On June 4, 1989, the bodies of Joan Rogers and her daughters Michelle and Christe were found floating in Tampa Bay. Each was nude from the waist down. Joan's hands were tied behind her back and her ankles bound, and the rope around her neck was fastened to a concrete block; Christe was tied the same way, with duct tape on her face. Michelle had worked her left hand free, leaving only a loop of rope on the wrist. The medical examiner could not say whether each had been strangled by the rope or had drowned. They were on vacation from their dairy farm in Willshire, Ohio, and had checked into a Days Inn in Tampa on June 1. Their car turned up at a boat ramp on the Courtney Campbell Causeway, and inside it were directions to the motel in Joan's hand on Days Inn stationery and a Clearwater Beach brochure bearing more directions, in handwriting that a state examiner later identified as Oba Chandler's, along with his palm print.
Three years passed before the police had his name, after they put enlarged images of that handwriting on billboards. At his trial in Clearwater the jury heard from a Canadian tourist he had raped on his boat off Madeira Beach on May 15, 1989, two weeks before the murders, after her friend declined to come along; from telephone operators who took collect calls to his home at 1:12 and 1:30 on the morning of June 2 from a caller on a boat called Gypsy One; and from his own daughter, who testified that on a visit that November he told her he could not go back to Florida because the police there wanted him for killing some women. Chandler testified that he had met the family and given them directions, and nothing more. On September 29, 1994, the jury found him guilty of three counts of first-degree murder, and the next day it unanimously recommended death. He was sentenced on November 4, 1994.
The file holds four opinions. The Florida Supreme Court's 1997 decision affirms the convictions and sentences and is the fullest account of the evidence, including the rape of the Canadian tourist, which the court held was properly admitted. Its 2003 decision affirms the denial of postconviction relief, most of it spent on claims that his trial lawyers were ineffective. The Eleventh Circuit's 2006 decision rejects his claim that his lawyers should have moved a second time to move the trial out of the county. The last, decided November 7, 2011, rejects his argument that Florida's death penalty law was unconstitutional because a judge rather than a jury found the facts that made him eligible for death. Chandler was executed by lethal injection at Florida State Prison eight days later, on November 15, 2011; he made no final statement.
The facts are the courts' summaries of the trial record. The 1997 and 2003 opinions quote at length from another Florida case, Gore v. State, on the use of a separate crime as evidence, and the victim and defendant in that case, Susan Roark and Marshall Lee Gore, are named as the court named them. The telephone evidence places the caller on the water that night; the courts treat his identity as the caller as a question for the jury, and so does this page. That he made no final statement comes from reporting of the execution, not from these opinions.
The rape survivor and her friend, Chandler's daughter, her husband and her sister, Chandler's wife, a subcontractor and a man who bought his boat, the telephone operators, two jail inmates who testified about what he told them in 1992, and a witness quoted from the Gore case are reduced to initials, fifteen people in all. The murdered women, police officers, the medical examiner and other expert witnesses, lawyers and judges are named as the courts named them. There is no biography of Chandler in the archive. The text is the reporters' typeset text, in the public domain, with the scan's line-break hyphens left in.
Oba CHANDLER, Appellant, v. STATE of Florida, Appellee.
No. 84812.
Supreme Court of Florida.
Oct. 16, 1997.
Rehearing Denied Dec. 11, 1997.
James Marion Moorman, Public Defender and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Appellant.
Robert A. Butterworth, Attorney General and Candance M. Sabella, Assistant Attorney General, Tampa, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have on appeal the judgments and sentences of the trial court imposing the death penalty upon appellant Oba Chandler. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Chandler’s first-degree murder convictions and sentences of death.
FACTS
The record reflects that the body of Joan Rogers and those of her two daughters, Michelle and Christe, were discovered floating in Tampa Bay on June 4, 1989. Each body was nude from the waist down. Joan’s hands were tied behind her back, her ankles were tied together, and the yellow rope around her neck was attached to a concrete block. Christe’s hands and ankles were similarly tied, and she had duct tape on her face or head and a rope around her neck. Michelle’s left hand was free with only a loop of rope attached, her ankles were bound, she had duct tape on her face or head, and the rope around her neck was attached to a concrete block.
The assistant medical examiner, Dr. Edward Corcoran, performed autopsies that same day. He determined that the cause of death for each victim was either asphyxiation due to strangulation from the ropes tied around their necks or drowning.
The Rogers family was vacationing in Florida and had cheeked into a Days Inn in Tampa on June 1. One week later, housekeepers notified the general manager that the Rogers’ room had not been inhabited for several days. The general manager contacted the police, who secured the room and obtained the hotel’s records for the room. The police subsequently found the Rogers’ car parked at a boat ramp on the Courtney Campbell Causeway.
Among the items'recovered from the car was a handwritten note on Days Inn stationery and a Clearwater Beach brochure. The note read, “Turn right. West W on 60, two and one-half miles before the bridge on the right side at light, blue w/wht.” FBI agent James Mathis determined that the handwriting was that of Joan Rogers. Theresa Stubbs from FDLE determined that some of the handwriting on the Clearwater Beach brochure was Chandler’s, while other writing may have been Joan Rogers’. Samuel McMullin, a fingerprint expert for the Hills-borough County Sheriffs Department, found Chandler’s palm print on the brochure.
R.Co. worked as a subcontractor for Chandler at the time of the murders. He testified at trial that on June 1, Chandler appeared to be in a big hurry after bringing R.Co. some screen. When asked why, Chandler told R.Co. that he had a date with three women. R.Co. met Chandler the next morning at 7:05 a.m.; when asked why he looked grubby, Chandler replied that he had been out on his boat all night.
J.B. and her friend, B.M., both Canadian tourists, testified regarding Chandler’s rape of J.B. several weeks prior to the Rogers’ murders. After meeting the women at a convenience store, Chandler, who identified himself as “Dave,” arranged to take them out on his boat the next day. The following morning, May 15, 1989, B.M. decided not to go out on Chandler’s boat, so J.B. met Chandler alone. J.B. testified that Chandler seemed disappointed when told B.M. would not be joining them. After boating for several hours, J.B. and Chandler returned to the dock. Chandler asked J.B. to get B.M. to join them for an after-dinner boat trip.
Again, J.B. could not convince B.M. to join them. J.B. testified that Chandler seemed “ticked off’ when she told him B.M. would not be joining them. Subsequently, Chandler began making advances to J.B. after the boat entered the Gulf of Mexico. Despite J.B.’s refusals and attempts to resist him, Chandler raped her. Chandler and J.B. then returned to shore. The next day, J.B. told B.M. what happened and reported the rape to the police. At trial, she identified the clothing Chandler had been wearing that night. B.M. picked Chandler’s photograph out of a photo pack and identified him in a lineup and in court.
Chandler visited his daughter, K.M., and her husband R.M. in Cincinnati in November 1989. K.M. later testified that Chandler told her he could not go back to Florida because the police were looking for him for killing some women. While Chandler never admitted to the killings, K.M. testified that he likewise never claimed innocence. Similarly, R.M. thought Chandler had committed the murders from the way he described how the police were looking for him as a murder suspect.
During another visit to Cincinnati in October 1990, Chandler had R.M. set up a drug deal. Before absconding with some of the drug dealers’ money, Chandler put a gun to R.M.’s head and said, “Family don’t mean s_to me.” After Chandler fled, R.M. was badly beaten up and almost killed. [Their] house was also damaged by the drug dealers. This series of incidents forced K.M. to drop out of nursing school. She was upset and told R.M. to call the police and report that Chandler “put a gun on him.”
After Chandler was arrested in September 1992, K.M. was contacted and cooperated with the police and she began to tape their conversations. She gave a sworn statement to the state attorney’s office on October 6, 1992. K.M. had been convicted of a crime involving dishonesty and appeared on the television show Hard Copy in 1994 to discuss her father’s alleged role in the murders in return for a $1000 fee.
R.Ca. testified that he bought a blue and white boat from Chandler in July or August 1989. R.Ca. recalled seeing concrete blocks at the Chandler house and that some of the concrete blocks had three holes and some had two.
A.S. shared a cell with Chandler for ten days in late October 1992. He testified at trial that after viewing television reports about the recovery of the victims’ bodies from Tampa Bay, Chandler said that he had met the three women and given them directions to a boat ramp on the Courtney Campbell Causeway. Chandler told A.S. that one of the girls was very attractive.
B.L., an inmate at the Pinellas County Jail with Chandler in the fall of 1992, testified that Chandler told him that he took a young lady from another country for a ride in his boat. Her friend did not want to go. Once he got out twenty to thirty miles, Chandler told her to have sex with him or swim for it. Chandler allegedly said that the only reason that woman was still around is because somebody was waiting for her at the boat dock. B.L., who had been convicted of nine felonies, never heard Chandler speak of murders, only rapes.
Several, marine operators for GTE testified to collect calls made from a caller identifying himself as Oba, Obey, Obie, or no personal name and his boat as Gypsy or Gypsy One, from March 17 to June 2, 1989. The calls were placed to a number registered to D.C., Chandler’s wife. One of the operators, E.B., testified that she received three collect calls for D.C.’s telephone number, at 1:12 and 1:30 a.m. on June 2, 1989. The caller did not give a first name, although he identified his boat as Gypsy One. Later that same morning, at 9:52 a.m., F.W. received a collect call from Gypsy One; the caller identified himself as Obie.
Chandler testified that he met Michelle Rogers when he stopped at a gas station. He testified that he had a very brief conversation with Michelle, giving her directions to the Days Inn on Highway 60. Chandler maintained that he never saw any of the Rogers family again after this short encounter and adamantly denied killing them. He also testified that he never told R.Co. that he had a date with three women. Chandler claimed that he was out on his boat all night because his engine died after a hose burst, spilling all of his fuel. He testified that two men in a boat gave him a tow to Gandy Bridge Marina, where he put some fuel in his boat. In rebuttal, James Hensley, a certified boat mechanic, testified that Chandler’s fuel line was possibly still the original, was in good shape, and showed no signs of repair. Hensley stated that even if there had been a hole in the fuel line, it would not have leaked because of the anti-syphoning valve.
When asked about details surrounding the rape of J.B., Chandler invoked his Fifth Amendment right to remain silent twenty-one times, although he did answer some questions regarding his perception of the link between the rape and the murders.
After the jury trial concluded, Chandler was found guilty of all three counts of murder on September 29, 1994. The jury reconvened for the penalty phase the next day. During the penalty phase, Chandler waived the presentation of any testimonial mitigating evidence. However, he did present some documentary evidence, including records showing that he obtained his high school equivalency diploma and earned college credits while in prison. The State presented the judgments and sentences of Chandler’s prior armed robberies. The robbery victims also testified about the details of those crimes.
The jury recommended a death sentence for each of the murders by a vote of twelve to zero later that same day. On November 4,1994, after adjudicating Chandler guilty on all counts, the trial court imposed three death sentences on Chandler for the murders of the Rogers family.
APPEAL
Chandler raises seven claims of error on appeal. Claim (4) is procedurally barred since no contemporaneous objections were registered to the prosecutor’s alleged personal attacks against Chandler, Sims v. State, 681 So.2d 1112, 1116-17 (Fla.1996) cert. denied, — U.S. -, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), or to any of the other allegedly improper prosecutorial comments, nor were any accompanying motions for mistrial made. Allen v. State, 662 So.2d 323, 328 (Fla.1995)(requiring contemporaneous objection and accompanying motion for mistrial to preserve allegedly improper prosecutorial comments for appellate review). Since we do not find that the prosecutor’s comments during closing argument constitute fundamental error, this claim of error is procedurally barred. See Kilgore v. State, 688 So.2d 895, 898 (Fla.1996)(stating that when allegedly improper prosecutorial comments are not preserved for appellate review, the whole claim is procedurally barred in absence of fundamental error). We address the remaining issues in turn.
