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

text:
    Albert SALEEBY, Petitioner, v. ROCKY ELSON CONSTRUCTION, INC., Respondent.
    No. SC07-2252.
    Supreme Court of Florida.
    Jan. 30, 2009.
    Rehearing Denied Feb. 25, 2009.

      Brett C. Powell, Mark Hicks, and Dinah Stein of Hicks, Porter, Ebenfeld, and Stein, P.A., and Edward G. Rubinoff and Andrew M. Moss of Kutner, Rubinoff and Moss, P.A., Miami, FL, for Petitioner.
    Kimberly A. Ashby of Akerman Senter-fitt, Orlando, FL, for Respondent.
   PER CURIAM.

We have for review the decision of the Fourth District Court of Appeal in Saleeby v. Rocky Elson Construction, Inc., 965 So.2d 211 (Fla. 4th DCA 2007), review granted, 977 So.2d 577 (Fla.2008), which expressly and directly conflicts with the decision of the Third District Court of Appeal in Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Both sections 768.041 and 90.408, Florida Statutes (2006), prohibit the admission at trial of any evidence of settlement or dismissal of a defendant. The issue we decide is whether evidence of settlement may nevertheless be admitted to impeach a witness’s testimony. We hold that the unambiguous language of these statutes admits no exceptions and that violation of the prohibition is reversible error. For the reasons explained below, we quash the Fourth District’s decision.

I. FACTS AND PROCEDURAL HISTORY

In December 1999, the petitioner, Albert Saleeby, was injured when roof trusses on the construction site at which he was working collapsed on him, rendering him a paraplegic. After collecting workers’ compensation benefits from his employer, Labor for Hire, a company that supplies temporary workers, Saleeby filed a negligence action against Rocky Elson Construction Co. (Elson), the construction company that installed the trusses, and A-lRoof Trusses Ltd. (A-1), the company that manufactured them.

Before trial, Saleeby deposed defendant A-l’s president, John Herring, regarding his review of the jobsite and his opinion of the cause of the truss collapse. Subsequently, A-l settled with Saleeby and was dismissed as a party defendant. Saleeby then filed a motion in limine to exclude evidence at trial of A-l’s prior status as a defendant and of the settlement. The trial court entered an “Agreed Order,” stating that Saleeby and Elson agreed to the exclusion of any evidence of settlement, settlement amounts, and A-l’s previously having been a defendant in the suit.

The suit proceeded to jury trial against Elson on the sole issue of liability, and Elson raised the affirmative defense of workers’ compensation immunity. Saleeby sought to show that the collapse resulted from Elson’s failure to follow safety requirements and industry standards in installing the trusses, particularly as to adequate bracing. To that end, Saleeby called John Herring, who testified regarding his observations of the accident site and what caused the trusses to collapse. He opined that the truss collapse resulted from Elson’s faulty installation, not a manufacturing defect. The trial court overruled Elson’s objection that Herring, who was offered as a fact witness, should be prohibited from testifying essentially as an expert witness on industry building standards and code requirements and Elson’s conformity to them. However, the trial court granted Elson’s motion that it be allowed to impeach Herring with evidence that A-l had previously been a defendant and had settled with Saleeby. After hearing argument, the circuit court determined that the evidence went to the witness’s bias because Herring’s trial testimony was based on the opinions he formulated when A-l was a defendant in the case. Accordingly, during cross-examination, Herring admitted that A-l had previously been a defendant in the lawsuit, that money was paid to settle the suit, and that Herring had subsequently agreed to testify for Sa-leeby. After hearing all of the evidence at trial, the jury found that Saleeby was not entitled to recover damages from Elson because the company was immune from liability in tort under Florida’s workers’ compensation statute. See § 440.11(1), Fla. Stat. (1999).

In his appeal to the Fourth District, Saleeby argued, as he did in the trial court, that sections 768.041 and 90.408, Florida Statutes (2006), prohibited the admission of evidence of settlement and that violation of these statutes is clear reversible error. The district court, however, held that the trial court did not abuse its discretion in admitting the evidence because “Herring had first rendered this opinion when he was a defendant with a pecuniary interest in the case.” Saleeby, 965 So.2d at 215. The Fourth District reasoned as follows:

Section 90.408 excludes evidence of a settlement to prove liability; courts may, however, admit settlement-related evidence if offered for other purposes, such as proving witness bias or prejudice. See Dosdourian v. Carsten, 624 So.2d 241, 247 n. 4 (Fla.1993) (evidence of a settlement with a codefendant who remained in the case was admissible since “the jury was entitled to weigh the codefendant’s actions [at trial] in light of its knowledge that such a settlement has been reached.”). Section 90.408 was enacted to protect against the prejudicial effect that settlement evidence may have on a jury. However, when settlement evidence goes to a witness’s “motivation[ ], interest, and position” the probative value of such proof of bias outweighs the danger of prejudice. See Ehrhardt, Florida Evidence § 408.1, Fla. Stat. (2003 ed.) (citing Dosdourian, 624 So.2d at 241; § 90.403, Fla. Stat. (2006)). A witness’s bias or improper motive is always an important factor to a jury’s credibility determination. See Russ v. City of Jacksonville, 734 So.2d 508, 511 (Fla. 1st DCA 1999).
Here, A-l Roof Trusses had a financial stake in the matter which could have impacted its president’s expert opinion. Evidence of the prior settlement was properly admitted to show potential bias.

Saleeby, 965 So.2d at 215-16. Thus, finding no merit in this or any of Saleeby’s other claims, the district court affirmed the adverse judgment in the case.

II. CONFLICT JURISDICTION

Saleeby petitioned this Court for review, alleging express and direct conflict with Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989), regarding the admissibility of evidence of settlement at trial to demonstrate the bias of a testifying witness. As explained below, these cases are in express and direct conflict regarding the admissibility of evidence of settlement at trial to demonstrate the bias of a testifying witness, and this Court has jurisdiction. See art. V, § 3(b)(3), Fla. Const.

In Ellis, Darryl Ellis sued Jefferson Stores, Inc., and Drs. Kirsner and Weis-brot for dental malpractice. Ellis voluntarily dismissed Dr. Kirsner in return for a waiver of fees and costs but nevertheless called him as a witness at trial. Id. at 16. During cross-examination, Dr. Kirsner admitted that he had previously been a defendant in the case. Id. The trial court denied Ellis’s immediate motion for mistrial and Ellis’s objections to defense counsel’s continual references to Dr. Kirsner’s former party defendant status throughout the cross-examination. On appeal, the Third District reversed the jury verdict and remanded for a new trial. Id. Citing section 768.041’s prohibition on informing a jury that a witness was a prior defendant in the case, the district court held that “[ajdmission of such testimony, even to attack the former defendant’s credibility, is clear error and requires reversal.” Id.

In both cases, the plaintiff dismissed a defendant from the case and then called the former defendant to testify. In both cases, the trial court permitted the remaining defendant in the case to use evidence of the witness’s former party status to impeach the witness in contravention of a statute. Finally, in both cases, the district courts were presented with the same question of law regarding the admissibility of such evidence to impeach a witness, but they reached opposite conclusions. The Fourth District found no error and held that despite a statutory prohibition, the evidence was admissible to show witness bias, Saleeby, 965 So.2d at 216, but the Third District held that admission of such evidence to demonstrate witness bias was “clear error,” requiring reversal. Ellis, 550 So.2d at 16.

III. ANALYSIS

Petitioner argues that the trial court’s admission of evidence of settlement violated clear statutory law barring such admission for any purpose. Respondent contends, however, that an unwritten exception to the prohibition applies to the facts of this case. As we explain below, the question of whether evidence that a previous defendant settled out of a lawsuit is admissible for purposes of impeachment is readily answered by reading the plain language of the applicable statutes.

“It is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis.” Knowles v. Beverly Enterprises-Flu., Inc., 898 So.2d 1, 5 (Fla.2004). Thus, to determine the meaning of a statute, we first look to its plain language. McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1208 (Fla.2006). When the statute is clear and unambiguous, “there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).

Two Florida statutes specifically address the issue of disclosing evidence of settlement to the jury. Section 768.041, Florida Statutes (2006) provides as follows:

(1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.
(2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.
(3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made knoivn to the jury.

