          Supreme Court of Florida
                                  ____________

                                  No. SC11-2083
                                  ____________

                         GARY RICHARD WHITTON,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC12-2522
                                  ____________

                         GARY RICHARD WHITTON,
                                 Petitioner,

                                        vs.

                          MICHAEL D. CREWS, etc.,
                               Respondent.

                               [October 9, 2014]
                            CORRECTED OPINION

PER CURIAM.

      Gary Richard Whitton appeals an order of the circuit court denying his

motion to vacate his conviction of first-degree murder and sentence of death filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ

of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

                                      FACTS

      Whitton was convicted for the 1990 murder of James Mauldin. On direct

appeal, this Court summarized the events leading to Mauldin’s murder, and

Whitton’s subsequent arrest and conviction as follows:

             The evidence presented at trial revealed that Whitton and James
      S. Mauldin met each other in March 1989, while receiving alcohol
      treatment at a halfway house in Pensacola. After leaving the halfway
      house, they continued to see each other at occasional Alcoholics
      Anonymous meetings. On October 6, 1990, Mauldin arrived at
      Whitton’s Pensacola home in a taxicab. Whitton then gave Mauldin a
      ride to the halfway house where they originally met. On Sunday
      October 7, an intoxicated Mauldin returned to Whitton’s home. He
      stayed with Whitton that day, as well as Monday, October 8.
             On October 8, Whitton drove Mauldin to a bank in Destin so
      Mauldin could withdraw some money. The two men went to
      Mauldin’s bank in Destin rather than a bank in Pensacola because
      Mauldin had lost his passbook and he believed he needed it to
      withdraw money from a bank other than his own. Mauldin’s bank
      was closed when the two men arrived, but they returned to the bank
      on October 9. Upon their arrival, a teller told Mauldin he could not
      make a withdrawal without his passbook. Upset by this information,
      Mauldin closed his account and obtained $1135.88 in cash. Whitton
      assisted Mauldin in completing the transaction because Mauldin, who
      was apparently intoxicated, was unable to complete it himself.
             Whitton then took Mauldin to a motel in Destin at Mauldin’s
      request. Whitton completed the motel registration forms due to
      Mauldin’s intoxication, but provided the motel clerk with false
      information about his own vehicle’s license plate number. The motel
      clerk noticed the discrepancy and put Whitton’s correct license plate
      number on the form. Whitton then assisted Mauldin to his room and
      left the motel sometime before noon.


                                        -2-
       Whitton originally told investigators that he did not revisit
Mauldin that night. He later admitted returning to the motel and
stated that he did so to tell Mauldin his mother was looking for him.
Whitton claimed Mauldin was dead when he arrived and that he
remained in the room for only a few moments. The motel clerk,
however, testified that he saw Whitton’s car arrive at approximately
10:30 p.m. that night and leave at around 12:30 a.m.
       The same motel clerk discovered Mauldin’s body the next day.
An officer called to the scene testified that Mauldin’s pockets had
been turned inside out and that no money, other than a few coins,
remained in the room. The officer testified that the blood found
throughout the room made it appear as though a struggle had taken
place. Blood spatter evidence confirmed the officer’s conclusion. An
expert in bloodstain analysis testified that the initial bloodshed began
on the south bed, then continued to the foot of that bed, then to the
floor between the beds, and finally ended between the north bed and
north wall.
       An autopsy revealed that Mauldin sustained numerous injuries
during the attack which caused his death. Mauldin’s skull was
fractured and he suffered stab wounds to his shoulder, cheek, neck,
scalp, and back. In addition, Mauldin sustained three fatal stab
wounds to the heart. The medical examiner testified that these
wounds prevented Mauldin’s heart from beating properly and,
consequently, caused his death. The medical examiner also testified
that Mauldin had wounds to his arms and hands consistent with his
attempting to defend himself. Accordingly, the medical examiner
concluded that Mauldin was conscious during the attack, although a
blood alcohol test indicated Mauldin’s blood alcohol level was .34 at
the time of death.
       The correct license plate number ascertained by the alert motel
clerk led the police to Whitton’s home. At approximately 1:30 a.m.
on October 11, several officers knocked on Whitton’s door after
observing his car parked outside the house. Whitton invited the
officers inside. Although the officers explained that Whitton was not
under arrest and that he was not required to answer their questions,
Whitton agreed to talk with them. After about twenty minutes, during
which Whitton changed from his night clothes, he also agreed to
accompany the officers to the police station. At the police station,
several officers continued questioning Whitton regarding Mauldin’s
death until he invoked his right to remain silent.

                                  -3-
             A subsequent search of Whitton’s home revealed a pair of boots
      stained with blood matching Mauldin’s blood type. A search of his
      car revealed blood stains matching Mauldin’s blood type, as well as
      receipts indicating that Whitton paid several overdue bills on October
      10. In addition, a receipt indicating that Whitton obtained a car wash
      on October 10 at 2:37 a.m. was found in his car. Consequently,
      Whitton was charged with first-degree murder and robbery.
             While incarcerated and awaiting trial, Whitton confessed to
      another inmate that he went back to the motel the night Mauldin was
      murdered to get the money Mauldin had withdrawn from the bank,
      that a fight ensued, and that he stabbed and killed Mauldin. Whitton
      told the inmate he had to commit the murder in order to prevent
      Mauldin from testifying against him in any parole violation
      proceeding that might occur as a result of the robbery. This
      confession was overheard by a third inmate and both inmates testified
      at Whitton’s murder trial. A jury found Whitton guilty of murder and
      robbery.
             In the penalty-phase proceeding the jury unanimously
      recommended the death sentence. The trial judge followed the jury’s
      recommendation and sentenced Whitton to death for the murder
      conviction and to a consecutive nine-year sentence for the robbery
      conviction. In support of the death penalty the judge found five
      aggravating factors: (1) Whitton committed the crime while on parole
      for a 1981 armed robbery conviction; (2) Whitton was previously
      convicted of another felony involving the use or threat of violence; (3)
      the crime was committed to avoid arrest; (4) the crime was committed
      for pecuniary gain; and (5) the crime was heinous, atrocious, or cruel.
      The judge also found a number of nonstatutory mitigating factors [:(1)
      Whitton suffered a deprived childhood and poor upbringing; (2)
      Whitton was abused as a child; (3) Whitton was abused by his two
      alcoholic parents; (4) Whitton was a hard worker when employed; (5)
      Whitton had shown potential for rehabilitation; (6) Whitton had
      performed various humanitarian deeds; (7) Whitton was an alcoholic;
      (8) Whitton had an unstable personality consistent with alcoholism
      and child abuse; (9) Whitton is a human being and child of God,] but
      determined they did not outweigh the aggravating factors.

