Supreme Court of Florida

____________

No. SC01-2523

____________

Appellant,

vs.

Appellee.

____________

No. SC02-1788

____________

Petitioner,

vs.

Respondents.

[September 11, 2003]

PER CURIAM.

Michael Rivera, a prisoner under the sentence of death, appeals an order

entered by the trial court denying his postconviction motion filed pursuant to

1. The facts of the case and our resolution of the issues raised on direct

appeal are set out in some detail in our prior opinion. See Rivera v. State, 561 So.

2d 536 (Fla. 1990).

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Florida Rule of Criminal Procedure 3.851. Rivera also petitions this Court for a

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

V, § 3(b)(9), Fla. Const. These cases have been consolidated. For the reasons set

out herein, we affirm the trial court's denial of postconviction relief and deny

habeas relief.

PROCEEDINGS TO DATE

At trial, Michael Rivera (Rivera) was convicted of the first-degree murder of

and mitigating evidence was presented, the jury unanimously recommended a death

sentence. See Rivera v. State, 561 So. 2d 536, 538 (Fla. 1990). The trial court

imposed a death sentence, finding the existence of four aggravating circumstances

(prior violent felony; murder committed during commission of an enumerated

felony; heinous, atrocious, or cruel (HAC); and cold, calculated, and premeditated

(CCP)) and one statutory mitigating circumstance (defendant under the influence of

extreme mental or emotional disturbance). Id. at 538 n.n.4-5. The trial court did

not find any nonstatutory mitigating factors in this case. Id. at 538. On direct

appeal, this Court affirmed Rivera's first-degree murder conviction and death

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sentence, but found that the record did not support the trial court's finding of the

CCP aggravator. Id. at 540. Although this Court invalidated the CCP aggravator,

we concluded: "On this record, we are persuaded that the one mitigating factor

weighed against the magnitude of the aggravating factors would render the same

result in the trial court below, absent the single invalidated aggravating

circumstance." Id. at 541.

Subsequently, Rivera filed a postconviction motion raising twenty claims.

See Rivera v. State, 717 So. 2d 477, 480 (Fla. 1998). The trial court held an

evidentiary hearing on some claims, but summarily denied others. Id. at 479-80.

On appeal of the trial court's denial of relief, this Court affirmed the trial court's

denial of postconviction relief on all but one issue. Id. at 485. This Court

remanded the case to the trial court, instructing it to hold an evidentiary hearing on

the sole issue of alleged penalty phase ineffective assistance of counsel (IAC),

stating: "Considering the volume and extent of [the 21] alleged mitigators in

comparison to the limited mitigation actually presented at trial, we agree with Rivera

that he warrants an evidentiary hearing on his claim of penalty phase ineffective

assistance of counsel." Id.

On April 26 and 27, 1999, the trial court held an evidentiary hearing regarding

the penalty phase IAC claim and subsequently entered an order denying relief. In

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its order, the trial court found that the penalty phase attorney's performance was

not deficient and that, even assuming some deficiency had been established, in light

of the mitigation evidence presented at the postconviction evidentiary hearing,

prejudice had not been established. In other words, the defendant was not

deprived of a reliable penalty phase proceeding.

Rivera now appeals and claims error in the trial court's denial of postconviction

relief on the penalty phase IAC claim after remand, and also claims the trial

court denied him due process in a number of evidentiary rulings at the hearing.

APPEAL

As summarized by this Court in a previous opinion, Rivera argued in his

postconviction motion that penalty phase counsel should have investigated and

presented the following evidence of mitigation:

(1) dissociative disorder; (2) psychosexual disorder; (3) history of

hospitalization for mental disorders; (4) sexual abuse as a child; (5)

expressions of remorse; (6) a substantially impaired capacity to

appreciate the criminality of his conduct or to conform his conduct to

the requirements of the law; (7) childhood trauma; (8) developmental

age; (9) long-term personality disorder; (10) acceptable behavior at

trial; (11) reduction in sentence by trial judge in prior case of sexual

battery; (12) under influence of drugs at time of offense; (13)

non-applicability of the aggravators; (14) drug abuse problem; (15)

character testimony from family members; (16) psychotic depression

and feelings of rage against himself because of strong pedophilic

urges; (17) no drug or alcohol treatment program; (18) substantial

domination by alternate personality; (19) artistic ability; (20) capable of

2. A prior opinion from this Court in this case reflects that evidence on the

following issues was introduced at trial: (2) psychosexual disorder; (4) sexual abuse

as a child; (6) a substantially impaired capacity to appreciate the criminality of his

conduct or to conform his conduct to the requirements of the law; (9) long-term

personality disorder; (15) character testimony from family members; and (18)

substantial domination by alternate personality. Rivera, 717 So. 2d at 484-85.

