Supreme Court of Florida ____________

No. SC18-1763

____________

TERRY SMITH,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

____________

No. SC19-680

____________

TERRY SMITH,

Petitioner,

vs.

MARK S. INCH, etc.,

Respondent.

October 21, 2021

PER CURIAM.

Terry Smith appeals the denial of numerous guilt-phase 

claims raised in his initial motion for postconviction relief filed 

under Florida Rule of Criminal Procedure 3.851 and petitions this 
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Court for a writ of habeas corpus. We have jurisdiction. See art. V, 

§ 3(b)(1), (9), Fla. Const. For the reasons expressed below, we 

affirm the denial of postconviction relief as to the guilt phase and 

deny Smith’s habeas petition.

I. BACKGROUND

Terry Smith was convicted of the first-degree murders of 

Desmond Robinson, Berthum Gibson, and Keenethia Keenan. He 

was sentenced to death for the murders of Gibson and Keenan and 

to life for the murder of Robinson. Smith v. State, 139 So. 3d 839, 

841 (Fla. 2014). On direct appeal, this Court set forth the facts of 

the murders as follows:

While looking for narcotics on June 5, 2007, Terry 

Smith, then age nineteen, called an acquaintance, Breon 

Williams. Williams, a street level drug dealer, informed 

Smith that he was going to purchase some drugs and 

invited Smith to join him. Smith took Williams up on his 

offer. In the late evening of June 5, Williams picked 

Smith up from the home of Smith’s mother. From there 

they rode on Williams’ motorized scooter to a house in 

Jacksonville, Florida, where Desmond Robinson and 

Berthum Gibson sold drugs.

Williams had previously purchased drugs from 

Desmond Robinson at that location. On previous 

occasions, Williams had entered through the back door of 

the home, which was locked and contained a sheet of 

Plexiglas on its interior. When Williams and Smith 

arrived at the house, they pulled into the driveway, 

parked Williams’ scooter, and walked up to the back 
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door. Williams knocked on the door, and Robinson let 

them in.

After Williams and Smith entered the kitchen, 

Robinson locked the door and left the key in it. When 

they entered, Gibson and Keenethia Keenan were sitting 

at a table in the kitchen and dining room area of the 

home. Williams walked to the kitchen counter, which 

was located near the door, and began to count his money 

to determine how much cocaine he could purchase. 

While Williams was counting his money, he heard Smith 

say “[g]ive it up,” followed by gunshots. Williams turned 

to run out of the residence, which required turning the 

key that was already in the door to unlock it. Before 

exiting, Williams saw Smith shoot Robinson multiple 

times. Williams was in such a hurry to leave the house 

that he left approximately $400 on the kitchen counter 

and his scooter in the driveway.

The State then presented circumstantial evidence 

that instead of escaping out the back door after killing 

Robinson, Smith stepped over Robinson’s body and 

proceeded into the hallway, where he shot in the 

direction of Gibson and Keenan. Gibson and Keenan 

each died from a single gunshot wound that was 

attributed to Smith’s ten millimeter handgun. Keenan’s 

body was found unarmed in the back of the southeast 

bedroom, where she died within seconds of the gunshot 

piercing her heart. When police arrived, they found 

Gibson, who was still alive despite a gunshot wound to 

his abdomen. He was leaning against the bed in the 

same bedroom with a rifle in his hands. Paramedics 

transported Gibson to the hospital, where he died due to 

internal injuries from the gunshot wound. Police found 

shell casings from the gun used by Smith in the kitchen 

and dining room area as well as in the living room area of 

the home. They also found shell casings from the rifle 

used by Gibson in the southeast bedroom and the 

hallway leading up to the bedroom.

After shooting Gibson and Keenan, Smith ran out 

the back door of the house, touching the Plexiglas portion 
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of the door on his way out. When police arrived, they 

found Williams’ money on the kitchen counter and drugs 

on the dining room table. After exiting the crime scene, 

Smith called Ullysses Johnson to pick him up from the 

area. At the time, Johnson was at home playing video 

games with his brother Raylan Johnson and Jonathan 

Peterson. The three then picked Smith up near the crime 

scene. In the car, Smith told them that he had shot 

three people.

After arriving at the Johnsons’ home, Ullysses 

Johnson and Peterson went inside, while Smith and 

Raylan Johnson remained outside. Smith gave his gun 

to Raylan Johnson, who buried it in the yard and then 

sold it a few days later to Walter Dumas. They also 

burned Smith’s clothes in a bin that was in the yard.

The jury found Smith guilty of first-degree murder 

for the deaths of Robinson, Gibson, and Keenan. 

Smith, 139 So. 3d at 841-42 (alteration in original). We affirmed the 

convictions and sentences in 2014. Id. at 841. 

II. POSTCONVICTION APPEAL

Smith filed a motion for postconviction relief under Florida 

Rule of Criminal Procedure 3.851 and several amendments thereto, 

ultimately raising sixteen claims. After holding a case management 

conference, the trial court granted an evidentiary hearing on nine 

claims. Subsequent to the evidentiary hearing, the trial court 

entered an order denying in part Smith’s motion for postconviction 

relief and granting in limited part Smith’s motion for postconviction 

relief as to a new penalty phase under Hurst v. State, 202 So. 3d 40 
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(Fla. 2016), receded from in part by State v. Poole, 297 So. 3d 487 

(Fla. 2020).1 This appeal follows.2

A. Ineffective assistance of counsel during the guilt phase

Smith first raises a claim of ineffective assistance of counsel 

during the guilt phase. Under Strickland v. Washington, 466 U.S. 

668, 686-88 (1984), a defendant alleging that he received ineffective 

assistance of counsel has the burden to demonstrate that counsel’s 

performance fell below an objective standard of reasonableness. In 

order to prevail on a claim of ineffective assistance of counsel, a 

defendant must show both that trial counsel’s performance was 

deficient and that the deficient performance prejudiced the 

defendant. Strickland, 466 U.S. at 687. “Both prongs of the 

Strickland test present mixed questions of law and fact.” Johnson v. 

State, 135 So. 3d 1002, 1013 (Fla. 2014). “In reviewing a trial 

1. Although we have since receded from Hurst, we do not 

disturb the trial court’s order granting a new penalty phase. See 

State v. Jackson, 306 So. 3d 936, 945 (Fla. 2020).

2. At the outset, the State questions whether this Court has 

jurisdiction of this case given the postconviction court’s order 

granting a new penalty phase pursuant to Hurst. We have 

previously rejected this argument. See Merck v. State, 260 So. 3d 

184, 188 n.1 (Fla. 2018) (“[T]he pending resentencing [under Hurst] 

does not affect our exclusive jurisdiction over this appeal.”).
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court’s ruling after an evidentiary hearing on an ineffective 

assistance of counsel claim, this Court defers to the factual findings 

of the trial court to the extent that they are supported by 

competent, substantial evidence, but reviews de novo the 

application of the law to those facts.” Id. (quoting Mungin v. State,

932 So. 2d 986, 998 (Fla. 2006)).

As to the first prong, the defendant must establish “that 

counsel made errors so serious that counsel was not functioning as 

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 

Strickland, 466 U.S. at 687. A court reviewing the second prong 

must determine whether “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. “A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.” 

Id. “[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.” Id. at 697.

Contained within Smith’s claim of ineffective assistance of 

counsel are numerous subclaims. We now address each subclaim 

in turn.
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1. Introduction of evidence of lack of remorse

Smith first claims that counsel was ineffective for introducing 

into evidence an additional portion of Smith’s taped interrogation in 

which detectives repeatedly accused Smith of having no remorse for 

the murders.3

On April 1, 2009, Detectives Nelson and Chizik of the 

Jacksonville Sheriff’s Office conducted a video-recorded 

interrogation of Smith regarding the murders of Robinson, Gibson, 

and Keenan, which occurred at Robinson’s house on Ahmad Drive. 

At trial, the State introduced portions of the recording, in which 

Smith repeatedly denied being involved in the murders or ever 

having been inside the Ahmad Drive house. On cross-examination, 

defense counsel played an additional portion of the video recording, 

in which Detective Nelson continued to ask Smith questions even 

after Smith had repeatedly requested to stop the interrogation. 