(Emphasis added.) The meaning of paragraph (3) of the statute could not be clearer. The statute plainly and unambiguously prohibits disclosure to the jury of any evidence of settlement or that a former defendant was dismissed from the suit. Similarly, another statute provides:

Evidence of an offer to compromise a claim toldch was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

§ 90.408, Fla. Stat. (2006) (emphasis added). The meaning of this statute is equally clear. No evidence of settlement is admissible at trial on the issue of liability.

These statutes promote Florida’s public policy favoring settlement by excluding such prejudicial evidence at trial. See City of Coral Gables v. Jordan, 186 So.2d 60, 63 (Fla. 3d DCA), aff'd, 191 So.2d 38 (Fla.1966). The Fourth District acknowledged this purpose in Saleeby but nevertheless carved out an exception where the evidence is “offered for other purposes, such as proving witness bias or prejudice.” Saleeby, 965 So.2d at 215. The district court erroneously cites our decision in Dosdourian v. Carsten, 624 So.2d 241 (Fla.1993), as supportive of this principle.

In Dosdounan, we answered a certified question regarding whether a nonsettling defendant may inform the jury that the plaintiff reached a settlement with another defendant who was required to continue to participate in the law suit. Dosdourian, 624 So.2d at 242. Dosdourian introduced the settling defendant’s deposition at trial, but she did not testify. Further, Carsten’s motion to dismiss her as a defendant was denied. The factual scenario was closely akin to a so-called “Mary Carter Agreement,” which we previously had held should be disclosed to the jury. See Ward v. Ochoa, 284 So.2d 385 (Fla.1973). Before addressing the question, we first reconsidered the validity of Mary Carter Agreements and described a litany of unfair and unethical practices fostered by such agreements, including that they require lawyers to “make misrepresentations to the court and to the jury in order to maintain the charade of an adversarial relationship.” Dosdourian, 624 So.2d at 244. Further, we acknowledged that our solution in Ward of requiring disclosure of such agreements to the jury “can be a double-edged sword to the extent that it conveys a message to the jury that at least one of the defendants felt that the plaintiffs claim was meritorious.” Dosdourian, 624 So.2d at 245. Accordingly, to “eliminate the sinister influence” of such agreements we “outlaw[ed] their use” and “include[d] within our prohibition any agreement which requires the settling defendant to remain in the litigation, regardless of whether there is a specified financial incentive to do so.” Id. at 246.

Because our prohibition of Mary Carter Agreements was prospective in nature, we necessarily addressed the facts in Dos-dourian “upon the premise that the settlement agreement was legal” under our prior precedent. Id. Carsten had sued DeMario and Dosdourian in negligence but settled with DeMario before trial and required that she remain a defendant participating in the litigation. Id. at 242. The trial court ruled that evidence of settlement could not be disclosed to the jury. On review here, Carsten argued that evidence of the settlement agreement fell within section 768.041(3)’s prohibition on disclosure of settlements to the jury, and Dosdourian countered that “the jury was still misled by not knowing that Carsten had settled his claim against DeMario while DeMario remained in the litigation.” Id. at 247. We determined that the settlement agreement in the case requiring the defendant to continue to participate fell within “the ‘Mary Carter’ line of cases” that required disclosure to the jury. We further explained the prejudice in such a situation as follows:

[Ejven though a defendant may be required to remain in the litigation, once that defendant has agreed to settle there is simply no longer any incentive to actively defend the case. In fact, it is no longer even in the settling defendant’s interest to put forth further effort or incur additional expense in the litigation. Simple inaction on the part of one defendant can adversely affect the code-fendaoit.

Id. (emphasis added). Then, in a footnote, we added that “where, as here, there was a settlement, the jury was entitled to weigh the codefendant’s actions in light of its knowledge that such a settlement has been reached.” Id. at 247 n. 4. The Fourth District cited this footnote to support its determination of an exception to the prohibitory statutes at issue here.

As should be apparent from the foregoing discussion, our decision in Dosdourian addressed an entirely different situation than the one presented here. We did not apply section 768.041(3), nor did we create an exception to it. We expressly found the settlement agreement requiring the defendant to remain and participate in the litigation was a Mary Carter style agreement, subject to our prior requirement of disclosure. In Dosdourian, however, we completely prohibited the use of such agreements prospectively. Accordingly, our decision requiring admission of settlement evidence in Dosdourian in no way permits the evidence of settlement to be entered in this case. In the case on review, the settling defendant was dismissed from the case and did not continue to participate as a defendant in the case. None of the concerns of fraud and unethical conduct propagated by Mary Carter Agreements are present here. Rather, the facts of the case fall entirely within the purview and prohibitions of sections 768.041 and 90.408.

As stated previously, these statutes promote Florida’s public policy to encourage settlement. Although factually distinguishable from this case, Jordan demonstrates the prejudice that results from the erroneous admission of evidence of settlement. There, a passenger on a motor scooter was killed when it collided with an automobile at an intersection where a city-police officer was directing traffic. Jordan, 186 So.2d at 61. The decedent’s mother sued the city. At trial, the city sought to show that the death resulted solely from the negligence of the scooter’s operator. The plaintiff called the driver to testily and during redirect elicited testimony that the city had settled with him to show that the witness had no interest in the litigation. Id. at 61-62. Citing the predecessor statute to section 768.041, the district court stated:

Section 54.28, Fla. Stat., F.S.A. prohibits the revelation to the jury of a settlement by an injured party with one of several tort feasors. It would seem to be just as damaging to a fair trial to permit the injured party to reveal to the jury that the alleged tort feasor has settled with another injured party in the same accident.

Id. at 62 (footnote and citation omitted). The Third District explained that informing the jury of the settlement in the case was “immediately and completely destructive to the possibility of a fair trial between the plaintiff and the defendant.” Id. Accordingly, the appellate court found that admission of the evidence of settlement was reversible error and remanded for new trial. Id. at 64.

Jordan and other cases fully illustrate the prejudice that results when sections 768.041 and 90.408 are violated: “[I]t is a practical impossibility to eradicate from the jury’s minds the considerations that where there has been a payment there must have been liability.” Jordan, 186 So.2d at 63 (quoting Fenberg v. Rosenthal, 348 Ill.App. 510, 109 N.E.2d 402, 405 (1952)); see, e.g., Ricks v. Loyola, 822 So.2d 502, 508 (Fla.2002) (affirming trial court’s grant of new trial where counsel made an “empty chair” argument implying a settlement was reached with others); Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 256 (Fla. 1st DCA 1996) (reversing and remanding for new trial where counsel’s arguments suggesting a settlement with others were “patently prejudicial and may have influenced the jury to return a verdict in favor of Toys ‘R’ Us”); Henry v. Beacon Ambulance Serv., Inc., 424 So.2d 914, 916 (Fla. 4th DCA 1983) (reversing and remanding for new trial where disclosure of settlement to jury violated section 768.041(3)).

From the foregoing discussion, it is clear that violation of sections 768.041 and 90.408 is reversible error. To escape the consequence of this conclusion, respondent attempts to distinguish this case. Respondent argues (1) that any error in this case was invited, and (2) that the statutes are not violated if the former defendant is called to testify as an expert witness. We address these arguments in turn.

As explained previously, Saleeby obtained an agreed order to prohibit admission of any evidence of settlement or former defendant status. Subsequently, however, the trial court reversed itself, ruling such evidence admissible. The trial court agreed, however, that Saleeby’s objection was not waived if he chose to minimize the impact of the evidence by admitting it himself. Accordingly, on direct examination, counsel for Saleeby elicited from Herring the fact that A-l was a party to the case at the time he gave his deposition. Then, on cross-examination, Herring admitted that A-l had paid to settle with Saleeby and had been dismissed as a defendant. As is clear from our decision in Sheffield v. Superior In surance Co., 800 So.2d 197 (Fla.2001), Saleeby did not waive his objection, and his presentation of the contested evidence did not constitute invited error. See Sheffield, 800 So.2d at 203 (“We hold that once a trial court makes an unequivocal ruling admitting evidence over a movant’s motion in limine, the movant’s subsequent introduction of that evidence does not constitute a waiver of the error for appellate review.”).

Second, Elson claims that sections 768.041 and 90.408 do not apply when the former defendant testifies as an expert witness for the plaintiff. In this case, Herring was called as a fact witness. The trial court overruled Elson’s objection that 'Herring was testifying essentially as an expert witness by opining about code requirements and the cause of the accident. The circuit court, however, allowed Elson to impeach Herring with evidence of the settlement. We find that the plain language of the statutory provisions at issue here do not prohibit the admission of evidence based on how the evidence comes in. That is, the prohibition is not imposed only on witnesses or categories of witnesses. The statutes instead expressly prohibit the facts from being transmitted to the jury at all. Accordingly, we reject Elson’s proposed expert witness exception to these statutes. Based on our previous discussion, we also reject without further discussion Elson’s attendant suggestion that Dosdourian required the disclosure.

