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Defendant was tried, convicted, and sentenced for several crimes against four separate victims. Two of the victims - Iris White and Jackie McCahon - were murdered, while two were not. This appeal stemmed from Defendant's first-degree murder conviction and accompanying death sentence for stabbing Iris White to death inside her home. The Supreme Court denied each of Defendant's claims on appeal, found the death penalty to be proportionally warranted, and affirmed Defendant's convictions and sentences. Defendant subsequently filed a motion for postconviction relief, raising twenty claims. Ultimately, the postconviction court denied Defendant's postconviction motion in its entirety. The Supreme Court affirmed the circuit court's denial of Defendant's motion for postconviction relief, holding that Defendant was not entitled to postconviction relief from his conviction and sentence for the first-degree murder of White.Receive FREE Daily Opinion Summaries by Email
Supreme Court of Florida
STATE OF FLORIDA,
[November 8, 2012]
Emanuel Johnson appeals the ruling of the Twelfth Judicial Circuit Court
denying his motion to vacate his sentence of death, filed under Florida Rule of
Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
For the reasons expressed below, we affirm the circuit court’s order.
Between April and June 1991, Johnson was tried, convicted, and sentenced
for several crimes committed between January and October 1988 against four
separate victims. Two of the victims—Iris White and Jackie McCahon—were
murdered, while two—Kate Cornell and Lawanda Giddens—were not. Johnson’s
convictions in the noncapital cases were used as aggravators in both capital cases,
and each capital conviction was used as an aggravator in the other capital case.
This appeal stems from Johnson’s first-degree murder conviction and
accompanying death sentence for stabbing Iris White to death inside her home. In
addition to the murder conviction, Johnson was convicted of armed burglary of
On direct appeal, this Court set out the following facts summarizing
Johnson’s crimes against White:
On October 4, 1988, police found the body of 73-year-old Iris
White. She was naked from the waist down and had suffered twentyfour stab wounds, one incised wound, and blunt trauma to the back of
the head. A variety of fatal wounds penetrated the lungs and heart.
The body also showed evidence of defensive wounds and abrasions
near the vagina and anus most likely caused by a forceful opening by
hand or fingernails.
Police found a screen in the living room had been cut and the
lower window raised. The fingerprints of Emanuel Johnson were
recovered from the window sill. Police also found two pubic hairs
that showed the same microscopic characteristics as Johnson’s,
though an expert stated that an exact identification was not possible.
Johnson had done yard work for White some years earlier.
After a lengthy interrogation on October 12, 1988, Johnson
gave a taped confession to police. He stated that he knocked on
White’s door to talk about lawn maintenance. When she opened the
door, he then grabbed her, choked her to unconsciousness, and then
stabbed her several times. Johnson said he then left the house, locking
the door behind himself, but forgot to take White’s wallet. Twenty
minutes later he cut open the window screen, climbed in, took the
wallet, and left. Johnson said he later threw the wallet in an area
where a road surveyor later found it.
Johnson v. State, 660 So. 2d 637, 641 (Fla. 1995). For the capital offense, the jury
recommended by a vote of eight to four that Johnson be put to death. In sentencing
Johnson to death, the trial court found three aggravating factors—prior violent
felony, commission of a murder for financial gain, and heinous, atrocious, or cruel
(HAC)—along with fifteen mitigating factors, including that Johnson suffered
mental pressure not reaching the level of statutory mitigation. The trial court then
found that each aggravating factor alone outweighed all of the mitigating factors
and sentenced Johnson to death. Johnson, 660 So. 2d at 641.
Johnson raised ten claims on direct appeal: (1) his confession was
involuntary and should have been suppressed; (2) the search warrant and
accompanying affidavit were improper and the resulting evidence should have
been suppressed; (3) the trial court erred in denying a voir dire challenge for cause;
(4) this Court should consider the arguments raised in Johnson’s appeal from his
conviction of the McCahon murder; (5) the trial court improperly limited the
presentation of mitigating evidence; (6) Johnson was prejudiced by the State’s
eliciting of improper testimony and improper closing argument; (7) the trial court
improperly rejected the extreme mental disturbance mitigating factor; (8) the trial
court committed various errors when instructing the jury; (9) the felony-murder
aggravator is an unconstitutional “automatic” aggravator; and (10) the standard
jury instruction given on the HAC aggravator was constitutionally infirm. Id. at
641-48. This Court denied each of Johnson’s claims, found the death penalty to be
proportionally warranted, and affirmed Johnson’s convictions and sentences. Id. at
II. MOTION FOR POSTCONVICTION RELIEF
A. Procedural Background
In March 1997, Johnson filed a shell motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850. After several rulings from
both the postconviction court and this Court tolling the time for Johnson to file an
amended postconviction motion, 1 as well as multiple amended motions for
postconviction relief filed by Johnson with leave to further amend, Johnson’s
postconviction claims moved forward on an amended motion for postconviction
relief filed in September 2003 and an addendum filed in December 2003.
Johnson raised the following claims before the postconviction court: (1)
defense counsel provided ineffective assistance by mishandling mental health
1. See, e.g., Johnson v. State, No. SC78,336 (Fla. order filed Jun. 4, 1997)
(unpublished order tolling time for filing of Johnson’s amended motion due to
financial condition of Office of the Capital Collateral Representative); In re
Amendments to Fla. Rule Crim. Pro. 3.852, 700 So. 2d 680, 681 (Fla. 1997)
(tolling time for filing Johnson’s postconviction motion for ninety days to allow
collateral counsel to transition from a single office to three regional offices);
Amendments to Fla. Rules Crim. Pro. 3.851 & 3.850, 719 So. 2d 869, 871-72 (Fla.
1998) (tolling time for Johnson to file motion under rule 3.850 or 3.851 until
October 1, 1998, based on insufficient funding of collateral counsel); and State v.
Johnson, Nos. 88 CF 3200, et al. (Fla. 12th Cir. Ct. order filed Feb. 13, 2002)
(extending date for filing of Johnson’s amended motion to March 4, 2002).
experts; (2) the State committed prosecutorial misconduct by manipulating the trial
schedule of Johnson’s four trials and failing to make timely disclosure of
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
rendering defense counsel ineffective in conducting Johnson’s defense; (3) the
State engaged in prosecutorial misconduct by offering evidence of sperm after an
Federal Bureau of Investigation (FBI) report stated that none had been found, and
defense counsel was ineffective in failing to object to the State’s misconduct; (4)
defense counsel was ineffective in failing to call a competent mental health expert
at Johnson’s penalty phase trial; (5) the prior violent felony aggravator was based
on invalid convictions; (6) Rule Regulating the Florida Bar 4-3.5(d)(4)
unconstitutionally prevented Johnson, through his counsel, from interviewing
jurors and thereby also rendered defense counsel’s assistance ineffective; (7) as
applied, the Florida death sentencing statute is unconstitutional; (8) the trial court
denied Johnson due process of law by preventing him from informing the jury
about his ineligibility for parole and the possible sentences he would likely receive
in other pending criminal cases; (9) Johnson’s death sentence is unconstitutional
because the penalty phase jury instructions improperly shifted the burden of proof
to Johnson, and defense counsel was ineffective in failing to object to the improper
jury instructions; (10) Florida’s method of execution by lethal injection constitutes
cruel and unusual punishment; (11) Johnson’s convictions are materially unreliable
based on the cumulative effect of the errors during his guilt and penalty phase
trials; (12) Johnson’s death sentence constitutes cruel and unusual punishment
because Johnson may be incompetent at the time of execution; (13) the State
engaged in prosecutorial misconduct by arguing facts not in evidence, and defense
counsel was ineffective in failing to challenge the State’s improper argument; (14)
the State engaged in prosecutorial misconduct by presenting false evidence at the
suppression hearing, and defense counsel was ineffective in failing to challenge the
State’s misconduct; (15) the State engaged in prosecutorial misconduct by
presenting inconsistent theories, and defense counsel was ineffective in failing to
challenge the State’s misconduct; (16) defense counsel rendered ineffective
assistance by failing to introduce evidence of Johnson’s actual innocence; (17) the
State’s use of illegally obtained rolled fingerprints was unconstitutional; (18) the
State violated due process by destroying potentially useful evidence in bad faith;
(19) Johnson’s arrest, search, and seizure were all based on a defective affidavit
that contained false statements, and defense counsel was ineffective for failing to
present these facts at the suppression hearing; and (20) the search warrants were
not issued by a neutral magistrate, and defense counsel was ineffective in failing to
discover and present this claim.
