown as the State suggests. When the State enters into a plea agreement on the condition that the defendant will not face further prosecution if he or she prevails on appeal, that agreement is' binding and cannot be defeated simply because it would be legally possible to continue to trial regardless of the outcome in the appellate court. See Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DGA 1998) (“A plea agreement is a contract and the rales of contract law are applicable to plea agreements.”), review dismissed, 727 So.2d 905 (Fla. 1999); Fla. R. Crim. P. 3.172(g) (recognizing that a plea agreement is binding after it is formally accepted by the trial court); see also Finney, 420 So.2d at 644 n.2 (Pearson, J., concurring specially) (characterizing the State’s stipulation of dispositiveness as a “conditional nolle prosequi” agreement, which cannot be “interfered with” by the trial or appellate courts). Therefore, the appellate court’s ruling on the issue reserved for review, even one that is not legally disposi-tive as contemplated by Brown, will bring an end to the litigation. See Beermunder, 191 So.3d at 1005 (Makar, J., concurring in result) (“[The contested motions] are dis-positive in the sense that the State has pledged it will not prosecute Beermunder further even if he wins on appeal; finality is established.”); Finney, 420 So.2d at 644 n.3 (Pearson, J., concurring specially) (noting that if the appellate court were to decide a legally nondispositive issue in favor of the defendant, the court would “reverse the. judgment of conviction and, based on the State’s agreement, order the defendant discharged”).

Because the parties in this case clearly stipulated that the trial court’s" ruling on Churchill’s motion in limine was dispositive of the case, the Fifth District was bound to accept that stipulation and consider the merits of Churchill’s appeal. Therefore, wé conclude that the Fifth District improperly dismissed the appeal for lack of jurisdiction.

CONCLUSION

For the reasons expressed above, we hold that, in appeals from conditional no contest pleas, stipulations of dispositiveness are binding on- the appellate court. Accordingly, we quash the Fifth District’s decision in Churchill and remand for the district court to consider the merits of Churchill’s appeal. We also approve the Third District’s decision in Finney regarding .the binding effect of stipulations of dispositiveness.

It is so ordered.

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


author: PER CURIAM. POLSTON, J.,

text:
    Donald Lenneth BANKS, Appellant, v. STATE of Florida, Appellee. Donald Lenneth Banks, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC14-979
    No. SC15-297
    Supreme Court of Florida.
    [April 20, 2017]

      Rick A. Sichta, Susanne K. Sichta, and Joe Hamrick of The Sichta Firm, LLC., Jacksonville, Florida, for Appellant/Petitioner
    Pamela Jó Bondi, Attorney General, and Carine L. Mitz and Robert J. Morris, III, Assistant Attorneys General, Tallahassee, Florida, for Appellee/Respondent
   PER CURIAM.

Donald Lenneth Banks appeals the denial of 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. For the reasons that follow, we affirm the denial of his postconviction guilt phase claims, deny his habeas petition, but vacate his death sentence, and remand for a new penalty-phase.

I. BACKGROUND

Donald Lenneth Banks was convicted and sentenced to death for the 2005 murder of Linda Volum. This Court’s opinion on direct appeal included the following regarding the murder and Banks’ subsequent trial:

