Supreme Court of Florida
No. SC2024-1361
BENJAMIN DAVIS SMILEY, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
No. SC2025-0250
BENJAMIN DAVIS SMILEY, JR.,
Petitioner,
vs.
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent.
September 17, 2026
GROSSHANS, J.
Benjamin Davis Smiley, Jr., appeals the circuit court’s order
denying his initial motion for postconviction relief under Florida
Rule of Criminal Procedure 3.851. He 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 that follow, we affirm the circuit
court’s order and deny Smiley’s habeas petition.
I
Mark Wilkerson lived in a home in Lakeland with his brother,
Mario, his mother, and his stepfather, Clifford Drake. On the night
of April 15, 2013, Wilkerson saw two men whom he did not
recognize standing near his home. He asked what they were doing.
Smiley, who was the shorter of the two men, pointed a gun at
Wilkerson and demanded to know where Drake kept his safe.
Wilkerson denied knowing about the safe and pled for his life. In
response, Smiley took various items from Wilkerson, including a
cell phone and cash.
Smiley then forced Wilkerson inside the home and instructed
Wilkerson to lead them to Drake’s bedroom. At that time, Drake
was asleep on the bed. Smiley entered the darkened bedroom alone
but ordered Wilkerson to turn on the lights when he was unable to
find the safe. Smiley then struck Drake on his head with the gun,
startling him awake. Smiley pointed the gun at Drake and
demanded to know where he kept his money, but Drake denied
-2-having any. Smiley reacted by shooting Drake in the hip and then
in the chest. The second shot was fatal.
Returning his attention to Wilkerson, Smiley demanded that
he look for Drake’s money. Complying with Smiley’s demands,
Wilkerson ransacked the bedroom, but to no avail. Eventually, the
taller man, Casey Bisbee, warned Smiley that someone was coming.
After ordering Wilkerson to get on the ground, Smiley and Bisbee
ran from the home, leaving behind a backpack one of them had
brought.
Law enforcement promptly began investigating Drake’s
murder. Although the murder weapon was never found, the police
recovered bullets from the crime scene. Testing later revealed that
these bullets had markings identical to bullets recovered about a
month earlier at the scene of another murder in the same
neighborhood. Despite these leads, the case went cold.
A breakthrough in the investigation came when, almost two
years after the murder, the police discovered that DNA recovered
from both the backpack and a sweatshirt discarded near the Drake
home matched Smiley’s DNA. Subsequently, the police presented
Wilkerson with a photographic lineup, which included a picture of
-3-Smiley. Wilkerson identified Smiley as the shooter.
At this point, the police took a fresh look at records obtained
from Wilkerson’s stolen cell phone. Those records showed that just
minutes after Drake was murdered, someone used Wilkerson’s cell
phone in a three-way call with Smiley’s cousin, John McDonald,
and his aunt, Samantha Lee.
Later, McDonald confirmed to law enforcement that Smiley
was the third participant in the three-way call. According to
McDonald, Mario Wilkerson had previously bragged that Drake kept
money in a safe. With this information, McDonald, Lee, and Smiley
formed a plan to rob Drake. Carrying out this plan, McDonald
picked up Smiley and Bisbee from Lee’s house and drove them to a
parking lot behind the Drake home. The plan was for McDonald to
pick up Smiley and Bisbee after the pair had carried out the
robbery.
McDonald further indicated that, after having driven away
from the scene, he got a phone call from Lee, who added Smiley to
the call so that he and McDonald could find each other. Upon
locating McDonald and getting in his car, Smiley angrily told him
that the only proceeds of the robbery were Wilkerson’s cell phone
-4-and a small bag of marijuana. Smiley said he could not find the
safe, and he told McDonald that “the dude that was asleep looked
like he was reaching for something and he [Smiley] shot him.”
The State charged Smiley with the first-degree murder of
Drake, among other factually related crimes, and indicated its
intent to seek the death penalty. Before trial, the State filed a
notice of intent, later amended, to offer evidence regarding the
murder of Carmen Riley. Smiley had also been charged with this
murder, which occurred about a month before Drake’s and involved
similar circumstances. 1 For instance, as alluded to earlier, a
ballistics analyst had determined that the bullets recovered from
the Drake and Riley crime scenes were fired from the same gun.
The trial court ruled that the Riley murder evidence was admissible
because it was “inextricably intertwined” with the Drake murder,
but the court imposed significant limitations on its admissibility.
Namely, the State could only put on evidence that the bullets
recovered from the Drake crime scene matched those recovered at a
1. As with the Drake murder, John McDonald drove Smiley to Riley’s home and picked him up afterward. Smiley then told McDonald that he had shot Riley, whom he was attempting to rob, because she refused to cooperate.
-5-prior “incident” at which Smiley was seen in possession of the gun.
At trial, the State introduced this ballistics evidence as well as
the DNA and testimonial evidence outlined above. It also presented
testimony from Lee corroborating McDonald’s account of the threeway phone call. Ultimately, the jury found Smiley guilty of the firstdegree murder of Drake and the following crimes: robbery with a
firearm, aggravated assault with a firearm, and burglary of a
dwelling with an assault or battery while armed with a firearm.
The penalty phase was conducted before a different jury. The
State introduced evidence that Smiley had since been convicted of
the first-degree murder of Carmen Riley.
The defense called several witnesses to present mitigating
evidence, including Dr. Alan Waldman. He testified as to the effects
of two ruptured brain aneurysms Smiley suffered less than a year
before the Drake murder. Dr. Waldman opined that the aneurysms
had damaged the parts of Smiley’s brain that affect rage control.
Dr. Waldman further testified that he diagnosed Smiley with a
disorder called anosognosia, which prevented him from being aware
of his neurological deficit. The defense also called Smiley’s mother,
mentor, and aunt, who each testified that he developed a bad
-6-temper and mood swings after the aneurysms.
The State then called Dr. Tracy Hartig as a rebuttal witness.
She testified that although Smiley’s ruptured aneurysms caused
severe brain trauma, he performed well on the personality and IQ
tests she administered.
After considering this evidence, the jury unanimously found
that the State had proven several aggravating factors beyond a
reasonable doubt, including that Smiley had previously been
convicted of first-degree murder and other violent felonies and that
he murdered Drake during the commission of a robbery. By
contrast, the jury found very few mitigating circumstances.
Ultimately, after weighing all this evidence, the jury unanimously
recommended that the trial court sentence Smiley to death.
