          Supreme Court of Florida
                                      ____________

                                      No. SC12-1041
                                      ____________

                               ROBERT J. BAILEY,
                                   Appellant,

                                            vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                     [August 28, 2014]

PER CURIAM.

      This case is before the Court on appeal from a final order denying Robert J.

Bailey, Jr.’s, amended motion pursuant to Florida Rule of Criminal Procedure

3.851 to vacate a judgment of conviction for first-degree murder and a sentence of

death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      We reject Bailey’s three claims raised in this appeal in which he alleges

ineffective assistance of trial counsel. And, because Bailey failed to satisfy the

Strickland1 standard in the postconviction proceeding held below, we affirm the

final order appealed in this case.


      1. Strickland v. Washington, 466 U.S. 668 (1984).
                              I. DIRECT APPEAL

      The facts and circumstances pertaining to Bailey’s convictions and sentences

are taken from our previous opinion concerning his direct appeal:

             Robert J. Bailey was indicted for resisting a police officer with
      violence and first-degree murder in the shooting death of Sergeant
      Kevin Scott Kight, which occurred after Sergeant Kight stopped
      Bailey for a traffic infraction.
             On March 26, 2005, Robert Bailey, John Braz, and D’Tori
      Crawford drove from Chicago to Florida to look for women during
      spring break. For the trip, Bailey used a white Dodge Durango that
      his grandfather rented for him. The three men drank beer and smoked
      marijuana on the way, driving all through the night. Crawford saw
      that both Braz and Bailey had handguns with them. The men arrived
      in Pensacola on March 27, but once they arrived, they learned that a
      recent hurricane had damaged the beaches in Pensacola significantly.
      After eating lunch at a restaurant, they drove to Panama City and
      checked into the Sugar Sands Motel. They met a few men from
      Kentucky, drank some more, and went to a nearby bar called “Sweet
      Dreams” with a few of the men from Kentucky.
             After some time had passed, Bailey and Crawford left the bar in
      the white Durango to pick up some girls. Traffic was bumper-to-
      bumper and was moving very slowly. While they were driving,
      Bailey and Crawford paused to talk to some girls walking down the
      road, exchanging their phone numbers and hotel room numbers.
      Bailey and Crawford did not notice that traffic had begun to move
      until a police officer, Sergeant Kight, pulled them over. Sergeant
      Kight requested Bailey’s driver’s license, and after Bailey gave him
      identification, the officer left, saying that he would be right back. At
      that point, Bailey started to panic and told Crawford that he did not
      have a valid license and had a parole violation. He asked Crawford
      what he thought would happen. Bailey’s hand was shaking so badly
      that he asked Crawford to call his girlfriend for him. Crawford heard
      Bailey tell his girlfriend that he was being pulled over by a cop and
      was going to need her to pick him up because Bailey would “pop this
      cop” if the officer tried to arrest him. Bailey then reached under the
      driver’s seat to retrieve a handgun, placing it under his right leg.
      Bailey’s face was red, and he had tears in his eyes. Crawford tried to

                                        -2-
calm Bailey down, but Bailey told Crawford that he was not going
back to jail again. Crawford refused to be a part of the plan, and when
he noticed that the officer was looking down, Crawford got out of the
vehicle, blending in with a crowd of people who were walking by.
Crawford barely knew Bailey and did not warn the police officer
because he was afraid that if he approached the officer, Bailey would
shoot him too.
       While Bailey was being pulled over, a number of people in
other vehicles were watching the events, particularly since traffic was
barely moving. As Hillary Chaffer drove by, she noticed that Bailey
tried to pull forward while the officer was looking down. Sergeant
Kight approached Bailey’s vehicle again, removing his handcuffs
from his belt. Bailey stuck his gun out the window and fired it three
times at the officer. Two of the bullets hit the officer, and the other
bullet hit a passing van and lodged in the door of the van. Bailey sped
off in his vehicle, while Sergeant Kight radioed dispatch that he had
been shot. Many other officers were close by at the time of the
shooting. . . .
       ...
       During the trial, the State presented the testimony of Crawford,
who testified about the trip and the circumstances before and after the
shooting. Crawford, however, was not present when the police officer
was shot. The State presented two eyewitnesses to the shooting:
Hillary Chaffer and Jarrod Schalk. Both witnesses were driving past
Bailey when he shot Sergeant Kight, and both identified Bailey as the
person who shot the officer. Hillary Chaffer testified that when she
passed the white Durango that was pulled over, she saw only Bailey in
the vehicle, and he looked very pale and very scared. When she first
heard the gunshots, she was facing forward but quickly turned around
and saw Bailey with a gun in his hand before he drove away. Jarrod
Schalk was the other eyewitness who testified at trial. He was riding
in a van as a passenger and began to watch the officer who pulled over
a white Durango. He also testified that he saw only Bailey inside the
vehicle. As the officer approached Bailey with handcuffs in his hand,
Schalk told his friends they were about to see somebody get arrested.
Schalk noticed that Bailey’s face looked really mean and upset.
Bailey suddenly pointed a gun, and Schalk saw the fire from the gun
before he ducked. One of the bullets hit the van in which Schalk was
riding. Lawson testified for the State and detailed how Bailey jumped
in the back of his truck after the shooting, admitted that he had

