          Supreme Court of Florida
                                  ____________

                                 No. SC14-2225
                                 ____________

                          DONTE JERMAINE HALL,
                                 Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC15-859
                                  ____________

                          DONTE JERMAINE HALL,
                                 Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                 [June 15, 2017]

PER CURIAM.

      Donte Jermaine Hall appeals the denial of his postconviction motion filed

under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ

of habeas corpus. As explained below, we affirm the denial of his postconviction
guilt phase claims, deny his habeas guilt phase claims, but vacate his death

sentence, and remand for a new penalty phase.1

                               I. BACKGROUND

      Hall was convicted and sentenced to death for the 2006 murder of Anthony

Bernard Blunt. On direct appeal, this Court described the background of this case

as follows:

             The evidence at trial revealed that on September 8, 2006, 22-
      year-old Hall learned that his girlfriend, 18-year-old Angel Glenn, had
      been hired to dance and strip at a house party that night. Angel had
      been told she would make a lot of money for dancing, and Hall told
      Angel that he planned to rob the attendees of the party. Hall, along
      with his twin brother, Dante, and acquaintances Shoo-Shoo and Pig,
      followed Angel and her two fellow dancers from Orlando to the party
      in Eustis. At the party, several men were present, drinking alcohol,
      smoking marijuana, and using ecstasy. The girls entered the house,
      went into a back room, took ecstasy pills, and began changing clothes.
      Hall stayed in communication with Angel via cell phone while she
      was in the room, asking her how many men were in the house,
      whether there were guns in the house, and when the party would
      begin. After some delay, music began playing and the girls began
      dancing and stripping.
             Within approximately five or ten minutes, Hall entered the
      house, carrying an assault rifle and saying he was going to “make this
      choppa dance.” Hall was followed by Dante, Shoo-Shoo, and Pig,
      and all four men were wearing dark clothing and had their faces
      partially covered. They were carrying handguns and assault rifles.
      The attendees of the party, as well as the three dancers, gathered in the
      living room.
             The intruders started shooting, and the lights went out. The
      gunmen demanded money and told the partygoers to get down on the

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


                                        -2-
ground, and the partygoers began taking off their jewelry and handing
it to the gunmen. The seized items included gold chains, bracelets,
watches, and a Gucci bag containing about $1500 in cash.
        Eyewitness testimony established that Hall was the first to fire a
gun and that Hall did most of the talking. In order to stop the shooting
and distract the gunmen, partygoer Keson Evans stated that there was
a box of money in the back room. Hall went to the back room but
found the door locked; he returned to the living room and fired his
gun again, fatally shooting Evans in the head.
        The four gunmen were in the house for ten minutes or less.
During that time, Willie “Jay” Shelton, William Robinson, Joshua
Daniel, Keson Evans, and Anthony Blunt were each shot. Daniel was
the first to be shot, and he suffered several gunshot wounds to his
hands, thighs, abdomen, and torso. Later, after being rushed to the
hospital, Daniel spent eighteen hours in surgery to remove the bullets
and treat his approximately twenty entrance and exit wounds, which
were very severe but ultimately nonfatal. Shelton was shot once in
the stomach and once in the forearm. His injuries caused him to be
hospitalized for two years. Robinson was shot in the stomach and in
the shoulder. Blunt was fatally shot in his chest, right thigh, and left
hand. Evans was shot in the face and the right thigh and died as a
result.
        The gunmen fled the house immediately after Evans was shot.
The three women then left the house together with Angel driving them
back to Orlando. Hall called Angel, asking her whether the women
were okay and telling them to calm down. Hall and Angel arranged to
meet at a gas station on a major road leading from Eustis back to
Orlando. At the gas station, Hall got out of Dante’s car and into
Angel’s car, carrying a gun and stolen property from the robbery.
During the car ride, Hall stated that he was angry because he did not
get enough money and the robbery did not go as he had planned.
Angel dropped Hall off at his mother’s house, where he was living at
the time.
        The next morning, Angel went to Hall’s mother’s house to see
him at his request. Twin brother Dante and Hall’s mother were also
home. Dante was pulling jewelry from the robbery out of a Gucci
bag, and the twins discussed what they would do with the jewelry,
how much it was worth, and how they would make money off of it.
Hall gave some of the jewelry to Dante’s girlfriend and instructed her
to pawn it. Some of the robbery victims later identified jewelry that

