Supreme Court of Florida

____________

No. SC12-1204

____________

RICHARD ALLEN JOHNSON,

Appellant,

vs.

STATE OF FLORIDA, 

Appellee.

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No. SC12-2464

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RICHARD ALLEN JOHNSON, 

Petitioner,

vs.

MICHAEL D. CREWS, etc., 

Respondent.

[January 9, 2014]

PER CURIAM.

Richard Allen Johnson, who was twenty-three years old at the time of the 

crime, was convicted of the first-degree murder, kidnapping, and sexual battery 

with great force of Tammy Hagin. This Court affirmed his convictions and 
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sentence of death on direct appeal. Johnson v. State, 969 So. 2d 938, 962 (Fla. 

2007). Johnson now appeals the denial of his initial motion for postconviction 

relief filed pursuant to Florida Rule of Criminal Procedure 3.851 and petitions this 

Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), 

Fla. Const. For the reasons that follow, we affirm the postconviction court’s denial 

of relief and deny Johnson’s petition for a writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

On direct appeal, this Court summarized the facts underlying this crime as 

follows:

The victim in this case is Tammy Hagin. Johnson met Hagin 

on the evening of February 14, 2001, at a nightclub in Port St. Lucie. 

After Johnson and Hagin spent several hours together at the club, she 

accompanied Johnson to a residence he was sharing with others, 

including Johnson’s roommate, John Vitale. Hagin and Johnson had 

several drinks at the club and left with a bottle of rum Johnson 

purchased. Hagin’s brother and a friend, who were also at the club, 

followed in another car. Hagin and Johnson began drinking from the 

bottle on the drive to Johnson’s residence. At the house, Johnson and 

his guests had mixed drinks and played pool for several hours. 

Hagin’s brother and friend left after Johnson assured them he would 

get Hagin home. In the early morning hours of February 15, Vitale 

agreed to drive Hagin home to Vero Beach. Johnson, who did not 

have a driver’s license, also went along. Hagin was ambivalent about 

returning home. The threesome went to Savannas State Preserve, a 

park where Johnson and Hagin had consensual sex while Vitale 

waited a short distance away. Afterward, Hagin remained uncertain 

whether she wanted to go home, so Vitale returned to the house in 

Port St. Lucie.

There an argument ensued. A neighbor, Catherine Shipp, heard 

a woman screaming. When Shipp opened her front door a few 

minutes later, she heard the woman say, “I want to go home. Just let 
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me go.” Shipp saw Johnson and Vitale outside the car, holding the 

car doors to prevent Hagin from exiting. According to Shipp, Hagin 

ultimately got out of the car. Johnson grabbed her from behind, 

picked her up, and took her inside the house. The woman kicked her 

feet, grabbed the door frame, and yelled, “I don’t want to go in and 

clean up.”

The commotion involving Hagin awoke other residents in the 

house where Johnson and Vitale were living. Thomas Beakley shared 

a bedroom with his girlfriend, Stacy Denigris, next to the bedroom 

Johnson shared with Vitale. Beakley heard a woman scream and then 

cry, and awoke Denigris, who left the room to check on the noise. 

Awakened by Beakley, Denigris heard a girl cry and say that she 

wanted to go home. Denigris opened the bedroom door to see a 

woman with brown hair holding onto the door frame of Johnson’s 

bedroom. Johnson grabbed the woman from behind and yanked her 

into the bedroom. Denigris then saw Vitale in the garage, where the 

pool table and seating area were located, spoke to him there for a few 

minutes, and returned to bed.

Vitale, who had agreed to plead guilty to accessory to murder 

for a twenty-two-year sentencing cap, testified for the State. He stated 

that Hagin was loudly demanding to go to the bathroom and be taken 

home at the point when Johnson pulled her into his bedroom on the 

morning of February 15. The house then became quiet, and Vitale lay 

on the couch. Johnson eventually emerged from the bedroom and 

went into the bathroom. Vitale looked into the bedroom and saw that 

Hagin appeared to be sleeping. Johnson came out of the bathroom, 

found Vitale in the garage, and told him that Hagin was “gone.” 

Asked what he meant, Johnson said he had broken her neck. Vitale 

testified that Johnson eventually told him that it takes longer to break 

someone’s neck than he thought, and—over defense objection—that 

Hagin said as she was being strangled that she wanted to see her 

children.

Acting together, Johnson and Vitale wrapped Hagin’s body in a 

deflated air mattress and placed it in the trunk of Vitale’s car. The 

two men attempted to enlist the help of Johnson’s friend, Shane Bien, 

in disposing of the body at sea. Bien allowed Johnson to call boat 

rental businesses and gave Johnson a fishing pole so it would appear 

they were fishing as they disposed of the body. According to Bien, 

Johnson said he’d killed a woman who was “the most annoying 

person he had ever met” and who “had tried to stab him with an 
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object.” Johnson showed Bien the outline of a body wrapped in an air 

mattress in the trunk of Vitale’s car.

Using money from Hagin’s purse, Johnson and Vitale 

purchased a large cooler, [three] concrete blocks, a chain, and a 

padlock. They returned to the Savannas State Preserve, where they 

[rented a canoe and] submerged the body in several feet of water 

[attached to three concrete blocks, a chain, and a padlock. Records at 

the state park reflected that Vitale had rented a canoe the day of the 

murder.1

[Vitale and Johnson moved into a different residence the day of 

the murder; the move had been prearranged. The person with whom 

they moved in testified that Vitale and Johnson had a large cooler 

when they moved into the house. She also witnessed them washing 

Vitale’s vehicle, bleaching the floor mats, and tearing out a cushion 

on the back seat.]

] A fisherman discovered the body three days later.

Medical examiner Charles Diggs testified that Hagin died of 

strangulation in which the killer used both a ligature and a bare hand. 

Diggs testified that a strangulation victim starts to lose consciousness 

within fifteen to thirty seconds and that death occurs within three to 

four minutes. Hagin also had a superficial premortem cut on her scalp 

that was consistent with a knife wound, and bruises on her forehead 

and chin. There was also a postmortem laceration of her perineum, 

including the uterus, bladder, and vulva. Diggs could not rule out 

marine life as the cause of the damage to the perineum, although he 

said that marine animals will usually attack more than one area of the 

body. No semen was discovered in what remained of Hagin’s vagina 

or uterus. Her blood alcohol level was .186, of which .04 to .06 could 

have been the result of decomposition.

Johnson and Vitale were both arrested within days of the 

discovery of Hagin’s body. Vitale, questioned first, incriminated 

Johnson. Confronted with Vitale’s statement, Johnson stated that he 

was drunk and lost his mind when Hagin was killed. He then said that 

he and Hagin were having sex and she was not fighting him, but “I put 

my hand on her neck and she died.” Asked when he realized she was 

dead, he stated, “When we stopped having sex, when I got up and I 

 

1. The additional facts appearing in this quote are derived from the trial 

record in this case.
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said get up, and she didn’t get up.” Johnson adamantly denied 

mutilating Hagin’s body.

Testifying in his own behalf at trial, Johnson stated that Vitale, 

who acknowledged at trial that he is gay and admitted being in love 

with Johnson, argued with Hagin throughout the evening and morning 

of February 14-15. When Johnson, Hagin, and Vitale ultimately 

returned to the house after their trip to the Savannas park, all three 

were arguing. Johnson grabbed her to calm her down and pulled her 

into the room to keep from disturbing others sleeping in the house. 

He said that he and Hagin then had consensual sex and he passed out 

for about an hour, discovering she was dead only when he awoke. 

Johnson said that in his statement to police, he meant that he had 

placed his hand in the area of her neck during sex, but did not choke 

or kill her. He explained that when he said he lost control, he meant 

that he lost control of the alcohol, stating, “I couldn’t control how I 

was spinning, how I was standing.” He also stated that he meant that 

he discovered she was dead after he had passed out, not immediately 

after sex.

Johnson further testified that after learning Hagin was dead, he 

found and told Vitale. Johnson testified that Vitale responded by 

saying “you killed her,” and discouraged him from calling the police. 

Johnson believed that he had killed Hagin until he read Vitale’s 

statement, particularly Vitale’s assertion that Johnson stated he broke 

Hagin’s neck, which Johnson stated was false. Johnson testified that 

he eventually came to believe that Vitale had killed Hagin.

Johnson, 969 So. 2d at 943-45.

The jury found Johnson guilty of first-degree murder and indicated in an 

interrogatory verdict that its finding was based on both premeditated and felony 

murder theories. Id. at 945. The jury also found Johnson guilty of kidnapping, 

sexual battery with great force, and theft of less than $300. Id.

After the penalty phase, the jury recommended death by a vote of eleven to 

one. Id. The trial court followed the jury’s recommendation and imposed a 
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sentence of death. Id. at 945-46. The trial court found three aggravators: (1) that 

the murder was committed while Johnson was on community control (moderate 

weight); (2) that the murder was committed during the commission of a sexual 

battery or kidnapping or both (great weight); and (3) that the murder was especially 

heinous, atrocious, or cruel (HAC) (great weight). Id. at 945.

The trial court found the statutory mitigator of no significant history of 

criminal activity and assigned it moderate weight. Id. However, the trial court 

rejected two statutory mental health mitigating circumstances—(1) that the murder 

was committed while Johnson was under the influence of extreme mental or 

emotional disturbance, and (2) that Johnson’s capacity to appreciate the criminality 

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

impaired. Id. The trial court also rejected the statutory age mitigator. Id.

The trial court found seven nonstatutory mitigators: (1) Johnson witnessed 

and suffered frequent physical and verbal abuse from his father (some weight); (2) 

he had a history of extensive drug and alcohol abuse and was under the influence 

of alcohol at the time of the murder (moderate weight); (3) he was sexually abused 

at a young age (some weight); (4) he was a slow learner (no weight); (5) he was 

able to show kindness to others (little weight); (6) he exhibited good behavior in 

court (little weight); and (7) he would adjust well to prison and would not commit 

further violent crimes (little weight). Id. at 945 & n.1. Finding that the 
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aggravators outweighed the mitigators, the trial court sentenced Johnson to death 

for the murder and imposed consecutive sentences of thirty years’ imprisonment 

for the kidnapping, life imprisonment for the sexual battery with great force, and 

sixty days’ imprisonment for petit theft. Id. at 945-46.

On direct appeal, Johnson raised nine claims.2

Johnson filed a timely rule 3.851 motion for postconviction relief, which 

was later amended, raising numerous claims.

 This Court rejected all of 

Johnson’s claims and affirmed his convictions and sentence of death. Id. at 962.

