text:
    Perry Alexander TAYLOR, Appellant, v. STATE of Florida, Appellee. Perry Alexander Taylor, Petitioner, v. Walter A. McNeil, etc., Respondent.
    Nos. SC06-615, SC07-1168.
    Supreme Court of Florida.
    Jan. 29, 2009.
    As Revised on Denial of Rehearing Jan. 29, 2009.

      Bill Jennings, Capital Collateral Regional Counsel, and David Robert Gemmer, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Perry Alexander Taylor appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habe-as corpus. We have jurisdiction. See art. V, §§ 3(b)(1), (9), Fla. Const. For the reasons set forth below, we affirm the trial court’s denial of Taylor’s postconviction motion and deny Taylor’s petition for writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

The facts are taken from this Court’s opinions in Taylor’s direct appeals.

Taylor was charged with the murder and sexual battery of Geraldine Birch whose severely beaten body was found in a dugout at a little league baseball field. Shoe prints matching Taylor’s shoes were found at the scene. Taylor confessed to killing Birch but claimed that the sexual contact was consensual and that the beating from which she died was done in a rage without premeditation. Taylor testified that on the night of the killing, he was standing with a small group of people when Birch walked up. She talked briefly with others in the group and then all but Taylor and a friend walked off. Taylor testified that as he began to walk away, Birch called to him and told him she was trying to get to Sulphur Springs. He told her he did not have a car. She then offered sex in exchange for cocaine and money. Taylor agreed to give her ten dollars in exchange for sex, and the two of them went to the dugout.
Taylor testified that when he and Birch reached the dugout they attempted to have vaginal intercourse for less than a minute. She ended the attempt at intercourse and began performing oral sex on him. According to Taylor, he complained that her teeth were irritating him and attempted to pull away. She bit down on his penis. He choked her in an attempt to get her to release him. After he succeeded in getting her to release her bite, he struck and kicked her several times in anger.

Taylor v. State, 583 So.2d 323, 325 (Fla.1991) (footnote omitted). “The jury convicted Taylor on both counts. Upon the jury’s unanimous recommendation, the trial judge sentenced Taylor to death.” Id.

On direct appeal, Taylor raised three issues related to the guilt phase of his trial. Id. at 326. First, that the trial court erred by failing to conduct an inquiry pursuant to State v. Neil, 457 So.2d 481 (Fla.1984), on the State’s peremptory challenge of a black prospective juror. Taylor, 583 So.2d at 326. Second, that the trial court erred in excluding testimony that the victim had used crack cocaine. Id. at 328. Third, that the trial court erred in denying his motion for judgment of acquittal because the State’s circumstantial case was legally insufficient to prove sexual battery and premeditation. Id. We rejected these claims and affirmed Taylor’s convictions.

Additionally, Taylor raised three issues related to the penalty phase of his trial, but we addressed only one. Id. at 329. We concluded that the prosecution overstepped the bounds of proper argument and we vacated Taylor’s sentence and remanded for resentencing. Id. at 330.

At resentencing the jury again recommended death:

The new jury recommended death by an eight to four vote. The judge found the following aggravating factors: (1) Taylor had a previous felony conviction involving the use or threat of violence; (2) the capital felony occurred during the commission of a sexual battery; and (3) the capital felony was especially heinous, atrocious, or cruel. The court found no statutory mitigators but did give some weight to Taylor’s deprived family background and the abuse he was reported to have suffered as a child. The court considered but gave little weight to Taylor’s remorse, to psychological testimony that while Taylor has above-average intelligence, he suffers from an organic brain injury, and to testimony concerning Taylor’s good conduct in custody. The judge determined that the aggravating circumstances outweighed the mitigating factors and sentenced Taylor to death.

Taylor v. State, 638 So.2d 30, 31-32 (Fla.1994). Upon review we affirmed Taylor’s conviction and sentence. Id. at 33.

Thereafter, Taylor filed a postconviction motion to vacate his judgments of conviction and sentence on March 12, 1996. The trial court held hearings pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), on November 26, 1998, and April 8, 2005. Evi-dentiary hearings were ordered on two of the claims set out in Taylor’s third amended motion to vacate judgments of conviction and sentence and the trial court later issued an order denying all relief.

At the evidentiary hearings held on October 7, 2003, June 7, 2004, June 8, 2004, and March 3, 2005, testimony was heard from Mike Benito, the prosecutor at Taylor’s trial; James McNally, Taylor’s childhood social worker; Judge Manuel Lopez, penalty phase counsel; Nick Sinardi, trial counsel; Bill Brown, defense trial investigator; Dr. Ronald Wright, forensic pathologist; Dr. Catherine Lynch, obstetrician-gynecologist; Dr. Donald Taylor, adult psychiatrist; Dr. Henry Dee, clinical neu-ropsychologist; Stanley Graham, Taylor’s brother; Edwina Graham, Taylor’s mother; Charles Kelly, a jail deputy who had been physically assaulted by Taylor; Howard Ury, who had been a foster child in the same home as Taylor; Dr. Frank Wood, head of neuropsychology at Wake Forest; Dr. William Mosman, forensic psychologist; Dr. Lee Miller, medical examiner; Robert Norgard, mitigation expert; Dr. Jon Kotler, PET scan interpreter; and Dr. Helen Mayberg, PET scan interpreter.

In its sixty-nine page order denying relief, the trial court comprehensively treated each of Taylor’s twenty-one claims. This appeal follows.

DISCUSSION

On appeal from the denial of rule 3.850 relief, Taylor first contends that the trial court erred in denying his claims of newly discovered evidence, ineffective assistance of counsel, and his Brady and Giglio claims.

DR. MILLER’S TESTIMONY

Taylor raised multiple claims concerning Dr. Miller’s trial testimony concerning the extensive injuries suffered by the victim. The trial court addressed these claims together, finding Taylor’s allegations of recantation by Miller as to the victim’s sexual injuries to be an inaccurate characterization of Miller’s testimony. The trial court denied these claims, finding no newly discovered evidence, that trial counsel was not deficient, and that any possible deficiencies did not have the cumulative effect of denying Taylor a fair trial.

At trial, Dr. Miller testified that the injuries to the victim’s vagina were, within a reasonable degree of medical probability, caused by something “inserted into the vagina which stretched the vagina enough for it to tear over the object that was inserted in there.” Dr. Miller further testified that the injuries were inconsistent with someone having kicked the victim. Relying on this evidence, we noted on review that “the medical examiner’s testimony contradicted Taylor’s version of what happened.... The medical examiner testified that the extensive injuries to the interior and exterior of the victim’s vagina were caused by a hand or object other than a penis inserted into the vagina.” Taylor, 583 So.2d at 329.

At the postconviction evidentiary hearing, Dr. Miller testified that the injuries sustained were mostly confined to the labia minora and radiated inward, while some were inside the labia minora in “what anyone would describe as the vaginal canal.” However, Dr. Miller further testified that the injuries could possibly have been the result of a kick if the blow had been struck where the toe of the shoe actually went into the vagina, stretching it, that any shoe would have been able to penetrate the victim’s vagina due to extraversión, but that ultimately the injuries were caused by stretching and not direct impact. Miller testified that the possibility of a kick causing the injury was “a one in a million shot” and that his opinions as expressed at trial had not changed. He attributed any differences in his testimony to differences in the questions being asked and, in some instances more elaboration in exploring possibilities. Taylor contends that had Miller’s testimony about a kick possibly causing the vaginal injuries been presented at trial he could not have been convicted of sexual battery or felony murder. Taylor alleges that (1) this is new evidence that requires a new trial, (2) the State withheld this evidence, (3) the State allowed Dr. Miller to present false testimony, or (4) his trial counsel was deficient for not having discovered this evidence before trial.

Newly Discovered Evidence

In ruling on this issue, the trial court found Taylor’s claim of a “supposed recantation” by Dr. Miller of his trial testimony was “not an accurate statement of [Dr. Miller’s] testimony.” Hence, the trial court concluded Taylor had not actually established the existence of important new evidence of his innocence of sexual battery. We agree.

To obtain a new trial based on newly discovered evidence, Taylor must meet two requirements: first, the evidence must be newly discovered and not have been known by the party or counsel at the time of trial, and the defendant or defense counsel could not have known of it by the use of diligence; second, the newly discovered evidence must be of such quality and nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) (citing Jones v. State, 591 So.2d 911, 915 (Fla.1991)). In determining whether the evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones, 591 So.2d at 916. This determination includes

whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevancy of the evidence and any inconsistencies in the newly discovered evidence.

Jones, 709 So.2d at 521 (citations omitted). As noted above, the second prong of Jones requires a showing of the probability of an acquittal on retrial.