Whitton v. State, 649 So. 2d 861, 862-64 (Fla. 1994) (footnotes omitted).




                                       -4-
      Whitton raised seven issues on appeal.1 This Court did not grant relief on

any of Whitton’s claims and affirmed his convictions and sentences. Id. at 867.

      On March 26, 1997, Whitton filed a shell motion for postconviction relief

pursuant to rule 3.850. Whitton subsequently filed three amendments to his

motion; the third and last was filed on November 1, 2004. Whitton raised twenty-

nine claims. The court summarily denied eleven claims and conducted an

evidentiary hearing on the remaining eighteen claims. After the evidentiary

hearings held on October 31 through November 3, 2005, the court denied each of

Whitton’s remaining claims in a 102-page order issued on June 2, 2011.

      Whitton appeals the denial of five claims, and has filed a petition for a writ

of habeas corpus, raising two additional claims. Because we find that Whitton has

failed to establish that he is entitled to relief on any of his claims, we affirm the

postconviction court’s denial and deny Whitton’s petition for a writ of habeas

corpus.



        1. (1) The trial court erred in denying Whitton’s motion for mistrial after the
prosecutor commented on his post-arrest silence during closing argument; (2) the
trial court erred in denying in part Whitton’s motion to suppress statements he
made to officers because the statements were allegedly the product of an illegal
arrest; (3) the heinous, atrocious, or cruel instruction provided by the court was
unconstitutionally vague; (4) the trial court erred in finding that the murder was
especially heinous, atrocious, or cruel; (5) the trial court erred in failing to give a
limiting instruction with respect to the avoiding arrest circumstance; (6) the trial
court erred in finding that the murder was committed to avoid arrest; and (7) the
death sentence is not proportionate in this case.


                                          -5-
                                  DISCUSSION

                                 Brady and Giglio

      In his first issue on appeal, Whitton raises several claims purported to be

violations of Brady v. Maryland, 373 U.S. 83 (1963). Whitton’s claims appear to

be a mixture of Brady, Giglio v. United States, 405 U.S. 150 (1972), and improper

argument claims. The theme of Whitton’s claims is that, overall, the prosecution

was corrupt and sought to convict him by any necessary means. In each of these

claims, Whitton fails to establish each of the prongs necessary to maintain a claim.

Accordingly, we find that the postconviction court properly denied these claims.

                               Standards of Review

      To successfully raise a Brady violation claim, Whitton must show that: (1)

the evidence was favorable to him, either because it was exculpatory or

impeaching; (2) the evidence was suppressed by the State; and (3) that the

suppression resulted in prejudice. Conahan v. State, 118 So. 3d 718, 729 (Fla.

2013) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Johnson v. State,

921 So. 2d 490, 507 (Fla. 2005); Rogers v. State, 782 So. 2d 373, 378 (Fla. 2001)).

“To establish the materiality element of Brady, the defendant must demonstrate a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Conahan, 118 So. 3d at 730

(quoting Guzman v. State, 868 So. 2d 498, 506 (Fla. 2003)) (internal quotation


                                        -6-
marks omitted). The review of a postconviction court’s denial of this claim is

under a mixed standard where this Court defers to the lower court’s factual

findings that are supported by competent, substantial evidence and reviews the

application of law de novo. Id. at 730 (quoting Sochor v. State, 883 So. 2d 766,

785 (Fla. 2004)).

      Likewise, there are three elements to a successful Giglio claim, Whitton

must demonstrate that (1) the testimony was false; (2) the prosecutor knew it was

false; and (3) the testimony was material. See Conahan, 118 So. 3d at 728 (citing

Guzman, 868 So. 2d at 505). If Whitton successfully demonstrates the first two

elements, “the State bears the burden of proving that the testimony was not

material by showing that there is no reasonable possibility that it could have

affected the verdict because it was harmless beyond a reasonable doubt.” Id. at

728-29 (citing Johnson v. State, 44 So. 3d 51, 64-65 (Fla. 2010); Guzman, 868 So.

2d at 506-07). And, the claim carries the same mixed standard of review. Id. at

729 (citing Suggs v. State, 923 So. 2d 419, 426 (Fla. 2005)).

Kenneth McCollough

      Whitton’s claims regarding McCollough are that: (1) the State coerced him

into providing false testimony at Whitton’s trial, and (2) the State suppressed

knowledge of McCollough’s crimes and relationship with the prosecutor’s mother,

Inez Adkinson. Whitton fails to establish that McCollough presented false


                                        -7-
testimony at his trial or that the State was aware that any testimony was false.

Second, the record refutes Whitton’s assertion that the State suppressed knowledge

of McCollough’s relationship with Mrs. Adkinson because trial counsel impeached

McCollough on the basis of this knowledge.

      Whitton’s Giglio claim is that the State knowingly presented McCollough’s

false testimony at trial. McCollough testified at trial that Whitton had confessed to

him that he killed Mauldin. Because McCollough’s testimony concerned

Whitton’s confession, this evidence is clearly material. See Shellito v. State, 121

So. 3d 445, 460 (Fla. 2013) (“False evidence is material ‘if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.’ ”

(quoting Guzman, 868 So. 2d at 506)). However, Whitton has not demonstrated

with certainty that the testimony McCollough provided was false, nor that the State

knew it to be false.

      At the evidentiary hearing, witnesses testified generally about McCollough’s

reputation as a known snitch and liar. However, no witness provided admissible

evidence that McCollough lied specifically about Whitton’s confession. Billy Key

testified that McCollough intended to recant his trial testimony. George Broxon

testified that he knew McCollough had committed a sexually deviant crime that he

wanted to cover up. Broxon did not testify that he had specific knowledge that

McCollough had lied at Whitton’s trial in order to secure a deal with the


                                        -8-
prosecution. Whitton also introduced the testimony of Sheila Lowe (formerly

McCollough), stating that McCollough was a liar and that she would not believe

anything he said. She did not testify specifically about Whitton’s case or that she

had any specific knowledge that McCollough had lied during his testimony at

Whitton’s trial. Whitton also produced a transcript of Lowe’s police interview

describing the nature of McCollough’s crimes. Additionally, McCollough never

executed an affidavit prior to his death. It seems that the only evidence that

McCollough may have wanted to recant his trial testimony was hearsay evidence

presented by a third party. Accordingly, the postconviction court’s ruling that

Whitton failed to demonstrate that a Giglio violation occurred is supported by

competent, substantial evidence.

