          Supreme Court of Florida
                                 ____________

                                 No. SC14-878
                                 ____________


                           WILLIE JAMES HODGES,
                                  Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                                [March 16, 2017]

PER CURIAM.

      Willie James Hodges appeals an order denying his motion to vacate a

judgment of conviction of first-degree murder and a sentence of death under

Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const. For the reasons expressed below, we affirm the postconviction

court’s order as to Hodges’s conviction but vacate the death sentence and remand

for a new penalty phase.

                              I. BACKGROUND

      Hodges was convicted of first-degree murder and sentenced to death. On

appeal, we affirmed the conviction and the death sentence. Hodges v. State, 55 So.
3d 515, 519 (Fla. 2010). The evidence showed that the victim was bludgeoned and

stabbed in her home. Id. Her relatives came to the home while the intruder was

still inside. Id. The relatives heard window glass breaking, and one of them saw

the intruder run away and scale a fence into a neighbor’s yard. Id. A claw hammer

and a braided brown leather belt were found by the body. Id. at 520. The victim’s

purse was missing. Id. at 519. Some photographs and a knife with a black plastic

handle were found on the ground outside the broken window. Id. at 520. The

hammer and the knife were the probable murder weapons. Id. Police used a

canine to track the suspect’s path of escape. Id. at 519. Along the path they found

a jacket, two shoes, and two white socks. Id. The victim’s daughter testified that

the jacket looked like the one she had seen on the fleeing intruder. Id. at 520. A

witness who was married to Hodges’s niece testified that he had previously seen

Hodges wearing the jacket and shoes that were admitted into evidence. Id.

Another witness testified that Hodges owned a braided leather belt and carried a

knife with a black handle and identified the items in evidence as similar. Id.

Another witness testified that some of the photographs found outside the victim’s

window were photographs that she had mailed to Hodges, and she identified her

handwriting on the back of one of the photos. Id. The parties also stipulated that

Hodges’s writing was on another one of the photos, and Hodges’s fingerprints

were on two of the photos. Id.


                                        -2-
      A DNA profile developed from blood on one of the socks was compared to

Hodges’s DNA profile and was found to match on all thirteen available markers,

with a random match probability of one in 990 quadrillion. Id at 521. Analysis

conducted on mitochondrial DNA collected from a hair found on the victim’s

clothing and a hair found on the jacket did not exclude Hodges as the donor but

would exclude 99.88 percent of randomly selected individuals. Id. Male DNA

detected in material from an anal swab of the victim matched Hodges’s DNA

profile on the six available markers and would exclude 96 percent of the male

population. Id. Material from the other sock yielded two separate partial DNA

profiles that were consistent with Hodges’s DNA but would exclude 99.92 and

99.9 percent of the male population, respectively, and all of the female population.

Id. There was also testimony that Hodges admitted his guilt to a cellmate and to

the daughter of a woman he had dated. Id. at 522.

      Evidence of a collateral murder was admitted under the Williams1 rule. Id.

at 521. The evidence included DNA from sperm cells detected on a vaginal swab,

which matched Hodges’s DNA profile on five markers. Id. A separate sample of

epithelial cells from the swab matched his profile on seven markers. Id. at 521-22.

There was also evidence that a bruise on the body of the victim of the collateral




      1. See Williams v. State, 110 So. 2d 654 (Fla. 1959).


                                        -3-
murder was probably a bite mark, and a forensic dentist testified that the mark was

consistent with Hodges’s teeth. Id. at 522.

      The jury recommended a sentence of death by a vote of ten to two. Id. at

525. The trial court found five aggravating circumstances were proven beyond a

reasonable doubt: (1) the defendant was under sentence of imprisonment at the

time of the murder; (2) the defendant had previously been convicted of a felony

involving violence; (3) the murder was committed while the defendant was

engaged in the commission of or an attempt to commit sexual battery; (4) the

murder was committed for pecuniary gain; and (5) the murder was especially

heinous, atrocious, or cruel. Id. at 542. The court found the following statutory

mitigating circumstances: (1) at the time of the murder the defendant was under the

influence of an extreme mental or emotional disturbance; (2) the capacity of the

defendant to conform his conduct to the requirements of the law was substantially

impaired; and (3) the age of the defendant at the time of the crime. Id. The court

also found numerous nonstatutory mitigating circumstances having to do with

Hodges’s low intelligence, difficult upbringing and background, mental and

emotional problems, and similar or related matters. Id.

      In his direct appeal to this Court, Hodges argued: (1) that the trial court

should have allowed the jury to determine the issue of mental retardation; (2) that

the trial court erred in finding he was not mentally retarded; (3) that the trial court


                                          -4-
erred in ruling that the State could discuss the collateral crime evidence in its

rebuttal argument; (4) that the trial court allowed the collateral crime evidence to

become a feature of the trial; (5) that the trial court erred in refusing to allow

Hodges to waive a penalty-phase jury; and (6) that the death sentence was

impermissible under Ring v. Arizona, 536 U.S. 584 (2002). Id. at 526. We

rejected all of Hodges’s arguments, concluded that the evidence was sufficient to

support the verdict and the death sentence was proportionate, and we affirmed the

conviction and sentence. Hodges filed a petition for certiorari in the United States

Supreme Court, which was denied. Hodges v. Florida, 565 U.S. 846 (2011).