During the late evening hours of March 9 or the early morning hours of March 10, 2005, the Victim was stabbed to death. The killing probably occurred between midnight and 4:00 a.m. on March 10, 2005. The Victim received fourteen knife wounds, one to the neck, ten to the chest or abdomen, and three to her left forearm and hand. She also received abrasions and contusions in different areas of her body, especially around the hands and to the top of the head. She further received several small cuts in different' areas, including the back of the hand and around the left eye. At least six of the wounds were hard stabs from a knife, rather than simple jabs, in that they penetrated the Victim’s ribs or sternum. One stabbing penetrated her liver, two or three penetrated her heart, and one penetrated her lung. The Victim attempted to defend herself against this attack, and was conscious and aware throughout the attack. She ultimately died from a loss of blood due to the stab wounds to her heart.
Between 2:40 and 2:47 a.m. on the same day, then, a person attempted to access an automatic teller machine with the Victim’s ATM card. This event was recorded by a video surveillance camera. Though the face of the person was not revealed in the recording, it was clearly a black male wearing a unique shirt, and jacket, visually identical to the ones [Banks] was wearing that night. ([Banks] is also a black male). Furthermore, this person was driving a white, compact sedan which matched the description of the Victim’s automobile. The person was accompanied to the ATM location by another, still unidentified person.
Before dawn on the same morning, then, [Banks] returned to a residence he shared with his girlfriend, one Sudi[e] Johnson (“Johnson”). He had been away from the residence all night. He was driving a vehicle which appeared to be identical to that of the Victim. He entered the home limping, from a wound to his leg. He carried with him a pillowcase the same color as another pillowcase found later that day in the Victim’s home. Within the pillowcase, he carried bloody underclothing, and the Victim’s laptop computer. When Johnson asked him about the bloody clothing, [Banks] told her that “I just murked somebody.” The word “murk” is a slang term meaning murder. [Banks] had been bleeding from the wound to his leg, and continued to bleed while he was at the residence. However, about an hour after his arrival, he again departed in the same automobile in which he had arrived.
Later the same morning the Victim’s automobile was involved in a traffic accident. After the accident, the occupants of the vehicle fled from the scene. Deputy sheriffs investigating the accident, though, were able to ascertain that it was owned by the Victim. In the course of investigating the accident, then, a deputy went to the Victim’s residence, where he found her dead body.
About a day and a half after the foregoing events, Johnson took [Banks] to a hospital so that he could receive medical care for his leg wound. The wound subsequently proved to be almost visually identical to one of the wounds the Victim had received during the murder.
Johnson testified at trial that when [Banks] initially told her he had murdered someone, she did not believe him. She thought he was simply seeking attention. However, several days later she and [Banks] were watching a videotaped television program when a news flash was aired regarding the murder of Linda Volum. [Banks] then stated to Johnson “You see that?” and “I did that.” These remarks led Johnson to question [Banks] about the murder. In response, he related to her facts about the erime which could only have been known by someone who was present at the murder, or sheriffs investigators. He also told her that he had committed the crime as a “murder pay-back,” and that he had done so after entering the Victim’s residence in only his underclothing. He further said that when he left the residence “I had set the house up as a prop.” He explained that he had done so by putting a crack pipe in the residence, to make the murder appear to be “foul play.” [Banks] related [to Johnson] that he had received the wound to his leg on the night in question by accidentally stabbing himself in the course of stabbing the Victim to death.
The sheriffs office investigation of the crime scene produced substantial physical evidence of [Banks’] guilt. Indeed, a crack pipe, along with a knife, was found under the Victim’s body. Blood, which DNA testing proved to be [Banks’], was found in several places in the house. [Banks’ semen] was found ■ on the Victim’s body, and a mixture of blood from both [Banks] and the Victim was found near the body. [Banks’] bare footprint was also found in some blood in the house. In addition, the [prints] of some unknown person [were] found in blood in one place, indicating that another person may have been present at the murder, besides [Banks], That person has never been identified.
During the guilt phase, Banks maintained his innocence. He testified that he sold crack out of Volum’s residence and that Volum had exchanged sex as well as the use of her laptop and vehicle for crack. Banks stated that during the evening of Volum’s murder he had cut his fingers on a crack pipe, thereby explaining his blood in Volum’s residence. He also testified that Volum had asked him to go to the ATM for her and that an acquaintance, “Bo,” accompanied him on the trip. He stated that when he left that night to go home “Bo” remained at Vo-lum’s residence. However, the jury found Banks guilty of first-degree murder.
The defense,, during the penalty phase, presented the testimony of Banks’ father and a forensic psychologist. Banks’ father testified that he had not been a part of his son’s life since his son was seven years old. The psychologist testified that there was no evidence of any major mental illnesses or thought disorders. However, testing suggested mild to moderate deficits in frontal lobe functioning, which is responsible for planning, problem solving, and impulse control. The psychologist diagnosed him with a cognitive disorder not otherwise specified as well as antisocial personality disorder. Moreover, the psychologist noted a history of alcohol and substance abuse. ■
The jury recommended the death penalty by a vote: of ten to two, and a Spencer [v. State, 615 So.2d 688 (Fla. 1993),] hearing was held on August 6, 2008. Thereafter, following the jury’s recommendation and concluding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced Banks to death. In so doing, the trial court found the following aggravators: (1) Banks had been previously convicted of violent felonies (very great weight); (2) the crime was especially heinous, atrocious, or cruel (very great weight); and (3) the crime was committed in a cold, calculated, and premeditated manner (great weight). The trial court found the following miti-gators: (1) Banks has a low IQ (very little weight); (2) Banks has a deficit in his brain (moderate weight); (3) Banks has antisocial personality traits (little weight); (4) Banks was not the only participant in the crime (no weight); and (5)'Banks had a difficult youth (little weight).

