Michael G. BRUNO, Sr., Appellant, v. STATE of Florida, Appellee, 807 So. 2d 55

PER CURIAM. Michael J. Bruno, under sentence of death, appeals the denial of relief following an evidentiary hearing on his first motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the denial of relief. I. FACTS The facts of the crime are set out fully in the Court’s opinion on direct appeal. On August 8, 1986, appellant Michael Bruno and his fifteen-year-old son, Michael Jr., were in the apartment of a friend, Lionel Merlano, when Bruno beat Merlano with a crowbar.

Bruno then sent Michael Jr. elsewhere in the apartment to fetch a handgun and, when the boy returned with a gun, Bruno shot Merlano twice in the head. Bruno was arrested several days later and gave a taped statement wherein he at first denied any knowledge of the murder but then later admitted committing the crime, claiming it was self-defense. Michael Jr. also gave a full statement to police. Prior to being arrested, Bruno made numerous inculpatory statements to friends concerning both his plan to commit the murder and the commission of the crime itself.

Police found the gun in a canal where a friend, Jody Spalding, saw Bruno throw it. Bruno was charged with first-degree murder and robbery (he stole a stereo from the apartment after the murder) and his strategy at trial was to raise a reasonable doubt in jurors’ minds by claiming that Jody Spalding was the killer. He was convicted as charged, and the judge followed the jury’s eight-to-four vote and imposed a sentence of death based on three aggravating circumstances and no mitigating circumstances. This Court affirmed.

Bruno filed the present rule 3.850 motion and the trial court conducted an evidentiary hearing at which Bruno presented six witnesses and the State presented one witness. The trial court denied the motion. Bruno appeals, raising four issues. II. INEFFECTIVE ASSISTANCE OF COUNSEL In issue number one, Bruno argues that the trial court erred in denying his postconviction claims concerning alleged ineffective assistance of counsel.

The test to be applied by the trial court when evaluating an ineffectiveness claim is two-pronged: The defendant must show both that trial counsel’s performance was deficient and that the defendant was prejudiced by the deficiency. The standard of review for a trial court’s ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the deficiency and prejudice prongs de novo. In his brief before this Court, Bruno asserts several instances of ineffectiveness.

We address each of the subclaims in turn. In subclaim two, Bruno contends that defense counsel was ineffective during the trial due to alcohol and drug impairments. Bruno points to the previous hospitalization of trial counsel for drug and alcohol use. Private counsel was retained in August 1986 to represent Bruno. Over the next few months, counsel developed a drinking problem and, when he was drinking, would occasionally use cocaine. He enrolled in Alcoholics Anonymous on October 15, 1986, and remained alcohol and drug free from then until March 1987, when he began drinking again but not using cocaine.

He admitted himself into a hospital on March 15, 1987, for his drinking problem, remained hospitalized for twenty-eight days, and subsequently remained alcohol- and drug-free. After being released, counsel apprised both Bruno and the court of his problem and offered to withdraw, but Bruno asked him to continue as counsel. The trial, which originally had been set for March 30, 1987, was rescheduled for August 5, 1987, and began on that date. Counsel testified at the evi-dentiary hearing below that he never was under the influence of alcohol or drugs while working on this case.

The trial court concluded that Bruno “failed to meet his burden of demonstrating how [counsel’s] drug and alcohol usage prior to trial rendered ineffective his legal representation to the Defendant and how such conduct prejudiced the Defendant.” We agree. In subclaim three, Bruno asserts that there was an irreconcilable conflict between Bruno and counsel. Bruno argues that defense counsel repeatedly divulged confidential and damaging information to the trial court. One example of this alleged conflict concerns statements made by defense counsel at the close of the State’s case during the guilt phase.

Defense counsel informed the trial court that Bruno wanted to testify and present witnesses against counsel’s advice. Defense counsel told the court that he believed the witnesses would be detrimental to his case. Defense counsel added that he advised Bruno to take a plea in this case. The trial court told Bruno that he had the right to testify, but that if he chose not to, he would instruct the jury not to infer anything from it. The trial court also told Bruno that by presenting witnesses, he would lose first and last closing arguments.

