Douglas Blaine Matthews v. State of Florida

Supreme Court of Florida
____________

No. SC18-9
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DOUGLAS BLAINE MATTHEWS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

December 12, 2019

PER CURIAM.

Douglas Blaine Matthews appeals the denial of the guilt phase claims in his

initial postconviction motion filed under Florida Rule of Criminal Procedure

3.851.1 For the reasons explained below, we affirm the postconviction court’s

denial of Matthews’ guilt phase claims.

I. BACKGROUND

Matthews was convicted of the first-degree premeditated and felony murder

of Kirk Zoeller, manslaughter of Donna Trujillo, and burglary while armed.

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Matthews v. State, 124 So. 3d 811, 814 (Fla. 2013). We set forth the following

facts on direct appeal:

On the evening of February 20, 2008, Daytona Beach Police
Department officers responded to a call that a man was outside an
apartment building asking for help. When they arrived on the scene,
officers discovered Kirk Zoeller sitting in front of an open apartment
door, nonresponsive, covered in blood, and gasping for air with blood
pulsing from his neck. The officers entered the apartment and found
blood covering the floor and walls. While clearing the apartment,
officers discovered Donna Trujillo’s body on the bed in the bedroom.
The officer who found Trujillo testified that she could not see her
body from the main room of the apartment, which consisted of an
open kitchen and living room, and that she stood in the bedroom
doorway for 10 to 15 seconds before noticing the body because most
of it was covered with a pillow. Zoeller and Trujillo were pronounced
dead at the scene. According to the medical examiner, both victims
had been stabbed to death.
Later that evening, acting on a tip, officers went to the home of
Theresa Teague. Teague allowed the officers into her home and
consented to a search. Inside, officers saw bloody sneakers and jeans
in plain view on the floor and found Matthews, dressed only in boxers
and socks, hiding under a pile of clothes in the bedroom. Officers
obtained and executed a search warrant for Teague’s home and found
a bloody shirt in a clear plastic bag and Kirk Zoeller’s wallet together
inside a different bag.
Matthews made a statement to police detectives outside of
Teague’s house, which Matthews’ trial counsel admitted into evidence
at trial. Matthews told detectives that Kirk Zoeller killed Donna
Trujillo and attacked him over drugs. Once detectives informed
Matthews that Zoeller was dead, Matthews stated that he killed
Zoeller in self-defense.
Matthews was indicted for the first-degree premeditated and
felony murders of Kirk Zoeller and Donna Trujillo and for burglary
while armed.
During the guilt phase, Justin Wagner, who sold drugs from and
was present in Trujillo’s apartment when she and Kirk Zoeller were
killed, testified. Wagner explained that Matthews, Zoeller, and
Trujillo went into the bedroom of Trujillo’s apartment together. A

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few minutes later, Wagner said that he heard everyone “freaking out”
and screaming and saw Matthews chase Zoeller out of the bedroom
with a knife. Wagner testified that Matthews was clearly the
aggressor. Before Wagner fled the apartment in fear for his life, he
testified that he saw Matthews on top of Zoeller, repeatedly stabbing
Zoeller and pulling him back as Zoeller, who was begging for help,
tried to flee the apartment. Wagner also testified that he saw
Matthews with a big buck knife on the day Zoeller and Trujillo were
killed and that they had used Matthews’ knife to cut crack cocaine
together earlier that day. Wagner further testified that, after
witnessing Matthews attack Zoeller, he fled to Theresa Teague’s
home but hid outside when he heard Matthews arrive. While hiding,
Wagner said he saw Matthews remove his shirt and put it in a clear
plastic bag outside of Teague’s house.
Theresa Teague also testified to incriminating statements that
Matthews made to her on the night Kirk Zoeller and Donna Trujillo
were killed. Teague said that, before the police arrived at her home
looking for Matthews, she and Matthews went outside after they saw
police and helicopter search lights and Matthews said, “That’s for
me.” When Teague pressed him for details, she said that Matthews
told her that he “ran into a couple of people that probably wish they
had not run into him that evening” and that he “just eliminated a
couple of problems.” In addition, Teague testified that she had given
Matthews a knife about nine to twelve inches long days before Zoeller
and Trujillo were killed.
The crime scene investigator testified that he collected the
bloody sneakers, bloody jeans, bloody shirt, and Kirk Zoeller’s wallet
from Theresa Teague’s home and that he found a traffic citation with
Matthews’ name on it inside the pocket of the jeans. He also testified
that he took pictures of Matthews the day of his arrest and that
Matthews did not have any knife cuts or fresh injuries on his body.
Testimony linked the bloody clothes and shoes to Matthews.
The DNA analyst testified that “wearer” DNA on the bloody shirt and
sneakers matched Matthews’ DNA and that the blood on the shirt,
jeans, and sneakers matched Kirk Zoeller’s. She also testified that
swabs from four of Matthews’ fingers revealed blood that matched
Zoeller’s and that one of the swabs also contained blood that was a
possible match to Donna Trujillo’s. The police officer who issued the
traffic citation found in the pocket of the bloody jeans identified
Matthews as the person to whom he had issued the citation.

