Tina Lasonya Brown v. State of Florida & Tina Lasonya Brown v. Mark S. Inch, etc.

Supreme Court of Florida
____________

No. SC19-704
____________

TINA LASONYA BROWN,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

____________

No. SC19-1419
____________

TINA LASONYA BROWN,
Petitioner,

vs.

MARK S. INCH, etc.,
Respondent.

August 27, 2020

PER CURIAM.

Tina Lasonya Brown appeals the circuit court’s order denying her motion to

vacate her conviction of first-degree murder and sentence of death filed under

Florida Rule of Criminal Procedure 3.851, and she also petitions this Court for a
writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

For the reasons below, we affirm the circuit court’s denial of postconviction relief

and deny Brown’s habeas petition.

I. BACKGROUND

The facts of this case, including the overwhelming evidence of Brown’s

guilt, were set out in this Court’s opinion on direct appeal. See Brown v. State, 143

So. 3d 392, 395-402 (Fla. 2014). There, we explained that the evidence presented

at trial established that Brown; her daughter, Britnee Miller; and her neighbor

Heather Lee lived in the same mobile home park as the victim, Audreanna

Zimmerman. Id. at 395. In March 2010, Miller and the victim had an altercation

during which Miller attempted to strike the victim and the victim defended herself

with a stun gun. Id. Thereafter,

on March 24, 2010, Brown invited Zimmerman to her home under the
guise of rekindling their friendship. Before Zimmerman arrived,
Brown, Miller, Lee, and Miller’s thirteen-year-old friend, [M.A.,]
were inside the trailer. Brown and Lee were in the kitchen, where Lee
instructed Brown on the proper use of a stun gun. Miller then pulled
her friend aside and told her, “[W]e’re fixing to kill Audreanna
[Zimmerman].” Shortly after 9 p.m., Zimmerman entered the trailer.
Brown waited several minutes and then used the stun gun on
Zimmerman multiple times. When Zimmerman lost muscular control
and fell to the floor, Brown continued to use the stun gun on
Zimmerman, who was screaming and crying for help. Eventually,
Brown pulled Zimmerman across the trailer into the bathroom.
Zimmerman continued to scream and cry for help, so Miller struck
Zimmerman in the face and Lee stuffed a sock into Zimmerman’s
mouth. Zimmerman was then forcibly escorted outside and forced

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into the trunk of Brown’s vehicle.[n.2] Brown, Miller, and Lee then
entered the vehicle and drove away.

[N.2]. During trial, Lee disputed this summation of what
occurred in the trailer after Brown began to attack
Zimmerman. The veracity of Lee’s testimony
concerning her involvement in this crime, however, was
significantly challenged during trial, particularly because
Lee, who claimed that she was a victim and was not
involved in Zimmerman’s murder, pled guilty to second-
degree murder based on her involvement in
Zimmerman’s death.

Id. at 395-96.

The record shows that when M.A. was asked at trial why she did not

intervene as Zimmerman was being attacked at Brown’s trailer, M.A. testified that

she was afraid that “[i]f all three of them [were] going to do it, they could do the

same thing to [her].” M.A. further testified that Brown was the primary aggressor

based on her observations at the trailer, although she said that Lee participated by

putting a sock in the victim’s mouth. According to M.A.’s trial testimony, Brown

used the stun gun on the victim, held the victim’s hands behind her back, led the

victim to Brown’s car, and forced the victim into the trunk. M.A. also testified that

as Brown was attacking the victim with a stun gun, Brown screamed, “Did you call

Crime Stoppers on me?”

Leaving M.A. behind at the trailer, Brown drove her car, with Miller and

Lee inside and the victim in the trunk, “to a clearing in the woods about a mile and

a half from the trailer park.” Brown, 143 So. 3d at 396. According to Lee’s trial

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testimony, the following events occurred once the women arrived at the clearing in

the woods:

Brown exited the car and pulled Zimmerman out of the trunk.
Zimmerman attempted to flee, but stumbled in the darkness and was
caught by Brown and Miller. The two women wrestled Zimmerman
to the ground and simultaneously attacked her. Brown used the stun
gun again on Zimmerman as Miller beat her with a crowbar. Brown
and Miller then switched weapons and continued to torture and beat
Zimmerman. Miller eventually dropped the stun gun and repeatedly
punched Zimmerman. Brown returned to the car, retrieved a can of
gasoline from the trunk, and walked back toward the beaten and
prone, but still conscious, Zimmerman. Brown poured gasoline on
Zimmerman, retrieved a lighter from her pocket, set Zimmerman on
fire, and stood nearby to watch the screaming Zimmerman burn. Lee
testified that she was standing beside Miller, who exuberantly jumped
up and down and screamed, “Burn, bitch! Burn!” After a few
minutes, the three women returned to the car and drove away. During
the ride home, Miller said, “Mom, you’ve got to turn around. I left
my shoes and the taser.” Brown, however, refused to return to the
location of the event.

Id.

After Brown, Lee, and Miller left the scene of the burning, they returned to

Brown’s trailer. Id. at 397. There,

Brown and Miller removed their bloodstained clothing and placed it in
a garbage bag. Lee removed her shoes, which were also stained with
blood, and placed them in the bag. Miller informed her friend,
[M.A.], who had remained at the trailer during the attack, that she had
injured her hand striking Zimmerman, and that the three women had
set Zimmerman on fire. Miller and [M.A.] then used Brown’s car to
drive to the hospital to get medical care for Miller.

Id.

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Meanwhile, Zimmerman, who had not immediately succumbed to her

wounds, walked about one-third of a mile to a neighboring home and asked for

assistance. Id. at 396.

At 9:24 p.m., an emergency medical technician (EMT) arrived
at the scene. When the EMT approached Zimmerman, he observed
her sitting on the porch, rocking back and forth with her arms straight
out. Due to the extensive nature of Zimmerman’s burns, the EMT
testified that he could not initially identify whether she was wearing
clothing. The EMT noticed that Zimmerman’s skin was falling off
her body, and he believed that over ninety percent of her body was
burned. She had severe head trauma, and her jaw was either broken
or severely dislocated. The EMT explained that the extent and
severity of the burns prevented him from providing Zimmerman
medical assistance. He testified that while he generally placed sterile
gauze and oxygen on burns, he did not have enough gauze to cover
her entire body. He attempted to stabilize her neck, but her skin was
charred to such an extent that he could not touch Zimmerman without
her skin rubbing off onto his gloves.

Despite her injuries, Zimmerman was conscious and alert. She
identified Brown and Lee as her attackers and told the EMT that she
was “drug out of the house, tased, beaten in the head with a crowbar,
and then set on fire.” She also provided her address as well as the
addresses of her attackers, and asked the EMT to protect her children.
The ambulance arrived within a few minutes and transported
Zimmerman to the hospital. Inside the ambulance, Zimmerman
repeatedly asked if she was going to recover. She told the paramedic
that Brown, Miller, and Lee poured gasoline on her and set her on fire.
She also stated that she “thought they had made up.” Zimmerman
was stabilized at a local hospital and then transferred to the Burn
Center at the University of South Alabama Hospital in Mobile,
Alabama, where she died sixteen days later.

Id. at 396-97.

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Based on the information provided by Zimmerman, Brown and Lee were

arrested the night of attack, and Miller was arrested when she returned home from

the hospital the next day. Id. at 397. However, all three were released while

Zimmerman was still in the hospital. Id.

During that time, Brown informed her friend Pamela Valley that she,
Miller, and Lee had beaten Zimmerman, forced her into a car, driven
her to an open field and “lit her on fire and didn’t look back.” A few
days later, Brown informed Valley that Zimmerman was still alive
and requested Valley to finish her off. Valley declined and later
reported the conversation to law enforcement.

Id.

On April 9, 2010, the day that Zimmerman died as a result of multiple

thermal injuries, Brown, Miller, and Lee were rearrested. Id. The State charged

Brown with first-degree murder under both theories of premeditated and felony

murder with kidnapping as the underlying felony. 1

At trial, Brown’s jury heard that, while Brown was awaiting trial in jail, she

made statements to a fellow inmate, Corie Doyle, that were indicative of her state

of mind following the altercation between her daughter and Zimmerman. Id. at

395 n.1. Specifically, Doyle testified at trial that Brown told her Zimmerman had

used a stun gun on her daughter, Miller, and that when Brown had heard about it,

1. Brown was also indicted for kidnapping, but for reasons not explained in
the record, the State entered a nolle prosequi as to the kidnapping charge as trial
began.

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she “informed Miller, ‘[D]on’t worry, I’ll take care of it.’ ” Id. Doyle also

testified that she and Brown had a conversation early one morning during which

Brown confessed her involvement in the murder. According to Doyle, at that time,

Brown admitted that “they picked up the victim and beat her up and tazed her and

set her on fire.” When asked who “they” were, Doyle testified that it was

“[Brown] and her daughter [Miller]” and that Heather Lee was there but that “she

didn’t have anything to do with it.” When asked if she knew who Lee was at the

time of this conversation, Doyle answered, “No. I have never laid eyes on her.”

Doyle further testified that she was eventually transferred and ended up housed

with Lee.

In addition, Brown’s jury heard that law enforcement had discovered

physical evidence at the scene of the burning, “including a pair of white shoes; a

stun gun with blood on the handle; paper stained with blood; an orange, gold, and

black hairweave [that matched a large section missing from the back of Brown’s

hair]; a crowbar; and a pool of blood.” Id. at 397 (footnote omitted). The jury also

heard that blood discovered on the passenger seat headrest of Brown’s vehicle

matched Zimmerman’s DNA profile, and that the blood on the stun gun matched

Brown’s DNA profile. Id.

Based on the evidence presented at trial, Brown’s jury found her guilty of

first-degree murder as charged. See id. at 397.

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The case then proceeded to the penalty phase, where Brown presented

evidence of mitigating circumstances through several family members and her

mental health expert, Dr. Elaine Bailey. Id. at 397-400. Brown’s penalty-phase

presentation focused on how her traumatic background affected her and shaped her

actions on the night of the murder. See id. This evidence included that Brown had

suffered a deprived childhood; physical and sexual abuse, including being raped by

her father and prostituted by her stepmother; parental and other familial

abandonment; drug addiction; and exposure to her father’s drug-related, violent

criminal lifestyle as a child. See id. It also included evidence that, as an adult,

Brown had experienced physically and sexually abusive relationships, including

domestic abuse; and that she had struggled with addiction, particularly to crack

cocaine, to the point that she lost custody of two of her children. See id. at 399.

Additionally, evidence regarding Lee’s role in the crime factored into

Brown’s penalty-phase argument. For example, during the guilt phase, in addition

to challenging Lee’s denial of her role in the murder through cross-examination,

trial counsel called Wendy Moye, a fellow inmate of Lee’s, who testified that Lee

admitted to her that she was the one who lit the victim on fire, that the group had

gotten the victim into the car by telling her that they were going to the grocery

store, and that the beating started in the car. Although Brown relied on this and

other evidence to argue that Lee may have been more culpable and yet was

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allowed to plead guilty to second-degree murder, the jury heard from Dr. Bailey

that “Brown did not deny her involvement in the murder, and that Brown felt

remorseful for her actions.” Id. at 400. More specifically, the penalty-phase

record reveals that Dr. Bailey testified that Brown had described Lee as “the

escalator” and further testified about “the impact of social mediation,” telling the

jury that if they “believe[d] that [Lee] was more involved in [the crime]” than she

claimed, then “[t]here was social mediation going [o]n, social influence, and

group-mediated emotion” that “makes more extreme behavior.” However, Dr.

