Dawnia Dacosta was twenty-one and on her way home to Deerfield Beach from a midnight church service when her car ran out of gas just off Interstate 95 at Hillsboro Boulevard, early on December 5, 1998. She walked a block to a Texaco station with the red gas can she kept in the car and bought a gallon. It was about two in the morning. She asked another customer for a ride back to her car, but the woman had walked there. Two women then watched her talk to a man in a van in the parking lot, and when one of them asked him whether he was going to help her, he nodded. One of them was sure she had seen the word "Hope" on the side of the van.
Her family found her car at the exit and put up fliers, which is how the two women came forward. Her body was found on December 7 in an alley behind a warehouse on 42nd Street, wrapped in a shower curtain liner and two flat bed sheets, with a laundry bag and two trash bags over her head. Months later two Broward sheriff's detectives, working another case, noticed a green van in a church parking lot with "Here's Hope" painted on it in burgundy. It belonged to the Hope Outreach Ministry Church. The pastor told them that Lucious Boyd, who did maintenance work for the church, had kept the van that weekend and had not brought it back until Monday, and that a set of Torx screwdrivers, a reciprocating saw and his purple laundry bag had gone missing from it. Boyd was arrested on March 26, 1999. His DNA matched the semen found on her body.
A Broward County jury convicted him of first-degree murder, armed kidnapping and sexual battery and recommended death unanimously, and on June 21, 2002, the trial court sentenced him to death. This file holds the Supreme Court of Florida's two opinions on the case, about twenty-one thousand words. The first, of February 10, 2005, is the direct appeal: it sets out the evidence, including the bite marks, the carpet fibers, the tire marks on a sheet and the fingerprints on the trash bags, and affirms. The second, of December 17, 2015, affirms the denial of post-conviction relief and turns largely on two jurors who had not disclosed their own criminal records, and on how his lawyers handled the fingerprint evidence. It also quotes Boyd's own testimony under cross-examination.
Boyd remains on Florida's death row. In December 2023 the Broward Sheriff's Office announced that DNA from the rape kit of a woman found dead in southwest Broward County in 1998, identified that year as Eileen Truppner, a forty-one-year-old mother of two, had been matched to him, and he was indicted for her murder. That charge had not been tried when this page was published. Nothing about it is in these opinions.
Both opinions affirm, and both describe the evidence as the court found it in a trial record, not as a jury would have heard it. The 2005 opinion is careful in places the reader should be too: the medical examiner could not say whether intercourse was consensual, the tire expert could not say the marks came from that particular van, and the bruises were "consistent with but not exclusive to" the saw's face plate. The weight of the case sat on the DNA, the witnesses at the gas station and the van.
Reports of the Truppner case do not agree about the order of the two deaths. The sheriff's office said Dacosta was killed about two weeks before Truppner; some later accounts put the discovery of Truppner's body in November, which would make it earlier. We have not been able to settle this and have stated neither order as fact. Boyd has not been convicted of that killing, and the indictment is an accusation.
Boyd's girlfriend at the time, who testified about the van and the bed and sheets she had left in his apartment, is G.L. here, and her son, whose fingerprint was one of those on the trash bag, is Z.L. The two jurors whose criminal histories were litigated in 2015 are reduced to their initials, T.S. and K.R. The women at the gas station, the pastor and the detectives are named as the court named them. The reporter's scan misreads his first name in places as "Lueious" and hers as "Daeos-ta"; we have left the court's text alone and spelled both correctly in our own paragraphs.
Lucious BOYD, Appellant, v. STATE of Florida, Appellee.
No. SC02-1590.
Supreme Court of Florida.
Feb. 10, 2005.
As Revised on Denial of Rehearing June 16, 2005.
Rehearing Denied Aug. 24, 2005.
Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have on appeal judgments of conviction of first-degree murder, armed kidnapping, and sexual battery, and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the convictions and the sentence of death.
FACTS
The evidence presented at trial revealed the following facts. In the early morning hours of December 5, 1998, Dawnia Daeos-ta’s car ran out of gas while she was on her way to her home in Deerfield Beach, Florida, from a midnight church service. She had just exited from Interstate 95 (I-95) onto Hillsboro Beach Boulevard and pulled onto the shoulder. She then took a red gas can she kept in her car, walked about a block east to a nearby Texaco gas station, and bought a gallon of gas. At approximately 2 a.m., during the time she was at the gas station, Dacosta spoke with two other customers, Lisa Bell and Johnnie Mae Harris. She asked Bell for a ride back to her car, but Bell had walked to the station and so could not give Dacosta a ride. Bell and Harris then watched Da-costa speak with a black male in a van in the station’s parking lot. Harris asked the man if he was going to help Dacosta, and the man nodded, indicating yes. Bell later told the police that the van she saw was greenish-blue in color, while Harris said that she thought the van was burgundy. Though somewhat unsure about the van’s color, Harris was certain that she saw the word “Hope” on its side. In a photo lineup and at trial, Harris identified the man she saw in the van that night as Lueious Boyd.
Boyd spent the evening of December 4 with G.L., his girlfriend, at her mother’s home. Boyd left the house around 10 or 11 p.m., and G.L. did not see him again until the morning of December 5, at around 9 or 10 a.m. G.L. testified that on December 4 and 5, Boyd was driving a green church van with writing on its side and that the van belonged to Reverend Frank Lloyd of the Hope Outreach Ministry Church, for whom Boyd performed occasional maintenance work.
Dacosta’s family began searching for her after she did not return home on December 5. They found her car at an 1-95 exit and began circulating fliers with Dacosta’s photograph, indicating that she was missing, throughout the area. Bell and Harris saw the fliers, recognized Dacosta as the woman with the gas can at the Texaco station on December 5, and contacted the police with their information.
On December 7, Dacosta’s body was discovered in an alley behind a warehouse on 42nd Street in Deerfield Beach. The body was wrapped in a shower curtain liner, a brown, flat bed sheet, and a yellow, flat bed sheet. A purple duffel bag and two large black trash bags covered her head. It was determined that she had been dead for between thirty-six and seventy-two hours.
At trial, it was stipulated that Dacosta died due to a penetrating head wound and that the bruising on her head was consistent with but not exclusive to the face plate of a reciprocating saw. Wounds to her chest, arms, and head were consistent with but not exclusive to a Torx brand torque screwdriver, and she had defensive wounds on her arms and hands. There was bruising to her vagina that was consistent with sexual intercourse, although the medical examiner could not determine whether the intercourse was consensual or nonconsensual. Dacosta had thirty-six superficial wounds on her chest, four on the right side of her head, and twelve on her right hand, some being consistent with defensive wounds and some being consistent with bite marks. One fatal wound to the head perforated the skull and penetrated Dacosta’s brain.
On March 17, 1999, while Detectives Bu-kata and Kaminsky of the Broward County Sheriffs Office were investigating another crime unrelated to Dacosta’s death, they saw a green van in the Hope Outreach Ministry Church parking lot. The van had burgundy writing on it that read “Here’s Hope.” Bell would later identify the church’s van as the same van she had seen on the morning of December 5 at the Texaco station. The detectives decided to investigate, and their inquiries as to the owner of the van led them to Reverend Lloyd. When the detectives questioned Lloyd about the location of the van on the night of December 4, Lloyd’s secretary, who was present at the questioning, remarked that Lueious Boyd had driven the van on that weekend. On December 4, Boyd had taken Reverend Lloyd to pick up a rental car in the church’s green 1994 Ford van. Reverend Lloyd further testified that he instructed Boyd to take the van back to the church but that Boyd did not return the van until Monday, December 7. Reverend Lloyd also stated that when he left the van with Boyd, various tools owned by the church, including a set of Torx brand screwdrivers and a reciprocating saw, were in the van, as well as a purple laundry bag that the pastor used to deliver his laundry to the cleaners. When Reverend Lloyd returned on December 15, he discovered that the screwdrivers, the saw, and the laundry bag were missing.
Boyd was arrested for Dacosta’s murder on March 26, 1999. Seminal fluid taken from Dacosta’s inner thigh matched the DNA profile of Boyd. Tests also did not eliminate Boyd as a match for a hair found on Dacosta’s chest. A DNA profile consistent with Boyd’s was found in material taken from under Dacosta’s fingernails. In addition, fingerprints taken from the trash bag found around the victim’s head matched fingerprints of Boyd’s girlfriend, G.L., and her son, Z.L. Tire marks on a sheet covering the victim’s body were consistent with the tires on the church van, although trial expert Terrell Kingery, a senior crime laboratory analyst for the Orlando Regional Crime Laboratory, testified that he could not say for certain that the van’s tires made the marks because over 1.5 million tires could have made the tracks on the sheet. Dr. Steven Rifkin, a private dentist and a forensic odontologist with the Broward County Medical Examiner’s Office, testified that bite marks on Dacosta’s arm were, within a reasonable degree of certainty, made by Boyd’s teeth.
On April 1, Detective Bukata obtained a warrant to search the apartment of Boyd and G.L., which was a block east of the Texaco station. Detective Bukata arrived at the apartment and told G.L. to leave with her children for a few days so that the officers could fully search the apartment. The investigators found blood at various locations throughout the apartment. Blood found on the underside of the carpet and on the armoire matched Dacosta’s DNA profile. The shower curtain rings were unsnapped, and there was no liner to the shower curtain. Carpet fibers taken from the yellow sheet in which Dacosta’s body was wrapped matched characteristics of carpet samples taken from Boyd’s apartment.
G.L. had previously lived with Boyd at his apartment but had moved out in October of 1998. While living with Boyd, G.L. had purchased a queen-size bed, which she left at the apartment when she moved. G.L. and her three children moved back in with Boyd in February of 1999 and discovered that the bed was no longer at Boyd’s apartment. When she asked about it, Boyd told her that he had given it away but would get it back. When she inquired about it again, Boyd told her that she would not want that bed and that he would get her another one. G.L. also identified the flat bed sheets, one brown and one a “loud yellow,” that were found around Da-costa’s body as similar to ones she had owned while living at Boyd’s apartment but that she no longer knew where they were or if they were at Boyd’s apartment or at her mother’s home.
A jury convicted Boyd of first-degree murder, sexual battery, and armed kidnapping. The trial court subsequently conducted a penalty phase proceeding, during which both sides presented evidence. The jury unanimously recommended that Boyd be sentenced to death. The trial court followed the jury’s recommendation and imposed a death sentence, finding and weighing two aggravating factors, one statutory mitigating factor, and five non-statutory mitigating factors. State v. Boyd, No. 99-5809 (Fla. 17th Cir. Ct. order filed June 21, 2002) (sentencing order). The trial court also sentenced Boyd to fifteen years’ imprisonment for the sexual battery and to life imprisonment for the armed kidnapping charges.
Boyd appeals his convictions and the trial court’s sentence of death, raising fifteen issues.
ISSUE 1. JUROR MISCONDUCT
Boyd argues that the trial court erred in refusing to make an inquiry of the jurors and in denying a mistrial upon hearing testimony that jurors had discussed extrajudicial information. Following Boyd’s presentation of mitigation evidence, Margaret Woods-Alcide, a friend of Boyd’s family, provided a letter to the court in which she alleged that she had overheard jurors in the restroom discussing extrajudicial information during the guilt phase of the trial. According to Woods-Alcide, three female jurors spoke about Boyd’s past crimes, and one stated that Boyd’s father had in the past always saved him from legal troubles. Although the procedure followed by the deputies throughout the trial was to keep the jurors sequestered from the public, making it unlikely this incident could have occurred, the trial court held a hearing concerning the allegation and heard testimony from Woods-Alcide. In her testimony, Woods-Alcide could not remember precisely when this conversation had occurred but stated that it was just before the jury began deliberation. She could only vaguely identify which jurors had been in the restroom and stated that two were white and one was black. Woods-Alcide told the court that she did not have a very good memory because of a brain tumor she had had removed in 1993. She claimed to know one of the jurors she saw in the restroom, but she could not recall how she knew the juror or the juror’s name.
During the State’s examination, Woods-Alcide stated that she had informed Boyd of the juror incident on the previous Saturday or Sunday, which was nearly five weeks after the alleged incident had taken place. Woods-Alcide stated that she had not told Boyd sooner because she did not want to tell him about the incident in the courtroom in front of his mother and was waiting for him to call. She could not remember at what time of day the incident had occurred, but she knew it was in the afternoon during a break in the trial. The rest of her letter about this incident included six observations that she made about the sufficiency of the State’s evidence. The trial court denied Boyd’s motion to conduct an inquiry of the jurors or grant a mistrial.
Dealing with allegations of juror misconduct is within the discretion of the trial court. Doyle v. State, 460 So.2d 353, 357 (Fla.1984). Before making an inquiry, a court is to determine whether the allegations of juror misconduct constitute “matters that inhere in the verdict and are subjective in nature, or are extrinsic to the verdict and objective.” Marshall v. State, 854 So.2d 1235, 1240 (Fla.2003). Once it is determined that the misconduct does not inhere in the verdict, the trial court may make a judicial inquiry. However, the trial court may also decide not to make an inquiry when the allegations are “frivolous or incredible.” Id. at 1244 (quoting State v. Brown, 235 Conn. 502, 668 A.2d 1288, 1305 (1995)).
We hold that the trial court did not err in refusing to question the jury about Woods-Alcide’s allegations. The trial court made a judicial inquiry into the alleged incident by taking testimony from Woods-Alcide. That testimony revealed that Woods-Alcide was confused about which jurors had been involved in the incident, when the incident had occurred, and why she had waited so long to come forward with these allegations. The trial court also could have concluded Woods-Alcide was not credible because the standard procedure was to prohibit the jury from mingling with the public during their breaks. The trial court continued to inquire as to whether the jurors had discussed the trial with or in the presence of third parties, or whether they had received any outside information. The jurors always responded that they had not. The trial court did not entertain any “serious doubt” as to whether juror misconduct had occurred because of the incredibility of the witness and the circumstances of the alleged incident. See Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 100 (Fla.1991).
The trial court did not abuse its discretion in coming to this decision, because a trial court has the discretion to not make an inquiry when it concludes that misconduct allegations are not credible. See Shere v. State, 579 So.2d 86, 95 (Fla.1991) (trial court did not abuse its discretion in not making inquiry of jurors or granting mistrial when anonymous letter to newspaper alleged juror misconduct). Competent, substantial evidence supports this decision because Woods-Alcide’s testimony regarding the incident was neither coherent nor credible. We therefore find no error in the trial court’s denial of Boyd’s motion to make an inquiry of the jury.