The defense ultimately rested its case without the presentation of witnesses. Another example of the alleged conflict of interest relates to comments made by defense counsel during the penalty phase. The comments were made in response to Dr. Stillman’s testimony that Bruno was insane at the time of the offense. Shortly after Dr. Stillman’s testimony, defense counsel requested a side-bar conference and told the trial court that he was surprised by the testimony, as Dr. Stillman had previously informed defense counsel that Bruno was sane at the time of the offense.

At the evidentiary hearing-below, defense counsel explained that he conveyed his surprise to the court in order to justify his subsequent motion for an additional psychological examination. The trial court concluded that this claim was barred because it either was, or could have been, raised on direct appeal. This was error. Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland claim is whether trial counsel was ineffective.

Both claims may arise from the same underlying facts, but the claims themselves are distinct and — of necessity — have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal. A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal.

Thus, the trial court erred in concluding that Bruno’s claim was procedurally barred. Despite ruling that claim three was procedurally barred, the trial court proceeded to address the claim on the merits: This motion was filed by [defense counsel], after Dr. Stillman testified at the penalty phase, that because of drug and alcohol usage, that the Defendant was not sane at the time the offense was committed. [Defense counsel] indicated to the trial judge that this testimony took him by surprise, because Dr.

Still-man was examining the Defendant to render an expert opinion as to possible mental mitigating circumstances, not whether he was sane at the time the crime was committed. [Defense counsel] told the trial judge that prior to Dr. Stillman’s testimony, that he had no reason to believe that the Defendant was not competent to stand trial or was insane at the time the offense was committed. [Defense counsel] testified that he explained his surprise to Judge Coker, in order to justify his subsequent motion for an additional psychological examination.

This Court does not find that there is any evidence of a “conflict of interest” between [defense counsel] and the Defendant, or that the Defendant was prejudiced by [defense counsel’s statements to the Trial Judge. [Defense counsels statements to the Trial Judge were made as a justification for his seeking leave of court to file a belated notice of intent to rely on an insanity defense, pursuant to rule 3.216(f).

The evidentia-ry hearing revealed that [defense counsel] was having difficulty with the Defendant as to whether the Defendant should or should not testify, and whether certain alibi witnesses who lacked credibility should be called to testify by the defense.

The testimony of [defense counsel] does not reflect a lack of preparation, but reflect his conflicts with the Defendant as to the conduct of the trial. [Defense counsel] stated that he advised the Defendant that “strategy wise,” he would be better off not testifying. [Defense counsel] felt that the witnesses which the Defendant wanted to call were not credible, and would result in the loss of first and last closing argument by the defense. [Defense counsel] testified that he had strongly recommended to the Defendant that he take a plea in the ease, which advice the Defendant elected to reject. [Defense counsels statements to the trial judge did not amount to a “conflict of interest,” but was an effort to seek the trial court’s help with a client who constantly refused to cooperate with his defense counsel’s trial preparations.

The Defendant has failed to show that he was prejudiced by [defense counsel]’s statements to the trial judge. Ultimately, the trial court concluded that Bruno failed both prongs of the Strickland test. We agree. In subclaim four, Bruno argues that counsel was ineffective because he failed to present a defense of voluntary intoxication. At the evidentiary hearing below, defense counsel testified that Bruno adamantly refused the presentation of a voluntary intoxication defense.

In rejecting this claim, the trial court stated that “[t]he decision not to present the affirmative defense of ‘voluntary intoxication,’ was based on a strategy decision which was motivated by the Defendant’s conscious decision, rather than a result of [counsel’s] legal incompetency.” We agree with the trial court that Bruno has failed to satisfy the first prong of the Strickland test. In subclaim five, Bruno asserts that counsel negligently failed to move to suppress Bruno’s initial statement to the police. The trial court erroneously con-eluded that this matter was procedurally barred.

The issue raised by Bruno on direct appeal involved the suppression of his August 13, 1986, confession. The instant claim concerns defense counsel’s alleged ineffectiveness for failing to move to suppress Bruno’s August 12, 1986, initial statement to the police. This issue was not addressed on direct appeal and is therefore properly raised at this time. Bruno was first interrogated by the police on August 12, 1986. Bruno alleges that he was not given Miranda warnings at this time.