IV. CONCLUSION

As explained above, we find that the plain language of sections 768.041(3) and 90.408 expressly prohibits the admission at trial of evidence of settlement and that a defendant has been dismissed from the suit. These statutes do not contain an implicit exception permitting such evidence to be used for impeachment purposes, and the district court erroneously relied on our opinion in DosdouHan in finding one. Accordingly, we quash the Fourth District’s decision in this case and remand with directions that petitioner be granted a new trial. We approve the Third District’s decision in Ellis.

It is so ordered.

QUINCE, C.J., PARIENTE and LEWIS, JJ., and ANSTEAD, Senior Justice, concur.

CANADY, J., dissents with an opinion.

POLSTON, J., dissents with an opinion, in which WELLS, J., concurs.

CANADY, J.,

dissenting.

I dissent from the majority’s decision to quash the Fourth District Court of Appeal’s decision. For the reasons explained below, I would hold that the evidence concerning A-l’s prior status as a party defendant was properly admitted by the trial court. I would also hold that although the trial court erred in admitting evidence concerning the settlement, this error was harmless.

Evidence of A-l’s prior status as a defendant was admissible to attack the credibility of John Herring by showing that he was biased. Section 90.608(2), Florida Statutes (2006), expressly authorizes the introduction of evidence to attack the credibility of a witness by “[s]howing that the witness is biased.” This statutory provision should not be ignored in the analysis of the evi-dentiary question at issue here.

In my view, section 768.04(3), Florida Statutes (2006), does not embody a rule that trumps all other relevant rules of evidence. Although Dosdourian v. Carsten, 624 So.2d 241 (Fla.1993), dealt with a fact pattern dissimilar to this case, it nonetheless clearly established the point that the rule of exclusion in section 768.041(3) is not invariably applied in derogation of other applicable rules or principles of law. Here, section 768.041(3) should not be applied in derogation of section 90.608(2).

The evidence of A-l’s prior status as a defendant was highly probative on the issue of Herring’s credibility as an expert witness on causation. In evaluating the credibility of expert opinion testimony, it is unquestionably relevant that the opinion testimony was first given in a deposition when A-l, the corporation of which Herring is president, was a defendant in the case. At the time of his deposition testimony, Herring had an obvious motivation to give testimony assigning blame to a defendant other than A-l. And he also had a clear motivation when testifying at the trial not to forswear his prior sworn deposition testimony.

It is true that the simple fact that A-l was the manufacturer of the trusses — a circumstance known to the jury — also pointed to bias on the part of Herring as A-l’s president. But A-l’s status as a defendant pointed to a more intense motivation on Herring’s part to give testimony that was unfavorable to Elson. The trial court did not abuse its discretion in concluding that precluding the jury from hearing evidence regarding A-l’s prior status as a defendant would have unfairly compromised the jury’s ability to judge the credibility of Herring. A reasonable judge could decide that the “probative value” of the evidence of A-l’s prior status as a defendant was not “substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. (2006).

The exposure of the fact that A-l had somehow exited the lawsuit necessarily accompanied the exposure of Herring’s bias arising from A-l’s prior status as a defendant. Assuming that the fact that A-l had exited the lawsuit falls within the scope of section 768.041(3), I would nevertheless hold that allowing the jury to consider the highly probative evidence of Herring’s bias was not error. By the choice of Herring as an expert witness, the plaintiff unilaterally created the situation in which a choice was required between applying section 768.041(3) and applying section 90.608(2). I would conclude that a party who chooses to present the expert opinion testimony of a witness whose credibility is subject to impeachment for bias should not be permitted to use section 768.041(3) as a cloak to hide from the jury facts relevant to the bias of that witness.

The evidence of the settlement itself is a different matter. The fact of the settlement is not relevant to the credibility of Herring. The existence of the settlement has no probative value regarding Herring’s bias. An inference cannot reasonably be drawn that Herring would harbor a bias either in favor of Saleeby or against Elson based on the bare fact that A-l had been constrained to pay a sum of money to Saleeby in settlement of a claim brought by Saleeby against A-l. Why would it be thought that Herring would be biased in favor of someone who had sued his company? Why would it be thought that a settling defendant would be biased against a non-settling defendant? The inference of bias from the bare fact of the settlement is irrational.

And the holding in Dosdourian provides no support for the admission of the settlement agreement. The basis for the decision in Dosdourian was the fact that the settling defendant had remained in the lawsuit. In concluding that the settlement agreement was admissible, the Court observed that “ ‘the integrity of our justice system is placed in question when a jury charged to determine the liability and damages of the parties is deprived of the knowledge that there is, in fact, no actual dispute between two out of three of the parties.’ ” Dosdourian, 624 So.2d at 247 (quoting Dosdourian v. Carsten, 580 So.2d 869, 872 (Fla. 4th DCA 1991)). The Court reasoned that “the jury was entitled to weigh the [settling] codefendant’s actions in light of its knowledge that such a settlement has been reached.” Id. n. 4. The rationale of Dosdounan thus has no application here because A-l, the settling code-fendant here, did not remain in the lawsuit.

I therefore agree with the majority that the trial court erred by admitting evidence regarding the settlement. But I would not treat that error as per se reversible. I would disapprove Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989), to the extent that it suggests that the erroneous admission of evidence of a settlement is not subject to harmless error analysis. See BCK Land, Inc. v. Cook, 119 So.2d 717, 719 (Fla. 2d DCA 1960) (finding harmless error regarding admission of settlement evidence in violation of section 54.28, Florida Statutes (1957), the predecessor statute of section 768.041).

A reviewing court may “set aside or reverse a judgment, or grant a new trial on the basis of [erroneously] admitted or excluded evidence” only “when a substantial right of the party [appealing] is adversely affected.” § 90.104(1), Fla. Stat. (2006). When a judgment is challenged based on “the improper admission or rejection of evidence,” the judgment will be reversed only if “after an examination of the entire case” the reviewing court concludes “that the error complained of has resulted in a miscarriage of justice.” § 59.041, Fla. Stat. (2006). Accordingly, Saleeby is entitled to prevail on appeal only if a substantial right of Saleeby has been adversely affected and a miscarriage of justice has occurred.

Saleeby’s case turned on whether Elson was immune from tort liability as an employer pursuant to section 440.11(1), Florida Statutes (1999). Saleeby contended that Elson had lost its immunity because it engaged in conduct which was substantially certain to result in injury to Saleeby. See Turner v. PCR, Inc., 754 So.2d 683, 691 (Fla.2000) (holding that the intentional tort exception to employer immunity “includes an objective standard to measure whether the employer engaged in conduct which was substantially certain to result in injury”).

To obtain relief against Elson, Saleeby had to show that a reasonable person should have known or would have understood that Elson’s conduct in temporarily bracing the trusses was substantially certain to cause injury or death. See Turner, 754 So.2d at 688. Saleeby’s strategy at trial was to show that Elson did not fully comply with standard requirements for the temporary bracing of trusses. Accordingly, expert testimony was presented that, for example, Elson did not in all instances use the materials recommended for particular parts of the temporary G23 bracing. The experts testified that the closer one adheres to the standards the less likely the trusses are to collapse. It was also shown at trial that Mr. Elson acknowledged that before commencing work, he had not read the standard summary sheet that accompanies all trusses and which contains guidance regarding truss installation. That summary sheet warns that failure to follow its recommendations can result in injury. The summary sheet specifically recommends that an engineer design the temporary bracing for trusses exceeding a specified length. At trial it was shown that neither the general contractor (Tektonica) nor Elson followed this recommendation.

The evidence at trial, however, showed that the general contractor hired Elson to install the trusses for the arena and supplied all materials for them installation. Mr. Elson testified that he is an expert in truss installation. He and his crew had years and even decades of experience installing trusses, including experience installing trusses of the size used in the arena. The evidence established that Mr. Elson and his crew had never previously experienced a roof truss collapse. According to their testimony, they applied their knowledge and years of experience in installing the trusses with the temporary bracing throughout the arena. The testimony concerning this prior experience went uncontradicted. It was also undisputed that no other trusses in the arena collapsed. Further, after the accident El-son’s crew viewed the truss manufacturer’s videotape regarding installation, and then they installed without incident the replacement trusses the same way they had previously installed all of the other trusses in the arena.

