Frederick W. CUMMINGS-EL, Appellant, v. STATE of Florida, Appellee; Frederick W. Cummings-El, Petitioner, v. James V. Crosby, Jr., etc., Respondent, 863 So. 2d 246

PER CURIAM. Frederick W. Cummings-El appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Cummings-El 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 denying Cummings-El’s rule 3.850 motion, and we deny Cummings-El’s petition for a writ of habeas corpus.

BACKGROUND The facts of this case, as set forth in this Court’s direct appeal opinion, are as follows: The defendant, Fred Cummings-El, dated the victim, Kathy Good, for a short period and the two lived together for several months. After the relationship ended, Cummings-El harassed Good and she eventually obtained a restraining order after he assaulted her at a neighbor’s house. He then made numerous verbal threats, such as: “Kathy, I’m going to kill you. Kathy, I’m going to kill you [ ]”; and “I love her.

If I can’t have her, nobody [can] have her.”; and finally “If I can’t have you, ain’t nobody going to have you.” Cummings-El broke into Good’s home in the early morning hours of September 16, 1991, and stabbed her several times while she was sleeping, killing her. Several people heard Good’s screams and saw Cummings-El at the scene. Good’s eight-year-old son, Tadarius, was asleep in bed with his mother and awoke to see Cummings-El “punching” his mother. Good’s twenty-year-old nephew, Michael Adams, was asleep on the floor of Good’s bedroom and saw Cummings-El fleeing from the house.

And Good’s mother, Daisy Adams, confronted Cummings-El as he was leaving the bedroom. Cummings-El, whose face was only one or two feet from Daisy’s, shoved Daisy to the ground and ran. Good then staggered from the bedroom and collapsed in her mother’s arms, saying “Fred, Fred.” Cummings-El v. State, 684 So.2d 729, 730-31 (Fla.1996). The jury convicted Cummings-El of first-degree murder and armed burglary, and recommended death by an eight-to-four vote. The trial court followed the jury’s recommendation and sentenced Cummings-El to death, finding four aggravating circumstances:

(1) Cummings-El had three prior violent felony convictions; (2) the murder was committed during the course of a felony; (3) the murder was heinous, atrocious, or cruel (HAC); and (4) the murder was cold, calculated, and premeditated (CCP). The trial court found no mitigating circumstances. State v. Cummings-El, No. 91-32268 (Fla. 11th Cir. Ct. order filed Feb. 19, 1993). Cummings-El appealed his conviction and sentence to this Court, raising six issues. This Court affirmed the conviction and sentence of death. Cummings-El v. State, 684 So.2d 729 (Fla.1996).

On May 26, 1999, Cummings-El filed an amended rule 3.850 motion for postconviction relief, raising eleven issues. The postconviction court held a Huff hearing and thereafter summarily denied all but one of Cummings-El’s claims. The court granted an evidentiary hearing regarding Cummings-El’s claim that trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase of trial. After the Hujf. hearing, Cummings-El expressed dissatisfaction with his attorney.

The postconviction court conducted an inquiry into Cummings-El’s claim, discharged the attorney, and appointed a new attorney. On June 22, 2000, Cummings-El filed a second amended rule 3.850 motion for postconviction relief, raising three additional issues. On July 13, 2000, Cummings-El filed a third amended motion for postconviction relief, raising one additional claim. On September 25, 2000, the postconviction court held a second Hujf hearing on Cummings-El’s newly added claims.

The postconviction court found that Cummings-El’s additional claims were technically untimely, but because counsel had been recently appointed and investigated the additional claims in a reasonable period of time after his appointment, the court agreed to consider the additional claims. The court thereafter summarily denied claims twelve and thirteen. The court determined that claim fourteen would be considered as a supplement to claim five.

Finally, the court denied claim fifteen without prejudice for defense counsel to obtain a sworn affidavit of recantation or sworn testimony subject to cross-examination from Tadarius Williams. If defense counsel produced such evidence, the court agreed to hear claim fifteen at the previously scheduled evidentiary ■ hearing. State v. Cummings-El, No. F91-33268 (Fla. 11th Cir. Ct. order filed -Oct. 11, 2000). Following the evidentiary hearing, the postconviction court entered a final order denying all relief. State v. Cummings-El, No. F91-33268 (Fla. 11th Cir. Ct. order filed June 14, 2002).

Cummings-El now appeals the postconviction court’s denial óf his rule 3.850 motion. He also petitions this Court for a writ of habeas corpus.