On review, “[t]his Court does not substitute its judgment for that of the trial court on issues of fact when competent, substantial evidence supports the circuit court’s factual findings.” Smith v. State, 931 So.2d 790, 803 (Fla.2006) (citing Windom v. State, 886 So.2d 915, 921 (Fla.2004)); see also Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997) (citing Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)). In essence, the postconviction court concluded that, at trial, Dr. Miller testified that the lacerations were not, within reasonable medical probability, caused by a kick. Similarly, at the evidentiary hearing, Dr. Miller testified that it was his opinion that there was only a one-in-a-million chance that the lacerations could have been caused by a kick. Hence, because the record refutes Taylor’s contrary interpretation of the testimony, Taylor fails to show that Miller’s postconviction testimony qualifies as newly discovered evidence. While it is true that Miller’s trial testimony did not admit to this one-in-a-million possibility, we find this omission insufficient to overturn the trial court’s conclusion that sufficient “new evidence” had not been established.

Additionally, we note the jury was not instructed to and did not differentiate between first-degree premeditated murder and first-degree felony murder in determining Taylor’s guilt. There is no indication that Taylor was convicted of first-degree murder predicated solely upon the felony of sexual battery. This Court previously detailed the massive injuries sustained by the victim to support the State’s alternative theories of premeditation and felony murder:

[T]he jury reasonably could have rejected as untruthful Taylor’s testimony that he beat the victim in a rage after she injured him. Although Taylor claimed that the victim bit his penis, an examination did not reveal injuries consistent with a bite. According to Taylor, even after he sufficiently incapacitated the victim by choking her so that she released her bite on him, he continued to beat and kick her. The medical examiner testified that the victim sustained a minimum of ten massive blows to her head, neck, chest, and abdomen. Virtually all of her internal organs were damaged. Her brain was bleeding. Her larynx was fractured. Her heart was torn. Her liver was reduced to pulp. Her kidneys and intestines were torn from their attachments. Her lungs were bruised and torn. Nearly all of the ribs on both sides were broken. Her spleen was torn. She had a bite mark on her arm and patches of her hair were torn off. Her face, chest, and stomach were scraped and bruised. Although Taylor denied dragging the victim, evidence showed that she had been dragged from one end of the dugout to the other. The evidence was sufficient to submit the question of premeditation to the jury.

Taylor, 583 So.2d at 329.

Accordingly, even if Dr. Miller’s alleged change in testimony were considered sufficient to call into question Taylor’s sexual battery conviction, it would not be sufficient to outweigh the evidence that Taylor committed premeditated murder or to cast doubt on his conviction for first-degree murder based upon premeditation. Ultimately, then, even if we were to construe Dr. Miller’s testimony at the evidentiary hearing the way Taylor seeks, there remains an abundance of evidence the jury could have used to convict Taylor of premeditated first-degree murder. Hence, we conclude the trial court did not err in denying this claim.

Giglio/Brady

In addition to the claim of newly discovered evidence arising from Dr. Miller’s testimony, Taylor asserts that the trial court erred in denying his claim that through Miller’s testimony the State intentionally permitted false or misleading evidence to be presented to the jury in violation of Giglio (where the United States Supreme Court held it to be a violation of due process when a prosecutor failed to disclose to the defense a promise made by the prosecution to a key witness that he would not be prosecuted if he testified for the prosecution). Finding there was no change in Dr. Miller’s testimony, the trial court denied this claim. We conclude that the trial court properly denied Taylor’s claim because it is refuted by the record.

To prevail under Giglio, a claimant must show that false testimony was presented by the State and that there is a reasonable possibility that the false evidence affected the judgment of the jury. See Ventura v. State, 794 So.2d 553, 564-65 (Fla.2001) (holding that a witness’s testimony was not material under Giglio where the witness was significantly impeached); Routly v. State, 590 So.2d 397, 400-01 (Fla.1991) (finding that an equivocal statement did not have a reasonable probability of affecting the judgment of the jury).

Taylor alleges that Dr. Miller’s trial testimony was false because it was contradicted by his testimony at the evidentiary hearing. As the trial court concluded, the record does not support this allegation. Dr. Miller’s testimony did not materially change. When the trial court finds that the testimony is not false, and there is competent substantial evidence to support that finding, we defer to the trial court’s findings. Accordingly, Taylor has not shown cause for relief under Giglio.

Alternatively, Taylor asserts that the State withheld material, favorable information in violation of Brady. Brady requires the State to disclose material information within its possession or control that is favorable to the defense. Mordenti v. State, 894 So.2d 161, 168 (Fla.2004) (citing Guzman v. State, 868 So.2d 498, 508 (Fla.2003)). To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence, (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); Cardona v. State, 826 So.2d 968, 973 (Fla.2002); Way v. State, 760 So.2d 903, 910 (Fla.2000). The remedy of retrial for the State’s suppression of evidence favorable to the defense is available when “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

Here, however, the trial court has concluded, and we agree, that neither the State nor its actors suppressed evidence. Because the trial court has concluded that Dr. Miller’s testimony is unchanged, there is nothing the State has been demonstrated to have suppressed.

INEFFECTIVE ASSISTANCE OF COUNSEL

Taylor raised multiple claims of ineffective assistance of defense counsel stemming from his representation at trial and both penalty phases. Taylor also alleged ineffective assistance in the alternative should the court determine any of his other claims insufficient for lack of due diligence by counsel. In addressing these claims, the trial court found that Taylor failed to demonstrate deficiency or any resulting prejudice, the two prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We agree.

We have held that for ineffective assistance of counsel claims to be successful, the two requirements of Strickland 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). To prove the deficiency prong under Strickland, Taylor must prove that counsel’s performance was unreasonable under the “prevailing professional norms.” Morris v. State, 931 So.2d 821, 828 (Fla.2006) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “To establish the [prejudice] prong under Strickland, the defendant must show that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

Failure to Perform Due Diligence

Taylor asserts this ineffectiveness argument in the alternative for his newly discovered evidence claims relating to Dr. Miller’s testimony. Taylor alleges that should this Court find that any evidence could have been discovered at trial, then trial counsel was deficient for failure to discover said evidence. As discussed above with Dr. Miller’s testimony, and below with Taylor’s other claims, we conclude there was no material new evidence presented during these proceedings. Further, unlike the situation in State v. Gunsby, 670 So.2d 920 (Fla.1996), upon which Taylor relies, the State has not been shown to have withheld evidence, and trial counsel has not been found to have failed to object to abuses by the State. See id. at 922-24. Each of Taylor’s claims of newly discovered evidence is sufficiently refuted by the trial and postconviction record. None of them fail for counsel’s lack of diligence. For example, we find there has been no demonstration of ineffectiveness under Strickland as to counsel’s alleged failure to elicit Dr. Miller’s “one in a million” testimony at trial. Accordingly, we reject Taylor’s claim that counsel’s performance was deficient.

Failure to Prepare Taylor to Testify

Contrary to Taylor’s assertion below, and now on appeal, trial defense counsel, Nick Sinardi, testified that he did prepare Taylor to testify, and his trial strategy was to show that Taylor did not have the intent to murder the victim. Si-nardi testified that he believed it was in Taylor’s best interest to take the stand in order for the jury to evaluate his defense. Further, although Sinardi testified that he did not rehearse Taylor’s testimony, he did tell Taylor to testify truthfully. Because Taylor had given a detailed confession, defense counsel felt he was limited in available strategies.

After hearing defense counsel’s testimony, the trial court found that Taylor failed to demonstrate any deficiency or resulting prejudice from the performance of guilt phase counsel. Further, the trial court found that Sinardi made reasonable tactical decisions under the circumstances he faced and with the limited choices available.

In Zack v. State, 911 So.2d 1190 (Fla.2005), this Court rejected a similar claim:

Zack argue[d] that trial counsel failed to adequately prepare him to testify at trial and failed to inform him about what would occur during cross-examination. Zack contend[ed] that had he been adequately prepared and informed of the hazards of cross-examination, he would not have testified. Zack stated that trial counsel gave him no choice but to testify, and that he was only told that he was going to testify after trial began.

Id. at 1198. The trial court found that Zack had testified on his own behalf at trial to give his version of events even on cross-examination. Id. at 1199. The trial court further found that Zack showed a desire to explain himself on cross-examination, and that Zack failed to show either that counsel failed to prepare him or that he suffered any prejudice. Id. at 1199-1200. This Court accepted the trial court’s findings. Id.

This Court has also held that trial counsel cannot be deemed ineffective simply because postconviction counsel now disagrees with trial counsel’s strategy or because there were other choices. See Davis v. State, 875 So.2d 359, 366 (Fla.2003) (citing Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000)); see also Henry v. State, 862 So.2d 679, 681-82 (Fla.2003) (ineffective assistance claims for reliance on theories of self-defense and diminished capacity failed because they were conclusively refuted by the record).