3 After holding several Huff 4

 

2. Johnson asserted the following claims: (1) the trial court erred in granting 

a challenge for cause to a potential juror over defense objection; (2) the trial court 

erred in admitting a statement by the victim while she was being strangled; (3) the 

trial court erred by allowing the State to proceed on a robbery count charged by 

information rather than indictment; (4) the trial court erred in permitting improper 

cross-examination of Johnson; (5) the evidence was insufficient to prove 

kidnapping, sexual battery, and felony murder; (6) his death sentence is 

disproportionate; (7) imposition of a death sentence is unconstitutional after 

Johnson rejected a plea bargain for a sentence of life imprisonment; (8) the trial 

court erred in finding HAC; and (9) six issues concerning the constitutionality of 

Florida’s capital sentencing laws and procedures. Id. at 946. 

3. Johnson raised the following claims: (1) section 119.19, Florida Statutes, 

and Florida Rule of Criminal Procedure 3.852 are unconstitutional; (2) requiring 

Johnson to file his rule 3.851 motion one year after his conviction became final 

violates due process and equal protection; (3) ineffective assistance of counsel for 

(A) failing to challenge the State’s theory of guilt; (B) failing to object to evidence 

and argument, including (i) the admission of knives into evidence, (ii) the 

reference to the knives during the medical examiner’s testimony, (iii) the 

prosecutor’s misleading comments during the medical examiner’s testimony 

regarding the victim’s perineal wounds being the result of “cutting,” (iv) the 

medical examiner’s characterization of the death as “heinous,” (v) Vitale’s 

testimony that Johnson wanted to have sex with the victim while she was sleeping, 
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hearings, the postconviction court granted an evidentiary hearing on some of 

Johnson’s claims and summarily denied the remaining claims.5

Thereafter, an evidentiary hearing was held over several days. At the 

hearing, Johnson presented testimony from the following individuals: John Vitale 

(Johnson’s co-defendant); Thomas Burns (Vitale’s trial defense counsel); Danielle 

Blount Fernandez (Johnson’s sister); and Dr. Jethro Toomer (an expert in forensic 

psychology). Johnson also presented testimony from the three defense attorneys 

who worked on his case: Albert Moore, who briefly represented Johnson until

 

(vi) improper cross-examination of Johnson, and (vii) not requesting a limiting 

instruction on Vitale’s testimony that the victim asked for her children when she 

was being strangled; (C) failing to effectively cross-examine Vitale; and (D) failing 

to protect Johnson’s Fifth and Sixth Amendment rights by encouraging a letter 

writing campaign between Johnson and Vitale; (4) the State’s use of Vitale as a 

State agent violated Massiah v. United States, 377 U.S. 201 (1964), Brady v. 

Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and 

Napue v. Illinois, 360 U.S. 264 (1959); (5) trial counsel were ineffective for failing 

to challenge the State’s theory of the cause of death; and (6) trial counsel were 

ineffective in the penalty phase for failing to investigate, prepare, and present 

mental health mitigation.

4. Huff v. State, 622 So. 2d 982 (Fla. 1993). The procedure set forth in 

Huff has since been codified in Florida Rule of Criminal Procedure 3.851(f)(5)(A).

5. An evidentiary hearing was granted and held on all except the following 

claims: section 119.19 and rule 3.852 are unconstitutional (Claim (1)); requiring 

Johnson to file his rule 3.851 motion one year after his conviction became final is 

unconstitutional (Claim (2)); failing to object to the admission of knives into 

evidence (Claim (3)(B)(i)); failing to object to reference to the knives during the 

medical examiner’s testimony (Claim (3)(B)(ii)); and failing to object to improper 

cross-examination of Johnson when the prosecutor twice asked Johnson whether 

witness Thomas Beakley was truthful (Claim (3)(B)(vi)).
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November 2002; Robert Stone, the lead counsel representing Johnson; and Thomas 

Garland, who was appointed to represent Johnson after Moore withdrew from the 

case. Following the conclusion of the evidentiary hearing, the postconviction court 

denied Johnson’s motion for postconviction relief.

On appeal of the postconviction court’s denial of relief, Johnson raises 

twelve claims. His postconviction claims on appeal are as follows: (1) trial 

counsel were ineffective in the guilt phase for failing to (A) properly object to the 

prosecutor’s misleading comments during the medical examiner’s testimony 

regarding the nature of the victim’s perineal wounds, (B) object to the medical 

examiner’s characterization of the death as “heinous,” (C) object to co-defendant 

Vitale’s testimony that Johnson wanted to have sex with the victim while she was 

sleeping, (D) effectively cross-examine and impeach Vitale, (E) request a limiting 

instruction to ameliorate the impact of Vitale’s testimony that the victim asked for 

her children while she was being strangled, and (F) protect Johnson’s Fifth and 

Sixth Amendment rights; (2) cumulative error in the guilt phase mandates reversal; 

(3) the State violated Massiah, Brady, and Giglio by using Vitale as a State agent; 

(4) trial counsel were ineffective during the penalty phase for failing to fully

investigate, prepare mitigation, and present mitigation; and (5) the trial court erred 

in summarily denying claims that trial counsel were ineffective for (A) failing to 

object to the admission of kitchen knives into evidence, (B) failing to object to the 
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medical examiner’s testimony concerning the knives, and (C) failing to object to 

impermissible cross-examination. Johnson has also filed a habeas petition raising 

a single claim: that appellate counsel was ineffective for failing to raise an alleged 

violation of Miranda v. Arizona, 384 U.S. 436 (1966), on direct appeal. For 

purposes of this opinion, some of these claims are combined or reorganized in the 

analysis that follows; however, we deny all of the claims raised.

ANALYSIS

I. Guilt-Phase Ineffective Assistance of Counsel Claims

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

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

succeed on an ineffective assistance of counsel claim, the defendant must satisfy 

two requirements: 

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. A court 

considering a claim of ineffectiveness of counsel need not make a 

specific ruling on the performance component of the test when it is 

clear that the prejudice component is not satisfied.

Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v. 

Wainwright, 490 So. 2d 927, 932 (Fla. 1986)). 
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To establish deficiency under Strickland, the defendant must prove that 

counsel’s performance was unreasonable under “prevailing professional norms.” 

Morris v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting Strickland, 466 U.S. at 

688). “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.” Strickland, 466 U.S. at 689. The defendant 

carries the burden to “overcome the presumption that, under the circumstances, the 

challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel 

v. Louisiana, 350 U.S. 91, 101 (1955)). “Judicial scrutiny of counsel’s 

performance must be highly deferential.” Id. “[S]trategic decisions do not 

constitute ineffective assistance of counsel if alternative courses have been 

considered and rejected and counsel’s decision was reasonable under the norms of 

professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).

As to the prejudice prong, the appropriate test is whether “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.” Strickland, 466 U.S. at 694.

Both prongs of the Strickland test present mixed questions of law and fact. 

Sochor v. State, 883 So. 2d 766, 771 (Fla. 2004). “In reviewing a trial court’s 
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ruling after an evidentiary hearing on an ineffective assistance of counsel claim, 

this Court defers to the factual findings of the trial court to the extent that they are 

supported by competent, substantial evidence, but reviews de novo the application 

of the law to those facts.” Mungin v. State, 932 So. 2d 986, 998 (Fla. 2006).

When a postconviction court summarily denies a claim, the following 

standard applies. Rule 3.851 provides certain pleading requirements for initial and 

successive postconviction motions. Fla. R. Crim. P. 3.851(e)(1)-(2). For example, 

the motion must state the nature of the relief sought, Fla. R. Crim. P. 

3.851(e)(1)(C), and must include “a detailed allegation of the factual basis for any 

claim for which an evidentiary hearing is sought.” Fla. R. Crim. P. 3.851(e)(1)(D). 

An evidentiary hearing should be held “whenever the movant makes a facially 

sufficient claim that requires a factual determination.” Gore v. State, 24 So. 3d 1, 

11 (Fla. 2009) (quoting Owen v. State, 986 So. 2d 534, 543 (Fla. 2008)). 

However, “[p]ostconviction claims may be summarily denied when they are 

legally insufficient, should have been brought on direct appeal, or are positively 

refuted by the record.” Id. (quoting Owen, 986 So. 2d at 543). With these 

standards in mind, we turn to Johnson’s guilt-phase ineffective assistance of 

counsel claims.

A. Victim’s Perineal Injuries
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Johnson raises three claims relating to post-mortem injuries that the victim 

sustained to the perineum, the area between the anus and the external genitalia. At 

trial, the State’s theory with respect to the perineal wounds was that Johnson 

inflicted the perineal injuries after the victim died in order to cover his tracks 

because he had sex with the victim. The defense’s theory was that the injuries 

were caused by marine life while the body was submerged in water. 

In his first claim related to this issue, on which an evidentiary hearing was 

granted, Johnson contends that his trial counsel were deficient for failing to object 

to the prosecutor’s comments characterizing the victim’s perineal wounds as a 

“cut” or “cutting,” where the medical examiner, Dr. Diggs, testified that the 

injuries could have been either the result of a human cutting the body or of marine 

life. Johnson argues that the State’s repeated use of the terms “cut” or “cutting” 

during its questioning of Dr. Diggs was prejudicial because the jury was left with 

the inescapable impression that Dr. Diggs conclusively determined that the victim 

was cut and that Johnson was the one who did it. 

Dr. Diggs, the medical examiner, testified at trial that the victim sustained 

post-mortem injuries to the perineum and referred to the injuries as “laceration(s),” 

“cut(s),” “cutting,” and “tearing.” The State then inquired as to the cause of the 

injuries and asked whether two knives recovered from Johnson and Vitale’s 

residence, which were introduced into evidence, could have caused the injuries. 
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Dr. Diggs testified that the knives “could have been” used to cause the injuries, but 

he could not definitely attribute the injuries to a cutting action. Dr. Diggs also 

testified that he could not rule out damage caused by marine life while the victim’s 

body was submerged in water as a possible cause. After Dr. Diggs used the terms 

“cut” and “cutting,” the State then used those terms in some of its questioning, 

with many of the questions focusing on whether the injuries were the result of 

cutting. 

We conclude that trial counsel were not deficient for failing to object, or 

failing to renew an objection, to the State’s use of the words “cut” or “cutting” 

during its questioning of Dr. Diggs. The State’s use of the terms “cut” and 

“cutting” was consistent with Dr. Diggs’ testimony. Further, throughout the 

State’s questioning, Dr. Diggs repeatedly testified that he could not rule out marine 

life as the cause of the injuries, but that human cutting was the more likely 

scenario. The State was entitled to present testimony and evidence in support of its 

theory that the wounds to the perineal area were caused by Johnson in order to 

destroy any evidence linking him to the victim, just as the defense was entitled to 

present evidence and testimony as to its theory that the injuries were caused by 

marine life.

