On April 16, 1996, Richard Montgomery told friends in Punta Gorda, Florida, that he was going out to make a few hundred dollars and would be back shortly. Asked whether it was legal, he smiled. He had told his mother that someone had offered him $200 to pose for nude pictures, and that he had recently met a nurse named Daniel Conahan. The next afternoon two Charlotte County storm utility engineers found a human skull in heavy woods off Highway 41, and deputies searching the spot found Montgomery's body. He had been strangled. Grooves on his neck, chest and wrists stopped short of his back, the pattern a body leaves when it has been tied to a tree, and a skull and a torso lying near him belonged to somebody else.
The grooves sent detectives back to a report from August 1994. A young man had told police that Conahan paid him to pose for photographs in the woods, tied him to a tree with new clothesline, sexually assaulted him and then tried for half an hour to strangle him, asking him why he would not die, before giving up and leaving. In May 1996 Conahan offered an undercover deputy in Kiwanis Park $150 to pose for nude photographs, and paint from his father's Mercury Capri proved indistinguishable from a chip found on Montgomery's body. Conahan waived a jury for the guilt phase. The judge found him guilty of premeditated murder and kidnapping and acquitted him of sexual battery, and a jury then recommended death.
These are the three opinions of the Supreme Court of Florida on that conviction: the direct appeal, affirmed in January 2003 over a partial dissent; the denial of his postconviction motion and habeas petition, affirmed in March 2013; and his claim under Hurst v. Florida, rejected in October 2018 over the dissent of Justice Quince. The remains found in the same woods over three years gave the case its name, the Hog Trail Murders, and Conahan was never charged with any of those other deaths. Florida executed him by lethal injection at Florida State Prison near Starke on September 10, 2026. He was seventy-two. Asked for a final statement, he said, "No sir."
One murder, one victim and one conviction. Nothing in these opinions attributes another death to Conahan, and the courts say nothing about the other bodies in the Charlotte County woods beyond the skull and torso that did not belong to Montgomery. The account of the 1994 attack reached the trial as Williams rule evidence, admitted to show a pattern; it is the survivor's testimony as the trial judge accepted it, and none of these opinions shows Conahan charged with that attack. Conahan maintained that he did not kill Montgomery, and the long 2013 opinion is mostly his lawyers' argument that the trial was unfair, including their attack on the mother's testimony that her son had named him. The court rejected all of it. His last appeals, over DNA testing in 2025 and 2026, came after these opinions and are not here.
We have taken the names of the living private people out of the text. The man who survived the 1994 attack appears as S.B.; Montgomery's friends are Bobby W. and G.M., the two county engineers who found the skull T.R. and M.T., and Conahan's aunt Betty W. The father and sister of Conahan's former partner in Chicago, who testified for him at the penalty phase, are R.L. and N.T., and the partner H.L. The courts refer to Montgomery's mother only as Mrs. Montgomery, and she stays that way. Deputies, the medical examiner, experts, lawyers and judges keep their names.
The text comes from the published reports and has only been rejoined into paragraphs. Footnotes from the 2003 and 2013 opinions sit at the end of each under their own heading, because the reference numbers in the text were not captured. The reporter's slips are left alone, among them a zero for the O in "Daniel 0. Conahan" and words broken across a printed line, such as "Co-nahan." Opinions of the Supreme Court of Florida are public records and may be reproduced in full.
Daniel O. CONAHAN, Jr., Appellant, v. STATE of Florida, Appellee.
No. SC00-170.
Supreme Court of Florida.
Jan. 16, 2003.
Rehearing Denied April 24, 2003.
James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
Charlie J. Crist, Jr., Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
This is an appeal from convictions for first-degree murder and kidnapping. The appellant was sentenced to death for the first-degree murder conviction and sentenced to fifteen years’ imprisonment for the kidnapping conviction. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm both convictions and sentences.
FACTS
On April 16, 1996, Richard Montgomery, who lived with his sister, was with Bobby W., G.M., and other friends when he mentioned that he was going out to make a few hundred dollars and would be back shortly. When asked whether it was legal, he smiled. Montgomery also told his mother that someone had offered to pay him $200 to pose for nude pictures, but he did not tell her who made the offer. In the same conversation, Montgomery mentioned that he had recently met the defendant Daniel 0. Conahan, Jr., who lived in Punta Gorda Isles and was a nurse at a medical center. The last time friends saw Montgomery alive was on April 16 between 4 p.m. and 7 p.m.
The next day, April 17, T.R. and M.T., who were storm utility engineers for Charlotte County, discovered a human skull in a remote, heavily wooded area off of Highway 41 and immediately notified the police department. While searching the scene, deputies found the nude body of a young, white male that was later identified as Richard Montgomery. He had visible signs of trauma to the neck, waist, and wrists, and the genitalia had been removed. The forensic lab personnel arrived and collected various items from the scene, including a rope found on the top of a nearby trash pile, carpet padding that covered the victim’s body, a skull and a torso (neither of which belonged to the victim), a gray coat, and various combings from the victim’s arms, hands, chest, pubic area, and thighs. On the following day, Deputy Todd Terrell arrived on the scene with a K-9 dog which showed significant interest in a sabal palm tree, specifically the side of the tree which was somewhat flattened and damaged.
An autopsy revealed that Montgomery died as a result of strangulation. He had two ligature marks on the front of his neck, two horizontal marks on the right side of his chest, and abraded grooves around his wrists. All of the grooves were of similar width, did not extend to Montgomery’s back, and were consistent with marks that would be left on an individual who had been tied to a tree.
Due to the unique nature of the homicide (being tied to a tree naked and then strangled), police reviewed a similar assault reported on August 15, 1994. The victim, S.B., was a high school drop-out who, like Montgomery, had difficulty keeping a steady job and had physical features similar to those of Montgomery. The report indicated that S.B. met Conahan, who offered to pay him $100 to $150 to pose for nude photographs. S.B. agreed and Conahan drove him to a rocky dirt road in a secluded area where Conahan pulled out a duffle bag with a tarp and a Polaroid camera. The two men headed into the woods where Conahan laid the tarp out and asked S.B. to take off his shirt and show a little hip. After taking numerous pictures of S.B., Conahan then took out a new package of clothesline so he could get some bondage pictures. He asked S.B. to step close to a nearby tree and then clipped the clothesline in several pieces, draping them over S.B. to make it look like bondage. Conahan moved behind S.B., snapped the rope tightly around him, pulled his hands behind the tree, placed ropes around his legs and chest, and wrapped the rope twice around S.B.’s neck. Conahan then performed oral sex on S.B. and attempted to sodomize him. S.B. fought to position himself in the middle of the tree while Conahan tried to pull him to the side to have anal sex. After many unsuccessful attempts, Conahan snapped the rope around S.B.’s neck, placed his foot against the tree, and pulled on the rope in an attempt to strangle S.B., who tried to slide around the tree to keep his windpipe open. Conahan hit S.B. in the head and unsuccessfully attempted to strangle him for thirty minutes. Conahan asked S.B. why he would not die and finally gave up, gathered his possessions, and left. S.B. freed himself, went to a local hospital, and received treatment for his injuries. The police located the crime scene and found that one of the melaleuca trees had ligature indentions that corresponded with S.B.’s injuries.
Based on this information, the police began an undercover investigation of Co-nahan. On May 24, 1996, Deputy Scott Clemens was approached by Conahan at Kiwanis Park, and Conahan offered Clemens $7 to show his penis or $20 if Clemens would allow Conahan to perform fellatio. Clemens refused the offer and the next day returned to the park where he again encountered Conahan, who offered him $150 to pose for nude photos.
On May 31, 1996, pursuant to a warrant, the police searched Conahan’s residence and vehicles and obtained paint samples from his father’s Mercury Capri, which Conahan occasionally used. The police then compared paint samples from the Capri with a paint chip from the victim’s body and found that they were indistinguishable.
On February 25, 1997, Conahan was indicted for first-degree premeditated murder, first-degree felony murder, kidnapping, and sexual battery of Richard Montgomery. In the guilt phase of his trial, Conahan waived his right to trial by jury. The State presented evidence of the manner in which the victim’s body was found and evidence obtained from the autopsy and the searches of Cona-han’s residence and vehicles. The State also presented evidence that on the day of Montgomery’s disappearance, April 16, 1996, at 6:07 p.m., Conahan’s credit card was used to purchase clothesline, Polaroid film, pliers, and a utility knife from a Wal-Mart store in Punta Gorda. Still photos showed that minutes later, at 6:12 p.m., Conahan withdrew funds from an ATM which was located close to the Wal-Mart.
The trial court permitted the State to introduce Williams rule evidence of S.B.’s attempted murder and sexual battery, ruling that the evidence was sufficiently similar to the evidence leading up to Montgomery’s death so as to constitute a unique modus operandi sufficient to establish the identity of Montgomery’s murderer. After the guilt phase of the trial was completed, the trial court found and adjudicated Conahan guilty of first-degree premeditated murder and kidnapping.
On November 1, 1999, the penalty phase of Conahan’s trial was conducted before a jury at which time photos taken at the crime scene of the victim’s body were published, and Deputy Gandy testified relative to the crime scene and how the body was found. Gandy further testified that during an interview Conahan told him that he had a fantasy involving bondage and sex.
The medical examiner, Dr. Carol Huser, testified regarding the autopsy report prepared by Dr. Imami. After examining Dr. Imami’s report and viewing the autopsy photographs, Dr. Huser concluded that Montgomery died by ligature strangulation. The autopsy photographs were published to the jury. Dr. Huser also testified that being killed in such a manner required applying pressure for a length of time notwithstanding the fact that the victim loses consciousness after only a few seconds. She further opined that to be killed by strangulation would be terrifying.
Conahan’s aunt, Betty W., testified on behalf of the defense that Conahan was a jovial, personable individual who participated in family activities and cared for his ailing mother before she died. R.L. and his daughter N.T., the father and sister of H.L., who was Conahan’s roommate and lover when he lived in Chicago, testified that Conahan was like another son and brother to them. Conahan was instrumental in helping Hal and Nancy overcome alcoholism, was considered one of the family, and was included in many family functions. Thereafter, the defense rested its case.