      In his motion for postconviction relief, Hodges raised the following claims:

(1) trial counsel was ineffective in failing to retain a DNA and statistics expert to

help counsel challenge the admissibility of the State’s DNA and statistics evidence

and cross-examine the State’s experts; (2) counsel was ineffective in cross-

examining the State’s scientific experts regarding their statistical calculations and

in failing to present expert testimony to rebut the State’s scientific evidence; (3)

counsel was ineffective in failing to consult an expert and to object to testimony

about DNA from the body of the collateral crime victim on the ground that the

testing and analysis did not comply with applicable standards for accuracy and

reliability; (4) counsel was ineffective in failing to present the testimony of

Hodges, who would have testified that the personal belongings linking him to the


                                          -5-
crime scene were stolen from him prior to the murder; (5) counsel was ineffective

in failing to cross-examine the State’s witnesses who identified the jacket and

shoes linking Hodges to the crime scene on their inability to identify the items as

the specific items they had seen before; (6) counsel was ineffective in failing to

obtain telephone service records to impeach the testimony of a witness who

testified that Hodges confessed to her in a telephone conversation; (7) counsel was

ineffective in calling a witness whose testimony had the effect of identifying

Hodges as the likely perpetrator; (8) counsel was ineffective in failing to rebut the

testimony of a forensic dentist who testified about the identification of Hodges

from the bite-mark evidence in the collateral crime case; (9) counsel was

ineffective in cross-examining a crime scene investigator because the questioning

brought out improper and unfavorable opinion testimony about possible or likely

events relative to the murder; (10) counsel was ineffective in advising Hodges

regarding the impeachment he would face if he testified; (11) counsel was

ineffective in failing to object to the trial court’s failure to state reasons for denying

Hodges’s request to waive a penalty-phase jury; and (12) Florida’s death penalty

statute is unconstitutional.

      The trial court held evidentiary hearings on claims 1 through 10, Hodges

abandoned claim 11, and the trial court denied claim 12. As to the remaining

claims of ineffective assistance of counsel, the trial court ruled that Hodges failed


                                          -6-
to establish that counsel’s performance was deficient and even if it was, there is no

reasonable probability that but for counsel’s deficiency, the result of the

proceeding would have been different.

                                   II. ANALYSIS

      On appeal from the denial of his motion for postconviction relief, Hodges

raises the following claims: (1) trial counsel was ineffective in failing to consult

experts to assist him to prepare to challenge the State’s DNA and bite-mark

evidence, cross-examine the State’s experts, and present evidence to rebut the

State’s scientific evidence; (2) trial counsel rendered ineffective assistance by

failing to present Hodges as a witness at trial; (3) trial counsel provided ineffective

assistance by calling a witness who gave testimony that incriminated Hodges; (4)

trial counsel rendered ineffective assistance in failing to obtain telephone records

to impeach the testimony of a witness who testified that Hodges confessed his guilt

in a telephone conversation; (5) trial counsel was ineffective in failing to cross-

examine witnesses who identified articles of clothing linked to Hodges; and (6)

trial counsel was ineffective in cross-examining a crime scene technician in a way

that brought out testimony that was harmful to the defense.

      A defendant challenging a conviction on the ground of ineffective assistance

of counsel has the burden of showing that counsel was deficient and that the

deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,


                                         -7-
687 (1984); Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010). To establish

deficiency, the claimant must show a specific act or omission that falls below an

objective standard of reasonableness under prevailing professional norms. See

Foster v. State, 132 So. 3d 40, 52 (Fla. 2013); Maxwell v. Wainwright, 490 So. 2d

927, 932 (Fla. 1986). To establish prejudice under Strickland, “the defendant must

demonstrate that ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’ ”

Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011) (quoting Strickland, 466 U.S. at

694). This standard does not require that a defendant 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.’ ” Porter v. McCollum, 558 U.S. 30, 44 (2009)

(alteration in original) (quoting Strickland, 466 U.S. at 693-94).

      “Because both prongs of the Strickland test present mixed questions of law

and fact, this Court employs a mixed standard of review, deferring to the trial

court’s factual findings that are supported by competent, substantial evidence, but

reviewing the trial court’s legal conclusions de novo.” Pagan v. State, 29 So. 3d

938, 949 (Fla. 2009); see also Johnston v. State, 63 So. 3d 730, 737 (Fla. 2011);

Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004). “[W]hen a defendant fails to

make a showing as to one prong, it is not necessary to delve into whether he has


                                         -8-
made a showing as to the other prong.” Mungin v. State, 932 So. 2d 986, 996 (Fla.

2006) (alteration in original) (quoting Waterhouse v. State, 792 So. 2d 1176, 1182

(Fla. 2001)).

      “There is a strong presumption that trial counsel’s performance was not

ineffective.” Pagan, 29 So. 3d at 949. “A fair assessment of attorney performance

requires” that courts “evaluate the conduct from counsel’s perspective at the time”

and “indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

                                       Claim 1

      Hodges asserts that trial counsel was ineffective in failing to consult experts

and present expert testimony regarding the State’s scientific evidence of DNA and

bite-mark analysis. He argues that such experts could have helped him to prepare

to challenge the State’s evidence, cross-examine the State’s experts, and develop

and present rebuttal evidence and argument.

