Duane Eugene Owen confessed to two murders in Palm Beach County in the spring of 1984, and for a time the Supreme Court of Florida would not let one of the confessions stand. On March 1, 1990, it reversed his conviction for killing Karen Slattery, a fourteen-year-old who was babysitting for a married couple in Delray Beach on the night of March 24, 1984, because detectives had kept questioning him after he said “I’d rather not talk about it” and “I don’t want to talk about it.” The court watched the videotaped sessions, as the trial judge had. It found that Owen had started the interviews himself, knew his rights “as well as the police officers,” and was not coerced, but held that those two answers were enough under Miranda to require the questioning to stop. Justice Grimes dissented, reading them as reluctance to go over the details of the crime, not a demand to end the interview.
The second case, the murder of Georgianna Worden, went the other way. Her children found her on the morning of May 29, 1984, as they were getting ready for school; someone had broken into the house in Boca Raton during the night, beaten her with a hammer as she slept, and sexually assaulted her. Owen was arrested the next day on burglary charges and outstanding warrants, was questioned over several weeks, and confessed to the Worden murder on June 21. The jury recommended death by ten votes to two, and on January 23, 1992, the court affirmed, over dissents by Justices Barkett and Kogan, who would have held that the counsel he was given at his first appearance on the burglary charges barred the police from starting any new interrogation. The earlier opinion records the rhymes he wrote in jail for the detectives, one of them beginning “Roses are red, white, yellow and pink.”
The Slattery case returned after the United States Supreme Court decided, in Davis v. United States, that an ambiguous remark does not oblige the police to stop. Florida sent the confession back to the trial court, which ruled it admissible, and in March 1999 Owen was convicted again and again sentenced to death. The later opinions here reject his postconviction claims in both cases: that the prosecution withheld a counselor’s notes of his delusional thinking from 1983, that his lawyers failed him at jury selection and in presenting his mental illness and drug use, and, in 2018, that the non-unanimous Worden jury entitled him to relief under Hurst v. Florida. That sentence had become final in 1992, and the court held that Hurst did not reach it. Two short opinions of the Fourth District Court of Appeal, from 1987 and 1989, and a third from 2004, deal with his other convictions and sentences. Owen was executed for the murder of Georgianna Worden on June 15, 2023.
These are the opinions of the courts that reviewed Owen’s convictions, and their accounts of the killings rest on his own confessions and the evidence that corroborated them, including a bloody footprint at the Delray Beach house that an expert on podiatry said was consistent with his but did not identify as his to the exclusion of others. The opinions mention the prior violent felonies the State used against him at sentencing and his two surviving victims only as they bore on the appeals; those crimes were tried separately and their records are not printed here. Owen has no Case File in this archive, and these nine opinions are the fullest account of his cases it carries.
All nine opinions are public records of Florida courts. Karen Slattery and Georgianna Worden keep their names, as do the officers, the lawyers, and the doctors and investigators who testified about Owen’s mental health. The two women who survived his attacks are given initials, M.M. and Ms. S., because they are living victims of violent crimes; so is a witness in the Worden case, who appears as J.E., and the two jurors whose answers at jury selection were challenged, who appear as M. and G. “Dana L. Brown,” the name on one of the rights forms, stays in the text because the court identifies it as Owen’s alias.
The Caselaw Access Project text is printed as scanned. The 2004 caption spells his middle name “Euguene,” a statute cited in 1990 comes out as “794.-011,” “who” appears once as “v/ho,” and the 2003 appearances list “Re-spondenVAppellee”; all of these are left as they are. We closed words the printer had split across lines where the whole word appears elsewhere in the same text, and nothing has been spell-checked. The opinions run in date order, with Justice Barkett’s concurrence and Justice Grimes’s dissent after the 1990 opinion, the Barkett and Kogan dissents after the 1992 one, and Chief Justice Anstead’s partial dissent after the 2003 one.
Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
No. 4-86-0722.
District Court of Appeal of Florida, Fourth District.
Sept. 30, 1987.
Rehearing and Certification Denied Dec. 3, 1987.
Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Affirmed on the authority of L.S. v. State, 464 So.2d 1195 (Fla.1985).
ANSTEAD, LETTS and GUNTHER, JJ., concur.
Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
No. 88-1371.
District Court of Appeal of Florida, Fourth District.
May 24, 1989.
Duane Eugene Owen, Stark, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
This court has jurisdiction. See Johnson v. State, 543 So.2d 1289 (Fla. 4 DCA 1989) issued this date en banc. We affirm but remand with direction to strike the assessment of costs if imposed.
GLICKSTEIN, STONE and POLEN, JJ., concur.
Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
No. 68550.
Supreme Court of Florida.
March 1, 1990.
Rehearing Denied May 2, 1990.
Theodore S. Booras, Michael Salnick and Barry E. Krischer of Salnick & Krischer, West Palm Beach, for appellant.
Duane Eugene Owen, Starke, in pro. per. Robert A. Butterworth, Atty. Gen., and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Appellant Owen was convicted of burglary, sexual battery, and first-degree murder. The jury recommended and the judge imposed a death sentence for the murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
The victim was babysitting for a married couple on the evening of March 24, 1984, in Delray Beach. During the evening, she called home several times and spoke with her mother, the last call taking place at approximately 10 p.m. When the couple returned home, just after midnight, the lights and the television were off and the babysitter did not meet them at the door as was her practice. The police were summoned and the victim’s body was found with multiple stab wounds. There was evidence that the intruder entered by cutting the screen to the bedroom window. He then sexually assaulted the victim. A bloody footprint, presumably left by the murderer, was found at the scene.
In late May 1984, Owen was apprehended in Boca Raton after he was identified as a burglary suspect. Routine booking disclosed that there were outstanding warrants against him and while being held on these charges, he initiated contact with the police and was interrogated relative to various crimes committed on June 3, 6, 7, and 8. He was also questioned relative to a May 29, 1984, burglary, sexual battery, and murder in Boca Raton. During these interrogations, Owen expressed contempt for lawyers and a desire to help clean up crimes with which he had been charged or suspected. He specifically stated that he did not want a lawyer present but he asked that a certain officer (Woods) from Delray Beach who knew him from previous encounters be present for the interrogation. After confessing to numerous burglaries, sexual batteries, and other lesser crimes, he refused to talk further to the police about the Boca Raton murder and terminated the interrogation. On June 18, he reinitiated contact with the police and renewed his spate of confessions. He also corrected and amplified earlier confessions. On June 21, the Delray Beach police obtained an inked impression of Owen’s footprints and the Boca Raton police informed him that, based on fingerprints taken from the crime scene and other evidence, they were charging him with first-degree murder. After the Boca Raton police presented their evidence to Owen, he confessed to the May 29 burglary, sexual battery, and murder. His account of this crime was remarkably similar to his earlier confessions to three crimes where he removed his clothes, committed a burglary, and either choked dr bludgeoned sleeping victims into unconsciousness before committing sexual battery.
Immediately after the above confession to the May 29 Boca Raton murder, the Delray Beach police interrogated Owen relative to the March 24 Delray Beach crime. He first denied any knowledge of this crime, but confessed after the police confronted him with the bloody footprint from the crime scene and the inked impression of his foot taken earlier that day. The details were again remarkably similar to those of the earlier confessions.
At trial, the state did not attempt to introduce similar fact evidence, but relied instead on Owen’s confession and corroborating evidence. An expert on podiatry testified that the bloody footprint was consistent with Owen’s, but did not identify him to the exclusion of others.
The primary issue raised by Owen concerns the admissibility of his confession. He contends that (1) the confession was compelled by improper psychological coercion in violation of his fifth amendment right to remain silent, and (2) the police violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by continuing to question him after he invoked the right to terminate questioning. He claims that the police had no well-founded suspicion upon which to stop and seize him on the street and that all subsequent confessions were thereby tainted. This argument is without merit. Owen was the subject of outstanding warrants and had been identified in a photographic lineup as a burglar. The officer who stopped him had been given a photograph and specifically alerted to watch for him in his known habitat. The police had more than founded suspicion, they had probable cause.
Owen’s more serious argument is that he was psychologically coerced into confessing by extended interrogation sessions, feigned empathy, flattery, and lengthy discourse by the police. These interrogation sessions were videotaped and we have, as did the trial judge, the benefit of actually viewing and hearing them. It is clear from these tapes that the sessions were initiated by Owen, who was repeatedly advised of his rights to counsel and to remain silent. Moreover, he acknowledged on the tapes that he was completely familiar with his Miranda rights and knew them as well as the police officers. It is also clear that the sessions, which encompassed six days, were not individually lengthy and that Owen was given refreshments, food, and breaks during the sessions. The tapes show that the confession was entirely voluntary under the fifth amendment and that no improper coercion was employed. Martin v. Wainwright, 770 F.2d 918, 924-28 (11th Cir.1985), modified, 781 F.2d 185 (11th Cir.), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986).
Owen next argues that even if the confession was voluntary under the fifth amendment, it was nevertheless obtained in violation of the procedural rules of Miranda. On this point, we agree. Throughout the interrogation sessions, Owen had indicated his desire to confess to crimes for which he felt the police had sufficient evidence to convict. Consequently, there evolved a procedure whereby the police officers would present their evidence and attempt to persuade him that they had the necessary proof. On June 21, after the Boca Raton police presented the fingerprint evidence and the similarity of the crime to earlier burglary rapes to which Owen had confessed, he acknowledged his guilt and responded to further questions. Thereafter, the Delray Beach police took up questioning on the instant crime. After police presented evidence on the “matched” footprints, alluded to evidence they expected to develop and the close similarity of the crime to the Boca Raton murder and earlier burglaries and rapes, Owen closely studied the footprint impression and appeared to acknowledge the conclusiveness. However, when police inquired about a relatively insignificant detail, he responded with “Fd rather not talk about it.” Instead of exploring whether this was an invocation of the right to remain silent or merely a desire not to talk about the particular detail, the police urged him to clear matters up. He was soon responding with inculpatory answers and asking questions of his own. After further exchanges and a question on another relatively insignificant detail, Owen responded with “I don’t want to talk about it.” Again, instead of exploring the meaning of the response, the police pressed him to talk.
When presented with the motion to suppress, the trial judge initially indicated that the continuation of the questioning after the responses appeared to be a clear violation of Miranda, rendering the statements thereafter inadmissible. However, after reviewing the complete interrogation sessions, the judge concluded that the responses were not an invocation of the right to remain silent. The ruling of the trial court on a motion to suppress comes to us clothed with a presumption of correctness and we must interpret the evidence and reasonable inference and deductions in a manner most favorable to sustaining the trial court’s ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978). The state urges that on the totality of the circumstances, we should affirm the ruling below. Counterposed to this argument is the well-established rule that a suspect’s equivocal assertion of a Miranda right terminates any further questioning except that which is designed to clarify the suspect’s wishes. See Long v. State, 517 So.2d 664 (Fla.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988), and cases cited therein; and Martin, where although there was no violation of the fifth amendment by continuing questioning after an equivocal invocation of Miranda rights, the court held that the continued questioning was reversible error under Miranda. Given this clear rule of law, and even after affording the lower court ruling a presumption of correctness, we cannot uphold the ruling. The responses were, at the least, an equivocal invocation of the Miranda right to terminate questioning, which could only be clarified. It was error for the police to urge appellant to continue his statement. Such error is not, however, per se reversible but before it can be found to be harmless, the Court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. State, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Martin v. Wainwright. Applying this standard, we are unable to say in this instance that the error was harmless beyond a reasonable doubt. Even though there was corroborating evidence, Owen’s statements were the essence of the case against him. We accordingly reverse Owen’s convictions on the basis of the inadmissible statements given after the response, “I’d rather not talk about it.”
We address additional issues which may recur should a retrial occur. In accordance with section 921.143, Florida Statutes (1983), the trial judge heard testimony from the victim’s family on the impact of the crime after receiving the jury’s advisory recommendation of death. The judge did not have the benefit of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, (1987), and of Grossman v. State, 525 So.2d 833 (Fla.1988), cert. denied, - U.S. -, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), but nevertheless recognized that victim impact evidence by family members could not be used as an aggravating factor. If a death penalty phase is reached in a retrial, such evidence should not be received.
During the guilt phase, the victim’s mother was permitted to testify, over objection, concerning certain corroborating evidence. Owen claims that the evidence was not at issue and that permitting the victim’s mother to take the stand was unduly prejudicial. At trial, the basis of the objection was that the mother had been unable to control her emotions during an earlier deposition and her testimony was being presented for the sole purpose of creating improper sympathy. The record does not show that the mother was unduly emotional during her testimony, which corroborated Owen’s confession. The mother’s testimony meets the relevancy test; we see no error.
Appellant also claims that the jury should have received a special instruction during the penalty phase stressing the extreme importance of the jury’s advisory recommendation. In appellant’s view, Florida’s standard jury instruction denigrates the role of the jury contrary to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). We have previously held, contrary to appellant’s position, that the standard jury instructions accurately reflect Florida law. Combs v. State, 525 So.2d 853 (Fla.1988).
Owen also argues that the trial court erred in not directing a verdict on the sexual battery charge because the evidence shows that the victim was dead before sexual union and Florida law does not criminalize necrophilia. In support, he cites the testimony of the medical examiner that the victim had “probably” died from her massive wounds before being transported to the bedroom, where appellant confessed that he “raped her, I guess you could say.”
In defining sexual battery, section 794.-011, Florida Statutes (1983), refers to the victim as “another” and as “the person.” We are satisfied that under the legislative definition a victim must be alive at the time the offense commences. Sexual union with a previously deceased person, as in a morgue, would not meet the definition of sexual battery. However, we do not believe that the legislature intended that a person v/ho is alive at the commencement of an attack must be alive at the end of the attack. Here we need not decide this precise issue because the jury was instructed regarding the distinction between sexual battery on a live person and attempted sexual battery on a victim killed in the course of the crime before sexual union is achieved. The verdict of guilt on the sexual battery count resolves this question of fact. In denying the motion for a directed verdict, the trial court relied on the well-established rule that a defendant’s motion for acquittal admits “every conclusion favorable to the [state] that a jury might fairly and reasonably infer from the evidence” and the motion should not be granted “unless the evidence is such that no view which the jury may lawfully take ... can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974).
Owen has filed two pro se briefs, in addition to the briefs filed by his counsel. Most of the issues raised duplicate those raised by appointed counsel, but one issue merits comment. Owen claims that his trial counsel, who is also serving as his appellate counsel, was ineffective. Although this issue is customarily handled in a 3.850 hearing, it may be raised on direct appeal under rare circumstances where it is preserved and the ineffectiveness is apparent on the face of the record. Refusal to address the issue under such circumstances would be a waste of judicial resources. No such circumstances exist here. Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987). Here, there is nothing on the face of the record even remotely suggesting ineffective assistance of trial counsel and appellant repeatedly expressed satisfaction with trial counsel’s performance in response to queries from the trial judge. What concerns us is not only that appellant makes such an assertion concerning his current appointed counsel, but also his apparent belief that he is entitled to independently defend his case by submitting pro se briefs without reference to the actions of his appointed counsel. On remand, assuming retrial, the trial judge is directed to clarify this situation and make the appellant aware of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and his choices thereunder. We reverse all convictions and remand for retrial.
It is so ordered.
OVERTON, McDONALD, SHAW and KOGAN, JJ., concur.
BARKETT, J., concurs specially with an opinion, in which KOGAN, J., concurs.
GRIMES, J., dissents with an opinion, in which EHRLICH, C.J., concurs.
[OPINION BY BARKETT, Judge, type=concurrence]
BARKETT, Judge,
specially concurring.
I concur in the decision to reverse because the interrogation subsequent to appellant’s assertion of his right to remain silent was improper. As the Miranda Court stressed: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 384 U.S. at 473-74, 86 S.Ct. at 1627-28 (emphasis added). And, as the Court later explained in Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975), the admissibility of statements obtained after a person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was “scrupulously honored.” In this case, it was not.
KOGAN, J., concurs.
[OPINION BY GRIMES, Judge, type=dissent]
GRIMES, Judge,
dissenting.
I must respectfully dissent from the holding in this case and that portion of the majority opinion concerning the Miranda issue. I do not believe that current case law requires police to cease questioning a suspect simply because, as happened here, the individual expresses some reluctance to confront the details of his crime. Nor do I believe in the context of the extended series of interviews between Owen and police that his two statements — “I’d rather not talk about it,” and “I don’t want to talk about it” — must be construed as a request for a lawyer or a request to cut off questioning.
Initially, several points need to be emphasized. As the majority touched on in its discussion of the first issue, the police questioning of Owen was totally lawful. Often he initiated contact. None of the interviews was especially long; Owen never complained about the questioning and never directly halted a session. The interviews were brought to a close by the officers, apparently when they felt Owen had told them all he would tell them in that session. The officers’ conduct was in no way coercive, though they did attempt to persuade Owen to confess. Owen was not browbeaten or threatened with anything other than the probability that criminal charges would be brought against him. Prior to all sessions, he waived his Miranda rights, including the right to consult a lawyer and to have one present.
