          Supreme Court of Florida
                                   ____________

                                   No. SC15-404
                                   ____________

                        HARREL FRANKLIN BRADDY,
                                Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                   ____________

                                   No. SC16-481
                                   ____________

                        HARREL FRANKLIN BRADDY,
                                Petitioner,

                                         vs.

                              JULIE L. JONES, etc.,
                                  Respondent.

                                  [June 15, 2017]

PER CURIAM.

      Harrel Franklin Braddy, an inmate under sentence of death, appeals an order

of the circuit court denying his motion for postconviction relief filed under Florida

Rule of Criminal Procedure 3.851. Braddy also petitions this Court for a writ of
habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the

reasons that follow, we affirm the postconviction court’s denial of relief for a new

guilt phase but grant Braddy a new penalty phase based on the United States

Supreme Court’s opinion in Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616

(2016), and this Court’s opinion on remand in Hurst v. State (Hurst), 202 So. 3d 40

(Fla. 2016), cert. denied, No. 16-998, 2017 WL 635999 (U.S. May 22, 2017).

                               I. BACKGROUND

      In 2007, Braddy was convicted of first-degree murder, attempted first-degree

murder, two counts of kidnapping, burglary of a structure with an assault or battery

therein, child neglect causing great bodily harm, and attempted escape. Braddy v.

State, 111 So. 3d 810, 826 (Fla. 2012). On appeal, this Court set out the facts of

the crimes:

              The evidence presented at Braddy’s trial revealed the following
      facts. Shandelle Maycock, mother to then five-year-old Quatisha,
      testified that she first met Braddy and his wife Cyteria through a
      mutual friend from church. Shortly after their initial meeting, Braddy
      began showing up at Shandelle’s home alone, unannounced, and
      uninvited, staying for short periods of time with no apparent purpose.
      Shandelle testified that she initially thought of Braddy as a “nice
      person” and would occasionally ask him for small favors. Braddy
      once inappropriately placed his hand between Shandelle’s legs, but
      when Shandelle became angry and threatened Braddy with a knife,
      Braddy left her apartment and later apologized for his actions.
      Shandelle testified that Braddy never again made a sexual advance
      toward her.
              On Friday, November 6, 1998, Braddy picked Shandelle up
      from work and drove her home. After Braddy left Shandelle’s
      apartment at approximately 5:30 p.m., Shandelle began to call around

                                        -2-
looking for a ride to pick up Quatisha, who was being watched by a
family member. Shandelle had not found a ride by approximately 10
p.m., at which time Braddy returned to her apartment in a gold
Lincoln Town Car that he had rented earlier in the day. Braddy told
Shandelle that they needed to talk but agreed to first drive Shandelle
to pick up Quatisha. After picking up Quatisha and returning to
Shandelle’s apartment, Braddy again stated that he needed to talk to
Shandelle. Shandelle agreed, but before Braddy could talk to
Shandelle, the phone rang. Shandelle answered the phone, had a brief
conversation, and, after hanging up, told Braddy that he needed to
leave because she was expecting company. Shandelle testified that
this statement had been a lie—she had not been expecting company
but simply wanted Braddy to leave because it was late and she was
tired. Upon being told to leave, Braddy immediately attacked
Shandelle, threatening to kill her and choking her until she lost
consciousness. Shandelle testified that when she regained
consciousness, she was still in her apartment but Braddy again choked
her until she passed out.
       Shandelle’s landlord, who occupied the house to which
Shandelle’s apartment was attached, testified that he heard shouting
coming from Shandelle’s apartment shortly before midnight. When
he looked outside a short time later, the landlord saw Braddy standing
at the driver-side door of the Town Car and Quatisha standing by the
passenger-side door. He did not see Shandelle.
       Shandelle testified that when she awoke for the second time,
she was in the back seat of a large car parked in her driveway.
Quatisha was in the front passenger seat, and Braddy was in the
driver’s seat. As Braddy began to drive, Shandelle told Quatisha that
they were going to jump out of the car. Braddy warned Shandelle not
to jump, but Shandelle nevertheless pulled Quatisha into the backseat
and opened the door. When Braddy saw that they were about to jump,
he accelerated and turned a corner, causing Shandelle and Quatisha to
fall out of the car.
       Braddy stopped the car, helped Quatisha back into the car, and
put Shandelle in the trunk. Shandelle testified that she remained in
the trunk for thirty to forty-five minutes while Braddy continued to
drive, after which time the car stopped and Braddy opened the trunk.
Braddy pulled Shandelle out of the trunk, threw her to the ground, and
again choked her until she lost consciousness, all the while
threatening to kill her and accusing her of using him. When Shandelle

                                 -3-
woke up, it was daylight and she was lying in a remote area
surrounded by foliage. Shandelle walked to the road and flagged
down passing motorists, who called the police.
       Between 1:30 and 2:30 a.m. on Saturday, November 7, Braddy
returned home in the Town Car. Cyteria testified that she was
awakened when Braddy came home and, when she went to the door to
meet him, saw Braddy wiping down the interior of the Town Car with
a cloth. Cyteria also testified that the washing machine was running
and that when she looked inside the machine, she saw the clothes
Braddy had been wearing earlier that night.
       On November 7, police spoke to Shandelle at Glades Hospital,
where she had been taken for treatment after being found on the side
of the road that morning. Shandelle gave police her statement, along
with the names and descriptions of Braddy and Quatisha. Detectives
Giancarlo Milito and Juan Murias went to Braddy’s home to
determine Quatisha’s whereabouts. Shortly after the detectives
arrived at Braddy’s house, they observed him exit the house and drive
away in the Town Car. The detectives followed Braddy to a gas
station and approached him as he was pumping gas. When the
detectives first asked Braddy about Quatisha, Braddy appeared calm
and denied any knowledge of the situation. However, when the
detectives informed Braddy that Shandelle was alive and had
implicated him in Quatisha’s disappearance, Braddy turned pale,
began to sweat, shake, and cry, and claimed to feel faint. Detective
Milito testified that at this point, although Braddy was not under
arrest, he placed Braddy in handcuffs for everyone’s safety because of
“the history that I had of him.”
       The detectives took Braddy to the Miami-Dade County Police
Department and sent the Town Car to be processed. Detectives Otis
Chambers and Fernando Suco began to question Braddy at
approximately 9 p.m. on Saturday, November 7. When the detectives
asked Braddy if he would consent to giving DNA samples, Braddy
stated that he knew his rights and wished to be read his rights.
Detective Suco, the lead investigator in the case, explained Braddy’s
rights to him pursuant to Miranda v. Arizona, 384 U.S. 436, 461
(1966), through the use of a standard Miranda form, which Braddy
signed and initialed appropriately. After Braddy indicated that he
understood and waived his rights, Detective Suco obtained Braddy’s
consent to take specimens for DNA samples and to search Braddy’s
home and the Town Car. However, because Braddy hesitated before

