Michael Gordon REYNOLDS, Appellant, v. STATE of Florida, Appellee.; Michael Gordon Reynolds, Petitioner, v. Kenneth S. Tucker, etc., Respondent, 99 So. 3d 459

PER CURIAM. Michael Gordon Reynolds appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentences of death under Florida Rule of Criminal Procedure 8.851 and petitions this Court for a writ of habe-as corpus. We have jurisdiction. See art. Y, § 3(b)(1), (9), Fla. Const. For the reasons provided below, we affirm the denial of the rule 3.851 motion and deny his petition for a writ of habeas corpus.

Background Trial Court Proceedings A jury convicted Michael Gordon Reynolds of first-degree murder in connection with the deaths of Robin Razor and her eleven-year-old daughter, Christina Razor; second-degree murder in the death of Danny Ray Privett, Christina’s father; and burglary of a dwelling during which a battery upon Robin or Christina or both was committed while Reynolds was armed with a weapon. See Reynolds v. State, 934 So.2d 1128,1137 (Fla.2006). The jury recommended death by a unanimous vote for the murders of Robin and Christina Razor. See id. at 1138.

The trial court sentenced Reynolds to life in prison for the murder of Privett and the burglary conviction, and sentences of death for the murders of the Razors, all to run concurrently. See id. In our opinion that affirmed the imposition of the death penalty, this Court detailed the following facts with regard to the underlying crimes: The circumstances surrounding the crimes involved in this matter and the nature of the physical evidence cause the facts established at trial to be crucial in our analysis of this case.

Specifically, we note that physical evidence produced at trial placing Reynolds at the scene of the crimes, inconsistencies in Reynolds’ statements to the authorities regarding injuries he sustained on the evening the murders were committed, and evidence tending to establish his involvement in the murders are all important to our decision to affirm Reynolds’ convictions and sentence.... On July 22, 1998, the bodies of the victims were found on the property located at 1628 Clekk Circle in Geneva, Florida.

Danny’s body was found outside near a large pine tree, and the bodies of Robin and Christina were found inside a trailer in which the victims were living. The evidence established that on July 22, 1998, Shirley Razor, the mother of victim Robin Razor, traveled to the crime scene to deliver items Danny used in the work he was doing on trailers at that location. Upon arriving at the property, Shirley noticed Danny lying on the ground outside. Shirley, being accustomed to seeing Danny drunk and passed out, proceeded to her separate trailer on the property and ate her lunch.

After finishing her lunch, Shirley walked over to the trailer in which Danny and Robin were living when she noticed that Danny had a “hole in his head.” After discovering that Danny was dead, Shirley ran to a neighbor’s residence and called the authorities. Subsequent to the arrival of the fire department personnel, Shirley went to her daughter’s trailer and upon looking inside found that her daughter, Robin, and her granddaughter, Christina, were inside and apparently dead. At trial, a medical examiner, Dr.

Sara Hyatt Irrgang, testified that the deaths had occurred at least eight hours, but probably more than twelve hours prior to her arrival at the crime scene, placing the time of death between nine p.m. on July 21 and seven a.m. on the morning of July 22. The evidence demonstrated that Danny Ray Privett was found lying outside beneath a large pine tree on his side with his face down, surrounded by bloody pieces of concrete block and broken pieces of glass. Danny’s jeans were partially unzipped suggesting that he had been in the process of urinating when the attack occurred.

The autopsy of Danny Ray Privett revealed that he suffered a large depressed skull fracture with additional injuries to the head area. The wounds appeared to have been caused by three or more separate blows, with the injuries indicating that the assailant had been behind the victim. There was no indication of any defensive wounds on Danny, and examination of his major skull injury revealed that the injury was likely caused by a partially broken cinder block, based on fragments found within the wound. The medical examiner was unable to determine the order in which the injuries had been inflicted upon him.

The cause of death for Danny was determined to be primarily due to blunt force trauma to the head with the large depressed skull fracture probably being the fatal blow. If this blow had been inflicted first, the medical examiner opined that the victim would have lost consciousness within a second to a minute or two. Robin and Christina Razor were found dead inside the living room portion of the camper trailer being used as living quarters. Robin was found lying on the ■floor, face up. Christina was found nearby sitting on the couch and leaning to her left.

The living room area was in disarray and a large amount of blood was scattered throughout this area of the trailer. Robin Razor’s autopsy revealed that she suffered multiple stab wounds along with multiple blows to the side of her face and a broken neck resulting in injuries to her spinal cord. Closer examination revealed that Robin suffered ten stab wounds to the head and neck area and one to the torso area. The wounds appeared to have been inflicted with a sharp object such as a knife or scissors.

Based on examination of [] Robin’s body and the defensive wounds present, the medical examiner opined that she had been involved in a violent struggle. In addition to the above wounds, Robin suffered multiple superficial wounds to her torso area which the medical examiner stated to be consistent with torment wounds— wounds produced not to cause serious injury but to cause aggravation and produce fear in the victim.

The medical examiner was of the opinion that because blows to the victim’s head were inflicted at different angles and the presence of significant defensive wounds, it was likely that she was conscious and struggling when these wounds were inflicted. The primary cause of death for Robin was determined to be the broken neck and spinal cord injury, although bleeding from the stab wounds would have also resulted in death.

The autopsy of Christina Razor revealed that she suffered blunt force trauma to her head, a stab wound to the base of her neck that pierced her heart, and another stab wound to her right shoulder that pierced her lung and lacerated her pulmonary artery. These latter two wounds would have resulted in significant internal and external hemorrhaging and would have been fatal. The medical examiner indicated that the only sign of defense wounds to Christina was the presence of a small contusion to her left hand, which could have occurred as she attempted to block a blow from her assailant.

The medical examiner opined that Christina would have lost consciousness within a minute or two of receiving the stab wounds. The primary cause of death for Christina was determined to be internal and external hemorrhaging. During his investigation of the crimes, Investigator John Parker of the Seminole County Sheriffs Department made contact with Reynolds and requested that he submit to an interview, to which Reynolds voluntarily agreed. During this interview, Investigator Parker also inquired about injuries that he observed on Reynolds’ hand and ankle.