      At the evidentiary hearing, Hodges presented the testimony of Dr. Kevin

Noppinger, an expert in DNA analysis. Dr. Noppinger testified that in their

analyses, the State’s experts arrived at random match probabilities using the

“inclusion principle,” but at trial, Dr. Martin Tracey, a population geneticist

testifying as an expert witness for the State, improperly relied upon the “exclusion

principle” in his random match probability testimony. The “inclusion principle”


                                         -9-
expresses the probability of a random match in positive or inclusionary terms,

while the “exclusion principle” gives the probability of excluding the random

match. Dr. Noppinger testified that under prevailing scientific standards,

expressing the random match probability statistics using the exclusion principle is

not scientifically accepted and the inclusion principle is the preferred method of

presenting match probability statistics. In Dr. Noppinger’s opinion, expressing

random match probability statistics using the exclusion principle can be misleading

because it can make the probability of a random match seem smaller than it

actually is. Hodges argues that trial counsel’s failure to object or cross-examine

Dr. Tracey when he testified about random match probabilities using the exclusion

principle can be attributed to counsel’s failure to retain a DNA expert to help him

prepare for trial. Dr. Noppinger also testified that the other DNA testimony

presented at trial did not conform to the applicable standards and on this basis,

Hodges argues that counsel should have used available scientific expertise to

challenge the accuracy and reliability of the State’s testing, lab reports, and expert

testimony.

      There are two components of DNA analysis and both must be provided to

the trier of fact in order for DNA evidence to have probative value: (1) an

examination of the biological material in evidence in comparison with a known

DNA sample; and (2) statistical analysis to determine the probability of matching


                                        - 10 -
the tested material to random individuals in the general population or specified

subgroups. “The first step uses principles of molecular biology and chemistry to

determine that two DNA samples look alike. The second step uses statistics to

estimate the frequency of the profile in the population.” Butler v. State, 842 So. 2d

817, 827 (Fla. 2003); see also Brim v. State, 695 So. 2d 268, 271 (Fla. 1997) (“It is

important to recognize, though, that DNA testing is a two-step process. The fact

that a match is found in the first step of the DNA testing process may be

‘meaningless’ without qualitative or quantitative estimates demonstrating the

significance of the match.”). Hodges contends that the State’s expert witnesses

testified that their analyses discovered “matches” with Hodges’s DNA without

providing the necessary random match probability statistics and that trial counsel

failed to object because he had not consulted his own DNA expert and therefore

had not informed himself about the applicable standards for presenting DNA

evidence. However, at Hodges’s trial, the State chose to have its laboratory

analysts present the biological features of their test results first and then present Dr.

Tracey to testify as to the statistical analyses applicable to all the DNA testing. All

the DNA tests presented at trial were accompanied by statistical analyses provided

separately by Dr. Tracey.2


       2. The only exception was the DNA test of the swab from the bite mark on
the victim of the collateral murder. The expert only found one marker, which did
not exclude Hodges, but the analyst considered the finding to be of little

                                         - 11 -
      In the order denying postconviction relief, the trial court discussed Dr.

Noppinger’s criticisms of the State’s scientific experts who testified at trial. The

court found that State expert Melton, who performed the mitochondrial DNA

analysis on the cuttings from one of the socks as well as the hairs from the jacket

and the victim’s jeans, had statistical calculations on some but not all of the tested

samples in her written report but did not testify about statistics. Melton testified

that the mixed DNA sample obtained from the sock was difficult to analyze and

she could say only that Hodges could not be excluded as the source. Dr.

Noppinger acknowledged that Melton had valid statistical calculations in her report

for the samples derived from the hairs.

      State expert Hatler performed DNA analysis on other sock cuttings. Based

on three markers from the top of the sock and four markers from the heel and toe,

she developed partial profiles that were consistent with Hodges’s DNA. Dr.

Noppinger found fault with the fact that Hatler provided no statistical calculations

in her testimony, but he conceded that her written report included the calculations.




significance and therefore did not include the test result in her written report, and
the testing was apparently not reviewed by another analyst in accordance with
standard procedures. However, as we discuss below, there is no reasonable
probability that an objection by trial counsel on this basis would have made a
difference to the outcome.


                                          - 12 -
      State expert Johnson performed DNA testing on the anal swab from the

body of the victim of the instant murder, the vaginal swab from the victim of the

collateral murder, and the swab from the bite mark on the collateral murder victim.

Dr. Noppinger said that Johnson’s testing of the bite-mark swab was not properly

reported in writing and was not reviewed by a second analyst as required by

national standards. The trial court found that the anal swab sample was analyzed

on six markers, all of which matched Hodges. As for the vaginal swab from the

collateral crime victim, the sperm fraction matched Hodges on five markers and

the epithelial cells on seven markers. Johnson’s written report included frequency

calculations for these test results.

      State expert Zuleger tested the blood found on one of the socks and

developed a profile consisting of thirteen markers, all of which matched Hodges.

      Dr. Noppinger did not say there were any errors, fallacies, or miscalculations

in any of the experts’ laboratory testing or statistical calculations. As the trial court

found, Dr. Noppinger could not say that the experts’ descriptions of their results as

“matching” Hodges was improper. The analysts who conducted the laboratory

tests did not testify about their frequency calculations—even though they included

such calculations in their written reports for some of their tests—because the State

chose to have all of the probability statistics presented by its statistical expert, Dr.

Tracey.


                                          - 13 -
      Dr. Noppinger found fault with Dr. Tracey’s testimony because Dr. Tracey

expressed the statistical calculations in terms of exclusion rather than inclusion,

which, in Dr. Noppinger’s view, can be misleading. However, Dr. Noppinger

conceded that neither method is more accurate than the other. Hodges has not

directed us to any authority that directly supports the argument that testimony such

as Dr. Tracey’s is considered misleading according to a consensus of scientific

opinion.

      Even though the State’s DNA analysts did not initially testify about random

match probability statistics, trial counsel cross-examined them based on the

statistics in their written reports. And although Dr. Tracey testified in terms of

exclusion on direct examination, he acknowledged several of the random match

probabilities in inclusive terms on cross-examination.