Bailey said that it was not her opinion that Brown “acted under extreme duress

under Heather Lee” and testified that Brown did “not deny being an aggressor,

being involved, . . . [or] what she did” and that Brown “was very frank about her

role” in the victim’s murder during her evaluations.

The State’s expert, Dr. John Bingham, also evaluated Brown and “found no

evidence that Brown lacked the capacity to conform her conduct to the

requirements of the law[] or that she exhibited diminished capacity in

understanding the criminality of her conduct.” Brown, 143 So. 3d at 400. He also

opined that Brown “was not under extreme duress or experiencing an emotional

disturbance at the time of the offense.” Id. Dr. Bingham testified that “there was

no indication” Brown’s feelings of anger and rage “inhibited her ability to think

clearly or to recognize right from wrong,” that “Brown’s actions on the night of the

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attack demonstrated preplanning, direction, and were goal[-]oriented,” and that

“while there was substantial trauma in Brown’s life, there was no cause and effect

relationship connecting Brown’s past to her actions in murdering Zimmerman.”

Id.

Following the penalty-phase presentation, the jury unanimously

recommended a sentence of death. Id. During the Spencer 2 hearing, records and

letters, including a letter from one of Brown’s friends, were introduced into

evidence. Id. Brown “apologized to the victim’s family,” stated that the victim

“died a horrific death,” admitted that she “was one of the ones who participated in

taking [the victim’s] life,” and said that the victim “didn’t deserve it at all.” Id.

Thereafter, the trial court followed the jury’s recommendation and sentenced

Brown to death, finding that the aggravating circumstances outweighed the

mitigating circumstances. Id. at 400-02.

In so doing, the trial court found that the State had proven beyond a

reasonable doubt the existence of the following aggravating factors and assigned

them the noted weight: “(1) the murder was committed in a cold, calculated, and

premeditated manner without any pretense of moral or legal justification (CCP)

(great weight); (2) the murder was especially heinous, atrocious, or cruel (HAC)

2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

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(great weight); and (3) the murder was committed while Brown was engaged in the

commission of a kidnapping (significant weight).” Id. at 401.

The trial court found one statutory mitigating circumstance, “that Brown had

no significant history of prior criminal activity,” and assigned it minimal weight.

Id. The trial court considered but rejected the following four statutory mitigating

circumstances: “(1) the crime was committed while Brown was experiencing an

extreme emotional disturbance; (2) Brown was an accomplice in the crime and her

participation was relatively minor; (3) Brown acted under extreme duress; and (4)

the capacity of Brown to appreciate the criminality of her conduct or to conform

her conduct to the requirements of law was significantly impaired.” Id. at 401 n.7.

The trial court also found twenty-seven nonstatutory mitigating

circumstances and assigned them the noted weight:

Specifically, the [trial] court found that Brown: (1) was the child of a
teenage mother (minimal weight); (2) was neglected by both parents
(some weight); (3) lost her childhood due to parental neglect (some
weight); (4) was abandoned by her mother (some weight); (5) had a
history of family violence (some weight); (6) was exposed to drugs
during her adolescence (some weight); (7) suffered developmental
damage due to her parents’ use of and dependence on drugs (some
weight); (8) was subjected to sexual violence inflicted by her father;
(some weight); (9) was betrayed by a trusted family member (i.e., her
grandmother) (some weight); (10) experienced corruptive community
influences and exposure to a criminal lifestyle (some weight); (11)
experienced chaotic moves and transitions (little weight); (12) was a
victim of domestic violence during her adult life (some weight); (13)
witnessed a violent homicide and served as a State witness in a
murder trial (little weight); (14) lost her family (her parental rights
were terminated for her two sons, and she has no relationship with her

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mother or father) (little weight); (15) suffered repeated trauma
throughout her life (little weight); (16) suffered from drug addiction
(little weight); (17) suffered from the long term effects of chronic
cocaine use on her brain (some weight); (18) was a productive citizen
during periods of sobriety (little weight); (19) was living in poverty at
the time of the crime (minimal weight); (20) behaved well in jail (little
weight); (21) conducted a [B]ible study program (little weight); (22)
exhibited good courtroom behavior (little weight); (23) has no
possibility of parole (little weight); (24) showed remorse (some
weight); (25) received a different sentence than that of her co-
defendants (some weight)[n.8]; (26) had no history of prior criminal
violence (moderate weight); and (27) was using cocaine on the day of
the crime (moderate weight).

[N.8] In finding th[e] mitigating circumstance [that
Brown received a different sentence than that of her co-
defendants], the trial court noted that:

the three people involved in the murder of
Zimmerman are not similarly situated.
Despite her involvement in Zimmerman’s
murder, Britnee Miller cannot legally be
sentenced to death as she was less than 18
years of age when the murder was
committed. Heather Lee was convicted,
pursuant to a negotiated plea agreement with
the State, of second[-]degree murder.
Heather Lee cannot legally be sentenced to
death.

(Citation omitted.)

Id. at 401 & n.8.

In sentencing Brown to death, the trial court “noted that this case,

‘particularly because of the heinous, atrocious, [or] cruel nature of the murder of

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Audreanna Zimmerman, falls into the class of murders for which the death penalty

is reserved.’ ” Id. at 402.

On direct appeal, this Court affirmed Brown’s conviction and sentence of

death. Id. at 408. 3 Thereafter, the United States Supreme Court denied Brown’s

petition for a writ of certiorari. Brown v. Florida, 574 U.S. 1034 (2014).

In 2015, Brown filed an initial motion for postconviction relief, which was

amended several times after being stricken for noncompliance with rule 3.851, and,

in 2017, ultimately filed the third amended motion at issue in this appeal.4

Following an evidentiary hearing, the circuit court denied relief on all of Brown’s

claims. Brown appeals the circuit court’s denial of several of her claims, and she

also petitions this Court for a writ of habeas corpus.

3. In her direct appeal, Brown raised the following claims: (1) the trial court
erred in finding the CCP aggravating circumstance; (2) her death sentence was
disproportionate; and (3) Florida’s death penalty statute violates the United States
Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). Brown, 143
So. 3d at 402-08. Although Brown did not contest her guilt, this Court found the
evidence sufficient to support her conviction. Id. at 407.

4. During this period, Brown filed three petitions in this Court: a petition
seeking review of a nonfinal order denying Brown’s motion to reconsider the order
striking her initial postconviction motion (with leave to amend) for noncompliance
with rule 3.851(e)(1), which this Court denied without prejudice, Brown v. State,
No. SC16-358, 2016 WL 3474843, at *1 (Fla. June 24, 2016); and two petitions for
writ of prohibition seeking to prohibit the trial judge from further participation in
her case, both of which this Court denied, Brown v. State, No. SC16-397, 2016 WL
3459727, at *1 (Fla. June 24, 2016), and Brown v. State, No. SC17-2166, 2017
WL 6493249, at *1 (Fla. Dec. 19, 2017).

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II. POSTCONVICTION APPEAL

A. Ineffective Assistance of Trial Counsel

Brown argues that trial counsel was ineffective in numerous respects during

the jury selection, guilt, and penalty phases of her trial. Specifically, first, she

argues that trial counsel was ineffective during jury selection for failing to strike

juror Taylor for cause. Second, she claims that trial counsel was ineffective during

the guilt phase (a) for failing to adequately challenge the State’s evidence through

cross-examination of witnesses Heather Lee and Corie Doyle and (b) for failing to

present witnesses Darren Lee, Terrance Woods, and Nicole Henderson for

purposes of impeachment. Third, she argues that trial counsel was ineffective

during the penalty phase (a) for failing to conduct a reasonably competent

mitigation investigation and present adequate mitigation and (b) for failing to

consult and present additional mental health experts. Fourth, and last, she contends

that the circuit court erred by denying her claim that, cumulatively, trial counsel’s

deficient performance during the guilt and penalty phases deprived her of a

fundamentally fair trial.

To prevail on an ineffective assistance of counsel claim following the United

States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984),

a defendant must satisfy two requirements:

First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably

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competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490

So. 2d 927, 932 (Fla. 1986)).

Regarding Strickland’s deficiency prong, there is a “strong presumption”

that trial counsel’s performance “falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689. Moreover, “[a] fair

assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Id. The defendant bears the burden to “overcome the presumption that,

under the circumstances, the challenged action ‘might be considered sound trial

strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Regarding the prejudice prong, “Strickland requires defendants to show

‘there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. . . . [A] ‘reasonable

probability’ is a ‘probability sufficient to undermine confidence in the outcome.’ ”

Henry v. State, 948 So. 2d 609, 621 (Fla. 2006) (quoting Strickland, 466 U.S. at

694).

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Because both prongs of Strickland present mixed questions of law and fact,

this Court employs a mixed standard of review, deferring to the circuit court’s

factual findings that are supported by competent, substantial evidence but

reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883

So. 2d 766, 771-72 (Fla. 2004). “[W]hen 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.” Zakrzewski v. State, 866 So. 2d 688, 692 (Fla. 2003) (quoting

Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001)). “Where trial counsel is

deficient in more than one area, however, we must ‘consider the impact of these

errors cumulatively to determine whether [the defendant] has established

prejudice.’ ” Sparre v. State, 289 So. 3d 839, 847 (Fla. 2019) (quoting Parker v.

State, 89 So. 3d 844, 867 (Fla. 2011)).

For the reasons below, we affirm the circuit court’s denial of postconviction

relief.

(1) Jury Selection

Brown argues that trial counsel was ineffective for failing to strike juror

Taylor for cause because juror Taylor’s voir dire responses indicate that he would

automatically vote for the death penalty if Brown was convicted of first-degree

murder. We disagree.

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To establish the prejudice required by Strickland, “where a postconviction

motion alleges that trial counsel was ineffective for failing to raise or preserve a

cause challenge, the defendant must demonstrate that a juror was actually biased.”

Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007). “Under the actual bias

standard, the defendant must demonstrate that the juror in question was not

impartial—i.e., that the juror was biased against the defendant, and the evidence of

bias must be plain on the face of the record.” Id. Moreover, to establish actual

bias, the record must show “something more than mere doubt about [the] juror’s

impartiality.” Mosley v. State, 209 So. 3d 1248, 1265 (Fla. 2016).

When the record in this case is viewed as a whole, Brown cannot make the

requisite showing of actual bias. Juror Taylor initially stated that he had an open

mind as to the appropriate penalty. Subsequently, juror Taylor was asked if his

response to defense counsel’s question as to whether he could put aside his

personal feelings, follow the judge’s instructions, and consider the evidence before

imposing the death penalty was “the same” as that of another prospective juror

who had answered, “I could do that.” Juror Taylor responded, “No,” and then he

explained his answer by stating that whether he would vote to impose the death

penalty would “depend[] on the evidence” and that “[i]f it’s proven without a

shadow of a doubt, [he] would go with the death penalty.”

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Although that response arguably supports Brown’s claim, the remainder of

the record is to the contrary. For example, juror Taylor did not voice disagreement

when trial counsel later asked the entire panel, “Do each of you agree that it’s not

automatic that [Brown] get the death penalty . . . if [Brown] would be found guilty

of first-degree murder. . . . It’s not automatic that she get the death penalty?”

Similarly, juror Taylor did not voice disagreement with trial counsel’s subsequent

follow-up question to the entire panel as to whether there was anyone on the panel

who would not be able to “consider the personal circumstances and background of

the Defendant when you’re making the decision as to whether to recommend life

or death.” Moreover, when trial counsel specifically questioned juror Taylor

regarding his opinion of mental health professionals and the validity of the

profession, juror Taylor was not dismissive of this type of mitigation and instead

stated, “I would assume it’s pretty valid.”