Banks v. State, 46 So.3d 989, 992-94 (Fla. 2010) (footnotes omitted) (quoting sentencing order).

On direct appeal, this Court affirmed Banks’ conviction and sentence, rejecting the following claims: “(A) the trial court erred in denying a cause challenge to a prospective juror whose ' daughter had been the victim of an armed robbery; (B) the trial' court erred in allowing the State to exercise peremptory challenges against two African-Americans; (C) the trial court erred in admitting DNA results without requiring the presentation of statistical evidence; (D) the trial court erred in denying a motion for mistrial when a witness mentioned Banks’ involvement in another crime; (E) the trial court erred during the penalty phase by allowing the State to present a video of Banks committing an armed robbery; and (F) the trial court erred in finding the cold, calculated, and premeditated (CCP) aggravating circumstance.” Id. at 994-95.

After holding an evidentiary hearing, the postconviction court denied Banks’ initial 3.851 motion. This appeal and petition for habeas relief followed.

II. ANALYSIS

A. Consent to Search

First, Banks claims that trial counsel was ineffective for failing to move to suppress items recovered after a second entry of the residence shared by Banks and Su-die Johnson based upon Ms. Johnson’s alleged coerced consent to search. However, because the claim is without merit, trial counsel cannot be deemed ineffective for failing to raise it.

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

“Because both prongs of Strickland present mixed questions of law 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 v. State, 109 So.3d 680, 690 (Fla. 2012).

“[Wjhether a consent to a search was in fact ‘voluntary1 or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Wyche v. State, 987 So.2d 23, 26 (Fla. 2008) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

Here, during the postconviction ev-identiary hearing and during pretrial depositions, Ms. Johnson mentioned feeling pressured into consenting to law enforcement’s initial entry of her home to apprehend Banks for a crime unrelated to Linda Volum’s murder. Ms. Johnson specifically mentioned feeling pressured by the presence of law enforcement at her house as well as a discussion of the possible destruction of her belongings during a search. Importantly, however, she also acknowledged during a pretrial deposition that she would have voluntarily consented to the entry anyway absent any such feelings of pressure.

Moreover, Ms. Johnson’s statements regarding pressure only relate to law enforcement’s first entry into her home for the purposes of apprehending Banks. Ms. Johnson subsequently drove to the police station on her own and, during an interview with law enforcement, conveyed the details of Banks’ statements to her regarding Ms. Volum’s, murder. During this interview, she orally and in writing consented voluntarily to law enforcement returning to her house to search for evidence related to Ms. Volum’s murder. She accompanied law enforcement back to her house and assisted in the search of her home by pointing out relevant evidence. And she expressly acknowledged during pretrial depositions that her consent to law enforcement’s second entry was voluntarily given without any threats or pressure.

Accordingly, because a motion to suppress ■ the evidence retrieved during the second .search would have been meritless, trial counsel cannot be deemed ineffective for failing to raise it. We affirm the denial of relief.

B. DNA Evidence

Next, Banks alleges that trial counsel was ineffective for failing to object to the admission of DNA evidence without the presentation of population frequency statistics. However, because Banks has failed to demonstrate deficiency .and because the jury did hear testimony regarding the significance of the DNA matches, we affirm the denial of relief.

First, trial counsel made a reasonable strategic decision to not object to the non-presentation of population statistics. Trial counsel explained during the evidentiary hearing that he wanted to avoid the jury hearing that the population statistic of one in 56 quadrillion had been calculated. Trial counsel believed that this overwhelming statistic would leave the jury with no doubt of Banks’ guilt. Avoiding the presentation of this statistic 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). Therefore, Banks has failed to demonstrate deficiency.