During the interrogation, Bruno told the police that he knew the victim and had previously consumed a few beers with the victim at the victim’s apartment, which was located in the Candle-wood apartment complex. Bruno told the police that, the weekend the crime was committed, he was working on Jody Spald-ing’s car, with the exception of going to the Candlewood apartment complex to obtain a receipt for a refrigerator that Sharon Spalding had bought from a man named Jim. Bruno’s statement was introduced at trial through the testimony of Detectives Hanstein and Edgerton.

Bruno claims that this statement provided the police with additional evidence, as it contradicted the later statement in which Bruno claimed that he killed the victim in self-defense, it contradicted other testimony about his whereabouts in the days following the killing, and shows guilty knowledge. Although the trial court concluded that this issue was procedurally barred, it nevertheless addressed the issue on the merits. The trial court concluded that Bruno failed to meet the second prong of the Strickland test.

We agree, as Bruno has failed to demonstrate that there is a reasonable probability that, but for the admission of his exculpatory statement, the verdict would have been different. In subclaim six, Bruno asserts that defense counsel was negligent for failing to investigate and challenge his confession on the ground that Bruno was intoxicated at the time he gave the statement. The trial court incorrectly concluded that this issue was procedurally barred. Nevertheless, we find that Bruno has failed to meet the first prong of the Strickland test. At the evidentiary hearing below, Dr.

Lip-man testified that based on his interview with Bruno, he believed that Bruno was hallucinating at the time he gave his statement to the police. Initially, we note that Dr. Lipman based this conclusion on self-serving recollections provided by the defendant himself. More importantly, at the time of trial, there was no evidence in the record to support such a theory of intoxication. Dr. Stillman testified during the penalty phase regarding Bruno’s drug abuse, both prior to the murder and while awaiting trial in jail. He did not indicate that Bruno was under the influence of drugs on the date of the confession.

Cf. Cherry v. State, 781 So.2d 1040, 1052 (Fla.2000) (“The fact that Cherry found a new expert who reached conclusions different from those of the expert appointed during trial does not mean that relief is warranted under Florida Rule of Criminal Procedure 3.850, especially where there is no evidence other than Dr. Crown’s statement that Dr. Barnard conducted a superficial examination that Dr. Barnard’s evaluation was insufficient.”) (citation omitted). Additionally, at the conclusion of the confession, Bruno stated on the record that he was not under the influence of drugs or alcohol.

Thus, counsel cannot be deemed ineffective for failing to pursue a theory which there is no evidence in the record to support. In subclaim seven, Bruno alleges that counsel failed to effectively challenge the State’s case. Within this argument, Bruno raises several subclaims: counsel failed to impeach Diane Liu, Bob Bryant, Sharon Spalding, Archie Maheu, Jody Spalding, and Bruno’s son (Michael Jr.); counsel failed to object to “fear” testimony; and counsel failed to object to the instruction coercing the jury to reach a verdict.

The trial court rejected the claim regarding impeachment as follows: “Decisions on these matters were tactical choices, and are within the standard of competency of defense counsel.” We agree and therefore Bruno has failed to meet the first prong of the Strickland, test. The trial court correctly determined that the claim regarding the “fear” testimony is procedurally barred. On direct appeal, this Court pointed out that defense counsel failed to preserve this issue by making appropriate objections.

Nevertheless, this Court proceeded to address the issue on the merits and conclude that the claim “would constitute no more than harmless error.” Bruno, 574 So.2d at 80. Finally, the trial court concluded that the claim regarding the alleged coercive instruction was also procedurally barred. It is understandable why the trial court came to this conclusion, as in this Court’s direct appeal opinion, we stated, “We reject without discussion the balance of Bruno’s guilt-phase claims which included the following.” Id. at 81.

We proceeded to list a number of claims, one of which was the alleged coercive instruction claim. Yet, although this claim was raised on direct appeal, it is not clear from the opinion itself how this Court disposed of the claim: it may have been barred due to a failure to preserve or it may have been denied on the merits. If the claim was denied on the merits, then the claim would be barred in a subsequent postconviction motion. If, however, the claim was denied due to counsel’s failure to preserve the issue for appellate review, then a postconviction motion would be the proper vehicle to raise such a claim.