Collateral Grime Evidence
As his first claim of error, Chandler contends that the trial court erred in admitting collateral crime evidence regarding the rape of J.B.. As the parties note, we established the rule regarding admission of collateral crime evidence in Williams v. State, 110 So.2d 654 (Fla.1959), and enunciated the following standard for admitting such evidence;
Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy.
Id. at 659-60. More recently, in Hayes v. State, 660 So.2d 257 (Fla.1995), we observed that:
The Evidence Code, under section 90.404(2)(a), Florida Statutes (1993), allows a party to introduce similar fact evidence of other crimes when it is relevant to prove a material fact in issue. In Drake v. State, 400 So.2d 1217 (Fla.1981), we set forth the principles of how this evidentiary provision should be applied. See also Thompson v. State, 494 So.2d 203 (Fla.1986); Peek v. State, 488 So.2d 52 (Fla.1986). In Drake, we stated:
Williams v. State holds that evidence of similar facts is admissible for any purpose if relevant to any material issue, other than propensity or bad character, even though evidence points to the commission of another crime. The material issue to be resolved by the similar facts evidence in the present case is identity, which the State sought to prove by showing Drake’s mode of operating.
The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.
Drake, 400 So.2d at 1219 (emphasis added).
Hayes, 660 So.2d at 261 (second emphasis added) (citations omitted). The common thread in our Williams rule decisions has been that startling similarities in the facts of each crime and the uniqueness of modus operandi will determine the admissibility of collateral crime evidence.
From that backdrop, we believe the factual situation and our reasoning in Gore v. State, 599 So.2d 978 (Fla.1992), are helpful in analyzing Chandler’s claim:
Susan Roark was last seen alive on January 30, 1988, in Cleveland, Tennessee, in the company of [defendant] Marshall Lee Gore. Gore had planned to travel to Florida with a friend from Cleveland. While waiting for his friend at a convenience store, Gore struck up a conversation with Roark. Gore then entered Roark’s car, a black Mustang, and they drove away.
Gore accompanied Roark to a party at the home of a friend of hers. Roark had planned to spend the night at her friend’s home. Sometime between 11:30 and 12:00, Roark left to drive Gore home. She never returned. The following day Roark’s grandmother reported her missing. She had been expected home by 7 a.m. that morning.
Gore arrived in Tampa on January 31, driving a black Mustang. He convinced a friend to help him pawn several items of jewelry later identified as belonging to Roark. Gore then proceeded to Miami, where police subsequently recovered Roark’s Mustang after it was abandoned in a two-car accident. Gore’s fingerprint was found in the ear, as well as a traffic ticket which had been issued to him while he was in Miami.
On April 2, 1988, the skeletonized remains of Roark’s body were discovered in Columbia County, Florida_
The testimony of T.C. was admitted as evidence of a collateral crime. T.C. was a casual acquaintance of Gore’s, whom she knew as “Tony.” In March of 1988, Gore called T.C. at her home and told her that his car had broken down and he needed a ride to it. After they had driven around for several hours, Gore revealed a knife, gained control of the ear, and drove to a partially wooded dumping area off a dirt road. He put the knife to T.C.’ stomach, forced her to undress, and raped her. He then dragged her out of the car, punched her face against a rock, strangled her, and stabbed her in the neck, arms, legs, and buttocks. Shortly thereafter Gore pawned several items of T.C.’ jewelry and then proceeded to Kentucky in her car.
Gore argues that this case is comparable to Drake v. State, 400 So.2d 1217 (Fla.1981), in that the collateral crime is not sufficiently similar to the crime at issue and the claimed similarities are not unique enough to qualify as evidence of identity.... In rejecting the collateral crimes evidence as evidence of the identity of the murderer, we noted that “[a] mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations.” Id. at 1219.
We find that the T.C. crime does have the required pervasive similarities. The significant common features of the two crimes include the following: The victim was a small female with dark hair; Gore introduced himself as “Tony”; he had no automobile of his own; he was with the victim for a lengthy amount of time before the attack began; he used or threatened to use binding; the attack had both a sexual and pecuniary motive; the victim suffered trauma to the neck area; Gore transported the victim to the site of the attack in the victim’s car; the victim was attacked at a trash pile on a dirt road, where the body was then left; Gore stole the victim’s car and jewelry; he pawned the jewelry shortly after the theft; he fled in the victim’s automobile, leaving the state where the victim was apprehended and staying with a friend or relative for a period of time after the crime; and he represented the car to be a gift or loan from a girlfriend or relative.
Gore argues that there are dissimilarities between the two incidents as well.... Here, however, the similarities are pervasive, and the dissimilarities insubstantial. This Court has never required the collateral crime to be absolutely identical to the crime charged. The few dissimilarities here seem to be a result of differences in the opportunities with which Gore was presented, rather than differences in mo-dus operandi. See Chandler v. State, 442 So.2d 171, 173 (Fla.1983). For example, the most significant difference between the two crimes — that Roark was murdered while T.C. was not — seems to be more of a fortuitous circumstance than a reflection of Gore’s intent in the T.C. crime, since he beat her, stabbed her, and left her for dead in an isolated area.
Gore also argues that the similar features of the two crimes are not sufficiently unique to serve as evidence of identity_ While the common points between the Co-rolis assault and the Roark murder may not be sufficiently unique or unusual when considered individually, they do establish a sufficiently unique pattern of criminal activity when all of the common points are considered together. The cumulative effect of the numerous similarities between the two crimes is the establishment of a unique modus operandi which points to Gore as the perpetrator of the Roark homicide. We find no error in the admission of evidence of Gore’s attack on T.C..
Id. at 980-84 (emphasis added).
In this case, the trial court’s detailed order admitting the collateral crime evidence found the following fourteen similarities between the J.B. rape and the Rogers’ murders: (1) All the victims were tourists; (2) the victims were young white females between 14 and 36; (3) the victims were similar in height and weight; (4) the victims met Chandler by chance encounter where he rendered assistance to them; (5) the victims agreed to accompany Chandler on a sunset cruise within twenty-four hours of meeting him; (6) Chandler was non-threatening and convincing that he was safe to be with alone; (7) a blue and white boat was used for both crimes; (8) a camera was taken to record the sunset in both crimes; (9) duet tape was used or threatened to be used; (10) there was a sexual motive for both crimes; (11) the crimes occurred in large bodies of water in the Tampa Bay area on a boat at night under the cover of darkness; (12) homicidal violence occurred or was threatened; (13) the crimes occurred within seventeen or eighteen days of each other; and (14) telephone calls were made to Chandler’s home from his boat while still embarked either before or after these crimes. When analyzed through a literal application of Williams or under the more detailed Drake standard as applied in Gore and Hayes, we conclude that Chandler’s claim that evidence of the J.B. rape was irrelevant and insufficiently similar to his alleged commission of the Rogers’ murders is unconvincing.
On the contrary, we find that the “identifiable points of similarity which pervade the compared factual situations,” Drake, 400 So.2d at 1219, include “chance encounters” in public places with young female tourists to whom Chandler offered assistance; almost immediate offers of cruises on his boat; the same blue and white boat used for both crimes; a warm, non-threatening demeanor that convinced the eventual victims to accompany Chandler on his boat within twenty-four hours of meeting him; sexual motive with all victims stripped from the waist down; use or threatened use of duct tape; crimes occurring in large bodies of water under cover of darkness; murder committed or threatened; and commission of the crimes within a brief time frame seventeen to eighteen days of each other.
We recognize that the crimes are not exactly the same. However, that fact alone does not' preclude admission of collateral crime evidence and, indeed, would erect an almost impossible standard of admissibility. Gore, 599 So.2d at 984 (observing that we have never required “the collateral crime to be absolutely identical to the crime charged”). In this case, the biggest difference is, of course, that J.B. lived and the Rogers women were murdered. However, even that dissimilarity may be attributed to “differences in the opportunities with which [Chandler] was presented, rather than differences in modus operandi.” Id. As with T.C.’s fortuitous survival after being savagely punched, strangled, and stabbed by Gore, the evidence adduced at trial indicates that J.B. may be alive today because B.M. refused to join her and Chandler on the boat and awaited her return at the boat dock. We note that B.M. refused to go for a cruise not once, but twice. Chandler did not attack J.B. until their second cruise, at night, and after J.B. had another opportunity to ask B.M. if she would join them.
With the J.B. rape evidence before her, the trial judge found that it was relevant to establish Chandler’s identity as the Rogers’ killer; relevant to show Chandler’s plan, scheme, intent, and motive to lure women tourists aboard his boat for a sunset cruise “to commit violence upon them;” and relevant to establish Chandler’s opportunity to commit the Rogers’ murders on his boat. Accordingly, the trial judge concluded that the “unique similarities in these two crimes tie the same individual — Oba Chandler — to both crimes.” Since the two crimes “establish a sufficiently unique pattern of criminal activity when all of the common points are considered together,” Gore, 599 So.2d at 984, and the evidence presented Chandler’s “unique modus operandi,” id., we find no abuse of discretion in the trial court’s admission of the Williams rule evidence.
Fifth Amendment Bight to Remain Silent
As his next claim of error, Chandler asserts that the trial court erred in forcing him, in effect, to repeatedly invoke his Fifth Amendment right against self-incrimination before the jury in response to questions about the J.B. rape. This claim is without merit.
At the outset, we agree with the State that much of Chandler’s claim that cross-examination impermissibly exceeded the scope of direct examination is proeedurally barred since no contemporaneous objection was made. Geralds v. State, 674 So.2d 96, 99 (Fla.), cert. denied, — U.S. -, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996). Defense counsel’s request for a standing objection was denied since, as the trial judge stated, “[n]one of us has any idea what he is going to say, and I can’t rule magically, so don’t ask that.” Counsel did not renew his objection contemporaneously and thus this sub-claim is proeedurally barred. Geralds.
As to Chandler’s claim regarding the prosecutor’s questions about the J.B. rape, we believe that this issue constitutes a classic case of trying to take the wind out of your opponent’s sails by pre-emptively admitting extremely prejudicial evidence and thereby softening the blow. However, this situation presents a unique twist: Chandler softened the blow by stating to the jury in opening argument, which of course is not considered evidence, that the State would talk at length about the J.B. rape but that was a different case from the one before them. Thereafter, when the time came, defense counsel did not allude to the J.B. rape during his direct examination of Chandler. In that way, the State presumably could not address that subject matter when cross-examining Chandler since the issue was not broached on direct examination. See Hunter v. State, 660 So.2d 244, 251 (Fla.1995) (finding trial court did not err in limiting attempted cross-examination of police detective which was “clearly outside the scope of direct”); § 90.612(2), Fla. Stat. (1993)(limiting cross examination “to the subject matter of direct examination and matters affecting the credibility of the witness ... [although the] court may, in its discretion, permit inquiry into additional matters”).
Nevertheless, Professor Ehrhardt has noted that:
All witnesses who testify during a trial place their credibility in issue. Regardless of the subject matter of the witness’ testimony, a party on cross-examination may inquire into matters that affect the truthfulness of the witness’ testimony. Although cross-examination is generally limited to the scope of the direct examination, the credibility of the witness is always a proper subject of cross-examination. The credibility of a criminal defendant who takes the stand and testifies may be attacked in the same manner as any other witness.