The record reflects that evidence of the following, although not discussed in

the direct appeal opinion, was in fact admitted during the penalty phase: (3) history

of hospitalization for mental disorders–Dr. Ceros-Livingston testified that Rivera

was treated at Florida State Hospital in the sex offender program while serving time

in prison and Rivera's mother testified that he went to the sex offender program;

(14) drug abuse problem–Dr. Ceros-Livingston testified that Rivera had a history of

drug usage and possibly had a drug abuse problem; (16) psychotic depression and

feelings of rage against himself because of strong pedophilic urges–Dr. Ceros

Livingston testified that Rivera had an identity problem in relationship to his sexual

behavior and that his behavior was consistent with someone who was anxious and

depressed and who would engage in self-damaging acts; (19) artistic ability–Lisa

Keena, Rivera's former girlfriend, testified that Rivera has artistic abilities and

Rivera's mother testified that he is artistic; (20) capable of kindness–Peter Rivera

testified that Rivera was very helpful when Peter needed help; (21) family loves

him–Rivera's mother and Rivera's siblings, Elisa, Miriam, and Peter testified that

they love him.

3. At the evidentiary hearing, Rivera made no attempt to present evidence of

the following issues: (1) dissociative disorder; (5) expressions of remorse; (10)

acceptable behavior at trial; and (13) non-applicability of the aggravators.

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kindness; and (21) family loves him.

Rivera, 717 So. 2d at 484-85. Our review of the evidentiary hearing transcript and

the record in this case leads us to conclude that many of the issues now raised on

appeal may be disposed of without extensive discussion because they are either

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concerning trial counsel's failure to present more detailed penalty phase evidence of

Rivera's drug use, are discussed in turn.

INEFFECTIVE ASSISTANCE OF COUNSEL

In order to prove a claim of ineffective assistance of counsel, a defendant

must establish two elements:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the "counsel" guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable. 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.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, "[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. We have held that for a defendant to prevail in an IAC

claim, there must be a demonstration that “counsel’s errors deprived [defendant] of

a reliable penalty phase proceeding.” Hildwin v. Dugger, 654 So. 2d 107, 110 (Fla.

1995).

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This Court has characterized IAC claims as presenting a mixed question of

law and fact subject to plenary review based on the Strickland test. See Stephens

v. State, 748 So. 2d 1028, 1032 (Fla. 1999) (citing Rose v. State, 675 So. 2d 567,

571 (Fla. 1996)). “The appellate court must defer to the trial court's findings on

factual issues but must review the court's ultimate conclusions on the deficiency

and prejudice prongs de novo." Bruno v. State, 807 So. 2d 55, 62 (Fla. 2001).

This Court has long held that trial counsel has a duty to conduct a reasonable

investigation into the defendant’s background for possible mitigating evidence. See

Rose v. State, 675 So. 2d 567, 571 (Fla. 1996). We have explained that “[t]he

failure to investigate and present available mitigating evidence is a relevant concern

along with the reasons for not doing so.” Id. (citing Hildwin). The United States

Court of Appeals for the Eleventh Circuit has succinctly explained the test to

ascertain whether counsel’s failure to investigate and present mitigating evidence

was deficient:

First, it must be determined whether a reasonable investigation should

have uncovered such mitigating evidence. If so, then a determination

must be made whether the failure to put this evidence before the jury

was a tactical choice by trial counsel. If so, such a choice must be

given a strong presumption of correctness, and the inquiry is generally

at an end. If, however, the failure to present the mitigating evidence

was an oversight, and not a tactical decision, then a harmlessness

review must be made to determine if there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the

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proceeding would have been different. Thus, it must be determined

that defendant suffered actual prejudice due to the ineffectiveness of

his trial counsel before relief will be granted.

Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988) (citation omitted). We

have repeatedly applied this same test and do so again today.

HISTORY OF DRUG USE

Rivera alleged that counsel was ineffective during the penalty phase of his

trial for failing to investigate and present mitigating evidence of a history of drug

use, including Rivera's drug use around the time of the murder. Rivera argues that

his history of drug use would support a finding of the statutory mitigator that at the

time of the murder he had a substantially impaired capacity to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law.

After the evidentiary hearing, the trial court rejected this claim and concluded:

"Defense counsel . . . made a strong effort to present to the jury the mitigating

factor that the Defendant was not able to appreciate the criminality of his conduct,

presenting evidence of the Defendant's drug usage and his cognitive decline."

In support of Rivera's IAC claim that trial counsel should have put on more

evidence of his drug use history, addiction, and dependence, several lay witnesses

testified at the evidentiary hearing that Rivera began drug use at an early age, that he

experimented with many types of drugs, and that he may have abused drugs.

4. The sentencing order in this case was filed on May 1, 1987. In the

sentencing order, the trial court stated:

In summary, the Court finds beyond a reasonable doubt that the

State has proven four aggravating statutory circumstances and the

defense has proven one mitigating statutory circumstance. In addition,

the Court finds no nonstatutory mitigating circumstances from the

evidence at the trial or the sentencing procedure. It is therefore the

opinion of the Court after weighing the aggravating and mitigating

circumstances, that there are sufficient aggravating circumstances to

justify the sentence of death.

We do not evaluate the trial court's sentencing order regarding its consideration of

the mitigating evidence presented in this case pursuant to Campbell v. State, 571

So. 2d 415 (Fla. 1990), because the trial court's order was issued before this Court

decided Campbell. This Court has previously held that our decision in Campbell is

to only be applied prospectively. See Gilliam v. State, 582 So. 2d 610, 612 (Fla.