      At the evidentiary hearing, trial counsel admitted that his understanding of

DNA evidence principles was crude. Nevertheless, the trial court found that the

DNA evidence did not go unchallenged and that counsel’s performance was not

deficient.

      Hodges presented Dr. Daniel Spitz, a forensic pathologist, to testify at the

evidentiary hearing regarding the bite mark. Dr. Spitz testified that the bite-mark

identification evidence presented at trial did not provide a definitive match to

Hodges and that bite-mark identification evidence in general is regarded as highly


                                        - 14 -
questionable by the scientific community. On this basis, Hodges argues that trial

counsel should have retained a bite-mark expert, learned about the current status of

bite-mark evidence, and been prepared to challenge the admissibility and reliability

of the bite-mark evidence. The trial court found that while trial counsel did not

challenge the admissibility of the bite-mark identification testimony, he did not

allow the testimony to go unchallenged. On cross-examination, trial counsel

brought out that the witness had prepared no written report, that the number of

marks available for comparison was limited, and that diffusion had affected all the

points of comparison. The trial court found that trial counsel’s performance was

not deficient because at the time of the trial, bite-mark identification evidence was

considered admissible, see, e.g., Mitchell v. State, 527 So. 2d 179, 181 (Fla. 1988),

and that even if the law has changed based on current scientific opinion, an

attorney’s performance cannot be found deficient for failing to anticipate a change

in the law. Walton v. State, 847 So. 2d 438, 445 (Fla. 2003).

      As authority for his claim that trial counsel was deficient in failing to consult

experts to challenge the State’s DNA evidence, Hodges cites State v. Fitzpatrick,

118 So. 3d 737 (Fla. 2013). In Fitzpatrick, trial counsel failed to prepare any

challenge to the State’s scientific evidence as to the timing of sexual activity in

relation to the time of the victim’s death, which allowed the State to present an

unsound but unrebutted theory of the defendant’s guilt of murder. The present


                                         - 15 -
case is different because if counsel had raised the kinds of challenges Hodges

claims he should have raised, it would not have undermined the State’s case to any

significant extent. Counsel admitted that his understanding of DNA evidence was

rudimentary, but based on his experience in criminal trials, he thought there was

little to be gained by challenging the DNA evidence. He made a strategic decision

based on consideration of alternative courses of action. See, e.g., Crain v. State, 78

So. 3d 1025, 1037 (Fla. 2011). Where consulting an expert “would not have

changed the statistical numbers in any way,” trial counsel’s tactic of bringing out

the limitations of the expert testimony through cross-examination is reasonably

effective representation. Reed v. State, 875 So. 2d 415, 425 (Fla. 2004).

      The trial court found that while trial counsel could have done more to

challenge the DNA evidence, in light of the defense strategy to concede that the

tested items belonged to Hodges, trial counsel’s actions were reasonable. Where

the defense strategy is such that identification by DNA evidence is not of central

importance, a trial court’s conclusion that such a tactical decision by counsel was

not deficient performance has been upheld. See McDonald v. State, 952 So. 2d

484, 495 (Fla. 2006).

      The DNA from the swab of the bite mark did not play a significant role in

the trial. The analyst testified that she was able to extract only one marker, which

was of extremely limited use in comparison to the known sample. The witness


                                        - 16 -
said only that Hodges could not be excluded as the contributor. Thus, there is no

reasonable probability that trial counsel’s failure to cross-examine the witness on

the lack of probability statistics or the lack of peer review in the laboratory testing

process affected the outcome of the trial. Even if trial counsel could have done

more to challenge the testimony concerning DNA testing on the swab from the site

of the bite mark on the collateral crime victim, we affirm the denial of relief on this

point because Hodges failed to establish that he was prejudiced by any deficiency.

      The DNA profile from blood found on a sock recovered from the

perpetrator’s path of escape from the victim’s home matched Hodges’s DNA, and

the statistical frequency of the profile was one in 990 quadrillion. The DNA

testing on the anal swab matched Hodges’s profile to the exclusion of 96 percent of

the male population. As the trial court found, the DNA evidence and statistics

presented at trial did not go unchallenged. However, because Hodges told his

lawyer that his clothes and other personal items had been in a suitcase that was

stolen weeks before the murder, counsel did not focus on the DNA evidence but

planned a defense that would account for Hodges’s DNA being on the items.

Hodges’s own expert, testifying at the evidentiary hearing, conceded that all of the

State’s statistical data was sound. Therefore, Hodges has failed to show that there

is any reasonable probability that more thorough preparation on trial counsel’s




                                         - 17 -
part, with a view to challenging Dr. Tracey’s testimony or cross-examining him on

his calculations, would have affected the outcome.

      The trial court found that trial counsel did cross-examine the State’s experts

about their DNA findings, bringing out admissions that other than the blood on one

of the socks, the other tests, including mitochondrial DNA analysis of hairs from

the jacket and the victim’s clothing, merely concluded that Hodges could not be

excluded as the contributor of the sample and that the probabilities of matching

persons other than Hodges were not infinitesimally small as the probability was

with the blood on the sock.

      When a defense attorney does not have a strong understanding of the science

of DNA evidence, effective representation in a criminal case may call for

consultation with experts. However, to prevail on a claim of ineffective assistance

of counsel, in addition to showing a deficiency in performance falling below an

objective standard of reasonableness, the defendant has the burden of showing that

absent the deficiency, there is a reasonable probability that the outcome would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694. “In making

this determination, a court . . . must consider the totality of the evidence before the

judge or jury.” Downs v. State, 453 So. 2d 1102, 1108 (Fla. 1984) (quoting

Strickland, 466 U.S. at 695).