In order to make this determination, we look to the direct appeal record and briefs. Upon review, it appears that the State asserted that in its direct appeal answer brief that the coercive instruction claim was not preserved for direct appeal because counsel had failed to object to the instruction at trial. We must assume that this argument was accepted by this Court on direct appeal. Thus, the coercive instruction is properly raised in a postconviction motion in the form of an ineffective assistance of counsel claim.

Turning to the merits of the claim, we conclude that Bruno has failed to meet the first prong of the Strickland test. After the jury had deliberated for a number of hours, the trial court called the jury into the courtroom and the following transpired: THE COURT: Ladies and Gentlemen of the jury, according to my calculations, its been some 26 hours ago that I sent you all back to the juryroom. Since that time, we have heard practically nothing from you. I would like to inquire is there some problem that the court might be of some assistance as you deliberate? MR. GILLS: Your honor, not at this time.

We’re coming pretty close. THE COURT: Okay. I will speak to you again shortly. You may retire. At the evidentiary hearing below, defense counsel testified that he did not object because he believed that the trial court was merely curious about the jury’s progress in deliberations and its tone was not such as to constitute a de facto Allen charge. Based on our review of both the trial record and defense counsel’s testimony at the evidentiary hearing below, we find no merit to this claim. In subclaim eight, Bruno asserts that counsel was ineffective for failing to object to the guilt-phase jury instructions.

Specifically, Bruno alleges that counsel was ineffective because he failed to object to inaccurate and incomplete instructions on excusable homicide and justifiable homicide. The trial court correctly determined that the part of the claim dealing with the excusable homicide instruction was procedurally barred, as this Court concluded on direct appeal that there was no evidence to support giving the long-form instruction on this offense. See Bruno, 574 So.2d at 80.

However, the trial court incorrectly determined that the part of the claim dealing with justifiable homicide was barred, as this was one of the laundry list claims rejected by this Court without discussion on direct appeal. The issue is therefore properly raised in this postconviction motion. Turning to the merits, Bruno argues that the justifiable homicide instruction was inaccurate because it failed to clearly explain defense of another as self-defense.

Our review of the record, however, reveals that the following instruction was given to the jury: A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another. (Emphasis added.) This instruction correctly explains defense of another. Hence, we find no merit to Bruno’s claim. In subclaim nine, Bruno alleges that counsel failed to ensure that the jury challenges were recorded.

During jury selection, there were several unreported bench conferences, one of which involved the parties exercising challenges to the jury venire. Bruno alleges that errors may have been committed during these unreported conferences. Again, the trial court improperly concluded that this claim was procedurally barred, as this claim was part of the laundry list of claims denied without discussion on direct appeal. Nevertheless, we find no merit to this claim, as Bruno failed to establish either prong of the Strickland test. Mere speculation regarding possible error is not enough to satisfy Strickland.

Counsel testified at the evidentiary hearing below that at the time of the trial in this case, the practice was to write juror challenges on slips of paper that were submitted to the judge, rather than discussing the challenges at sidebar. Counsel did not remember making any specific challenges for cause, requesting additional peremptory challenges, or being limited by the court in voir dire. Ultimately, Bruno points to no specific error which occurred during these alleged unreported conferences. See Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1993). Therefore, we find no merit to this claim.

In subclaim ten, Bruno argues that counsel was ineffective in failing to investigate and present available mitigation. The trial court rejected this claim as follows: The testimony and exhibits presented at the evidentiary hearing reflect that the Defendant’s mis-information to, and his failure to fully co-operate with [counsel] in the preparation of his defense, prevented [counsel] from initially obtaining information relating to the Defendant’s previous hospitalization at Pilgrim State Hospital. An examination of Dr.

Stillman’s trial testimony, reveals that he acquainted the jury with the Defendant’s extensive emotional and drug history, and drug use at the time of the murder. The Defendant’s parents testified that Mr. Bruno had tried to commit suicide, and was briefly hospitalized until his sister had him released. The fact that there could have been a more detailed presentation of these circumstances, does not establish that defense counsel’s performance was deficient. Defense counsel cannot be faulted for failing to investigate background information, which he had no reason to suspect existed. We agree.