On this record, at best, one of juror Taylor’s voir dire responses raised some

doubt as to his impartiality—doubt that is not enough to establish the requisite

prejudice, see Mosley, 209 So. 3d at 1265, and that, in any event, is dispelled when

the voir dire record is considered as a whole. Accordingly, because Brown cannot

establish the actual bias required to prove that she was prejudiced by trial counsel’s

failure to challenge juror Taylor for cause, we affirm the circuit court’s denial of

relief. See Carratelli, 961 So. 2d at 324.

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(2) Guilt Phase

Brown next argues that trial counsel was ineffective during the guilt phase

(a) for failing to adequately challenge the State’s evidence through cross-

examination of witnesses Heather Lee and Corie Doyle and (b) for failing to

present witnesses Terrance Woods, Darren Lee, and Nicole Henderson for

purposes of impeachment.

(A) Cross-Examination of Witnesses

Heather Lee

Brown first argues that trial counsel’s cross-examination of Heather Lee was

ineffective because trial counsel failed to impeach Lee in several respects.

Prior Convictions

First, Brown argues that trial counsel was ineffective in cross-examining Lee

because he failed to impeach Lee with her prior convictions for two petit thefts and

two felony failures to appear. Brown argues that if Lee had opened the door when

questioned as to the existence and number of her prior convictions, trial counsel

could have inquired further into the details underlying those convictions and used

that information to argue that the jury should not believe Lee’s testimony and

should instead believe that Lee was more culpable than Brown for the victim’s

murder due to Lee’s violent history.

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As an initial matter, the record refutes Brown’s argument that impeaching

Lee with her prior convictions would have opened the door to further inquiry about

the underlying details of those convictions. Lee was questioned about her prior

convictions at the evidentiary hearing, and postconviction counsel did not attempt

to make such a record based on Lee’s responses. Moreover, at best, Lee’s

responses would have resulted in the records of her convictions being introduced

into evidence. See Tilus v. State, 121 So. 3d 1145, 1149 (Fla. 4th DCA 2013)

(“The proper method to impeach a witness who provides inaccurate or misleading

information regarding prior convictions is to admit certified copies of the

convictions.”).

Nevertheless, although Lee’s prior convictions could not have been used to

the extent Brown argues, they constitute available impeachment evidence that went

unused by trial counsel. See § 90.610(1), Fla. Stat. (2019). However, we need not

“delve into” whether Brown has made a showing as to the deficiency prong

because there is no prejudice for the reasons explained below in our cumulative

prejudice analysis. Zakrzewski, 866 So. 2d at 692.

Prior Inconsistent Statements

Second, Brown argues that trial counsel was ineffective in cross-examining

Lee because he failed to impeach Lee with four alleged prior inconsistent

statements. First, she argues that trial counsel should have impeached Lee’s trial

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testimony regarding her whereabouts on the day of the crime, namely that she went

to Brown’s trailer at approximately 9 p.m., with Lee’s prior statements that she

was around Brown’s trailer between 3:15 and 3:45 p.m., but then went home to

cook and visit with multiple family members. Second, Brown argues that trial

counsel should have impeached Lee’s trial testimony about who was present in the

vehicle used to transport the victim and in the area where the victim was lit on

fire—herself, Miller, and Brown—with her prior statement that M.A. was also

present and that M.A. and Miller held her at the back of the vehicle while Brown

pulled the victim out of the trunk. Third, Brown claims that trial counsel should

have impeached Lee’s trial testimony that she had not previously been to the area

where the victim was lit on fire, but she could see the entrance to the area and the

chains blocking it off, with her prior statement that she knew the area but it is

usually blocked with strings to prevent people from entering. Fourth, and finally,

Brown argues that trial counsel should have impeached Lee’s trial testimony that

she “guess[ed]” her shoes were bloody because she stepped in some blood while

running with her prior statement that she “guess[ed]” blood flew on her when the

victim was being attacked, although she was not taking part in it. Brown contends

that trial counsel’s deficient cross-examination prejudiced her because her jury did

not hear additional evidence that it could have used to conclude that Lee was a liar.

- 21 -
However, Lee was not questioned at the postconviction evidentiary hearing

about her alleged prior inconsistent statements on any of these subjects. Therefore,

“what [she] would have said if questioned about [them] . . . is speculative and,

thus, cannot support postconviction relief.” Calhoun v. State, Nos. SC18-340 &

SC18-1174, 2019 WL 6204937, at *9 (Fla. Nov. 21, 2019). Accordingly, we

affirm the circuit court’s denial of relief with respect to all of these claims.

Bias

Brown next argues that trial counsel was ineffective during her cross-

examination of Lee by failing to impeach Lee through evidence of bias. See

§ 90.608(2). Specifically, Brown argues Lee’s husband, Darren Lee, admitted

during his pretrial deposition that he was sleeping with both the victim and Brown.

She further argues that Terrance Woods testified during his pretrial deposition that

Darren Lee was having an affair with the victim and that Heather Lee found out

about it and got into a physical fight with the victim about it two days before the

victim’s murder. Brown argues that eliciting Lee’s knowledge of her husband’s

affairs with both the victim and Brown during cross-examination would have

established bias, namely Lee’s motive to kill the victim and blame Brown. We

affirm the denial of relief because Brown failed to present any evidence that would

support this claim. Heather Lee denied knowledge of her husband’s affairs when

questioned about them at the postconviction evidentiary hearing. Trial counsel

- 22 -
cannot be ineffective for failing to elicit information from Lee on cross-

examination that Lee denies exists. However, we recognize that in addition to

challenging trial counsel’s cross-examination of Heather Lee, Brown argues that

trial counsel was ineffective for failing to call Darren Lee and Terrance Woods to

impeach Lee about this and other subjects, and we address those claims below.

Lee’s Failure to Open the Door for Police

Brown further argues that trial counsel was ineffective in cross-examining

Lee by failing to use Darren Lee’s pretrial deposition testimony to discredit Lee’s

trial testimony that she did not open the door for the police because Brown told her

not to. In his pretrial deposition, Darren Lee testified that no one opened the door

because he was high. However, Brown cites no authority for her argument that

trial counsel could have admitted Darren Lee’s deposition testimony to impeach

Heather Lee’s trial testimony about why she did not open the door for police. To

the extent Brown argues that trial counsel should have called Darren Lee as a

witness to attack Lee’s credibility by showing that the facts as to why Lee failed to

open the door were not as Lee testified, see § 90.608(5), we address the argument

that trial counsel was ineffective for failing to call Darren Lee as a witness to

impeach Lee on this and other subjects below.

- 23 -
Corie Doyle

Brown next argues that trial counsel was ineffective during his cross-

examination of Corie Doyle because he failed to impeach Doyle with her prior

convictions, jail records, and deposition statements.5 However, Brown’s argument

regarding Doyle’s prior convictions was not included in her postconviction motion

and is therefore procedurally barred. See Thompson v. State, 759 So. 2d 650, 667

n.12 (Fla. 2000) (holding claim “procedurally barred because it was not alleged in

the postconviction motion filed in the trial court”). Regarding the jail records,

Brown claims that trial counsel could have used them to impeach Doyle’s

testimony that Brown confessed to her before she had ever seen Lee. Brown

explains that the records would show that Doyle was housed with Lee before she

was housed with Brown and that this information undermines Doyle’s claim never

to have seen Lee before when this information is considered along with (a) Doyle’s

testimony that she approached Brown because Brown’s jumpsuit was an eye-

5. Brown also argues that trial counsel was ineffective for failing to
discover and use the testimony of another inmate, Nicole Henderson, that, in
Henderson’s observation, Brown was not an early riser. She argues that
Henderson’s testimony would impeach Doyle’s trial testimony that Brown
confessed to her early one morning. As explained below, Brown raises other
ineffective assistance of counsel claims related to Henderson, which, like this
claim, turn on whether trial counsel should have discovered the information
available from Henderson prior to trial. Therefore, we address all of Brown’s
ineffective assistance of counsel claims related to trial counsel’s failure to call
Henderson as a witness below.

- 24 -
catching color and (b) other evidence that Lee’s jumpsuit was the same color as

Brown’s. Regarding Doyle’s pretrial deposition, Brown claims that trial counsel

failed to impeach Doyle with statements that would have shown Doyle learned

about the murder from the news and embellished the details on her own, including

Doyle’s deposition testimony that Brown told her Miller caught herself on fire.

However, because Doyle did not testify at the evidentiary hearing, “what [Doyle]

would have said if questioned” about the jail records and statements made in her

pretrial deposition “is speculative and, thus, cannot support postconviction relief.”

Calhoun, 2019 WL 6204937, at *9. Accordingly, we affirm the postconviction

court’s denials with respect to these claims.

(B) Failure to Present Impeachment Witnesses

Terrance Woods

Brown next argues that trial counsel was ineffective for failing to call

Terrance Woods. Specifically, she argues that by calling Woods to impeach

Heather Lee’s trial testimony, trial counsel would have been able to lessen

Brown’s culpability, show that Heather Lee was the ringleader, and corroborate

similar powerful impeachment evidence available from Darren Lee. We agree that

trial counsel was deficient for failing to call Woods.

At his pretrial deposition, Woods testified that Heather Lee told him she had

discovered that her husband, Darren Lee, was having an affair with the victim, and

- 25 -
that she had gotten into a fight with the victim about it two days prior to the

murder. On the day of the fight, Woods heard Heather Lee say, “I’m going to kill

the bitch.” On a separate occasion, after the victim’s murder, Woods stated that

Heather Lee admitted to him and Darren Lee that “all three of them”—referring to

herself, Brown, and Miller—“got the girl, we took her, we beat her up, set her on

fire.” Woods further stated that Lee admitted to pouring gas on the victim and to

setting her on fire.

At the postconviction evidentiary hearing, Woods testified consistently with

his deposition. 6 Although trial counsel generally testified that his strategy was to

blame Heather Lee as much as possible without losing credibility with the jury by

saying that Brown was not involved, trial counsel would not take a position as to

whether calling Woods as a witness would have been helpful to Brown’s case.

When pressed, trial counsel stated, “Unless I didn’t believe him,” but he did not

testify that he had actual knowledge that Woods was lying, or even that he actually

did not believe Woods. Like many of the witnesses in this case, Woods was

subject to impeachment with prior felony convictions, and the record shows that he

was in prison at the time of Brown’s trial and hoped to benefit from his testimony.

However, because the record shows that Woods’ testimony was consistent with

6. Prior to trial, Woods also wrote six letters to the State Attorney consistent
with his pretrial deposition and evidentiary hearing testimony.

- 26 -
trial counsel’s stated strategy, and when pressed on the issue, trial counsel could

not articulate a reasonable strategy for failing to call Woods, we hold that trial

counsel was deficient for failing to do so. See Schoenwetter v. State, 46 So. 3d

535, 554 (Fla. 2010) (“Reasonable decisions regarding trial strategy, made after

deliberation by a claimant’s trial attorneys in which available alternatives have

been considered and rejected, do not constitute deficient performance under

Strickland.”).

Because, as explained below, we find trial counsel deficient in an additional

respect, we address prejudice cumulatively.

Darren Lee

Brown next argues that trial counsel was ineffective for failing to call Darren

Lee. Specifically, Brown argues that, after Terrance Woods testified at his pretrial

deposition about incriminating statements Heather Lee made to himself and Darren

Lee before and after the murder, no reasonable trial counsel would have failed to

re-depose Darren Lee and call him as a witness at trial to impeach Heather Lee.

Brown also argues that Darren Lee could have impeached Heather Lee’s testimony

as to why she did not open the door for the police, further discrediting Lee’s

attempts to paint Brown as the ringleader. We agree that trial counsel was

deficient for failing to call Darren Lee.