      Next, Whitton alleges that the State suppressed knowledge of McCollough’s

relationship with the prosecutor’s mother in violation of Brady. This claim is

procedurally barred and refuted by the record. Whitton failed to raise this claim as

a Brady violation in his motion for postconviction relief and, therefore, the

postconviction court did not address it. Accordingly, Whitton is procedurally

barred from raising this claim here.

Jake Ozio

      Whitton’s claim regarding Ozio is similar to his McCollough claim.

Whitton alleges that Ozio recanted his trial testimony that Whitton confessed to


                                        -9-
him in prison. However, Whitton failed to present any evidence in support of his

claim. Accordingly, the postconviction court properly denied this claim.

      First, Whitton has failed to demonstrate that the evidence was false. Ozio

refused to testify and Whitton did not seek to have Ozio’s affidavit submitted into

evidence. Additionally, this Court has stated that recantations are highly

unreliable. See Spann v. State, 91 So. 3d 812, 816 (Fla. 2012) (stating that because

recanting testimony is so unreliable, a new trial will be granted only when it

appears that the witness’s testimony changes to such an extent as to render a

probable different verdict) (citing Armstrong v. State, 642 So. 2d 730 (Fla. 1994)).

The only testimony presented at the evidentiary hearing to support this claim was

from Kevin Wallace, Ozio’s co-defendant, who never stated that Ozio lied at trial.

Wallace testified that Ozio told him that Ozio was the only reason they had gotten

out of jail. Furthermore, even if Ozio’s trial testimony was false, Whitton has not

demonstrated that the State was aware that Ozio intended to present false

testimony. Accordingly, the lower court properly denied this claim.

Shirley Ziegler

      Whitton alleges that the prosecutor and sheriff’s office threatened Ziegler

and that this deprived him of a fair trial. This is neither a Brady nor Giglio claim

because Whitton does not allege that the State either presented false testimony or




                                        - 10 -
suppressed evidence, but rather alleges that the State attempted to suppress

evidence or coerce Ziegler into testifying falsely about her laboratory results.

      Even if we were to address this claim on the merits, the record demonstrates

that defense counsel was aware of the alleged threats during trial. Further, Ziegler

testified at the evidentiary hearing that she testified truthfully and did not withhold

any information. Accordingly, Whitton’s claim is refuted by the record and

without merit.

DNA Samples

      Whitton additionally claims that the blood that Ziegler tested was from a

different location than that tested by the State’s expert, Lonnie Ginsberg. During

his postconviction proceedings, it appears that Whitton argued the opposite—that

the State attempted to discredit Ziegler’s testimony by stating that she tested a

different location than Ginsberg. Because Whitton’s claim on appeal is different

from his claim below, it is procedurally barred.

The Other DNA Lab

      Whitton also alleges that the State suppressed its attempt to secure additional

DNA testing and an audio-taped conversation between Lt. Mann and Brian

Wraxall at the Serological Research Institute. The postconviction court listened to

the audiotape and determined that there was no exculpatory evidence contained on

it. On the tape, Lt. Mann opines that Ziegler probably performed part of the testing


                                         - 11 -
process incorrectly, which altered the results. Thereafter, the postconviction court

found that Whitton’s claim was refuted by the record and properly denied this

claim.

Cellmark

         Whitton alleges that the State suppressed the Cellmark report stating that the

test results were inconclusive. Alternatively, Whitton argues that the State

presented false testimony stating that the Cellmark report concluded that there was

insufficient material to test. Whitton has failed to establish either a Brady or

Giglio violation because he presented no evidence in support of this claim.

         First, Whitton has not demonstrated that this evidence would be exculpatory.

Zeigler testified at trial that the blood sample in question did not match that of

Whitton or the victim. Further, Whitton admitted that the victim’s blood was on

his boots because, according to Whitton’s version of events, he walked through the

victim’s blood in his hotel room after he had been murdered. Whitton’s admission

makes it impossible for him to demonstrate prejudice. Likewise, Whitton has not

established that any false evidence was presented at trial. Accordingly, the

postconviction court properly denied this claim.

Car Wash Ticket

         Whitton next alleges that the State presented false testimony regarding a car

wash ticket found in Whitton’s vehicle. Whitton has not established that the


                                          - 12 -
evidence was false, that the State was aware that it was false, or that he was

prejudiced.

      The car wash ticket was purchased at 2:37 a.m. at a Conoco gas station on

October 10, 1990. Such tickets were given when anyone purchased at least eight

gallons of gasoline at that particular service station. A person who purchased

regular grade gasoline would get one car wash, but a person who purchased mid-

or super-grade gasoline would receive a double car wash. The testimony at trial

established that Whitton’s ticket was a double wash ticket. Accordingly, Whitton’s

argument that the ticket’s use by Lt. Mann proves that Whitton could not have used

the ticket is incorrect. Furthermore, the ticket was not used to demonstrate that

Whitton had washed his car to remove evidence. The ticket was presented at trial

to establish Whitton’s whereabouts during the time of the murder because Whitton

alleged that he was at home when Mauldin was murdered. The car wash ticket

demonstrates that Whitton was not at home and that he was in the vicinity of the

victim’s hotel.

      Whitton has not established that the State presented false testimony. At the

evidentiary hearing, Whitton presented a report written by Lt. Mann who

concluded that Whitton did not use the car wash. However, in light of the

testimony that Whitton’s receipt was valid for a double wash, this evidence is

insufficient to establish that the State’s argument at trial was improper. Further,


                                        - 13 -
because it was not used to demonstrate that Whitton attempted to wash blood off of

his car, Whitton cannot demonstrate that the State knew the evidence to be false.

Finally, Whitton cannot demonstrate prejudice.

Maureen Fitzgerald

      Whitton appears to raise another improper argument claim under the guise of

Brady and Giglio. Whitton does not allege that Fitzgerald lied at trial, but that the

State improperly argued that Whitton lied to Fitzgerald about Mauldin’s

whereabouts. To the extent that this represents an improper argument claim, it is

procedurally barred because it should have been raised on direct appeal. To the

extent that this is a Brady or Giglio argument, the postconviction court properly

denied this claim.