Before the jury deliberated, the trial court gave instructions relative to the following aggravators: (1) the murder was heinous, atrocious, or cruel (HAC); (2) the murder was cold, calculated, and premeditated (CCP); and (3) the murder was committed during the course of a kidnapping. By a vote of twelve to zero, the jury recommended the death penalty. A Spencer hearing was held on November 5, 1999, and on December 10, 1999, Conahan was sentenced to death for the first-degree murder of Richard Montgomery and to fifteen years’ imprisonment for kidnapping.
APPEAL
A Motion for Judgment of Acquittal
On appeal Conahan raises five issues. In his first two issues, he contends that the trial court erred in denying his motion for judgment of acquittal because the State’s circumstantial evidence was legally insufficient. We disagree.
As a general rule with regard to a motion for judgment of acquittal, “[t]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, [this Court] will not reverse.” State v. Law, 559 So.2d 187, 188 (Fla.1989). In addition,
[t]he court’s view of the evidence must be taken in the light most favorable to the state. The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.
Perry v. State, 801 So.2d 78, 84 (Fla.2001) (citing State v. Law, 559 So.2d 187, 189 (Fla.1989)). “The trial court’s finding denying a motion for judgment of acquittal will not be reversed on appeal if there is competent substantial evidence to support the jury’s verdict.” Id.
1. Premeditation
“Premeditation is defined as ‘more than a mere intent to kill; it is a fully formed conscious purpose to kill.’ ” Green v. State, 715 So.2d 940, 943 (Fla.1998) (quoting Coolen v. State, 696 So.2d 738, 741 (Fla.1997)). This purpose to kill must exist for sufficient time before the homicide “to permit reflection as to the nature of the act to be committed and the probable result of that act.” Id. at 944 (quoting Coolen, 696 So.2d at 741). However, premeditation may also “be formed in a moment and need only exist ‘for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.’ ” DeAngelo v. State, 616 So.2d 440, 441 (Fla.1993) (quoting Asay v. State, 580 So.2d 610, 612 (Fla.1991)). Premeditation can be demonstrated by circumstantial evidence. See Woods v. State, 733 So.2d 980, 985 (Fla.1999). As this Court has stated:
Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.
Green, 715 So.2d at 944 (quoting Holton v. State, 573 So.2d 284, 289 (Fla.1990)); see Gore v. State, 784 So.2d 418, 429 (Fla.2001).
In applying the abovementioned principles, the State presented competent, substantial evidence supporting Conahan’s conviction for first-degree premeditated murder. The official cause of Montgomery’s death was asphyxiation, secondary to ligature strangulation. Dr. Imami testified that there were two ligature marks on the victim’s neck and groove marks around his lower chest area and across his abdomen. Because the groove marks were only across the front and sides of the victim and not on his back, they were consistent with being tied to a tree. Montgomery also suffered extensive crisscross scratches and abrasions on his back which were consistent with an individual squirming or moving while being tied to a tree.
The State’s Williams rule evidence demonstrated that Conahan killed Montgomery in the same manner in which he attempted to kill S.B. Montgomery and S.B. were similar physically; neither one completed high school; both had difficulty in maintaining employment and were in need of money when Conahan solicited them to pose nude for money in a secluded wooded area. Both were tied to a tree and suffered similar abrasions and ligature wounds.
Because the circumstantial evidence standard does not require the fact-finder to believe the defense’s version of the facts on which the State has produced conflicting evidence, the factfinder, in this case the trial judge, properly concluded that Conahan’s hypothesis of innocence was rebutted by competent, substantial evidence. See Woods v. State, 733 So.2d 980, 986 (Fla.1999); Crump v. State, 622 So.2d 963, 971 (Fla.1993). Based upon the manner of Montgomery’s death, his ante-mortem injuries, and the Williams rule evidence relative to the attempted sexual battery and attempted murder of S.B., the State presented sufficient evidence to prove premeditation. Accordingly, we affirm the trial court’s denial of the motion for judgment of acquittal.
2. Kidnapping
In his second issue, Conahan contends that the trial court erred in denying his motion for judgment of acquittal on the kidnapping charge because the State’s circumstantial evidence was legally insufficient to establish that the victim did not consent to being tied to a tree for the purpose of posing for nude bondage photos. We disagree.
On April 17, 1996, the day after Montgomery’s death, his body was found in a secluded, wooded area. Dr. Imami, the medical examiner who conducted Montgomery’s autopsy, testified during the guilt phase to the following injuries that Montgomery sustained: (1) ligature wounds or well-depressed grooves to the neck which appeared to be caused by some type of rope; (2) ligature wounds to the lower portion of the chest; (3) crisscrossed abrasions on the back which Dr. Imami believed were inflicted after death or at the time of death; and (4) ligature marks on Montgomery’s wrists and lower legs. Dr. Imami opined that the ligature wounds on Montgomery’s neck and chest area occurred before death.
The trial court made the following finding in its sentencing order:
1. The crime was committed while the defendant was engaged in the commission of kidnapping. The indictment in this case charged the defendant with kidnapping the victim as well as the first-degree murder of the victim. As noted above, the Court found the defendant guilty of both offenses. While the victim apparently went willingly with the defendant to the crime scene to participate in something of a nude photographic bondage session, it is ludicrous to conclude that he consented to the lethal form of bondage made apparent by the wounds to his body prior to his death. The pre-mortem wounds to his body reflect a struggle for his life. His wrists and lower body all bore ligature wounds; his back bore criss-cross scratchings produced by his struggle while being tied to a tree or other such rough surface. It is obvious that during his ordeal he was confined or imprisoned against his will. Such confinement against his will was for the obvious purpose of inflicting bodily harm upon the victim or terrorizing him.
We conclude that the State presented competent, substantial evidence to prove a prima facie case of kidnapping. Based upon the victim’s extensive antemortem ligature wounds and abrasions on his back, the victim was confined against his will at some point and apparently struggled for his life. See Sochor v. State, 619 So.2d 285 (Fla.1993); Gore v. State, 599 So.2d 978 (Fla.1992); Bedford v. State, 589 So.2d 245 (Fla.1991); Mines v. State, 390 So.2d 332 (Fla.1980). Furthermore, S.B.’s testimony relative to his nearly fatal encounter with the defendant established a common scheme of luring young men into a secluded, wooded area for sexual pleasure and murdering them under the guise of posing for nude bondage pictures. See Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1318 n. 14 (1995) (finding that circumstantial evidence of prior kidnapping established pattern of behavior constituting a common scheme). Accordingly, we affirm the trial court’s denial of Conahan’s motion for judgment of acquittal relative to the kidnapping charge.
B. Jury Instructions
In his third issue, Conahan contends that the trial court erred by instructing the jury on the following two aggravating factors: (1) the murder was cold, calculated, and premeditated (CCP); and (2) the murder was committed during the course of a kidnapping. Again, we disagree.
This Court defined the CCP aggravating factor as follows:
[I]n order to find the CCP aggravating factor under our case law, the jury must determine that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification.
Jackson v. State, 648 So.2d 85, 89 (Fla.1994) (citations omitted). In order to prove the existence of the CCP aggravating factor, the State must demonstrate a heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill. See Bell v. State, 699 So.2d 674, 677 (Fla.1997).
In finding the CCP aggravator, the trial court ruled as follows in its sentencing order:
2. The crime was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. Shortly before picking up the victim, the defendant purchased rope, side-cutter pliers, and a sharp utility knife. The rope was the same type and size as that used to strangle Richard Montgomery; it was remarkably similar to the type used roughly two years earlier by the defendant in his attempt to strangle S.B. The evidence of the attempted strangulation of S.B. was admitted into the guilt phase trial before the court as Williams rule evidence—Williams v. State, 110 So.2d 654 (Fla.1959)—but it was not admitted in the penalty phase trial before the jury. The implements of bondage, strangulation, and cutting were the same in both instances; the pretense of posing for bondage photos was the same; the ligature wounds to the neck and throat of S.B., who managed to survive, and Richard Montgomery, who did not, were strikingly similar. The court discusses these similarities in the context of the sentencing issue only because of the relevance to this aggravator. The method, techniques, and other similarities evidence a cold, calculated, systematic approach to luring Richard Montgomery to the area where he was killed after being tricked into a bondage situation, from which he could not escape. The purchases and methodology employed by the defendant in preparing for this crime manifest the same type of heightened premeditation found in Jennings v. State, 718 So.2d 144 (Fla.1998), and Bell v. State, 699 So.2d 674 (Fla.1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1067, 140 L.Ed.2d 127 (1998). The State has proven this aggravating factor beyond a reasonable doubt.
Based upon the evidence presented by the State, we agree with the trial court’s findings and conclusion that the CCP aggravating factor was established, and the trial court properly instructed the jury relative to that aggravator. See Ford v. State, 802 So.2d 1121, 1133 (Fla.2001) (“A trial court may give a requested jury instruction on an aggravating circumstance if the evidence adduced at trial is legally sufficient to support a finding of that aggravating circumstance.”).
Conahan’s claim that the jury should not have been instructed regarding murder committed during the course of a kidnapping is procedurally barred. Because Conahan failed to object to the jury instruction, he did not properly preserve it for appellate review. Thus, this Court will not review its merits. See Bell v. State, 699 So.2d 674, 678 (Fla.1997) (concluding that the defendant’s issue relative to the trial court’s error in instructing the jury on the CCP aggravating circumstance was procedurally barred because he failed to preserve the issue); Geralds v. State, 674 So.2d 96, 98 (Fla.1996) (holding that defendant’s issue regarding the constitutionality of two jury instructions was not preserved because defendant failed to object with specificity in the trial court below).
C. Prosecutorial Comments
In his fourth claim, Conahan contends that the prosecutor violated his right to a fair trial by making improper comments in both his opening and closing statements to the jury in the penalty phase of the trial.