Boyd also argues that the trial court should have granted a mistrial. A new trial may be granted following a conviction if “[n]ew and material evidence, which, if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.” Fla. R.Crim. P. 3.600(a)(3). For the above-stated reasons regarding the trial court’s assessment of Woods-Alcide’s credibility, we hold that the trial court did not abuse its discretion in denying Boyd’s motion for a mistrial.
ISSUE 2. DISCOVERY CLAIMS
Boyd next argues that the trial court reversibly erred in overruling the defense’s request for Brady material, denying the defense motion to strike the testimony of the fingerprint examiner, and not conducting a Richardson hearing. The testimony at the heart of this claim was that of Thomas Mesick, a latent fingerprint examiner for the Broward County Sheriffs Office. Although seven fingerprints were found on the trash bag covering Dacosta’s head, only three were of value. Mesick examined these three fingerprints and matched two of them to G.L., Boyd’s girlfriend, and Zef-frey G.L., her son. Before he made these matches, Mesick digitally enhanced the prints and ran them through the Automated Fingerprint Identification System (AFIS), which returned a list of possible matches from across the state. Upon further examination, Mesick determined that none of those possibilities were actual matches for the prints. He then discarded the list, which might have included twenty to fifty possible matches. Mesick testified, outside of the presence of the jury, that unless an actual match is made, it was his routine to discard the list. Defense counsel asked that the court either order the list regenerated or strike Mesick’s testimony from the record because this list was favorable evidence withheld in violation of Brady. The trial court denied the defendant’s motion, finding there was no reasonable possibility that the list could be recreated as it had appeared when it was made, which was two to three years prior to trial, and it contained no material the exclusion of which was detrimental or prejudicial to the defendant.
The Brady rule requires that the prosecution not suppress evidence favorable to an accused where that “evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 378 U.S. at 87, 83 S.Ct. 1194. We have stated that the three elements required to make a Brady claim are:
(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice to the defendant must have ensued.
Lugo v. State, 845 So.2d 74, 105 (Fla.); cert. denied, 540 U.S. 920, 124 S.Ct. 320, 157 L.Ed.2d 216 (2003).
We hold that Boyd’s Brady claim is without merit. The defense was not prejudiced by the absence of the list of potential matches to the fingerprints. Two of the prints on the bag actually matched the fingerprints of G.L. and Z.L., who lived with Boyd up until a few months before the crime. The third print was not matched because it was not clear what part of the body the print came from (i.e., it could have been a palm or footprint). Mesick determined that the list of potential matches generated by the AFIS had no actual matches to the fingerprints on the bag. A list of potential matches, with no actual matches, was not material to Boyd’s defense. This motion, at best, raised only the mere possibility that there could have been a print on the trash bag not belonging to Boyd or someone in Boyd’s household, and “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Given the substantial amount of other evidence against Boyd, there is no reasonable probability that this list would have affected the outcome at trial. Hegwood v. State, 575 So.2d 170, 172 (Fla.1991). Thus, we hold that no Brady violation occurred.
Once a defendant asserts a discovery violation, a hearing is required before the trial court may conclude that the defendant was not prejudiced by the prosecution’s discovery violation. State v. Hall, 509 So.2d 1093, 1096 (Fla.1987). This inquiry should “cover at least such questions as whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.” Richardson v. State, 246 So.2d 771, 775 (Fla.1971) (quoting Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970)).
We hold that Boyd’s claim is mer-itless because the trial court conducted a hearing sufficient to satisfy Richardson. Both parties had an opportunity to question the fingerprint examiner, outside of the presence of the jury, as to why he discarded the list. Mesick explained that the list contained no actual matches, and thus he discarded it, as was his routine practice. The trial court was presented competent, substantial evidence as to why the list did not exist, that the discarding of the list was not willfully meant to prejudice the defense, and that any violation was not harmful to the defendant’s case. The trial court could thus properly conclude that any potential discovery violation did not prejudice the defendant. We hold that the trial court properly conducted a Richardson hearing after the defense asserted the discovery violation, and we find no error.
ISSUE 3. SUFFICIENCY OF THE EVIDENCE
Boyd asserts that the evidence presented at trial was not sufficient to support the verdicts for sexual battery, premeditated murder, and armed kidnapping and that the trial court erred in denying the motions for judgment of acquittal on these charges. We assess a trial court’s ruling on a motion for judgment of acquittal on a de novo standard of review and affirm the conviction if it is supported by competent, substantial evidence. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).
A trial court should not grant a motion for judgment of acquittal “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). However, a special standard of review applies when a case is based wholly on circumstantial evidence. Darling v. State, 808 So.2d 145, 155 (Fla.2002). In considering a motion for a judgment of acquittal in a circumstantial evidence case,
[i]t is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences .... The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. See Toole v. State, 472 So.2d 1174, 1176 (Fla.1985). Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.
State v. Law, 559 So.2d 187, 189 (Fla.1989) (footnote omitted). Thus, if the State’s evidence creates an inconsistency with the defendant’s theory of innocence, the trial court should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency. Woods v. State, 733 So.2d 980, 985 (Fla.1999). Boyd’s theory of innocence as to the sexual battery, premeditated murder, and armed kidnapping charges was that he had never met Dacosta and that the evidence against him was planted by Detective Bukata.
Sexual Battery Charge
We hold that Boyd’s motion for judgment of acquittal as to the sexual battery charge was properly denied by the trial court. Section 794.011(3), Florida Statutes (1997), provides in pertinent part:
A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony....
Sexual battery is defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another.” § 794.011(l)(h), Fla. Stat. (1997). Consent is defined as “intelligent, knowing, and voluntary consent and does not include coerced submission. ‘Consent’ shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.” § 794.011(l)(a), Fla. Stat. (1997).
The State presented substantial evidence that Boyd sexually battered Dacosta, including evidence that Boyd and Dacosta did not know each other before she encountered Boyd while looking for a ride back to her vehicle after obtaining gas at the Texaco station; that Boyd’s semen was on Dacosta’s inner thighs; that Dacos-ta’s blood was in Boyd’s apartment; and that Boyd’s DNA was in material found under Dacosta’s fingernails. The State also presented testimony establishing the chain of custody of the evidence collected, providing evidence against Boyd’s theory that Detective Bukata planted evidence so that it would match Boyd’s and Daeosta’s DNA. Bruising on Dacosta’s inner thighs and vaginal area was consistent with either consensual or nonconsensual intercourse. Dacosta was last seen alive with Boyd. Viewing this evidence in a light most favorable to the State, the evidence does create inconsistencies with Boyd’s theory of innocence, and the judgment of acquittal was therefore properly denied. Orme v. State, 677 So.2d 258, 262 (Fla.1996). Any question as to whether the evidence was sufficient to overcome all hypotheses of innocence was for the jury to decide. Washington v. State, 653 So.2d 362, 366 (Fla.1994). We hold that there was competent, substantial evidence to support the jury’s guilty verdict for sexual battery.
Premeditated Murder Charge
We also hold that the trial court properly denied the motion for judgment of acquittal as to the premeditated murder charge. Premeditation exists when there “is a fully formed conscious purpose to kill.” Wilson v. State, 493 So.2d 1019, 1021 (Fla.1986). Premeditation may “be formed in a moment and need only exist ‘for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.’ ” DeAngelo v. State, 616 So.2d 440, 441 (Fla.1993) (quoting Asay v. State, 580 So.2d 610, 612 (Fla.1991)). Premeditation can be inferred from circumstantial evidence such as “the nature of the weapon used, ... the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Sochor v. State, 619 So.2d 285, 288 (Fla.1993) (quoting Larry v. State, 104 So.2d 352, 354 (Fla.1958)). Moreover, “[t]he deliberate use of a knife to stab a victim multiple times in vital organs is evidence that can support a finding of premeditation.” Jimenez v. State, 703 So.2d 437, 440 (Fla.1997), receded from on other grounds by, Delgado v. State, 776 So.2d 233 (Fla.2000).
In this case, the evidence established that Dacosta was stabbed with a Torx screwdriver thirty-six times in the chest and four times in the head. One of the stab wounds to the head penetrated her brain, causing the wound that killed her. She had twelve wounds on her right hand that were consistent with defensive wounds. The State also presented testimony that eyewitnesses had last seen Da-costa alive with Boyd, that her blood was in Boyd’s apartment, that Boyd’s DNA was on material found under Dacosta’s fingernails, and that items at the scene where Dacosta’s body was discovered were consistent with items from Boyd’s apartment. Under these facts, there was competent, substantial evidence to create an inconsistency with Boyd’s theory of innocence and to support the conviction for premeditated murder. See Francis v. State, 808 So.2d 110 (Fla.2001) (twenty-three stab wounds to one victim and sixteen to another supported finding of premeditation as to both victims).
Even if the evidence was insufficient, the State argues that the evidence also supports a first-degree murder conviction on the basis of felony murder. We agree. Since Boyd was also convicted of sexual battery and armed kidnapping, the conviction for first-degree murder would stand even absent sufficient evidence of premeditation. See San Martin v. State, 717 So.2d 462, 470 (Fla.1998) (“[Reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient.”).
Armed Kidnapping Charge
We hold that the trial court properly denied the motion for judgment of acquittal as to the armed kidnapping charge. Section 787.01(l)(a), Florida Statutes (1997), defines kidnapping as
forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
Boyd was charged with armed kidnapping, meaning that during the commission of the kidnapping he possessed, carried, displayed, or used a deadly weapon, under both of these theories of intent.
Eyewitness testimony established that although Dacosta entered Boyd’s vehicle voluntarily, she was at the station to get gas and return to her car. Dacosta first approached Bell and Harris, both women, asking only for a ride back to her car. When she accepted a ride from Boyd, who was driving a church van, the jury could have inferred that it was with the sole purpose of receiving a ride back to her car. Although Dacosta had never met Boyd before, her blood was found in his apartment. Boyd’s apartment was east of the Texaco station, while Dacosta’s car was located only a block west of the station — in the opposite direction. The State relied on this circumstantial evidence, as well as the defensive and other wounds she received from the screwdriver and reciprocating saw, as evidence to establish that Boyd kidnapped Dacosta. The trial court concluded in its sentencing order that “[a]l-though initially Ms. Dacosta voluntarily entered Mr. Boyd’s borrowed van, there was some point in time, during the entire episode when Ms. Dacosta was forcibly restrained against her will, as evidenced by the defensive wounds she suffered and the bite marks Mr. Boyd inflicted on her body prior to her death.” Sentencing Order at 3. We agree.
This issue raises concerns similar to those in Conahan v. State, 844 So.2d 629, 636-37 (Fla.2003). In Conahan, the victim initially went freely with the defendant after the defendant offered him money to pose for nude photographs. The defendant was convicted of premeditated murder and kidnapping after the victim was discovered dead and bound to a tree at the site of the photo shoot. We held that there was competent, substantial evidence to support the kidnapping charge because even though the victim initially went freely with the defendant and even might have also initially consented to being tied up, the victim’s extensive ligature wounds indicated that “the victim was confined against his will at some point and apparently struggled for his life.” Id. at 637.
Also instructive is this Court’s opinion in Gore v. State, 599 So.2d 978 (Fla.1992). In that case, we affirmed the trial court’s denial of a motion for judgment of acquittal on a kidnapping charge, even though the victim, whose body was found in Florida, had initially gone willingly with the defendant when they left a party together in Cleveland, Tennessee. Id. at 985. We concluded that the evidence was sufficient to deny the motion because it showed that the victim had planned to return home at some point on the night she was with the defendant and because a shoestring found tied around her wrist indicated that she had been held against her will. Id.; see also Schwab v. State, 636 So.2d 3, 6 (Fla.1994) (after victim’s nude body was found in a footlocker in a remote location, and evidence revealed that victim died from manual asphyxiation, we concluded that “[although the victim may have gone willingly with Schwab initially, the conclusion that at some point he was held against his will is inescapable”); Peede v. State, 474 So.2d 808 (Fla.1985) (motion for judgment of acquittal on kidnapping charge properly denied where evidence indicated that although victim went willingly with defendant, she had no intention of leaving Miami or Florida, and her body was recovered in Georgia); cf. Anderson v. State, 841 So.2d 390 (Fla.2003) (evidence insufficient to prove kidnapping because victim went willingly with defendant, and no evidence indicated that she ever tried to escape), cert. denied, 540 U.S. 956, 124 S.Ct. 408, 157 L.Ed.2d 292 (2003).
While no evidence existed of any binding of the victim, as it did in Conahan and Gore, the defensive wounds on Dacos-ta do indicate that at some point she was in a struggle for her life and was held against her will. As in Gore, Dacosta’s family had expected Dacosta to return home immediately following her prayer meeting, and all of Dacosta’s actions at the gas station were consistent with this intention. Eyewitness testimony and the evidence of Dacosta’s blood at Boyd’s apartment suffice to dispute Boyd’s theory of innocence that he had never met Dacosta. Thus, there is also competent, substantial evidence sufficient for the jury to conclude that Dacosta was confined at some point against her will under either of the statutory theories of intent and that Boyd used a deadly weapon during the kidnapping.
Boyd also argues that any confinement that did take place was incidental to the other felonies charged. We have held that to find kidnapping under the theory of intent in section 787.01(l)(a)(2), the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
Faison v. State, 426 So.2d 963, 965 (Fla.1983) (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)). Competent, substantial evidence supports the State’s contention that Boyd’s movement and confinement of Dacosta from the Texaco station away from her car made the sexual battery and murder of Dacosta substantially easier to commit and lessened the risk of the crimes being detected while they were being perpetrated.
Boyd was also charged with kidnapping under section 787.01(l)(a)(3) of the kidnapping statute. This subsection requires that the kidnapper have the intent to “[i]nflict bodily harm upon or to terrorize the victim or another person.” Competent, substantial evidence supports the finding that Boyd had the intent to harm or terrorize Dacosta while confining her after she voluntarily entered the van. Thus, even if Dacosta’s kidnapping did not meet the requirements of Faison, Boyd would still be guilty of kidnapping under section (l)(a)(3) of the statute.
ISSUE 4. IMPROPER ADMISSION OF EVIDENCE
Next, Boyd argues that the trial court erred in admitting evidence that Boyd had failed to pay a train fare and in allowing the State to use the citation in its cross-examination of Boyd. The citation was dated two days before Dacosta’s disappearance, and it had Boyd’s name and address on it. The trial court admitted the citation into evidence over a defense objection after the State argued that the defense, in its opening statement, had put into question Boyd’s residence at the time of Dacos-ta’s disappearance. The pertinent portion of the opening statement was:
But remember what the [State’s] opening statement was. We did this, did that, did the other thing. On April the 1st, on April the 1st, 1999, we got this evidence. We got this evidence. We have a search warrant for Lucious’ apartment where the evidence is going to show you he didn’t live. The evidence is going to show that G.L. lived there. A long-time girlfriend of Lucious and that she was evicted from that apartment by BSO who showed up with a search warrant and threw she and the kids out for two days while unfettered, unsupervised, and unobserved they did what they wanted in that apartment.
