Supreme Court of Florida

____________

No. SC17-1623

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MARGARET A. ALLEN,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

January 7, 2019

REVISED OPINION

PER CURIAM.

Margaret Allen, a prisoner under sentence of death, appeals an order denying 

her motion for postconviction relief filed under Florida Rule of Criminal Procedure 

3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that 

follow, we affirm the circuit court’s order denying Allen’s motion for 

postconviction relief. 

BACKGROUND

In 2010, Allen was convicted of the kidnapping and first-degree murder of 

Wenda Wright. Allen v. State, 137 So. 3d 946, 953 (Fla. 2013). On direct appeal, 
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we affirmed her convictions and sentences, including a sentence of death for the 

murder, and summarized the guilt-phase evidence as follows:

Johnny [Dublin, Wenda Wright’s domestic partner], testified 

that on the day Wright went missing, Allen came to Dublin and 

Wright’s house and whispered something into Wright’s ear. In 

response, Wright and Allen left the house together. A little while 

later, Allen returned to Dublin’s house and told Dublin that Wright 

stole about $2000 of Allen’s money and Allen asked Dublin if she 

could search his house. Dublin obliged and Allen searched Dublin’s 

house. Dublin testified that he noticed that Allen had scratches on her 

when she came back to his house. Dublin asked Allen where Wright 

was, and Allen responded that she was still at Allen’s house. Dublin 

testified that the next day, Allen came back to his house and asked 

him where Wright was. Dublin testified that Quintin [Allen, a 

neighbor and friend of Allen] was with Allen. Quintin . . . testified for 

the State . . . that he was at Allen’s house on the day of the murder 

when Allen noticed that her purse was missing. Allen left her house, . 

. . returned . . . with Wright and asked Quintin to come inside. Allen 

told Quintin that Wright must have stolen Allen’s purse because 

Wright was the only person at Allen’s house before the purse went 

missing. Allen and Quintin searched for the purse. Allen left the 

house again and told Quintin not to let Wright leave if she tried. At 

one point while Allen was gone, Wright tried to leave; Quintin told 

Wright that Allen wanted her to stay, and Wright obliged.

Upon Allen’s return, Quintin plaited Allen’s hair. Quintin 

testified that at one point Wright started crying and begged Allen to 

let her go home. Wright attempted to leave Allen’s house and Allen 

hit Wright on the head; Wright fell to the ground. Quintin testified 

that Allen had a gun and told him that if he did not help her with 

Wright, she would shoot him, so Quintin held Wright down on the 

floor. While he held Wright down, Allen found chemicals including 

bleach, fingernail polish remover, rubbing alcohol and hair spritz and 

poured them all onto Wright’s face. At one point, one of Allen’s 

children walked into the room in which this was taking place, and 

Allen told the child to rip off a piece of duct tape for Allen. Allen 

attempted to put the duct tape over Wright’s mouth, but because 

Wright’s face was wet from the chemicals that were poured on her 
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face, the duct tape would not stick to her skin. Allen retrieved belts 

from her closet and beat Wright with them. Quintin then tied 

Wright’s feet together with one of the belts. Quintin testified that at 

that point Wright was not struggling. Allen then put one of the belts 

around Wright’s neck and pulled. At one point, Wright said, “Please, 

stop. Please stop. I am going to piss myself.” Wright’s body started 

shaking and after about three minutes, Wright did not move. Allen 

then told Quintin to get some sheets to tie Wright’s hands together in 

case Wright woke up.

Quintin left soon after the incident. Allen called Quintin 

throughout the night, but he did not answer her calls. The next day, 

Allen found Quintin at the barbershop. Quintin testified that Allen 

still had the gun. Quintin got into the truck that Allen was driving; 

James Martin [a friend of Allen] was also in the truck. Allen told 

Quintin that Wright was dead. Allen then told Quintin that he had to 

help her get rid of the body. Allen, Quintin, and Martin drove to 

Lowe’s to buy plywood to help move Wright’s body from inside the 

house into the truck. They also borrowed a dolly hand truck from a 

local shop to help move the body. Quintin testified that upon 

returning to Allen’s house, Wright’s body had been moved from 

where he had last seen her and had been wrapped in Allen’s carpet. 

They were eventually able to get Wright’s body into the truck. Then, 

all three took shovels from Allen’s mother’s tool shed and drove to an 

area off of the highway to dump Wright’s body. Quintin and Martin 

dug a hole while Allen stood as a lookout. They placed Wright’s 

body in the hole, covered the hole with debris, and took the carpet 

with them. They threw the carpet into a dumpster outside of a truck 

stop and picked up Allen’s daughter from school. Quintin went to the 

police and turned himself in. Quintin also took the police to the place 

where Wright’s body had been buried.

James Martin testified . . . that on the day of the murder, he was 

at Allen’s house helping her repair a car. Allen asked Martin to help 

her search for her purse, and Martin did. He testified that he left 

Allen’s house around 10 p.m. to get a starter belt for the car. Martin 

finished repairing the car and asked Allen if she had any cocaine. She 

did not, so Martin left Allen’s house, found cocaine, came back to 

Allen’s house, and smoked it. Martin testified that when he got back 

from finding the cocaine, Wright was the only one at Allen’s house. 
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Martin testified that the timing of the events of the day was unclear 

because he had been high. Martin testified that he slept at Allen’s 

house until the morning and got a ride from Allen when she took her 

children to school. At that point, Allen told Martin that she needed 

help. Allen and Martin went back to Allen’s house, and Martin saw 

Wright’s body. Martin testified that Allen told him, “He must have 

hit her too hard.” Martin testified that he noticed a bandana tied 

around Wright’s hands. Allen told Martin that they had to bury 

Wright’s body. Allen sent Martin to Allen’s brother’s house to 

borrow a truck. Martin testified that the truck was never found by 

police. Martin testified that the entire plan, including getting the 

plywood at Lowe’s was Allen’s idea. Martin testified that he was the 

only smoker of the group, and he dumped all of the ashtrays out of the 

car after they buried the body. When they got back to Allen’s house, 

Quintin left, and Martin cleaned the nylon strap that had been used to 

secure the carpet around Wright’s body. Martin also washed the truck 

but testified that he did not know what became of the vehicle. Martin 

was at Allen’s house when the police came to Allen’s house with a 

search warrant.

. . . .

Denise Fitzgerald, a crime scene technician, testified that she 

exhumed Wright’s body and located a cigarette butt in the vicinity. 

The State and defense stipulated that the DNA found on the cigarette 

butt was consistent with Martin’s DNA. Dr. Sajid Qaiser, a forensic 

pathologist and chief medical examiner for Brevard County, testified 

that . . . a body cannot bruise once dead and that Wright had bruising 

in the following places: upper and lower eye lid, front and back of her 

ear, left torso, all over the left side, trunk, right hand, thigh, knee, left 

eyebrow, forehead, upper arm and shoulder area. Additionally, 

Wright’s chest, hands, torso, face, and lower lip had contusions. 

Wright’s wrist showed signs of ligation, meaning her hands were tied. 

Wright’s neck showed signs of ligation, meaning that she was either 

hung or something was tied tightly around her neck. Dr. Qaiser 

testified that his medical conclusion was that Wright’s death was the 

result of homicidal violence, and strangulation and ligature were an 

important cause of death. Dr. Qaiser testified that Wright was 

morbidly obese, with an enlarged heart, which contributed to her 

death. He testified that it would take from four to six minutes of 

strangulation to die. He could not tell whether she was rendered 

unconscious during the beating.
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Id. at 951-53. The record also shows that while the autopsy report concluded that 

cocaine intoxication was a cause of Wright’s death, Dr. Qaiser testified that he did 

not agree with the conclusion. 

After convicting Allen of kidnapping and first-degree murder, Allen’s jury 

unanimously recommended a death sentence. The trial court followed the jury’s 

recommendation, finding two aggravators1 and four nonstatutory mitigating 

circumstances.

2

 On appeal, this Court affirmed the death sentence. Id. at 969. 

Allen’s death sentence became final in 2014. Allen v. Florida, 135 S. Ct. 362 

(2014).

Thereafter, Allen timely filed her initial motion for postconviction relief 

under Florida Rule of Criminal Procedure 3.851, raising fourteen claims with 

subparts. Allen sought leave to amend her rule 3.851 motion to add a Hurst v. 

 

1. The trial court found the following aggravators: (1) the capital felony was 

committed while the defendant was engaged, or was an accomplice, in the 

commission of, or an attempt to commit, or flight after committing or attempting to 

commit a kidnapping (great weight); and (2) the capital felony was especially 

heinous, atrocious, or cruel (great weight). Id. at 955.

2. The mitigating circumstances found were the following: (1) Allen 

was the victim of physical abuse and possible sexual abuse in the past (some 

weight); (2) Allen has brain damage as a result of prior acts of physical 

abuse and the brain damage results in episodes of lack of impulse control

(some weight); (3) Allen grew up in a neighborhood where there were acts 

of violence and illegal drugs (some weight); and (4) Allen helped people in 

her life (little weight). Id.
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Florida claim and a Hurst v. State claim.3 The postconviction court accepted the 

amendments and held an evidentiary hearing on the fourteen claims.4 The trial 

 

3. Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State, 202 So. 3d 40 

(Fla. 2016), cert. denied 137 S. Ct. 2161 (2017).

4. Allen raised the following claims in her amended rule 3.851 motion: (1) 

trial counsel was ineffective for failing to strike juror Carll for cause or 

peremptorily; (2) trial counsel was ineffective for failing to properly impeach 

former-codefendant-turned-State-witness Quintin’s testimony with his prior 

inconsistent statement indicating that Allen poured chemicals on the victim; (3) 

trial counsel was ineffective in eliciting improper testimony on cross-examination 

of Quintin; (4) trial counsel was ineffective for failing to impeach Quintin with 

prior inconsistent statements and for failing to cross-examine Quintin about his 

statement regarding his possession of $4,000 two days after the victim’s death; (5) 

trial counsel was ineffective for failing to object to prosecutorial misconduct in the 

guilt phase closing arguments; (6.1) trial counsel was ineffective in failing to 

object that the prosecutor misrepresented evidence and testified to facts not in 

evidence in the guilt phase closing arguments; (6.2) trial counsel was ineffective in 

failing to object and request a curative instruction when the prosecutor 

misrepresented Dr. Qaiser’s testimony regarding the time it takes for strangulation 

to lead to death; (6.3) trial counsel was ineffective in failing to object when the 

prosecutor misrepresented Dr. Qaiser’s testimony regarding evidence of petechia 

on the victim; (6.4) trial counsel was ineffective in failing to object and request a 

curative instruction when the prosecutor read from the autopsy report and 

misrepresented its findings during the guilt phase closing argument; (6.5) trial 

counsel was ineffective in failing to object when the prosecutor misstated the 

elements of first-degree felony murder; and (6.6) the cumulative effects of the 

errors in counsel’s performance constituted prejudice for Allen; (7) trial counsel 

was ineffective in failing to object to Dr. Qaiser’s testimony that unconscious 

people can feel pain; (8.1) trial counsel was ineffective during the penalty phase 

for failing to object and move for a mistrial on the ground that the prosecutor 

presented information about Allen’s drug convictions as an inadmissible 

nonstatutory aggravator; (8.2) trial counsel was ineffective during the penalty 

phase for failing to object and move for a mistrial on the ground that the prosecutor 

argued lack of remorse during cross-examination of Dr. Wu; (8.3) trial counsel was 

ineffective during the penalty phase for failing to object and move for a mistrial on 

the ground that the prosecutor twice referenced Allen’s future dangerousness; (8.4) 
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trial counsel was ineffective during the penalty phase for failing to object and 

move for a mistrial on the ground that the prosecutor presented information about 