1. Prosecutor’s Opening Statement
“The purpose of an opening statement is for counsel to outline the facts expected to be proved at trial. It is not the appropriate place for argument.” First v. State, 696 So.2d 1357, 1358 (Fla. 2nd DCA 1997). Moreover, although “the rule against inflammatory and abusive argument by a state’s attorney is clear, each case must be considered upon its own merits and within the circumstances pertaining when the questionable statements were made.” Muehleman v. State, 503 So.2d 310, 317 (Fla.1987) (quoting Bush v. State, 461 So.2d 936, 941 (Fla.1984)).
In his opening statement to the jury during the penalty phase, the prosecutor stated:
[PROSECUTOR]: The evidence will further show that the motive, the why that this crime occurred, again, to move from the mind of the Defendant Daniel Conahan to actually say that is he began to put it into plan, put the plan into effect in 1994, that is he moved beyond a reasonable doubt thinking about this fantasy to attempting to act it out.
The evidence will show in 1994, the Defendant while cruising Lyons Park in South Fort Myers—
[DEFENSE COUNSEL]: May we approach the bench, Your Honor.
[COURT]: Yes.
Defense counsel objected to the prosecutor’s statement relative to Conahan’s seduction and attempted strangulation of S.B. The Williams rule evidence was the subject of Conahan’s motion in limine which the trial court had not ruled upon. Defense counsel argued that it would be appropriate for the State to approach the bench and obtain permission to elicit Williams rule testimony in light of the trial court’s reserved ruling. Defense counsel believed that the court’s reserved ruling also applied to comments about Williams rule evidence in the opening statement. The State argued that it was only commenting upon the evidence it would present to support one of the three aggravating circumstances that would be proved during the penalty phase: that the murder was cold, calculated, and premeditated (CCP). The trial court ruled as follows:
[COURT]: Well, I don’t know. We’re not talking about S.B. Yet, I’m not telling you that I’m going to admit S.B., but I’m going to rule the State is entitled to make a case of cold, calculated premeditation, to that extent. I’m going to allow it. All right. Please proceed.
During the penalty phase, the State called witness Deputy Pedro Soto to the stand. Before Soto was questioned about the Williams rule evidence, the prosecutor requested a ruling from the trial court regarding its admissibility. The trial court finally ruled that the Williams rule evidence was inadmissible in the penalty phase due to its overwhelming prejudicial effect.
Even though the State is entitled to present its version of the facts in its opening statement, see Rhodes v. State, 638 So.2d 920 (Fla.1994), we find that the trial court abused its discretion when it allowed the State to comment upon Cona-han’s attempted murder and attempted sexual battery of S.B. in its opening statement to the penalty phase jury. The trial court had the admissibility of that very evidence under advisement. Accordingly, it was improper for the State to comment in its opening statement upon evidence that was under advisement and which was ultimately determined to be inadmissible in the penalty phase of the trial.
The next inquiry is whether the prosecutor’s comments were so prejudicial as to vitiate the entire trial. See Woodel v. State, 804 So.2d 316, 323 (Fla.2001). The State’s improper remarks relative to the S.B. incident in the penalty phase cannot be “presumed harmful” regarding Conahan’s guilt or innocence because he had already been found guilty of first-degree premeditated murder in the guilt phase of the trial. See Gore v. State, 719 So.2d 1197, 1199 (Fla.1998). Second, before the parties gave their opening statements in the penalty phase, the trial court instructed the jury that opening remarks were not evidence and again reiterated those instructions at the end of closing arguments. See Massachusetts v. Simpson, 434 Mass. 570, 750 N.E.2d 977, 992 (2001) (finding that defendant’s substantial rights were not affected where the trial court twice instructed the jury that the attorneys’ opening and closing statements were not evidence); Barnes v. Arkansas, 346 Ark. 91, 55 S.W.3d 271, 279 (2001) (same). Furthermore, “the purpose of opening argument is to outline what an attorney expects to be established by the evidence,” Occhicone v. State, 570 So.2d 902, 904 (Fla.1990), and our review of the record reveals the prosecutor’s good faith attempt to do that. For these reasons, we hold that the prosecutor’s opening comments relative the Williams rule evidence in the penalty phase constituted harmless error.
2. Prosecutor’s Closing Statement
In closing argument, counsel is permitted to review the evidence and fairly discuss and comment upon properly admitted testimony and logical inferences from that evidence. See Mann v. State, 603 So.2d 1141, 1143 (Fla.1992) (“The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.”); Bertolotti v. State, 476 So.2d 130 (Fla.1985). A prosecutor may refer to the evidence as it exists before the jury and comment on the un-contradicted or uncontroverted nature of it during closing argument so long as it is not susceptible to being interpreted as a comment on the defendant’s failure to testify. See Rodriguez v. State, 753 So.2d 29, 37-38 (Fla.2000).
One of the two preserved prosecu-torial comments that Conahan challenged was as follows:
Clearly, early in his life, he was capable of and did do some good and commendable things. And yet, he makes this choice to do evil later in his life so hard to understand. He wasn’t abused. He wasn’t mistreated. There was no evidence of mental difficulties or substance abuse or drug abuse. No financial—
Conahan timely objected and complained that the prosecutor remarked upon the lack of certain mitigating factors. The trial court overruled the objection.
The record reflects that in light of Cona-han’s presentation of mitigating evidence, the prosecutor commented in his closing argument that there was no evidence presented regarding other possible mitigators. He pointed out that Conahan did not show that he suffered from prior child abuse or drug abuse, or had a history of mental difficulties and mistreatment. In making such a remark, the prosecutor was commenting upon the lack of certain mitigating evidence. His comment did not implicate the defendant’s right to remain silent; rather, it concerned the dearth of mitigating evidence. See People v. Lewis, 25 Cal.4th 610, 106 Cal.Rptr.2d 629, 22 P.3d 392, 433 (2001) (holding that the prosecutor’s reference to the nonexistence of mitigating evidence was not a comment on the defendant’s failure to testify). We find that the assistant state attorney’s remark was not improper and affirm the trial court’s ruling.
The other preserved prosecutorial comment was provided as follows:
As I was going home last night I thought about this case and I thought about the remarks that I might make to you today and actually stopped and wrote some things down. I have found that when I get these ideas, if I don’t write them down, I often forget them. Here’s what I wrote down and I’ll close with this: Mercy for a defendant means nothing if we do not also honor justice for the victim. The statutory scheme in Florida attempts to strike a balance between the equally important values in our society of mercy to a defendant and justice to a victim. It attempts—
This Court has consistently held that it is improper during closing argument for the prosecutor to encourage the jury to show a defendant the same amount of mercy as he showed his victim because such argument tends to unnecessarily appeal to the sympathies of the jury. See Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992) (finding that the prosecutor committed error in asking the jury to show the defendant as much pity as he showed his victim); Rhodes v. State, 547 So.2d 1201, 1206 (Fla.1989) (finding that the prosecutor’s argument that jury show defendant same mercy shown to the victim on the day of her death was “an unnecessary appeal to the sympathies of the jurors, calculated to influence their sentence recommendation”).
In the present case, the prosecutor spoke of mercy; however, he did not urge the jury to show the defendant as much mercy as he showed his victim. The prosecutor made the statement that there is a balancing act between mercy for a defendant and justice for the victim. We find that the prosecutor’s remark did not inflame or unnecessarily evoke the sympathies of the jury. Accordingly, we affirm the trial court’s ruling.
In regard to other prosecutorial comments that Conahan raised on appeal, he failed to object to them in the trial below; thus, he failed to properly preserve those comments for appellate review. See Chandler v. State, 702 So.2d 186, 191 (Fla.1997); Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). The only exception to this procedural bar “is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Brooks v. State, 762 So.2d 879, 899 (Fla.2000) (quoting McDonald v. State, 743 So.2d 501, 505 (Fla.1999)); see Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998); Bonifay v. State, 680 So.2d 413, 418 n. 9 (Fla.1996). Having reviewed the prosecutor’s entire closing argument in light of the unobject-ed-to comments, none of the comments, individually or collectively, rose to the level of fundamental error. Furthermore, we conclude that the unobjected-to comments, when viewed in conjunction with the objected-to comments, did not deprive Cona-han of a fair penalty phase hearing. See Evans v. State, 808 So.2d 92 (Fla.2001), cert. denied, — U.S. -, 123 S.Ct. 416, 154 L.Ed.2d 297 (2002).
D. Admissibility of Autopsy Photographs
In his fifth issue, Conahan contends that the trial court violated his right to a fair trial by admitting inflammatory autopsy photos and certain photos from the crime scene. Admissibility of photographic evidence of a murder victim is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent abuse. See Gudinas v. State, 693 So.2d 953 (Fla.1997).
Relevancy, not necessity, is the test for admissibility of photographic evidence of a murder victim. See Ruiz v. State, 743 So.2d 1, 8 (Fla.1999); Pope v. State, 679 So.2d 710 (Fla.1996). Such photographs are relevant where they are used to “explain a medical examiner’s testimony, to show the manner of death, the location of wounds, and the identity of the victim.” Larkins v. State, 655 So.2d 95, 98 (Fla.1995). Admission of allegedly offensive photographs is appropriate where they are independently relevant or corroborative of other evidence. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990).
Based upon the State’s arguments, the photos of the crime scene and the autopsy were relevant for the following reasons: (1) to prove the proposed aggra-vator, CCP; (2) to explain the medical examiner’s testimony; and (3) to show the nature and circumstances of the crime. See Mansfield v. State, 758 So.2d 636, 648 (Fla.2000), cert. denied, 532 U.S. 998, 121 S.Ct. 1663, 149 L.Ed.2d 644 (2001); Rutherford v. Moore, 774 So.2d 637, 647 (Fla.2000); Willacy v. State, 696 So.2d 693, 695 (Fla.1997). Thus, we find that the trial court properly admitted the photos into evidence. See Halliwell v. State, 323 So.2d 557, 560 (Fla.1975) (“Those who create crimes of violence often must face the record of their deeds in court.”).