                                 -4-
signing the last consent form, Suco also obtained search warrants for
Braddy’s house and the Town Car.
       Pursuant to both Braddy’s consent to search and the search
warrant, police searched the Town Car on Sunday, November 8.
After being only partially processed, however, the Town Car was
mistakenly released back to the rental agency, where it remained for
approximately a day. Police were able to recover the Town Car
before it had been cleaned by the rental agency, and pursuant to a
second search warrant signed on November 10, investigators removed
the trunk liner for DNA testing. Shandelle’s blood was found on the
liner.
       Meanwhile, Braddy’s interview continued early into the
morning of November 8. Although Braddy spoke to the detectives—
becoming visibly agitated when talking about Shandelle—he divulged
no information about Quatisha’s whereabouts. Feeling that they were
not making any progress, the detectives took a break from the
interview just before midnight on November 7. During the break,
Detective Suco prepared Braddy’s arrest form and conferred with
other detectives who were gathering information on the case. Having
determined that Braddy was lying to them, based on information
received from other detectives, the detectives reinitiated the interview
at approximately 1:15 a.m. on November 8 and confronted Braddy
about lying. Braddy responded by saying, “I can’t tell you. Even if
I’m found innocent, my family will not talk to me again.” The
detectives continued to question Braddy, but although there was some
interaction, Braddy refused to answer questions about Quatisha and
mostly “just sat there or . . . would put his head down.”
       At approximately 3 a.m. on November 8, Braddy asked to talk
to Detective Chambers alone. The detectives complied, but after
fifteen to twenty minutes of useless conversation, Detective Chambers
brought Detective Suco back into the room. Shortly thereafter, both
detectives escorted Braddy to the bathroom, which he had asked to
use. While walking through the homicide office to and from the
bathroom, Braddy appeared to be “looking around” and “seeing where
he was at.” After returning from the bathroom, the detectives again
left Braddy in the interview room while the detectives compared
information with other investigators. The detectives resumed the
interview at approximately 3:55 a.m. and again confronted Braddy
with evidence that contradicted what Braddy had been telling them.
For the next two hours, Braddy responded to questions but refused to

                                 -5-
talk about Quatisha’s whereabouts. At around 6:15 a.m. on
November 8, in an attempt to evoke an emotional response and elicit
information, the detectives lied and told Braddy that his mother had
suffered a heart attack. Although Braddy became visibly upset at this
information, he did not divulge any information about Quatisha.
       Finally, at around 8 a.m. on November 8, Braddy told the
detectives that he had left Quatisha in the same area where he had left
Shandelle. Braddy then stated that he was tired of talking to the
detectives and said that if they did not believe his story, they could
take him to jail. At this point, the detectives stopped the interview,
relayed Braddy’s confession to their supervisor, and went to breakfast.
The detectives returned to the interview room at approximately 11:30
a.m. with breakfast for Braddy. When Detective Suco walked into the
interview room, Braddy was standing on a chair in the corner of the
room with his shoes off. Braddy immediately jumped to the ground
and, before Detective Suco could speak, said “I’ll take you to where I
left her.”
       The detectives drove Braddy north from Miami-Dade County
on U.S. Highway 27, through Broward County and into Palm Beach
County, to the site where Shandelle had been found, a scene which
was already teeming with authorities. At Braddy’s direction, the
detectives drove along the dirt roads and through the fields off the
highway for approximately three hours, with other detectives
following, but found no trace of Quatisha. At approximately 2:30
p.m., after detectives had been led on a vain search by Braddy for
several hours, Detective Greg Smith physically pulled Braddy out of
the car and pinned Braddy against the side of the car by placing his
forearm across Braddy’s throat. Detective Smith held Braddy in this
position for approximately fifteen seconds, demanding to know where
Braddy had left Quatisha. Braddy gave no response—either verbal or
physical—to Detective Smith’s use of force and emotional plea.
Having received no information despite his use of force, Detective
Smith, along with Braddy and several other detectives, resumed the
search for Quatisha on foot. During the foot search, Detective Smith
engaged Braddy in a general conversation regarding his family and
hobbies. At one point, Braddy asked Detective Smith how long it
would take a body in the water to surface, speculating that although he
had left Quatisha alive, she might have fallen into the water after he
left her.


                                 -6-
        At approximately 4 p.m. on November 8, Braddy admitted to
Detective Pat Diaz that Quatisha was in fact at a different location.
Braddy then directed several detectives to a section of Interstate 75 in
Broward County known as Alligator Alley. Once at Alligator Alley,
Braddy told detectives that he had left Quatisha alive on the side of
the road at a bridge crossing over a canal. Braddy directed detectives
to three such bridges—at highway mile markers 28, 30, and 33—but
could not be sure at which bridge he had left Quatisha. Braddy gave
different reasons for having left Quatisha on the side of the road in the
Everglades in the middle of the night, including that he did so because
he was angry with Shandelle and because he was worried that
Quatisha would tell people what he had done to Shandelle. Braddy
also admitted that when he left Quatisha, he “knew she would
probably die” and that when she had not been found by Sunday
evening, she was probably dead.
        After searching until dark on November 8 and finding no trace
of Quatisha, detectives escorted Braddy back to the Miami-Dade
County Police Department. Detectives took Braddy back to the
interview room where he had originally been kept—a room that had
not been touched since Braddy occupied it earlier in the day. Upon
entering the room, detectives noticed that a metal ceiling grate in the
corner of the room—directly above the chair on which Braddy had
been standing earlier in the day—had been forcibly bent up on both
ends. Braddy was taken to a different interview room and again
questioned by detectives, but Braddy never admitted to killing
Quatisha. On the morning of Monday, November 9, two fishermen
found the body of a child floating in a canal running parallel to
Alligator Alley, around highway mile marker 34. The body was
recovered, taken to the Broward County Medical Examiner’s office,
and identified as that of Quatisha Maycock.
        Dr. Joshua Perper, the Chief Medical Examiner for Broward
County, was called to the scene where Quatisha’s body was found.
He examined the body initially when it was brought out of the canal
and later performed an autopsy. Dr. Perper testified that Quatisha’s
left arm, which was missing when her body was discovered, had been
bitten off by an alligator after Quatisha had died. Dr. Perper also
testified that Quatisha had suffered “brush burn” injuries while she
was alive, consistent with her having grazed against a hard, flat
surface, such as falling out of a car and sliding on the road.
Additionally, Dr. Perper testified that Quatisha had suffered alligator

                                  -7-
      bites to her torso and head while she was still alive, although he
      concluded that she was probably not conscious at the time she was
      bitten. Quatisha had also suffered several injuries after she had died
      or while she was very close to death, including more “brush burns”
      and alligator bites, as well as injuries to her lips consistent with fish
      feeding on her corpse. Dr. Perper concluded that Quatisha’s death
      was primarily caused by blunt force trauma to the left side of her
      head, consistent with her either having fallen from a great distance or
      having been thrown onto a prominent, protruding object, such as the
      jutting rocks along the canal where her body was discovered.

Id. at 822-26 (alteration in original).

      At the penalty phase, the State presented victim impact evidence from three

relatives or close friends of the victim, including the victim’s mother, Shandelle.

The State also presented evidence of Braddy’s prior criminal history, including the

following 1984 crimes: (1) the judgment and sentence from Braddy’s attempted

first-degree murder, robbery, and kidnapping of Corrections Officer Jose

Bermudez, as well as of Braddy’s ensuing escape; (2) the arrest affidavit and plea

colloquy from Braddy’s convictions for armed burglary, robbery, and kidnapping

related to his crimes against Joseph and Lorrain Cole; and (3) the judgment and

sentence from Braddy’s burglary, robbery, and kidnapping of Griffin Davis. The

defense presented expert testimony regarding Braddy’s ability to adjust to prison

life. The defense also presented testimony from Braddy’s family and a close friend

to establish that Braddy was a good husband and father and that his death would be

hard on the family. Id. at 826-27.