3. Smith also asserts that the additional portion of the video 

contained the detectives’ opinions of Smith’s guilt, but this 

argument was not raised in his motion for postconviction relief or 

the amendments thereto, and it cannot be raised for the first time 

on appeal. Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982).
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During the portion of the video recording played by defense counsel, 

the detectives made multiple references to Smith’s lack of remorse. 

At the evidentiary hearing, lead trial counsel, Richard Kuritz, 

testified that he introduced the additional portion of the video in 

order to portray the detectives as dishonest and unethical and show 

that they were “running all over” Smith’s constitutional rights. 

Counsel said that he wanted to show the jury that the lead detective 

was not as charming and nice as he seemed during direct 

examination and that he thought that the conduct of the detectives 

on the video was more damning to the State’s case than anything 

else. Counsel used the interrogation practices displayed on the 

video to argue in closing that the detectives also disregarded the 

rights of and used heavy-handed interrogation techniques on the 

witnesses against Smith in this case—Breon Williams, Ullysses 

Johnson, and Jonathan Peterson—in order to get them to implicate 

Smith. The trial court concluded that trial counsel’s decision to 

introduce the additional portion of the video was a sound, strategic 

decision, intended to provide a concrete example of the lead 

detective’s aggressive interrogation tactics.
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The trial court’s conclusion that counsel’s decision to 

introduce the additional portion of the video despite references to 

lack of remorse was a sound strategy is supported by competent, 

substantial evidence. Smith makes no argument regarding 

prejudice except to say that evidence of lack of remorse “has been 

found consistently by Florida courts to be highly prejudicial.” 

Appellant’s Initial Br. at 67. But Smith does not make clear how 

the detectives’ statements about lack of remorse prejudiced him in 

the guilt phase, where his defense was that he did not commit the 

murders and was not present when they occurred. Because 

counsel did not perform deficiently, and Smith has not established 

that he was prejudiced by the introduction of the additional portion 

of the video, Smith is not entitled to relief on this claim.

2. Stipulation to booking photos and statements written 

on them

Smith next argues that trial counsel was ineffective for 

stipulating to the admission of what appear to be three different 

booking photographs of Smith, on each of which a statement was 

written by one of the witnesses, which Smith contends is 

inadmissible hearsay. The three photographs at issue are State’s 
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exhibit 12, admitted at trial through Breon Williams; State’s exhibit 

85, admitted through Ullysses Johnson; and State’s exhibit 86, 

admitted through Jonathan Peterson.

At the evidentiary hearing, when asked why he stipulated to 

the admission of the photographs, counsel said that he typically 

confers with the State to review exhibits and “try to stipulate to 

whatever is going to come into evidence anyway and not to be 

obstructionist and not to waste time” if such matters are admissible 

or if the witness would otherwise testify to such matters. Each 

exhibit will be addressed in turn.

a. State’s exhibit 12

State’s exhibit 12 is a photo of Smith wearing a shirt with the 

words “Inmate” and “Department of Corrections” on it. The photo 

was part of a six-photograph identification photospread that law 

enforcement used to confirm that the shooter Breon Williams knew 

as “Terry” was, in fact, Terry Smith. During his interview with 

police, Williams identified Smith as the “Terry” he saw shooting at 

the Ahmad Drive house by writing on the booking photograph, 

“Terry I saw him shoot Desmond. It happened in the kitchen of 

Ahmad Drive.” The trial court limited its analysis of this claim to 
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the prejudice prong and concluded that Smith was not prejudiced 

by the admission of Williams’ written statement on the photograph 

or the fact that State’s exhibit 12 was a booking photo.

The trial court did not err in reaching these conclusions. By 

the time the photo was admitted into evidence, the complained-of 

hearsay on the photo—that Williams witnessed Smith shoot 

Desmond Robinson—had already been properly testified to by 

Williams. See Ventura v. State, 794 So. 2d 553, 568 (Fla. 2001) 

(finding no merit to a claim of ineffective assistance where the 

complained-of hearsay contained testimony that was properly 

admitted through other channels (citing United States v. Brooks, 82 

F.3d 50, 53 (2nd Cir.1996) (holding that defendant established no 

prejudice from counsel’s failure to object to hearsay testimony 

where the hearsay contained facts that were already testified to in 

admissible form))). Further, there is no reasonable probability that 

Smith would have been acquitted had the photo been cropped to 

show just Smith’s face. 

b. State’s exhibit 85

State’s exhibit 85 is closely cropped, but appears to also be a 

booking photograph of Smith, because he is wearing clothing 
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similar to the clothing in State’s exhibit 12, although no writing can 

be seen on the clothing in State’s exhibit 85. On the photo, 

Ullysses Johnson wrote: “He said he had shot three people, two 

dudes and a girl.” The trial court also limited its analysis regarding 

State’s exhibit 85 to the prejudice prong, concluding that exclusion 

of the written statement would not have created a reasonable 

probability that the jury would have acquitted Smith. The trial 

court also concluded that Smith was not prejudiced by the fact that 

State’s exhibit 85 was a booking photograph, because the photo is 

closely cropped, with no writing or insignia visible, and the State 

did not refer to the photo as being a “mug shot” or otherwise 

suggest that Smith had a criminal background.

The trial court did not err in reaching these conclusions. By 

the time State’s exhibit 85 was admitted into evidence, Ullysses 

Johnson had already testified that Smith admitted to shooting three 

people at the Ahmad Drive house. Further, the State only used the 

booking photograph to ask Ullysses Johnson if he could identify the 

face in the photo as the person who got in his car and said he shot 

three people in June of 2007. There is no reasonable probability 
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that the jury would have acquitted Smith if State’s exhibit 85 had 

not been admitted.

c. State’s exhibit 86

State’s exhibit 86 is very closely cropped to Smith’s face and 

the clothing he is wearing is not clearly discernible. On the photo, 

Jonathan Peterson wrote:

Terry got in the car after we went and picked him 

up. He said he had touched the door and that he left 

something on the table, to go back. He had a gun on him 

when he got in the car, also. When we got back to the 

house, he changed clothes and told the third man to get 

rid of the gun. About 30 minutes later he left. A week 

later he told me that he shot Bert[4] and Desmond. He 

said that Desmond opened the door and he shot him in 

the kitchen. Then he said he shot Bert in the living 

room. He said somebody came through the hallway 

shooting back at him in the house. He said he then left 

the house.

The trial court concluded that Peterson’s written statement was 

admissible as a prior consistent statement, because trial counsel 

extensively attacked Peterson’s credibility by suggesting that his 

testimony was motivated by his desire to comply with a favorable 

plea agreement he entered, which was contingent upon him 

4. “Bert” was a nickname for Berthum Gibson.
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testifying truthfully against Smith, and trial counsel therefore did 

not perform deficiently by stipulating to its admission. 

We find no error in the trial court’s conclusion. Peterson’s 

written statement would not have been admissible on direct 

examination had defense counsel objected. See Demps v. State, 462 

So. 2d 1074, 1075 (Fla. 1984) (“The general rule regarding prior 

consistent statements, or bolstering testimony, is that such 

evidence is inadmissible absent impeachment based on an attempt 

to show a recent fabrication or other reason for the witness’s lack of 

credibility.”). But the statement would have ultimately been 

admitted once trial counsel attacked Peterson’s credibility based on 

improper motive. Counsel testified at the evidentiary hearing that 

he chose to attack Peterson’s credibility with the plea agreement 

even though he knew the result would be that Peterson’s prior 

consistent statement would be admissible on redirect to rebut the 

charge of improper motive. Counsel considered the alternative 

course of action of objecting to the prior consistent statement but 

ultimately decided that it was most beneficial to Smith to be able to 

attack Peterson with his plea agreement even though it would make 

the prior consistent statement admissible. Thus, because counsel 
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knew the statement would ultimately be admitted, it was a 

reasonable strategic decision not to object to its admission, and 

counsel’s performance was not deficient. See Occhicone v. State,

768 So. 2d 1037, 1048 (Fla. 2000) (“[S]trategic decisions do not 

constitute ineffective assistance of counsel if alternative courses 

have been considered and rejected and counsel’s decision was 

reasonable under the norms of professional conduct.”).