PROPORTIONALITY
This Court performs proportionality review to prevent the imposition of “unusual” punishments contrary to article I, section 17 of the Florida Constitution. See Tillman v. State, 591 So.2d 167, 169 (Fla.1991). In deciding whether death is a proportionate penalty, this Court must consider the totality of the circumstances of the case and compare the case with other capital cases. See Urbin v. State, 714 So.2d 411, 416-17 (Fla.1998). It is not a comparison between the number of aggravating and mitigating circumstances. See Rogers v. State, 783 So.2d 980, 1002 (Fla.2001); Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Therefore, this Court must determine whether the imposition of the death penalty in this case is proportionate when compared to similar crimes.
The trial court found three aggravating factors beyond a reasonable doubt: (1) that the murder was committed during the course of a kidnapping; (2) that the murder was cold, calculated, and premeditated (CCP); and (3) that the murder was heinous, atrocious, or cruel (HAC). The trial court rejected Conahan’s only statutory mitigating factor, consent of the victim. Conahan collectively presented five non-statutory mitigating factors, and the trial court gave the first three some weight, rejected the fourth one, and gave the fifth one little weight.
After reviewing the circumstances in the instant case, we find that the death penalty is proportionate when compared to other cases in which death was found to be the appropriate penalty. See Hauser v. State, 701 So.2d 329 (Fla.1997) (finding death sentence proportionate where the victim was strangled and the trial court found the three aggravators of heinous, atrocious, or cruel; cold, calculated, and premeditated; and pecuniary gain balanced against one statutory mitigator and four nonstatutory mitigators); Arbelaez v. State, 626 So.2d 169 (Fla.1993) (affirming imposition of the death penalty where trial court found the three aggravators of heinous, atrocious, or cruel; cold, calculated, and premeditated; and murder committed during a kidnapping balanced against one statutory miti-gator and one nonstatutory mitigator); Mann v. State, 603 So.2d 1141 (Fla.1992) (upholding death sentence for murder where the trial court found the aggravating circumstances of prior violent felony, murder during the commission of a felony, and the murder was heinous, atrocious, or cruel and several nonstatutory mitigating circumstances, including remorse).
Accordingly, we affirm the convictions and sentences, including the sentence of death.
It is so ordered.
PARIENTE, LEWIS, and QUINCE, JJ., and SHAW, Senior Justice, concur.
HARDING, Senior Justice, concurs in part and dissents in part with an opinion, in which WELLS, J., concurs.
ANSTEAD, C.J., concurs as to the conviction and concurs in result only as to the sentence.
[OPINION BY HARDING, Senior Justice, type=concurring-in-part-and-dissenting-in-part]
HARDING, Senior Justice,
concurring in part and dissenting in part.
I disagree with the majority’s conclusion that “it was improper for the State to comment in its opening statement upon evidence that was under advisement and which was ultimately determined to be inadmissible in the penalty phase of the trial.” Not only is this conclusion reached without citing to any specific authority, it departs from the reasonable latitude permitted counsel during opening statements to discuss what evidence counsel intends to present during trial and the reasonable inferences that can be drawn therefrom.
Opening remarks are not evidence, and the purpose of opening argument is to outline what the attorney expects to be established by evidence. See Occhicone v. State, 570 So.2d 902, 904 (Fla.1990) (citing Whitted v. State, 362 So.2d 668 (Fla.1978)). Indeed, the relevant part of the Florida Standard Jury Instruction in Criminal Cases governing pretrial instructions and the instruction specifically given in this case provides:
At the beginning of the trial the attorneys will have an opportunity, if they wish, to make an opening statement. The opening statement gives the attorneys a chance to tell you what evidence they believe will be presented during the trial. What the lawyers say is not evidence, and you are not to consider it as such.
Fla. Std. Jury Instr. 2.1 (emphasis added).
Frequently, attorneys make statements in opening that they reasonably expect the evidence to support, only to have witnesses change their testimony or become unavailable. Such comments are not reversible error....
... It cannot be error in opening statement to outline the case which counsel anticipates proving through the evidence and witnesses, even though circumstances change before the end of the trial.
Goutis v. Express Transport, Inc., 699 So.2d 757, 763 (Fla. 4th DCA 1997).
Here the issue was raised by defense counsel, and after deliberation at sidebar, the trial judge permitted the prosecutor to refer to evidence which was the subject of a pending motion in limine during the prosecutor’s opening statement. I cannot say that the judge abused his discretion. It was my experience as a trial judge that counsel makes an opening statement at his or her own peril. That is, if counsel fails to present evidence as promised during the opening statement, opposing counsel is free to expose this omission to the trier of fact and, in effect, undermine the credibility of counsel’s presentation. Indeed, the practice of pointing out “undelivered” promises of evidence has been a tactic for attorneys for time untold, and counsel who speaks of potentially inadmissible evidence during opening statement therefore runs the risk of such exposure by opposing counsel.
Finally, although the majority cites to no specific authority supporting its conclusion, appellant contends that the instant case is similar to Gore v. State, 719 So.2d 1197 (Fla.1998), and requires reversal. Quite unlike Gore, however, where the prosecutor blatantly disregarded a specific pretrial ruling concerning extremely prejudicial information, here the prosecutor had every reason to believe that testimony by and about the victim in the S.B. incident would be admissible since it had been allowed following the trial court’s admission of it in the guilt phase. There was- no specific prior adverse ruling. Moreover, unlike counsel in Gore, here the prosecutor complied with the trial court’s ruling by approaching the bench prior to introducing the evidence at issue.
Given the above analysis and the broad discretion afforded trial courts in controlling opening statements, see Fernandez v. State, 730 So.2d 277, 281 (Fla.1999), I would therefore conclude, contrary to the majority’s position, that the trial court did not abuse its discretion when it permitted the State to refer to evidence which was the subject of a pending motion in limine during its opening statement.
WELLS, J., concurs.
Williams v. State, 110 So.2d 654 (Fla.1959).
Dr. Imami, the medical examiner who conducted the autopsy of Richard Montgomery, was out of the country and unavailable to testify at the penalty phase. .Spencer v. State, 615 So.2d 688 (Fla.1993).
In the present case, the trial judge was the trier of fact in the guilt phase.
Section 787.01(l)(a), Florida Statutes (1995), defines kidnapping as follows: The term "kidnapping" means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to: 1. Hold for ransom or reward or as a shield or hostage. 2. Commit or facilitate commission of any felony. 3. Inflict bodily harm upon or to terrorize the victim or another person. 4. Interfere with the performance of any governmental or political function.
Dr. Imami noted that the ligature marks appeared only on the front portion of Montgomery's body. They did not appear on his back, which was consistent with Montgomery being tied to a tree or post.
The trial court ruled as follows on the admissibility of the Williams rule evidence in the penalty phase: So I’m just going to resolve that issue on any Williams rule evidence by requiring the State before it makes an offer or asks a question that would elicit Williams rule testimony to approach the bench with defense counsel and let us argue at that point the admissibility on the proffered Williams rule evidence.
Conahan waived his right to a jury during the guilt phase; however, a jury was present during the penalty phase.
In supplemental briefing and a notice of supplemental authority, Conahan asserts that he is entitled to relief pursuant to the United States Supreme Court’s recent opinions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693,(Fla. 2002), cert. denied, 123 S.Ct. 662(2002), and King v. Moore, 831 So.2d 143 (Fla.2002), cert. denied, 123 S.Ct. 657 (2002), and denied relief. We therefore find that Conahan is likewise not entitled to relief.
Conahan’s collective nonstatutory miti-gators were as follows: (1) loyalty, affection, and service to his parents; (2) self-improvement by enrolling in nursing school; (3) ability to maintain good familial relationships; (4) open, unselfish, polite personality; and (5) hardworking character.
The trial court certainly did not react as if there had been a blatant disregard of an earlier ruling, and in fact there was not. At a hearing prior to the penalty phase proceeding the trial court reserved ruling on Williams rule evidence "by requiring the state before it makes an offer or asks a question that would. elicit Williams rule testimony to approach the bench with defense counsel and let us argue at that point the admissibility of the proffered Williams rule evidence.” (Emphasis added.) The trial court did not state or intend to so limit opening statements.
Daniel O. CONAHAN, Jr., Appellant, v. STATE of Florida, Appellee. Daniel O. Conahan, Jr., Petitioner, v. Michael D. Crews, etc., Respondent.
Nos. SCI 1-615, SC11-2504.
Supreme Court of Florida.
March 21, 2013.
Rehearing Denied July 18, 2013.
Neal Andre Dupree, Capital Collateral Regional Counsel, William McKinley Hen-nis, III, Litigation Director, and Craig Joseph Trocino, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for AppellanVPetitioner.
Pamela Jo Bondi, Attorney General and Charmaine Millsaps, Assistant Attorney General, Tallahassee, Florida, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Daniel 0. Conahan, Jr., appeals an order of the circuit court denying his motion filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. For the reasons that follow, we affirm the denial of his postconviction motion and deny his habeas petition.
I. BACKGROUND
Conahan was convicted of the 1996 first-degree murder and kidnapping of Richard Montgomery. The facts of this case were fully set out by this Court on direct appeal:
On April 16, 1996, Richard Montgomery, who lived with his sister, was with Bobby W., G.M., and other friends when he mentioned that he was going out to make a few hundred dollars and would be back shortly. When asked whether it was legal, he smiled. Montgomery also told his mother that someone had offered to pay him $200 to pose for nude pictures, but he did not tell her who made the offer. In the same conversation, Montgomery mentioned that he had recently met the defendant Daniel 0. Conahan, Jr., who lived in Punta Gorda Isles and was a nurse at a medical center. The last time friends saw Montgomery alive was on April 16 between 4 p.m. and 7 p.m.