The court then held a Spencer 2 hearing, at which Dr. Hartig
again testified, though this time for the defense. In its sentencing
order, the court found that the State had proven eight aggravating
factors beyond a reasonable doubt. 3 It further found that that the
2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
3. These were as follows: (1) Smiley was previously convicted of another capital felony (the murder of Carmen Riley) and (2) he
-7-defense had established five mitigating circumstances. 4 Finding
that the aggravators “far outweigh[ed]” the mitigators, the court
sentenced Smiley to death. 5
was previously convicted of a felony involving the use or threat of violence to the person (robbery with a firearm involving Riley) (merged, great weight); (3) he was previously convicted of a felony involving the use or threat of violence to the person (robbery with a firearm involving Mark Wilkerson) and (6) he committed the firstdegree murder while engaged in a robbery (of Wilkerson) (merged, great weight); (4) he was previously convicted of a felony involving the use or threat of violence to the person (aggravated assault of Wilkerson) (no weight); (5) he was previously convicted of a felony involving the use or threat of violence to the person (burglary with an assault or battery while armed involving Clifford Drake and Wilkerson) and (7) he committed the first-degree murder while engaged in a burglary of a dwelling with an assault or battery while armed with a firearm (involving Drake and Wilkerson) (merged, moderate weight); and (8) the first-degree murder was committed for pecuniary gain (substantial weight).
4. These were as follows: (1) Smiley has no significant history of prior criminal activity (moderate weight); (2) he committed the first-degree murder while under the influence of extreme mental or emotional disturbance (little weight); (3) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (little weight); (4) his age at the time of the crime (little weight); and (5) the existence of any other factor(s) in his character, background, life, or the circumstances of the offense that would mitigate against the imposition of the death penalty (moderate weight).
5. On direct appeal, Smiley claimed that the trial court overcounted the number of aggravators when conducting its merger analysis. Smiley v. State, 295 So. 3d 156, 175-76 (Fla. 2020). This Court found “that any error in the trial court’s merger analysis was
-8-Smiley appealed, raising nine claims for reversal. Smiley v.
State, 295 So. 3d 156, 165 (Fla. 2020). We rejected each claim and
affirmed his conviction and death sentence. Id. at 161, 179. 6 He
then filed a petition for a writ of certiorari with the United States
Supreme Court, which was denied. Smiley v. Florida, 592 U.S.
1181 (2021).
Subsequently, Smiley filed in circuit court his initial rule
3.851 motion for postconviction relief, which he later amended
three times. In total, he raised seventeen numbered claims, some
with subclaims. The circuit court determined that an evidentiary
hearing was appropriate for roughly half the claims. During that
hearing, which spanned several days, Smiley called eighteen
witnesses, whereas the State called one witness in rebuttal.
Thereafter, the court denied all of Smiley’s claims.
harmless,” emphasizing that “this was a highly aggravated murder, given both the contemporaneous crimes committed against Mark Wilkerson and, most importantly, Smiley’s previous conviction for the Riley murder.” Id. at 176. Moreover, “balanced against this aggravation, the trial court found very little mitigation.” Id.
6. Although Smiley did not challenge the sufficiency of the evidence, we also concluded that sufficient evidence supported his first-degree murder conviction. Id. at 178.
-9-Smiley now appeals the denial of most of his claims and has
filed an accompanying habeas petition, in which he raises one
additional claim for relief.
II
Smiley raises numerous issues in his appeal of the circuit
court’s denial of his postconviction motion. In all but one of his
claims, he alleges ineffective assistance of trial counsel. We
therefore begin with a summary of the standards governing
ineffective assistance claims.
As interpreted by the U.S. Supreme Court, the Sixth
Amendment to the U.S. Constitution guarantees the right to
effective assistance of counsel during all critical phases of a
criminal case. State v. Mullens, 352 So. 3d 1229, 1236 (Fla. 2022).
To bring a successful ineffectiveness claim, a criminal defendant
must show (1) that counsel’s performance was deficient and (2) that
such deficiency prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 687 (1984).
Under the deficiency prong, the defendant must show that
counsel’s performance fell below “a minimum standard of objective
reasonableness—a standard informed by all the circumstances at
- 10 -the time counsel made the challenged decision.” State v. Kaczmar,
431 So. 3d 212, 228 (Fla. 2026) (citing Strickland, 466 U.S. at 688).
“[T]here is a ‘strong presumption’ that trial counsel’s performance
‘falls within the wide range of reasonable professional assistance.’ ”
Brown v. State (Tina Brown), 304 So. 3d 243, 257 (Fla. 2020)
(quoting Strickland, 466 U.S. at 689). “Mere dissatisfaction with
trial counsel’s strategy is not enough to satisfy Strickland’s
deficiency prong where . . . the strategy was reasonable.” Sheppard
v. State, 338 So. 3d 803, 823 (Fla. 2022) (citing Johnston v. State,
63 So. 3d 730, 737 (Fla. 2011)).
As for the prejudice prong, the defendant must show “there is
a reasonable probability that ‘but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’ ”
Bradley v. State, 33 So. 3d 664, 672 (Fla. 2010) (quoting Strickland,
466 U.S. at 694). “A reasonable probability,” moreover, “is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “This does not require a showing that
counsel’s actions ‘more likely than not altered the outcome,’ but the
difference between Strickland’s prejudice standard and a moreprobable-than-not standard is slight and matters ‘only in the rarest
- 11 -case.’ ” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (quoting
Strickland, 466 U.S. at 693, 697).
When reviewing a circuit court’s ruling on an ineffective
assistance claim, we “defer[] to findings of fact based on competent,
substantial evidence” but “independently review[]” the ultimate
conclusions of “deficiency and prejudice as mixed questions of law
and fact.” State v. Davis, 872 So. 2d 250, 253 (Fla. 2004) (citing
Gore v. State, 846 So. 2d 461, 468 (Fla. 2003)). If we determine that
the defendant has failed to satisfy either of the two prongs, then we
need not address the other one. Strickland, 466 U.S. at 697.
With these principles in mind, we proceed to Smiley’s claims,
beginning with those addressing trial counsel’s performance during
the guilt phase.
A
Smiley’s initial pair of ineffectiveness claims relates to the
ballistics evidence offered by the State. For the reasons given
below, each lacks merit.
1
First, Smiley argues that trial counsel was ineffective for failing
to move for reconsideration of the trial court’s order permitting the
- 12 -State to admit limited evidence of the Riley murder, for which he
had also been charged. The State’s ballistics expert testified that
the bullets recovered from the Drake crime scene matched those
recovered from the scene of a prior “incident” at which Smiley was
seen in possession of a gun. 7 Smiley chose to appear pro se at the
hearing at which this issue was argued, and he continued to
represent himself through entry of the order deciding this issue.