Further, Smith was not prejudiced by Peterson’s written 

statement. By the time State’s exhibit 86 was introduced into 

evidence, Peterson had already testified that Smith admitted on two 

separate occasions to shooting the three victims on Ahmad Drive. 

Even if the written statement had been excluded, the jury still 

would have learned from Peterson and others that Smith confessed 

on multiple occasions, as well as heard from an eyewitness that 

Smith shot Robinson, learned that Smith’s palm print was on the 

back door of the Ahmad Drive house although he had denied ever 

having been there, and learned that Smith carried a ten-millimeter 

handgun, which he had on his person the night of the murders. 

Thus, there is no reasonable probability that Smith would have 

been acquitted had Peterson’s written statement been excluded.
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Counsel also did not perform deficiently, and Smith was not 

prejudiced by the fact that State’s exhibit 86 was a booking photo. 

The State did not refer to the photograph as a booking photo, and it 

is so closely cropped that the jury would not have been able to 

identify it as a booking photo. Thus, any objection to the photo on 

the basis that it was a booking photo would have been overruled. 

Counsel did not render deficient performance by failing to make a 

meritless objection.

d. Ray Dukes’ testimony regarding Breon Williams’ 

statements

At trial, Ray Dukes, the father of Breon Williams, testified that 

a few days after the murders, Williams told him that he and Smith 

went to the Ahmad Drive house to purchase narcotics, and while 

Williams was counting his money, he heard Smith say “give it up.” 

Williams then heard gunshots and ran out the back door. The trial 

court concluded that trial counsel did not render deficient 

performance by failing to object to this testimony because Williams’ 

statement was a prior consistent statement that “was admissible to 

rebut the inference that Breon Williams’ testimony was a product of 

the improper and coercive influence of the detectives,” and trial 
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counsel’s decision not to object to this testimony was a sound 

strategic decision.

The trial court was correct that Williams’ statements to Dukes 

were admissible as prior consistent statements. “A statement is not 

hearsay if the declarant testifies at the trial or hearing and is 

subject to cross-examination concerning the statement and the 

statement is . . . [c]onsistent with the declarant’s testimony and is 

offered to rebut an express or implied charge against the declarant 

of improper influence, motive, or recent fabrication.” § 90.801(2)(b), 

Fla. Stat. (2010). Thus, trial counsel did not render deficient 

performance by failing to make a meritless objection. Further, 

counsel’s strategic decision to attack Williams’ implication of Smith 

as a recent fabrication was sound. Although it led to Williams’ 

statements to Dukes becoming admissible nonhearsay, counsel was 

able to argue in closing the common sense inference that Dukes’ 

testimony may have been motivated by an interest in keeping his 

son out of prison.

There was also no prejudice to Smith by the admission of 

Dukes’ testimony because Williams had already testified that in the 

days following the murders, he told his father what happened at the 
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Ahmad Drive house. Thus, there is no reasonable probability that 

the jury would have acquitted Smith had this testimony been 

excluded.

3. Failure to investigate and challenge forensic evidence

Smith argues that counsel was ineffective for failing to 

challenge the State’s theory that Smith shot all three victims with a 

ten-millimeter Glock, first shooting Robinson in the front of the 

house near the kitchen. Smith asserts that counsel should have 

hired an expert to advance the theory that Keenan was shot by 

Gibson’s AK-47, not Smith’s ten-millimeter. At trial, the medical 

examiner, Dr. Giles, testified that Keenan’s gunshot wound was 

consistent with a medium to large caliber weapon. Based on the 

exterior of the wound and the damage inside her body, he did not 

believe that her injury was caused by a high velocity rifle or an AK47.

At the evidentiary hearing, Smith presented testimony from 

Christopher Robinson, an expert in issues related to crime scene 

reconstruction, blood spatter evidence, and firearms. Robinson 

testified that it was his opinion that Keenan was shot by Gibson’s 

AK-47, but he also testified that it is possible that Keenan was shot 
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by the ten-millimeter. Robinson further testified that the confession 

Smith gave to trial counsel that he shot the three victims is 

“absolutely” consistent with the evidence in this case.

Smith also presented testimony at the evidentiary hearing 

from Dr. Kathryn Pinneri, a forensic pathologist, who testified as an 

expert in the field of forensic pathology and gunshot wounds. Dr. 

Pinneri did not disagree with Dr. Giles’ opinion at trial that the 

injuries to Gibson and Keenan were consistent with a medium to 

large-caliber handgun. Dr. Pinneri testified that it was possible that 

Keenan was shot with an AK-47 or a ten-millimeter and that the 

jury had to look at the totality of the evidence to conclude which 

gun shot Keenan. The trial court concluded that counsel was not 

ineffective for failing to retain forensic experts. 

We agree that trial counsel did not render deficient 

performance by failing to hire forensic experts. Trial counsel 

testified at the evidentiary hearing that Smith confessed to him that 

he killed the three victims with a ten-millimeter handgun, which 

aligned with the State’s theory. 

We have explained that “[a] decision that lodging a particular 

challenge to the validity of evidence would be a waste of resources 
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in light of counsel’s knowledge of corroborating facts [including the 

defendant’s confession] can be a reasonable strategic decision.” 

Patrick v. State, 246 So. 3d 253, 262 (Fla. 2018) (citing Darling v. 

State, 966 So. 2d 366, 382 (Fla. 2007)). Counsel cannot be faulted 

for failing to investigate a theory that he had no reason to suspect 

would be valid and supported by the evidence. See Rompilla v. 

Beard, 545 U.S. 374, 383 (2005) (“[T]he duty to investigate does not 

force defense lawyers to scour the globe on the off chance 

something will turn up; reasonably diligent counsel may draw a line 

when they have good reason to think further investigation would be 

a waste.”). Thus, given Smith’s confession to trial counsel that he 

shot all three victims with a ten-millimeter handgun, “it was 

reasonable trial strategy for counsel not to challenge forensic 

evidence that was consistent with this position.” Darling, 966 So. 

2d at 382. Counsel’s decision not to hire experts to challenge the 

State’s theory that Smith shot Keenan was reasonable under the 

circumstances and does not amount to deficient performance.

Further, Smith was not prejudiced by counsel’s failure to call 

these experts at trial. As demonstrated by the experts at the 

evidentiary hearing, any evidence that counsel could have 
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presented at trial to “challenge” the State’s theory that Smith shot 

Keenan would have been equivocal at best and would not have 

created a reasonable probability that the outcome of the trial would 

have been different. Moreover, the evidence presented at trial that 

all three victims were shot by a medium to large-caliber handgun 

was not inconsistent with the defense theory that Smith did not 

shoot any of the victims. 

4. Failure to impeach critical witnesses

Smith next contends that trial counsel was ineffective for 

failing to impeach State witnesses Breon Williams, Ray Dukes, Kirk 

Brewer, and Jonathan Peterson. Each witness will be addressed in 

turn.

a. Breon Williams

First, Smith claims that trial counsel was ineffective for failing 

to effectively develop Williams’ self-interest—avoiding charges of 

murder and giving false information to a law enforcement officer 

concerning the commission of a capital felony—in supporting the 

State’s theory of the case and to impeach him with his inconsistent 

statements.
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We agree with the trial court that this claim is conclusively 

refuted by the record. At trial, counsel repeatedly highlighted the 

fact that Williams initially lied to detectives, claiming that he lacked 

any knowledge of the murders. Counsel also pointed out that the 

police threatened to charge him for his involvement but that 

Williams was never arrested for anything having to do with the 

events surrounding the murders. “[C]ounsel cannot be held 

ineffective for what counsel actually did.” Bates v. State, 3 So. 3d 

1091, 1106 n.20 (Fla. 2009).

b. Ray Dukes

Smith contends that counsel performed deficiently for failing 

to impeach Ray Dukes with a prior felony conviction. 

Counsel testified at the evidentiary hearing that he made a 

strategic decision not to impeach Dukes because Dukes was merely 

the father of a key witness, Breon Williams, and Dukes’ testimony 

did not damage Smith’s case, because the jury had already heard 

the same evidence from Williams. The trial court concluded that 

counsel’s reasonable strategic decision not to impeach Dukes did 

not constitute deficient performance. Because Smith has failed to 

demonstrate that counsel’s actions were outside the wide range of 
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reasonable professional assistance tolerated by Strickland, we find 

no error in the trial court’s conclusion.