- 27 -
Trial counsel testified at the postconviction evidentiary hearing that he could

not see Darren Lee providing any useful information. However, when Darren Lee

testified at the evidentiary hearing, he admitted to having affairs with both Brown

and the victim, and he also testified to the statements that Heather Lee made to him

in the presence of Terrance Woods. Darren Lee’s testimony was consistent with

that of Terrance Woods. Specifically, Darren Lee testified that before the victim’s

murder, after Heather Lee came home following a fight with the victim, she told

him that he “won’t be sleeping with that bitch.” After the victim’s murder,

according to Darren’s testimony, Heather Lee described how the victim begged for

her life and claimed to have been the one who poured gas on the victim and lit her

on fire. Finally, although Heather Lee testified during trial that she did not open

the door for police following the victim’s murder because Brown told her not to,

during his pretrial deposition, Darren Lee stated that no one opened the door for

the police because he was high.

Trial counsel testified at the postconviction evidentiary hearing that he did

not think it would have been helpful to Brown’s case or to the impeachment of

Heather Lee to have Darren Lee testify, as Darren Lee had spoken to the police

three times and never told them that Heather Lee confessed. Generally, “counsel is

not ineffective for deciding not to call a witness whose testimony will be harmful

to the defendant.” Diaz v. State, 132 So. 3d 93, 109 (Fla. 2013).

- 28 -
However, we fail to see—and the record is silent regarding—how calling

Darren Lee to testify at trial would have been inconsistent with trial counsel’s

stated strategy to place as much blame on Heather Lee as possible without having

the jury think he was trying to “scam” them by saying that Brown was not involved

in the victim’s murder. To the contrary, as Brown argues, Darren Lee’s testimony

about Heather Lee’s statements would have impeached her trial testimony that she

and the victim were “real close friends” and other testimony in which she

attempted to minimize her role in the victim’s murder and described Brown as the

ringleader. Further, Darren Lee’s admissions to having affairs with both Brown

and the victim could have been used to explain Heather Lee’s motive for

participating in the murder and her bias for testifying and attempting to minimize

her role in comparison to Brown’s. Moreover, most of the available impeachment

testimony from Darren Lee would have been corroborated by the available

impeachment testimony from Terrance Woods, which we have already held that

trial counsel was deficient for failing to present. Cf. State v. Morrison, 236 So. 3d

204, 220 (Fla. 2017) (ruling that there were sufficient facts to place trial counsel

“on notice” that further investigation of the defendant’s mental health and social

background was required and that counsel’s failure to investigate such defenses

were “not reasonable under prevailing professional norms”). We similarly hold

that trial counsel was deficient for failing to call Darren Lee, and in light of our

- 29 -
holding that trial counsel was also deficient for failing to call Terrance Woods, we

address prejudice cumulatively below.

Nicole Henderson

In her last claim regarding trial counsel’s guilt-phase representation, Brown

argues that trial counsel was ineffective for failing to investigate and call Lee’s

fellow inmate Nicole Henderson as a witness at trial. At the postconviction

evidentiary hearing, Henderson testified that while she was in jail with Lee, she

overheard Lee talking to a third inmate about the victim’s murder. According to

Henderson, Lee told the other inmate that the murder happened because Lee’s

boyfriend had impregnated another lady and that Lee planned to “get off” by

blaming the murder on Brown and Miller with the help of two juveniles who were

being housed with Miller. On cross-examination, Henderson testified that it

sounded like Lee was bragging and that Lee had not said how she planned to

contact the two juveniles. Henderson also testified that Lee had gotten into a fight

with Henderson’s sister because Lee’s boyfriend wanted to have sex with her.

Finally, Henderson testified to her observations of Brown in jail, including that she

did not see Brown awake or out of her cell early in the mornings.

Brown argues that trial counsel was ineffective for failing to discover and

use Henderson’s testimony about the conversation Henderson overheard to

impeach Lee, for failing to use Henderson’s testimony regarding the fight as

- 30 -
reverse Williams7 rule evidence, and for failing to use Henderson’s observations of

Brown while they were in jail together to refute Corie Doyle’s trial testimony that

Brown confessed to her early one morning. We affirm the circuit court’s denial of

relief.

As an initial matter, Brown failed to establish a fact critical to all three of her

arguments, namely that trial counsel should have discovered the information

available from Henderson before trial. To the contrary, at the postconviction

evidentiary hearing, trial counsel denied having knowledge that Lee had confessed

to any inmate while in jail, except Wendy Moye. Also, Henderson testified at the

evidentiary hearing that she did not tell anyone about Lee’s confession when it

occurred, and Henderson was not asked whether she told anyone about Lee’s fight

with her sister or about her observations of Brown.

However, even assuming that trial counsel should have discovered this

information from Henderson, trial counsel testified at the evidentiary hearing that

he generally does not like to use “jailhouse snitches and rats” because “[t]hey lie”

and that he did not feel that having multiple witnesses testify that Lee had

confessed would have been helpful for Brown’s case. In light of the testimony

about Lee’s confession that the jury heard through Moye, the judgment call

7. Williams v. State, 110 So. 2d 654 (Fla. 1959); see also State v. Savino,
567 So. 2d 892, 894 (Fla. 1990).

- 31 -
associated with presenting any witness, particularly one who is incarcerated, and

trial counsel’s strategy not to present testimony from multiple witnesses on the

same topic, we cannot say that the record is devoid of competent, substantial

evidence supporting the circuit court’s finding that trial counsel was not deficient

for failing to call Henderson to testify regarding Lee’s statements to her. Cf.

Whitfield v. State, 923 So. 2d 375, 380 (Fla. 2005) (explaining that “trial counsel

have significant leeway in determining how to present [cumulative] evidence,” in

the context of addressing the claim that trial counsel was ineffective for failing to

call additional witnesses to corroborate the defendant’s voluntary intoxication

defense).

Moreover, Henderson’s testimony that Lee had gotten into a fight with

Henderson’s sister because Lee’s boyfriend wanted to have sex with Henderson’s

sister would not have been admissible as reverse Williams rule evidence, even

assuming that Brown preserved this argument, which she did not. 8 The

circumstances of Lee’s fight with Henderson’s sister are not sufficiently similar to

the circumstances of the victim’s murder to constitute reverse Williams rule

evidence. See State v. Savino, 567 So. 2d 892, 894 (Fla. 1990) (explaining that

under the reverse Williams rule, a defendant may introduce evidence that another

8. This argument is not preserved because Brown raised it for the first time
in her initial brief. See Thompson, 759 So. 2d at 667 n.12. Below, Brown claimed
the same evidence showed Lee’s reputation for violence.

- 32 -
person has committed a similar crime if the evidence shows “a close similarity of

facts, a unique or ‘fingerprint’ type of information”).

Finally, competent, substantial evidence supports the circuit court’s finding

that trial counsel was not deficient for failing to present Henderson’s testimony

about her observations of Brown because it did not refute Doyle’s trial testimony

that Brown confessed to her early one morning. Although, at the postconviction

evidentiary hearing, Henderson testified that based on her observations of Brown

while they were in jail together, Brown was not an early riser, Henderson admitted

on cross-examination that it was possible Brown got up early at times.

Accordingly, we affirm the circuit court’s denial.

(3) Penalty Phase

In her final claim of ineffective assistance of trial counsel, Brown argues that

trial counsel was ineffective during the penalty phase in two respects, namely (a)

for failing to conduct a reasonably competent investigation and present adequate

mitigation and (b) for failing to consult and present additional mental health

experts.

(A) Mitigation

Brown first argues that trial counsel rendered deficient performance in

investigating and presenting mitigation. After providing the necessary background

about Brown’s postconviction motion and the circuit court’s rulings, we explain

- 33 -
the procedural bar that applies to Brown’s appeal of the denial of this claim and

why, even without the procedural bar, we would nevertheless affirm.

Following the postconviction evidentiary hearing, the circuit court ruled that

portions of Brown’s claim were facially insufficient. Specifically, the circuit court

found that the “blanket and non-detailed allegation” that trial counsel “failed to

speak with any of [Brown’s] cousins, friends, ex-boyfriends, or ex-husbands” was

“facially insufficient” and denied it “with prejudice,” “to the extent [it] can be

considered a subclaim.” In so ruling, the circuit court explained that Brown’s

motion “fails to identify with particularity the identity of these purported

witnesses, the content of their testimony, if [Brown] told counsel about these

people, if they were available to testify, and most importantly, how their testimony

would have made a difference in [Brown’s] sentence.”

Similarly, Brown’s motion alleged that trial counsel failed to fully explain

Brown’s background “including but not limited to: her extensive history of drug

abuse, her extensive history of physical and sexual abuse, her mental illness, her

family’s background, and how that background affected Ms. Brown and her

conduct during the commission of the crime.” However, without attributing any of

the information to a specific source, Brown’s motion devoted approximately four-

and-a-half pages to discussing the “wealth of mitigation” that she claimed would

have been available had trial counsel “properly prepared and investigated.” In

- 34 -
finding that this portion of Brown’s claim was also “facially insufficient,” the

circuit court ruled that Brown “goes on for pages, giving details of [her] life, but

she does not link this information to any particular witness or indicate through

which witnesses penalty-phase counsel should have presented this information”

and further “does not explain specifically how any of this information would have

made a difference in [her] trial.” The circuit court also gave two other reasons for

denying this portion of Brown’s claim. First, the circuit court alternatively ruled

that even if this portion of Brown’s claim were facially sufficient, “the information

alleged is cumulative to the lengthy mitigation already presented by penalty-phase

counsel.” Second, the circuit court ruled that Brown “failed to demonstrate how

penalty-phase counsel did not ‘link’ [Brown’s] background to its effect on [Brown]

during the crime,” crediting trial counsel’s evidentiary hearing testimony that she

“thought” that Brown’s mental health expert, Dr. Elaine Bailey, “covered

[Brown’s] life history from the beginning to the time of the crime, and linked

[Brown’s] life history to the crime itself,” and finding that the record “supports this

conclusion.” 9

9. Indeed, it does. For example, Dr. Bailey testified during the penalty
phase to the “stressors” that would have affected Brown at the time of the crime,
including “repeated traumas, addictions, abusive relationships, exposure to
violence, a lot of sexual victimization, both in childhood being prostituted and
adulthood[,] [and a] lot of community negative influence and crime, and [she
explained that] all of those things c[a]me together.” Dr. Bailey also testified that
Brown’s childhood experiences would have affected her into adulthood, that

- 35 -
In addition to the above rulings, the circuit court ruled that Brown failed to

substantiate the remaining portions of her claim that related to named individuals.

Specifically, Brown’s motion named three family members she claimed trial

counsel was ineffective for failing to adequately investigate and prepare for the

penalty phase: (1) her mother Lily Ramos; (2) her brother Willie Coleman, Jr.; and

(3) her paternal uncle Gerald Coleman. The circuit court denied relief, finding that

Brown “failed to present any evidence to support her allegations that the witnesses

were ill-prepared.” In so ruling, the circuit court cited trial counsel’s explanation

at the evidentiary hearing regarding why Brown’s mother was not called as a

penalty-phase witness, which included that Brown’s mother “actually told [trial

counsel] she believed [Brown] should get the death penalty.” With respect to

Willie Coleman, Jr., and Gerald Coleman, the circuit court found that although the

documentary evidence showed defense counsel’s trip to visit Brown’s family

occurred weeks before the trial, Brown “failed to present any testimonial evidence

to show that penalty-phase counsel did not adequately prepare the witnesses who

testified.”

Brown’s motion also identified three other individuals she claimed trial

counsel was ineffective for failing to discover and present as penalty-phase

trauma affects brain development, and that “[t]he bottom line is trauma is
cumulative.”