All but four of Johnson’s postconviction claims raised in this case correlated
with substantially similar claims raised in his parallel postconviction motion
challenging his convictions and sentences for the McCahon murder. See Johnson
v. State, No. SC10-2219, slip op. at 5-6 (Fla. Nov. 8, 2012). Because of the
significant interrelation between Johnson’s postconviction motion in this case and
his postconviction motion regarding the McCahon murder, the postconviction
court held a consolidated hearing on both motions pursuant to Huff v. State, 495
So. 2d 145 (Fla. 1986), on September 21, 2005. Following the Huff hearing, the
postconviction court entered a single order granting an evidentiary hearing on the
first four of Johnson’s postconviction claims in this case—which were
substantially indistinguishable from Johnson’s first four claims in the McCahon
murder postconviction proceeding—and summarily denying the remainder of
Johnson’s postconviction claims relating to White’s murder. State v. Johnson,
Nos. CF 88-3198, et al. (Fla. 12th Cir. Ct. order filed Mar. 1, 2007).
Before the evidentiary hearing was held, Johnson filed several pro se
pleadings seeking to discharge collateral counsel and raising additional claims that
he believed were not adequately addressed by collateral counsel. Ultimately,
Johnson withdrew his attempts to discharge counsel, and collateral counsel adopted
six of Johnson’s pro se claims. The additional claims alleged that the search
warrant, the affidavit in support of the warrant, and the inventory list of items
obtained pursuant to the warrant were false in that each document was backdated
and signed after the search of his premises had been completed. Specifically,
Johnson argued that: (21) the State had the duty to disclose the false documents
because they constituted impeachment evidence; (22) the State had a duty to
disclose that the false documents had been filed; (23) the State committed a
fundamentally unfair act by fabricating, filing, and relying on the false documents;
(24) the judge who backdated and signed the false documents was not neutral and
detached; (25) the State committed per se reversible error by using and failing to
advise the defense about the false documents; and (26) Johnson’s claims regarding
the false documents are not procedurally barred because he was deprived of
substantive due process. The postconviction court issued a single order and
summarily denied each of Johnson’s additional claims, holding that the conclusory
allegations contained therein were insufficient to require an evidentiary hearing,
that the claims should have been raised on appeal, and that Johnson had previously
argued the issues during the Huff hearing. State v. Johnson, Nos. 88 CF 3198, et
al. (Fla. 12th Cir. Ct. order filed Apr. 28, 2009).
B. Evidentiary Hearing Testimony
At an evidentiary hearing held on August 3 and 4, 2009, the postconviction
court heard testimony from Johnson’s three trial attorneys—Adam Tebrugge,
Tobey Hockett, and Eliot Metcalfe—regarding the defense’s pretrial management
of four experts—Dr. Walter Afield, Dr. Michael Maher, Dr. Richard Ofshe, and
Dr. John Brigham. Attorney Tebrugge, who was Johnson’s primary attorney for
the penalty phase of the trials regarding both the White and McCahon murders,
testified regarding Dr. Afield, who was appointed by the trial court pursuant to
Florida Rule of Criminal Procedure 3.216 in order to determine whether Johnson
was competent to stand trial and whether Johnson may have been insane at the
time he committed the murders. Tebrugge testified that throughout the preparation
for Johnson’s trials, he had developed concerns with Dr. Afield’s potential
testimony and ultimately was convinced that Dr. Afield would not be a helpful
witness to the defense. Tebrugge further testified that the decision not to use Dr.
Afield as a witness during either Johnson’s guilt or penalty phase trials was based
on the defense’s feeling that Dr. Afield would not be a helpful witness. Tebrugge
testified that the decision was not based on any threat by the State to present
contradicting expert testimony if the defense called Dr. Afield as a witness.
Attorney Metcalfe, who at the time of Johnson’s trials was the Public
Defender for the Twelfth Judicial Circuit, testified to similar effect. Metcalfe
testified that the defense could not get a straight answer from Dr. Afield regarding
whether a valid basis existed on which to rest an insanity defense and that, as a
result, he believed that Dr. Afield’s testimony would undermine any attempted
insanity defense. Metcalfe testified that for this reason, he was nervous about
calling Dr. Afield as a witness and that he ultimately became uncomfortable with
using Dr. Afield for any purpose whatsoever. Metcalfe testified that Johnson’s
trial team had conducted strategy sessions regarding whether to use Dr. Afield as a
witness and that the attorneys had ultimately decided against using Dr. Afield at
Regarding the decision to make Dr. Afield available for a deposition,
Attorney Hockett, who worked primarily on the pretrial aspects of Johnson’s trials,
testified that the defense had originally listed Dr. Afield as a potential witness,
which allowed the State to depose him. Hockett testified that when, during the
deposition, the State asked Dr. Afield to disclose confidential information
regarding his conversations with Johnson, Hockett objected to the State’s question
but did not feel that he could do anything else to prevent Dr. Afield from
answering the question.
Dr. Afield also testified at the evidentiary hearing. Dr. Afield testified that
he had evaluated Johnson on October 27, 1988, while Johnson was incarcerated.
Dr. Afield recalled his impression that Johnson was chronically retarded and
schizophrenic and that Johnson had been attempting to control his psychosis with
prescription medication and cocaine, both of which made the psychosis worse. Dr.
Afield testified that he had discussed the possibility of an insanity defense with
Johnson’s trial counsel and had informed them that such a defense might be
possible but that he would need more information to be certain. However, Dr.
Afield testified that after he was deposed in September 1990, he did not hear from
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counsel again regarding the possibility of pursuing an insanity defense. Thus, in
April 1991, he submitted a report advising trial counsel that he did not believe
there was a basis for an insanity defense. On cross-examination, Dr. Afield
testified that he did not believe that Johnson could have been faking insanity by
pretending to be delusional. In Dr. Afield’s opinion, Johnson was too mentally
retarded to pretend to be insane. On redirect, Dr. Afield admitted that Johnson’s
IQ was roughly 100, which is normal, although Dr. Afield stated that other tests
were indicative of brain dysfunction. Dr. Afield also recalled that, during his
evaluation, Johnson made admissions regarding the crimes with which he was
Regarding Dr. Maher, attorney Tebrugge testified that based on his
dissatisfaction with Dr. Afield, he decided to employ Dr. Maher, a psychiatrist who
specialized in the areas of substance abuse and cocaine psychosis. Tebrugge
testified that after the defense listed Dr. Maher as a potential witness, Dr. Maher
was deposed by the State, during which he made several statements regarding
admissions made by Johnson. Tebrugge testified that based on Dr. Maher’s
deposition, he decided not to call Dr. Maher as a witness after discussing the issue
with Johnson. Tebrugge also testified that the State had threatened to call Dr.