In response to inquiries made about these injuries, Reynolds advised the investigator that at approximately five a.m. on the morning that the victims’ bodies were discovered, he was taking his dog outside and slipped on the exterior step of his camper, twisting his ankle. Reynolds stated that the cut on his hand occurred when he caught his hand on a burr on the aluminum door frame of his trailer as he attempted to break his fall by grabbing the door frame.

Reynolds advised the investigator that approximately thirty or forty minutes after sustaining the injuries he cleaned the cut to his hand and proceeded to an emergency room for treatment. Reynolds stated that while on his way to the emergency room he suffered a flat tire and borrowed a jack from a convenience store to change his tire and after doing so he proceeded to the emergency room. After receiving treatment for his injuries, Reynolds informed the investigator that he returned to his residence and removed the burr from the trailer door frame with a pair of channel-lock pliers.

In addition to the discussion concerning the injury, Reynolds also discussed an altercation in which he was involved with Danny Ray Privett regarding a trailer that was allegedly given to Reynolds by his landlord. According to Reynolds, the argument with Danny was centered upon Danny removing the trailer from Reynolds’ property without permission. Upon discovering that Danny had removed the trailer, Reynolds indicated that he confronted Danny and a heated argument ensued.

Reynolds stated that after exchanging words with Danny, he left Danny’s property but returned a short while later to apologize and advise Danny that he could keep the trailer. Significantly, during this interview Reynolds advised the investigator that he had never been inside the trailer in which the victims were living. Subsequent to this interview, Reynolds gave permission for the search of both his trailer and his vehicle, and he also agreed to provide hair and blood samples for DNA analysis. Additionally, pursuant to a search warrant certain evidence was seized from Reynolds’ vehicle and residence.

At trial, a neighbor of the victims testified that on the night prior to the discovery of the bodies he observed a car similar to that of Reynolds!’] parked at the victims’ residence. Fingerprint and shoe pattern analysis of the crime scene and items collected from the scene revealed several prints of value, but none of them connected Reynolds to the scene. However, extensive evidence with regard to DNA analysis resulting from testing of items of evidence recovered from the crime scene was presented.

Several of the items recovered from the crime scene inside the trailer and on the exterior of the trailer contained a DNA profile matching that of Reynolds. There was no eyewitness testimony offered by the State and, other than the concrete block allegedly used to strike the victims, no other weapon was recovered. The defense attempted to establish mishandling and contamination of the evidence, along with suggesting that other individuals had committed the crimes with which Reynolds had been charged....

After hearing all the evidence, the jury rendered a verdict finding Reynolds guilty of second-degree murder as to the death of Danny Pri-vett, two counts of first-degree murder as to the deaths of Robin and Christina Razor, and burglary of a dwelling during which a battery was committed while Reynolds was armed with a weapon. Id. at 1134-37. In rendering the death sentence, the trial court determined that the State had proven the existence of four statutory aggravating factors in the murder of Robin Razor:

(1) Reynolds had previously been convicted of aggravated robbery, aggravated assault, and aggravated battery in incidents prior to those associated with the present case, see § 921.141(5)(b), Fla. Stat. (2003);

(2) Reynolds committed the capital felony while he was engaged in or was an accomplice in the commission of or an attempt to commit a burglary of a dwelling, see § 921.141(5)(d), Fla. Stat. (2003); (3) the capital felony was committed for the purpose of avoiding a lawful arrest, see § 921.141(5)(e), Fla. Stat. (2003); and (4) the capital felony was committed in an especially heinous, atrocious, or cruel fashion, see § 921.141(5)(h), Fla. Stat. (2003). See Reynolds, 934 So.2d at 1138. The trial court assigned each of these aggravators great weight. See id. As to the murder of Christina Razor, the trial court found that the State had proven the existence of five statutory ag-gravators:

(1) Reynolds had previously been convicted of aggravated robbery, aggravated assault, and aggravated battery in incidents prior to those associated with the present case, see § 921.141(5)(b);

(2) Reynolds committed the capital felony while he was engaged in or was an accomplice in the commission of or an attempt to commit a burglary of a dwelling, see § 921.141(5)(d); (3) the capital felony was committed for the purpose of avoiding a lawful arrest, see § 921.141(5)(e); (4) the capital felony was committed in an especially heinous, atrocious, or cruel fashion, see § 921.141(5)(h); and (5) the victim of the capital felony was a person less than twelve years of age, see § 921.141(5)(i), Fla. Stat. (2003). See Reynolds, 934 So.2d at 1138. The trial court assigned each of these aggravators great weight.

See id. In the analysis of mitigation evidence, the trial court acknowledged that Reynolds had waived the presentation of such evidence, but considered and weighed any mitigation of which it was aware. The trial court found the following nonstatuto-ry mitigating circumstances to be applicable to the murders of both Robin and Christina Razor, see 921.141(6)(h), Fla. Stat. (2003):

(1) Reynolds had been gainfully employed; (2) he manifested appropriate courtroom behavior throughout the proceedings; (3) he cooperated with law enforcement; and (4) he had a difficult childhood. The court assigned each of these factors little weight. See Reynolds, 934 So.2d at 1138-39. The court determined that the evidence did not establish that Reynolds could easily adjust to prison life. See id. at 1139.

The court recognized that Reynolds had attempted to present evidence to establish lingering doubt, but ruled that it would not consider any theory of lingering doubt as nonstatu-tory mitigation in the sentencing analysis. See id. On direct appeal, this Court affirmed the convictions and sentences. See id. at 1161. Reynolds filed a petition for writ of certio-rari in the United States Supreme Court, which was denied on January 8, 2007. See Reynolds v. Florida, 549 U.S. 1122, 127 S.Ct. 943, 166 L.Ed.2d 721 (2007).

Postconviction Proceedings On December 28, 2007, Reynolds filed a motion to vacate and set aside his convictions and sentences pursuant to rule 3.851. The motion set forth the following claims:

(1) State misconduct in allowing DNA expert Charles Badger to testify that DNA from Reynolds was found on vaginal swabs from Christina Razor and introduce an unsupported sexual battery theory and (2) a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in a failure to disclose the extent of the involvement of a lab technician in the DNA testing and the lack of integrity of a deputy.