                                 -3-
“popped a cop,” showed them the gun, and instructed the occupants to
take him to a particular bar named Sweet Dreams.
        Numerous officers and investigators also testified about the
evidence found during the investigation. Officer Clayton Jordon
testified that Bailey’s identification was found still clipped to Sergeant
Kight’s citation book holder when they arrived at the scene. . . . The
two bullets that struck the officer went through the top portion of the
officer’s bullet-proof vest and, based on a downward trajectory, hit his
heart, liver, and kidney. Both of the wounds were fatal, and Sergeant
Kight would have quickly lost consciousness within about a minute.
        . . . The jury found Bailey guilty of murder in the first degree
with a firearm and guilty of resisting an officer with violence.
        The penalty phase began the next day. During the penalty
phase, the State introduced evidence that Bailey was on parole in
Wisconsin at the time of the crime and that on March 9, 2005,
Bailey’s supervising parole agent placed Bailey on home detention
and later sought a warrant requesting Bailey’s arrest. At that point,
the State rested. Bailey called one witness: Dr. Larry Kubiak, who
was a licensed psychologist. Dr. Kubiak testified that Bailey had
numerous problems, including attention deficit hyperactivity disorder
(ADHD), some very significant neuro-cognitive deficits that would be
consistent with significant brain damage, post-traumatic stress
disorder, severe alcohol and drug abuse, depression, and a number of
personality disorders including “depressive personality disorder with
anti-social features, dependent personality disorder with negativistic
features, and borderline personality disorder with schizotypal
features.” . . .
        . . . The State also called in rebuttal Dr. Greg Prichard, who
provided conflicting testimony as to whether Bailey had borderline
mental retardation. Dr. Prichard opined that Bailey had average
intelligence, and his low test results could be based on malingering.
The State’s expert disagreed with Dr. Kubiak’s conclusions regarding
statutory mental mitigation, and according to Dr. Prichard, Bailey
chose to shoot the officer so that Bailey could do what he wanted to
do and that Bailey had a very realistic understanding of what would
happen. The State introduced a second expert, Dr. Harry McClaren,
who came to the same conclusions as Dr. Prichard and emphasized
how Bailey planned the murder shortly before it happened and took
clear actions afterwards to avoid being arrested. Finally, the State
reintroduced Randy Squire, who intercepted and recorded a telephone

                                  -4-
      conversation that Bailey had with his friend Braz, where Bailey told
      Braz that he was “playing all [his] little cards” to make sure that he
      was found incompetent and encouraged his friend to start talking to
      walls if Braz wanted to stay out of jail too.
             By a vote of eleven to one, the jury recommended that the death
      penalty be imposed. After holding a [hearing in accordance with
      Spencer v. State, 615 So. 2d 688, 690-91 (Fla. 1993)], the circuit court
      sentenced Bailey to death, finding two aggravating circumstances
      which were given great weight, rejecting the two statutory mental
      mitigators, and finding a number of other mitigating circumstances
      which the court found were entitled to little weight. Bailey raises
      three claims:
             (1) whether the death penalty is disproportionate; (2)
             whether the prosecutor committed fundamental error by
             allegedly making inappropriate remarks before the jury;
             and (3) whether Florida’s capital sentencing procedures
             are unconstitutional.