Maher as a State’s witness based on the information he revealed during his
deposition. Tebrugge objected to the State’s threat on the grounds that any
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admissions made by Johnson to Dr. Maher were privileged and could not be
introduced at trial. Tebrugge testified that it was his belief that although listing Dr.
Maher as a potential witness allowed the State to depose him and waived any
attorney-client privilege attached to Dr. Maher, such waiver could be revoked by
removing Dr. Maher as a potential witness.
Regarding Dr. Ofshe, an expert in coerced confessions, attorney Hockett
testified that the defense saw Dr. Ofshe as its best chance to suppress Johnson’s
confession because Dr. Ofshe believed that the confession had been coerced and
because Dr. Ofshe had intentionally avoided asking Johnson any questions that
could lead to admissions regarding the crimes. Hockett testified that the defense
had presented Dr. Ofshe’s testimony at the motion to suppress hearing but that,
after the court denied the defense’s motion, the defense never considered using Dr.
Ofshe as a guilt phase witness. Hockett testified that the defense decided it would
not be helpful to present Dr. Ofshe as a witness at trial because it had already
preserved the issue at the suppression hearing and because repeating a week’s
worth of testimony would not have aided the defense.
Regarding Johnson’s claim that the State’s manipulation of Johnson’s four
trial dates had rendered Johnson’s counsel ineffective, attorney Hockett recalled
that the defense had worked on securing Dr. Brigham, an expert in eyewitness
identification, as an expert in the case regarding victim Cornell. Hockett testified
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that the defense had made multiple attempts to continue Johnson’s trial schedule in
order that Dr. Brigham could have time to adequately prepare for the trial
regarding victim Cornell but that the trial court had denied the defense’s motions
for continuance. Attorney Metcalfe similarly testified that the defense had
discussed using Dr. Brigham as an expert in eyewitness identification in the trial
regarding victim Cornell and possibly also the trial regarding victim Giddens.
Dr. Brigham also testified at the evidentiary hearing. Dr. Brigham testified
that he had been contacted in the late spring of 1991 by attorney Hockett about the
possibility of testifying as an expert witness in the trial regarding victim Cornell.
After reviewing some materials from the case, Dr. Brigham replied that he would
not have the chance to fully review the necessary materials before trial but that, if
the trial were to be postponed, he would be interested in participating. Dr.
Brigham acknowledged that he had sent Hockett a letter on April 18, 1991, stating
that his testimony would be most useful regarding the effect that exposure to
several prior photo lineups would have had on a witness’s ability to correctly
identify a perpetrator from a subsequent lineup. Dr. Brigham claimed that—had he
been able to testify at trial—he would have assisted Johnson’s trial attorneys in
cross-examining any eyewitness. On cross-examination, Dr. Brigham admitted
that he would have testified at trial only regarding general principles of eyewitness
identification. Dr. Brigham also admitted that he had not performed an actual
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study on Cornell’s identification. On redirect, Dr. Brigham clarified that had he
been employed as an expert by the defense, he would have conducted a thorough
study of all relevant records and reached an expert opinion regarding Cornell’s
eyewitness identification of Johnson.
The postconviction court also heard the testimony of Marjorie Hammock, a
professor of social work who was tendered by collateral counsel as a mitigation
specialist based on her expertise in biopsychosocial assessments—a tool for
explaining how individuals came to be in a particular situation in their lives. Ms.
Hammock performed a biopsychosocial assessment of Johnson, reviewed the
Department of Corrections’ records for Johnson, examined his health, mental
health, and school records (grades one through six), and read interviews with
several of Johnson’s family members and other individuals involved in the case.
Ms. Hammock also personally interviewed several of Johnson’s family members
and interviewed Johnson himself three times. Based on these sources, Ms.
Hammock testified that poverty and abandonment were key patterns in Johnson’s
life. Ms. Hammock also testified that Johnson felt oppressed by the white
community and that Johnson had been ridiculed by the teachers and children at his
school. Ms. Hammock stated that Johnson had attempted to commit suicide
twice—once as a young teenager by taking his mother’s antidepressant pills and
later by attempting to slit his wrists while incarcerated—and that Johnson used
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crack cocaine extensively by the time of the murders. Ms. Hammock then testified
regarding the miscarriage of Johnson’s first child and the effect it had on him,
including that he carried a picture of the dead child with him and showed it to
everyone. Ms. Hammock concluded that Johnson had been in psychological
distress for most of his life and that he was unable to deal with the issues that
On cross-examination, Ms. Hammock testified regarding Beverly
Ackerman, an investigator employed by Johnson’s trial counsel for the purpose of
gathering mitigation evidence. Ms. Hammock agreed that she and Ms. Ackerman
had interviewed many of the same people and read many of the same records. Ms.
Hammock admitted that Ms. Ackerman had interviewed some people and reviewed
some records that Ms. Hammock had not. Ms. Hammock claimed, however, that
although much of her investigation overlapped with Ms. Ackerman’s investigation,
the information that she gathered from the records and interviews was not
necessarily the same as that gathered by Ms. Ackerman. Attorney Metcalfe also
testified regarding Ms. Ackerman, recalling that his strategy was to gather as much
information about Johnson as possible. To this effect, Metcalfe had sent Ms.
Ackerman to Johnson’s hometown in Mississippi because he felt that as a black
female, Ms. Ackerman would have the best chance of connecting with and getting
information from Johnson’s family and community.
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C. Postconviction Court’s Ruling
Following the evidentiary hearing, the postconviction court issued an order
denying Johnson’s remaining postconviction claims. Regarding Johnson’s first
claim that his trial counsel rendered ineffective assistance by mishandling the
defense’s mental health expert witnesses, the postconviction court held that
counsel was not ineffective in failing to call Dr. Afield as a witness because (1) it
was clear that the decision was a tactical one based on the fact that Dr. Afield’s
testimony would have been more harmful than helpful to the defense; and (2)
Johnson had not established prejudice in light of this Court’s ruling on direct
appeal that the evidence of Johnson’s mental disturbance—as presented in full at
the suppression hearing at which Dr. Afield testified—did not rise to the level of a
statutory mitigator. Johnson, 660 So. 2d at 646-47. Similarly, regarding counsel’s
decision not to call either Dr. Maher or Dr. Ofshe at trial, the postconviction court
concluded that counsel’s performance was not deficient, but was strategic based on
the content of both doctors’ potential testimony and that Johnson was not
prejudiced by the lack of testimony. Furthermore, the court ruled that Johnson was
not prejudiced by his counsel’s decision to allow each of the doctors to be deposed
because none of counsel’s decisions regarding the doctors were influenced by the
State’s threat to call Dr. Maher at trial.