The two statements Owen made must be seen in the context not only of the conversation during which they occurred but also of the relationship that had built up between Owen and the two policemen who did most of the questioning, Lieutenant Kevin McCoy, Boca Raton Police Department, and Officer Mark Woods, Delray Beach Police Department. This series of interviews was a long cat-and-mouse game between Owen and the detectives; indeed, the game may have begun with the killings. Often he would appear ready to talk about the murders, only to change the subject.
The portrait of Owen that emerges from these interviews is of a person who wanted to impress the officers with his intelligence, with his cunning, and with his skill as a criminal. He even alleged that he had taken criminology and crime scene analysis courses at a college while in Michigan. He never exhibited any reticence in admitting criminal acts generally, and never indicated any desire to speak with an attorney. It is clear from reading the record that Owen did not mean he had changed his mind about talking to police and that he wished to speak with a lawyer before continuing. His comments are those of someone who does not want to face the truth, not someone who seeks legal counsel.
Long v. State, 517 So.2d 664 (Fla.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988), which the majority cites for authority, involved a statement: “I think I might need an attorney.” The United States Supreme Court has required an immediate cessation of interrogation upon any request by the defendant for an attorney. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, with respect to a suspect’s terminating an interrogation where no request for counsel is involved, that Court has said that “[tjhrough the exercise of his option to cut off questioning, he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” Michigan v. Mosely, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326-27, 46 L.Ed.2d 313 (1975).
In United States v. Thierman, 678 F.2d 1331 (9th Cir.1982), the court considered the validity of a confession made to the police after the defendant had earlier asked, "Can we talk about it tomorrow?” The court said:
Twice Thierman was advised of his Miranda rights and each time he agreed to answer some questions and refused to answer questions on certain topics. A person in custody may selectively waive his right to remain silent by indicating he will respond to some questions, but not to others. United States v. Lopez-Diaz, 630 F.2d 661, 664 n. 2 (9th Cir.1980); United States v. Lorenzo, 570 F.2d 294, 297-98 (9th Cir.1978)....
The only other event relevant to whether Thierman invoked his right to remain silent occurred when he inquired “Can we talk about it tomorrow?” The district judge was not required to interpret Thierman’s question as an invocation of his right to remain silent. The question is more easily construed as a mere request to postpone interrogation on a single subject than an outright refusal to answer any more questions.
Id. at 1335-36. The Eleventh Circuit Court of Appeals in Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985), modified, 781 F.2d 185, cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986), disagreed with Thierman to the extent that it held that the defendant’s statement, “Can we wait until tomorrow?” constituted an invocation of the right to cut off questioning. However, that court did not dispute the Thierman court’s premise that the defendant’s election to remain silent on a single subject does not necessarily require that the interrogation be completely terminated. In fact, the court in Martin distinguished Thierman by pointing out that in that case the surrounding circumstances “indicated that the suspect’s request concerned a particular subject matter and not the interrogation in general.” Martin, 770 F.2d 924 n. 6.
It seems to me that the instant ease is closer to Thierman. When Owen made his first statement that the majority finds objectionable, Lieutenant Rick Lincoln, a newcomer to the interview, was talking to him about the similarities between the Boca Raton murder and the one in Delray Beach, while showing him the footprint he had left behind in Delray Beach.
OFFICER LINCOLN: ....
Duane, this is you. This stuff proves it’s you.
THE DEFENDANT [OWEN]: Yeah, it looks identical to me.
OFFICER LINCOLN: Sure, it is.
Tell me about it for you, Duane.
I think you need to.
I know you want to.
Yeah, you’re right, this is you.
When did you first see her?
Now is the time, Duane.
We can’t have stuff on this thing.
OFFICER WOODS: It’s good enough.
I know what you’re thinking.
THE DEFENDANT [OWEN]: That’s it, man.
OFFICER WOODS: You’re taking a look at it and you’re checking it out.
THE DEFENDANT [OWEN]: Yeah.
OFFICER WOODS: And that’s it. That’s the bottom line.
OFFICER LINCOLN: Satisfy yourself right now.
There’s a few things—
OFFICER WOODS: Yeah.
OFFICER LINCOLN: —that I have to know, Duane.
A couple pieces of the puzzle don’t fit.
How did it come down?
Were you looking at that particular house or just going through the neighborhood?
THE DEFENDANT [OWEN]: I’d rather not talk about it.
OFFICER WOODS: Why?
OFFICER LINCOLN: Why?
You don’t have to tell me about the details if you don’t want to if you don’t feel comfortable about that.
Was it just a random thing?
Or did you have this house picked out.
That’s what I’m most curious about.
Things happen, Duane.
We can’t change them once they’re done.
THE DEFENDANT [OWEN]: No.
OFFICER LINCOLN: But you can sure make it easier on two parents that need to know.
OFFICER WOODS: And a whole town full of babysitters that are afraid to go outside.
That’s how the kids make all their money in the summer.
OFFICER LINCOLN: Had you ever been to that house before?
THE DEFENDANT [OWEN]: That was a big scene over there.
At this point the conversation shifted, with the officers trying to find out if Owen had known the victim or the family for whom she had been babysitting and how long it had taken him to get into the house. They interspersed these questions with statements flattering Owen and with demonstrations of how evidence was sufficient to convict him.
Finally, Owen said he had not been to the murder scene and the subject shifted to where his bicycle had been left.
THE DEFENDANT [OWEN]: How do you know I even had a bike?
You don’t even know that.
OFFICER LINCOLN: You tell me you didn’t have a bicycle.
See, you won’t lie, Duane.
I know you won’t lie when you are confronted with the truth.
Now, are you going to tell me you didn’t have a bicycle?
I know that much about you now.
You play by the rules. Those rules are important.
We all need rules.
Now did you have a bicycle?
Of course, you did.
Now, where did you put it?
THE DEFENDANT [OWEN]: I don’t want to talk about it.
OFFICER LINCOLN: Don’t you think it’s necessary to talk about it, Duane?
Two months have gone by already, Duane.
That’s a long time. It’s a long time for people to work. It’s a long time for you to hold it within yourself. It’s a long time for people to wonder.
OFFICER LINCOLN: I won’t make you tell me something you’re not comfortable in talking about, Duane.
But I do want to know some of the things that shouldn’t hurt that much to talk about.
What you did with the bicycle? How long you were outside the house? Those kinds of things.
I know what you’re reluctant to talk about and I won’t press you on that.
THE DEFENDANT [OWEN]: I don’t see what them kind of things got to do with it anyway.
OFFICER LINCOLN: It’s all part of the crime, Duane.
And I know you’re uncomfortable about talking about certain aspects of it, and I respect that.
Do you know what time it was when you first got to the house?
Do you remember?
OFFICER WOODS: What time was it, Duane?
THE DEFENDANT [OWEN]: Let me take — use the bathroom, first.
OFFICER WOODS: Sure. I have to also.
It is not perfectly clear what Owen meant by his comments, but it is clear from a totality of the circumstances that he did not want to quit talking to the officers about the crime. While the police in this case did not immediately cease questioning Owen on the two topics he indicated a reluctance to discuss — whether the house had been predetermined and where the bicycle had been left — their follow-up questions can fairly be seen as attempts to determine what Owen did mean. In any event, Owen did not make meaningful responses to these inquiries and the discussion shifted to other aspects.
Owen’s attitude toward the questioning can be seen graphically in the circumstances surrounding the actual confession. When the questioning reconvened from the break, Officer Woods left to get coffee, leaving Owen and Lieutenant Lincoln alone. Owen mentioned the possibility of visiting with his brother, commented on the fact that he would get bad publicity for facing two counts of first-degree murder, and asked about the possibility of unrelated minor charges being filed against him.
OFFICER LINCOLN: I have no idea. See, I’m talking about a homicide here. I don’t know about all that other stuff. That’s what we’re dealing about tonight.
THE DEFENDANT [OWEN]: How come you don’t carry around this big briefcase full of bullshit like he [Woods] does?
OFFICER LINCOLN: I don’t think I need to, do you?
THE DEFENDANT [OWEN]: No.
OFFICER LINCOLN: I think we’re talking about something. We’re talking about an event that took place. I know about it because I was there. You know about it because you were there. So why do I need a big sheaf of papers? We’re both intelligent people with memories, am I right? How long were you outside the house, Duane? Hours? Minutes?
THE DEFENDANT [OWEN]: You guys got me good, man.
OFFICER LINCOLN: Yeah.
THE DEFENDANT [OWEN]: Yeah. I knew it, too.
OFFICER LINCOLN: Did you?
THE DEFENDANT [OWEN]: Yep. As soon as they asked me for footprints.
These excerpts show two things: First, that the conversations were two-way transactions, with both the officers and Owen trying to gather information. Owen was trying to learn how good a case the police had. Second, and more importantly, they show that Owen did not wish for questioning to cease; indeed, he wished for it to continue until he had made up his mind to end the game. It should be noted that his confession was not triggered by a particularly insightful or accusatory question. It is also important that this confession was hardly different from any other that Owen gave as to lesser crimes. There was no emotional breakdown, simply a statement of fact.
Under these circumstances, I would uphold the trial judge’s denial of the motion to suppress which comes to us with a presumption of correctness. I believe that Owen’s comments can fairly be understood as intending only to cut off questioning on a particular subject and not a request to terminate questioning in its entirety.
EHRLICH, C.J., concurs.
Statements made before this response do not implicate Miranda rights.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
For example, the Delray Beach victim was stabbed to death and a hammer was found beside her, while the Boca Raton victim was killed by multiple blows with a hammer, a knife being found nearby. While in jail Owen wrote rhymes that seemed intended to tantalize the officers. One went: "Roses are red, white, yellow and pink. To play my game you've got to think.” Also, one detective asked Owen to fill in a blank with the number of murder victims. Owen deflected the question but, he said later, drew a square on his styrofoam coffee cup and filled in the number two while he talked. The officer had not noticed the cup.
In fact he admitted, and showed no remorse for, numerous instances of drug abuse, several unreported break-ins, and one incident of "flashing” a young woman on the campus of Florida Atlantic University.
Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
No. 68549.
Supreme Court of Florida.
Jan. 23, 1992.
Rehearings Denied April 1, 1992.
Craig Boudreau and Anthony J. Natale, West Palm Beach, for appellant.
Duane Eugene Owen, pro se.
Robert A. Butterworth, Atty. Gen., and John W. Tiedemann and Celia A. Terenzio, Asst. Attys. Gen., West Palm Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Owen appeals his convictions for first-degree murder, sexual battery and burglary, and the imposition of the death penalty. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.
The body of the victim, Georgianna Worden, was discovered by her children on the morning of May 29, 1984, as they prepared for school. An intruder had forcibly entered the Boca Raton home during the night and bludgeoned Worden with a hammer as she slept, and then sexually assaulted her. Owen was arrested the following day on unrelated charges and was interrogated over several weeks. He eventually confessed to committing numerous crimes, including the present murder and a similar murder in Delray Beach in March 1984. See Owen v. State, 560 So.2d 207 (Fla.), cert. denied, —, U.S. -, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990). At trial on the present murder, sexual battery and burglary, the evidence consisted of Owen’s confession, his fingerprint on a library book at the murder scene, and other corroborating evidence. The jury returned guilty verdicts on the charges and recommended death by a vote of ten to two. The trial judge followed the jury’s recommendation and imposed death, finding the aggravating circumstances outweighed the mitigating.
GUILT PHASE
Several of Owen’s guilt phase issues can be disposed of briefly. He first alleges that his convictions for murder and sexual battery were improper because the victim was dead prior to sexual union. Whether the victim was alive or dead at the time of sexual union, however, is an issue of fact to be determined by the jury. Competent substantial evidence supports its finding. See Owen. Owen’s next claim, that police lacked sufficient grounds for stopping and arresting him, is without merit. He was stopped and arrested based on outstanding warrants and photographic identifications made by two burglary victims. Owen’s assertion that his statements to police were obtained through psychological coercion has already been rejected by this Court. Id. His claim that his confession was obtained in violation of the rules established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is without merit. He was routinely informed of his rights and voluntarily waived them. Owen’s argument that the jury was “death qualified” and “conviction prone” has already been rejected by this Court. See, e.g., Diaz v. State, 513 So.2d 1045 (Fla.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1022 (1988).
Owen raises three guilt phase issues in a pro se brief. He argues that his fifth amendment rights were violated when police failed to act on his request to speak with an assistant state attorney concerning charges that were to be filed against him. We are unaware of any constitutional right to consult with a state attorney. Owen also argues that his due process rights were violated when police failed to videotape every occasion when he was interviewed by police. We find this argument to be totally without merit.
In his third pro se argument, Owen contends that his confession to the Worden murder was obtained in violation of his Sixth Amendment right to counsel. As noted above, Owen was arrested on burglary charges and outstanding warrants on May 30, 1984. The following day, he attended first appearance, where he requested and received appointment of counsel on those charges. Owen confessed to the Worden murder on June 21, during police-initiated questioning. The next day, he attended first appearance on the murder charge and counsel was appointed. He was indicted on this charge on July 11.
The Sixth Amendment right to counsel attaches when “judicial criminal proceedings” begin:
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the com-meneement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.
Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882-83, 32 L.Ed.2d 411 (1972). Although adversary judicial proceedings may commence in a number of ways — via “formal charge, preliminary hearing, indictment, information, or arraignment,” id. 406 U.S. at 689, 92 S.Ct. at 1882 — the federal Court and commentators are in agreement that such proceedings clearly have begun when an accused is placed in custody, haled before a magistrate on a warrant or formal complaint, and then tentatively charged with a particular crime at this initial appearance or “arraignment.”
Once the right attaches, an accused is entitled to assistance of counsel at each “critical stage” of the prosecution, including police questioning. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Where the right has attached and been invoked, any subsequent waiver in the absence of counsel during police-initiated questioning is invalid. Id. The right to counsel, however, is offense-specific: attachment and invocation of the right on one charge imposes no restrictions on police inquiry concerning other charges against the same defendant. McNeil v. Wisconsin, — U.S. -, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).
In the present case, although Owen’s right to counsel had attached and been invoked on the initial burglary charge and outstanding warrants by the time of his first appearance on those offenses, this fact is unrelated to his rights concerning the Worden murder. His rights on the murder charge attached when he attended first appearance on that offense. Because the questioning session during which he confessed took place prior to this first appearance, Owen had no Sixth Amendment right to counsel at that time. Thus, no Sixth Amendment right was violated.
PENALTY PHASE
Although the trial judge heard “victim impact” testimony from the victim’s father, we find this harmless in light of the fact that the judge did not give this evidence any weight at sentencing. See Grossman v. State, 525 So.2d 833 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989). All of Owen’s arguments that Florida’s capital-sentencing scheme is unconstitutional have been rejected by this Court.
During the penalty proceeding before the jury, the State introduced evidence of Owen’s convictions in the Delray Beach murder, sexual battery, and armed burglary. See Owen. The trial court used these convictions as a basis for finding as an aggravating factor that Owen had previously been convicted of another capital or violent felony. Owen now claims that he is entitled to a new sentencing proceeding because the Delray Beach convictions were subsequently reversed by this Court. Id. Based on our examination of the record, however, we conclude that use of this evidence was harmless error. Given the nature and extent of other evidence in aggravation presented to the jury we conclude that its recommendation would have been unchanged. We similarly conclude that the trial court’s sentence would have been the same because the aggravating circumstance concerning prior conviction of a violent felony was adequately supported by Owen’s conviction for attempted first-degree murder in a third case.
Owen’s claim that the trial court erred in finding as an aggravating circumstance that the murder was committed during the course of a sexual battery or burglary is without merit in light of our discussion concerning sexual battery above. Sufficient evidence also supports the court’s finding that the murder was especially heinous, atrocious, or cruel. The sleeping victim was struck on the head and face with five hammer blows. She awoke screaming and struggling after the first blow and lived for a period of from several minutes to an hour. Her neck was constricted with sufficient force to break the bones therein. She was sexually assaulted and the walls of her vagina were torn by a foreign object, such as the hammer handle. The court’s finding that the murder was committed in a cold, calculated, and premeditated manner was also adequately established. Owen selected the victim, removed his own outer garments to prevent them from being soiled by blood, placed socks on his hands, broke into the home, closed and blocked the door to the children’s room, selected a hammer and knife from the kitchen, and bludgeoned the sleeping victim before strangling and sexually assaulting her.
Based on the foregoing, we affirm the convictions and sentences. We disapprove language in Kight v. State, 512 So.2d 922 (Fla.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 262 (1988); and Keen v. State, 504 So.2d 396 (Fla.1987), to the extent it is inconsistent with the Sixth Amendment analysis above.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD and GRIMES, JJ., concur.
BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs.
KOGAN, J., dissents with an opinion.
[OPINION BY BARKETT, Justice, type=dissent]
BARKETT, Justice,
dissenting.