Accordingly, there was no prior similar accident, no effort by Elson to conceal a danger from the workers, and no other circumstance which provided a basis for the jury to conclude that Elson had engaged in conduct that should be treated as an intentional tort. In sum, Saleeby failed to present evidence from which the jury could conclude that Elson “engaged in conduct which was substantially certain to result in injury,” Turner, 754 So.2d at 691, a conclusion which could only be supported by “a showing greater than ‘gross negligence,’ ” Id. at 687 n. 4.

Based on the record here, there is no basis to conclude that the trial court’s error in admitting evidence regarding the settlement was a harmful error. The requisite prejudice to support overturning the judgment based on the jury’s verdict can be established neither under a harmless error standard requiring a showing of a reasonable probability of a result more favorable to the appellant if the error had not occurred, see Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979), nor under a standard requiring a showing that the appellant might have obtained a more favorable result but for the error, see National Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000).

I therefore would approve the result reached by the Fourth District.

POLSTON, J.,

dissenting.

I respectfully dissent. Unlike the majority, I do not believe that sections 90.408 and 768.041, Florida Statutes (2006), prohibit the admission of evidence of settlement or dismissal of a defendant when such evidence is offered to demonstrate that a witness is biased or prejudiced. As Professor Ehrhardt explains,

Evidence of prior settlements or offers to compromise is admissible to impeach a witness or to show the witness is biased or prejudiced. In Dosdourian v. Carsten[, 624 So.2d 241 (Fla.1993),] the court imposed an affirmative obligation to admit evidence that a defendant remaining in the action had settled the matter so that the jury was aware of the motivations, interest, and position of the settling party. Although sections 46.015 and 768.041(3) of the Florida Statutes contain broad language prohibiting any admissibility of evidence of a release or settlement which was earlier construed to bar evidence of a settlement offered to prove bias or interest of the witness, the Florida Supreme Court implicitly overruled those cases in Dos-dourian.

Charles W. Ehrhardt, Florida Evidence, § 408.1, at 308-09 (2008) (footnotes omitted).

More specifically, section 90.408, Florida Statutes (2006), provides:

Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

(Emphasis added.) Thus, the plain language of section 90.408 prohibits the admission of evidence of compromises and offers of compromise only when such evidence is offered “to prove liability or absence of liability for the claim or its value.” § 90.408, Fla. Stat. And, under Florida’s Evidence Code and this Court’s precedent, evidence that is inadmissible when offered for one purpose may be admissible when offered for a different purpose. See § 90.107, Fla. Stat. (2006) (“When evidence that is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, is admitted, the court, upon request, shall restrict such evidence to its proper scope and so inform the jury at the time it is admitted.”); Breedlove v. State, 413 So.2d 1, 6 (Fla.1982) (“Merely because a statement is not admissible for one purpose does not mean it is inadmissible for another purpose.”). Therefore, while evidence of a settlement is inadmissible to prove liability or the value of a claim pursuant to section 90.408, such evidence is admissible for other purposes, such as to prove the bias or prejudice of a witness. See Bankers Trust Co. v. Basciano, 960 So.2d 773, 780 (Fla. 5th DCA 2007) (“If the evidence is offered for another purpose, the evidence is not barred by section 90.408 and will be admissible if it is relevant to prove a material fact or issue, subject to section 90.403.”); Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 925 (Fla. 2d DCA 2000) (“Section 90.408 excludes evidence of settlement negotiations only when the evidence is offered to prove liability, the absence of liability, or value. Thus, evidence of settlement negotiations is admissible to establish other relevant facts.”); see also Agan v. Katzman & Korr, P.A., 328 F.Supp.2d 1363 (S.D.Fla.2004) (holding that settlement documents were admissible under both section 90.408 and Federal Rule of Evidence 408 because the documents were offered not to establish liability, but to establish violation of consumer credit laws). “The concept of limited admissibility applies to evidence of settlement and compromise negotiations.” Ehrhardt, § 408.1, at 309.

In contrast to section 90.408, section 768.041 includes a more general prohibition against admitting evidence of a settlement. Specifically, section 768.041(3), Florida Statutes (2006), provides that “[t]he fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.” However, this Court in Dosdourian, 624 So.2d at 247, expressly rejected the argument that section 768.041(3) prohibited the jury from knowing that a plaintiff had settled his claim against one of the defendants while that defendant remained in the litigation. In Dosdomian, the plaintiff introduced the settling defendant’s deposition at trial, a deposition which had been taken before any settlement was reached. Dosdourian, 624 So.2d at 242. And this Court determined that “the jury was entitled to weigh the [settling] codefendant’s actions in light of its knowledge that such a settlement has been reached.” Id. at 247 n. 4. Thus, this Court in Dosdomian held that an exception to the general prohibition of section 768.041(3) exists when the otherwise inadmissible evidence is offered to prove bias or prejudice.

In light of the above, I would conclude that sections 90.408 and 768.041(3) do not prohibit the admission of evidence of a settlement or dismissal of a defendant when such evidence is offered to prove a witness’s bias or prejudice. Accordingly, I would approve the Fourth District’s decision in Saleeby v. Rocky Elson Construction, Inc., 965 So.2d 211 (Fla. 4th DCA 2007), and disapprove the Third District’s decision in Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989). Thus, I respectfully dissent.

WELLS, J., concurs.

      . Saleeby originally named the general contractor, Tektonica-USA, Inc., as another defendant in the suit. Saleeby, however, also settled with this contractor, and both Salee-by’s motion in limine and the trial court's order included prohibition of admission of these facts at trial.

      . Besides the conflict issue, Saleeby raises other issues in his brief. Although we have jurisdiction, we have determined to not address them. See State v. T.G., 800 So.2d 204, 210 n. 4 (Fla.2001) (”[O]nce the Court grants jurisdiction, it may, in its discretion, address other issues properly raised and argued before the Court.”).

      . We described a "Mary Carter Agreement” as follows:
      A "Mary Carter Agreement,” however, is basically a contract by which one co-defendant secretly agrees with the plaintiff that, if such defendant will proceed to defend himself in court, his own maximum liability will be diminished proportionately by increasing the liability of the other co-defendants. Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants. By painting a gruesome testimonial picture of the other defendant's misconduct or, in some cases, by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret "Mary Carter Agreement."

        Ward, 284 So.2d at 387.

      . Section 54.28, Florida Statutes (1963), was subsequently renumbered as section 768.041 and amended.

      . Section 90.408, Florida Statutes (2006), which deals with settlement offers and negotiations — as distinct from settlement agreements — has no application in the instant case.

      . Saleeby was injured in 1999. The Legislature later codified a statutory intentional tort exception that established a virtual certainty standard that does not apply here. See § 440.11(1), Fla. Stat. (2003).

      . For example, for the cleats Elson used one-by-four boards and eight-penny nails, not two-by-fours and sixteen-penny nails. Elson testified that in his experience this nevertheless met the industry standard.

      . The similar federal evidentiary rule explains that the prohibition against admitting evidence of compromises or offers to compromise when offered to prove liability does not prohibit the admission of such evidence when offered to prove a witness is biased or prejudiced. Fed.R.Evid. 408(b) (“This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.”); see also Reichenbach v. Smith, 528 F.2d 1072, 1075 (5th Cir.1976) (emphasizing that rule 408 prohibits evidence of a compromise to prove liability, but does not prohibit such evidence to prove the bias or prejudice of a witness).


source: Caselaw Access Project

author:
PER CURIAM.
      ANSTEAD, Senior Justice,

license: Public Domain

text:
    Kayle Barrington BATES, Appellant, v. STATE of Florida, Appellee. Kayle Barrington Bates, Petitioner, v. Walter A. McNeil, etc., Respondent.
    Nos. SC07-611, SC08-66.
    Supreme Court of Florida.
    Jan. 30, 2009.
    Rehearing Denied Feb. 24, 2009.

      Neal A. Dupree, Capital Collateral Regional Counsel, Terri L. Baekhus and Suzanne Myers Keffer, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.
    Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Kayle Barrington Bates 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 3.850. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

STATEMENT OF THE FACTS

In 1983, Bates was convicted for the 1982 murder of Janet Renee White. We described the unfortunate facts of the murder previously, stating, “Bates abducted a woman from her office, took her into some woods behind [a State Farm Insurance office] building [where she worked], attempted to rape her, stabbed her to death, and tore a diamond ring from one of her fingers.” Bates v. State, 465 So.2d 490, 491 (Fla.1985) (Bates I).