However, he contends that counsel, upon being later appointed to
represent him, should have moved for reconsideration of this order.
In postconviction proceedings, the circuit court agreed with Smiley
that counsel was deficient for failing to seek reconsideration but
ruled that such deficiency did not prejudice him. We disagree with
the court’s finding of deficiency.
Counsel is not deficient for failing to move for reconsideration
when doing so would have been futile. See Covington v. State, 348
So. 3d 456, 471 (Fla. 2022). If counsel is aware of the judge’s
rationale and has no reason to think the judge will alter the initial
7. John McDonald testified that Smiley previously possessed and discharged the murder weapon at this “incident.”
- 13 -ruling, then counsel is not deficient for failing to seek
reconsideration of that ruling absent an argument on totally
different legal or factual grounds. Cf. id.
Here, trial counsel was not deficient for failing to seek
reconsideration of the trial court’s order allowing the State to admit
the Riley firearm evidence. There are no exceptional circumstances
to suggest that counsel’s decision to forgo requesting
reconsideration was unreasonable. Instead, even assuming that
the order was erroneous in some respect, such a motion would have
been futile. See id.
For one, counsel’s arguments in support of a motion for
reconsideration would have been largely cumulative to those that
Smiley made when representing himself. At the hearing on the
admissibility of the firearm evidence, Smiley argued that the Riley
firearm evidence was inadmissible on the grounds that it was
unfairly prejudicial; that the State had not proven that he
possessed the firearm (because none was recovered); and that the
witnesses who allegedly saw him with the firearm, John McDonald
and Samantha Lee, had questionable credibility. But, as we have
noted, counsel cannot be deemed deficient for failing to repeat these
- 14 -arguments in a motion for reconsideration, absent circumstances
indicating judicial receptiveness to reevaluating the merits of a prior
ruling. We are aware of no such circumstances here.
Granted, Smiley did not explicitly say that the Riley and Drake
murders were not “inextricably intertwined,” as the State contended
and the court ultimately found. But Smiley clearly took issue with
the State’s position. Counsel likely could have offered a more
refined argument via a reconsideration motion. Even so, counsel
reasonably believed that the trial judge was resolute in his ruling
allowing admission of the Riley firearm evidence under the
inextricably intertwined theory, regardless of any arguments
counsel might have made to the contrary. That the trial court
rejected the State’s own motion for reconsideration lends support to
counsel’s belief that the court likely would not have revised its
evidentiary ruling.
Moreover, counsel voiced a timely objection during trial to the
admission of the Riley firearm evidence, which was overruled.
Counsel’s motion for mistrial upon the State’s purported violation of
the amended order’s limitations on the use of that evidence was
also denied. By renewing Smiley’s objections and moving for
- 15 -mistrial, counsel provided the trial judge with additional
opportunities to consider this evidentiary issue while still respecting
Smiley’s autonomy in initially proceeding pro se. That approach
was reasonable.
Because trial counsel was not deficient for failing to seek
reconsideration of the trial court’s order regarding the Riley firearm
evidence, we deny this claim of ineffectiveness.
2
Second, Smiley contends that trial counsel was ineffective for
failing to hire a ballistics expert to rebut the State’s expert, who
testified that the projectiles found at the Riley and Drake murder
scenes were fired from the same gun. We agree with the circuit
court that counsel was not deficient in this regard.
As a general matter, “counsel does not necessarily perform
deficiently by failing to retain an expert witness to rebut the State’s
expert testimony at trial.” King v. State, 260 So. 3d 985, 1000-01
(Fla. 2018) (citing Crain v. State, 78 So. 3d 1025, 1041 (Fla. 2011)).
“Strickland does not enact Newton’s third law for the presentation of
evidence, requiring for every prosecution expert an equal and
opposite expert from the defense.” Harrington, 562 U.S. at 111.
- 16 -Thus, a defendant “cannot establish deficient performance for
failure to retain an expert witness when trial counsel made a
reasonable decision to confront and challenge the State’s own
witness at trial through cross-examination.” Crain, 78 So. 3d at
1040. Oftentimes, “cross-examination will be sufficient to expose
defects in an expert’s presentation.” Harrington, 562 U.S. at 111.
In line with these principles, we have rejected similar
ballistics-related ineffectiveness claims. For instance, in Sheppard,
we reasoned that ballistics evidence identifying shell casings from
two locations as having originated from the same firearm is so
widely accepted that it was reasonable for counsel to believe that
challenging such evidence would hurt the defense’s credibility
before the jury. 338 So. 3d at 823-24. The reasonableness of this
decision was bolstered by counsel’s theory of defense, which was
that the defendant did not discharge the firearm at either location.
Id. at 824.
Here, trial counsel was not deficient for failing to hire a
ballistics expert to rebut the State’s expert. Like in Sheppard, the
State’s ballistics expert testified that projectiles found at two
locations (the Drake and Riley murder scenes) came from the same
- 17 -firearm. See id. at 823. Counsel reasonably believed that hiring a
rebuttal expert to challenge these findings would hurt the defense’s
credibility in front of the jury. See id. at 824. Thus, counsel made
the reasonable strategic decision to cross-examine the State’s
expert, see Crain, 78 So. 3d at 1040, who admitted that she could
not determine who fired the weapon. This strategy was consistent
with the defense’s theory that Smiley did not discharge the firearm
on either occasion. See Sheppard, 338 So. 3d at 824.
Accordingly, we reject this claim of ineffectiveness.
B
Next, Smiley argues that trial counsel was ineffective for failing
to challenge whether the sweatshirt found near the Drake murder
scene was worn by the shooter. He notes that although the
sweatshirt contained some of his DNA, it was destroyed by law
enforcement before it could be tested for gunshot residue. Smiley
also vaguely contends that counsel should have moved to suppress
the DNA evidence recovered from the sweatshirt that, in his view,
was destroyed in bad faith. These arguments lack merit.
“[S]trategic decisions do not constitute ineffective assistance of
counsel if alternative courses have been considered and rejected
- 18 -and counsel’s decision was reasonable under the norms of
professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048
(Fla. 2000) (citing Rutherford v. State, 727 So. 2d 216, 223 (Fla.
1998)). And it is well-accepted that counsel “cannot be
constitutionally deficient by failing to file a meritless motion” to
suppress evidence. Sanchez-Torres v. State, 322 So. 3d 15, 21-22
(Fla. 2020) (citing Johnston, 63 So. 3d at 740).