I dissent because I believe that the confession to the Worden murder was obtained in violation of Owen’s right to counsel under article I, section 9 of the Florida Constitution. When Owen attended first appearance on the burglary charges and outstanding warrants, he requested and received appointment of counsel. For the reasons expressed in my partial dissenting opinion in Traylor v. State, 596 So.2d 957 (Fla.1992) (Barkett, J., concurring in part, dissenting in part), I would find that police were thereafter prohibited from initiating any further interrogation as to any offense while Owen was in custody without his attorney’s presence, and thus his confession was inadmissible. Because I cannot say that admission of the confession in this case was harmless beyond a reasonable doubt, I would reverse the convictions and sentences and remand for a new trial.
KOGAN, J., concurs.
[OPINION BY KOGAN, Justice, type=dissent]
KOGAN, Justice,
dissenting.
I dissent for the reasons expressed more fully in my partial dissent to Traylor v. State, 596 So.2d 957 (Fla.1992) (Kogan, J., concurring in part, dissenting in part). Owen was appointed counsel in May 1984. I would hold inadmissible the uncounseled confession elicited through direct police contacts with Owen in June, during the period of his continued incarceration, based on my reading of article I, sections 9 and 16 of the Florida Constitution. I agree with Justice Barkett that the error is not harmless, requiring a new trial.
The judge found four aggravating circumstances: The defendant had been previously convicted of a violent felony; the murder was committed during a burglary or sexual battery; the murder was especially heinous, atrocious, or cruel; and the murder was cold, calculated, and premeditated. See § 921.141(5), Fla.Stat. (1983).
The judge considered the following claims made by the defense: Owen’s mother died when he was very young; his alcoholic father committed suicide a year later; Owen and his brother were shuffled from one foster home to another until his brother finally ran away and left him; Owen was sexually and otherwise abused in the foster homes; Owen’s mind "snapped” during the murder; he had enlisted twice in the army and aspired to be a policeman.
We note that Owen’s equivocal responses to questioning that resulted in reversal of his convictions in the Delray Beach killing took place after he confessed to the present crimes and are irrelevant here. See Owen v. State, 560 So.2d 207 (Fla.), cert. denied, — U.S. -, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990).
See abo Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977) (“Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him_"). See also Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985) (citing above language from Williams with approval).
See McNeil v. Wisconsin, — U.S. -, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991) (Where defendant was arrested and taken before a court commissioner for his initial appearance: “It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the [offense], for which he had been formally charged.” The Court added, “The Sixth Amendment right to counsel attaches at the first formal proceeding against an accused, and in most States ... free counsel is made available at that time and ordinarily requested.” Id. 111 S.Ct. at 2210.); Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (Defendants were arrested and shortly later arraigned before the committing magistrate. The State, in the trial of one defendant, conceded that the Sixth Amendment right to counsel had attached at this initial appearance. The State, in the trial of the other, claimed it had not. The Court ruled unequivocally: “In view of the clear language in our decisions about the significance of arraignment, the State's argument is untenable,” and this is so regardless of whether arraignment has the particular characteristics of “a critical stage requiring the presence of counsel.” Id. at 629 n, 3, 106 S.Ct. at 1407 n. 3); Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986) (“[A]fter the first charging proceeding the government may not deliberately elicit incriminating statements from an accused out of the presence of counsel.”); Williams (Defendant was arrested and arraigned on the warrant within hours. The Court ruled: “There can be no doubt in the present case that judicial proceedings had been initiated against Williams.... A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail." 430 U.S. at 399, 97 S.Ct. at 1239). The Court has ruled that the right to counsel can attach as early as the filing of the complaint in those cases where the complaint serves as a charging instrument. Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977) (“The prosecution in this case was commenced under Illinois law when the victim’s complaint was filed in court.”).
See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.2, at 8 (Supp.1991) (“[T]he initiation of adversary judicial proceedings ordinarily requires a formal commitment of the government to prosecute, as evidenced by the filing of charges. This can occur prior to the issuance of an indictment or information, as where the defendant is brought before the magistrate for an 'arraignment' or ‘first appearance’ on charges filed in the form of a complaint.”); 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.4, at 468 (1984) (“[A]t least from the time defendant is brought into court and arraigned on the warrant (at which point it or the complaint underlying it becomes a tentative charging document) the Sixth Amendment right to counsel applies.”); Joseph D. Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich.L.Rev. 717, 788-79 (1973) (“[A] convincing argument can be made that a criminal prosecution commences at least with the preliminary arraignment when a formal complaint is filed in court against the ac-cused_ Professor Miller, supporting his exhaustive analysis of the charging function with extensive field study data, has called the decision to file a complaint ‘the heart of the charging process.’ ... It would defy common sense to say that a criminal prosecution has not commenced against a defendant who, perhaps incarcerated and unable to afford judicially imposed bail, awaits preliminary examination on the authority of a charging document filed by the prosecutor, less typically by the police, and approved by a court of law."); Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich.L.Rev. 1320, 1368-69 n. 226 (1977) (“Even though a complaint has been filed in the process of obtaining a warrant, adversary judicial criminal proceedings may be viewed as being initiated only after the accused is brought before a magistrate on that complaint.... This starting point would make sense from an administrative standpoint because counsel for the indigent defendant ordinarily would not be appointed until the defendant has appeared before the magistrate.” (citations omitted)). .The term "arraign” simply means to be called before a court officer and charged with a crime. The term commonly has two uses. First, it is used in the general sense to refer to the proceeding wherfe an accused (who is now formally a defendant) is first taken to court and presented before- a committing magistrate. The magistrate will confirm that the defendant is the person named in the formal complaint and will read aloud the charges contained in it. The magistrate will generally warn the defendant that he has the right to remain silent, that anything he says will be used against him, and that he has a right to a lawyer's help, either retained or appointed. No responsive pleading is made. The magistrate will then set bail. This proceeding is commonly called a "first appearance,” "initial presentment," or "arraignment on the warrant.” 1 Wayne R. LaFave & Jerome H. Israel, supra n. 6, § 1.4, at 21. Second, the term "arraignment” refers to the step in the prosecution where the defendant is brought before the trial court—not the committing magistrate—informed of the charges against him, and required to enter a plea. This proceeding is commonly called an "arraignment on the information or indictment." Id. at 26. As noted above, when the Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and Jackson said that the Sixth Amendment right to counsel attaches at "arraignment,” it apparently was using the term in the first sense.
We note that the federal Court has recently decided that use of certain types of victim impact evidence does not violate the federal constitution. See Payne v. Tennessee, — U.S. -, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
Owen claims that: The death penalty is cruel and unusual; the statutory mitigating circumstances are too restrictive; the aggravating circumstance that the murder was committed in the course of an enumerated felony fails to narrow the class of death-eligible defendants; and the death penalty is arbitrary and discriminatory.
Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
No. SC92144.
Supreme Court of Florida.
Sept. 21, 2000.
Rehearing Denied Nov. 13, 2000.
Jack W. Crooks, Assistant CCRC and Linda McDermott, Assistant CCRC, Capital Collateral Regional Counsel — Middle, Tampa, Florida, for Appellant.
Robert A. Butterworth, Attorney General, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, Florida, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Duane Eugene Owen appeals the denial of relief on his first motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.
I. FACTS
The relevant facts involve two separately tried murders: the Worden murder, and the Slattery murder. The present proceeding arises following the denial of postconviction relief in the Worden murder. The Slattery murder is tangential to the present case.
A. The Worden Murder
The facts of the Worden murder are set forth fully in this Court’s opinion on direct appeal. See Owen v. State, 596 So.2d 985 (Fla.1992). During the night of May 28, 1984, Owen entered the Boca Raton home of Georgianna Worden, bludgeoned her to death with a hammer as she slept, and sexually assaulted her. Her body was found the next morning by her children as they prepared for school. Owen was arrested and eventually confessed to the crime. He was charged with first-degree murder, sexual battery, and burglary. He was tried and convicted as charged. The court followed the jury’s ten-to-two recommendation and imposed a sentence of death based on four aggravating circumstances. The court considered several mitigating circumstances. This Court affirmed the convictions and sentences.
B. The Slattery Murder
The facts of the Slattery murder are set forth fully in this Court’s opinion on direct appeal in that case. See Owen v. State, 560 So.2d 207 (Fla.1990). On the night of March 24, 1984, Owen broke into a Delray Beach home and stabbed to death a fourteen-year-old babysitter, Karen Slattery, and sexually assaulted her. He was arrested following the Worden murder and confessed to both the Worden and Slattery murders. Prior to being tried on the Worden murder, he was tried and convicted on the Slattery murder. At sentencing on the Slattery murder, the court followed the jury’s recommendation and imposed a sentence of death. This Court reversed the conviction and remanded for retrial because police failed to clarify two equivocal statements Owen made during interrogation on the Slattery crime.
The State later sought relief in state district court on the confession issue in light of the United States Supreme Court’s then-recent decision in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), wherein the Court ruled that once a defendant waives his or her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant thereafter must clearly invoke those rights during the ensuing interrogation session. See State v. Owen, 654 So.2d 200 (Fla. 4th DCA 1995). The district court certified the issue to this Court, and we granted relief. The Court adopted the Davis rule for use in Florida and remanded for reconsideration of the Slattery confession in light of Davis. See State v. Owen, 696 So.2d 715 (Fla.1997). The trial court ruled the confession admissible and Owen was retried, convicted, and sentenced to death in March 1999 for the Slattery murder.
C.The Lawyers Representing Owen
After Owen had been charged with the above crimes, the trial court appointed the law firm of Kohl, Springer, Springer, Mighdoll, Salnick and Kriseher to represent Owen on both murders. (The law firm subsequently was disbanded in January 1986). The two cases were divided among various lawyers in the firm. Kriseher and Salnick represented Owen at the hearing on the motion to suppress Owen’s omnibus confession to both crimes. At trial on the Worden murder, Owen was represented by Donald Kohl and Craig Boudreau. At the first trial on the Slattery murder, he was represented by Kriseher. At the 1999 retrial on the Slattery murder, he was represented by Carey Haughwout. In the present postconviction proceeding on the Worden murder, he is represented by lawyers from Capital Collateral Regional Counsel-Middle Region.
D.The Proceeding Below
On July 31, 1986, after Owen had been convicted and sentenced for the Worden murder, but before this Court had ruled on his appeal, he prematurely filed the present rule 3.850 motion. The postconviction proceeding was stayed pending his appeal; he subsequently was permitted to amend his rule 3.850 motion several times. The trial court held a Huff hearing on the motion on November 5, 1997, after which the court summarily denied a number of claims and scheduled others for evaluation at an evidentiary hearing. At the evidentiary hearing, after the first -witness had finished testifying, counsel for Owen informed the court that Owen had decided not to proceed with the hearing; counsel claimed that Owen’s attorney-client privilege in the Slattery case would be violated. After confirming with Owen that this indeed was his decision and after explaining to Owen the consequences of his action, the court ended the hearing and issued a brief order denying relief on the rule 3.850 motion. Owen appeals, raising numerous claims.
II. OWEN’S REFUSAL TO PROCEED
As noted above, on November 5, 1997, the trial court in the Worden case granted an evidentiary hearing on five claims involving ineffectiveness and conflict issues. The evidentiary hearing was held on December 8, 1997. Before the hearing commenced, Carey Haughwout, Owen’s counsel in the upcoming Slattery retrial, informed the court that Owen had invoked the attorney-client privilege in the Slattery case. Haughwout then sought to stay the Worden postconviction proceeding until the Slattery retrial was completed or in the alternative to prohibit disclosure of confidential information concerning the Slattery case. Haughwout was concerned that information disclosed during the hearing would be used against Owen in the upcoming Slattery retrial. The court agreed to bar disclosure of privileged information.
At the hearing, Owen called Barry Krischer as his first witness. Krischer testified on direct examination that he had served as Owen’s counsel during the original Slattery trial. He stated that his sole responsibility vis-a-vis Owen was to represent him in the Slattery case, that he played no role in the Worden case. In fact, Krischer testified that he told Owen at the time of trial that he did not want to hear anything about the Worden murder. Krischer noted, however, that he and Salnick did litigate the motion to suppress Owen’s omnibus confession, portions of which were later introduced into evidence at both trials. When Krischer declined to answer any questions concerning this motion to suppress, collateral counsel terminated her direct examination of the witness. After the assistant attorney general finished cross-examining Krischer, collateral counsel declined to proceed any further with the evidentiary hearing, stating that to do so would violate the attorney-client privilege in the Slattery case. Owen claims that the court erred in subsequently denying his rule 3.850 motion. We disagree.
A court’s ruling on a matter related to the “course and conduct” of a proceeding is generally within the sound discretion of the court and will not be disturbed on review absent an abuse of discretion. The attorney-client privilege is a basic, long-standing prerogative that promotes a client’s right to effective legal representation:
Various reasons have historically been cited for the existence of the attorney-client privilege. The modern view is that the privilege promotes the administration of justice by “encouraging clients to lay the facts fully before their counsel.” By encouraging full disclosure, a client is able to receive fully informed legal advice without the fear that his statements may later be used against him.
Brookings v. State, 495 So.2d 135, 139 (Fla.1986) (citation omitted). The privilege has been codified by the legislature:
A client has a privilege to refuse to disclose, and prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.
§ 90.502(2), Fla. Stat. (1999). Although the privilege is statutorily based, it also possesses a constitutional dimension.
This Court has held that when a defendant pursues an ineffectiveness claim against trial counsel, the defendant waives the attorney-client privilege as to that claim:
Thus, we hold that a lawyer who represents a client in any criminal proceeding may reveal communications between him and his client when accused of wrongful conduct by his client concerning his representation where such revelation is necessary to establish whether his conduct was wrongful as accused. This is so whether the lawyer is retained by the defendant or appointed by the State to represent him and includes lawyers serving as public defenders and their assistants.
Reed v. State, 640 So.2d 1094, 1097 (Fla.1994) (quoting Wilson v. Waiwwright, 248 So.2d 249, 250 (Fla. 1st DCA 1971)).
In the present proceeding, by filing ineffectiveness and conflict of interest claims against trial counsel in the Worden case, Owen waived the attorney-client privilege in that case. Although he subsequently invoked the privilege in the Slattery case, he still was obligated to proceed in good faith in the present case to the extent that the privilege permitted. He did not do so. In fact, at the hearing below, he made no effort to introduce substantive evidence concerning the Worden trial. Instead, he called as his only witness Barry Krischer, i.e., his former trial counsel in the Slattery case. Krischer knew virtually nothing about the Worden trial and his testimony was guaranteed to implicate the privilege, which expressly applied only to the Slattery case. Further, although the court below agreed to bar disclosure of privileged information, Owen made no effort to proffer any substantive evidence that would have been excluded by the privilege. In short, Owen made no showing of prejudice. We find no abuse of discretion in the manner in which the court conducted the hearing.
III. CONCLUSION
As to Owen’s Faretta claim (i.e., claim 2), the principles underlying Faretta are applicable only when a defendant in a criminal case seeks to waive professional legal representation and proceed unrepresented. These principles are inapplicable here where Owen freely chose to be represented by counsel at the proceeding below and registered no objection to counsel’s performance. The record shows that collateral counsel and Owen jointly made the strategic decision to end the evidentiary hearing.
Owen’s ineffectiveness and conflict claim (i.e., claim 3) is a fact-based issue that requires development at an evidentiary hearing, which Owen-by his actions below-opted to forego. The claim thus is waived. His remaining claims are proeedurally barred.
Based on the foregoing, we affirm the trial court’s order denying relief on Owen’s first rule 3.850 motion.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, PARIENTE, LEWIS and QUINCE, JJ„ concur.
ANSTEAD, J., concurs in result only.
The court found that the following aggravating circumstances had been established: Owen previously had been convicted of a violent felony; the murder was committed during a burglary or sexual battery; the murder was especially heinous, atrocious, or cruel; and the murder was cold, calculated, and premeditated.
The court considered the following mitigating circumstances: Owen's mother died when he was young; his alcoholic father committed suicide a year later; Owen and his brother were shuffled from one foster home to another until his brother finally ran away and left him; Owen was sexually and otherwise abused in the foster homes; Owen’s mind "snapped” during the murder; and he had enlisted twice in the army and aspired to be a policeman.
Huff v. State, 622 So.2d 982 (Fla.1993).
The court found that an evidentiary hearing was required on the following claims: (1) Trial counsel rendered ineffective assistance in the guilt phase by failing to provide mental health experts with information necessary to conduct an accurate competency exam; (2) trial counsel rendered ineffective assistance in the guilt phase by failing to mount an insanity or any other defense and failing to call any defense witnesses; (3) attorneys Kohl and Kriseher failed to disclose to Owen various conflicts of interest; (4) trial counsel was ineffective in the penalty phase by failing to investigate and present statutory and nonstatutory mitigating evidence and by presenting only one (minor) witness; (5) trial counsel was ineffective in failing to raise various issues. The court also deferred ruling on several additional claims.