                                          -8-
      The jury recommended the death penalty by a vote of eleven to one, and

after a Spencer v. State, 615 So. 2d 688 (Fla. 1993), hearing, the trial court

sentenced Braddy to death. The trial court found and gave great weight to five

aggravating factors: (1) the victim of the capital felony was a person less than

twelve years of age; (2) the capital felony was committed while Braddy was

engaged in the commission of a felony crime, namely: kidnapping; (3) the capital

felony was committed for the purpose of avoiding or preventing a lawful arrest or

effecting an escape from custody; (4) the capital felony was a homicide and was

committed in a cold, calculated, and premeditated manner without any pretense of

moral or legal justification (CCP); and (5) Braddy was previously convicted of

another capital felony or of a felony involving the use or threat of violence to

another person. The trial court also considered but gave no weight to the fact that

the capital felony was especially heinous, atrocious, or cruel (HAC). Braddy

waived all mitigating factors, with the exception of nonstatutory mitigation.

Braddy listed a total of sixty-seven nonstatutory mitigating factors in his

sentencing memorandum, which the trial court then grouped into nine categories

by topic. The trial court gave little or moderate weight to eight of the categories:

(1) Braddy had adjusted well to prolonged confinement in his previous

incarcerations and might possibly be rehabilitated—little weight; (2) the sentence

of life imprisonment was available to the court—little weight; (3) Braddy


                                         -9-
conducted himself in an appropriate manner at trial—moderate weight; (4) the

friends in Braddy’s life considered him to be of value—little weight; (5) Braddy’s

wife and children supported him unconditionally—moderate weight; (6) Braddy’s

execution would presumably have an extreme impact on his family and friends—

little weight; (7) Braddy’s parents and siblings considered him to be an important

member of the family and believed that his life could be of value to other members

of the family—little weight; and (8) Braddy attended church and professed

dedication to Christian principles and beliefs—little weight. With respect to the

remaining category, the trial court considered but gave no weight to the fact that

Braddy did not sexually molest Quatisha. Braddy, 111 So. 3d at 827-28.

      Braddy raised thirteen claims on direct appeal: (A) the trial court erred in

denying Braddy’s motion to suppress evidence obtained in violation of his right to

remain silent and his right to an attorney; (B) the trial court erred in failing to

timely rule on and ultimately denying Braddy’s motions to disqualify the trial

judge; (C) the State failed to establish the venue alleged in the indictment for the

charges of murder and attempted murder; (D) the trial court erred in admitting into

evidence the second search warrant for the Town Car and the accompanying

affidavit; (E) the trial court erred in denying Braddy’s motion for mistrial based on

Detective Milito’s prejudicial testimony regarding Braddy’s prior criminal history;

(F) the trial court erred in allowing the State to engage in improper argument


                                          - 10 -
during its guilt phase closing argument; (G) the evidence is legally insufficient to

support Braddy’s convictions for burglary, child neglect, and attempted escape;

(H) the trial court erred in allowing the State to engage in improper argument

during its penalty phase closing argument; (I) the trial court erred in requiring

Braddy to argue all nonstatutory mitigation as a single mitigating factor; (J) the

trial court erred in allowing the State to present victim impact evidence that

Shandelle had contracted Crohn’s disease as a result of the murder; (K) the trial

court erred in allowing the State to introduce impermissible hearsay evidence to

prove Braddy’s prior felony convictions; (L) the trial court erred in sentencing

Braddy to death because Florida’s capital sentencing proceedings are

unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002); and (M) the

cumulative effect of the above errors deprived Braddy of due process and a reliable

sentencing proceeding. Braddy, 111 So. 3d at 828-29. This Court determined that

sufficient evidence supported the convictions and denied all of Braddy’s claims.

Id. at 829-62.

      Capital Collateral Regional Counsel-South (CCRC) was appointed to

represent Braddy in postconviction proceedings. On October 2, 2014, Braddy

timely filed a motion for postconviction relief. Braddy’s motion asserted: (1) the

postconviction court’s denial of CCRC’s motion to withdraw violates Braddy’s

rights to conflict-free counsel, due process, and equal protection; (2) the


                                        - 11 -
postconviction court’s refusal to allow Braddy to represent himself in collateral

proceedings violates Braddy’s right of self-representation; (3) requiring Braddy to

file his postconviction motion one year after his conviction became final violates

Braddy’s rights to due process and equal protection; (4) section 119.19, Florida

Statutes, and Florida Rule of Criminal Procedure 3.852 are unconstitutional both

facially and as applied to Braddy in violation of article I, section 24 of the Florida

Constitution; (5) Braddy was deprived of his right to a fair and impartial jury; (6)

Braddy was deprived of his right to a reliable adversarial testing at the guilt phase

due to ineffective assistance of counsel, the State’s failure to disclose exculpatory

evidence, and prosecutorial and judicial misconduct; (7) Braddy was denied

adversarial testing at the penalty phase due to ineffective assistance of counsel

and/or State misconduct; and (8) Florida’s method of execution by lethal injection

is unconstitutional.

      On February 19, 2015, the postconviction court entered an order denying

Braddy’s claims. State v. Braddy, No. F98-37767 (Fla. 11th Jud. Cir. Feb. 19,

2015) (Postconviction Order). On appeal, Braddy argues that: (1) the

postconviction court’s denial of CCRC’s motion to withdraw and/or failure to hold




                                         - 12 -
Nelson1 hearings on two of Braddy’s pro se motions to discharge CCRC2 violated

Braddy’s rights to conflict-free counsel, due process, and equal protection; (2)

section 119.19, Florida Statutes, and Florida Rule of Criminal Procedure 3.852 are

unconstitutional as applied to Braddy in violation of article I, section 24 of the

Florida Constitution; (3) Braddy was denied adversarial testing at the penalty phase

due to ineffective assistance of counsel and/or State misconduct; (4) trial counsel

was ineffective for failing to preserve a challenge to comments made by the

prosecution during its guilt phase closing argument and penalty phase closing

argument; (5) Braddy was deprived of his right to a fair and impartial jury; and (6)

Braddy was deprived of his right to a reliable adversarial testing at the guilt phase

due to ineffective assistance of counsel, the State’s failure to disclose exculpatory

evidence, and prosecutorial and judicial misconduct.3 In addition, Braddy filed a




      1. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
       2. On December 31, 2014, Braddy filed a pro se motion to discharge in this
Court. On March 10, 2015, this Court temporarily relinquished jurisdiction for the
postconviction court to consider Braddy’s pro se motion to discharge, and the
postconviction court denied it on March 13, 2015. On March 18, 2015, Braddy
amended his notice of appeal to include the order denying his pro se motion to
discharge. On October 21, 2015, Braddy filed another pro se motion to discharge
in this Court, which this Court struck as unauthorized.

      3. We decline to address, in this postconviction appeal, the order of the
postconviction court summarily dismissing Braddy’s successive postconviction
motion on July 24, 2015.