Allen’s time in prison as an inadmissible nonstatutory aggravator; (8.5) trial

counsel was ineffective during the penalty phase for failing to object and move for 

a mistrial on the ground that the prosecutor analogized pouring liquid on the 

victim’s face to waterboarding; (8.6) trial counsel was ineffective during the 

penalty phase closing argument for failing to object on the ground that the 

prosecutor made an improper golden rule argument; (8.7) trial counsel was 

ineffective during the penalty phase closing argument for failing to object on the 

ground that the prosecutor made an improper golden rule argument; (8.8) trial 

counsel was ineffective during the penalty phase closing argument for failing to 

object and move for a mistrial on the grounds that the prosecutor added to the 

authority of his office and misstated evidence; (8.9) trial counsel was ineffective 

during the penalty phase closing argument for failing to object and move for a 

mistrial on the ground that the prosecutor denigrated Dr. Gebel’s testimony and 

misrepresented it; (8.10) trial counsel was ineffective during the penalty phase 

closing argument for failing to object and move for a curative instruction on the 

ground that the prosecutor misstated the evidence presented by Dr. Wu; (8.11) trial 

counsel was ineffective during the penalty phase closing argument for failing to 

object and move for a mistrial on the ground that the prosecutor introduced 

evidence of bad character; (8.12) trial counsel was ineffective during the penalty 

phase closing argument for failing to object and move for a mistrial on the grounds 

that the prosecutor attempted to gain sympathy and cloaked the State’s case with 

legitimacy as a death case; (8.13) the cumulative effects of the errors in counsel’s 

performance constituted prejudice for Allen; (9) trial counsel was ineffective in 

questioning Allen’s aunt about the culture of “drugs, thugs, and violence,” which 

opened the door to other questions about Allen’s participation in that environment; 

(10) the State committed a Giglio v. United States, 405 U.S. 150 (1972), violation 

in the penalty phase by eliciting and failing to correct false testimony that Allen 

was convicted several times for selling drugs; (11) trial counsel was ineffective in 

failing to acquire and present expert witness testimony to refute and clarify Dr. 

Qaiser’s testimony; (12) trial counsel was ineffective in failing to elicit testimony 

from Dr. Wu about two statutory mitigators; (13) trial counsel was ineffective in 

failing to investigate and present mitigation testimony; and (14) trial counsel was 

ineffective in failing to call Quintin at the penalty phase to testify to Allen’s 

demeanor at the time of the offenses.
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court denied the motion in its entirety, including summarily denying the Hurst v. 

Florida and the Hurst v. State claims. 

Allen appealed the denial of her rule 3.851 motion, arguing that the 

postconviction court erred with respect to the following claims: (1) that trial 

counsel was ineffective for failing to object to improper prosecutorial comments 

and misstatements and for failing to move for a mistrial during guilt phase 

closings; (2) that trial counsel was ineffective for failing to investigate and present 

certain mitigation evidence; (3) that trial counsel was ineffective for eliciting 

testimony from former-codefendant-turned-State-witness Quintin that Allen 

poured chemicals on the victim; (4) that trial counsel was ineffective for failing to 

object to Dr. Qaiser’s testimony that unconscious people feel pain; (5) that trial 

counsel was ineffective for failing to object and move for a mistrial during penalty 

phase closings based on prosecutorial misconduct; (6) that trial counsel was 

ineffective for asking if Allen became a part of the culture of “drugs, thugs, and 

violence”; (7) that trial counsel was ineffective for failing to call his own forensic 

expert; (8) that trial counsel was ineffective for failing to impeach Quintin with 

prior inconsistent statements; (9) that trial counsel was ineffective for failing to 

adequately challenge or strike a juror during voir dire; (10) that the State 

committed a Giglio violation by eliciting and failing to correct false testimony that 
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Allen was convicted several times for selling drugs; and (11) that Allen is entitled 

to a new penalty phase under Hurst v. Florida and Hurst v. State.

ANALYSIS

Allen argues that the circuit court erred in denying eleven claims in her 

postconviction motion. Nine of the claims allege ineffective assistance of 

counsel—one pertaining to the guilt phase, five to the penalty phase, two to both 

phases, and one to jury selection; the tenth claim alleges a Giglio violation; and the 

final claim alleges a Hurst error. We address each claim in turn.

I. Ineffective Assistance of Counsel

Allen first argues that her trial counsel was ineffective. Claims of 

ineffective assistance of counsel are analyzed in accordance with Strickland v. 

Washington, 466 U.S. 668 (1984). To be entitled to relief, the defendant must 

establish the following two prongs, deficient performance and prejudice:

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.

Peterson v. State, 221 So. 3d 571, 583 (Fla. 2017) (quoting Schoenwetter v. State, 

46 So. 3d 535, 546 (Fla. 2010)). 

To establish the Strickland deficiency prong, “the defendant must 

demonstrate that counsel’s performance was unreasonable under ‘prevailing 
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professional norms.’ ” Id. at 583-84 (quoting Strickland, 466 U.S. at 688). There 

is a strong presumption that counsel’s performance was not ineffective. See 

Strickland, 466 U.S. at 690. “A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of hindsight, to 

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

conduct from counsel’s perspective at the time.” Id. at 689. Moreover, counsel’s 

“strategic 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). 

The Strickland prejudice prong requires the defendant to show that “there is 

a reasonable probability that, but for counsel’s professional errors, the result of the 

proceeding would have been different,” where “[a] reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 466 

U.S. at 694. Specifically for claims of ineffective assistance of counsel during the 

penalty phase, a defendant must show that, absent the errors, “the sentencer . . . 

would have concluded that the balance of aggravating and mitigating 

circumstances did not warrant death,” id. at 695, meaning that counsel’s 

ineffectiveness “deprived the defendant of a reliable penalty phase proceeding,” 

Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011). 
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Further, “because the Strickland standard requires establishment of both 

prongs, when a defendant fails to make a showing as to one prong, it is not 

necessary to delve into whether he has made a showing as to the other prong.” 

Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001). We review the 

postconviction court’s factual findings for competent, substantial evidence, while 

reviewing its ultimate conclusions on both prongs de novo. See Peterson, 221 So. 

3d at 584. We affirm the postconviction court’s denial on the merits of Allen’s

nine ineffective assistance of counsel claims as set forth below.

1. Failure to object to improper prosecutorial comments and misstatements 

and to move for a mistrial during guilt phase closing arguments

Allen argues that her trial counsel was ineffective for failing to move for a 

mistrial and object to the prosecutor’s improper comments during the guilt phase 

closing arguments. 

Subclaim 1

Allen first claims that trial counsel should have objected and requested a 

curative instruction when the prosecutor misstated that, to prove first-degree felony 

murder, the State only needed to prove that Wright died during the kidnapping, not 

how she died. 

The record shows that the prosecutor stated during closing argument, “All 

we have to prove is that during the course of the kidnapping she died. And it 

doesn’t matter how.” However, earlier in the argument, the prosecutor also 
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accurately described each of the elements of first-degree felony murder, which 

includes proving that the death occurred as a consequence of the kidnapping. The 

State also correctly presented the elements of first-degree felony murder on a 

visual display to the jury, and the elements were contained in the jury instructions. 

Allen argues that counsel’s performance prejudiced her jury by influencing 

them to believe that Allen could still be guilty of felony murder even if the cocaine 

intoxication, and not the strangulation, caused Wright’s death. However, Allen has 

failed to demonstrate prejudice, considering the totality of the correct descriptions 

of the elements of felony murder available to the jury. See Carratelli v. State, 961 

So. 2d 312, 324 (Fla. 2007) (“Under Strickland, to demonstrate prejudice a 

defendant must show that there is a reasonable probability—one sufficient to 

undermine confidence in the outcome—that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.”) (citing Strickland,

466 U.S. at 694). There is no reasonable probability that, but for counsel’s failure 

to object, the outcome would have been different. Our confidence in the outcome 

is not undermined. Because Allen has failed to establish the prejudice prong, we 

need not address deficiency. See Strickland, 466 U.S. at 697 (“[T]here is no reason 

for a court deciding an ineffective assistance claim . . . to address both components 

of the inquiry if the defendant makes an insufficient showing on one.”). Therefore, 

we conclude that the trial court properly denied postconviction relief on this claim.
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Subclaim 2

Allen claims that trial counsel should have objected when the prosecutor 

mentioned his distaste for plea bargaining with codefendants and indicated that 

Allen was more culpable than Quintin. Allen also claims that counsel should have 

objected when the prosecutor denied that evidence of a plea offer to Allen existed, 

and that counsel should have requested that the jury be instructed about the plea 

offer discussions that took place. This claim is without merit because Allen has 

failed to establish prejudice. There is not a reasonable probability that, but for 

counsel’s failure to object, the outcome would have been different. Allen is 

therefore not entitled to relief on the merits. 

Subclaim 3

Allen claims that trial counsel should have objected when the prosecutor

stated that petechia results from a tight strangulation. Allen argues that counsel’s 

deficient performance prejudiced her jury because it reduced doubt in the jury 

members’ minds that strangulation actually occurred. 

The record shows that in the guilt phase closing argument, the prosecutor 

stated that “[Allen] is the one holding that belt around her neck so tightly that it 

would even cause petechia, the little pinpoint blood vessels that pop in your eyes. 

Okay? So tight that Dr. Qaiser said that you don’t get it unless it is held real tight.” 

On cross-examination, Dr. Qaiser testified that “whenever the strangulation is 
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complete and really tight, you won’t see petechia” and noted that he “did not see” 

evidence of petechia in the autopsy photographs. 

Allen has failed to demonstrate that counsel’s failure to object to the 

prosecutor’s misstatement prejudiced her. The evidence presented at trial showed

that Wright was tortured, bound, and strangled by Allen. Whether petechia 

occurred from the strangulation of Wright does not weaken the evidence made 

available to the jury. Further, the jury heard from Dr. Qaiser that petechia does not 

occur during a tight strangulation, and that the autopsy photos did not reveal that 

petechia occurred. In light of this, there is no reasonable probability that, but for 

counsel’s failure to object, the outcome would have been different. Our 

confidence in the outcome is not undermined. Because Allen has not demonstrated 

prejudice, we need not address the deficient performance prong. See Strickland,

466 U.S. at 697. Therefore, we conclude that the circuit court properly denied 

relief on this claim.

Subclaim 4

Allen argues that trial counsel should have objected when the prosecutor

stated that it takes “three or four minutes” to die of strangulation.

The record shows that during the State’s direct examination, Dr. Qaiser 

testified in response to the question, “How long does it take a person to strangle –

to die from strangulation?” that “[w]ithin four to six minutes only a person can 
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die.” Quintin testified at trial that Allen held the belt “around [Wright’s] neck for 

three minutes,” and that Wright stopped moving after three minutes. In the guilt 

phase closing argument, the prosecutor made the following statement: “[Y]ou can 

take this for discussion, that placing a rope around someone’s neck and holding it

there for three or four minutes, because that is what Dr. Qaiser said it would take, 

okay, three or four minutes, all right, that may have some aspects of premeditation 

here.” 