On the record before us, we conclude that Taylor, like Zack, has not shown that he testified against his will, nor has he met the burden to demonstrate that Sinardi’s strategy was unreasonable under the circumstances, especially considering the limited choices available to the defense. Because we agree with the trial court that Taylor has failed to demonstrate deficient performance, we need not address prejudice. See, e.g., Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001) (because Strickland requires both prongs, it is not necessary to address prejudice when a deficient performance has not been shown).

Failure to Investigate and Present Mental Health Issues

Taylor claimed below that defense counsel failed to demand a hearing on Taylor’s competency or present evidence of Taylor’s mental health problems. However, Sinardi testified at the postconviction hearing that he did not feel there was any reason to question Taylor’s competence. The trial court found that Taylor did receive a competent mental health evaluation at trial, and he did not prove that his counsel’s investigation of this issue was deficient.

Taylor cites Futch v. Dugger, 874 F.2d 1483 (11th Cir.1989), to support his claim. In Futch, the Eleventh Circuit considered a habeas petition brought by a defendant convicted of second-degree murder. Id. at 1484. The court stated, “In order to demonstrate prejudice from counsel’s failure to investigate his competency, petitioner has to show that there exists ‘at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.’ ” Id. at 1487 (quoting Alexander v. Dugger, 841 F.2d 871, 375 (11th Cir.1988)). The court stated that if Futch was correct in his allegation that a prison psychologist evaluated him and found him incompetent and that trial counsel was aware of this finding, Futch met this burden. Id. The Eleventh Circuit remanded for evidentiary hearing on this issue. Id. at 1488.

Unlike the petitioner in Futch, however, Taylor has had an evidentiary hearing on this claim. And, unlike Futch, Taylor has never been declared incompetent by any of the psychologists and neuropsychologists who have examined him. Despite Taylor’s reading of this case, the Eleventh Circuit did not mandate that trial counsel investigate a defendant’s competency without some cause. Instead, in Futch, the petitioner specifically alleged that although counsel had substantial reason to suspect petitioner’s competency, he still failed to investigate. Id. at 1487. We conclude that the trial court did not err in holding Taylor has not demonstrated deficiency of his trial counsel in regard to counsel’s investigation of any mental health issues.

Failure to Investigate and Present Mitigation

Taylor asserts that there were more mitigating factors that could have been presented that counsel, Manuel Lopez, failed to present, but does not specify what these factors could be. Instead, Taylor attempts to demonstrate counsel’s ineffectiveness by focusing solely on the number of hours Lopez spent preparing for resentencing.

We have held:

“An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.” Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.), cert. denied, 513 U.S. 1009, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994). The failure to do so “may render counsel’s assistance ineffective.” Bolender [v. Singletary], 16 F.3d [1547,] 1557 [ (11th Cir.1994) ].

Rose v. State, 675 So.2d 567, 571 (Fla.1996). In Rose, we found counsel was ineffective where counsel made practically no investigation, and Rose was able to demonstrate substantial mitigation that counsel failed to uncover and present. Id. at 572. The record demonstrated that counsel was inexperienced, and this Court held that his uninformed decision did not amount to strategy. Id. Likewise, in Hildwin v. Dugger, 654 So.2d 107 (Fla.1995), the petitioner also was able to demonstrate mitigation that trial counsel failed to uncover. Id. at 110.

The trial court found, and we conclude, that trial counsel’s performance at sentencing was deficient. Trial counsel’s sentencing investigation was woefully inadequate. As a consequence, trial counsel failed to unearth a large amount of mitigating evidence which could have been presented at sentencing. For example, trial counsel was not even aware of Hildwin’s psychiatric hospitalizations and suicide attempts.

Id. at 109.

However, “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “Rather, in deciding whether trial counsel exercised reasonable professional judgment with regard to the investigation and presentation of mitigation evidence, a reviewing court must focus on whether the investigation resulting in counsel’s decision not to introduce certain mitigation evidence was itself reasonable.” Ferrell v. State, 918 So.2d 163, 170 (Fla.2005) (citing Wiggins, 539 U.S. at 523, 123 S.Ct. 2527; Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). “When making this assessment, ‘a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.’ ” Ferrell, 918 So.2d at 170 (quoting Wiggins, 539 U.S. at 527, 123 S.Ct. 2527). Ultimately, in Ferrell, we agreed with the trial court’s assessment that trial counsel was not deficient, stating that this was not a case where counsel presented no mitigation, nor a case where counsel made no attempt to investigate. Id. at 171 (citing Torres-Arboleda v. Dugger, 636 So.2d 1321, 1326 (Fla.1994)).

The record shows this is not a case where trial counsel failed to investigate and present available mitigating evidence. Cf. Rose, 675 So.2d at 571-72. The trial court’s findings of mitigation directly refute such a claim. Taylor does not allege that counsel made no attempt to investigate mitigation or that he failed to present something he otherwise uncovered. Importantly, Taylor makes no specific allegation of what mitigation could have been presented that counsel failed to present. Under these circumstances, we conclude Taylor has shown no error in the trial court’s holding that Taylor has failed to demonstrate that counsel was deficient. Accordingly, the Court need not address prejudice. See, e.g., Waterhouse, 792 So.2d at 1182.

NEWLY DISCOVERED EVIDENCE

PET Scan

Taylor argues that a PET Scan is newly discovered evidence that shows brain damage. However, in the prior sentencing proceedings the trial court found Taylor’s brain damage was established as a mitigating factor, and gave it little weight. Taylor’s argument resembles that rejected by this Court in Ferrell, stating

In fact, a capital cases defense manual prepared by the Florida Public Defender’s Association and distributed in 1992 did not mention either PET or SPECT scans in a list of medical tests used to confirm brain damage. Furthermore, the manual cautioned that even the listed medical tests could be unreliable and did not always indicate organic brain damage. Instead, the manual stated that neuropsychological testing was actually more reliable in showing such deficits.

918 So.2d at 175 n. 11. In denying this claim, the trial court relied on Fen-ell and also noted that the testimony of two experts who interpreted the scan showed that the scan did not represent a significant indication of brain damage. As in Fen-ell, Taylor has not demonstrated that a PET scan would have been available to counsel or even admissible at Taylor’s prior trial. Further, in light of the trial court’s findings, Taylor has also failed to demonstrate that if the scan had been prepared, it would have affected the outcome of Taylor’s penalty phase, since the sentencing court did consider proof of brain damage in mitigation. Accordingly, we conclude the trial court properly rejected this claim.

Sonya Davis

The trial court denied Taylor’s claim that trial counsel was ineffective for failing to present the testimony of the victim’s daughter, Sonya Davis, because the record “clearly shows Ms. Davis would not have been willing to testify in the prior proceedings.” Additionally, the trial court denied the claim for being untimely since the evidence of Ms. Davis was known at trial. The trial court denied admission of Davis’s deposition because the deposition would not have been admissible at trial and because the postconviction claim allegedly supported by the deposition was untimely asserted. None of these findings have been demonstrated to have been erroneous.

The summary denial of a newly discovered evidence claim will be upheld if the motion is legally insufficient or its allegations are conclusively refuted by the record. McLin v. State, 827 So.2d 948, 954 (Fla.2002). It is evident from the record that Taylor was aware of Davis’s existence prior to the trial, and that Davis would have been unwilling to testify for Taylor. Additionally, as the State correctly points out, even if Taylor had succeeded in introducing this evidence, it would have served to impeach his own testimony and to impugn his theory of defense. Cf. Antone v. State, 410 So.2d 157, 162 (Fla.1982) (holding that newly discovered evidence that would have impeached defendant’s testimony and changed totally his theory of defense did not meet the test that the alleged facts must be of such a vital nature that they would have prevented entry of the judgment). Accordingly, the trial court properly denied this claim.

PETITION FOR HABEAS CORPUS

In his petition for habeas corpus, Taylor argues that his death sentence is unconstitutional under Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992); that the jury instructions unconstitutionally diminished the jury’s sense of responsibility; and that Florida’s capital sentencing statute constitutes cruel and unusual punishment. We reject each of these claims on the merits. Further, we note that Taylor’s constitutional claims are procedurally barred because they were not preserved on direct appeal.

Taylor argues that his prior violent felony aggravator was invalid because his conviction for sexual battery in 1982 was unconstitutional because his then deficient mental state prevented him from making a knowing, intelligent, and voluntary waiver of his right to trial in entering a plea of nolo contendere. He further argues that this 1982 conviction was too remote in time to qualify as an aggravator.