The trial court noted that Bruno’s failure to cooperate with counsel prevented counsel from initially obtaining relevant information pertaining to the penalty phase. Despite this obstacle, counsel still presented evidence concerning several potential mitigating circumstances: Bruno’s extensive emotional and drug history, Bruno’s drug use at the time of the murder, Dr. Stillman’s testimony that Bruno had organic brain damage as a result of his drug use, and testimony that Bruno had attempted suicide and was briefly hospitalized.

This evidence was thoroughly discussed in this Court’s previous opinion on direct appeal. See Bruno, 574 So.2d at 82-83. Counsel’s performance in this case may not have been perfect, but it did not fall below the required standard. See Teffeteller v. Dugger, 734 So.2d 1009, 1022 n. 14 (Fla.1999) (“[T]he legal standard is reasonably effective counsel, not perfect or error-free counsel.”).

Moreover, counsel’s performance cannot be considered deficient simply because the evidence presented during the 3.850 hearing may have been more detailed than the evidence presented at trial, especially in light of the fact that the substance of both presentations was essentially the same. Finally, even assuming that counsel’s performance was deficient, we agree with the trial court that Bruno has failed to satisfy the second prong of the Strickland test, as Bruno has not established that there is a reasonable probability that such deficiency affected the sentence.

Finally, in subclaim eleven, Bruno alleges that counsel was negligent for the following reasons: (1) the jury was misinformed, without objection, as to its sentencing responsibility in violation of Caldwell v.

Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (2) counsel stipulated to the introduction of Bruno’s prior convictions for marijuana and cocaine possession; (3) counsel failed to object to the state attorney’s remarks regarding Bruno’s tattoos, (4) counsel failed to object to the state attorney’s argument that it could find the contemporaneous robbery as a prior violent felony; and (5) counsel failed to object to the state attorney’s argument that the jury could count three aggravators — pecuniary gain, felony murder, and prior violent felony — as three separate aggravators or just one.

The trial court incorrectly concluded that these claims were proeedurally barred, as they were included in the direct appeal opinion’s laundry list. Nevertheless, we conclude that Bruno has failed to show deficient performance or prejudice arising from the alleged errors, as required by Strickland. III. BRUNO’S COMPETENCY Bruno claims that counsel was ineffective in failing to provide Dr. Stillman with sufficient background information. Bruno argues that counsel’s neglect prevented Dr. Stillman from sufficiently assessing Bruno’s competence to stand trial and potential mitigating circumstances.

Prior to trial, Dr. Stillman was appointed to evaluate whether Bruno was insane at the time of the offense or incompetent to stand trial. The record reveals that Dr. Stillman informed defense counsel on two separate occasions that he did not believe that Bruno was either insane at the time of the offense or incompetent to stand trial. Subsequently, Dr. Stillman was called as a defense witness during the penalty phase. In preparing for this testimony, Dr. Still-man interviewed, for the first time, members of Bruno’s family and a jail nurse who had contact with Bruno. These meetings occurred within two days of Dr.

Stillman’s testimony. During the State’s cross-examination, Dr. Stillman opined that he believed that Bruno was insane at the time of the offense. Dr. Stillman testified that despite his previous determinations that Bruno was not insane, he still had a suspicion, and that this suspicion was confirmed upon meeting with members of Bruno’s family and the nurse. Thereupon, during a break in the penalty phase, defense counsel explained to the trial court that Dr. Stillman’s testimony was a complete surprise and contrary to the opinion that Dr. Stillman had previously given defense counsel.

Prior to sentencing, defense counsel filed a motion for a psychiatric reevaluation, which was denied by the trial court. The trial court below rejected this claim as follows: Since Dr. Stillman is dead, there is no way for the court to ascertain what factors he considered, or did not consider, in the way of background material on the Defendant. The record of the trial reflects that Dr. Stillman interviewed the defendant twice for a total of two and a half hours. He read letters written to Jean Gruninger and he spoke with the defendant’s sister and parents. The record reflects that Dr.