Allen has failed to demonstrate prejudice. The prosecutor’s statement that it 

takes “three or four” minutes to die of strangulation was not wholly inconsistent 

with the evidence presented at trial that it takes “four to six minutes” to die of 

strangulation, because “four” is a correct amount of time. Allen has not shown that 

there is a reasonable probability that, but for hearing the misstated amount of time, 

the jurors would not have found Allen guilty. Therefore, no prejudice occurred. 

See Carratelli, 961 So. 2d at 324. Our confidence in the outcome is not 

undermined. Because Allen has not demonstrated prejudice, we need not address 

the deficient performance prong. See Strickland, 466 U.S. at 697. Therefore, we 

conclude that the circuit court properly denied relief on this claim.

Subclaim 5

Allen argues that trial counsel should have objected and requested a curative 

instruction when the prosecutor misstated that Wright’s neck injuries were internal 
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instead of external. Allen argues that this prejudiced her jury because the 

misstatement regarding internal injuries would have convinced them that Wright 

was violently strangled, a conclusion they might not have reached had they heard 

the truth that her neck injuries were merely external.

The record shows that the prosecutor stated during direct examination of Dr. 

Qaiser that the autopsy report “refers to external evidence of injury.” In the guilt 

phase closing argument, the prosecutor read aloud from Dr. Whitmore’s autopsy 

report, stating, “Then on top of that Dr. Whitmore said—it’s sort of vague what he 

said—atraumatic neck, but then he says, ‘see evidence of internal injuries,’ and 

then we read that in which he says there is contusions on both sides of the neck.” 

Counsel’s failure to object to this minor misstatement was not prejudicial to 

Allen. Based on the totality of the record, which shows that Allen bound, tortured, 

beat, and strangled Wright, confidence in the outcome is not undermined so as to 

establish prejudice. See Carratelli, 961 So. 2d at 324. Had the jury not heard the 

prosecutor say that Wright’s neck injuries were “internal,” there is no reasonable 

probability that the outcome would have been different. We need not address the 

deficient performance prong. See Strickland, 466 U.S. at 697. Accordingly, we

conclude that the circuit court properly denied relief on this claim.

Subclaim 6
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Allen argues that the cumulative impact of the alleged errors deprived her of 

her right to a fair trial. However, Allen has failed to establish error as to the denial 

of any claim raised. Because each individual subclaim is either without merit or 

procedurally barred, the claim of cumulative error fails. See Anderson v. State, 18 

So. 3d 501, 520 (Fla. 2009) (rejecting a cumulative error claim when the individual 

claims did not establish ineffective assistance of counsel); Israel v. State, 985 So. 

2d 510, 520 (Fla. 2008) (holding that where individual alleged claims of error are 

“procedurally barred or without merit, the claim of cumulative error also 

necessarily fails”) (quoting Parker v. State, 904 So. 3d 370, 380 (Fla. 2008)). 

Accordingly, we affirm the circuit court’s finding that Allen is not entitled to relief 

on this claim.

2. Failure to properly investigate and present additional mitigation evidence

Allen argues that trial counsel was ineffective for failing to investigate and 

present certain mitigating evidence about Allen’s traumatic background and mental 

health during the penalty phase. Specifically, she claims that additional mitigation 

evidence should have been uncovered and presented, including the existence of 

post-traumatic stress disorder (PTSD) and extensive sexual and physical abuse. 

We conclude that the absence of this mitigating evidence does not satisfy 

Strickland’s requirement of prejudice.
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At the evidentiary hearing, Allen presented the testimony of Allen’s former 

boyfriend, who testified that he sold drugs with Allen and frequently physically 

abused her throughout the duration of their relationship. He recounted instances of 

extremely violent episodes, described Allen having frequent anxiety attacks, and 

stated that he could not say whether he would have testified at trial had he been 

asked. He further testified, inconsistently with his other statements, that he also 

believed that he either more than likely or would have spoken with the defense 

team had they approached him. He testified that at the time of Allen’s trial in 

2010, he was living in a federal halfway house after serving ten years in prison. In 

addition, another of Allen’s aunts gave extensive and detailed testimony that Allen 

suffered physical and sexual abuse as a child at the hands of her mother, 

grandfather, and brother and that she experienced severe domestic violence as an 

adult. She stated that Allen suffered from intense anxiety and that she would have 

testified at trial had she been asked. Allen’s daughter also stated that she would 

have testified at trial if she had been asked. She testified to seeing her mother 

being beaten up by multiple boyfriends and admitted that she had not been 

forthcoming in her deposition immediately after the murder. Allen’s son testified 

that he would have been available to testify at Allen’s trial, if asked, and that he 

witnessed Allen’s physical abuse and frequent mood swings when he was a child.
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Dr. Russell testified at the evidentiary hearing for Allen. In preparation for 

his testimony, he met with Allen and several family members to discuss her 

childhood and behavioral problems. He testified of his theory that Allen’s 

childhood traumas caused her to suffer from PTSD, which he said she experienced 

at the time of Wright’s murder. He then testified that in light of Allen’s history, 

records, discussions with her family, and observable emotional dysregulation, she 

could have been in a state of extreme emotional disturbance at the time of the 

homicide. He stated that persons who are unable to control their emotions would 

eventually lose their ability to think rationally if faced with the situation that Allen 

faced the day of the homicide. He testified that had he only reviewed the limited 

information given to Dr. Gebel at trial, he would not have been able to come to the 

PTSD diagnosis. He admitted on cross-examination that Allen did not tell him 

what she was thinking or feeling at the time of the homicide, and that Allen denied 

murdering Wright. 

Dr. Gamache, the State’s expert at the evidentiary hearing, testified that after 

reviewing numerous records, including the discovery related to the case and 

investigation and Allen’s medical and psychological records, he did not believe 

that any significant mitigation evidence was left out of Allen’s penalty phase. He 

testified that the jury was informed by Dr. Gebel and Dr. Wu in sufficient detail of 

Allen’s childhood trauma, past sexual and physical abuse, and domestic violence. 
- 20 -

He also explained that Allen currently exhibited no PTSD symptoms and had never 

been diagnosed with the disorder, other than by Dr. Russell. He also stated that 

there was no evidence that Allen displayed PTSD symptoms at the time of the 

homicide. 

Allen’s trial counsel testified at the evidentiary hearing that he made several 

attempts to talk to Allen’s family members and asked Allen’s aunt, Myrtle Hudson,

several times when he could speak with them. He testified that Allen did not want 

to discuss the case when he met with her and that she did not want her daughter 

involved in the case. He stated that he made no attempts to talk with Allen’s 

daughter because he was told that she would be uncooperative and did not want 

anything to do with Allen. He testified that he was hesitant to put her on the stand 

because she could be impeached. He also testified that he was never provided with 

any of the names of Allen’s former boyfriends but that he asked Allen who they 

were. 

Trial counsel also testified that he believed that psychologist Dr. Gebel and 

neuropsychiatrist Dr. Wu were sufficient to testify to Allen’s mental health issues 

at the penalty phase. Dr. Gebel reviewed Allen’s history and interviewed Allen 

once, telling the jury about the significant intracranial injuries she suffered, as well 

as her frontal lobe disorder, decreased cognitive ability, and impulse control issues 

that would prevent Allen from behaving normally and from understanding the 
- 21 -

consequences of her behavior. Dr. Wu explained to the jury that certain areas of 

Allen’s brain did not function normally and that she suffered from lack of impulse 

control. 

At trial, counsel presented the testimony of Dr. Wu, Dr. Gebel, and Allen’s 

aunt Myrtle Hudson that outlined Allen’s mental health issues and the physical and 

sexual abuse she suffered while growing up and as an adult. The jury heard of her 

issues with impulse control, her intracranial brain injuries, and the traumatic 

childhood and violent relationships she endured. 

Upon review of the trial court’s order and record, we conclude that defense 

counsel’s mitigation investigation did not prejudice Allen. Had the additional 

mitigation evidence been introduced as Allen claims, there is no reasonable 

probability that the outcome would have been different. First, Allen 

overemphasizes the value of evidentiary hearing testimony presented by Allen’s 

family members and Dr. Russell. The testimony presented regarding Allen’s 

background was cumulative to the mitigation already presented at trial. This Court 

has “repeatedly held that counsel is not ineffective for failing to present cumulative 

evidence.” Jones v. State, 998 So. 2d 573, 586 (Fla. 2008); see also Rhodes v. 

State, 986 So. 2d 501, 512-13 (Fla. 2008) (“Even if we were to find counsel’s 

conduct deficient, [the defendant] cannot demonstrate prejudice. Any testimony 

the additional witnesses would have provided would have been cumulative to that 
- 22 -

provided by the witnesses at resentencing. . . . The additional testimony would only 

have added to the mitigation already found. Even if given more weight, the 

mitigation would not outweigh the . . . strong aggravators . . . .”). The absence of 

the more specific evidence regarding Allen’s traumatic upbringing therefore does 

not render the penalty phase unreliable. Further, the jury’s recommendation of 

death was unanimous, and the trial court found that the State established two 

significant aggravators: (1) committed while Allen was engaged in the commission 

of kidnapping; (2) especially heinous, atrocious, or cruel. See Allen, 137 So. 3d at 

953-54. In light of this aggravation, Allen has not established how the additional

mitigation presented at the evidentiary hearing would impact the balancing of 

aggravating and mitigating factors by the jury. See England v. State, 151 So. 3d 

1132, 1138 (Fla. 2014) (“For a defendant to establish that he was prejudiced by 

trial counsel’s failure to investigate and present mitigation, the defendant ‘must 

show that but for his counsel’s deficiency, there is a reasonable probability he 

would have received a different sentence. To assess that probability, we consider 

the “totality of the available mitigation evidence—both that adduced at trial, and 

the evidence adduced in the [postconviction] proceeding”—and “reweig[h] it 

against the evidence in aggravation.” ’ ”) (quoting Dennis v. State, 109 So. 3d 680, 

695 (Fla. 2012))). 
- 23 -

Moreover, defense counsel’s failure to present more evidence of Allen’s 

mental health did not prejudice Allen. Dr. Russell testified that Allen was likely 

under the influence of an extreme emotional disturbance at the time of the crime, 

but admitted on cross-examination that Allen never told him what was going 

through her mind at the time of the capital felony. He also conceded that she 

denied killing Wright. The value of his opinion that she suffered from an extreme 

mental or emotional disturbance at the time of the homicide is therefore weakened. 

Further, the State’s rebuttal expert, Dr. Gamache, rebutted Dr. Russell’s findings, 

testifying that there was insufficient evidence from which to conclude that Allen 

suffered from PTSD throughout her life and at the time of the homicide. The

additional mitigation presented would not have outweighed the established 

aggravating factors to undermine the confidence in the outcome such that Allen 

would have received a life sentence. See Jones, 998 So. 2d at 585 (determining 

that there was no reasonable probability that evidence of the defendant’s mental 

health history would have led to a different outcome where the State had 

established three aggravating factors, including the HAC aggravator); Breedlove v. 