The next day, April 17, T.R. and M.T., who were storm utility engineers for Charlotte County, discovered a human skull in a remote, heavily wooded area off of Highway 41 and immediately notified the police department. While searching the scene, deputies found the nude body of a young, white male that was later identified as Richard Montgomery. He had visible signs of trauma to the neck, waist, and wrists, and the genitalia had been removed. The forensic lab personnel arrived and collected various items from the scene, including a rope found on the top of a nearby trash pile, carpet padding that covered the victim’s body, a skull and a torso (neither of which belonged to the victim), a gray coat, and various combings from the victim’s arms, hands, chest, pubic area, and thighs. On the following day, Deputy Todd Terrell arrived on the scene with a K-9 dog which showed significant interest in a sabal palm tree, specifically the side of the tree which was somewhat flattened and damaged.
An autopsy revealed that Montgomery died as a result of strangulation. He had two ligature marks on the front of his neck, two horizontal marks on the right side of his chest, and abraded grooves around his wrists. All of the grooves were of similar width, did not extend to Montgomery’s back, and were consistent with marks that would be left on an individual who had been tied to a tree.
Due to the unique nature of the homicide (being tied to a tree naked and then strangled), police reviewed a similar assault reported on August 15, 1994. The victim, S.B., was a high school drop-out who, like Montgomery, had difficulty keeping a steady job and had physical features similar to those of Montgomery. The report indicated that S.B. met Conahan, who offered to pay him $100 to $150 to pose for nude photographs. S.B. agreed and Cona-han drove him to a rocky dirt road in a secluded area where Conahan pulled out a duffle bag with a tarp and a Polaroid camera. The two men headed into the woods where Conahan laid the tarp out and asked S.B. to take off his shirt and show a little hip. After taking numerous pictures of S.B., Conahan then took out a new package of clothesline so he could get some bondage pictures. He asked S.B. to step close to a nearby tree and then clipped the clothesline in several pieces, draping them over S.B. to make it look like bondage. Conahan moved behind S.B., snapped the rope tightly around him, pulled his hands behind the tree, placed ropes around his legs and chest, and wrapped the rope twice around S.B.’s neck. Conahan then performed oral sex on S.B. and attempted to sodomize him. S.B. fought to position himself in the middle of the tree while Conahan tried to pull him to the side to have anal sex. After many unsuccessful attempts, Conahan snapped the rope around S.B.’s neck, placed his foot against the tree, and pulled on the rope in an attempt to strangle S.B., who tried to slide around the tree to keep his windpipe open. Conahan hit S.B. in the head and unsuccessfully attempted to strangle him for thirty minutes. Conahan asked S.B. why he would not die and finally gave up, gathered his possessions, and left. S.B. freed himself, went to a local hospital, and received treatment for his injuries. The police located the crime scene and found that one of the melaleuca trees had ligature indentions that corresponded with S.B.’s injuries.
Based on this information, the police began an undercover investigation of Conahan. On May 24, 1996, Deputy Scott Clemens was approached by Cona-han at Kiwanis Park, and Conahan offered Clemens $7 to show his penis or $20 if Clemens would allow Conahan to perform fellatio. Clemens refused the offer and the next day returned to the park where he again encountered Cona-han, who offered him $150 to pose for nude photos.
On May 31, 1996, pursuant to a warrant, the police searched Conahan’s residence and vehicles and obtained paint samples from his father’s Mercury Capri, which Conahan occasionally used. The police then compared paint samples from the Capri with a paint chip from the victim’s body and found that they were indistinguishable.
On February 25, 1997, Conahan was indicted for first-degree premeditated murder, first-degree felony murder, kidnapping, and sexual battery of Richard Montgomery. In the guilt phase of his trial, Conahan waived his right to trial by jury. The State presented evidence of the manner in which the victim’s body was found and evidence obtained from the autopsy and the searches of Cona-han’s residence and vehicles. The State also presented evidence that on the day of Montgomery’s disappearance, April 16, 1996, at 6:07 p.m., Conahan’s credit card was used to purchase clothesline, Polaroid film, pliers, and a utility knife from a Wal-Mart store in Punta Gorda. Still photos showed that minutes later, at 6:12 p.m., Conahan withdrew funds from an ATM which was located close to the Wal-Mart.
The trial court permitted the State to introduce Williams[ ] rule evidence of S.B.’s attempted murder and sexual battery, ruling that the evidence was sufficiently similar to the evidence leading up to Montgomery’s death so as to constitute a unique modus operandi sufficient to establish the identity of Montgomery’s murderer.
Conahan v. State, 844 So.2d 629, 632-34 (Fla.2003).
After a bench trial, Conahan was found guilty of the first-degree premeditated murder and kidnapping of Richard Montgomery. The penalty phase was conducted on November 1, 1999, before a jury. Id. at 634. The medical examiner testified that Montgomery died by ligature strangulation. Id. The defense also presented testimony from Conahan’s aunt, Betty W., “that Conahan was a jovial, personable individual who participated in family activities and cared for his ailing mother before she died.” Id. Additionally, the father and sister of Conahan’s former lover, H.L., testified to the good things that Conahan had done for the family and that he was like a member of their family. Id.
The jury unanimously recommended the death penalty, and Conahan was sentenced to death for the first-degree murder of Richard Montgomery and to fifteen years’ imprisonment for kidnapping. Id. On direct appeal, this Court affirmed both convictions and sentences, id. at 643, and the United States Supreme Court denied cer-tiorari, Conahan v. Florida, 540 U.S. 895, 124 S.Ct. 240, 157 L.Ed.2d 172 (2003).
In October 2009, Conahan filed a motion for postconviction relief asserting twenty-claims. The circuit court granted an evi-dentiary hearing on several of the claims, while summarily denying others. Following the evidentiary hearing in June 2010, the circuit court entered an order denying postconviction relief on all claims, concluding they were either procedurally barred, conclusively refuted by the record, facially or legally insufficient as alleged, or without merit as a matter of law.
Conahan appeals the circuit court’s denial of postconviction relief and also petitions this Court for a writ of habeas corpus.
II. POSTCONVICTION MOTION
A. Ineffective During the Guilt Phase
Conahan argues that his trial counsel provided ineffective assistance during the guilt phase for: (1) failing to demand a Richardson hearing; (2) failing to secure a forensic audio expert; and (3) failing to object to and challenge the Williams rule evidence. Because Conahan has failed to establish the requirements necessary for relief, we affirm the circuit court’s denial.
Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court explained that for ineffective assistance of counsel claims to be successful, two prongs must be established:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).
Regarding the first prong of the Strickland standard, there is a strong presumption that counsel’s performance was not deficient, and it is the defendant’s burden to overcome this presumption. Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052. Additionally, every effort must be made to eliminate the effects of hindsight and “to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052.
The second prong of Strickland requires that the defendant prove prejudice resulted from the deficient performance. In order to prove prejudice, a defendant must show that, but for counsel’s deficiency, there is a reasonable probability that there would have been a different outcome. Henry v. State, 948 So.2d 609, 617 (Fla.2006). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).
1. Failure to Demand a Richardson Hearing
First, Conahan claims that trial counsel was ineffective for failing to demand a Richardson hearing when Mrs. Montgomery, the victim’s mother, testified to a matter that was not in the transcript of the recorded statement she gave to law enforcement. Specifically, during cross-examination, Mrs. Montgomery testified that her son had told her he had met a man named Conahan and on re-direct stated that her son had told her that Conahan lived in Punta Gorda Isles, was a nurse, and had been in the Navy. When asked why she had never told this information to police she stated that she “thought” she had when she gave her recorded statement, proposing that the information was described as “inaudible” in the transcript. Because Conahan has failed to establish deficiency or prejudice, we affirm the circuit court’s denial of this claim.
Specifically, Conahan has failed to demonstrate how counsel’s actions were not reasonable given the facts of the case and counsel’s perspective at the time. Trial counsel testified at the evidentiary hearing that he did not object to the testimony because it was elicited as a result of a direct question on cross-examination and he could not figure out a way to “unring the bell.” Instead, trial counsel attempted to impeach Mrs. Montgomery’s testimony. This Court has held that counsel will not be held ineffective if “alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).
Additionally, Conahan failed to establish prejudice. Even if Mrs. Montgomery’s testimony was stricken after a Richardson hearing, the outcome would have been the same and confidence is not undermined because there was other evidence linking the victim and Conahan, such as the testimony of Bobby W. and Newman. Newman had been Conahan’s cellmate at one time and testified at trial that Conahan had told him he knew the victim, Mr. Montgomery. Specifically, Newman testified that Conahan had said he had been on beer runs with Montgomery, had been to Montgomery’s house, and that “Montgomery was a mistake.” And Bobby W. and the victim were roommates at one time, and Bobby W. testified that Conahan had come to his home looking for Montgomery.
Accordingly, because Conahan has failed to establish both prongs of Strickland, he is not entitled to relief on this claim.
2. Failure to Secure a Forensic Audio Expert
Next, Conahan claims that trial counsel was ineffective for failing to secure an audio expert to analyze the inaudible portions of Mrs. Montgomery’s recorded statement. However, because Conahan has failed to establish prejudice, we uphold the circuit court’s denial of relief.
In this case, even if counsel had obtained an audio expert to analyze the statement, it would not have changed the nature of Mrs. Montgomery’s testimony that she “thought” she had told officers this information during the interview in which the recorded statement was made. Moreover, having a more accurate transcript would not have broken the eviden-tiary link between Conahan and the victim because there were two other witnesses, Bobby W. and Newman, who established that Conahan and the victim knew each other. Therefore, there is not a reasonable probability of a different outcome. Our confidence in the outcome is not undermined.
Accordingly, we affirm the circuit court’s denial of this claim.
3. Failure to Object to and Challenge the Williams Rule Evidence
Next, Conahan argues that trial counsel was ineffective for failing to object to and challenge the Williams rule evidence that was admitted during the guilt phase of his trial. We affirm the circuit court’s denial of this claim.