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The postconviction court also denied the portion of Johnson’s second claim
alleging that defense counsel mishandled Dr. Brigham during the trial relating to
victim Cornell and that Johnson was prejudiced by counsel’s deficiency because
his conviction in that case was used as an aggravator in the capital cases. The
court found that counsel was not deficient because the requests for continuance in
order to accommodate Dr. Brigham’s schedule were denied and that Johnson had
suffered no prejudice because Dr. Brigham’s testimony was by no means certain to
be admitted at trial. The court also found that even in Dr. Brigham’s absence,
Johnson’s trial counsel intensely challenged Ms. Cornell’s identification of
Finally, the postconviction court denied Johnson’s claim that his counsel
was ineffective in failing to hire a mitigation expert to investigate and testify at
Johnson’s penalty phase trial. The court determined that counsel was not deficient
because mitigation had been a central focus of the defense, as evidenced by Ms.
Ackerman’s investigation. The court found that Ms. Hammock would have
performed substantially the same in investigating and reporting mitigating
evidence as did Ms. Ackerman. The court concluded that Johnson’s argument that
an expert such as Ms. Hammock would have presented the evidence more
articulately or credibly was nothing more than second-guessing his trial counsel’s
strategic decisions. The court further concluded that Johnson had failed to
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establish prejudice because much of the information testified to by Ms. Hammock
was expressed clearly, articulately, and credibly by Johnson’s family members
during his penalty phase trial.
The postconviction court made no ruling regarding Johnson’s allegations in
his second claim that the State had failed to timely disclose exculpatory evidence.
The postconviction court also failed to address Johnson’s third claim alleging
prosecutorial misconduct relating to evidence of sperm found at the crime scene.
However, shortly after its order following the evidentiary hearing, the
postconviction court sua sponte issued another order clarifying that it also denied
the remainder of Johnson’s second claim as well as Johnson’s third claim
regarding the sperm evidence.
Accordingly, the court denied Johnson’s postconviction motion in its
entirety. Johnson now appeals the court’s rulings regarding several of his
postconviction claims. For the reasons set forth below, we affirm the circuit
court’s denial of Johnson’s motion for postconviction relief.
On appeal, Johnson first raises three claims challenging the postconviction
court’s denial of his claims on which an evidentiary hearing was held. Johnson
then raises nine claims challenging the postconviction court’s summary denial of
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his other postconviction claims, including some claims originally raised pro se and
later adopted by collateral counsel.
A. Claims Denied After Evidentiary Hearing
Johnson argues that the postconviction court erred in denying three
ineffective assistance of counsel claims: (1) counsel was ineffective in
mishandling multiple mental health expert witnesses before trial and failing to
present a mental health expert during trial; (2) counsel’s deficiency in failing to
effectively pursue Dr. Brigham as an expert witness in the trial regarding victim
Cornell prejudiced Johnson when his conviction from the noncapital case was used
to establish an aggravating factor regarding the White murder; and (3) counsel was
ineffective in failing to present a mitigation expert at trial and in failing to properly
authenticate medical records.
In order to gain relief on his ineffective assistance claims, Johnson “must
show that his attorney’s performance was deficient and that the deficient
performance prejudiced his defense.” Sochor v. State, 883 So. 2d 766, 771 (Fla.
2004) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, Johnson must show that his counsel’s representation “fell
below an objective standard of reasonableness” by committing errors “so serious
that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment.” Id. (quoting Strickland, 466 U.S. at 687-88). To establish
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prejudice, Johnson must show that counsel’s errors “were so serious as to deprive
[him] of a fair trial, a trial whose result is reliable.” Id. (alteration in original)
(quoting Strickland, 466 U.S. at 687). In the context of the penalty phase, “the
question is whether there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. (alteration in original) (quoting
Strickland, 466 U.S. at 695); see also Porter v. McCollum, 130 S. Ct. 447, 455-56
(2009) (holding that a defendant is not required to show that “counsel’s deficient
conduct more likely than not altered the outcome” of his penalty phase trial, but
rather to establish “a probability sufficient to undermine confidence in [that]
outcome”) (quoting Strickland, 466 U.S. at 693-94).
We review de novo the postconviction court’s rulings on the Strickland
performance and prejudice prongs, but defer to that court’s findings of fact as long
as such findings are supported by competent, substantial evidence in the record.
Porter v. State, 788 So. 2d 917, 923 (Fla. 2001) (“We recognize and honor the
[postconviction] court’s superior vantage point in assessing the credibility of
witnesses and in making findings of fact.”); see also Sochor, 883 So. 2d at 771
(noting that “we apply [this] mixed standard of review because both the
performance and the prejudice prongs of the Strickland test present mixed
questions of law and fact”).
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Johnson first claims that the postconviction court erred in denying his
ineffective assistance of counsel claim based on the trial counsel’s mishandling of
multiple expert witnesses and failure to present a mental health expert during
Johnson’s penalty phase trial. Specifically, Johnson argues that counsel erred in
allowing Dr. Afield and Dr. Maher to be deposed and further erred when, during
the depositions, counsel failed to prevent the doctors from revealing privileged
information regarding White’s murder. Johnson alleges that the State thereafter
used their knowledge of the privileged information to preclude the defense from
using any mental health expert, including Dr. Ofshe, at his penalty phase trial.
Regarding this claim, the postconviction court found that defense counsel’s
decisions not to use Dr. Afield, Dr. Maher, and Dr. Ofshe as witnesses at Johnson’s
trial were strategic. This finding is supported by competent, substantial evidence
in the record. Both attorney Tebrugge and attorney Metcalfe testified at the
evidentiary hearing that they had developed concerns regarding Dr. Afield’s
potential testimony and had ultimately decided that he would not be a helpful
witness at either the guilt or penalty phase trial. Tebrugge also testified that he had
made the decision not to call Dr. Maher as a witness after consulting with Johnson
because it became clear that Dr. Maher’s testimony would be damaging based on
the admissions that Johnson had made to him. Moreover, attorney Hockett
testified that the decision not to call Dr. Ofshe at trial was a strategic choice
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predicated on the fact that the defense had sufficiently preserved a challenge to the
admission of Johnson’s confession through Dr. Ofshe’s testimony at the
suppression hearing and that the defense felt that repeating a week’s worth of
detailed testimony on that issue would not be helpful at trial. Additionally, the
record shows that Dr. Ofshe’s testimony would have contained information
detrimental to Johnson’s defense, such as Johnson’s admission to Dr. Ofhse that
Johnson had manipulated other experts and doctors in an attempt to establish
mental incapacity. Finally, all three attorneys testified that their decisions
regarding the expert witnesses were strategic trial tactics that were in no way
influenced by the State’s threat to call Dr. Maher as a witness.
Accepting the postconviction court’s findings, we now review de novo
counsel’s actions under both prongs of the Strickland test. See Porter, 788 So. 2d
at 923. We conclude that Johnson’s trial counsel was not deficient in its handling
of Drs. Afield, Maher, and Ofshe.
“This Court has ‘consistently held that a trial counsel’s decision to not call
certain witnesses to testify at trial can be reasonable trial strategy.’” Johnston v.