RULE .3.850 APPEAL Cummings-El’s rule' 3.850 appeal asserts the following: (1) the postconviction court erred by denying Cummings-El’s claim that trial counsel was ineffective for failing to request a second-chair attorney; (2) the postconviction court erred by denying Cummings-El’s claim that trial counsel was ineffective for failing to object to the State’s method of death-qualifying a jury and for failing to object to the trial court’s exclusion of venirepersons Kozakowski and Oshinsky for cause; (3) the postconviction court erred by denying Cummings-El’s claim that trial counsel was ineffective for failing to object to an improper comment made by the trial court regarding Cummings-EPs right to remain silent; (4) the postconviction court erred by denying Cummings-El’s claim that trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase; (5) the postconviction court erred by denying Cummings-EPs claim that trial counsel was ineffective for failing to call Daphne Roberts to testify during the penalty phase; (6) the postconviction court erred by denying Cummings-EPs claim that trial counsel was ineffective for failing to object to the cumulative testimony of Michael and Daisy Adams at the penalty phase; and (7) the postconviction court erred by denying Cummings-EPs claim that the cumulative effect of trial counsel’s errors resulted in ineffective assistance of counsel.

In view of the thorough and well-prepared order of the trial court, we find it unnecessary to discuss each of Cummings-EPs claims and affirm the postconviction court’s

summary denial of claims one, two, three, five, six, and seven. We will discuss Cummings-EPs fourth claim that trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase of trial. In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court provided the guidelines for establishing an ineffective assistance of counsel claim: First, the defendant must show that counsel’s performance was deficient.

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

This Court reviews a postconviction court’s Strickland analysis as follows: [T]he performance and prejudice prongs are mixed questions of law and fact subject to a de novo review standard but ... the trial court’s factual findings are to be given deference. See Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999). So long as its decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court. Id.

We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact. Porter v. State, 788 So.2d 917, 923 (Fla.2001). With respect to claims of ineffective assistance of counsel for failing to investigate and present evidence at the penalty phase, the United States Supreme Court recently provided: [Ojur principal concern in deciding whether [counsel] exercised “reasonable professional judgmen[t]” is not whether counsel should have presented a mitigation case.

Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable. In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for “reasonableness under prevailing professional norms,” which includes a context-dependent consideration of the challenged conduct as seen “from counsel’s perspective at the time.” Wiggins v. Smith, — U.S.-, - — -, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (citations omitted).

During the penalty phase of this case, trial counsel Theodore Mastos presented the testimony of two of Cummings-El’s sisters, Catherine Covington and Diane St. Fleur. They testified that Cummings-El was good to his family, was not violent, and was innocent of the crime. Cummings-El argues that Mastos should have conducted a more thorough investigation to determine whether there was additional mitigating evidence relating to his personal history and to his mental health. The postconviction court held a six-day evidentiary hearing on this issue.

During the hearing, Cummings-El presented testimony from six family members, his middle school principal, his girlfriend, and a childhood friend. These witnesses generally testified as to Cummings-El’s family, upbringing, relationship with his children, personal character, work history, and past drug and alcohol use. Cummings-El also presented three mental health experts who testified regarding Cummings-El’s mental state at the time of the crime and whether he suffered from brain damage. Dr.

Lynn Schram, a clinical neuropsy-chologist, testified that the only case in which he had been qualified to testify as a neuropsychologist was a civil case and that he was not an expert on legal issues. Dr. Schram then testified regarding the tests that he performed on Cummings-El. Dr. Schram concluded that Cummings-El suffers from an attention/concentration problem that could be indicative of some organic brain damage. Dr. Schram further testified that he could not diagnose brain damage with certainty, nor could he find that Cummings-El was impaired in his everyday functioning. Dr.

Merry Haber, a forensic psychologist, testified that she was asked to evaluate Cummings-El and develop a psychosocial history to determine whether there were any mitigating factors that would affect Cummings-El’s death sentence. Dr. Haber concluded that Cummings-El suffers from antisocial personality disorder and exhibits features of obsessive compulsive personality disorder, both arising from his poor upbringing. Dr. Haber stated that she believed that Cummings-El knew his conduct was wrong and that she could not diagnose brain damage with certainty. Lastly, Dr.