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The medical examiner testified that Kirk Zoeller had been
stabbed to death and that he had 24 stab wounds to the head, neck,
chest, and back and two defensive wounds on his forearms. She
testified that Zoeller’s stab wounds were up to six inches deep and
that one wound was inflicted with such force that the tip of the knife
broke off in his skull. The medical examiner also testified that Donna
Trujillo had been similarly stabbed to death and that she had 11 stab
wounds to the head, neck, and chest. The medical examiner testified
that, in her experience, it was unusual for stabbing victims to have
stab wounds to their heads. She also testified that both victims would
have felt pain as they were being stabbed and would have remained
conscious for a period of minutes before passing out due to blood loss
and then would have remained alive for an additional period of
minutes before their deaths.
Matthews testified that he acted in self-defense. He admitted to
doing drugs on the day Donna Trujillo and Kirk Zoeller were killed
and stated that he went to Trujillo’s apartment with Justin Wagner to
trade cocaine for morphine pills. However, Matthews testified that
Zoeller and Trujillo were arguing and went into the bedroom together
while he stayed in the living area of the apartment’s main room with
Wagner. Matthews said it then got quiet and Zoeller came out of the
bedroom into the main room of the apartment and started a fight with
him over drugs. Matthews denied having a knife and denied that
Theresa Teague ever gave him a knife. Matthews testified that
Zoeller had the knife and that he took it away from Zoeller while they
were fighting. At some point during their fight, Matthews said that he
pinned Zoeller against the wall and saw Donna Trujillo’s body on the
bed. At that point, Matthews testified that he became afraid for his
life because he saw what Kirk Zoeller did to Donna Trujillo. Then,
Matthews testified that Zoeller kicked him and he “blacked out,”
“snapped,” and started swinging at, but not stabbing, Zoeller.
Matthews also claimed that several of the photographs in evidence
taken by the crime scene investigator showed injuries he suffered
during his fight with Zoeller, including a cut on his abdomen.
In addition, Matthews testified that he dropped the knife inside
the front door of Donna Trujillo’s apartment and fled to Theresa
Teague’s home, where he washed the blood off of his body in her
bathroom. On cross-examination, Matthews acknowledged that he
failed to include in his statement to detectives that he was injured
during his fight with Kirk Zoeller and that he had “blacked out.” But

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he denied taking Kirk Zoeller’s wallet and testified that he did not
know how his bloody shirt ended up in a bag with Zoeller’s wallet
inside Teague’s home. Matthews also admitted to removing his
clothes, hiding from police, and telling Teague that the police and
helicopter lights were for him. However, he denied that he made the
statements to Teague about “run[ning] into a couple of people” and
“eliminat[ing] a couple of problems.”

Id. at 812-14 (alterations in original) (emphasis added).

“The jury recommended the death penalty by a vote of 10–2, and a Spencer2

hearing was held.” Id. at 815. The trial court followed the jury’s recommendation.

Id. On direct appeal, we affirmed Matthews’ conviction for first-degree murder

and death sentence. Id. at 812.3 Matthews’ death sentence became final in 2013.

Matthews v. Florida, 134 S. Ct. 683 (2013).