State, 63 So. 3d 730, 741 (Fla. 2011) (quoting Everett v. State, 54 So. 3d 464, 474
(Fla. 2010)). “It is reasonable for trial counsel to forego evidence that, if presented
in mitigation, could damage a defendant’s chances with the jury.” Id. (quoting
Nelson v. State, 43 So. 3d 20, 32 (Fla. 2010)); see also Reed v. State, 875 So. 2d
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415, 437 (Fla. 2004) (“An ineffective assistance claim does not arise from the
failure to present mitigation evidence where that evidence presents a double-edged
sword.”). Thus, “[t]rial counsel will not be held to be deficient when she makes a
reasonable strategic decision to not present mental mitigation testimony during the
penalty phase because it could open the door to other damaging testimony.”
Gaskin v. State, 822 So. 2d 1243, 1248 (Fla. 2002).
Here, calling either Dr. Afield or Dr. Maher to testify would have opened the
door to damaging testimony. Both Dr. Afield and Dr. Maher testified at their
depositions that Johnson had made admissions to them regarding White’s murder.
Dr. Afield testified that Johnson had admitted that he killed two people in “January
or March or something, and . . . [o]ne was a lady [he] knew, and [he] went into a
rage.” Dr. Maher similarly testified regarding statements made by Johnson
implicating him in the White and McCahon murders. Had the defense chosen to
present the testimony of either doctor during either phase of Johnson’s trial,
Johnson’s defense stood to be severely damaged by cross-examination of the
doctors. Accordingly, counsel was not deficient in failing to call Dr. Afield or Dr.
Maher at trial. See Johnston, 63 So. 3d at 741.
For the same reason, counsel was not deficient in failing to call Dr. Ofshe as
a witness. At the suppression hearing, Dr. Ofshe testified that Johnson had tried to
manipulate him during their interview and that Johnson had admitted to
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“malingering” and giving false information to doctors who examined him in order
to support an insanity defense. Dr. Ofshe also testified that Johnson had admitted
to performing a half-hearted suicide attempt in an effort to convince doctors that he
was mentally unstable. Presenting Dr. Ofshe as a witness would therefore have
opened the door to harmful testimony. Moreover, as attorney Hockett testified at
the evidentiary hearing, the trial court had already ruled on the admissibility of
Johnson’s confession during the suppression hearing, and the defense had taken the
necessary steps at that hearing to preserve the issue for appeal. Johnson may not
now use an ineffective assistance of counsel claim to merely second guess the
legitimate strategic trial decisions of his counsel. Wright v. State, 581 So. 2d 882,
883 (Fla. 1991) (holding that alleged errors that “are strategic in nature” do not
establish deficient performance because “this Court will not second guess trial
strategy employed by trial counsel”).
We also reject Johnson’s claim that his trial counsel was ineffective in
allowing Dr. Afield and Dr. Maher to be deposed and to answer questions
concerning privileged information. Dr. Afield was a confidential advisor
appointed pursuant to Florida Rule of Criminal Procedure 3.216(a) to aid the
defense in determining whether Johnson was either incompetent to stand trial or
had been insane at the time of the offense. On September 14, 1989, the defense
notified the State and the trial court of its intent to rely on the insanity defense and
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listed Dr. Afield as a witness to that effect. Thereafter, on September 21, 1990, Dr.
Afield was deposed by the State. It was not until April 30, 1991, that the defense
withdrew its intent to rely on the insanity defense.
We have previously held that under rule 3.216(a), “where an expert is hired
solely to assist the defense and will not be called as a witness, the State may not
depose the expert or call him as a witness.” Sanders v. State, 707 So. 2d 664, 669
(Fla. 1998). Here, however, the rule barring depositions does not apply because
Dr. Afield was listed as a witness at the time he was deposed. Johnson has
therefore not demonstrated that his counsel erred in allowing Dr. Afield to be
deposed. See Sanders, 707 So. 2d at 669. For the same reason, counsel was not
deficient in allowing Dr. Maher to be deposed. Dr. Maher was listed as a defense
witness at the time of his deposition.
Nor was Johnson’s trial counsel deficient in failing to prevent Dr. Afield or
Dr. Maher from divulging privileged information during their respective
depositions. We have previously recognized that rule 3.216(a) is a codification of
the Third District Court of Appeal’s holding in Pouncy v. State, 353 So. 2d 640
(Fla. 3d DCA 1977). See Sanders, 707 So. 2d at 669. In Pouncy, the Third
District held that the trial court’s ruling allowing the State to depose psychiatrists
hired by the defendant to aid in the preparation of the defense “violated the
attorney-client privilege by permitting the State to (1) depose the doctors and (2)
- 25 -
use them as State’s witnesses when appellant had no intention to utilize the
psychiatrists as defense witnesses.” Id. at 642. The Third District explicitly noted,
however, that “[s]aid privilege would have, of course, been waived, had appellant
utilized his psychiatrists as witnesses.” Id. Thus, under Pouncy—as codified in
rule 3.216—a defendant waives the attorney-client privilege as it attaches to a
confidential rule 3.216(a) expert witness when the defense notifies the State and
the trial court of its intent to utilize the expert as a witness at trial.
Here, because Dr. Afield was listed as a defense witness at the time of his
deposition, Johnson had waived the privilege attached to Dr. Afield. Johnson’s
counsel was therefore not deficient in failing to prevent Dr. Afield from answering
questions regarding communications between Johnson and himself. Johnson
similarly waived any privilege attached to Dr. Maher by notifying the State and the
trial court of his intent to rely on Dr. Maher as a witness at trial. Although Dr.
Maher was not appointed as a confidential advisor pursuant to rule 3.216(a), which
provides that the trial court shall only “appoint [one] expert to examine the
defendant in order to assist counsel in the preparation of the defense,” the same
reasoning applies. Where a defendant notifies the court of his intent to use an
expert as a witness at trial, any privilege attached to that expert is waived insofar as
such notification remains in effect. See Sanders, 707 So. 2d at 669; Pouncy, 353
So. 2d at 641-42.
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As his second issue, Johnson argues that the postconviction court erred in
denying his ineffective assistance claim based on his trial counsel’s handling of Dr.
Brigham, the eyewitness identification expert. Johnson claims that his counsel—
who was the same for both of his capital cases as well as the noncapital cases—
was deficient in failing to effectively pursue Dr. Brigham as an expert witness in
the noncapital case regarding victim Cornell. Because Johnson’s conviction in that
case was used to find the prior violent felony aggravating factor in this case,
Johnson claims that counsel’s deficiency in that case caused him prejudice in this
case. We reject Johnson’s argument. Johnson’s claim is analogous to the claim
addressed by the United States Supreme Court in Johnson v. Mississippi, 486 U.S.
578, 583-90 (1988), which granted postconviction relief on a defendant’s claim
that the sentencing court’s finding of the prior violent felony aggravator based on a
reversed conviction was unconstitutional. We have previously held that a Johnson
claim is not cognizable as long as the conviction underlying the aggravating factor
is still a valid conviction. See Lukehart v. State, 70 So. 3d 503, 513 (Fla. 2011).
Here, Johnson has not succeeded in vacating his conviction in the noncapital case
based on counsel’s handling of Dr. Brigham or on any other basis. Because
Johnson’s conviction in the noncapital case is still a valid conviction, we conclude
that the postconviction court properly denied Johnson’s claim relating to Dr.
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Third, Johnson challenges the postconviction court’s ruling denying his
claim that trial counsel was ineffective for failing to present a mitigation expert
during his penalty phase trial. Regarding the mitigation issue, the postconviction
court found that mitigation had been a focus of Johnson’s trial counsel and that
counsel had sent Ms. Ackerman to Johnson’s hometown in an effort to gather as
much mitigation evidence as possible. The court also found that although Ms.
