          Supreme Court of Florida
                                  ____________

                                  No. SC14-979
                                  ____________

                         DONALD LENNETH BANKS,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC15-297
                                  ____________

                         DONALD LENNETH BANKS,
                                Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                 [April 20, 2017]

PER CURIAM.

      Donald Lenneth Banks appeals the denial of 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. For
the reasons that follow, we affirm the denial of his postconviction guilt phase

claims, deny his habeas petition, but vacate his death sentence, and remand for a

new penalty phase.1

                               I. BACKGROUND

      Donald Lenneth Banks was convicted and sentenced to death for the 2005

murder of Linda Volum. This Court’s opinion on direct appeal included the

following regarding the murder and Banks’ subsequent trial:

             During the late evening hours of March 9 or the early
      morning hours of March 10, 2005, the Victim was stabbed to
      death. The killing probably occurred between midnight and
      4:00 a.m. on March 10, 2005. The Victim received fourteen
      knife wounds, one to the neck, ten to the chest or abdomen, and
      three to her left forearm and hand. She also received abrasions
      and contusions in different areas of her body, especially around
      the hands and to the top of the head. She further received
      several small cuts in different areas, including the back of the
      hand and around the left eye. At least six of the wounds were
      hard stabs from a knife, rather than simple jabs, in that they
      penetrated the Victim’s ribs or sternum. One stabbing
      penetrated her liver, two or three penetrated her heart, and one
      penetrated her lung. The Victim attempted to defend herself
      against this attack, and was conscious and aware throughout the
      attack. She ultimately died from a loss of blood due to the stab
      wounds to her heart.
             Between 2:40 and 2:47 a.m. on the same day, then, a
      person attempted to access an automatic teller machine with the
      Victim’s ATM card. This event was recorded by a video
      surveillance camera. Though the face of the person was not

      1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Because we
are remanding for a new penalty phase, we do not address Banks’ penalty phase
claims.


                                        -2-
revealed in the recording, it was clearly a black male wearing a
unique shirt, and jacket, visually identical to the ones [Banks]
was wearing that night. ([Banks] is also a black male).
Furthermore, this person was driving a white, compact sedan
which matched the description of the Victim’s automobile. The
person was accompanied to the ATM location by another, still
unidentified person.
       Before dawn on the same morning, then, [Banks]
returned to a residence he shared with his girlfriend, one
Sudi[e] Johnson (“Johnson”). He had been away from the
residence all night. He was driving a vehicle which appeared to
be identical to that of the Victim. He entered the home limping,
from a wound to his leg. He carried with him a pillowcase the
same color as another pillowcase found later that day in the
Victim’s home. Within the pillowcase, he carried bloody
underclothing, and the Victim’s laptop computer. When
Johnson asked him about the bloody clothing, [Banks] told her
that “I just murked somebody.” The word “murk” is a slang
term meaning murder. [Banks] had been bleeding from the
wound to his leg, and continued to bleed while he was at the
residence. However, about an hour after his arrival, he again
departed in the same automobile in which he had arrived.
       Later the same morning the Victim’s automobile was
involved in a traffic accident. After the accident, the occupants
of the vehicle fled from the scene. Deputy sheriffs
investigating the accident, though, were able to ascertain that it
was owned by the Victim. In the course of investigating the
accident, then, a deputy went to the Victim’s residence, where
he found her dead body.
       About a day and a half after the foregoing events,
Johnson took [Banks] to a hospital so that he could receive
medical care for his leg wound. The wound subsequently
proved to be almost visually identical to one of the wounds the
Victim had received during the murder.
       Johnson testified at trial that when [Banks] initially told
her he had murdered someone, she did not believe him. She
thought he was simply seeking attention. However, several days
later she and [Banks] were watching a videotaped television
program when a news flash was aired regarding the murder of
Linda Volum. [Banks] then stated to Johnson “You see that?”