Bailey v. State (Bailey I), 998 So. 2d 545, 547-51 (Fla. 2008) (footnotes omitted).2


       2. The trial court found the following aggravating circumstances: (1) the
capital felony was committed by a person previously convicted of a felony and
under sentence of imprisonment or placed on community control or probation
(given great weight); and (2) the capital felony was committed for the purpose of
avoiding or preventing a lawful arrest or effecting an escape from custody (also
given great weight). See Bailey I, 998 So. 2d at 551.
       The trial court also made findings about the following statutory mitigating
circumstances: (1) the capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law was substantially
impaired (not reasonably established by the evidence); (2) the crime for which the
defendant is to be sentenced was committed while he was under the influence of
extreme mental or emotional disturbance (not reasonably established by the
evidence); (3) the defendant, born on July 15, 1982, was 22 years old at the time of
the crime (given very little weight). Id. at 551-52.
       The trial court found the following non-statutory mitigating factors: (1)
defendant has a low I.Q. (given little weight in light of no expert declaring
defendant to be intellectually disabled); (2) defendant has a history of mental
health problems from early childhood (given little weight); (3) defendant spent
time in a juvenile facility for troubled youth (given little weight); (4) defendant

                                        -5-
              II. INITIAL POSTCONVICTION PROCEEDING

      In April 2011, Bailey filed a Complete Amended Motion for Post

Conviction Relief in accordance with Florida Rule of Criminal Procedure 3.851.3

The court below ultimately heard Bailey’s arguments for postconviction relief and

on June 23, 2011, entered a final order denying Bailey’s amended rule 3.851

motion. This appeal followed.



was intoxicated at the time of the crime (given little weight); (5) defendant came
from a broken home (given little weight); (6) defendant was a poor student in
grade school who was diagnosed with attention deficit hyperactivity disorder
(ADHD), although he was continually promoted in Milwaukee public schools
(given little weight); (7) defendant showed concern for Sgt. Kight when he was
arrested (given little weight); and (8) defendant was very respectful during all of
his court appearances and has adjusted well to incarceration (given little weight).
Id. at 552.

        3. In his amended rule 3.851 motion, Bailey sought relief on eight grounds:
(1) trial counsel was ineffective for failing to use peremptory strikes on one or
more biased jurors (Ground I); (2) due process violation for failure of trial court
and counsel to adequately voir dire prospective jurors regarding pretrial publicity
(Ground II); (3) trial counsel was ineffective for failing to formulate a defense
theory (Ground III); (4) trial counsel was ineffective for failing to attack one of the
two statutory aggravators argued by the State (Ground IV); (5) penalty phase
counsel provided ineffective assistance by failing to call family witnesses and
present photographs and records of the defendant as a child, and instead limited the
presentation of mitigating evidence to only one “expert” witness who was
impeached by the State (Ground V); (6) the State’s lethal injection procedures are
unconstitutional (Ground VI); (7) ineffective assistance of counsel for failing to
call former attorney Walter Smith to impeach State’s expert witness regarding the
Defendant’s mental retardation (Ground VII); and (8) ineffective assistance of
counsel for failing to call Dr. Jill Rowan to testify regarding her findings of mental
retardation, and failing to obtain an MRI, CAT scan, or PET scan of the
defendant’s brain (Ground VIII).


                                         -6-
      Bailey raises three issues on appeal. First, Bailey argues that trial counsel

was ineffective for failing to use one of the remaining peremptory strikes on an

allegedly biased juror. Second, Bailey argues that trial counsel was ineffective for

failing to adequately voir dire prospective jurors regarding negative pretrial

publicity. Bailey further argues that the inadequate voir dire of the prospective

jurors resulted in the violation of his constitutional right to due process under the

law. Finally, Bailey argues that trial counsel was ineffective for relying on expert

testimony to the exclusion of testimony from his family and other lay witnesses

who had knowledge of mental health mitigation that casts doubt on the

appropriateness of the death sentence.

                                  III. ANALYSIS

      In order for a defendant to obtain relief based on an allegation of ineffective

assistance of counsel, there must be a showing that satisfies the two-pronged

analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). In capital

appeals in which an appellant claims that trial counsel was ineffective, we have

previously explained our application of the Strickland standard:

             A claim of ineffective assistance of counsel, to be considered
      meritorious, must include two general components. First, the claimant
      must identify particular acts or omissions of the lawyer that are shown
      to be outside the broad range of reasonably competent performance
      under prevailing professional standards. Second, the clear, substantial
      deficiency shown must further be demonstrated to have so affected the
      fairness and reliability of the proceeding that confidence in the
      outcome is undermined.