Matthews filed an initial motion for postconviction relief pursuant to Florida

Rule of Criminal Procedure 3.851. Matthews amended his postconviction motion

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

3. Matthews raised the following issues on direct appeal: whether the death
qualification of his jury violated his constitutional rights because the death penalty
cannot lawfully be imposed in his case under Ring v. Arizona, 536 U.S. 584
(2002), as the statutory aggravating circumstances authorizing imposition of the
death penalty were not alleged in the indictment and determined by the jury
beyond a reasonable doubt; whether Florida’s death penalty statute and procedure
are unconstitutional under Ring; and whether the heinous, atrocious, or cruel
(HAC) and in the course of a felony aggravators and jury instructions are
constitutional. Matthews, 124 So. 3d at 816.

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several times, including once to add a claim pursuant to Hurst.4 After holding two

evidentiary hearings on certain claims and summarily denying other claims, the

postconviction court granted Matthews a new penalty phase pursuant to Hurst, but

denied relief as to his guilt phase claims.

II. ANALYSIS

Matthews now appeals the denial of relief as to his guilt phase claims,

arguing that the postconviction court erred in denying nine claims in his initial

postconviction motion, 5 including (A) a claim alleging newly discovered evidence,

(B) six claims alleging ineffective assistance of counsel, (C) a claim alleging

cumulative error, and (D) a claim alleging that he may be incompetent at the time

of execution. We address each claim in turn.

A. Newly Discovered Evidence

Matthews first argues the postconviction court erred when it denied his

newly discovered evidence claim relating to fingerprint evidence. Specifically,

fingerprint testing was conducted during postconviction, and two latent prints were

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

5. In a footnote in its answer brief, the State questions whether this Court
has jurisdiction over an appeal of the order granting in part and denying in part
postconviction relief because the State did not appeal the granting of a new penalty
phase. However, this Court rejected this argument in Merck v. State, 260 So. 3d
184, 188 n.1 (Fla. 2018) (“[T]he pending resentencing does not affect our
exclusive jurisdiction over this appeal.”).

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developed from the Post-It note found inside the victim Kirk Zoeller’s wallet, and

the prints belonged to Justin Wagner, the sole eyewitness to the crime. Matthews

argues that this fingerprint evidence impeaches Wagner’s trial testimony and

undermines that State’s theory of the case. However, we affirm the denial of this

claim.

To obtain a new trial based on newly discovered evidence, a defendant must

meet two requirements. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). First, 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 the defendant or his counsel could not

have known [of it] by the use of diligence.” Id. (alteration in original) (quoting

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.” Id.

Newly discovered evidence satisfies the second prong of the Jones test if it

“weakens the case against [the defendant] so as to give rise to a reasonable doubt

as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So. 2d 309, 315 (Fla.

1996)). In determining whether the evidence compels a new trial, the

postconviction court must “consider all newly discovered evidence which would

be admissible” and must “evaluate the ‘weight of both the newly discovered

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evidence and the evidence which was introduced at the trial.’ ” Id. at 521 (quoting

Jones v. State, 591 So. 2d 911, 916 (Fla. 1991)). This determination includes

whether the evidence goes to the merits of the case or whether it
constitutes impeachment evidence. The trial court should also
determine whether this evidence is cumulative to other evidence in the
case. The trial court should further consider the materiality and
relevance of the evidence and any inconsistencies in the newly
discovered evidence.

Id. (citations omitted).

The State does not dispute that the fingerprint evidence is newly discovered

evidence within the meaning of the first prong of the Jones test. Therefore, the

question is whether this evidence satisfies the second prong. Because the

fingerprint evidence would probably not produce an acquittal on retrial as it does

not weaken the case so as to give rise to reasonable doubt regarding his culpability,

the second prong of the Jones test is not satisfied.

First, the fingerprint evidence does not undermine the fact that the wallet

was never found to be in Wagner’s actual or constructive possession at any time.