                                  -3-
and “I did that.” These remarks led Johnson to question
[Banks] about the murder. In response, he related to her facts
about the crime which could only have been known by
someone who was present at the murder, or sheriff’s
investigators. He also told her that he had committed the crime
as a “murder pay-back,” and that he had done so after entering
the Victim’s residence in only his underclothing. He further
said that when he left the residence “I had set the house up as a
prop.” He explained that he had done so by putting a crack pipe
in the residence, to make the murder appear to be “foul play.”
[Banks] related [to Johnson] that he had received the wound to
his leg on the night in question by accidentally stabbing himself
in the course of stabbing the Victim to death.
        The sheriff’s office investigation of the crime scene
produced substantial physical evidence of [Banks’] guilt.
Indeed, a crack pipe, along with a knife, was found under the
Victim’s body. Blood, which DNA testing proved to be
[Banks’], was found in several places in the house. [Banks’
semen] was found on the Victim’s body, and a mixture of blood
from both [Banks] and the Victim was found near the body.
[Banks’] bare footprint was also found in some blood in the
house. In addition, the [prints] of some unknown person [were]
found in blood in one place, indicating that another person may
have been present at the murder, besides [Banks]. That person
has never been identified.
        During the guilt phase, Banks maintained his innocence. He
testified that he sold crack out of Volum’s residence and that Volum
had exchanged sex as well as the use of her laptop and vehicle for
crack. Banks stated that during the evening of Volum’s murder he
had cut his fingers on a crack pipe, thereby explaining his blood in
Volum’s residence. He also testified that Volum had asked him to go
to the ATM for her and that an acquaintance, “Bo,” accompanied him
on the trip. He stated that when he left that night to go home “Bo”
remained at Volum’s residence. However, the jury found Banks
guilty of first-degree murder.
        The defense, during the penalty phase, presented the testimony
of Banks’ father and a forensic psychologist. Banks’ father testified
that he had not been a part of his son’s life since his son was seven
years old. The psychologist testified that there was no evidence of
any major mental illnesses or thought disorders. However, testing

                                 -4-
      suggested mild to moderate deficits in frontal lobe functioning, which
      is responsible for planning, problem solving, and impulse control.
      The psychologist diagnosed him with a cognitive disorder not
      otherwise specified as well as antisocial personality disorder.
      Moreover, the psychologist noted a history of alcohol and substance
      abuse.
             The jury recommended the death penalty by a vote of ten to
      two, and a Spencer [v. State, 615 So. 2d 688 (Fla. 1993),] hearing was
      held on August 6, 2008. Thereafter, following the jury’s
      recommendation and concluding that the aggravating circumstances
      outweighed the mitigating circumstances, the trial court sentenced
      Banks to death. In so doing, the trial court found the following
      aggravators: (1) Banks had been previously convicted of violent
      felonies (very great weight); (2) the crime was especially heinous,
      atrocious, or cruel (very great weight); and (3) the crime was
      committed in a cold, calculated, and premeditated manner (great
      weight). The trial court found the following mitigators: (1) Banks
      has a low IQ (very little weight); (2) Banks has a deficit in his brain
      (moderate weight); (3) Banks has antisocial personality traits (little
      weight); (4) Banks was not the only participant in the crime (no
      weight); and (5) Banks had a difficult youth (little weight).

Banks v. State, 46 So. 3d 989, 992-94 (Fla. 2010) (footnotes omitted) (quoting

sentencing order).

      On direct appeal, this Court affirmed Banks’ conviction and sentence,

rejecting the following claims: “(A) the trial court erred in denying a cause

challenge to a prospective juror whose daughter had been the victim of an armed

robbery; (B) the trial court erred in allowing the State to exercise peremptory

challenges against two African-Americans; (C) the trial court erred in admitting

DNA results without requiring the presentation of statistical evidence; (D) the trial

court erred in denying a motion for mistrial when a witness mentioned Banks’


                                        -5-
involvement in another crime; (E) the trial court erred during the penalty phase by

allowing the State to present a video of Banks committing an armed robbery; and

(F) the trial court erred in finding the cold, calculated, and premeditated (CCP)

aggravating circumstance.” Id. at 994-95.