- 36 -
witnesses: (1) her cousin Trina Bell; (2) one of her ex-husbands and the father of

her three children, Gregory Miller, Sr.; and (3) her friend Jennifer Malone.

Brown’s motion alleged that Bell “could have provided evidence of [her] history of

sexual abuse, drug use, and physical abuse by her boyfriends,” that Miller “had

firsthand knowledge of [her] daily cocaine and heroin use, physical abuse from her

father, and episodes of domestic violence,” and that Malone had sent a letter to the

trial judge and had offered to be of assistance but that trial counsel failed to follow

up. None of these individuals testified at the postconviction evidentiary hearing.

Just as it ruled regarding the other named individuals, the circuit court ruled that

Brown failed to substantiate these claims (in addition to providing alternate bases

for denying relief with respect to Miller and Malone).

More specifically, regarding Bell, the circuit court denied relief because,

despite being granted an evidentiary hearing on this claim, Brown “failed to

present Ms. Bell’s testimony or any evidence to substantiate her allegations

regarding Trina Bell.”

Regarding both Miller and Malone, the circuit court ruled that their failures

to testify at the evidentiary hearing precluded it from assessing their credibility and

determining whether their testimony would have made a difference in Brown’s

sentence. Alternatively, the circuit court ruled that even if they had testified

consistently with what Brown’s postconviction expert, Dr. Faye Sultan, testified at

- 37 -
the evidentiary hearing that they had told her, the information was cumulative to

that presented during the penalty phase.10

Brown now appeals the circuit court’s denial, arguing that “the evidence

presented at the evidentiary hearing was far from cumulative.” As explained

above, the circuit court found that the entirety of Brown’s claim was either facially

insufficient or unsubstantiated, and Brown fails to challenge those rulings on

appeal. Instead, she challenges only the circuit court’s alternative ruling that even

if her claim were facially sufficient, the mitigation alleged in her postconviction

motion was cumulative to the mitigation already presented at the penalty phase. In

failing to challenge the circuit court’s primary bases for denying relief, Brown has

waived the argument that they are in error. See Shelly v. State, No. SC16-1195,

2019 WL 102481, at *1 (Fla. Jan. 4, 2019) (“[A]n argument not raised in an initial

10. In its alternative ruling about the cumulative nature of the mitigation,
the circuit court identified one exception regarding Malone. Specifically, the judge
who presided over Brown’s trial received an email from Jennifer Malone on the
morning of the Spencer hearing that stated Brown “did A LOT for [Malone] when
[she] had no one else” and that “the Tina [Malone] knew was a wonderful friend
and person that would do anything to help anyone.” Although the circuit court
ruled that Dr. Sultan’s testimony about her interview with Malone revealed
“additional details regarding [Brown’s] influence in Ms. Malone’s life,” it found
that the information “would not have changed [Brown’s] sentence.” Moreover, the
circuit court ruled that Brown provided no evidence to support her claim that
penalty phase counsel should have known of Malone’s existence in time to present
her testimony to the penalty phase jury, and that “[c]ounsel cannot be found
deficient for failing to investigate a person she did not know existed.”

- 38 -
brief is waived.”) (quoting Tillery v. Fla. Dep’t of Juvenile Justice, 104 So. 3d

1253, 1255 (Fla. 1st DCA 2013)).

But, even if she had not, we would still affirm. The circuit court correctly

ruled that the portions of Brown’s motion that failed to identify the witnesses trial

counsel was supposedly deficient for failing to discover, the specific mitigation

each would have provided, or how its absence prejudiced her are facially

insufficient. See State v. Lucas, 183 So. 3d 1027, 1032 (Fla. 2016) (“There is no

question that when the ineffective assistance claim alleges trial counsel should

have presented a fact witness, such witness must be named and his or her

availability attested to.”); see also Booker v. State, 969 So. 2d 186, 196 (Fla. 2007)

(“To establish a claim of ineffective assistance of trial counsel for failing to call

certain witnesses, a defendant must allege in the motion ‘what testimony defense

counsel could have elicited from [the] witnesses and how defense counsel’s failure

to call, interview, or present the witnesses who would have so testified prejudiced

the case.’ ” (quoting Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004))).11

11. We note that Brown’s noncompliance with rule 3.851 was a recurring
theme below that delayed this case for years. Brown amended her postconviction
motion multiple times after the circuit court struck the prior version for failing to
comply with rule 3.851. The order on appeal constitutes the denial of Brown’s
third amended motion. Even still, the circuit court’s order notes the “disorganized”
nature of the motion and finds that “to the extent that this court may have failed to
address any claims, this Court considers those claims, subclaims, and/or arguments
waived based on [Brown’s] failure to comply with the pleading requirements of
rule 3.851.” Brown does not appeal this ruling.

- 39 -
Regarding the remaining portions of Brown’s claim related to the six named

individuals, because the record supports the circuit court’s finding that Brown

failed to substantiate those portions of her claim, we would affirm.

Moreover, although as explained above, the procedural bar and affirmance

on the alternate bases of facial insufficiency and failure to substantiate make it

unnecessary to address the circuit court’s alternative ruling regarding the

cumulative nature of the mitigation, we agree with the circuit court’s conclusion.12

12. Brown’s focus in the penalty phase was on how her traumatic
background affected her and shaped her actions on the night of the murder. The
background information presented at the penalty phase included Brown’s (1)
suffering physical and sexual abuse (namely being raped by her father and
prostituted by her stepmother), parental and other familial abandonment, drug
addiction, and exposure to her father’s drug-related, violent criminal lifestyle as a
child and (2) experiencing domestic abuse and struggles with addiction as an adult,
to the point that she lost custody of two of her children. Along with presenting this
evidence, Brown argued that Heather Lee may have been more culpable and yet
was allowed to plead guilty to second-degree murder. Indeed, of the twenty-seven
nonstatutory mitigating circumstances found by the trial court, nineteen relate to
Brown’s traumatic experiences and struggles with addiction. See Brown, 143 So.
3d at 401 (nonstatutory mitigating circumstances 1-17, 19, and 27).
Similarly, Brown’s postconviction motion describes her deprived childhood;
her struggles with drug addiction that began in childhood, particularly to crack
cocaine; and her traumatic experiences, including that her childhood home was
filled with violence and used in a drug operation, that she was neglected and
emotionally, physically, and sexually abused (including being raped by her father
and prostituted for drugs and money by her stepmother with her father’s approval)
as a child, and that she was abused by ex-husbands and ex-boyfriends as an adult.
Although Brown’s initial brief improperly references additional mitigation that was
not included in her postconviction motion and that was obtained from sources who
were not identified in her motion and who did not testify at the evidentiary hearing,

- 40 -
Accordingly, we affirm the circuit court’s denial of relief.

(B) Mental Health Experts

Brown next argues that the circuit court erred in denying her claim that trial

counsel was ineffective during the penalty phase for failing to consult and present

additional mental health experts to explain the combined effects of polysubstance

abuse, childhood trauma, and mental illness on her brain. The circuit court ruled

that trial counsel was not deficient for failing to hire additional mental health

experts based on trial counsel’s testimony at the evidentiary hearing that Brown’s

penalty-phase mental health expert, Dr. Bailey, did not recommend doing so.

Brown argues that “regardless of the court’s finding that trial counsel was not

deficient for relying upon Dr. Bailey, trial counsel was . . . deficient for failing to

recognize the[] red flags” of Brown’s longtime struggles with drug addiction and

her lifelong traumas. She contends that these red flags would have led reasonable

trial counsel to investigate further and to retain and present the testimony of an

addiction specialist and a neuropsychologist. We affirm because competent,

substantial evidence supports the circuit court’s finding that trial counsel was not

deficient.

even that mitigation falls within the scope of trial counsel’s penalty phase
presentation.

- 41 -
This Court has long held that “defense counsel is entitled to rely on the

evaluations conducted by qualified mental health experts, even if, in retrospect,

those evaluations may not have been as complete as others may desire.” Darling v.

State, 966 So. 2d 366, 377 (Fla. 2007) (finding no deficiency where “[t]he

testimony presented during the postconviction evidentiary hearing may generally

be described as only a more detailed presentation of the mitigation that was

actually presented during the penalty phase”).

Although Brown argues her case is similar to Ellerbee v. State, 232 So. 3d

909 (Fla. 2017), where this Court held that trial counsel was ineffective in the

presentation of mental health mitigation, it is not. In Ellerbee, the penalty-phase

jury heard “conflicting evidence and unsubstantiated claims that [the defendant]

suffered from various mental disorders,” id. at 928, and the penalty-phase mental

health expert “did not provide a detailed explanation of the effect that abuse and

drug use can have on cognitive development.” Id. at 931. Instead, pursuant to trial

counsel’s direction, Ellerbee’s penalty-phase mental health expert “focus[ed] on

fetal alcohol syndrome while simultaneously presenting testimony directly

contradicting its existence.” Id. Unlike Ellerbee, where the “contradictory

evidence would have confused the jury at best and, at worst, raised suspicions of

defense counsel’s honesty,” id. at 932, the theme of Brown’s penalty phase was

that her lifelong traumatic experiences (including childhood physical and sexual

- 42 -
abuse) and her longtime struggles with addiction (including multiple relapses and

use of crack on the day of the crime) affected her up through the time of the crime.

Indeed, as explained above, the circuit court denied Brown’s separate claim

that trial counsel was ineffective with respect to the mitigation investigation and

presentation, in part, because Brown “failed to demonstrate how penalty-phase

counsel did not ‘link’ [Brown’s] background to its effect on [her] during the

crime.” In so ruling, the circuit court found that the record supports trial counsel’s

testimony at the evidentiary hearing that “she thought [the defense expert] Dr.

Bailey covered [Brown’s] life history from the beginning to the time of the crime,

and linked [Brown’s] life history to the crime itself.” Competent, substantial

evidence supports the circuit court’s findings. For example, Dr. Bailey testified

during the penalty phase to the “stressors” that would have affected Brown at the

time of the crime, including “repeated traumas, addictions, abusive relationships,

exposure to violence, a lot of sexual victimization, both in childhood being

prostituted and adulthood[,] [and a] lot of community negative influence and

crime, and [she explained that] all of those things c[a]me together.” Dr. Bailey

also testified that Brown’s childhood experiences would have affected her into

adulthood, that trauma affects brain development, and that “[t]he bottom line is

trauma is cumulative.” Moreover, as demonstrated in this Court’s decision in

Brown’s direct appeal, trial counsel’s penalty-phase presentation resulted in the

- 43 -
trial court’s finding of numerous mitigating circumstances related to Brown’s

traumatic experiences and struggles with addiction, including the long-term effects

of chronic cocaine use on her brain and that she was using cocaine on the day of

the crime. See Brown, 143 So. 3d at 401.

That new experts retained for postconviction would render more favorable

opinions based on essentially the same information presented during the penalty

phase does not render trial counsel deficient for relying on the opinions of Dr.

Bailey. See Darling, 966 So. 2d at 377.

Accordingly, we affirm the circuit court’s denial.

(4) Cumulative Prejudice

Brown next argues that the circuit court erred in denying her cumulative

error claim because, cumulatively, trial counsel’s deficient performance in the guilt

and penalty phases deprived her of a fundamentally fair trial. As explained above,

we conclude that the available impeachment evidence of Heather Lee’s prior

convictions went unused by trial counsel, and we agree with Brown that trial

counsel was deficient for failing to present Terrance Woods and Darren Lee to

impeach Heather Lee’s trial testimony and implicate her as the ringleader.

Assuming counsel was deficient for failing to impeach Lee with her prior

convictions and taking into account counsel’s deficiencies in failing to call Woods

and Darren Lee as witnesses, we must “consider the impact of these errors

- 44 -
cumulatively to determine whether [the defendant] has established prejudice.”