We have previously described Bates’ procedural history in detail. See id. However, we briefly summarize it again here. Bates was convicted in 1983 of first-degree murder, kidnapping, attempted sexual battery, and armed robbery. Id. He was sentenced to death, two terms of life imprisonment, and fifteen years of imprisonment. Id. After two direct appeals and a rule 3.850 motion, Bates was ultimately again sentenced to death. Bates v. State, 750 So.2d 6, 8-9 (Fla.1999) (Bates IV). In Bates’ most recent resentencing,

the jury recommended death by a vote of nine to three. The court found three aggravating circumstances: capital murder committed during an enumerated felony (kidnapping and attempted sexual battery); capital murder committed for pecuniary gain; and HAC. The court found two statutory mitigating circumstances: no significant history of prior criminal history (significant weight); and appellant’s age of twenty-four at the time he committed the murder (little weight). The court found eight nonstat-utory mitigating circumstances: appellant was under some emotional distress at the time of the murder (significant weight); appellant’s ability to conform his conduct to the requirements of the law was impaired to some degree (significant weight); appellant’s family background (some weight); appellant’s national guard service (little weight); appellant was a dedicated soldier and patriot (little weight); appellant’s low-average IQ (little weight); appellant’s love for his wife and children and being a supportive father (some weight); and appellant was a good employee (little weight).
After weighing the relevant factors, the court determined that the aggrava-tors outweighed the mitigators and imposed the death penalty.

Id. at 9.

At Bates’ 1995 resentencing, the State advanced essentially the same theory of the case that it put forth in the 1983 trial. It called witnesses to testify that Bates was found at the scene of the crime; that he had the victim’s blood on his clothing; that he had the victim’s ring in his pocket when arrested; that Bates had given various inconsistent confessions that implicated him in the crime; and that other physical evidence implicated him. That physical evidence included a watch pin found at the scene of the crime that was consistent with Bates’ watch; Bates’ buck knife case and hat found near the victim; two green fibers found on the victim’s clothing that were consistent with Bates’ pants; and chemically indicated semen found both on the victim’s underwear and Bates’ underwear.

The State also argued that the crime occurred in the course of a very short window. At 1 p.m., the victim was seen arriving at the State Farm Insurance Office. The victim answered the phone at State Farm upon arriving and immediately screamed. At 1:07 p.m., the State Farm Insurance agent arrived. At 1:08 p.m., law enforcement officers began to arrive. At approximately 1:20 p.m., Bates was apprehended as he emerged from the woods at the scene of the crime. The State also emphasized the dozens of bruises, abrasions, and lacerations that the victim suffered, as well as the two stab wounds and the indications that she had been strangled. The State noted that the stab wounds were consistent with the exact type of knife that Bates carried, the same type of knife that matched Bates’ knife case found at the scene of the crime.

Bates then filed the postconviction motion at issue in this case, raising eighteen claims with several subclaims. The post-conviction court held a Huff hearing, granted an evidentiary hearing on two of the claims, and summarily denied the remaining claims. State v. Bates, No. 82-661 (Fla. 14th Cir. Ct. order denying relief in part and order granting evidentiary hearing filed July 29, 2005) (Huff Order). The postconviction court also denied Bates’ motion for postconviction DNA testing. See State v. Bates, No. 82-661B (Fla. 14th Cir. Ct. order denying defendant’s motion for postconviction DNA testing filed Mar. 18, 2004) (DNA Order). Finally, the post-conviction court denied Bates’ remaining two claims after conducting an evidentiary hearing. See State v. Bates, No. 82-661C (Fla. 14th Cir. Ct. order denying defendant’s motion for postconviction relief following evidentiary hearing filed Mar. 1, 2007) (Postconviction Order).

Bates has now appealed to this Court the denial of four of those claims, containing numerous subclaims, and has also filed a petition for a writ of habeas corpus. We affirm the postconvietion court’s denial of relief and deny the petition for writ of habeas corpus on both issues raised.

ANALYSIS

Motion for DNA Testing

In Bates’ first claim, he argues that the postconviction court improperly denied his motion for DNA testing of several items under Florida Rule of Criminal Procedure 3.853. He claims that he did not commit the murder and that DNA testing of hairs, blood, semen, and other evidence would prove his innocence.

In order to be entitled to postconviction DNA testing, a defendant’s motion must include “a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained.” Fla. R.Crim. P. 3.853(b)(1). The motion must also allege that the evidence was not previously tested or that the results of such testing were inconclusive. Fla. R.Crim. P. 3.853(b)(2).

Additionally, a defendant’s motion must explain how the DNA testing requested will exonerate the defendant or mitigate the defendant’s sentence. Fla. R.Crim. P. 3.853(b)(3)-(4). A defendant’s motion “is facially sufficient with regard to the exoneration issue if the alleged facts demonstrate that there is a reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial.” Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002). “The clear requirement of [the] provisions [of rule 3.853] is that a movant ... must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence.” Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004). Further, “the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.” Id.

Bates’ motion requested testing of biological material and identified it as being in the possession of the Bay County Clerk of Court and the Bay County Sheriffs Office. These items include blood found on the defendant’s blue shirt and the defendant’s pants, semen found on the victim’s underwear, vaginal swabs and washing, semen found on Bates’ white briefs, cotton fibers that were linked to Bates’ green pants, and head and pubic hairs. The motion alleged:

11. Mr. Bates maintains that he did not kill Ms. White. By showing that Mr. Bates was not the source of the hairs, semen or blood found on the body of Ms. White, Mr. Bates can establish that someone else committed the murder. Knighten v. State, 829 So.2d 249 (Fla. 2d DCA 2002). Likewise, testing of the rape kit, the victim’s clothing, the blue cord and Mr. Bates’ clothing can establish the presence at the crime scene of DNA profiles that are not Mr. Bates.
12. The identity of Ms. White’s assailant was litigated at trial and has been disputed during the post-conviction litigation process. The DNA testing of all the biological evidence could establish that Mr. Bates commit [sic] the crime for which he is now serving a death sentence. The DNA testing will bear “directly on [Mr. Bates’] guilt or innocence.” Zollman v. State, 820 So.2d at 1063.

In a detailed order, the postconviction court denied the motion after determining based upon the record that “there [was] no reasonable probability that DNA evidence would either exonerate the defendant or mitigate his sentence.” DNA Order at 6. The postconviction court concluded:

This was not solely a circumstantial evidence type of case. In People v. Travis, 329 Ill.App.3d 280, 264 Ill.Dec. 785, 771 N.E.2d 489 (2002)[,] DNA testing was disallowed because the defendant had admitted to committing the crimes with a co-defendant and the presence or absence of the defendant’s DNA would not conclusively establish that the defendant did not participate in the crimes. Here, the defendant, in his second statement, never mentioned the presence of a third party at the time the scissors were stabbed into the victim’s chest. The defendant never mentioned a third party being present when he carried the victim to the wood line. The defendant never mentioned a third party throwing away the scissors after removing them from the victim’s chest. Nor did the defendant mention a third party when he found the victim’s ring on the sidewalk. The defendant’s second taped statement was consistent with the evidence found at the crime scene. The defendant has failed to explain, with reference to the specific facts of this crime and the items he wishes test[ed], how the DNA testing will exonerate him or will mitigate his sentence in light of his various statements to police. See Jackson v. State, 29 Fla. L. Weekly 5-13 January 16, 2004; Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001).

DNA Order at 6-7.