Boyd argues that this statement only addressed the fact that he did not live in the apartment in question on the date of the search, April 1, and that he never contested living in the apartment in December 1998, when Dacosta was murdered. The trial judge “overrule[d] the defendant’s objection as to relevancy based on the location issue that the parties have raised.”
“[A]ny fact relevant to prove a fact in issue is admissible into evidence unless its admissibility is precluded by some specific rule of exclusion.” Bryan v. State, 533 So.2d 744, 746 (Fla.1988) (quoting Williams v. State, 110 So.2d 654, 658 (Fla.1959)). This Court will not overrule a judge’s ruling on the relevancy of evidence unless it finds an abuse of discretion. Heath v. State, 648 So.2d 660, 664 (Fla.1994). While the opening statement might have only been referring to the fact that Boyd did not live at the apartment on the day of the search, it was not an abuse of discretion for the trial court to admit the citation into evidence under these circumstances.
Even if the admission of this citation was an abuse of discretion, it would not warrant a new trial because any error was harmless. Boyd claims that the citation, since it relates to his honesty, easts doubt on his credibility. Given the substantial amount of DNA evidence against Boyd, as well as eyewitness testimony indicating that he was the last person seen with Dacosta, we hold that any error caused by admitting the citation is harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (error is harmless when there is no reasonable possibility that the error contributed to the verdict).
ISSUE 5. CROSS-EXAMINATION OF DEFENDANT
In his fifth claim, Boyd argues that the trial court erred in overruling the defense’s objections to the State’s cross-examination of Boyd. On direct examination, Boyd denied raping, kidnapping, and murdering Dacosta and stated that he was on trial because the Broward County Sheriffs Office was “going to get [him].” Boyd alleged that during his interrogation by the police, Detective Bukata called him a racial slur and then said, “[W]e told you we was going to get you.” In its cross-examination of Boyd, the State proceeded to question him as to the work he performed at his family’s funeral home business. The trial court overruled the defense objection to this cross-examination being outside the scope of direct examination but asked the State to limit its cross-examination to more immediate matters. Defense counsel put forth an ongoing objection as to all of the matters discussed on cross-examination, which covered areas including Boyd’s relationship with G.L., his work for Reverend Lloyd, the locations of various points in the community relevant to the crimes, the fliers about Dacosta’s disappearance, the bed purchased by G.L. that was no longer in the apartment, blood that was found in the apartment, items that were in Reverend Lloyd’s van the weekend of the murders, the sheets wrapped around Dacosta’s body, Boyd’s whereabouts on the night of the murders, whether he knew Dacosta, his interrogation by the Broward County Sheriffs Office, and the DNA evidence associated with the crimes.
Section 90.612(2), Florida Statutes (2001), states, “Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.” The permissible bounds of cross-examination are defined as follows:
[W]hen the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief....
Coco v. State, 62 So.2d 892, 895 (Fla.1953) (quoting 58 Am.Jur. Witnesses, § 632, at 352 (1948)). We review trial court decisions as to the scope of cross-examination on an abuse of discretion standard. McCoy v. State, 853 So.2d 396, 406 (Fla.2003).
This Court, in considering an objection to the scope of cross-examination, stated that a defendant “opened the door to be examined or impeached with evidence that linked him to the murder” when he denied the crime charged. Geralds v. State, 674 So.2d 96, 100 (Fla.1996). Thus, we hold that it was not an abuse of discretion for the trial court to permit the cross-examination to cover a variety of subjects relating to the murder and the evidence linking Boyd to the murder. These matters related to the impeachment of the defendant, and it was not an abuse of discretion for the trial court to allow this cross-examination.
Furthermore, any error that was committed was harmless error. The State did not question Boyd on any relevant matter that was not already in evidence, and therefore there is no reasonable possibility that the error contributed to Boyd’s conviction. See Chandler v. State, 702 So.2d 186, 197 (Fla.1997) (defendant could be cross-examined on variety of matters after denying he killed victims, and any error that had occurred was harmless).
ISSUE 6. COMPETENCY EVALUATION
Boyd next argues that the trial court erred in its failure to consider reports and take testimony from doctors who found Boyd incompetent. In October 2000, prior to trial, defense counsel requested a competency hearing because Boyd indicated he wished to waive penalty phase proceedings if the jury found him guilty. Three psychiatrists examined Boyd. Dr. Shapiro, retained by the defense, found that Boyd was not competent to waive penalty proceedings, for although “he was aware of the charges against him and of their seriousness,” he was “delusional” as he believed that God had spoken to him and told him that the jury would find him not guilty. Dr. Haber, appointed by the trial court, found Boyd competent, because he understood the charges against him, the possible penalties, and the adversary system and could assist his attorney in the case. Dr. Block-Garfield, also appointed by the trial court, found Boyd incompetent to stand trial, because he was not willing to entertain the possibility of being found guilty and appeared to be “giving lip service” to the doctor’s questions so that she would find him competent.
At the hearing on March 26, 2001, Boyd called only Dr. Haber, who testified, consistent with his report, that Boyd was competent. The trial judge noted that he also had Dr. Block-Garfield’s report, that he had read it, though it was not in evidence, and that it troubled him because it conflicted with Dr. Haber’s testimony. Defense counsel responded that “it was not by whim or speculation” that Boyd had elected not to present the other two doctors. He remarked that there had been cultural differences between Boyd and Dr. Shapiro, such that Dr. Shapiro’s report was not reliable. Nor was Dr. Block-Garfield’s report reliable, as she had used Shapiro’s report in her conclusions. Defense counsel and the defendant wanted a finding of competency, so they did not present testimony from these doctors or enter their reports into evidence. Based on the evidence presented, the trial court concluded that Boyd was competent.
“In determining whether a defendant is competent to stand trial, the trial court must decide whether the defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him.’ ” Hardy v. State, 716 So.2d 761, 763 (Fla.1998) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)). Trial courts are to order competency hearings whenever it appears necessary based on the defendant’s history or behavior in court. Gibson v. State, 474 So.2d 1188, 1184 (Fla.1985). The trial court’s function in making this determination is to resolve factual disputes arising from different expert opinions. The competency determination must be based on all relative evidence, and the decision will stand absent an abuse of discretion. Carter v. State, 576 So.2d 1291, 1292 (Fla.1989). When the evidence supports the decision, we have held that the trial court did not abuse its discretion. Mora v. State, 814 So.2d 322, 328 (Fla.2002).
WTiile Boyd recognizes that the trial court did conduct a competency hearing, he contends that this hearing did not satisfy constitutional requirements because the judge did not consider the reports of Drs. Shapiro and Block-Garfield. However, Boyd’s claim is barred, since at trial he asked that the trial court not call these witnesses or consider their reports. Boyd argues that the trial court had the responsibility to call the witnesses when his defense counsel did not. Either the court or a party may call the experts preparing the reports as witnesses. Fla. R.Crim. P. 3.212(a). However, the only impetus placed on a trial judge is to conduct a hearing when events indicate that the defendant is incompetent or upon a motion to do so, and to consider all of the evidence presented. Carter, 576 So.2d at 1292. When the defendant refuses to present evidence, he cannot later argue that the trial court erred in not considering the evidence.
The trial court, the State, and defense counsel all agreed that Boyd understood the proceedings against him and had reason to believe that he would not be found guilty, thus having no need for a penalty phase, because he had previously been acquitted of similar charges in other cases. Thus, there was evidence in the record supporting the finding that Boyd was competent. See Mora, 814 So.2d at 328.
ISSUE 7. COMPETENCY HEARING FOLLOWING GUILT PHASE
Boyd asserts that the trial court erred in not ordering a competency hearing at sentencing. At the start of penalty proceedings, defense counsel requested a withdrawal because Boyd still refused to present any mitigation. Defense counsel indicated that the trial court needed to address Dr. Shapiro’s continuing serious concerns about Boyd.
Once a defendant is determined competent to stand trial, a presumption of competence attaches to the defendant in later proceedings. Durocher v. Singletary, 623 So.2d 482, 484 (Fla.1993). However, another competency hearing is required if a bona fide question as to the defendant’s competency has been raised. Hunter v. State, 660 So.2d 244, 248 (Fla.1995). We will affirm the trial court’s decision absent an abuse of discretion. Id.
We hold that the trial court did not err in refusing to order a second competency hearing. The record reflects that the trial judge interviewed Boyd on the issue of what mitigation was to be presented and determined that he understood the potential consequences of his decision, that his decision was deliberate, and that he made the decision freely and voluntarily. The record reflects no new evidence that should have raised a bona fide question as to Boyd’s mental capacity sufficient to require another hearing, nor did defense counsel specifically ask for a competency hearing. See Hall v. State, 742 So.2d 225, 230 (Fla.1999) (trial judge had no obligation to order competency hearing or make determination of competency when defendant did not request a hearing, and there was no reason to believe defendant’s mental capacity had changed at 1990 re-sentencing since he had been found competent at 1978 trial).
ISSUE 8. WAIVER OF MITIGATION
Boyd claims that the trial court did not comply with the requirements of Koon in accepting his waiver of mitigation. In Koon, the defendant ordered his penalty phase counsel not to present any testimony or evidence. 619 So.2d at 249. While counsel followed Koon’s wishes, he still presented an argument for mitigation based upon testimony presented during the guilt phase. Id. at 250. This Court emphasized that it has “repeatedly recognized the right of a competent defendant to waive presentation of mitigating evidence.” Id. at 249. However, we also held that when a defendant waives presentation of mitigation against his attorney’s wishes, the trial court must be informed of this decision, the attorney must indicate on the record whether there is mitigating evidence that could be presented and what that evidence would be, and the defendant must confirm that he has discussed these matters with his attorney and that despite his attorney’s recommendation, he still wishes to waive mitigation. Id. at 250. This ensures that a defendant knowingly and intelligently makes a waiver of mitigation. Chandler v. State, 702 So.2d 186, 200 (Fla.1997). Thus, the record should “reflect a defendant’s knowing waiver of his or her right' to present mitigating evidence.” Mora v. State, 814 So.2d 322, 332-33 (Fla.2002);
We hold that this case is distinguishable from Koon because Boyd did not ultimately waive his right to present mitigation. After discussing matters with his friends and family, Boyd elected to testify during the penalty phase and allowed his pastor to testify. Thus, the requirements of Koon are not applicable in this case because Boyd presented mitigating evidence.
Moreover, the record reflects that the trial judge inquired about the mitigation issue several times and concluded that the mitigation presented was all Boyd wished to present. He stated that Boyd was “making the decision freely and voluntarily with the assistance of able counsel.” Additionally, several times defense counsel commented that it had mitigation witnesses. to testify on behalf of Boyd, including his mother and brother. Thus, the trial court was aware of the potential mitigation evidence available for Boyd. The record also reflects that the trial court was wholly aware of and was seeking to act in compliance with this Court’s decision in Mora. Accordingly, we hold that the trial court did not err. See Waterhouse v. State, 792 So.2d 1176, 1184 (Fla.2001) (Koon requirements were met when defendant made it “abundantly clear” that he was waiving mitigation); Chandler, 702 So.2d at 200 n. 19 (as long as it was demonstrated that waiver was made knowingly, intelligently, and voluntarily, defense counsel was not required to go into explicit detail about what the favorable mitigation evidence would be).
ISSUE 9. WEIGHT GIVEN TO JURY’S PENALTY RECOMMENDATION
Boyd next asserts that the trial court erred in giving great weight to the jury’s recommendation of the death sentence. Boyd bases this argument on our opinion in Muhammad, where we held that the trial court erred in giving great weight to a jury’s recommendation of the death penalty “when that jury did not hear any evidence in mitigation.” 782 So.2d at 363. As stated in our discussion of Issue 8, Boyd did not waive all mitigation but only limited the matters presented on mitigation. Thus, we hold that Muhammad is inapplicable to this case.
ISSUE 10. CONTROL OF PRESENTATION OF MITIGATION
Next, Boyd argues that the defendant’s waiver of mitigation was invalid because it is the attorney’s obligation to decide what evidence is to be presented in the penalty phase of trial. We review decisions of the trial court in its handling of mitigation issues for abuse of discretion. Spann v. State, 857 So.2d 845, 854 (Fla.2003). Boyd attempts to distinguish a long line of cases holding that a pro se defendant may waive the presentation of mitigating evidence because Boyd was represented by counsel and his counsel should have controlled the presentation of mitigating evidence. This argument is without merit.
As stated above, we have long recognized that a competent defendant may waive the right to present all mitigating evidence. Hamblen v. State, 527 So.2d 800 (Fla.1988). This right is not altered when the defendant has counsel. Again, Boyd did not waive his right to present mitigating evidence. Instead, he limited the presentation of such evidence to his testimony and that of his pastor. Boyd argues that the trial court erred in failing to comply with Koon (discussed above under Issue 8) and Mora v. State, 814 So.2d 322 (Fla.2002), in accepting Boyd’s presentation of mitigating evidence.
In Mora, the defendant objected to penalty phase counsel contacting his relatives that lived overseas as part of counsel’s investigation of mitigating evidence. The trial court relied on Koon in refusing to allow the defendant to waive any mitigating evidence before counsel had investigated all such evidence. Id. at 331. The defendant refused to allow counsel to contact his family and proceeded pro se during the penalty phase, where he presented no mitigating evidence. Id. at 332. We reversed the death sentence because the trial court misapplied Koon in holding that it barred a defendant from waiving mitigation before counsel first investigates all possible mitigation. Id. Instead, Koon simply developed a procedure so that the record clearly reflects “a defendant’s knowing waiver of his or her right to present mitigating evidence.” Id. at 332-33. The defendant received a new penalty phase, because the record reflected that he had only wished to waive a portion of the mitigating evidence and had done so knowingly, intelligently, and voluntarily.
Thus, a defendant possesses great control over the objectives and content of his mitigation. See Farr v. State, 656 So.2d 448, 449 (Fla.1995) (no error when defendant takes stand to refute and disclaim any possible mitigation because defendant is entitled to control overall objectives of counsel’s argument). Whether a defendant is represented by counsel or is proceeding pro se, the defendant has the right to choose what evidence, if any, the defense will present during the penalty phase. See Grim v. State, 841 So.2d 455, 461 (Fla.), cert. denied, 540 U.S. 892, 124 S.Ct. 230, 157 L.Ed.2d 166 (2003).