Charles W. Ehrhardt, Florida Evidence § 608.1 at 385 (1997 ed.) (footnotes omitted). See also Shere v. State, 579 So.2d 86, 90 (Fla.1991) (recognizing the general rule that the “purpose of cross examination is to elicit testimony favorable to the cross-examining party ... and to challenge the witness’s credibility when appropriate”). Similarly, we have long held that “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.” Geralds v. State, 674 So.2d 96, 99 (Fla.1996) (quoting Coco v. State, 62 So.2d 892, 895 (Fla.1953)); Coxwell v. State, 361 So.2d 148, 151 (Fla.1978) (same).
In Geralds, we recently denied a similar claim from the defendant that the prosecutor’s cross-examination about evidence linking him to the murder was beyond the scope of the defendant’s testimony on direct. 674 So.2d at 99-100. We noted that on direct examination, the defendant’s testimony covered six general subjects, including his denial that he murdered the victim. Id. at 100. Since the defendant opened the door on that subject, we concluded that the trial court did not abuse its discretion in allowing questions about evidence linking the defendant to the crime. Id.
Likewise, in this case, Chandler testified on direct examination about his fine of work; his family; his boat; his work-related activities from May 31 to June 2, 1989; his encounter with the Rogers family on June 1, 1989, at the convenience store where he gave them directions to a Days Inn; his fishing trip the evening of June 1, 1989, where he was allegedly stranded in Tampa Bay due to a broken hose; and three separate denials that he killed the Rogers family. The crux of Chandler’s defense was that he met Michelle Rogers only briefly at the convenience store where he gave her directions to a Days Inn; he did not take the Rogers family for a cruise that night; and he did not kill them. We conclude that the State could legitimately attack Chandler’s credibility in asserting those claims, Geralds, and could permissibly develop the connection between the J.B. rape and the Rogers’ murders to that end.
For example, the following exchange occurred regarding Chandler’s November 1989 visit with his daughter, K.M., in Cincinnati:
Prosecutor: Tell me how it came out, Mr. Chandler.
Chandler: I went to the motel, checked in, give her a call. They stopped up, started talking with R.M. about building money up. I needed some cash. Said all he had was two ounces of cocaine he could front me. I said, that’s fine. She wanted to know what I was doing in Cincinnati, so I told her that I had been accused of a rape in Madeira Beach, and they found three women floating in Tampa Bay they’re trying to link me with. That was it.
Prosecutor: Did you tell her you were innocent of both crimes?
Chandler: Did I tell her that I was innocent?
Prosecutor: Yeah.
Chandler: Most certainly did. She never went to no bathroom. She never left the room.
(Emphasis added.) Thus, Chandler testified that he told his daughter he was innocent of both the rape and the murders, which of course contradicted defense counsel’s concession in opening argument that the State could prove Chandler raped J.B.. Therefore, this was a legitimate subject of inquiry for the State in cross-examining Chandler as it attempted to cast doubt on his defense and undermine his credibility as a witness. § 90.612(2), Fla. Stat. (1993).
Furthermore, as the State notes, since Chandler’s defense counsel conceded that the State could prove that Chandler raped J.B. several weeks before the Rogers’ murders on a blue and white boat in the Gulf of Mexico, accordingly, “long before Chandler invoked the Fifth concerning the [J.B.] rape, the jury had already accepted Chandler’s guilt for [that] rape. Therefore, any inference of guilt for the [J.B.] rape from the invocation of the Fifth is undeniably harmless.” Appellee’s Answer Brief at 73. Evidence that Chandler had committed the J.B. rape was also the essential link leading to Chandler’s indictment for the Rogers’ murders.
In the final analysis, Chandler knew before he testified that under the ground rules established by the trial judge, the State could permissibly cross-examine him about the J.B. rape and he could invoke his Fifth Amendment right against self-incrimination. As illustrated, although he invoked the Fifth Amendment numerous times, he also gave some testimony about his fear that the J.B. rape and the murders would be linked. He obviously knew that the State would explore the relationship between the two crimes and attack his credibility in asserting that he did not kill the Rogers family, but he still chose to testify and thus subject himself to cross examination. That was Chandler’s choice alone and we agree with the State that first, the trial court did not err in letting him live with the resulting consequences and second, error, if any, was harmless since there is “no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).
Prior Consistent Statement
Next, Chandler argues that the trial court erred in admitting K.M.’ prior consistent statement made on October 6, 1992, when the existence of a fact giving rise to a motive to falsify, the October 1990 drug money theft, occurred before the statement was made. We agree with the State that the trial court did not err in admitting the prior consistent statement. We also find any potential error harmless.
We have long held that prior consistent statements “are generally inadmissible to corroborate or bolster a witness’ trial testimony.” Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992); Jackson v. State, 498 So.2d 906, 909 (Fla.1986); Parker v. State, 476 So.2d 134, 137 (Fla.1985); Van Gallon v. State, 50 So.2d 882 (Fla.1951). Since such statements are usually hearsay, “they are inadmissible as substantive evidence unless they qualify under an exception to the rule excluding hearsay.” Rodriguez, 609 So.2d at 500 (citing Charles W. Ehrhardt, Florida Evidence, § 801.8 (1992 ed.)). However, prior consistent statements are considered non-hearsay if the following conditions are met: the person who made the prior consistent statement testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to “rebut an express or implied charge ... of improper influence, motive, or recent fabrication.” Rodriguez, 609 So.2d at 500 (quoting section 90.801(2)(b), Florida Statutes (1989)).
In this case, K.M. testified during the State’s ease-in-chief that Chandler admitted that he committed the murders when he visited her in November 1989. However, on cross-examination, defense counsel elicited alternative purported motives for K.M. to testify falsely: the October 1990 drug money theft where her husband was severely beaten after Chandler fled, and her receipt of money for appearing on Hard Copy in 1994. On redirect, the State attempted to rehabilitate K.M. by introducing her sworn statement made to the state attorney’s office on October 6, 1992, before the Hard Copy appearance was negotiated. K.M. had stated that Chandler told her “that he could not come back to Florida, the police were looking for him, that he had murdered the women.”
We conclude that this statement was properly admitted as rebuttal regarding the suggestion that K.M.’ 1994 Hard Copy appearance motivated her trial testimony, since K.M. testified and was subject to cross-examination, and the statement pre-dated the existence of her motive to fabricate, i.e., the Hard Copy appearance. See § 90.801(2)(b), Fla. Stat. (1993). The October 1992 statement was undisputedly made after the October 1990 drug money incident. However, by directly suggesting that the Hard Copy appearance motivated K.M.’s testimony, Chandler could not thereafter prevent the State from rehabilitating her testimony by urging that another motive to fabricate existed earlier. That was a choice that the defendant made in urging more than one reason to fabricate at trial. Having made this choice, he must suffer its natural consequences.
The improper admission of prior consistent statements is also subject to harmless error analysis. Anderson v. State, 574 So.2d 87, 93 (Fla.1991). The jury was made aware early on that K.M. had cooperated with the police and given them information about her father’s visit and the statements he made. From this the jury could infer that this information was the same as that provided by K.M. at trial, especially since there was no indication to the contrary. In addition, the prosecutor questioned K.M. about a similar statement she made to her sister, V.T., in 1989. The State further argues, and we agree, that the jury knew that the October 1990 drug money incident occurred before K.M. gave her statement to the state attorney’s office in October 1992, and Chandler’s defense counsel had an additional opportunity to recross-examine K.M. regarding her statement as well as to assert both the drug money episode and the Hard Copy appearance as motivations for K.M. to lie or exaggerate her testimony. While we recognize that the statement may have bolstered K.M.’ credibility, we conclude, after considering the context in which K.M.’ testimony was presented, that the jury had ample information from which to assess K.M.’ credibility and weigh her testimony accordingly. Therefore, we also find that any error is harmless beyond a reasonable doubt. DiGuilio, 491 So.2d at 1135.
Waiver of Right to Present Mitigating Testimony
As his first penalty phase issue, Chandler contends that the trial court erred in accepting his waiver of the right to present penalty phase mitigating testimony because defense counsel failed to inform the trial court “what that evidence would be,” contrary to the procedure we established in Koon v. Dugger, 619 So.2d 246 (Fla.1993). For that reason, Chandler asks us to vacate his death sentences. We find no merit in this claim based on what we consider to be Chandler’s hypertechnieal interpretation of what Koon requires in this situation.
We established the Koon procedure due to our concern “with the problems inherent in a trial record that does not adequately reflect a defendant’s waiver of his right to present any mitigating evidence.” 619 So.2d at 250. To achieve the goal of avoiding such problems, we instituted the following procedure for use when defendants wish to waive presentation of mitigating evidence during the penalty phase:
When a defendant, against his counsel’s advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant’s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.
Id. Obviously, our primary reason for requiring this procedure was to ensure that a defendant understood the importance of presenting mitigating testimony, discussed these issues with counsel, and confirmed in open court that he or she wished to waive presentation of mitigating evidence. Only then could the trial court, and this Court, be assured that the defendant knowingly, intelligently, and voluntarily waived this substantial and important right to show the jury why the death penalty should not be imposed in his or her particular case.
The record reflects that after defense counsel informed the court of Chandler’s decision and began to go over the list of penalty phase witnesses and what they would say, the trial judge stated:
However, I think there is a case — and I don’t have it at my fingertips — but what it says is, if the Defendant has told the defense counsel not to call relevant mitigation, that defense counsel is, Number One, obligated to tell the Court that; and, Number Two, the Court then is obligated to tell you what you would have — who you would have called and what they would have said, basically.
And then Mr. Chandler has got to, in essence, acknowledge that he understands it could have been helpful and, in essence, announce that he wish that not be presented.
Clearly, the trial judge was describing Koon and the compulsory procedure in this situation.
Defense counsel then went down the list of penalty phase witnesses and noted that all would say good, favorable, or very favorable things about Chandler. He also responded that he had discussed those favorable things with Chandler. At that point, the trial judge commented as follows:
Court: Okay. Mr. Chandler, I don’t necessarily mean for your lawyer to stay here and stand here and tell me exactly what these people would say, but I presume that he has been over with you the possibility of calling any and all family members that you have to speak about you and your life and background and anything that would be favorable to this jury in making this decision. Has he gone over that with you? Chandler: Yes, he has, and I have made a-decision, your Honor, to call no one.
Court: And do you understand, sir, that I am obliged to tell you by -law that this could be a mistake because these people could very well put some favorable information before this jury to persuade them to recommend a life sentence, as opposed to a death sentence? Do you understand that?
Chandler: Yes, I do.
Court: And you’ve had plenty of time to talk this over with your lawyer?
Chandler: Yes.
Court: And it is your decision that you have instructed your lawyer not to call these people. Is that correct?
Chandler: That’s correct.
Court: Is there anything else we need to put on the record?
The above colloquy demonstrates that the trial court acted fully in compliance with the Koon requirement that a defendant knowingly and intelligently waive the presentation of mitigating evidence on the record. Moreover, we find that defense counsel complied with his duties under Koon by investigating Chandler’s background, having witnesses ready and available to testify, and adequately outlining the favorable character evidence that Chandler’s witnesses would have presented. Accordingly, we find no error in the trial court’s acceptance of Chandler’s waiver.
Childhood Trauma as Nonstatutory Mitigation
As his next claim, Chandler alleges that the trial court erred in not finding his purported childhood trauma as nonstatutory mitigation. We find no merit in this claim.
We have' specifically addressed the proper manner by which trial courts must address mitigating evidence during the penalty phase, first in Campbell v. State, 571 So.2d 415 (Fla.1990), and most recently in Ferrell v. State, 653 So.2d 367 (Fla.1995). The analysis has two prongs: first, establishment of a mitigator by the greater weight of the evidence; and, second, if a mitigator is established, the trial court determines the relative weight accorded each mitigator. Chandler’s claim of error addresses the first prong. Id. at 371.