The motion also set forth that trial counsel were ineffective for: (3) failing to object to or cure the testimony of Charles Badger; (4) failing to object to the theory of sexual battery as a motive for the homicides; (5) failing to object to the repetition of the sexual battery theory in the closing statement from the State or to rebut the theory effectively in closing; (6) failing to object to a misstatement of law regarding the burdens of proof stated by the trial court during voir dire, and in not moving for a mistrial; (7) failing to conduct proper and reasonable voir dire; (8) informing prospective jurors during voir dire of prior criminal convictions although no “Williams Rule” notice had been filed; (9) failing to request a jury interview to determine whether any jurors had seen a memorial to the victims constructed outside the courtroom, and for not moving for a mistrial based on the presence of the memorial; (10) failing to object to thirty-seven autopsy photographs being placed into evidence; (11) failing to object to lay witness testimony concerning metallurgical issues of a trailer door; (12) failing to object to testimony concerning a prior arrest on a warrant from Hillsbor-ough County; (13) failing to object to lay witness testimony concerning the condition of clothing on the day of the homicides; and (14) failing to properly present certain issues to the jury and failing to preserve those issues for appeal.

He also asserted

(15) Section 27.702, Florida Statutes (2004), which mandates the duties of capital collateral regional counsel, is unconstitutional;

(16) Florida Rule of Criminal Procedure 3.575 and Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibited trial counsel from interviewing jurors to determine if constitutional error was present, violates the federal and Florida constitutions; and (17) the cumulative errors of trial counsel deprived Reynolds of a fair trial. Reynolds requested an evidentiary hearing for all claims. On April 3, 2008, the postconviction court held a Huff hearing, after which it summarily denied claims 1, 2, 3, 6, 11, and 13.

The postconviction court held that claims 15 and 16 did not require an evidentiary hearing, and deemed claim 17, regarding cumulative error, premature. Due to a conflict, Capital Collateral Regional Counsel was discharged before the evidentiary hearing. Reynolds acted pro se for a short time before new counsel was appointed. After new counsel was appointed, Reynolds filed an amended motion to vacate his convictions and sentences and requested an evidentiary hearing. This amended motion added five claims to his original motion. These claims were that: (

I) trial counsel were ineffective for failing to investigate and present evidence of substantial mitigation, including mental health mitigation; (II) trial counsel were ineffective for failing to investigate or present testimony to support the defense theory that reasonable doubt of guilt existed due to a conflict in the evidence, or that the evidence was legally insufficient for a conviction and failing to support an alternative theory that persons other than Reynolds killed the decedents; ■ (III) the lethal injection procedure in Florida violates the federal and Florida constitutions because it constitutes cruel and/or unusual punishment; (IV) trial counsel were ineffective for failing to request removal of a sleeping juror who had been admonished and then proceeded to fall asleep during critical testimony; and (

V) trial counsel were ineffective for failing to prepare Reynolds to testify after informing the jury that he would testify and after trial counsel informed potential jurors that Reynolds was a convicted felon. On August 10, 2009, the postconviction court held a second Huff hearing and summarily denied claims III, IV, and V. The postconviction court thereafter granted an evidentiary hearing on claims 4, 5, 7, 8, 9, 10, 12, 14, I, and II. After the evidentiary hearing, the postconviction court rendered a final order that denied all of the claims. This appeal followed.

We first address the summarily denied claims and follow with an analysis of the other claims denied after the evidentiary hearing. Rule 3.851 Proceeding Standard of Review In determining whether an evidentiary hearing is required on an initial rule 3.851 motion, in Seibert v. State, we held that: [A] court cannot look beyond the filings. An evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. {See Amendments to Fla. Rules ofCrim.

Pro. 3.851, 772 So.2d 488, 491 n. 2 (Fla.2000) (hereinafter "Amendments I ”) (endorsing the proposition that “an evidentiary hearing is mandated on initial motions which assert ... legally cognizable claims which allege an ultimate factual basis”); see also Fla. R.Crim.

P. 3.851(f)(5)(A)(i) (providing that, on initial motions, an evidentiary hearing is required “on claims listed by the defendant as requiring a factual determination”).] On an initial rule 3.851 motion, to the extent there is any question as to whether the movant has made a facially sufficient claim requiring a factual determination, the court must presume that an eviden-tiary hearing is required.

See Amendments I, 772 So.2d at 492 n. 2 (stating that adoption of provision addressing ev-identiary hearings is consistent with Court’s endorsement of a presumption in favor of evidentiary hearings on initial postconviction motions raising factually based claims). In other words, a post-conviction claim may be summarily denied only when the claim is “legally insufficient, should have been brought on direct appeal, or [is] positively refuted by the record.” Connor v. State, 979 So.2d 852, 868 (Fla.2007). 64 So.3d 67, 75 (Fla.2010).

The decision of a trial court of whether to grant an evidentiary hearing on a rule 8.851 motion is ultimately based on written materials before the court and its ruling is tantamount to a pure question of law, subject to de novo review. See id. at 75; State v. Coney, 845 So.2d 120, 137 (Fla.2003). This Court will affirm the

summary denial of a postconviction claim only when the claim is conclusively refuted by the record. See Seibert, 64 So.3d at 75. Reynolds contends that his de- ' fense attorneys were ineffective during both the guilt and penalty phases of the trial. Claims of ineffective assistance of counsel are reviewed under the two-pronged standard established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must establish that the performance of counsel was deficient. See id. at 687, 104 S.Ct. 2052.

To do this, the defendant must identify specific acts or omissions that demonstrate the performance of counsel was unreasonable under prevailing professional norms. Hoskins v. State, 75 So.3d 250, 253-54 (Fla.2011). “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).

The defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, the defendant must establish that the deficit performance of counsel prejudiced the defendant. See id. The defendant must demonstrate 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” of the trial.

See id. at 694, 104 S.Ct. 2052. This Court employs a mixed standard of review when reviewing Strickland claims because the standard presents mixed questions of law and fact. See Anderson v. State, 18 So.3d 501, 509 (Fla.2009). We defer to the factual findings of the postconviction court that are supported by competent, substantial evidence, but review the legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771 (Fla.2004).