Hammock spoke with many of Johnson’s family members and reviewed many of
his records in forming her conclusion regarding what testimony a mitigation expert
would have offered at trial, Ms. Ackerman interviewed many of the same people
and reviewed many of the same records prior to Johnson’s trials. Additionally, the
court found that Ms. Ackerman had reviewed numerous reports that Ms. Hammock
did not review. The court further found that much of the information that Ms.
Hammock or a similar mitigation expert would have testified to at trial had been
testified to by family members, who expressed the information in a clear,
articulate, and credible manner.
The record supports the postconviction court’s findings. Ms. Hammock
testified at the evidentiary hearing that she had reviewed substantially the same
information and interviewed the same witnesses as Ms. Ackerman, such that much
if not most of her investigation was included in the report that Ms. Ackerman had
put together in preparation for trial. Ms. Hammock also admitted that Ms.
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Ackerman had reviewed some records that she had not reviewed herself.
Moreover, the record shows that much of the same information testified to by Ms.
Hammock during the evidentiary hearing was presented at trial through the
testimony of several of Johnson’s family members and friends—including
testimony regarding the impoverished conditions and familial discord Johnson
endured as a child and the effect that the miscarriage of his child had on Johnson
during his adult years. We therefore defer to the postconviction court’s findings
regarding this issue.
We conclude that Johnson has not established that his trial counsel was
deficient for failing to present the testimony of a mitigation expert during his
penalty phase trial. A conclusory claim that defense counsel was deficient for
failing to hire a mitigation expert is without merit. Hoskins v. State, 75 So. 3d 250,
256 (Fla. 2011). Johnson argues that a mitigation expert would have been more
articulate, forthcoming, and credible than the lay witnesses presented by the
defense. Yet Johnson has failed to show why an expert such as Ms. Hammock
would have been a more effective mitigation witness than the dozen lay witnesses
who knew Johnson personally and testified at his penalty phase trial—many of
whom Ms. Hammock interviewed when compiling her mitigation report. See id.
(“Failure to use an ‘expert’ in mitigation investigation does not per se constitute
ineffective assistance.”). Moreover, the conclusions testified to by Ms. Hammock
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at the evidentiary hearing correlated with the substance of the lay testimony
presented at Johnson’s penalty phase trial. “We have repeatedly held that counsel
is not ineffective for failing to present cumulative evidence.” Jones v. State, 998
So. 2d 573, 586 (Fla. 2008). Accordingly, we deny Johnson’s claim as it relates to
trial counsel’s decision not to use a mitigation expert for purposes of compiling
and presenting mitigation evidence.
Johnson also argues that the testimony of a mitigation expert would have
enabled trial counsel to introduce “medical records about various psychological
problems [Johnson] had over many years, including [two] suicide attempts and
treatment by medication.” Johnson, 660 So. 2d at 645. The trial court refused to
admit the records because Johnson’s counsel had not authenticated them and
because the trial court “found that the records were not complete in themselves and
required interpretation to be understood by the jury.” Id. Johnson now claims that
the testimony of a mitigation expert would have served as the predicate necessary
to support the records and also would have provided the interpretation required for
the records to be understood by the jury.
We conclude that Johnson suffered no prejudice as a result of counsel’s
failure to introduce the medical records through a mitigation expert or otherwise.
Johnson has not established “a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
- 30 -
circumstances did not warrant death.” Sochor, 883 So. 2d at 771 (alteration in
original) (quoting Strickland, 466 U.S. at 695).
During Johnson’s penalty phase trial, the jury heard testimony from
Johnson’s mother regarding one of Johnson’s suicide attempts, which occurred
when Johnson was thirteen. Although the jury did not hear evidence regarding
Johnson’s attempt on his life after he had been arrested for White’s murder, any
evidence of that attempt that was introduced to establish mental mitigation would
have opened the door to harmful testimony. As stated above, Dr. Ofshe testified at
the suppression hearing that Johnson had admitted that his post-incarceration
suicide attempt was a half-hearted effort to convince doctors that he was mentally
ill. Johnson has not shown any plausible reason why the State could not have
simply called Dr. Ofshe in rebuttal if the defense had introduced medical records
of Johnson’s second suicide attempt. Thus, because the jury heard evidence of
Johnson’s first attempt and because evidence of Johnson’s second attempt could
have opened the door to harmful testimony, Johnson has not established a
reasonable probability that the jury would have voted against death if the records
had been introduced.
For the same reasons, Johnson has not established a reasonable probability
that the trial court would have sentenced Johnson differently in light of the
evidence contained in the records. Moreover, in sentencing Johnson to death for
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White’s murder, the trial court found three aggravating factors—prior violent
felony, commission of a murder for financial gain, and HAC—and fifteen
mitigating factors. Johnson, 660 So. 2d at 641. Included in the mitigating factors
was that Johnson “suffered mental pressure not reaching the level of statutory
mitigation.” Id. The trial court “then found that each aggravating factor alone
outweighed all the mitigating factors.” Id. Johnson has not shown a reasonable
probability that—based on the medical records—the trial court would have found
that Johnson’s mental state reached the level of statutory mitigation. Nor has
Johnson shown that, even if the trial court had found the statutory mental mitigator,
it would have concluded that the weight of the mitigators overcame the weight of
all three aggravating circumstances. Johnson’s allegations of deficiency therefore
do not undermine our confidence in the outcome of his penalty phase proceeding.
Accordingly, we deny Johnson’s claim.
B. Summarily Denied Claims
Johnson also challenges the postconviction court’s summary denial of
several of his postconviction claims. A postconviction court may deny a
defendant’s claim asserted in a rule 3.850 motion if “(1) the motion, files, and
records in the case conclusively show that the movant is entitled to no relief, or (2)
the motion or particular claim is legally insufficient.” Franqui v. State, 59 So. 3d
- 32 -
82, 95 (Fla. 2011).2 Legally insufficient claims include those that are procedurally
barred. See Freeman v. State, 761 So. 2d 1055, 1063-72 (Fla. 2000) (applying
same two-part standard as Franqui and holding that several of defendant’s rule
3.850 claims were procedurally barred and therefore properly summarily denied).
Claims that should have been raised on direct appeal are procedurally barred from
being raised in collateral proceedings. Id. at 1063. Moreover, in establishing a
prima facie case based on a legally valid claim, “mere conclusory allegations are
insufficient.” Franqui, 59 So. 3d at 96. Reviewing the postconviction court’s
summary denial of Johnson’s claims, we accept Johnson’s factual allegations as
true “to the extent they are not refuted by the record.” Id. at 95. We now address
Johnson’s specific challenges to the postconviction court’s summary denial of his
As his fourth issue on appeal, Johnson claims that the postconviction court
erred in summarily denying his claim that the trial court’s finding of the prior
violent felony aggravator is based on an invalid conviction in violation of Johnson
v. Mississippi, 486 U.S. 578 (1988). As we stated above, a Johnson claim is not
cognizable as long as the conviction underlying the aggravating factor is still a
2. Johnson’s amended rule 3.850 motion is governed by the requirements
applicable to rule 3.850, rather than Florida Rule of Criminal Procedure 3.851,
because his amended motion relates back to his original motion, which was filed
before October 1, 2001, the effective date of rule 3.851. See Franqui, 59 So. 3d at
- 33 -
valid conviction. See Lukehart, 70 So. 3d at 513. Here, the trial court based its
finding of the prior violent felony aggravator on Johnson’s convictions in the three
other cases. Because Johnson’s convictions in those cases are still valid, Johnson’s
claim is legally insufficient. The postconviction court therefore did not err in
summarily denying Johnson’s claim.