The record provides extensive support to substantiate that Boyd understood his rights and understood the consequences of his choice to present only the testimony of his pastor and himself. Boyd was exercising his right to be the “captain of the ship” in determining what would be presented during the penalty phase. See Nixon v. Singletary, 758 So.2d 618, 625 (Fla.2000). Therefore, we hold that the trial court correctly allowed Boyd to make a knowing and voluntary decision as to what testimony was to be presented in mitigation.
Boyd attempts to analogize the instant case to that of Klokoc v. State, 589 So.2d 219 (Fla.1991), where this Court held that a defendant cannot prevent his counsel from challenging a sentence on appeal. However, this analogy confuses the distinction between a defendant’s rights during a trial versus his rights on appeal. The differences between the trial and appellate levels were succinctly defined in Ocha v. State, 826 So.2d 956, 964 (Fla.2002):
Thus, Klokoc reiterates this Court’s interest in ensuring that every death sentence is tested and has a proper basis in Florida law.
This proposition is not ... inconsistent with our Hamblen opinion. Ham-blen and its progeny operate under the premise that a competent defendant may direct his own defense at trial. See Farr v. State, 656 So.2d 448, 449 (Fla.1995). However, on appeal, this Court must examine [a defendants] death sentence to ensure the uniform application of law, evidentiary support, and proportionality. See Alston, 723 So.2d at 160. To facilitate the Court’s duty, Klokoc requires that the defendant have appellate counsel. Therefore, it is not inconsistent for [a defendant] to waive his right to present mitigating evidence at the trial level, yet have appellate counsel appointed against his wishes.
Therefore, a lawyer is fully within the confines of his professional duties in honoring a knowing, intelligent, and voluntary waiver to present mitigation during the penalty phase.
ISSUE 11. HAC AND FELONY MURDER AGGRAVATORS
Boyd argues that the evidence does not support the HAC aggravator. The sentencing order states that the trial court found beyond a reasonable doubt that the manner of Dacosta’s death indicated “a complete disregard for the suffering of another human being”:
The evidence at trial indicated that Mr. Boyd stabbed Ms. Dacosta in the chest 36 times with an instrument consistent with the design of a torque screwdriver. The injuries to Ms. Dacos-ta’s chest consisted of superficial puncture wounds, which did not penetrate her sternum. The injuries to the chest occurred in a pattern, indicating that Mr. Boyd inflicted the wounds at the same time.
While Mr. Boyd repeatedly stabbed Ms. Dacosta, she was conscious and struggled against her assailant, as reflected by the defensive wounds about her hands and arms.... These wounds were in addition to the bite marks evident on her hands.
... The evidence indicates that Ms. Dacosta was aware of her impending death, as she fought against Mr. Boyd, through the pain, fear, and suffering that Mr. Boyd inflicted with each of the 36 blows to her chest, and up until the fatal blow to her brain.
Sentencing Order at 2-3.
In reviewing a trial court’s finding of an aggravating factor, we review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent, substantial evidence supports its finding. Willacy v. State, 696 So.2d 693, 695 (Fla.1997). “For HAC to apply, the crime must be conscienceless or pitiless and unnecessarily torturous to the victim.” Davis v. State, 859 So.2d 465, 478 (Fla.2003). We hold that the trial court here did not err in finding HAC as an aggravating factor against Boyd.
We have consistently affirmed the HAC aggravator where the victim was repeatedly stabbed and remained conscious during part of the attack. Id. Boyd argues that the evidence did not prove that Dacos-ta was alive or conscious while being stabbed. However, Dr. Joshua Perper, the Chief Medical Examiner for Broward County, testified that the bruising around the wounds on Dacosta’s chest, hands, and arms indicated she was alive when the wounds were inflicted. Dr. Perper also testified that Dacosta could not have raised her arm, and thus could not have sustained the defensive wounds she received, if she had been unconscious. While the exact order of wounds could not be established, there was competent, substantial evidence to support the trial court’s finding that Dacosta was alive and conscious for some of the attack, and was struggling with her attacker.
Boyd also argues that the trial court erred in applying the aggravator that the murder was committed in the course of committing another felony because there was insufficient evidence to support his convictions for sexual battery and armed kidnapping. As discussed above, we hold that there was sufficient evidence to support the sexual battery and armed kidnapping convictions, and thus the trial court did not err in finding the aggravator that the murder was committed in the course of a felony.
Boyd argues that should we agree with him that the trial court erred in finding either of the above aggravators, we should reverse his sentence because a death sentence cannot stand when it is based on only one aggravator. Since we affirm the trial court’s finding of both aggravators, we need not consider whether a death sentence is proper when only one aggravator is found. However, we note that this Court has affirmed sentences where there was only one aggravator and little mitigation evidence. See Butler v. State, 842 So.2d 817, 833 (Fla.2003).
ISSUE 12. AUTOPSY PHOTOS
Boyd next asserts that the trial court erred in admitting autopsy photographs of the victim during the penalty phase of trial. The photographs challenged were: (1) Exhibit 2, which showed Dacosta’s right forearm and the defensive wounds inflicted by the screwdriver; (2) Exhibit 5, which showed the thirty-six stab wounds on her chest; (3) Exhibit 6, which was a close-up of the stab wounds; and (4) Exhibit 7, which showed the fatal head wound. The trial court admitted the photographs because they were relevant in the penalty phase to the HAC factor and supplemented the medical examiner’s testimony-
We will not disturb a trial court’s ruling on the admissibility of a photograph absent a clear abuse of discretion. Mansfield v. State, 758 So.2d 636, 648 (Fla.2000). Photographic evidence is admissible if it is relevant to a material fact in dispute. Thus, “autopsy photographs, even when difficult to view, are admissible to the extent that they fairly and accurately establish a material fact and are not unduly prejudicial.” Rose v. State, 787 So.2d 786, 794 (Fla.2001). This Court has upheld the admission of photos to demonstrate the HAC factor during the penalty phase. See id. at 795; Mansfield, 758 So.2d at 648. This Court has also repeatedly upheld the admission of photographs when they are necessary to explain a medical examiners testimony, the manner of death, or the location of the wounds. See, e.g., Davis v. State, 859 So.2d 465, 477 (Fla.2003); Floyd v. State, 808 So.2d 175, 184 (Fla.2002); Pope v. State, 679 So.2d 710, 713-14 (Fla.1996).
Exhibits 2, 5, and 6 were properly admitted. None of these exhibits were unduly prejudicial, and thus the trial court did not err in admitting them. The admissibility of Exhibit 7 (showing the fatal head wound, as well as the top portion of the victim’s body) is a closer call. The photograph is somewhat gruesome, because decomposition of the body had begun, resulting in the victim’s eyes bulging significantly. Also, fragments of the brain are visible. However, we have affirmed the admissibility of even gruesome photographs when they are “independently relevant or corroborative of other evidence.” Czubak v. State, 570 So.2d 925, 928 (Fla.1990). Because this photograph was the only depiction of the manner of death, assisted the medical examiner in his testimony, and was relevant to the HAC aggravating factor, we hold that the trial court did not err in admitting the photo. See Harris v. State, 843 So.2d 856, 865 (Fla.2003) (admission of crime scene photographs of the decomposed body of the victim were relevant, since they demonstrated the manner of death and assisted officer in testimony at trial about the crime scene). The trial judge carefully considered the relevance of each photo before admitting it and even sustained objections to another photograph in order to ensure that the evidence was not repetitious. See Floyd v. State, 808 So.2d 175, 184 (Fla.2002).
ISSUE 13. MITIGATING CIRCUMSTANCES
Boyd claims that the trial court erred in its assessment of mitigating circumstances. The trial court found and gave weight to one statutory and five non statutory miti-gators. The trial court accorded minimal weight to the nonstatutory mitigating circumstances. The relevant parts of the sentencing order challenged under this claim stated:
1) The Defendant is religious.
Pastor Lester E. Matthews, Mr. Boyd’s prison minister, ... testified that while in the county jail, Mr. Boyd has been a model Christian, exhibiting forgiveness to those who have wronged him, and sharing his beliefs with other prisoners.
This Court finds that Mr. Boyd’s religious beliefs, however, did not prevent him from brutally assaulting, raping, and murdering Dawnia Dacosta. The forgiveness professed by Mr. Boyd is directed towards members of the Bro-ward Sheriffs Office and the Office of the State Attorney, as Mr. Boyd believes that he was framed by these agencies.
The mitigator involving religion has been proven by a preponderance of the evidence. The Court gives it minimal weight.
4) Lucious Boyd came from a good family.
Pastor Williams testified that Mr. Boyd came from a good family, and that he was raised by his parents with love and with the highest standards of integrity. Nevertheless, this Court finds that the positive influence of Mr. Boyd’s loving family background did not prevent him from committing the brutal murder of Dawnia Dacosta, who also came from a good family; and, it is therefore especially tragic that, because of Mr. Boyd’s actions, two good, loving families are made to suffer.
This factor has been proven by a preponderance of the evidence. The Court gives it minimal weight.
Sentencing Order at 6-8. Boyd argues that the trial court’s rationale for according minimal weight to these mitigating circumstances was in error because this Court has held that the trial court should not rely on the jury’s verdict to reject proposed mitigating factors. Morgan v. State, 639 So.2d 6, 13 (Fla.1994). However, we do not read the trial court’s order to state that the judge relied upon the verdict to reject these mitigating factors. The order states that the mitigation was proven but gives minimal weight to this mitigation. Boyd also argues that the trial court’s reasoning is also illogical, since it could be used to accord less weight to mitigating factors in every murder trial.
However, trial courts have the sound discretion to determine what weight, if any, to accord to mitigating factors. Stephens v. State, 787 So.2d 747, 761 (Fla.2001). This Court sustains a trial court’s assessment of the weight given to a mitigating factor absent an abuse of discretion and when the evidence supports the conclusions. Anderson v. State, 863 So.2d 169, 178 (Fla.2003), cert. denied, 541 U.S. 940, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004). Because trial courts are in the best position to observe the unique circumstances of a case, they have broad discretion in their decisions as to how much weight to assign to a particular mitigator. See Foster v. State, 679 So.2d 747, 755 (Fla.1996) (“As long as -the court considered all of the evidence, the trial judge’s determination of lack of mitigation will stand absent a palpable abuse of discretion.”). Though deference is given to trial courts in this weighing of mitigation, we do point out the existence of mitigation evidence is not to be determined on the basis of whether the mitigating factor prevented the crime.
Moreover, in this case any error committed by the trial court in this part of the sentencing order was harmless error beyond a reasonable doubt. The trial court was presented very little evidence in mitigation and found there to be two weighty aggravators which we have found to be supported by competent, substantial evidence.
ISSUE 14. PROPORTIONALITY OF DEATH SENTENCE
Boyd next asserts that his death sentence was not proportionate. To determine whether death is a proportionate penalty, we consider the totality of the circumstances of the case and compare the case with other capital cases where a death sentence was imposed. Pearce v. State, 880 So.2d 561, 577 (Fla.2004).
Considering the totality of the circumstances surrounding this case, the aggravating and mitigating circumstances, and other similar cases, the death sentence imposed upon Boyd is proportional. See, e.g., Mansfield v. State, 758 So.2d 636, 647 (Fla.2000) (death sentence was proportionate where trial court found two aggravating factors, HAC and murder committed during sexual battery, measured against five nonstatutory factors that were given little weight); Davis v. State, 703 So.2d 1055, 1061-62 (Fla.1997) (death sentence was proportionate where trial court found two aggravating factors of HAC and committed during course of sexual battery outweighed slight nonstatutory mitigation); Geralds v. State, 674 So.2d 96 (Fla.1996) (death sentence was proportionate where trial court found two aggravating circumstances, HAC and murder in course of felony, and some nonstatutory mitigation).
ISSUE 15. TRIAL COURT’S COMPLIANCE WITH MUHAMMAD V. STATE
Finally, Boyd argues that the trial court erred in assigning great weight to the jury’s death recommendation because of this Court’s holding in Muhammad v. State, 782 So.2d 343 (Fla.2001). In Muhammad, we set out procedures to apply when “the defendant is not challenging the imposition of the death penalty and refuses to present mitigation evidence,” including the preparation of a PSI or permitting the defendant to address the jury. Id. at 363. As explained in the analysis under Issue 8, Boyd did not waive all mitigation. Thus, we hold that the trial court did not err in its sentencing of Boyd.
CONCLUSION
Accordingly, we affirm Boyd’s convictions and sentence of death.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
The aggravating factors were that the crime (1) was especially heinous, atrocious, or cruel (HAC) (accorded great weight), and (2) was committed while the defendant was committing or attempting to commit kidnapping and sexual battery (accorded moderate weight).
The statutory mitigating factor was that the defendant had no significant prior criminal history, to which the court accorded medium weight. .The nonstatutory mitigating factors were all accorded minimum weight and were that the defendant (1) is religious, (2) has a good jail record, (3) has family and friends who care for and love him, (4) came from a good family, and (5) expressed remorse for the victim and her family.
Boyd claims that (1) the trial court erred in refusing to make an inquiry of jurors and in denying a mistrial upon hearing testimony that jurors had discussed extrajudicial information; (2) the trial court erred in overruling the defense's request for material withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), denying the defense’s motion to strike the testimony of the fingerprint examiner, and not ordering a hearing in compliance with Richardson v. State, 246 So.2d 771 (Fla. 1971); (3) the State’s evidence was insufficient to support the convictions for sexual battery, first-degree murder, and armed kidnapping; (4) the trial court erred in overruling the defense’s objection to evidence that Boyd had received a citation for failure to pay a train fare, and in overruling the defense’s objection to the use of the citation in Boyd's cross-examination; (5) the trial court erred in overruling the objections to the State’s cross-examination of Boyd; (6) the trial court erred in failing to consider two experts’ reports and testimony as to Boyd's competency; (7) the trial court erred in not ordering a competency hearing at sentencing; (8) Boyd’s waiver of mitigation did not comply with Koon v. Dugger, 619 So.2d 246 (Fla.1993); (9) the trial court erred in giving great weight to the juiy’s death penalty recommendation; (10) Boyd’s presentation of mitigation was invalid because the decision of whether to call witnesses and present evidence is for counsel to make; (11) the evidence does not support the HAC and murder in the course of a felony aggravating factors, and section 921.141, Florida Statutes (1997), does not allow a death sentence when there is only one aggravating circumstance; (12) the trial court erred in overruling the objection to the introduction of photographs of the victim during penalty proceedings; (13) the trial court erred in its assessment of mitigating circumstances; (14) Boyd’s death sentence is not proportionate; and (15) the trial court failed to comply with Muhammad v. State, 782 So.2d 343 (Fla.2001), in sentencing Boyd.