Owen raises the following claims: (1) The trial court should have stayed the hearing pending completion of the retrial on the Slattery murder; (2) the court should have conducted a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), when Owen opted not to proceed with the evidentiary hearing; (3) trial counsel was ineffective and suffered a conflict of interest; (4) the HAC instruction was improper under Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992); (5) the felony murder instruction was improper; (6) the "avoiding arrest” instruction was improper; (7) the "prior violent felony” instruction was improper; (8) the CCP instruction was improper; (9) details of prior violent felonies were improperly admitted during the penalty phase; (10) attorney Kirscher was ineffective during the suppression hearing; (11) the penalty phase instructions improperly shifted the burden of proof to the defendant; (12) the penalty phase jury was improperly instructed concerning its role in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (13) the prosecutor made inflammatory remarks during closing argument; (14) Owen should have been allowed to poll the jurors; (15) the court erred in failing to allow a change in venue; (16) Florida's capital sentencing statute is unconstitutional; (17) the video of the crime scene was unduly prejudicial; (18) the cumulative weight of errors deprived Owen of a fair trial.
Retrial on the Slattery murder took place in 1999.
See, e.g., Philip J. Padovano, Florida Appellate Practice 152 (2nd ed.1997).
See, e.g., Myles v. State, 602 So.2d 1278, 1280 (Fla.1992) ("While the Florida Evidence Code creates a broad statutory attorney-client privilege ... some aspects of the attorney-client relationship take on a constitutional dimension in the criminal trial setting.”); Mills v. State, 476 So.2d 172, 176 (Fla.1985) (“The attorney-client privilege arises in the context of a relationship having great significance for the protection of fundamental personal rights. For example, the ability to speak freely to one’s attorney helps to preserve rights protected by the fifth amendment privilege against self-incrimination and the sixth amendment right to legal representation.”). .See also LeCroy v. State, 641 So.2d 853 (Fla.1994).
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Claims (4) through (18) are proeedurally barred for the following reasons: (4) This claim could and should have been raised on direct appeal; (5) this claim could and should have been raised on direct appeal; (6) this claim could and should have been raised on direct appeal; (7) this claim could and should have been raised on direct appeal; (8) the sufficiency of the evidence required to establish this factor was raised and rejected on direct appeal, and no challenge was made to the instruction itself; (9) this claim could and should have been raised on direct appeal; (10) this claim was raised and rejected on direct appeal; (11) this claim could and should have been raised on direct appeal; to the extent Owen claims ineffectiveness, this claim is without merit since this Court repeatedly has held that the penalty phase instructions do not shift the burden; (12) this claim is proeedurally barred since this Court repeatedly has held that Caldwell errors cannot be raised on collateral review; (13) this claim could and should have been raised on direct appeal; (14) the trial court granted Owen an evidentiary hearing on this issue, but Owen chose not to present any evidence on it; (15) this claim could and should have been raised on direct appeal; (16) this claim was raised and rejected on direct appeal, and the Court repeatedly has rejected this claim; (17) this claim could and should have been raised on direct appeal; to the extent Owen claims ineffectiveness, this claim is without merit since trial counsel objected to admission of the videotape; (18) this claim is procedurally barred per case law.
Duane E. OWEN, Petitioner, v. James V. CROSBY, Jr., etc., et al., Respondents. Duane E. Owen, Appellant, v. State of Florida, Appellee.
Nos. SC01-2146, SC01-2476.
Supreme Court of Florida.
July 11, 2003.
Rehearing Denied Sept. 2, 2003.
James L. Driscoll, Jr., Assistant CCRC and Eric Pinkard, Assistant CCRC, Tampa, FL, for Petitioner/Appellant.
Charles J. Crist, Jr., Attorney General, and Celia A. Terenzio, Melanie Dale, and Debra Rescigno, Assistant Attorneys General, West Palm Beach, Florida, for Re-spondenVAppellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Duane Eugene Owen, a prisoner under sentence of death, appeals an order of the trial court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Additionally, Owen petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the decision of the trial court denying postconviction relief and deny habeas corpus relief.
FACTS AND PROCEDURAL HISTORY
Duane Eugene Owen (Owen) was convicted of first-degree murder, sexual battery, and burglary, and sentenced to death. The facts of the case are summarized by this Court in Owen v. State, 596 So.2d 985, 986-87 (Fla.1992):
The body of the victim, Georgianna Worden, was discovered by her children on the morning of May 29, 1984, as they prepared for school. An intruder had forcibly entered the Boca Raton home during the night and bludgeoned Worden with a hammer as she slept, and then sexually assaulted her. Owen was arrested the following day on unrelated charges and was interrogated over several weeks. He eventually confessed to committing numerous crimes, including the present murder and a similar murder in Delray Beach in March 1984. See Owen v. State, 560 So.2d 207 (Fla.1990), cert. denied, 498 U.S. 855, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990). At trial on the present murder, sexual battery and burglary, the evidence consisted of Owen’s confession, his fingerprint on a library book at the murder scene, and other corroborating evidence. The jury returned guilty verdicts on the charges and recommended death by a vote of ten to two. The trial judge followed the jury’s recommendation and imposed death, finding the aggravating circumstances outweighed the mitigating.
On July 31, 1986, after Owen was convicted and sentenced, but before this Court ruled on his appeal, he prematurely filed a motion for postconviction relief. The postconviction proceeding was stayed pending his appeal, and Owen was permitted to amend his motion several times. On November 5, 1997, the trial court held a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), after which the trial court summarily denied a number of claims. However, the trial court found that an evidentiary hearing was required on the following claims:
(1) Trial counsel rendered ineffective assistance in the guilt phase by failing to provide mental health experts with information necessary to conduct an accurate competency exam; (2) trial counsel rendered ineffective assistance in the guilt phase by failing to mount an insanity or any other defense and failing to call any defense witnesses; (3) attorneys Kohl and Krischer failed to disclose to Owen various conflicts of interest; (4) trial counsel was ineffective in the penalty phase by failing to investigate and present statutory and nonstatutory mitigating evidence and by presenting only one (minor) witness; (5) trial counsel was ineffective in failing to raise various issues. The court also deferred ruling on several additional claims.
Owen v. State, 773 So.2d 510, 512-13 n. 4 (Fla.2000). At the evidentiary hearing, after the first witness’s testimony, Owen’s counsel informed the court that Owen had decided not to proceed with the hearing because the attorney-client privilege in the Slattery murder case would be violated. After explaining to Owen the consequences of his decision, the trial court ended the hearing and denied relief on the rule 3.850 motion.
Subsequently, Owen appealed the trial court’s denial to this Court. Owen raised eighteen claims. This Court affirmed the trial court, finding that Owen waived any attorney-client privilege that existed between him and trial counsel when he accused counsel of ineffectiveness and conflict of interest. This Court also found that Owen waived his ineffective assistance of counsel and conflict of interest claims. Next, this. Court held that the principles underlying Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), were inapplicable to the instant case. Finally, the Court found that Owen’s remaining claims were procedurally barred. See Owen, 773 So.2d at 515. On June 29, 2001, Owen filed a pro se motion for postconviction relief, which was summarily denied. Owen now appeals the trial court’s denial of his rule 3.850 motion. Additionally, Owen petitions this Court for a writ of habeas corpus, raising eleven claims.
LAW AND ANALYSIS
Rule 3.850 Motion
Owen raises a total of five claims on appeal from the denial of postconviction relief. We find that this successive motion is governed by Florida Rule of Criminal Procedure 3.850(f), which allows a trial court to dismiss a successive petition if it fails to allege new or different grounds and the prior determination was on the merits; or if new and different grounds are alleged, the trial court finds the failure to assert those grounds in a prior motion constituted an abuse of the procedures governed by the rule. A second or successive motion for postconviction relief can be denied on the ground that it is an abuse of process if there is no reason for failing to raise the issues in the previous motion. See Pope v. State, 702 So.2d 221, 223 (Fla.1997). Although claims that could have been raised in a prior postconviction motion are procedurally barred, this Court has held that a defendant may file successive postconviction relief motions that are based on newly discovered evidence. See White v. State, 664 So .2d 242, 244 (Fla.1995). In order to overcome a procedural bar, a defendant must show that the newly discovered facts could not have been discovered with due diligence by collateral counsel and raised in an initial rule 3.850 motion. See id. Based on these principles, we affirm the summary denial of relief on claims 1, 2, and 3, which are ineffective assistance of counsel claims, because these claims were raised in Owen’s prior 3.850 motion. Since Owen does not base these present claims upon newly discovered evidence, that exception does not apply here. Claim 4, Owen’s Brady claim, is insufficiently pled because it is unclear as to when Owen obtained the information he claims that the State withheld. Moreover, Owen fails to allege this material was in the State’s possession as required under Brady. See Brady, 873 U.S. at 87, 83 5.Ct. 1194. Finally, because Owen’s claims are either successive or insufficiently pled, it is unnecessary for this Court to reach the merits of claim 5 concerning the trial court’s failure to attach portions of the record. Therefore, we affirm the trial court’s order summarily denying postconviction relief.
Habeas Corpus Petition
Owen raises, inter alia, seven claims of ineffective assistance of appellate counsel as well as issues involving the constitutionality of Florida’s capital punishment statute. After reviewing each claim, we find that Owen has failed to demonstrate that he is entitled to habeas corpus relief.
We have repeatedly held that claims of ineffective assistance of appellate counsel are properly brought in a petition for writ of habeas corpus. See Thompson v. State, 759 So.2d 650, 660 (Fla.2000); Groover v. Singletary, 656 So.2d 424 (Fla. 1995); Knight v. State, 394 So.2d 997, 999 (Fla.1981). To prove ineffective assistance of appellate counsel, a claimant must show that appellate counsel performed deficiently and that the deficiency compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result. See Teffeteller v. Dugger, 734 So.2d 1009, 1026 (Fla.1999); Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985). Appellate counsel is not ineffective for failing to raise issues not preserved for appeal. See Medina v. Dugger, 586 So.2d 317, 318 (Fla.1991). However, an exception is made when appellate counsel fails to raise a claim which, although not preserved at trial, represents fundamental error. See Roberts v. State, 568 So.2d 1255, 1261 (Fla.1990). A fundamental error is 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.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1997).
Owen first argues that appellate counsel was ineffective for failing to argue the State violated section 90.410, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.172 by introducing into evidence statements that he made during plea negotiations. In Stevens v. State, 419 So.2d 1058 (Fla.1982), this Court described the two-tiered process for determining whether a discussion should be characterized as a plea negotiation so as to render it inadmissible in evidence.
To determine whether a statement is made in connection with plea negotiations, a court should use
a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.
United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) (en banc); see also United States v. O’Brien, 618 F.2d 1234 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980); United States v. Pantohan, 602 F.2d 855 (9th Cir.1979). Whether a defendant’s subjective expectation of negotiating a plea is reasonable depends on whether the state has indicated a willingness to plea-bargain and has in fact solicited the statement in question from the defendant. Unsolicited, unilateral utterances are not statements made in connection with plea negotiations.
Id. at 1062. Here, Owen fails to meet either prong of the test.
Owen claims that because he had previously negotiated a plea with Detective Marc Woods in 1982, this led him to believe that he was negotiating a plea with the State in the instant case. Owen also contends that numerous statements made by Officer Kevin McCoy (McCoy) led him to actually and reasonably believe that the officers had the power to negotiate which charges he would face. However, Owen fails to acknowledge that McCoy told him prior to the interview and repeatedly throughout the interview that he could not make any promises. Further, after a dinner break, McCoy read Owen his Miranda rights, which included the statement: “I can make no threats or promises to induce you or force you to make a statement. It must be of your own freewill,” Owen indicated that he understood his rights. Moreover, McCoy told Owen that he was not prepared to “dwindle down” the charges to get him to talk. In fact, McCoy told Owen that he could not even tell him what the charges against him would be: “I have to sit down with the attorney and review it, pal. I can’t — I can’t tell you what it’s going to be.” Owen acknowledged that he knew if he confessed there was a possibility that he could receive a death sentence because McCoy could not “guarantee promises.” Owen also stated that he knew the State Attorney was the only person that could “give guarantees.” Thus, it appears that Owen has misrepresented the record with respect to his actual, subjective expectation; clearly the record shows that Owen knew that the officers could not negotiate a plea in this case.
The instant case differs from the situation this Court considered in Richardson v. State, 706 So.2d 1349 (Fla.1998). In Richardson, the defendant’s confession took place during ongoing plea negotiations, where a written plea agreement predicated upon prior plea discussions was fully executed by the State Attorney and presented to the defendant for consideration. See id. at 1354. The officer in Richardson, unlike the officers here, repeatedly told the defendant “that the State would negotiate with him if he would give a statement.” Id. at 1355. Since the facts show that Owen could not have had a reasonable subjective belief that his statement was a part of any plea negotiations, Owen fails to show how appellate counsel’s failure to raise this claim was deficient conduct.
Next, Owen argues appellate counsel was ineffective for failing to argue that the jury venire was unconstitutional because it excluded African Americans. Owen cites Spencer v. State, 545 So.2d 1352 (Fla.1989), as support for his claim. In Spencer, the defendant’s conviction for first-degree murder was reversed because this Court found that an administrative order that created special districts for jury selection caused an unconstitutional exclusion of a large portion of the black population from the jury pool of the district from which the jury for the trial of the defendant, a black man, was drawn. Subsequently, in Moreland v. State, 582 So.2d 618 (Fla.1991), this Court stated that Spencer did not constitute a fundamental change in law. We held that the decision should be applied retroactively because it would be fundamentally unfair to deny the defendant relief where other convicted defendants had obtained relief based upon a systematic exclusion of blacks from a jury pool. See id. at 620. However, we noted that had Moreland failed to raise the issue of the constitutionality of the jury pool, he would not be entitled to relief. See id. at 620 n. 3.
Here, trial counsel failed to raise an issue regarding the constitutionality of the jury pool at trial and the issue was not raised on direct appeal. Similarly, in Nelms v. State, 596 So.2d 441 (Fla.1992), the defendant failed to challenge the constitutionality of the jury pool at trial or on direct appeal. This Court denied relief, stating:
We indicated in Moreland that had the petitioner failed to raise the issue of the constitutionality of the jury pool at trial and on direct appeal, he would not be entitled to relief. 582 So.2d at 620 n. 3. Nelms did not raise at trial or on direct appeal the issue upon which we granted relief in Moreland. His statutory challenge to the grand jury cannot be equated to the constitutional claim regarding petit jury selection upon which relief was granted in Moreland. The fundamental fairness or uniformity concerns present in that case are not present here. Further, Spencer, the first ease recognizing this claim, was decided more than three years after Nelms’ conviction was affirmed. Defense counsel cannot be held ineffective for failing to anticipate the change in the law. Stevens v. State, 552 So.2d 1082, 1085 (Fla.1989).
Nelms, 596 So.2d at 442. Here, because trial counsel did not challenge the Palm Beach County jury selection process, this issue was not preserved for appellate review. Moreover, this Court has never held that the error identified in Spencer may be considered fundamental. Appellate counsel cannot be considered ineffective for failing to raise, issues that were unpre-served and do not constitute fundamental error. See Downs v. Moore, 801 So.2d 906, 910 (Fla.2001). Therefore, we conclude that on this issue, Owen has not met either the deficiency or the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In his third claim of ineffective assistance of appellate counsel, Owen argues that counsel was ineffective for failing to raise on direct appeal the trial court’s improper admission of McCoy’s testimony. Owen argues that the following statements destroyed his chance for a fair trial:
MCCOY: I went one step further and I asked him, I.says, “Well suppose you were found not guilty.” I says, “Who would be the winner then?” Mr. Owen said, “No one would be the winner.” And I said, “Then the hurting will start ■all over again.” And Mr. Owen was nodding his head in the affirmative.
Trial counsel objected to and moved to strike McCoy’s statement because the statement implied a propensity to commit crimes and kill people. Trial counsel then made a motion for a mistrial. The trial court denied both of the motions.
Owen’s specific argument is that counsel was ineffective for failing to argue on appeal that the admission'of the statement was unfairly prejudicial in violation of section 90.403, Florida Statutes (2001). Section 90.403 provides for the. exclusion of relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” '§ 90.403, Fla. Stat. (2001). Although section 90.403 mandates the exclusion of unfairly prejudicial evidence, a large measure of discretion rests in the trial judge to determine whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See Walker v. State, 707 So.2d 300, 309 (Fla.1997).
Trial counsel preserved this issue by objecting to the admission of the above-mentioned evidence, thus appellate counsel could have raised this issue • on appeal. However, the fact that appellate counsel could have, but did not, challenge the admission of this testimony “does not constitute a deficiency falling below prevailing professional norms.” Davis v. Wain wright, 498 So.2d 857, 859 (Fla.1986). As this Court has noted, appellate counsel need not raise every conceivable claim, see Hardwick v. Hugger; 648 So.2d 100 (Fla.1994); appellate counsel could have reasonably concluded that this issue had no merit. In light of the record, Owen’s appellate counsel could not have effectively and convincingly argued against the admissibility of the above-mentioned testimony. See Ruffin v. Wainwright, 461 So.2d 109 (Fla.1984) (stating that if there is no chance of convincingly arguing a particular issue, appellate counsel’s failure to raise that issue is not a substantial and serious deficiency). Reviewing McCoy’s testimony as a whole and in context, it does not appear that the statement implied guilt or future' dangerousness; in fact, McCoy never referred to Owen hurting or continuing to hurt' • other people: Furthermore* McCoy’s statement is similar to other statements made' by Owen during his videotaped confession, which was admitted into ■ evidence. Accordingly, Owen has failed to satisfy the two-pronged Strickland test by failing to demónstrate (1) how his appellate counsel’s performance was substantially deficient under the circumstances; and (2) how any alleged deficiency was prejudicial to him. See 466 U.S. at 687,104 S.Ct. 2052.