Sparre, 289 So. 3d at 847 (quoting Parker, 89 So. 3d at 867).

They do not. All of trial counsel’s deficiencies center around the failure to

discredit Lee and her version of events. The likelihood that the jury placed high

value on Lee’s testimony is suspect, at best, because the jury knew that, despite

describing herself as a victim and minimizing her role in the victim’s murder, Lee

had pleaded guilty to the victim’s second-degree murder in exchange for testifying

against Brown. Nevertheless, it is true that but for trial counsel’s deficiencies, the

jury could have relied on Heather Lee’s prior convictions and testimony from

Terrance Woods and Darren Lee to further discount Lee’s testimony and conclude

that her role in the crime was more substantial than she admitted during the guilt

phase. However, there is no reasonable probability that but for trial counsel’s

deficiencies, individually or cumulatively, the outcome would have been different.

Regarding the guilt phase, the evidence of Brown’s involvement and

culpability in the victim’s murder under both theories of premeditated and felony

murder is overwhelming. For example, the victim named “Tina [Brown], Heather

[Lee], and Britnee [Miller]” as her attackers and told a paramedic that “they poured

gas on her and set her on fire.” Although the paramedic acknowledged on cross-

examination by trial counsel that the victim “didn’t actually breakdown what each

one of these people did to her,” the victim’s statement that “they” did it, at a

- 45 -
minimum, indicates that in her experience her attackers were acting in concert.

Moreover, M.A. testified that Brown was the primary aggressor based on her

observations at the trailer where the attack began. According to M.A., Brown

attacked the victim with a stun gun, held the victim’s hands behind her back,

forced the victim into the trunk, and screamed at the victim about calling Crime

Stoppers. Consistent with M.A.’s testimony, Brown’s DNA was on the stun gun,

Brown’s trailer and vehicle were used in the crime, and Brown drove the victim to

the area where she was lit on fire. Additionally, both Brown and her daughter,

Miller, made incriminating statements: Miller told M.A. that they were going to

kill the victim right before the attack began, and, within days of the crime, while

the victim was still alive in the hospital, Brown told Pamela Valley that she wanted

the victim “finish[ed] off.” Accordingly, there is no reasonable probability of a

different verdict.

Regarding the penalty phase, impeaching Lee with her prior convictions and

calling Terrance Woods and Darren Lee to impeach Lee’s testimony and implicate

her as the ringleader during the guilt phase would not eliminate the overwhelming

evidence of Brown’s involvement and culpability in the victim’s murder from the

sources other than Lee, such as those discussed above. Moreover, during the

penalty phase, the jury heard even more evidence negating that Brown’s role in the

crime was minor, including testimony from Brown’s own mental health expert

- 46 -
that, despite describing Heather Lee as “the escalator,” Brown “was very frank

about her role” in the victim’s murder, and “[did] not deny being an aggressor,

being involved, . . . [or] what she did.” Nor would counsel’s deficiencies with

respect to Lee change the application of the weighty evidence in aggravation to

Brown. Accordingly, there is no reasonable probability of a different sentence.

Because Brown has failed to show that trial counsel’s deficiencies,

individually or cumulatively, establish the prejudice required by Strickland, we

affirm the circuit court’s denials of relief with respect to each of the individual

claims at issue and with respect to Brown’s cumulative error claim.

B. Newly Discovered Evidence

Brown next argues that the circuit court erred in denying her claim of newly

discovered evidence related to Heather Lee’s credibility as a witness and Lee’s role

in the murder. Specifically, Brown points to an email from Lee’s trial attorney,

which was disclosed to Brown’s counsel without authorization; posttrial

confessions by Lee to fellow inmates; and evidence of Lee’s pattern of violence

against individuals, like the victim, who engaged in affairs with her significant

others. Brown argues that she is entitled to a new trial because this evidence

would probably result in her acquittal or a reduced sentence. However, as

explained below, portions of Brown’s claim involve evidence that is inadmissible

and allegations that are procedurally barred. Although portions of Brown’s

- 47 -
allegations do involve newly discovered evidence, it is not of such a nature that it

would probably produce an acquittal on retrial. Accordingly, we affirm the circuit

court’s denial of relief.

(1) The email from Heather Lee’s attorney is inadmissible.

Brown argues that the circuit court erred in ruling inadmissible an email

from Heather Lee’s trial attorney to Lee’s mitigation specialist. We disagree.

Below, Lee’s trial attorney joined a motion filed by the State to exclude the

email under section 90.502(2), Florida Statutes (2019). Section 90.502(2) provides

that “[a] client has a privilege to refuse to disclose, and to prevent any other person

from disclosing, the contents of confidential communications when such other

person learned of the communications because they were made in the rendition of

legal services to the client.” This privilege may be asserted by a lawyer on behalf

of the client. § 90.502(3)(e).

The circuit court found that section 90.502(2) applies to require exclusion of

the email, further finding that the attorney-client privilege had not been waived and

noting that Brown had presented no evidence that Lee sought or obtained her

attorney’s services to enable her to commit a crime or fraud so as to establish an

exception to this rule under section 90.502(4)(a). Indeed, Brown has not identified

any such evidence or identified any other authority that would nevertheless allow

- 48 -
the email to be admitted. Consequently, she has failed to show error in the circuit

court’s ruling.

Although Brown asks us to disregard section 90.502(2) in the interests of

due process and justice, her general arguments to this effect—unsupported by any

case law addressing similar or analogous circumstances—are insufficient to

overcome this well-established evidentiary rule, adopted in the broader interests of

justice and in furtherance of the crucial relationship of client and counsel. See

Horning-Keating v. State, 777 So. 2d 438, 445 (Fla. 5th DCA 2001) (“[One of t]he

oldest and most revered principles of Anglo[-]American law is the attorney-client

privilege . . . . The purpose of the privilege is to encourage broad communication

between a lawyer and the client and thus promote the broader public interest in the

proper administration of justice.” (citing Upjohn Co. v. United States, 449 U.S. 383

(1981)); see also R.L.R. v. State, 116 So. 3d 570, 573 n.3 (Fla. 3d DCA 2013)

(noting that the attorney-client privilege “is an interest traditionally deemed worthy

of maximum legal protection”). Even if Brown could overcome this evidentiary

rule, the email is inadmissible for an additional reason, which was raised by the

- 49 -
state below and has not been addressed by Brown on appeal: the email is

inadmissible hearsay. See §§ 90.801-.802, Fla. Stat. (2019). 13

Accordingly, we affirm the circuit court’s order excluding the email.

(2) The circuit court properly refused to consider Tajiri Jabali’s testimony as
newly discovered evidence.

Brown relies on testimony provided by Tajiri Jabali at the postconviction

evidentiary hearing as newly discovered evidence of (1) Heather Lee’s motive for

and role in the victim’s murder and (2) Heather Lee’s pattern of violent conduct

against those with whom Lee’s significant others “cheat.” However, the circuit

court refused to consider Jabali’s testimony as newly discovered evidence on the

ground that “there is no claim regarding Tajiri Jabali alleged in [Brown’s] motion.”

Because Brown waited until her reply brief to challenge the circuit court’s ruling

on this issue, Brown has waived any challenge to it. See Hoskins v. State, 75 So.

3d 250, 257 (Fla. 2011).

Moreover, even without the waiver, we would still affirm on the record

before us. By its plain language, rule 3.851(e)(1) provides that “[e]ach claim or

subclaim shall be separately pled” in the initial postconviction motion. (Emphasis

added). A defendant cannot plead a claim of newly discovered evidence without

13. An appellate court may affirm a correct result reached by a lower court
for any reason that is supported by the record, even if it is not the reason the lower
court articulated for its ruling. Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002).

- 50 -
alleging that the specific evidence at issue could not have been discovered at trial

with due diligence and that the specific evidence at issue 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). Brown’s motion did not plead a claim of newly discovered

evidence regarding Jabali, and there was no argument raised below as to why the

circuit court should have nevertheless considered Jabali’s testimony newly

discovered evidence. Accordingly, we would not reverse the circuit court’s ruling

on this issue, even if it were properly before us.

(3) The evidence properly before the Court does not warrant relief.

The evidence properly before the Court as alleged newly discovered

evidence is the following: (1) Jessica Swindle’s testimony that, while in prison,

Heather Lee told her, without remorse, that she personally set the victim on fire

because the victim was sleeping with her “baby’s dad” and that Brown and Miller

“didn’t do anything”; (2) Shayla Edmonson’s testimony that, while in prison,

Heather Lee told her that she “killed someone and she would do it again because

the people that were involved in the case . . . were sleeping with her husband . . .

and she set the girl on fire”; and (3) Nicole Henderson’s testimony that Heather

Lee would fight the women her prison girlfriend cheated on her with. When

subjected to cross-examination, Swindle and Edmonson agreed that it seemed like

Lee was trying to be tough.

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As we explained in Jones, 709 So. 2d at 521, a claim of newly discovered

evidence is governed by the following two-part test:

First, in order to be considered newly discovered, the evidence “must
have been unknown by the trial court, by the 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.” Torres-Arboleda v.
Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994).
Second, the newly discovered evidence must be of such nature
that it would probably produce an acquittal on retrial. Jones, 591 So.
2d . . . 911, 915 [(Fla. 1991)]. To reach this conclusion the trial court
is required to “consider all newly discovered evidence which would
be admissible” at trial and then evaluate the “weight of both the newly
discovered evidence and the evidence which was introduced at the
trial.” Id. at 916.

This test applies not only to the guilt phase of a first-degree murder trial, but also

to the penalty phase; when the penalty phase is at issue, the second prong requires

a determination of whether the newly discovered evidence “would probably yield a

less severe sentence” on resentencing. Swafford v. State, 125 So. 3d 760, 767 (Fla.

2013).

First Prong of Jones

Brown argues that the circuit court erred in denying relief based on its

conclusion that the testimony provided by Swindle, Edmonson, and Henderson

fails the first prong of the Jones test. We agree with Brown with respect to the

testimony of Swindle and Edmonson. Lee’s confessions to these women could not

have been discovered with due diligence at the time of trial because they did not

- 52 -
yet exist.14 Although Brown and her counsel knew that Lee had made a similar

statement to another person, Wendy Moye, and if Lee’s confessions are true,

Brown would have known that fact, the defense’s knowledge of the substance of

these statements does not disqualify them from being considered newly discovered

evidence. See Archer v. State, 934 So. 2d 1187, 1194 (Fla. 2006) (explaining that a

defendant’s knowledge at the time of trial of the facts that would be presented by a

witness as newly discovered evidence does not invalidate a claim of newly

discovered evidence, as the “appropriate question” is whether the defendant “was

or should have been aware of the existence of” the evidence offered to prove those

facts). They are additional pieces of evidence that have been discovered since trial

and relate to the circumstances that existed at the time of trial and, as such,

constitute newly discovered evidence. See id. Also, they add information not

contained in Moye’s testimony: that the reason Lee participated was that the victim

was sleeping with Lee’s husband, that Brown and Miller “didn’t do anything,” that

Lee was not remorseful and in fact said she would do it again, and that Brown and

Miller were sleeping with her husband. Therefore, because Lee’s confessions to

14. The circuit court ruled that none of this evidence was newly discovered
precisely because it did not exist at the time of trial. This ruling is rooted in
language we used in Porter v. State, 653 So. 2d 374, 380 (Fla. 1995), from which
we have since receded, Wyatt v. State, 71 So. 3d 86, 100 (Fla. 2011).

- 53 -
Swindle and Edmonson satisfy the first prong of Jones, the circuit court should

have analyzed them under the second prong.