1991). Campbell, of course, now requires trial courts to elaborate in great detail

their consideration of the mitigating evidence presented. Hence, at the time of the

trial of this case there was no specific mandate that the trial court refer to all the

mitigating material referred to during the penalty phase of the proceedings.

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However, the trial court found in its order denying postconviction relief that "the

evidence presented by appellate counsel during the evidentiary hearing was

practically identical to the evidence presented by [trial counsel] during trial."

The trial court essentially concluded that the fact that some lay witnesses

could have given slightly more detail about Rivera's history of drug use than the

defense expert actually presented in this case was insufficient to meet the Strickland

standard that counsel made errors so serious that counsel was not functioning as

5. As noted above, the trial court found the statutory mitigator of under the

influence of extreme mental or emotional disturbance.

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We must determine whether the record supports this factual finding. The

record reflects that Dr. Patsy Ceros-Livingston, the defense expert who evaluated

Rivera for trial, spent some seven and one-half hours interviewing Rivera. She then

testified during the penalty phase before the jury and trial court that Rivera began

using marijuana, LSD, quaaludes, and beer in 1996 and that as an adult he used

"base rock" and marijuana. She opined at trial that there was some indication that

Rivera might have problems in the area of drug abuse. As reflected in the direct

appeal opinion in this case, Dr. Ceros-Livingston also testified in front of the

penalty phase jury that Rivera's capacity to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law was impaired. Rivera, 561

opinions about Rivera's mental health constituted the only expert opinions

presented to the penalty phase jury because the State did not offer its own mental

health expert to challenge her findings.

The trial court pointed out in its order that at the original penalty phase,

defense counsel presented a "plethora" of mitigating evidence similar to that

presented at the postconviction hearing, through Dr. Ceros-Livingston's testimony,

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and, in addition, the trial court noted, Dr. Ceros-Livingston testified at the

evidentiary hearing that even in light of additional information given to her recently,

she would not now change her original opinions of Rivera's mental health offered at

trial. See Brown v. State, 755 So. 2d 616, 636 (Fla. 2000) (finding that trial

counsel’s performance was not deficient for failing to give a mental health expert

additional information because the expert testified at the evidentiary hearing that the

collateral data would not have changed his testimony); Breedlove v. State, 692 So.

2d 874, 877 (Fla. 1997) (finding that there was not a reasonable probability that the

result of the penalty phase would have been different because the psychologists

who testified at the penalty phase stated that additional information, while helpful,

did not change their initial opinions). We conclude that the record supports the trial

court findings that while perhaps not presented in the same detail, defense counsel

did present substantial evidence of mitigation at the original penalty phase.

We further find no error in the trial court's denial of relief as it relates to

Rivera's sub-claim that trial counsel should have put on evidence that he was under

the influence of cocaine at the time of the murder. At the evidentiary hearing expert

witness Dr. Faye Sultan, a clinical psychologist with a specialty in sexual child

abuse and disorder, testified that she thought Rivera was under the influence of

cocaine and other drugs at the time of the murder in this case. In addition, expert

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witness Dr. Milton Burglass, a psychiatrist with a specialty in addictive disorders,

testified at the evidentiary hearing that someone who experiences withdrawal

symptoms from cocaine would go into what is very much like a depressive state.

In Dr. Burglass's opinion, Rivera's capacity to appreciate the criminality of his

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

impaired due to his cocaine use. Dr. Burglass further stated that cocaine use would

have increased Rivera's already deviant sexual behaviors. However, in rejecting this

claim, the trial court held "the fact that defense counsel has found experts that can

offer more favorable testimony twelve years later does not establish a basis for

relief nor does it establish that the presentation was deficient." As noted above, Dr.

Ceros-Livingston testified as to the existence of the "substantially impaired"

mitigator at the penalty phase.

This Court has held that counsel's reasonable mental health investigation and

presentation of evidence is not rendered incompetent "merely because the

defendant has now secured the testimony of a more favorable mental health

expert." Asay v. State, 769 So. 2d 974, 986 (Fla. 2000). We note that Dr. Sultan

and Dr. Burglass relied heavily upon and concurred largely with Dr. Ceros6.

The penalty phase record reflects that Rivera consistently maintained his

innocence in this case when he spoke to Dr. Ceros-Livingston. He told her that on

the day of the murder he went to a coin shop in the mall, then went to smoke some

crack with his brother, then went to a carnival, later went out to buy more crack,

and finally went home. Thus, she was without any information regarding Rivera

being under the influence of drugs at the time of the murder. Apparently, none of

Rivera's other self-reporting indicated to Dr. Ceros-Livingston that he tended to

commit crimes while being under the influence of drugs. In fact, Rivera told Dr.

Ceros-Livingston that after he molested another girl, (involving an unrelated prior

crime), he later went and smoked marijuana. Further, Dr. Ceros-Livingston related

that Rivera would not use marijuana before interacting with women because it

causes him to lose his train of thought. In its order denying 3.850 relief, the trial

court noted, "The defendant continues to claim his innocence to this day. He has

not shown remorse for the crime."