Owen next argues appellate counsel failed to raise and argue on direct appeal that he was denied due process of law because the trial judge was biased toward the State and should have recused himself. Owen contends he was denied due process when the trial judge inquired into what effect granting a motion to suppress would have on the cases against him. Here, trial counsel failed to raise á claim of judicial bias, and thus this claim is procedurally barred. Appellate counsel cannot be deemed deficient for failing to raise a proeedurally barred issue.
Moreover, Owen’s claim is without merit. A review of the transcript of the suppression hearing shows that the trial judge made no statements which would cause Owen to believe that he would not receive a fair trial. The comments made by the judge are insufficient to show that Owen was denied the right to a fair and impartial tribunal. Cf. Porter v. State, 723 So.2d 191, 194 (Fla.1998) (finding comments made by the trial judge indicated that he was not impartial when he sentenced the defendant to death).
Additionally, Owen argues that appellate counsel was ineffective for failing to argue the sufficiency of the State’s evidence used, to prove the cold, calculated, and premeditated (CCP) aggravator. To establish CCP:
[T]he jury must first 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). To prove this aggravator, the State must show a heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill. See Rogers v. State, 511 So.2d 526, 533 (Fla.1987). The key to this aggravator is the plan. See Sweet v. State, 624 So.2d 1138 (Fla.1993). On direct appeal, this Court found that the trial court’s finding that the murder was committed in a cold, calculated, and premeditated manner was established. The Court noted:
Owen selected the victim, removed his own outer garments to prevent them from being soiled by blood, placed socks on his hands, broke into the home, closed and blocked the door to the children’s room, selected a hammer and knife from the kitchen, and bludgeoned the sleeping victim before strangling and sexually assaulting her.
Owen, 596 So.2d at 990. Since this claim was addressed and disposed of on direct appeal, appellate counsel cannot have been ineffective for failing to raise a meritless claim. See Happ v. Moore, 784 So.2d 1091, 1095 (Fla.2001).
Owen also claims appellate counsel was ineffective for failing to argue that the trial court did not properly consider all of the mitigation. This argument is meritless, and we deny relief. We have stated that “[w]hen addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant.” Campbell v. State, 571 So.2d 415, 419 (Fla.1990), receded from on other grounds by Trease v. State, 768 So.2d 1050, 1055 (Fla.2000). Here, the trial court in its sentencing order properly considered each mitigating factor raised by Owen. Owen claims that appellate counsel should have “argued that the trial court abused its discretion in failing to consider the 21 hours of video taped confessions which showed that Mr. Owen had mental health problems and attempted to seek treatment, and Mr. Owen’s cooperation with law enforcement.” It is unlikely that these factors could outweigh the strong aggravators in this case; thus, Owen has failed to meet Strickland’s prejudice prong. See 466 U.S. at 687, 104 S.Ct. 2052.
Owen also argues that Florida’s death penalty statute is unconstitutional under the United State’s Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the jury was not required to make specific factual findings as to aggravation and mitigation. Owen’s Apprendi claim must be considered in light of the Supreme Court’s recent decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which made Apprendi applicable to capital cases. See Bottoson v. Moore, 833 So.2d 693 (Fla.), cert denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002). In Bottoson, we rejected the type of constitutional challenge Owen presents in this case. We again reject this claim. Moreover, it should be noted that the trial court found as aggravating factors that Owen has been previously convicted of a violent felony and that the murder was committed during a burglary or sexual battery; both factors involve circumstances that were submitted to a jury and found to exist beyond a reasonable doubt. See § 921.141, Fla. Stat. (2001). Thus, habeas relief based on Apprendi/ Ring is hereby denied.
As his final claim, Owen argues that this Court erred by not appointing conflict-free counsel for his direct appeal. To establish a claim premised on an alleged conflict of interest:
[T]he defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance. A lawyer suffers from an actual conflict of interest when he or she “actively repre-sentes] conflicting interests.” To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.”
Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002) (citations omitted). Here, as the State points out, Owen fails to identify specific evidence in the record which shows that his interests were compromised. Owen only states “conflict existed because appellate counsel could not raise his own ineffectiveness and could not raise the fact that Owen had filed a bar complaint”; thus, Owen’s claim is insufficiently pled and relief is therefore denied.
CONCLUSION
Based on the foregoing, we affirm the trial court’s denial of postconviction relief and deny Owen s petition for writ of habeas corpus.
It is so ordered.
WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ„ concur.
ANSTEAD, C.J., concurs in part and dissents in part with an opinion.
[OPINION BY ANSTEAD, C.J., type=concurring-in-part-and-dissenting-in-part]
ANSTEAD, C.J.,
concurring in part and dissenting in part.
I concur in the majority opinion in all respects except for the discussion of Ring v. Arizona, 586 U.S. 584, 122 S.Ct. 2428, 158 L.Ed.2d 556 (2002).
The trial judge found four aggravating circumstances: (1) the defendant had been previously convicted of a violent felony; (2) the murder was committed during a burglary or sexual battery; (3) the murder was especially heinous, atrocious, or cruel; and (4) the murder was cold, calculated, and premeditated. The Court considered the following claims made by the defense in mitigation: (1) Owen's mother died when he was very young; his alcoholic father committed suicide a year later; (2) Owen and his brother were shuffled from one foster home to another until his brother finally ran away and left him; (3) Owen was sexually and otherwise abused in the foster homes; (4) Owen’s mind “snapped” during the murder; and (5) Owen had enlisted twice in the Army and aspired to be a policeman.
The facts of the Slattery case are set forth fully in this Court’s opinion on direct appeal in that case. See Owen v. State, 560 So.2d 207 (Fla.1990).
Owen’s claims were as follows: (1) the trial court should have stayed the hearing pending completion of the retrial on the Slattery murder; (2) the court should have conducted a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), when Owen opted not to proceed with the evidentiary hearing; (3) trial counsel was ineffective and suffered a conflict of interest; (4) the instruction on the aggravating factor "heinous, atrocious, or cruel” (HAC) was improper under Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992); (5) the felony murder instruction was improper; (6) the "avoiding arrest” instruction was improper; (7) the "prior violent felony” instruction was improper; (8) the instruction on the "cold, calculated, and premeditated" factor (CCP) was improper; (9) details of prior violent felonies were improperly admitted during the penalty phase; (10) attorney Barry Krischer was ineffective during the suppression hearing; (11) the penalty phase instructions improperly shifted the burden of proof to the defendant; (12) the penalty phase jury was improperly instructed concerning its role in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (13) the prosecutor made inflammatory remarks during closing argument; (14) Owen should have been allowed to poll the jurors; (15) the trial court erred in failing to allow a change of venue; (16) Florida’s capital sentencing statute is unconstitutional; (17) the video of the crime scene was unduly prejudicial; and (18) the cumulative weight of errors deprived Owen of a fair trial.
Owen asks this Court to consider (1) whether the trial court erred by failing to grant Owen an evidentiary hearing on his claim that prior postconv.iction counsel was ineffective because of a conflict of interest; (2) whether the trial court should have granted Owen an evidentiary hearing on his claim that he received ineffective assistance of counsel during the- litigation of his initial motion for postconviction relief; (3) whether the trial court erred by finding that Owen's claim of actual innocence was procedurally barred; (4) whether the trial court erred in summarily denying Owen’s claim that the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (5) whether the trial court's order denying Owen's pro se postconviction motion was inadequate because it did not contain record attachments or specify what information contained in the court file was considered by the trial court in reaching its decision.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Owen raises the following claims: (1) whether appellate counsel was ineffective for failing to raise and argue on direct appeal that Owen was denied a fair trial because of the admission into evidence of statements he made during plea negotiations with the State; (2) whether appellate counsel was ineffective for failing to raise and argue that the venire from which the jury was selected in Owen's trial was unconstitutional because it excluded African Americans; (3) whether appellate counsel was ineffective for failing to raise and argue on direct appeal that the trial court should have declared a mistrial or struck Officer Kevin McCoy's improper statement from the record; (4) whether appellate counsel was ineffective for failing to raise and argue on direct appeal that Owen was denied due process of law because the trial judge was biased toward the State and should have recused himself; (5) whether appellate counsel was ineffective for failing to raise and argue on direct appeal the trial court's denial of Owen’s jury instruction on the difference between sexual battery and vaginal penetration of a deceased individual killed prior to any sexual contact; (6) whether appellate counsel ineffectively raised and argued the sufficiency of the State’s evidence used to prove the aggravators and failed to argue that the trial court did not properly consider all of the mitigation in favor of Owen; (7) whether Owen's sentence on the noncapital cases is illegal because his offenses predated the effective date of the sentencing guidelines used by the trial court; (8) whether appellate counsel was ineffective for failing to cite controlling authority on the issue of whether Owen's confession was involuntary; (9) whether the Florida death penalty sentencing statute as applied is unconstitutional under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution; (10) whether Owen’s Eighth Amendment right against cruel and unusual punishment will be violated because he may be incompetent at the time of execution; and (11) whether this Court erred by not appointing conflict-free counsel for Owen's direct appeal.
The issue of the appropriate sentencing guidelines for the noncapital offenses is pending in the trial court on a 3.800 motion and will not be addressed here. Additionally, the issue of Owen's competency to be executed is not ripe for review at this time. See Fotopoulos v. State, 838 So.2d 1122 (Fla.2002); see also Fla. R.Crim. P. 3.811(c).
Section 90.410, Florida Statutes (2001), reads: "Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.” Florida Rule of Criminal Procedure 3.172 governs the acceptance of guilty or nolo contendere pleas.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). .It appears that Owen is also attempting to relitigate the admissibility of his confession under the guise of an ineffective assistance of appellate counsel argument. Owen raised this argument on direct appeal. See Owen, 596 So.2d at 987. An ineffective assistance of appellate counsel argument cannot be used as a means of relitigating an issue previously considered. See Porter v. Dugger, 559 So.2d 201, 203 (Fla.1990). To the extent that Owen is attempting to reargue the admissibility of his confession, his claim is procedurally barred.
The Court had previously reversed two other cases on this issue at the time of Moreland. See Craig v. State, 583 So.2d 1018 (Fla.1991); Amos v. State, 545 So.2d 1352 (Fla.1989).
Owen's trial in this case occurred in 1986 and the direct appeal opinion was issued by this Court in 1992.
Furthermore, this Court could not have concluded without the existence of record evidence to substantiate Owen’s Spencer claim that fundamental error occurred in this case. See Spencer, 545 So.2d at 1353-54.
In reviewing this claim, it appears that Owen may be challenging the admission of his confession into evidence. To the extent that he is attempting to do so, this Court has already ruled against Owen on this issue on direct appeal. See Owen, 596 So.2d at 988.
Owen also argues appellate counsel was ineffective for failing to cite other authority on the issue of the voluntariness of his confession. This Court addressed the voluntariness issue on direct appeal and will not revisit that claim in this habeas petition. We also addressed on direct appeal the sexual battery/live victim issue and will not revisit it in the guise of ineffective assistance of appellate counsel.
Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
No. 4D03-3676.
District Court of Appeal of Florida, Fourth District.
Jan. 14, 2004.
Duane Eugene Owen, Raiford, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Celia A. Terenzio, Assis-taut Attorney General, West Palm Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Duane Euguene Owen seeks review of an order that denied his Florida Rule of Criminal Procedure 8.800 motion. Owen argued that his 1986 sentences are illegal in light of the Florida Supreme Court’s decision in Smith v. State, 537 So.2d 982 (Fla.1989). Smith held the sentencing guidelines unconstitutional for offenses committed before July 1, 1984. In essence, before July 1, 1984, a trial court lacked legal authority to impose a guidelines sentence. A defendant could become eligible for parole if not sentenced pursuant to the guidelines. Id.See also Kunkel v. State, 765 So.2d 244 (Fla. 1st DCA 2000).
Owen’s offense dates predate July 1, 1984. Owen’s motion is legally sufficient as he alleged that he was not given the opportunity to elect to be sentenced under the law prior to the establishment of sentencing guidelines, under which he would be eligible for parole. We reject the state’s claim of harmless error, and reverse and remand for the trial court to consider the claim on the merits.
STEVENSON, HAZOURI and MAY, JJ., concur.
Leonard v. State, 760 So.2d 114, 116 n. 4 (Fla.2000).
Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee; Duane Eugene Owen, Petitioner, v. Walter A. McNeil, etc., Respondent.
Nos. SC06-2104, SC07-650.
Supreme Court of Florida.
May 8, 2008.
As Revised on Denial of Rehearing July 10, 2008..
Bill Jennings, Capital Collateral Regional Counsel, and James L. Driscoll, Jr., Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
Bill McCollum, Attorney General, Tallahassee, FL, and Celia Terenzio and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee/Respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Owen appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const; For the reasons expressed below, we affirm the circuit court’s order and deny Owen’s petition.
I. FACTUAL AND PROCEDURAL HISTORY
Duane Owen was convicted of burglary, sexual battery, and first-degree murder for the 1984 murder of Karen Slattery. The facts of Slattery’s murder and Owen’s subsequent confession were set out in detail in Owen v. State, 560 So.2d 207 (Fla.1990) (Owen I). On direct appeal, this Court reversed Owen’s convictions and sentence and remanded for a new trial due to a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Owen I, 560 So.2d at 211. After this Court’s decision in Owen I, the United States Supreme Court issued Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), which held that police are not required to cease questioning if a suspect makes an ambiguous or equivocal request for counsel. In State v. Owen, 696 So.2d 715, 720 (Fla.1997) (Owen II), this Court found that the principles announced in Davis applied to the admissibility of confessions in Florida and held that the admissibility of Owen’s confession in his retrial would be subject to the Davis rationale.
Following retrial, Owen was found guilty of first-degree murder, attempted sexual battery, and burglary. After the penalty phase, the jury recommended by a ten-to-two vote that Owen be sentenced to death. The trial judge followed the jury’s recommendation and imposed a death sentence for the murder conviction, sentenced Owen to fifteen years for the attempted sexual battery, and sentenced Owen to life for the burglary. The trial judge found four aggravating circumstances, three statutory mitigating circumstances, and sixteen nonstatutory mitigating circumstances. State v. Owen, Case No.: 84-4014CF A02 (Fla. 15th Cir. Ct. sentencing order filed March 23,1999) (Sentencing Order).
Owen appealed his murder conviction and sentence, raising seven issues on direct appeal. This Court found all of Owen’s claims were without merit and affirmed the convictions and sentence of death. Owen v. State, 862 So.2d 687 (Fla.2003) (Owen III).
Owen subsequently filed a motion for postconviction relief pursuant to rule 3.851, raising eight claims, which included numerous subissues. During a March 31, 2006, case management conference, the trial court granted Owen leave to amend his motion to avoid summary denial of several claims. On May 18, 2006, Owen filed his first amended motion for postconviction relief. The trial court conducted an evidentiary hearing on some of Owen’s claims. On September 21, 2006, the trial judge issued an order denying relief. State v. Owen, Case No. 84-4014CF A02 (Fla. 15th Cir. Ct. order filed September 22, 2006) (Postconviction Order). Owen now appeals the trial court’s order, raising five claims. Owen has also filed a petition for writ of habeas corpus, raising three claims.
II. APPEAL FROM DENIAL OF POSTCONVICTION RELIEF
A. Claims Denied Without Evidentiary Hearing
Owen argues that the trial court erred in summarily denying several of his ineffective assistance of counsel claims and his claims based upon Brady v. Maryland, 873 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). An evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000). “Postconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Connor v. State, 979 So.2d 852, 868 (Fla.2007). A court’s decision whether to grant an evidentiary hearing is subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003).
1. Motion to Suppress
Owen argues that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to sufficiently challenge on retrial the admission of Owen’s statements to law enforcement officers. We find no error in the summary denial because each of Owen’s proposed grounds for suppression is without merit. Allegations that counsel was ineffective for not pursuing meritless arguments are legally insufficient to state a claim for postconviction relief. See Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992) (holding counsel cannot be deemed ineffective for failing to make meritless argument).
First, Owen asserts that counsel was deficient for not arguing that Owen’s confession should be suppressed because law enforcement officers lacked probable cause to arrest Owen when he was seized. The trial court did not err in summarily denying this subclaim because it is legally insufficient and procedurally barred. On direct appeal from Owen’s original conviction, this Court rejected prior appellate counsel’s argument that Owen’s confession should have been suppressed on the basis that he was illegally seized after finding that the police had probable cause to arrest Owen. Owen I, 560 So.2d at 210. To the extent that this Court authorized relitigating the admissibility of Owen’s confession in Owen II, it did so only in the context of whether law enforcement officers violated Owen’s right to remain silent. All other issues decided in Owen I became the law of the case. Owen’s retrial counsel did not err by not rearguing the seizure issue because the finding that the police had probable cause was the law of the case.