The approved procedure is as follows:
The sentencing judge must expressly evaluate in his or her sentencing order each statutory and non-statutory mitigating circumstance proposed by the defendant. This evaluation must determine if the statutory mitigating circumstance is supported by the evidence and if the non-statutory mitigating circumstance is truly of a mitigating nature. A mitigator is supported by evidence if it is mitigating in nature and reasonably established by the greater weight of the evidence.
Id. Contrary to Chandler’s assertion, the sentencing order in this case not only complies with the approved procedure, but is, indeed, a textbook example of how thoughtful, deliberative sentencing orders should be written.
Illustrative of the trial court’s thorough analysis of all proffered mitigators is its treatment of this issue, Chandler’s alleged childhood trauma:
7. The Defendant was only ten years old when his father committed suicide.
It is a mitigating factor if a Defendant has had a deprived childhood, or has suffered abuse as a child, or other matters such as this. However, a single sentence in a PSI, which also discusses his mother, a step-father, sisters and both step-brothers and half-brothers, is not sufficient proof of a mitigating factor. The Defendant lived with his mother after his father died. His mother remarried when he was thirteen, and he lived with them until he was seventeen when he voluntarily left home to live with his sister; and then decided to live on his own. (This information is contained in the 1977 PSI).
If child abuse or deprived childhood existed in Defendant’s case, he voluntarily elected not to present any evidence of it. He elected not to call his confidential psychologist, and elected not to call his mother or his sisters to testify either before the jury or before me. Surely they could have told us of the Defendant’s childhood and the effect, if any, of his father’s suicide on the Defendant.
There is no proof, therefore, in the record, of the mitigating factor of child abuse, or a deprived childhood.
(Emphasis added.) The trial court’s analysis conforms with the requirements we established in Campbell and Ferrell.
Beyond the trial court’s procedural compliance with the guidelines for evaluating mitigating circumstances, we have recognized that it is within the trial court’s discretion to determine whether such mitigation has been established. Foster v. State, 679 So.2d 747, 755 (Fla.1996), cert. denied, — U.S. -, 117 S.Ct. 1259, 137 L.Ed.2d 338 (1997); Preston v. State, 607 So.2d 404 (Fla.1992); Sireci v. State, 587 So.2d 450 (Fla.1991); Stano v. State, 460 So.2d 890 (Fla.1984). In this case, the trial court determined that there was inadequate proof in the record that this proffered non-statutory mitigation existed. This is the process required by Campbell and Ferrell.
HAC Standard Jury Instruction
As his last penalty phase issue, Chandler argues that the standard jury instruction on the “heinous, atrocious, or cruel” (HAC) aggravating circumstance is unconstitutionally vague.
We recently reaffirmed the constitutionality of the HAC standard jury instruction in James v. State, 695 So.2d 1229, 1235 (Fla.), petition for cert. filed, No. 97-6104 (U.S. Sept. 18,1997). In James, we rejected the appellant’s vagueness and overbreadth challenges since the HAC instruction given at trial was the same instruction approved in Hall v. State, 614 So.2d 473 (Fla.1993), wherein this Court found that neither the instruction nor the aggravatin' itself was unconstitutionally vague. James, 695 So.2d at 1235; Hartley v. State, 686 So.2d 1316 (Fla.1996), cert. denied, — U.S. -, 118 S.Ct. 86, — L.Ed.2d -(1997). Since that instruction was the same as the one given in this case, we again uphold the constitutionality of the standard jury instruction on the HAC aggravatin'. James; Hartley.
Proportionality
Finally, although neither party raises the issue of proportionality, review of our prior ease law reveals that the death sentences in this case are proportionate to other cases where sentences of death have been imposed. See Rolling v. State, 695 So.2d 278 (Fla.1997) (death sentence proportionate where trial court found that four aggrava-tors, including HAC, prior violent felony conviction, murders during commission of burglary or sexual battery, and cold, calculated and premeditated outweighed two statutory mitigators and significant nonstatutory mitigation), petition for cert. filed, No. 97-5975 (U.S. Sept. 10, 1997); Henyard v. State, 689 So.2d 239 (Fla.1996) (finding four aggrava-tors, including HAC, prior violent felony conviction, and murder during commission of kidnapping and sexual battery outweighed two statutory mitigators and minor nonstatu-tory mitigation), cert. denied, — U.S. -, 118 S.Ct. 130, — L.Ed.2d - (1997); Marshall v. State, 604 So.2d 799 (Fla.1992) (affirming death sentence where four strong aggravators, including HAC, prior violent felony convictions, and murder during commission of burglary outweighed minor mitigation).
CONCLUSION
In summary, we affirm Chandler’s first-degree murder convictions and sentences of death.
It is so ordered.
KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.
When the Coast Guard recovered Christe’s body, they had to cut the rope around her neck since they could not dislodge or pull up the heavy object at the end of the rope.
S.B., E.B., C.V., and F.W..
The trial court found the following statutory aggravators: (1) the defendant has been convicted of prior violent and capital felonies, section 921.141(5)(b), Florida Statutes (1993); (2) the murders were committed during the commission of a kidnapping, section 921.141(5)(d); (3) the murders were committed to avoid arrest, section 921.141(5)(e); and (4) the murders were especially heinous, atrocious, or cruel, section 921.141(5)(h). No statutory mitigators were presented or proved. Although the defendant offered numerous nonstatutoiy mitigators, the trial court only found that his honorable discharge from the U.S. Marine Corps and the length of his mandatory sentences were established as non-statutoiy mitigation, but accorded each little weight.
The claims are: (1) the trial court violated Chandler’s constitutional right to a fair trial by admitting evidence that he sexually battered J.B.; (2) the trial court erred in requiring Chandler to repeatedly invoke his right to remain silent before the jury; (3) the trial court erred in allowing the State to present a prior consistent statement by K.M.; (4) the prosecutor's closing argument violated Chandler’s right to a fair trial; (5) the trial court erred in accepting Chandler’s waiver of his right to present mitigating testimony during the penalty phase; (6) the trial court erred in rejecting Chandler’s claim of childhood trauma as a mitigating circumstance; and (7) the standard jury instruction for the heinous, atrocious, or cruel aggravating circumstance is unconstitutionally vague. .The prosecutor's comment that Chandler never told his daughters or son-in-law that he was innocent was a fair characterization of the evidence, while his other comments about Chandler and his counsel were thoughtless and petty, e.g., counsel engaged in "cowardly” and "despicable” conduct and Chandler was "malevolent ... a brutal rapist and conscienceless murderer,” but not so prejudicial as to vitiate the entire trial. Esty v. State, 642 So.2d 1074, 1079 (Fla.1994); Bertolotti v. State, 476 So.2d 130 (Fla.1985).
To support his argument, Chandler directs our attention to Drake v. State, 400 So.2d 1217 (Fla.1981); Thompson v. State, 494 So.2d 203 (Fla.1986); and Peek v. State, 488 So.2d 52 (Fla.1986), wherein we found that the prior sexual crimes of the defendants in those cases were inadmissible in their murder prosecutions since the collateral crimes were insufficiently similar. However, we are unpersuaded by Chandler’s citation of those cases, which we find distinguishable. For example, the only similarity between the crimes in Drake was that the victims’ hands were tied behind their backs and they had left a bar with the defendant. 400 So.2d at 1219-. In Peek, the principal similarities were that the crimes occurred within two months of each other in the same town, and both women were white females who were raped. 488 So.2d at 55. In Thompson, the primary similarities were that both victims were approximately the same age and build; both crimes occurred near a particular church parking lot; and the defendant was having domestic problems on both occasions. 494 So.2d at 204. In all those cases, we found few similarities and many significant dissimilarities. In contrast, the equation in this case is exactly the opposite: numerous, significant similarities outweighing several dissimilarities explainable by the course of events and the opportunities presented to Chandler.
On this factor, the trial judge wrote as follows: Without J.B. and B.M.’s testimony, what jury could possibly believe [that] Mrs. Rogers and her two children would board Chandler's boat for a sunset cruise within 24 hours of having met him? This was a critical question the State had to answer at trial. The J.B. incident was relevant and necessaty to answer that question. It is because J.B. did the exact same thing within 24 hours of having met Chandler, with no fear for her safely, that the jury had relevant evidence to prove Oba Chandler had the same opportunity to lure the Rogers’ women aboard his boat and to their ultimate deaths.
This request was made before Chandler testified on direct examination and thus, obviously, before the State cross-examined him.
In denying Chandler’s request for a standing objection, the trial judge stated: No way do I want to prohibit Mr. Chandler from testifying before this jury. No way do I want to prohibit the State from cross-examining Mr. Chandler about matters that I have ruled are relevant to this case. That puts Mr. Chandler in a tough dilemma. That really isn’t my concern. That’s your concern and Mr. Chandler’s concern.... [To defense counsel]: You knew how the court was going to rule. We went over this last night with everybody present. I’m sure you talked to your client after that. Certainly [it] cannot come as a surprise to you or your client. This is exactly what I said last night. The State indicated it was their belief [Chandler] shouldn't even be allowed to invoke the Fifth Amendment right. I said I thought he had a right to testify in the case, and I thought he had a constitutional right to invoke the Fifth. He does want to testify or doesn't? Defense counsel: One second, please. He is going to testify. (Emphasis added.)
Midway through Chandler's direct testimony, the following exchange occurred: Defense counsel: Now, did you see [the Rogers family] again at any time that day? Chandler: I've never seen them again. Defense counsel: Never saw them again in your life? Chandler: No, sir. Defense counsel: Did you kill these people? Chandler: No, I did not. Defense counsel: Did you take them out on your boat? Chandler: No, they've never been on my boat.
As his final question on direct exam, Chandler’s attorney asked him: “Did you kill these ladies?” Chandler responded that "I have never killed no one in my whole life. I have never'— its’s ludicrous. It's ridiculous.”
K.M. had testified to these issues during the State’s case-in-chief.
This exchange also shows that Chandler did answer some questions about the J.B. rape, while invoking the Fifth Amendment on others. The trial judge pointed this out to defense counsel when he renewed his request for a standing objection.
As the State points out, "Chandler was apprehended and identified as the same person whose handwriting and palmprint were on the brochure in the Rogers’ car” based on a composite drawing made by J.B.. Appellee’s Answer Brief at 45. Indeed, detectives assigned to the Rogers’ murder case became aware of the J.B. rape during the course of their investigation and "immediately recognized the significance of the similar pattern.” Id. .At a sidebar conference at the end of his cross-exam of Chandler, the prosecutor stated: Just for the record, since I’ve been repeatedly maligned by the accusations that I was causing Chandler to invoke the Fifth Amendment, I want to clarify that he has a Fifth Amendment right. I wanted answers to my questions. That is what I would prefer. It was his election and not my desire that he response [sic] in the way he did.
K.M. testified on direct examination: And then he said that he couldn’t go back to Florida because the police were looking for him because he killed some women.... Prosecutor: He indicated he had killed women? K.M.: Yes. Of course, as noted earlier in the opinion, Chandler testified that he told K.M. that he was innocent of the murders and the rape.
K.M. testified that after her father left Cincinnati, she discussed their conversation with V.T.. She stated that she mentioned her father’s statements during the general course of her conversation with V.T. and that their conversation occurred in 1989, approximately one year prior to the October 1990 drug incident.
On cross-examination, defense counsel explored this issue extensively, asking K.M. numerous questions about the events surrounding the drug money theft, the fact that she told her husband to report Chandler to the police because he "put a gun” on him, and her later taping of her conversations with her father in cooperation with the police. K.M.’s testimony left no doubt as to the sequence of events and defense counsel asked her several times when the drug money theft occurred, e.g., "[t]his incident occurred in October of 1990, right?”, to which K.M. responded "yes.”