                                         -7-
Occhicone v. State, 768 So. 2d 1037, 1045 (Fla. 2000) (quoting Maxwell v.

Wainright, 490 So. 2d 927, 932 (Fla. 1986)).

                              A. Standard of Review

      This Court’s standard of review is two-pronged:
      (1) this Court must defer to the circuit court’s findings on factual
      issues so long as competent substantial evidence supports them; but
      (2) must review de novo ultimate conclusions on the deficiency and
      prejudice prongs. Reed v. State, 875 So. 2d 415, 421-22 (Fla. 2004)
      (citing Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999) (“Thus,
      under Strickland, both the performance and prejudice prongs are
      mixed questions of law and fact, with deference to be given only to
      the lower court’s factual findings.”)).

Everett v. State, 54 So. 3d 464, 472 (Fla. 2010).

                                     B. Merits

                              1. Biased Juror Claim

                                   a. Deficiency

      Counsel’s performance cannot be found deficient under the Strickland

standard when counsel’s actions stem from a reasonable trial strategy. See

Occhicone, 768 So. 2d at 1048 (“[S]trategic decisions do not constitute ineffective

assistance of counsel if alternative courses have been considered and rejected and

counsel’s decision was reasonable under the norms of professional conduct.”)

(citing Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1998); State v. Bolender, 503

So. 2d 1247, 1250 (Fla. 1987)).




                                        -8-
      The record shows that although counsel initially made an unsuccessful for

cause challenge concerning the seating of Juror Linda Good, upon further

consideration and after the State rehabilitated her from earlier statements that she

made, defense counsel reasonably believed it would be useful to have Juror Good

remain on the jury. See Evans v. State, 995 So. 2d 933, 942 (Fla. 2008)

(“Although [the juror] clearly supported the death penalty and initially indicated

that a case of self-defense would be the only time she would recommend life, she

immediately confirmed that she would listen to the judge’s instructions, ‘consider

all circumstances’ and follow the law. Based on her clear confirmation of her

ability to follow the law and counsel’s belief that she would be a good guilt-phase

juror, counsel’s decision not to challenge [the juror] was reasonable and a matter of

trial strategy.”) (citing Dufour v. State, 905 So. 2d 42, 54-55 (Fla. 2005)).

      Former defense counsel testified during the postconviction evidentiary

hearing that Bailey’s defense team formed a trial strategy of seeking second-degree

murder, which weighed the potential benefits versus any risks of keeping Juror

Good on the jury. Former defense counsel Gontarek, referencing Juror Good,

testified that: “[A] jury selection process is not what a person says but their eye

contact with the defendant or with Mike Flowers [co-defense counsel] or myself or

their body language, things like that.” Another important component of the

defense team’s decision to keep Juror Good arose when counsel informed him


                                         -9-
about the pros and cons of not using a peremptory challenge to remove this juror

and Bailey informed his lawyers that he wanted to keep Juror Good because “he

liked her very much.”

      We, therefore, conclude that the strategic decision by Bailey’s trial counsel

not to use a peremptory challenge to remove Juror Good from the jury was

reasonable under the circumstances. See Cole v. State, 841 So. 2d 409, 415 (Fla.

2003) (finding no error in the trial court’s determination that under the

circumstances in which the defendant insisted on keeping an identified juror, trial

counsel’s decision not to peremptorily challenge said juror did not constitute

deficient performance under the Strickland standard) (citing Occhicone, 768 So. 2d

at 1048 and Strickland, 466 U.S. at 691 (“The reasonableness of counsel’s actions

may be determined or substantially influenced by the defendant’s own statements

or actions.”)).

      Sufficient evidence existed in the postconviction record for the circuit court

to find that counsel’s decision not to exercise one of its remaining peremptory

challenges to remove Juror Good was part of a reasonable trial strategy, and the

circuit court did not err in reaching this legal conclusion. “The evidence is

sufficient when it is both competent and substantial.” Caylor v. State, 78 So. 3d

482, 497 (Fla. 2011) (citing Mansfield v. State, 758 So. 2d 636, 646 (Fla. 2000)).