Moreover, trial counsel consulted with two forensic experts, Dr. Wright and 

Dr. Feagle, neither of whom disagreed with Dr. Diggs’ findings. In fact, defense 
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counsel Garland testified at the evidentiary hearing that Dr. Wright had concluded 

that he could not testify that marine life caused the injuries because the injuries 

were too smooth to be caused by jagged jaws or teeth. Significantly, Johnson did 

not present any forensic evidence or testimony at the evidentiary hearing.

As Garland testified at the evidentiary hearing, the issue of whether it was 

human cutting or marine life that caused the perineal injuries was ultimately not 

the biggest issue in the case, as the defense theory was that Vitale had killed the 

victim and that either the injuries were the result of marine life after Vitale 

disposed of the body in the water or were the result of Vitale cutting the victim. 

Thus, counsel were not deficient for failing to object, or failing to renew an 

objection to, the prosecutor’s comments, and we deny relief on this claim.

Johnson contends in his second and third claims relating to the victim’s 

perineal injuries that the postconviction court erred in denying an evidentiary 

hearing on two summarily denied claims, which were as follows: (1) trial counsel 

were ineffective for failing to object to the admission of kitchen knives into 

evidence, where the State had failed to establish that the knives belonged to 

Johnson and the relevancy of the knives; and (2) trial counsel were ineffective for 

failing to object to Dr. Diggs’ testimony concerning the knives that were admitted 

into evidence and the possibility that the knives could have caused the victim’s 

wounds. Because we conclude that the knives were properly admitted under the 
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facts of this case, and because Dr. Diggs’ testimony that the perineal wounds could 

have been caused by the knives was proper, these arguments are without merit. 

Counsel cannot be deficient for failing to raise a meritless objection. 

Schoenwetter, 46 So. 3d at 546. Accordingly, we conclude that the postconviction 

court properly denied these two claims without an evidentiary hearing. 

B. Medical Examiner’s Use of the Term “Heinous”

In this claim, Johnson argues that his counsel were ineffective for failing to 

object to Dr. Diggs’ one-time use in the guilt phase of the word “heinous” to 

describe the strangulation death. Specifically, Johnson contends that in using the 

term “heinous,” Dr. Diggs rendered an improper opinion and that counsel’s failure 

to object prejudiced him not only in the guilt phase as to his conviction, but also in 

the penalty phase as to his sentence. We disagree.

During the guilt phase, Dr. Diggs stated that strangulation was “a heinous 

type death.” He did not use the term “heinous” again. The postconviction court 

found as follows with respect to this claim:

The court finds that the medical examiner was not rendering an 

opinion concerning the HAC aggravating circumstance. The court 

agrees with trial counsel’s evidentiary hearing testimony interpreting 

the medical examiner’s “heinous” characterization merely as a 

description of the death, and not as a term of art. Consequently, the 

court finds no deficient performance or prejudice. 

(Citation omitted.) We agree with the postconviction court and conclude that trial 

counsel were not deficient for failing to object to Dr. Diggs’ one-time use of the 
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word “heinous” in the guilt phase. See Hitchcock v. State, 991 So. 2d 337, 361 

(Fla. 2008) (“Counsel cannot be deemed ineffective for failing to make a meritless 

objection.”).

C. Vitale’s Testimony that Johnson Wanted to Have Sex with the Victim

In this claim, Johnson contends that trial counsel were ineffective for failing 

to object to Vitale’s testimony as to his opinion that Johnson wanted to have sex 

with the victim while she was sleeping, despite not being competent to testify 

regarding Johnson’s thought processes or state of mind. Johnson argues that 

Vitale’s statement prejudiced Johnson because it improperly led the jury to believe 

he would seek to take advantage of a woman who was unable to consent to sexual 

intercourse. This claim is without merit.

Vitale testified that the victim had fallen asleep and that when they arrived at 

the Savannas State Preserve and Johnson asked Vitale to leave Johnson and the 

victim alone and take a walk, Vitale “figured” it was because Johnson wanted to 

have sex with the victim. However, Vitale did not testify that Johnson wanted to 

have sex with the victim while the victim was asleep. Rather, Vitale’s testimony 

was clear that Johnson and the victim subsequently exited the vehicle, that the 

victim was awake and willing when they did so, and that Johnson and the victim 

had consensual sexual intercourse outside of the vehicle. Both defense attorneys 

present at trial testified at the evidentiary hearing that it required a strained reading 
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of Vitale’s testimony to infer that Johnson intended to have sex with an 

unconscious woman at the state park. We conclude that defense counsel were not 

deficient for failing to object to Vitale’s testimony.

We also deny Johnson’s claim that Vitale’s statement that he “figured” 

Johnson wanted to have sex was improper opinion testimony regarding a subject 

on which Vitale was not competent to testify. This argument is without merit 

because Vitale was simply testifying about his observations and interpretation of 

Johnson’s nonverbal actions, which was proper. See § 90.604, Fla. Stat. (2006). 

Counsel cannot be deficient for failing to raise a meritless objection. 

Schoenwetter, 46 So. 3d at 546.

D. Failure to Request a Limiting Instruction

In this claim, Johnson contends that his trial counsel were ineffective for not 

requesting a limiting instruction regarding Vitale’s testimony that the victim asked 

for her children while being strangled, after trial counsel’s objection to the 

statement was overruled. Specifically, Johnson argues that defense counsel made 

no effort to mitigate the clear prejudice of Vitale’s statement by requesting an 

instruction that the jury consider the statement only to establish Johnson’s state of 

mind and, as allegedly recognized by this Court on direct appeal, this failure 

prejudiced Johnson. We disagree.
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Vitale testified at trial that the victim stated that she “wanted her children” 

while Johnson was choking her. Johnson, 969 So. 2d at 948. “The defense 

objected on grounds that the testimony went beyond the permissible scope of 

redirect examination, that the statement had little or no probative value and 

tremendous potential for unfair prejudice, and that it did not meet the criteria for 

either a dying declaration or an excited utterance.” Id. The trial court overruled 

the objection, concluding that the statement was admissible as an excited utterance

and that, although it was “extremely damaging,” the potential for unfair prejudice 

did not substantially outweigh its probative value on the issue of premeditation. Id. 

Defense counsel did not request a limiting instruction. The statement was used by 

the State in its penalty-phase closing argument as supporting evidence of HAC and 

was relied upon by the trial court in finding HAC, as well as by this Court in 

upholding the HAC aggravator. Id. at 952, 957.

On direct appeal, this Court concluded that the statement was not 

inadmissible hearsay, that the statement was relevant and admissible to show 

premeditation, and that its probative value was not substantially outweighed by its 

potential for unfair prejudice. Id. at 948-52. With respect to probative value and 

evidentiary prejudice, this Court reasoned as follows:

We acknowledge the statement’s potential to create an emotional 

basis for the verdict. However, the prejudicial impact of the evidence 

could have been ameliorated to some extent by an instruction to 

consider the evidence solely on the issue of the defendant’s intent. 
- 20 -

Johnson complains on appeal that the trial court did not give a limiting 

instruction, but he made no request for such an instruction below and 

does not now claim that a limiting instruction would have been 

ineffective. Therefore, this aspect of his argument is waived. Further, 

we note that the State was cautious in its use of the statement. The 

prosecutor did not mention the statement again until the penalty 

phase, when he legitimately argued that it supported the HAC 

aggravator.

Accordingly, the potential for unfair prejudice . . . did not 

“substantially outweigh” the statement’s probative value. We 

conclude that the trial court acted within its discretion under the rules 

of evidence, specifically sections 90.403 and 90.803(2), in allowing 

the State to introduce the statement over defense objection.

Id. at 952.

The postconviction court denied the claim that trial counsel were deficient 

for not requesting a limiting instruction, finding that counsel did not engage in an

“unsound trial strategy” by deciding to proceed “in a manner that would not call 

attention to Vitale’s testimony.” Although this Court stated on direct appeal that 

“the prejudicial impact of the evidence could have been ameliorated to some extent 

by an instruction to consider the evidence solely on the issue of the defendant’s 

intent,” id., trial counsels’ failure to object or move for a limiting instruction

cannot be deemed deficient if it was the result of reasonable trial strategy. See

Occhicone, 768 So. 2d at 1048. Here, counsel objected to the admission of the 

statement in an attempt to exclude it, but after the trial court ruled that the 

statement was admissible, counsel did not request a limiting instruction, which 

would have drawn further attention to the emotionally charged comment. 
- 21 -

We conclude, based on this record, that counsel were not deficient for failing 

to request a limiting instruction. This Court has held that deciding not to draw 

attention to a comment can constitute sound trial strategy, including in situations 

where trial counsel deliberately chose not to object to a comment or chose to 

decline a curative instruction. See, e.g., Brown v. State, 846 So. 2d 1114, 1123 

(Fla. 2003) (holding that counsel was not deficient for failing to object “when a 

witness identified an autopsy photo of the victim, and responded that the victim 

appeared in a worse condition than the witness had ever seen him,” as “it reflected 

counsel’s deliberate decision not to bring attention to the comment by objecting to 

it”); Cole v. State, 841 So. 2d 409, 416-17 (Fla. 2003) (holding that declining a 

curative instruction regarding State’s statement of “mankind at its worst” was not 

deficient because “the curative instruction in this case would have had the effect of 

repeating the offensive comment”); cf. Salazar v. State, 991 So. 2d 364, 372 (Fla. 

2008) (“[T]he trial court had the discretion not to give a curative instruction if it 

believed that doing so would draw further attention to the improper comment.”). 

Even assuming that counsel were deficient, Johnson has failed to 

demonstrate prejudice. Johnson contends that this Court recognized the prejudicial 

impact of Vitale’s statement on direct appeal and therefore, “there is a judicial 

determination that such a limiting instruction would have been helpful” and that 

“the State, defense counsel and the trial court all presume their conclusions 
- 22 -

regarding the prejudicial nature of Vitale’s testimony is superior to this Court’s.” 

However, Johnson overlooks that the prejudicial impact this Court was referring to 

was prejudice for purposes of application of the section 90.403 evidentiary 

balancing test. See Johnson, 969 So. 2d at 952. Although this Court recognized 

the statement’s “potential to create an emotional basis for the verdict” and that a 

limiting instruction could have “ameliorated [this] to some extent,” id. (emphasis 

added), this does not equate to a judicial determination by this Court of Strickland

prejudice.

To the contrary, we conclude that any failure of trial counsel to request a 

limiting instruction in this case does not undermine this Court’s confidence in the 

conviction. As outlined by this Court on direct appeal, strong evidence connected 

Johnson to the murder. Further, this Court observed that “the State was cautious in 

its use of the statement. The prosecutor did not mention the statement again until 

the penalty phase, when he legitimately argued that it supported the HAC 

aggravator.” Id.