       After holding an evidentiary hearing, the postconviction court denied Banks’

initial 3.851 motion. This appeal and petition for habeas relief followed.

                                       II. ANALYSIS

A. Consent to Search

       First, Banks claims that trial counsel was ineffective for failing to move to

suppress items recovered after a second entry of the residence shared by Banks and

Sudie Johnson based upon Ms. Johnson’s alleged coerced consent to search.

However, because the claim is without merit, trial counsel cannot be deemed

ineffective for failing to raise it.

       Following the United States Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), this Court has explained that for ineffective

assistance of counsel claims to be successful, two requirements must be satisfied:

       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.




                                           -6-
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,

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

      Regarding the deficiency prong of Strickland, there is a strong presumption

that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690.

Moreover, “[a] fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to reconstruct the

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

counsel’s perspective at the time.” Id. at 689. Further, 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)). And counsel cannot be deemed ineffective

for failing to make a meritless argument. Melendez v. State, 612 So. 2d 1366,

1369 (Fla. 1992), abrogated on other grounds by Deren v. State, 985 So. 2d 1087

(Fla. 2008).

      “Because both prongs of Strickland present mixed questions of law and fact,

this Court employs a mixed standard of review, deferring to the trial court’s factual

findings that are supported by competent, substantial evidence, but reviewing the

trial court’s legal conclusions de novo.” Dennis v. State, 109 So. 3d 680, 690 (Fla.

2012).




                                         -7-
      “[W]hether a consent to a search was in fact ‘voluntary’ or was the product

of duress or coercion, express or implied, is a question of fact to be determined

from the totality of all the circumstances.” Wyche v. State, 987 So. 2d 23, 26 (Fla.

2008) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).

      Here, during the postconviction evidentiary hearing and during pretrial

depositions, Ms. Johnson mentioned feeling pressured into consenting to law

enforcement’s initial entry of her home to apprehend Banks for a crime unrelated

to Linda Volum’s murder. Ms. Johnson specifically mentioned feeling pressured

by the presence of law enforcement at her house as well as a discussion of the

possible destruction of her belongings during a search. Importantly, however, she

also acknowledged during a pretrial deposition that she would have voluntarily

consented to the entry anyway absent any such feelings of pressure.

      Moreover, Ms. Johnson’s statements regarding pressure only relate to law

enforcement’s first entry into her home for the purposes of apprehending Banks.

Ms. Johnson subsequently drove to the police station on her own and, during an

interview with law enforcement, conveyed the details of Banks’ statements to her

regarding Ms. Volum’s murder. During this interview, she orally and in writing

consented voluntarily to law enforcement returning to her house to search for

evidence related to Ms. Volum’s murder. She accompanied law enforcement back

to her house and assisted in the search of her home by pointing out relevant


                                        -8-
evidence. And she expressly acknowledged during pretrial depositions that her

consent to law enforcement’s second entry was voluntarily given without any

threats or pressure.

      Accordingly, because a motion to suppress the evidence retrieved during the

second search would have been meritless, trial counsel cannot be deemed

ineffective for failing to raise it. We affirm the denial of relief.

B. DNA Evidence

      Next, Banks alleges that trial counsel was ineffective for failing to object to

the admission of DNA evidence without the presentation of population frequency

statistics. However, because Banks has failed to demonstrate deficiency and

because the jury did hear testimony regarding the significance of the DNA

matches, we affirm the denial of relief.

      First, trial counsel made a reasonable strategic decision to not object to the

non-presentation of population statistics. Trial counsel explained during the

evidentiary hearing that he wanted to avoid the jury hearing that the population

statistic of one in 56 quadrillion had been calculated. Trial counsel believed that

this overwhelming statistic would leave the jury with no doubt of Banks’ guilt.

Avoiding the presentation of this statistic was not outside the “broad range of

reasonably competent performance under prevailing professional standards.”




                                           -9-
Bolin, 41 So. 3d at 155 (quoting Maxwell, 490 So. 2d at 932). Therefore, Banks

has failed to demonstrate deficiency.