Fifth, Johnson challenges the postconviction court’s summary denial of his
claim that Rule Regulating the Florida Bar 4-3.5(d)(4) is unconstitutional to the
extent it precludes Johnson’s collateral counsel from interviewing the jurors who
convicted him and recommended that he be put to death. We conclude that the
postconviction court did not err in denying Johnson’s claim without an evidentiary
hearing. Johnson’s claim is both procedurally barred and without merit. See
Kilgore v. State, 55 So. 3d 487, 511 (Fla. 2010) (holding a challenge to the
constitutionality of rule 4-3.5(d)(4) procedurally barred in postconviction
proceedings and noting moreover that “this Court has repeatedly rejected claims
that Rule Regulating the Florida Bar 4-3.5(d)(4) is unconstitutional”).
As his sixth claim, Johnson argues that Florida’s death sentencing statute, as
applied, is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). The
motions and record in this case conclusively establish that Johnson is not entitled
to relief on this claim. Johnson’s direct appeal of this case was final in 1995, and
Ring—which was decided by the Supreme Court in 2002—does not apply
- 34 -
retroactively to cases already final on direct review. See Schriro v. Summerlin,
542 U.S. 348, 358 (2004). Moreover, the prior violent felony aggravator was
found in this case, and “[t]his Court has repeatedly relied on the presence of the
prior violent felony aggravating circumstance in denying Ring claims.” Frances v.
State, 970 So. 2d 806, 822 (Fla. 2007). Accordingly, we affirm the postconviction
court’s summary denial of this claim.
Seventh, Johnson challenges the postconviction court’s summary denial of
his Simmons v. South Carolina, 512 U.S. 154 (1994), claim that the trial court
erred in preventing Johnson from informing the jury about his ineligibility for
parole and the possible sentences he would likely receive in the other three cases.
This Court previously denied this claim when Johnson raised it on direct appeal.
Johnson, 660 So. 2d at 645. Accordingly, we affirm the postconviction court’s
summary denial of this claim as procedurally barred. See Freeman, 761 So. 2d at
1067 (“This claim was raised on direct appeal; therefore, it is procedurally barred
and was properly summarily denied.”).
For the same reason, we deny Johnson’s eighth claim—that the penalty
phase jury instructions unconstitutionally shifted the burden to Johnson to prove
that death was an inappropriate sentence. On direct appeal, this Court denied
Johnson’s claim “that the standard [penalty phase jury] instructions impermissibly
place the burden of proof on the defendant to prove a case for mitigation once
- 35 -
aggravating circumstances have been established by the State.” Johnson, 660 So.
2d at 647. Accordingly, the postconviction court did not err in summarily denying
this claim as procedurally barred. See Freeman, 761 So. 2d at 1067.
As his ninth claim, Johnson argues that Florida’s method of execution by
lethal injection constitutes cruel and unusual punishment in violation of the Florida
and United States Constitutions. Because this claim was not raised on direct
appeal, it is procedurally barred. See Kilgore, 55 So. 3d at 511-12 (holding that a
defendant’s postconviction challenge to Florida’s method of execution was
procedurally barred because it was not raised on direct appeal). Moreover, this
Court has recently upheld the constitutionality of Florida’s current lethal injection
procedure. See Valle v. State, 70 So. 3d 530, 541 (Fla.) (holding that Valle failed
to satisfy the heavy burden of proving that Florida’s current lethal injection
procedure is constitutionally defective), cert. denied, 132 S. Ct. 1 (2011). Because
Johnson has not made any additional allegations that would call into question the
State’s current method of execution, his claim is conclusively refuted by the
record. The postconviction court therefore properly denied Johnson’s claim
without an evidentiary hearing.
Tenth, Johnson claims that his conviction and sentence for the White murder
are materially unreliable due to the cumulative effect of the errors alleged in his
postconviction motion. “Where multiple errors are found, even if deemed
- 36 -
harmless individually, ‘the cumulative effect of such errors’ may ‘deny to
defendant the fair and impartial trial that is the inalienable right of all litigants.’”
Hurst v. State, 18 So. 3d 975, 1015 (Fla. 2009) (quoting Brooks v. State, 918 So.
2d 181, 202 (Fla. 2005)); see also Jackson v. State, 575 So. 2d 181, 189 (Fla.
1991). Johnson, however, has failed to identify multiple instances of error. And
because multiple errors did not occur in this case, Johnson’s claim of cumulative
error must fail.
We also deny Johnson’s eleventh claim, in which Johnson alleges that his
Eighth Amendment right against cruel and unusual punishment may be violated
because—at the time of his execution—Johnson might be incompetent to be
executed. Considering that no death warrant has been signed in this case, the
postconviction court’s summary denial of Johnson’s claim was proper. See, e.g.,
Sexton v. State, 997 So. 2d 1073, 1089 (Fla. 2008) (holding that claim of
incompetency to be executed raised in initial postconviction motion was not ripe
because prisoner was not under death warrant).
Finally, as his twelfth appellate issue, Johnson challenges the postconviction
court’s ruling summarily denying various claims initially raised pro se but
subsequently adopted by collateral counsel. These claims include: (a) the
prosecutor engaged in misconduct by arguing facts not in evidence, and defense
counsel was ineffective in failing to object to that misconduct; (b) the prosecutor
- 37 -
engaged in misconduct by presenting false evidence at the suppression hearing,
and defense counsel was ineffective in failing to object to that misconduct; (c) the
prosecutor engaged in misconduct by presenting inconsistent theories, and defense
counsel was ineffective in failing to object to that misconduct; (d) defense counsel
rendered ineffective assistance by failing to introduce evidence of Johnson’s actual
innocence; (e) the State used illegally obtained rolled fingerprints; and (f)
Johnson’s arrest, search, and seizure were based on an affidavit that was both
unsworn and contained false information, and defense counsel was ineffective in
failing to present this fact at the suppression hearing.
We agree with the postconviction court that insofar as these claims raise
issues concerning prosecutorial misconduct and evidence introduced at trial, the
claims should have been challenged on direct appeal and are therefore procedurally
barred. Spencer v. State, 842 So. 2d 52, 60-61 (Fla. 2003) (postconviction court
properly concluded that claims alleging prosecutorial misconduct were
procedurally barred because each of the alleged violations appeared on the trial
record and could have been raised on direct appeal). Thus, the underlying issues in
claims (a), (b), (c), and (f) are procedurally barred, as is the entirety of claim (e).
Regarding the ineffective assistance of counsel claims contained in claims (a), (b),
(c), (d), and (f), we conclude that Johnson’s claims are refuted by the record.
Accordingly, we affirm the postconviction court’s summary denial of the claims.