We find that it was reasonable for the postconviction court to conclude that the results of the testing that Bates seeks in his motion would not produce “a reasonable probability” of Bates’ exoneration. See Hitchcock, 866 So.2d at 27. Bates was arrested at the scene of the crime just minutes after the victim’s death. He had the victim’s diamond ring in his pocket, and he tried to conceal it from law enforcement officers. A watch pin consistent with Bates’ watch was found inside the victim’s office, and Bates’ watch was missing a watch pin. Footprints consistent with Bates’ shoes were found behind the State Farm office building. Bates’ hat was found near the victim’s body. Two green fibers were found on the victim’s clothing — one on her blouse and one on her skirt — that were consistent with the material that Bates’ pants were made of. A knife case was found near the victim’s body, and that case was identified by various witnesses as being the exact type that Bates wore. The victim’s two fatal stab wounds were consistent with the type of buck knife that Bates carried in that case. The consistency between the stab wounds and Bates’ knife was striking; the wounds were four inches deep, and Bates’ knife was four inches long; the width of the wounds was consistent with the width of Bates’ knife; and as was testified to at the resentencing, there were abrasions at the bottom of the wound that were consistent with marks that Bates’ knife would have made. Bates’ statements to investigators and at his trial also placed him either at the scene of the crime or directly involved in the victim’s murder. Bates stated during a telephone call to his wife after his arrest that he killed a woman. This evidence was introduced at his original trial. Given this accumulation of evidence, we find no error in the postconviction court’s conclusion that DNA testing would not “give rise to a reasonable probability of acquittal.” Id.; see also Sireci v. State, 908 So.2d 321, 325 (Fla.2005) (“[I]n light of the other evidence of guilt, there is no reasonable probability that Sireei would have been acquitted.... ”).

We recognize that the prosecutor argued at trial that Bates raped the victim, and we also recognize that the DNA testing could show that Bates’ semen was not found in the victim’s vagina. However, the jury did not find Bates guilty of sexual assault but, rather, found Bates guilty of attempted sexual assault. Again, in view of the defendant’s statements as to what he did during the brief time period in which the victim’s murder occurred, which statements were consistent with attempted sexual battery, and also in view of the physical evidence in the record, we agree with the trial court that the DNA of the semen in the victim’s vagina “was not a critical link in the proof against the defendant at trial.” DNA Order at 5.

Thus, we affirm the postconviction court’s denial of Bates’ motion for DNA testing.

Ineffective Assistance of Counsel Claim — Brain Damage

In this issue, Bates raises two claims. First, Bates cursorily states that he was deprived of a competent mental health expert in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). To the extent that Bates raises this Ake claim, it is procedurally barred as having been raised and rejected on direct appeal. See Bates IV, 750 So.2d at 16-17. Second, Bates argues that his resentencing counsel was ineffective for failing to present the testimony of Dr. Barry Crown, who would have testified to Bates’ organic brain damage and to other mental health mitigation. The postconviction court held an evidentiary hearing on this claim and denied relief. We affirm that denial of relief.

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 held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Because both prongs of the Stiickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

Dr. Crown testified at the postcon-viction evidentiary hearing that it was his expert opinion that Bates had functional metabolic brain damage. Bates claims that his resentencing counsel was ineffective for not calling Dr. Crown as a witness during his trial. The postconviction court’s order sets out this claim, stating:

In the instant case, Thomas Dunn, as sentencing counsel, did offer extensive testimony from Dr. Larson and Dr. McMahon as mental health experts to explain “why” the defendant acted the way he did. Basically[,] they testified he suffered from an extreme mental disorder or emotional disturbance at the time of the murder due to several factors. However, sentencing counsel did not offer the testimony of a third mental health expert, Dr. Crown. [Bates] claims the failure to use the testing of Dr. Crown rendered sentencing counsel’s performance ineffective. Defendant alleges Dr. Crown’s testimony that the defendant suffered from a functional organic brain impairment was essential for the jury to consider in mitigation and the failure to present this testimony was not based on a strategic decision and was prejudicial to the defendant’s case.

Postconviction Order at 2-3.

The postconviction court then found that defense counsel made a proper strategic decision not to call Dr. Crown. In its order, the postconviction court points to the following:

It is, therefore, clear that trial counsel had investigated and presented evidence in mental mitigation. As to the decision not to offer Dr. Crown’s testimony as to the existence of an organic brain impairment, the Court finds this was a strategic decision made in light of the existence of several factors. To fully understand why this Court believes this was, in fact, a strategic decision made by Mr. Dunn, it is necessary to closely review the record of the trial proceeding and the potential use of [an] MRI by the State in rebuttal of Dr. Crown’s testimony.
First, as noted previously, counsel had presented the testimony of Dr. Larson and Dr. McMahon to establish statutory mental mitigation and to answer the “why” question raised during opening statements. Dr. Crown’s testimony could have been considered cumulative except for the additional element of the existence of “organic brain impairment” and its relationship to “stress.”
Mr. Dunn did present testimony as to the defendant’s reaction to his military experiences including his exposure to stress in the riots in Miami and to tear gas. Indeed, ... Mr. Dunn used these in his hypothetical questions to his two mental health experts on the existence of any mitigating factors and to “why” the crime occurred. In response to a question on cross-examination on the significance of mace, Dr. Larson opined that “I just think it’s, I think it’s one of the variables that probably participated [in] this situation.” Mr. Dunn offered extensive testimony as to aspects of the defendant’s life experiences and to how he was acting immediately after the crime had occurred. All of this testimony was offered not only as mitigating in and of themselves but also as additional support of the mental health experts’ opinions as to why the crime occurred.
Second, had Mr. Dunn called Dr. Crown, he would have had to negate the testimony of the State’s rebuttal expert, Dr. Gregory Presser, a neurologist who had administered the MRI which showed the defendant had no organic brain damage. Mr. Dunn was fully aware of the existence of this report prior to his decision not to call Dr. Crown.

Postconviction Order at 5-7 (record citation omitted).

In addition to these facts, we note that Dr. Crown stated that he too was aware that the State had obtained an MRI that did not show any brain damage. However, he explained that a normal MRI would not prove that Bates did not have brain damage because MRIs do not show all types of brain damage. Specifically, Dr. Crown stated that Bates’ type of brain damage— functional brain damage — would not appear on an MRI. He stated that he could have provided this same testimony in 1995 at Bates’ resentencing.

As we stated previously, the postconviction court denied this claim, concluding that Bates had not demonstrated that counsel was ineffective because Bates’ trial counsel made an informed, advised decision not to call Dr. Crown. We find no error in the postconviction court’s decision, which that court explained well in its extensive order.

Even if we did conclude that counsel had been deficient in not calling Dr. Crown, we find that trial counsel not calling Dr. Crown at the resentencing did not prejudice Bates so as to be a basis for relief under Strickland, 466 U.S. at 697, 104 S.Ct. 2052. At the resentencing, Bates’ trial counsel presented the testimony of two experienced psychologists, Dr. Larson and Dr. McMahon, who gave testimony consistent with Dr. Crown’s resen-tencing deposition and his testimony at the postconviction evidentiary hearing. Dr. Crown did add that his findings as to Bates’ deficits showed that Bates had organic brain damage and a low stress threshold. When asked by the State in his deposition “how exactly does the fact that he has these mental deficits ... relate to what happened inside that insurance office in 1982,” Dr. Crown responded, “I believe that that lowered the threshold for him in dealing with stress,” and later added, “[i]n simple terms, his higher cortical functions shut down. Or in the sense, he froze.” Thus, the crux of Dr. Crown’s testimony was that Bates had brain damage that caused him to have an inability to deal with stress, and therefore he made poor decisions while under severe stress.

Dr. Larson and Dr. McMahon testified at the resentencing that Bates had a lowered threshold for stress and that this caused him to make poor decisions. The single difference was that they did not expressly attribute Bates’ deficiencies to brain damage. Further, they testified that as a result of Bates’ lowered stress threshold and the other facts of the crime, Bates was under a substantial emotional disturbance at the time of the crime, and he was unable to conform his behavior to the requirements of the law. Thus, since Dr. Larson and Dr. McMahon testified to Bates’ lowered stress threshold, all that Dr. Crown could offer as noneumulative evidence was an opinion — unsupported by any showing on an MRI — that a basis for Bates’ condition was organic brain damage. Accordingly, Dr. Crown’s opinion testimony would have been substantially cumulative to the testimony of Dr. Larson and Dr. McMahon. To the extent that his opinion added the link to the brain damage, under the circumstances of this case, that link is not sufficient to undermine our confidence in the outcome. Accordingly, we affirm the postconviction court’s denial of this claim.