Second, in Banks’ trial, the State’s DNA expert provided testimony regarding the quantitative and qualitative significance of the DNA matches. For example, Mr. Pollock testified that semen from genital, vulva vaginal, and rectal swabs of the victim matched Banks at all 13 loci plus the gender marker. Then, using DNA charts, Mr. Pollock explained to the jury how he viewed the DNA data as a series of peaks, which correspond to fragment sizes. Mr. Pollock also testified that “statistics are applied to the entire profile to determine how common that profile is” and that “[j]ust because one locus is common, by the time you get to 13 it becomes extremely rare, extremely.”

Accordingly, trial counsel was not ineffective for failing to object to the admission of DNA testimony without the presentation of population statistics, statistics that would have included a one in 56 quadrillion match. We affirm the trial court’s denial of this claim.

C. Motive to Testify

Next, Banks argues that trial counsel was ineffective for attempting to impeach Sudie Johnson’s motive for testifying against him at trial. During cross-examination, trial counsel asked Ms. Johnson if she stopped supporting Banks because he was having sex with Ms. Volum. Ms. Johnson responded that she stopped supporting Banks after seeing a video of him stabbing another individual in an unrelated crime. However, this Court affirms the denial of relief.

First, Banks has not established deficiency. It was sound trial strategy to attempt to impeach Ms. Johnson, one of the State’s most important witnesses, by suggesting that she was testifying against Banks as revenge for his unfaithful relationship with Ms. Volum. Thus, trial counsel’s line of questioning was not outside the “broad range of reasonably competent performance under prevailing professional standards.” Id. (quoting Maxwell, 490 So.2d at 932).

Second, Banks has not established prejudice. During the guilt phase, the jury was aware that Banks had committed other felonies since Banks acknowledged during his guilt phase testimony that he had nine felony convictions. Furthermore, after Ms. Johnson’s statement, the trial court issued a curative instruction and polled the jurors to ensure that they could follow the instruction and disregard Ms. Johnson’s remark. Banks, 46 So.3d at 998. Thus, there is not “a reasonable probability that, ‘absent the [remark], the factfinder would have [had] a reasonable doubt respecting guilt.’ ” Dennis, 109 So.3d at 690 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). In other words, our confidence in the outcome is not undermined. See id.

Accordingly, we affirm the postconviction court’s denial of relief.

D. Felony, Letters, and Relationships

Banks next claims that trial counsel was ineffective for failing to impeach Sudie Johnson with her felony conviction and letters she wrote to Banks while he was incarcerated. Banks also asserts that trial counsel was ineffective for failing to question Detective Bodine about his interviews of three men with whom the victim had relationships. We affirm the denial of this claim.

First, Banks has failed to demonstrate deficiency. The record reflects that trial counsel did ask Sudie Johnson on cross-examination how many times she had been convicted of felonies and that trial counsel referred to Ms. Johnson as a convicted felon during closing arguments. Counsel cannot be considered deficient for failing to do what he actually did. Moreover, trial counsel made a strategic decision to not use the letters Ms. Johnson wrote to Banks since those letters, while perhaps containing information that might have been somewhat helpful, also included damaging information about Banks. Additionally, trial counsel pursued a reasonable strategy during his cross-examination of Detective Bodine. To cast doubt on the thoroughness of the investigation, trial counsel chose to highlight possible avenues that were not investigated rather than question the detective about what leads were investigated. Counsel’s strategic decisions were 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).

Second, Banks has not established prejudice. The information in Ms. Johnson’s letters that allegedly could have been used for impeachment purposes included the facts that Ms. Johnson was angry with Banks due to his infidelity and that she felt pressured by law enforcement. However, during the trial, Ms. Johnson specifically denied that her anger with Banks is what motivated her to cooperate with law enforcement. She also testified that her cooperation was voluntary. And the jury learning that law enforcement interviewed (and apparently ruled out) three other men who had relationships with Ms. Volum before pursuing charges against Banks would not have been very beneficial to Banks’ case. Accordingly, Banks has not demonstrated a reasonable probability of a different outcome. In other words, our confidence in the outcome is not undermined.

Accordingly, we affirm the postconviction court’s denial of this claim.

E. Cashier’s Testimony

Banks also asserts that trial counsel was ineffective for failing to present the testimony of the cashier who handled Banks’ and Ms. Volum’s purchase at the grocery store before her murder. However, we affirm the denial of this claim.