Thus we reject Chandler’s contention that since defense counsel did not go into greater detail about "what that favorable evidence would be,” we should vacate his sentences and thereby ignore the fact that the core requirement of Koon — knowing, intelligent, and voluntary waiver in open court — was clearly met in this case.
Oba CHANDLER, Appellant, v. STATE of Florida, Appellee.
No. SC01-1468.
Supreme Court of Florida.
April 17, 2003.
Rehearing Denied June 24, 2003.
Baya Harrison, Montieello, FL, for Appellant.
Charles J. Crist, Jr., Attorney General, and Candance M. Sabella, Senior Assistant Attorney General, Tampa, FL, for Appel-lee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Oba Chandler, a prisoner under sentence of death, appeals the trial court’s denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the trial court’s order denying Chandler postconviction relief.
BACKGROUND
Oba Chandler was charged with three counts of first-degree murder for the murder of Joan Rogers, and her two daughters, Michelle and Christe. This Court previously summarized the facts surrounding these crimes in the opinion on direct appeal. See Chandler v. State, 702 So.2d 186, 189-191 (Fla.1997).
On September 29, 1994, Chandler was found guilty of all three counts of first-degree murder. The next day a penalty phase proceeding was held, and the jury unanimously recommended that Chandler be sentenced to death for each of the three murders. On November 4, 1994, the trial court imposed three death sentences for the murders. We affirmed Chandler’s convictions and sentences on direct appeal. See id. at 189. The United States Supreme Court denied Chandler’s petition for writ of certiorari on April 20, 1998. See Chandler v. Florida, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998).
In June of 1998, Chandler filed an initial motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In May of 2000, Chandler filed an amended 3.850 motion asserting seven claims. Following a Huff hearing, an evidentiary hearing was held on November 2, 2000. Thereafter, the trial court entered an order denying relief. This appeal follows.
ANALYSIS
On appeal, Chandler raises three claims: (1) the trial court erred in denying Chandler an evidentiary hearing regarding his claim that defense counsel was ineffective for failing to seek a venue change; (2) the trial court erred in failing to find that trial counsel was ineffective in dealing with evidence of a similar crime that was introduced at trial pursuant to Williams v. State, 110 So.2d 654 (Fla.1959), (Williams Rule evidence); and (3) the trial court erred in failing to find that trial counsel was ineffective for failing to object to various statements the prosecutor made in the guilt phase closing arguments. We address each of these issues in turn.
CHANGE OF VENUE
The indictment in this case alleged that the murders occurred in either Pinellas County or Hillsborough County, Florida. Pursuant to section 910.03(1), Florida Statutes (1993), Chandler initially elected to be tried in Hillsborough County. Subsequently, Chandler’s trial counsel filed a motion for change of venue, alleging that Chandler could not get a fair and impartial trial anywhere in the Tampa Bay area. Prior to hearing the motion, the trial court contacted defense counsel and the State to determine if the parties could reach an agreement to conduct the trial in Pinellas County. Pursuant to a new law, the trial court had the option of picking a jury from another county and bringing the jurors to Pinellas County for the trial. See § 910.03(3), Fla. Stat. (Supp.1994). Before hearing Chandler’s change of venue motion, the trial court informed the parties that if a stipulation could be entered wherein Chandler would elect Pinellas County over Hillsborough County, the court would agree to select the jury in Orange County and return the jurors to Pinellas County, where they would be sequestered during trial. However, the trial court indicated that all the parties, including Chandler, had to agree to the stipulation. A hearing was held on the motion for change of venue, at which the court explained the stipulation to Chandler in great detail. After the hearing, the trial court entered an order explaining the stipulation and stating that the parties and Chandler had agreed to the stipulation. The order also indicated that in the event any portion of the stipulation was rescinded, the entire stipulation would be rescinded.
In the order denying Chandler’s current postconviction motion, the trial court stated that a subsequent motion to change venue objecting to the jury being picked in Orange County would have caused her to consider the previous stipulation void. The trial court also stated that if the stipulation had been voided, any change of venue motion that Chandler filed would have been held in abeyance while the court attempted to pick an impartial jury in Hills-borough County, the county of original venue. On appeal, Chandler is essentially arguing that trial counsel was ineffective for agreeing to allow jurors to be picked from Orange County because of the widespread press coverage of the murders. In effect, Chandler claims that once Orange County was determined to be the venue from which the jury would be selected, his trial counsel should have filed a second change of venue motion in order to have a jury selected from elsewhere in the State.
In denying Chandler relief on this claim, the trial court first determined that the underlying issue was procedurally barred. We agree. On direct appeal, Chandler did not challenge any members of the Orange County jury as being unfair or unable to be impartial. Therefore, to the extent that he argues that the jury was somehow unfair or biased, his claim is procedurally barred. See, e.g., Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (holding that claims that could have been brought in direct appeal were procedurally barred from being brought in postconviction proceedings); Swafford v. Dugger, 569 So.2d 1264, 1267 (Fla.1990) (stating that “[pjostconviction proceedings cannot be used as a second appeal”).
Furthermore, Chandler has not established either element of the test for establishing ineffective assistance of counsel. In order to prove an ineffective assistance of counsel claim, a defendant must establish two elements:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Wike v. State, 813 So.2d 12, 17 (Fla.2002); Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998); Rose v. State, 675 So.2d 567, 569 (Fla.1996). To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings. See id.
Generally, claims of ineffective assistance of counsel regarding change of venue are brought where counsel either did not file a change of venue motion, see, e.g., Buford v. State, 492 So.2d 355 (Fla.1986), or where counsel failed to obtain a change of venue, see, e.g., Rolling v. State, 695 So.2d 278 (Fla.1997). Chandler, by way of comparison, was given an initial selection between Pinellas or Hillsborough counties based on the indictment, and was given the additional option of stipulating to have his jury selected from Orange County. Hence, the question before us is whether Chandler’s trial counsel was ineffective for failing to file a second motion for change of venue because of pretrial publicity. With regard to when a change of venue is necessary to protect a defendant’s rights, we have provided the following test:
The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and pre-conceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.
The trial court in its discretion must determine whether a defendant has raised such a presumption of prejudice under this standard.... In exercising its discretion, a trial court must make a two-pronged analysis, evaluating: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury.
Rolling, 695 So.2d at 284-285 (citations omitted) (quoting McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977)). Furthermore, the existence of pretrial publicity in a case does not necessarily lead to an inference of partiality or require a change of venue:
[PJretrial publicity must be examined in the context of numerous circumstances, including; (1) when it occurred in relation to the time of the crime and the trial; (2) whether the publicity was made up of factual or inflammatory stories; (3) whether the publicity favored the prosecution’s side of the story; (4) the size of the community; and (5) whether the defendant exhausted all of his peremptory challenges.
Foster v. State, 778 So.2d 906, 913 (Fla.2000); see Rolling, 695 So.2d at 285. In the postconviction context where a defendant is claiming that counsel was ineffective with regard to a venue issue:
[T]he defendant must, at a minimum “bring forth evidence demonstrating that there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if [defense] counsel had presented such a motion to the court.” Meeks v. Moore, 216 F.3d 951, 961 (11th Cir.2000); see also Provenzano v. Dug ger, 561 So.2d 541, 545 (Fla.1990) (concluding that counsel was not ineffective for failing to renew the motion for change of venue because it was a tactical decision and because “it is most unlikely that a change of venue would have been granted because there were no undue difficulties in selecting an impartial jury”).
Wike, 813 So.2d at 18. Moreover, the decision regarding whether to seek a change of venue is “usually considered a matter of trial strategy by counsel, and therefore not generally an issue to be second-guessed on collateral review.” Rolling v. State, 825 So.2d 293, 298 (Fla.2002).
Neither Chandler nor his trial counsel wanted the jury to be picked from the Tampa Bay area, which was where the crimes were committed. The trial judge in her order denying Chandler postconviction relief stated that both Chandler and his trial counsel knew that she would try to pick the jury from Hillsborough County before granting a change of venue. Her revelation that she would have tried to pick a jury before granting the motion was appropriate. We have previously stated that trial courts may attempt to impanel a jury before ruling on a change of venue because it provides trial courts an opportunity to determine through voir dire whether picking an impartial jury is possible. See Foster v. State, 778 So.2d 906, 913 (Fla.2000); Henyard v. State, 689 So.2d 239, 245 (Fla.1996); Davis v. State, 461 So.2d 67, 69 n. 1 (Fla.1984); Manning v. State, 378 So.2d 274, 276 (Fla.1979). Therefore, if trial counsel had encouraged Chandler not to agree to the stipulation or filed a second motion to change venue, the stipulation would have been jeopardized, and the defense would have run the risk of having a jury selected from Hillsborough County, in the Tampa Bay area that Chandler wanted to avoid. Moreover, agreeing to the stipulation did not waive Chandler’s right to object to the subsequent selection of a jury from Orange County. Trial counsel testified at the evidentiary hearing that if he had not been able to select a jury in Orange County, he would have moved for a change of venue at that point.
Furthermore, Chandler has not brought forth evidence demonstrating that there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if defense counsel had presented such a motion to the court. See Provenzano v. Dugger, 561 So.2d 541, 545 (Fla.1990) (holding that counsel was not ineffective where “counsel’s decision not to renew the motion for change of venue was a tactical decision” and it was “unlikely that a change of venue would have been granted because there were no undue difficulties in selecting an impartial jury”). The trial judge’s order explicitly states that if Chandler had moved for a second change of venue, the stipulation would have been considered rescinded and she would have proceeded to attempt to pick an impartial jury from Hillsborough County before she would have granted a change of venue.
Even if trial counsel’s actions were somehow deficient, Chandler cannot meet the prejudice prong of Strickland, in part because he cannot show prejudice under the test we enunciated in Rolling, which requires the trial court to consider (1) the extent of the pretrial publicity and (2) the difficulty encountered in seating the jury. See Rolling, 695 So.2d at 285. Even if we were to accept Chandler’s factual allegations regarding the amount of pretrial publicity as true, Chandler would still not be entitled to relief because he has not shown that there was any difficulty encountered in selecting his jury. In denying the claim, the trial court referred to three facts in particular:
1) Only 4 of the 12 jurors who served knew anything about this case. None of them had formed any opinion about the guilt or innocence of the defendant. 2) In this case that was to last four weeks, with jurors having to come to Pinellas County from Orange County and be sequestered for the entire time, it only took l>é days to pick a jury. 8) Neither side exercised all its preemptory [sic] challenges, with Chandler choosing to exercise only k of his 10 challenges.
Our examination of the jury selection process in this case supports the trial court’s observation that an impartial jury was seated with relative ease. Most of the prospective jurors who were questioned indicated that they had not heard about the case. Thus, under these circumstances, we affirm the trial court’s denial of this claim.
WILLIAMS RULE EVIDENCE
Next, Chandler claims that trial counsel was ineffective because of the strategy he utilized for dealing with Williams Rule evidence. On direct appeal, we summarized the facts regarding the Williams Rule evidence:
J.B. and her friend, B.M., both Canadian tourists, testified regarding Chandler’s rape of J.B. several weeks prior to the Rogers’ murders. After meeting the women at a convenience store, Chandler, who identified himself as “Dave,” arranged to take them out on his boat the next day. The following morning, May 15, 1989, B.M. decided not to go out on Chandler’s boat, so J.B. met Chandler alone. J.B. testified that Chandler seemed disappointed when told B.M. would not be joining them. After boating for several hours, J.B. and Chandler returned to the dock. Chandler asked J.B. to get B.M. to join them for an after-dinner boat trip.