State, 692 So. 2d 874, 878 (Fla. 1997) (holding that aggravating factors of HAC, 

prior violent felony, and murder committed during the course of a burglary 

overwhelmed mitigation testimony presented regarding childhood abuse and 

alcohol abuse).
- 24 -

Further, based on trial testimony, the trial court found, as nonstatutory 

mitigating factors, that Allen was a victim of physical abuse, possible sexual abuse,

and that she has brain damage. The additional mitigation testimony would have, at 

most, only added weight to these mitigating circumstances. Allen has failed to 

establish that her sentence would have been different had the court given more 

weight to these nonstatutory mitigators. See Jones, 998 So. 2d at 587. Our 

confidence in the outcome is not undermined. 

For these reasons, we affirm the postconviction court’s denial of this claim.

3. Improper eliciting of testimony that Allen poured chemicals on the victim

Allen claims that trial counsel was ineffective during his recross of Quintin

because counsel’s questioning elicited testimony that Allen argues was harmful to 

the defense. 

The record reflects that in Quintin’s deposition he stated that Allen poured 

caustic substances “on” Wright’s face. In his police statement, Quintin stated that 

he could not remember which specific substances were poured onto Wright, but 

that it was “a whole bunch of stuff.” During direct examination, when asked if he 

knew the types of liquids that were poured onto Wright’s face, he answered, “It 

was the bleach, the green rubbing alcohol, the spritz for hair, fingernail polish 

remover.” On cross-examination, trial counsel asked if each of the chemicals was

poured separately into Wright’s eyes and mouth, and Quintin answered, “Yes, sir.” 
- 25 -

On redirect examination, Quintin testified that he was not sure what liquids were 

poured onto Wright other than rubbing alcohol. Then, on recross-examination, 

when trial counsel asked several times which specific substances were poured onto 

Wright, Quintin testified that “bleach, nail polish remover, and ammonia” were 

poured “in” Wright’s face and eyes and down her mouth. The record also shows 

that Dr. Qaiser testified that the autopsy report did not indicate that any bleach or 

caustic substances were ever poured down Wright’s throat. 

Allen asserts that Quintin’s testimony on recross-examination that Allen 

poured bleach, nail polish remover, and ammonia in Wright’s face, mouth, and 

eyes was more specific and damaging to her case than his previous, more generic, 

testimony. Allen argues that the elicitation of this testimony was deficient 

representation because it harmed the defense’s case by painting for the jury a more 

painful picture of the specific harmful ways that Wright was tortured. The 

postconviction court found that trial counsel’s tactics were not unreasonable, and 

we agree. The record demonstrates that counsel was not deficient in eliciting 

Quintin’s testimony on recross-examination that bleach, ammonia, and nail polish 

remover were poured into Wright’s eyes, mouth, and face. Quintin’s testimony on 

direct examination specifically mentioned bleach and nail polish remover, but was 

inconsistent with his other testimony. In his police statement, Quintin said that he 

could not remember which substances were used, and he also stated on cross- and 
- 26 -

redirect examination that he could not specifically identify the types of substances 

poured onto Wright. Counsel’s questions regarding which substances were 

poured, and the elicitation of Quintin’s answer regarding nail polish, ammonia, and 

bleach, were appropriate because counsel was impeaching Quintin by attempting to 

show the inconsistencies in his testimony. Counsel’s elicitation of this testimony

on recross-examination was a reasonable tactical decision that resulted in the 

impeachment of Quintin. Additionally, his testimony about the bleach was further 

impeached by the forensic evidence and Dr. Qaiser’s testimony that no evidence of 

bleach was found on Wright. Trial counsel was therefore not deficient for the 

strategic decision to impeach Quintin in that manner. 

Moreover, even if counsel was deficient, Allen has not suffered prejudice. 

The trial court’s HAC aggravator determination was based on a multitude of 

evidence that was unrelated to the types of chemicals poured onto Wright. The 

record shows that Allen tied and bound, beat, tortured, and strangled Wright. 

There is not a reasonable probability that the outcome would have been different 

had the jury not heard the specific testimony regarding which chemicals were 

poured onto Wright and where they were poured. Brant v. State, 197 So. 3d 1051, 

107 (Fla. 2016) (finding no prejudice in light of the evidence for the HAC 

aggravator). Our confidence in the outcome is not undermined. Therefore, we 

affirm the denial of relief.
- 27 -

4. Failure to object to Dr. Qaiser’s testimony that unconscious people feel 

pain

Allen argues her trial counsel was ineffective for failing to object to Dr. 

Qaiser’s testimony in the penalty phase that unconscious people have the ability to 

feel pain. 

The record reflects that Dr. Qaiser testified for the State that, 

[W]hether people who are unconscious, either they are minimally

unconscious, mildly, moderately, or severely or profoundly

unconscious, do they perceive pain or not. There is [very] little 

known about that. But the studies have been done, especially in 

Belgium, in Europe, and here also in the United States and all the 

other parts of North America . . . . So the conclusion was . . . that they 

register the pain, but it is not necessarily that they will outwardly 

manifest it.

The prosecutor then asked, “And [the victim] also could have been 

experiencing pain even if she is unconscious?” Dr. Qaiser answered, “That’s true.” 

On cross-examination, Dr. Qaiser also testified, “[It] is not necessary that the

outward manifestation of pain will be there. But as far as the perception of pain by 

the subject, you cannot rule that out. And studies have shown that this has taken 

place.” Dr. Qaiser then admitted that he definitely could not testify within a 

reasonable degree of medical probability that “there was a sensation of pain in the 

present case” while Wright was unconscious. 

At the evidentiary hearing, trial counsel testified that he planned to refute 

Dr. Qaiser’s testimony that unconscious people feel pain by cross-examining him. 
- 28 -

Trial counsel also testified that Dr. Qaiser admitted on cross-examination that in 

this case specifically he “couldn’t say one way or the other” whether Wright 

experienced pain. 

Allen claims that trial counsel should have objected to Dr. Qaiser’s 

testimony because the testimony was speculative and inflammatory hearsay. 

However, the record establishes that counsel made a strategic decision not to object 

and rather to cross-examine Dr. Qaiser because he chose as a matter of strategy to 

attempt to refute the testimony. He ultimately succeeded in getting Dr. Qaiser to 

acknowledge on cross-examination that he could not definitively say that Wright 

felt pain within a reasonable degree of medical probability. This discredited his 

earlier testimony. Accordingly, the record establishes that counsel’s decision was 

a reasonable one under the norms of professional conduct and, therefore, not 

deficient. Given that finding, we conclude that counsel was not deficient for 

failing to object to the testimony.

Allen has also not demonstrated prejudice. Here, there was a large amount 

of evidence supporting the HAC aggravator finding that was unrelated to Dr. 

Qaiser’s testimony regarding unconscious people feeling pain. Quintin testified

that Allen kidnapped, bound, beat, and strangled Wright, and Dr. Qaiser testified

regarding Wright’s contusions and ligature marks. Allen, 137 So. 3d at 953. This 

evidence was completely separate from the question of whether Wright felt pain 
- 29 -

after she was rendered unconscious. Given Quintin’s testimony that Allen 

strangled Wright even while Wright pleaded to be released and screamed that she 

would wet her pants, as well as the forensic evidence of contusions on Wright’s 

torso, there is no reasonable probability that an objection to the admissibility of Dr. 

Qaiser’s testimony regarding pain would have affected the outcome of Allen’s

trial. Our confidence in the outcome is not undermined. Therefore, we affirm the

postconviction court’s denial of relief on this claim.

5. Failure to object to several instances of prosecutorial misconduct or move 

for a mistrial during the penalty phase

Allen argues her trial counsel was ineffective for failing to object to multiple 

instances of prosecutorial misconduct during the penalty phase. 

Subclaim 1

Allen claims that trial counsel should have objected, requested a curative 

instruction, and moved for a mistrial when the prosecutor stated during crossexamination of Dr. Gebel that Allen was involved in drugs and had previously 

served time in prison, and misstated during cross-examination of Myrtle Hudson 

that Allen was convicted several times for selling drugs. She argues that counsel’s 

deficiencies prejudiced her penalty phase by making the jury believe she was a 

career criminal unworthy of mercy.

The record shows that Dr. Gebel testified for the defense at trial that Allen 

suffered traumatic brain injuries. On cross-examination, the prosecutor asked Dr. 
- 30 -

Gebel if he had reviewed Allen’s prison records, and Dr. Gebel answered that 

according to his notes, he did not know what type of records they were. The 

prosecutor responded, “So, you don’t know if those were county jail records or 

prison records where she had been in prison before?” The prosecutor also asked if 

Dr. Gebel was aware that Allen had been “involved in drugs for a number of 

years.” Myrtle Hudson also testified for the defense at trial, and the prosecutor 

asked her if she was “aware that [Allen] was convicted several times for selling 

drugs, right?” 

However, nothing in the record undermines confidence in the outcome of the 

penalty phase, but rather supports the postconviction court’s finding that there is no 

prejudice. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004) (citing 

Strickland, 466 U.S. at 694). The prosecutor’s comments about Allen’s time in 

prison and her convictions for drug sales were isolated, and did not approach the 

same level of impropriety as comments in other cases where this Court has granted 

relief. See Brooks v. State, 762 So. 2d 879, 905 (Fla. 2000) (remanding for new 

penalty phase in light of the “cumulative effect of the numerous, overlapping 

improprieties in the prosecutor’s penalty phase closing argument”). Further, the 

testimony that Allen was involved in a lifestyle of drugs led the trial court to find 

that such involvement was a nonstatutory mitigator. In light of the penalty phase 

evidence and the aggravating circumstance of HAC, which is among the weightiest 
- 31 -

in Florida’s death penalty scheme, see Martin v. State, 151 So. 3d 1184, 1198 (Fla. 

2014), it is clear that counsel’s deficiencies did not prejudice Allen. Our 

confidence in the outcome is not undermined. Because Allen has not demonstrated 

prejudice, we need not address the deficient performance prong. See Strickland,

466 U.S. at 697. Therefore, we conclude that the circuit court properly denied 

relief on this claim.

Subclaim 2

Allen claims that trial counsel should have objected and moved for a mistrial 

when the prosecutor improperly asked Dr. Wu two questions regarding Allen’s 

future dangerousness in prison. Allen argues that counsel’s deficiencies prejudiced 

her in the penalty phase by leading the jury to believe that she was a danger to 

society. 

Prior to trial, the trial court entered an order granting Allen’s motion to 

preclude improper argument. The record shows that the State violated the court’s 

order not to make arguments about Allen’s future dangerousness by asking two

questions about Allen’s future threat to prison guards. During cross-examination 

of Dr. Wu, the prosecutor asked, “So, [an episode of a violent act from Allen] 

could happen, say, in the future to a prison guard, correct?” The prosecutor then 

asked, “So, you are saying to a reasonable degree of medical probability she is a 

risk to any prison guard who is watching her in the future?” 
- 32 -

Allen previously raised this issue on direct appeal, and we found that the 

questions did not amount to fundamental error. Allen, 137 So. 3d at 962. Allen 

therefore cannot demonstrate that the questions were prejudicial under Strickland. 

See Serrano v. State, 225 So. 3d 737, 751 (Fla. 2017) (holding that the defendant 

could not establish prejudice under Strickland because he failed to show the 

comments were fundamental error on direct appeal). Our confidence in the 

outcome is not undermined. Because Allen has not demonstrated prejudice, we 

need not address the deficient performance prong. See Strickland, 466 U.S. at 697. 