      Fitzgerald testified at trial that Whitton called her on October 8 or 9, 1990,

and told her that Mauldin was staying at a hotel in Destin. She testified that she

was uncertain of the name, but that she had likely written it down and thought the

name might be “Sun Den.” Whitton testified that he did not pay attention to the

name of the hotel and was not certain what name he had given to Fitzgerald. She

was not certain of the name of the hotel and gave several different names. During

closing arguments, the State argued that Whitton had misrepresented the hotel’s

name to Fitzgerald and gave her a different name than the “Sun and Sand” where

Mauldin was actually staying.


                                        - 14 -
      Whitton cannot raise an improper argument claim as proper grounds for

postconviction relief. Because this claim should have been raised on direct appeal,

it is procedurally barred. See Jennings v. State, 123 So. 3d 1101, 1102 (Fla. 2013)

(citing Spencer v. State, 842 So. 2d 52, 60 (Fla. 2003)).

      To the extent that Whitton is alleging a violation of Giglio, Whitton does not

argue and cannot demonstrate that the evidence presented was false, nor that the

State knew it to be false. Finally, because Whitton also testified that he was

uncertain of the name of the hotel, he cannot establish prejudice. Accordingly, the

postconviction court properly denied this claim.

The “Corrupt” Prosecution

      Here, Whitton argues that the overall corruptness of the prosecution in his

trial warrants a reversal. Treating this claim as a claim of cumulative error,

Whitton has failed to demonstrate that he is entitled to relief. See Merck v. State,

124 So. 3d 785, 802 (Fla. 2013) (“ ‘[W]here individual claims of error alleged are

either procedurally barred or without merit, the claim of cumulative error must

fail.’ ”) (quoting Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003)).

                      Ineffective Assistance of Trial Counsel

      In his second claim, Whitton alleges multiple instances of ineffective

assistance of trial counsel. In addition to reasserting the claims above as

ineffective assistance of counsel, Whitton raises novel claims that involve his


                                         - 15 -
assertion that trial counsel failed in multiple respects to establish an alternative

theory of the crime by: (1) failing to call an expert to testify that a fingerprint could

not have been deposited on the inside of a sandwich bag during manufacturing, (2)

failing to call a forensic pathologist to dispute the length of time it took the victim

to die, (3) failing to establish a different time of death, (4) failing to establish that

the State’s theory of motive was not supported, (5) failing to argue that the crime

scene was not properly processed, (6) failing to argue that the victim was “looking

to get rolled,” and (7) failing to impeach John Maleszewski’s testimony. Because

Whitton has failed to establish deficiency or prejudice for each of these sub claims,

his claim of ineffective assistance of counsel in the guilt phase fails.

                                  Standard of Review

       In accordance with Strickland v. Washington, 466 U.S. 668 (1984), this

Court employs the following standard of review:

       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.

Long v. State, 118 So. 3d 798, 805 (Fla. 2013) (quoting Bolin v. State, 41 So. 3d

151, 155 (Fla. 2010)). Additionally,

       There is a strong presumption that trial counsel’s performance was not
       deficient. See Strickland, 466 U.S. at 690. “A fair assessment of
       attorney performance requires that every effort be made to eliminate


                                          - 16 -
      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.” Id. at 689. The defendant carries
      the burden to “overcome the presumption that, under the
      circumstances, the challenged action ‘might be considered sound trial
      strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101
      (1955)). “Judicial scrutiny of counsel’s performance must be highly
      deferential.” Id. “[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.” Occhicone v. State, 768 So. 2d 1037, 1048
      (Fla. 2000). Furthermore, where this Court previously has rejected a
      substantive claim on the merits, counsel cannot be deemed ineffective
      for failing to make a meritless argument. Melendez v. State, 612 So.
      2d 1366, 1369 (Fla. 1992).
             In demonstrating prejudice, the defendant must show a
      reasonable probability that “but for counsel’s unprofessional errors,
      the result of the proceeding would have been different. A reasonable
      probability is a probability sufficient to undermine confidence in the
      outcome.” Strickland, 466 U.S. at 694.

Long, 118 So. 2d at 805-06 (parallel citations omitted) (quoting Johnston v. State,
63 So. 3d 730, 737 (Fla. 2011)).

      Because both prongs of the Strickland test present mixed questions of
      law and fact, this Court employs a mixed standard of review,
      deferring to the circuit court’s factual findings that are supported by
      competent, substantial evidence, but reviewing the circuit court’s legal
      conclusions de novo.
Shellito, 121 So. 3d at 451 (citing Mungin v. State, 79 So. 3d 726, 737 (Fla. 2011);

Sochor, 883 So. 2d at 771–72).

                                      Merits

      In this claim, Whitton raises several instances where he argues that trial

counsel was ineffective. For each of the subclaims, Whitton has failed to establish



                                       - 17 -
both prongs of the Strickland test. Accordingly, the postconviction court properly

denied his claims.

Car Wash Ticket

      Whitton first alleges that counsel was deficient for failing to introduce Lt.

Mann’s report at trial, which contained Lt. Mann’s opinion that Whitton did not

use the car wash. Because Lt. Mann’s report would have constituted hearsay

evidence, and Whitton did not call Lt. Mann to testify at the evidentiary hearing,

Whitton cannot establish that counsel was deficient. Additionally, as discussed

above, the jury heard testimony that Whitton’s ticket was a “double car wash”

ticket, meaning that Lt. Mann’s conclusion that Whitton did not use the ticket was

based on an erroneous assumption. Accordingly, even if counsel had submitted the

report into evidence, Whitton cannot establish that it would have affected the

outcome of his trial. Therefore, the postconviction court properly denied relief on

this claim.

Fingerprint on the Sandwich Bag

      Whitton argues that counsel was deficient for failing to call an expert

witness to testify that a fingerprint could not have been deposited inside the

sandwich bag during the manufacturing process. The postconviction court

properly denied this claim because Whitton cannot establish prejudice or

deficiency.


                                        - 18 -
      At trial Florida Department of Law Enforcement agent Tom Simmons

testified that fingerprints not matching the victim or defendant were found on

several items in the room. Simmons further testified that the print on the sandwich

bag could have been placed there by the person who opened the bag. Lastly,

during closing arguments, defense counsel argued that the prints created reasonable

doubt. Accordingly, counsel was not deficient for failing to call an expert witness

to testify that the prints could not have resulted from the manufacturing process

and the postconviction court properly denied this claim.