A court need only suppress test results from potentially
exculpatory evidence later destroyed by the State if the destruction
was done in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). As we have explained, “bad faith exists only when law
enforcement officers intentionally destroy evidence they believe
would exonerate a defendant.” Guzman v. State, 868 So. 2d 498,
509 (Fla. 2003) (citing Youngblood, 488 U.S. at 57).
Here, trial counsel was not deficient for failing to challenge the
State’s argument that the sweatshirt was worn by the shooter.
Counsel acted reasonably by portraying the sweatshirt’s destruction
as being indicative of both the police’s poor investigation and the
overall lack of evidence against Smiley. See Occhicone, 768 So. 2d
at 1048. Specifically, counsel highlighted to the jury that the State
- 19 -failed to show them the physical sweatshirt. Counsel also elicited
during cross-examination of one of the State’s experts that law
enforcement failed to test the sweatshirt for gunshot residue.
Nor was counsel deficient for failing to move to suppress the
DNA evidence on the ground that law enforcement had destroyed
the sweatshirt in bad faith. A motion to suppress would have been
meritless, see Sanchez-Torres, 322 So. 3d at 21-22, because Smiley
failed to show that the police destroyed the sweatshirt in bad faith—
that is, to prevent him from accessing potentially exculpatory
evidence, see Guzman, 868 So. 2d at 509. Instead, competent,
substantial evidence shows that the police acted pursuant to the
department’s property-retention policy in disposing of the
sweatshirt. This supports the circuit court’s ruling.
Therefore, this claim of ineffectiveness fails.
C
Smiley’s next claim relates to the safe he had intended to rob
at the Drake home. At trial, the State inadvertently introduced into
evidence the safe from the Riley crime scene instead of Drake’s safe.
While testifying, the State’s crime scene technician misidentified the
- 20 -safe as the one recovered from the Drake murder scene. 8 The trial
court then admitted the safe into evidence without objection, even
though trial counsel knew it was the wrong one.
Later, upon realizing its mistake, the State recalled the
technician to testify that she had misidentified the safe. Trial
counsel cross-examined the technician, portraying the State’s
introduction of the wrong safe as embarrassing and indicative of
law enforcement’s sloppiness in the case. The court granted the
State’s ensuing motion to withdraw the wrong safe from evidence.
Counsel did not request a mistrial or a curative instruction,
believing there was no implication that the wrong safe was at all
related to Smiley. This failure to object or move for a mistrial,
Smiley argues, amounted to ineffective representation. We
disagree.
Counsel is not deficient for making a reasonable tactical
decision not to object to certain evidence at trial. See King, 260 So.
8. The State noted that the safe being admitted was black, while the safe that had been photographed at the Drake murder scene appeared tan. In response, the technician opined that “the flash” of the camera “may have . . . washed it out.”
- 21 -3d at 999; see also Jones v. State, 949 So. 2d 1021, 1031 (Fla.
2006). Nor is counsel deficient for not objecting to properly
admitted evidence. Putting these two principles together, to
establish deficiency, a defendant must show that the admission of
evidence was “improper or objectionable and that there was no
tactical reason for failing to object.” Stephens v. State, 975 So. 2d
405, 420 (Fla. 2007); see also Suggs v. State, 923 So. 2d 419, 430
(Fla. 2005); Goforth v. State, 15 So. 3d 786, 789 (Fla. 5th DCA 2009)
(“[T]he failure to move for a mistrial may constitute a reasonable
trial tactic that does not justify a finding of ineffective assistance of
counsel.”).
Here, counsel made the reasonable tactical decision simply to
cross-examine the crime scene technician, during which counsel,
consistent with the theory of defense, portrayed the State’s
introduction of the wrong safe as another example of law
enforcement’s incompetence in Smiley’s case. Cf. King, 260 So. 3d
at 999; Suggs, 923 So. 2d at 430. Moreover, it was reasonable for
counsel to conclude the jury would not infer that the wrongly
admitted safe was evidence that Smiley had committed another
robbery. Thus, we affirm the circuit court’s denial of this claim.
- 22 -D
Smiley contends that trial counsel was ineffective for failing to
move to suppress Wilkerson’s out-of-court identification of him as
the shooter. We conclude that the circuit court’s summary denial of
this claim was proper.
“An evidentiary hearing must be held on an initial [rule] 3.851
motion whenever the movant makes a facially sufficient claim that
requires a factual determination.” Truehill v. State, 358 So. 3d
1167, 1185 (Fla. 2022) (citing Seibert v. State, 64 So. 3d 67, 75 (Fla.
2010)). However, we will affirm the summary denial of a
postconviction claim that “is positively refuted by the record.” Doty
v. State, 403 So. 3d 209, 214 (Fla. 2025) (quoting Kocaker v. State,
311 So. 3d 814, 821 (Fla. 2020)).
Trial counsel is not deficient for failing to file a meritless
motion to suppress eyewitness identifications. Wilson v. State, 271
So. 3d 1237, 1238 (Fla. 1st DCA 2019) (citing Johnston, 63 So. 3d
at 740). When ruling on a motion to suppress an out-of-court
identification, a trial court must first ask whether the police
employed an “unnecessarily suggestive procedure” in obtaining the
- 23 -identification. Alahad v. State, 362 So. 3d 190, 198 (Fla. 2023)
(quoting Grant v. State, 390 So. 2d 341, 343 (Fla. 1980)).9
A photograph lineup is not unnecessarily suggestive if it
“include[s] a reasonable number of persons similar to any person
then suspected whose likeness is included in the array.” Valentine
v. State, 307 So. 3d 726, 733 (Fla. 4th DCA 2020) (internal
quotation marks omitted) (quoting State v. Francois, 863 So. 2d
1288, 1289 (Fla. 4th DCA 2004)). Minor differences in the
appearances of the persons depicted in the photographs do not
render the lineup unnecessarily suggestive. See Fearon v. State, 10
So. 3d 146, 148 (Fla. 4th DCA 2009) (explaining that a photograph
lineup is “not unduly suggestive if the suspect’s picture does not
stand out more than those of the others” (quoting Francois, 863 So.
2d at 1289-90)); see also, e.g., Johnson v. State, 438 So. 2d 774,
777 (Fla. 1983) (holding that a photo lineup was not unnecessarily
suggestive even though the suspect’s photograph was the only one
9. If the court answers this question in the affirmative, it must then determine, based on a consideration of “all the circumstances,” whether “the suggestive procedure g[a]ve rise to a substantial likelihood of irreparable misidentification.” Id. (quoting Grant, 390 So. 2d at 343).