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experts' opinions largely consistent with Dr. Ceros-Livingston's penalty phase

testimony, but it is important to note that Dr. Ceros-Livingston's testimony at the

penalty phase explicitly supported the statutory mitigator that at the time of the

murder he had a substantially impaired capacity to appreciate the criminality of his

conduct or to conform his conduct to the requirements of law. See Rivera, 561

So. 2d at 538.

Additionally, the evidentiary hearing record supports the trial court's finding

that the lay witness testimony offered at the evidentiary hearing actually failed to

support the defense theory now asserted that Rivera was under the influence of

drugs at the time of the murder. None of the witnesses were able to testify as to his

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condition at the time of the crime. We also agree with the trial court's denial of this

claim because the claim appears to represent a second-guessing and hindsight view

of defense counsel's presentation of penalty phase evidence. See Cherry v. State,

659 So. 2d 1069, 1073 (Fla. 1995) (stating that "[t]he standard is not how present

counsel would have proceeded, in hindsight, but rather whether there was both a

deficient performance and a reasonable probability of a different result"). The trial

court pointed out in its order denying postconviction relief that Rivera has

consistently maintained his innocence in this case–a position that largely contradicts

Dr. Sultan's and Dr. Burglass's expert opinions that he committed the crime but

was under the influence of drugs at the time.

CHILDHOOD TRAUMA, DEVELOPMENTAL AGE, AND LACK OF DRUG

OR ALCOHOL TREATMENT PROGRAM

At the evidentiary hearing, the defense presented testimony of Rivera's

childhood trauma, developmental age, and his failure to receive drug or alcohol

treatment earlier in his life. Rivera argues that trial counsel should have presented

evidence of these three aspects of his life during the penalty phase in support of

nonstatutory mitigation. First, regarding childhood trauma, Danny Franklin, Andy

Ramos, and Dr. Sultan testified at the evidentiary hearing about Rivera's sometimes

tense relationship with his alcohol-using father. Second, Dr. Sultan testified that

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Rivera's developmental age may have been younger than his actual age at the time

of the murder because she observed him demonstrate impulsivity, emotionality, and

a lack of good judgment. Third, Dr. Sultan testified that apparently Rivera never

had the benefit of any drug or alcohol treatment.

In its order denying relief, the trial court concluded that prejudice had not

been established on this claim, and that "[e]ven if this 'additional' information had

been available during the penalty phase, there is no reasonable probability that the

balancing of the aggravating factors and mitigating factors would have resulted in a

life sentence. The aggravating factors would still far outweigh the mitigation

presented." Hence, the trial court concluded that this particular evidence of

mitigation was not of such significance as to make a meaningful difference in this

case. The trial court noted that although this Court struck the CCP aggravator in

this case on direct appeal, several important and weighty aggravators still remain,

including prior violent felony, murder committed during commission of an

enumerated felony, and HAC.

In Tompkins v. Dugger, 549 So. 2d 1370, 1373 (Fla. 1989), the defendant

claimed that trial counsel was ineffective for failing to present mitigating evidence

including his abusive childhood and an addiction to drugs and alcohol. This Court

agreed that counsel had been deficient, but agreed with the trial court's finding that

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in light of the three aggravators (prior violent felony, murder committed during

commission of a sexual battery, and HAC), that "this evidence would not have

affected the penalty in light of the crime and the nature of the aggravating

circumstances." Id. Similarly, in Breedlove v. State, 692 So. 2d 874, 877 (Fla.

1997), the defendant alleged that trial counsel should have elicited more mitigating

testimony from lay witnesses. This Court held that even if that testimony had been

presented, the aggravators of HAC, commission during a felony, and prior violent

felonies would have "overwhelm[ed] potential mitigating factors presented by

witnesses." Id. at 878.

We find no error in the trial court's conclusion that the remaining aggravators

in this case would have overwhelmed the evidence of Rivera's childhood trauma,

developmental age, and his failure to receive drug or alcohol treatment. This issue

must also be evaluated in the context of Dr. Ceros-Livingston presenting detailed

evidence of defendant's troubled background. Because this case involves a brutal

abduction, rape, and child-murder involving strong aggravators that would not have

been significantly impacted by the weight of the proposed nonstatutory mitigation,

the trial court concluded that prejudice had not been sufficiently demonstrated

under this portion of his IAC claim. In other words, the trial court concluded that

Rivera failed to show that the additional evidence regarding his childhood trauma,

7. 373 U.S. 83 (1963) (holding that "suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or punishment, irrespective of the good faith or

bad faith of the prosecution").

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developmental age, and failure to receive drug or alcohol treatment was sufficient to

undermine confidence in the outcome of his original penalty phase proceeding. See

Strickland, 466 U.S. at 694. We find no error in this conclusion.

TRIAL COURT'S EVIDENTIARY RULINGS

Rivera also challenges five of the trial court's rulings on evidentiary matters

during the postconviction evidentiary hearing.