Failure to Question Zeigler

      Whitton alleges that counsel was deficient for failing to question Zeigler

about the threats she received in front of the jury. Whitton argues that this would

have been compelling evidence for the jury to consider. However, Whitton cannot

establish that counsel was deficient nor can he establish that he was prejudiced

because Zeigler did not testify untruthfully at trial. Zeigler stated that she testified

truthfully and her testimony was favorable to Whitton. Counsel moved for

dismissal based on the threats Zeigler received, but the court denied the motion.

Counsel then moved for a new trial which was also denied. However, counsel

does not appear to have followed up. Counsel addressed the issue to the extent

available at trial. Accordingly, Whitton cannot establish that counsel was deficient

or that he was prejudiced, and the postconviction court properly denied his claim.


                                         - 19 -
Cellmark and Additional DNA Testing

      Whitton alleges that trial counsel were deficient for failing to produce

evidence that the State attempted to obtain DNA testing at another lab. Whitton’s

claim here contravenes his claim above that the State suppressed the evidence of

such attempt. Whitton cannot establish that counsel was deficient. The FDLE

results were favorable to the defense and it was sound trial strategy not to call

attention to the State’s attempt to obtain additional testing that might have caused

the jury to doubt the credibility of the results. Further, Whitton cannot establish

prejudice because the results were favorable to him and it is not likely that the

outcome of the trial would have been different. Accordingly, the postconviction

court properly denied this claim.

Forensic Pathologist

      Whitton alleges that trial counsel were ineffective for failing to present

evidence to rebut the coroner’s determination that Mauldin struggled for thirty

minutes before he died from his injuries. Whitton further alleges that counsel were

ineffective for failing to present evidence that there were likely two weapons used

and two people involved in Mauldin’s murder. Whitton presented the evidence of

Dr. Leroy Riddick at the evidentiary hearing. Dr. Riddick disagreed with the trial

testimony of Dr. Edmund Kielman.




                                        - 20 -
      Whitton cannot establish prejudice. Although Dr. Riddick’s testimony

differed from that of Dr. Kielman, there was nothing presented at the evidentiary

hearing that affected Whitton’s guilt. It is therefore not likely that Whitton would

have been found not guilty if counsel had presented Dr. Riddick’s testimony at

trial. Further, Dr. Riddick’s testimony would not have negated the trial court’s

finding of the HAC aggravator. Therefore, it is also not likely that Whitton would

have received a lesser sentence. Accordingly, the postconviction court properly

denied relief on this claim.

Time of Death

      Whitton alleges that counsel were deficient for failing to more extensively

cross-examine Dr. Kielman regarding Mauldin’s time of death. The only evidence

presented at the evidentiary hearing to support this claim was Dr. Riddick’s

testimony that the struggle was likely approximately five minutes rather than the

thirty minutes Dr. Kielman opined elapsed. Dr. Riddick opined that the time of

death was between 5:00 p.m. and 11:00 p.m. on October 9. Dr. Kielman’s trial

testimony provided that the time of death could have been from 11:00 a.m. on

October 9 to 11:00 a.m. on October 10, 1990. Accordingly, Dr. Riddick’s

testimony did not contradict Dr. Kielman’s. Whitton cannot establish that he was

prejudiced, and the postconviction court properly denied this claim.




                                        - 21 -
Motive

      Whitton alleges that trial counsel was deficient for failing to present the

testimony of Debra Sims at trial to rebut the State’s theory of Whitton’s motive for

killing Mauldin. Whitton alleges that Sims would have testified that she gave him

money to pay his bills and that he was not affected by losing his job because he

had another job lined up. As it relates to the testimony that Whitton had another

job, such testimony would have been hearsay. Counsel cannot be deemed deficient

for failing to submit inadmissible evidence at trial. Further, Whitton cannot

establish prejudice. Sims’ testimony that she gave him $200 would not likely have

changed the outcome of the trial. At trial, evidence was presented that Whitton’s

past due bills were paid on the day after the murder. It is not likely that the jury

would have reached a different verdict if it had heard Sims’ testimony.

Accordingly, the postconviction court properly denied this claim.

Blood Evidence Testimony

      Whitton alleges that trial counsel were ineffective for failing to argue that

the blood evidence found in his car was consistent with his story that he walked

through Mauldin’s blood when he found Mauldin’s body. Whitton’s claim is

disputed by the record. Counsel argued during closing that only three drops of

blood were found in Whitton’s car and that the person who committed the murder




                                         - 22 -
would have been covered in blood. Whitton has failed to demonstrate that this was

deficient. Accordingly, the postconviction court properly denied this claim.

Crime Scene

      Whitton alleges that counsel were ineffective for failing to present evidence

that the crime scene was not properly processed. By Whitton’s own allegation,

counsel were not aware that any evidence was returned to the victim’s family

without being tested. Counsel cannot be deficient for failing to introduce evidence

that was unknown at the time of trial. Further, Whitton failed to present evidence

to support this claim. See Dennis v. State, 109 So. 3d 680, 694-95 (Fla. 2012)

(finding that defendant’s failure to allege which experts should have been hired,

what these experts would have testified, and how the failure prejudiced the

defendant, was sufficient to support denial of the defendant’s postconviction

claim.). Accordingly, the postconviction court properly denied this claim.

Alternate Theory of Crime

      Whitton alleges that counsel were deficient for failing to present testimony

that Mauldin was flashing his money, had previously been “rolled” by a prostitute,

and was seeking the services of a prostitute on the night of his murder. The

evidence presented at the evidentiary hearing does not support Whitton’s claim.

Whitton argues that Mauldin could have been “rolled” by a prostitute; however, at

the evidentiary hearing, the cab driver testified that he did not. Whitton, therefore,


                                        - 23 -
cannot establish that he was prejudiced by counsel’s failure to present evidence to

support this theory at trial. Whitton did not produce any credible evidence at the

evidentiary hearing that someone else murdered Mauldin. Accordingly, the

postconviction court properly denied this claim.

John Maleszewski

      Whitton argues that counsel were ineffective for failing to impeach hotel

clerk Maleszewski’s inconsistent testimony. Whitton’s argument here is refuted by

the record. The record demonstrates that trial counsel impeached Maleszewski

extensively. Accordingly, Whitton has not established that counsel were deficient,

and the postconviction court properly denied this claim.

Investigation and Impeachment of Snitches

      Whitton alleges that trial counsel were ineffective for failing to interview jail

inmates to find witnesses to refute Ozio’s and McCollough’s testimony. Whitton

failed to present any evidence that would have been admissible at trial. Further,

the record demonstrates that both McCollough and Ozio were impeached

extensively at trial. Whitton failed to demonstrate that counsel were deficient.