                                         - 18 -
      One of the socks found on the path tracked by the scent-tracking canine had

blood on it. DNA extracted from the blood matched Hodges’s DNA on all thirteen

markers. The probability of the DNA profile matching a randomly selected

individual was inconceivably small. Two DNA samples found on the other sock

also matched Hodges, with the probability of a random match being no more than

one tenth of one percent. DNA from the hairs collected at or near the crime scene

matched Hodges with a random match probability of slightly over one tenth of one

percent. Material from the anal swab matched Hodges and excluded 96 percent of

the male population. Photos that belonged to Hodges were found at the scene.

Two witnesses testified that Hodges told them he committed the crime. In light of

the totality of the evidence, we affirm the trial court’s denial of relief on the ground

that there is no reasonable probability that more thorough preparation by trial

counsel through consultation with experts would have made any difference to the

outcome of the trial.

                                       Claim 2

      Hodges argues that trial counsel was deficient in failing to present Hodges as

a witness for the defense because the defense strategy depended on his testimony.

Hodges asserts that the defense strategy, as revealed in counsel’s opening

statement, was based on the claim that the jacket, shoes, and photographs found at

or near the crime scene were stolen from him weeks before the murder, supporting


                                         - 19 -
the inference that whoever stole the items left them at the crime scene and was the

probable perpetrator. In his opening statement, trial counsel told the jury that the

evidence would show that these items were stolen from Hodges weeks before the

murder. However, the defense did not present any evidence to support that

assertion. Hodges argues that after the jury was told in the opening statement that

the evidence would show the items had been stolen, trial counsel’s failure to put

Hodges on the witness stand was an abandonment of the only defense strategy,

which left Hodges with no viable defense.

      At the evidentiary hearing, Hodges stated that if he had been called to testify

at trial, he would have stated that the jacket, shoes, and photographs had been in a

suitcase that was stolen shortly before the murder. Hodges also would have

testified that while working on a car at his cousin’s house, which was next door to

the victim’s house, he cut his hand and wiped off the blood on a cloth that he left

there, which he claims would have explained how a sock with his blood on it had

come to be found in the area of the murder.

      Hodges argues that his testimony would have created sufficient doubt that

the outcome might have been different. He also said he would have denied making

the incriminating statements testified to by his ex-girlfriend’s daughter and would

have told the jury there was no telephone at the house where the ex-girlfriend and




                                        - 20 -
her daughter lived at the time when the daughter claimed the telephone

conversation had taken place.

      Hodges claims that he decided not to testify in his own defense at trial

because of faulty legal advice given to him by trial counsel. Hodges claimed at the

evidentiary hearing that trial counsel advised him that if he testified at trial, the

prosecutor would be allowed on cross-examination to question him about

everything in his past, including pending charges. At the time of the trial, there

were pending murder charges against Hodges in Ohio and in Alabama. The facts

of the Ohio murder were admitted into evidence at trial under the Williams rule.

      Trial counsel testified at the evidentiary hearing that he would not have

advised Hodges the State could impeach him through questioning about a pending

murder charge if he testified. Trial counsel said that he would have advised

Hodges that if Hodges testified, the State would be able to ask him if he had ever

been convicted of a felony or a misdemeanor involving an element of fraud and, if

so, how many times. Counsel would have told Hodges that only if Hodges denied

having been convicted would the State be allowed to introduce evidence of his

prior convictions. Counsel said he also advised Hodges that since the facts of the

Ohio murder had been admitted under the Williams rule, the State could question

him about the Ohio murder and his answers might be used against him in Ohio,




                                          - 21 -
since that case was still pending in Ohio. But trial counsel insisted he would not

have advised Hodges that he could be questioned about other pending charges.

      The trial court found that counsel provided detailed and thorough advice to

Hodges about the benefits and risks of testifying in his own defense and that

Hodges’s decision, made in consultation with his counsel, was given careful

consideration. The trial court found that trial counsel was an experienced criminal

trial attorney and would not have given legally erroneous advice on such an

elementary question of criminal procedure. The trial court found that Hodges

made the decision not to testify upon receiving advice of counsel based on all the

circumstances, including counsel’s concerns about the effect Hodges’s testimony

might have on the penalty phase.

      The trial court found Hodges’s testimony on this point incredible and found

as a matter of fact that trial counsel did not advise Hodges that if he testified he

could be cross-examined about or impeached with information concerning past

misconduct or collateral offenses. This finding was based on the trial court’s

assessment of the credibility of the witnesses. In judging the credibility of

witnesses, the trial court has a superior vantage point. See Moore v. State, 132 So.

3d 718, 727 (Fla. 2013). An appellate court does not substitute its judgment for

that of the trier of fact when the finding of fact is supported by competent,

substantial evidence. See Porter v. State, 788 So. 2d 917, 923 (Fla. 2001). The


                                         - 22 -
trial court’s finding of fact on this point is supported by competent, substantial

evidence in the record and must be upheld.

      Trial counsel testified at the evidentiary hearing that his opening statement

was based on what Hodges told him concerning his personal items being stolen,

and Hodges’s decision not to testify was made later in the trial. Advising a

defendant of the scope and possible consequences of impeachment and cross-

examination is reasonable representation. See, e.g., Bell v. State, 965 So. 2d 48,

58-59 (Fla. 2007). Making a reasonable strategic choice after considering possible

alternative courses of action is not ineffective assistance. Occhicone v. State, 768

So. 2d 1037, 1048 (Fla. 2000). Trial counsel’s advice, as the trial court found, was

legally correct and was reasonable advice under the circumstances. We conclude

that competent, substantial evidence supports the trial court’s finding that trial

counsel did not give erroneous advice causing Hodges to decide not to testify when

it would have been more advantageous to him to testify.