- 24 -depicting a person with a suntan and blonde hair and wearing an
inmate uniform that was a lighter shade of blue), vacated on other
grounds, 205 So. 3d 1285 (Fla. 2016).
Conversely, it is unnecessarily suggestive for police repeatedly
to draw an eyewitness’s attention to a particular photograph in a
lineup. See Walton v. State, 208 So. 3d 60, 65-66 (Fla. 2016),
abrogated on other grounds, Alahad, 362 So. 3d 190; see also Green
v. State, 641 So. 2d 391, 394 (Fla. 1994).
Here, the record refutes Smiley’s assertion that trial counsel
was deficient for failing to move to suppress Wilkerson’s
identifications of Smiley. For one, the photograph lineup Wilkerson
was shown was not unduly suggestive. All of the photographs
depicted men of around the same age as Smiley with similar
physical features and facial expressions. That Smiley’s photograph
was the only one depicting a man wearing a white tank top
amounts to a minor variation that does not render the lineup
unnecessarily suggestive. Cf. Johnson, 438 So. 2d at 777.
Nor do we find anything suggestive in the conduct by the
police detective who presented the lineup to Wilkerson. The
detective did not do or say anything to draw Wilkerson’s attention to
- 25 -Smiley’s photograph. See Walton, 208 So. 3d at 65-66. Instead,
the detective randomly shuffled the photographs and told Wilkerson
the suspect may or may not be in the lineup. And the detective did
not mention any names of the persons depicted in the lineup.
Importantly, after Wilkerson selected Smiley’s photograph
from the lineup, it was not unnecessarily suggestive for the
detective to begin to ask whether that photograph “looks just” like
Smiley to clarify Wilkerson’s selection. That Wilkerson immediately
interrupted the detective to confirm that Smiley’s photograph
looked “[m]ore like him” indicates that the detective’s clarifying
question did not influence the identification.
Because neither the photograph lineup nor the detective’s
conduct was unnecessarily suggestive, counsel was not deficient for
failing to move to suppress Wilkerson’s out-of-court, and
subsequent in-court, identification. Smiley’s claim to the contrary
is refuted by the record, so the circuit court’s summary denial was
proper. See Doty, 403 So. 3d at 214 (quoting Kocaker, 311 So. 3d
at 821).
E
Smiley argues trial counsel was ineffective for failing to
- 26 -address law enforcement’s investigative lapses and violations of
police department rules. 10 These claims are conclusory and purely
speculative, and the circuit court was correct to summarily deny
them. See Anderson v. State, 220 So. 3d 1133, 1142 (Fla. 2017)
(explaining that an ineffectiveness claim based on “[m]ere
conclusory allegations” is properly subject to summary denial).
F
Smiley contends that trial counsel was ineffective for failing to
characterize Mark Wilkerson as a suspect or co-conspirator. The
circuit court concluded that counsel was deficient for failing to
portray Wilkerson in this light but determined that such deficiency
did not prejudice Smiley. We disagree with the court’s deficiency
finding.
We have recognized that counsel is not deficient for
strategically opting not to characterize another individual as a
suspect in the crime for which the defendant has been charged.
See Beasley v. State, 18 So. 3d 473, 498-99 (Fla. 2009). In Beasley,
10. The only specific example Smiley discusses in his briefs with respect to these claims is the State’s admission of the wrong safe, which is the subject of the claim we have just rejected.
- 27 -the defendant in a murder case argued that counsel was deficient
for failing to present an alternative theory implicating another
person as a suspect. Id. at 497. We rejected that claim, holding
that counsel had made a reasonable strategic decision not to
implicate the alternative suspect, and thus counsel was not
deficient. Id. at 499. In reaching that conclusion, we found it
significant that although “there were several factors that made the
alternative suspect appear suspicious, . . . there was no definitive
proof to tie him to the murder.” Id. We also noted that counsel, “as
part of their overall strategy,” had already “attempted to implicate
other individuals as possible perpetrators during the trial.” Id.
Here, trial counsel was not deficient for failing to characterize
Wilkerson as a suspect or co-conspirator. As an initial matter,
counsel did, in fact, imply in their closing argument that Wilkerson
may have participated in the murder. Nevertheless, counsel’s
strategy while Wilkerson was on the stand was not to portray him
as a suspect but to undermine his credibility by attacking the
apparent inconsistencies in his testimony through crossexamination. That approach was objectively reasonable.
We add that trial counsel determined that they lacked
- 28 -sufficient evidence of Wilkerson’s alleged involvement in the murder
to portray him as a suspect. See id. Notably, Wilkerson tested
negative for gunshot residue, his polygraph results were nondeceptive, and his phone was stolen. Further, neither John
McDonald nor Samantha Lee implicated him in the murder.
Accordingly, we reject this claim of ineffectiveness.
G
Smiley argues that trial counsel was ineffective for failing to
object when the State asked him during cross-examination whether
other witnesses were lying. We find that counsel was not deficient
for failing to object to this questioning.
The State does not dispute that a witness is not competent to
testify about another witness’s state of mind except when privy to
the latter’s thought processes. See Knowles v. State, 632 So. 2d 62,
66 (Fla. 1993). Thus, asking a witness whether other witnesses are
lying is generally improper because doing so “may lead the jury to
conclude that the witness being questioned is actually lying.” Id.
Nevertheless, counsel is not deficient for declining to object to
impermissible questioning when that decision is reasonably
strategic. See Jackson v. State, 127 So. 3d 447, 471-72 (Fla. 2013)
- 29 -(holding that counsel was not deficient for reasonably deciding not
to object to the State’s “allegedly argumentative and speculative
witness questions”). Thus, counsel is only deficient if the
questioning was “improper or objectionable” and there was no
reasonable tactical reason for failing to object. Stephens, 975 So.
2d at 420.
Here, trial counsel was not deficient for failing to object when
the State asked Smiley whether other witnesses were lying.
Although these questions were improper, see Knowles, 632 So. 2d
at 66, counsel’s strategic decision not to object was reasonable, see
Jackson, 127 So. 3d at 471-72. By letting Smiley answer these
questions, counsel sought to have him discredit the other witnesses’
testimony. This strategy was consistent with counsel’s theory that
two of those witnesses, Lee and McDonald, were lying to escape
punishment for their involvement in the robbery. Accordingly,
counsel was not ineffective in this regard.
Smiley also contends that trial counsel was ineffective for
failing to object on relevance grounds to the admission of a
photograph depicting Smiley with Casey Bisbee, the other man who
took part in the Wilkerson robbery. This contention is without
- 30 -merit.