Accordingly, the postconviction court properly denied this claim.




                                        - 24 -
                               Juror Communication

Juror Notes

      Whitton alleges that the trial judge and bailiff communicated with the jury

outside the presence of the defendant and counsel in violation of Florida Rule of

Criminal Procedure 3.410.2 Whitton’s allegation is based on five notes from the

jury of which he says he was unaware until recently. Whitton’s claim is refuted by

the record and thus without merit. Additionally, two of the notes do not comprise

communication within the scope of rule 3.410, and therefore do not constitute

error.3 Whitton’s claim fails because these communications do not fall within the

scope of rule 3.410. See Mendoza v. State, 700 So. 2d 670, 674 (Fla. 1997).


      2. Rule 3.410 provides:

             After the jurors have retired to consider their verdict, if they
      request additional instructions or to have any testimony read or played
      back to them they may be conducted into the courtroom by the officer
      who has them in charge and the court may give them the additional
      instructions or may order the testimony read or played back to them.
      The instructions shall be given and the testimony presented only after
      notice to the prosecuting attorney and to counsel for the defendant.
      All testimony read or played back must be done in open court in the
      presence of all parties. In its discretion, the court may respond in
      writing to the inquiry without having the jury brought before the
      court, provided the parties have received the opportunity to place
      objections on the record and both the inquiry and response are made
      part of the record.

Fla. R. Crim. P. Rule 3.410 (last amended November 8, 2012).
       3.    The first note in the record states, “Is it to our understanding that a
lady in the audience has a tape recorder recording this? We the jury object. It

                                         - 25 -
gives us an uneasy feeling.” In the trial record, this note appears to have been
presented at the beginning of the defense’s portion of the penalty phase, right
before counsel Tongue began questioning Dr. Larson. The trial judge responded
in open court, stating, “Let me make a general announcement before you call your
first witness, and that would be simply to advise the jury that I have dealt with the
situation that you brought to my attention. And I will, for the record, just file this
note with the clerk.”
       Whitton’s claim regarding this note fails for several reasons. First, as
demonstrated by the record, this communication did not fall under the scope of rule
3.140 because it was not a request from the jury for additional instruction during
deliberations. Second, the note was addressed in open court with counsel for the
defense, the State, the defendant, and the jury present. Accordingly, Whitton is not
entitled to relief.
       The fifth note in the record states, “I understand you may have a question. If
so, please write it down and Tim will hand it to me.” L. Melvin, Judge. On the
same page, the jury appears to have written its response, “Mrs. Keyser’s feet
cannot touch floor in jury box which is causing feet to swell—could I get a box to
prop up feet.” This exchange was captured in the trial record. The trial judge and
counsel discussed the procedure for notes at length:
              The Court: I’ve just gotten a note that reads: “Some of the
       jurors want to ask a question. May they write it down?” The note
       was handed to me by my bailiff. I will—If they’re going to ask a
       question, I want it written down. I don’t want them to simply
       verbalize it in the courtroom. Logistically, I think I need to bring
       them in and tell them that if they have a question they need to write it
       down and hand it to the bailiff.
             Mr. Bishop: Judge, for the record, we would just allow Mr.
      Crenshaw to deliver that message. I mean, we are all here in the
      courtroom. I think, that for purposes of the record, we can lay out that
      the jury room door is located in front of the Court, that we would be
      able to observe Mr. Crenshaw enter the room, he can deliver the pad,
      come back, pick the message up from them, and we can just find out
      what it is at that time. We would have no objection to, the defense,
      handling it that way.

             The Court: All right. Does the State have any objection?
             Mr. Adkinson: (Indicating in the negative)


                                        - 26 -
             This Court has held that, where . . . there are communications
      between the judge and the juror outside the express notice
      requirements of rule 3.410, Florida Rules of Criminal Procedure, a
      harmless error analysis applies. See Williams v. State, 488 So. 2d 62,
      64 (Fla. 1986). Indeed, the United States Supreme Court has held
      that, even where such communications are not recorded . . . and are
      not subsequently disclosed to counsel . . . they are still subject to a
      harmless error analysis. See Rushen v. Spain, 464 U.S. 114 (1983).

Lebron v. State, 799 So. 2d 997, 1015 (Fla. 2001).

             The Court: I will then write a note for the bailiff to hand into
      the jury room and wait outside for them to write a response back.
             Mr. Bishop: Do you want to go forward with the testimony, or
      take a break at this point?

             The Court: Let me see what they say. My note to the jury
      reads: “I understand you may have a question. If so, please write it
      down and Tim will hand it to me.”

      [an apparent break while they await the response]

             The Court: What makes makes (sic) this funny is an inside
      joke. I’m sitting in the burgundy chair now instead of the big one
      because my feet don’t touch the floor in the big brown one. This note
      says, “Mrs. Keyser’s feet cannot touch the floor in the jury box, which
      is causing her feet to swell. Could I get a box to prop up my feet?”
      And, so we do need to get her something to prop her feet up on.
This exchange happened during the State’s case-in-chief prior to the direct
examination of Dr. Kielman. Accordingly, the communication does not fall within
the scope of rule 3.140. Therefore, the note is subject to harmless error analysis.
See Lebron v. State, 799 So. 2d 997, 1015 (Fla. 2001). As indicated by the record,
the communication happened in open court and counsel did not object. Indeed,
defense counsel Bishop testified at the evidentiary hearing that he remembered the
note about the juror’s feet not being able to reach the floor. Additionally, this
portion of the record appears to demonstrate that the process for juror notes was
agreed upon by counsel for the defense, counsel for the State, and the trial judge.
Whitton cannot demonstrate that any error occurred or that the error was
prejudicial.


                                        - 27 -
      While the remaining notes4 appear to fall within the scope of rule 3.410, we

agree with the postconviction court that these claims are refuted by the record.

Whitton’s argument that he was unaware of the notes is refuted by counsel’s

testimony that he remembered the content of at least two of the notes.

      We have stated that:

      Violations of rule 3.410 are per se reversible because communication
      between the judge and the jury, without notice to and outside the
      presence of the prosecutor, defense counsel, and the defendant, is too
      possibly prejudicial to be tolerated. Bradley v. State, 513 So. 2d 112
      (Fla. 1987); Williams v. State, 488 So. 2d 62 (Fla. 1986); Curtis v.
      State, 480 So. 2d 1277 (Fla. 1985); Ivory v. State, 351 So. 2d 26 (Fla.
      1977).