       Second, in Banks’ trial, the State’s DNA expert provided testimony

regarding the quantitative and qualitative significance of the DNA matches. For

example, Mr. Pollock testified that semen from genital, vulva vaginal, and rectal

swabs of the victim matched Banks at all 13 loci plus the gender marker. Then,

using DNA charts, Mr. Pollock explained to the jury how he viewed the DNA data

as a series of peaks, which correspond to fragment sizes. Mr. Pollock also testified

that “statistics are applied to the entire profile to determine how common that

profile is” and that “[j]ust because one locus is common, by the time you get to 13

it becomes extremely rare, extremely.”

       Accordingly, trial counsel was not ineffective for failing to object to the

admission of DNA testimony without the presentation of population statistics,

statistics that would have included a one in 56 quadrillion match. We affirm the

trial court’s denial of this claim.

C. Motive to Testify

       Next, Banks argues that trial counsel was ineffective for attempting to

impeach Sudie Johnson’s motive for testifying against him at trial. During cross-

examination, trial counsel asked Ms. Johnson if she stopped supporting Banks

because he was having sex with Ms. Volum. Ms. Johnson responded that she


                                         - 10 -
stopped supporting Banks after seeing a video of him stabbing another individual

in an unrelated crime. However, this Court affirms the denial of relief.

      First, Banks has not established deficiency. It was sound trial strategy to

attempt to impeach Ms. Johnson, one of the State’s most important witnesses, by

suggesting that she was testifying against Banks as revenge for his unfaithful

relationship with Ms. Volum. Thus, trial counsel’s line of questioning was not

outside the “broad range of reasonably competent performance under prevailing

professional standards.” Id. (quoting Maxwell, 490 So. 2d at 932).

      Second, Banks has not established prejudice. During the guilt phase, the

jury was aware that Banks had committed other felonies since Banks

acknowledged during his guilt phase testimony that he had nine felony convictions.

Furthermore, after Ms. Johnson’s statement, the trial court issued a curative

instruction and polled the jurors to ensure that they could follow the instruction and

disregard Ms. Johnson’s remark. Banks, 46 So. 3d at 998. Thus, there is not “a

reasonable probability that, ‘absent the [remark], the factfinder would have [had] a

reasonable doubt respecting guilt.’ ” Dennis, 109 So. 3d at 690 (quoting

Strickland, 466 U.S. at 695). In other words, our confidence in the outcome is not

undermined. See id.

      Accordingly, we affirm the postconviction court’s denial of relief.




                                        - 11 -
D. Felony, Letters, and Relationships

      Banks next claims that trial counsel was ineffective for failing to impeach

Sudie Johnson with her felony conviction and letters she wrote to Banks while he

was incarcerated. Banks also asserts that trial counsel was ineffective for failing to

question Detective Bodine about his interviews of three men with whom the victim

had relationships. We affirm the denial of this claim.

      First, Banks has failed to demonstrate deficiency. The record reflects that

trial counsel did ask Sudie Johnson on cross-examination how many times she had

been convicted of felonies and that trial counsel referred to Ms. Johnson as a

convicted felon during closing arguments. Counsel cannot be considered deficient

for failing to do what he actually did. Moreover, trial counsel made a strategic

decision to not use the letters Ms. Johnson wrote to Banks since those letters, while

perhaps containing information that might have been somewhat helpful, also

included damaging information about Banks. Additionally, trial counsel pursued a

reasonable strategy during his cross-examination of Detective Bodine. To cast

doubt on the thoroughness of the investigation, trial counsel chose to highlight

possible avenues that were not investigated rather than question the detective about

what leads were investigated. Counsel’s strategic decisions were not outside the

“broad range of reasonably competent performance under prevailing professional

standards.” Bolin, 41 So. 3d at 155 (quoting Maxwell, 490 So. 2d at 932).


                                        - 12 -
      Second, Banks has not established prejudice. The information in Ms.