Accordingly, we deny this claim.

E. Cross-Examination of Vitale
- 23 -

In this claim, Johnson argues that his trial counsel were ineffective for 

failing to effectively cross-examine Vitale.

6

In denying this claim, the postconviction court found as follows:

 Johnson contends that during crossexamination, trial counsel struggled to locate the references to Vitale’s inconsistent 

prior statements and was admonished by the trial court for failing to properly 

conduct impeachment. This claim is without merit.

The court has reviewed the extensive cross-examination of 

Vitale’s trial testimony during which counsel explored inconsistencies 

in the various statements concerning Vitale’s role, level of

participation, and injuries; Johnson’s role and direction of Vitale; the 

victim’s behavior, statements, and injuries; and the jail letter exchange 

between Vitale and Johnson. And although counsel may have 

struggled at times with his impeachment technique, the record reveals 

that counsel questioned Vitale on these three areas of inconsistency in 

Vitale’s statements concerning the perineal wound, Johnson’s 

admission to breaking the victim’s neck, and Johnson’s disclosure of 

the victim’s request for her children. Further, the State investigator 

corroborated that Vitale had disclosed in his first statement Johnson’s 

admission to breaking the victim’s neck. Therefore, absent an 

evidentiary showing of what specific information counsel failed to 

bring out concerning these three areas of inconsistency in Vitale’s 

statements, the court finds no prejudice to the outcome of the trial.

(Citation omitted.) Having reviewed the record, we conclude that the 

postconviction court’s factual findings are supported by competent, substantial 

evidence, and that the court did not err as to its legal conclusions. Although, as the 

postconviction court found in its order, “counsel may have struggled at times with 

 

6. Although an evidentiary hearing was granted on this claim, no testimony 

or evidence was presented at the hearing in support of this claim.
- 24 -

his impeachment technique,” defense counsel succeeded in impeaching Vitale with 

respect to many of his prior inconsistent statements and demonstrating that Vitale 

had a motive to embellish his testimony.

In addition, Johnson contends that his counsel were ineffective for failing to 

move to have Vitale’s original taped statement played for the jury, as the transcript 

used by defense counsel during his impeachment of Vitale reflected portions of the 

statement as “indiscernible.” The effect of this, Johnson argues, was that Vitale 

was able to claim during his trial testimony that he had previously stated that 

Johnson told him he broke the victim’s neck during an “indiscernible” portion of 

one of Vitale’s statements, which was incomplete. We conclude that Johnson has 

not established that defense counsel were deficient for failing to play the tape for 

the jury when the tape was incomplete because portions were missing from the 

recording and there has been no demonstration that the tape itself was not also 

“indiscernible.”

Accordingly, we deny this claim.

F. Impermissible Cross-Examination of Johnson

This claim, in which Johnson argues that his trial counsel were ineffective 

for failing to object to impermissible cross-examination of Johnson when the 

prosecutor twice asked Johnson whether witness Thomas Beakley was truthful 

when he testified that the victim was crying, was summarily denied by the 
- 25 -

postconviction court. On appeal, Johnson contends that he was entitled to an 

evidentiary hearing on this claim.

In rejecting a claim pertaining to this line of questioning on direct appeal, 

this Court held that despite the improper questioning, any error would have been 

harmless beyond a reasonable doubt and, for the same reason, not fundamental 

error. This Court reasoned as follows:

Johnson responded to the questioning without stating that he thought 

Beakley was untruthful. In each instance, the question concerned only 

whether Hagin was crying or whining. Johnson parried the 

prosecutor’s suggestion that either he or Beakley had to be lying by 

asserting that what Beakley heard as a cry, Johnson heard as a whine. 

There is no reasonable possibility that this exchange so affected the 

jury’s view of Johnson’s credibility that it contributed to the verdict.

Johnson, 969 So. 2d at 955.

We conclude that the postconviction court did not err in summarily denying 

this claim because it was “positively refuted by the record.” Gore, 24 So. 3d at 11 

(quoting Owen, 986 So. 2d at 543). Although Johnson argues that this Court’s 

determination of harmless error does not foreclose a finding of prejudice, we 

conclude that trial counsel’s failure to object to the questioning and testimony at 

issue does not undermine this Court’s confidence in the conviction for the same 

reasons this Court found the error to be harmless on direct appeal. See Johnson, 

969 So. 2d at 955.
- 26 -

II. Claims Relating to the State’s Alleged Use of Vitale as a State Agent 

and Letters Written Between Vitale and Johnson

(Strickland, Massiah, Brady, and Giglio)

The next set of claims relates to Johnson’s assertion that the State 

improperly used Vitale to elicit incriminating statements in a series of letters 

written between Johnson and Vitale while both were incarcerated after the murder. 

Johnson’s theory at trial was that Vitale committed the murder because he was 

jealous that Johnson had a sexual relationship with the victim that evening. In 

support of this theory, “confession” letters written by Vitale were introduced into 

evidence. The State then introduced letters written from Johnson to Vitale, in 

which Johnson appeared to have coached Vitale on his confession.

Johnson’s claims related to the letter writing fall into several categories. 

First, Johnson contends that his counsel were ineffective for encouraging, or failing 

to stop, a letter writing campaign between him and Vitale, and therefore counsel 

failed in their duty to protect Johnson’s Fifth Amendment right against selfincrimination. Second, Johnson argues that Vitale was acting as a State agent 

attempting to elicit incriminating information from Johnson and, therefore, the

State violated Massiah v. United States 377 U.S. 201 (1964); Brady v. Maryland, 

373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150 (1972). 

Specifically, Johnson claims a Brady violation on the grounds that the State 

withheld favorable evidence from trial counsel, namely a letter written by Vitale’s 
- 27 -

attorney, Burns, to the State referring to Vitale possibly providing assistance to the 

State. We begin by reviewing the relevant trial and postconviction testimony and 

evidence as it pertains to this series of claims.

A. Trial Testimony and Evidence

After being arrested, Vitale and Johnson wrote numerous letters back and 

forth. At trial, these letters were first mentioned during the State’s direct 

examination of Vitale, but only insofar as referencing that Johnson asked for 

Vitale’s help with the case, that Vitale and Johnson wrote notes and letters back 

and forth, and that Vitale could identify letters as being from Johnson because he 

recognized Johnson’s handwriting and the content of the letters pertained to facts 

and experiences in common to Vitale and Johnson. 

On cross-examination, the defense questioned Vitale about, and introduced 

into evidence, letters that Vitale had written to various individuals, in which he 

confessed to the crime. The defense introduced letters written by Vitale as eleven 

exhibits, in which Vitale confessed to the State Attorney in the case as well as to 

various individuals, including Johnson, Johnson’s mother, Johnson and Vitale’s 

former roommates, and Johnson’s friends.7

 

7. There were a total of at least sixty-seven letters, but the trial court limited 

the number of letters each side could introduce and directed the attorneys to redact 

irrelevant portions of the letters.

 All of the letters were undated, but the 

letter to the State Attorney was attached to an envelope that was mailed on August 
- 28 -

8, 2002. Upon being questioned about these letters, Vitale testified that Johnson 

gave him a list of individuals to whom he should write and that for each confession 

letter, there was a corresponding letter in which Johnson told Vitale what he should 

write.

On redirect, the State introduced into evidence a letter from Vitale to 

Johnson stating that he loved Johnson and wanted to help. The State also 

introduced fourteen letters from Johnson to Vitale, which, among other things, 

pleaded for Vitale’s help, asked Vitale to convince the State that Johnson did not 

commit the murder, gave Vitale detailed feedback and direction as to Vitale’s draft 

confession, urged Vitale to promptly send a revised confession and get it notarized, 

and told Vitale not to say anything in letters that could incriminate Johnson. In 

various letters, Johnson told Vitale that he cared deeply for him, that he loved him, 

and that Vitale had a permanent place in his heart. 

All of the letters were undated,8

 

8. Although the letters were undated, several letters included some 

indication of the dates on which they were mailed or received. One letter was 

mailed from Johnson to Vitale on December 17, 2001; one letter from Johnson to 

Vitale was forwarded by Vitale after he received it to his attorney, Burns, on 

December 17, 2001; and several letters were stamped “RECEIVED” by the State 

Attorney’s office on May 7, 2004.

and Vitale testified that he could not 

sequence any of the letters. Later in the trial, defense counsel and the State both 

questioned Johnson about the letters. Johnson testified that at the time he 
- 29 -

confessed to law enforcement, he thought he was guilty. Johnson stated that he 

wrote his pleading letters to Vitale asking for help to avoid the death penalty when 

Johnson thought he himself had killed the victim. Johnson testified that he 

eventually realized he was innocent and that Vitale was the killer. 

In closing argument during the guilt phase, the State contended that the 

letters demonstrated that Johnson was a “user,” a “manipulator,” and a “murderer.” 

The defense argued in response that it was ridiculous to believe that Vitale wrote 

the confession letters at Johnson’s behest because no one would confess to a 

serious crime he or she did not commit, no matter how much he or she loved 

someone.

B. Evidentiary Hearing Testimony and Evidence

At the postconviction evidentiary hearing, Johnson introduced into evidence 

two letters written from Vitale to the State. The first was dated October 22, 2003. 

The letter began by stating, “Today Mr. Hamrick [the State investigator] came to 

see me to pick up a letter I received from Rich [Johnson]. I explained to him that I 

had a letter for Rich in response to his.” Vitale explained that he was enclosing a 

letter that he wished for the State Attorney to mail for him and that “[b]y sending 

this letter to you—I feel at least I’m going through the right channels this time.” 

Toward the end of the letter, Vitale stated: “I truly hope that by the time you 
- 30 -

receive this letter, you’ve taken me off of PC[9

Johnson also introduced a letter dated January 14, 2003, which was written 

by Vitale’s attorney, Burns, to the State (the “Burns Letter”). The letter contained 

statements such as the following: “My guy is exceedingly impatient and 

exasperated at the delay in setting up the assistance we discussed a long time ago”; 

“I thought that you and I were on the same page as to the desirability of putting 

[Vitale’s] letters into a proper context, and quite possibly getting the co-defendant 

to confess on tape”; and “My hope, of course, is that Vitale’s cooperation would 

earn him a lighter sentence, and yours is that Johnson would confess to Vitale . . . , 

thus removing a thorn in the side of your case by preventing [Johnson’s defense 

attorney] Bob Stone from claiming that [Vitale’s] letters are true confessions.”