      But whether trial counsel was deficient for telling the jury in his opening

statement that the evidence would show that Hodges’s personal items were stolen

prior to the murder, knowing that there would be no such evidence presented if

Hodges did not testify, raises a different question. If Hodges had testified that his

personal items had been stolen, this might have explained how these personal items

could have been found at or near the crime scene without him being involved in the


                                         - 23 -
crime. Hodges also emphasizes that he would have testified that prior to the

murder he was working on a car at his cousin’s house next door, cut his hand, and

wiped blood on a cloth that he left at his cousin’s house. The argument is that

Hodges’s testimony on these matters might have raised a doubt in the minds of the

jurors sufficient to have brought about a different outcome at trial.

      At the evidentiary hearing, trial counsel testified that when he gave his

opening statement, he believed Hodges might testify, although he knew there was a

possibility he would not, and he told the jury so. Hodges’s decision not to testify

was made later in the trial, after the close of the State’s evidence. Defense co-

counsel testified that, based on the evidence presented by the State and the need to

prepare for a likely penalty phase, he did not think Hodges should testify. Trial

counsel testified that even without Hodges’s testimony, he believed his opening

statement was sound trial strategy because it suggested a plausible scenario for the

jury to consider that would constitute a basis for doubt about Hodges’s guilt. The

trial court found that trial counsel did not render ineffective assistance.

      We need not determine whether trial counsel’s representation as to the

matter of the opening statement and Hodges not testifying was deficient if there is

no reasonable probability that trial counsel’s course of action, even if deficient,

prejudiced the defense. See, e.g., Maxwell, 490 So. 2d at 932. The totality of the




                                         - 24 -
evidence before the jury must be considered in making this determination. See

Downs, 453 So. 2d at 1108.

      In light of the DNA evidence obtained from the bloody sock, the other sock,

the hairs collected from the victim’s body, the jacket found along the path taken by

the murderer, and the anal swab, as well as the photos left at the crime scene with

Hodges’s fingerprints and handwriting on them, the testimony of the two witnesses

that Hodges confessed to the murder, and the fact that witnesses identified the

clothes, knife, and belt as similar to items belonging to or worn by Hodges, we

conclude that no prejudice has been demonstrated.

                                       Claim 3

      A neighbor of the victim told police that on the day of the murder, he

confronted a trespasser who came over a fence into his yard. The neighbor’s

description was used to create a sketch, which did not look much like Hodges, and

the neighbor failed to select Hodges from a photo lineup. Trial counsel planned to

call this neighbor as a witness in an attempt to show that the intruder in his yard—

who was also likely the murderer—was not Hodges.

      Before presenting the neighbor as a witness, trial counsel went to the

neighbor’s home and displayed a group of photos to him. The neighbor was

unable to identify the photo of Hodges as the man he had seen in his yard. On the

day the man was to testify at trial, trial counsel, with the court’s permission and in


                                        - 25 -
the presence of the prosecutor, had the neighbor look at Hodges in the courtroom,

and the neighbor said Hodges resembled the man he had seen in his yard. The

State and the defense signed a stipulation to this effect, which was read to the jury.

      In his testimony, the neighbor said that Hodges looked like the man he had

seen in his yard. Trial counsel then called the neighbor’s wife to testify, and she

confirmed that the neighbor had been unable to choose Hodges’s photo from a

lineup. Hodges argues that for trial counsel to present the neighbor as a witness

knowing that he might identify Hodges as the man he had seen in his yard, was

ineffective assistance because it helped convict Hodges. Hodges argues that trial

counsel should have been accompanied by another person when he went to the

witness’s home so he would have had a third-party witness to testify about what

happened. Had he done so, he could have used the third party’s testimony to

impeach the neighbor by confirming that the neighbor failed to identify Hodges

from the group of photos shown to him by trial counsel.

      The trial court found that trial counsel was surprised by the neighbor’s

change of testimony and responded by calling the neighbor’s wife to counter the

effect of her husband’s testimony. The trial court found that calling the neighbor’s

wife was a reasonable effort at impeachment and the neighbor’s wife confirmed

that two nights previously her husband had been unable to select Hodges from the

group of photos shown to him by trial counsel. The trial court found that trial


                                        - 26 -
counsel did an effective job of addressing the identification testimony in his

closing argument to the jury and made reasonable choices as to how to proceed

after weighing the risks and benefits of different courses of action, which is

reasonable representation under Simmons v. State, 105 So. 3d 475, 487-88 (Fla.

2012). The trial court concluded that counsel’s chosen course of action was a

reasonable response to the situation and that trial counsel handled the matter as

well as possible under the circumstances. The court concluded that there was no

substantial deficiency in the representation and that even if counsel had taken any

of the actions Hodges now argues were required, there is no reasonable probability

that the result would have been different. The trial court’s factual findings are

supported by competent, substantial evidence and its legal conclusions are correct.

      An assessment of an attorney’s performance under Strickland requires an

effort “to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689. The trial court

found trial counsel’s conduct reasonable under the circumstances, and we affirm

the denial of relief on this point.

                                       Claim 4

      At trial, a witness for the State testified that Hodges confessed to her in a

telephone conversation that he committed the murder. The witness knew Hodges


                                         - 27 -
through her mother, who had dated Hodges. The witness testified that she received

the telephone call during which Hodges confessed while she was at her mother’s

house in the “May timeframe” of 2003. At the evidentiary hearing, Hodges denied

both the confession and the telephone conversation. He claimed that the residence

where the witness claimed to have received the call did not have a telephone.