Stillman was aware of the Defendant’s extensive drug usage, and his stay at Pilgrim State hospital. The experts presented by the Defendant at the evidentiary hearing did not testify that they believed that the Defendant was incompetent to stand trial.... At the penalty phase, the jury and trial judge were presented with testimony relating to his drug usage, family background, and mental health. The fact that the defendant and his family withheld information from [counsel], or that a more detailed presentation of this evidence could have been made in hindsight, does not render [counsel’s] performance deficient.

We agree. As far as Dr. Stillman’s penalty phase testimony, it is clear from the record that Dr. Stillman had been provided with all necessary information at the time of his testimony. In regards to whether Bruno was competent to stand trial or insane at the time of the offense, we find no negligence on the part of defense counsel. Defense counsel asked Dr. Stillman to evaluate Bruno prior to trial. Dr. Stillman rendered an opinion, on two separate occasions, that Bruno was neither incompetent to stand trial nor insane at the time of the offense. Bruno has not established that Dr.

Stillman told defense counsel that he needed more information in order to form this opinion. Counsel cannot be faulted simply because Dr. Still-man apparently changed his opinion after meeting with Bruno’s family members, especially since it appears that Dr. Stillman failed to inform defense counsel of his new conclusion. Moreover, as pointed out by the trial court below, Bruno failed to present any evidence in the evidentiary hearing below that he was either incompetent to stand trial or insane at the time of the offense. Hence, we find no merit to this claim. IV.

REMAINING ISSUES In claim three, Bruno alleges that the penalty-phase instructions were unreasonably vague and confusing. The trial court properly ruled that this claim is procedurally barred, as it should have been raised on direct appeal. See Smith v. State, 445 So.2d 323, 325 (Fla.1983) (“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”). To the extent this claim relies on the Ra-delet study, which was not available at the time of Bruno’s trial, we find no merit to this evidence.

In his final claim, Bruno alleges that the numerous constitutional violations that occurred in this case warrant relief. All of Bruno’s claims were either meritless or procedurally barred; therefore, there was no cumulative effect to consider. See Melendez v. State, 718 So.2d 746, 749 (Fla.1998). V. CONCLUSION Based on the foregoing, we affirm the trial court’s denial of Bruno’s motion for postconviction relief. It is so ordered. WELLS, C.J., and HARDING, LEWIS, and QUINCE, JJ., concur. ANSTEAD, J., concurs in part and dissents in part with an opinion, in which SHAW and PARIENTE, JJ., concur. . See Bruno v.

State, 574 So.2d 76 (Fla.1991). . The Court affirmed the following aggravating circumstances:

(1) The murder was committed during a robbery and for pecuniary gain; (2) the murder was committed in a cold, calculated, and premeditated manner; and (3) the murder was heinous, atrocious, or cruel. . Bruno raised the following claims in his 3.850 motion:

(1) Bruno was denied his right to counsel because of trial counsel’s grossly negligent or intentional conduct, or because of

an act of God, in the destruction of the case file in this matter;

(2) Bruno was denied access to the files and records pertaining to his case;

(3) Bruno's counsel labored under an irreconcilable conflict of interest when he revealed confidential information to the court and the State;

(4) Bruno was denied effective assistance of counsel during the guilt phase of his trial;

(5) Bruno's son, Mike Bruno, Jr., was incompetent to testify; (6) the State presented false testimony and failed to disclose exculpatory information; (7) the State violated the rule of sequestration of witnesses;

(8) Bruno was denied effective assistance of counsel during the penalty phase of his trial;

(9) Bruno was denied a competent mental health examination and counsel was ineffective for failing to investigate and arrange such an examination; (10) the State failed to disclose an incriminating statement made by Bruno to Diane Liu regarding a “killing party” and related testimony and affirmatively misled the defense into believing such a statement did not exist; (11) the jury instructions at the penalty phase were unreasonably vague and confusing, and as a result, the instructions created a presumption in favor of death and the jurors' discretion was not suitably guided; and (12) the cumulative impact of error denied Bruno of his right to a fair trial. .