In an attempt to avoid the effect of this Court’s decision in Owen I, Owen argues that his counsel at his first trial was ineffective for failing to argue that Owen was seized on May 29, 1984, rather than on May 30, 1984, as three law enforcement officers testified during the hearing on Owen’s motion to suppress. We find that the postconviction trial court properly denied this claim.
During his first direct appeal, Owen filed a supplemental pro se brief with this Court. In that brief, Owen argued that he was illegally seized when he “was stopped while walking down the sidewalk at approximately 10:30 AM on May 29th, 1984, by a Boca Raton police officer who was acting on a photograph which looked similar to the appellant.” In support of his argument, Owen filed an appendix to his brief that included two “Advisement of Rights” forms. One form was signed “Dana L. Brown,” Owen’s alias, and dated 1:10 p.m., May 29, 1984. The other form was signed “Duane E. Owen,” and dated 5:45 p.m., May 29, 1984. Thus, when this Court held that the “police had more than founded suspicion, they had probable cause” to stop and seize Owen, see Owen I, 560 So.2d at 210, this Court had before it that which is now raised as the basis of an ineffective assistance of counsel claim. Given this record, the postconviction trial court did not err in summarily denying Owen’s claim. Owen’s postconviction claim reargues the same legal issue, based on the same factual allegations, that was raised in his direct appeal and thus is procedurally barred. Moreover, Owen’s postconviction allegations fail to state a prima facie claim of prejudice. Owen’s allegation that “numerous law enforcement documents show that Mr. Owen was held in the unlawful custody of the Boca Raton Police Department, including the rights forms signed Dana Brown and Duane Owen on May 29, 1984, and an evidence log with the same date” does not undermine confidence in these proceedings because the majority of this information was presented to this Court on direct appeal.
Second, Owen asserts that counsel was deficient for not arguing that Owen’s confession should be suppressed because it was obtained in violation of his Sixth Amendment right to counsel. Owen argues that his right to counsel in the Slattery murder case attached at his first appearance on an unrelated burglary charge, where the facts of the homicide were used to increase his bond from $1000 to $100,000. The trial court did not err in denying this subclaim because it is legally insufficient — the asserted ground for suppression is without merit as a matter of law. This Court has explained that “the Sixth Amendment right to the assistance of counsel is ‘offense specific’ and applies only to the offense or offenses with which the defendant has actually been charged, and not to any other offense he may have committed but with which he has not been charged.” Ibar v. State, 938 So.2d 451, 470 (Fla.2006). The Sixth Amendment right to counsel “attaches at the earliest of the following points: formal charge, preliminary hearing, indictment, information, or arraignment.” Smith v. State, 699 So.2d 629, 638 (Fla.1997). At the earliest, Owen’s right to counsel in the Slattery murder attached when he was charged with that offense on June 22, 1984. As a result, his June 21, 1984, confession could not have been obtained in violation of such right.
Third, Owen asserts that counsel was deficient for not arguing that Owen’s confession should be suppressed because it was made during what Owen reasonably believed to be plea negotiations. Section 90.410, Florida Statutes (1999), provided that “[e]vidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.” This Court has explained that to determine whether a statement is made in connection with plea negotiations, a court should use “a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.” Owen v. Crosby, 854 So.2d 182, 189 (Fla.2003) (quoting Stevens v. State, 419 So.2d 1058, 1062 (Fla.1982)). The trial court did not err in summarily denying this subclaim because again the asserted ground for suppression is without merit. Owen’s testimony at the suppression hearing positively refutes his postconviction allegation that he had an actual subjective expectation to negotiate a plea at the time of his confession to the Slattery murder. Owen testified that while being questioned in May and June of 1984, he understood that only Assistant State Attorney Paul Moyle, not the questioning officers, had authority to determine the charges against him. Owen further testified that he had not spoken to Moyle and that to his knowledge Moyle had never offered him a plea agreement. Finally, Owen explained that the police officers never promised him that he would go to a hospital if he confessed, but rather, Owen “was hoping” that if he confessed, he would be sent to a hospital instead of prison. Counsel was not ineffective for not arguing this basis for suppression because Owen’s own testimony refutes the claim that he had a reasonable, subjective belief that he was negotiating a plea at the time of his confession.
2. Dr. Crown’s Testimony
The trial court did not err in summarily denying Owen’s claim that trial counsel was ineffective for not calling Dr. Barry Crown during the guilt phase to testify about Owen’s neuropsychological impairment in support of Owen’s insanity defense. Dr. Crown did testify during Owen’s penalty phase. He testified that neurological testing indicated that Owen suffered from organic brain damage and that due to this damage, Owen likely would have difficulty understanding long-term consequences and controlling his impulsivity. Dr. Crown explained that impairment in reasoning and judgment caused by brain damage “exacerbates” the problems caused by mental illness. Owen does not allege that Dr. Crown’s guilt-phase testimony would be different than that actually presented at the penalty phase. Thus, there is no factual dispute and no need for an evidentiary hearing.
After reviewing Dr. Crown’s penalty-phase testimony, we agree with the trial court’s conclusion that Owen failed to show that counsel was deficient because Dr. Crown’s testimony would not have been admissible during the guilt phase. We further agree that Owen has not demonstrated deficiency or prejudice because, even if admissible, Dr. Crown’s testimony would actually be harmful to Owen’s defense.
In keeping with the requirements of the M’Naghten rule, to be relevant to an insanity defense, expert testimony must concern whether the defendant (1) was incapable of distinguishing right from wrong (2) as a result of a mental infirmity, disease, or defect. Hall v. State, 568 So.2d 882, 885 (Fla.1990). Both aspects of the insanity defense must be addressed. Expert testimony that a defendant suffered from a mental infirmity, disease, or defect without concluding that as a result the defendant could not distinguish right from wrong is irrelevant. Id. (citing Gurganus v. State, 451 So.2d 817 (Fla.1984); Right v. State, 512 So.2d 922 (Fla.1987); Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978)). While Dr. Crown testified that Owen suffered from a recognized mental defect or infirmity, he did not conclude that as a result Owen could not distinguish right from wrong. Dr. Crown explicitly testified that he did not form an opinion about Owen’s sanity. Thus, Dr. Crown’s testimony would not have been admissible during the guilt phase. Trial counsel cannot be deemed ineffective for failing to present inadmissible evidence. Pietri v. State, 885 So.2d 245, 254 (Fla.2004).
Moreover, competent, substantial evidence supports the trial court’s conclusion that Dr. Crown’s testimony would not have been helpful to the defense. The helpful aspects of Dr. Crown’s testimony were touched upon by Dr. Faye Sultan, a psychologist who testified on behalf of Owen during the guilt phase. Dr. Sultan testified that Owen suffered from frontal lobe damage, which impacted his decision-making ability and caused “impulse control problems.” The defense-friendly aspects of Dr. Crown’s testimony would have been largely cumulative. See Darling v. State, 966 So.2d 366, 378 (Fla.2007) (“[T]rial counsel is not ineffective for failing to present cumulative evidence.”). Furthermore, Dr. Crown’s testimony was not entirely favorable for Owen. While Dr. Crown emphasized that he did not conduct the full psychological evaluation of Owen that was needed to evaluate sanity, he opined that Owen’s brain damage would not have prevented Owen from planning a crime and would not have substantially impaired Owen’s capacity to appreciate the criminality of his conduct.
3. Brady and Giglio Claims
In addition to his ineffective assistance of counsel claims, Owen argues that the trial court erred in summarily denying his claims based on Brady and Giglio.
Owen alleged that the State violated Brady by not disclosing notes that law enforcement officers seized from Linda Burkholder, a counselor at a mental health program that Owen attended in 1983, which documented Owen’s delusional thinking and other mental infirmities. To establish a Brady violation, the defendant must show (1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
The State argued and the trial court held that Owen’s Brady claim in the instant case was procedurally barred because this Court affirmed the summary denial of the “identical” claim on appeal from the denial of Owen’s successive postconviction motion relating to his conviction for the murder of Georgianna Worden. See Owen v. Crosby, 854 So.2d 182, 187 (Fla.2003). While we do not agree with the trial court’s reason for denying the instant Brady claim, we do find that Owen is not entitled to postconviction relief. Owen’s allegations fail to state a legally sufficient claim of suppression, and the trial record refutes Owen’s allegations that he was prejudiced because Burkholder’s notes were material.
As for the suppression prong, Owen’s allegations, taken as true, do not establish that the notes were willfully or inadvertently suppressed. As explained in Occhicone v. State, 768 So.2d 1037, 1042 (Fla.2000):
Although the “due diligence” requirement is absent from the Supreme Court’s most recent formulation of the Brady test, it continues to follow that a Brady claim cannot stand if a defendant knew of the evidence allegedly withheld or had possession of it, simply because the evidence cannot then be found to have been withheld from the defendant.
Equally available evidence is not suppressed where “the defendant was aware of the exculpatory information.” Way v. State, 760 So.2d 903, 911 (Fla.2000). See also Tompkins v. State, 872 So.2d 230, 239 (Fla.2003) (finding no suppression where defense was given illegible copy of police report because defense became aware of report and could have requested legible copy).
In the instant case, Owen alleged that the “notes were in the possession of the State because the notes were taken by law enforcement officers from Linda Burkholder” and that he “obtained the information about the notes after the Slattery retrial.” However, Owen’s motion did not explain how he could have been unaware of his own therapist as a source of potentially exculpatory information until after his 1999 retrial, given his allegations that he discussed his mental illness with Burkholder prior to 1984 and that she took notes during their sessions. Owen did not allege that Burkholder or her notes were made unavailable to Owen by the State’s actions. To the contrary, the record reveals that Owen’s 1982 arrest in Michigan and the police reports concerning burglaries in Florida in 1982 were known by Owen’s counsel and the defense experts in their work on the case; yet nowhere in the trial record is there any indication of a failed attempt to get testimony from Linda Burkholder or any request from the experts about wanting to know about Burkholder’s treatment of Owen that went unfulfilled because the information was unavailable. Thus, Owen’s conclusory allegations fail to satisfy the suppression prong.
Even if we were to find Owen’s allegations of suppression to be sufficient and not refuted by the record, Owen’s claim that he was prejudiced by the alleged suppression of Burkholder’s notes is refuted by the record. “[T]he ‘ultimate test’ in determining if a Brady violation occurred is whether ‘confidence in the outcome of the trial is undermined to the extent that there is a reasonable probability that had the information been disclosed to the defendant, the result of the proceeding would have been different.’” Way, 760 So.2d at 912 (quoting Young v. State, 739 So.2d 553, 559 (Fla.1999)). This Court follows the Supreme Court’s standard for determining materiality:
[T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions. Rather the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”
Way, 760 So.2d at 913 (alteration in original) (quoting Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995))).
Owen argues that Burkholder’s notes would have been relevant to both the guilt and penalty phases of his trial or would have been used as impeachment. He argues that the notes “would have showed the jury that Mr. Owen’s gender identity and other mental illness symptoms were manifest before Mr. Owen was facing the death penalty, thus refuting the State’s charge of recent fabrication.” Reviewing the record as a whole, we conclude that Burkholder’s notes would have been cumulative and thus not material.
Owen called Dr. Fred Berlin, a psychiatrist, and Dr. Faye Sultan, a psychologist, to testify about Owen’s mental health during both the guilt and the penalty phases of his trial. Dr. Berlin testified that he examined records from the Veterans of Foreign Wars (VFW) home where Owen lived as a teenager and police reports from a 1982 burglary where Owen stole a woman’s swimsuit. Dr. Berlin testified that he concluded that Owen was having problems with gender identity as a teenager and at the time of a burglary in 1982. Dr. Berlin testified that Owen had had false beliefs that he was a woman “since early childhood.” Dr. Sultan testified that she reviewed “a very extensive set of documents” from the VFW home, including “some psychological reports that were done of him, one when he was in the seventh grade and one when he was in the tenth grade.” Dr. Sultan testified that “there was some indication Mr. Owen suffered some very serious — actually attempted a suicide when he lived in the VFW home and had to be hospitalized when he was about 17 or 18 in a mental hospital.” The defense also called Lieutenant Marc Woods, who investigated Owen in relation to the 1982 burglaries and assisted law enforcement officers in 1984, to testify about Owen’s mental state. On cross-examination, Lieutenant Woods agreed that the 1982 Florida charges were nolle prosequied because Owen “could receive mental health treatment up there [in Michigan] as well as down here.” This record indicates that the defense experts had documents from the VFW home, psychological evaluations done while Owen was living at the home, reports from the hospital where he was admitted after attempting suicide at age seventeen or eighteen, and the police reports from the 1982 burglaries, and that the experts testified that they had reviewed sufficient records to conclude that Owen’s mental illness went back into his childhood, well before he faced the death penalty for the murder of Karen Slattery. Given the totality of the evidence, we find no basis upon which to conclude that Linda Burkholder’s notes would have put the ease in such a different light as to undermine confidence in the verdict or the sentence.
Finally, the trial court did not err in summarily denying Owen’s claim that the State violated Giglio and Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by purposely creating a false impression that the State’s mental health experts were independent, court-appointed experts. First, the claim is procedurally barred because Owen could have challenged these on-the-record statements on direct appeal. See, e.g., Craig v. State, 685 So.2d 1224, 1226-27 (Fla.1996). Second, Owen’s allegations do not state a claim under Giglio, which requires a defendant to allege that: (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006). The prosecutor did not present or fail to correct false testimony. Dr. Thomas Waddell and Dr. McKinley Cheshire, who testified as mental health experts during the guilt and penalty phases, and Dr. Martin Tracey, who testified as a population genetics expert during the guilt phase, were appointed by the trial court at the request of the State.
B. Ineffective Assistance of Counsel During Voir Dire
1. For-Cause and Peremptory Juror Challenges
Owen argues that the postconviction trial court erred in denying his claim that his counsel was ineffective for not challenging for cause or using a peremptory challenge to remove three jurors. The trial court did not err in denying this claim. In Carratelli v. State, 961 So.2d 312, 324 (Fla.2007), this Court held that “where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased” to be entitled to relief. The Court explained:
A juror is competent if he or she “can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk [v. State], 446 So.2d [1038] at 1041 [(Fla.1984)]. Therefore, actual bias means bias-in-fact that would prevent service as an impartial juror. Under the actual bias standard, the defendant must demonstrate that the juror in question was not impartial — i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the record.
Id. (citation omitted). The precise issue raised in Carratelli was trial counsel’s failure to preserve for appeal the trial court’s denial of a challenge for cause. However, this Court agreed with the Fourth District that failing to preserve the denial of a challenge for cause is tantamount to failing to make a challenge for cause. Id. at 316. Thus, counsel’s failure to exercise a cause challenge or a peremptory challenge against a juror is likewise subject to the postconviction standard set forth in Carratelli Owen is not entitled to relief because he did not demonstrate that an actually biased juror served on his jury.
Owen argues that trial counsel should have removed juror Knowles, who had recently been the victim of a home invasion where her daughter was raped, because that crime was similar to the crime at issue in Owen’s trial. This argument is without merit. Knowles’ responses during voir dire indicated that she would be able to “lay aside any bias or prejudice and render [her] verdict solely upon the evidence presented and the instructions on the law given to [her] by the court.” Lusk, 446 So.2d at 1041. Based upon the totality of Knowles’ responses in her voir dire, Owen has not shown her to be actually biased.
Next, Owen argues that trial counsel should have removed two jurors, jurors M. and G., because those jurors indicated a personal belief that the death penalty should be automatically imposed under certain circumstances. This argument is without merit. The record demonstrates that despite her personal viewpoint, juror M. stated a willingness and ability to lay aside her possible bias and follow the trial court’s instructions. Juror M. never equivocated as to whether she could follow the law, and accordingly, Owen has not shown her to be actually biased. Juror G.’s responses during voir dire created some doubt as to whether she could lay aside her belief and apply the law in the circumstance of multiple victims. However, as set forth in Carratelli, while the standard for obtaining a reversal upon the erroneous denial of a cause challenge on direct appeal is relatively lenient, consideration of a postconviction claim must be more restrictive. 961 So.2d at 320. To be entitled to postconviction relief, Owen must demonstrate that juror G. was actually biased, not merely that there was doubt about her impartiality. While G. answered that she “[p]robably” would vote for the death penalty in the circumstance of multiple victims and gave confusing answers regarding how she would consider mitigating evidence, she ultimately stated that she would consider mental health testimony and that such testimony could influence her toward a life sentence. No “evidence of bias” is “plain on the face of the record.” Id. at 324. Thus, Owen did not demonstrate that juror G. was actually biased.