Smith was also not prejudiced by counsel’s decision not to 

impeach Dukes with his prior felony conviction. The jury had 

already heard the same substance of Dukes’ testimony from Breon 

Williams, which was corroborated by the testimony of Ullysses 

Johnson, Jonathan Peterson, and Smith’s palm print on the door at 

the Ahmad Drive house. Thus, there is no reasonable probability 

that Smith would have been acquitted if Dukes had been 

impeached with his prior felony conviction.

c. Kirk Brewer 

Smith contends that counsel was deficient for failing to 

impeach Kirk Brewer with a prior felony conviction. Brewer testified 

at trial that on the night of the murders, Breon Williams asked him 

to retrieve Williams’ scooter from Robinson’s house, which Brewer 

did. At the evidentiary hearing, counsel stated that there was no 

reason to impeach Brewer with his prior conviction because he did

not give any incriminating information against Smith and did not 

know that Smith had been at Robinson’s house that night. The 
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trial court concluded that counsel’s decision not to impeach Brewer 

was a reasonable strategic decision.

The trial court’s decision is supported by competent, 

substantial evidence. Further, counsel did call Brewer’s credibility 

into question with the fact that he lied to law enforcement the first 

two times he spoke with them about the events surrounding the 

murders and that it was not until after the police had already told 

Brewer that they knew he had retrieved the scooter for Williams and 

after Brewer asked what he had to tell the police in order to end the 

interview and be permitted to go home that he finally told police 

that he retrieved the scooter for Williams. Counsel even pointed out 

that Williams made Detective Nelson put in writing that Brewer 

could go home if Brewer said what Detective Nelson wanted him to 

say. Counsel did not perform deficiently in declining to impeach 

Brewer with his prior felony conviction, and there is no reasonable 

probability that Smith would have been acquitted had counsel done 

so. 
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d. Jonathan Peterson

Smith contends that counsel was deficient for failing to 

impeach Jonathan Peterson based on his four felony convictions 

and the testimony of Anthony Vaughn.

As the trial court correctly acknowledged:

On direct examination, the State pointed out Jonathan 

Peterson pleaded guilty to two counts of manslaughter 

and one count of possession of a firearm by a convicted 

felon, was residing in county jail awaiting sentencing, 

and had a plea deal with the State in return for testimony 

against Defendant and others. The possession of a 

firearm by a convicted felon charge would lead a 

reasonable jury to conclude Jonathan Peterson had 

previously been convicted of at least one other felony.

(Citation omitted.)

Further, on cross-examination, trial counsel went over 

Peterson’s plea deal, pointing out that his second-degree murder 

charge had been reduced to two counts of manslaughter to which 

he pleaded guilty. And in closing, trial counsel argued that 

Peterson’s felony convictions and plea deal undermined his 

credibility. Thus, there was no deficiency. See Ferrell v. State, 29 

So. 3d 959, 972 (Fla. 2010) (finding no deficiency where the State 

brought out the witness’s prior convictions, pending charges, and 
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plea deal on direct examination, and defense counsel discussed the 

prior convictions on cross-examination and in closing). 

Smith also contends that trial counsel was ineffective for 

failing to call Anthony Vaughn at trial to impeach Jonathan 

Peterson. At the evidentiary hearing, Vaughn testified that while 

he, Peterson, and Raylan Johnson were housed in the Duval 

County Jail, Raylan Johnson asked Vaughn to help him 

communicate with Jonathan Peterson via sign language regarding 

blaming the murders on Smith. Subsequently, Vaughn met Smith 

in a different part of the jail and told him about the conspiracy to 

blame the murders on him. At the time, Smith and Vaughn were 

represented by the same trial counsel. Vaughn told the investigator 

on Smith’s case what he knew about Raylan Johnson and Jonathan 

Peterson’s plan to blame Smith for the murders. By the time of 

Smith’s trial, Vaughn had been transferred to prison, but he was 

transported back to Duval County for the purpose of testifying for 

the defense at Smith’s trial, although he ultimately did not do so.

At trial, counsel explained that after he, co-counsel, and Smith 

discussed the pros and cons of Vaughn’s testimony, it was decided 

that he would not testify. The State, who had deposed Vaughn, put 
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on the record at trial that Vaughn would have testified to 

communications between Raylan Johnson and Jonathan Peterson 

at the time they were all housed in the county jail. The State also 

put on the record that it would call a records custodian from the jail 

as a rebuttal witness to refute Vaughn’s timeline of when the 

communications regarding the alleged conspiracy occurred. The 

trial court then conducted a colloquy with Smith, during which 

Smith testified that he agreed with the decision that Vaughn would 

not testify and that he had had sufficient time to confer with 

counsel regarding that decision.

At the evidentiary hearing, trial counsel explained that the 

decision not to call Vaughn was based on concerns about Vaughn’s 

credibility and associating Smith with Vaughn, who is a convicted 

murderer. The trial court concluded that counsel was not deficient 

for declining to call Vaughn because from the colloquy conducted 

during trial, it was clear that Smith “voluntarily and knowingly 

chose not to call Anthony Vaughn as a defense witness to impeach 

the credibility of Jonathan Peterson. . . . [T]he record conclusively 

refutes Defendant’s desire to call Anthony Vaughn.”
- 28 -

We have held that there is no merit to a claim of ineffective 

assistance of counsel if the defendant consents to counsel’s 

strategy. Gamble v. State, 877 So. 2d 706, 714 (Fla. 2004). Thus, 

because it is clear from the record that Smith consented to 

counsel’s strategic decision not to call Vaughn, there is no merit to 

his claim of ineffectiveness. We have “also consistently held that a 

trial counsel’s decision to not call certain witnesses to testify at trial 

can be reasonable trial strategy.” Everett v. State, 54 So. 3d 464, 

474 (Fla. 2010). Because counsel made a reasonable strategic 

decision in light of his concerns about Vaughn’s credibility and 

associating Smith with a convicted murderer, there was no deficient 

performance. See Occhicone, 768 So. 2d at 1048.

5. Failure to object to improper character evidence

Smith argues that counsel was ineffective for failing to object 

to the State’s repeated elicitation of improper evidence of Smith’s 

character from its witnesses.

a. Evidence that Smith harbored Edward Haney 

At trial, Edward Haney, who was Smith’s best friend around 

the time of the murders, testified that Smith allowed Haney to stay 

at his house in 2008, knowing that Haney was wanted in 
- 29 -

connection with another unrelated shooting and attempting to 

evade arrest. Smith asserts that counsel should have objected to 

this testimony as inadmissible collateral crime evidence under 

section 90.404(2), Florida Statutes (2010), because it was relevant 

solely to prove bad character or propensity. The trial court 

concluded that trial counsel did not perform deficiently in failing to 

object to this testimony because it was relevant to and probative of 

Haney’s credibility.

In general, under Williams v. State, 143 So. 2d 484 (Fla. 1962), 

evidence of any facts relevant to a material fact in issue, except 

where sole relevancy is character or propensity of accused, is 

admissible unless precluded by some specific exception or rule of 

exclusion. Since evidence that Haney was staying with Smith while 

he was wanted for murder was relevant to explain why Smith 

confessed to Haney nearly a year after the murders in this case, its 

sole relevancy was not the character or propensity of Smith. Smith 

has not identified any rule or exception that would preclude 

admission of this evidence. Therefore, it was admissible at trial, 

and Smith has failed to establish that counsel performed deficiently 

by failing to object.
- 30 -

Further, Smith has failed to establish prejudice. There is no 

reasonable probability that the jury would have acquitted Smith but 

for the fact that they were made aware that Haney was wanted at 

the time he was staying with Smith.

b. Evidence that witnesses feared retaliation 

Smith next complains that trial counsel did not object when 

Breon Williams, Jonathan Peterson, and Ullysses Johnson testified 

they were afraid of retaliation by Smith while citing to no specific or 

general threats. Breon Williams testified that he did not contact 

police after fleeing from the murder scene and that he initially lied 

to the police—telling them that he did not know anything about the 

murders—because he feared retaliation from Smith. Ullysses 

Johnson testified that he did not contact the police with his 

knowledge of Smith’s involvement in the murders and that he 

initially lied when he was brought in for questioning because he 

was nervous about being at the police station, scared that he might 

be in trouble, and concerned that Smith might retaliate. Jonathan 

Peterson also testified that he did not go to the police with his 

knowledge of Smith’s involvement in the murders because he feared 

retaliation and because he “liv[es] by the code in the streets,” 
- 31 -

meaning “you just don’t go volunteer information” because “[i]t gets 

you killed.” Peterson also said that when he was interviewed by 

police, he was reluctant at first for the same two reasons.