In Nixon v. State, 932 So.2d 1009, 1023 (Fla.2006), we refused to grant relief where the allegedly unlawful prior felony convictions had not been vacated and were still valid. Nixon was convicted of and received a death sentence for first-degree murder, kidnapping, and other crimes. Id. On appeal, he argued that the prior felonies used to support the prior felony ag-gravator in his case were invalid. Id. We held that because no court had vacated the prior convictions, Johnson did not apply. Id. The invalid conviction at issue in Johnson had been reversed by the New York Court of Appeals. Johnson, 486 U.S. at 583, 108 S.Ct. 1981. Taylor’s conviction has not been vacated by any court. Accordingly, his claim under Johnson must fail. We also reject Taylor’s argument that the prior conviction is too remote in time, since we have held a conviction obtained thirty-two years prior to the crime in question is not too remote to be considered a valid aggravating factor. Thompson v. State, 553 So.2d 153, 156 (Fla.1989).

Taylor’s claim as to the invalidity of Florida’s heinous, atrocious and cruel aggravator is proeedurally barred. Taylor cannot relitigate the merits of an issue through a habeas petition or use an ineffective assistance claim to argue the merits of claims that either were or should have been raised below. See Preston v. State, 970 So.2d 789, 805 (Fla.2007); Knight v. State, 923 So.2d 387, 395 (Fla.2005). “It is important to note that habeas corpus petitions are not to be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in a rule 3.850 motion, or on matters that were not objected to at trial.” Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989). We rejected a similar argument in Doyle v. Singletary, 655 So.2d 1120, 1121 (Fla.1995) (holding that Doyle’s claim was proeedurally barred because Doyle had failed to pursue the issue on appeal). As in Doyle, Taylor did not raise this claim on direct appeal and we now reject this habe-as claim for the same reason.

CONCLUSION

In light of the above analysis, we affirm the trial court’s denial of Taylor’s postcon-viction motion and deny Taylor’s petition for writ of habeas corpus.

It is so ordered.

WELLS, PARIENTE, LEWIS, and CANADY, JJ., and ANSTEAD, Senior Justice, concur.

QUINCE, C.J., recused.

POLSTON, J., did not participate.

      . Taylor’s postconviction claims were: (1) no trial transcript had been provided; (2) his statements were admitted in error; (3) there was prosecutorial misconduct; (4) he was absent from critical proceedings; (5) there were violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and ineffective assistance of counsel; (6) the State failed to prove corpus delicti; (7) counsel was ineffective for failure to obtain a mental health evaluation; (8) Taylor's right to confront witnesses was violated; (9) the prosecutor made improper statements; (10) defense counsel failed to obtain a mental health expert; (11) there was ineffective assistance of counsel in other respects; (12) the death sentence is disproportionate; (13) the sexual battery ag-gravator is unconstitutional; (14) the prior conviction record admitted was obtained illegally; (15) the aggravating factors statute is unconstitutional; (16) the jury instructions were unconstitutional; (17) the death sentence was unconstitutional; (18) Florida’s capital sentencing statute is unconstitutional; (19) Taylor's rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), were violated; (20) numerous trial and resentencing errors deprived Taylor of his rights; and (21)Taylor was denied due process.

      . The lower court instructed the sentencing jury with then-standard instructions for the "heinous, atrocious, or cruel” aggravating factor. Taylor did not challenge the standard jury instructions at trial or on direct appeal. The United States Supreme Court later declared Florida’s standard jury instructions for the "heinous, atrocious, or cruel” aggravating factor unconstitutionally vague in Espinosa v. Florida, 505 U.S. 1079, 1081, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). However, even though Taylor's resentencing occurred prior to the Espinosa decision, the jury instructions used were not those involved in Espinosa but were the same as this Court found constitutional in Hall v. State, 614 So.2d 473, 478 (Fla.1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jason Dirk WALTON, Appellant, v. STATE of Florida, Appellee.
    No. SC07-704.
    Supreme Court of Florida.
    Jan. 29, 2009.
    Rehearing Denied Feb. 25, 2009.

      Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III, Litigation Director, CCR Counsel and Roseanne Eckert, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, Katherine Maria Diamandis, and Katherine V. Blanco, Assistant Attorneys General, Tampa, FL, for Appellee.
   PER CURIAM.

Jason Dirk Walton appeals an order of the Circuit Court of the Sixth Judicial Circuit summarily denying his successive motion to vacate three convictions of first-degree murder and corresponding death sentences under Florida Rule of Criminal Procedure 3.851. Under our mandatory jurisdiction to review orders arising from capital proceedings, we affirm the circuit court’s order. See art. V, § 3(b)(1), Fla. Const.

In his first claim, Walton has failed to demonstrate that the State violated his constitutional rights by utilizing inconsistent theories to secure convictions against each of the criminal defendants in this triple homicide. Walton also has not established prejudice from the alleged use of a state agent, who did not testify in his second sentencing proceeding. Next, the trial court properly denied Walton’s motion for additional public records because each request was either overbroad, collateral, or irrelevant to his postconviction claims. Lastly, this Court has previously considered and repeatedly rejected the evidence presented by Walton in support of his challenge to the constitutionality of Florida’s lethal injection protocol. Thus, for the reasons explained below, we affirm the circuit court’s order summarily denying postconviction relief.

I. PROCEEDINGS TO DATE

A. Conviction and Sentencing

In 1984, Jason Dirk (J.D.) Walton was convicted of three counts of first-degree murder in Pinellas County. See Walton v. State, 481 So.2d 1197, 1198-99 (Fla.1985) (Walton I). Armed with guns on a rainy Friday night, Walton, Richard Cooper, Jeffrey McCoy, and Terry Van Royal entered Steven Fridella’s residence with the plan to rob the victim of money and drugs. See 481 So.2d at 1198; Walton v. State, 547 So.2d 622, 623 (Fla.1989) ('Walton II). Once inside the house, they bound and held at gunpoint Fridella and two other men, Gary Peterson and Bobby Martin-dale. Walton ransacked the house but did not find any money or drugs. With the original plan proving unsuccessful, the three victims were killed by several shotgun blasts. See Walton I, 481 So.2d at 1198.

Walton made two statements to the police in which he admitted being present at the time of the homicide but denied any part in the shootings. See id. He told police that although he initiated the idea to commit the intended crime, he tested his handgun before entering the house and it had misfired. See id. He observed Van Royal and Cooper pointing shotguns at the victims. As Walton exited the house, he heard several gunshots. See id.

The jury found Walton guilty of all three counts of first-degree murder. See id. During the first penalty phase, the State introduced the testimony of an alleged jailhouse informant and former cellmate of codefendant Cooper. See id. at 1198-99. The cellmate testified that Cooper had indicated Walton was the “ringleader” and had informed Cooper that the codefen-dants were going to “eliminate” the victims. Id. The State also introduced the written confessions of Cooper and McCoy. See id. at 1198. Following the jury recommendation, the trial court imposed a death sentence for each murder. On direct appeal, this Court affirmed the convictions but reversed the death sentences and remanded for a new sentencing hearing because the written confessions constituted hearsay and thus were admitted in violation of Walton’s confrontation rights. See id. at 1200-01.

During the second sentencing hearing, the State did not introduce the written confessions or the testimony of the jailhouse informant. Instead, it again presented Walton’s confession, including the statement that Walton “turned on the television full blast to prevent the neighbors from hearing the victims scream and that he heard shotgun blasts as he left.” Walton II, 547 So.2d at 623. A taped statement by McCoy was presented to the jury, which described the four men carefully devising the plan as retaliation because one of the victims had stolen marijuana from Walton’s trailer. See id. A majority of the jury recommended death sentences on all counts, which the trial court imposed and this Court affirmed. See Walton II, 547 So.2d at 623.

B. Rule 3.850 and Habeas Proceedings

Governor Martinez signed a death warrant for Walton on September 24, 1990, and denied Walton’s request for clemency. Thereafter, this Court granted a stay of execution for Walton to file his first rule 3.850 motion to vacate his convictions and sentences. The trial court denied Walton’s ensuing motion. In the same year, Walton filed a petition for writ of habeas corpus in this Court, in which he claimed error in the penalty phase jury instructions and presented other claims that were also concurrently presented in his motion to vacate. On appeal of the order denying the rule 3.850 motion, Walton contended that the circuit court erred when it denied his claim that the prosecutor had utilized inconsistent theories in securing the death sentences against him, which violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Of note, Walton has also raised this claim in the motion presently under review. This Court relinquished jurisdiction, reversed for an evidentiary hearing regarding Walton’s entitlement to various public records, and reserved ruling on the other claims pending disposition of the public records request. See Walton III, 634 So.2d at 1062.