Bruce Frumkin, a forensic clinical psychologist, testified regarding his evaluation of Cummings-El. Dr. Frumkin concluded that Cummings-El did not suffer from antisocial personality disorder, but rather, Cummings-El suffered from depression, polysubstance abuse, and cognitive inflexibility or “tunnel vision” that could be caused by some organic brain damage. Dr. Frumkin further testified that Cummings-El’s attention impairment could be caused by something other than a neurological impairment. In response, the State presented the testimony of Dr. John Spencer, a clinical forensic psychologist, and Dr.

Jane Ansley, a neuropsychologist. Dr. Spencer testified that his evaluations of Cummings-El revealed no significant brain damage or gross cognitive impairments. He concluded that Cummings-El had antisocial personality disorder. Dr. Spencer also used a video interview of Cummings-El to reveal Cummings-El’s ability to adapt his behavior to changing situations, contradicting a diagnosis that Cummings-El experienced “tunnel vision.” Dr.

Ansley testified that her review of Cummings-El’s medical history, the raw data obtained by the other experts in this case, and the results of the tests she administered to Cummings-El indicated that Cummings-El had no organic brain damage or executive function deficit. Dr. Ans-ley concluded that Cummings-El has antisocial personality disorder. She further testified that she disagreed with Dr. Schram’s conclusion that Cummings-El experienced an attention/concentration deficit and that she believed that Cummings-El’s executive functioning was intact.

The State also presented the testimony of Theodore Mastos, Cummings-El’s trial counsel. Mastos testified regarding his career as an attorney and his experience handling capital cases. Mastos testified that Cummings-El was adamant about not wanting his family to “beg for his life” because Cummings-El believed he would be found innocent. Mastos became concerned about Cummings-El’s refusal to provide information and witnesses, and sought to ensure that Cummings-El’s refusal was knowing and intelligent. Mastos therefore requested that Cummings-El be evaluated. Dr.

Sanford Jacobson evaluated Cummings-El and concluded that he was indeed competent to make the decision to waive a mitigation defense, he suffered from no mental illness, and he understood the nature and consequences of his decision not to present mitigating evidence. Mastos testified that, given his client’s wishes during the penalty phase, his strategy was to present Cummings-El in a positive light.

Mastos therefore did not present evidence of Cummings-El’s drug use, poor upbringing, or that he came from a family whose members had substantial criminal charges and convictions, because he believed that such evidence would have an adverse effect on the jury. Mastos further stated that had he determined that Cummings-El suffered from antisocial personality disorder, he would not have presented that fact to the jury because to do so would have been inconsistent with his strategy. Mastos had remained successful in keeping out the details of Cummings-El’s prior convictions.

In its detailed order denying relief on this issue, the postconviction court found that Mastos’s strategy to present positive aspects of Cummings-El’s personality and to prevent negative evidence from being introduced was reasonable, particularly in light of the fact that Cummings-El made it extremely difficult for Mastos to obtain mitigating evidence. The court further found that the testimony of Cummings-El’s friends and family members presented at the evidentiary hearing was essentially the same as the evidence presented at the penalty phase.

Moreover, the court noted that if Mastos had presented this additional testimony, it would have opened the door to extremely damaging testimony about Cummings-El on cross-examination. See Breedlove v. State, 692 So.2d 874, 877-78 (Fla.1997) (holding that trial counsel was not ineffective for failing to present testimony of friends and family members that would have been subject to cross-examination that would have countered any value defendant might have gained from favorable evidence). The court evaluated the mental health expert testimony as follows: This Court found the video tape of the interview of Dr.

Spencer and the Defendant very helpful. The Court observed first hand how the Defendant has the ability to change his behavior as the situation changed. Additionally, the testimony of Dr. Ansley was extremely credible. Dr. Ansley had the benefit of the work of the other experts, and took it another step. Dr. Ansley concluded that the Defendant does not suffer from organic brain damage. While Dr. Schram concluded that the Defendant may have brain damage, he is a neuro-psychologist, not a forensic neuropsychologist. Dr. Schram has very little experience in the area of forensic cases. Dr.

Ansley, on the other hand, is a forensic neuro-psychologist with vast experience, having worked on several hundred forensic cases. Due to her experience and expertise in the forensic neuropsychology field, and the thoroughness of her work in this case, this Court finds her testimony to be extremely credible. The postconviction court therefore concluded that Cummings-El had not met his burden of proving that trial counsel’s conduct at the penalty phase was deficient.