Specifically, “Zoeller’s wallet was found in a bag with Matthews’ bloody shirt

inside of [Theresa] Teague’s home.” Matthews, 124 So. 3d at 817. Second, at the

evidentiary hearing, Wagner provided a plausible explanation as to why his

fingerprints were on the Post-It note, including that Zoeller handed it to him to

write down a phone number or possibly to put drugs on it. Third, when the newly

discovered fingerprint evidence is considered cumulatively with all of the evidence

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presented at trial, it does not so weaken the State’s case against Matthews as to

give rise to a reasonable doubt as to his culpability. Specifically, it does not

weaken the following evidence presented at trial: (1) Matthews’ statement to the

police that he killed Zoeller in self-defense; (2) Matthews’ statement to Teague

that he “ran into a couple of people that probably wish they had not run into him

that evening” and that he “just eliminated a couple of problems;” (3) the testimony

of Teague that she gave Matthews a knife days before the murder; (4) the

testimony of the medical examiner that Zoeller had been stabbed 24 times and that

Zoeller had defensive wounds on his forearms; (5) the police found Matthews

hiding under a pile of clothes in the bedroom of Teague’s home; (6) DNA testing

results linked the bloody shirt and shoes to Matthews and indicated that the blood

on Matthews’ shirt, shoes, and jeans matched Zoeller’s; and (7) the testimony of

the DNA analyst that swabs from four of Matthews’ fingers taken hours after the

murder revealed blood that matched Zoeller’s. Matthews, 124 So. 3d at 812-14,

817. Accordingly, it is not probable that the fingerprint evidence would produce

an acquittal on retrial. See Rivera v. State, 187 So. 3d 822, 841 (Fla. 2015)

(concluding that in light of the evidence presented at trial, “the newly discovered

DNA evidence is not of such a nature that it would probably produce an acquittal

on retrial”); Preston v. State, 970 So. 2d 789, 801 (Fla. 2007) (concluding that in

light of the evidence of the defendant’s guilt presented at trial, “the newly

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discovered DNA evidence . . . would probably not produce an acquittal on retrial”).

Therefore, we affirm the postconviction court’s denial of this claim.

B. Ineffective Assistance of Counsel

Matthews next argues that his trial counsel was ineffective. Claims of

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

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

establish the following two prongs, deficient performance and prejudice:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable.

Strickland, 466 U.S. at 687.

To establish the Strickland deficiency prong, “the performance inquiry must

be whether counsel’s assistance was reasonable considering all the circumstances”

under “prevailing professional norms.” Id. at 688. The defendant “must identify

the acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment.” Id. at 690. There is a strong presumption that

counsel’s performance was not ineffective. See id. “A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

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

evaluate the conduct from counsel’s perspective at the time.” Id. at 689. The

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

circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

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

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

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

probability sufficient to undermine confidence in the outcome.” Id. at 694.

We affirm the postconviction court’s denial of Matthews’ six ineffective

assistance of counsel claims as set forth below.

1. Fingerprint Expert

Matthews argues that his trial counsel was ineffective in failing to consult

with or hire a fingerprint expert in order to examine physical evidence submitted to

the jury and present evidence that corroborated Matthews’ version of events at

trial. However, we disagree.

First, Matthews failed to demonstrate deficiency. At the evidentiary hearing,

trial counsel testified that the blood evidence supported Matthews’ proposition, so

there was no need to conduct any forensic investigation. Trial counsel also

testified that Matthews admitted to killing Kirk Zoeller, so there was not a question

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regarding who did it. Trial counsel further testified that based on Matthews

admitting to killing Kirk Zoeller in self-defense, there would be no need for a

fingerprint expert. Further, trial counsel testified he did not need a fingerprint

expert because Matthews never stated that Justin Wagner killed or assisted in

killing anyone. Matthews did not establish that trial counsels’ strategic reasons to

not to hire a fingerprint expert were deficient. Occhicone v. State, 768 So. 2d

1037, 1048 (Fla. 2000) (“[S]trategic decisions do not constitute ineffective

assistance of counsel if alternative courses of conduct have been considered and

rejected and counsels’ decision was reasonable under the norms of professional

conduct.”).

Second, Matthews failed to demonstrate prejudice. He failed to demonstrate

that there is a reasonable probability that the outcome of the trial would have been

different but for trial counsel’s failure to hire a fingerprint expert. Accordingly, we

affirm the postconviction court’s denial of the claim.

2. Crime Scene Expert and Forensic Expert

Next, Matthews argues that trial counsel was ineffective in failing to conduct

a reasonable investigation and failing to hire a crime scene expert and a medical

examiner.