Banks has failed to establish deficiency. Trial counsel testified during the evidentia-ry hearing that he had concerns that this testimony could possibly support the pecuniary gain aggravator and highlight Banks’ selling of drugs to the victim. Avoiding these possible implications of the cashier’s testimony is not outside the “broad range of reasonably competent performance under prevailing professional standards.” Id. (quoting Maxwell, 490 So.2d at 932).

Additionally, Banks failed to establish prejudice. The jury learned from other evidence that Banks and Ms. Volum went together to the grocery store shortly before her murder, that Ms. Volum purchased items, and that she was unsuccessful in her attempts to receive cash back as part of the transaction. While the cashier’s testimony may have corroborated Banks’ testimony that there was no animosity between Banks and Ms. Volum, it also would have supported the State’s theory that the murder was payback and that the victim could not access money to pay Banks. At best, the cashier’s testimony would have had minimal beneficial effect. Therefore, there is no reasonable probability of a different verdict had trial counsel presented the cashier’s testimony. In other words, our confidence is not undermined.

Accordingly, we affirm the postconviction court’s denial of this claim.

F. Prosecutor’s Comments

Additionally, Banks asserts that trial counsel was ineffective for failing to object to allegedly improper prosecutorial comments, specifically comments related to the nature of Banks’ and the victim’s sexual interaction on the night of the murder, the veracity of Sudie Johnson’s testimony, and Banks’ nine felony convictions. However, because the comments were not improper when read in context, we affirm the denial of relief. See Hildwin v. State, 84 So.3d 180, 191 (Fla. 2011) (“In order to prevail on an ineffective assistance ' of counsel claim on this ground, [the defendant] ‘must first show that the comments were improper or objectionable and that there was no tactical reason for failing to object.’ Stephens v. State, 975 So.2d 405, 420 (Fla. 2007). Second, he must demonstrate prejudice.”).

First, Banks asserts that the prosecutor improperly alleged that a sexual battery occurred the night of the murder rather than consensual sex. However, the prosecutor emphasized during opening and closing arguments that the State could not prove sexual battery beyond a reasonable doubt and that it was not the jury’s job to determine whether a sexual battery had occurred. When read in context, the prosecutor mentioned a possible sexual relationship during his opening statement to'explain to the jury that Ms.' Volum may have known Banks. And, when read in context, it is clear that the focus of the prosecutor’s closing argumént was that -whomever had sex with Ms. Volum the night of the murder (whether it was consensual or not) was the individual most likely to have killed her since Ms. Volum was found naked in bed. Moreover, it was an accurate reflection of the record to assert that Banks’ statements constituted the evidence of consensual sex. And because the defense argued that the sex was consensual, the State could counter argue that it may have been otherwise even if sexual battery could not be proven beyond a reasonable doubt. Therefore, the prosecutor’s statements about the nature of the sexual relationship were not improper, and trial counsel was not ineffective for failing to object.

Second, Banks asserts that trial counsel should have objected when the prosecutor asked Banks on, cross-examination whether Sudie Johnson was lying during her testimony and whether Banks had an interest in the outcome of the case. However, Banks put his credibility at issue when he testified during the guilt phase, and Banks’ testimony directly disputed many aspects of Sudie Johnson’s testimony. In fact, on direct, trial counsel asked Banks why Sudie Johnson was lying and implicating him. Therefore, the prosecutor’s line of questioning on cross-examination was not improper. Trial counsel cannot be deemed ineffective for failing to raise a meritless objection.

Third, Banks claims that trial counsel should have objected when the State referred to Banks’ felony convictions during closing arguments. However, a witness, including a defendant, may be impeached with felony convictions. And discussing Banks’ credibility in light of his felony convictions during closing constituted comments upon facts in evidence. See Conahan v. State, 844 So.2d 629, 640 (Fla. 2003) (“In closing argument, counsel is permitted to review the evidence and fairly discuss and comment upon properly admitted testimony and logical inferences from that evidence.”).

Accordingly, because the prosecutor’s comments were not improper when considered in context, trial counsel cannot be deemed ineffective for failing to object. We affirm the denial of this claim.