                                        - 13 -
petition for a writ of habeas corpus, asserting that: (1) Braddy is entitled to relief

under Hurst v. Florida; (2) this Court failed to conduct a proper harmless error

analysis of errors recognized on direct appeal; and (3) Braddy was deprived of his

right to a fair and impartial jury. Because we determine that Braddy is entitled to a

new penalty phase under Hurst v. Florida and Hurst, we address only Braddy’s

guilt phase claims and none of the other penalty phase claims.

               II. MOTION FOR POSTCONVICTION RELIEF

                 A. CCRC’s Motion to Withdraw and Braddy’s
                        Pro Se Motions to Discharge

      Braddy claims that the postconviction court’s denial of CCRC’s motion to

withdraw and/or failure to hold Nelson hearings on two of Braddy’s pro se motions

to discharge CCRC violated his rights to conflict-free counsel, due process, and

equal protection. “A court’s decision involving withdrawal or discharge of counsel

is subject to review for abuse of discretion.” Weaver v. State, 894 So. 2d 178, 187

(Fla. 2004). As explained below, the postconviction court did not err regarding the

motion to withdraw or the motions to discharge.

      Section 27.703(1), Florida Statutes (2013), “places the responsibility of

determining whether an actual conflict exists on the [sentencing] court.” Abdool v.

Bondi, 141 So. 3d 529, 553 (Fla. 2014) (emphasis added). The statute provides:

      If, at any time during the representation of a person, the capital
      collateral regional counsel alleges that the continued representation of
      that person creates an actual conflict of interest, the sentencing court

                                         - 14 -
      shall, upon determining that an actual conflict exists, designate
      another regional counsel. . . . An actual conflict of interest exists
      when an attorney actively represents conflicting interests. A possible,
      speculative, or merely hypothetical conflict is insufficient to support
      an allegation that an actual conflict of interest exists.

§ 27.703(1), Fla. Stat.

      “An actual conflict of interest that adversely affects counsel’s performance

violates the Sixth Amendment of the United States Constitution.” McWatters v.

State, 36 So. 3d 613, 635 (Fla. 2010). “To prove a claim that an actual conflict of

interest existed between a defendant and his counsel, the defendant must show that

his counsel actively represented conflicting interests and that the conflict adversely

affected counsel’s performance.” Thompson v. State, 759 So. 2d 650, 661 (Fla.

2000) (quoting Quince v. State, 732 So. 2d 1059, 1063 (Fla. 1999)); see Cuyler v.

Sullivan, 446 U.S. 335, 348, 350 (1980). “A possible, speculative or merely

hypothetical conflict is ‘insufficient to impugn a criminal conviction.’ ” Hunter v.

State, 817 So. 2d 786, 792 (Fla. 2002) (quoting Cuyler, 446 U.S. at 350). Even

“[i]f a defendant successfully demonstrates the existence of an actual conflict, the

defendant must also show that this conflict had an adverse effect upon his lawyer’s

representation.” Id. “[P]rejudice will be presumed only if the conflict has

significantly affected counsel’s performance—thereby rendering the verdict

unreliable . . . .” Mickens v. Taylor, 535 U.S. 162, 173 (2002); see State v.

Larzelere, 979 So. 2d 195, 208 (Fla. 2008) (“Prejudice is presumed where an actual


                                        - 15 -
conflict is shown to have adversely affected a client’s representation.”); State v.

Coney, 845 So. 2d 120, 133 (Fla. 2003) (“Once a defendant satisfies both prongs

of the Cuyler test, prejudice is presumed and the defendant is entitled to relief.”).

       On March 7, 2014, CCRC filed a motion to withdraw, claiming a conflict of

interest:

              Capital Collateral Regional Counsel-South, Neal A. Dupree,
       acting in his capacity as a supervising State Attorney in and for
       Broward County, was a direct supervisor of the prosecutors who
       signed off on Braddy’s guilty plea in Broward County [in 1984]. In
       that case, Mr. Braddy pled guilty to charges of burglary, kidnapping,
       and escape [related to his crimes against Joseph and Lorrain Cole].
       That prior [conviction] was used as an aggravator in the instant case
       ultimately resulting in a judgment of death. Mr. Braddy has been
       made aware of these circumstances and has informed undersigned
       counsel that it is his wish for CCRC-South to withdraw from further
       representation due to an irreconcilable conflict.

On March 21, 2014, the postconviction court held a hearing on the motion to

withdraw. Neil A. Dupree, the appointed CCRC for the South District Region,

explained at the hearing that he was a felony trial supervisor in Broward County

from 1983 to 1987. During that time, Dupree oversaw five felony divisions and

supervised ten to fifteen attorneys. In his role as a supervisor, Dupree supervised

the assistant state attorneys that prosecuted Braddy for his crimes against the

Coles4 and signed off on the plea agreement in that case. Dupree’s involvement in



      4. On direct appeal, this Court explained that the trial court found the
existence of the prior violent felony aggravator—one of five aggravators—based

                                         - 16 -
the prior case was limited to discussing and approving the plea agreement. Dupree

stated at the hearing: “I was directly involved in the prosecution of the case” and “I

do believe that is an actual conflict.” However, Dupree never suggested that his

involvement in the prior case would impair his ability to represent Braddy in this

case. Dupree also explained at the hearing that he did not even remember

Braddy’s prior case when it was initially brought to his attention: “Frankly, I didn’t

realize who Mr. Braddy was, to be honest with you, but when I saw [Braddy’s

letter referencing the prior case] I went down to the State Attorney[’]s Office and

had the files pulled out for me and I reviewed the files and everything and I did

sign off on the plea agreement.”

      Braddy claims that the postconviction court abused its discretion in denying

CCRC’s motion to withdraw because Dupree had an actual conflict of interest

based on his role as a supervising attorney in the prior case. However, even if an

actual conflict did exist, Braddy has failed to demonstrate that the conflict

adversely affected Dupree’s representation in postconviction proceedings in this

case. See Hunter, 817 So. 2d at 792 (noting that the defendant must satisfy both

prongs of Cuyler to be entitled to relief). Braddy claims that “the adverse effect is

that collateral counsel has not been able to establish a relationship of trust with



on Braddy’s 1984 crimes against the Coles, Davis, and Bermudez. Braddy, 111
So. 3d at 860.

                                         - 17 -
Braddy as a direct result of the conflict.” However, the Supreme Court has

“reject[ed] the claim that the Sixth Amendment guarantees a ‘meaningful

relationship’ between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1,

14 (1983); see Wheat v. United States, 486 U.S. 153, 159 (1988) (explaining that

“in evaluating Sixth Amendment claims, ‘the appropriate inquiry focuses on the

adversarial process, not on the accused’s relationship with his lawyer as such’ ”

(quoting United States v. Cronic, 466 U.S. 648, 657 n.21 (1984))). As this Court

has explained, “General loss of confidence or trust standing alone will not support

withdrawal of counsel.” Schoenwetter v. State, 931 So. 2d 857, 870 (Fla. 2006).

Moreover, this record does not demonstrate that “the attorney-client relationship

had deteriorated to the point where counsel could no longer give effective aid in

the fair representation of the defense.” Id. Braddy asserts that “[i]n the Sixth

Amendment context, prejudice to a defendant is presumed based on the affirmative

representation by counsel of a conflict.” However, that is simply not the case.