An evidentiary hearing must be held on an initial 3.851 motion whenever the

movant makes a facially sufficient claim that requires a factual determination. See

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Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So. 2d 488,

491 n.2 (Fla. 2000). A court may summarily deny a postconviction claim when the

claim is legally insufficient, procedurally barred, or refuted by the record. See

Owen v. State, 986 So. 2d 534, 543 (Fla. 2008). “A summary or conclusory

allegation is insufficient to allow the trial court to examine the specific allegations

against the record.” Ragsdale v. State, 720 So. 2d 203, 207 (Fla. 1998).

First, Matthews’ claim is facially insufficient. The record reflects that the

postconviction court entered an order regarding Matthews’ first amended 3.851

motion finding as follows, “Defendant’s claims that trial counsel was ineffective

for failing to consult with a crime scene expert and an independent forensic

medical examiner were insufficiently pled and are summarily denied without leave

to amend.” The record also reflects that in a Motion for Rehearing on Order

Denying Evidentiary Hearing on Claim IC (ineffective assistance of counsel claim

for failure to consult a crime scene expert and forensic examiner), Matthews

attached the affidavits of Dr. Daniel Spitz and Barie Goetz setting forth what

testimony the experts would have provided at the evidentiary hearing. Therefore,

it appears that it was not until after the postconviction court summarily denied the

claim that Matthews provided the affidavits. See Bryant v. State, 901 So. 2d 810,

821 (Fla. 2005) (“[W]hen a defendant alleges ineffective assistance of counsel for

failure to call specific witnesses, a defendant is ‘required to allege what testimony

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defense counsel could have elicited from witnesses and how defense counsel’s

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

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

Second, this claim is facially insufficient because Matthews’ postconviction

motion did not allege prejudice. See Ragsdale, 720 So. 2d at 207 (“A hearing is

warranted on an ineffective assistance of counsel claim only where a defendant

alleges specific facts, not conclusively refuted by the record, which demonstrate a

deficiency in the performance that prejudiced the defendant.”). Matthews did not

explain how there was a reasonable probability that the outcome of the trial would

have been different.

Further, as to the crime scene photographs and the purported testimony of

Barie Goetz regarding the crime scene photographs not showing evidence of a

struggle in the bedroom, this testimony would have been cumulative to the

photographs themselves and to the testimony of Detective Robert Kay.

Specifically, at trial, Detective Kay testified that there was really no blood spatter

on the floor and nothing on the walls of the bedroom. Failing to present

cumulative evidence—even by mere omission rather than decision—does not

constitute ineffective assistance of counsel. See Beasley v. State, 18 So. 3d 473,

484 (Fla. 2009) (citing Darling v. State, 966 So. 2d 366, 378 (Fla. 2007)).

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As to the purported testimony of Goetz regarding whether Matthews could

see into the bedroom where Donna Trujillo’s body was found from where

Matthews struggled with Zoeller before killing him, and as to the purported

testimony of Dr. Daniel Spitz, who would have testified that while the wounds

might indicate a similar weapon was used on both victims, the wound patterns did

not indicate who the perpetrator was and whether the victims were definitively

killed by the same person, neither witness’s testimony would have done anything

to undermine the State’s theory or otherwise support Matthews’ self-defense claim.

This is particularly true in light of Matthews’ admission to being Zoeller’s killer,

combined with testimony of Teague regarding the incriminating statements made

by Matthews that he “ran into a couple of people that probably wish they had not

run into him that evening” and that he “just eliminated a couple of problems,” as

well as the testimony of the medical examiner who established that Kirk Zoeller

was violently stabbed 24 times, including multiple stabs in the back. See

Matthews, 124 So. 3d at 813-14.

Moreover, although no evidentiary hearing was granted as to this claim, at

the evidentiary hearing, one of Matthews’ trial counsel, Michael Nielsen, testified

regarding why he did not hire a crime scene expert, stating that he felt it was not

needed based on the photographs, DNA, physical evidence, testimony of the

witnesses, and Matthews’ version of events. We have consistently held that a trial

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

trial strategy. See Bowles v. State, 979 So. 2d 182, 188 (Fla. 2008) (holding that

counsel’s failure to call clinical psychologist to provide emotional disturbance

mitigation was reasonable trial strategy); Arbelaez v. State, 898 So. 2d 25, 39 (Fla.