Generally, relevant evidence is admissible at trial. See
§ 90.402, Fla. Stat. (2016). Evidence is relevant if it “tend[s] to
prove or disprove a material fact,” § 90.401, Fla. Stat. (2016), such
as the identity of the shooter in a murder case, Smith v. State, 866
So. 2d 51, 62 (Fla. 2004). And, of course, counsel is not deficient
for failing to object on relevance grounds to evidence that is, in fact,
relevant. See Dennis v. State, 109 So. 3d 680, 693 (Fla. 2012).
Here, trial counsel was not deficient for failing to assert an
objection to the admission of the photograph of Smiley with Bisbee.
Contrary to Smiley’s argument, that photograph is relevant because
it tends to identify Smiley as the shooter. See Smith, 866 So. 2d at
62. That is, the photograph showed that Smiley was shorter than
Bisbee, which was consistent with Mark Wilkerson’s testimony that
it was the shorter of the two assailants who shot Drake.
Therefore, we reject this claim of ineffectiveness.
H
Smiley asserts that cumulative prejudice from multiple
instances of trial counsel’s deficient performance during the guilt
phase deprived him of a fundamentally fair trial. Because we have
- 31 -found no deficiency in counsel’s performance during that phase,
this claim necessarily fails. See Morris v. State, 317 So. 3d 1054,
1070-71 (Fla. 2021) (“[W]here there is no deficient performance [by
trial counsel], there is no need to consider cumulative prejudice.”
(citing Tina Brown, 304 So. 3d at 271)).
I
Smiley’s next series of ineffectiveness claims concern trial
counsel’s performance during the penalty phase. His initial claim is
that trial counsel was ineffective for failing to investigate and
present mitigating evidence on a variety of subjects. We disagree.
In preparing for a penalty phase, trial counsel must “conduct a
reasonable investigation of a defendant’s background for possible
mitigating evidence.” Mullens, 352 So. 3d at 1237 (quoting
Valentine v. State, 98 So. 3d 44, 53 (Fla. 2012)). However, counsel
may strategically decide not to present certain mitigating evidence,
especially to avoid “open[ing] the door to more damaging evidence.”
Hilton v. State, 326 So. 3d 640, 649 (Fla. 2021) (citing Douglas v.
State, 141 So. 3d 107, 123 (Fla. 2012)). Additionally, trial counsel
is not deficient for declining to present cumulative mitigation
evidence. See Darling v. State, 966 So. 2d 366, 378 (Fla. 2007)
- 32 -(citing Gudinas v. State, 816 So. 2d 1095, 1106 (Fla. 2002)).
Furthermore, “the reasonableness of counsel’s actions” during
the penalty phase “may be determined or substantially influenced
by the defendant’s own statements or actions.” Cherry v. State, 781
So. 2d 1040, 1050 (Fla. 2000) (quoting Strickland, 466 U.S. at 691).
That means counsel “will not be deemed ineffective for honoring his
client’s wishes.” Brown v. State (George Brown), 894 So. 2d 137,
146 (Fla. 2004) (citing Waterhouse v. State, 792 So. 2d 1176, 1183
(Fla. 2001)). Accordingly, if the defendant directs counsel not to
present specific pieces of mitigation evidence, counsel cannot be
deemed deficient for failing to present such evidence. See id. (citing
Waterhouse, 792 So. 2d at 1183). Therefore, counsel is generally
not deficient for “failing to call the [defendant’s] family members as
witnesses” during the penalty phase if the defendant has told
counsel “that he does not want his family members to testify on his
behalf.” Arbelaez v. State, 898 So. 2d 25, 38-39 (Fla. 2005) (citing
Rutherford, 727 So. 2d at 220).
We also emphasize that “the presentation of more favorable
testimony in postconviction proceedings does not render counsel’s
investigation into mitigation deficient.” Valentine, 98 So. 3d at 53
- 33 -(citing Davis v. State, 875 So. 2d 359, 372 (Fla. 2003)). Relatedly,
“counsel is entitled to rely on a qualified expert’s opinion, and . . .
such reliance is not rendered unreasonable just because a new
expert in postconviction proceedings disagrees with trial counsel’s
expert.” Mullens, 352 So. 3d at 1237 (citing Brant v. State, 197 So.
3d 1051, 1069 (Fla. 2016)).
Here, Smiley contends that trial counsel was ineffective for
failing to investigate and present mitigating evidence related to his
(1) childhood and religious environment; (2) period of homelessness;
(3) relationship with his aunt; (4) mental health problems; and
(5) medical recovery from his ruptured aneurysms. As explained
below, we conclude that counsel did not perform deficiently with
respect to any of these five categories of mitigation.
1
First, Smiley argues that trial counsel was deficient for failing
to investigate and present mitigating evidence of his childhood and
the religious environment in which he was raised. He contends that
counsel should have offered evidence of the hardships he endured
as a child, including the absence of his father as well as
punishment by his stepfather and by the faculty of Bible Truth
- 34 -Academy, where he was a student. Smiley further argues that
counsel should have obtained records of the corporal punishment
he received at Bible Truth Academy. This argument falls short.
Importantly, Smiley directed counsel not to involve his
extended family during the penalty phase, and it was reasonable for
counsel to honor this directive. See Arbelaez, 898 So. 2d at 38-39.
Without the testimony of Smiley’s family members, counsel had
essentially no means to present evidence of his upbringing. 11
Although counsel was able to convince Smiley to agree to have his
mother testify, 12 she was still aligned with Bible Truth at the time of
trial. Smiley has given us no reason to believe that Smiley’s mother
11. As for Smiley’s argument that he was entitled to an inquiry pursuant to Koon v. Dugger, 619 So. 2d 246 (Fla. 1993), he was not because he did not waive all mitigation evidence; rather, he merely directed counsel not to involve his family and, consequently, not to present certain pieces of mitigation evidence. See Grim v. State, 971 So. 2d 85, 100 (Fla. 2007). Moreover, to the extent Smiley is arguing error by the trial court in failing to hold a Koon hearing, that argument is procedurally barred as he could have raised it on direct appeal. See Lott v. State, 303 So. 3d 165, 166 (Fla. 2020).
12. Counsel also convinced Smiley to let his aunt, Samantha Lee, testify during the penalty phase. However, Smiley does not argue that Lee would have offered relevant testimony about his religious upbringing and education.
- 35 -would have portrayed Bible Truth in a negative light. Finally, the
school records to which Smiley refers recount that he was punished
on significantly fewer occasions than he now alleges.