]. I explained it to Mr. Hamrick. I 

hope also that we will be going over everything about this case soon.” The second 

letter is an undated, handwritten note to the State, which read as follows: 

“Enclosed please find another letter I received from Richard on 3-3-04 and note the 

return address. I’m trying to get a copy of the reply letter I sent.”

At the evidentiary hearing, Johnson also presented testimony from the three 

defense attorneys who worked on his case: Moore, Stone, and Garland. In 

addition, Johnson presented testimony from Vitale and Thomas Burns, Vitale’s 

trial defense counsel.

 

9. It is not explained what “PC” means.
- 31 -

Defense counsel Moore testified that he was Johnson’s trial counsel toward 

the beginning of the case, and the record reflects that Moore was relieved from 

representing Johnson in November 2002. Moore testified that he did not 

encourage the communication between Johnson and Vitale because in Moore’s 

opinion, it was not a good idea to have his clients communicate with anyone. 

Moore was not aware that Vitale was communicating directly with the State.

Defense counsel Garland, who was appointed as co-counsel to replace 

Moore in February 2003 and who represented Johnson at trial, testified that he 

believed he was made aware of communications between Johnson and Vitale from 

Moore and that he eventually saw the letters prior to trial. However, Garland did 

not encourage Johnson to continue writing to Vitale. Garland testified that he 

became aware at some point that Vitale was trying to make a deal with the State, 

and that it would have been good for the defense to know that Vitale was writing 

directly to the State, as it could have been used as impeachment to undermine 

Vitale’s credibility. When shown the Burns Letter, Garland stated that he did not 

recall seeing it prior to trial, but that the mention of wearing a wire indicated that 

Burns was attempting to have Vitale work as a State agent. On cross-examination 

by the State, Garland acknowledged that he did not know what was in Burns’ mind 

when he wrote the letter.
- 32 -

Defense counsel Stone, who was co-counsel at Johnson’s trial, testified that 

after he obtained Vitale’s confession letter, he sent the letter to the State. Stone 

was not aware of Vitale’s communications directly with the State until the State 

turned over those letters shortly before trial. Stone recalled that Burns testified 

during a deposition that he had held on to many of the letters for a while and then 

just prior to trial, turned them over to the State. Stone was also not aware that 

Johnson wrote letters back to Vitale until shortly before trial. If Stone had known 

that Johnson was writing to Vitale, he testified that he would have told Johnson not 

to do it. At one point, Johnson told Stone that Vitale was interested in confessing, 

and Stone told Johnson that if Vitale wanted to confess, it would be best to get that 

in writing. However, Stone did not tell Johnson how to get Vitale’s confession in 

writing, and Stone stated that he warns his clients that there is no privacy in prison 

and that anything they say or write can be used against them.

When shown the Burns Letter, Stone stated that he did not recall seeing the 

letter until a few days before the postconviction evidentiary hearing. If Stone had 

seen the Burns Letter prior to trial, he testified that he would have used it. He also 

would have told Johnson to stay as far away from Vitale as possible. Stone 

testified that the Burns Letter implied that Vitale was working as a State agent, but 

that Stone did not have any evidence or direct knowledge that this was the case.
- 33 -

Vitale testified that Burns, his defense counsel, advised him to be truthful 

and did not say anything to Vitale about helping the State. Vitale testified that the 

letter writing between him and Johnson started as Johnson’s idea. Vitale told 

Burns about the letters after the letter writing started, but the letter writing 

continued after that conversation. However, Vitale could not remember for how 

long the letter writing continued.

With respect to the letters Vitale wrote to the State, he testified that he 

probably wrote the letters because he could not get in touch with Burns. Vitale 

testified that he did not receive any letters back from the State explaining that it 

was inappropriate for Vitale to contact the State. Vitale testified that state 

investigator Hamrick came to see him in jail and that he delivered letters directly to 

Hamrick, but that Vitale gave most of the letters to Burns. Vitale further testified 

that he wrote confession letters to Johnson in order to buy time so that he could get 

in touch with the State in order to wear a wire. Vitale testified that wearing a wire 

was his idea, but that he did not discuss the idea with the State, despite attempting 

to do so. Vitale had spoken to Burns about it, but according to Vitale, Burns had 

failed to relay the message to the State.

According to Burns, the letter writing between Vitale and Johnson continued 

after Burns was appointed as Vitale’s counsel, but Burns neither encouraged nor 

discouraged it. At some point, Burns informed the State as to the letters between 
- 34 -

Vitale and Johnson. Burns also informed the State that Burns was in possession of 

those letters and that Vitale might be willing to offer testimony against Johnson for 

a sufficient reward. Burns did not recall Vitale writing directly to the State, and he 

did not encourage Vitale to do so. However, that did not mean that Vitale did not 

write to the State directly, because Vitale was “not fully under [Burns’] control.” 

Burns testified that the case was taking a long time and that Vitale wanted to be 

done with it for a number of reasons, many of them personal. Vitale had told 

Burns that he wanted the case resolved, no matter what the result. Burns stated 

that Vitale was emotional and that Burns was concerned that Vitale might be 

untruthful and act against his own interests.

Regarding the Burns Letter, Burns testified that it was unusual that he would 

actually write a letter to the State, preferring to communicate in person. Burns was 

asked about the mention in the letter of a thorn in the side of the State’s case, and 

he responded that this was a reference to the confession letters written by Vitale. 

Burns explained that the purpose of the Burns Letter was to show Vitale that Burns 

was bringing up the issues to the State and that Burns was not letting Vitale down. 

Burns testified that he showed the letter to Vitale.

On cross-examination by the State, Burns stated that to his knowledge, 

Vitale was not acting as an agent of the State in eliciting statements from Johnson. 

Rather, any correspondence between Vitale and Johnson was completely organic 
- 35 -

and at no one’s instruction. Burns also testified that wearing a wire was Vitale’s 

idea, and Burns never would have suggested it because Vitale was not completely 

reliable or controllable. On redirect, Burns testified that Vitale met directly with 

the State once or twice without Burns present because of scheduling issues, but 

Burns would have expected Vitale to tell him what happened.

C. Trial Court’s Order

In denying Johnson’s ineffective assistance of counsel claim regarding the 

letters, the postconviction court found in pertinent part as follows:

The court notes the relevant timeline. In 2001, the offenses 

were committed and Johnson was indicted. Moore was appointed to 

represent Johnson. Stone was later retained to represent Johnson. 

Moore stayed on as second chair. Vitale sent a “confession” letter to 

Stone. On July 2, 2002, Stone sent Vitale’s “confession” letter to the 

prosecutors. On November 20, 2002, Moore was discharged from 

representation. In January 2003, Garland was appointed to succeed 

Moore. On January 14, 2003, Burns sent a letter to the prosecutors 

referring to the Vitale plea negotiations. On October 22, 2003, Vitale 

sent a letter to the prosecutors referring to his contact with the State 

investigator, a letter to Vitale from Johnson, and a letter to Johnson 

from Vitale. In March 2004, Vitale sent a note to the prosecutors 

referring to a letter to Vitale from Johnson. In June 2004, the trial was 

conducted. In August 2004, [Johnson] was sentenced.

It is undisputed that Vitale communicated directly with 

Johnson, the prosecutors, the State investigator, Burns, and Stone. 

There is no evidence that the prosecutors initiated the contact or 

responded to Vitale. And there is no evidence that undermines 

Vitale’s testimony that wearing a wire was his idea. Although there is 

reference to a jail visit by the State investigator, no testimony of the 

investigator or prosecutors was offered to explain the purpose of the 

visit. And the court declines to infer that the investigator’s visit was 

for the purpose of enticing or arranging for Vitale to elicit 

incriminating evidence from Johnson.
- 36 -

Burns, Moore, Garland, and Stone are experienced trial 

attorneys and credible witnesses. There is no evidence that these 

attorneys had knowledge that the prosecutors initiated, encouraged, or 

responded to Vitale; or that the State was otherwise using Vitale to 

deliberately elicit incriminating statements from Johnson.

Stone and Garland were unaware of Vitale’s direct 

communication with the prosecutors until shortly before trial. They 

were unaware of Burns’ January 14, 2003, plea negotiation letter until 

shortly before the postconviction evidentiary hearing. However, no 

evidence was presented to demonstrate a willful discovery violation 

by the State with respect to the letter.

Moore, Stone, and Garland did not encourage Johnson to 

communicate with Vitale. Stone’s explanation is credible as to his 

comment to Johnson that if Vitale’s attorney would not let Vitale talk 

to the State, Vitale should put it in writing. The court does not 

interpret this as advice to Johnson to communicate with Vitale. And, 

as standard practice of seasoned criminal defense attorneys, the court 

finds all three attorneys would have warned Johnson of the risks of 

jailhouse communication.

Burns’ explanation is credible as to his attempt to manage his 

uncontrollable client Vitale, and Vitale’s expectations by addressing 

the recording in the January 14, 2003, letter. Burns corroborated 

Vitale’s testimony that it was Vitale’s idea to wear a wire.

In conclusion, Johnson has failed to meet his burden of proving 

that the State was using Vitale to deliberately elicit incriminating 

statements from Johnson or that Vitale was otherwise a State agent, 

and that counsel failed to protect Johnson from Vitale. Further, 

[Johnson] fails to demonstrate prejudice of the letters to the outcome 

of the trial where the defense strategy was that Vitale, not Johnson, 

killed the victim. The letters were the only evidence other than 

Johnson’s testimony that tied Vitale to the victim, thus supporting the 

viability of the defense. And at trial, the State introduced no 

statements made by Johnson after the letters began as proof for the 

charged crimes that would otherwise demonstrate prejudice.

(Citation omitted.) In denying Johnson’s Massiah, Brady, and Giglio claims, the 

postconviction court found as follows:
- 37 -

The court adopts its analysis [with respect to the ineffective 

assistance of counsel claim regarding the letters] to find no merit to 

Johnson’s claims that the State deliberately elicited incriminating 

statements from Johnson and withheld evidence of Vitale’s agent 

where there is insufficient evidence to show an “overt scheme” by the 

State, and where the terms of Vitale’s plea agreement were disclosed 

at trial. Further, Johnson otherwise fails to demonstrate that Vitale’s 

plea agreement testimony was false or that any terms of the plea 

agreement were undisclosed to Johnson. Consequently, the court finds 

no violation of Massiah, Brady, or Giglio

(Citation omitted.) We now turn to an analysis of Johnson’s ineffective assistance 

of counsel claim pertaining to the letters and then Johnson’s Massiah, Brady, and 

Giglio claims. For the reasons set forth below, we conclude that the postconviction 

court’s factual findings are supported by competent, substantial evidence and that 

Johnson is not entitled to relief.

.