Therefore, we conclude that the circuit court properly denied relief on this claim.

Subclaim 3

Allen claims that trial counsel should have objected when the prosecutor 

asked Dr. Wu if he saw Allen display signs of remorse following the murder. She 

argues that counsel’s deficiency prejudiced her in the penalty phase by putting a 

nonstatutory aggravating circumstance before the jury.

The record shows that Dr. Wu testified for the defense that people suffering 

from lack of impulse control often feel remorseful after a violent outburst. On 

cross-examination, the prosecutor asked Dr. Wu, “Did you see and study anything 

about Margaret Allen that she had any level of remorse after this murder 

occurred?” 
- 33 -

Allen has failed to demonstrate prejudice. Even if this question were not 

proper cross-examination in light of Dr. Wu’s testimony on direct, given the 

overwhelming evidence of guilt presented, as well as the aggravating 

circumstances found by the court, there is not a reasonable probability that the 

jurors would have changed their minds regarding the balancing of the aggravating 

and mitigating circumstances solely due to hearing this question about Allen’s lack

of remorse. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694). 

Our confidence in the outcome is not undermined. Because Allen has not 

demonstrated prejudice, we need not address the deficient performance prong. See 

Strickland, 466 U.S. at 697. Therefore, we conclude that the circuit court properly 

denied relief on this claim.

Subclaim 4

Allen also argues that the prosecutor made an improper Golden Rule 

argument during closing argument. “A ‘golden rule’ argument asks the jurors to 

place themselves in the victim’s position, [and] asks the jurors to imagine the 

victim’s pain and terror or imagine how they would feel if the victim were a 

relative.” Hutchinson v. State, 882 So. 2d 943, 954 (Fla. 2004). In this case, the 

prosecutor stated:

A sense of this pain above and below the ligature mark. The desire to 

survive. That basic human instinct. You know, I want to live. I don’t 

want to die. I want to see my children again. I want to see my 

companion again. And finally the jerky movements Dr. Qaiser told us 
- 34 -

about. The movement of the head and the neck. . . . Those are the last 

few moments of Wenda Wright’s life.

Allen claims that the prosecutor’s argument improperly described the crime 

scene with an imaginary script and invited the jurors to place themselves in the 

position of the victim. Allen argues that counsel’s deficiency in failing to object 

prejudiced her in the penalty phase by unduly inflaming the sympathy and passions 

of the jury against her. However, Allen has failed to demonstrate prejudice. 

Hearing these comments during closing argument would not have caused the jurors 

to weigh the aggravation or mitigation differently. The significant amount of 

evidence supporting the HAC aggravator in this case, such as Quintin’s testimony 

that Allen kidnapped and tortured Wright and the medical forensic evidence of 

contusions and ligatures on Wright’s body, shows that there is no reasonable 

probability that hearing the comments in question affected the jury’s sentencing 

recommendation. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 

694). Failing to object to the prosecutor’s argument did not affect the fairness and 

reliability of the proceeding such that confidence in the outcome is undermined. 

Because Allen has not demonstrated prejudice, we need not address the deficient 

performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that 

the circuit court properly denied relief on this claim.

Subclaim 5

Allen claims that trial counsel should have objected when the prosecutor
- 35 -

stated that “in certain cases” “the law calls for” a death penalty recommendation, 

because it improperly gained sympathy for the prosecutor and misstated the law. 

She argues that counsel’s deficiency prejudiced her because the comment told the 

jurors that they were required to recommend death. 

During penalty phase closing arguments, the prosecutor stated:

[T]here are cases where the recommendation for the death penalty is

warranted. This is that case . . . . It is not going to be an easy 

decision. It’s not easy to stand up here and ask a jury to recommend a 

death penalty. But in certain cases it is what the law calls for. It’s 

what justice calls for.

Allen cannot show the prosecutor’s comments prejudiced her. The jury 

instructions correctly informed Allen’s jury of the law relating to the weighing of 

aggravators and mitigators. Cf. Anderson, 18 So. 3d at 517 (finding no prejudice 

and citing previous cases where this Court “determined that the defendants were 

not prejudiced by the improper statements of the prosecutors because the juries 

were given the proper instructions for analyzing aggravating and mitigating 

circumstances”). Our confidence in the outcome is therefore not undermined. 

Because Allen has not demonstrated prejudice, we need not address the deficient 

performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that 

the circuit court properly denied postconviction relief on this claim.

Subclaim 6
- 36 -

Allen claims that trial counsel should have objected when the prosecutor

stated during closing arguments that, because Dr. Gebel was paid for his testimony,

he refused to change his opinion even when faced with new facts of the case. She 

argues that this misrepresentation of Dr. Gebel’s testimony prejudiced her by 

denigrating him as an expert witness, undermining her mitigation.

The record shows that during cross-examination, the prosecutor asked Dr. 

Gebel if his diagnosis of Allen’s poor executive functioning would change a bit 

now that he knew more facts of the case, and Dr. Gebel replied, “It might change 

the degree with which she’s injured, but it wouldn’t change the fact that she has 

been injured throughout the years.” Dr. Gebel then answered in the affirmative 

when asked if his new knowledge of the facts “might change the severity or the 

degree of that injury.” The prosecutor also stated during closing arguments:

And then I said, well, Doctor, what if you knew those were the facts 

in this case because that is exactly what she did? Wouldn’t that 

change your opinion? Well, blah, blah, blah, no, that really wouldn’t 

change my opinion. And you know why? Because he was paid 

$3,000 to come in here and say that she had cognitive disorders.

Allen did not suffer prejudice. Allen has failed to demonstrate a reasonable 

probability that, but for counsel’s failure to object to the State’s characterization of 

Dr. Gebel’s testimony, the result of the proceeding would have been different. See 

Strickland, 466 U.S. at 694. Given the overwhelming evidence of guilt presented, 

there is no reasonable probability that the jurors would have changed their minds 
- 37 -

regarding the balancing of aggravating and mitigating circumstances solely due to 

hearing that the expert witness was paid to testify and would not change his 

opinion. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694). Our 

confidence in the outcome is not undermined. Because Allen has not demonstrated 

prejudice, we need not address the deficient performance prong. See Strickland,

466 U.S. at 697. Therefore, we conclude that the circuit court properly denied 

relief on this claim.

Subclaim 7

Allen claims that trial counsel should have objected when the prosecutor

during closing arguments characterized Allen’s pouring of liquids or water on 

Wright’s face as waterboarding torture, because the comment was inflammatory 

and the record contained no evidence that Allen waterboarded Wright. 

During closing argument, the prosecutor stated:

We have heard a lot of things on the news in the last couple of years

about torture, systematic torture. Water boarding, pouring water on

someone’s face making them think that they are drowning. That is

torture. That is an attempt to get somebody to fess up to something.

That didn’t work. And all the while, all the while, you know, think of

what is going through Wenda Wright’s mind. So, the liquids doesn’t

[sic] work.

Allen has failed to demonstrate that the prosecutor’s description of Wright’s 

suffering as waterboarding prejudiced her penalty phase. In light of Quintin’s

testimony that liquids were poured on Wright’s face and that she was tortured, as 
- 38 -

well as the HAC aggravating factor found by the trial court, there is no reasonable 

probability that the jurors would have changed their minds regarding the balancing 

of aggravating and mitigating circumstances solely due to hearing the prosecutor 

describe Allen’s actions as waterboarding. See Sochor, 883 So. 2d at 771 (citing 

Strickland, 466 U.S. at 694). Our confidence in the outcome is not undermined. 

Because Allen has not demonstrated prejudice, we need not address the deficient 

performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that 

the circuit court properly denied relief on this claim.

Subclaim 8

Allen claims that trial counsel should have objected and requested curative 

instructions during closing arguments because the prosecutor misstated the 

evidence. She claims the prosecutor wrongly stated that Dr. Wu testified that a 

PET scan is not a standalone test and that he relies on MRIs and CAT scans in 

diagnosing brain trauma. 

The record shows that during cross-examination, Dr. Wu stated that an MRI 

is not always done in conjunction with a PET scan, and although it would be 

“preferable” to have an MRI in conjunction with a PET scan, it “is not essential” 

and he would not lack any necessary information without it. During closing 

arguments, the prosecutor stated:

Dr. Wu admitted in his own slide—did you see it in his own slide that
- 39 -

the PET scan is not a standalone test. Remember? He said, I don’t 

use this as standalone. We rely on MRIs, CAT scans, and the 

neuropsych’ testing. Well, there is no MRI. There is no CAT scan. 

Allen has not suffered prejudice. The amount of evidence supporting the 

two aggravating circumstances in this case shows that there is no reasonable 

probability that, but for hearing the comments in question, the jury’s recommended 

sentence would have been different. See Sochor, 883 So. 2d at 771 (citing 

Strickland, 466 U.S. at 694). Our confidence in the outcome is not undermined. 

Because Allen has not demonstrated prejudice, we need not address the deficient 

performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that 

the circuit court properly denied relief on this claim.

Subclaim 9

Allen claims that trial counsel should have objected and moved for a mistrial

during closing arguments because the prosecutor introduced evidence of Allen’s 

bad character—that she was a bad mother because her children were in prison—

without her counsel’s previously opening the door by presenting evidence of good 

character. Allen argues that this prejudiced her because the comments portrayed 

her as unsympathetic and inflamed the jurors’ passions. 

The record shows that Myrtle Hudson testified that two of Allen’s children 

are in prison and one of them stays with her grandmother. The prosecutor stated 

during closing arguments:
- 40 -

You heard about the Defendant’s time in prison for previous drug sale

convictions. You heard about her children, her son in prison for 11

years and one of her daughters is in prison for five years. And her 

other daughter is with her grandmother. And we can only hope that 

there may be some hope for that daughter.

Allen did not suffer prejudice because there is no reasonable probability that 

hearing about Allen’s poor mothering influenced the jurors’ weighing of the 

aggravating and mitigating circumstances. Our confidence in the outcome is not 

undermined. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694). 

Because Allen has not demonstrated prejudice, we need not address the deficient 

performance prong. See Strickland, 466 U.S. at 697. Therefore, we conclude that 

the circuit court properly denied postconviction relief on this claim.

Subclaim 10

Allen claims that trial counsel should have objected and moved for a mistrial

during closing arguments because the prosecutor added to the authority of his 

office by saying that he wrote down Dr. Gebel’s testimony. She also claims that 

the prosecutor misstated the doctor’s testimony by claiming that the doctor said 

that Allen had no major brain issues or brain injury. Allen argues that this 

prejudiced her because the comments devalued her mental health mitigation.

The record shows that on direct examination, Dr. Gebel stated that Allen 

suffered “intracranial injuries” and reasoned that “[w]ithin a reasonable degree of 

medical probability she does fit a patient who has brain damage.” Dr. Gebel also 
- 41 -

testified that he was unsure if Allen had any structural brain damage, and that she 

did not have “any brain injury in terms of weakness in an arm or leg.” In closing, 

the prosecutor stated, “First of all, what I wrote down was [Dr. Gebel] said, no 

major brain issue with the Defendant. No major brain issues with the Defendant. 

Okay?” The prosecutor also stated, “And, again, the first doctor says no major 

brain injury.” 