Again, J.B. could not convince B.M. to join them. J.B. testified that Chandler seemed “ticked off’ when she told him B.M. would not be joining them. Subsequently, Chandler began making advances to J.B. after the boat entered the Gulf of Mexico. Despite J.B.’s refusals and attempts to resist him, Chandler raped her. Chandler and J.B. then returned to shore. The next day, J.B. told B.M. what happened and reported the rape to the police. At trial, she identified the clothing Chandler had been wearing that night. B.M. picked Chandler’s photograph out of a photo pack and identified him in a lineup and in court.
When asked about details surrounding the rape of J.B., Chandler invoked his Fifth Amendment right to remain silent twenty-one times, although he did answer some questions regarding his perception of the link between the rape and the murders.
Chandler, 702 So.2d at 189-91.
The introduction of the Williams Rule evidence was thoroughly addressed in Chandler’s direct appeal. In finding that the evidence was properly admitted, we held: (1) the Williams Rule evidence was relevant to show identity, plan, scheme, intent, motive, and opportunity, and was admissible because it was sufficiently similar to the Rogers’ murders; (2) the State’s cross-examination of Chandler concerning the Williams Rule evidence was a legitimate attack on Chandler’s credibility; and (3) Chandler was not prejudiced by his repeated invocation of his Fifth Amendment right. Chandler, 702 So.2d at 192-97.
Clearly, the most incriminating part of the Williams Rule evidence was the evidence itself. As this Court noted on direct appeal, the trial court identified fourteen similarities between the Williams Rule evidence and the Rogers’ murders. Id. at 193-94. Because the jury would inevitably hear the Williams Rule evidence, despite any tactical decision Chandler’s trial counsel could make, the evidence was likely to do some damage to Chandler’s case because of its similarity to the murder.
Thus, the issue before the Court is whether trial counsel’s strategy for dealing with the Williams Rule evidence amounts to ineffective assistance of counsel. In effect, trial counsel decided the best way to address the Williams Rule evidence was not to challenge it vigorously or make the State prove that J.B. had been sexually battered. Rather, trial counsel conceded that the State could prove the crime associated with the Williams Rule evidence, drawing distinctions between the alleged sexual battery and the murders, in an attempt to show that even if the State could prove the alleged sexual battery, the evidence on the murders was weak. Chandler’s collateral counsel argues that trial counsel should have vigorously defended against the alleged sexual battery and not conceded anything to the State.
Admittedly, on its face, trial counsel’s strategy might raise doubts as to its efficacy. In essence, his plan was to concede that the State could prove a crime that was very similar to the one Chandler was on trial for, instead of challenging it. However, our review of the trial court’s order and the record from the evidentiary hearing demonstrates that trial counsel’s performance in this case was not deficient under Strickland. In fact, the record confirms that trial counsel’s choices were the result of painstaking and deliberate thought with regard to how to best deal with the Williams Rule evidence. Even though collateral counsel disagrees with trial counsel’s strategy for dealing with the Williams Rule evidence, this disagreement does not place trial counsel’s decision on how to deal with the evidence outside the realm of reasonably effective assistance of counsel. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (“Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions.”). Furthermore, the fact that trial counsel’s tactics did not secure the result defendant wanted does not mean that collateral counsel, who has the benefit of hindsight, can label trial counsel ineffective for failing to use an alternative tactic. Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“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.”); see also Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) (“The standard is not how present counsel would have proceeded, in hindsight....”). This Court has repeatedly stated that “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.” Oc-chicone, 768 So.2d at 1048; see Shere v. State, 742 So.2d 215, 220 (Fla.1999); State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987).
Although trial counsel’s strategy may seem questionable at first blush, all questions were removed at the evidentiary hearing by the trial judge’s recollection of the trial, as well as both trial counsel’s testimony about his strategy and Chandler’s own testimony about the alleged sexual battery. At the evidentiary hearing, trial counsel gave a well-founded explanation for why he thought his strategy for dealing with the Williams Rule evidence was appropriate. Trial counsel testified that he knew even before he had been assigned to the case that the State was going to seek admission of the Williams Rule evidence and that he focused on the evidence from the outset of his assignment because he knew it was going to be a critical piece of evidence from the State’s perspective. Moreover, trial counsel also noted that it was decided early on that Chandler should testify on his own behalf in the defense portion of the case. Trial counsel realized that even if the trial court ruled against Chandler on a motion in limine to prevent the introduction of the Williams Rule evidence, the alleged sexual battery case would still be pending when the State brought the murder to trial. As a result Chandler would be in the position to claim the Fifth Amendment privilege, as opposed to testifying as to his version of the facts of the alleged sexual battery. Therefore, as part of his comprehensive strategy to deal with the Williams Rule evidence, trial counsel wanted to make it clear to the jury that the alleged sexual battery was a different case and that “we were not going to defend it in the homicide case; that we were going to let the State prove whatever they wanted to prove on that, and we were not going to defend that case for many reasons.”
At the evidentiary hearing, trial counsel also testified that having Chandler deny the alleged sexual battery on the stand would have been detrimental to Chandler’s defense of the murder. Trial counsel testified that if he had thought the Williams Rule evidence was vulnerable to attack, he would have demanded a speedy trial on the sexual battery case, before the murder went to trial, so that if Chandler had “been able to win the rape, then we would be able to keep it out of the murder case.” However, trial counsel decided to advise Chandler not to follow this path after he had the chance to depose the victim in the sexual battery case, J.B.. Trial counsel testified he found J.B. to be very believable and could not determine any motive for her to lie. Trial counsel found Chandler’s claim that he had consensual sex with J.B. more difficult to believe, he was concerned about giving the prosecution the opportunity to cross-examine Chandler on his story, and he was concerned that under the facts of Chandler’s story alone, the jury would still be able to come to the conclusion that Chandler was admitting to sexual battery. Moreover, trial counsel testified that he did not rely solely on his own perception of how the difference in credibility between J.B. and Chandler would play out before the jury. The consensus among Chandler’s defense team was that “they did not feel comfortable, let me put it that way, with [Chandler’s] explanation as to what happened out on the water with J.B..”
Trial counsel testified that he was convinced that if Chandler claimed on the stand that he had consensual sex with J.B., the prosecutor’s strategy “would have been to pull [Chandler] through that, probably spend who knows how long on going over the facts of the rape and every point that he disagreed with her.” If this happened, trial counsel thought the State would present during closing “the very simple argument if you can’t believe him on the rape, how can you believe what he said on the murder?” Recognizing that Chandler was going to testify and wanted to testify, trial counsel said that it was critical that Chandler’s credibility be preserved, but he testified that in his opinion, pitting Chandler’s credibility against J.B.’s would have been “suicidal to his chances of winning the murder case.” Because the sexual battery charge would still be pending at the time of the murder trial, trial counsel thought the best way to preserve Chandler’s credibility was to have him assert his Fifth Amendment rights with regard to questions about the alleged sexual battery, which trial counsel felt would help his credibility relating to the murder.
Trial counsel’s fears about Chandler’s version of events were supported by Chandler’s testimony at the evidentiary hearing. During cross-examination, Chandler admitted within the context of his version of events that he did not stop having sex with J.B. after she demanded that he stop because “he wanted to complete the act” and in his opinion he “was entitled to finish.” The trial court made an apt observation about Chandler’s evidentiary hearing testimony:
For me, personally, a very damaging portion of [Chandler’s] testimony about the J.B. rape was his lack of respect— almost disdain — for J.B.. Having sat through the murder trial, it was extremely difficult to imagine anyone having such hatred/disdain for women that he could have done what was done to the Rogers women. Mr. Chandler let some of that part of his personality appear when he testified about the J.B. rape. This would have been devastating for the jury to see and hear in the murder trial.
I conclude this part of the order convinced that [trial counsel’s] strategy was correct as to his handling of the entire Williams Rule issue, including conceding in his opening statement that the state could prove the rape, as he was not there to defend it, but was going to defend the murder charge.
We agree with the trial court’s characterization of Chandler’s evidentiary hearing testimony. Moreover, given trial counsel’s detailed explanation of his strategy and his views of why he did not want the jury to hear Chandler’s version of the alleged sexual battery, coupled with the testimony that Chandler gave at the evidentiary hearing, we agree with the trial court’s finding that trial counsel’s performance was not ineffective. Thus, while trial counsel’s handling of this issue may have differed from collateral counsel, trial counsel’s strategic decisions under these circumstances do not amount to ineffective assistance of counsel. We affirm the trial court’s denial of relief on this claim.
PROSECUTOR’S COMMENTS
Finally, Chandler cites multiple instances of allegedly improper prosecutorial comments during the guilt phase closing argument. He asserts that trial counsel’s failure to object to these comments constituted prejudicial error. In denying his claim, the trial court found that Chandler’s claim failed for several reasons: (1) any improper remarks of the prosecutor were not sufficient to undermine confidence in the outcome of the case, and therefore, Chandler could not meet the prejudice prong of Strickland; (2) trial counsel explained at the evidentiary hearing why he did not object to many of the remarks made during the prosecutor’s closing statement, and, in essence, Chandler could not meet the deficiency prong of Strickland; and (3) many of the specific statements raised by the defendant as objectionable were actually proper and permissible.
We agree with the trial court’s finding that many of the specific statements raised by the defendant as objectionable were actually proper and permissible. For example, Chandler claims that the prosecutor improperly commented on Chandler’s exercise of his Fifth Amendment privilege regarding the alleged sexual battery of J.B. by stating: “Think about all the things he wouldn’t talk about and didn’t say.” Taken in context, we do not believe that this brief comment by the prosecutor was an unfair or improper comment on defendant’s Fifth Amendment rights. In Dabney v. State, 119 Fla. 341, 161 So. 380 (1935), the Court stated:
The settled rule is that if a defendant declines to become a witness in his own behalf, then the prosecuting attorney shall not comment on such course being taken by the defendant. In other words, the failure of the defendant to testify cannot be taken or considered as any admission against his interest; but, if a defendant voluntarily takes the stand and testifies as a witness in his own behalf, then he becomes subject to cross-examination as any other witness, and the prosecuting officer has the right to comment on his testimony, his manner and demeanor on the stand, the reasonableness or unreasonableness of his statements, and on the discrepancies which may appear in his testimony to the same extent as would be proper with reference to testimony of any other witness.
Id. at 381. Similarly, Chandler argues that a number of isolated and out-of-context statements were improper. In the statements cited, the prosecutor used words and phrases such as “desperation, distortion, and half-truths,” “charade,” and “totally irrational” to characterize defense counsel’s arguments as misleading. Although some of the descriptions by the prosecution may have been poorly chosen and more harsh than necessary, the statements were made in reference to defense claims that the prosecutor felt were legally or factually inaccurate or logically inconsistent. Therefore, even if these statements were poorly expressed, they were not improper.
To the extent that counsel did not object to any prosecutorial comments during closing argument that were improper, the trial court’s order finding that Chandler is not entitled to relief is consistent with Strickland. In Strickland, the United States Supreme Court stated:
Because of the difficulties inherent in making the evaluation [of ineffectiveness], a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). See also Ventura v. State, 794 So.2d 553, 568 (Fla.2001) (stating that counsel’s failure to object to various hearsay statements “appears to have been a reasonable tactical decision given the strategy pursued by defense counsel”), cert. denied, 535 U.S. 1098, 122 S.Ct. 2296, 152 L.Ed.2d 1054 (2002). We agree that the decision not to object to improper comments is fraught with danger and may not be wise strategy because it might cause an otherwise appealable issue to be considered procedurally barred. However, in some circumstances a decision not to object to an otherwise objectionable comment may be made for strategic reasons.