G. Principals Instruction

Banks further alleges that appellate counsel was ineffective for failing to claim on direct appeal that the trial court abused its discretion by instructing the jury on the principal theory. However, we deny this habeas claim.

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)).

Furthermore, 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 nonfrivolous. 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 Banks’ case, the, trial court instructed the jury regarding the principal theory as follows:

Now, principals. If the defendant helped another person or persons commit a crime. The defendant is a principal and must be treated as if he had done all the things the other person or persons did, if, one, the defendant had a conscious intent that the criminal act be done and, two, the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit the crime.
To be a principal, the defendant does not have to be present when the crime is committed.

This Court has explained that “[c]harges of the Court must be based upon facts in proof, and if not so based upon the facts in proof[,] it is error to give them; and the court below erred in giving the quoted charge.” Bradley v. State, 82 Fla. 108, 89 So. 359, 359 (1921); see also Buford v. Wainwright, 428 So.2d 1389, 1390-91 (Fla. 1983) (“[0]nly instructions which have support in the record should be given to the jury.”). And the First District has explained the following regarding the principals instruction in particular:

The principals instruction may be given if the evidence adduced at trial supports such an instruction. See Masaka v. State, 4 So.3d 1274, 1284 (Fla. 2d DCA 2009); Wells v. State, 967 So.2d 418, 419 (Fla. 1st DCA 2007); Lewis v. State, 693 So.2d 1055, 1057 (Fla. 4th DCA 1997); Thomas v. State, 617 So.2d 1128, 1128 (Fla. 3d DCA 1993). If there is no evidence that would support the principals theory, then the reading of the instruction is error. See id. Such an error is not harmless when it is capable of misleading the jury in such a way that the defendant’s right to a fair trial is prejudiced.

McGriff v. State, 12 So.3d 894, 895 (Fla. 1st DCA 2009).

Here, the trial court did not abuse its discretion in giving the principals instruction because there was evidence presented that Banks acted in concert with someone else in committing the murder. Cf. Lovette v. State, 654 So.2d 604, 606 (Fla. 2d DCA 1995) (“The trial court committed reversible error in instructing the jury on the principal theory because there was no evidence that Mr. Lovette acted in concert with anyone in committing the theft or the burglary.”). Specifically, the State presented evidence of a print in blood at the crime scene from an unidentified individual, which supports that another individual was with Banks at the crime scene at the time of the murder. Moreover, the State presented surveillance video of Banks driving the victim’s vehicle with an unidentified individual sitting in the passenger’s seat. Banks himself stated that another man he named as “Bo” was present with him at the victim’s home the night of the murder and was with him in her vehicle when he drove to the ATM and attempted to use the victim’s ATM card. Therefore, because there was evidence in the record supporting that Banks acted in concert with someone else, the trial court did not abuse its discretion in giving the principal theory instruction. Cf. Masaka, 4 So.3d at 1284 (“While it is true that the trial court has broad discretion in instructing the jury, see Kearse v. State, 662 So.2d 677, 682 (Fla. 1995), it is also true that a trial court errs when it gives an instruction that has no factual basis in the record!.]”).

Accordingly, appellate counsel cannot be deemed ineffective for failing to raise this nonmeritorious claim on direct appeal. We deny this habeas claim.

H. Hurst

Finally, we consider whether Banks 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 by a vote of ten to two, we conclude that Banks’ death sentence violates Hurst. See Kopsho v. State, 209 So.3d 568, 570 (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 State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

Because the jury in this case recommended death by a vote of ten to two, “we cannot determine that the jury unanimously found that the aggravators outweighed the mitigation.” Kopsho, 209 So.3d at 570. “We can only determine that the jury did not unanimously recommend a sentence of death.” Id. Therefore, because we cannot say that there is no possibility that the error did not contribute to the sentence, the error in Banks’ sentencing was not harmless beyond a reasonable doubt.

Accordingly, we vacate the death sentence 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 Banks’ postconviction guilt phase claims, deny his habeas petition, vacate his death sentence, 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 sentence 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 Banks’ penalty phase claims.

      . Because we remand for a new penalty phase, we do not address the prosecutorial commerit during the penalty phase that Banks alleges was improper.

      . We also deny Banks' cumulative error claim. See Israel v. State, 985 So.2d 510, 520 (Fla. 2008).