The trial court concluded that evidence that these three 

witnesses feared retaliation by Smith was relevant to their 

credibility and admissible “because it provide[d] a plausible 

explanation for why they did not voluntarily come forward and 

initially denied having knowledge about the triple homicide”; 

therefore, counsel’s failure to object did not amount to deficient 

performance.

There is competent, substantial evidence in the record to 

support the trial court’s conclusion. The credibility of witnesses is 

always in issue, and this testimony was relevant to explain why the 

witnesses did not come forward on their own and why they initially 

lied to law enforcement when questioned about the murders. 

Although the testimony regarding the witnesses’ “fear of retaliation” 

was prejudicial to Smith, its probative value was not outweighed by 

the danger of unfair prejudice to Smith. Counsel was therefore not 

deficient for failing to object to this admissible evidence.
- 32 -

Further, even if evidence that the witnesses feared retaliation 

were inadmissible, Smith would not have been prejudiced by 

counsel’s failure to object. As Smith acknowledges in his brief, the 

witnesses testified “they were afraid of Smith while citing to no 

specific or general threats.” It would have been far more prejudicial 

to Smith, had the witnesses elaborated and testified to specific 

threats Smith had made to them or provided other reasons to 

justify their fear of him. The testimony of each witness’s fear of 

retaliation was also brief and not a feature of any witness’s

testimony. It is clear from the context in which each statement was 

elicited that these statements were being used to explain the 

witnesses’ reluctance to talk about what they knew about the 

murders rather than to denigrate Smith’s character. There is no 

reasonable probability that Smith would have been acquitted had 

this testimony been excluded.

c. Reference to Smith “picking” the witnesses

Finally, Smith points to statements made by the State in its 

closing argument in which the State acknowledged that Jonathan 

Peterson, Ullysses Johnson, and Edward Haney may not be “liked” 

by the jury and stated that Smith “chose these witnesses” by 
- 33 -

confessing to them. Smith faults counsel for failing to raise “any 

relevance objection for offering evidence of uncharged bad acts” and 

argues that “[d]ue to counsel’s failure to object to this inadmissible 

testimony, the jury was allowed to hear irrelevant, improper 

testimony that only served to denigrate Smith’s character and 

invited the jury to convict based on facts unrelated to the charges.” 

Appellant’s Initial Br. at 100-01. But because the State’s closing 

argument was not evidence or testimony, the relevance objection 

that Smith argues should have been raised would have been 

overruled. Thus, this claim is without merit.

6. Failure to raise a Confrontation Clause challenge to the 

medical examiner’s testimony

The autopsies of the three victims in this case were conducted 

by three different medical examiners. Smith asserts that trial 

counsel was ineffective for failing to object to Dr. Giles testifying to 

the findings and conclusions of the other two medical examiners 

regarding the cause and manner of death of Gibson and Keenan 

and the exhibition of photographs from those autopsies, because he 

argues that testimony violated the Confrontation Clause. But 
- 34 -

because there was no violation of the Confrontation Clause, any 

such objection would have been meritless.

We have previously held that a testifying medical expert may 

offer an opinion based on an autopsy performed by a non testifying 

expert without violating the Confrontation Clause. Brooks v. State, 

175 So. 3d 204, 237 (Fla. 2015); see also Capehart v. State, 583 So. 

2d 1009, 1012-13 (Fla. 1991) (concluding that there was no error in 

allowing chief medical examiner, who based her opinion on autopsy 

report, toxicology report, evidence receipts, photographs of body, 

and all other paperwork filed in case, to testify regarding cause of 

death and condition of victim’s body, although she did not perform 

autopsy); Geralds v. State, 674 So. 2d 96, 100 (Fla. 1996) (finding 

no abuse of discretion where the trial court allowed a pathologist 

who had not performed the victim’s autopsy to offer expert 

testimony as to the manner and cause of death of the victim).

Dr. Giles testified that he reviewed the files prepared by the 

two medical examiners who conducted the autopsies on Gibson and 

Keenan. The autopsy reports were not admitted into evidence, and 

it is clear from the record that Dr. Giles testified to his independent 

opinions, formed after reviewing technical facts contained in the 
- 35 -

reports and the photographs taken during those autopsies. 

Because his judgment and methods were subject to crossexamination, the Confrontation Clause was not violated. Trial

counsel was not deficient in declining to raise a futile objection.

Smith has failed to develop his claim that Dr. Giles’ use of the 

photographs taken during the autopsies of Gibson and Keenan 

violated the Confrontation Clause and is therefore not entitled to 

relief on that claim. See Heath v. State, 3 So. 3d 1017, 1029 n.8 

(Fla. 2009) (“Vague and conclusory allegations on appeal are 

insufficient to warrant relief.”).

7. Failure to advance Smith’s defense

Smith alleges that trial counsel performed deficiently by 

ignoring Smith’s account of what happened at the Ahmad Drive 

house on the night of the murders and choosing to present a false 

defense instead by arguing that Smith did not commit the murders 

and suggesting that Raylan Johnson was the responsible party.

At the evidentiary hearing, trial counsel testified that Smith 

confessed to him that he committed the murders. Smith told 

counsel that he went with Breon Williams to purchase drugs from

Robinson, but in the course of the drug transaction, initiated a 
- 36 -

robbery, and told Robinson to “give it up” before shooting him. 

Smith admitted that he then proceeded further into the home and 

shot both Gibson and Keenan. Smith said that he fled the home 

without taking the drugs or money that were left out because 

somebody was shooting back at him. Trial counsel found Smith’s 

confession to be consistent with his evaluation of the physical 

evidence. Trial counsel also testified that Smith told him that he 

had confessed to Haney, Peterson, Ullysses Johnson, and Raylan 

Johnson.

Smith testified at the evidentiary hearing that he told trial 

counsel that when he and Williams arrived at the Ahmad Drive 

house, Smith said he saw an unknown man with a light brown

complexion standing in the kitchen area and arguing with Robinson 

about money the man was owed. Williams stepped outside to take 

a phone call, and after Robinson locked the door behind Williams, 

the unknown man pulled out a handgun and started shooting. 

Smith unlocked the door, ran to some nearby apartments, and 

called Raylan Johnson to pick him up.

Smith said that because he had told police that he had never 

been to the house on Ahmad Drive, trial counsel advised him that 
- 37 -

this version of events would not go over well with the jury. Smith 

said trial counsel told him that it would be better to present the 

defense that Raylan Johnson and Breon Williams were responsible 

for the murders, because Raylan Johnson had been going around 

bragging about committing the murders and Williams had admitted 

to being at the scene.

The trial court found Smith’s testimony incredible. The court 

concluded that Smith never told trial counsel about an unidentified 

man being the assailant and denied relief on this claim.

“This Court is highly deferential to the postconviction court’s 

factual findings and ‘will not substitute its judgment for that of the 

trial court on . . . the credibility of the witnesses and the weight to 

be given to the evidence.’ ” Mosley v. State, 209 So. 3d 1248, 1263 

(Fla. 2016) (alteration in original) (quoting Wyatt v. State, 71 So. 3d 

86, 105 (Fla. 2011)). “This is because ‘the trial judge is there and 

has a superior vantage point to see and hear the witnesses 

presenting the conflicting testimony.’ ” Wyatt, 71 So. 3d at 105 

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

the trial court denied relief on the basis that trial counsel’s 

testimony was more credible than Smith’s testimony and Smith’s 
- 38 -

testimony was wholly inconsistent with the evidence presented at 

trial and the evidentiary hearing. The record provides competent, 

substantial evidence supporting the trial court’s findings, and we 

will not substitute our judgment for that of the trial court on the 

credibility of the witnesses.