See, e.g., Mickens, 535 U.S. at 173; Larzelere, 979 So. 2d at 208; Coney, 845 So.

2d at 133. Although Braddy claims that he “is, at the very least, entitled to an

evidentiary hearing on his claim that an actual conflict is present,” Braddy did not

request the opportunity to present any evidence at the hearing held on the motion

to withdraw. Instead, he relied on the allegations in the motion and Dupree’s

statements as an officer of the court. Braddy thus invited any error regarding the


                                        - 18 -
postconviction court’s failure to hold an evidentiary hearing. See Pope v. State,

441 So. 2d 1073, 1076 (Fla. 1983) (“A party may not invite error and then be heard

to complain of that error on appeal.”).

      Braddy claims that the postconviction court erred in failing to hold Nelson

hearings on two of Braddy’s pro se motions to discharge filed in this Court on

December 31, 2014,5 and October 21, 2015. This claim lacks merit. “This Court

has consistently found a Nelson hearing unwarranted where a defendant presents

general complaints about defense counsel’s trial strategy and no formal allegations

of incompetence have been made.” Morrison v. State, 818 So. 2d 432, 440 (Fla.

2002). “Similarly, a trial court does not err in failing to conduct a Nelson inquiry

where the defendant merely expresses dissatisfaction with his attorney.” Id. A

review of the first motion to discharge shows that Braddy’s complaints primarily

concerned the conflict alleged in CCRC’s motion to withdraw, his counsel’s

communication with him, and his disagreements with counsel regarding strategic

decisions. Moreover, the record reflects that the postconviction court had already

heard from Braddy regarding his position on the motion to withdraw and his




       5. In his appellate briefs, Braddy refers to a pro se motion to discharge
purportedly filed by Braddy in this Court on March 3, 2015. However, the docket
in this case contains no such motion. We therefore conclude that Braddy is
actually referring to the pro se motion to discharge filed by Braddy in this Court on
December 31, 2014.


                                          - 19 -
dissatisfaction with CCRC during the numerous hearings it held regarding the

motion to withdraw and Braddy’s desire to represent himself. The record further

reflects that this is the same motion to discharge that the postconviction court had

already denied on January 7, 2015. Therefore, the postconviction court did not

abuse its discretion in denying the first motion to discharge without holding a

Nelson inquiry. The postconviction court had no jurisdiction to hold a Nelson

inquiry on the second motion to discharge because it was filed in this Court after

this Court had assumed jurisdiction over this matter. Therefore, the postconviction

court did not err in failing to hold a hearing when it had no jurisdiction.

            B. Section 119.19, Florida Statutes, and Florida Rule of
                          Criminal Procedure 3.852

      Braddy claims that section 119.19, Florida Statutes, and Florida Rule of

Criminal Procedure 3.852 are unconstitutional as applied to Braddy in violation of

article I, section 24 of the Florida Constitution because he has been denied access

to public records. Within this claim, Braddy argues that the postconviction court

erred in denying him access to public records under section 119.19 and rule 3.852,

namely: (1) certain materials in sealed box 6202 that were purportedly claimed to

be exempt by the Miami-Dade State Attorney under the work product exemption in

section 119.071(1)(d)1., Florida Statutes, and (2) the personnel and internal affairs

files of the police and “criminalists” who testified against him at trial. This Court

reviews constitutional challenges to statutes de novo, Jackson v. State, 191 So. 3d

                                         - 20 -
423, 426 (Fla. 2016), and the denial of public records requests for an abuse of

discretion, Pardo v. State, 108 So. 3d 558, 565 (Fla. 2012). As explained below,

nothing within this record demonstrates that the postconviction court erred in

denying Braddy’s claim regarding the public records requests.

      Article I, section 24 of the Florida Constitution, and chapter 119, Florida

Statutes, guarantee access to public records. See State v. City of Clearwater, 863

So. 2d 149, 151 (Fla. 2003). Rule 3.852 governs the procedure to obtain public

records for use in capital postconviction litigation. See Abdool, 141 So. 3d at 550

(“[F]lorida Rule of Criminal Procedure 3.852 . . . governs capital postconviction

public records production . . . .”); Sims v. State, 753 So. 2d 66, 69 (Fla. 2000)

(“This rule is a discovery rule for public records production ancillary to

proceedings pursuant to rules 3.850 and 3.851.” (quoting Amends. to Fla. R. of

Crim. Pro., 754 So. 2d 640, 643 (Fla. 1999))). This Court has repeatedly rejected

constitutional challenges to the requirements of rule 3.852. See, e.g., Howell v.

State, 133 So. 3d 511, 515-16 (Fla. 2014); Wyatt v. State, 71 So. 3d 86, 110-11

(Fla. 2011).

      Section 119.071(1)(d)1., Florida Statutes (2014), provides the following

exemption from public records disclosure:

            A public record that was prepared by an agency attorney
      (including an attorney employed or retained by the agency or
      employed or retained by another public officer or agency to protect or
      represent the interests of the agency having custody of the record) or

                                        - 21 -
      prepared at the attorney’s express direction, that reflects a mental
      impression, conclusion, litigation strategy, or legal theory of the
      attorney or the agency, and that was prepared exclusively for civil or
      criminal litigation or for adversarial administrative proceedings, or
      that was prepared in anticipation of imminent civil or criminal
      litigation or imminent adversarial administrative proceedings, is
      exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution
      until the conclusion of the litigation or adversarial administrative
      proceedings. For purposes of capital collateral litigation as set forth in
      s. 27.7001, the Attorney General’s office is entitled to claim this
      exemption for those public records prepared for direct appeal as well
      as for all capital collateral litigation after direct appeal until execution
      of sentence or imposition of a life sentence.

“[A]ny exemption under this section exists only until the conclusion of the

litigation or, in the case of public records prepared for an appeal or postconviction

proceedings, only until the execution of the sentence.” Lightbourne v. McCollum,

969 So. 2d 326, 332 (Fla. 2007); see State v. Kokal, 562 So. 2d 324, 327 (Fla.

1990) (“[W]e further hold that ‘the conclusion of litigation’ with respect to a

criminal conviction and sentence occurs when that conviction and sentence have

become final.”).

      However, not all materials are “public records” within the meaning of

chapter 119, Florida Statutes:

             To give content to the public records law which is consistent
      with the most common understanding of the term “record,” we hold
      that a public record, for purposes of section 119.011(1), is any
      material prepared in connection with official agency business which is
      intended to perpetuate, communicate, or formalize knowledge of some
      type. To be contrasted with “public records” are materials prepared as
      drafts or notes, which constitute mere precursors of governmental
      “records” and are not, in themselves, intended as final evidence of the

                                         - 22 -
      knowledge to be recorded. Matters which obviously would not be
      public records are rough drafts, notes to be used in preparing some
      other documentary material, and tapes or notes taken by a secretary as
      dictation. Inter-office memoranda and intra-office memoranda
      communicating information from one public employee to another or
      merely prepared for filing, even though not a part of an agency’s later,
      formal public product, would nonetheless constitute public records
      inasmuch as they supply the final evidence of knowledge obtained in
      connection with the transaction of official business.
             It is impossible to lay down a definition of general application
      that identifies all items subject to disclosure under the act.
      Consequently, the classification of items which fall midway on the
      spectrum of clearly public records on the one end and clearly not
      public records on the other will have to be determined on a case-by-
      case basis.