Subsequently, Walton filed his Third Amended Motion to Vacate based on newly discovered evidence found during the public records litigation. In this motion, it appears that Walton retooled his inconsistent theories claim as an ineffective assistance of counsel claim. The circuit court denied the motion after an evidentiary hearing. On appeal, Walton raised several additional claims. This Court affirmed the order and denied the habeas petition. See Walton IV, 847 So.2d at 443-60.

C. Successive Postconviction Proceedings

In 2006, Walton filed a successive motion for postconviction relief based on the discussion of inconsistent prosecutorial theories in Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), and newly discovered affidavits from two witnesses regarding the jail informant’s alleged role as a state agent. Walton also claimed that Florida’s lethal injection protocol violates the Eighth Amendment based on the newly discovered evidence presented within an article, Inadequate Anaesthesia in Lethal Injection for Execution, published in The Lancet, and the American Bar Association’s report on the death penalty, Evaluating Fairness and Accuracy in the State Death Penalty System: The Florida Death Penalty Assessment Report, issued in 2006. In conjunction with his motion, Walton filed demands for public records from the Department of Corrections, the Office of the Attorney General, and the Office of the State Attorney, which were met with objections from each entity. The circuit court denied the public records request and entered a separate order summarily denying the motion to vacate. Walton now seeks relief from this Court, raising four issues related to the motion to vacate and two issues relating to the motion for production of additional public records.

II. ANALYSIS.

A. The State Did Not Use Inconsistent Theories to Secure Death Sentences Against All Codefendants.

In Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), the United States Supreme Court addressed a prosecutor’s use of inconsistent theories. Walton asserts that Bradshaw recognized a new constitutional right, which was that the State violates due process if it advances inconsistent positions to secure the same sentence against codefendants. Drawing from this “newly recognized” right, Walton now alleges that the State’s presentation of inconsistent theories in the codefendants’ cases violated his due process rights. Walton asserts that the State contended during his criminal proceedings that he was the ringleader and he ordered the codefendants to shoot the victims. Walton then posits, in supposed contrast, that the State argued in the separate trials of his codefendants (Cooper and Van Royal) that they shot the victims of their own will and thus were not entitled to mitigation for acting under extreme duress or substantial domination by Walton at the time of the murders. Walton maintains that these alleged inconsistencies subjected him to irreparable prejudice because the State’s prosecutorial theory and the trial court’s decision focused on his ringleader role as the basis for imposing the death sentences.

A successive rule 3.851 motion may be denied without an evidentiary hearing if the records of the case conclusively show that the movant is entitled to no relief. See Fla. R.Crim. P. 3.851(f)(5)(B). This Court reviews the circuit court’s decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief. See State v. Coney, 845 So.2d 120, 137 (Fla.2003); Fla. R.Crim. P. 3.851(f)(5)(B).

The record conclusively demonstrates that Walton is not entitled to relief because this claim is procedurally barred and meritless. Florida Rule of Criminal Procedure 3.851(d)(2)(B) requires any motion to vacate judgment of conviction and death sentence to be filed within one year after the judgment and sentence become final unless the motion alleges that a fundamental constitutional right, held to apply retroactively, was established after that period. Thus, as the circuit court determined, Walton’s claim is procedurally barred because the Bradshaw Court did not recognize a new fundamental constitutional right that applies retroactively. See Van Poyck v. State, 961 So.2d 220, 227 (Fla.2007); Raleigh v. State, 932 So.2d 1054, 1065-67 (Fla.2006); see also Fotopoulos v. Sec’y, Dep’t of Corr., 516 F.3d 1229, 1235 (11th Cir.2008) (“[T]he Bradshaw Court did not hold that the use of inconsistent theories in the prosecution of two defendants violates the right to due process.”)

Rather, the United States Supreme Court specifically declined to rule on the question of whether the prosecutor’s use of inconsistent theories constituted a due process violation. See Bradshaw, 545 U.S. at 186-89, 125 S.Ct. 2398. After concluding that the court of appeals had erroneously held that the prosecutorial inconsistencies voided the defendant/appellee’s guilty plea, the United States Supreme Court “expressed] no opinion on whether the prosecutor’s actions amounted to a due process violation, or whether any such violation would have been prejudicial.” Id. at 187, 125 S.Ct. 2398.

Additionally, Walton concedes that he had previously raised versions of this claim in his initial and third motions to vacate, belying any assertion that this is a newly discovered error. See Walton IV, 847 So.2d at 456; Walton III, 634 So.2d at 1061 n.1. In fact, this Court has already applied the reasoning of Fotopoulos v. State, 838 So.2d 1122, 1137 (Fla.2002), to determine that Walton’s trial counsel was not ineffective for failing to rebut the State’s ringleader argument with the prosecutor’s statements in Cooper’s trial that it was “absolutely ludicrous” to fault Walton for Cooper’s actions, and that no evidence supported the “incredible proposition” that Walton dominated Cooper during the crime. See Walton IV, 847 So.2d at 456. We held that Walton was unable to show prejudice on his ineffective assistance of counsel claim because the

[ejvidence introduced at Walton’s trial showed that Walton originated the plan to rob the victims on a rainy night, Walton armed the group prior to the [episode], and Walton was the only defendant involved who knew the location of the victims’ house. In the face of this overwhelming evidence, it is clear that the introduction of two statements by a state attorney in a codefendant’s trial would not have been overly persuasive. Certainly, non-introduction of this evidence does not undermine our confidence in the outcome.

Id. (citation omitted). Thus, this Court has already determined that the alleged inconsistent statements are neither persuasive nor do they undermine our confidence in Walton’s convictions and sentences. This claim is therefore procedurally barred because Walton has failed to demonstrate a basis for escaping the one-year time limitation on raising the issue.

Even if this claim did not face a procedural bar, it would still fail because the State advanced a wholly consistent theory of the crime in prosecuting the codefendants. The prosecutorial theory that Walton was the ringleader and that Cooper and Van Royal were the primary shooters is neither a differing nor an irreconcilable rendition of the factual scenario. In contrast, the State in Fotopoulos clearly advanced inconsistent positions, asserting in codefendant Deidre Hunt’s case that she was an independent actor voluntarily participating in the murders, yet presenting the central theory in Fotopoulus’s trial that Hunt was dominated by Fotopoulos. See Fotopoulos, 838 So.2d at 1128; see also Bradshaw, 545 U.S. at 186-89, 125 S.Ct. 2398 (where the state advanced the theory that the defendant was the primary shooter but asserted in the eodefendant’s hearing that the eodefendant was the primary shooter). Unlike the irreconcilably contrasting theories in Fotopoulos and Bradshaw, which each court upheld as permissible, the State here did not alter its theory with regard to the identity of the principal shooters.

In Raleigh v. State, 932 So.2d 1054 (Fla.2006), this Court analyzed a similar claim where the appellant challenged the State’s theory of the principal actor’s identity in a double murder. There the prosecutor asserted that the appellant was the principal actor in the murder of both victims. However, during closing argument in the code-fendant’s trial, the prosecutor noted the eodefendant had admitted that he killed one of the victims and that the appellant killed the other victim. This Court determined that the due process concerns in Bradshaw were not present because the State had consistently asserted in both trials that Raleigh was a principal actor in the death of one victim and that the statements of the codefendant merely reflected that the codefendant played a greater role in the murder than he initially admitted. “The essence of this argument was that [the codefendant] was no less culpable for the murder of [the victim] than Raleigh.” Raleigh, 932 So.2d at 1066. Similarly, the prosecutor’s argument that Walton was the ringleader and that Cooper and Van Royal were the shooters was directed to the culpability of each defendant. In asserting that Cooper was not under the control and substantial domination of Walton when he shot the victims, the prosecutor sought to establish that Cooper was no less culpable than Walton, who orchestrated the plan that culminated in the triple homicide, and thus Cooper was not entitled to mitigation for allegedly acting under duress.

A comparison of the challenged statements in Cooper’s sentencing hearing with those at Walton’s hearing confirms the cohesion of the State’s theory. At Cooper’s hearing, the State said that Cooper

was ready, posed and willing with his finger on the trigger and he made the decision to pull that trigger and to cock it and to pull the trigger again, and aimed it at a second victim and to cock it again and pull the trigger again and aim it at a third victim and then to reload either the last shot or the fourth shot and to come back in the house and pull the trigger again and then cock it again and eject the shell inside the house.

In Walton’s hearing, the State argued: “J.D. took the handgun, typically he had other peaple do the dirty work, but unquestionably, he ivas the ringleader, he was the planner, he was the prime mover among these younger individuals.” (Emphasis supplied.) In direct comparison, these statements show the underlying principle and theme that Walton was the ringleader and that Cooper ultimately pulled the trigger.