In addition, it is clear from the record that the defense team’s decision was in


                                        - 10 -
concert with Bailey’s informed consent to keep this juror. Accordingly, we find

that the circuit court’s factual findings are supported by competent, substantial

evidence in this record on appeal and the court did not err as to its legal conclusion

that counsel’s performance was not deficient under the Strickland standard.

                                     b. Prejudice

      Even if it could be shown that defense counsel’s strategy with regard to

Juror Good was unreasonable, we further find that Bailey failed to establish that he

was prejudiced by defense counsel’s decision not to use one of its remaining

peremptory challenges to remove Juror Good. We have previously explained that

when the convicted person alleges that counsel failed to take steps to remove a

biased juror, prejudice must be established by proof that a juror was actually

biased. See Troy v. State, 57 So. 3d 828, 838 (Fla. 2011) (“Because the record

refutes any claim of actual bias that would have prevented juror Hamblin from

serving as an impartial juror, Troy is not entitled to relief.”); Carratelli v. State, 961

So. 2d 312, 327 (Fla. 2007) (requiring a showing of the juror’s actual bias).

      The record shows that after she initially stated that “the death penalty is not

used enough,” Juror Good responded to the State’s questions during voir dire by

subsequently attesting that she could follow the trial court’s instructions and that

she could absolutely consider all mitigation presented in the case. Also during voir

dire, Juror Good responded in pertinent part by stating: “[A]s a jury member after


                                          - 11 -
hearing the evidence if I find that the person was not mentally stable, you know,

other circumstances, I could vote for life.” Juror Good further responded that in

the event the State proved Bailey was guilty of first-degree murder, it would be the

greater weight of the evidence for the circumstances in aggravation or mitigation

that would sway her vote concerning the death penalty. The circuit court also

noted in its final order that Juror Good agreed she could follow the law, and that

she would not allow any pretrial publicity to influence her opinion about Bailey’s

guilt or non-guilt in Sergeant Kight’s murder.

      We find that there is competent, substantial evidence in the postconviction

evidentiary record supporting the circuit court’s finding credibility in Bailey’s

former defense team’s expressed views about Juror Good. The record shows that

both of Bailey’s former lawyers testified that Juror Good’s affirmative statements,

under oath, that she could perform her duties as an impartial juror in deciding

Bailey’s fate, persuaded them that she was not actually biased against their client.

And, we find there is otherwise insufficient evidence in this record to establish that

Juror Good was actually biased against him. Accordingly, Bailey fails to establish

that he was prejudiced under the Strickland standard concerning this issue.

                       2. Improper Voir Dire of the Venire

      The circuit court concluded that Bailey’s improper voir dire claim is

procedurally barred due to his failure to raise it on direct appeal. We agree.


                                        - 12 -
      Bailey’s failure to raise this improper voir dire claim during his direct appeal

renders it a pretext to a bona fide ineffectiveness of trial counsel claim. See Brown

v. State, 755 So. 2d 616, 637 (Fla. 2000) (“Brown contends that his guilt-phase

counsel was deficient in failing to question a juror as to the extent of her

knowledge of a newspaper account of the trial. This claim is procedurally barred

in that it should have been raised on direct appeal, and Brown attempts here to

circumvent the procedural bar by couching the issue as ineffective assistance of

counsel.”). Despite Bailey’s assertion to the contrary, his improper voir dire claim

is procedurally barred for the reasons that we explained in Brown.4

    3. Faulty Reliance on Expert Testimony for Mental Mitigation Claim

                                    a. Deficiency

      It is well established that trial counsel is not ineffective for relying on a

qualified mental health expert to provide the defense with assistance during the

guilt phase and mitigation evidence for the penalty phase. See Looney v. State,

941 So. 2d 1017, 1027 (Fla. 2006) (“This Court has established that defense



       4. Even if Bailey could show cause as to why this claim is not procedurally
barred, this claim fails to satisfy the Strickland standard for relief from alleged
ineffective assistance of trial counsel. First, there is no deficiency because the
record shows that counsel took reasonable steps to seat a jury that was amenable to
the defense’s trial strategies. See Occhiocone, 768 So. 2d at 1048. Second, there
is no prejudice because there is no showing in this record that identifies any
specific juror for whom there was proof that that juror was actually biased against
Bailey. See Carratelli, 961 So. 2d at 327.