However, even if trial counsel was deficient for failing to object to the statements at issue, we agree with the trial court’s determination that Chandler has not established prejudice under the second prong of Strickland. In Chandler’s direct appeal, with regard to the prosecutor’s comments during closing arguments, we noted:
The prosecutor’s comment that Chandler never told his daughters or son-in-law that he was innocent was a fair characterization of the evidence, while his other comments about Chandler and his counsel were thoughtless and petty, e.g., counsel engaged in “cowardly” and “despicable” conduct and Chandler was “malevolent ... a brutal rapist and conscienceless murderer,” but not so prejudicial as to vitiate the entire trial. Esty v. State, 642 So.2d 1074, 1079 (Fla.1994); Bertolotti v. State, 476 So.2d 130 (Fla.1985).
Chandler, 702 So.2d at 191 n. 5. Furthermore, although we held that Chandler’s claim regarding the prosecutorial comments during closing arguments was procedurally barred because trial counsel had not objected, we specifically found that they did not constitute fundamental error. Chandler, 702 So.2d at 191. In Spencer v. State, 842 So.2d 52 (Fla.2003), we recently explained:
In order for an error to be fundamental and justify reversal in the absence of a timely objection, “the error must reach 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.” Brown v. State, 124 So.2d 481, 484 (Fla.1960); see also State v. Delva, 575 So.2d 643, 645 (Fla.1991). In order for improper comments made in the closing arguments of a penalty phase to constitute fundamental error, they must be so prejudicial as to taint the jury’s recommended sentence.
Id. 842 So.2d at 74. Because Chandler could not show the comments were fundamental error on direct appeal, he likewise cannot show that trial counsel’s failure to object to the comments resulted in prejudice sufficient to undermine the outcome of the case under the prejudice prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
The instant case is similar to Thompson v. State, 759 So.2d 650, 664 (Fla.2000), in which the defendant claimed defense counsel was ineffective for failing to object to several improper remarks by the prosecutor. This Court stated that “[bjecause none of these prosecutorial comments would have constituted reversible error had they been objected to at trial, we affirm the trial court ruling summarily denying this claim.” Id. at 664. Similarly, because we have previously held that the prosecutor’s comments in this case did not constitute fundamental error, even though some of the prosecutor’s comments in this case were ill-advised, they were not so prejudicial as to vitiate the entire trial. Thus, Chandler is not entitled to relief on this claim.
CONCLUSION
For the reasons stated above, we affirm the trial court’s denial of postconviction relief.
It is so ordered.
ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.
The amended motion contained seven claims of ineffective assistance of counsel: (1) failure to prevent the prosecutor from making improper, prejudicial arguments to the jury; (2) ineffective assistance in dealing with the matter of venue; (3) failure to protect Chandler regarding the admission of evidence of a similar crime that was admitted pursuant to Williams v. State, 110 So.2d 654 (Fla.1959); (4) failure to protect the defendant from cross-examination regarding the similar crime evidence; (5) failure to investigate and present the defense that someone else had committed the homicides; (6) failure to investigate and present an expert witness to rebut the State's expert witness on boat fuel lines; and (7) counsel caused prejudicial statements regarding Chandler to be entered at trial.
Huff v. State, 622 So.2d 982 (Fla.1993).
At the Huff hearing, Chandler’s postconviction counsel conceded that no evidentiary hearing was needed on claims one, five, and seven of his postconviction motion. Additionally, postconviction counsel abandoned claim six regarding the fuel line expert, after announcing that he had investigated the claim very carefully and could find no good faith basis for the claim. .In a notice of supplemental authority, Chandler asks this Court to take judicial notice of three cases: Ring v. Arizona, 534 U.S. 1103, 122 S.Ct. 865, 151 L.Ed.2d 738 (2002), State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Aside from filing the notice, Chandler provides no argument other than that the cases "may be relevant to the issues raised in this cause.” Assuming Chandler is claiming he is entitled to relief based on these cases, this Court has addressed similar contentions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.2002), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and denied relief. We find that Chandler is likewise not entitled to relief.
The order stated, in relevant part, that: (1) Chandler rescinded his election to be tried in Hillsborough County and elected to be tried in Pinellas County; (2) the jury would be sequestered; and (3) the jury would be selected from Orange County because a fair and impartial jury could not be impaneled in Pi-nellas County.
At the evidentiary hearing, trial counsel agreed that the judge was "absolutely correct” after she explained the nature of the stipulation: What I wanted to make sure is clear on this record is [the stipulation] was a package. If Mr. Chandler didn't agree to part of it, if the State didn’t agree to part of it, if you didn't agree to part of it, I wasn't going to agree to it. We were going to go to Hills-borough County where I believed we could pick a jury and get the case done.
At the evidentiary hearing, Chandler also agreed that his understanding of the stipulation was that he had the right to seek a venue change from Orange County if it became obvious that there was going to be great difficulty selecting a jury there.
The trial court only granted an evidentiary hearing on this claim "as to defendant’s waiver” and did not allow evidence regarding the amount of pretrial publicity. Because the trial court did not hold an evidentiary hearing on the amount of pretrial publicity, the only information in this record regarding the extent and nature of pretrial publicity comes in the way of the supplemental record, which includes the report prepared by Chandler’s media expert. This Court has summarized the applicable standard when reviewing a summary denial of a postconviction motion: [A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient. The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusoiy allegations are not sufficient to meet this burden. However, in cases where there has been no evidentiary hearing, we must accept the factual allegations made by the defendant to the extent that they are not refuted by the record. We must examine each claim to determine if it is legally sufficient, and, if so, determine whether or not the claim is refuted by the record. Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000) (citations omitted). Because we find that Chandler’s claim is refuted by the record, we agree that there was no need for an evi-dentiary hearing on the amount of pretrial publicity in the case.
The trial court noted that it only took a day and a half to pick the jury, which is substantially less time than other high-profile cases that this court has reviewed where media attention to the case was an issue. See, e.g., Rolling, 695 So.2d at 287 (stating that jury selection "spanned a three-week period”). Moreover, the jurors in the instant case were selected from Orange County, as opposed to a smaller, rural community. This Court has stated that in determining the prejudicial impact of intense publicity the size of the community is a factor to be considered. See, e.g., Copeland v. State, 457 So.2d 1012, 1017 (Fla.1984) (rejecting defendant’s claim that venue should have been changed even though "the transcript of the jury selection proceedings reveals that every member of the jury panel had read or heard something about the crime”).
The fourteen similarities were: (1) All the victims were tourists; (2) the victims were young white females between 14 and 36; (3) the victims were similar in height and weight; (4) the victims met Chandler by chance encounter where he rendered assistance to them; (5) the victims agreed to accompany Chandler on a sunset cruise within twenty-four hours of meeting him; (6) Chandler was non-threatening and convincing that he was safe to be with alone; (7) a blue and white boat was used for both crimes; (8) a camera was taken to record the sunset in both crimes; (9) duct tape was used or threatened to be used; (10) there was a sexual motive for both crimes; (11) the crimes occurred in large bodies of water in the Tampa Bay area on a boat at night under the cover of darkness; (12) homicidal violence occurred or was threatened; (13) the crimes occurred within seventeen or eighteen days of each other; and (14) telephone calls were made to Chandler's home from his boat while still embarked either before or after these crimes. Chandler, 702 So.2d at 193-94.
Postconviction counsel, while conceding that trial counsel did not admit guilt to the murders, compares this case to Nixon v. Sin-gletary, 758 So.2d 618 (Fla.2000), wherein the Court held that defense counsel must have defendant's consent before counsel can make a tactical decision to admit guilt of murder during the guilt phase of a trial in an effort to persuade the jury to spare defendant’s life during the penalty phase. See id. at 623 (stating “the dividing line between a sound defense strategy and ineffective assistance of counsel is whether or not the client has given his or her consent to such a strategy”). Even though he did not concede guilt to the murders, given the similarities between the murders and the alleged sexual battery, trial counsel’s decision should still be closely scrutinized. In effect, trial counsel did concede Chandler’s guilt in the J.B. case. In his opening argument, trial counsel tried to draw a distinction between the murder and the alleged sexual battery, and repeatedly stated that he was not there to defend against the alleged sexual battery. Finally, in summing up his opening argument, trial counsel stated, "And ladies and gentlemen, in conclusion, the State is going to be able to prove, at least for their case — okay?—the State will probably be able to prove to you the Madeira Beach rape. And, again, I ask you to keep that separate.” At the evidentiary hearing, Chandler’s trial counsel testified that this opening statement was part of the strategy to keep Chandler's Fifth Amendment rights intact and that if he had denied the alleged sexual battery in his opening it might have opened the door to the State to cross-examine Chandler on it. Trial counsel's written memorandum regarding his strategy for dealing with the Williams Rule evidence was introduced at the evidentiary hearing. Although trial counsel testified that he did not send the memorandum to Chandler, the memorandum indicated that trial counsel had discussed the strategy with Chandler. Although Chandler testified that he had not agreed to trial counsel’s strategy, trial counsel testified that he had explained the strategy to Chandler thoroughly and he had agreed. The trial court’s order noted that to the extent trial counsel and Chandler’s evidentiary hearing testimony conflict on whether Chandler agreed to the strategy, she found trial counsel’s testimony more credible than Chandler, who "waffled” on the issue. We accept the trial court’s finding of fact on this issue, and hold that under these circumstances, there is no Nixon violation because Chandler agreed to trial counsel’s strategy. See Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999) (recognizing trial court’s superior vantage point in assessing credibility of witnesses).
Chandler had not been tried or convicted for the alleged sexual battery. Sometime after Chandler’s conviction on the murders, the State decided not to pursue charges associated with the alleged sexual battery.
In written closing arguments that were submitted after the evidentiary hearing, collateral counsel conceded that trial counsel’s pretrial motion in limine to exclude the Williams Rule evidence was well-researched and that trial counsel "cannot be faulted for the effort he made in this regard.”
In addition to the fact that Chandler wanted to testify, trial counsel, who had participated in eleven other capital cases and had results favorable to the defendant in a number of them, said based on his experience with the cases where he had been successful, he thought it was important for Chandler to testify at trial.
Because there was no question of identity in the alleged sexual battery case, the only defense available to Chandler was that he had consensual sex with J.B.. At the evidentiary hearing, trial counsel testified at length about his perception of J.B.’s credibility and appearance. Additionally, trial counsel noted that from his pretrial deposition he knew that J.B. was adamant about the facts of the alleged sexual battery, was convincing as a witness, and that her description would be authoritative before the jury. In summing up his thoughts, trial counsel stated, "If they were ever going to make a mold of what the State wants to bring to court for a rape victim, that mold is going to be this lady. It’s going to be J.B..”
Chandler organizes the numerous allegedly improper comments into four broad categories: (1) improper comments on Chandler's exercise of his Fifth Amendment privilege regarding the alleged sexual battery; (2) improper attacks on defense counsel and his theory of the case; (3) improper statements of the prosecutor’s personal opinions and beliefs; and (4) improper personal attacks on Chandler.
At the Huff hearing, the trial court determined and both counsel agreed that no evi-dentiary hearing was necessary to determine this issue. However, at the Huff hearing, the trial court indicated that the parties could inquire of trial counsel as to any strategic decisions he made in not objecting to the prosecutor’s closing arguments.
Although trial counsel did not contemporaneously object to this statement by the prosecutor, he did subsequently object following another remark by the prosecutor arguing that he was again "commenting on the Defendant's exercise of [his] Fifth Amendment privilege.” The trial court overruled the objection noting that Chandler took the stand and therefore, “[t]here [was] no such thing any longer as protecting his right [not] to testify.”