- 38 -
In claim (a), Johnson argues that his counsel was deficient in failing to
object to the State’s argument that Johnson had sexually battered White. Johnson
contends that the State’s argument was based on hair and fiber evidence that was
not introduced at trial and on inflammatory photographs of White’s anal and
vaginal region. The record establishes, however, that although the actual hairs and
fibers relied on by the State in closing argument were not introduced as evidence, 3
both federal and state investigators testified that hairs and fibers found on White’s
body were consistent with those belonging to Johnson. The State is permitted to
argue at closing based on the evidence presented at trial, including the testimony of
witnesses. See Miller v. State, 926 So. 2d 1243, 1254-55 (Fla. 2006) (holding that
an attorney is allowed to argue reasonable inferences from the evidence and to
argue credibility of witnesses). Johnson’s trial counsel was not deficient for failing
to object to proper argument. See id. at 1255. Moreover, counsel did object when
the “inflammatory” photographs of White were introduced at trial, but the trial
court overruled counsel’s objection. Counsel was therefore neither deficient in
3. To the extent Johnson argues that his counsel should have objected to
testimony based on hairs and fibers never introduced as evidence, Johnson’s claim
fails. Those individuals testifying regarding the hair and fiber evidence were
expert witnesses and were therefore permitted to rely on facts that were not
admitted at trial as long as such facts are “of a type reasonably relied upon by
experts in the subject to support the opinion expressed.” Linn v. Fossum, 946 So.
2d 1032, 1036 (Fla. 2006) (quoting § 90.704, Fla. Stat. (2005)).
- 39 -
failing to object to the photographs nor deficient in failing to object to the State’s
reference to the photographs during closing argument. See id.
Claim (b) also concerns hair evidence retrieved from White’s body. Johnson
argues that his counsel was deficient for failing to object when—at the suppression
hearing—the State argued that two of the hairs were identified as Johnson’s based
on a report from the Florida Department of Law Enforcement (FDLE), even
though the State was aware that a report from the FBI concluded that the same
hairs did not belong to Johnson. Johnson fails to recognize, however, that the
State’s argument at the suppression hearing was intended to demonstrate that
probable cause had existed at the time the arrest and search warrants were issued.
The FBI analysis was not completed until after the warrants were issued. The State
was not incorrect in arguing that the FDLE report—which was completed prior to
the warrants being issued—was relevant to establish probable cause while omitting
any reference to the subsequently released FBI report. Johnson’s trial counsel was
therefore not deficient for failing to object to the State’s argument. See Owen v.
State, 986 So. 2d 534, 551 (Fla. 2008) (holding counsel is not ineffective for
failing to object to comments that are not improper).
For the same reason, Johnson has not established deficient performance in
claim (c), which asserts that the State presented inconsistent arguments regarding
the conflicting FDLE and FBI reports. Johnson argues that his counsel was
- 40 -
ineffective in failing to object when, at trial, the State argued that the conflicting
evidence contained in the FDLE and FBI reports did not conclusively establish or
exclude Johnson as White’s murderer, despite having relied on the FDLE results
during the suppression hearing. Because the State’s argument at the suppression
hearing was not directed at establishing Johnson’s guilt, any argument by the State
at trial regarding the weight of the contradictory analyses does not constitute a
theory of prosecution inconsistent with the State’s suppression hearing argument.
Johnson’s trial counsel was not deficient for failing to object to argument that was
not improper. See id.
We also reject Johnson’s ineffective assistance claim in claim (d), in which
Johnson claims that his trial counsel was ineffective in failing to introduce
evidence of his “actual innocence” of the White murder. Appellant’s Initial Brief
at 95. Specifically, Johnson argues that counsel was deficient for not presenting
evidence of the fact that Johnson was a chronic nail biter. Johnson contends that
such evidence would have conclusively proven his innocence in light of the State’s
evidence that White’s murderer had caused injuries to White’s anal and vaginal
regions with his fingernails. The record, however, establishes that the medical
examiner could not completely exclude the possibility that the injuries to White’s
anal and vaginal regions were caused by something other than the murderer’s
fingernails. Because the record refutes Johnson’s claim that this evidence
- 41 -
conclusively established Johnson’s “actual innocence,” the postconviction court
properly summarily denied Johnson’s claim. Moreover, in light of the abundance
of evidence of Johnson’s guilt, including a valid taped confession and Johnson’s
fingerprints recovered from the crime scene, Johnson’s conclusory assertion that
“the result of the trial would have been different,” Appellant’s Initial Brief at 96,
absent trial counsel’s alleged error does not satisfy the prejudice prong of
Strickland. Jones, 998 So. 2d at 584 (“A mere conclusory allegation that the
outcome would have been different is insufficient to state a claim of prejudice
under Strickland; the defendant must demonstrate how, if counsel had acted
otherwise, a reasonable probability exists that the outcome would have been
Finally, we deny Johnson’s ineffective assistance claim presented in claim
(f), in which Johnson argues that a key piece of evidence supporting the search
warrant—an affidavit by Virgina Casey, the technician who positively matched
fingerprints taken from the White crime scene to Johnson’s prints on record—was
unsworn and contained false information. Specifically, Johnson argues that Casey
testified that she did not swear to her affidavit and that, although Casey’s affidavit
stated that technician Madelyn Luzier had verified the results of Casey’s
fingerprint comparison, Luzier testified that she had no involvement with the
fingerprints after she collected them. Because Casey’s affidavit was incorporated
- 42 -
into the affidavit accompanying the search warrant, Johnson claims that the search
warrant was invalid. Johnson argues that his trial counsel was ineffective in failing
to raise this argument at the suppression hearing and that, but for counsel’s error,
the trial court would have suppressed the evidence obtained pursuant to the search
warrant. Johnson’s claim is without merit.
Insofar as Johnson claims that the search warrant was invalid because
Casey’s affidavit was unsworn, Johnson’s claim fails. Casey’s affidavit did not
accompany the search warrant. Instead, the accompanying affidavit briefly
recounted the facts surrounding Casey’s identification of the prints found on
White’s window sill as belonging to Johnson. The accompanying affidavit does
not claim to incorporate sworn statements from Casey’s affidavit, and Johnson
does not allege that the accompanying affidavit was unsworn.
Moreover, to the extent Johnson alleges that information contained in the
accompanying affidavit was false, his claim is refuted by the record. In summarily
denying this claim, the postconviction court included the transcript from a
deposition in which Luzier testified that she looked at and agreed with Casey’s
print comparison. Although Luzier testified that she did not personally perform the
comparison, the record confirms the accompanying affidavit’s claim that Luzier
verified the result of Casey’s comparison. Because counsel cannot be deemed
deficient for failing to pursue a meritless claim, Johnson has not shown that his
- 43 -
counsel was deficient in failing to challenge the search warrant on these grounds.
See Lukehart, 70 So. 3d at 513. And because counsel’s alleged error does not
undermine confidence in the outcome of the suppression hearing, Johnson cannot
establish that he was prejudiced by such error. See Porter, 130 S.Ct. at 455.
For the reasons stated above, we conclude that Johnson is not entitled to
postconviction relief from his conviction and sentence for the first-degree murder
of Iris White. Accordingly, we affirm the circuit court’s denial of Johnson’s
motion for postconviction relief.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY,
QUINCE, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Sarasota County,
Andrew Douglas Owens, Judge
Case Nos. 1988-CF-003198-NC and 1988-CF-003199-NC
John W. Jennings, Capital Collateral Regional Counsel, Mark S. Gruber and Maria
Perinetti, Assistant Capital Collateral Regional Counsel, Middle Region, Tampa,
- 44 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Katherine Vickers
Blanco, Assistant Attorney General, Tampa, Florida,
- 45 -