Claims Denied Without an Evidentiary Hearing Testimony of FDLE Analyst Charles Badger Reynolds first alleges that the postconviction court erred in summarily denying the claim that trial counsel were ineffective for their failure to object to or cure the allegedly false testimony of Florida Department of Law Enforcement (FDLE) senior crime laboratory analyst Charles Badger.

The trial transcript reflects the testimony of Badger with regard to the DNA testing performed on the vaginal swabs from Christina Razor as follows: “[A]nd those results that were obtained were found to be consistent with Christina Razor and Michael Reynolds. Robin Razor and Danny Privett were excluded from being the donors of the DNA profile observed.” (Emphasis supplied.) In contrast to the words recorded in the written transcript, however, Badger’s report indicated that Reynolds was excluded as a donor of the DNA profile that was derived from the swabs.

During the postconviction process, the State filed a motion to correct the record. It attached an affidavit from the court reporter (in addition to a tape recording of the testimony) stating that the transcript should have read as follows: “[A]nd those results that were obtained were found to be consistent with Christina Razor. And Michael Reynolds, Robin Razor and Danny Privett were excluded from being the donors of the DNA profile observed.” (Emphasis in original.) The trial court denied the State’s motion.

In this case, the claim that trial counsel were ineffective for permitting Badger to testify without objection is conclusively refuted by the record. First, after the direct appeal, the State provided the postconviction court with an affidavit from the court reporter at the trial. The affidavit states that the reporter simply misplaced the period in the disputed statement — that it should have been placed before the words “and Michael Reynolds,” thus excluding him as a donor of the DNA found on the vaginal swabs.

The affidavit states that the court reporter mistyped the relevant testimony, not that Badger misspoke at trial. Second, during the postconviction evi-dentiary hearing, one of the defense attorneys testified that he did not object to Badger’s statement because he did not believe that Badger had testified falsely. Rather, counsel testified that he believed that the amended transcript accurately reflected what he had heard at trial-that Reynolds was excluded as a donor of the DNA that Badger derived from the vaginal swabs of Christina Razor.

Upon review of a recording of Badger’s testimony, trial counsel confirmed that this was why he did not object at trial. We conclude that the performance of defense counsel was not deficient under Strickland because counsel decided not to object to correct trial testimony. See Williams v. Sec’y, Dep’t of Corr., No. 8:07-cv-591-T-33TBM, 2009 WL 910789, at *10 (M.D.Fla. Apr. 2, 2009) (holding that counsel cannot be considered ineffective for failing to object to a correct statement); Franqui v. Fla., No. 07-22384-CIV, 2008 WL 2747093, at *14 (S.D.Fla. July 10, 2008); Payne v.

United States, 546 F.Supp.2d 1312, 1319 (M.D.Fla. 2008). Third, even if the performance of defense counsel was deficient for not moving to clarify the Badger statement, this failure did not affect the jury’s verdict and thus did not prejudice Reynolds. The State presented testimony that no semen was found on the vaginal swab from Christina. Another FDLE crime laboratory analyst testified that she found no semen on the vaginal, oral, and anal swabs taken from both Christina and her mother, thereby contradicting the allegedly inaccurate statement.

Therefore, even if there was some confusion because of the trial testimony from Badger regarding DNA evidence, the other FDLE analyst clearly established that no semen from Reynolds was found inside of Robin or Christina Razor. Fourth, the report prepared by Badger addressing the results of his DNA analysis of the swabs at issue which were referenced during the testimony contradicts the postconviction claim. This report reflects that DNA from Reynolds was not found in Christina or her mother. Fifth, the State presented different DNA evidence that linked Reynolds to the crime.

During the police investigation following the murders and before Reynolds was formally arrested, Reynolds stated that he had never been in the trailer where the bodies were found. Investigators, however, found substantial DNA evidence connecting Reynolds to the inside of the trailer. Investigators recovered a pubic hair from a towel and pillow found at the crime scene with DNA that matched the known profile of Reynolds.

Badger testified that the DNA from that pubic hair matched the known DNA profile of Reynolds to the exclusion of one in thirty quintillion other Caucasians, one in fourteen sextillion African Americans, and one in eighty-seven quintillion Hispanics based on an FDLE database. Based on a different FBI database, this match was to the exclusion of one in thirty-two quintillion Caucasians, one in thirteen sextillion African Americans, and one in sixty-six quintillion Hispanics. Badger also presented findings that connected the known DNA profile of Reynolds to other items found in and around the trailer.

Badger testified that DNA found on underwear located in the trailer matched the known DNA profile of Reynolds to the same statistical exclusion as the pubic hair. Badger also testified that DNA from a blood sample taken from a piece of wood found above an air conditioning unit, and a switch plate from a cabinet, were matches with the DNA profile of Reynolds. A blanket from the crime scene stained with blood contained DNA that matched the DNA profiles of Robin and Christina Razor and Reynolds.

The State presented an extensive amount of DNA evidence to link Reynolds to the crimes which refuted the claim that he had never been in the Razor trailer. Sixth, although the DNA evidence alone does not establish that Reynolds attempted a sexual battery upon Christina before he killed her, other evidence was available for the State to argue in its closing statement that supported an attempted sexual battery theory. Christina’s underwear was found on the floor of the trailer where she and her mother lived and were killed.

Christina’s body was in a nightgown, but not underwear, while Robin was wearing a T-shirt, shorts, underwear, and jewelry. Christina’s grandmother testified that Christina always slept with her underwear on. Therefore, the State’s attempted sexual battery theory is not inconsistent with the facts and evidence presented during trial. See Hodges v. State, 55 So.3d 515, 537 (Fla.2010) (“Attorneys are permitted wide latitude in closing arguments but are not permitted to make improper argument.”) (cert. denied, — U.S. -, 132 S.Ct. 164, 181 L.Ed.2d 77 (2011)); Thomas v.