Cf. United States v. Weber, 437 F.2d 327 (3d Cir.1970). In Weber, the Third Circuit, in an admittedly different context, stated: [0]nce a defendant takes the witness stand he waives his Fifth Amendment privilege and makes himself liable to cross-examination as an ordinary witness. Moreover, it is permissible, even in a trial upon a multi-count indictment, for the court to charge that a jury may draw an inference of guilt from a defendant's silence when the defendant testifies as to some facts, but refrains from testifying as to other facts within his knowledge. Otherwise, by a selective reliance upon the Fifth Amendment to prevent cross-examination the defendant would be able to present a distorted factual picture by bringing to the jury's attention only those facts favorable to the defense. Id. at 334-35 (citations omitted).
In the instant case, while he did object to some comments, trial counsel alleged that his failure to object to every improper comment made by the prosecutor was a strategic decision. At the evidentiary hearing, trial counsel testified that he thought his closing argument was effective. Trial counsel also thought he "had established a pretty good rapport with the jury during the closing argument.” Trial counsel also stated, "in general I don't like to jump up all the time anyway. I think it looks bad in front of the jury when you’re continually jumping up and interrupting the other side’s closing argument.” Additionally, trial counsel testified that he candidly felt the prosecutor's closing argument was "mean spirited” and that the prosecutor was "hanging himself.” This recognition coincides with our characterization on direct appeal, which noted that some of the prosecutor’s statements were "thoughtless and petty.” Chandler, 702 So.2d at 191 n. 5.
Oba CHANDLER, Petitioner-Appellant, v. James McDONOUGH, Charlie Crist, Respondents-Appellees.
No. 06-11190.
United States Court of Appeals, Eleventh Circuit.
Dec. 18, 2006.
Gary Lee Printy (Court-Appointed), Tallahassee, FL, for Chandler.
Candance M. Sabella, Tampa, FL, for Respondents-Appellees.
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
Oba Chandler was convicted of capital murder and sentenced to death in the State of Florida on November 4, 1994. After his conviction and sentence were affirmed on direct appeal, Chandler v. State, 702 So.2d 186 (Fla.1997), state collateral relief was also denied and that denial was affirmed, Chandler v. State, 848 So.2d 1031 (Fla.2003). Chandler then filed a 28 U.S.C. § 2254 petition in the United States District Court for the Middle District of Florida. That petition was denied, Chandler v. Crosby, 454 F.Supp.2d 1137 (M.D.Fla.2006), and Chandler has appealed that denial.
The only issue on which Chandler was granted a certificate of appealability involves his claim that his trial counsel rendered ineffective assistance by failing to move a second time for a change of venue. The facts and procedural history relating to this claim are set out in the district court’s opinion. Id. at 1151-55. To the extent Chandler contends that, given the evidence that was before the state courts, their decision regarding this claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or that it “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2), we reject that contention for the reasons set out in the district court’s thorough treatment of the subject. Chandler, 454 F.Supp.2d at 1156-67. We add to that treatment only these additional thoughts. First, the fact that any non-ineffective assistance claim relating to change of venue and pretrial publicity may be procedurally barred does not, in turn, bar consideration of the claim that counsel was ineffective for failing to pursue that claim at trial and on appeal. Those are two different claims. We have the ineffective assistance claim before us now, and it is not procedurally barred.
Second, since the district court denied the petition in this case, we have issued our en banc decision in United States v. Campa, 459 F.3d 1121 (11th Cir.2006) (en banc). The Campa decision underscores the fact that the burden a defendant bears when attempting to establish presumed prejudice is “an extremely heavy one,” and reiterates that “[t]he presumed prejudice principle is rarely applicable and is reserved for an extreme situation.” Id. at 1143 (internal quotation marks and citations omitted). Those principles make it difficult for a petitioner claiming his counsel was ineffective for failing to move for a change of venue to establish the requisite prejudice, which necessitates a showing that, at a minimum, “there is a reasonable probability that the trial court would have, or at least should have, granted a motion for change of venue if [petitioner’s] counsel had presented such a motion to the court,” Meeks v. Moore, 216 F.3d 951, 961 (11th Cir.2000). As the district court concluded, “Chandler has not even come close to the sort of evidentiary showing necessary to establish that his defense was prejudiced by [trial counsel’s] failure to file a second change of venue motion.” Chandler, 454 F.Supp.2d at 1166.
We turn now to Chandler’s contention that the district court erred by not granting him an evidentiary hearing at which he could present evidence on this claim. He was given an evidentiary hearing on the claim in state court to the extent that trial counsel and petitioner himself testified about this claim and their pretrial reasoning and strategy concerning it. See id. at 1163 (recounting some of their testimony); Chandler, 848 So.2d at 1037. Chandler also proffered in the state collateral proceeding a 195-page report in two parts by his expert on the issue, media consultant Paul Wilson. That report not only contained Wilson’s opinions but also detailed descriptions of the media coverage, including excerpts from a large number of the stories about the case that were printed or broadcast. Chandler, 454 F.Supp.2d at 1157-62.
The state courts accepted as true the factual content of the Wilson report and its attachments, insofar as they described the media coverage of the case. See Chandler, 848 So.2d at 1038 n.8 (noting that supplemental record contains the Wilson report “regarding the extent and nature of pretrial publicity” and “we must accept the factual allegations made by the defendant to the extent that they are not refuted by the record”); State v. Chandler, No. CRC92-17438CFANO (Fla. Cir. Ct. June 28, 2001) (state trial court order denying collateral relief) (“[T]he defendant was permitted to supplement the record with the publicity he believed existed in Orange County.”). So did the district court, which discussed the report’s contents in considerable detail. Chandler, 454 F.Supp.2d at 1157-62.
Because Chandler cannot show that “the facts underlying his claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense,” he cannot fit within the exceptions to § 2254(e)(2). As a result, that provision bars his contention that the district court should have conducted an evidentiary hearing, if we find that he “failed to develop the factual basis of a claim in State court proceedings.” 28 U.S.C. § 2254(e)(2); see Holland v. Jackson, 542 U.S. 649, 652-53, 124 S.Ct. 2736, 2738, 159 L.Ed.2d 683 (2004) (“Under the habeas statute, [the petitioner’s] statement could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed by § 2254(e)(2) were met.”); Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). To the extent that there is any factual basis for his claim other than that covered in the Wilson report, Chandler did fail to exercise due diligence in developing it. In the state courts, Chandler never pointed to any other evidence that he would attempt to introduce if given the chance. He never specified what additional evidence he might have.
There is another reason why the district court did not err in failing to conduct an evidentiary hearing on this claim. Except for the Wilson report, the factual aspects of which the state courts and the district court took as true for purposes of this claim, Chandler made no proffer to the district court of any evidence that he would seek to introduce at a hearing. The failure to proffer any additional evidence defeats Wilson’s argument that he was entitled to an additional evidentiary hearing in federal court. See Drew v. Dept. of Corrections, 297 F.3d 1278, 1293 (11th Cir.2002) (referring to “our clear precedent establishing that such allegations are not enough to warrant an evidentiary hearing in the absence of any specific factual proffer or evidentiary support”); Hill v. Moore, 175 F.3d 915, 922 (11th Cir.1999) (“To be entitled to an evidentiary hearing on this matter [an ineffective assistance of counsel claim], petitioner must proffer evidence that, if true, would entitle him to relief.”); see also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.1991) (“A petitioner is not entitled to an evidentiary hearing, however, when his claims are merely conclusory allegations unsupported by specifics.” (internal marks and citation omitted)).
For these reasons, we affirm the district court’s denial of Chandler’s petition for a writ of habeas corpus.
AFFIRMED.
Oba CHANDLER, Appellant v. STATE of Florida, Appellee.
No. SC11-2055.
Supreme Court of Florida.
Nov. 7, 2011.
Oba Chandler, a prisoner under three death sentences and an active death warrant, has appealed the denial of his successive motion for postconviction relief filed under Florida Rule of Civil Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On October 10, 2011, Governor Rick Scott signed a death warrant for Chandler and scheduled Chandler’s execution for November 15, 2011. Chandler, through appointed counsel, filed a successive postconviction motion in the circuit court in and for Pinellas County seeking to vacate his sentences of death. He contended that a new penalty phase should be ordered because Florida’s death penalty scheme is unconstitutional under the principles set forth in Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, the United States Supreme Court applied the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) — that any fact other than a prior conviction that increases the maximum possible sentence must be found by a jury — to capital cases.
Chandler did not seek an evidentiary hearing and raised purely legal issues below. After hearing legal argument of counsel at the case management conference, and after considering the motion, the State’s response, and Chandler’s memorandum of law, the circuit court entered its order on October 24, 2011, denying successive postconviction relief and denying a stay of execution. The circuit court also entered an order appointing appellate counsel to represent Chandler on appeal and notice of appeal was timely filed on October 24, 2011. Chandler has also moved this Court for a stay of execution. We affirm the order of the circuit court denying Chandler’s motion for successive postconviction relief and we deny his motion for a stay of execution.
On September 29, 1994, Oba Chandler was convicted of the 1989 first-degree murders of Joan Rogers and her two daughters, Michelle and Christe, whose bodies were found floating in Tampa Bay on June 4, 1989. Chandler was sentenced to death for each of the murders after a penalty phase proceeding in which the jury unanimously recommended death. On direct appeal, we affirmed his convictions and death sentences in Chandler v. State, 702 So.2d 186, 201 (Fla.1997). In June 1998, Chandler filed his initial postconviction motion under Florida Rule of Criminal Procedure 3.850, and in May 2000, he filed an amended motion asserting seven claims of ineffective assistance of trial counsel. We affirmed denial of his initial postcon-viction motion in Chandler v. State, 848 So.2d 1031, 1046 (Fla.2003). Chandler subsequently filed a petition for writ of habeas corpus in the federal district court raising claims of ineffective assistance of trial counsel, which was denied. Chandler v. Crosby, 454 F.Supp.2d 1137, 1185 (M.D.Fla.2006). Chandler obtained review in the Eleventh Circuit Court of Appeals and relief was again denied. Chandler v. McDonough, 471 F.3d 1360, 1363 (11th Cir.2006).
After Chandler’s death warrant was signed in the instant case on October 10, 2011, we issued an order providing that any further postconviction proceedings should be expeditiously filed in the circuit court. Chandler then filed a successive motion for postconviction relief in the circuit court contending that he is entitled to a new penalty phase proceeding based on Ring. The circuit court entered its order on October 24, 2011, denying Chandler’s successive motion to vacate his death sentences. The court correctly found that the successive motion is procedurally barred under Florida Rule of Criminal Procedure 3.851(d)(2) because it does not allege newly discovered evidence nor does it contend that there is a fundamental constitutional right that would apply retroactively in this case, and does not argue that Chandler’s counsel failed, through neglect, to file a proper motion. The circuit court also correctly concluded that Chandler’s Ring claim was barred because the United States Supreme Court and this Court have held that Ring is not retroactive to convictions and sentences that were final on direct review. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Johnson v. State, 904 So.2d 400, 412 (Fla.2005). Chandler’s convictions and three death sentences were affirmed by this Court in Chandler v. State, 702 So.2d 186, 201 (Fla.1997), and the mandate was issued. The United States Supreme Court then denied certiorari review in Chandler v. Florida, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). Thus, Ring does not apply retroactively to Chandler’s sentences.
In addition, the circuit court also correctly ruled that Ring does not apply to Chandler’s sentences because he had several prior violent felony convictions that served as aggravators, and prior convictions are exceptions to the requirements of Ring. Further, Chandler was convicted of three contemporaneous murders by the same jury that unanimously recommended he receive the death penalty. See Frances v. State, 970 So.2d 806, 822-23 (Fla.2007) (rejecting application of Ring when the death sentence was supported by the prior violent felony aggravating circumstance based on contemporaneous convictions for murder).
Accordingly, the order of the circuit court is hereby affirmed. No motion for rehearing will be entertained by this Court.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.