Boyd's Presentence Investigation Report (PSI) reveals numerous drug and driving related charges against Boyd. Also reflected in the report are his acquittals of second-degree murder in 1993, armed kidnapping and armed sexual battery in 1998, and sexual battery in 1999.
After the State’s presentation during penalty proceedings and after discussing matters with his family and friends, Boyd did eventually elect to present mitigation and allowed testimony from his pastor, and then Boyd read his own statement to the jury.
Lucious BOYD, Appellant, v. STATE of Florida, Appellee. Lucious Boyd, Petitioner, v. Julie L. Jones, etc., Respondent.
Nos. SC13-244, SC13-1959.
Supreme Court of Florida.
Dec. 17, 2015.
Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Suzanne Myers Keffer, Chief Assistant, Capital Collateral Regional Counsel, Southern Region, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee/Respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Lucious Boyd appeals a final 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. Boyd also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the circuit court’s denial of Boyd’s rule 3.851 motion and deny relief on his petition for writ of habeas corpus.
I. BACKGROUND AND FACTS
Lucious Boyd was convicted for the first-degree murder, armed kidnapping, and sexual battery of Dawnia Dacosta and sentenced to the penalties of death, life imprisonment, and fifteen years’ imprisonment, respectively. Boyd v. State, 910 So.2d 167, 176-77 (Fla.2005).
A. Trial and Direct Appeal Proceedings
On direct appeal, we set forth the relevant factual and procedural background as follows:
The evidence presented at trial revealed the following facts. In the early morning hours of December 5, 1998, Dawnia Dacosta’s car ran out of gas while she was on her way to her home in Deerfield Beach, Florida, from a-midnight church service. She had just exited from Interstate 95 (1-95) onto Hills-boro Beach Boulevard and pulled onto the shoulder. She then took a red gas can she kept in her car, walked about a block east to a nearby Texaco gas station, and bought a gallon of gas. At approximately 2 a.m., during the time she was at the gas station, Dacosta spoke with two other customers, Lisa Bell and Johnnie Mae Harris. She asked Bell for a ride back to her car, but Bell had walked to the station and so could not give Dacosta a ride. Bell and Harris then watched Dacosta speak with a black male in a van in the station’s parking lot. Harris asked the man if he was going to help Dacosta, and the man nodded, indicating yes. Bell later told the police that the van she saw was greenish-blue in color, while Harris said that she thought the van was burgundy. Though somewhat unsure about the van’s color, Harris was certain that she saw the word “Hope” on its side. In a photo lineup and at trial, Harris identified the man she saw in the van that night as Lucious Boyd.
Boyd spent the evening of December 4 with G.L., his girlfriend, at her mother’s home. Boyd left the house around 10 or 11 p.m., and G.L. did not see him again until the morning of December 5, at around 9 or 10 a.m. G.L. testified that on December 4 and 5, Boyd was driving a green church van with writing on its side and that the van belonged to Reverend Frank Lloyd of the Hope Outreach Ministry Church, for whom Boyd performed occasional maintenance work.
Dacosta’s family began searching for her after she did not return home on December 5. They found her car at an 1-95 exit and began circulating fliers with Dacosta’s photograph, indicating that she was missing, throughout the area. Bell and Harris saw the fliers, recognized Dacosta as the woman with the gas can at the Texaco station on December 5, and contacted the police with their information.
On December 7, Dacosta’s body was discovered in an alley behind a warehouse on 42nd Street in Deerfield Beach. The body was wrapped in a shower curtain liner, a brown, flat bed sheet, and a yellow, flat bed sheet. A purple duffel bag and two large black trash bags covered her head. It was determined that she had been dead for between thirty-six and seventy-two hours.
At trial, it was stipulated that Dacosta died due to a penetrating head wound and that the bruising on her head was consistent with but not exclusive to the face plate of a reciprocating saw. Wounds to her chest, arms, and head were consistent with but not exclusive to a Torx brand torque screwdriver, and she had defensive wounds on her arms and hands. There was bruising to her vagina that was consistent with sexual intercourse, although the medical examiner could not determine whether the intercourse was consensual or noncon-sensual. Dacosta had thirty-six superficial wounds on her chest, four on the right side of her head, and twelve on her right hand, some being consistent with defensive wounds and some being consistent with bite marks. One fatal wound to the head perforated the skull and penetrated Dacosta’s brain.
On March 17, 1999, while Detectives Bukata and Kaminsky of the Broward County Sheriffs Office were investigating another crime unrelated to Dacosta’s death, they saw a green van in the Hope Outreach Ministry Church parking lot. The van had burgundy writing on it that read “Here’s Hope.” Bell would later identify the church’s van as the same van she had seen on the morning of December 5 at the Texaco station. The detectives decided to investigate, and their inquiries as to the owner of the van led them to Reverend Lloyd. When the detectives questioned Lloyd about the location of the van on the night of December 4, Lloyd’s secretary, who was present at the questioning, remarked that Lucious Boyd had driven the van on that weekend. On December 4, Boyd had taken Reverend Lloyd to pick up a rental car in the church’s green 1994 Ford van. Reverend Lloyd further testified that he instructed Boyd to take the van back to the church but that Boyd did not return the van until Monday, December 7. Reverend Lloyd also stated that when he left the van with Boyd, various tools owned by the church, including a set of Torx brand screwdrivers and a reciprocating saw, were in the van, as well as a purple laundry bag that the pastor used to deliver his laundry to the cleaners. When Reverend Lloyd returned on December 15, he discovered that the screwdrivers, the saw, and the laundry bag were missing.
Boyd was arrested for Dacosta’s murder on March 26, 1999. Seminal fluid taken from Dacosta’s inner thigh matched the DNA profile of Boyd. Tests also did not eliminate Boyd as a match for a hair found on Dacosta’s chest. A DNA profile consistent with Boyd’s was found in material taken from under Da-costa’s fingernails. In addition, fingerprints taken from the trash bag found around the victim’s head matched fingerprints of Boyd’s girlfriend, G.L., and her son, Z.L. Tire marks on a sheet covering the victim’s body were consistent with the tires on the church van, although trial expert Terrell Kingery, a senior crime laboratory analyst for the Orlando Regional Crime Laboratory, testified that he could not say for certain that the van’s tires made the marks because over 1.5 million tires could have made the tracks on the sheet. Dr. Steven Rifkin, a private dentist and a forensic odontologist with the Broward County Medical Examiner’s Office, testified that bite marks on Dacosta’s arm were, within a reasonable degree of certainty, made by Boyd’s teeth.
On April 1, Detective Bukata obtained a warrant to search the apartment of Boyd and G.L., which was a block east of the Texaco station. Detective Bukata arrived at the apartment and told G.L. to leave with her children for a few days so that the officers could fully search the apartment. The investigators found blood at various locations throughout the apartment. Blood found on the underside of the carpet and on the armoire matched Dacosta’s DNA profile. The shower curtain rings were unsnapped, and there was no liner to the shower curtain. Carpet fibers taken from the yellow sheet in which Dacosta’s body was wrapped matched characteristics of carpet samples taken from Boyd’s apartment.
G.L. had previously lived with Boyd at his apartment but had moved out in October of 1998. While living with Boyd, G.L. had purchased a queen-size bed, which she left at the apartment when she moved. G.L. and her three children moved back in with Boyd in February of 1999 and discovered that the bed was no longer at Boyd’s apartment. When she asked about it, Boyd told her that he had given it away but would get it back. When she inquired about it again, Boyd told her that she would not want that bed and that he would get her another one. G.L. also identified the flat bed sheets, one brown and one a “loud yellow,” that were found around Dacosta’s body as similar to ones she had owned while living at Boyd’s apartment but that she no longer knew where they were or if they were at Boyd’s apartment or at her mother’s home.
A jury convicted Boyd of first-degree murder, sexual battery, and armed kidnapping. The trial court subsequently conducted a penalty phase proceeding, during which both sides presented evidence. The jury unanimously recommended that Boyd be sentenced to death. The trial court followed the jury’s recommendation and imposed a death sentence, finding and weighing two aggravating factors, one statutory mitigating factor, and five nonstatutory mitigating factors. State v. Boyd, No. 99-5809 (Fla. 17th Cir. Ct. order filed June 21, 2002) (sentencing order). The trial court also sentenced Boyd to fifteen years’ imprisonment for the sexual battery and to life imprisonment for the armed kidnapping charges.
Id. at 174-77 (footnotes omitted). This Court affirmed Boyd’s convictions and sentence of death. Id. at 194.
B. Postconviction Relief Proceedings
On February 14, 2007, Boyd filed a Motion to Vacate Judgment of Conviction and Sentences with Special Request for Leave to Amend, pursuant to Florida Rule of Criminal Procedure 3.851. He raised the following claims: (1) denial of access to public records; (2) violation of his rights of due process and equal protection by failing to apply rule 3.851; (3) counsel was ineffective by failing to adequately conduct voir dire, challenge the admissibility of forensic evidence pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and utilize forensic experts; (4) juror misconduct; (5) denial of adversarial testing during the sentencing phase, including counsel’s ineffectiveness for failure to move for a mistrial based on inflammatory and prejudicial comments; (6) denial of rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (7) denial of the right to interview jurors; (8) cumulative error;, and (9) the unconstitutionality of Florida’s lethal injection statute and procedure.
On May 29, 2009, Boyd filed an amended motion to vacate his convictions and sentences, adding claims that newly discovered evidence undermined the reliance of the forensic evidence used to convict and sentence, and that the State committed a Brady violation. Boyd subsequently filed a second amended rule 3.851 motion on March 23, 2012.
On June 5, 2012, the circuit court granted an evidentiary hearing on some of Boyd’s claims. On August 28 and 29,2012, the circuit court held an evidentiary hearing on Boyd’s claims of ineffective assistance of counsel for failure to conduct adequate voir dire concerning jurors’ prior criminal histories, juror misconduct, and ineffective assistance of penalty phase counsel for failure to move for a mistrial based on inflammatory and prejudicial comments. In a sixty-two page order, dated January 2, 2013, the circuit court denied these three claims and summarily denied Boyd’s remaining claims. Boyd now appeals the lower court’s order denying postconvietion relief and also petitions for a writ of habeas corpus.
II. POSTCONVICTION RELIEF CLAIMS
A. Actual Juror Bias Claims
Boyd asserts that he is entitled to a new trial because two jurors failed to disclose information pertinent to his decision to retain them for jury service, thereby denying him a fair and impartial jury. The present appellate claim involves issues of fact considered and conclusions of law made by the circuit court. This Court employs a mixed standard in reviewing a postconviction court’s denial of postconviction relief, “deferring to the postconviction court’s factual findings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo.” Victorino v. State, 127 So.3d 478, 486 (Fla.2013) (citing Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004)); Jackson v. State, 127 So.3d 447, 460 (Fla.2013) (“This Court accords deference to the postconviction court’s factual findings following its denial of a claim after an evidentiary hearing.”).
Boyd argues that jurors T.S. and K.R. failed to disclose information concerning their criminal histories, which denied Boyd a fair and impartial jury at trial. According to Boyd, the presence of Juror T.S. and Juror K.R. — one, a convicted felon who had not timely had her civil rights restored; the other, a former misdemeanor defendant for whom adjudication had been withheld — on the jury of his criminal trial was inherently prejudicial to his legal interests. Consequently, Boyd asserts, because his constitutional right to a fair trial was denied when he was convicted by a jury that consisted of said' jurors, a new trial must be granted without any further showing of actual bias or prejudice. We disagree.
As an initial matter, Boyd’s reliance on our decision in Lowrey v. State, 705 So.2d 1367 (Fla.1998), is misplaced. In Lowrey, the First District affirmed the defendant’s conviction for carrying a concealed firearm but certified for review the following question as one of great public importance:
MUST A CONVICTED DEFENDANT SEEKING A NEW TRIAL DEMONSTRATE ACTUAL HARM FROM THE SEATING OF A JUROR WHO WAS UNDER CRIMINAL PROSECUTION WHEN HE SERVED BUT THOUGH ASKED, FAILED TO REVEAL THIS PROSECUTION?
Id. at 1368 (emphasis added) (quoting Lowrey v. State, 682 So.2d 610, 612 (Fla. 1st DCA 1996)). In answering the question in the negative, we distinguished our decision in State v. Rodgers, 347 So.2d 610, 613 (Fla.1977), where we held that the presence of a minor on the criminal defendant’s jury did not require a new trial absent a showing that the minor’s age affected the verdict or prevented a fair trial. Specifically, we explained that in Rodgers, “no evidence or perception existed to indicate that the disqualified juror rendered an unfair or impartial vote,” whereas in Loiorey, “there [was] a clear perception of unfairness, and the integrity and credibility of the justice system [was] patently affected.” Lowrey, 705 So.2d at 1369-70. In concluding, we emphasized that we were not overruling Rodgers, but “simply carving out an exception based on the unique circumstances presented.” Id. at 1370. Accordingly, we quashed the First District’s decision and remanded with directions to grant a new trial. Id.
Juror T.S.’ criminal history consisted of the following incidents: (1) making a bomb threat and committing extortion (August 1979); (2) making a threatening phone call (December 1980); (3) twice pleading guilty to reporting false bombings (August 1983 and October 1986), and violating the probation order associated with each conviction; (4) pleading guilty to the misdemeanor of contributing to the delinquency of a minor in Georgia (March 1986); and (5) pleading guilty to one count of possession of a firearm by a convicted felon and one count of carrying a concealed firearm (March 1988). According to the record, T.S. was about nineteen years old at the time of her first false-bombing reporting in August 1983, and twenty-four at the time of her last known adjudication in March 1988. Certified records indicate that T.S.’ civil rights were restored on April 4, 2008 — more than six years after she served on the jury of Boyd’s 2002 trial. When asked by the trial court how long ago she was involved with the criminal justice system, T.S. responded that she was a juvenile. She did not otherwise apprise the court or counsel of her series of convictions as an adult (beginning in August 1983).
The record also reflects that Juror K.R. was arrested in Broward County in November 1991 and charged with misdemeanor solicitation of prostitution;. however, the presiding court withheld adjudication. During voir dire in the present case, K.R. reported on the voir dire questionnaire form that he did not have any family or friends involved in the legal system. He did not report his own encounter with law enforcement, and no further inquiries were made by the trial judge or counsel for either party concerning K.R.’s answer to this question.