State, 748 So.2d 970, 984 (Fla.1999) (noting that attorneys are permitted to advance all legitimate arguments that derive from logical inferences drawn from the evidence). Thus, we conclude that there is no reasonable possibility that the alleged deficiency to object or cure the purportedly false testimony of Badger affected the jury’s verdict. In sum, the

summary denial of this claim by the postconviction court is supported by the record, which provides evidence to conclusively refute the claim asserted by Reynolds. We further conclude that Reynolds was not prejudiced by a failure to object to the Badger testimony or to the attempted sexual battery theory. Consequently, we deny relief on this claim. Burden of Proof Misstatement Reynolds next claims that defense counsel were ineffective for failing to object to a misstatement by the trial court regarding the burden of proof.

During voir dire, the trial court incorrectly stated on one occasion that “the State doesn’t have to do anything, you can’t hold it against them.” It appears evident that the trial court meant to instruct the jurors was “the defense doesn’t have to do anything, you can’t hold it against them.” (Emphasis supplied.) The State claims this issue is procedurally barred and we agree. Although claims of ineffective assistance of counsel generally are not cognizable on direct appeal and are properly raised in postconviction proceedings, see Franqui v. State, 59 So.3d 82, 96 (Fla.2011), this claim is barred.

After voir dire had concluded, the State brought the error to the attention of the original trial court. In response, the trial court stated that even if the instruction had been incorrect, he believed that he “drove [the proper burdens] home enough to where [the jury] understands.” This issue, which pertained to a jury instruction during voir dire, could have been, and should have been, raised on direct appeal, and because it was not, is proee-durally barred. Cf. Franqui, 59 So.3d at 96 n. 14.

An attempt to circumvent the procedural bar by cloaking this claim in the guise of ineffective assistance, therefore, is to no avail. Furthermore, even if the claim was not barred, it lacks merit. Reynolds relies on Murray v. State, 937 So.2d 277, 281 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal deemed the trial judge’s erroneous instruction regarding the burden of proof to be fundamental error. In Murray, the trial judge both orally stated, and provided in written form, an instruction that the defendant carried the burden of proving an affirmative defense beyond a reasonable doubt.

See id. at 280. While reading the written instructions to the jury, the judge faltered over the language, and the Fourth District surmised this was because “it must have occurred to the Judge that there is something improbable about a criminal defendant having a burden of proving any defense beyond a reasonable doubt....” Id. Thereafter, the jury retired to deliberate with the erroneous written instructions and a muddled oral instruction from the judge. See id.

The Murray court held that the contradictory and confusing instructions were given in such a way as to define the legal defense of the defendant out of existence and, therefore, the case should be remanded for a new trial. See id. at 280-81. The Fourth District noted that when juries are provided with both correct and incorrect instructions there is “no reason to believe that [the jury is] likely to intuit which is the correct [instruction].” See id. at 280.

This case, however, involves one isolated misstatement of the burden of proof that occurred during voir dire only, and was amongst more than a dozen correct statements regarding the proper burden of proof, which were stated during both voir dire and the trial. Correct statements from the judge regarding the proper burdens included: Presumptions have long been a part of criminal law. The presumption of innocence is such an example. Our system of justice is accusatorial in nature. That means that the State has the power to accuse, and the responsibilities to prove, a charge against the Defendant.

As a result, a defendant is presumed innocent until proven guilty beyond a reasonable doubt. Do you agree with the principle of law that a person is presumed to be innocent until proven guilty beyond a reasonable doubt? I always ask the State in the presence of all the members of the panel, if they accept the burden of proving the case beyond and to the exclusion of a reasonable doubt? This case is no different. Mr. Hastings, does the State of Florida accept the burden of proof beyond and to the exclusion of a reasonable doubt? ... And to that extent, let me go a little bit further.

You [the jury] need to answer out loud to these questions. Does everybody understand that it is the State’s responsibility to prove the case.... Does everybody understand the Defense doesn’t have to prove anything? (Emphasis supplied.) The State also correctly addressed the burden of proof. Such statements included: [E]ach of the crimes in the State of Florida, no matter what they are, whether it’s a shoplifting or first degree murder, have certain number of elements, and each of those elements, the Judge told you, has to be proven beyond a reasonable doubt.

And you all indicated that before you would find the Defendant guilty, you would make sure that the State proved those elements beyond a reasonable doubt. Now, the burden of proof, as you’ve heard and everything, in a criminal case, it doesn’t matter whether it’s a shoplifting case or a first degree murder case, is beyond a reasonable doubt.... Do you feel that’s [an] appropriate burden? Correct statements from defense counsel regarding the burden of proof included: Do you [the jurors] believe he, in fact, should be presumed to be innocent? That presumption stays with Mr.

Reynolds until such time, if any, that the State Attorney's office proves beyond a reasonable doubt that it should go away; that, in fact, he was guilty. Do you understand that? In a criminal case, the burden of proof is much different, it’s beyond each and every reasonable doubt. Standard is much higher. Do each of you accept that that standard is much higher? Throughout closing statements, the State and the defense addressed the burden of proof, reasonable doubt, and the presumption of innocence multiple times.

For each count with which Reynolds was charged, the judge correctly instructed the jury on the burden of proof and reasonable doubt. Moreover, defense counsel was not ineffective with regard to redressing the misstatement of law. First, the State brought the one misstatement to the attention of the trial judge and defense counsel asked the judge to correct the misstatement. Defense counsel was not deficient because he requested a correction. Second, Reynolds has not shown that this misstatement prejudiced him.

Given the fleeting nature of the misstatement, that it occurred only once and during voir dire, and the numerous references to the correct allocation of the burdens of proof, we disagree with Reynolds that the jury would have been misled or confused as to which party carried the burdens of proof when they retired to deliberate. See Rodriguez v. State, 27 So.3d 753, 756 (Fla. 3d DCA 2010) (holding that the prosecutor’s misstatement regarding the burden of proof did not constitute fundamental error and affect the fairness of the trial where the misstatement “occurred only once, during closing argument”); Henyard v.