The court further stated that it was “confident in the outcome of the penalty phase, as [Cummings-El] has failed to show that even if counsel’s assistance was ineffective, that there was a reasonable probability that but for the errors complained of, the result would have been different.” We find that the factual findings described above are supported by competent, substantial evidence. Applying the law to these facts, we find no error in the post-conviction court’s denial of relief based upon that court’s detailed evaluation of the evidence.

Cummings-El has failed to establish that the outcome of his case would have been different had trial counsel presented the proposed mitigating evidence. PETITION FOR WRIT OF HABEAS CORPUS In his petition for writ of habeas corpus, Cummings-El asserts: (1) appellate counsel was ineffective for failing to argue that the trial court committed fundamental error by allowing prejudicial testimony and prosecutorial misconduct; (2) appellate counsel was ineffective for failing to ensure proper preparation of the record on appeal; and

(3) Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders Florida’s capital sentencing scheme unconstitutional. Habeas Issue 1: Prejudicial Testimony and Prosecutorial Misconduct Cummings-El contends that his appellate counsel was ineffective for failing to raise on direct appeal the claims that the trial court committed fundamental error by allowing the introduction of prejudicial testimony and by allowing improper prosecutorial comments during the penalty phase.

When evaluating an ineffective assistance of appellate counsel claim raised in a writ of habeas corpus, this Court must determine first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986).

The defendant must allege a specific, serious omission or overt act upon which the claim of ineffective assistance can be based. Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). In the absence of fundamental error, an appellate attorney has no obligation to raise an issue that was not preserved for review. Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000). Fundamental error is error that “reaches down into the validity of the trial itself to the extent that the verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996).

We find that Cummings-El’s appellate counsel was not ineffective for failing to raise the unpreserved claims regarding witness testimony and prosecutorial comments because no fundamental error occurred. Cummings-El’s first subclaim involves the penalty-phase testimony of Michael and Daisy Adams. Cummings-El contends that this testimony was cumulative and unduly prejudicial. The record reveals, however, that the witnesses’ testimony at these stages was wholly unrelated.

During the guilt phase, these witnesses testified with respect to the incidents surrounding the victim’s death and the victim’s identification of Cummings-El as the perpetrator. During the penalty phase, these witnesses testified regarding the victim’s consciousness and awareness of her impending death. The witnesses’ testimony at the guilt and penalty phases was therefore not cumulative or unduly prejudicial but was directly relevant to the facts at issue in each separate phase.

In his second subclaim, Cummings-El contends that appellate counsel was ineffective for failing to assert that the trial court committed fundamental error by allowing the prosecutor to (1) comment on nonstatutory aggravation; (2) suggest that there were matters outside the record that the trial court could consider in determining the ultimate sentence; (3) bolster the weight of the State’s evidence by arguing that the trial court had already sanctioned the existence of the felony murder aggravator; (4) argue future dangerousness; and (5) work to inflame the passions of the jury by inviting it to imagine the victim’s pain and suffering as it acted out the victim’s last moments of life.

We find that the record does not support Cummings-El’s assertions with regard to these claims. The record instead reveals that the prosecutor’s statements did not give rise to any of the errors listed above. Cummings-El has therefore failed to establish fundamental error with regard to these claims. Habeas Issue 2: Proper Preparation of the Record Cummings-El claims that appellate counsel was ineffective for failing to include in the record a hearing during which the trial court addressed whether appointed trial counsel was ineffective.

He asserts that in that hearing, the trial court failed to conduct an adequate inquiry into Cummings-El’s claims of ineffective assistance of trial counsel, failed to rule on the motion as required by Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988), and failed to inform Cummings-El of his right to self-representation. This Court addressed a trial court’s obligation regarding claims of incompetent counsel in Morrison v. State, 818 So.2d 432, 440 (Fla.2002): In Hardwick v. State, 521 So.2d 1071 (Fla.1988), this Court adopted the procedure announced in Nelson v.

State, 274 So.2d 256 (Fla. 4th DCA 1973), to be followed when a defendant complains that his appointed counsel is incompetent. When this occurs, the trial judge is required to make a sufficient inquiry of the defendant to determine whether or not appointed counsel is rendering effective assistance to the defendant. See Howell v. State, 707 So.2d 674, 680 (Fla.1998). However, as a practical matter, the trial judge’s inquiry can only be as specific as the defendant’s complaint. See Lowe v. State, 650 So.2d 969 (Fla.1994).