Allen has failed to establish prejudice under Strickland. Allen has not 

demonstrated a reasonable probability that the outcome of the proceeding would 

have been different but for the prosecutor’s summarizing Dr. Gebel’s testimony as 

opining that Allen did not have a major brain injury—as Dr. Gebel equivocated 

regarding possible structural brain damage, which is consistent with having no 

major brain damage. Our confidence in the outcome is therefore not undermined. 

See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694). Therefore, we 

conclude that the circuit court properly denied relief on this claim.

Subclaim 11

Allen argues that the alleged errors by counsel cumulatively deprived her of 

a fair trial. However, because each subclaim, addressed individually, is without 

merit, the claim of cumulative error also necessarily fails. See Israel, 985 So. 2d at 

520 (denying a claim of cumulative error when the individual claims did not 

establish ineffective assistance of counsel); Bell v. State, 965 So. 2d 48, 75 (Fla. 
- 42 -

2007) (“[B]ecause we conclude that none of the [individual ineffective assistance 

of counsel] claims has merit, we affirm the circuit court’s determination that there 

is no cumulative error.”). Therefore, we conclude that the circuit court properly 

denied postconviction relief on this claim.

6. Asking if Allen became part of the culture of “drugs, thugs, and violence”

Allen argues that trial counsel was ineffective for asking if Allen became a 

part of the culture of “drugs, thugs, and violence.”

The record shows that in the penalty phase of Allen’s trial, trial counsel 

questioned Allen’s aunt, Myrtle Hudson, about Allen’s neighborhood:

Q: Describe the area of town that she lived in, if you would for the 

jury?

A: We stayed in a drug neighborhood. She stayed in a drug

neighborhood.

Q: And so, she grew up around drugs?

A: Drugs and thugs.

Q: And violence?

A: Yes, sir. Drugs, thugs, and violence. Yes, sir.

At the evidentiary hearing, trial counsel testified that he asked Hudson about 

Allen’s neighborhood, which elicited from her the phrase, “drugs, thugs, and 

violence.” He testified that he did this in order to show “the atmosphere in which 

[Allen] lived, and that it had an effect on her.” He also testified that the general 
- 43 -

theme of his mitigation was to show the negative atmosphere of Allen’s cultural 

upbringing to the jury and its impact on her. He testified that the phrase at issue

was specifically brought up by Hudson, not by him. 

Allen’s claim is refuted by the record. The record reflects that trial 

counsel’s questioning regarding Allen’s upbringing was strategic and purposeful—

he aimed to show the jury the challenging culture in which Allen lived. When

asked to describe the area of town in which Allen grew up, Hudson described the 

neighborhood using the phrase “drugs, thugs, and violence.” This evidence 

supported the trial court’s finding of the nonstatutory mitigator that Allen grew up 

in a violent and drug-infested neighborhood. The testimony elicited by trial 

counsel thereby amounts to the same information established by counsel and found 

by the trial court. Counsel was not deficient in bringing up that line of questioning, 

despite the phrase that was elicited during it. 

Moreover, Allen has failed to show prejudice. There is no reasonable 

probability that the jury hearing that Allen grew up surrounded by “drugs, thugs,

and violence” impacted their balancing of the aggravating and mitigating 

circumstances in light of the evidence of torture and the victim’s desperate pleas to 

go home prior to her death. See Sochor, 883 So. 2d at 771 (citing Strickland, 466 

U.S. at 694); Brant, 197 So. 3d at 1070 (finding no prejudice in light of the 

evidence for the HAC aggravator). Our confidence in the outcome is not 
- 44 -

undermined. We therefore conclude that the circuit court properly denied relief on 

this claim.

7. Failure to call a forensic expert 

Allen argues the postconviction court erred in denying the claim that trial 

counsel was ineffective during both the guilt and penalty phases of her trial for 

failing to call his own forensic expert.

We have held that trial counsel’s decision not to call certain witnesses to 

testify is often reasonable trial strategy, and mere disagreement with that reasoning 

is not enough to show deficient performance. See Johnston v. State, 63 So. 3d 730, 

741 (Fla. 2011) (holding that counsel’s failure to call defendant’s friend to offer 

mitigation testimony was reasonable trial strategy). Cross-examination is often 

sufficient to reveal deficiencies in an expert’s presentation, especially when representing the same evidence through other witnesses would not alter the outcome. 

See Anderson v. State, 220 So. 3d 1133, 1146 (Fla. 2017).

A number of factors must be considered when determining whether trial 

counsel’s decision not to call an expert to rebut the State’s expert constitutes 

deficient performance:

First among these are the attorney’s reasons for performing in an 

allegedly deficient manner, including consideration of the attorney’s 

tactical decisions. See State v. Bolender, 503 So. 2d 1247, 1250 (Fla. 

1987); Lightbourne v. State, 471 So. 2d 27, 28 (Fla. 1985). A second 

factor is whether cross-examination of the State’s expert brings out 

the expert’s weaknesses and whether those weaknesses are argued to 
- 45 -

the jury. Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990). See Rose 

v. State, 617 So. 2d 291, 297 (Fla. 1993)[.] The final factor is whether 

a defendant can show that an expert was available at the time of trial 

to rebut the State’s expert. See Elledge v. Dugger, 823 F.2d 1439, 

1446 (11th Cir. 1987).

State v. Riechmann, 777 So. 2d 342, 354 (Fla. 2000).

The postconviction court’s order states: 

Attorney Bankowitz . . . cross-examined Dr. Qaiser extensively with 

Dr. Whitmore’s report and felt that he did not need any other expert to 

come in and say the same thing Dr. Whitmore said . . . . Dr. Qaiser 

admitted that Dr. Whitmore performed the actual autopsy, and he was 

only able to view photographs. Dr. Qaiser testified that he found 

ligature marks on the neck, that she suffered a ligature strangulation. 

He agreed that Dr. Whitmore’s report found contusions on the neck, 

and made no mention of ligature marks. Dr. Qaiser disagreed that 

cocaine intoxication was a contributory factor, although he admitted 

that was in Dr. Whitmore’s report. Dr. Qaiser testified that there was 

no evidence of bleach or a caustic substance on Ms. Wright. Dr. 

Qaiser testified that he could not state within a reasonable degree of 

medical probability that the victim felt pain while unconscious. 

Everything Dr. Spitz testified to was brought out on crossexamination of Dr. Qaiser. While Dr. Spitz disagreed with Dr. 

Qaiser’s findings, Dr. Spitz did not completely discredit those 

findings as scientific impossibilities, but instead agreed they were 

possibilities. The Court finds that counsel’s strategic decision not to 

hire a forensic expert, but instead to challenge Dr. Qaiser’s findings 

through crossexamination, [sic] was not unreasonable under 

prevailing professional norms.

The record supports the postconviction court’s findings. The record reflects 

that Dr. Qaiser testified that Dr. Whitmore, not Dr. Qaiser, performed the autopsy; 

that the autopsy report did not mention ligature marks and did mention cocaine 

being a contributing factor in Wright’s death; that no evidence of a caustic 
- 46 -

substance on Wright existed; and that he could not state within reason that Wright 

experienced pain while unconscious. Further, these admissions and weaknesses 

elicited from Dr. Qaiser on cross-examination were the same admissions and 

weaknesses that Dr. Spitz testified to at the evidentiary hearing. Therefore, the 

jury was informed as to the conclusions Dr. Spitz would have made if he had 

testified. The record also reflects that trial counsel understood the science of the 

case and decided that he did not need an expert to say the same thing that he 

elicited out of Dr. Qaiser on cross-examination with Dr. Whitmore’s autopsy 

report. There is no deficiency when counsel had a tactical reason for not calling 

his own expert and his cross-examination elicited the same weaknesses that the 

expert would have. Rigterink v. State, 193 So. 3d 846, 867 (Fla. 2016). 

Accordingly, counsel’s decision not to call the forensic expert was a strategic one 

and he was not deficient. 

Moreover, Allen cannot show prejudice. The evidence at trial included 

Quintin’s testimony that Wright was kidnapped, bound, beaten, and unable to 

leave, even as she begged to be released before and while being strangled. Dr. 

Spitz agreed that the death was a homicide and that ligature strangulation was 

possible and that he could not rule it out. He even agreed that the bruising on 

Wright’s body could have occurred by restraint. Everything testified to by Dr. 

Spitz was brought out on Dr. Qaiser’s cross-examination. This testimony shows 
- 47 -

that even if counsel had presented the testimony of Dr. Spitz, it would not have 

undermined the State’s case to any significant extent. See Abdool v. State, 220 So. 

3d 1106, 1114-15 (Fla. 2017) (concluding that there was no prejudice where the 

expert that trial counsel “fail[ed] to consult and retain actually provided 

information that is consistent with the testimony presented by the State’s arson 

expert”). Our confidence in the outcome is not undermined, and we conclude that

the circuit court properly denied postconviction relief on this claim.

8. Failure to impeach Quintin with prior inconsistent statements

Allen argues that trial counsel was ineffective for failing to impeach Quintin 

with prior inconsistent statements. She contends that counsel failed to impeach 

Quintin with his police statement indicating that Allen did not pour bleach on 

Wright, which conflicts with his trial testimony that Allen poured bleach on 

Wright. 

The record reflects that in his police statement, Quintin stated that he could 

not remember all of what was poured onto Wright before the homicide. He stated 

that Allen procured “alcohol” and hair products to pour onto Wright, that she had 

boxes of bleach, and that she did not have a bleach bottle but rather used a hair 

products bottle. He also stated that Wright’s legs were tied with a belt while the 

liquids were poured onto her. On direct examination, Quintin testified that he 

personally held Wright’s arms and legs down as Allen poured bleach and other 
- 48 -

chemicals on Wright’s face. On cross examination, Quintin admitted that his trial 

testimony conflicted with his previous testimony regarding how Wright was 

restrained while the substances were poured on her. He testified that the statement 

he gave to the police was the truth, and that he had lied on direct examination. 

Quintin’s police statement shows that he never actually stated that bleach 

was not poured onto Wright, but rather stated that although Allen had boxes of 

bleach, she did not have a bottle of bleach and that he was unsure what chemicals, 

other than alcohol, were used. These statements are not wholly inconsistent with 

his trial testimony. Moreover, as discussed in relation to claim three, counsel did 

cross-examine Quintin about many inconsistencies in his testimony and brought 

out this inconsistency on re-cross—choosing to rely on Dr. Qaiser’s testimony that 

no evidence of bleach was found on Wright to demonstrate that Quintin’s 

testimony should not be believed. This trial strategy was not unreasonable. 

For similar reasons, Allen has not demonstrated prejudice. Given that trial

counsel did impeach Quintin with other inconsistent statements at trial, there is not 

a reasonable probability that the jury would have found Allen not guilty or that the 

jurors would have weighed the aggravation and mitigation differently had counsel 

impeached Quintin as Allen claims. “No prejudice result[s] from counsel’s failure 

to present cumulative evidence of inconsistent statements.” Green v. State, 975 

So. 2d 1090, 1104 (Fla. 2008) (holding that counsel was not ineffective for failing 
- 49 -

to impeach with one statement because counsel impeached witness with many 

other inconsistent statements). The jury was aware that Quintin had lied on the 

stand and that his testimony was inconsistent in places. Our confidence in the 

outcome is therefore not undermined. We therefore conclude that the circuit court 

properly denied relief on this claim.