Shevin v. Byron, Harless, Schaffer, Reid & Assoc., Inc., 379 So. 2d 633, 640 (Fla.

1980) (emphasis added). This Court has explained that “pretrial materials which

include notes from the attorneys to themselves designed for their own personal use

in remembering certain things or preliminary guides intended to aid the attorneys

when they later formalize their knowledge are not within the term ‘public

record.’ ” Lopez v. State, 696 So. 2d 725, 728 (Fla. 1997) (citing Kokal, 562 So.

2d at 327). Likewise, “notes of the State Attorney’s investigations” and “annotated

photocopies of decisional law” do not constitute public records. Atkins v. State,

663 So. 2d 624, 626 (Fla. 1995); see Scott v. Butterworth, 734 So. 2d 391, 393

(Fla. 1999) (holding that “handwritten notes and drafts of pleadings” are not

subject to public records disclosure).




                                         - 23 -
      Braddy claims that the postconviction court erred as a matter of law in

denying him access to certain materials in sealed box 6202—fourteen manila

envelopes pertaining to attorney work product and notes—that were purportedly

claimed to be exempt by the State Attorney under the work product exemption in

section 119.071(1)(d)1., Florida Statutes. Braddy correctly argues that the work

product exemption in section 119.071(1)(d)1. is inapplicable to the materials

because Braddy’s conviction and sentence have become final. The postconviction

court concluded that the materials “were either work product not subject to

disclosure or documents which had already been provided to [Braddy].” It thus is

apparent that the postconviction court misunderstood the scope of the exemption

for work product. The record in this case further indicates that the State Attorney

did not claim that the statutory work product exemption applied to the materials.

The State Attorney specifically asserted in a transmittal notice to the public

repository that the materials were not public records under Shevin, Kokal, and

Atkins.

      We conclude that the postconviction court did not abuse its discretion in

denying Braddy access to the vast majority of the materials in sealed box 6202

pertaining to attorney work product and notes. The materials primarily consist of

handwritten attorney notes, draft documents, and annotated copies of decisional

law, which do not constitute public records. It is not clear from this record whether


                                        - 24 -
Braddy has been denied access to a small number of the materials—inter-office

memoranda, intra-office memoranda, and e-mails—which constitute public

records. Regardless, none of the materials in sealed box 6202 pertaining to

attorney work product and notes contain any material that is exculpatory or

otherwise pertaining to a postconviction claim.

      Florida Rule of Criminal Procedure 3.852(i)(2) requires production of

additional public records upon a finding of the following:

             (A) collateral counsel has made a timely and diligent search of
      the records repository;
             (B) collateral counsel’s affidavit identifies with specificity
      those additional public records that are not at the records repository;
             (C) the additional public records sought are either relevant to
      the subject matter of a proceeding under rule 3.851 or appear
      reasonably calculated to lead to the discovery of admissible evidence;
      and
             (D) the additional records request is not overly broad or unduly
      burdensome.

This Court has “consistently held that a defendant bears the burden of

demonstrating that the records sought relate to a colorable claim.” Twilegar v.

State, 175 So. 3d 242, 250 (Fla. 2015). “As this Court has emphasized, rule 3.852

‘is not intended to be a procedure authorizing a fishing expedition for records

unrelated to a colorable claim for postconviction relief.’ ” Valle v. State, 70 So. 3d

530, 549 (Fla. 2011) (quoting Moore v. State, 820 So. 2d 199, 204 (Fla. 2002)).

“Accordingly, where a defendant cannot demonstrate that he or she is entitled to

relief on a claim or that records are relevant or may reasonably lead to the

                                        - 25 -
discovery of admissible evidence, the trial court may properly deny a public

records request.” Twilegar, 175 So. 3d at 250 (quoting Mann v. State, 112 So. 3d

1158, 1163 (Fla. 2013)).

      Braddy claims that the postconviction court abused its discretion in denying

him access to the personnel and internal affairs files of the police and

“criminalists” who testified against him at trial. However, the postconviction court

did not abuse its discretion in denying Braddy’s request for such additional

records. At a hearing held on September 2, 2014, the postconviction court denied

all of Braddy’s requests for additional public records from the Miami-Dade Police

Department, except for the internal affairs file of Detective Smith, the officer who

inappropriately used force against Braddy during the search for Quatisha. See

Braddy, 111 So. 3d at 832. The postconviction court found that Braddy failed to

demonstrate that the personnel and internal affairs files of the other police and

criminalists who testified against him at trial were “relevant” to a colorable claim.

A review of the transcript from the hearing held on Braddy’s requests supports the

postconviction court’s conclusion. For example, Braddy’s counsel conceded at the

hearing that not all of the personnel and internal affairs files sought by Braddy

were relevant:

      I mean, I think it’s a fair question.
            Why do we want this? Well, I don’t know, but it’s our job to
      look at every single piece of paper that might be relevant in this case.
      We can’t know what’s out there until we see what’s out there. . . .

                                        - 26 -
            So it’s true, I don’t know what the impeachment might be, but I
      know why I want the [commendations, training certificates, and
      school diplomas]. . . .
            Well, I think -- I believe that the 1990 [use of force complaint]
      would be outside of the [relevant] time frame that the court has
      limited us to, your Honor.

Although Braddy argued “that the personnel and internal affairs files might contain

impeachment material,” Braddy failed to identify at the hearing any incident that

would even potentially be admissible as impeachment. Given that the

postconviction court ordered the production of Detective Smith’s internal affairs

file, Braddy’s speculative request for the other files “was nothing more than a

fishing expedition.” Dennis v. State, 109 So. 3d 680, 699 (Fla. 2012).

      Braddy claims that section 119.19 and rule 3.852 were unconstitutionally

applied to his case because he has been denied access to public records. We reject

this claim because Braddy has not clearly been denied access to records to which

he is entitled under section 119.19 or rule 3.852.

            C. Ineffective Assistance of Guilt Phase Counsel Claims

                            1. Prosecutor’s Comments

      Braddy claims that trial counsel was ineffective for failing to preserve a

challenge to comments made by the prosecution during its guilt phase closing

argument. As explained below, the postconviction court did not err in denying

Braddy’s ineffective assistance of guilt phase counsel claim.




                                        - 27 -
      In order to obtain relief on a claim of ineffective assistance of counsel, “a

defendant must establish deficient performance and prejudice.” Gore v. State, 846

So. 2d 461, 467 (Fla. 2003). Under the first prong, “the defendant must show

that . . . counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). Under the second prong, “[t]he defendant

must show that there is 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.” Id. at 694. “Unless a defendant makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.” Id. at 687. “This Court has held that

counsel’s failure to object to improper comments cannot prejudice the outcome if

the comments were raised on direct appeal and do not rise to the level of

fundamental error.” Rogers v. State, 957 So. 2d 538, 550 (Fla. 2007); see Lowe v.

State, 2 So. 3d 21, 37-38 (Fla. 2008); Chandler v. State, 848 So. 2d 1031, 1045-46

(Fla. 2003).