This Court has consistently found a Nelson hearing unwarranted where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made. See Davis v. State, 703 So.2d 1055, 1058-59 (Fla.1997); Chudinas v. State, 693 So.2d 953, 962 n. 12 (Fla.1997); Branch v. State, 685 So.2d 1250, 1252 (Fla.1996). Similarly, a trial court does not err in failing to conduct a Nelson inquiry where the defendant merely expresses dissatisfaction with his attorney. See Davis, 703 So.2d at 1058-59; Branch, 685 So.2d at 1252; Dunn v.

State, 730 So.2d 309, 311-12 (Fla. 4th DCA 1999). A review of the transcript from the January 4, 1993, hearing reveals that although Cummings-El made general allegations of dissatisfaction, he did not make an express allegation of attorney incompetence. The trial court asked Cummings-El why he believed his trial counsel should be removed from the case. Cummings-El responded only that he believed trial counsel was siding with the prosecution in trying to persuade him to accept a plea and that trial counsel was not meeting with him on a regular basis.

The record reveals that the trial court indeed specifically inquired into Cummings-El’s claims and, based on Cummings-El’s responses, concluded that there was no need for the court to conduct a separate hearing on this claim. We find that the record supports the trial court’s findings in this regard and that Cummings-El’s general allegations did not establish a sufficient basis to compel the trial court to hold a hearing to determine attorney competence. Morrison, 818 So.2d at 440.

Accordingly, Cummings-El has not established that appellate counsel erred by failing to include the transcript of the hearing on appeal. Appellate counsel cannot be ineffective for failing to raise a claim that would have been rejected on appeal. Lambrix v. Singletary, 641 So.2d 847, 848-49 (Fla.1994). Habeas Issue 3: Ring v. Arizona Cummings-El asserts that his death sentence is unconstitutional in light of the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We have denied relief for postconviction claims based upon this argument. See Bottoson v.

Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). We likewise deny Cummings-El’s claim. CONCLUSION Accordingly, we affirm the trial court’s denial of Cummings-El’s rule 3.850 motion and deny Cummings-El’s petition for writ of habeas corpus. It is so ordered. WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ„ concur. PARIENTE, J., concurs specially with an opinion. ANSTEAD, C.J., concurs in part and dissents in part with an opinion. .

On direct appeal, Cummings-El asserted: (1) the trial court erred in striking two jurors for cause; (2) the trial court erred in commenting on the defendant’s right to remain silent; (3) the trial court erred in instructing on the HAC aggravating factor; (4) the trial court erred in finding HAC applicable; (5) the trial court erred in finding CCP applicable; and

(6) Cummings-El’s death sentence was disproportionate. .

In this motion, Cummings-El asserted: (1) trial counsel was ineffective for failing to preserve for appellate review the issue of the improper exclusion by the trial court of two venirepersons for cause; (2) trial counsel was ineffective for failing to call Daphne Roberts as a witness; (3) trial counsel was ineffective for failing to request separate verdict forms for the alternate theories of premeditation and felony murder, and for failing to object to the State's argument regarding the alternate theories; (4) trial counsel was ineffective for failing to object to the trial court’s improper comment before the jury regarding Cummings-El’s right to remain silent; (5) trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of trial; (6) the trial court erred in applying murder in the course of a felony and CCP as aggravating factors because they were duplicative of the underlying theories of premeditation and felony murder; (7) the trial court improperly weighed the aggravating and mitigating factors; (8) trial counsel was ineffective for failing to request a second-chair lawyer to assist him during the trial; (9) cumulative errors that occurred during trial deprived Cummings-El of a fair trial; (10) the trial court improperly considered Cummings-El's statement that he wanted to be sentenced to death if he was found guilty; and

(11) Florida’s death penalty is an unconstitutional form of cruel and unusual punishment. . Huff v. State, 622 So.2d 982 (Fla.1993). .

Cummings-El’s additional claims were: (12) trial counsel was ineffective for failing to argue that CCP was not applicable in a domestic case; (13) trisil counsel was ineffective for failing to object to the cumulative testimony of Daisy and Michael Adams in the penalty phase; and (14) trial counsel was ineffective for failing to interview Cummings-El’s mother and sister for mitigation purposes. .Cummings-El asserted: (15) the victim's son, Tadarius Williams, had recanted his identification testimony of Cummings-El after the trial. .

We find that the record clearly establishes that these six claims are without merit. The trial court order in respect to these claims is attached as Appendix I. . The portion of the trial court’s order denying this claim is attached as Appendix II.