The testimony of Nicole Henderson, however, is of a different nature and

does not satisfy the first prong of Jones. This testimony pertains to distinct

criminal acts committed by Lee after trial that do not relate to the circumstances

existing at the time of trial and, contrary to Brown’s argument, would not satisfy

the reverse Williams rule. We have previously held that unrelated posttrial events

do not qualify as newly discovered evidence. See Kearse v. State, 969 So. 2d 976,

987 (Fla. 2007) (affirming the denial of a newly discovered evidence claim where

Kearse alleged that an expert’s conduct in a subsequent, unrelated case

demonstrated that expert’s testimony in the Kearse’s case was biased); Porter v.

State, 653 So. 2d 374, 379-80 (Fla. 1995) (holding that Porter’s good conduct in

prison was not newly discovered evidence), receded from on other grounds by

Wyatt v. State, 71 So. 3d 86, 99-100, 100 n.13 (Fla. 2011). Notably, contrary to the

allegations of Brown’s motion, Henderson’s testimony does not include statements

made by Lee comparing a woman she attacked or threatened in prison to the victim

or admitting a larger role in the victim’s murder than Lee claimed at trial.

Therefore, Henderson’s testimony about Lee’s conduct in prison is simply

evidence of unrelated posttrial events and does not satisfy the first prong of Jones.

- 54 -
Accordingly, only the testimony of Swindle and Edmonson is the newly

discovered evidence that must be considered under the second prong of Jones.

Second Prong of Jones

An assessment of the second prong of Jones includes consideration of

“whether the evidence goes to the merits of the case or whether it constitutes

impeachment evidence,” “whether the evidence is cumulative to other evidence in

the case,” and “the materiality and relevance of the evidence and any

inconsistencies in the newly discovered evidence.” Jones, 709 So. 2d at 521.

When evaluating these factors to determine whether the newly discovered evidence

would probably result in an acquittal or a lesser sentence on retrial, see id.;

Swafford, 125 So. 3d at 767, this Court considers it in conjunction with not only

the evidence already presented at trial but also any new evidence the movant has

developed in postconviction proceedings that could be introduced at a new trial,

including evidence that has not been considered on its own because it was the

subject of a procedurally barred claim. See Hildwin v. State, 141 So. 3d 1178,

1181, 1184 (Fla. 2014). In other words, this Court examines the newly discovered

evidence at issue in light of a “total picture” of the case that could be presented at a

new trial. See id. at 1184.

Brown argues that the testimony of Swindle and Edmonson constitutes

valuable impeachment evidence that would probably result in an acquittal of first-

- 55 -
degree murder or a life sentence for Brown. More specifically, Brown contends

that Lee’s statements to Swindle and Edmonson would impeach Lee because they

are inconsistent with her trial testimony and reveal her motive for the murder. We

agree with Brown that Swindle’s and Edmonson’s testimony of Lee’s statements

regarding her motive for, role in, and feelings about the murder is materially

inconsistent with Lee’s trial testimony. Specifically, it is inconsistent with Lee’s

portrayal of herself as an innocent bystander who tried to warn Zimmerman—her

“good friend[]” whom she would never harm—of the impending attack as it began

and who tried to run away herself but was nevertheless forced to go to the scene of

the brutal beating and murder, where she encouraged her friend to run and

contemplated escaping herself but was too afraid to make an attempt. Because

Swindle’s and Edmonson’s testimony of Lee’s posttrial statements is materially

inconsistent with this account, it would be admissible as impeachment evidence

under section 90.608(1). Cf. Izquierdo v. State, 890 So. 2d 1263, 1265-67 (Fla. 5th

DCA 2005) (affirming a trial court’s decision to admit testimony as to previous

statements of a witness that the defendant had been violent toward her and others

where she testified at trial that she had a good relationship with him, that he was

“lovable and tender” and “nice,” that he had never been controlling, and that she

had never been afraid of him); see also Pearce v. State, 880 So. 2d 561, 569 (Fla.

2004) (explaining that impeachment material under section 90.608(1) does not

- 56 -
have to “directly contradict” the witness’s testimony as long as it is “materially

different” from it).

In addition, we agree with Brown that the testimony that Brown and Miller

were sleeping with Lee’s husband would be admissible for impeachment purposes.

Specifically, it would be admissible under section 90.608(2) to impeach Lee

concerning her motive to place the blame on them. Cf. Green v. State, 691 So. 2d

49, 50 (Fla. 4th DCA 1997) (holding that the defendant in a sexual battery case

should have been allowed to elicit testimony that the alleged victim, a witness in

the case, had asked the defendant’s wife if she could think of a way to “get rid of”

the defendant so that the victim could move in with the wife); see also Gibson v.

State, 661 So. 2d 288, 291 (Fla. 1995) (“Our evidence code liberally permits the

introduction of evidence to show the bias or motive of a witness [in testifying].”) 15

At a retrial, the testimony of Edmonson and Swindle would combine with

the impeachment evidence already presented at trial through the cross-examination

of Lee and the testimony of Wendy Moye. Moye’s trial testimony revealed

statements Lee made in jail that are substantively similar to the statements she later

made to Edmonson and Swindle regarding the actions she took in furtherance of

15. To the extent Brown is suggesting that the testimony of Swindle and
Edmonson could be admitted as substantive evidence of Lee’s motive to kill the
victim, she has not explained why the testimony would not constitute inadmissible
hearsay if offered for that purpose.

- 57 -
the murder. As noted in our analysis of the first prong of the Jones test, however,

the new evidence would also go further than Moye’s testimony. This new

evidence would challenge Lee’s credibility as to her relationship with the victim

and role in the events by providing her stated reason for the dominant role she

denied at trial but subsequently claimed; indicate not only that she was dominant

but that, in her words, Brown and Miller “didn’t do anything”; show her lack of

remorse for her participation in the brutal beating, burning, and killing of

Zimmerman, contrary to her trial claim that she would not “harm a hair on

[Zimmerman’s] head”; and suggest an additional reason that she may want to

blame Brown and Miller.

The efficacy of the testimony of Swindle and Edmonson would be enhanced

by the testimony that could be presented from Darren Lee and Terrance Woods

that Lee has made inconsistent statements about her involvement in the murder and

indeed stated a couple of days before the murder that she intended to kill the victim

for having an affair with her husband—evidence Brown now relies on as

substantive proof of Lee’s role and motive. Furthermore, Brown would be able to

present impeachment evidence similar to that of Swindle and Edmonson from

Jabali, including a confession by Lee that she was the “ringleader”; comments by

Lee, which Jabali read in Lee’s journal, that she forced Brown and Miller, who

were scared, “[j]ust to do simple things,” and bribed Brown with drugs, along with

- 58 -
a statement that the victim “got what she deserved”; and a threat by Lee to do to

other inmates what she had done to her “baby daddy’s mistress” if they became

involved with Jabali, who was in a relationship with Lee at the time.

We recognize that, although the new evidence presented through Swindle

and Edmonson would be somewhat cumulative to the impeachment evidence

presented through Moye, cf. Williamson v. Dugger, 651 So. 2d 84, 89 (Fla. 1994),

it would likely have some effect, given the importance of the issue on which Lee

would be impeached and the number and diversity of additional witnesses—not

only those who met Lee in prison but also those who knew her before the crime—

who could come forward on the matter at a retrial. Thus, at a new trial where

Swindle and Edmonson’s testimony was presented, Lee would have even less

credibility than she had at Brown’s original trial, and it would be more difficult for

the State to rely on the position it took at trial that Brown was the one with motive

and the one who poured gasoline on the victim and lit her on fire, while Lee’s

involvement was comparatively minimal.

Nevertheless, the newly discovered evidence must be considered in light of

the other evidence presented at trial and available for any retrial bearing on

Brown’s involvement and culpability in the victim’s murder.

When the victim first emerged from scene of the burning, she named two

people as the perpetrators—Tina Brown and “Heather”—and said that they

- 59 -
dragged her out of the house, “tased” her, beat her in the head with a crowbar, and

then set her on fire. She repeated those two names several times and told where

those individuals lived. Similarly, the victim told a paramedic that “Tina, Heather,

and Britnee” poured gasoline on her and set her on fire. The victim did not

distinguish among the perpetrators in terms of who did what, which suggests that

in her experience, they were all acting in concert.

M.A., on the other hand, testified that from her observations at the trailer,

Brown was the primary aggressor, although Lee also participated by putting a sock

in the victim’s mouth. Brown is the one whose trailer and vehicle were used in the

crime, and she is the one M.A. heard screaming at the victim about calling Crime

Stoppers. She is the one who, according to M.A., operated the stun gun, held the

victim’s hands behind her back, and forced the victim into the trunk. Consistent

with M.A.’s testimony, Brown’s DNA was on the stun gun.

In addition to M.A.’s testimony and the forensic evidence, there were

incriminating statements by Brown and her daughter. Just before the crime started,

Brown’s daughter, Miller, told M.A. that they were going to kill the victim. And

Pamela Valley testified, albeit not without impeachment, that, days after the crime

was complete, Brown wanted the victim “finish[ed] off.” Further, in any retrial,

Brown’s new jury would hear compelling evidence against her that her original

jury did not: Brown admitted at the Spencer hearing that she “was one of the ones

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who participated in taking [Zimmerman’s] life” and commented that

“[Zimmerman] didn’t deserve it at all.”

In consideration of the foregoing evidence that is independent of Lee’s

testimony, when considered cumulatively with all of the evidence that would be

admissible in a new trial, the newly discovered evidence from Edmonson and

Swindle fails the second Jones prong as to the guilt phase, as the evidence is not of

such a nature that it would probably produce an acquittal on retrial. In fact, the

impeachment of Lee would do little, if anything, to disturb the evidence of felony

murder. While Swindle did testify that Lee said that the other two codefendants

“didn’t do anything,” significant evidence belies that claim.

The newly discovered evidence fails the second Jones prong as to the

sentencing question as well. In reaching this conclusion, we recognize that the

testimony of Swindle and Edmonson, along with corroborating evidence, would

impeach Lee on a major point the State relied on in support of the death penalty:

that Brown was the “main aggressor” and the one who lit the fire. Indeed, the trial

court relied on this point in its sentencing order, concluding in its discussion of the

HAC aggravator that, “[o]f all [Brown’s] flagitious acts, . . . the cruelest were her

actions in dousing Audreanna Zimmerman with gasoline and setting her on fire.”

The trial court also reiterated this point in its discussion of whether Brown was a

minor participant in the crime, stating, “The evidence introduced at trial proves

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[Brown] was the leader of the efforts to murder Audreanna Zimmerman. It is clear

[Brown] poured gasoline on Zimmerman and set [her] on fire.” Notably, Lee’s

testimony was the only evidence that unambiguously singled out Brown as the

person who lit the victim on fire, but not the only evidence that she was a, if not

the, primary aggressor, at least at the trailer.

Considering the attention given to the facts that Brown was the one who lit

the victim on fire and was the main aggressor—both as points supporting the death

penalty and as an explanation for the different treatment of Lee—we believe the

additional impeachment of Lee might result in a lesser sentence at a retrial.

However, it cannot be said that it would probably result in a lesser sentence. In

delivering that additional impeachment testimony, Swindle and Edmonson would

also testify that Lee seemed to be trying to act tough, as would Jabali in delivering

her corroborating impeachment testimony concerning Lee’s verbal statements to

her. At the same time, Lee’s posttrial claim that Brown and Miller “didn’t do

anything” would be obliterated by the forensic evidence, the victim’s dying

declaration, and the eyewitness testimony of M.A. concerning Brown’s role in the

events at her trailer. Although there would be a more substantial question as to

whether Brown actually lit the fire and acted as the primary aggressor, especially

once the testimony of Darren Lee and Terrance Woods was added, all the evidence

that the murder itself was heinous, atrocious, or cruel—a weighty aggravating

- 62 -
factor—would still stand, and the new evidence would not carry any significant

probability of showing Brown to have been a minor participant. The subjective

assessment of the jurors, and perhaps the trial court, as to whether Brown should

receive a death sentence might change, but the possibility that it would change

does not meet the standard required for a new trial, which is a showing that it

would probably change. See Swafford, 125 So. 3d at 767.