Ineffective Assistance of Counsel Claim — Failure to Create a Record

Next, Bates claims that his re-sentencing counsel was ineffective for failing to create a record of certain jury excu-sáis for hardship purposes that occurred outside the presence of lead defense counsel. We find no error in the postconviction court’s determination that this claim did not provide a basis for relief. In order to successfully advance a claim that counsel was ineffective for failing to obtain or have transcribed a portion of the record, a defendant must allege specific prejudice that resulted from not having that record. See, e.g., Johnson v. Moore, 837 So.2d 343, 345 (Fla.2002) (rejecting a claim that the failure to include items in the record constituted ineffective assistance because the defendant “[did] not point to specific errors that occurred due to the omissions of this material”); cf. Jones v. State, 923 So.2d 486, 489 (Fla.2006) (“It is therefore clear that under our precedent, this Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant.”); Armstrong v. State, 862 So.2d 705, 721 (Fla.2003) (“Armstrong has failed to link a meritorious appellate issue to the allegedly missing record and thus cannot establish that he was prejudiced by its absence.”). Bates did not do so. Accordingly, we affirm the postconviction court’s summary-denial of this claim.

Failure to Disclose Evidence

In the initial part of this sub-claim, Bates alleges that the failure to disclose evidence of bias and corruption in this case constituted a Brady violation. To prove a Brady violation, Bates must show: (1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760 So.2d 903, 910 (Fla.2000). To meet the materiality prong, the defendant must demonstrate a reasonable probability that had the suppressed evidence been disclosed, the jury would have reached a different verdict. Strickler, 527 U.S. at 289, 119 S.Ct. 1936. “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Way, 760 So.2d at 913 (emphasis omitted) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

Bates points to four types of evidence not disclosed: (1) allegedly improper financial contributions to State Attorney Apple-man’s campaigns; (2) corruption in Ap-pleman’s office as evidenced by a 1991-2001 allegation from the State of Florida Elections Commission that Appleman misused campaign funds for personal uses and a 1993 grand jury investigation into whether Appleman’s office was dropping or reducing charges in exchange for suspects contributing money to the State Attorney’s campaigns; (3) an indictment against Sheriff Pitts; and (4) Dr. Sybers’ alleged murder of his wife while working at the Medical Examiner’s office.

We find no error in the postcon-viction court’s denial of Bates’ motion in respect to these claims. First, Bates’ claim that the contributions to Appleman’s campaign were improper and that they impacted his case is meritless. As the postconviction court determined, Bates does not allege any basis upon which it could be reasonably inferred that any contributions to the State Attorney had any connection with the prosecution of Bates’ case. As the postconviction court noted in its order, the allegation of corruption in the State Attorney’s office was after both Bates’ original trial in 1983 and his 1995 resentencing. Similarly, Bates has not established how the other alleged improper acts in Appleman’s office related to his case. Therefore, these claims do not provide a basis for relief.

Bates’ last two categories of allegedly suppressed evidence likewise provide no basis for relief. The categories are: (1) an indictment against Sheriff Pitts in 1988 on charges of perjury and of having attempted to have sex with his employees; and (2) the fact that former medical examiner Dr. Sybers killed his wife and left the Medical Examiner’s office in 1992. As the postconviction court held, the Sheriffs credibility was in no way an issue in Bates’ 1995 resentencing, and the Sheriffs testimony did not relate to contested issues. Further, Bates has not explained how Dr. Sybers’ conduct is relevant to Bates’ case. Dr. Sybers did not testify against Bates in either his original guilt-phase proceeding or in his 1995 resentencing hearing. Bates has not established that these two categories of allegedly suppressed evidence undermine confidence in the verdict. Accordingly, the postconviction court appropriately denied relief on these claims.

Intentional and Systematic Discrimination

Next, Bates raises various claims relating to his jury selection. First, Bates argues that the jury selection process in his case was unconstitutional. Attacks on a jury selection process must be raised on direct appeal. Robinson v. State, 707 So.2d 688, 698 (Fla.1998); Spenkelink v. State, 350 So.2d 85 (Fla.1977). Accordingly, this claim provides no basis for postconviction relief. Even if Bates’ claim was not barred, it is meritless. To establish a claim that the jury venire fails to reflect a cross-section of the community in violation of the Sixth Amendment, Bates must prove:

(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); see also Gordon v. State, 863 So.2d 1215, 1218 (Fla.2003) (quoting and applying Duren). Bates did not allege any facts that could establish that any discrepancy was systematic. See Gordon, 863 So.2d at 1218 (“Because Gordon has not initially established a prima facie showing in his motion that [African-Americans] were systematically excluded from the jury selection process, his claim was properly summarily denied by the trial court.”). Accordingly, this claim was meritless.

Further, to the extent Bates argues that his jury was intentionally chosen in a discriminatory manner, this claim is also not a basis for postconviction relief. Claims of intentional discrimination in jury selection should be raised on direct appeal. Robinson, 707 So.2d at 690 nn. 1, 2 (finding “Robinson’s race discrimination claim” procedurally barred for failure to raise it on direct appeal); see also Gaskin v. State, 737 So.2d 509, 512 n. 5, 513 n. 6 (Fla.1999) (finding Gaskin’s claim that he “was denied a fair trial based on a discriminatory jury selection process” procedurally barred for failure to raise it on direct appeal), receded from on other grounds by Nelson v. State, 875 So.2d 579 (Fla.2004).

Finally, Bates argues in this claim that his resentencing counsel and appellate counsel were ineffective for failing to raise these same jury selection claims at his resentencing and on appeal, respectively. In order to be entitled to an evidentiary hearing on this claim, Bates had to “set out in his motion a proper claim on the merits ... that counsel could have advanced.” Gordon, 863 So.2d at 1218. Bates failed to establish in his postconviction motion how counsel could have argued these alleged jury selection errors successfully. Because Bates has not established that these claims could be argued successfully, his counsel was not ineffective for failing to raise them. Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Further, we have previously rejected claims of jury discrimination couched in ineffective assistance of counsel claims. See, e.g., Robinson, 707 So.2d at 699 (“In the final analysis, most of these [jury discrimination] issues could and should have been raised on direct appeal and are procedurally barred, even if couched in ineffective assistance language.” (citation and internal quotation marks omitted)). Accordingly, this claim was appropriately summarily denied.

Remaining Claims

The remainder of Bates’ rule 3.850 claims are either procedurally barred or clearly without merit based upon this Court’s precedent in respect to these issues. These claims include Bates’ claims that (1) his counsel was ineffective for failing to argue his eligibility for a life without parole sentence; (2) the death penalty is imposed discriminatorily; (3) the jury interview ban in Florida is unconstitutional; (4) Florida’s jury instructions improperly shift the burden to the defendant; (5) the heinous, atrocious, and cruel (HAC) aggravator was improperly found; (6) he is innocent of the death penalty; (7) the aggravator jury instructions were vague and overbroad; (8) lethal injection is cruel and unusual punishment; (9) Florida’s capital sentencing statute is unconstitutional; (10) counsel was ineffective for failing to renew his motion for change of venue; and (11) cumulative error denied Bates a fair and impartial trial. Accordingly, we affirm without further discussion the postconviction court’s denial of these claims.

Habeas Corpus Claim One—Jury Record

In Bates’ first habeas issue, he refashions one of his rule 3.850 ineffective assistance of trial counsel arguments as an ineffective assistance of appellate counsel claim. Bates argues that his appellate counsel was ineffective for not ensuring that this Court had before it a complete record, including a record of the jury excusáis by the trial court that allegedly involved discrimination. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of 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); see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660 (Fla.2000). In raising such a claim, “[t]he defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman, 761 So.2d at 1069; see also Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

We deny relief on this claim. As we previously explained, Bates has not sufficiently described how he was prejudiced by the lack of a record of the jury hardship excusáis by the trial judge. This Court has also previously rejected similar ineffective assistance of appellate counsel claims. In Thompson v. State, the defendant alleged that “this Court was not provided with an adequate record during the direct appeal because some pretrial hearings and bench conferences were not transcribed and included in the appellate record.” Thompson, 759 So.2d at 660. Thompson alleged in his postconviction motion that his trial and appellate counsel were both ineffective for failing to ensure that this record existed. We rejected Thompson’s habeas claim of appellate counsel’s ineffectiveness because Thompson had not alleged specific appealable errors in the record. Id.; see also Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993) (“Had appellate counsel asserted error which went uncorrected because of the missing record, or had Ferguson pointed to errors in this petition, this claim may have had merit. However, Ferguson ... points to no specific error which occurred during these time periods.” (emphasis added)).

While Bates has alleged generally that error occurred, as in Thompson, Bates has not pointed to specific error. Bates has not (1) explained what juror was dismissed; (2) explained why the dismissal was discriminatory; or (3) pointed to facts which support his contention. Accordingly, there is no basis for relief in this claim.