First, Rivera alleges that the trial court erred when during the direct

examination of witness Mark Peters, the trial court did not permit defense counsel

to establish Peters' availability as a penalty phase witness at the time of trial. In this

Court's first 3.851 opinion in this case, we considered Rivera's IAC claim regarding

Peters as a potential alibi witness and his testimony being possibly newly

482-83. In our previous opinion we stated: "Peters left Orlando after giving his

information to both the police and Rivera's counsel, Edward Malavenda. He

testified at the evidentiary hearing that he did not tell the police he was leaving and

did not remember telling Malavenda he was leaving." Id. at 482. Thus, the trial

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court did not abuse its discretion in sustaining the State's objection to the defense's

question about Peters' contact with trial counsel in this case, because Peters'

unavailability had already been established and reviewed in this case. Additionally,

Rivera has not sufficiently articulated a reason that Peters' availability should be

relitigated in view of our prior treatment of the issue and our limited remand.

Second, Rivera claims that the trial court erred when it refused to consider

that two of his prior violent felony convictions had been vacated. Rivera argues

that the reversals were relevant to a prejudice analysis because at the penalty phase,

the State presented evidence that Rivera was convicted of four separate convictions

and, therefore, those convictions affected the weight of the prior conviction

aggravator. However, this issue is procedurally barred as this Court already

considered it in the first 3.851 opinion. We held: "Despite the reversal of two of

Rivera's prior violent felony convictions, he still has three other prior violent felony

convictions which support this aggravator, thus precluding resort to the Supreme

Court's decision in Johnson [v. Mississippi, 486 U.S. 578 (1988)] as a basis for

relief." Rivera, 717 So. 2d at 486. Therefore, we find that the trial court did not

abuse its discretion in sustaining the State's objection to the defense's attempted

relitigation of the vacated convictions.

Third, Rivera claims that the trial court erroneously sustained the State's

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hearsay objection to witness Peter Rivera's answer to one of the defense's

questions on direct examination. At the evidentiary hearing, the following exchange

was made:

[RIVERA'S COUNSEL]: And at some point you know that the other

boys stopped going to Bob Donovan as well?

[PETER RIVERA]: Yea. And it pertained to what they had said--

[STATE]: Objection, hearsay.

The record reflects that the trial court's ruling on the matter was based on

relevancy. Therefore, we find no error in the trial court sustaining an objection to

the witness's answer. While the fact that the witness knew that other boys stopped

seeing Donovan appears appropriate testimony, as it reflects his personal

knowledge of the matter under section 90.604, Florida Statutes (2001), his

continued statement on "what they had said" was simply nonresponsive to defense

counsel's question. Further, the additional statement was not claimed to prove or

disprove a material fact. See § 90.401, Fla. Stat. (2001). Because the statement

was nonresponsive to the question and not relevant to the proceedings, we find that

the trial court did not abuse its discretion in sustaining the State's objection.

Fourth, Rivera claims that the trial court erroneously sustained the State's

relevance objection when defense counsel asked witness Miriam Rivera about her

8. At the evidentiary hearing, the following exchange was made:

[RIVERA'S COUNSEL]: And based on your own use of the cocaine

and the crack, what would that tell you or what did that make you

think about what Michael was doing?

[MIRIAM RIVERA]: Well, I myself knew it's a very addictive

substance. And just by the way he was acting, I would tell by my own

use and what I had seen from another roommate what he was doing

and what he was going through.

[RIVERA'S COUNSEL]: And what would you think that he was

going through?

[STATE]: Objection.

. . . .

[RIVERA'S COUNSEL]: I'm going to go back for a second just a

little bit about the drug use. When you were using crack cocaine, were

you still working at the time?

[MIRIAM RIVERA]: Yes.

[RIVERA'S COUNSEL]: Okay. When were you using crack cocaine

in - -

[STATE]: Objection, Your Honor. Same objection, Judge.

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own crack cocaine use and what she thought Rivera would have been going

intended to qualify Miriam as an expert on substance abuse and on the effects of

cocaine. Counsel answered in the negative, whereupon the trial court sustained the

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objection.

The record reflects that the State's objection to the defense's questioning of

Miriam Rivera about her personal drug use was tantamount to an objection based

either on speculation or on relevance. Either way, it appears the trial court correctly

sustained the objection. First, Miriam's testimony about what Rivera was

experiencing would not have been based on her own personal knowledge. See §

90.604, Fla. Stat. (2001). Second, testimony about Miriam's own drug abuse

would not prove or disprove a material fact as to Rivera's drug use. See § 90.401,

Fla. Stat. (2001). Because the line of questioning regarding Miriam's own drug use

was not relevant and because she was apparently being asked to speculate on

another person's drug use experience, we find that the trial court did not abuse its

discretion in sustaining the State's objection.