This claim is conclusively refuted by the record, which indicates that trial counsel repeatedly objected to the Williams rule evidence and that the trial court treated this as a standing objection. As for Conahan’s challenge to the sufficiency and detail of the objections, the record demonstrates that trial counsel went to great lengths to point out differences between the assault on S.B. and the murder of Richard Montgomery and presented detailed arguments as to why the other Williams rule evidence should not be admitted. This Court has repeatedly held that “[c]ounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions.” Occhicone, 768 So.2d at 1048; see also Chandler v. State, 848 So.2d 1031, 1045-46 (Fla.2003) (holding that disagreeing with trial counsel’s strategy of not vigorously challenging the Williams rule evidence did not mean that trial counsel was ineffective).
Accordingly, we affirm the denial of this claim,
B. Giglio Violation
Conahan also contends that the State violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), by knowingly using the false testimony of Mrs. Montgomery. We disagree.
To establish a Giglio violation, three prongs must be shown: (1) the testimony was false; (2) the prosecutor knew it was false; and (3) the testimony was material. Guzman v. State, 868 So.2d 498, 505 (Fla.2003) (citing Ventura v. State, 794 So.2d 553, 562 (Fla.2001)). If the defendant successfully establishes the first two prongs, then the State bears the burden of proving that the testimony was not material by showing that there is no reasonable possibility that it could have affected the verdict because it was harmless beyond a reasonable doubt. See Johnson v. State, 44 So.3d 51, 64-65 (Fla.2010); Guzman, 868 So.2d at 506-07. In evaluating Giglio claims, this Court applies a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence-and reviewing the application of the law to those facts de novo. Suggs v. State, 923 So.2d 419, 426 (Fla.2005) (citing Sochor, 883 So.2d at 785).
In this case, Conahan has failed to establish that Mrs. Montgomery’s testimony was false. Mrs. Montgomery qualified her testimony, stating that she “thought” she told law enforcement this information when she gave her recorded statement. However, the State stipulated at the evi-dentiary hearing that the name Conahan does not appear in the recorded statement, which tends to show that her self-qualified “thought” was mistaken, not necessarily that her testimony was false. Additionally, the transcript of the recorded statement indicates that Mrs. Montgomery provided the officers taking her statement with some information prior to the tape being turned on. Perhaps Mrs. Montgomery relayed the information at that point. Furthermore, there was additional testimony presented at the evidentiary hearing that indicates Mrs. Montgomery had interactions with other law enforcement officers and made an oral statement to the prosecutor concerning this matter, the circumstances and contents of which collateral counsel did not pursue at the evidentiary hearing. Therefore, Conahan has failed to establish that Mrs. Montgomery’s testimony was false.
Additionally, the State has established that the testimony was immaterial because there was no reasonable possibility of a different verdict as it was harmless beyond a reasonable doubt. See Johnson, 44 So.3d at 64-65; Guzman, 868 So.2d at 506-07 (defendant is not entitled to relief if State can prove that presentation of false testimony was harmless beyond a reasonable doubt). As the State demonstrates, the testimony from Newman and Bobby W. established that the victim and the defendant knew one another. Moreover, the admission of the Williams rule evidence was not contingent upon Mrs. Montgomery’s testimony. As we noted on direct appeal,
Conahan killed Montgomery in the same manner in which he attempted to kill S.B. Montgomery and S.B. were similar physically; neither one completed high school; both had difficulty in maintaining employment and were in need of money when Conahan solicited them to pose nude for money in a secluded wooded area. Both were tied to a tree and suffered similar abrasions and ligature wounds.
Conahan, 844 So.2d at 635.
Accordingly, Conahan has failed to establish that a Giglio violation occurred, and we affirm the circuit court’s denial of relief.
C. Brady Claim
Next, Conahan alleges that the State in this case failed to turn over an audio recording of an undercover operation on May 29, 1996, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the denial of this claim.
In order to establish a Brady violation, three elements must be shown: (1) the evidence at issue was favorable to the defendant, either because it is exculpatory or is impeaching; (2) the evidence was suppressed, willfully or inadvertently, by the State; and (3) because the evidence was material, its suppression resulted in prejudice. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Johnson v. State, 921 So.2d 490, 507 (Fla.2005); Rogers v. State, 782 So.2d 373, 378 (Fla.2001). To establish the materiality element of Brady, the defendant must demonstrate ‘“a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Guzman, 868 So.2d at 506 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375).
When addressing Brady claims, this Court utilizes a mixed standard of review, “ ‘deferring] to the factual findings made by the trial court to the extent they are supported by competent, substantial evidence, but reviewing] de novo the application of those facts to the law.’” Sochor, 883 So.2d at 785 (quoting Lightbourne v. State, 841 So.2d 431, 437-38 (Fla.2003)).
First, Conahan has failed to establish that the recording at issue actually exists and that the State suppressed this evidence. None of the witnesses at the evidentiary hearing could conclusively say whether or not a tape had been made of the May 29, 1996, undercover operation, and no one had ever seen or heard a recording from that day. Testimony or evidence that recordings were made on other days or in other operations has no bearing on whether a recording was made on May 29. Furthermore, Conahan has not presented any evidence that the State suppressed the alleged recording. Therefore, his Brady claim was properly denied on this basis alone. See Wyatt v. State, 71 So.3d 86, 106 (Fla.2011) (denying defendant’s Brady claim because he failed to establish “the existence of evidence [for the State] to withhold”).
Second, Conahan has failed to establish that the evidence is either exculpatory or impeaching. Conahan claims that the contents of the tape would have shown that he was interested in seeking sex for money and was not interested in soliciting men for nude photographs. However, this very contention is refuted by the record. The testimony from the undercover officers demonstrates that on separate occasions Conahan solicited the officers for sex acts and to pose in nude bondage photographs. Additionally, Conahan admitted during his testimony at trial that he solicited Mr. B. to pose in nude bondage photographs, who was the victim of the similar assault that was admitted as Williams rule evidence. Finally, Mr. B.’s independent testimony of his encounter with Conahan also refutes the argument that Conahan did not solicit men for nude photographs, Therefore, if this recording exists, it would not have the exculpatory effect claimed by the defendant because other evidence demonstrated the defendant’s solicitation of men for photographs.
Accordingly, this Court affirms the circuit court’s denial of Conahan’s Brady claim.
D. Ineffective During the Penalty Phase
1. Failure to investigate and present mitigation evidence
Next, Conahan claims that trial counsel was ineffective for failing to adequately investigate and present mitigation evidence in the penalty phase. Specifically, he claims trial counsel was ineffective for failing to present the mental health and competency evaluations of Doctor Gunder and Doctor Keown, failing to have a neu-ropsychologist evaluate him, and failing to present the testimony of the mitigation specialists, the investigator, and his sister. We affirm the circuit court’s denial of relief.
As explained earlier, this Court has described the two prongs of Stñckland as follows:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.
Bolin, 41 So.3d at 155 (quoting Maxwell, 490 So.2d at 932).
Regarding the second prong,
[the defendant] must show that but for his counsel’s deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider “the totality of the available mitigation evidence— both that adduced at trial, and the evidence adduced in the [postconviction] proceeding”—and “reweig[h] it against the evidence in aggravation.”
Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Henry, 948 So.2d at 617 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Here, Conahan has failed to demonstrate that trial counsel’s performance resulted in prejudice. At the evidentiary hearing, Conahan did not present any additional statutory or non-statutory mitigation evidence, experts, or witnesses that would have been available at trial and that trial counsel failed to present. Additionally, Conahan did not present his sister’s testimony at the evidentiary hearing, so it is unknown how it could possibly have aided him.
Thus, Conahan has not demonstrated prejudice because “the mitigating evidence adduced at the evidentiary hearing combined with the mitigation evidence presented at the penalty phase would not outweigh the evidence in aggravation.” Tanzi v. State, 94 So.3d 482, 491 (Fla.2012); see also Porter, 130 S.Ct. at 453-54. In other words, Conahan did not demonstrate that calling any of these individuals as witnesses would have resulted in mitigation that would “undermine[ ] this Court’s confidence in the sentence of death when viewed in the context of the penalty phase evidence and the mitigators and aggrava-tors found by the trial court.” Hurst v. State, 18 So.3d 975, 1013 (Fla.2009).
Accordingly, we affirm the circuit court’s denial of relief.
2. Failure to question jurors about homosexuality
Next, Conahan argues that trial counsel was ineffective during voir dire for failing to question the panel regarding their views on homosexuality. However, we affirm the circuit court’s denial of this claim.
Specifically, Conahan has failed to establish prejudice under Strickland. This Court has previously held that a defendant must demonstrate that an unqualified or biased juror actually served on his jury in order to demonstrate prejudice in a post-conviction ineffective assistance of counsel claim. See Davis v. State, 928 So.2d 1089, 1117 (Fla.2005). Conahan has not presented any evidence that a juror who was biased because of his or her personal views regarding homosexuality actually served on his jury. Therefore, there is not a reasonable probability of a different sentence, and our confidence in the outcome is not undermined.
E. Prosecutorial Misconduct
Next, Conahan alleges that there were several instances of prosecutorial misconduct that occurred during his trial that his trial counsel failed to object to and, when considered cumulatively, amount to fundamental error. Specifically, the alleged instances of misconduct are that: (1) the State improperly delayed the prosecution of the S.B. case in bad faith so that it could use the S.B. assault as Williams rule evidence in this case; (2) the testimony of H.L., Conahan’s former lover, regarding Conahan’s sexual bondage fantasy was admitted by the State for the purpose of showing the bad character of Conahan and his propensity for violence; (3) the State committed a Brady violation by faffing to disclose the recording of the May 29, 1996, surveillance operation and committed a Giglio violation by allowing Mrs. Montgomery’s false testimony to go uncorrected; and (4) the State, when opposing Conahan’s motion for judgment of acquittal, misrepresented the testimony of Newman and improperly argued aspects of Mrs. Montgomery’s false testimony to bolster the testimony of Newman and Bobby W. The circuit court denied this claim as proeedurally barred, and we affirm.