2005) (holding that trial counsel’s failure to call defendant’s family members as

witnesses during penalty phase was reasonable trial strategy and not ineffective

assistance of counsel). Further, trial counsel’s “strategic decisions do not

constitute ineffective assistance of counsel if alternative courses have been

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

professional conduct.” Occhicone, 768 So. 2d at 1048. We have also concluded

that trial counsel’s strategy of relying on evidence elicited through the cross-

examination of the State’s witnesses—in lieu of calling additional witnesses—was

sound trial strategy. See id.; see also Belcher v. State, 961 So. 2d 239, 250 (Fla.

2007) (explaining that it is not necessary for defense counsel to retain a defense

expert “where defense counsel cross-examined the State’s experts to establish the

facts necessary for the defense”). Therefore, we affirm the postconviction court’s

summary denial of this claim.

3. Cross-Examination of the State’s Witnesses

Matthews further argues that trial counsel was ineffective for failing to

cross-examine the State’s witnesses, specifically Wagner and Officer Penny Dane.

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The postconviction court granted an evidentiary hearing regarding the alleged

failure to cross-examine Wagner but summarily denied this claim as to Officer

Dane.

As to Justin Wagner, Matthews argues that trial counsel was ineffective for

failing to adequately cross-examine Wagner and confront him on his inconsistent

statements to the police. However, Matthews has failed to demonstrate deficiency.

Both the State and defense trial counsel elicited the fact that Wagner had two

shoplifting convictions. Defense trial counsel established during cross-

examination that Wagner had done things in the past that he was “not really proud

of.” The State and defense trial counsel also established that Wagner was a drug

dealer and a drug user at the time he witnessed the murder. Also conclusively

refuted by the record is Matthews’ claim that his trial counsel did not confront

Wagner on his inconsistent statements. During cross-examination, Wagner

explained to trial defense counsel that he initially lied to the police because he was

“scared,” “wanted nothing to do with [the situation,]” and was in possession of

morphine at the time. The State also confronted Wagner about his inconsistent

statements specific to lying to the police, and defense counsel impeached Wagner

regarding his prior statement that Zoeller fell in his lap. Further, trial counsel’s

cross-examination elicited impeachment evidence regarding the fact that Wagner

received help from the State Attorney’s Office with changing one of his court

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dates. Trial counsel cannot be deemed deficient for failing to do what the record

demonstrates they did.

Additionally, Matthews did not demonstrate prejudice, as “[n]o prejudice

result[s] from counsel’s failure to present cumulative evidence of inconsistent

statements.” Green v. State, 975 So. 2d 1090, 1104 (Fla. 2008) (holding that

counsel was not ineffective for failing to impeach with one statement because

counsel impeached witness with many other inconsistent statements). Any

additional impeachment of Wagner would have been cumulative, and failing to

present cumulative evidence is not ineffective assistance of counsel. Valle v. State,

705 So. 2d 1331, 1334-35 (Fla. 1997); Provenzano v. Dugger, 561 So. 2d 541,

545-46 (Fla. 1990). Moreover, Matthews did not establish that, but for trial

counsel’s failure to more adequately cross-examine Wagner, there is a reasonable

probability that the outcome of the trial would have been different.

Second, as to Officer Dane, Matthews argues that trial counsel was

ineffective for failing to investigate and properly impeach Officer Dane who

testified that, based on her observations, it was impossible for Matthews to have

seen the body of Trujillo lying on the bed from where Matthews struggled with

Zoeller. Matthews further asserts that a crime scene photograph proves he could

have seen Trujillo and that trial counsel was ineffective for failing to use that

photograph to cross-examine Officer Dane. However, this claim is facially

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insufficient because Matthews’ postconviction motion did not allege prejudice.

See Ragsdale, 720 So. 2d at 207 (“A hearing is warranted on an ineffective

assistance of counsel claim only where a defendant alleges specific facts, not

conclusively rebutted by the record, which demonstrate a deficiency in the

performance that prejudiced the defendant.”). Accordingly, we affirm the

postconviction court’s denial of relief as to both claims.