Fifth, Rivera claims that the trial court erroneously sustained the State's

speculation objection when defense counsel asked trial counsel: "Are you now

saying then that in your opinion just nothing would have mattered in this case as to

what you presented during the penalty phase?" After the State made what was

tantamount to a speculation objection and the trial court asked Rivera's counsel to

rephrase the question, counsel asked: "In your legal opinion that no matter what

you presented to the jury [sic], it would have not helped Michael?" Again, the State

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raised an objection, stating that the question did not ask for a legal opinion. The

trial court sustained the objection. Counsel then took the opportunity to rephrase

the question and to ask it properly, when, after the State had twice objected to the

wording of the aforementioned questions, counsel asked: "You stated before that a

few things about your theory [sic]. Would it have helped you to have presented

more evidence? Would it have helped Michael to present more evidence in your

opinion?" The State did not object to this question or its answer.

The record reflects that initially, this line of questioning involved the witness's

speculation about what a jury might find, instead of what he, as an attorney, would

consider helpful to the defense. We find the trial court did not abuse its discretion

in sustaining the objection because trial counsel could not have had personal

knowledge of what other evidence would have made a difference to the jury in this

case. See § 90.604, Fla. Stat. (2001). However, the record also reflects that

defense counsel rephrased the question when inquiring about trial counsel's legal

opinion about the penalty phase evidence and this subsequent questioning cured

any alleged prejudice.

HABEAS CORPUS

In the petition for writ of habeas corpus, Rivera alleges that (1) his death

sentence violates the Sixth and Fourteenth Amendments of the U.S. Constitution,

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pursuant to Ring v. Arizona, 536 U.S. 584 (2002), and (2) appellate counsel was

ineffective for failing to raise numerous issues on appeal.

First, we address Rivera's claim that his death sentence should be invalidated

due to the United Supreme Court's decision in Ring. Rivera asserts that Florida's

capital sentencing scheme violates the United States Constitution under the holding

of Ring. This Court addressed similar contentions in Bottoson v. Moore, 833 So.

2d 693 (Fla.), cert. denied, 123 S. Ct. 662 (2002), and King v. Moore, 831 So. 2d

143 (Fla.), cert. denied, 123 S. Ct. 657 (2002), and, while there was no single

majority view expressed, we denied relief. We have since rejected numerous similar

claims and find that Rivera is likewise not entitled to relief on this claim. See, e.g.,

Chandler v. State, 28 Fla. L. Weekly S329 (Fla. Apr. 17, 2003); Grim v. State, 841

So. 2d 455 (Fla. 2003); Lawrence v. State, 28 Fla. L. Weekly S241 (Fla. Mar. 20,

2003); Banks v. State, 842 So. 2d 788 (Fla. 2003); Lugo v. State, 845 So. 2d 74

(Fla. 2003); Kormondy v. State, 845 So. 2d 41 (Fla. 2003); Doorbal v. State, 837

So. 2d 940, 963 (Fla. 2003), cert. denied, No. 02-10379 (U.S. June 27, 2003);

Anderson v. State, 841 So. 2d 390 (Fla. 2003); Conahan v. State, 844 So. 2d 629

(Fla. 2003); Lucas v. State, 841 So. 2d 380 (Fla. 2003); Porter v. Crosby, 840 So.

2d 981, 986 (Fla. 2003); Spencer v. State, 842 So. 2d 52 (Fla. 2003); Fotopoulos

v. State, 838 So. 2d 1122, 1136 (Fla. 2002); Bruno v. Moore, 838 So. 2d 485, 492

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(Fla. 2002); Chavez v. State, 832 So. 2d 730, 767 (Fla. 2002), cert. denied, 71

U.S.L.W. 3790 (U.S. June 23, 2003); Marquard v. State, Nos. SC00-253 & SC00-

1540 (Fla. Nov. 21, 2002). Additionally, we note that the jury unanimously

recommended the death penalty in this case, and the trial court found the

aggravating circumstances of previous conviction of a violent felony and

commission of the murder in the course of an enumerated felony.

Second, we address Rivera's claim, involving four sub-claims, that appellate

counsel was ineffective. The issue of appellate counsel’s effectiveness is

appropriately raised in a petition for writ of habeas corpus. See Freeman v. State,

761 So. 2d 1055, 1069 (Fla. 2000). When evaluating an ineffectiveness claim, this

Court must determine the following:

[F]irst, whether the alleged omissions are of such magnitude as to

constitute a serious error or substantial deficiency falling measurably

outside the range of professionally acceptable performance and,

second, whether the deficiency in performance compromised the

appellate process to such a degree as to undermine confidence in the

correctness of the result.

Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986). See also Thompson v.

State, 759 So. 2d 650, 660 (Fla. 2000). “The defendant has the burden of alleging

a specific, serious omission or overt act upon which the claim of ineffective

assistance of counsel can be based.” Freeman, 761 So. 2d at 1069 (citing Knight

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v. State, 394 So. 2d 997 (Fla. 1981)). Each of the four sub-claims is discussed in

turn.

First, Rivera alleges that appellate counsel was ineffective for failing to appeal

the circuit court's denial of the motion to suppress statements and physical

evidence. The record reflects that at the motion to suppress hearing, the State

established through its witnesses that police routinely and consistently advised

Rivera of his Fifth Amendment rights in this case and that he understood and

waived them. In denying Rivera's suppression motion, the trial court stated:

Well, the Court finds that the matters sought to be suppressed

were freely and voluntarily made by the defendant after being advised

several times of his rights, and the defendant being aware of his rights,

and at no time - - not seeking to cut off the interrogation.