This Court already considered claims of prosecutorial misconduct on direct appeal and found that, although the prosecutor’s comments during opening statements were improper, the error was harmless. Conahan, 844 So.2d at 639-41. Conahan’s additional prosecutorial misconduct claims should have or could have been raised on direct appeal. See Franqui v. State, 965 So.2d at 35 (holding the defendant’s claim that improper prosecutorial comments constituted fundamental error was proeedurally barred because it could have been raised as fundamental error on direct appeal); Spencer, 842 So.2d at 68 (holding that “[i]ssues which either were or could have been litigated ... upon direct appeal are not cognizable through collateral attack”) (quoting Smith v. State, 445 So.2d 323, 325 (Fla.1983)). Therefore, Conahan’s claims are proeedurally barred, and we affirm the circuit court’s denial.
III. HABEAS PETITION
A. Ineffective Appellate Counsel
1. Failure to raise the issue of fundamental error with regards to the Williams rule evidence
In his habeas petition, Conahan claims that his appellate counsel on direct appeal was ineffective for failing to argue that the admission of the Williams rule evidence was fundamental error because it was not established by clear and convincing evidence, was not sufficiently similar, and became a feature of the trial. However, Conahan is not entitled to relief.
Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus. Valle v. Moore, 837 So.2d 905, 907 (Fla.2002); Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). The standard of review for claims of ineffective assistance of appellate counsel mirrors the Strickland standard for ineffective assistance of trial counsel. Valle, 837 So.2d at 907. In order to grant habeas relief on an ineffectiveness of appellate counsel claim, this Court must determine:
first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986) (citing Johnson v. Wainwright, 463 So.2d 207, 209 (Fla.1985)). The reviewing court must presume that counsel’s conduct was within the broad range of reasonable professional conduct, and the defendant bears the burden of overcoming this presumption. See Freeman, 761 So.2d at 1069 (noting that the defendant bears “the burden of alleging a specific, serious omission or overt act upon which the ineffective assistance of [appellate] counsel can be based”). Additionally, habeas petitions are not vehicles for second appeals and cannot raise issues that should have or could have been raised on direct appeal. See Everett v. State, 54 So.3d 464, 488 (Fla.2010); Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992).
Furthermore, appellate counsel cannot be deemed deficient for failing to raise meritless issues or issues that were not properly raised in the trial court and are not fundamental error. Valle, 837 So.2d at 907-08. In order to be a fundamental error, “ ‘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.’ ” Jaimes v. State, 51 So.3d 445, 448 (Fla.2010) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).
In this case, the admission of the Williams rule evidence was not error, let alone fundamental error. First, the Williams rule evidence was established by clear and convincing evidence. Mr. B. gave unrebutted testimony at trial detailing his encounter with Conahan and the assault. Furthermore, the undercover detectives testified at trial regarding their interactions with Conahan and how Cona-han had solicited them to pose in nude bondage photographs. Additionally, there were recordings of some of these operations that confirmed the detectives’ testimony.
Second, the evidence was sufficiently similar and properly admitted because, as the trial court found, there were various points of similarity that were relevant to prove a common scheme or plan and an unusual modus operandi. We have previously held that the collateral crime does not have to be identical to the crime charged in order to be admitted as Williams rule evidence. See Gore v. State, 599 So.2d 978, 984 (Fla.1992) (noting that the collateral crime does not have to be identical to the crime charged and finding that the collateral crime in Gore was properly admitted and the dissimilarities seemed to be the result of differences in opportunity rather than differences in mo-dus operandi); see also Durousseau v. State, 55 So.3d 543, 551-52 (Fla.2010) (holding that evidence that the defendant committed substantially similar crimes on other occasions was properly admitted as Williams rule evidence because it was relevant to material issues such as identity and premeditation), cert. denied, - U.S. -, 132 S.Ct. 149, 181 L.Ed.2d 66 (2011).
Specifically, the trial court found multiple similarities between the victims, S.B. and Montgomery, namely age, race, height, weight, and complexion. There were similarities between the crime scenes, including that they were both remote, secluded, wooded areas, accessible only by foot, and the victims were tied to a tree. In addition, the crimes were conducted in a similar manner. Clothesline-like rope was used, placement of rope and the strangulation caused grooved abrasions on the neck in the same area, both victims were naked, ropes were placed tightly on the wrists of the victims, the victims were offered money to pose in nude photos, and Conahan had purchased cutting pliers near the time of each crime.
Furthermore, although the Williams rule evidence was helpful in establishing a common scheme or plan and a unique mo-dus operandi, it did not become a feature of the trial. The State produced other evidence that established Conahan’s guilt, including testimony from other witnesses that the victim and Conahan knew each other, testimony from the victim’s friends that Montgomery stated he was going to do something to make $200 on the night he was killed, evidence that Conahan withdrew a similar amount of cash from an ATM that evening, and a Walmart receipt showing that on that evening Conahan bought a rope identical to the one that the victim was tied up with, as well as a pair of pliers, polaroid film, and a knife. There was also testimony from the victim’s mother that her son had told her he had met a man named Conahan and that someone had offered him money to pose in nude photographs. Conaharis former lover testified that Conahan had a bondage fantasy, and Conahan himself admitted that he had a bondage fantasy. Moreover, there was other forensic evidence.
Accordingly, the Williams rule evidence was properly admitted and did not become an improper feature of the trial. Because it was properly admitted, there was no fundamental error. And appellate counsel cannot be deemed deficient for failing to raise this meritless issue.
2. Failure to argue that the trial court erred in finding Conahan guilty of kidnapping with the intent to commit a sexual battery
Next, Conahan claims that appellate counsel was ineffective for failing to argue on direct appeal that he should not have been convicted of kidnapping with the intent to commit a sexual battery because the State failed to prove beyond a reasonable doubt that he possessed this intent at the time of the kidnapping. This claim is without merit.
On direct appeal, Conahan challenged the kidnapping conviction, arguing that the State had not established that the victim had not consented to being tied to a tree. Conahan, 844 So.2d at 636. This Court rejected his claim and affirmed the denial of the motion for judgment of acquittal, finding that the State had proven a prima facie case for kidnapping and had established Conahan’s “common scheme of luring young men into a secluded, wooded area for sexual pleasure and murdering them under the guise of posing for nude bondage pictures.” Id. at 637. Thus, this Court effectively addressed this issue on direct appeal by finding that the evidence was sufficient to support the conviction, and appellate counsel cannot be held ineffective for failing to raise a claim this Court actually addressed on direct appeal. Valle, 837 So.2d at 908.
Accordingly, Conahan is not entitled to habeas relief.
3. Failure to raise that there was a ñawed search
Conahan also claims that appellate counsel was ineffective for failing to argue on direct appeal that there was a flawed search. However, Conahan is not entitled to habeas relief because this claim is facially insufficient.
A habeas petition must plead specific facts that entitle the defendant to relief. Conclusory allegations have repeatedly been held insufficient by this Court because they do not permit the court to examine the specific allegations against the record. Bradley v. State, 33 So.3d 664, 685 (Fla.2010) (citing Doorbal v. State, 983 So.2d 464, 482 (Fla.2008)); Patton v. State, 878 So.2d 368, 380 (Fla.2004) (citing Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998) (finding that eonclusory allegations are also not sufficient for appellate purposes in habeas proceedings)). Because Conahan fails to plead specific facts as to how the search warrants and supporting affidavits were deficient, his claim is merely eonclusory and speculative. Therefore, he is not entitled to relief.
4. Failure to raise claim that prosecu-torial misconduct amounted to fundamental error
Lastly, Conahan asserts that there were several instances of prosecutorial misconduct that took place during his trial, which he claims appellate counsel should have raised on direct appeal. He alleges that the following instances of misconduct, when considered cumulatively, amount to fundamental error and entitle him to habe-as relief: (1) the State improperly delayed the prosecution of the S.B. case in bad faith so that it could use the S.B. assault as Williams rule evidence; (2) the State presented false testimony from Mrs. Montgomery; (3) the State committed a Brady violation by failing to disclose the recording of the May 29 surveillance operation; (4) the State, when opposing Cona-han’s motion for judgment of acquittal, misrepresented testimony of Newman and used Mrs. Montgomery’s false testimony to bolster the testimony of Newman and Bobby W. and improperly implied that the reason the victim’s genitals were removed was because there was DNA evidence and that the genitals had been removed by the same kind of knife that Conahan purchased that day; and (5) that the State made improper comments during closing in the guilt phase.
We need only address claims one, four, and five, because the other claims were raised as part of Conahan’s postcon-viction motion, and he may not now reliti-gate these issues as part of his habeas petition. See Johnston v. State, 63 So.3d 730, 747 (Fla.2011) (holding that the defendant’s habeas claims were procedurally barred because they could have been or were raised in his postconviction motion); Knight v. State, 923 So.2d 387, 395 (Fla.2005) (holding that claims raised in a post-conviction motion cannot be relitigated in a habeas petition).
Because the remaining claims were not properly preserved at trial by objection, appellate counsel cannot be deficient for failing to raise these claims on appeal unless the claims constitute fundamental error. See Valle, 837 So.2d at 909. As previously explained, in order to be a fundamental error, “ ‘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.’ ” Jaimes, 51 So.3d at 448 (quoting Delva, 575 So.2d at 644-45).
Conahan first claims that the State committed prosecutorial misconduct by filing a nolle prosequi in the S.B. case in order to gain a tactical advantage. However, Conahan provides no support for this assertion. Furthermore, there was no improper delay because as the circuit court found the State never re-filed charges in the S.B. case. Thus, this claim is without merit.
Next, Conahan claims that the State misrepresented the testimony of Newman in the arguments opposing Cona-han’s motion for judgment of acquittal. However, this claim is refuted by the record. Specifically, the prosecutor argued that Newman had testified that Conahan initially denied knowing Montgomery, but then admitted he did know Montgomery and characterized Montgomery as a mistake. This is indeed the testimony that Newman provided at trial. Thus, the prosecution presented an accurate summary of Newman’s testimony, and there was no misconduct.