The circumstances found in the present case do not implicate the “clear perception of unfairness” as contemplated in Lowrey. As the Second District cogently explained, “[t]he purpose of disqualifying a person who has a pending prosecution is to' avoid the possibility that that person might vote to convict in the hope of getting more favorable treatment from the prosecution in [his or her] own case.” Thompson v. State, 300 So.2d 301, 303 (Fla. 2d DCA 1974). Conversely, persons who have already undergone. criminal prosecution and been convicted are no longer in a position to curry favor from the State. This is especially.true with regard to Juror T.S. since her last known adjudication was approximately fourteen years before Boyd’s trial, and with Juror K.R., for whom adjudication had already been withheld on his misdemeanor charge approximately a decade before Boyd’s trial. Moreover, we see no practical reason to believe that those who, for instance,- have not become rehabilitated since being prosecuted over a decade before serving on the jury of a criminal trial are more likely than similarly situated persons — but who have also had their civil rights restored — to favor the State over the defense. See Oregon v. Benson, 235 Or. 291, 384 P.2d 208, 210 (1963) (“Many [jurors who were convicted of felonies or misdemeanors] have become morally rehabilitated. And we have no reason to believe that those who have not become rehabilitated and are called to jury duty are more likely to show partiality for the state than for the defendant.”). We, therefore, reiterate that our decision in Lowrey is limited to its unique set of circumstances and, thus, refuse to extend our ruling therein to Boyd’s case and similarly situated cases.
Next, case law — both from this Court and from other appellate courts throughout the nation — supports our rejection of Boyd’s claim that he is entitled to a new trial by virtue of the fact that his jury included a statutorily disqualified convicted felon who had not had her civil rights restored. The United States Supreme Court has emphasized that “[t]he motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” McDonough [Power Equip., Inc. v. Greenwood], 464 U.S. [548], 556, 104 S.Ct. 845 [78 L.Ed.2d 663 (1984) ]; see also United States v. Carpa, 271 F.3d 962, 967 (11th Cir.2001) (citing McDonough, 464 U.S. at 553, 104-S.Ct. 845). Specifically concerning a juror’s status as a convicted felon, many appellate courts throughout our nation have echoed this precise viewpoint. For example, the Supreme Court of Michigan explained:
Although a criminal defendant has a constitutional right to be tried by an impartial jury, a criminal defendant does not have a constitutional right to be tried by a jury free of convicted felons. Instead, the right to be tried by a jury free of convicted felons is granted by statute. And by statute, a violation of this “right” only requires a new trial if the defendant demonstrates that such a violation “actually] prejudice[d]” him.
Michigan v. Miller, 482 Mich. 540, 759 N.W.2d 850, 855-56 (2008) (footnotes omitted); see also Hunt v. Maryland, 345 Md. 122, 691 A.2d 1255, 1266-67 (1997) (“What is required of jurors is that they be without bias or prejudice for or against the defendant and that their minds be free to hear and impartially consider the evidence and render a fair verdict thereon.”); Washington v. Cleary, 166 Wash.App. 43, 269 P.3d 367, 370 (2012) (“The disqualification criterion [for convicted felons addressed] here is by statute, not the state or federal constitution. The assignment of error does not then implicate constitutional rights.” (citation omitted)); United States v. Humphreys, 982 F.2d 254, 261 (8th Cir.1992) (holding trial court did not abuse discretion in denying défendant’s motion for a new trial on the ground that one juror was previously convicted on embezzlement charge; defendant did not pursue questioning of subject juror on voir dire or further investigate dr raise' any challenge during trial, and there was no evidence of either bias or unfairness as a result of the seating of juror); United States v. Boney, 977 F.2d 624, 633 (D.C.Cir.1992) (“W[hile] [w]e think, therefore, that the Sixth Amendment guarantee of an impartial trial does not mandate a per se invalidation of every conviction reached by a jury that included a felon[,] ... there is still the question whether appellants were entitled to a hearing to determine whether the juror was in fact biased.” (internal citations and footnotes omitted)); United States v. Uribe, 890 F.2d 554, 562 (1st Cir.1989) (denying defendants’ claim of entitlement to a new trial in narcotics prosecution because one juror was a convicted felon; explaining “the statutory violation— allowing a convicted felon td serve — did not implicate the fundamental fairness of the trial or the defendants’ constitutional rights,” and defendants did not otherwise demonstrate a “plausible link between the predicate facts and the prejudice claimed”).
We acknowledge the contemplated reasons why felon-jurors sitting in criminal trials may harbor bias in favor of the defense as well as the State. Compare Johnston v. State, 63 So.3d 730, 739 (Fla. 2011) (“In fact, juror Robinson’s positioning as a prior defendant makes bias against Johnston especially unlikely.”) (emphasis in original), and Uribe, 890 F.2d at 562 (“The district court found not the slightest basis to conclude that the juror’s prior conviction, sentence, or subsequent dealings with the court rendered him more prone to convict a defendant in an unrelated case. We agree.”), with Companioni v. City of Tampa, 958 So.2d 404, 413 (Fla. 2d DCA 2007) (outlining reasons why convicted felons serving as jurors in criminal trials could be bias both in favor of and against defendants) (citing Humphreys, 982 F.2d at 260-61; Rubio v. Super. Ct. of San Joaquin Cnty., 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595, 600 (1979) (en banc)).
However, if a criminal defendant has failed to establish that a particular juror could not be fair and impartial and follow the law as instructed by the trial court, then it is unreasonable to further ascertain whether the juror’s status as a convicted felon rendered him or her more favorable to the State or the defense. In other words, we do not see the efficacy in belaboring the direction in which a felon-juror’s bias cuts in the absence of legally sufficient evidence showing that the juror was actually biased against the defendant. See United States v. Boney, 97 F.Supp.2d 1, 6 (D.D.C.2000) (“Even if this Court did not credit the Juror’s explanation as to why he omitted a California conviction from his District of Columbia jury questionnaire];,] ... additional evidence would still be necessary to establish actual bias and to demonstrate prejudice to defendant’s case.”).
Besides, we do not think that it is pragmatic to promulgate' a per se rule that one’s status as a convicted felon denotes inherent bias against a criminal defendant’s legal, interests. Otherwise, courts would be placed in the precarious position of ordering new trials based not on legally sufficient evidence of actual bias or prejudice, but wholly on gut reactions to sociological generalizations of human tendencies. See Uribe, 890 F.2d at 562 (“To be accorded weight, a bias claim requires more than subjective characterizations un-anchored in the realities of human experience.”); Boney, 977 F.2d at 633 (“A per se rule [requiring a new trial whenever a felon serves on a jury] would be appropriate, therefore, only if one could reasonably conclude that felons are always biased against one party or another. But felon status, alone, does not necessarily imply bias.”).
Indeed, such a categorical rule is repugnant to the actual bias standard established in our jurisprudence. As further analyzed below, for claims of juror bias this Court has repeatedly required that the defendant bear the burden of pointing to evidence on the face of the record which exhibits the subject juror’s lack of impartiality. See Lebron v. State, 135 So.3d 1040, 1058 (Fla.2014) (citing Carratelli v. State, 961 So.2d 312, 323 (Fla.2007)); see also Smithers v. State, 18 So.3d 460, 465 (Fla.2009) (“Juror Collins’ statements did not show a biased unwillingness to consider potential sentences other than death — Thus, the record does not demonstrate actual bias that would prevent juror Collins from serving as an impartial juror.”). Maryland’s highest state court has expressed a view of this issue that comports with our Carratelli line of cases. Specifically, the Court of Appeals of Maryland has instructed: “ ‘[B]ias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts ... which would give rise to a showing of actual prejudice.’” Hunt, 691 A.2d at 1267 (emphasis in original) (quoting Davis v. Maryland, 333 Md. 27, 633 A.2d 867, 873 (1993)); accord Miller, 759 N.W.2d at 857-58.
Hence, in light of the court decisions discussed above, again, we refuse to accept Boyd’s position that a criminal defendant is per se entitled to a new trial where he or she was convicted by a jury that included a convicted felon whose civil rights had not been restored. Rather, we hold — as have many other appellate courts throughout this nation — that a criminal defendant is not entitled to relief under such atypical circumstances absent a showing, based on legally sufficient evidence, of actual juror bias against the defendant. In other words, a person’s disqualification from jury service by statute does not necessarily implicate a violation of a criminal defendant’s constitutional rights if that person somehow served as one of said defendant’s jurors. Thus, the only relevant issue presently before this Court is whether there is legally sufficient evidence that either Juror T.S. or Juror K.R. was actually biased against Boyd.
Under the “actual bias” standard announced by this Court in Carratelli:
A juror is competent if he or she “can lay aside any bias or prejudice and render his [or her] verdict solely upon the evidence presented and the instructions on the law given to him [or her] by the court.” Lusk [v. State], 446 So.2d [1038,] 1041 [ (Fla.1984) ]. Therefore, actual bias means bias-in-fact that would prevent service as an impartial juror. See United States v. Wood, 299 U.S. 123, 133-34, 57 S.Ct. 177, 81 L.Ed. 78 (1936).... Under the actual bias standard, the defendant must demonstrate that the juror in question was not impartial — i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the 'record. See Carratelli [v. State], 915 So.2d [1256,] 1260 [(Fla. 4th DCA 2005)] (citing Jenkins [v. State], 824 So.2d [977,] 982 [ (Fla. 4th DCA 2002)) ]; see also Patton v. Yount, 467 U.S. 1025, 1038-40, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).
Carratelli, 961 So.2d at 324.
Here, Boyd has not alleged actual bias, nor has he pointed to any evidence in this record indicating that Juror T.S. or Juror K.R. likely did not deliberate the question of his guilt fairly and impartially. In fact, the record is replete with evidence demonstrating facts that support the opposite conclusion. For instance, when asked during voir dire, T.S. informed the trial court that she was treated fairly by the juvenile system as a juvenile delinquent and that she, as previously noted, had gotten oyer whatever negative feelings she may have developed about that experience. T.S. also told the prosecutor during voir dire that she did not have a problem recommending a sentence of death where appropriate because she expected the State to be fair in the presentation of its case against Boyd. Further, T.S. was not part of the group of venire members that expressed moral, religious, or personal beliefs that would have prevented them from returning a verdict of guilty if the State satisfied its burden of proof. She, however, was part of the group that affirmatively agreed with the prosecutor’s statement that the verdict reached should be one based solely upon the evidence presented, and not any juror’s personal biases or prejudices. Because this record evidence gives no indication that either Juror T.S. or Juror K.R. harbored any bias against him, we conclude that Boyd has not shown that he is entitled to a new trial. Accordingly, we deny relief on this claim.
B. Ineffective Assistance of Counsel Claims
Below, Boyd raised numerous ineffectiveness claims regarding defense counsel’s performance during voir dire as well as the guilt and penalty phases. The circuit court summarily denied some claims, and denied the remainder following an evidentiary hearing. To prevail on an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must demonstrate both deficiency and prejudice:
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.
There is a strong presumption that trial counsel’s performance was not deficient. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. The defendant carries the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Judicial scrutiny of counsel’s performance must be highly deferential. Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument.
In demonstrating prejudice, the defendant must show 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.
Long v. State, 118 So.3d 798, 806-06 (Fla.2013) (internal citations and alterations omitted).
“[W]hen a defendant fails tó make a showing as to one element [of the Strickland standard], it is not necessary to delve into whether he has made a showing as to the other element.” Thompson v. State, 796 So.2d 511, 516 (Fla.2001); McCoy v. State, 113 So.3d 701, 708 (Fla.2013). “Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs .a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo.” Id. Where a claim is summarily denied without an evidentiary hearing, “this Court will affirm only when the claim is legally insufficient, should have been brought on direct appeal, or is positively refuted by the record.” Jackson, 127 So.3d at 460 (internal citations and alterations omitted).
1. Failure to Conduct Adequate Voir Dire
Boyd first claims that, defense counsel’s failure during voir dire to question Juror T.S. more in depth about information she revealed concerning her juvenile delinquency record prejudicially denied him the opportunity to discover information material to excusing T.S. from jury service. However, Boyd has not proffered any additional questions that defense counsel should have asked T.S. during voir dire that would have elicited the now-complained-of information from her. See Green v. State, 975 So.2d 1090, 1105 (Fla.2008) (“Second, Parker did not render ineffective assistance in failing to ask Guiles more questions, because an allegation that there would have been a basis for a for cause challenge if counsel had followed up during voir dire with more specific questions is speculative.” (citing Johnson v. State, 903 So.2d 888, 896 (Fla.2005); Reaves v. State, 826 So.2d 932, 939 (Fla.2002))). Nevertheless, as discussed above, the record in this case does not show that T.S. harbored any bias against Boyd, and thus, it is not reasonable to conclude that she rendered her duties in any manner other than fairly and impartially. See Carratelli, 961 So.2d at 324. The record also reflects that Boyd participated in the jury selection process, agreed to an abbreviated voir dire, and did not object to seating T.S. as a juror because he gave informed consent to his defense team’s overall trial strategy. This belies Boyd’s contention that he was prejudiced by T.S.’ presence on his jury. See Gamble v. State, 877 So.2d 706, 714 (Fla.2004) (“[I]f the defendant consents to counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel”). Therefore, Boyd has failed to show that counsel’s declination to ask T.S. more specific voir dire questions about her criminal record affected the fairness and reliability of the trial proceedings such that our confidence in the outcome is undermined. See Long, 118 So.3d at 805. Accordingly, we deny Boyd any relief as to this sub-claim.
2. Failure to Properly Challenge Penalty Phase Outburst
The following cross-examination colloquy between the State and Boyd transpired during the penalty phase:
Q. Remember when I stood here and said, Mr. Boyd, I’m sorry I have to ask this of you, but did you have your own sperm in your mouth when they swabbed your mouth with the Q-tip and you said no.
A. But they — you’re right.
Q. Right. I know I’m right.
A. But they—
Q. Now, you said you’d never do nothing like that.
MR. LASWELL: Objection, your Honor. Mr. Boyd has a right to finish his answer.
THE COURT: Mr. Loe, I’m going to give Mr. Boyd—
BY MR. LOE:
Q. I said—
THE COURT: Excuse me, gentlemen. Excuse me. Mr. Boyd, finish your answer and then Mr. Loe may proceed with his next question.
THE WITNESS: I didn’t have my sperm in my mouth, but my sperm was in this young lady right here that they took from me in 1998. That’s where they got my spe'i'm from, out of me. That young lady right there. That’s where my sperm came from.
[J.M.]: You raped me.
THE WITNESS: Yes, sir. Not out of my mouth.
BY MR. LOE:
Q. My question was—
A. Yes, sir.
Q. —did you have your sperm in your mouth when they swabbed you in 1998, your answer was no?
A. No, sir.
Q. That was my question, wasn’t it? Your answer was no?
A. The answer is no.
(emphasis added).