In fact, the defendant several times seeked deliberately to

prolong the interrogation. So the motion to suppress in its entirety is

denied.

Regarding the standard of review for motions to suppress, this Court has held:

[A]ppellate courts should continue to accord a presumption of

correctness to the trial court's rulings on motions to suppress with

regard to the trial court's determination of historical facts, but appellate

courts must independently review mixed questions of law and fact that

ultimately determine constitutional issues arising in the context of the

Fourth and Fifth Amendment and, by extension, article I, section 9 of

the Florida Constitution.

Connor v. State, 803 So. 2d 598, 608 (Fla. 2001). We reject this claim.

First, the record establishes that the trial court in this case logically found that

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according to the evidence, Rivera's Fifth Amendment rights were not violated

during the police investigation in this case. Second, in his petition, Rivera has not

shown how appellate counsel could have effectively argued the motion to suppress

according to the aforementioned standard of review. Third, we find no cognizable

fundamental error claim herein. This Court has stated that “appellate counsel cannot

be deemed ineffective for failing to raise non-meritorious claims on appeal or claims

that do not amount to fundamental error.” Happ v. Moore, 784 So. 2d 1091, 1095

(Fla. 2001) (citation omitted). Thus, we deny relief on this sub-claim because the

record reflects that Rivera's motion to suppress was without merit and Rivera has

not shown that appellate counsel's failure to appeal the motion was of such

magnitude as to constitute a serious error or substantial deficiency falling

measurably outside the range of professionally acceptable performance. Further,

Rivera has not shown that this alleged deficiency compromised the appellate

process to such a degree as to undermine confidence in the correctness of the

result.

Second, Rivera claims that appellate counsel should have appealed the trial

court's error in admitting irrelevant, inflammatory, and unfairly prejudicial

photographs at trial. Rivera alleges that presentation of the crime scene and the

process of identifying the victim's injuries could have been done with fewer

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photographs, and certainly without the videotape that was shown to the jury. At

trial, defense counsel objected only once during the medical examiner's testimony

about the photos, stating that the witness was not the person who took the

photographs. The objection was overruled. However, the record in this case

reflects that trial counsel did not object to the photos of the victim's dead body

(which were introduced during the medical examiner's testimony) as being unfairly

prejudicial. This Court has stated: “We have consistently held that appellate

counsel cannot be ineffective for failing to raise claims which were not preserved

due to trial counsel's failure to object.” Johnson v. Singletary, 695 So. 2d 263, 266

(Fla. 1996). Further, the admission of the pictures did not involve fundamental

error because the photographs were used during the medical examiner's testimony

to help explain the nature of the victim's injuries and the cause of her death. See

Larkins v. State, 655 So. 2d 95, 98 (Fla. 1995) (noting that this Court has upheld

the admissibility of photographs where they were relevant to "explain a medical

examiner's testimony, to show the manner of death, the location of wounds, and the

identity of the victim"). Because the issue of the allegedly prejudicial photographs

was not preserved for appeal, and because the issue did not involve fundamental

error, appellate counsel cannot be found ineffective for failing to raise the claim.

Although trial counsel did not preserve a prejudice objection to the

9. Richardson v. State, 246 So. 2d 771 (Fla. 1971). In Richardson, this

Court said: "The trial court has discretion to determine whether the [State's]

non-compliance [with its discovery obligation] would result in harm or prejudice to

the defendant, but the court's discretion can be properly exercised only after the

court has made an adequate inquiry into all of the surrounding circumstances." Id.

at 775.

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photographs in evidence, the record reflects that he did object to a video of the

crime scene being shown to the jury. Trial counsel basically objected to the video

being cumulative evidence (because of its similarity to the photos), and asked for a

during discovery. Trial counsel made a motion for mistrial, which was denied.

Rivera does not articulate in his petition how or why the videotape footage was

unfairly prejudicial and admits that the video footage was similar to the photos in

evidence, to which he did not object. This Court has stated: “Most successful

appellate counsel agree that from a tactical standpoint it is more advantageous to

raise only the strongest points on appeal and that the assertion of every conceivable

argument often has the effect of diluting the impact of the stronger points.” Atkins

v. Dugger, 541 So. 2d 1165, 1167 (Fla. 1989). Thus, we conclude counsel's failure

to appeal the admission of the photographs and videotape was not of such

magnitude as to constitute a serious error or substantial deficiency falling

measurably outside the range of professionally acceptable performance. This

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Court has held: "The test for admissibility of photographic evidence is relevancy

rather than necessity." Pope v. State, 679 So. 2d 710, 713 (Fla. 1996). See also

Provenzano v. Dugger, 561 So. 2d 541, 549 (Fla. 1990) ("Photographs must only

be excluded when they demonstrate something so shocking that the risk of

prejudice outweighs its relevancy."). Further, even assuming the video footage was

not relevant, we conclude that any error was harmless. See Almeida v. State, 748

So. 2d 922, 930 (Fla. 1999) (finding admission of irrelevant autopsy photo

harmless "in light of the minor role the photo played in the State's case");

Thompson v. State, 619 So. 2d 261, 266 (Fla. 1993) (finding error in admission of

irrelevant autopsy photographs harmless "given the testimony of the eyewitness, the

medical examiner, and the appellant himself, and the other photographs admitted

into evidence").