                                  -3-
had been pawned, and Angel identified the same jewelry as jewelry
she had seen in Hall’s possession at his mother’s house the day after
the robbery.
       The following day, Dante went to the hotel where Hall, Angel,
and Angel’s one-year-old son were staying and discussed with Hall
the logistics of pawning the jewelry from the robbery. The twin
brothers left the hotel together with most of the jewelry. Hall also
gave Angel a few of pieces of jewelry to pawn, for which she received
$1,000 that she then gave to Hall. Over the next several days, Hall
made phone calls to Shoo-Shoo and Pig to discuss the jewelry and
how the proceeds would be divided.
       Angel was soon arrested for pawning the stolen jewelry and
was in jail for several weeks, during which time she lied to police
about the events of September 9 because she was frightened for her
family’s wellbeing. Meanwhile, one of the other dancers from the
party, Nikita Jackson, told police what had happened the night of the
robbery and murders. Eventually, Angel also admitted to the police
what had happened and agreed to testify against Hall.
       During the penalty phase, the court received expert testimony
regarding Hall’s mental health. Two psychologists testified that Hall
was of very low intelligence with an IQ in the borderline range of
intellectual abilities. Both psychologists also testified that Hall had
some history of substance abuse.
       Using special verdict forms, the jury voted unanimously that
three aggravating circumstances were established beyond a reasonable
doubt for the murders of Anthony Blunt and Keson Evans: (1) that
Hall had a prior violent felony conviction; (2) that he knowingly
created a great risk of death to many people; and (3) the murders were
committed for pecuniary gain. Additionally, the jury voted eleven to
one that the murder of Anthony Blunt was especially heinous,
atrocious or cruel.[N1] The jury voted eight to four in favor of a death
sentence for the murder of Blunt and recommended a life sentence for
the murder of Evans.

      N1. The State had not sought the heinous, atrocious, or
      cruel aggravator in regard to the murder of Keson Evans.

      After conducting a Spencer [v. State, 691 So. 2d 1062 (Fla.
1996)] hearing, the trial court followed the jury’s recommendation of
death for the murder of Anthony Blunt, concluding that the four


                                 -4-
      aggravating factors outweighed several mitigating factors.
      Specifically, the trial court found the following aggravators for
      Blunt’s murder: (1) Hall was contemporaneously convicted of armed
      burglary, armed robbery, attempted felony murder of Willie Shelton,
      attempted felony murder of Joshua Daniel, and first-degree murder of
      Keson Evans (some weight); (2) Hall created a great risk of death to
      many people (great weight); (3) Hall committed the murder for
      pecuniary gain (great weight); and (4) Hall committed the murder of
      Blunt in an especially heinous, atrocious, or cruel manner (great
      weight). The trial court found one statutory mitigating circumstance:
      Hall’s capacity to conform his conduct to the requirements of the law
      was substantially impaired (some weight). The court also found the
      following nonstatutory mitigating circumstances: (1) Hall
      demonstrated appropriate courtroom behavior (minimal weight); (2)
      Hall’s family background included generational drug and alcohol use
      (some weight); (3) Hall’s family background included generational
      criminal behavior (some weight); (4) Hall did not grow up with good
      role models (some weight); (5) Hall grew up in a dangerous
      neighborhood that reinforced drug use (some weight); (6) Hall may
      have been abused as a child (minimal weight); (7) Hall had many
      different living arrangements as a child (minimal weight); (8) Hall
      suffered from attention deficit disorder and is considered borderline
      mentally retarded (some weight); and (9) Hall has an extensive history
      of drug and alcohol abuse (minimal weight).

Hall v. State, 87 So. 3d 667, 669-71 (Fla. 2012) (footnote omitted).

      On October 16, 2013, Hall filed a motion for postconviction relief. Hall

appeals the denial of that motion and also petitions this Court for a writ of habeas

corpus.

                                  II. ANALYSIS

A. Ineffective Assistance of Trial Counsel

      Hall argues that trial counsel was ineffective for failing to object to the

introduction of evidence of uncharged offenses. Specifically, Hall contends that

                                         -5-
the State’s witness, Glenn, stated that Hall and others “do this kind of stuff,” and

this was a reference that Hall commits robbery or murder on a regular basis and

trial counsel should have objected to that testimony. Hall also takes issue with

statements made during the State’s closing argument, also allegedly referring to

uncharged crimes. However, this Court affirms the trial court’s denial of relief.

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

Washington, 466 U.S. 668 (1984), this Court explained that two requirements must

be met for ineffective assistance of counsel claims to be successful:

      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.

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


                                         -6-
action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).

      Regarding the prejudice prong of Strickland, “the defendant must show that

there is a reasonable probability that, ‘absent the [deficient performance], the

factfinder would have [had] a reasonable doubt respecting guilt.’ ” Dennis v.