The record reflects that the trial judge did nothing to restore order in the court from the gallery outburst or otherwise address the statement in the presence of the jury. The record also reflects that counsel for the defense did not object or move for a mistrial during the above exchange. Boyd asserts that such inaction in the midst of the allegedly prejudicial, unsworn statement by the female spectator, J.M., in open court constituted ineffective assistance of penalty phase counsel. We disagree, since there is competent, substantial evidence in this record supporting the circuit court’s finding that defense counsel made a strategic decision not to raise a challenge to the outburst so as to prevent it from becoming a contentious issue in front of the jury.
This Court has repeatedly held that counsel does not render ineffective assistance by employing strategic decisions made during trial that, in hindsight, did not work to the defendant’s advantage. Reynolds v. State, 99 So.3d 459, 483 (Fla.2012); Maharaj v. State, 778 So.2d 944, 959 (Fla.2000) (citing Medina v. State, 573 So.2d 293, 297 (Fla.1990)). Stated differently, “[cjounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (internal citation omitted).
Here, the transcript for opening statements reflects that defense counsel informed the jury that they would hear testimony during trial that Broward County-area law enforcement had attempted to prosecute Boyd for two unrelated sexual battery incidents spanning over the decade prior to the present case. Counsel then suggested that because they had been embarrassed by unsuccessfully obtaining a conviction when they charged Boyd with a sex offense in an earlier case, the Sheriffs Office and Police Department opportunistically colluded to blame McCloud for the death of Dacosta, the victim in this case. Defense counsel further indicated during opening statements that the evidence to be presented at trial would show that law enforcement maintained control of the forensic evidence that allegedly linked McCloud to Dacosta’s murder, and linked Dacosta to the crime scene — the apartment McCloud at one point had shared with his girlfriend, G.L. Indeed, the defense team attempted to elicit such testimony while, for example, cross-examining the lead detective, Glenn Bukata, about the fact that he ordered G.L. and her children to vacate the apartment for several days while crime scene technicians processed the premises for forensic evidence. The defense also elicited testimony from G.L. that, ■ sometime after Boyd’s arrest but before she was ordered to leave, Detective Bukata attempted to enter G.L.’ apartment while her children were home but she was not. While testifying on his own behalf, Boyd indicated that during his interrogation, Bukata mocked him by addressing Boyd with a racial epithet and boasting: “[W]e told you we was going to get you.” Finally, in the course of closing arguments, defense counsel stressed that none of the State’s expert witnesses could explain how or when Dacosta’s DNA ended up on the furniture in G.L.’ apartment. All the above evidence shows that the defense relied heavily on a general trial theory that law enforcement had motive to, and actually did, plant incriminating evidence to incriminate Boyd unlawfully in this case.
Further, defense counsel testified during the evidentiary hearing that he immediately perceived the outburst incident as an opportunity to exploit this theory. According to counsel, based on his prior success in obtaining an acquittal under relatively similar circumstances, he believed the incident at issue in this case presented a rare opportunity to allow the jury to connect law enforcement’s prior failures to prosecute Boyd for unrelated sexual battery incidents with the possibility that such failures motivated police to target him in the present sexual battery case — as opposed to challenging the spectator’s outburst in open court and risking it becoming a feature of the penalty phase. Thus, defense counsel clearly considered and rejected alternative courses of action. In addition, this decision was reasonable given that it was made- under spur-of-the-moment circumstances and' based on a past experience that resulted in an outcome favorable to the defense. We conclude, therefore, that defense counsel did not provide ineffective assistance by failing to object or move for a mistrial in response to the asserted penalty phase outburst. See Reynolds, 99 So.3d at 483; Occhicone, 768 So.2d at 1048.
Additionally, we agree with the circuit court’s determination that Boyd’s own actions during the penalty phase invited the asserted error. It is well-settled under Florida law that “ ‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 65 (Fla.2012) (quoting Sheffield v. Superior Ins. Co., 800 So.2d 197, 202 (Fla.2001)). In support of its finding that Boyd invited the asserted error in this case by provoking J.M. in front of the jury, the circuit court cited Norton v. State, 709 So.2d 87 (Fla.1997). In Norton, we rejected the defendant’s argument that the State’s witness improperly commented on cross-examination about the defendant’s failure to testify at trial. In so ruling, we noted that error was invited where, in an unsuccessful attempt to make a point on cross-examination, defense counsel probed the witness as to why the defendant bought carpet cleaners when there were no carpets in his car. Id. at 94.
The record here shows that Boyd goaded the woman present in the courtroom gallery when he identified her in front of the jury by partially standing while on the witness stand and twice pointing at the woman while insisting she was the source of his semen that law enforcement officers collected in the State’s attempt to convict him of a prior sexual battery charge. The record does not reflect that the woman was causing any disruption during the penalty phase proceeding, or that observers other than the State or Boyd knew of her presence.
Contrary to Boyd’s assertion, these circumstances are reminiscent of those found in Norton, given that in both cases some member of the defense’s party probed the allegedly prejudicial statements. In Boyd’s particular case, J.M. had not responded to or interjected herself into Boyd’s testimony until, in an attempt to bolster the defense’s theory that a DNA sample from his semen was intentionally planted on the victim’s body by law enforcement, Boyd deliberately and overtly made J.M.’s presence in the courtroom known when the jury was present.
Finally, in further ' contrast to Boyd’s observation, the record does not indicate that the State engaged in “argumentative and antagonistic” cross-examination. Rather, the record shows nothing more than adversarial questioning aimed at calling into question the credibility of a hostile witness as well as the defense’s overall theory that, against Boyd’s interest, law enforcement planted the incriminating forensic evidence at, and collected it from, the crime scene. See Blanton v. State, 880 So.2d 798, 801 (Fla. 5th DCA 2004) (describing cross-examination as an “adversarial tool” (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004))), approved in part, disapproved in part, 978 So.2d 149 (Fla.2008); see also Fla. Power Corp. v. Smith, 202 So.2d 872, 881-82 (Fla. 2d DCA 1967) (“The very rule that sanctions the calling of a hostile witness permits cross-examination by the adverse party on the subject matter of his original examination as a hostile witness and also permits new evidence to contradict or impeach him.”). Accordingly, we deny relief as to this sub-claim.
3. Failure to Question Jurors about Pretrial Publicity
Next, Boyd argues that the circuit court erred in summarily denying his claim that defense counsel rendered ineffective assistance by failing to question two prospective jurors — Barbara Berbe-rich and then-prospective Juror T.S. — adequately about their exposures to pretrial publicity concerning Boyd’s case. Under Florida case law, it is well-established that “ ‘[t]he mere fact that jurors were exposed to pretrial publicity is not enough to raise the presumption of unfairness.’ The relevant inquiry is whether the jurors can lay aside any opinion or impressions and render a verdict based on the evidence presented in court.” Teffeteller v. Dugger, 734 So.2d 1009, 1020 (Fla.1999) (quoting Castro v. State, 644 So.2d 987, 990 (Fla.1994)).
The transcript in this case indicates that the State conducted its voir dire prior to the defense and questioned the prospective jurors about pretrial publicity and their knowledge of the case. Juror T.S. indicated that she had previously overheard her family conversing about an aspect of the case related to the Boyd Funeral Home, which was a business owned and operated by Boyd’s family. However, she immediately stated that she knew nothing about the business or this case. Juror Berberich likewise stated that, although she may have learned about Boyd’s case after seeing it on television or reading about it in a newspaper, she did not recall many details other than remembering Boyd’s name. Thus, because any follow-up questioning by defense counsel likely would have elicited minimum information not already brought out by the State’s voir dire, or otherwise would have elicited cumulative information, Boyd has failed to prove the deficiency prong under the Strickland standard. See id. (“The prosecutor also questioned the prospective jurors about their exposure to news reporting. In light of this questioning of the prospective jurors, we cannot fault, trial counsel for failing to repeat the questioning.”); Cole v. State, 841 So.2d 409, 415 (Fla.2003).
Assuming, however, that counsel was remiss in not asking Jurors T.S. and Berberich additional questions about pretrial publicity and their knowledge of this case, no prejudice resulted from such inaction. When asked by the State, both prospective jurors explicitly assured that they would not permit whatever information concerning Boyd’s case to which they may have been exposed to affect them one way or the other during deliberations if chosen to serve on the jury. Therefore, we find that the record positively refutes a showing that either juror had actual bias against Boyd. See Carratelli, 961 So.2d at 327 (“[T]he en banc [district] court ... held that [j]uror Inman’s slight familiarity with the case did not rise to th[e] level of actual bias necessary for postconviction relief. We agree. The record plainly shows that juror Inman held no firm opinion except that he could be fair, listen to the evidence, and follow the law. Thus, Carratelli fails to demonstrate prejudice under Strickland.”) (internal citation omitted). Accordingly, we affirm the trial court’s summary denial of this claim and deny Boyd any relief thereto.
4. Forensic Evidence
a. Failure to Request a Frye Hearing
Boyd argues that defense counsel rendered ineffective assistance by failing .to request a Frye hearing to challenge the admissibility of the State’s bite-mark comparison and fiber analysis evidence, as well as evidence regarding the DNA testing performed by the Bode Laboratory. The Frye test is used to evaluate the “admissibility of expert scientific opinion by ascertaining whether new or novel scientific principles on which an expert’s opinion is based ‘have gained general acceptance in the particular field in which it belongs.’ ” Rodgers v. State, 948 So.2d 655, 666 (Fla.2006) quoting Frye, 293 F. at 1014). It follows that trial counsel does not render ineffective assistance by failing to request a Frye hearing when, at the time of trial, there was general acceptance in the scientific community of the scientific evidence at issue. In other words, where the methodology was neither new nor novel, existing case law recognizes that a Frye hearing is not necessary. Foster v. State, 132 So.3d 40, 69 (Fla.2013); McDonald v. State, 952 So.2d 484, 495-96 (Fla.2006).
As Boyd concedes in his initial brief, the forensic methodologies and evidence presented at trial: trace and microscopic fiber analysis; forensic odontology and bite-mark analysis; and Short Tandem Repeat (STR) DNA technology, were neither new nor novel at the time of his 2002 trial. See, e.g., Long v. State, 610 So.2d 1276, 1281 (Fla.1992) (holding State’s hair, fiber, and tire-track evidence was admissible in trial for first-degree murder to establish defendant’s identity and to connect him to victim); Mitchell v. State, 527 So.2d 179, 181 (Fla.1988) (recognizing admissibility of expert testimony concerning bite-mark analysis as an analytical methodology that is widely accepted in the scientific community); Lemour v. State, 802 So.2d 402, 407 (Fla. 3d DCA 2001) (holding use of STR DNA testing kit to obtain DNA test results did not present new scientific technique where kit used testing methods that were generally accepted by scientific community), review denied, 821 So.2d 297 (Fla.2002); Bradford v. State, 460 So.2d 926, 929-30 (Fla. 2d DCA 1984) (approving admissibility of odontologist’s expert testimony similar to bite-mark analysis (citing Bundy v. State, 455 So.2d 330 (Fla.1984))). Boyd, therefore, has failed to demonstrate that a Frye hearing was necessary in this Case and, in turn, that the trial court would have granted such a hearing had defense counsel requested one. See Foster, 132 So.3d at 69; McDonald, 952 So.2d at 495-96. As such, we conclude that defense counsel was not ineffective in this regard. See Long, 118 So.3d at 805 (holding defense counsel is not ineffective for failing to present meritless argument).
Boyd maintains that the 2009 National Academy of Sciences (NAS) report on forensic science, while it had not yet been published at the time of his 2002 trial, consisted of sources that' were readily available at all relevant times and could have been utilized by defense counsel to challenge the methodology, procedures, and analyses of the forensic evidence for admissibility purposes at a Frye hearing. Because we have previously addressed this issue in principle, we are not persuaded by Boyd’s argument.
In Taylor v. State, 62 So.3d 1101 (Fla.2011), we determined that trial counsel’s decision not to request a Frye hearing to challenge the admissibility of DNA evidence was reasonable, given that the only authority proffered by the defendant that both challenged the use of DNA evidence and existed at the time of trial were academic articles and isolated, nonbinding decisions. Thus, we concluded that “[w]hile this evidence certainly could have been presented at trial, it was not essential for counsel to be determined to be effective.” Id. at 1111 (emphasis in original).
As to the fiber and bite-mark evidence at issue here, Boyd points our attention mostly to a number of isolated articles, news reports, journals, book chapters, and other nonbinding decisions from federal circuits. While these documents were readily available at the time of his trial and could have been relied upon throughout the trial proceedings, Boyd has not cited to any authority that obligated counsel to rely upon the substance of the above documents in order to persuade the trial court to grant a Frye hearing. See id. Regarding the DNA analysis, Boyd has not articulated how or what part of the 2009 NAS report would have called into question the admissibility of the DNA expert testimony in this case. Rather, he alleges deficiency in a conclusory fashion, asserting “counsel inexplicably failed to challenge the admissibility of DNA evidence analyzed by Bode” and “failed to seek laboratory protocols, validation studies, accreditation studies, equipment maintenance logs and operation manuals, contamination logs and laboratory error rates from any of the three DNA labs involved.” Again, Boyd has not pointed to any authority which requires counsel to pursue these measures, and that indicates that counsel otherwise renders ineffective assistance if he fails to do so. See id.
To the extent Boyd characterizes the 2009 NAS report as newly discovered evidence, Boyd cannot show that the portions of the report upon which he relies could “not have been known by the trial court, the party, or counsel at the time of trial,” and that he “or defense counsel could not have known of it by the use of diligence.” Schwab v. State, 969 So.2d 318, 325 (Fla.2007). As Boyd acknowledges, many of the statements in the Summary and Introduction sections of the NAS report to which Boyd cites appear in sources that were readily available at the time of his 2002 trial. Therefore, Boyd has failed to demonstrate that the NAS report constitutes newly discovered evidence. See Johnston v. State, 27 So.3d 11, 21-23 (Fla.2010) (finding 2009 NAS report was not newly discovered evidence, in part, because report cited existing publications, some of which were published before victim’s murder).