Thus, we conclude that appellate counsel was not ineffective for failing to

appeal the unpreserved issue of the admission of photographs in this case.

Additionally, we find that appellate counsel's failure to appeal the videotape issue

did not compromise the appellate process to such a degree as to undermine

confidence in the correctness of the result.

Third, Rivera claims that appellate counsel was ineffective for failing to

appeal the denial of his motion for change of venue. This Court has defined the

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defendant's burden to merit a change of venue as follows: "T]he defendant must

show inherent prejudice in the trial setting or facts which permit an inference of

actual prejudice from the jury selection process . . . ." McCaskill v. State, 344 So.

2d 1276, 1278 (Fla. 1977). The standard of review for a trial court's failure to grant

a motion for change of venue is the abuse of discretion standard. See Davis v.

State, 461 So. 2d 67, 69 (Fla. 1984) ("An application for change of venue is

addressed to a trial court's sound discretion, and a trial court's ruling will not be

reversed absent a palpable abuse of discretion."). Importantly, Rivera has not

claimed that the composition of his actual jury prejudiced him to the point of not

receiving a fair trial. See Suarez v. Dugger, 527 So. 2d 190, 193 (Fla. 1988)

(denying relief on habeas claim of ineffective appellate counsel for failure to appeal

denial of motion for change of venue because "[t]here is no claim that the jury, as

constituted, did not accord Suarez a fair and reliable trial"). Because Rivera fails to

plead in the petition how the denial of his change of venue motion established

"actual prejudice" and how appellate counsel could have successfully argued that

the trial court abused its discretion, we find that Rivera has not shown how

appellate counsel's failure to appeal the denial of the change of venue motion was

of such magnitude as to constitute a serious error or substantial deficiency falling

measurably outside the range of professionally acceptable performance and that it

10. In his first cautionary instruction, the trial court indicated that he heard

"certain matters coming from the jury," but he could not tell what was said or who

was speaking. He stated: "They were comments pertaining, I think, to at least I

assume that they might be pertaining to testimony." He also described the jury

activity as "a back tone" and "some buzzing."

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compromised the appellate process to such a degree as to undermine confidence in

the correctness of the result.

Fourth, Rivera claims that appellate counsel was ineffective for failing to

appeal the trial court's denial of his motion for mistrial and the corresponding

request to question the jurors regarding improper juror conduct. The record

reflects that at two points during the trial, Rivera indicated to his attorney that he

heard a juror make a comment to the effect of: "I think he did it." On both

occasions, trial counsel brought the comment to the attention of the trial court.

Although no one else in the courtroom could identify which juror made a comment

or exactly what was said, the trial judge on both occasions cautioned the jury to not

the basis that a juror had improperly formed an opinion. The trial judge denied the

motion, stating that his two cautionary instructions were sufficient and that a mistrial

was not appropriate at that point.

This Court has held that the standard of review of a motion for mistrial is the

abuse of discretion standard when it stated:

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A ruling on a motion for a mistrial is within the sound discretion

of the trial court and should be "granted only when it is necessary to

ensure that the defendant receives a fair trial." Gore v. State, 784 So.

2d 418, 427 (Fla. 2001). The use of a harmless error analysis under

State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), is not necessary where

"the trial court recognized the error, sustained the objection and gave a

curative instruction." Gore, 784 So. 2d at 428. Instead, the correct

appellate standard of review is abuse of discretion. See id.

Smithers v. State, 826 So. 2d 916, 930 (Fla. 2002). We find that the trial court's

cautionary instructions in this situation were reasonable and that he did not abuse

his discretion by finding that the alleged juror conduct did not meet the standard of

warranting a mistrial. Accordingly, appellate counsel cannot be found ineffective

for declining to raise this nonmeritorious issue on appeal. See Atkins v. Dugger,

541 So. 2d 1165, 1167 (Fla. 1989) (acknowledging that appellate counsel often

makes a tactical decision to only raise the strongest points on appeal).

Based on the foregoing, we affirm the trial court's denial of 3.851 relief and

deny habeas corpus relief.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

ANSTEAD, C.J., concurring in part and dissenting in part.

-33-

I fully concur in the majority opinion, except for its discussion of the

decision in Ring v. Arizona, 536 U.S. 584 (2002).

Two Cases Consolidated:

An Appeal from the Circuit Court in and for Broward County,

Paul Backman, Judge - Case No. 86-11716CF10 and

An Original Proceeding - Habeas Corpus

Martin J. McClain, Special Assistant CCRC, and Suzanne Myers, Assistant

CCRC, Office of the Capital Collateral Regional Counsel - South, Fort Lauderdale,

Florida,

for Appellant/Petitioner

Charles J. Crist, Jr., Attorney General, and Celia A. Terenzio, Assistant Attorney

General, Fort Lauderdale, Florida,

for Appellee/Respondents