9. Failure to adequately challenge or strike a juror 

Allen argues that counsel was ineffective for failing to challenge juror Carll 

for cause or to strike her peremptorily because of the juror’s strong predisposition 

for recommending the death penalty. 

A valid claim of ineffective assistance of counsel for failure to raise or 

preserve a for-cause challenge against the juror must establish that the juror “was 

actually biased against the defendant,” such that he or she had a “bias-in-fact that 

would prevent service as an impartial juror.” Carratelli v. State, 961 So. 2d at 323-

24. The evidence of the juror’s actual bias must “be plain on the face of the 

record,” id. at 324, and amount to “something more than mere doubt about that 

juror’s impartiality,” Mosley v. State, 209 So. 3d 1248, 1265 (Fla. 2016). We have 

described the standard as follows:

Where reasonable people could disagree about a juror’s fitness to 

serve, the showing of prejudice required for postconviction relief is 

lacking.
- 50 -

Carratelli, 961 So. 2d at 323-24 (quoting Carratelli v. State, 915 So. 2d 1256, 

1261 (Fla. 4th DCA 2005)). When a juror makes statements suggesting bias but 

later makes clear his or her ability to be impartial, actual bias will not be found. 

See id. at 327. The analysis of this issue begins with the Strickland prejudice 

prong, “as it is necessary to establish that the juror was actually biased before 

proving that counsel performed deficiently by failing to challenge that juror due to 

bias.” Patrick v. State, 246 So. 3d 253, 263 (Fla. 2018).

Allen has failed to show that juror Carll was actually biased. Competent, 

substantial evidence supports the postconviction court’s determination that juror 

Carll’s comments about her opinion of the death penalty did not establish actual 

bias. While juror Carll did express positive sentiment toward the death penalty and 

expressly outlined several circumstances in which she would recommend it, she 

confirmed upon follow-up questioning that she was flexible, would “absolutely” 

listen to aggravation and mitigation, and would listen to mental health evidence. 

juror Carll also stated that there were certain circumstances where she would not 

recommend the death penalty, such as if someone was “a party of someone’s 

death.” As in Carratelli, the record reveals that juror Carll assured the court that 

she was willing to listen to the evidence, be fair, and follow the law. Her 

statements showing that she would abide by the law and consider the evidence 

presented refute the claim that juror Carll was biased. Allen therefore cannot 
- 51 -

establish prejudice. See Barnhill v. State, 834 So. 2d 836, 844 (Fla. 2002) (holding 

that a juror is unqualified only if she “expresses an unyielding conviction and 

rigidity toward the death penalty”). Our confidence in the outcome is not 

undermined. We therefore conclude that the circuit court properly denied relief on 

this claim.

II. Giglio Claim

Allen next claims that the postconviction court erred in denying her claim 

that the State committed a Giglio violation.

This claim is procedurally barred because it should have been raised on 

direct appeal where the facts supporting the claim were available. See Robinson v. 

State, 707 So. 2d 688, 693 (Fla. 1998) (finding defendant’s Giglio claim 

procedurally barred because defendant failed to raise it on direct appeal). 

However, even if the claim were not procedurally barred, it also fails on the merits. 

Allen must prove the following to establish a Giglio violation:

(1) the prosecutor presented or failed to correct false testimony; (2) 

the prosecutor knew the testimony was false; and (3) the false 

evidence was material. If the first two prongs are established, the 

false evidence is deemed material if there is any reasonable possibility 

that it could have affected the jury’s verdict. The State must then 

“prove that the false testimony was not material by demonstrating it 

was harmless beyond a reasonable doubt.” Under the harmless error 

test, the State must prove “there is no reasonable possibility that the 

error contributed to the conviction.”
- 52 -

Franqui v. State, 59 So. 3d 82, 101-02 (Fla. 2011) (citations omitted) (quoting 

Tompkins v. State, 994 So. 2d 1072, 1091 (Fla. 2008), and Guzman v. State, 941 

So. 2d 1045, 1050 (Fla. 2006)). Because Giglio claims present mixed questions of 

law and fact, we defer to the postconviction court’s factual findings supported by 

competent, substantial evidence and review the court’s legal conclusions de novo. 

Green v. State, 975 So. 2d 1090, 1106 (Fla. 2008).

Allen argues that the State elicited and failed to correct false testimony that 

Allen was convicted several times for selling drugs. The record shows that the 

prosecutor asked Hudson on cross-examination, “You were aware that she was 

convicted several times for selling drugs, right?” Hudson answered in the 

affirmative. During closing arguments, the prosecutor stated to the jury, “You 

heard about the defendant’s time in prison for previous drug sale convictions.” 

The record demonstrates that the State violated Giglio with respect to 

Hudson’s testimony. The prosecutor presented and failed to correct false 

testimony from Hudson regarding Allen’s criminal record by asking if Hudson 

knew that Allen was convicted many times for selling drugs. It is undisputed that 

Allen had only one conviction for selling drugs. The record shows that the State 

had knowledge of this fact because it prepared Allen’s Criminal Code Scoresheet 

prior to trial. However, the false evidence presented by the State is immaterial, 

because there is no reasonable possibility that the number of prior drug convictions 
- 53 -

that Allen had contributed to the jury’s sentencing recommendation. There is no 

reasonable possibility that the fact that the jurors heard that Allen had multiple 

prior drug convictions—as opposed to just one prior drug conviction—would have 

had an impact on their vote in the face of the evidence detailing the horrific events 

during Wright’s kidnapping that resulted in her murder. We conclude that the 

State’s use of this false evidence was harmless beyond a reasonable doubt. 

Therefore, we affirm the circuit court’s denial of Allen’s Giglio claim.

III. Hurst Claim

Allen lastly argues that the postconviction court erred in denying her relief 

from her sentence of death under the Hurst decisions. We affirm the 

postconviction court’s ruling on this claim because the State proved beyond a 

reasonable doubt that the Hurst error was harmless and because Allen’s Hurstinduced Caldwell v. Mississippi, 472 U.S. 320 (1985), claim fails to show that the 

standard jury instructions violate the Eighth Amendment.

In Hurst v. Florida, the United States Supreme Court held that “[t]he Sixth 

Amendment requires a jury, not a judge, to find each fact necessary to impose a 

sentence of death” and that “[a] jury’s mere recommendation is not enough.” 136 

S. Ct. at 619. On remand, we reached the following holding:

[B]efore the trial judge may consider imposing a sentence of death, 

the jury in a capital case must unanimously and expressly find all the 

aggravating factors that were proven beyond a reasonable doubt, 

unanimously find that the aggravating factors are sufficient to impose 
- 54 -

death, unanimously find that the aggravating factors outweigh the 

mitigating circumstances, and unanimously recommend a sentence of 

death.

Hurst v. State, 202 So. 3d at 57. We then concluded that Hurst error is capable of 

harmless error review. Id. We also explained that the standard to be used in 

harmless-error analysis is whether there is a “reasonable possibility that the error 

contributed to the sentence,” and stated that, in the context of Hurst error, the 

burden is on the State “to prove beyond a reasonable doubt that the jury’s failure to 

unanimously find all the facts necessary for imposition of the death penalty did not 

contribute to [the] death sentence.” Id. at 68. In Mosley, 209 So. 3d at 1283, we

held that Hurst v. State applies retroactively to all defendants whose sentences of 

death became final after the Supreme Court issued Ring v. Arizona, 536 U.S. 584 

(2002). 

Here, because Allen’s sentence was final in 2014, Allen v. Florida, 135 S. 

Ct. 362 (2014) (denying certiorari), the Hurst requirements are retroactive to her 

sentence. The parties do not dispute that the Hurst requirements were not met, but

disagree over whether the Hurst v. State error was harmless. 

In King v. State, 211 So. 3d 866, 890 (Fla. 2017), we determined that a

jury’s unanimous recommendation of a death sentence in capital cases “begins a 

foundation for us to conclude beyond a reasonable doubt that a rational jury would 

have unanimously found that there were sufficient aggravators to outweigh the 
- 55 -

mitigating factors.” We have also recognized that a unanimous recommendation 

alone is insufficient to determine harmless error, and that we must also consider 

other factors such as the jury instructions, the aggravators and mitigators, and the 

facts of the case. See Reynolds v. State, 251 So. 3d 811, 816 (Fla. 2018); Kaczmar 

v. State, 228 So. 3d 1, 9 (Fla. 2017); Davis v. State, 207 So. 3d 142, 174-75 (Fla. 

2016). Here, the jury recommendation of death was unanimous. Although Allen’s 

jury was instructed that it was “neither compelled or required to recommend 

death,” and was informed that unanimous recommendations were not required, it 

nevertheless unanimously recommended death. The jurors also heard standard jury 

instructions informing them that they needed to determine whether sufficient 

aggravators existed and whether any aggravation outweighed the mitigation before 

recommending a sentence of death. The trial court instructed the jury, “Should you 

find sufficient aggravating circumstances do exist to justify recommending the 

imposition of the death penalty, it will then be your duty to determine whether the 

mitigating circumstances outweigh the aggravating circumstances that you find to 

exist.” Fla. Std. Jury Instr. (Crim.) 7.11 (2014). Although the jurors were not 

informed that the finding that sufficient aggravators existed and outweighed the 

mitigation must be unanimous, the jury did return a unanimous verdict of death. 

See id. (“If, after weighing the aggravating and mitigating circumstances, you 

determine that at least one aggravating circumstance is found to exist and that the 
- 56 -

mitigating circumstances do not outweigh the aggravating circumstances, or, in the

absence of mitigating factors, that the aggravating factors alone are sufficient, you 

may recommend that a sentence of death be imposed rather than a sentence of life 

in prison without the possibility of parole.”). These instructions support the 

conclusion that the jury unanimously made the requisite factual findings to impose 

death before it recommended death unanimously. The Hurst error in this case is 

therefore harmless, as it is clear beyond a reasonable doubt that the jury’s failure to 

find the facts necessary to impose the death penalty did not contribute to the death 

sentence. 

Allen’s jury also unanimously found her guilty of kidnapping, which the 

trial court used to find the in the course of kidnapping aggravator. Allen, 137 So. 

3d at 953, 955. Further, the trial court found that the murder was especially 

heinous, atrocious, or cruel (HAC), by competent, substantial evidence. Id. at 955. 

We have held that the HAC aggravator is among the most weighty and serious 

aggravating factor in the sentencing scheme. See Knight v. State, 225 So. 3d 661, 

683 (Fla. 2017). Moreover, as the trial court noted, the disturbing facts of this case 

further support the conclusion that the Hurst error is harmless. Wright was bound 

and beaten, unable to leave Allen’s home. Allen, 137 So. 3d at 963-64. She was 

strangled even as she screamed for mercy. Id. She died a terror-filled and painful 

death. Id. 
- 57 -

We therefore conclude that, beyond a reasonable doubt, a rational jury 

would have unanimously found that sufficient aggravating factors outweighed the 

mitigation.

Allen next contends that she is entitled to relief pursuant to the Supreme 

Court’s analysis in Caldwell v. Mississippi, because her death sentence, 

recommended by an allegedly improperly instructed jury, violates the Eighth 

Amendment in light of Hurst. She argues that the Hurst decisions require that jury 

verdicts be unanimous and not advisory, rendering the Standard Jury Instruction 

7.11 used in her trial violative of Caldwell because the improperly instructed jury 

did not feel the weight of its sentencing responsibility—which contributed to the 

jurors’ votes for death. As we recently held in Reynolds, this claim fails and does 

not “provide an avenue for Hurst relief.” 251 So. 3d at 828.