D. Ineffective Assistance of Counsel Claim

Johnson contends that his counsel were ineffective for encouraging, or 

failing to stop, a letter writing campaign between him and Vitale and, therefore, 

counsel failed in their duty to protect Johnson’s Fifth Amendment right against 

self-incrimination. We reject Johnson’s argument and conclude that Johnson’s 

trial counsel were not deficient in failing to halt the letter writing campaign 

between Johnson and Vitale.

First, all three of Johnson’s defense attorneys—Moore, Stone, and 

Garland—testified at the evidentiary hearing that they did not encourage Johnson 

to write the letters. The postconviction court specifically found that Moore, Stone, 
- 38 -

and Garland were “experienced trial attorneys and credible witnesses.” Further, 

the postconviction court found that “as standard practice of seasoned criminal 

defense attorneys, the court finds all three attorneys would have warned Johnson of 

the risks of jailhouse communication.” These findings are supported by 

competent, substantial evidence.

Second, there was no evidence presented that Johnson’s defense attorneys 

were aware that Vitale was writing letters directly to the State until shortly before 

trial. As the postconviction court found, “Stone and Garland [the two attorneys 

who represented Johnson at trial] were unaware of Vitale’s direct communication 

with the prosecutors until shortly before trial.”

Third, to the extent that Johnson relies on the Burns Letter and the testimony 

of defense counsel regarding how their approach would have changed if they had 

seen the letter, the Burns Letter is also the subject of Johnson’s Brady claim based 

on the State’s failure to disclose the Burns Letter. Defense counsel cannot be 

deemed deficient based on a document that they never received. See Roberts v. 

State, 568 So. 2d 1255, 1259 (Fla. 1990).

In conclusion, the postconviction court’s finding that “[t]here is no evidence 

that these attorneys had knowledge that the prosecutors initiated, encouraged, or 

responded to Vitale; or that the State was otherwise using Vitale to deliberately 

elicit incriminating statements from Johnson” is supported by competent, 
- 39 -

substantial evidence. Johnson has not demonstrated that his counsel encouraged 

the letter writing between Vitale and Johnson or that they were deficient in failing 

to halt it. Accordingly, he is not entitled to relief on this claim.

E. Massiah Claim

Next, Johnson argues that the State utilized Vitale as a State agent to obtain 

incriminating information from Johnson. Johnson contends that this is evidenced 

by the Burns Letter, which was withheld from the defense in violation of Brady; 

letters from Vitale to the State; and the fact that the State investigator, Hamrick, 

visited Johnson in jail for the purpose of getting the letters directly from Vitale.

The State contends that this claim is procedurally barred. Johnson asserts 

that the claim is not barred because the State withheld pertinent information 

pointing to a Massiah violation, including the Burns Letter, on which this claim in 

large part relies. Because the Burns Letter, as discussed below in our analysis of 

Johnson’s Brady claim, was not disclosed by the State, Johnson is not procedurally 

barred from bringing this claim in his postconviction relief proceeding.

Turning to the merits of this claim, this Court has explained the 

holding and import of Massiah

In 

as follows:

Massiah, the United States Supreme Court announced for the 

first time that the Sixth Amendment prohibits law enforcement 

officers from interrogating a defendant after his or her indictment and 

in the absence of counsel. Consequently, statements “deliberately 

elicited” from a defendant after the right to counsel has attached and 

in the absence of a valid waiver are rendered inadmissible and cannot 
- 40 -

be used against the defendant at trial. 377 U.S. at 206. Nevertheless, 

incriminatory statements by a defendant will not be excluded merely 

because the statements are made after judicial proceedings have been 

initiated and in the absence of a valid waiver. Rather, law 

enforcement officials must do something that infringes upon the 

defendant’s Sixth Amendment right.

While the “deliberately elicited” standard is clearly satisfied 

when the police directly interrogate or question a defendant in some 

fashion, it also may be satisfied by less direct types of questioning. 

Usually, determining whether the “deliberately elicited” standard has 

been met becomes an issue in cases . . . where incriminatory 

statements from a defendant were obtained through persons other than 

the police who allegedly acted as police informants or surrogates.

Smith v. State, 28 So. 3d 838, 857-58 (Fla. 2009) (citations and alterations 

omitted) (quoting Rolling v. State, 695 So. 2d 278, 290 (Fla. 1997)). However, “a 

defendant does not make out a violation of that right simply by showing that an 

informant, either through prior arrangement or voluntarily, reported [the 

defendant’s] incriminating statements to the police. Rather, the defendant must 

demonstrate that the police and their informant took some action, beyond merely 

listening, that was designed deliberately to elicit incriminating remarks.” 

Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) (emphasis added). The United 

States Supreme Court has applied the “deliberately elicited” standard to 

information garnered by jailhouse informants. See Maine v. Moulton, 474 U.S. 

159, 176 (1985); United States v. Henry, 447 U.S. 264, 270 (1980). 

We conclude that the evidence presented in this record falls short of 

demonstrating a Massiah violation. The postconviction court did not err in its 
- 41 -

finding that “Johnson has failed to meet his burden of proving that the State was 

using Vitale to deliberately elicit incriminating statements from Johnson or that 

Vitale was otherwise a State agent.”

We begin our analysis of Johnson’s Massiah claim by setting forth two 

significant facts that place the letters and this claim in context. First, it is 

undisputed that Johnson—not the State—initiated the letter writing between 

Johnson and Vitale and that Johnson was the motivating force behind Vitale’s 

confession letters. Second, as pointed out by the State, Johnson’s letters are not 

incriminating in the sense that they directly implicated him in the crime. Rather, 

the letters were used by the State at trial to undermine Vitale’s written confessions 

by demonstrating that Johnson had manipulated Vitale into confessing.

Against this backdrop, we now discuss Johnson’s arguments, which 

primarily rely on three pieces of evidence in support of his claim that Vitale was 

working as a State agent. The first is the Burns Letter. In denying this claim, the 

postconviction court specifically found that Burns was an “experienced trial 

attorney[] and [a] credible witness[].” The postconviction court further found that 

“Burns’ explanation is credible as to his attempt to manage his uncontrollable 

client Vitale, and Vitale’s expectations by addressing the recording” sought by 

Vitale in the Burns Letter. Although Johnson disagrees with the postconviction 

court’s finding of credibility as to Burns, this Court has explained that it is “highly 
- 42 -

deferential to a trial court’s judgment on the issue of credibility” based on the trial 

court’s “superior vantage point.” Archer v. State, 934 So. 2d 1187, 1196 (Fla. 

2006) (quoting State v. Spaziano, 692 So. 2d 174, 178 (Fla. 1997)). We conclude 

that the postconviction court’s finding with respect to the Burns Letter is supported 

by competent, substantial evidence.

Burns testified at the evidentiary hearing that the “primary purpose” of the 

letter was for him to “show Mr. Vitale that, hey, I am bringing up these issues to 

[the State] that are concerning you and the ball is in their court. I am not letting 

you down. I am not failing to do what you want me to do. So it is kind of a dualpurpose communication, if you will.” Burns further testified that he “never really 

regarded [Vitale] as being completely patient and completely under my control and 

guidance.” Further, Burns emphatically denied that Vitale was acting as an agent 

of the State in eliciting statements from Johnson: “Whatever correspondence 

occurred between them was completely organic between the two of them. It was at 

nobody’s instruction.” 

With respect to the reference in the letter of getting Johnson to “confess on 

tape,” Burns testified that wearing a wire was Vitale’s idea. Vitale also testified at 

the evidentiary hearing that wearing a wire was his idea and that he did not have 

any discussions with the State about the idea. Rather, he stated that he had directed 
- 43 -

his counsel, Burns, to speak to the State about it, but Burns did not think it was a 

good idea and had failed to relay the message.

To the extent that Johnson relies on the evidentiary hearing testimony of his 

defense counsel explaining what they interpreted the Burns Letter to mean, this 

speculation does not constitute evidence of its purpose and meaning. Further, each 

of Johnson’s trial counsel testified that he did not know or have any direct 

knowledge of whether Vitale was acting as a State agent.

As his second piece of evidence in support of this claim, Johnson points to

letters from Vitale written directly to the State. Johnson argues that the State was 

made aware, through Vitale’s letters directly to the State, of the letter writing 

campaign between Vitale and Johnson, and did nothing to dissuade Vitale’s 

conduct. However, passive knowledge and failure to dissuade Vitale from writing 

letters to Johnson does not rise to the level of the “deliberately elicited” standard. 

The United States Supreme Court has explained that a defendant does not make out 

a Massiah violation “simply by showing that an informant, either through prior 

arrangement or voluntarily, reported [the defendant’s] incriminating statements to 

the police. Rather, the defendant must demonstrate that the police and their 

informant took some action, beyond merely listening, that was designed 

deliberately to elicit incriminating remarks.” Kuhlmann, 477 U.S. at 459. As the 

postconviction court found, “[t]here is no evidence that the prosecutors initiated 
- 44 -

the contact or responded to Vitale.” Indeed, the record is clear that Johnson 

actually initiated the letter writing between himself and Vitale.

The third primary piece of evidence on which Johnson relies is that the State 

investigator, Hamrick, visited Vitale in jail in October 2003 for the purpose of 

obtaining the letters directly from Vitale. However, as the postconviction court 

found, “[a]lthough there is reference to a jail visit by the State investigator, no 

testimony of the investigator or prosecutors was offered to explain the purpose of 

the visit. And the court declines to infer that the investigator’s visit was for the 

purpose of enticing or arranging for Vitale to elicit incriminating evidence from 

Johnson.” 

In sum, we conclude that based on the evidence presented in this case, 

Johnson has not demonstrated a Massiah violation.

F. Brady Claim

Johnson also contends that the State violated Brady by not disclosing the 

Burns Letter. To demonstrate a Brady violation, Johnson must show that (1) 

favorable evidence, either exculpatory or impeaching; (2) was willfully or 

inadvertently suppressed by the State; and (3) because the evidence was material, 

Johnson was prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see 

also Way v. State, 760 So. 2d 903, 910 (Fla. 2000). To meet the materiality prong, 

Johnson must demonstrate “a reasonable probability that the jury verdict would 
- 45 -

have been different had the suppressed information been used at trial.” Smith v. 