4. Failure to Investigate Matthews’ Mental Health and Mental State

Matthews also argues that trial counsel was ineffective for failing to

investigate and assess Matthews’ mental health and mental state at the time of the

crime to further support trial counsel’s theory of the case in the guilt phase.

Matthews’ postconviction motion failed to allege prejudice; therefore, this

claim is facially insufficient. See Ragsdale, 720 So. 2d at 207 (“A hearing is

warranted on an ineffective assistance of counsel claim only where a defendant

alleges specific facts, not conclusively rebutted by the record, which demonstrate a

deficiency in the performance that prejudiced the defendant.”). Matthews’

postconviction motion generally alleged that “[t]rial counsel’s failure prejudiced

Mr. Matthews by depriving him of evidence that would have created reasonable

doubt and corroborated his claims of self-defense.” However, Matthews failed to

provide any additional facts or support for this conclusory statement. As we have

explained, “bare conclusory allegations” are insufficient to establish entitlement to

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an evidentiary hearing. See Johnston v. State, 70 So. 3d 472, 483 (Fla. 2011)

(“Because Johnston presented only bare conclusory allegations on these several

issues, he was not entitled to an evidentiary hearing on the claims.”).

Moreover, to the extent Matthews is raising an ineffective assistance of

counsel claim for trial counsel’s failure to raise the defense of diminished capacity

during the guilt phase, this claim is without merit. We have repeatedly rejected

similar claims. See Evans v. State, 946 So. 2d 1, 11 (Fla. 2006) (“[D]efense

counsel is not ineffective for failing to present the defense of diminished capacity

because diminished capacity is not a viable defense in Florida.”); Hodges v. State,

885 So. 2d 338, 352 n.8 (Fla. 2004) (“This Court has held on numerous occasions

that evidence of an abnormal mental condition not constituting legal insanity is

inadmissible to negate specific intent.”); Spencer v. State, 842 So. 2d 52, 63 (Fla.

2003) (holding that evidence of defendant’s dissociative state would not have been

admissible during the guilt phase). Accordingly, we affirm the postconviction

court’s summary denial of this claim.

5. Juror Bias Regarding Race and Drugs

Next, Matthews alleges that trial counsel was ineffective for failing to

investigate potential jurors’ sentiments and biases regarding race and drugs.

However, Matthews has failed to demonstrate a basis for relief.

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First, with regard to race, the record reflects that trial counsel Nielsen asked

the following during voir dire:

Now, this is a little bit of a hot-button issue, but it’s out there, and I’m
just going to have to address it. There’s no way around it. Okay?
And it’s the issue of race. All right? My client is – I guess you’d
refer as mixed race. His mother is Caucasian and his father is
African-American, just like President Obama. All right? Now, the
female, Ms. Trujillo, is Caucasian, as well as Mr. Zoeller. And, of
course, you know, it’s 2010, our president is African-American. And
so my question is this: Is there anyone here that would potentially
have a problem with the dynamics of the races of the parties that
we’re talking about? And if you do, you’ve just kind of got to let me
know. So does anyone – is that going to be a concern for anyone?
Okay. Anyone here ever been involved in some aspect of their life
where race did kind of play an issue one way or the other? Anyone
ever have anything like that? Okay. I’m not seeing any yeses. All
right. Thank you.

Therefore, the record refutes Matthews’ claim that trial counsel failed to inquire as

to race, and trial counsel cannot be deemed deficient for failing to do something

they did. Moreover, at the evidentiary hearing, trial counsel Nielsen testified, “I

just don’t think race was involved in this drug transaction. I don’t think it had

anything to do with it . . . just because you have a, quote, ‘Caucasian victim and a

mixed race defendant’ does not mean that race is involved in the case.” Further,

Nielsen testified at the evidentiary hearing that he was not aware of anything in

this case that made the crime “racially motivated,” and his decision not to inquire

further was a reasonable, strategic one. See Occhicone, 768 So. 2d at 1048

(“[S]trategic decisions do not constitute ineffective assistance of counsel if

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alternative courses have been considered and rejected and counsel’s decision was

reasonable under the norms of professional conduct.”).

Next, with regard to drugs, a valid claim of ineffective assistance of counsel

must establish that the juror “was actually biased against the defendant,” such that

they had a “bias-in-fact that would prevent service as an impartial juror.”