Brown v. State, 538 So. 2d 833, 834 (Fla. 1989). However, as we stated in

Thomas v. State, 730 So. 2d 667, 668 (Fla. 1998), “The per se reversible error rule

announced in Ivory is prophylactic in nature and must be invoked by

contemporaneous objection at trial. Where counsel communicates to the trial

judge his acceptance of the procedure employed, the issue will be considered

waived.” Id. at 668 (footnotes and emphasis omitted); see also, Lebron, 799 So. 2d

       4.     The second note in the record states, “List of her (Judge Melvin’s)
instruction (sic) to the jury.”

      The third note in the record states, “What is the soonest possible time he
could get out of prison? Gain time? Model prisoner? etc. Or is 25 yrs the soonest
he could get out?”

       The fourth note in the record appears to be Judge Melvin’s response to the
note above. It states, “With regard to your question, please refer to the jury
instructions. L. Melvin, Judge.”


                                       - 28 -
at 1017 n.2; Mendoza, 700 So. 2d at 674. Here, Whitton’s counsel remembered

several of the notes, including the one regarding Whitton’s sentence. Accordingly,

on the entire record before us, it appears that counsel could have objected

contemporaneously. See Thomas, 730 So. 2d at 668. We note, however, the

importance of ensuring a complete record during trial and admonish trial judges to

remember:

      Any communication with the jury outside the presence of the
      prosecutor, the defendant, and defendant’s counsel is so fraught with
      potential prejudice that it cannot be considered harmless. . . .
       . . . it is prejudicial error for a trial judge to respond to a request from
      the jury without the prosecuting attorney, the defendant, and
      defendant’s counsel being present and having the opportunity to
      participate in the discussion of the action to be taken on the jury’s
      request.

Ivory, 351 So. 2d at 28.

                                   Juror Interviews

      The second part of Whitton’s juror communication claim is that the

postconviction court erred by denying him an opportunity to interview the jury.

This issue is reviewed for an abuse of discretion. Marshall v. State, 976 So. 2d

1071, 1076 (Fla. 2007) (citing Boyd v. State, 910 So. 2d 167, 178 (Fla. 2005)).

This Court has stated:

      “Juror interviews are not permissible unless the moving party has
      made sworn allegations that, if true, would require the court to order a
      new trial because the alleged error was so fundamental and prejudicial
      as to vitiate the entire proceedings.” Johnson v. State, 804 So. 2d


                                          - 29 -
      1218, 1224 (Fla. 2001) (citing Baptist Hosp. of Miami, Inc. v. Maler,
      579 So. 2d 97, 100 (Fla. 1991)).

Power v. State, 886 So. 2d 952, 957 (Fla. 2004). Because there was no

fundamental or prejudicial error, the postconviction court properly denied juror

interviews.

                            Investigation of Mitigation

      In his fourth issue on appeal, Whitton alleges that trial counsel failed to

properly investigate mitigation. The trial court found in mitigation that Whitton

suffered a deprived childhood and poor upbringing, that he was abused as a child,

specifically that he was abused by his alcoholic parents, and that Whitton had an

unstable personality consistent with parental alcoholism and child abuse. Because

the evidence presented at the evidentiary hearing was cumulative to that considered

during Whitton’s penalty phase, he cannot establish that counsel’s failure to talk to

additional members of his family created prejudice. Accordingly, the

postconviction court properly denied this claim.

      This Court has stated that trial counsel has a duty to investigate mitigation.

“ ‘In reviewing a claim that counsel’s representation was ineffective based on a

failure to investigate or present mitigating evidence, the Court requires the

defendant to demonstrate that the deficient performance deprived the defendant of

a reliable penalty phase proceeding.’ ” Simmons v. State, 105 So. 3d 475, 503

(Fla. 2012) (quoting Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011)).


                                        - 30 -
             “It is unquestioned that under the prevailing professional
      norms . . . counsel ha[s] an ‘obligation to conduct a thorough
      investigation of the defendant’s background.’ ” Moreover, counsel
      must not ignore pertinent avenues for investigation of which he or she
      should have been aware. “[I]t is axiomatic that ‘counsel has a duty to
      make reasonable investigations or to make a reasonable decision that
      makes particular investigations unnecessary.’ ”
Id. Here, counsel spoke to several of Whitton’s family members who resided in

Florida. Their combined information supplied sufficient evidence for the trial

court to find multiple mitigating factors relating to Whitton’s childhood.

Admittedly, counsel did not travel to New York to inquire further into Whitton’s

background.

      Relating to the evidence in support of mitigation, the trial court found:

             The evidence is clear that the Defendant is an adult child of two
      alcoholic parents, that he was physically and mentally abused by his
      parents, and that he suffered a deprived childhood and poor
      upbringing. The evidence also demonstrated that other siblings from
      this same family environment are productive, law abiding citizens.
      The Court finds that these mitigating circumstances have been
      established and they are given considerable weight by this court.
      The jury recommended the sentence of death in a unanimous verdict.

Whitton cannot establish that he was prejudiced. As noted, the additional

testimony provided at the evidentiary hearing was cumulative to that presented at

trial. It is therefore not likely that he would have received a lesser sentence if

counsel had presented the additional witnesses. Accordingly, the lower court

properly denied this claim.



                                         - 31 -
      Whitton next alleges that counsel was deficient for failing to appoint experts

to testify regarding his likely fetal alcohol syndrome. Whitton’s claim is refuted

by the record. Counsel appointed Dr. James Larson, who testified “that the

Defendant had a full scale IQ of 84, indicating that his level of intellectual

functioning was in the Low Average range. . . . that the Defendant does not have a

major mental illness, but that he does have an unstable personality, consistent with

alcoholism and child abuse.” Pursuant to Dr. Larson’s testimony, the trial court

found mental problems as a mitigating factor and gave them some weight. Id.

This Court has stated that trial counsel is not deficient simply because

postconviction counsel could find a more favorable expert. See Hoskins v. State,

75 So. 3d 250, 255 (Fla. 2011) (“ ‘This Court has repeatedly held that counsel’s

entire investigation and presentation will not be rendered deficient simply because

a defendant has now found a more favorable expert.’ ” (quoting Card v. State, 992

So. 2d 810, 818 (Fla. 2008))). Accordingly, just because Whitton has found an

expert who would diagnose him as having fetal alcohol syndrome does not mean

that counsel provided deficient performance at the trial. Further, even if this Court

finds that counsel was deficient, because the evidence would be stronger, but

cumulative to that provided at trial, Whitton cannot establish prejudice. Therefore,

the postconviction court properly denied this claim.