Bruno called the following witnesses: defense counsel; Professor Radelet (a sociology professor); Dr. Dee (a neuropsychologist); Arthur Maheu (Arthur is the husband of Sharon Spalding; Sharon testified at trial that she saw Bruno with a gun on the morning of the killing); Dr. Lipman (a neuropharmacologist); and Elizabeth Bruno (the defendant’s mother). . The State in rebuttal called Sydney Patrick (the defense investigator hired by defense counsel). .

Bruno raises the following issues: (1) ineffective assistance of counsel during the guilt and penalty phases of the trial; (2) incompetent mental health exam; (3) unconstitutionally vague penalty phase instructions; and (4) cumulative error. . The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set forth the following criteria for evaluating an ineffectiveness claim: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.

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. Id. at 687, 104 S.Ct. 2052.

The Supreme Court further expounded on the second prong, i.e., the prejudice prong, of this standard: The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. 2052. .See Stephens v.

State, 748 So.2d 1028, 1033 (Fla.1999) (“Thus, under Strickland, both the performance and prejudice prongs are mixed questions of law and fact [and subject to de novo review], with deference to be given only to the lower court's factual findings.''). .

Bruno raises the following ten subclaims regarding ineffective assistance of counsel: defense counsel was impaired during the time that he represented Bruno; defense counsel had a conflict of interest with Bruno; defense counsel failed to present a voluntary intoxication defense; defense counsel failed to seek suppression of Bruno’s initial statement to the police; defense counsel failed to attack Bruno's confession on intoxication grounds; defense counsel failed to effectively challenge the State's case; defense counsel failed to object to the instructions on excusable homicide and justifiable homicide; defense counsel failed to ensure that the jury challenges were recorded; defense counsel failed to investigate and present available mitigation; and defense counsel failed to object to the State's improper comments. .

The numbers of the subclaims in this opinion mirror the numbers in Bruno's brief. Subclaim one is not addressed, as it is simply an introduction to the other subclaims. . See, e.g., Tyson v. Aikman, 159 Fla. 273, 31 So.2d 272, 273 (1947) ("An appeal is to consider errors alleged to have been committed by the ... trial judge.”); M.F.S. Land Co. v. J. Ray Arnold Cypress Co., 103 Fla. 732, 139 So. 200, 201 (1931) (“[T]he purpose of an appeal is to correct a harmful error which the [trial court] may have committed.”). . See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . See Fla.

R.Crim. P. 3.850(c) ("This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.”); see, e.g., Maharaj v. State, 684 So.2d 726, 728 (Fla.1996) (“It does appear that a substantial number of Maharaj's claims may properly be denied without an evidentiary hearing because they were either raised or could have been raised on direct appeal and, consequently, cannot be relitigated in postconviction relief proceeding.”). .See, e.g., Wuornos v.

State, 676 So.2d 972, 974 (Fla.1996) ("We find that this argument constitutes a claim of ineffective assistance of counsel not cognizable on direct appeal, but only by collateral challenge.”); Kelley v. State, 486 So.2d 578, 585 (Fla.1986) (“Generally, such claims [of ineffectiveness] are not reviewable on direct appeal but are more properly raised in a motion for postconviction relief.”). A claim of ineffectiveness can properly be raised on direct appeal only if the record on its face demonstrates ineffectiveness. See Wuornos, 676 So.2d at 974. . Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Although the trial court stated that "there is no reasonable probability that the verdict would have been different, had Bruno's initial exculpatory statements been received in evidence,” it is clear from the arguments made and the language of the entire order that the trial court simply made a typographical error and left out the word "not” between the words "statements” and "been.” . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). .

The record indicates that prior to the guilt phase of the trial, defense counsel received two letters from Dr. Stillman, wherein Dr. Stillman opined that Bruno was not insane at the time of the offense or incompetent to stand trial. . Dr. Michael Radelet, the chair of the Sociology Department at the University of Florida, conducted a study concerning a jury’s understanding of the penalty phase instructions in a capital case. At the evidentiary hearing below, Dr. Radelet testified regarding the results of the study.

He concluded that "jurors have great misunderstandings of the instructions read at the penalty phase of capital trials."