      Braddy argues that trial counsel’s failure to object to comments made by the

prosecution during its guilt phase closing argument was deficient performance.

Braddy further argues that he was prejudiced because the result of his direct appeal


                                        - 28 -
would have been different had his trial counsel objected during the guilt phase to

such comments. However, Braddy’s ineffectiveness claim lacks merit because he

is unable to show prejudice. On direct appeal, Braddy challenged several

comments made during the State’s guilt phase closing argument that were not

preserved for appeal. This Court considered the issue of whether those allegedly

improper comments constituted fundamental error and found that they did not,

either individually or cumulatively:

             Braddy challenges a number of comments made during the
      State’s closing argument. Several of the comments, however, were
      not preserved for appeal because Braddy either failed to object on the
      specific legal grounds that he now asserts or because, after having
      made objections that the trial court sustained, Braddy failed to move
      for a mistrial. None of the unpreserved comments rises to the level of
      fundamental error, nor does the cumulative effect of those
      unpreserved comments in which we identify possible error constitute
      fundamental error. Moreover, the comments that Braddy did preserve
      for appeal were properly ruled on by the trial court. Accordingly,
      having considered the State’s guilt phase closing argument as a whole,
      paying specific attention to the objected-to and unobjected-to
      comments, we deny Braddy’s claim.

Braddy, 111 So. 3d at 837-38 (emphasis added). Because this Court found no

fundamental error as to any of the unpreserved comments on direct appeal, Braddy

fails to demonstrate that counsel’s failure to preserve a challenge to the comments

resulted in prejudice sufficient to undermine the outcome of the trial under

Strickland.

                         2. Reliable Adversarial Testing


                                       - 29 -
       Braddy claims that he was deprived of his right to a reliable adversarial

testing at the guilt phase due to ineffective assistance of counsel. Specifically,

Braddy claims that trial counsel was ineffective for failing to retain: (1) an expert

in police practices or police misconduct to challenge the voluntariness of Braddy’s

statements to the police; (2) a crime scene or forensic expert to challenge the chain

of custody of DNA evidence found in the trunk of the gold Lincoln Town Car

driven by Braddy; and (3) a forensic pathologist to challenge the State’s theory

regarding Quatisha’s death. As explained below, the postconviction court did not

err in denying this claim.

       Braddy’s claim that trial counsel was ineffective for failing to retain an

expert in police practices or police misconduct to challenge the voluntariness of

Braddy’s statements to the police is insufficiently pleaded because Braddy fails to

explain how the presentation of this testimony would have created a reasonable

probability of a different result at trial, that is, a reasonable probability that the

result of the proceeding would have been different. See Ey v. State, 982 So. 2d

618, 623 (Fla. 2008) (“To raise a facially sufficient claim of ineffective assistance

of counsel, a defendant must allege specific facts meeting both of Strickland’s

prongs.”). Braddy merely alleges that the presentation of this testimony would

have resulted in the suppression of his statements prior to trial, or a reasonable

probability that the jury would have discounted his statements.


                                          - 30 -
      Regardless, Braddy could not demonstrate prejudice because there is no

reasonable probability that the suppression of Braddy’s statements to the police

would have created a different result at trial. “The evidence at trial established that

Braddy took both Shandelle and Quatisha from their home after getting into a fight

with Shandelle and choking her unconscious.” Braddy, 111 So. 3d at 861. “The

evidence further established that, after Braddy took Shandelle out of the trunk and

choked her unconscious on a desolate road, Shandelle never saw Quatisha alive

again.” Id. The jury heard Shandelle’s eyewitness account of the crimes. Id. at

822-23. Shandelle’s landlord confirmed that Braddy had been seen with Quatisha

shortly before midnight, next to the Town Car, the night she disappeared. Id. at

823, 861. Within a few hours thereafter, Cyteria saw “Braddy wiping down the

interior of the Town Car with a cloth” and “the clothes Braddy had been wearing

earlier that night” in the washing machine. Id. at 823. DNA testing confirmed that

Shandelle’s blood was found on the trunk liner of the Town Car. Id. at 824. The

jury heard testimony that “when the detectives informed Braddy that Shandelle

was alive and had implicated him in Quatisha’s disappearance, Braddy turned pale,

began to sweat, shake, and cry, and claimed to feel faint.” Id. at 823. Quatisha’s

body was found by two fishermen, independent of the police and Braddy. Id. at

825-26. Quatisha suffered brush burns while she was alive consistent with her

“having grazed against a hard, flat surface, such as falling out of a car and sliding


                                        - 31 -
on the road.” Id. at 826. Dr. Perper, the Chief Medical Examiner for Broward

County, “concluded that Quatisha’s death was primarily caused by blunt force

trauma to the left side of her head, consistent with her either having fallen from a

great distance or having been thrown onto a prominent, protruding object, such as

the jutting rocks along the canal where her body was discovered.” Id. “[T]he

evidence established that the primary cause of Quatisha’s death was severe trauma

to her head, consistent with either being thrown or having fallen with some force

onto the rocks that lined the canal where Quatisha was found.” Id. at 861. Given

the overwhelming evidence of Braddy’s guilt, he cannot demonstrate prejudice

such that our confidence in the outcome is undermined.

      Likewise, Braddy’s claim that trial counsel was ineffective for failing to

retain a crime scene or forensic expert to challenge the credibility and reliability of

the DNA evidence collected from the Town Car is insufficiently pleaded because

Braddy fails to explain how the presentation of this testimony would have created a

reasonable probability of a different result at trial. Braddy merely alleges that the

presentation of this testimony would have challenged the credibility and reliability

of the DNA evidence at trial.

      Regardless, Braddy could not demonstrate prejudice because there is no

reasonable probability that challenging the credibility and reliability of the DNA

evidence collected from the Town Car would have created a different result at trial.


                                         - 32 -
Even if the DNA evidence had not been introduced, the jury still would have heard

Braddy’s incriminating statements and the testimony of Shandelle, Shandelle’s

landlord, Cyteria, and Dr. Perper. Furthermore, Quatisha’s body was found by two

fishermen, independent of the DNA evidence. Given the overwhelming evidence

of guilt presented, Braddy cannot demonstrate prejudice such that our confidence

in the outcome is undermined.

      Similarly, Braddy’s claim that trial counsel was ineffective for failing to

retain a forensic pathologist to challenge the State’s theory regarding Quatisha’s

death is insufficiently pleaded because Braddy fails to explain how the presentation

of this testimony would create a reasonable probability of a different result at trial.

Braddy merely alleges that the presentation of this testimony would have

challenged Dr. Perper’s theory about when Quatisha’s injuries were sustained and

shown that Quatisha died before she was left in the Everglades.

      Once again, Braddy could not demonstrate prejudice because there is no

reasonable probability that challenging Dr. Perper’s testimony as to the timing of

Quatisha’s death would have created a different result at trial. The evidence

supports the conclusion that Quatisha was alive when Braddy left her to die in the

Everglades because Braddy confessed “that he had left Quatisha alone out in the

Everglades in the middle of the night” and “he knew when he left her that she

would probably die.” Id. Moreover, even if Quatisha died before she was left in


                                         - 33 -
the Everglades, Braddy would still be guilty of felony murder based on the

kidnapping of Quatisha. See id. at 861-62.