For all of the above reasons, we find this subclaim to be without merit and deny relief thereto. See Long, 118 So.3d at 805.
b. Failure to Utilize Forensic Experts
Boyd argues that defense counsel’s decision not to hire a forensic expert to assist him in challenging the DNA and bite-mark evidence was unreasonable and allowed the State to present its expert testimony virtually unchallenged. At thé time of Boyd’s trial, Florida Rule of Criminal Procedure 3.250 provided that “[a] defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.” McAvoy v. State, 501 So.2d 642, 643 (Fla. 5th DCA 1986). Florida courts have deemed “a defense attorney’s case-specific tactical decision not to present evidence because of a desire to retain the first and last closing argument” to be a reasonable trial strategy. Cole v. State, 700 So.2d 33, 36 (Fla. 5th DCA 1997). However, counsel’s general practice or blanket policy to preserve the closing argument “sandwich” without examining the surrounding circumstances and potential defenses of the particular case is per se deficient. Id.
In this case, the record reflects that defense counsel filed a pretrial motion to grant defendant the concluding argument to the jury pursuant to then-applicable Florida Rule of Criminal Procedure 3.250. Throughout the course of trial, defense counsel was vigilant in ensuring that the defense did not admit any exhibits in order to preserve the trial court’s grant of the closing argument' “sandwich.” And, other than Boyd’s testimony, the defense did not admit any evidence. The record further shows that, using his experience as a former medical examiner, defense counsel Ongley thoroughly cross-examined each of the State’s forensic expert witnesses to expose the shortcomings of their conclusions, and echoed those points during the defense's first closing argument. Also,-as previously discussed, Boyd stressed during direct examination of his own testimony, and defense counsel Laswell reiterated in the second closing argument the defense’s theory, that law enforcement planted incriminating evidence against Boyd in an attempt to frame him for the kidnapping, rape, and murder of Dacosta in this case. Likewise, the defense elicited cross-examination testimony from the State’s witness that law enforcement personnel ordered Boyd’s girlfriend to vacate the apartment unit where the murder occurred and the forensic evidence was collected, and also that law enforcement maintained unfettered control of the premises for several days.
In light of the above, Boyd failed to show from the record evidence that, in exercising a reasonable trial strategy, counsel did not perform the minimum requirements of professional conduct. See Branch v. State, 952 So.2d 470, 478-79 (Fla.2006) (agreeing with trial counsel that his ability to cross-examine the State’s witnesses coupled with the importanc'e of the right to present first and last closing arguments were sufficient reasons to avoid the presentation of pathologist and blood splatter expert, especially given that defense emphasized at trial that defendant did not commit the crime, and that neither postconviction expert identified any substantial factual mistakes made by State’s experts). Because, therefore, he cannot establish the deficiency prong under the Strickland standard, we deny Boyd relief as to this subclaim.
III. HABEAS PETITION CLAIMS
Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. Dufour v. State, 905 So.2d 42, 70 (Fla.2005). Consistent with the Strickland standard, in determining whether to grant habeas relief for ineffective assistance of appellate counsel, this Court makes the following inquiries:
[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range- of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Schoenwetter v. State, 46 So.3d 535, 563 (Fla.2010).
The defendant bears the burden of “alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Id. (quoting Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000)). Ineffective assistance of appellate counsel claims “may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion.” Id. Further, appellate counsel cannot be deemed ineffective for not pursuing a meritless claim. See id. (“If a legal issue would in all probability have been found to be without merit had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” (internal citation omitted)).
A, Failure to Raise Issue of Admissibility of Incriminating Statement
Boyd argues that the trial court erred, in violation of his constitutional right against self-incrimination, when it denied his motion to suppress the statement he made to police during custodial interrogation, to wit: “What took you so long to catch me?” It is further asserted that because, according to Boyd, trial counsel preserved the error for appellate review, appellate counsel rendered ineffective assistance by failing to raise the issue on direct appeal.
Assuming trial counsel properly preserved the alleged error and that appellate counsel’s failure to raise it satisfied the deficiency prong, such lack in performance does not undermine our confidence in the correctness of the result of the direct appeal proceedings. As indicated in our direct appeal decision, we found competent, substantial evidence' to support Boyd’s conviction of sexual battery:
The State presented substantial evidence that Boyd sexually battered Da-costa, including evidence that Boyd and Dacosta did not know each other before she encountered Boyd while looking for a ride back to her vehicle after obtaining gas at the Texaco station; that Boyd’s semen was on Dacosta’s inner thighs; that Dacosta’s blood was in Boyd’s apartment;. and that Boyd’s DNA was in material found under Dacosta’s fingernails. The State also presented testimony establishing the chain of custody of the evidence collected, providing evidence against Boyd’s théory that Detective Bukata planted evidence so that it would match Boyd’s and Dacosta’s DNA. Bruising on Dacosta’s inner thighs and vaginal area was consistent with either consensual or nonconsensual intercourse. Dacosta was last seen alive with Boyd.
Boyd, 910 So.2d at 181.
This same evidence, in addition to evidence “that Dacosta was stabbed with a Torx screwdriver thirty-six times in the chest and four times in the head” and “had twelve wounds on her right hánd that were consistent with defensive wounds,” supported our determination that there was also competent, substantial evidence to uphold the jury’s guilty verdicts for armed kidnapping and premeditated murder. Id. at 182-84. Finally, we determined that, based on Boyd’s convictions of sexual battery and armed kidnapping, the record on appeal further supported the first-degree murder conviction on the basis of felony murder. Id. at 182. Therefore, even had Boyd’s statement: “What took you so long to catch me?” not be adduced at trial, his convictions and sentence of death would have been upheld, given the overwhelming amount of remaining evidence establishing Boyd’s guilt. See Williamson v. State, 123 So.3d 1060, 1066-66 (Fla.2013) (“[T]o establish prejudice under Strickland, ... a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury, and a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” (citation omitted)); Simmons v. State, 105 So.3d 475, 492 (Fla.2012) (holding that, even if trial counsel’s stipulation that defendant was source of semen found inside victim’s body constituted deficient performance, no prejudice could be shown in light of overwhelming evidence of guilt, including evidence of victim’s blood found inside defendant’s car; testimony of eyewitnesses who had seen victim screaming for help from defendant’s car on the night of the murder; and the fact that tire tracks of defendant’s car were found near the location where victim’s body was found). Accordingly, Boyd is not entitled to relief on this claim.
B, Failure to Raise Fundamental Error as to Improper Comment
Boyd raises his previous ineffectiveness claim for failure to properly challenge a penalty phase spectator’s outburst: “You raped me,” see Section H.B.2., supra, but under the guise of. ineffective assistance of appellate counsel -for failure to raise the claim on direct appeal. Because, as noted, defense counsel did not preserve the issue for appeal during the penalty phase of trial, appellate counsel cannot be ineffective for failing to raise the issue on direct appeal unless the claim involves fundamental error. See Archer v. State, 934 So.2d 1187, 1205 (Fla.2006). An error is fundamental if it “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Rodriguez v. State, 919 So.2d 1252, 1282 (Fla.2005). Concerning improper comments made in the penalty phase, to be fundamental error the comments “must be so prejudicial as to taint the jury’s recommended sentence.” Fennie v. State, 855 So.2d 597, 609 (Fla.2003) (citing Thomas v. State, 748 So.2d 970, 985 n. 10 (Fla.1999)).
The cases to which Boyd cites for support are factually distinguishable to the present circumstances and, thus, are unin-structive. In Arbelaez v. State, 626 So.2d 169 (Fla.1993), for instance, the murder victim’s mother, upon being called by the State to testify, was crying during the administration of the oath. Id. at 176. The prosecutor requested a break for the mother to compose her emotions, after which time she then called the defendant a “murderer” and a “son of a bitch” in Spanish while the jury was still present. Id. Boyd also likened the facts of this case to those in Evans v. State, 995 So.2d 933 (Fla.2008), where the defendant raised a claim of ineffective assistance of counsel for failure to object to a juror’s participation in the trial. Id. at 945. Particularly, the defendant asserted that he was prejudiced when the juror interjected herself into the trial as an unsworn witness to answer a question concerning a traffic light that was germane to the defense’s theory of the case. Id. Neither of these decisions contemplates a situation in which the defendant incited the complained-of outburst. Id.
To the contrary, Boyd goaded the spectator by partially standing while on the witness stand and twice pointing at her while insisting she was the source of Boyd’s semen that law enforcement officers collected in the State’s attempt to convict him of a prior sexual battery charge. The record does not reflect that the spectator was causing any disruption during the penalty phase proceeding, or that observers other than the State or Boyd knew of her presence. In addition, before the asserted outburst, the jury was twice informed that Boyd was the subject of prior sexual battery charges. And, although the jury could have easily inferred that the subject spectator was the alleged victim from at least one of the charges, there was no reasonable basis upon which to believe that Boyd actually committed the offense given that the jury was also informed of his acquittals from all prior charges. In light of these circumstances, whatever prejudice that Boyd may have suffered as a result of the outburst is self-inflicted. Further, we are not convinced that the jury unanimously recommended the sentence of death only with the assistance of this particular incident. Accordingly, we deny this claim as meritless. See Schoenwetter, 46 So.3d at 563; Rutherford v. Moore, 774 So.2d 637, 644 (Fla.2000) (“The failure to raise meritless claims does not render appellate counsel’s performance ineffective.”).
IV. CONCLUSION
Based on the foregoing analysis, we affirm the circuit court’s denial of postcon-viction relief. We also deny Boyd’s petition for writ of habeas corpus.
It is so ordered.
LABARGA, C.J., and PARIENTE and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
LEWIS, J., concurs in result only with an opinion.
QUINCE, J., dissents with an opinion.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). [OPINION BY LEWIS, J., type=concurrence] LEWIS, J., concurring in result only. Under the Florida Statutes, a person who has been convicted of a felony is disqualified from service on a jury unless and until his or her civil rights have been restored. See § 40.013(1), Fla. Stat. (2015). However, the statute fails to provide any specific remedy when a disqualified individual actually serves on a jury. In my view, the dispositive issue should be whether the jury was properly comprised under the law, not whether the defective jury performed properly. Therefore, when a convicted felon serves on a jury, as occurred in this case, a structural defect is present that invalidates the jury from the outset, and whether the jury reached the correct determination is simply not the relevant standard. Instead, I would conclude that the verdict is per se invalid. I am surprised that neither Florida courts, nor many courts in other jurisdictions that have addressed this issue, have reached this conclusion. Rather, a significant number have determined, as the majority holds today, that actual bias is the proper inquiry where a convicted felon serves on a jury. See, e.g., Companioni v. City of Tampa, 958 So.2d 404, 417 (Fla. 2d DCA 2007) (holding that in civil cases in which individuals with prior felony convictions serve on a jury, “it is entirely appropriate to require a showing of actual bias or prejudice before setting aside a verdict”); United States v. Bishop, 264 F.3d 535, 554 (5th Cir.2001) (“[OJnce the trial is complete, a felon’s serving as a juror is not an automatic basis for a new trial. The defendant must demonstrate that the juror was actually biased or fundamentally incompetent.”); Coughlin v. Tailhook Ass’n, 112 F.3d 1052, 1059 (9th Cir.1997) (“[TJhe participation of a felon-juror can be the basis for a new trial if the juror’s participation in the case results in ‘actual bias’ to one or more of the parties.”); United States v. Humphreys, 982 F.2d 254, 261 (8th Cir.1992) (“In an effort to obtain a new trial, it is incumbent upon the defendant to clearly demonstrate that the juror’s lack of qualifications presented actual bias or prejudice, affecting the juror’s impartiality and impacting the fairness of the trial. A challenge after the verdict without such a showing comes too late.” (footnote omitted)); United States v. Boney, 977 F.2d 624, 633-35 (D.C.Cir.1992) (holding that “the Sixth Amendment guarantee of an impartial trial does not mandate a per se invalidation of every conviction reached by a jury that included a felon” and remanding for an evidentiary hearing to determine whether the juror’s failure to disclose his status resulted in actual bias); Young v. United States, 694 A.2d 891, 895 (D.C.1997) (“[TJhe fact that the juror was statutorily ineligible to serve due to a felony conviction does not constitute prejudice per se meriting automatic reversal.”); People v. Duffy, 31 Misc.3d 799, 923 N.Y.S.2d 822, 825 (N.Y.Dist.Ct. 2011) (noting that “there is no per se rule requiring the setting aside of a jury verdict upon the postverdict discovery that a juror had previously been convicted of a felony,” and concluding that the defendant had failed to demonstrate actual bias). In my opinion, whether actual bias existed should not be the appropriate consideration where a disqualified juror served in violation of statutory law. Rather, I would ‘conclude that if a jury is not properly comprised pursuant to section 40.013(1), it is incapable-of rendering a valid verdict or advisory sentence.. Therefore, if writing on a clean slate, I would hold that the presence of a convicted felon on Boyd’s jury invalidated his trial from the outset, and he would be entitled to a new trial. Nevertheless, I recognize that the weight of the authority, including Florida precedent, is contrary to my position. Other states, such as Texas and Virginia, have provided statutory remedies where a disqualified individual served on a jury. See Tex.Code Crim. Pro. Ann. art. 44.46(2) (Vernon 2014) (criminal defendant must demonstrate “significant harm” by service of disqualified juror); Va.Code Ann. § 8.01-352(B) (2014) (new trial will not be granted unless it appears that the legal disability of juror “probably causefd] injustice”). As these states have done, I Urge the Legislature to review the current law in Florida and enact a specific remedy to address the situation where a verdict is entered by a jury that was not properly comprised pursuant to the directives of the Florida Statutes. Without such a remedy in place, actual bias will remain the standard, despite the fact that this burden is virtually impossible to meet. Thus, the clear prohibition is meaningless. This extremely high standard operates to undermine the statutory prohibition in section 40.013(1). If service by a convicted felon almost never invalidates a verdict, subsection (1) basically has no operational effect post-trial. Despite my deep disagreement with the use of the actual bias standard in this context, statutory change is x-equired to address the cuxrent injustice in Florida. Until the Legislature takes action, a paxty must meet a nearly insurmountable burden to obtain relief where a convicted felon served on his or her jury in clear violation of the law. Therefore, I am compelled to concur in result only. [OPINION BY QUINCE, J., type=dissent] QUINCE, J., dissenting. I believe, under the circumstances of the case, the defendant is entitled to a new trial because an unqualified person served on this capital jury. It is undisputed that Juror T.S. was a convicted’ felon whose civil rights had not been restored at the time she served on the jury that convicted Boyd. Section 40.013(1), Florida Statutes (2001), provides that any person who has been convicted of a felony and whose civil rights have not been restored shall not be qualified to serve as a juror. This statutory directive is clear and unequivocal. Juror T.S. should not have been on this jury. It is impossible to tell whether bias from such a situation cuts for or against the defendant, and a defendant should not be placed in the position of having to demonstrate bias. Because in most instances demonstrating prejudice is difficult, if not impossible, there should be a per se rale that would require a new trial when a disqualified person serves on a jury. Thus, Boyd should be given a new trial.