In Caldwell, the Supreme Court held that the death sentence resulting from

the jury’s unanimous recommendation of death violated the Eighth Amendment’s 

standard of reliability required in capital cases because the jury instructions 

impermissibly diminished the jurors’ sense of responsibility for a death sentence 

by “[leading them] to believe that the responsibility for determining the 

appropriateness of the defendant’s death rest[ed] elsewhere.” Caldwell, 472 U.S.

at 328-29. In Romano v. Oklahoma, 512 U.S. 1, 9 (1994), the Supreme Court held 
- 58 -

that, to establish a Caldwell error, a defendant must show that the jury instructions 

improperly described their jury’s role assigned by local law. 

Allen cannot make that showing. We have held that because it did not 

violate Caldwell to refer to the jury’s role as advisory prior to the Hurst decisions, 

“a Caldwell claim . . . cannot [now] be used to retroactively invalidate the jury 

instructions that were proper at the time under Florida law.” Reynolds, 251 So. 3d 

at 825. At the time of Allen’s trial, the jury instructions correctly advised the jury, 

stated the law applicable at the time, and did not diminish the jury’s role. Because 

Allen’s jury was properly instructed based on the existing law, the jury instructions 

given at her trial do not cause her death sentence to violate the Eighth Amendment. 

We therefore affirm the postconviction court’s denial of Allen’s Hurst claim.

CONCLUSION

For the reasons stated above, we affirm the circuit court’s denial of Allen’s 

rule 3.851 motion for postconviction relief.

It is so ordered.

LEWIS, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., and POLSTON, J., concur in result.

PARIENTE, J., dissents with an opinion.

QUINCE, J., dissents. 

NO MOTION FOR REHEARING WILL BE ALLOWED.
- 59 -

PARIENTE, J., dissenting.

It is undisputed that this is a terrible crime. But, without a full picture of 

Allen’s upbringing and background, the jury could never have understood the full 

extent of the mitigation in her case, which could have caused at least one juror to 

recommend life. Because Allen’s attorney’s failure to properly investigate and 

present mitigation evidence—specifically the testimony of Allen’s aunt, Barbara 

Capers, who could have given first-hand accounts of the abuse Allen suffered—

constitutes deficient performance and the absence of important mitigation 

undermines confidence in the jury’s unanimous recommendation for death, I 

dissent. 

Capers, who was available and willing to testify, would have presented a 

considerably more complete and detailed picture of Allen’s horrific childhood and 

early adult life, including first-hand accounts and graphic details of the physical 

and sexual abuse Allen suffered at the hands of her family members and former

boyfriends. The testimony would not have been cumulative to the testimony 

presented at trial. Rather, it would have been compelling based on Caper’s firsthand knowledge of the events of Allen’s life. However, Allen’s attorney never so 

much as even contacted Capers, even though Capers was at all times available to 

testify. Thus, because Allen has established ineffective assistance of counsel, I 
- 60 -

conclude that Allen’s sentence of death should be vacated, and this case should be 

remanded for a new penalty phase. 

BACKGROUND

Approximately two and a half years before trial, Allen’s case was reassigned 

from the public defender’s office to defense counsel. Upon taking Allen’s case, 

counsel failed to conduct an independent investigation into mitigation. Trial 

counsel only spoke with two mitigation witnesses before the trial—(1) Allen’s 

aunt, Myrtle Hudson, and (2) Allen’s sister, whose name he did not remember. He 

did not enlist the help of an investigator or mitigation specialist. At the 

postconviction evidentiary hearing, counsel testified that he thought the “witnesses 

were all lined up” before he took the case and it was just a matter of “putting [the 

mitigation] on.” 

Had she been asked to testify, Allen’s aunt, Barbara Capers, could have 

added the following testimony: that she personally witnessed Allen’s mother 

physically abusing Allen by beating her with her hands and fists almost every day; 

Allen’s mother would also beat Allen with belts, whip her with sticks, and slap her 

in the face; when Allen was twelve, her mother beat her so badly that Capers called 

the police; Allen’s grandfather also physically abused Allen, he would line up the 

boys and girls naked, including Allen, and go down the row beating them with oak 

switches; Allen also witnessed her grandfather being abusive to her mother; in her 
- 61 -

twenties, Allen was beat up by her boyfriend, Bill Skane, and was unrecognizable

when Capers visited her in the hospital; Capers witnessed Allen’s paramour abuse 

her many times while she was pregnant, including one time he and another boy 

kicked and punched Allen in the stomach; when Allen was a young girl, her 

mother went to jail and Allen stayed with her grandfather, and Allen told Capers 

that she wanted to stay with her instead because he was sexually molesting her; 

Allen’s uncle Roy also sexually molested her when he visited the grandfather 

every other weekend; Capers saw Roy touch and grab Allen in private places like 

her breasts and kiss her on the mouth; Allen told Capers that her brother and 

another man sexually molested her; Allen had a stroke as a teenager that affected 

her speech and her memory; and Allen demonstrated signs of severe anxiety.

ANALYSIS

As the majority explains, to be entitled to relief on her claim of ineffective 

assistance of counsel, Allen must satisfy both prongs of the Strickland v. 

Washington, 466 U.S. 668 (1984), analysis—(1) that counsel was deficient and (2) 

as a result of counsel’s deficiency, confidence in the outcome of the trial is 

undermined.

1. Deficiency

Although Capers’ testimony would have involved the same subject as 

evidence presented at trial, it is not merely cumulative—as the majority and 
- 62 -

postconviction court suggest. It is impossible to conclude that Capers’ testimony 

would have been similar in breadth and detail to Hudson’s. Rather, Capers’ 

testimony was more detailed and included many personal, eyewitness accounts to 

the abuse Allen suffered. Certainly, hearing first-hand accounts of the abuse 

suffered by Allen would be far more impactful on the jury than Hudson’s vague 

recollection of Allen’s childhood. 

Further, Allen’s childhood and history of abuse were the most significant 

mitigation the defense presented during the penalty phase. See per curiam op. at 5-

6, note 2. While Hudson’s testimony was a critical component of the mitigation 

presented because it could help the jury understand why Allen committed this 

heinous crime, Capers’ testimony would have undoubtedly painted an even clearer 

picture for the jury of this mitigation, as explained above.

Thus, trial counsel’s investigation was wholly insufficient and “fell short of 

the standards for capital defense work articulated by the American Bar Association 

(ABA)—standards to which [the United States Supreme Court] long have referred 

as ‘guides to determining what is reasonable,’ ” which provide that efforts must be 

made to discover all reasonably available mitigation and evidence to rebut 

aggravators. Wiggins v. Smith, 539 U.S. 510, 524 (2003); see Am. Bar Ass’n, 

Guidelines for the Appointment and Performance of Defense Counsel in Death 
- 63 -

Penalty Cases 10.11 (rev. ed. 2003). Accordingly, I would conclude that Allen has 

satisfied the first prong of the Strickland analysis. 

2. Prejudice

The postconviction court concluded that Allen failed to establish prejudice 

because, with the “significant aggravators found and the comparatively weak 

mitigation found, it is unlikely that the additional mitigation presented would have 

been sufficient to outweigh the established aggravation.” Postconviction Ct. Order 

at 76. Further, the majority asserts that Allen “overemphasizes the value of 

evidentiary hearing testimony presented by Allen’s family members,” specifically 

that the “testimony presented regarding Allen’s background was cumulative to the 

mitigation already presented at trial.” Per curiam op. at 21-22. The majority 

concludes that Allen could not have suffered prejudice because of the mitigation 

already presented in this case and the strong aggravation that was presented, which 

they argue is evidenced by the unanimous jury verdict. Id.

However, the majority fails to take into consideration the effect of Hurst5 on 

the analysis. As this Court explained in Bevel v. State, 221 So. 3d 1168 (Fla. 

 

5. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 

2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016). Hurst applies 

retroactively to Allen’s sentence of death, which did not become final until 2014. 

Allen v. State, 137 So. 3d 946 (Fla. 2013), cert. denied, 135 S. Ct. 362 (2014).
- 64 -

2017), the question of prejudice was significantly altered by this Court’s opinion in 

Hurst:

Thus, this Court unquestionably focuses on the effect the 

unpresented mitigation could have had on the jury’s ultimate 

recommendation. For instance, in Hurst v. State, 18 So. 3d 975 (Fla. 

2009), in addressing whether there was deficient performance and 

prejudice, we reasoned that “[b]ecause this mitigation was not made 

available for the jury or the trial judge to consider before the death 

sentence was imposed, our confidence in the imposition of the death 

penalty in this case is undermined.” Id. at 1015. After our more 

recent decision in Hurst, where we determined that a reliable penalty 

phase proceeding requires that “the penalty phase jury must be 

unanimous in making the critical findings and recommendation that 

are necessary before a sentence of death may be considered by the 

judge or imposed,” 202 So. 3d at 59, we must consider whether the 

unpresented mitigation evidence would have swayed one juror to 

make “a critical difference.” Phillips [v. State], 608 So. 2d [778,] 783 

[(Fla. 1992)].

221 So. 3d at 1182.

Hudson testified at the postconviction evidentiary hearing that she told 

counsel about Capers and her willingness to testify in Allen’s case. Further, 

Capers testified at the postconviction evidentiary hearing that she was contacted by 

an attorney—not Allen’s trial counsel—before trial, was available to speak with an 

expert, and wanted to testify, but was not asked to do so. Rather than looking into 

Capers’ testimony, trial counsel relied solely on Hudson’s testimony for 

information regarding Allen’s childhood and adult life. In fact, Capers wanted to 

help Allen but was never told that her testimony could help; she was even present 

in the courtroom for the duration of the trial. 
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Clearly, as explained above, Capers’ testimony would have better illustrated 

for the jury the trauma in Allen’s childhood, development, and surroundings as an 

adult. Indeed, counsel conceded that it would have been beneficial to find 

witnesses to substantiate Allen’s violent family life. See Walker v. State, 88 So. 3d 

128, 140 (Fla. 2012). Further, the additional “insight into [Allen’s] childhood and 

young adulthood” that Capers could have provided would have “serv[ed] to 

humanize [her] to the jury” and could have persuaded jurors to be more 

sympathetic and merciful. Id. at 140-41. Thus, I conclude that prejudice has been 

established because our confidence in the unanimous jury verdict should be

undermined.

CONCLUSION

It is clear that Capers’ testimony would have provided the jury with a more 

complete and accurate picture of the powerful mitigation in Allen’s case. 

However, because of the failure of Allen’s attorney to investigate and present this 

mitigation evidence, the jury only received a partial understanding of the abuse 

Allen suffered as a child and into her adult life. This half-truth undoubtedly 

undermines our confidence in Allen’s sentence of death. Thus, I would vacate 

Allen’s sentence of death and remand for a new penalty phase. 

Accordingly, I dissent.

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

David Dugan, Judge - Case No. 052005CF048260AXXXXX
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Maria DeLiberato, Capital Collateral Regional Counsel, Raheela Ahmed, Maria 

Christine Perinetti, and Lisa Marie Bort, Assistant Capital Collateral Regional 

Counsel, Middle Region, Temple Terrace, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, 

Assistant Attorney General, Daytona Beach, Florida,

for Appellee