      Braddy complains that he was deprived of his right to a reliable adversarial

testing due to the State’s failure to disclose exculpatory evidence and prosecutorial

and judicial misconduct. But Braddy fails to make any argument regarding these

claims on appeal. Accordingly, Braddy has waived any issue on appeal regarding

these claims. See Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990) (“The purpose

of an appellate brief is to present arguments in support of the points on appeal.

Merely making reference to arguments below without further elucidation does not

suffice to preserve issues, and these claims are deemed to have been waived.”).

                            D. Fair and Impartial Jury

      Braddy claims that he was deprived of his right to a fair and impartial jury.

Braddy argues that Juror Ravelo committed juror misconduct by failing to disclose

that he was the subject of a criminal investigation during voir dire or the guilt

phase. This claim is procedurally barred because “it could have and should have

been raised on direct appeal.” Troy v. State, 57 So. 3d 828, 838 (Fla. 2011)

(quoting Elledge v. State, 911 So. 2d 57, 77 n.27 (Fla. 2005)). In any event,

Braddy’s claim is refuted by the trial record because Juror Ravelo was not

permitted to continue to serve on the jury after he came under prosecution. The

guilt phase ended on July 17, 2007. Juror Ravelo—one of the jurors who sat on


                                        - 34 -
Braddy’s guilt phase jury—was arrested for a third degree felony for littering on

August 23, 2007. Thereafter, Juror Ravelo called the trial court and informed the

bailiff that he had been arrested since he began serving on the jury. On August 28,

2007, before the penalty phase began, the trial court questioned Juror Ravelo

outside the presence of the jury regarding the arrest and discharged him. Although

Juror Ravelo was arrested “[a]lmost one month after some pictures were taken by

someone,” nothing within the trial record indicates that Juror Ravelo was under

prosecution prior to his arrest.

      This Court has also held with respect to claims of juror nondisclosure that

(1) “the complaining party must establish that the information is relevant and

material to jury service in the case,” (2) “the juror concealed the information

during questioning,” and (3) “the failure to disclose the information was not

attributable to the complaining party’s lack of diligence.” Lugo v. State, 2 So. 3d

1, 13 (Fla. 2008) (quoting De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla.

1995)). Braddy’s claim equally lacks merit under this standard. Braddy’s claim

that Juror Ravelo concealed information during voir dire or the guilt phase that he

was under criminal investigation for littering is pure speculation. Moreover,

Braddy was not diligent in pursuing this claim at the trial level. When given the

opportunity to question Juror Ravelo, Braddy did not ask him whether he was

aware of the criminal investigation prior to his arrest.


                                         - 35 -
      Braddy suggests that the State withheld Brady v. Maryland, 373 U.S. 83

(1963), material from the defense. However, Braddy has failed to establish a

Brady violation. “To establish a Brady violation, the defendant has the burden to

show that: (1) the evidence was either exculpatory or impeaching; (2) the evidence

was willfully or inadvertently suppressed by the State; and (3) because the

evidence was material, the defendant was prejudiced.” Davis v. State, 136 So. 3d

1169, 1184 (Fla. 2014). Braddy has not shown that information regarding Juror

Ravelo’s prosecution would exculpate Braddy regarding any crime or impeach any

witness.

      Braddy complains that Rule Regulating the Florida Bar 4-3.5(d)(4)

prohibited Braddy’s counsel from interviewing Juror Ravelo. But Braddy fails to

make any argument regarding this rule on appeal. Therefore, Braddy has waived

any issue on appeal regarding rule 4-3.5(d)(4).

      Braddy complains that the postconviction court denied his requests for

additional public records concerning jurors. But Braddy fails to argue on appeal

that the postconviction court erred in denying his requests. Accordingly, Braddy

has waived any issue on appeal regarding these additional public records requests.

             III. PETITION FOR WRIT OF HABEAS CORPUS

                               A. Hurst v. Florida




                                       - 36 -
      Before Braddy petitioned this Court for a writ of habeas corpus, the United

States Supreme Court issued its decision in Hurst v. Florida 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.” Hurst v. Florida, 136 S. Ct. at 619. On

remand in Hurst 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
      mitigating circumstances, and unanimously recommend a sentence of
      death.

Hurst, 202 So. 3d at 57.

      Hurst v. Florida and Hurst apply retroactively to defendants in Braddy’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, 209 So. 3d 1248, 1283 (Fla. 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, 209 So. 3d 1241, 1248 (Fla. 2016) (“In light of the non-unanimous jury



                                       - 37 -
recommendation to impose a death sentence, we reject the State’s contention that

any Ring- or Hurst v. Florida-related error is harmless.”), petition for cert. filed,

No. 16-1170 (U.S. Mar. 23, 2017). We therefore conclude that Braddy is entitled

to a new penalty phase.

                           B. This Court’s Prior Review

      Braddy claims that this Court failed to conduct a proper harmless error

analysis of errors recognized on direct appeal. Specifically, Braddy claims that

this Court erroneously affirmed the trial court’s denial of Braddy’s motion to

suppress and erroneously found that any improper comments made during the

State’s guilt phase closing argument were harmless error. This claim is

procedurally barred because “habeas corpus petitions are not to be used for

additional appeals on questions which could have been, should have been, or were

raised on appeal or in a rule 3.85[1] motion.” Wyatt, 71 So. 3d at 112 n.20

(quoting Hardwick v. Dugger, 648 So. 2d 100, 105 (Fla. 1994)). “This Court has

consistently held that habeas claims wherein the defendant challenges this Court’s

previous standard of review in the case are procedurally barred.” Bottoson v.

State, 813 So. 2d 31, 35 (Fla. 2002).

                            C. Fair and Impartial Jury

      Braddy claims that he was deprived of his right to a fair and impartial jury.

This claim is procedurally barred because Braddy raised it in his postconviction


                                         - 38 -
motion. See England v. State, 151 So. 3d 1132, 1141 (Fla. 2014). Regardless, as

explained previously, the postconviction court did not err in denying Braddy’s

claim regarding Juror Ravelo.

                                  IV. CONCLUSION

         Based on the foregoing, we affirm the postconviction court’s denial of relief

for a new guilt phase, and we also deny the claims in Braddy’s petition for a writ

of habeas corpus with the exception of his claim for relief under Hurst v. Florida.

Accordingly, we vacate the death sentence and remand this case for a new penalty

phase.

         It is so ordered.

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

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

LAWSON, J., concurring specially.

         See Okafor v. State, No. SC15-2136, slip op. at 15 (Fla. June 8, 2017)

(Lawson, J., concurring specially).

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

         I agree with the decision to affirm the denial of relief on Braddy’s guilt

phase claims. But I disagree with the decision to vacate Braddy’s death sentence


                                          - 39 -
and to remand for 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, 209 So. 3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in part and

dissenting in part). I would also reject Braddy’s other penalty phase claims. The

postconviction court’s denial of all relief should be affirmed. The habeas petition

should be denied in full.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Miami-Dade County,
     Ariana Fajardo Orshan, Judge - Case No. 131998CF0377670001XX
And an Original Proceeding – Habeas Corpus

Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis, III,
Litigation Director, and Jessica Houston, Staff Attorney, Office of the Capital
Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee/Respondent




                                       - 40 -