2. Comment Regarding Mitigating Factors
Owen argues that the trial court erred in denying his claim that trial counsel was ineffective for failing to object to the trial court’s statements to two jurors that the mitigating circumstances would be “spelled out” or “defined.” The postconviction trial court found Owen’s claim to be without merit because the trial court properly instructed the jury regarding mitigating factors and “the record dispels any notion that trial counsel in some way left this jury with no guidance, instruction, or definition of what nonstatutory mitigating evidence was present and should be considered.” Postconviction Order at 19. We agree. Owen has not demonstrated prejudice because the jury was properly instructed on the topic of mitigation. See Belcher v. State, 851 So.2d 678, 684-85 (Fla.2003) (holding trial court did not abuse its discretion by giving “catch-all” jury instruction about nonstatutory mitigation instead of Belcher’s list of nonstatutory mitigating factors). The “catch-all” instruction in Belcher was almost identical to Florida Standard Criminal Jury Instruction 7.11, which was given in Owen. Moreover, trial counsel was not deficient for failing to object to the comments because the comments were not improper. See Darling, 966 So.2d at 383 (holding counsel was not ineffective for failing to raise a meritless objection). The trial judge did not tell jurors that he, the trial judge, would be defining the mitigating factors, only that they would be explained. Counsel knew that she would have the opportunity to explain the mitigating factors during penalty-phase closing argument, and she did detail the statutory mitigating factors and the proposed nonstatutory mitigating factors at that time.
3. Remaining Voir Dire Claims
In his remaining ineffective assistance of counsel claims arising during voir dire, Owen argues that counsel was deficient for not objecting to a statement by the prosecutor about when the insanity defense can be raised and for not making a motion to strike the entire panel after the prosecutor asked a question that revealed to the panel that Owen was imprisoned. In both claims, Owen fails to allege that he was prejudiced by his trial counsel’s omission. Thus, Owen is not entitled to relief.
C. Ineffective Assistance of Counsel During Penalty Phase
Owen argues that the trial court erred in denying his claim that trial counsel was ineffective during the penalty phase. We agree that each of Owen’s specific ineffective assistance of counsel arguments is without merit.
1. Substance Abuse as Additional Mitigation
Owen argues that trial counsel was ineffective for not investigating Owen’s history of drug and alcohol abuse because had counsel investigated this avenue of mitigation she could have presented witnesses that would have testified to Owen’s history of substance abuse and thereby influenced the jury in favor of a life recommendation. The postconviction trial court found that Owen failed to satisfy the prejudice prong of Strickland because evidence of his substance abuse likely would not change the sentence, given the weighty aggravation and substantial mitigation found by the sentencing judge. We agree that Owen has not demonstrated prejudice.
During the penalty phase, the defense called Dr. Crown, a neuropsychologist, Dr. Berlin, a psychiatrist, Dr. Sultan, a psychologist, and investigator Hillary Sheehan to testify about Owen’s background and his mental health. Based on this testimony, the sentencing judge found three statutory mitigating circumstances, including both mental health statutory mitigating factors and sixteen nonstatutory mitigating circumstances. The sentencing judge found that Owen “was exposed to sexual and physical violence on almost a daily basis from his infancy to his teenage years”; was sexually abused himself beginning around age nine; lived in “filthy and deplorable” conditions after his mother’s death; and was sent to an orphanage that “was just as bad, or even worse” than Owen’s former home. Sentencing Order at 4049-50. He concluded that Owen “had one of the more horrific childhoods that this Court has seen or heard of,” id. at 4051, but ultimately found that the weighty mitigation present in this case did not outweigh the four established aggravating factors: prior violent felony (first-degree murder, attempted first-degree murder, armed burglary, and sexual battery), offense committed while engaged in commission or attempt to commit burglary, HAC, and CCP.
During the postconviction evidentiary hearing, Owen called six lay witnesses who testified to his use of drugs and alcohol as a child and adolescent. Owen also called two expert witnesses. Dr. Henry L. Dee, who testified as an expert in the area of psychology and neuropsychology, reported that Owen began to drink beer at age ten or eleven, began using marijuana, hashish, Seconals, Dexedrine, Lysergic Acid Diethylamide (LSD), psilocybin mushrooms, and peyote around age twelve to fourteen, and began using crystal methamphetamine around age nineteen. Dr. Dee opined that Owen had brain damage and that Owen’s substance abuse “would certainly exacerbate” Owen’s impulse control problems caused by his neuropsychological impairment and mental illness. Heidi Hammond Guerra conducted a comprehensive substance abuse evaluation of Owen and testified as an expert in the field of mental health counseling, addiction counseling, and rehabilitation counseling. She testified that Owen used drugs steadily from age nine or ten. Guerra explained that “the only period of sobriety” in Owen’s adult life was when Owen briefly went into the Army.
Owen asserts that the evidence presented during the postconviction evidentiary hearing would have given the sentencing judge and the jury a more complete picture of Owen’s mental health and would have resulted in more weight being given to the mental health mitigating factors found by the sentencing judge. We disagree. Only Dr. Dee’s testimony touched upon Owen’s mental health as it related to the Slattery murder. He opined that generally speaking, Owen’s impulsivity would have been exacerbated by his substance abuse. Yet, Dr. Dee did not offer an opinion as to whether Owen’s actions on the night of the offense demonstrated impulsivity, and as the postconviction trial court explained, the facts of Owen’s calculated murder of Karen Slattery largely refuted the theory that Owen acted impulsively at the time of the crime. Given the deliberate manner in which Owen twice entered the home in which Karen Slattery was babysitting before attacking her, it seems unlikely that Dr. Dee’s testimony about how Owen’s substance abuse would have exacerbated his impulsivity would change the trial judge or jury’s evaluation of Owen’s mitigation. Our confidence in the death sentence is not undermined by counsel’s failure to present evidence of Owen’s history of substance abuse.
2. Admission of Statement Regarding Sexual Battery
Owen argues that the trial court erred in denying his claim that counsel was ineffective for allowing the jury to learn that Owen committed an uncharged sexual battery and to hear Owen’s irrelevant and prejudicial statements about that sexual battery. The State called Captain Kevin McCoy of the Boca Raton Police Department to testify during the penalty phase about his investigation of three prior felonies committed by Owen, including the attempted murder of M.M.. During cross-examination, defense counsel twice asked Captain McCoy if Owen had confessed to having sex with M.M., and McCoy answered in the affirmative. On redirect examination, the State asked the trial court for permission to introduce a statement Owen had made to Captain McCoy about the M.M. sexual battery. Over defense objection, the trial judge allowed Captain McCoy to read the following lines transcribed from a video recording of Owen’s confession:
Answer by Mr. Owen: Yeah. So I opened up all the drawers, couldn’t still find nothing. All I had was just that ring. So she was still knocked out, so at that point I figured, well, hell, man, I might as well just go over there and take advantage of her shit.
Question [by Captain McCoy]: Uh-huh.
Answer: Because she wasn’t that bad looking.
Question: Right.
Answer: So I went over there and I ended up raping her, you know.
Answer: No. I ended up taking them [the victim’s pants] off then, you know, going about my work and—
Question: Okay. So you raped her on the bed.
Answer: Yeah.
The postconviction trial court found that counsel acted reasonably in not objecting to this line of questioning because the details of that crime were consistent with Owen’s insanity and sexual confusion defense. The trial court also found that Owen was not prejudiced by this testimony because the prior violent felony aggravator was proven by Owen’s conviction for the murder of Georgianna Worden. The record supports the trial court’s findings. When reviewed in context, attorney Haughwout’s questions appear to have been part of a strategy to portray Owen as sexually confused due to being a victim of childhood sexual abuse. The questions revealed that the attempted murder of M.M. included a sexual battery and were followed by questions highlighting the sexual aspect of other crimes committed by Owen. Counsel is not ineffective for making a strategic decision to present evidence, even when in hindsight that decision opened the door to admission of evidence that is not entirely favorable to the defendant. For example, in Dillbeck v. State, 964 So.2d 95, 105-06 (Fla.2007), this Court held that counsel was not ineffective for presenting evidence about Dillbeck’s mental health and model prisoner evidence despite the presentation of such mitigation opening the door to evidence of a prior stabbing, an escape attempt, and the stabbing of another inmate. The Court found reasonable counsel’s belief that the jury would be more likely to recommend death if the defense introduced no mitigation at all. Id. at 106. Furthermore, Owen has not demonstrated that he was prejudiced by admission of his statements because all four aggravating factors were proven beyond a reasonable doubt, independent of Owen’s statements about the M.M. sexual battery, and the trial judge found both statutory mental health mitigating factors and two nonstatutory mental health mitigating factors to be established despite Owen’s account of the sexual battery.
3. Cross-Examination of Dr. Sultan
Owen argues that the trial court erred in holding that counsel was not ineffective for not making a motion for mistrial after the State questioned Dr. Sultan about her work for Capital Collateral Regional Counsel (CCRC) and CCRC’s mission on behalf of death-row inmates in Florida. The trial court found that counsel was not ineffective because a motion for mistrial would not have been granted. We agree. “A mistrial is a device used to halt the proceedings when the error is so prejudicial and fundamental that the expenditure of further time and expense would be wasteful if not futile.” Ferguson v. State, 417 So.2d 639, 641 (Fla.1982); see also Smith v. State, 866 So.2d 51 (Fla.2004) (holding mistrial is required only when error is so prejudicial as to vitiate entire trial). The questions here do not rise to the level of prejudicial error meriting a mistrial. The jury was aware that Dr. Sultan was hired by the defense so it is difficult to see how the discussion of Dr. Sultan’s employment by CCRC in other cases would significantly color the jury’s assessment of her testimony in this case. Counsel is not ineffective for failing to make a motion that is without merit. See McDonald v. State, 952 So.2d 484, 497 (Fla.2006) (“We find no error in the circuit court’s conclusion that trial counsel was not ineffective for failing to file a motion that would not have been granted.”).
4. Penalty-Phase Closing Argument
Owen’s claim that the trial court erred in denying his arguments that trial counsel was ineffective for not objecting to the prosecuting attorney’s penalty-phase closing argument is without merit. Owen asserts that the prosecutor’s argument impermissibly relied on facts from three prior convictions to argue that aggravating factors other than the prior violent felony factor applied to the Slattery murder. When read in context, the prosecutor’s argument is not improper. The prosecutor argued that the methodical nature of Owen’s other crimes and the similarities among his crimes supported an inference that his actions in the Slattery murder were part of a careful plan rather than impulsive acts motivated by an insane delusion, but ultimately, the prosecutor argued that the jury should find CCP in the Slattery case because Owen committed the Slattery murder in a cold, calculated, and premeditated manner, not because Owen committed other crimes in a cold, calculated, and premeditated manner. Moreover, even if the prosecutor’s argument was erroneous and reasonable counsel would have objected, Owen has not demonstrated prejudice. In his sentencing order, the sentencing judge cited to specific facts from the Slattery murder in finding that the aggravating factors that the offense was committed during the commission of a burglary, HAC, and CCP were proven beyond a reasonable doubt. On direct appeal, this Court reviewed the trial court’s findings of HAC and CCP and found them appropriate. Owen III, 862 So.2d at 700-02.
Owen also argues that trial counsel should have objected to the prosecutor labeling Owen a “cunning rapist” during closing argument. Prior to his retrial for the Slattery murder, Owen was convicted of sexual battery. Owen v. State, 596 So.2d 985, 986 (Fla.1992) (affirming conviction of murder, sexual battery, and burglary in Worden case). This conviction was entered into evidence during the penalty phase. The State likewise presented evidence that the murder and sexual battery of Karen Slattery was deliberate and planned. Prosecutors are permitted to argue logical conclusions that can be drawn from the evidence presented at trial. See Franqui v. State, 804 So.2d 1185, 1195 (Fla.2001). We do not find a basis upon which to grant postconviction relief because counsel did not object to the State’s closing argument. See Darling, 966 So.2d at 383.
D. Ineffective Assistance of Counsel During Guilt Phase
1. Voluntary Intoxication Defense
Owen argues that the trial court erred in denying his claim that trial counsel was ineffective for failing to raise a voluntary intoxication defense. The trial court found that Owen did not demonstrate deficiency because Owen did not present any evidence that he was intoxicated at the time of the offense, and the evidence at trial demonstrated that Owen knew what he was doing the night of the murder. Competent, substantial evidence supports the trial court’s conclusion that a voluntary intoxication defense was not viable. Owen failed to present any evidence during the postconviction hearing that he was intoxicated at the time of the crime or that his history of substance use would have negated his ability to form specific intent. When asked if the murder of Karen Slattery demonstrated “impulsivity” caused by brain damage and exacerbated by Owen’s substance use, Dr. Dee responded that he had not “looked at [the crime] in that regard.” Ms. Guerra likewise stated that she had no opinion on Owen’s state of intoxication at the time of the Slattery murder. Further, none of the lay witnesses testified to drug or alcohol use around the time of the Slattery murder. They all testified about Owen’s substance use as a child and as a teenager, not about his behavior in March of 1984. Even if Owen had presented evidence that he was intoxicated on the night of the murder, the deliberate, careful nature of the crime and his detailed confession contradict a claim that he was too intoxicated to form specific intent.
The trial court’s conclusion that counsel was not deficient for overlooking a viable defense is consistent with our prior decisions. For example, in Henry v. State, 862 So.2d 679, 682-83 (Fla.2003), this Court held that counsel was not ineffective for failing to present evidence that Henry abused “crack cocaine before the murder, which exacerbated his underlying psychotic mental condition” because Henry presented no evidence that he was intoxicated at the time of the crime. The Court explained that under those circumstances, Henry’s proposed defense theory was either an unsupported voluntary intoxication defense or an inadmissible diminished capacity defense. Id.; see also Pietri v. State, 885 So.2d 245, 252-54 (Fla.2004) (holding that counsel was not ineffective for failing to present evidence of prior drug abuse resulting in metabolic intoxication because evidence was inadmissible diminished capacity evidence); Stewart v. State, 801 So.2d 59, 65 (Fla.2001) (holding that counsel was not ineffective for failing to present voluntary intoxication defense where counsel determined that defense would be inappropriate given defendant’s detailed account of crime).
2. Insanity Defense
In addition, Owen argued that his counsel was ineffective for failing to introduce evidence of his substance abuse because such evidence would support the theory that Owen was insane at the time of the offense. We find this argument to be without merit because counsel cannot be deemed ineffective for failing to present inadmissible evidence. Pietri, 885 So.2d at 252. As discussed above, to be relevant to an insanity defense, expert testimony on a defendant’s mental statement must concern whether the defendant (1) was incapable of distinguishing right from wrong (2) as a result of a mental infirmity, disease, or defect. Hall, 568 So.2d at 885. Dr. Dee and Guerra would not have been permitted to testify as expert witnesses regarding Owen’s sanity because, even if they were qualified to form such an opinion, they did not offer an opinion about Owen’s ability to distinguish right from wrong a the time of the crime. As for Owen’s lay witnesses, lay witnesses called in support of an insanity defense are not limited to testifying strictly about the legal definition of insanity. For example, in Hansen v. State, 585 So.2d 1056, 1058 (Fla. 1st DCA 1991), the First District Court of Appeal held that the trial court did not abuse its discretion in allowing lay witnesses to testify if they “observed anything” about the defendant that indicated that he was suffering from a mental disease or condition. Nevertheless, the court’s discretion in admitting lay testimony is not unlimited. In Garron v. State, 528 So.2d 353, 357 (Fla.1988), this Court explained that to be admissible,
[a] lay witness, testifying on his or her personal observation as to a defendant’s sanity, must have gained this personal knowledge in a time period reasonably proximate to the events giving rise to the prosecution.... A nonexpert .is not competent to give lay opinion testimony based on his personal observation that took place a day removed from the events giving rise to the prosecution. This is clearly the domain of experts in the field of psychiatry.
Of the lay witnesses called at Owen’s postconviction hearing, none testified to having observed Owen more recently than 1982. These witnesses could not offer opinions about whether Owen demonstrated symptoms of mental illness in close proximity to the Slattery murder, which occurred in March 1984. Their testimony would not be admissible as lay witness testimony about Owen’s mental condition.
E. Cumulative Error
Owen argues that he is entitled to a new trial or at least a new postconviction proceeding because the errors during trial and postconviction, including the trial court’s decision to deny an evidentiary hearing on several claims, have denied Owen his constitutional right to a fair trial. Owen’s cumulative error claim is without merit because Owen has not shown that any harmful error occurred. See Johnson v. Singletary, 695 So.2d 263, 267 (Fla.1996) (“[B]ecause all issues which were not barred were meritless, we can find no cumulative error.”).
III. PETITION FOR WRIT OF HABEAS CORPUS
In his petition, Owen raises several claims of ineffective assistance of appellate counsel. Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of appellate counsel, this Court must determine whether the alleged omissions are serious errors falling measurably outside of the range of professionally acceptable performance and whether the errors prejudiced the defendant. Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). Appellate counsel cannot be deemed ineffective for failing to raise an issue that in all probability would be found to be without merit. Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000).