Hodges showed that the telephone service provider had no record of the call.

Hodges contends that trial counsel was deficient in failing to obtain telephone

service records to impeach the witness’s testimony by showing that there was no

phone service in her mother’s home in May 2003.

      There was testimony at the evidentiary hearing that sometimes the witness’s

mother’s home had telephone service and sometimes it did not. This evidence did

not show that the call could not have taken place; it merely showed that the phone

company had no record of the call having taken place because the records no

longer existed. Hodges’s argument that had trial counsel investigated, he would

have discovered evidence that could have been used to impeach the witness is

speculative.

      The trial court found that Hodges did not prove that the residence did not

have phone service at the time the witness said she received the call from Hodges,

only that there are no records of the service in existence now. The trial court

concluded that Hodges failed to show that trial counsel’s performance was


                                        - 28 -
deficient. Further, the trial court concluded that even if counsel had been able to

show that there was no phone in the home in May 2003, the court could not find

that the witness’s testimony would have been significantly diminished. The

witness stated only that the call occurred in the “May timeframe,” and considering

that the trial took place nearly five years after the phone call in question, even if

records could have been obtained and used at trial to show that there was no

telephone service in the home in May 2003, this would not have proven that the

conversation did not take place nor would it have necessarily undermined the

witness’s credibility. Because the jury still could have credited the witness’s

testimony regarding the content of the conversation, the trial court concluded there

is no reasonable probability the jury would have been affected by any

impeachment trial counsel could have achieved by showing the home had no

phone service, especially in light of the fact that another trial witness also offered

testimony that Hodges confessed to him that he committed the murder.

      The trial court’s factual determinations concerning this claim are supported

by competent, substantial evidence, and we therefore defer to them. On de novo

review, we hold there is no error in the trial court’s legal conclusion that Hodges

failed to show deficient performance on this point. We therefore affirm the denial

of postconviction relief on this claim.

                                          Claim 5


                                           - 29 -
      Hodges claims that trial counsel was ineffective in failing to cross-examine

the State witnesses who identified certain items of clothing, referred to by their

brand names, as having been worn by the fleeing perpetrator and previously seen

in the possession of Hodges. The victim’s daughter testified that when she entered

her mother’s house, she saw through a window someone running away from the

house wearing a blue and gray jacket. She identified a jacket that police found

outside the house as the jacket she saw the fleeing person wearing. The jacket was

described by reference to the designer label, “Members Only.” The husband of

Hodges’s niece testified that the jacket and shoes found near the crime scene and

admitted into evidence were the jacket and shoes he had previously seen Hodges

wearing. The shoes bore the “Timberland” label.

      Hodges argues that effective cross-examination of these witnesses would

have forced them to concede that they could not testify with certainty that the items

were the same as those previously seen, only that the items in evidence looked like

or were similar to the items they had previously seen Hodges wearing. There were

no particular identifying marks on the items that would have permitted the

witnesses to know that these mass-produced items were the specific items they had

seen previously.

      As previously mentioned, trial counsel testified at the evidentiary hearing

that Hodges told him the personal items found at or near the crime scene had been


                                        - 30 -
in a suitcase that was stolen from him weeks before the murder. Trial counsel

planned the defense around this position and therefore did not focus on the issues

surrounding the identification of the jacket and shoes.

      Hodges’s argument is that trial counsel should have cross-examined the

witnesses to get them to admit that the most they could say about the jacket and

shoes in evidence was that they were the same style, size, color, and possibly brand

name as the items the witnesses had seen previously. The trial court observed that

counsel certainly could have cross-examined these witnesses with these questions

but ultimately concluded that the failure to do so was not deficient representation.

The trial court reasoned that jurors are aware that items such as Members Only

jackets and Timberland shoes are mass produced by the tens of thousands and that

identification testimony such as was received in this case is understood to mean

that the items in evidence appeared to be of the same type as the items the

witnesses had seen previously.

      To be effective it is not necessary for counsel to present evidence explaining

facts that are common knowledge. See Reed, 875 So. 2d at 423. Moreover, trial

counsel’s strategy, based on information given to him by Hodges, was not to

contest that the items belonged to Hodges. We agree with the trial court that there

was no deficiency and conclude that the trial court did not err in denying relief as

to this claim.


                                        - 31 -
                                       Claim 6

      Hodges claims that trial counsel was ineffective in cross-examining a crime

scene technician who testified for the State because counsel’s questioning elicited

testimony that was harmful to the defense. Hodges’s position now is that trial

counsel should have pursued a defense based on the theory that the sock with the

blood on it, which was linked to Hodges by DNA evidence, had either been stolen

from him with the blood already on it before the crime or had been used to wipe

off blood from a cut Hodges sustained while working on a car at the house next

door to the murder scene and was then discarded and left in the area where it was

later found.

      At trial, trial counsel asked the technician if there were similar socks found

in the house, and the witness answered yes. Counsel asked the technician whether

she believed the perpetrator covered his hands before entering the home, and she

answered no. Counsel asked the technician whether she thought the perpetrator

covered his hands with the socks after the murder, and she answered yes. Counsel

asked the technician whether the blood could have been deposited on the sock

before the murder, and the witness answered that it was possible but unlikely.

      Hodges asserts that the crime scene technician lacked the expertise to

reconstruct the criminal scenario, but that trial counsel’s questioning essentially

allowed her to do so. According to Hodges, eliciting this testimony was deficient


                                        - 32 -
representation because it helped the State’s case by supporting the theory that the

murderer had covered his hands with socks he found in the house and cut himself

while breaking a window to exit the house when the victim’s relatives came to the

front door.