State, 931 So. 2d 790, 796 (Fla. 2006) (citing Strickler, 527 U.S. at 289, 296). A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome. See Way, 760 So. 2d at 913; see also Strickler, 527 U.S. at 289-90. In 

reviewing a Brady claim, “this Court defers to the factual findings made by the 

trial court to the extent they are supported by competent, substantial evidence, but 

reviews de novo the application of those facts to the law.” Lightbourne v. State, 

841 So. 2d 431, 437 (Fla. 2003).

We conclude that the first two prongs of Brady are met. As to the first 

prong, the Burns Letter was favorable evidence, as it indicated that Vitale had a 

demonstrative motive to keep writing to Johnson as well as to testify in the case. It 

should have been disclosed by the State. As to the second prong, the evidence 

demonstrates that the Burns Letter was not disclosed to trial counsel. None of 

Johnson’s trial attorneys recalled seeing the Burns Letter before postconviction 

counsel showed it to them.

We conclude, however, that Johnson’s claim is without merit because 

Johnson cannot demonstrate the third and final prong—prejudice. Although the 

Burns Letter provided additional evidence of Vitale’s motive to testify, Vitale’s 

motive to testify in exchange for a favorable plea agreement was already disclosed 

to the jury, and the Burns Letter simply discloses that Vitale desired to work with 
- 46 -

the State in order to obtain a confession from Johnson in exchange for a lighter 

sentence. Accordingly, we deny this claim.

G. Giglio Claim

Johnson references Giglio10

III. Cumulative Error in the Guilt Phase

in his briefs, but does not make a specific 

argument for a Giglio violation other than stating that an agreement with a 

government witness for testimony in exchange for favorable treatment should be 

disclosed. This claim is insufficiently argued. See Victorino v. State, 23 So. 3d 

87, 103 (Fla. 2009). Moreover, even considering the merits of this claim, Johnson 

is not entitled to relief. As found by the postconviction court and discussed above, 

there is insufficient evidence that Vitale was working as a State agent. Further, the 

details of the plea agreement between Vitale and the State were disclosed at trial.

In his next claim, Johnson contends that cumulative error requires reversal, 

raising this claim only as to his guilt-phase ineffective assistance of counsel claims. 

However, Johnson “is not entitled to relief on his cumulative error claim because 

 

10. To establish a Giglio violation, it must be shown that: “(1) the testimony 

given was false; (2) the prosecutor knew the testimony was false; and (3) the 

statement was material.” Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003). 

“[T]he false evidence is material ‘if there is any reasonable likelihood that the false 

testimony could have affected the judgment of the jury.’ ” Id. at 506 (quoting 

United States v. Agurs, 427 U.S. 97, 103 (1976)). “The State, as the beneficiary of 

the Giglio violation, bears the burden to prove that the presentation of false 

testimony at trial was harmless beyond a reasonable doubt.” Id.
- 47 -

the alleged individual claims of error are all without merit, and, therefore, the 

contention of cumulative error is similarly without merit.” Dufour v. State, 905 

So. 2d 42, 65 (Fla. 2005).

IV. Penalty-Phase Ineffective Assistance of Counsel Claim

In this claim, Johnson contends that his trial counsel were ineffective for 

failing to promptly investigate and prepare mitigation. Johnson also argues that his 

trial counsel were ineffective in failing to effectively present mitigation evidence. 

He asserts, in essence, that although trial counsel presented evidence in support of 

statutory mitigation that was rejected by the trial court, trial counsel could have 

done a better job. He also argues that although Dr. Williams—the expert who 

testified at trial—found evidence of Post-Traumatic Stress Disorder (PTSD) as 

reflected in a written report, trial counsel simply did nothing with it. This claim is 

without merit.

At the evidentiary hearing, Johnson presented testimony on this issue from 

Garland (the defense counsel who handled the mitigation aspects of trial), Dr. 

Jethro Toomer (an expert in clinical and forensic psychology), and Danielle Blount 

Fernandez (Johnson’s sister who testified at trial). Johnson also introduced into 

evidence two reports written by Dr. Williams.

A. Failure to Investigate and Prepare Mental Mitigation
- 48 -

Johnson claims that trial counsel were ineffective for failing to “promptly” 

investigate and prepare mental mitigation. In support, he contends that as of a 

status hearing in October 2003, trial counsel informed the court that they had yet to 

provide the experts with any records or obtain or review any records themselves. 

However, the penalty phase of the trial took place in June 2004—eight months 

after the October 2003 status hearing. Thus, this is not a case where the evidence 

demonstrates that investigation and preparation did not begin until shortly before 

the penalty-phase trial.

Under the facts of this case, although trial counsel may have failed to 

investigate and prepare mental health mitigation as “promptly” as Johnson believes 

counsel should have done, this does not per se render counsel deficient in 

investigation and preparation, as Johnson appears to contend. Indeed, Johnson 

does not specifically point to any mental health mitigation that should have been 

uncovered but was not due to a lack of investigation or preparation. Significantly, 

the postconviction court found that Dr. Toomer, the expert presented at the 

evidentiary hearing, did not testify to any new facts that were unknown to Dr. 

Williams or Dr. Brugnoli (who had conducted neuropsychological testing but did 

not testify at trial) at the time of their pretrial evaluations.
- 49 -

Accordingly, we conclude that Johnson has not demonstrated that his 

counsel were deficient in failing to investigate and prepare mitigation.11

B. Failure to Effectively Present Mental Mitigation

Johnson’s claim regarding the failure to present mental mitigation is in 

essence twofold: (1) although Dr. Williams diagnosed Johnson with PTSD, trial 

counsel failed to utilize this information at trial; and (2) trial counsel failed to 

effectively utilize available mental health mitigation at trial to paint a detailed 

picture of Johnson’s mental health and how it affected him at the time of the crime. 

 

11. In his Reply Brief, Johnson raises for the first time three additional 

claims that counsel were deficient because they (a) did not hire a mitigation 

specialist, (b) failed to adequately prepare Johnson’s sister for her deposition, 

meeting with Dr. Williams, or her trial testimony, and (c) failed to timely and 

adequately provide Johnson’s mental health experts with all the necessary records 

and information. An issue may not be raised for the first time in a reply brief. 

Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (“[T]his argument was not raised 

in the initial brief filed here. Accordingly, the claim is barred.”).

Further, these arguments are without merit. Trial counsel is not deficient 

simply because he did not hire a mitigation specialist. See id. at 256 (“[T]o the 

extent Hoskins argues that counsel was deficient solely for failing to hire a 

mitigation specialist, the claim is conclusory. Failure to use an ‘expert’ in 

mitigation investigation does not per se constitute ineffective assistance.”). 

Regarding Johnson’s sister, Johnson again offers only conclusory arguments. 

Further, Johnson’s sister testified the same at the evidentiary hearing as she did 

during the trial. Finally, with respect to trial counsels’ failure to provide Johnson’s 

mental health experts with all the necessary records and information, Johnson does 

not point to what specific records or information trial counsel failed to provide. 

Moreover, Dr. Toomer in his evidentiary hearing testimony did not point to any 

additional facts or information that were not known or provided to Dr. Williams.
- 50 -

With respect to PTSD, Johnson contends that evidence of Johnson’s PTSD 

was in Dr. Williams’s report, but that trial counsel simply did nothing with it. 

However, it is important to be clear that Dr. Williams’s trial testimony regarding 

PTSD—namely, that Johnson’s background suggested that he may have 

experienced PTSD throughout his childhood—was consistent with Dr. Williams’s 

written reports. Dr. Williams did not diagnose Johnson with having PTSD at the 

time of the murder in either his written reports or his trial testimony. Simply put, 

the trial record reflects that trial counsel presented the substance of Dr. Williams’s 

written reports to the jury.

In contrast to Dr. Williams, Dr. Toomer diagnosed Johnson with PTSD and 

explained how PTSD affected Johnson’s behavior in adulthood. To the extent that 

Johnson relies on Dr. Toomer’s differing diagnosis with respect to PTSD, he has 

failed to establish deficiency. Experts often have different diagnoses and arrive at 

different conclusions, as acknowledged by Dr. Toomer during the evidentiary 

hearing. The fact that Johnson has “now secured the testimony of [a] more 

favorable mental health expert[] simply does not establish that the original 

evaluations were insufficient.” Carroll v. State, 815 So. 2d 601, 618 (Fla. 2002). 

In conclusion, Johnson “did not prove that a reasonable trial attorney should have 

known to not rely on the conclusions offered by the mental health experts who 
- 51 -

evaluated him [prior to trial]. Thus, he did not prove that his counsel [were] 

deficient.” Stewart v. State, 37 So. 3d 243, 253 (Fla. 2010).

Turning to Johnson’s claim that his trial counsel failed to effectively utilize 

available mental health mitigation at trial, except for the difference in opinion with 

respect to PTSD, Dr. Toomer’s testimony regarding the diagnoses at the 

evidentiary hearing largely mirrored that of Dr. Williams at trial. Indeed, Dr. 

Toomer admitted as much at the evidentiary hearing. Dr. Toomer also opined as to 

the existence of the same two statutory mental health mitigators as Dr. Williams in 

his report and at trial, which were rejected by the trial court. Dr. Toomer further 

testified that he “agree[d] with Dr. Williams’ assessment,” other than not seeing in 

his report that the PTSD factors impacted his final decision. 

The crux of Johnson’s argument on this point is that Dr. Toomer did a better

job of presenting his findings than Dr. Williams and that trial counsel should have 

utilized Dr. Williams more effectively at trial. However, the record reflects that 

trial counsel consulted with two mental health experts (Dr. Williams and Dr. 

Brugnoli) and made a strategic decision as to which expert to present at trial. More 

importantly, trial counsels’ reliance on their retained expert, Dr. Williams, is not 

unreasonable simply because another expert presented better testimony of 

essentially and largely the same diagnoses in postconviction proceedings. This 

Court has “established that defense counsel is entitled to rely on the evaluations 
- 52 -

conducted by qualified mental health experts, even if, in retrospect, those 

evaluations may not have been as complete as others may desire.” Reese v. State, 

14 So. 3d 913, 918 (Fla. 2009) (quoting Darling v. State, 966 So. 2d 366, 377 (Fla. 

2007)); see also Stewart, 37 So. 3d at 252-53 (“[T]rial counsel’s reliance on his 

retained experts is not proven unreasonable simply because another expert, in this 

case Dr. Eisenstein, questions the thoroughness of the prior evaluations.”). 

Further, “[t]rial counsel’s investigation into mental-health mitigation ‘is not 

rendered incompetent merely because the defendant has now secured the testimony 

of a more favorable mental health expert.’ ” Floyd v. State, 18 So. 3d 432, 454 

(Fla. 2009) (quoting Asay v. State, 769 So. 2d 974, 986 (Fla. 2000)).

Finally, Johnson did not present any additional non-expert testimony at the 

evidentiary hearing that was not presented at trial. He presented testimony from 

Johnson’s sister, Danielle Blount Fernandez, who had testified at trial. However, 

she acknowledged on cross-examination that she did not testify during the 

evidentiary hearing to anything new or different than what she testified to at trial 

regarding her and Johnson’s background or childhood. 