A. Cross-Examination of Dr. Berlin
In his first habeas claim, Owen asserts that his appellate counsel should have challenged on direct appeal whether the trial court erred in permitting the State to cross-examine Dr. Berlin, a defense expert, as to his view on the death penalty during the guilt phase. We find that even if the trial court erred in allowing the State to question Dr. Berlin regarding his personal beliefs on the death penalty, any error was harmless. In Power v. State, 605 So.2d 856, 863 (Fla.1992), the Court held that any error in limiting the defendant’s attempt to rehabilitate a defense expert witness who was questioned about his personal bias against the death penalty was harmless because the impeaching evidence did not damage the expert’s testimony that was confined to the defendant’s lack of future dangerousness and only marginally relevant to other issues. Here too, the State’s questioning was not damaging to Dr. Berlin’s testimony about Owen’s sanity. Dr. Berlin’s answer did not indicate that he held so strong of a viewpoint on the death penalty as to be actually biased. Dr. Berlin handled the question professionally, and the prosecutor did not dwell on the issue. Moreover, three other mental health experts testified at the guilt phase about Owen’s sanity. Upon reviewing the record, it seems unlikely that knowledge of Dr. Berlin’s view on the death penalty improperly influenced the jury’s deliberation about Owen’s defense. The issue would have been found to be without merit on direct appeal.
B. Prior Violent Felony Aggravating Factor
In his second habeas claim, Owen argues that his appellate counsel was ineffective for failing to argue on direct appeal that the trial judge erred by denying Owen’s request to stipulate that he confessed to the prior violent felonies; allowing evidence of the prior felonies to become the feature of the penalty phase; allowing Captain McCoy to testify as to hearsay statements made by a Dr. Davis relating to injuries suffered by two of Owen’s prior victims, M.M. and Ms. S.; and allowing Captain McCoy to testify as to hearsay statements made by J.E. relating to the Worden murder. We find that appellate counsel was not ineffective for failing to raise these three issues on direct appeal because the issues in all probability would have been found to be without merit.
First, the trial court did not err in denying Owen’s motion to exclude details of the prior violent felonies. This Court rejected a similar argument in Cox v. State, 819 So.2d 705, 716 (Fla.2002), where the Court found that “the holdings of Old Chief [v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997),] and Brown [v. State, 719 So.2d 882 (Fla.1998),] are not properly analogized to this capital sentencing proceeding, where ‘the point at issue’ is much more than just the defendant’s ‘legal status.’ ”
Second, the trial court did not err in allowing the State to present evidence of Owen’s three prior violent felonies through Captain McCoy, who investigated the prior felonies. Through Captain McCoy, the State entered into evidence the judgment and sentence for the noncapital felonies, the judgment for the capital felony, and videotaped conversations between Owen and Captain McCoy relating to the crimes. The videotapes ran for approximately one hour and ten minutes and were edited to avoid discussion of uncharged crimes. Evidence concerning the circumstances of a prior violent felony conviction is admissible in a capital sentencing proceeding. Finney v. State, 660 So.2d 674, 683 (Fla.1995). “In determining whether a trial court has abused its discretion in admitting evidence of prior violent felony convictions, this Court looks at the tenor of the witnesses’ testimony and whether this testimony became a central feature of the penalty phase.” Franklin v. State, 965 So.2d 79, 96 (Fla.2007). In Franklin, the Court found that the evidence relating to the prior felonies could not “be deemed the central feature of the penalty phase” because the State “presented testimony and evidence to establish each of the aggravating circumstances, including the testimony of Franklin’s parole supervisor to establish that the murder was committed while Franklin was under imprisonment and the testimony of code-fendant McCoy to establish that the murder was CCP and committed for pecuniary gain.” 965 So.2d at 96-97. In the instant case, Captain McCoy’s testimony, including the playing of the videotapes, took less than one day of the two-and-a-half-day penalty phase. In addition to Captain McCoy, the State called a medical examiner to testify regarding the HAC aggravating factor and two mental health experts to rebut the defense’s mitigation case. Had this issue been raised on direct appeal, we would have found that the evidence relating to the prior violent felonies was not impermissibly made the central feature of the penalty phase because the State’s penalty-phase presentation was comparatively brief, addressed all relevant aggravating and mitigating circumstances, and was not unduly inflammatory.
Third, Owen was not deprived of a fair opportunity to rebut hearsay testimony during his penalty phase. Hearsay testimony is ordinarily admissible during the penalty phase of a trial, provided the defendant has a fair opportunity to rebut any hearsay testimony. Rodriguez v. State, 753 So.2d 29, 44 (Fla.2000). Review of the trial record reveals that contrary to Owen’s petition, no out-of-court statements made by J.E. were introduced through Captain McCoy. Two brief statements about injuries suffered by M.M. and Ms. S., one made by a Dr. Davis, were admitted. However, Owen had a fair opportunity to rebut these statements. This case is similar to Evans v. State, 838 So.2d 1090, 1097 (Fla.2002), where this Court rejected Evans’ argument that he was not afforded a fair opportunity to rebut the hearsay contained in presentence investigation reports concerning his prior conviction because he could not cross-examine the person who prepared the reports. We found no error because the “transcripts of the prior trials were available to rebut any inaccuracies in the reports.” Id. Like Evans, Owen could have used the transcripts of his prior trials to rebut the statements about the injuries suffered by M.M. and Ms. S. Moreover, Owen argues that “the prosecutor could have readily called these witnesses,” but he does not explain why he could not have called the declarants to rebut the hearsay statements. As explained in Bowles v. State, 804 So.2d 1173, 1184 (Fla.2001), when a defendant challenges the admission of hearsay testimony during a penalty phase, this Court examines whether the defendant had the opportunity to rebut the hearsay — that the defendant “did not or could not rebut this testimony does not make it inadmissible.” Finally, even if admission of the hearsay was error, such error was harmless because the prior violent felony aggravating factor was unambiguously established by the admission of three convictions and Owen’s taped confessions to those crimes. See id. (holding any error in admitting hearsay was harmless where certified copy of prior conviction conclusively established prior violent felony aggravating factor and five aggravating factors overwhelmingly outweighed mitigating factors).
Also in his second habeas claim, Owen argues that his appellate counsel was ineffective for not challenging on appeal the denial of Owen’s motion to exclude evidence of his conviction of attempted first-degree murder of M.M.. Owen argues that the conviction should have been excluded because the M.M. jury was instructed both on the theory of attempted premeditated murder and attempted felony murder. We find that Owen’s argument is without merit.
In State v. Gray, 654 So.2d 552 (Fla.1995), this Court held that there is no criminal offense of attempted felony murder. In Valentine v. State, 688 So.2d 313, 317 (Fla.1996), this Court held that a conviction for attempted first-degree murder must be reversed where the jury was instructed on attempted first-degree felony murder and attempted first-degree premeditated murder, and the verdict fails to state on which ground the jury relied. While acknowledging that this Court held that Gray was not retroactive in State v. Woodley, 695 So.2d 297 (Fla.1997), Owen’s motion argued that the M.M. conviction should not have been introduced as an aggravating factor because the crime of attempted felony murder no longer existed at the time of Owen’s 1999 sentencing in the Slattery case. This argument is without merit. In order to state a claim under Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), in which the Supreme Court held that the state court erred in concluding that the reversal of a conviction used as an aggravating circumstance did not affect the validity of the death sentence, a defendant must show that the conviction on which the prior violent felony aggravator is based has been reversed. Phillips v. State, 894 So.2d 28, 36 (Fla.2004). Owen concedes that his conviction for attempted first-degree murder of M.M. has not been reversed. Thus, the trial court did not err in denying Owen’s motion to exclude the conviction, and appellate counsel was not ineffective for not raising the issue on appeal.
C. Sentencing on Noncapital Convictions
In his third habeas issue, Owen argues that he is entitled to resentencing on his sexual battery and burglary convictions because he was not given the option of whether to be sentenced under Florida’s 1983 sentencing guidelines. See Smith v. State, 537 So.2d 982, 987 (Fla.1989) (holding that defendant whose crime was committed before July 1, 1984, but sentenced thereafter may affirmatively select to be sentenced under the 1983 guidelines). Owen’s argument is refuted by the record because Owen, through his counsel, elected to be sentenced under the 1988 guidelines. On February 25, 1999, over a decade after this Court’s decision in Smith established the right to choose whether to be sentenced under the guidelines, defense counsel filed a motion titled “Motion to be Sentenced on Non-Capital Felonies.” The motion stated that Owen “has been found guilty by the jury of burglary while armed and attempted sexual battery with a deadly weapon” and that “sentencing for these convictions is governed by the sentencing guidelines.” Trial counsel asked the trial judge to sentence Owen to lengthy, consecutive guideline sentences on these noncapital offenses prior to the penalty phase so that Owen’s unlikelihood of parole could be argued as a mitigating factor. After the motion was denied, defense counsel proffered the testimony of Thomas Gano, a criminal attorney, who testified that the guidelines called for a mandatory life term for Owen’s noncapital crimes. This motion and proffer constitute an election to be sentenced under the guidelines, refuting Owen’s request for relief.
IV. CONCLUSION
For the reasons stated above, we affirm the circuit court order denying Owen’s motion for postconviction relief and deny Owen’s petition for a writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
The trial judge found four aggravating factors: (1) Owen had been previously convicted of another capital offense or a felony involving the use of violence to some person; (2) the crime was committed while Owen was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit the crime of burglary; (3) the crime was especially heinous, atrocious, or cruel (HAC); and (4) the crime was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP).
The trial judge found three statutory mitigating factors: (1) the crime was committed while Owen was under the influence of extreme mental or emotional disturbance; (2) Owen’s capacity to conform his conduct to the requirements of the law was substantially impaired; and (3) Owen’s age at the time of the crime was twenty-three.
The sixteen nonstatutory mitigating factors were: (1) Owen was raised by alcoholic parents; (2) he was raised in an environment of sexual and physical violence; (3) he was a victim of physical and sexual violence; (4) he was abandoned by the deaths of his parents and abandoned by other family members; (5) he has a mental disturbance, and his ability to conform his conduct to the requirements of law was impaired; (6) he was cooperative in court and not disruptive during court proceedings; (7) he adjusted well to incarceration and will be a good prisoner; (8) the offense happened fifteen years ago; (9) Owen will never be released from prison if given a life sentence; (10) he cooperated with law enforcement officers; (11) he obtained a high school equivalency diploma; (12) he received a general discharge under honorable conditions from the United States Army; (13) he saved a life in his youth; (14) he suffered from organic brain damage; (15) he lived in an abusive orphanage; and (16) other circumstances of the offense were mitigating, specifically that Owen did not harm the two young children for whom Karen Slattery was babysitting at the time of her murder.
Owen's claims on appeal were: (1) the trial court erred in failing to suppress Owen's confession on the basis of voluntariness; (2) the trial court erred in failing to suppress Owen’s confession because Owen made an unequivocal invocation of his right to remain silent that was ignored by the law enforcement officers; (3) the trial court improperly applied the aggravating factor of HAC; (4) the trial court improperly applied the aggravating factor of CCP; (5) the sentence of death is disproportionate; (6) Florida's death penalty statute is unconstitutional; and (7) the aggravating factor of murder in the course of a specified felony is unconstitutional.
Owen's claims were: (1) Owen was denied effective assistance of counsel during the pretrial proceedings; (2) he was denied effective assistance of counsel during the jury selection; (3) he was denied effective assistance of counsel during the guilt phase of his trial; (4) Owen was denied effective assistance of counsel during the penalty phase of his trial; (5) State agencies claimed exemptions to public records law in bad faith; (6) the State violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by not disclosing exculpatory or impeaching evidence, failing to correct false and misleading testimony, and by presenting false evidence, testimony, and argument; (7) Owen was denied the effective assistance of counsel during both the guilt and penalty phases of his trial because counsel failed to advise Owen regarding his right to testify; and (8) the cumulative effect of the constitutional error throughout these proceedings violated Owen’s constitutional rights.
Owen’s claims on appeal axe: (1) he was entitled to a hearing on the claims designated as requiring factual determination; (2) he proved that he was denied effective assistance of counsel during the jury selection; (3) he proved that he was denied effective assistance of counsel during the penalty phase of his trial; (4) he proved that he was denied effective assistance of counsel during the guilt phase of his trial; and (5) the cumulative effect of errors through trial violated his constitutional rights.
Owen’s habeas claims are: (1) appellate counsel was ineffective for failing to raise on appeal the State’s improper impeachment of a defense expert during the guilt phase of Owen’s trial; (2) appellate counsel was ineffective for failing to raise on appeal obvious errors from the penalty phase of Owen’s trial; and (3) Owen was illegally sentenced on his noncapital offenses.
U.S. Const, amend. VI.
Owen’s allegations that counsel failed to argue this ground for suppression are also refuted by the record. In her motion to suppress, retrial counsel Carey Haughwout argued that law enforcement officers intentionally withheld filing charges in the Slattery investigation in order to circumvent Owen’s right to counsel. At the motion hearing, she argued that the questioning of Owen about the Slattery murder was a violation of his right to counsel because the case was "so intertwined with the cases for which his Sixth Amendment right to counsel had attached.”
Owen also argues that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to call mental health experts during the suppression hearing. Owen asserts that such experts would have supported the argument that Owen did not confess voluntarily. The trial court correctly denied this subclaim without an evidentiary hearing because Owen's allegations are legally insufficient. Owen does not allege what a mental health expert would have testified about regarding Owen’s mental state during the police interrogation. Thus, Owen’s claim is legally insufficient. See Booker v. State, 969 So.2d 186, 196 (Fla.2007) (holding rule 3.851 ineffective assistance of counsel claim was “still insufficiently pled” after amendment adding names of witnesses who allegedly should have been called because Booker "made equivocal statements about the substance of the witnesses’ testimony”); LeCroy v. Dugger, 727 So.2d 236, 239-40 (Fla.1998) (affirming summary denial of ineffective assistance of counsel claim where defendant made conclusory allegations and failed to plead “specific facts which would warrant an evidentiary hearing”).
In Florida, the legal test for insanity in criminal cases is the "M’Naghten rule,” derived from the English decision M'Naghten’s Case, 8 Eng. Rep. 718 (1843). See Patton v. State, 878 So.2d 368, 374-75 (Fla.2004).
On a related note, Owen argues that trial counsel was ineffective for not objecting when the trial court informed juror G. that the trial would not involve more than one alleged victim. Owen argues that while technically correct, this statement was misleading because the State would be presenting evidence of a second homicide as part of its penalty-phase presentation. Owen argues that the statement was prejudicial because juror G. stated a belief that the death penalty should be automatic where a perpetrator has killed more than one victim. We find that trial counsel did not act “outside the broad range of reasonably competent performance under prevailing professional standards” by not objecting to the comment. Melton v. State, 949 So.2d 994, 1001 (Fla.2006) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)). Trial counsel responded to the potentially misleading statement by questioning juror G. about her belief that the death penalty should be automatic where a defendant has killed more than one person. Counsel’s decision to question juror G. about her views rather than challenging the trial judge’s comment in front of a potential juror was reasonable.
Also in this portion of this appeal, Owen argues that scrivener’s errors in the jury selection transcript have interfered with his ability to appeal. Owen is correct that speakers, including the particular jurors Owen asserts should not have served on his jury, are misnamed on numerous occasions in the transcript. However, Owen is not entitled to relief at this stage. This issue is procedurally barred, as it could have been raised on direct appeal. See Whitfield v. State, 923 So.2d 375 (Fla.2005) (holding claim based on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), procedurally barred because it could have been raised on direct appeal).
The sentencing judge gave “considerable weight” to the factor that Owen was under the influence of extreme mental or emotional disturbance at the time of the crime; "some weight” to the factor that Owen’s capacity to conform his conduct to the requirements of law was substantially impaired; “some weight” to the nonstatutory factor that Owen had a mental disturbance; and “some weight” to the nonstatutory factor that Owen suffered from brain damage. Sentencing Order at 4056-59.
Owen's argument that his counsel was ineffective for not objecting to the questioning because it constituted a comment on Owen’s right to counsel and a violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), is without merit because trial counsel did object on other grounds and the trial court sustained the objections.
Voluntary intoxication was a recognized defense at the time of Owen’s offense. See § 775.051, Fla. Stat. (2007) (abolishing voluntary intoxication defense effective October 1, 1999).
Duane Eugene OWEN, Appellant,
v.
STATE of Florida, Appellee.
No. SC18-382
Supreme Court of Florida.
[June 26, 2018]
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, James L. Driscoll, Jr., David Dixon Hendry, and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Celia A. Terenzio, Senior Assistant Attorney General, West Palm Beach, Florida, for Appellee
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have for review Duane Eugene Owen's appeal of the circuit court's order denying Owen's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Owen's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Owen responded to this Court's order to show cause arguing why Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.
After reviewing Owen's response to the order to show cause, as well as the State's arguments in reply, we conclude that Owen is not entitled to relief. Owen was sentenced to death following a jury's recommendation for death by a vote of ten to two. Owen v. State, 596 So.2d 985, 987 (Fla. 1992). His sentence of death became final in 1992. Owen v. Florida, 506 U.S. 921, 113 S.Ct. 338, 121 L.Ed.2d 255 (1992). Thus, Hurst does not apply retroactively to Owen's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Owen's motion.
The Court having carefully considered all arguments raised by Owen, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.
LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
LEWIS and CANADY, JJ., concur in result.
PARIENTE, J., concurring in result.
I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.