State, 689 So.2d 239, 250 (Fla.1996) (holding that the trial court’s error in instructing jurors during voir dire regarding aggravators, mitigators, and the death penalty was harmless where error occurred only three times during voir dire and it was not repeated by the trial court during the penalty phase). Thus, both requirements of Strickland fail in this case. We affirm the posteonviction

summary denial of this claim. Lay Witness Testimony: Hand Injury Reynolds next asserts that the postcon-viction court erred in summarily denying the claim that trial counsel were ineffective because they failed to object to impermissible lay witness testimony. During the trial, a videotape of an interview between Sheriffs Deputy John Parker and Reynolds was presented to the jury. During the interview, Reynolds described his hand injury to Parker.

Reynolds stated that he had slipped on the exterior step of his trailer and, in an attempt to break his fall, grabbed the door and cut his hand on a burr on the aluminum frame. Thereafter, Reynolds stated he drove himself to the hospital for treatment. After he returned from the hospital, he removed the burr from the door frame with channel-lock pliers. During trial, Parker testified that he and another detective visited the trailer and found the burr on the ground near the door.

The challenged testimony is as follows: PROSECUTOR 3: Now, you said that the Defendant told you that he used channel locks and a screwdriver to remove what he termed as a burr; correct? PARKER: Correct. PROSECUTOR 3: And from your examination [of] that V notch, from your experience, ... did you believe that? PARKER: No, I did not. PROSECUTOR 3: Why not? PARKER: Because as I said earlier, the entire notch was nice and shiny. If it had been cracked and a piece of it sticking out, first place, it would have to be really sticking out to cut his finger like that, in my opinion.

Secondly, it would have been gray somewhere in that crack. And the piece that we found and the entire notch that it went to is nice and shiny as though it had just been created. PROSECUTOR 3: Now he had already come up with that explanation at that time when you were out there, did he not? PARKER: Yes.

Reynolds contends that defense counsel were ineffective because they failed to object to this testimony on the grounds that Parker was not qualified to testify as an “expert in metallurgy or the rate of oxidation of aluminum.” The State contends that an expert is not required to testify as to “whether or not a piece of metal would be shiny if recently cut.”

Section 90.701, Florida Statutes (2011), provides: If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do ?iot require a special knowledge, skill, experience, or training. § 90.701, Fla. Stat. (2011) (emphasis supplied). Reynolds relies on the decision in Nar-done v. State, 798 So.2d 870 (Fla. 4th DCA 2001), to support this claim. Nardone, however, suggests that it was not necessary to admit the witness in this case, Parker, as an expert. In Nardone, the court held that the trial court abused its discretion when it allowed the State to introduce the opinion of a police officer regarding whether an aluminum strip torn from a planter could be a weapon. See id. at 874.

The Nardone court explained that lay witness opinion testimony is permitted only when it is based on what the witness has personally perceived. See id. at 873. Since the testifying officer’s conclusion was not based on eyewitness testimony of the assault that had purportedly transpired with the strip, the district court concluded the testimony was speculative and impermissible lay opinion. See id. It distinguished its decision from those in Floyd v. State, 569 So.2d 1225 (Fla.1990), and Peacock v.

State, 160 So.2d 541 (Fla. 1st DCA 1964), in which this Court and the First District, respectively, admitted opinion testimony from law enforcement. In Floyd, this Court held that the trial court did not abuse its discretion when it admitted the testimony of a police officer regarding the impressions of what occurred at a crime scene. See 569 So.2d at 1232. In that case, a police officer testified “that a tablecloth found lying on the bed ‘appeared like someone had taken some type of object that had blood on it and wiped it on there-’” See id. at 1231.

That same officer testified that a tissue box lying on the floor appeared to have been knocked off a dresser. See id. We affirmed the admission of this testimony and noted that the officer’s “testimony [was] within the permissible range of lay observation and ordinary police experience.” Id. at 1232. In Peacock, the First District held that an officer was permitted to testify with regard to his visual comparison of tires and casts made from tire prints found at the scene of the crime. See 160 So.2d at 542-43.

The Peacock court stated that a witness does not need to be specially trained to make the type of visual comparison at issue in that case, and concluded that “an intelligent person with some degree of experience ... may and should be permitted to testify, leaving to the jury ... the determination of the credence and weight to be given thereto.” Id. at 548. Here, Parker testified as to his observations of the burr and his impression of what should have been found.

Based on the statements from Reynolds, Parker testified that he believed a piece of the burr should have “really [been] sticking out to cut [Reynolds’] finger.” The door and metal burr were available during trial for the jury to personally examine. The door was in the courtroom and the burr was admitted into evidence. The jury members, therefore, could make their own “determination of the credence and weight to be given” to the testimony from Parker. See Peacock, 160 So.2d at 542-43.

Additionally, we conclude that the testimony was “within the permissible range of lay observation.... ” See Floyd, 569 So.2d at 1232. Parker testified that he thought the burr looked too “nice and shiny,” that it should have been grayer, and that if the cuts Reynolds sustained were actually from contact with the burr, the burr would have had a sharper edge, or, as Parker reasoned, a piece of the burr would have been “really sticking out.” Counsel was not deficient for failing to object to this testimony as it falls within the range of lay observation permitted by Florida law.

Furthermore, even if the testimony from Parker was impermissible and could only have been provided by one who specializes in the study of metals, this claim is still without merit because Reynolds has not met the second of Strickland’s two required prongs: prejudice. Reynolds has failed to show that but for the alleged deficiency of counsel, our confidence in the outcome of the proceeding would be undermined. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Bolin v. State, 41 So.3d 151, 155 (Fla.2010). Indeed, this challenge is almost completely tangential to a determination of guilt in this case.

The State introduced a significant amount of DNA evidence during trial which linked Reynolds to the crime scene. As addressed in the first claim, the State presented evidence demonstrating that Reynolds’ DNA was found on underwear, a blanket and towel, and a piece of wood in the Razor trailer.

This DNA evidence was in addition to statements from Reynolds to law enforcement concerning an altercation he had with Danny Ray Privett, eyewitness testimony of Privett sitting on Reynolds’ car which was parked at the crime scene the night the crimes were committed, eyewitness testimony of Reynolds washing clothes at 5:30 a.m. on the morning the bodies were discovered, clothes found on a clothesline belonging to Reynolds that appeared to have been bleached, and testimony from two prisoners who had previously been incarcerated with Reynolds to whom he admitted committing the crimes.