                                         - 13 -
counsel is entitled to rely on an evaluation conducted by a mental health expert for

trial, even if, in retrospect, that evaluation is less than perfect.”) (citing State v.

Sireci, 502 So. 2d 1221 (Fla. 1987)).

       The circuit court correctly ruled that, based on Dr. Kubiak’s well-

documented professional background and his experience as a neuropsychologist,

Bailey’s defense team was not ineffective for relying on Dr. Kubiak as its mental

health expert. The circuit court concluded that Bailey’s assertion in his

postconviction motion that his defense counsel could have chosen a “better”

mental health expert was conclusory. The circuit court also concluded that the

claim that more evidence of Bailey’s mental deficits could have been presented

was without merit.

       The circuit court also found former defense counsel Gontarek’s testimony

during the postconviction evidentiary hearing that he invited Ms. Gilchrist

(Bailey’s mother) and other family members to come and testify for Bailey was

more credible than Ms. Gilchrist’s testimony to the contrary. During the

postconviction evidentiary hearing, Gontarek testified that when he asked Bailey’s

mother and grandfather to come to Florida and testify at trial, neither of them

would agree to do so.

       We have long held that a fact-finder’s judgment of witness credibility that is

supported by competent, substantial evidence, as found in this case, will stand. See


                                           - 14 -
Gonzalez v. State, 990 So. 2d 1017, 1024 (Fla. 2008) (“ ‘As long as the trial

court’s findings are supported by competent substantial evidence, “this Court will

not substitute its judgment for that of the trial court on questions of fact, likewise

of the credibility of the witnesses as well as the weight to be given to the evidence

by the trial court.” ’ Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (quoting

Demps v. State, 462 So. 2d 1074, 1075 (Fla. 1984)).”).

      There is competent, substantial support within the postconviction evidentiary

record for the circuit court’s conclusion that Bailey’s trial lawyers’ actions were

part of reasonable trial strategy, and the circuit court did not err in reaching this

conclusion. Former defense counsel Gontarek testified that he “100 percent

prefers” a psychologist versus a parent to testify about the background of a

defendant facing the death penalty. And, during the postconviction evidentiary

hearing, Gontarek also testified that he believed Dr. Kubiak was a better witness

than Bailey’s mother. As we previously stated, it is not ineffective assistance when

trial counsel carries out a reasonable strategy that discriminates between the best

potential witnesses to call. See Everett, 54 So. 3d at 474 (“This Court has also

consistently held that a trial counsel’s decision to not call certain witnesses to

testify at trial can be reasonable trial strategy.”) (citing Bowles v. State, 979 So. 2d

182, 188 (Fla. 2008) (holding that, after weighing the benefit/risk ratio, counsel’s

declination to call a clinical psychologist whose testimony could have provided


                                         - 15 -
emotional disturbance mitigation was consistent with reasonable trial strategy);

Arbelaez v. State, 898 So. 2d 25, 39 (Fla. 2005) (holding that trial counsel’s failure

to call defendant’s family members as witnesses during penalty phase was

reasonable trial strategy and not ineffective assistance of counsel)).

      Regarding Bailey’s assertion that Dr. Kubiak inadequately presented key

features of Bailey’s personal history, the State argues that defense counsel was not

deficient in relying on its expert. The State points out that through Dr. Kubiak the

defense was able to introduce Bailey’s school records, medical records, and other

records from certain Wisconsin state agencies—including records from that state’s

Department of Corrections during the period when Bailey was an inmate serving a

felony sentence there. Notwithstanding the State’s assertions about this point, the

record shows that Dr. Kubiak spent several hours administering various tests on

Bailey in order to evaluate his competence, mental health, and mental deficits.

      In the postconviction evidentiary hearing, former defense counsel Gontarek

admitted during his direct examination that he did not travel to Wisconsin to

investigate Bailey’s personal history and family background. Gontarek also

testified that he was unaware Ms. Gilchrist had assured Bailey’s predecessor

defense counsel that she would be willing to assist the defense in any way possible.

However, Gontarek testified that he interviewed Ms. Gilchrist and Bailey’s

grandfather by telephone about Bailey’s personal history and family background.