2
Second, Smiley asserts that trial counsel was deficient for
failing to present mitigating evidence of his brief period of
homelessness as an adolescent. We disagree.
Counsel made a reasonable strategic decision not to present
this evidence, which would have opened the door for the State to
ask potentially harmful questions about Smiley’s motive for leaving
his parents’ home. See Hilton, 326 So. 3d at 649. In line with
counsel’s concern, evidence suggests that Smiley left home because
he no longer wanted to live under his family’s rules. Additionally,
this period of homelessness preceded his aneurysms. Avoiding this
evidence, thus, facilitated counsel’s strategy of highlighting the
“bright line” between Smiley’s pre- and post-aneurysm behavior.
3
Third, Smiley argues that trial counsel was deficient for failing
to investigate and present mitigating evidence regarding his
relationship with his aunt, Samantha Lee. He contends that
- 36 -counsel should have presented evidence of Lee’s negative influence
on him, given her reputation of engaging in criminal endeavors.
Trial counsel was not deficient in this regard.
Presenting this evidence likely would have required calling
additional members of Smiley’s family to testify, and, as we have
explained, counsel was not deficient for honoring Smiley’s directive
in this regard. See Arbelaez, 898 So. 2d at 38-39. Offering this
testimony also would have opened the door to potentially damaging
evidence. See Hilton, 326 So. 3d at 649. Namely, introducing
evidence that Smiley had often visited Lee prior to his aneurysms
would suggest that he was already criminally inclined, which was
inconsistent with counsel’s “bright line” theory of mitigation.
4
Fourth, Smiley contends that trial counsel was deficient for
failing to investigate and present mitigating evidence of his mental
health problems following the Drake murder. He faults counsel for
not having obtained the records from the Gracepoint Wellness
facility, which recount that he was Baker Acted and later diagnosed
with and prescribed medication for a major depressive disorder with
psychotic features. Trial counsel was not deficient.
- 37 -Smiley told counsel that he did not want to be portrayed as
having mental health problems. Counsel cannot be faulted for
complying with this directive. See George Brown, 894 So. 2d at 146
(citing Waterhouse, 792 So. 3d at 1183). In any event, counsel
made a reasonable strategic decision not to present this evidence,
because the Gracepoint records contain information potentially
harmful to the defense’s mitigation theory. See Hilton, 326 So. 3d
at 649. For instance, the records show that Smiley denied having
any issues with substance abuse, which conflicts with his admitted
use of marijuana and alcohol.
5
Fifth, and finally, Smiley argues that trial counsel was
deficient for failing to investigate and present mitigating evidence of
his medical recovery from the ruptured aneurysms. As explained in
greater detail below, counsel did present this evidence through the
testimony of Dr. Waldman as well as Smiley’s mother, his aunt,
Samantha Lee, and his mentor, Michael Clayton. Thus, counsel
was not deficient for failing to present cumulative evidence of
Smiley’s medical recovery from other sources. See Darling, 966 So.
2d at 378. That various postconviction experts would have testified
- 38 -differently than Dr. Waldman does not undermine this conclusion.
See Mullens, 352 So. 3d at 1237. Trial counsel was entitled to rely
on Dr. Waldman’s expert opinion even if other experts, retained
during postconviction proceedings, later disagreed. See id.
Accordingly, we conclude that Smiley has failed to
demonstrate that his counsel’s investigation into and presentation
of mitigation fell below objective standards of reasonableness.
J
Next, Smiley argues that trial counsel was ineffective for
retaining and relying on Dr. Waldman as a medical expert during
the penalty phase. Smiley contends that counsel should have hired
a neurologist or a neuropsychologist instead of Dr. Waldman, who
was a neuropsychiatrist. Further, Smiley asserts that counsel
should have known Dr. Waldman was unqualified as an expert
because he failed to consider how Smiley’s age and ADHD might
exacerbate the effect of his aneurysms. Finally, Smiley challenges
Dr. Waldman’s qualifications based on two errors he made while
testifying at the penalty phase. Each of these arguments is
unavailing.
We have repeatedly held “that defense counsel is entitled to
- 39 -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.” Reese v. State, 14 So. 3d 913,
918 (Fla. 2009) (quoting Darling, 966 So. 2d at 377). In other
words, counsel is not deficient for relying on an expert opinion that,
with hindsight, “is less than perfect.” Looney v. State, 941 So. 2d
1017, 1027 (Fla. 2006) (citing State v. Sireci, 502 So. 2d 1221, 1223
(Fla. 1987)). That a defendant is able to secure more favorable
expert testimony during postconviction proceedings does not render
trial counsel’s reliance on its chosen expert unreasonable. See
Floyd v. State, 18 So. 3d 432, 454 (Fla. 2009) (quoting Asay v.
State, 769 So. 2d 974, 986 (Fla. 2000)).
Here, trial counsel was not deficient for retaining and relying
on Dr. Waldman. The fact that Dr. Waldman is a neuropsychiatrist,
and not a neurologist or neuropsychologist, does not render him
unqualified as a medical expert. As the circuit court recognized,
none of Smiley’s postconviction experts disagreed with Dr.
Waldman’s description of the effects of Smiley’s ruptured
aneurysms. Nor did any of them disagree with Dr. Waldman’s
diagnosis of anosognosia.
- 40 -Furthermore, counsel was entitled to rely on Dr. Waldman’s
opinion, even though Smiley now questions his thoroughness. See
Reese, 14 So. 3d at 918 (quoting Darling, 966 So. 2d at 377).
Smiley’s postconviction experts suggest that they would have
emphasized how his young age and ADHD might have exacerbated
the effect of his ruptured aneurysms on his behavior. That these
experts have offered testimony arguably more favorable to Smiley
does not mean counsel was deficient for relying on Dr. Waldman.
See Floyd, 18 So. 3d at 454 (quoting Asay, 769 So. 2d at 986).
Smiley also points to two errors Dr. Waldman made while
testifying: (1) his mistaken reference to a nonexistent MRI of
Smiley’s brain, and (2) his misattribution of some observations of
Smiley’s post-aneurysm behavior to Smiley’s mother. Yet, Smiley
fails to cite any authority holding that an expert’s minor issues
could render counsel’s reliance on that expert categorically
unreasonable. We decline to adopt such a rule.
Accordingly, this claim of ineffectiveness fails.
K
Smiley contends that the circuit court erred in denying his
newly discovered evidence claim under Jones v. State, 709 So. 2d
- 41 -512 (Fla. 1998). He argues that newly discovered evidence of Dr.