As an aside, Walton has claimed that this scenario was a “total fiction.” However, Walton’s own confession, along with the other facts presented during the sentencing hearing, corroborates the State’s theory that Walton organized the criminal episode. Therefore, the State did not take an inconsistent position or “change course” in its theory. Raleigh, 932 So.2d at 1067. In each proceeding resulting from the triple homicide, the State maintained the position that Walton was the ringleader and that Cooper and Van Royal were the trigger-men. The State did not advance inconsistent theories implicating Walton’s due process rights. Thus, we affirm the circuit court’s summary denial of this claim because Walton has failed to demonstrate either a new and fundamental change in constitutional law or that the State used inconsistent theories to secure the death penalty against Walton and his codefen-dants.

B. Any Possible Error in the Alleged Failure to Disclose the Use of a State Agent in the Sentencing Hearing that Resulted in the Death Sentence That Was Later Vacated Did Not Prejudice Walton.

Walton next contends that the State withheld material and exculpatory evidence tending to prove that a witness— who did not testify during either the guilt phase of the trial or the resentencing hearing — was a state agent, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). He claims that three affidavits filed in the federal proceeding's of codefendant Cooper constitute newly discovered evidence supporting this claim. Despite the fact that the witness did not testify during the second penalty proceeding, Walton asserts that the State’s failure to disclose the informant’s status as a state agent prejudiced him because the resentencing order referenced the informant’s prior testimony. We review de novo the application of the law while giving deference to the trial court on questions of fact. See Way v. State, 760 So.2d 903, 913 (Fla.2000). Under this review, it is clear that Walton is not entitled to relief on this claim because he has failed to demonstrate any prejudice from the alleged errors.

i. Newly Discovered Evidence Claim

Walton contends that these affidavits constitute newly discovered evidence that the State utilized a state agent to secure incriminating evidence against him and that they lend further support to his Brady and Giglio claims. To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of due diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998). Newly discovered evidence satisfies the second prong of this test if it “weakens the ease against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)).

Under this second prong, Walton has failed to demonstrate that these affidavits constitute evidence of such a nature that it would probably produce an acquittal on retrial. To the extent the affidavits suggest that the informant may have assisted as a state agent, they do not outweigh the strong evidence of Walton’s role in the triple homicide, which this Court has affirmed. See Walton I, 481 So.2d at 1200. At most, the affidavits suggest that the jailhouse informant told some police officers that he was assisting the State and that he was housed in the section of the jail that included informants. These general allegations, which do not specifically link the informant’s comments to Walton’s case or even the witness to the resentenc-ing proceeding, cannot supersede the plethora of evidence supporting Walton’s convictions and sentences.

Even though the informant was not presented as a witness during either the guilt phase of the trial or the resentencing hearing, Walton further asserts that the informant’s testimony nevertheless “contaminated” the resentencing hearing because the resentencing court included small details about the commission of the crime, such as Walton grabbing the victim’s hair, that were presented only in the informant’s prior testimony. Within the context of an ineffective assistance of counsel claim in Walton’s prior appeal, however, this Court rejected the “contamination” argument:

Walton seizes upon the trial court’s determination in its order that “Walton grabbed one of the victims by the hair,” in an attempt to show that the entire resentencing was tainted with evidence from the previous penalty phase reversed in Walton I. The State cannot identify any source for this information, and there is seemingly no record material from the resentencing proceedings which supports this statement by the trial court. While this presents questions, the inclusion of one errant phrase by the trial court in its sentencing order is not significant evidence that the trial court relied upon the original confessions of McCoy and Cooper [and, thus, the testimony of the informant who corroborated these confessions] in sentencing Walton to death. Clearly, taken in conjunction with the presence of overwhelming evidence before the court supporting its conclusions as to Walton’s leadership role in the burglary planning, this mistaken statement by the trial court within its final order was harmless. Certainly, the trial court’s final sentencing decision did not hinge upon whether Walton actually placed his hands upon a victim’s hair or not. Thus, this error did not contribute to Walton’s sentence, and we conclude that it was harmless under State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Walton IV, 847 So.2d at 448 (footnote omitted) (emphasis supplied). Thus, Walton has failed to establish that these affidavits constitute newly discovered evidence that would probably produce a different outcome.

ii. Brady Claim

Furthermore, these affidavits do not establish Walton’s claim of a Brady violation. Nothing in the record regarding the alleged informant’s speculative use as a state agent undermines our confidence in the verdict or sentences rendered to meet the materiality prong of Brady. The State is required, under Brady, to disclose material information within its possession or control that is favorable to the defense. See Mordenti v. State, 894 So.2d 161, 168 (Fla.2004). To establish a Brady violation, the defendant has the burden to 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. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Under Strickler, the materiality prong of Brady requires that the defendant demonstrate that there is a reasonable probability of a different outcome expressed as a probability sufficient to undermine our confidence in the outcome. See id. Even if we were to assume that the State erroneously withheld information, Walton suffered no prejudice because the informant did not testify during either the guilt phase of the trial or during the resentencing hearing. Any possible impeachment of the informant that was not established due to the claim that the State withheld his state agent status cannot be deemed material because there was no witness to impeach with the use of the alleged state agent in either the guilt phase of the trial, which resulted in Walton’s judgment of conviction, or during the resentencing hearing that determined his sentence. Thus, there is no reasonable probability that the nondisclosure of the informant’s status would result in a different outcome such as to undermine our confidence in the verdicts or sentences under Brady and Strickler.

iii. Giglio Claim

Moreover, the State did not present any testimony from the alleged informant during the guilt phase of the trial or the resentencing hearing, which leaves no reasonable possibility that the use of this testimony could have affected the outcome pursuant to Giglio. To establish a Giglio violation, it must be shown that: “(1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Guzman v. State, 868 So.2d 498, 505 (Fla.2003). This test requires us to consider whether there is any reasonable possibility that the false evidence could have affected the jury’s verdict or sentencing recommendation. See Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006). If the State actually presented misleading testimony at the first sentencing hearing, Walton still did not suffer any prejudice because the informant did not testify before a jury during the phases of the criminal proceeding that resulted in his judgment of conviction and death sentence. The only hearing during which false testimony from the informant could have been presented was the hearing that resulted in the death sentence that this Court later vacated. Thus, Walton has failed to establish a reasonable possibility that this alleged error could have affected the jury’s verdict or any sentence under Giglio.

We affirm the circuit court’s summary denial of this claim because the purported newly discovered evidence of a Brady or Giglio violation lacks any reasonable probability to undermine our confidence under Brady or any reasonable possibility that it could have affected the jury’s verdict or recommendation of a death sentence under Giglio. Furthermore, the affidavits do not constitute newly discovered evidence of such a nature that it would probably produce an acquittal on retrial. Therefore, this claim must also be denied.

iv. Public Records Request

In conjunction with this claim, Walton sought additional public records from the Office of the State Attorney. Walton requested all records, files, documents, notes, pleadings, memoranda, and attorney work product relating to eodefendant Cooper’s postconviction proceedings. He also desired access to all records, files, documents, notes, pleadings, memoranda, statements, and transcripts relating to the jailhouse informant where he was either a party or a witness. The circuit court denied the motion for the informant’s records because they were previously requested by defense counsel in 1993 and 1995 and determined to be statutorily exempt from production. With regard to Cooper’s documents, the circuit court found no indication that the information in a collateral, unrelated proceeding had any bearing on Walton’s current motion or that the records were relevant or reasonably calculated to lead to the discovery of admissible evidence in Walton’s postconviction proceeding.

This Court reviews the trial court’s denial of a public records request for abuse of discretion. See Diaz v. State, 945 So.2d 1136, 1149 (Fla.2006). Florida Rule of Criminal Procedure 3.852(i)(2), which limits postproduction requests for additional records, requires production of public records upon a finding of the following:

(A) collateral counsel has made a timely and diligent search of the records repository;
(B) collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository;
(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and
(D) the additional records request is not overly broad or unduly burdensome.

A review of Walton’s February 13, 2006, demand reveals that competent, substantial evidence supported the trial court’s exercise of discretion to deny the requests.

After an in-camera review by the circuit court in 1995, it was determined that the jailhouse informant’s files were statutorily exempt from production under chapter 119, Florida Statutes (1995). See also Fla. R.Crim. P. 3.852(0(1) (limiting the scope of production to records that are not privileged or immune from production). Even without these exemptions, Walton’s demand does not demonstrate how the documents would be reasonably calculated to lead to relevant information because the informant, as repeatedly noted, did not testify during Walton’s second sentencing proceeding. Walton also has not shown any change in circumstance from the circuit court’s 1995 ruling.