Additionally, Conahan claims that the State misrepresented the testimony of Mrs. Montgomery in arguments opposing Conahan’s motion for judgment of acquittal. However, this claim is also refuted by the record. Specifically, the prosecutor argued that Mrs. Montgomery had testified that her son told her that he had met a man named Conahan who was a nurse and had been in the Navy and that someone had offered her son $200 to pose in nude photographs. This is an accurate summary of Mrs. Montgomery’s trial testimony. Therefore, this argument was not improper.
Next, Conahan claims that the State made improper arguments while opposing his motion for judgment of acquittal by implying that the reason the victim’s genitals had been removed was to eliminate DNA evidence and that the genitals had been removed by a sharp knife, the same kind that Conahan had purchased that day. However, Conahan is not entitled to relief. The alleged improper statements were made as part of the prosecutor’s specific argument opposing the judgment of acquittal on the sexual battery charge, but the trial court granted Conahan’s motion for judgment of acquittal on the sexual battery charge. Therefore, even if these arguments were misleading or improper, the error was not fundamental, and appellate counsel cannot be held deficient for failing to raise a meritless issue. Schoenwetter v. State, 46 So.3d 535, 563 (Fla.2010) (citing Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000)).
Finally, Conahan claims that the State made improper comments during the closing arguments of the guilt phase by (1) implying that H.L. held back in his testimony as to the full extent of Cona-han’s fantasy; (2) by arguing that Cona-han admitted to having a dark, sexual fantasy; and (3) by arguing in conflict with the medical examiner’s testimony that Co-nahan used a razor sharp knife to remove the genitals of Montgomery and stating there was some foreign material left behind in the genital area. Again, Conahan is not entitled to relief.
During closing arguments in the guilt phase, the prosecutor argued that H.L., Conahan’s former lover, had testified to Conahan’s bondage fantasy that involved “picking up hitchhikers, taking them out in the woods, tying them up and having sex with them.” He then stated that it was obvious that Mr. L. still cared for Conahan and that Mr. L. held back the ultimate culmination of the fantasy, which was to murder the men after tying them up and having sex with them. These comments were not improper misrepresentations as the record shows that Mr. L. did in fact testify about Conahan’s sexual bondage fantasy and did admit on the record that he was still in love with Conahan. Implying that the culmination of the fantasy was murder was reasonable given other evidence in the case. Conahan had seemingly acted out this same fantasy with S.B., and, as S.B. testified at trial, Conahan attempted to kill S.B. by trying to strangle him. Additionally, the record supports the prosecutor’s statement that Conahan admitted during his testimony to having a sexual bondage fantasy that included tying individuals up in the woods.
Furthermore, the medical examiner testified at trial that the genitals had been removed “very precisely with a sharp knife, ... or a scalpel blade, very sharp” and that upon examination of the area “some foreign material was there.” Therefore, the prosecutor’s comments that Conahan removed the victim’s genitals with a razor sharp knife and that there was foreign material left behind was an accurate summary of all of the testimony and evidence that had been presented.
Accordingly, because appellate counsel cannot be deemed deficient for failing to raise meritless or procedurally barred issues, we deny relief.
IV. CONCLUSION
For the foregoing reasons, we affirm the denial of Conahan’s postconviction motion and deny his habeas petition.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
Williams v. State, 110 So.2d 654 (Fla.1959).
The trial court found three aggravating factors: "(1) that the murder was committed during the course of a kidnapping; (2) that the murder was cold, calculated, and premeditated (CCP); and (3) that the murder was heinous, atrocious, or cruel (HAC).” Cona-han, 844 So.2d at 642. The trial court considered the following nonstatutory mitigators: "(1) loyalty, affection, and service to his parents [some weight]; (2) self-improvement by enrolling in nursing school [some weight]; (3) ability to maintain good familial relationships [some weight]; (4) open, unselfish, polite personality [no weight]; and (5) hardworking character [little weight].” Id. at 642 & n. 10.
On direct appeal, Conahan claimed that: (1) the trial court erred in denying his motion for judgment of acquittal because the evidence was legally insufficient to support a finding of premeditation; (2) the trial court erred in denying his motion for judgment of acquittal on the kidnapping charge; (3) the trial court erred by instructing the jury on two of the aggravating factors; (4) that the prosecutor made improper comments during his opening and closing statements in the penalty phase; and (5) the trial court violated his right to a fair trial by admitting the autopsy and certain crime scene photos into evidence. Id. at 634-42. This Court found that the prosecutor made improper comments during his opening statements to the jury during the penalty phase but that the error was harmless. Id. at 639-40. All of Conahan's other claims were denied.
Richardson v. State, 246 So.2d 771, 774-75 (Fla.1971).
We do not discuss in detail Conahan’s claim that the trial court erred in summarily denying his ineffectiveness of trial counsel claim that the Williams rule evidence was not established by clear and convincing evidence, was not sufficiently similar to the charged offense, and became a “feature of the trial'' because we find the circuit court properly determined that this claim was procedurally barred. Co-nahan should have and could have raised this issue on direct appeal. See Connor v. State, 979 So.2d 852, 868 (Fla.2007); Franqui v. State, 965 So.2d 22, 35 (Fla.2007); Spencer v. State, 842 So.2d 52, 60-61 (Fla.2003). Moreover, as explained when addressing his habe-as petition, Conahan failed to establish that the admission of the Williams rule evidence amounted to fundamental error.
Daniel O. CONAHAN, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. SC18-303
Supreme Court of Florida.
October 19, 2018
Neal Dupree, Capital Collateral Regional Counsel, William M. Hennis III, Litigation Director, and Jason Kruszka, Staff Attorney, Southern Region, Fort Lauderdale, Florida, for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A. Freeland, Senior Assistant Attorney General, Tampa, Florida, for Appellee
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Daniel O. Conahan, Jr. appeals an order denying a motion to vacate judgments of conviction, including one of first-degree murder, and sentence of death under Florida Rule of Criminal Procedure 3.851.
The underlying facts of this case were described in this Court's opinion on direct appeal. Conahan v. State, 844 So.2d 629, 632-34 (Fla. 2003). After Conahan waived his right to a jury trial, "the trial court found and adjudicated Conahan guilty of first-degree premeditated murder and kidnapping" of Richard Montgomery. Id. at 634. Then, following a unanimous jury recommendation for death, the trial court sentenced Conahan to death for Mr. Montgomery's murder. Id. On direct appeal, we affirmed Conahan's convictions and sentence of death. Id. at 643. We also affirmed the denial of Conahan's initial postconviction motion and denied relief on his habeas petition. Conahan v. State, 118 So.3d 718, 737 (Fla. 2013).
In Conahan's first successive postconviction motion, Conahan raised two claims for relief: (1) newly discovered evidence; and (2) the constitutionality of his death sentence pursuant to Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State, 202 So.3d 40 (Fla. 2016). Conahan v. State, No. SC16-1153, 2017 WL 656306, at *1 (Fla. Feb. 17, 2017). We affirmed the denial of the first claim, but upon agreement of the parties, did not address Conahan's Hurst claim, without prejudice, allowing Conahan to raise the issue in a future proceeding. Id. at *2.
Now, Conahan argues that he is entitled to relief pursuant to Hurst. We agree with Conahan that Hurst is applicable to his case. See Mosley v. State, 209 So.3d 1248, 1276 (Fla. 2016). However, because we find that the Hurst error in this case is harmless beyond a reasonable doubt, we affirm the denial of Hurst relief. See Davis v. State, 207 So.3d 142, 175 (Fla. 2016) ("The unanimous recommendations here are precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death."), cert. denied, --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017). We also reject Conahan's Hurst -induced Caldwell claim. See Reynolds v. State, 251 So.3d 811, 824-25 (Fla. 2018)petition for cert. filed, No. 18-5181 (U.S. July 3, 2018). Finally, we reject Conahan's contention that he is entitled to application of chapter 2017-1, Laws of Florida. See Taylor v. State, 246 So.3d 231, 240 (Fla. 2018) ("[W]e rejected as without merit the claim that chapter 2017-1, Laws of Florida, created a substantive right that must be retroactively applied.").
Accordingly, we affirm the denial of postconviction relief.
It is so ordered.
LEWIS, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., and POLSTON, J., concur in result.
PARIENTE, J., concurs in result with an opinion.
QUINCE, J., dissents with an opinion.
PARIENTE, J., concurring in result.
I agree that Conahan is not entitled to Hurst relief. I write separately to explain that it is the combination of the jury's unanimous recommendation for death and the absence of any stricken aggravating factor or other issue that would undermine the reliability of the jury's unanimous recommendation that allows this Court to conclude that the Hurst error in Conahan's case was harmless beyond a reasonable doubt.
We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017); see Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).
See, e.g., Reynolds v. State, 251 So.3d 811, 829-30 (Fla. 2018) (Pariente, J., dissenting) (explaining how Hurst could have affected defendant's decision to waive mitigation); Grim v. State, 244 So.3d 147, 148-52 (Fla. 2018) (Pariente, J., dissenting) (explaining how a mitigation waiver affects the Hurst harmless error analysis); Middleton v. State, 42 Fla. L. Weekly S637, --- So.3d ----, ---- - ----, 2017 WL 2374697, *1-2 (Fla. June 1, 2017) (Pariente, J., dissenting) (explaining how a stricken aggravating factor affects the Hurst harmless error analysis), cert. denied, --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018); see also Davis v. State, 207 So.3d 142, 173-75 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017).
[OPINION BY QUINCE, J., dissenting. type=dissent]
QUINCE, J., dissenting.
I do not agree with the majority's conclusion that there is no reasonable possibility that the Hurst error in this case did not affect Conahan's sentence. We declined to speculate about why the jurors voted for death in Hurst v. State, 202 So.3d 40, 69 (Fla. 2016). The majority's determination that the Hurst error in this case is harmless beyond a reasonable doubt amounts to pure speculation. This Court cannot know whether the jury would have found unanimously each aggravating factor, and that the aggravation outweighed mitigation as Hurst requires. The HAC and CCP aggravators in particular require findings of fact that the jury did not make. To find the error in this case harmless is to substitute our own evaluation of the evidence for the jury's. Therefore, I dissent.