Johnson’s letters that allegedly could have been used for impeachment purposes

included the facts that Ms. Johnson was angry with Banks due to his infidelity and

that she felt pressured by law enforcement. However, during the trial, Ms. Johnson

specifically denied that her anger with Banks is what motivated her to cooperate

with law enforcement. She also testified that her cooperation was voluntary. And

the jury learning that law enforcement interviewed (and apparently ruled out) three

other men who had relationships with Ms. Volum before pursuing charges against

Banks would not have been very beneficial to Banks’ case. Accordingly, Banks

has not demonstrated a reasonable probability of a different outcome. In other

words, our confidence in the outcome is not undermined.

      Accordingly, we affirm the postconviction court’s denial of this claim.

E. Cashier’s Testimony

      Banks also asserts that trial counsel was ineffective for failing to present the

testimony of the cashier who handled Banks’ and Ms. Volum’s purchase at the

grocery store before her murder. However, we affirm the denial of this claim.

      Banks has failed to establish deficiency. Trial counsel testified during the

evidentiary hearing that he had concerns that this testimony could possibly support

the pecuniary gain aggravator and highlight Banks’ selling of drugs to the victim.

Avoiding these possible implications of the cashier’s testimony is not outside the


                                        - 13 -
“broad range of reasonably competent performance under prevailing professional

standards.” Id. (quoting Maxwell, 490 So. 2d at 932).

      Additionally, Banks failed to establish prejudice. The jury learned from

other evidence that Banks and Ms. Volum went together to the grocery store

shortly before her murder, that Ms. Volum purchased items, and that she was

unsuccessful in her attempts to receive cash back as part of the transaction. While

the cashier’s testimony may have corroborated Banks’ testimony that there was no

animosity between Banks and Ms. Volum, it also would have supported the State’s

theory that the murder was payback and that the victim could not access money to

pay Banks. At best, the cashier’s testimony would have had minimal beneficial

effect. Therefore, there is no reasonable probability of a different verdict had trial

counsel presented the cashier’s testimony. In other words, our confidence is not

undermined.

      Accordingly, we affirm the postconviction court’s denial of this claim.

F. Prosecutor’s Comments

      Additionally, Banks asserts that trial counsel was ineffective for failing to

object to allegedly improper prosecutorial comments, specifically comments

related to the nature of Banks’ and the victim’s sexual interaction on the night of

the murder, the veracity of Sudie Johnson’s testimony, and Banks’ nine felony




                                        - 14 -
convictions.2 However, because the comments were not improper when read in

context, we affirm the denial of relief. See Hildwin v. State, 84 So. 3d 180, 191

(Fla. 2011) (“In order to prevail on an ineffective assistance of counsel claim on

this ground, [the defendant] ‘must first show that the comments were improper or

objectionable and that there was no tactical reason for failing to object.’ Stephens

v. State, 975 So. 2d 405, 420 (Fla. 2007). Second, he must demonstrate

prejudice.”).

      First, Banks asserts that the prosecutor improperly alleged that a sexual

battery occurred the night of the murder rather than consensual sex. However, the

prosecutor emphasized during opening and closing arguments that the State could

not prove sexual battery beyond a reasonable doubt and that it was not the jury’s

job to determine whether a sexual battery had occurred. When read in context, the

prosecutor mentioned a possible sexual relationship during his opening statement

to explain to the jury that Ms. Volum may have known Banks. And, when read in

context, it is clear that the focus of the prosecutor’s closing argument was that

whomever had sex with Ms. Volum the night of the murder (whether it was

consensual or not) was the individual most likely to have killed her since Ms.

Volum was found naked in bed. Moreover, it was an accurate reflection of the



      2. Because we remand for a new penalty phase, we do not address the
prosecutorial comment during the penalty phase that Banks alleges was improper.


                                        - 15 -
record to assert that Banks’ statements constituted the evidence of consensual sex.

And because the defense argued that the sex was consensual, the State could

counter argue that it may have been otherwise even if sexual battery could not be

proven beyond a reasonable doubt. Therefore, the prosecutor’s statements about

the nature of the sexual relationship were not improper, and trial counsel was not

ineffective for failing to object.