Lastly, Walton’s demand appears to be an “overly broad or unduly burdensome” fishing expedition seeking any and all records from more than thirty irrelevant, collateral cases unrelated to Walton’s post-conviction claim. See Fla. R.Crim. P. 3.852(i)(2)(D). To delve so deeply into collateral matters, Walton must explain, at a minimum, how that information would lead to evidence related to Walton’s claim. See Fla. R.Crim. P. 3.852(i)(1)(C), (2)(D). Walton did not demonstrate that discovery of the codefendant’s postconviction documents, the boxes of material relating to the informant in the federal court order, the case files in which the informant was a defendant, and the cases where, “based on the best information that was available, counsel believed ” that the informant was a state witness, would reasonably lead to evidence that would support his postcon-viction claim. The informant did not testify during Walton’s resentencing hearing, and this Court does not deem any evidence corroborating the informant’s purported status as a state agent to be material to the sentences imposed on remand. Likewise, the codefendant’s Brady claim in federal court has no bearing on Walton’s present motion. We therefore affirm the circuit court’s order denying the demand for production because the record supports its appropriate exercise of discretion.

C. Lethal Injection Claims.

i. The Lancet Article and Diaz Execution

Next, Walton challenges the constitutionality of Florida’s lethal injection protocol under the Eighth Amendment of the United States Constitution. The issue presented to the trial court in Walton’s postconviction motion was whether the study published in The Lancet, Inadequate Anaesthesia in Lethal Injectiim for Execution, constituted newly discovered evidence. See Leonidas G. Koniaris et al., Inadequate Anestltesia in Lethal Injection for Execution, 365 Lancet 1412 (2005). In summarily denying this claim, the circuit court ruled that it was bound by our decisions in Diaz v. State, 945 So.2d 1136 (Fla.2006), Rolling v. State, 944 So.2d 176, 179 (Fla.2006), Rutherford v. State, 926 So.2d 1100, 1113 (Fla.2006), and Hill v. State, 921 So.2d 579, 583 (Fla.2006), which held that (1) the Lancet study does not constitute newly discovered evidence; and (2) execution by lethal injection does not constitute cruel and unusual punishment.

On appeal, Walton appears to withdraw from any reliance upon The Lancet study. Instead, Walton now asserts that the circuit court erred in prematurely denying his successive motion before he had the opportunity to file a motion to amend his claim, which he did not intend to file until after the issues surrounding the Diaz execution were resolved. Reviewing the time-line of events, the Diaz execution occurred in early December 2006. In response, Walton moved to continue the case management conference scheduled for late December 2006. The circuit court granted this motion and rescheduled the conference for mid-January 2007. In February 2007, this Court dismissed without prejudice Walton’s petition in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), which would not have prevented him from filing a postconviction motion in the appropriate circuit court. The Governor’s Commission on the Administration of Lethal Injection in Florida issued its report regarding the Diaz execution in March 2007.

Thus, from December 2006, at the earliest, and by March 2007, at the latest, Walton was on notice to amend his motion to include any claims regarding the Diaz execution. Walton did not, however, attempt to supplement his motion based on the Diaz execution and the subsequent remedial measures. In his motion for rehearing, filed in late-March 2007, Walton’s counsel sought for the first time leave to amend his lethal injection claim based on newly discovered evidence premised upon the events surrounding the Diaz execution. In essence, Walton now contends that the trial court erred by not holding the disposition of his successive postconviction motion in abeyance until some unknown time when he was ready to file an amendment to his lethal injection claim.

We review the denial of a motion to amend a postconviction motion for abuse of discretion. See Huff v. State, 762 So.2d 476, 481 (Fla.2000). A review of the rules of procedure does not support Walton’s contention that a circuit court should perpetually hold resolution of a motion in abeyance pending an unfiled amendment to the motion. Moreover, Walton had several months between the Diaz execution and the circuit court’s order denying his motion to submit any amendments. Despite this window of opportunity, Walton did not timely file an amended motion, nor did he request leave to supplement the motion. Cf. Gaskin v. State, 737 So.2d 509, 518 (Fla.1999) (holding that the circuit court erred in failing to consider the merits of new allegations in a timely filed amended postconviction motion), receded from on other grounds by Nelson v. State, 875 So.2d 579, 583 (Fla.2004). Thus, the trial court did not abuse its discretion by failing to consider amendments and allegations that were never filed or raised until the motion for rehearing.

Furthermore, even if we considered the merits, this Court has continually upheld the constitutionality of Florida’s lethal injection protocol since the issuance of Lightbourne. See Tompkins v. State, 994 So.2d 1072, 1082-83 (Fla.2008) (citing Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 997 So.2d 1073, 1089 (Fla.2008); Henyard v. State, 992 So.2d 120, 129 (Fla.2008), cert. denied, — U.S. -, 129 S.Ct. 28, 171 L.Ed.2d 930 (2008); Schwab v. State, 995 So.2d 922, 925-33 (Fla.2008), petition for cert filed, No. 08-5020 (U.S. June 30, 2008); Woodel v. State, 985 So.2d 524, 533-34 (Fla.2008), cert. denied, — U.S.-, 129 S.Ct. 607, 172 L.Ed.2d 465 (2008); Lebron v. State, 982 So.2d 649, 666 (Fla.2008); Schwab v. State, 982 So.2d 1158, 1159-60 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326, 350-53 (Fla.2007), cert. denied — U.S. -, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008); Schwab v. State, 969 So.2d 318, 321-25 (Fla.2007), cert. denied, — U.S. ——, 128 S.Ct. 2486, 171 L.Ed.2d 777 (2008)).

The research study in The Lancet does not constitute newly discovered scientific evidence that Florida’s lethal injection protocol creates a substantial, foreseeable, or unnecessary risk of pain for the condemned. See Rutherford, 926 So.2d at 1113-14; see also Sims v. State, 754 So.2d 657, 668 (Fla.2000). Walton fails to present any additional testimony or evidence regarding Florida’s current lethal injection protocol other than those already rejected by this Court. Since the issuance of our decision in Lightboume, further developments support our conclusion that Florida’s lethal injection protocol does not constitute cruel and unusual punishment under the Eighth Amendment. As to the first development, Walton does not present any new evidence with regard to the chemicals employed since the United States Supreme Court’s decision in Baze v. Rees, — U.S. -, -, 128 S.Ct. 1520, 1534, 170 L.Ed.2d 420 (2008), which upheld the constitutionality of the same method of execution used in Florida, consisting of lethal injection through the same three-drug combination under similar protocols.

Moreover, we have rejected contentions that Baze set a different or higher standard for lethal injection claims than Lightbourne. See, e.g., Henyard, [992 So.2d at 129] (rejecting Henyard’s argument that Baze sheds new light on this Court’s decisions because the standard for reviewing Eighth Amendment challenges was changed and noting that “[w]e have previously concluded in Lightboume and Schwab that the Florida protocols do not violate any of the possible standards, and that holding cannot conflict with the narrow holding in Baze ”). The second development was the performance of two executions in Florida, those of Mark Dean Schwab and Richard Henyard, with no subsequent allegations of any newly discovered problems with Florida’s lethal injection process, such as the problems giving rise to the investigations following the Diaz execution.

Tompkins, 994 So.2d at 1081-82. Thus, the circuit court did not err in summarily denying relief on this claim.

ii. The ABA Report

Walton has separately asserted that the ABA report entitled Evaluating Fairness and Accuracy in the State Death Penalty System: The Floñda Death Penalty Assessment Report, published September 17, 2006, constitutes newly discovered evidence which reveals that the imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment. Just as this Court has previously considered The Lancet report, we have also reviewed the ABA report and concluded that it does not constitute newly discovered evidence because the report is “a compilation of previously available information related to Florida’s death penalty system and consists of legal analysis and recommendations for reform, many of which are directed to the executive and legislative branches.” Rutherford v. State, 940 So.2d 1112, 1117 (Fla.2006); see also Tompkins, 994 So.2d at 1082-88; Power, 992 So.2d at 220-28; Schwab, 969 So.2d at 325-26 (“[T]his Court has not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence.”); Diaz, 945 So.2d at 1136; Rolling, 944 So.2d at 181. Moreover, nothing in the report would cause this Court to recede from its past decisions upholding the facial constitutionality of the death penalty. See Rolling, 944 So.2d at 181 (citing Rutherford, 940 So.2d at 1118).