                                        - 16 -
Gontarek testified that when Bailey’s mother and grandfather expressed

unwillingness to travel to Florida to testify during Bailey’s trial, he concluded that

the mitigation evidence they would have provided could be introduced through Dr.

Kubiak at trial.

      Bailey argues that his defense counsel was deficient for deciding not to use

Bailey’s family and other lay witnesses who would have bolstered Dr. Kubiak’s

testimony. Moreover, Bailey asserts that his mother would have been the best

witness for him. The circuit court found insufficient evidence to conclude that trial

counsel performed deficiently, finding instead that counsel’s decision was

strategic. We find that Gontarek’s testimony about what transpired during his

communication with Ms. Gilchrist and Bailey’s grandfather constitutes competent,

substantial evidence in the postconviction record. Such testimonial evidence from

Bailey’s former counsel supports the circuit court’s findings, and the circuit court

did not err in concluding that counsel employed reasonable trial strategy to avoid

the presentation of cumulative mental health mitigation evidence to the jury.

      Moreover, the circuit court observed that during the postconviction

evidentiary hearing Bailey “did not present any additional evidence concerning

[his] mental and psychological conditions and did not call any psychologists to

testify” . . . “[i]nstead, [Bailey] presented lay witness testimony at the evidentiary

hearing in the form of three family witnesses.” Based on the testimony provided


                                         - 17 -
during the postconviction evidentiary hearing, the circuit court found that the lay

witnesses that Bailey called “faile[d] to provide any substantial mitigation that was

not already introduced by Dr. Kubiak at the penalty phase of [Bailey’s] trial.”

      Although the testimony of a family member about a defendant’s mental

health will not always be cumulative to the testimony of an expert mental health

witness, because in many instances family members may be able to provide

compelling testimony regarding mitigating circumstances, we find that in this case

there is competent, substantial evidence in the record before us supporting the

circuit court’s findings. Furthermore, we find that the circuit court did not err in

concluding that the lay witness members of Bailey’s family would have provided

evidence pertaining to mental health and psychological circumstances at trial that

was cumulative to the evidence presented to the jury by Dr. Kubiak. “[T]his Court

has held that ‘even if alternate witnesses could provide more detailed testimony,

trial counsel is not ineffective for failing to present cumulative evidence.’ ” Lynch

v. State, 2 So. 3d 47, 71 (Fla. 2008) (quoting Darling v. State, 966 So. 2d 366, 377

(Fla. 2007) (citing Gudinas v. State, 816 So. 2d 1095, 1106 (Fla. 2002))); see also

Trotter v. State, 932 So. 2d 1045, 1052 (Fla. 2006) (affirming the trial court’s

denial of postconviction relief on the allegation that counsel was ineffective by not

presenting Trotter’s nieces’ irrelevant and cumulative mitigation testimony).




                                        - 18 -
      Therefore, the circuit court’s conclusion that counsel’s performance was not

deficient, regarding the declination to call lay witnesses comprised of Bailey’s

family and friends during the penalty phase, is supported by existing case law. See

Jennings v. State, 583 So. 2d 316, 321 (Fla. 1991) (affirming the circuit court’s

conclusion that counsel was not deficient for deciding not to put on additional

testimony to bolster mitigation that was sufficiently proven).

                                     b. Prejudice

      Prejudice is established when a showing of trial counsel’s error during the

penalty phase undermines our confidence in the defendant’s sentence of death. See

Wheeler v. State, 124 So. 3d 865, 873 (Fla. 2013) (“Under [the Strickland]

standard, a defendant is not required ‘to show “that counsel’s deficient conduct

more likely than not altered the outcome” of his penalty proceeding, but rather that

he establish “a probability sufficient to undermine confidence in [that]

outcome.” ’ ”) (quoting Porter v. McCollum, 558 U.S. 30, 44, (2009) (quoting

Strickland, 466 U.S. at 693-94)). And, as the Supreme Court has held: “[t]o assess

that probability, [the Court] consider[s] ‘the totality of the available mitigation

evidence . . .’ and ‘reweigh[s] it against the evidence in aggravation.’ ” Id. (quoting

Porter, 558 U.S. at 41 (quoting Williams v. Taylor, 529 U.S. 362, 397-98 (2000))).