Habeas Corpus Claim Two— Photographs

In Bates’ second habeas claim, he alleges that the admission of twelve photographs was error and that his appellate counsel was ineffective for failing to raise this issue on appeal. We deny relief on this claim.

Photographs are admissible if they are probative to an issue in dispute and they are not so shocking as to defeat them value. Looney v. State, 803 So.2d 656, 668-70 (Fla.2001). Admission of photographs is a matter for the discretion of the trial court, and we will not disturb such rulings absent a clear abuse of discretion. Rodriguez v. State, 919 So.2d 1252, 1286 (Fla.2005). The photographs at issue here were relevant to issues in dispute at Bates’ resentencing. They were relevant to how this murder was committed, to support the State’s argument that the murder was committed in the course of a felony, and to support the applicability of the HAC aggravator. We have previously held that similar bases were valid grounds for admitting photographs. See, e.g., England v. State, 940 So.2d 389, 399-400 (Fla.2006). Counsel was therefore not ineffective for declining to raise this issue.

CONCLUSION

For the forgoing reasons, we affirm the postconviction court’s denial of Bates’ rule 3.850 motion, affirm the posteonviction court’s denial of Bates’ motion for DNA testing, and deny Bates’ petition for a writ of habeas corpus.

It is so ordered.

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

ANSTEAD, Senior Justice, concurs in part and dissents in part with an opinion.

ANSTEAD, Senior Justice,

concurring in part and dissenting in part.

I cannot agree with the majority that Bates is not entitled to have DNA testing of certain evidence in order to bring more certainty to the sentencing process.

      . See id. (Bates I); Bates v. State, 506 So.2d 1033 (Fla.1987) (Bates II).

        . See Bates v. Dugger, 604 So.2d 457 (Fla.1992) (Bates III).

      . In Bates' most recent direct appeal, Bates IV, he raised the following claims:
      (1) whether the trial court's refusal to instruct the sentencing jury that life without the possibility of parole was a sentencing alternative to death denied [Bates] due process and a fundamentally fair capital sentencing proceeding; (2) whether the sentencing jury rendered a death verdict contrary to Florida statutory law and the trial court’s jury instructions; (3) whether the trial court erred by excluding certain mitigation evidence; (4) whether the death sentence is disproportionate; (5) whether the trial court erred by failing to consider or evaluate relevant nonstatutory mitigation; (6) whether the trial court improperly qualified the jury pool in appellant’s absence; (7) whether the trial court erred by not appointing additional medical experts to assist the defense in developing mitigation; (8) whether the trial court erred in finding each of the three aggravating circumstances; (9) whether the trial court erred by failing to allow appellant to introduce evidence of his innocence.

        Bates IV, 750 So.2d at 9 n. 1.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . As Bates concedes, cocounsel Hal Richmond was present for these excusáis.

        .Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To the extent that Bates' postconviction motion can be read to also allege a violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), we affirm the summary denial of that claim. Bates did not explain how any of the requirements of Giglio were met in this case, and accordingly, this claim was properly summarily denied.
      Further, to the extent Bates’ brief to this Court can be read to raise an ineffective assistance of counsel claim, we deny that claim as procedurally barred. Bates' postconviction motion did not discuss ineffective assistance of counsel in this claim, and accordingly, he cannot raise that argument for the first time on appeal to this Court. See, e.g., Sireci, 908 So.2d at 325.

      . State Attorney Appleman's office prosecuted Bates' case.

      . Sheriff Pitts was the Sheriff of Bay County where the murder was committed in this case.

      . Bates alleges that Dr. Sybers assumed supervision of the Medical Examiner's office during Bates' case.

      . Sheriff Pitts testified at Bates' trial that he found the victim's body, that you could not see the victim's body easily, and that Bates' truck was parked near the scene. Based on this testimony, photographs of the scene and of the truck were introduced into evidence.

      . In this claim, Bates has simply reraised his direct appeal claims, asserting the same underlying error as ineffective assistance of counsel claims. Accordingly, they are merit-less and procedurally barred. Arbelaez v. State, 775 So.2d 909, 919 (Fla.2000); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995).

      . This claim is insufficiently pled. Bates has not alleged any specific facts that show that his death sentence was imposed discriminato-rily, relying instead on a general statistical analysis. We have previously rejected similar claims. See McCrae v. State, 510 So.2d 874, 879 (Fla.1987). In order to be granted relief on such a claim, the defendant "must prove that the decisionmakers in his case acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); see also Foster v. State, 614 So.2d 455, 463 (Fla.1992) (quoting this portion of McCleskey and affirming summary denial of claim similar to Bates’ claim). Bates has not done so.

      . This claim is procedurally barred because it could have been raised on direct appeal. Suggs v. State, 923 So.2d 419, 440 (Fla.2005); Marquard v. State, 850 So.2d 417, 423 n. 2 (Fla.2002).

      . In this issue, Bates raises four subclaims. Bates' claim that the prosecutor’s remarks improperly diluted the jury's sense of responsibility is procedurally barred because it should have been raised on direct appeal. See Hodges v. State, 885 So.2d 338, 355 (Fla.2004); Allen v. State, 854 So.2d 1255, 1258 n. 4 (Fla.2003). It is also meritless, as we have repeatedly held. See, e.g., Sochor v. State, 619 So.2d 285, 291 (Fla.1993); Turner v. Dugger, 614 So.2d 1075, 1079 (Fla.1992). Bates' claim that the standard jury instructions placed the burden on him to prove mitigation outweighs aggravation is also barred. See Turner, 614 So.2d at 1079; Engle v. Dugger, 576 So.2d 696, 703 (Fla.1991). Further, this Court has repeatedly rejected such claims. See Griffin v. State, 866 So.2d 1, 14 (Fla.2003); Sweet v. Moore, 822 So.2d 1269, 1274 (Fla.2002). Bates' claim under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), is also meritless because this Court has repeatedly held that Ring is not subject to retroactive application, see Johnson v. State, 904 So.2d 400, 412 (Fla.2005), and because of the presence of the prior violent felony aggravator in Bates’ case. See Smith v. State, 866 So.2d 51, 68 (Fla.2004); Rodgers v. State, 948 So.2d 655, 673 (Fla.2006). Bates cannot revive these claims by phrasing them as ineffective assistance of counsel claims, and they are meritless even if he could. See Allen, 854 So.2d at 1258 n. 4; Woods v. State, 531 So.2d 79, 82 (Fla.1988).

      . This claim was raised and rejected on direct appeal. See Bates IV, 750 So.2d at 17. Accordingly, it is procedurally barred.

      . This claim was raised and rejected on direct appeal. See Bates IV, 750 So.2d at 17. Accordingly, it is meritless. See Sochor, 883 So.2d at 788 (rejecting a claim of death penalty innocence because this Court had rejected the defendant’s attacks on the aggravators on direct appeal).

      . This claim was raised and rejected on direct appeal. Bates IV, 750 So.2d at 9 n. 2. Accordingly, it is procedurally barred.

      . Bates’ general attack on Florida's lethal injection protocols is meritless. This Court recently upheld the current lethal injection protocols. See Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007); see also Ventura v. State, 2 So.3d 194 (Fla.2009); Tompkins v. State, 994 So.2d 1072 (Fla.2008); Henyard v. State, 992 So.2d 120 (Fla.2008). Bates has not alleged any specific deficiencies in the protocols, and accordingly, this claim was appropriately denied.

      . Claims that Florida's death penalty statute is unconstitutional could have been raised on direct appeal and thus are procedurally barred. See, e.g., Gorby v. State, 819 So.2d 664, 687 (Fla.2002). Bates cannot escape that bar with a cursory ineffective assistance of counsel allegation.

      . This claim is insufficiently pled. Bates did not allege any facts to support his conclusory allegations. Further, counsel cannot be held ineffective for what counsel actually did; re-sentencing counsel Dunn filed a motion for change of venue, he renewed that motion, and he requested and received individual voir dire. Bates has not explained why these actions by counsel were deficient.

      . Because Bates has not shown that airy individual errors occurred, his claim of cumulative error must fail. See Atwater v. State, 788 So.2d 223, 238 n. 5 (Fla.2001); Downs v. State, 740 So.2d 506, 509 n. 5 (Fla.1999).

      . To the extent that Bates’ first habeas issue argues that the record is confusing and disorganized, we deny relief on that claim. Bates has not explained how the record's disorganization prejudiced him. Our independent and complete review of the record also did not reveal any meaningful obstacles to review.