Though Walton attempts to allege that the report’s conclusions render his individual death sentence unconstitutional, the specific allegations in his motion merely refer to generalities that are noted in the report but do not relate in any specific way to Walton’s death sentence. See Tompkins, 994 So.2d at 1083; Power, 992 So.2d at 222. Walton also fails to assert that had a hearing been granted, he would have presented additional evidence or testimony regarding the lethal injection protocol that would yield a less severe sentence than those already rejected in Tompkins, Power, Diaz, Rolling, and Rutherford. Thus, for the same reasons that we expressed in our previous decisions, we again hold that the ABA report does not constitute newly discovered evidence demonstrating the unconstitutionality of Florida’s capital sentencing mechanisms.

iii. Request for Additional Public Records Relating to Lethal Injection

In his motion for production of public records to support his claim that lethal injection constitutes cruel and unusual punishment, Walton sought “all information that in any way related to lethal injection,” specifically enumerating an additional sixty-one documents or categories of documents relating to execution by lethal injection. Walton’s request was made pursuant to Florida Rule of Criminal Procedure 3.852(i), which limits postproduction requests for additional records. The record conclusively demonstrates that the circuit court did not abuse its discretion in denying this claim because the records requested were neither relevant nor reasonably calculated to lead to the discovery of admissible evidence for this claim. See Fla. R.Crim. P. 3.852(i)(2)(C) (requiring production of records upon finding that the additional records sought are either relevant or reasonably calculated to lead to the discovery of admissible evidence). Foremost, as explained in connection with our discussion of lethal injection, production of these records is unlikely to lead to a color-able claim for relief because the challenge to the constitutionality of lethal injection as currently administered in Florida has been fully considered and rejected by the Court. See Tompkins, 994 So.2d at 1090; Power, 992 So.2d at 221-23; Sexton, 997 So.2d at 1089; Henyard, 992 So.2d at 129-30; Schwab, 969 So.2d at 321-26; Lightbourne, 969 So.2d at 349-53. Walton has not alleged any specific problems with Florida’s lethal injection protocol following the Schwab and Henyard executions that might support a different Eighth Amendment claim than the one previously rejected in Lightbourne. See Tompkins, 994 So.2d at 1090. Thus, the record contains competent, substantial evidence that supports the circuit court’s decision to deny the request.

Accordingly, for the reasons set out above, we affirm the trial court’s summary denial of Walton’s successive postconviction motion.

It is so ordered.

WELLS, PARIENTE, LEWIS, and CANADY, JJ., and ANSTEAD, Senior Justice, concur.

QUINCE, C.J., recused.

POLSTON, J., did not participate.

      . Further factual details can be found in the Court's previous decisions addressing Walton's capital proceedings. See Walton v. State, 847 So.2d 438 (Fla.2003) (Walton IV) (affirming denial of rule 3.850 motion and petition for writ of habeas corpus); Walton v.

        State, 634 So.2d 1059 (Fla.1993) (Walton III) (remanding for further circuit court proceedings on rule 3.850 motion and petition for writ of habeas corpus); Walton v. State, 547 So.2d 622 (Fla.1989) (Walton II) (direct appeal after resentencing); Walton v. State, 481 So.2d 1197 (Fla.1985) (Walton I) (direct appeal reversing and remanding for new sentencing hearing).

      . Walton raised thirteen claims relating to his counsel's alleged ineffectiveness, including challenges to the (1) proportionality of the death sentence and aggravating circumstances; (2) improper jury instructions and their alleged shifting of the burden of proof; (3) contamination of the resentencing proceeding with the evidence this Court determined was improperly presented during his first sentencing proceeding; (4) admission of the testimony of a codefendant's mental health expert; (5) suppression of statements; (6) absence of Walton from a portion of the proceedings; and (7) application of Florida Rule of Criminal Procedure 3.851. See Walton IV, 847 So.2d at 442 n. 1.

      .Walton's habeas petition alleged ten claims, including: (1) new law mandated reconsideration of his original evidentiary claims; (2) unconstitutional procedures in Florida’s system of capital sentencing; (3) errors in proportionality and aggravating circumstances; and (4) prejudicial admission of evidence of collateral crimes. See Walton IV, 847 So.2d at 443 n. 3.

      . Walton’s appeal added the following claims: (1) counsel failed to adequately investigate and prepare for trial; (2) violation of Brady; (3) error in admission of testimony of a code-fendant's mental health expert; and (4) new trial mandated by newly discovered evidence tending to show that Walton was not the ringleader. See Walton IV, 847 So.2d at 438 n. 2.

      . Leonidas G. Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412 (2005).

      . Walton was among a group of death row inmates who filed an emergency all writs petition in Lightbourne, which requested that this Court address whether Florida's lethal injection protocol violates the Eighth Amendment in the wake of the Diaz execution. See Lightbourne, 969 So.2d at 328-29. Except for petitioner Lightbourne, we dismissed the claims of all the petitioners without prejudice. See Lightbourne v. McCollum, No. SC06-2391 (Fla. order dated Feb. 9, 2007).


text:
    Robert CONSALVO, Appellant, v. STATE of Florida, Appellee.
    No. SC07-2175.
    Supreme Court of Florida.
    Jan. 29, 2009.
    Rehearing Denied Feb. 25, 2009.

      Ira W. Still, III, Coral Springs, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion for DNA testing under Florida Rule of Criminal Procedure 3.853. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.

Proceedings to Date

The facts of this case have been set out in our previous opinions in Consalvo v. State, 697 So.2d 805 (Fla.1996), and Consalvo v. State, 937 So.2d 555 (Fla.2006). We have previously characterized the proof of Consalvo’s guilt as “overwhelming.” See, e.g., Consalvo, 697 So.2d at 816.

On September 13, 2001, prior to the enactment of section 925.11, Florida Statutes (2008), and Florida Rule of Criminal Procedure 3.853, prescribing procedures and conditions for securing DNA testing in criminal cases, Consalvo filed a motion to release crime scene evidence to conduct expert lab and DNA testing. On March 7, 2002, the trial court issued an order granting Consalvo leave to test evidence “with the provision that all evidence must be analyzed and tested under controlled conditions as established by the Broward Sheriffs laboratory; and provided that any testing be conducted with representatives of the State and of the Defendant present.” The BSO lab issued its report on January 13, 2004. The lab reported “possible hairs lacking a root ... are not suitable for STR (DNA) testing, but may be suitable for mitochondrial DNA examination. This laboratory does not do mitochondrial DNA analysis.”

Subsequently, Consalvo filed a second motion to release crime scene evidence to conduct mitochondrial DNA testing. Thereafter, on October 18, 2007, the trial court issued its order denying Consalvo’s motion to release crime scene evidence for mtDNA testing, stating the motion “does not satisfy the pleading requirements of rule 3.853 in that it is not under oath, nor does the motion demonstrate how the DNA testing will exonerate defendant or mitigate his sentence.” Consalvo appeals this order, alleging that the requirements of rule 3.853 should not apply to his second motion.

ANALYSIS

This issue involves a pure question of law and thus is subject to de novo review. See State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001) (“If the ruling consists of a pure question of law, the ruling is subject to de novo review.”). We reject Consalvo’s claim that because his first motion was filed before enactment of the rule, his later motion should be exempted from the rule’s requirements. We agree with the trial court that, on its face, Consalvo’s motion is insufficiently pleaded under rule 3.853. Further, we do not find persuasive Consalvo’s argument that rule 3.853 should not apply to his motion although the motion was filed and considered well after the enactment of section 925.11 and the rule. While we agree that the standards for granting DNA testing vested broader discretion in the trial court prior to the enactment of the statute and rule, we have consistently upheld application of the statute and rule to motions decided after their enactment.

Further, since the inception of rule 3.853, “[c]ases addressing this issue have uniformly held that DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant’s guilt or innocence.” Huffman v. State, 837 So.2d 1147, 1149 (Fla. 2d DCA 2003) (quoting Zollman v. State, 820 So.2d 1059, 1063 (Fla. 2d DCA 2002)). As in Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001), and in the face of a record demonstrating “overwhelming” evidence of his guilt, Con-salvo has not even attempted to demonstrate how further testing would exonerate him.

Rule 3.853 delineates the procedures for obtaining DNA testing under section 925.11, and states that a petition for postconviction DNA testing must include, among other things, “a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime.” Fla. R.Crim. P. 3.853(b)(3). We have previously explained that “[r]ule 3.853 is not intended to be a fishing expedition.” Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004). Rather, “[i]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Robinson v. State, 865 So.2d 1259, 1265 (Fla.2004) (citing Hitchcock, 866 So.2d 23). Additionally, the defendant’s burden is to show a demonstrable “nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.” Hitchcock, 866 So.2d at 27.

The trial court concluded that Con-salvo’s motion did not meet the requirements of rule 3.853, but additionally found, “[E]even if this Court were to find that the motion did satisfy the requirement of rule 3.853,defendant has failed to show a reasonable probability that he would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.” We find no error in the trial court’s conclusions.

Accordingly, for the foregoing reasons, we find the trial court properly denied Consalvo’s motion and we affirm that order.

It is so ordered.

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

      . On January 9, 2003, the trial court amended its order removing the witness requirement and requiring Consalvo to provide an oral buccal swab and for the Broward Sheriff's Office (BSO) lab to conduct the testing.