                                         - 32 -
                                  Cumulative Error

      In his final claim on appeal, Whitton argues that the cumulative effect of the

errors in his trial entitle him to a new trial. The postconviction court denied this

claim below, finding that Whitton was not entitled to cumulative relief where there

had been no error found. The lower court is correct. As discussed above, Whitton

is not entitled to relief on any of his claims and is therefore not entitled to relief

based on cumulative error. See Merck, 124 So. 3d at 802.

                 PETITION FOR WRIT OF HABEAS CORPUS

      In Whitton’s first habeas issue, he refashions one of his postconviction

claims into an ineffective assistance of appellate counsel claim. In his

postconviction motion, he alleged both that the State had offered false testimony

through McCollough and Ozio, and had suppressed evidence relating to

McCollough. Whitton argues that appellate counsel was ineffective for failing to

follow up on McCollough’s recantation.

      Claims of ineffective assistance of appellate counsel are properly raised in a

petition for writ of habeas corpus. See Jackson v. State, 127 So. 3d 447, 476 (Fla.

Sept. 2013) (citing Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)). “In

raising such a claim, the defendant has the burden of alleging a specific, serious

omission or overt act upon which the claim of ineffective assistance of counsel can

be based.” Id. (internal quotation marks and alterations omitted). Consistent with


                                          - 33 -
the Strickland standard, to grant habeas relief based on ineffective assistance of

counsel, this Court must determine:

      first, whether the alleged omissions are of such magnitude as to
      constitute a serious error or substantial deficiency falling measurably
      outside the range of professionally acceptable performance and,
      second, whether the deficiency in performance compromised the
      appellate process to such a degree as to undermine confidence in the
      correctness of the result.

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So.

2d at 1069; Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000). In raising such a

claim, “[t]he defendant has the burden of alleging a specific, serious omission or

overt act upon which the claim of ineffective assistance of counsel can be based.”

Freeman, 761 So. 2d at 1069; see also Knight v. State, 394 So. 2d 997, 1001 (Fla.

1981).

      Whitton has not established that appellate counsel’s omission constitutes a

substantial deficiency outside the range of professionally acceptable performance.

Saunders testified that she received the communication from Billy Key that

McCollough wished to issue a statement recanting his trial testimony. She

contacted trial counsel, who asked her to secure the statement. Saunders attempts

were thwarted because McCollough refused to issue a statement unless the State

agreed that he would not be prosecuted for perjury. Because Saunders could not

overcome his refusal, McCollough did not submit a statement. Whitton does not




                                        - 34 -
provide any caselaw to support his assertion that Saunders owed him a greater

duty.

        Further, Whitton cannot establish prejudice. As discussed above,

recantations are not credible. Without McCollough’s testimony, Ozio’s testimony

would still have provided the jury with evidence that Whitton admitted to

murdering Mauldin. That, coupled with the overwhelming evidence against

Whitton, makes it extremely unlikely that McCollough’s recantation would have

changed the outcome of the trial.

        Because we determine that the specific error alleged is not one for which

Whitton is entitled to relief, we find that counsel is not deficient for failing to raise

a meritless argument. “If a legal issue ‘would in all probability have been found to

be without merit’ had counsel raised the issue on direct appeal, the failure of

appellate counsel to raise the meritless issue will not render appellate counsel’s

performance ineffective.” Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000)

(quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)).

        In Whitton’s second habeas issue, he argues that appellate counsel was

ineffective for failing to ensure the record was complete by ensuring that the notes

to and from the jury were included in the record. As with the previous issue, this

claim is properly raised and the standard is as discussed above. See Jackson, 127

So. 3d at 476. Because we determined that Whitton would not have been entitled


                                          - 35 -
to relief on this issue, we likewise determine that counsel was not deficient. See

Rutherford, supra.

                                  CONCLUSION

      For the foregoing reasons, we affirm the postconviction court’s denial of

Whitton’s 3.851 motion and deny his petition for a writ of habeas corpus.

      It is so ordered.

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

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

LABARGA, C.J., concurring.

      I concur with the majority opinion. I write separately, however, to address

the lack of clarity in the record with respect to the notes submitted by the jury and

to emphasize the need for trial courts to fully comply with the requirements of

Florida Rule of Criminal Procedure 3.410. Rule 3.410 establishes a procedure for

trial courts to follow when jurors request that additional instructions be provided or

that testimony be read or played back. This rule serves the dual purpose of

protecting the interests of parties and preserving the record. Its purpose is clear.

      Jury deliberations are sacrosanct, and the impact of a jury’s deliberations

cannot be overstated. It is of paramount importance that both parties be made

aware of any inquiries from the jurors and that the treatment of these inquiries is


                                        - 36 -
fully reflected in the record. Although not every juror inquiry that falls within the

scope of rule 3.410 will result in the jury being brought back into open court to

receive additional instructions or a read-back or play-back of testimony, the rule is

clear that every inquiry will result in notice to counsel for both parties. Moreover,

rule 3.410 envisions that the record will clearly reflect the discussion and the

resolution of the juror inquiry, which necessarily involves input from both parties.

      When the trial court receives an inquiry from the jury, after notifying the

prosecuting attorney and counsel for the defendant, the court should go on the

record and read the note aloud in the presence of the defendant, defense counsel,

and the prosecuting attorney. Then, still on the record, the trial court should invite

input from both parties as to how to respond to the inquiry. The trial court should

not respond to any inquiry from the jurors without first discussing the matter on the

record with both parties. Strict adherence to this procedure is necessary to protect

the defendant and the State, preserve the record, and assist the appellate court upon

review.

PARIENTE, J., concurs.

Two Cases:

An Appeal from the Circuit Court in and for Walton County,
     Michael Gordon Allen, Judge - Case No. 661990CF000429CFAXMX
And an Original Proceeding – Habeas Corpus




                                        - 37 -
Mark Evan Olive of the Law Offices of Mark E. Olive, P.A., Tallahassee, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Carolyn Marie Snurkowski, Associate
Deputy Attorney General, Tallahassee, Florida, and Carol Marie Dittmar, Senior
Assistant Attorney General, Tampa, Florida,

      for Appellee/Respondent




                                      - 38 -