Waldman’s issues with prescription opiates deprived him of
competent expert testimony and that, if this evidence was known at
trial, he would have received a less severe sentence. We affirm the
circuit court’s denial of this claim.
To set aside Smiley’s death sentence based on newly
discovered evidence, he must show (1) that the evidence was
unknown by the trial court, himself, or counsel at the time of trial,
and that he or his counsel could not have known of it through the
exercise of diligence; and (2) that the evidence would probably yield
a less severe sentence. See Davis v. State, 26 So. 3d 519, 526 (Fla.
2009) (citing Jones, 709 So. 2d at 521).
As a general matter, “[p]ostconviction relief cannot be based on
speculation or possibility.” Maharaj v. State, 778 So. 2d 944, 951
(Fla. 2000). This principle applies to newly discovered evidence
claims. See Rivera v. State, 837 So. 2d 613, 614 (Fla. 2d DCA 2003)
(“Relief [based on newly discovered evidence] is not warranted when
the allegations are based on ‘tenuous speculation.’ ” (quoting Davis
v. State, 736 So. 2d 1156, 1159 (Fla. 1999))); Johnson v. State, 904
So. 2d 400, 404 (Fla. 2005) (rejecting a claim based on newly
- 42 -discovered records because it was “sheer speculation” that the
“records concern[ed] criminal activity by the jurors in Johnson’s
case”).
Here, evidence of Dr. Waldman’s issues with prescription
opiates, which came to light years later, qualifies as “newly
discovered” under Jones’ first prong, as the State concedes.
Nevertheless, Smiley cannot satisfy Jones’ second prong, as his
argument relies on an impermissible chain of speculation. He
contends that if evidence of Dr. Waldman’s opiate dependency were
known during the penalty phase, counsel would have hired a
replacement medical expert, who would have presented more
favorable testimony, which would have convinced the jury to
recommend a lesser sentence. This is pure speculation, which
cannot be the basis for postconviction relief. Rivera, 837 So. 2d at
614 (quoting Davis, 736 So. 2d at 1159)
Accordingly, we reject this Jones claim.
L
Smiley’s final claim on appeal is that he suffered cumulative
prejudice due to the numerous instances of deficient performance
by counsel during the penalty phase. As detailed above, Smiley has
- 43 -failed to prove any deficient performance at all. Therefore, this
claim fails for the same reason as Smiley’s guilt-phase cumulative
prejudice claim. See Morris, 317 So. 3d at 1070-71 (citing Tina
Brown, 304 So. 3d at 271).
III
In his petition for a writ of habeas corpus, Smiley raises a
single claim of ineffective assistance of appellate counsel. He
contends that appellate counsel was ineffective for failing to argue
that the trial court improperly admitted evidence of the Riley
murder pursuant to its amended order. 13 Specifically, Smiley
argues that this evidence was inadmissible because it was not
inextricably intertwined with the Drake murder and because the
State did not comply with the Williams14 rule.
A claim of ineffective assistance of appellate counsel is
properly raised in a habeas petition. See Sparre v. State, 289 So. 3d
13. We note that this issue was preserved by trial counsel, who renewed Smiley’s objections to the admission of this evidence at the appropriate junctures during trial.
14. Williams v. State, 110 So. 2d 654 (Fla. 1959); see also § 90.404(2), Fla. Stat. (2016) (codifying the principles discussed in Williams).
- 44 -839, 854 (Fla. 2019). Furthermore, the standard for ineffective
assistance of appellate counsel mirrors the two-pronged Strickland
standard for ineffective assistance of trial counsel. Id. (quoting
England v. State, 151 So. 3d 1132, 1140 (Fla. 2014)).
Regarding the prejudice prong, Smiley must show “that any
deficiency ‘compromised the appellate process to such a degree as
to undermine confidence in the correctness of the result.’ ” Bright v.
State, 432 So. 3d 485, 502 (Fla. 2026) (quoting Pope v. Wainwright,
496 So. 2d 798, 800 (Fla. 1986)). Put differently, appellate
counsel’s deficient performance “must concern an issue which is
error affecting the outcome, not simply harmless error.” Id.
(quoting Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)).
Here, assuming deficiency, Smiley cannot establish prejudice.
Any potential trial court error in admitting the Riley firearm
evidence would have been harmless. We say this for two reasons.
First, even if this evidence were excluded, the case against
Smiley for the Drake murder remained strong. As described above,
multiple pieces of DNA and testimonial evidence implicated Smiley
as the murderer. In fact, our opinion on direct appeal recounted
the evidence to support Smiley’s conviction without even
- 45 -referencing the Riley firearm evidence. See Smiley, 295 So. 3d at
161-62. 15
Second, the trial court ensured that the Riley firearm evidence
was not a feature of the State’s case through the limitations placed
on the scope of this evidence. See supra pp. 5-6. The trial court
prevented the State from informing the jury that Smiley had been
charged with another robbery homicide, and the court instructed
the jury that this evidence was to be considered only as it related to
proof of identity.
Because we would have still affirmed on direct appeal had
appellate counsel briefed this evidentiary issue, Smiley cannot show
prejudice. Accordingly, we reject this ineffectiveness claim and
deny Smiley’s habeas petition.
15. See id. at 178 (“The predicate felonies underlying the felony murder charge were robbery and burglary. Mark Wilkerson testified that Smiley shot and killed Drake and that Smiley stole Wilkerson’s cell phone and forced his way into the Drake home. John McDonald testified that the criminal episode had the goal of stealing money from a safe in the Drake home and that Smiley confessed to the Drake murder. This testimony was corroborated by DNA evidence linking Smiley to the backpack found at the crime scene and by the cell phone records showing that Wilkerson’s stolen phone was used in a three-way call with McDonald and Samantha Lee shortly after the murder.”).
- 46 -IV
For the foregoing reasons, we affirm the circuit court’s denial
of Smiley’s initial rule 3.851 motion and deny his habeas petition.
It is so ordered.
COURIEL, C.J., and LABARGA, MUÑIZ, FRANCIS, BARRIOS, and TANENBAUM, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Polk County,
J. Kevin Abdoney, Judge
Case No. 532015CF004903A000XX
And an Original Proceeding – Habeas Corpus
Eric C. Pinkard, Capital Collateral Regional Counsel, Melody Jacquay-Acosta, Assistant Capital Collateral Regional Counsel, and Ann Marie Mirialakis, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,
for Appellant/Petitioner
James Uthmeier, Attorney General, Tallahassee, Florida, and Michael W. Mervine, Senior Assistant Attorney General, Miami, Florida,
for Appellee/Respondent
- 47 -