Further, in light of Smith’s palm print at the Ahmad Drive 

house, his denial of ever having been there, evidence that he 

confessed to four people on at least three occasions, and eyewitness 

testimony that he initiated the shooting and shot Robinson, trial 

counsel was not deficient in making the strategic decision to 

present a defense of reasonable doubt after considering alternative 

courses of action. See Occhicone, 768 So. 2d at 1048.

Cumulative Prejudice Analysis

We have resolved two of Smith’s claims based on a lack of 

prejudice without resolving whether counsel’s performance was 

deficient. These claims are those relating to (1) trial counsel’s 

failure to challenge the admissibility of State’s exhibit 12, a 

photograph in which Smith is wearing a shirt with the words 

“Inmate” and “Department of Corrections” easily discernible, on 

which Breon Williams wrote, “Terry I saw him shoot Desmond. It 
- 39 -

happened in the kitchen of Ahmad Drive,” and (2) trial counsel’s 

failure to challenge the admissibility of State’s exhibit 85, a closely 

cropped photograph of Smith that appears to also be a booking 

photograph, because he is wearing clothing similar to the clothing 

in State’s exhibit 12, although there is no visible writing on the

clothing identifying Smith as an inmate, and on which Ullysses 

Johnson wrote, “He said he had shot three people, two dudes and a 

girl.”

Even if State’s exhibit 12 had been excluded or cropped down 

to show only Smith’s face, the jury still would have heard from 

Breon Williams that he saw Smith shoot Desmond Robinson in the 

kitchen of the house on Ahmad Drive. And even if State’s exhibit 

85 had been excluded or cropped down to only show Smith’s face, 

the jury still would have heard Ullysses Johnson testify that Smith 

confessed that he shot the three victims at the Ahmad Drive house. 

Further, in addition to testimony from Williams that he saw Smith 

initiate the shooting and shoot Robinson and Ullysses Johnson’s 

testimony that he heard Smith confess, the evidence against Smith 

included testimony from Jonathan Peterson and Edward Haney 

that Smith confessed to each of them on different occasions and 
- 40 -

Smith’s palm print on the interior of the back door of the house on

Ahmad Drive, which contradicted his assertion that he had never 

been inside the house. As a result, Smith has not demonstrated 

that any alleged deficiency in the failure to object to State’s exhibits 

12 and 85 would undermine confidence in the outcome.

B. Newly discovered evidence

Smith argues that he is entitled to relief based on newly 

discovered evidence in the form of Edward Haney’s recantation of 

Smith’s confession to him. At trial, Edward Haney testified that he 

was staying with Smith at his home in early April 2008, while 

Haney was attempting to evade arrest in another, unrelated 

shooting. While Haney was staying with Smith, the case in which 

Haney was wanted was featured on the local news, and Haney’s 

picture was shown as being wanted in connection with that 

shooting. Haney testified that after his picture was shown on the 

news, Smith told him that he had killed three people on Ahmad 

Drive and was not caught. Smith told Haney that he and Breon

Williams went to buy drugs from Robinson. Smith said that he 

started shooting at the people in the house and shot Robinson, 

Gibson, and a female he did not know. Smith said that Williams
- 41 -

got scared and tried to leave but dropped the keys to the door 

before he was eventually able to get the door unlocked and get out. 

Smith told Haney that he left the murder scene on foot and that he 

used a ten-millimeter handgun to shoot the victims.

After Haney was apprehended on April 15, 2008, Detective 

Nelson went to the jail to talk to Haney about the Ahmad Drive 

murders. Although Smith was Haney’s best friend, Haney took 

Detective Nelson’s advice to look out for himself and told Detective 

Nelson what he knew about Smith’s involvement in the murders. In 

October 2010, Haney pleaded guilty to a number of charges in 

connection with the unrelated shooting and received a number of 

lengthy sentences, including a forty-year sentence with a twentyfive-year minimum mandatory for attempted first-degree murder. 

Haney was not promised anything for his testimony against Smith.

Haney testified at Smith’s trial that after his guilty plea in 

October 2010, he was transferred to prison. Haney was transported 

back to Duval County in December 2010 to give a deposition in 

Smith’s case. Haney said that prior to that deposition, he had 

never talked to the state attorney’s office about Smith’s case. 

Haney further testified that the Monday before he testified in 
- 42 -

Smith’s trial, Smith tried to convince him to testify that he had only 

implicated Smith because the police told him to do so. Smith also 

told Haney to testify that Raylan Johnson committed the murders. 

Haney testified that he was telling the truth about what Smith told 

him and that his only knowledge of the Ahmad Drive murders came 

from Smith.

By the time of the evidentiary hearing in December 2017, 

Haney’s story had changed drastically. Haney testified at the 

evidentiary hearing that the prior statements he made to Detective 

Nelson, at his deposition, and at Smith’s trial were not truthful and 

that Smith never confessed to him. Haney said that some of the 

information he gave to Detective Nelson and at his deposition came 

from Raylan Johnson and other information he provided was just 

what he had heard on the streets. Haney also testified that he met 

with assistant state attorneys in October 2010 and was provided 

with paperwork pertaining to Smith’s case at that time. Haney also 

stated that he was not transferred back from prison for his 

December 2010 deposition; he was not even transferred to prison 

until January 2011. Haney said that he falsely testified that Smith 

confessed to him because he and Smith had a falling out prior to 
- 43 -

Haney’s arrest in April 2008. Haney also testified that Smith did 

not ask him to lie on the stand the Monday before he testified at 

Smith’s trial. The trial court concluded that “Haney’s recantation is 

unreliable, devoid of credibility, and demonstrably false,” and not 

likely to produce an acquittal on retrial.

In order to be entitled to relief based on a claim of newly 

discovered evidence, a defendant must show that (1) the evidence 

was unknown by the trial court, party, or by counsel at the time of 

trial, and it must appear that defendant or his counsel could not 

have known of it by the use of diligence, and that (2) the evidence is 

of such a nature that it would probably produce an acquittal on 

retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). With 

regard to recanting testimony, we have explained:

“Recantation by a witness called on behalf of the 

prosecution does not necessarily entitle a defendant to a 

new trial. In determining whether a new trial is 

warranted due to recantation of a witness’s testimony, a 

trial judge is to examine all the circumstances of the 

case, including the testimony of the witnesses submitted 

on the motion for the new trial. ‘Moreover, recanting 

testimony is exceedingly unreliable, and it is the duty of 

the court to deny a new trial where it is not satisfied that 

such testimony is true. Especially is this true where the 

recantation involves a confession of perjury.’ Only when 

it appears that, on a new trial, the witness’s testimony 
- 44 -

will change to such an extent as to render probable a 

different verdict will a new trial be granted.”

Sweet v. State, 248 So. 3d 1060, 1066 (Fla. 2018) (quoting Consalvo 

v. State, 937 So. 2d 555, 561 (Fla. 2006)). And regarding our role in 

reviewing a trial court’s credibility determination of the recanting 

witness, we have explained:

“When reviewing a trial court’s determination 

relating to the credibility of a recantation, this Court is 

‘highly deferential’ to the trial court and will affirm the 

lower court’s determination so long as it is supported by 

competent, substantial evidence.” Lambrix v. State, 39 

So. 3d 260, 272 (Fla. 2010) (quoting Heath v. State, 3 So. 

3d 1017, 1024 (Fla. 2009)). “Postconviction courts hold a 

superior vantage point with respect to questions of fact, 

evidentiary weight, and observations of the demeanor 

and credibility of witnesses.” Ibar v. State, 190 So. 3d 

1012, 1018 (Fla. 2016). “Unlike this Court, ‘the trial 

judge is there and . . . see[s] and hear[s] the witnesses 

presenting the conflicting testimony. The cold record on 

appeal does not give appellate judges that type of 

perspective.’ ” Spann v. State, 91 So. 3d 812, 816 (Fla. 

2012) (quoting State v. Spaziano, 692 So. 2d 174, 178 

(Fla. 1997)).

Id. at 1066 (alterations in original).