Furthermore, the State provided expert testimony as to the cause of Reynolds’ hand injury, which suggested that it was not from falling and catching his hand on a metal burr. A medical examiner testified that the hand injury most likely was from a knife, or a similarly long and sharp object. Given the copious amount of evidence connecting Reynolds to the crimes, irrespective of the testimony from Parker regarding the metal burr, we conclude that Reynolds has not satisfied the requirements of Strickland. Accordingly, we affirm the denial of relief on this claim by the postconviction court.

Lay Witness Testimony: Clothing Condition At trial, two witnesses testified with regard to incriminating clothing. Reynolds contends that his counsel were ineffective because they permitted his landlady to testify with regard to the condition of his clothing as it was found on the day of the homicides. Based on the record, however, it was the crime scene investigator, not the landlady, who testified as to the condition of the clothing. The contested testimony is as follows: PROSECUTOR 3: Okay. Now, clothes, did you see any clothes that appeared to have been washed— INVESTIGATOR: Yes. PROSECUTOR 3: — recently?

And tell us about that. INVESTIGATOR: There was a clothesline approximately fifty feet from where the washing machine was, and it was full of clothing that had been washed. PROSECUTOR 3: Were these men’s clothes or women’s clothes? INVESTIGATOR: Men’s clothes. PROSECUTOR 3: Anything that appeared to be significant about any of those clothes? INVESTIGATOR: They appeared to be bleached, strongly bleached. They were very faded. The claim that his attorneys were ineffective for their failure to object to this testimony is premised on the assumption that a non-expert was permitted to offer expert testimony.

Reynolds contends that a layperson should not be permitted to testify whether clothing provides an appearance as though it has been bleached. Given that it was an individual trained in crime scene investigation and documentation, and not a landlady, who testified as to the state of this clothing, we note that the claim is weaker than either of the parties recognized. The investigator was not admitted as an expert and, according to Reynolds, the individual who testified offered expert conclusions.

We address the argument as if it was directed to the investigator rather than to the landlady — neither of whom were qualified as bleach experts. Reynolds claims that the investigator should not have been permitted to testify regarding the state of his clothing because she “lacked the special knowledge, experience, skill or training required to express an opinion as to whether the condition or makeup of [his] clothing showed that it had been bleached.... [The investigator] had no chemical or business background allowing her to render an opinion” -with regard to the state of his clothes.

This asserted expert issue is a non-issue because it is immaterial. Whether clothes appear to have been bleached is an observation within the province of a lay witness. As addressed in the previous claim, lay witnesses can provide opinion-type testimony if it is “within the ken of an intelligent person with a degree of experience.” Floyd, 569 So.2d at 1232. An opinion as to whether clothes appear to be bleached does not require “any special knowledge, skill, experience, or training,” see Williams v.

State, 70 So.3d 733, 735 (Fla. 4th DCA 2011), and would be within the knowledge of an average person who has washed and bleached clothing. The type of testimony here was not a chemical analysis. Therefore, trial counsel were not deficient in their failure to object to the testimony concerning the impression of the clothing on the day of the murders. Moreover, even if counsel were deficient in failing to object to this specific testimony, based on the extensive DNA evidence and testimony presented at trial, the error was not prejudicial to the extent that it undermines our confidence in the outcome of this case.

Therefore, we affirm the

summary denial of this claim by the postcon-viction court. Sleeping Juror Reynolds contends that trial counsel were ineffective for not seeking to remove a sleeping juror because she fell asleep during “critical testimony.” The juror first fell asleep during the testimony of an evidence specialist, and later during the testimony of forensic analyst Charles Badger. The record reflects that the juror fell asleep when the evidence specialist was discussing packaging evidence from the crime scene for scientific analysis and processing.

Noting the sleeping juror, the trial judge requested that the State and defense approach the bench to discuss the issue. Following the bench conference, the trial judge had the testifying specialist pause her testimony, admonished the juror outside the presence of the whole jury, and then resumed the trial. Later, during Badger’s testimony, the trial judge again called a bench conference, excused the jury, and discussed the conduct of the juror with the State and defense. The trial judge commented that the juror was distracting others with her dozing.

After a lunch recess, the trial judge asked the parties to readdress the issue. The State did not make any specific request to have the sleeping juror removed, and the defense confirmed that they wanted her to continue as a juror. Reynolds asserts that the court erred by not holding an evidentiary hearing on this claim. We affirm the denial of this claim because the sleeping juror issue was fully addressed during trial. Furthermore, Reynolds has failed to show that he suffered undue prejudice as a result of the behavior of the juror.

The record conclusively refutes the claim that trial counsel were ineffective because they did not request the removal of this juror. Florida courts have reversed and remanded

summary denials of claims involving the failure of trial counsel to bring a sleeping juror to the attention of the court. In Terrell v. State, 9 So.3d 1284, 1290 (Fla. 4th DCA 2009), for example, the Fourth District held that the defendant presented a “legally and factually sufficient” claim that defense counsel failed to object to a sleeping juror and the postconviction court erred in summarily denying the claim. See also Judd v. State, 951 So.2d 103, 104 (Fla. 4th DCA 2007); Erlsten v. State, 842 So.2d 967, 968-69 (Fla. 4th DCA 2003); McClendon v. State, 765 So.2d 247, 248 (Fla. 1st DCA 2000); Reside v.

State, 448 So.2d 644, 644 (Fla. 4th DCA 1984). The Terrell court, accordingly, reversed and remanded for an evidentiary hearing on this claim. See 9 So.3d at 1290. Conversely, the Fourth District has also affirmed the denial of sleeping juror claims when trial counsel has brought the problem to the attention of the trial court, thereby “conclusively refutfing] the allegations of ineffectiveness.” See Prince v. State, 40 So.3d 11,12 (Fla. 4th DCA 2010). The transcript from this trial indicates that the court brought this issue to the attention of all involved.