Accordingly, we affirm the circuit court’s denial of relief.

C. Hurst

In the final issue raised on appeal, Brown argues that the circuit court erred

in summarily denying her claim that she is entitled to relief from her death

sentence under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So.

3d 40 (Fla. 2016). After the circuit court denied relief, we “recede[d] from Hurst

v. State except to the extent it requires a jury unanimously to find the existence of a

statutory aggravating circumstance beyond a reasonable doubt.” State v. Poole, 45

Fla. L. Weekly S41, S48 (Fla. Jan. 23, 2020), clarified, 45 Fla. L. Weekly S121

(Fla. Apr. 2, 2020). Although the required jury finding does not exist in Brown’s

case, we agree with the circuit court that the error is harmless beyond a reasonable

doubt.16

16. In Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016), we held that
Hurst v. Florida and Hurst v. State retroactively apply to sentences of death that
became final after the United States Supreme Court decided Ring v. Arizona, 536

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At trial, the State argued that Brown was guilty of first-degree murder under

both premeditated and felony murder theories and presented uncontroverted

evidence that the capital felony was committed while Brown was engaged, or was

an accomplice, in the commission of a kidnapping. Any jury that found, based on

the State’s presentation, that Brown was guilty of first-degree murder could not

have logically concluded that Brown was not also guilty of kidnapping, whether as

the primary aggressor or an accomplice. Accordingly, we hold that, under the

circumstances of this case, there is no reasonable doubt that a “rational jury,”

properly instructed, would have found beyond a reasonable doubt the existence of

the statutory aggravating circumstance that the capital murder was committed

while Brown was engaged in the commission of a kidnapping. Galindez v. State,

955 So. 2d 517, 522 (Fla. 2007) (quoting Neder v. United States, 527 U.S. 1, 19

(1999)); see also State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). Because

the existence of a single statutory aggravating circumstance would render Brown

eligible for imposition of the death penalty, see Poole, 45 Fla. L. Weekly at 545-

46, it is unnecessary to address any of the other statutory aggravators found by the

U.S. 584 (2002). In a footnote in its answer brief, the State takes issue with
Mosley, which applies to Brown because her sentence of death became final after
Ring. However, we decline to revisit precedent based on assertions in a footnote.
Cf. Simkins Indus., Inc. v. Lexington Ins. Co., 714 So. 2d 1092, 1093 (Fla. 3d DCA
1998) (explaining that referencing a matter in a footnote “does not elevate the
matter to a point on appeal”).

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trial court to conclude that the sentencing error in Brown’s case is harmless.

Accordingly, we affirm the circuit court’s denial.

III. HABEAS PETITION

In her habeas petition, Brown argues that appellate counsel was ineffective

on direct appeal for failing to raise claims of fundamental error based on several

statements made by the prosecutor during the State’s rebuttal closing argument at

trial that Brown now contends amount to prosecutorial misconduct. Because we

disagree with Brown that these statements individually or cumulatively amount to

fundamental error, we deny her habeas petition.

In general, claims of ineffective assistance of appellate counsel are properly

presented in a petition for writ of habeas corpus, Baker v. State, 214 So. 3d 530,

536 (Fla. 2017); Wickham v. State, 124 So. 3d 841, 863 (Fla. 2013), and this Court

has explained the applicable standard of review as follows:

“The standard of review for ineffective appellate counsel claims
mirrors the Strickland standard for ineffective assistance of trial
counsel.” [Wickham, 124 So. 3d at 863]. 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.

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Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting Pope v.
Wainwright, 496 So. 2d 798, 800 (Fla. 1986)).

England v. State, 151 So. 3d 1132, 1140 (Fla. 2014). Further, appellate counsel is

not ineffective for failing to raise meritless claims or issues on appeal that were not

properly raised in the trial court and are not fundamental error. Valle v. Moore,

837 So. 2d 905, 907-08 (Fla. 2002).

An error is considered fundamental if it “reaches down into the validity of

the trial itself to the extent that a verdict of guilty could not have been obtained

without the assistance of the alleged error.” Boyd v. State, 200 So. 3d 685, 708

(Fla. 2015) (plurality opinion) (quoting Rodriguez v. State, 919 So. 2d 1252, 1282

(Fla. 2005)); see Doty v. State, 170 So. 3d 731, 743 (Fla. 2015) (explaining that the

standard for fundamental error with respect to the sentence is “one that ‘reaches

down into the validity of the trial itself’ and that a sentence of death ‘could not

have been obtained without the assistance of the alleged error’ ” (quoting

Snelgrove v. State, 107 So. 3d 242, 257 (Fla. 2012))); see also Chandler v. State,

702 So. 2d 186, 191 n.5 (Fla. 1997) (describing fundamental error as error that is

“so prejudicial as to vitiate the entire trial”).

Brown’s habeas petition references two statements by the prosecutor that

were arguably improper. First, the prosecutor likely crossed the line in referring to

Brown, once, as a “cold-blooded murderer.” See Morris v. State, 233 So. 3d 438,

447, 449 (Fla. 2018) (holding that the prosecutor’s statements referring to the

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defendant as “cold-blooded,” “stone cold,” and “ruthless” may have crossed the

line). However, this statement was a single occurrence, and we have declined to

find fundamental error based on comparable statements. See id.; see also Davis v.

State, 928 So. 2d 1089, 1127 (Fla. 2005) (holding prosecutor’s references to the

defendant as “a cagey little murderer” and a “[l]ittle robber, cagey little thief” did

not constitute fundamental error).

Second, and presenting a closer call as to whether the statement is even

improper, is the prosecutor’s rhetorical question asking how Doyle, who was the

State’s witness, would have learned information about the victim’s murder apart

from gaining it from Brown. On the one hand, this argument could be viewed as

improper because the jury did not know Doyle had stated in a pretrial deposition—

at which the prosecutor was present—that she had heard on the news that “there

was a girl that was lit on fire and that she was taken by helicopter and that before

she died she said the . . . names [of her killers].” See Craig v. State, 685 So. 2d

1224, 1229-30 (Fla. 1996) (recognizing that prosecutors have a duty not to present

false or misleading arguments to the judge or jury); Thompson v. State, 273 So. 3d

1069, 1077 (Fla. 1st DCA 2019) (“Improper prosecutorial ‘vouching’ for the

credibility of a witness occurs where a prosecutor suggests that she has reasons to

believe a witness that were not presented to the jury, or, stated differently, where

the prosecutor implicitly refers to information outside the record.” (quoting

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Jackson v. State, 89 So. 3d 1011, 1018 (Fla. 4th DCA 2012))). On the other hand,

this argument could be viewed as properly directed at the specific information

about the murder Doyle testified at trial to having learned from Brown, including

the names of the individuals involved and details of the crime, such as that the

victim was beaten and attacked with a stun gun. Regardless, the record establishes

that Doyle’s testimony contained details of the victim’s murder that were not

among the general information that Doyle attributed to the news report during her

deposition. Specifically, Doyle testified in her pretrial deposition that all she heard

on the news was that a “girl” was lit on fire and that before she died she said “the

girls’ names,” noting that the news report did not release the names. At trial,

Doyle testified that Brown told her about details of the victim’s murder, namely

that Brown and her daughter beat the victim with a tire iron, “tazed” the victim,

and caught the victim on fire, and that Miller accidentally set herself on fire during

the crime. Although there is no indication in the record that Miller caught herself

on fire during the crime, the other details Doyle testified to regarding the victim’s

murder indicate that Doyle learned of the details of the murder from Brown and

not the news. Accordingly, even if improper, the prosecutor’s statement was not

so prejudicial as to vitiate the entire trial. See Chandler, 702 So. 2d at 191 n.5.

Moreover, even assuming that both of the prosecutor’s statements were

improper, when “viewed cumulatively in light of the record in this case,” they do

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not “reach[] the critical mass of fundamental error” that is so prejudicial as to

vitiate the entire trial. Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000) (quoting

Cochran v. State, 711 So. 2d 1159, 1163 (Fla. 4th DCA 1998)); Chandler, 702 So.

2d at 191 n.5.

Accordingly, because appellate counsel was not ineffective for failing to

challenge on direct appeal unpreserved issues that do not amount to fundamental

error, see Valle, 837 So. 2d at 908, we deny Brown’s habeas petition.17

17. The other statements that Brown references in her habeas petition were
not improper and therefore could not have supported a claim of fundamental error.
Specifically, first, the prosecutor’s statement that Brown “baited” the victim “into
the lion’s den by telling her things were okay” does not cross the line into an
improper inflammatory argument on the facts of this case. Rather, the prosecutor
asked the jury to make a permissible inference based on the evidence that Brown
“lured [the victim] into her home under false pretenses.” Brown, 143 So. 3d at
407. Second, the prosecutor did not improperly belittle defense counsel by
disparaging his argument that Brown was not guilty of first-degree murder.
Rather, the prosecutor permissibly explained why defense counsel’s arguments
seeking a conviction of second-degree murder were not supported by the evidence
adduced at trial. Third, the prosecutor did not improperly vouch for the credibility
of State witnesses Valley and Doyle by asking what motive Valley had to make up
her testimony and what Doyle had to gain by testifying. Rather, the prosecutor’s
arguments were proper responses to defense counsel’s credibility attacks on these
witnesses in light of the evidence presented at trial. Finally, the prosecutor did not
improperly demand justice for the victim or the victim’s family. Rather, the
prosecutor’s reference to “justice” is fairly read as a response to defense counsel’s
explanation of the jury’s role, and it was made in the context of addressing the
verdict that is required when the State meets its burden to prove guilt beyond a
reasonable doubt.

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IV. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order denying

postconviction relief and deny Brown’s habeas petition.

It is so ordered.

POLSTON, LAWSON, MUÑIZ, and COURIEL, JJ., concur.
CANADY, C.J., concurs in result with an opinion.
LABARGA, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

CANADY, C.J., concurring in result.

I agree with the per curiam opinion except for the analysis of the Hurst

issue. Although I agree that the Hurst error here is harmless, I also adhere to the

view that “[t]he new rule articulated in Hurst v. Florida—which simply requires

that the jury find an aggravator—is an evolutionary refinement in the law that does

not cast doubt on the veracity or integrity of penalty phase proceedings resulting in

death sentences that are now final” and that the new rule therefore should not be

given retroactive effect. Mosley v. State, 209 So. 3d 1248, 1291 (Fla. 2016)

(Canady, J., concurring in part and dissenting in part).

Poole—which corrected this Court’s misinterpretation of Hurst v. Florida—

dismantled the foundation for the majority’s analysis in Mosley. After Poole,

Mosley is the ghost of a precedent. The retroactivity issue presented by this case

therefore should be determined in light of Poole. And Poole makes clear that

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Hurst v. Florida was an evolutionary refinement in the law that should not be

applied retroactively.

An Appeal from the Circuit Court in and for Escambia County,
Gary L. Bergosh, Judge - Case No. 172010CF001608XXXAXX
And an Original Proceeding – Habeas Corpus

Robert Friedman, Capital Collateral Regional Counsel, Dawn B. Macready and
Stacy R. Biggart, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, and Michael T. Kennett, Assistant Attorney
General, Tallahassee, Florida,

for Appellee/Respondent

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