      Second, Banks asserts that trial counsel should have objected when the

prosecutor asked Banks on cross-examination whether Sudie Johnson was lying

during her testimony and whether Banks had an interest in the outcome of the case.

However, Banks put his credibility at issue when he testified during the guilt

phase, and Banks’ testimony directly disputed many aspects of Sudie Johnson’s

testimony. In fact, on direct, trial counsel asked Banks why Sudie Johnson was

lying and implicating him. Therefore, the prosecutor’s line of questioning on

cross-examination was not improper. Trial counsel cannot be deemed ineffective

for failing to raise a meritless objection.

      Third, Banks claims that trial counsel should have objected when the State

referred to Banks’ felony convictions during closing arguments. However, a

witness, including a defendant, may be impeached with felony convictions. And

discussing Banks’ credibility in light of his felony convictions during closing

constituted comments upon facts in evidence. See Conahan v. State, 844 So. 2d


                                          - 16 -
629, 640 (Fla. 2003) (“In closing argument, counsel is permitted to review the

evidence and fairly discuss and comment upon properly admitted testimony and

logical inferences from that evidence.”).

      Accordingly, because the prosecutor’s comments were not improper when

considered in context, trial counsel cannot be deemed ineffective for failing to

object. We affirm the denial of this claim.3

G. Principals Instruction

      Banks further alleges that appellate counsel was ineffective for failing to

claim on direct appeal that the trial court abused its discretion by instructing the

jury on the principal theory. However, we deny this habeas claim.

      Claims of ineffective assistance of appellate counsel are appropriately

presented in a petition for a writ of habeas corpus. Valle v. Moore, 837 So. 2d

905, 907 (Fla. 2002); Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000). The

standard of review for claims of ineffective assistance of appellate counsel mirrors

the Strickland standard for ineffective assistance of trial counsel. Valle, 837 So. 2d

at 907. In order to grant habeas relief on ineffectiveness of appellate 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

      3. We also deny Banks’ cumulative error claim. See Israel v. State, 985 So.
2d 510, 520 (Fla. 2008).


                                         - 17 -
      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) (citing Johnson v.

Wainwright, 463 So. 2d 207, 209 (Fla. 1985)).

      Furthermore, appellate counsel cannot be deemed ineffective for failing to

raise meritless issues or issues that were not properly raised in the trial court and

are not fundamental error. Valle, 837 So. 2d at 908. “In fact, appellate counsel is

not necessarily ineffective for failing to raise a claim that might have had some

possibility of success; effective appellate counsel need not raise every conceivable

nonfrivolous issue.” Id. (citing Jones v. Barnes, 463 U.S. 745, 751-53 (1983);

Provenzano v. Duggar, 561 So. 2d 541, 549 (Fla. 1990)).

      In Banks’ case, the trial court instructed the jury regarding the principal

theory as follows:

             Now, principals. If the defendant helped another person or
      persons commit a crime. The defendant is a principal and must be
      treated as if he had done all the things the other person or persons did,
      if, one, the defendant had a conscious intent that the criminal act be
      done and, two, the defendant did some act or said some word which
      was intended to and which did incite, cause, encourage, assist or
      advise the other person or persons to actually commit the crime.
             To be a principal, the defendant does not have to be present
      when the crime is committed.

      This Court has explained that “[c]harges of the Court must be based upon

facts in proof, and if not so based upon the facts in proof[,] it is error to give them;

                                         - 18 -
and the court below erred in giving the quoted charge.” Bradley v. State, 89 So.

359, 359 (Fla. 1921); see also Buford v. Wainwright, 428 So. 2d 1389, 1390-91

(Fla. 1983) (“[O]nly instructions which have support in the record should be given

to the jury.”). And the First District has explained the following regarding the

principals instruction in particular:

      The principals instruction may be given if the evidence adduced at
      trial supports such an instruction. See Masaka v. State, 4 So. 3d 1274,
      1284 (Fla. 2d DCA 2009); Wells v. State, 967 So. 2d 418, 419 (Fla.
      1st DCA 2007); Lewis v. State, 693 So. 2d 1055, 1057 (Fla. 4th DCA
      1997); Thomas v. State, 617 So. 2d 1128, 1128 (Fla. 3d DCA 1993).
      If there is no evidence that would support the principals theory, then
      the reading of the instruction is error. See id. Such an error is not
      harmless when it is capable of misleading the jury in such a way that
      the defendant’s right to a fair trial is prejudiced.
McGriff v. State, 12 So. 3d 894, 895 (Fla. 1st DCA 2009).