The trial court’s determination that trial counsel’s testimony 

that Smith told him that he did give Haney a detailed confession 

regarding the murders was more credible that Haney’s recantation 

is supported by competent, substantial evidence. Haney is
- 45 -

incredible because he has lied under oath and his testimony at the 

evidentiary hearing completely contradicted his trial testimony and 

other evidence presented.

Moreover, even if Haney’s recantation were determined to be 

credible, Smith would still not be entitled to relief. If there were a 

retrial at which Haney did not testify that Smith confessed to him, 

there would still be two witnesses to testify that Smith confessed to 

them as well as an eyewitness to Smith shooting Desmond 

Robinson. Thus, the absence of Haney’s testimony of Smith’s 

confession at a retrial would not probably produce an acquittal on 

retrial, nor would the additional absence of State’s exhibits 12 and 

85 probably produce an acquittal on retrial. Smith is therefore not 

entitled to relief on this claim.

II. PETITION FOR A WRIT OF HABEAS CORPUS

In his petition for a writ of habeas corpus, Smith raises eight 

claims of ineffective assistance of appellate counsel. We have 

explained the applicable standard of review for claims of ineffective 

assistance of appellate counsel as follows:

“The standard of review for ineffective appellate counsel 

claims mirrors the Strickland standard for ineffective 

assistance of trial counsel.” [Wickham v. State, 124 So. 
- 46 -

3d 841, 863 (Fla. 2013)]. Specifically, to be entitled to 

habeas relief on the basis of ineffective assistance of

appellate counsel, the defendant must establish 

[first, that] the alleged omissions are of such 

magnitude as to constitute a serious error or 

substantial deficiency falling measurably 

outside the range of professionally acceptable 

performance and, second, [that] the deficiency 

in performance compromised the appellate 

process to such a degree as to undermine 

confidence in the correctness of the result.

Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting 

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

Further, “appellate counsel cannot be deemed ineffective 

for failing to raise nonmeritorious claims.” Valle v. 

Moore, 837 So. 2d 905, 908 (Fla. 2002).

England v. State, 151 So. 3d 1132, 1140 (Fla. 2014).

We now address each claim of ineffective assistance of 

appellate counsel.

A. Failure to raise a claim that the trial court erred in 

overruling hearsay objections regarding testimony from three 

witnesses

Smith first claims that appellate counsel was ineffective for 

failing to raise a claim that the trial court erred in overruling 

hearsay objections to testimony from Ray Dukes, Justin Harper, 
- 47 -

and Detective Nelson when each of these witnesses repeated at trial 

what Breon Williams told him.

At trial, Breon Williams testified that before he fled the Ahmad 

Drive house, he saw Smith shoot Desmond Robinson. Ray Dukes 

testified that a few days after the murders on Ahmad Drive, 

Williams told him that he and Smith went to the house to purchase 

narcotics and while Williams was counting his money, he heard 

Smith say “give it up” and gunshots before running out the back 

door. Justin Harper testified at trial that two days after the 

murders, Williams told him that he “took a guy named Terry to go 

purchase some drugs and somehow the guy Terry tried to rob the 

people,” after which Williams ran out the back door. Detective 

Nelson testified that in January 2009, Williams told him that he 

saw Smith shoot Robinson. 

Prior to the statements coming in through Dukes and Harper, 

trial counsel objected on hearsay grounds, and the trial court 

overruled the objection, finding the statements to be admissible 

prior consistent statements under section 90.801(2)(b) “to rebut, if 

not express, then certainly an implied fabrication based on 

improper influence or other motives of favorable treatment with the 
- 48 -

State, things of that sort.” Smith lodged a hearsay objection to the 

prior consistent statement coming in through Detective Nelson 

during Detective Nelson’s direct examination, which was also 

overruled. 

We have said:

With regard to evidentiary objections which trial 

counsel made during the trial and which appellate 

counsel did not raise on direct appeal, this Court 

evaluates the prejudice or second prong of the Strickland

test first. In doing so, we begin our review of the 

prejudice prong by examining the specific objection made 

by trial counsel for harmful error. A successful petition 

must demonstrate that the erroneous ruling prejudiced 

the petitioner. If we conclude that the trial court’s ruling 

was not erroneous, then it naturally follows that habeas 

petitioner was not prejudiced on account of appellate 

counsel’s failure to raise that issue. If we do conclude 

that the trial court’s evidentiary ruling was erroneous, we 

then consider whether such error is harmful error. If 

that error was harmless, the petitioner likewise would not 

have been prejudiced.

Jones v. Moore, 794 So. 2d 579, 583-84 (Fla. 2001).

The trial court’s admission of Williams’ prior consistent 

statements through Dukes and Harper was not erroneous. When 

cross-examining Williams at trial, trial counsel pointed out that 

Williams initially denied knowing anything about the shooting for 

the first two hours that the police questioned him in 2009, and that 
- 49 -

it was not until the police started talking about the possibility of 

charging Williams and him spending the rest of his life in prison 

that Williams implicated Smith. That was when the motive to lie 

arose. 

Trial counsel also suggested that Williams’ implication of 

Smith was only a regurgitation of what the police had told him by 

pointing out that in the two hours that Williams lied to the police 

and denied knowing anything about the murders, the police were 

sharing information with him regarding what they knew about the 

murders. And trial counsel implied that because Williams 

ultimately cooperated with the police and gave them the information 

they wanted to hear, he was never arrested for anything having to 

do with the events surrounding the murders. 

Had this issue been raised on appeal, we would have 

concluded that the trial court did not abuse its discretion in 

admitting the statements as prior consistent statements through 

Dukes and Harper to rebut trial counsel’s implication during crossexamination of Williams that his testimony that Smith was 

responsible for the murders was the result of improper influence, 

motive, or recent fabrication. Because the trial court’s ruling was 
- 50 -

not erroneous, Smith was not prejudiced by appellate counsel’s 

failure to raise this issue.

As to the prior consistent statement that came in through 

Detective Nelson, had the issue been raised on appeal, we would 

have concluded that the trial court erred in overruling Smith’s 

objection, because Williams’ prior consistent statement to Detective 

Nelson implicating Smith in the murders was not made until after 

the alleged improper influence or motive arose. Despite the fact 

that we would have concluded that the statement was admitted in 

error, Smith would not have been entitled to relief because the 

improper admission of prior consistent statements is subject to 

harmless error review, Chandler v. State, 702 So. 2d 186, 198 (Fla. 

1997), and any error would have been deemed harmless, because 

the substance of Detective Nelson’s testimony was already properly 

before the jury. Thus, Smith was not prejudiced by appellate 

counsel’s failure to raise this claim on appeal and he is not entitled 

to relief on this claim.
- 51 -

B. Failure to raise a claim that the trial court erred in 

sustaining the State’s relevancy objection to Anthony Nixon’s

possible bias

Smith argues that the trial court erred in sustaining the 

State’s relevancy objection and prohibiting the defense from 

inquiring of Anthony Nixon why he did not trust the police, and that 

appellate counsel was ineffective for failing to raise the error on 

appeal.

Nixon testified on direct examination that he lives across the 

street and four houses down from where Robinson lived on Ahmad 

Drive. On the night of the murders, Nixon was sitting in his carport 

when he heard gunshots from the direction of Robinson’s house. 

He did not call the police after hearing the gunshots because, 

according to Nixon, the police do not have a good reputation and he 

does not trust them. After the gunshots, Nixon saw a frantic 

woman running up and down the sidewalk looking for help and a 

man, known to him only as “Kirk,” retrieve a scooter from 

Robinson’s driveway. Nixon said the police arrived thirty to fortyfive minutes after the gunshots, but he did not talk to them. 

On cross-examination, Nixon was asked why he does not trust 

the police, but the court sustained the State’s relevance objection. 
- 52 -

Nixon was then asked if the reason he did not trust or call the 

police was based on his past experience. Nixon replied, “Yes,” 

before another relevance objection was made and sustained.