      In ruling on the postconviction motion, the trial court discussed trial

counsel’s cross-examination of the crime scene technician in detail and found that,

as a whole, it was thorough and effective. Through cross-examination of the crime

scene technician, trial counsel brought out that the blood could have already been

on the sock for an indefinite period of time before the murder because there is no

way to tell the age of a bloodstain. Counsel also brought out that the bloodstain

was small, that there was no evidence to show how it got on the sock, and that it

might have no connection whatsoever to the case.

      The trial court found that the factual inferences that Hodges faults trial

counsel for bringing out were already there for the jury to draw. Trial counsel

testified at the evidentiary hearing that some of his questioning was intended to

lead the witness to overreach, thereby depicting her as a “hired gun” willing to say

anything to help the prosecution. The trial court found that trial counsel’s tactics in

this regard were not unreasonable. Trial counsel made strategic choices from the

available courses of action. The trial court concluded that there was no deficiency

and no possible prejudice from trial counsel’s course of action.


                                        - 33 -
      We affirm the denial of relief on the ground that Hodges has failed to show

that there is a reasonable probability that any alleged deficiency in counsel’s

performance affected the outcome.

                          Cumulative Prejudice Analysis

      We have resolved three of Hodges’s claims based on a lack of prejudice,

without resolving whether counsel’s performance was deficient. These three

claims are those relating to: (a) the failure to challenge the admissibility of the

DNA testing on the swab from the site of the bite mark on the victim of the

collateral murder; (b) trial counsel’s comment in his opening statement that

evidence would show that Hodges’s personal effects found at or near the scene of

the murder had been previously stolen; and (c) the cross-examination of the crime

scene technician regarding the blood on the sock.

      Even without the DNA evidence from the collateral murder, without trial

counsel’s unsupported opening statement, and without the testimony that the blood

was not likely deposited on the sock before the murder, the evidence established

the following: Hodges’s DNA was on both of the socks found on the path taken by

the murderer from the victim’s home; DNA from the hairs collected at or near the

crime scene matched Hodges with a random match probability of slightly over one

tenth of one percent; material from the anal swab matched Hodges and excluded 96

percent of the male population; photos that belonged to Hodges and contained his


                                         - 34 -
fingerprints and handwriting were found at the crime scene; a belt and a knife

found at the crime scene were identified as similar to a belt and knife owned by

Hodges; a jacket found on the path the murderer took away from the crime scene

was similar to a jacket that Hodges was seen wearing near the time of the murder;

and Hodges confessed that he committed the murder to two witnesses who testified

at trial. As a result, Hodges has not demonstrated that any alleged deficiency in

these three areas would undermine confidence in the outcome.

                                       Hurst

      During the pendency of Hodges’s appeal from the denial of his motion for

postconviction relief, the United States Supreme Court issued its decision in Hurst

v. Florida, 136 S. Ct. 616, 619 (2016), in which it held that Florida’s former capital

sentencing scheme violated the Sixth Amendment because it “required the judge to

hold a separate hearing and determine whether sufficient aggravating

circumstances existed to justify imposing the death penalty” even though “[t]he

Sixth Amendment requires a jury, not a judge, to find each fact necessary to

impose a sentence of death.” On remand in Hurst v. State (Hurst), 202 So. 3d 40,

57 (Fla. 2016), we held that

      before the trial judge may consider imposing a sentence of death, the
      jury in a capital case must unanimously and expressly find all the
      aggravating factors that were proven beyond a reasonable doubt,
      unanimously find that the aggravating factors are sufficient to impose
      death, unanimously find that the aggravating factors outweigh the


                                        - 35 -
         mitigating circumstances, and unanimously recommend a sentence of
         death.

         Hurst v. Florida and Hurst apply retroactively to defendants in Hodges’s

position who were sentenced under Florida’s former, unconstitutional capital

sentencing scheme after the United States Supreme Court decided Ring in 2002.

Mosley v. State, 41 Fla. L. Weekly S629, S640 (Fla. Dec. 22, 2016). And in light

of the nonunanimous jury recommendation to impose a death sentence, it cannot be

said that the failure to require a unanimous verdict here was harmless. See

Franklin v. State, 41 Fla. L. Weekly S573, S575 (Fla. Nov. 23, 2016) (“In light of

the non-unanimous jury recommendation to impose a death sentence, we reject the

State’s contention that any Ring- or Hurst v. Florida-related error is harmless.”).

We therefore reverse Hodges’s death sentence and remand for a new penalty

phase.

                                 III. CONCLUSION

         For the reasons stated above, we affirm the denial of postconviction relief as

to Hodges’s conviction but reverse Hodges’s death sentence and remand for a new

penalty phase.

         It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion, in which
POLSTON and LAWSON, JJ., concur.




                                          - 36 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., concurring in part and dissenting in part.

      I concur with the decision to affirm the denial of relief regarding Hodges’s

conviction. But I dissent from the decision to require a new penalty phase. As I

have previously explained, Hurst v. Florida, 136 S. Ct. 616 (2016), should not be

given retroactive effect. See Mosley v. State, 41 Fla. L. Weekly S629, S641-44

(Fla. Dec. 22, 2016) (Canady, J., concurring in part and dissenting in part).

POLSTON and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Escambia County,
     Terry David Terrell, Judge - Case No. 172003CF005683AXXXXX

Robert A. Norgard of Norgard, Norgard, & Chastang, Bartow, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant
Attorney General, Tallahassee, Florida,

      for Appellee




                                        - 37 -