Carratelli v. State, 961 So. 2d 312, 323-24 (Fla. 2007). “[P]rejudice can be shown

only where one who was actually biased against the defendant sat as a juror.” Id.

at 324. Matthews fails to identify, in anything other than a conclusory way, any

legitimate juror bias that existed against him. Accordingly, we affirm the

postconviction court’s denial of this claim.

6. Failure to Preserve Denial of Cause Challenge

Next, Matthews argues that trial counsel was ineffective for failing to

properly preserve for appeal the denial of trial counsel’s cause challenge to a juror

who expressed ambivalence during voir dire regarding Matthews’ right to remain

silent, stating, “I think I would be bothered by not hearing from the defendant.”

When asked whether it could potentially affect her verdict, she responded, “It

could. I know it would always be in the back of my mind.” However, a valid

claim of ineffective assistance of counsel for failure to raise or preserve a for-cause

challenge against a juror must establish that the juror “was actually biased against

the defendant,” such that they had a “bias-in-fact that would prevent service as an

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impartial juror.” Carratelli, 961 So. 2d at 323-24. “[P]rejudice can be shown only

where one who was actually biased against the defendant sat as a juror.” Id. at

324. The record reflects that Matthews testified at trial; therefore, the record

refutes any claim that the juror was biased by Matthews exercising the right to

remain silent. Therefore, Matthews cannot demonstrate prejudice.

Moreover, as the postconviction court concluded, the record reflects that the

juror was sufficiently rehabilitated. Specifically, trial counsel for the State asked

the following regarding the juror’s feelings on Matthews’ right to remain silent,

“So you do feel you can separate that from your verdict,” and the juror replied,

“Yes.” The State also asked the juror whether she understood that she could not

base her decision on Matthews refusing to testify, and the juror replied, “Uh-huh.”

Therefore, since the juror was sufficiently rehabilitated, trial counsel cannot be

deemed ineffective or deficient for failing to preserve a meritless claim. See

Raleigh v. State, 932 So. 2d 1054, 1064 (Fla. 2006) (“[D]efense counsel cannot be

deemed deficient for failing to make a meritless objection.”).

Additionally, Matthews argues that trial counsel was ineffective for failing

to peremptorily challenge another juror who maintained that she would hear all the

evidence first before she made up her mind regarding the death penalty. The

record also reflects that this juror stated that her niece’s murder would not affect

her ability to serve as a juror. However, Matthews’ postconviction motion failed to

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identify, in anything other than a conclusory way, any actual juror bias that existed

against him regarding this juror. Accordingly, we affirm the postconviction court’s

summary denial of the claim.

C. Cumulative Error

Matthews argues cumulative error. As discussed above, we conclude that

the alleged individual errors are without merit. “[W]here the individual claims of

error alleged are either procedurally barred or without merit, the claim of

cumulative error also necessarily fails.” Israel v. State, 985 So. 2d 510, 520 (Fla.

2008) (quoting Parker v. State, 904 So. 2d 370, 380 (Fla. 2005)). Thus, we affirm

the postconviction court’s denial of relief based on cumulative error.

D. Incompetent at Time of Execution

As his final claim, Matthews claims that his Eighth Amendment right

against cruel and unusual punishment will be violated because he may be

incompetent at the time of execution. Matthews stipulates that this claim is

premature; however, argues that it is necessary to raise it here to preserve the claim

for federal review. “We have repeatedly held that this claim may not be asserted

until a death warrant has been issued.” Barnes v. State, 124 So. 3d 904, 918 (Fla.

2013). Therefore, because a death warrant has not been issued in this case, we

conclude the claim was properly denied.

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III. CONCLUSION

For the reasons stated above, we affirm the postconviction court’s denial of

Matthews’ guilt phase claims.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Volusia County,
R. Michael Hutcheson, Judge - Case No. 642008CF030969XXXAES

Eric Pinkard, Capital Collateral Regional Counsel, and Julissa R. Fontán, Chelsea
R. Shirley, and Kara Ottervanger, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Donna M. Perry and
Lisa-Marie Lerner, Assistant Attorneys General, West Palm Beach, Florida,

for Appellee

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