The jury heard that Nixon did not trust the police based on his 

past experiences. There was no proffer made at trial of what Nixon 

would have said had he been permitted to explain specifically what 

led to his distrust of the police. Smith has failed to make a 

coherent argument as to why, beyond what the jury heard, the 

specific past experiences of Nixon’s with the police that led to his 

distrust of them would have been relevant. Thus, we cannot 

conclude that the trial court abused its discretion in sustaining the 

objection. Had the claim been raised on appeal, it would have been 

deemed meritless, and appellate counsel cannot be found ineffective 

for failing to raise a meritless claim. Further, Smith has failed to 

explain in his petition how the alleged deficiency “compromised the 

appellate process to such a degree as to undermine confidence in 

the fairness and correctness of the appellate result.” Wilson v. 

Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985).
- 53 -

C. Failure to raise a claim that the trial court erred in 

overruling the objection to Edward Haney’s testimony that 

Haney did not believe Raylan Johnson’s confession

At trial, Edward Haney testified that in the days after the 

murders, Raylan Johnson told Haney that he killed some people on 

Ahmad Drive. The State asked Haney whether he believed Raylan 

Johnson. Smith objected to the question as calling for speculation. 

The objection was overruled, and Haney responded, “No.” Smith 

claims that the trial court erred in overruling his speculation 

objection and allowing Haney to give improper opinion testimony, 

and that appellate counsel was ineffective for failing to raise the

error on appeal. We disagree.

First, the trial court did not err in overruling Smith’s 

speculation objection. The question to Haney was whether he 

believed Johnson; the answer to that question did not require 

Haney to speculate. Second, Smith argues in his petition that 

Haney’s response was an improper opinion, but that is a different 

legal ground for an objection. Thus, an objection to improper 

opinion was not properly preserved. See Chamberlain v. State, 881 

So. 2d 1087, 1100 (Fla. 2004) (“It is well-settled in Florida that ‘[t]o 

be preserved for appeal, “the specific legal ground upon which a 
- 54 -

claim is based must be raised at trial and a claim different than 

that will not be heard on appeal.” ’ ” (quoting Spann v. State, 857 

So. 2d 845, 852 (Fla. 2003))). We have held that “[a]ppellate 

counsel is not ineffective for failing to raise issues not preserved for 

appeal.” Medina v. Dugger, 586 So. 2d 317, 318 (Fla. 1991); Jones, 

794 So. 2d at 587 (“[A]ppellate counsel cannot be ineffective for not 

raising unpreserved claims.”). Smith is therefore not entitled to 

relief on this claim. 

D. Failure to raise a claim that the trial court erred in denying 

Smith’s motion for mistrial regarding Jonathan Peterson’s 

testimony that he had previously seen Smith in possession of a 

ten-millimeter handgun

During direct examination, Jonathan Peterson testified that 

when he, Raylan Johnson, and Ullysses Johnson went to pick 

Smith up in the area of Ahmad Drive shortly after the murders, 

Smith said that he had shot three people and was in possession of a 

gun. Peterson knew that the gun Smith had in his possession at 

the time was a ten-millimeter because he had seen the same gun, 

which he knew to be a ten-millimeter, in Smith’s possession on 

prior occasions. Following Peterson’s direct examination, defense 

counsel made a motion for mistrial, which the court denied.
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A motion for mistrial should only be granted “when an error is 

so prejudicial as to vitiate the entire trial.” Salazar v. State, 991 So. 

2d 364, 372 (Fla. 2008) (quoting England v. State, 940 So. 2d 389, 

401-02 (Fla. 2006)). “[T]his Court reviews a trial court’s ruling on a 

motion for mistrial under an abuse of discretion standard.” Id. at 

371. Because the trial court did not abuse its discretion in denying 

Smith’s motion for mistrial, had a claim of error regarding the 

denial of the motion been raised on appeal, it would have been 

deemed meritless; therefore, appellate counsel was not ineffective 

for failing to raise such a claim.

The prerequisite to the admissibility of evidence is relevancy. 

Wright v. State, 19 So. 3d 277, 291 (Fla. 2009). “The concept of 

‘relevancy’ has historically referred to whether the evidence has any 

logical tendency to prove or disprove a fact. If the evidence is 

logically probative, it is relevant and admissible unless there is a 

reason for not allowing the jury to consider it.” State v. Taylor, 648 

So. 2d 701, 704 (Fla. 1995) (quoting Charles W. Ehrhardt, Florida 

Evidence § 401.1, at 95-96 (1994)). All evidence tending to prove or 

disprove a material fact is admissible, unless precluded by law. See

§§ 90.401-90.402, Fla. Stat. (2010). But even “[r]elevant evidence is 
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inadmissible if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of issues, misleading the 

jury, or needless presentation of cumulative evidence.” § 90.403, 

Fla. Stat. (2010).

The fact that the gun Smith possessed immediately after the 

murders was a ten-millimeter was highly relevant and probative 

because ten-millimeter casings were found at the crime scene, and 

all wounds to the victims were consistent with ten-millimeter 

bullets. The basis of Peterson’s knowledge was also relevant and 

probative. The fact that Peterson had seen Smith with that gun 

previously was necessary to explain how Peterson knew the gun 

was a ten-millimeter; it was not used to confuse the issues or 

mislead or improperly inflame the jury nor was its probative value 

outweighed by those dangers.

Even if we were to conclude that Peterson’s testimony that 

Smith had possessed the gun on prior occasions was improper, we 

would still disagree with Smith’s contention that the trial court 

erred in denying the motion for mistrial. Any error in allowing the 

jury to hear this testimony was not so prejudicial as to vitiate the 

entire trial. Thus, any claim raised on appeal regarding the denial 
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of the motion for mistrial would have been rejected as meritless, 

and appellate counsel was therefore not ineffective for failing to 

raise a meritless claim.

E. Remaining claims of ineffective assistance of appellate 

counsel 

Each of Smith’s remaining claims of ineffective assistance of 

appellate counsel5 alleges that appellate counsel was ineffective for 

failing to raise a claim of fundamental error on direct appeal. As 

previously explained, “appellate counsel cannot be ineffective for 

not raising unpreserved claims.” Jones, 794 So. 2d at 587.

Moreover, claims of ineffective assistance of appellate counsel

raised in a petition for a writ of habeas corpus that are 

“permutations of claims” raised in a postconviction motion are 

5. The remaining claims are (1) appellate counsel was 

ineffective for failing to raise a claim of fundamental error based on 

prosecutorial misconduct by soliciting testimony that three 

witnesses had a generalized fear of Smith; (2) appellate counsel was 

ineffective for failing to raise a claim of fundamental error based on 

the admission of evidence of Smith’s uncharged crimes; (3) 

appellate counsel was ineffective for failing to raise a claim of 

prosecutorial misconduct based on the State’s implication that 

Smith was guilty by association with the State’s witnesses; and (4) 

appellate counsel was ineffective for failing to raise a claim of 

fundamental error based on the State’s introduction of the 

detectives’ opinions as to Smith’s lack of remorse.
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procedurally barred. Calhoun v. State, 312 So. 3d 826, 854 (Fla. 

2019), cert. denied, 141 S. Ct. 394 (2020). Defendants cannot 

relitigate the substance of postconviction claims in a habeas 

petition under the guise of ineffective assistance of appellate

counsel. Id.; see Knight v. State, 923 So. 2d 387, 395 (Fla. 2005) 

(“[C]laims [that] were raised in [a] postconviction motion . . . cannot 

be relitigated in a habeas petition.”). Each of Smith’s remaining 

claims is a permutation of a subclaim raised in his postconviction 

appeal and each is therefore procedurally barred from being raised 

in this habeas petition.

III. CONCLUSION

For the reasons stated above, we affirm the postconviction 

court’s order denying Smith’s motion for postconviction relief as to 

the guilt phase and deny the petition for a writ of habeas corpus.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and 

MUÑIZ, JJ., concur.

COURIEL and GROSSHANS, JJ., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

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

Adrian G. Soud, Judge
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Case No. 162009CF004417AXXXMA

And an Original Proceeding – Habeas Corpus

Robert S. Friedman, Capital Collateral Regional Counsel, Karin L. 

Moore and Elizabeth C. Spiaggi, Assistant Capital Collateral 

Regional Counsel, Northern Region, Tallahassee, Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, and Jason William Rodriguez, 

Assistant Attorney General, Tallahassee, Florida,

for Appellee/Respondent