      Here, the trial court did not abuse its discretion in giving the principals

instruction because there was evidence presented that Banks acted in concert with

someone else in committing the murder. Cf. Lovette v. State, 654 So. 2d 604, 606

(Fla. 2d DCA 1995) (“The trial court committed reversible error in instructing the

jury on the principal theory because there was no evidence that Mr. Lovette acted

in concert with anyone in committing the theft or the burglary.”). Specifically, the

State presented evidence of a print in blood at the crime scene from an unidentified

individual, which supports that another individual was with Banks at the crime

scene at the time of the murder. Moreover, the State presented surveillance video



                                        - 19 -
of Banks driving the victim’s vehicle with an unidentified individual sitting in the

passenger’s seat. Banks himself stated that another man he named as “Bo” was

present with him at the victim’s home the night of the murder and was with him in

her vehicle when he drove to the ATM and attempted to use the victim’s ATM

card. Therefore, because there was evidence in the record supporting that Banks

acted in concert with someone else, the trial court did not abuse its discretion in

giving the principal theory instruction. Cf. Masaka, 4 So. 3d at 1284 (“While it is

true that the trial court has broad discretion in instructing the jury, see Kearse v.

State, 662 So. 2d 677, 682 (Fla. 1995), it is also true that a trial court errs when it

gives an instruction that has no factual basis in the record[.]”).

      Accordingly, appellate counsel cannot be deemed ineffective for failing to

raise this nonmeritorious claim on direct appeal. We deny this habeas claim.

H. Hurst

      Finally, we consider whether Banks is entitled to relief after the United

States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016).

Because the jury recommended the death penalty by a vote of ten to two, we

conclude that Banks’ death sentence violates Hurst. See Kopsho v. State, 209 So.

3d 568, 570 (Fla. 2017). We must then consider whether the Hurst error was

harmless beyond a reasonable doubt:

      The harmless error test, as set forth in Chapman[v. California, 386
      U.S. 18 (1967),] and progeny, places the burden on the state, as the

                                         - 20 -
      beneficiary of the error, to prove beyond a reasonable doubt that the
      error complained of did not contribute to the verdict or, alternatively
      stated, that there is no reasonable possibility that the error contributed
      to the conviction.


Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016) (quoting State v. DiGuilio, 491 So. 2d

1129, 1138 (Fla. 1986)), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

      Because the jury in this case recommended death by a vote of ten to two,

“we cannot determine that the jury unanimously found that the aggravators

outweighed the mitigation.” Kopsho, 209 So. 3d at 570. “We can only determine

that the jury did not unanimously recommend a sentence of death.” Id. Therefore,

because we cannot say that there is no possibility that the error did not contribute

to the sentence, the error in Banks’ sentencing was not harmless beyond a

reasonable doubt.

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

phase. See Hurst, 202 So. 3d at 69.

                                III. CONCLUSION

      For the foregoing reasons, we affirm the denial of Banks’ postconviction

guilt phase claims, deny his habeas petition, vacate his death sentence, and remand

for a new penalty phase.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.



                                        - 21 -
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY and LAWSON, JJ., concur.

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

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

      I concur with the majority’s decision except its vacating of the death

sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Duval County,
     Hugh Alfred Carithers, Jr., Judge - Case No. 162005CF015549AXXXMA
And an Original Proceeding – Habeas Corpus

Rick A. Sichta, Susanne K. Sichta, and Joe Hamrick of The Sichta Firm, LLC.,
Jacksonville, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Carine L. Mitz and Robert J. Morris, III,
Assistant Attorneys General, Tallahassee, Florida,

      for Appellee/Respondent




                                       - 22 -