In sum, Dr. Williams testified at trial in a manner consistent with his written 

reports, including his determination that while Johnson suffered symptoms of 

PTSD throughout childhood, those symptoms dissipated before Johnson became a 

teenager. Further, the expert testimony that Johnson presented at the evidentiary 
- 53 -

hearing from Dr. Toomer was similar—and therefore largely cumulative—to that 

of Dr. Williams, with the exception of an affirmative diagnosis of PTSD. 

Significantly, Dr. Toomer did not rely on any new facts or information not known 

to Dr. Williams. Finally, although Johnson presented testimony from his sister at 

the evidentiary hearing, she gave the same testimony as she did at trial. 

Accordingly, we conclude that Johnson has failed to establish that his trial counsel 

were deficient with respect to the presentation of mental health mitigation during 

the penalty phase.

V. Habeas Corpus Petition

In his habeas corpus petition, Johnson contends that his appellate counsel 

was ineffective for failing to raise as an issue on direct appeal the trial court’s

denial of a motion to suppress Johnson’s statement to law enforcement in which he 

confessed to the murder. Specifically, Johnson claims that after he waived his 

Miranda rights, law enforcement failed to scrupulously honor his unequivocal 

request to invoke his right to remain silent. He also argues that law enforcement 

used promises and coercion to induce Johnson to continue being interrogated. 

To be entitled to habeas relief on the basis of ineffectiveness of appellate 

counsel, the defendant must show:

[First] 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 
- 54 -

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

result.

Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting Pope v. Wainwright, 496 

So. 2d 798, 800 (Fla. 1986)). In order to meet this standard, the defendant must 

meet his or her “burden of alleging a specific, serious omission or overt act upon 

which the claim of ineffective assistance of counsel can be based.” Anderson v. 

State, 18 So. 3d 501, 520 (Fla. 2009) (quoting Freeman v. State, 761 So. 2d 1055, 

1069 (Fla. 2000)). Importantly, “[i]f a legal issue ‘would in all probability have 

been found to be without merit’ had counsel raised the issue on direct appeal, the 

failure of appellate counsel to raise the meritless issue will not render appellate 

counsel’s performance ineffective.” Walls v. State, 926 So. 2d 1156, 1175-76 (Fla. 

2006) (quoting Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000)).

Johnson’s primary contention is that Detective Flaherty failed to 

scrupulously honor Johnson’s termination of the interview as reflected below: 

JOHNSON: I don’t want to say no more.

DETECTIVE FLAHERTY: You sure?

JOHNSON: Yes.

DETECTIVE FLAHERTY: If you’re sure, that’s your right.

JOHNSON: Can I have a cigarette, please?

DETECTIVE FLAHERTY: I don’t have cigarettes here. We’ll 

see if I can get one for you.

JOHNSON: I know I did not pull a knife on her. 

Johnson’s statement, “I don’t want to say no more” was clearly unequivocal. See

Cuervo v. State, 967 So. 2d 155, 162-63 (Fla. 2007) (holding that defendant’s 
- 55 -

statement of “No quiero declarar nada,” which means “I don’t want to declare 

anything,” was “a clear invocation of the right to remain silent”). At that point, 

“the police officer’s obligation was clear: to immediately cease questioning and 

scrupulously honor [the defendant’s] exercise of his right to remain silent.” Id. at 

164. This Court has explained that

[a]fter a suspect invokes his or her Miranda

Id. (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). This Court has 

recently elaborated:

rights, police officers are 

prohibited from engaging in words or actions that the officers “should 

know are reasonably likely to elicit an incriminating response from 

the suspect.” The prohibition on further questioning applies not only 

when the defendant requests counsel, but also when the defendant 

exercises his or her right to remain silent.

Police fail to scrupulously honor a defendant’s invocation of the right 

to remain silent, and therefore violate that right, when, in the face of 

the invocation of that right, the police persistently and repeatedly 

engage in efforts to wear down a suspect’s resistance and make the 

suspect change his or her mind. 

Deviney v. State, 112 So. 3d 57, 74 (Fla. 2013) (citing Michigan v. Mosley, 423 

U.S. 96, 105-06 (1975)), cert. denied, 134 S. Ct. 518 (2013).

The record in this case demonstrates that Detective Flaherty did not 

“persistently and repeatedly engage in efforts” to wear down Johnson’s resistance 

and make him change his mind, id., nor did Detective Flaherty engage “in words or 

actions that [he] ‘should know are reasonably likely to elicit an incriminating 
- 56 -

response’ ” from Johnson. Cuervo, 967 So. 2d at 164 (quoting Innis, 446 U.S. at 

301).

The facts of this case stand in stark contrast to cases in which this Court has 

held that law enforcement did not scrupulously honor a defendant’s invocation of 

the right to remain silent. For example, in Cuervo, this Court held that the 

defendant’s unequivocal invocation of his right to remain silent was not 

scrupulously honored where law enforcement followed the invocation with having 

the defendant sign a Miranda rights form and informing the defendant that this was 

his opportunity to speak and explain his side of the story. Id. at 164-67. This 

Court reasoned:

[T]he officers engaged in conduct they could reasonably anticipate 

would elicit an incriminating response. After Cuervo invoked his 

right to remain silent and signed the rights form, [Detective] Palmieri 

instructed [Deputy] Garcia to tell Cuervo that he could give “his side 

of the story.” Garcia then told Cuervo, “[N]ow would be your 

opportunity if you wish to speak and explain your side of your story, 

your version of what happened.” * Garcia added that although 

Cuervo was not obligated to talk, if he wished to talk “there’s still 

time.” * These remarks undermined the warning to Cuervo that 

anything he said could be used against him in a court of law. In 

addition, the officer’s statement created the impression that, despite 

his expressed desire not to talk, Cuervo had a brief window in which 

to vindicate himself. Cuervo again declined to talk, but significantly, 

he felt compelled to provide an explanation for foregoing this 

“opportunity” to tell his “side of the story.”
- 57 -

Id. at 164-65. Another contrasting example is Deviney, in which, after the 

defendant repeatedly stated, “I’m done,” and attempted to end questioning by 

leaving the interrogation room, 

[t]he detectives responded by informing him that he was no longer 

free to leave because they were now formally taking him into custody 

and legally detaining him for the murder . . . . The detectives 

subsequently frisked Deviney, after which he stood and, more 

vehemently, attempted to end questioning by leaving the interview 

room. The detectives, however, blocked his exit and, with the threat 

of physical restraint, compelled him to sit down and remain in his 

seat. The detectives did not re-administer Miranda

Deviney, 112 So. 3d at 78.

warnings, nor did 

they cease questioning. Instead, the interrogation continued and, upon 

repeated questioning, Deviney confessed to [the] murder to both the 

police and his mother.

Here, Detective Flaherty asked, “You sure?” and, when Johnson stated, 

“Yes,” Detective Flaherty responded, “If you’re sure, that’s your right.” Johnson 

then asked for a cigarette and Detective Flaherty responded that he would see if he 

could get one for Johnson. Detective Flaherty did not resume questioning of any 

kind or make any statements to Johnson. It was Johnson who then reinitiated the 

interview about the crime on his own, stating “I know I did not pull a knife on 

her.” We conclude that the trial court did not err in denying Johnson’s motion to 
- 58 -

suppress, and appellate counsel was therefore not deficient for failing to raise this 

meritless issue on direct appeal. Walls, 926 So. 2d at 1175-76.12

The record also does not support Johnson’s claim that law enforcement 

made promises to Johnson in exchange for his cooperation. Detective Flaherty 

informed Johnson prior to his invocation of his right to remain silent that Vitale 

had already told law enforcement that Johnson committed the murder and that this 

was Johnson’s chance to “help yourself.” Johnson then stated: “Help myself, huh? 

Can I smoke a cigarette?” Detective Flaherty responded: “After we chat.” This is 

the portion of the record that Johnson cites in arguing that Johnson was previously 

promised a cigarette if he talked to the police. However, the record clearly shows 

that Johnson was not promised a cigarette in exchange for confessing or speaking 

with the police. We also note that both detectives who interrogated Johnson

testified that they did not make any promises to Johnson in exchange for his 

cooperation and that they did not coerce or intimidate him in any way.

 

12. Johnson raises some additional arguments for the first time in his Reply 

Brief, including that Johnson “tripped” while being handcuffed by Detective 

Griffith and that Detective Flaherty’s conduct was intimidating because he 

maintained “close proximity” to Johnson throughout the interview. Because these 

arguments are raised for the first time in Johnson’s Reply Brief, they are barred. 

See Hoskins, 75 So. 3d at 257. Further, the record does not contain any indication 

that Johnson was purposefully “tripped” while being handcuffed or that Detective 

Flaherty’s conduct was intimidating.
- 59 -

Regardless of whether the portion of the interview after Johnson stated that 

he did not want to say “no more” should have been suppressed, any error would 

have clearly been harmless beyond a reasonable doubt. See Deviney, 112 So. 3d at 

79 (“Miranda violations are subject to a harmless error analysis.”). Johnson argues 

that the error cannot be harmless because without his confession, “the [S]tate’s 

evidence would have relied almost exclusively” on Vitale’s testimony and 

“[w]ithout Mr. Johnson’s confession, the [S]tate’s case became threadbare and the 

result on trial would have been different.” However, Johnson overlooks that he 

confessed to killing the victim before he invoked his right to remain silent. 

Johnson then made similar statements afterwards.

Johnson denied mutilating the victim’s body both before and after the 

invocation of his right to remain silent. Moreover, the additional information 

elicited after the invocation of the right to remain silent consisted of additional 

details of what transpired the evening and morning before the victim was killed, as 

well as Johnson’s statements about his efforts to dispose of the body. This 

additional information, however, was also provided by extensive testimony 

introduced at trial, which largely corroborated Vitale’s testimony as to these 

details. Appellate counsel cannot be deficient for failing to raise a meritless claim 

on direct appeal. See Rutherford, 774 So. 2d at 643. Thus, Johnson is not entitled 

to relief on this claim.
- 60 -

CONCLUSION

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

and we also deny Johnson’s habeas petition.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, 

and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

Two Cases:

An Appeal from the Circuit Court in and for St. Lucie County, 

Dwight Luther Geiger, Judge - Case No. 562001CF000793A

And an Original Proceeding – Habeas Corpus

Craig J. Trocino, Special Assistant, and Scott Gavin, Staff Attorney, CCRC-South, 

Fort Lauderdale, Florida, 

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Lisa-Marie Lerner, 

Assistant Assistant Attorney General, West Palm Beach, Florida, 

for Appellee/Respondent