State, 109 So. 3d 680, 690 (Fla. 2012)) (quoting Strickland, 466 U.S. at 695). “A

reasonable probability is a ‘probability sufficient to undermine confidence in the

outcome.’ ” Henry v. State, 948 So. 2d 609, 617 (Fla. 2006) (quoting Strickland,

466 U.S. at 694).

      “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, 109 So. 3d at 690.

      In this case, Hall has not demonstrated that counsel was deficient. Trial

counsel testified at the evidentiary hearing that he made a reasonable strategic

decision to not object during Glenn’s testimony and the cited portion of the State’s

closing argument. Specifically, trial counsel explained that he made a decision not

to object because he did not want to bring this issue to the jury’s attention.

Additionally, trial counsel explained during his testimony that “[Glenn] didn’t

reference other uncharged robberies[, s]he wasn’t that specific and [trial counsel]


                                         -7-
didn’t want her to get any more specific than she was.” Choosing not to object and

draw the jury’s attention to this area of the testimony was 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).

Therefore, Hall has failed to demonstrate deficiency.

      Additionally, Hall has not demonstrated prejudice. The challenged phrases

“do this kind of stuff” and “why do you do this” do not clearly reference uncharged

crimes as Hall contends. As the trial court concluded, “Glenn’s testimony on this

issue was not a feature of the trial nor was it a clear indication that [Hall] had

committed any collateral offenses.” In the context of the testimony, these

statements could also simply be referring to the actual incident and criminal acts

that are the subject of that proceeding. Also, the record demonstrates that the State

did not question or elicit testimony from Glenn regarding uncharged crimes, and

during closing argument, the State did not allude to or argue any uncharged crimes

or propensity towards criminal activity. Further, as trial counsel understood it and

as the trial court noted, “Glenn spoke in a colloquial dialect[,] her testimony did

not have verb-tense agreement, [and] she tended to mix up verbs and words.”

Therefore, there is not “a reasonable probability that, ‘absent the [remarks], the

factfinder would have [had] a reasonable doubt respecting guilt.’ ” Dennis, 109




                                          -8-
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, because Hall has failed to establish deficiency and prejudice,

we affirm the trial court’s denial of this claim.

B. Ineffective Assistance of Appellate Counsel & Cumulative Error

      In his habeas petition, Hall argues that appellate counsel was ineffective for

failing to raise a claim involving the introduction of evidence of uncharged crimes

on direct appeal. However, this claim is repetitive of the guilt phase issue raised in

his appeal of his postconviction motion and is procedurally barred. See Hardwick

v. Dugger, 648 So. 2d 100, 105 (Fla. 1994) (“[H]abeas 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 3.850 motion, or on matters that were

not objected to at trial.” (quoting Parker v. Dugger, 550 So. 2d 459, 460 (Fla.

1989))). Moreover, for the reasons explained above, this claim is without merit,

and appellate counsel cannot be deemed ineffective for failing to raise this non-

meritorious claims on direct appeal. See Rutherford v. Moore, 774 So. 2d 637, 643

(Fla. 2000). Therefore, we deny relief.

      Additionally, in the appeal of the denial of his postconviction motion as well

as in his habeas petition, Hall claims that he was denied a fundamentally fair trial

based on cumulative error. “However, where the individual claims of error alleged


                                          -9-
are either procedurally barred or without merit, the claim of cumulative error also

necessarily fails.” Israel v. State, 985 So. 2d 510, 520 (Fla. 2008) (citing Parker v.

State, 904 So. 2d 370, 380 (Fla. 2005)). Therefore, we affirm the summary denial

of this claim and also deny habeas relief.

C. Hurst

      Finally, we consider whether Hall 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 eight to four, we

conclude that Hall’s 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
      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)), cert. denied, No. 16-998 (U.S. May 22, 2017).

      Because the jury in this case recommended death by a vote of eight to four,

“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,


                                        - 10 -
because we cannot say that there is no possibility that the error did not contribute

to the sentence, the error in Hall’s 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 Hall’s postconviction guilt

phase claims, deny his guilt phase habeas claims, 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.
LAWSON, J., concurs specially with an opinion.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, 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).

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.


                                        - 11 -
CANADY, J., concurs.

An Appeal from the Circuit Court in and for Lake County,
     Don F. Briggs, Chief Judge - Case No. 352006CF002795BXXXXX
And an Original Proceeding – Habeas Corpus

Ali Andrew Shakoor, Assistant Capital Collateral Regional Counsel, Middle
Region, Temple Terrace, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Tayo Popoola,
Assistant Attorney General, Daytona Beach, Florida,

      for Appellee/Respondent




                                     - 12 -