      Bailey argues that he was prejudiced by not having family members testify

at his trial because they would have been able to prove that he suffered from


                                         - 19 -
bipolar disorder and, thereby, humanize him to the jury. Bailey further argues that

Dr. Kubiak only established that he had a rule-out diagnosis for bipolar disorder in

his mental health history. Dr. Rowan testified on direct examination in a

telephonic deposition, explaining how Bailey’s rule-out diagnosis for bipolar

disorder was accomplished. Dr. Rowan stated that Bailey’s medical records

showed that previous clinicians had administered bipolar disorder therapy

medication, and measured his responsiveness thereto in an attempt to rule out

bipolar disorder. Dr. Rowan further testified that there was no record that any

clinician had previously diagnosed Bailey with bipolar disorder, nor did she

diagnose Bailey with bipolar disorder.

      Consequently, the State responded to Bailey’s assertion that he was

prejudiced by asserting that any mental health mitigation evidence that would have

been presented through his family’s testimony would have been cumulative to the

mental health mitigation evidence presented to the jury by Dr. Kubiak. Based on

the evidence in the postconviction record, the circuit court found that in this case,

Bailey’s family did not provide any mental health mitigation evidence beyond

what Dr. Kubiak introduced during Bailey’s penalty phase; there was one

exception—the circuit court found that testimony about a house fire that severely

injured Bailey’s mother and younger brother, was not fully developed. Bailey

started the house fire when he was five years old.


                                         - 20 -
      The circuit court concluded that this single piece of testimonial evidence,

even taken as mitigation evidence, would not have outweighed the aggravating

factors that were assigned great weight by the trial judge. In addition, the circuit

court opined that this evidence “would have likely reinforced [other expert

testimony about Bailey’s] antisocial and sociopathic behavior.” Bailey argues that

there was little risk that the jury would have interpreted the house fire event as

indicium of the malevolent act of a five-year-old boy.

      The record shows that the house fire occurred because young Bailey was left

alone while playing with matches in his bedroom. Bailey contends, however, that

the evidence about the house fire would have established that afterwards Ms.

Gilchrist emotionally abandoned Bailey and, thus, began a cycle of abuse directed

at him by his mother that altered the course of his life.

      Nevertheless, Bailey fails to show prejudice because the jury did not hear

testimony related to the house fire during his trial. The circuit judge weighed the

credibility of the witnesses during the postconviction evidentiary hearing and

found no mitigating circumstances related to the house fire that shifted the balance

of the circumstances in which two aggravating factors were proven and assigned

great weight. The circuit court’s findings are supported by competent, substantial

evidence in the record, and the court did not err in drawing its legal conclusions.




                                         - 21 -
      Therefore, we conclude that our confidence is not undermined in the

outcome of the penalty phase, because there is no reasonable probability that but

for the omission of testimony about the house fire incident, Bailey would have

been sentenced to life imprisonment. See Strickland, 466 U.S. at 700 (“Given the

overwhelming aggravating factors, there is no reasonable probability that the

omitted evidence would have changed the conclusion that the aggravating

circumstances outweighed the mitigating circumstances and, hence, the sentence

imposed.”); see also Kilgore v. State, 55 So. 3d 487, 504 (Fla. 2010) (concluding

that the defendant failed to demonstrate that the proffered evidence had a

reasonable probability of changing the outcome, which is a probability sufficient to

undermine confidence in the verdict) (citing Strickland, 466 U.S. at 694); see also

Sochor v. State, 883 So. 2d 766, 771 (Fla. 2004) (“In the penalty phase context,

‘the question is whether there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.’ ”) (quoting Strickland, 466 U.S. at 695).

Under the totality of circumstances found in this record, there is insufficient

evidence for us to conclude that Bailey was prejudiced simply because the jury did

not hear cumulative mental health mitigation evidence, or testimony about the

aftermath of a house fire that occurred when he was a youngster.

                                IV. CONCLUSION


                                        - 22 -
      Based on this record, we affirm the circuit court court’s final order denying

Bailey’s amended rule 3.851 motion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Bay County,
     Michael C. Overstreet, Judge - Case No. 032005CF001093XXAXMX

Clyde M. Taylor, Jr. and Clyde Montgomery Taylor, III, Taylor & Taylor, P.A., St.
Augustine, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General and Stephen Richard White, Assistant
Attorney General, Tallahassee, Florida,

      for Appellee




                                       - 23 -