In Terrell, the trial court erred in summarily denying the claim because the sleeping juror situation was not addressed at trial — thus, addressing this problem at trial was the issue. See 9 So.3d at 1290; see also Wilson v. State, 828 So.2d 1086, 1086-87 (Fla. 1st DCA 2002) (reversing and remanding the

summary denial of a claim of ineffective assistance of counsel because trial counsel failed to notify the court that a juror was sléeping during critical testimony). In this case, however, this situation was discussed, although it was the court that first addressed the issue. If the issue is correctly addressed, no reversible error is presented. The issue with regard to trial counsel waiving objection to the removal of the juror, however, is a separate claim. In Simo v.

State, the Fourth District stated that trial counsel may be ineffective for “waiving objection to the presence of a sleeping juror.” 790 So.2d 1190, 1191 (Fla. 4th DCA 2001) (holding the trial court erred in summarily denying the claim of ineffective assistance for “failing to object and in waiving objection to the presence of a sleeping juror”); see also McGraw v. State, 796 So.2d 1205, 1206 (Fla. 4th DCA 2001) (noting that it is “usually improper to summarily deny a claim that counsel failed to act upon being informed that a juror was sleeping during trial”).

In this case, defense counsel did not request the removal of the sleeping juror. Whether trial counsel had a tactical or strategic reason for not pursuing the dismissal of the juror is a determination that usually should require an evidentiary hearing. See Erlsten, 842 So.2d at 968-69. Here, however, we conclude that the colloquy that transpired during trial between the court and trial counsel over the course of two separate bench conferences produced sufficient information and evidence to render an evidentiary hearing and further inquiry unnecessary.

During the first bench conference, the trial court asked both the State and defense counsel whether they wanted the juror to remain on the panel. At that time, the juror was observed dozing during what would be considered inconsequential testimony. An evidence specialist was simply listing the items she had collected, confirming that these items were labeled, and addressing security at the crime scene.

Although the State did not make a specific request with regard to the juror, State counsel was concerned with keeping the juror on the panel and expressed a willingness to replace the juror if defense counsel requested a removal. Defense counsel specifically stated that they would prefer that the court not remove the juror, and instead discuss the situation with the subject juror. The trial court, in response, addressed the issue and admonished the juror.

During the second bench conference to discuss this juror’s behavior, State witness Badger was presenting testimony which addressed the processing of DNA samples recovered from the crime scene. The record reflects that Badger was discussing DNA matches, and the lack thereof, from Reynolds to items associated with the crime. Before the trial court again noted the dozing juror, Badger testified regarding whether DNA from Reynolds was found on vaginal swabs from Christina Razor.

Indeed, if Badger had testified that DNA from Reynolds was found on the swabs as Reynolds contends, then the juror at issue fell asleep during highly incul-patory testimony, and defense counsel decided not to have the juror removed for strategic reasons. Following these two incidents, the juror was not addressed or admonished again and there is no indication that the issue arose again. The record reflects that the court asked both the State and defense counsel to fully consider their positions with regard to the sleeping juror.

The State indicated that it was not making “any specific request of the Court at this time,” and defense counsel stated to the trial court that “we want her to continue as a juror.” The strategic decision is clear. Reynolds now contends that his trial counsel misstated his position and that he wanted the juror removed. The trial transcript also reflects that the court directed defense counsel to speak with Reynolds regarding the decision, and although Reynolds did not personally respond, his counsel did so on his behalf.

If Reynolds did not agree with the response of his attorney, which indicated that they wanted to keep this juror on the panel, Reynolds did not make his position known when the opportunity arose. It must be assumed that Reynolds would have indicated his disapproval at that time, in some fashion, during the specific discussion in his presence regarding this issue. Consequently, we affirm the

summary denial of this claim by the postconviction court. Criminal Conduct and the Right to Testify Reynolds presents a number of issues under this claim. We address each, and affirm the

summary denial by the postcon-viction court. First, Reynolds states that his counsel were ineffective because they informed the jurors of his prior criminal convictions during voir dire and, during opening statements, twice informed jurors he would testify, but never prepared him to do so.

He claims that if he had been prepared, he would have testified as to the source of his injuries, why he was cooperative with the police, that he had always maintained his innocence, that he had a friendly relationship with Danny Privett, that he did not kill the victims, and that he could explain inconsistencies in the evidence. Reynolds claims that his DNA was found inside the trader on a towel that belonged to him and was mishandled during a search of his residence that he authorized.

However, whether the towel was, in fact, from Reynolds’ home and mishandled does not explain away that his DNA was also found on a piece of wood in the Razor trailer or on underwear also recovered from the trailer. Further, Reynolds does not specifically address the manner in which counsel failed to prepare him to testify — rather, he just states a conclusion that counsel was ineffective. This claim is insufficiently pled. See Wyatt v.

State, 78 So.3d 512, 521 n. 6 (Fla.2011) (denying claims as insufficiently pled in part because counsel failed to specifically address what was allegedly erroneous or what counsel should have done instead); Coolen v. State, 696 So.2d 738, 742 n. 2 (Fla.1997) (noting that the defendant’s failure to fully brief and argue his claims constituted a waiver of those claims).

Nevertheless, even if we accept this claim that his counsel was deficient in this regard, Reynolds does not set forth the manner in which this failure ultimately prejudiced his case which would “undermine judicial confidence in the outcome” of his trial. See Lawrence v. State, 831 So.2d 121, 129 (Fla.2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

It should be noted that Reynolds ultimately decided not to testify at trial, Second, Reynolds contends that he felt threatened by his counsel because defense counsel informed him that if he testified it would “f* *king kill him.” Although perhaps this is a poor choice of words, this statement itself does not indicate that defense counsel threatened Reynolds and thereby coerced his silence. Nor do such words connote, as Reynolds alleges, that if he testified, he would definitely receive the death penalty.

Rather, the statement suggests that counsel believed it would be poor strategy and detrimental to the case if Reynolds testified during trial. Indeed, the postconviction court stated in the denial order that given the expectation of trial counsel that Reynolds would testify, “it was not unreasonable for counsel to ‘take the wind out of the sails’ of that basis for impeachment by bringing out [prior convictions] during voir dire.

The fact that the strategy evolved during the course of the trial does not retroactively render the decision unreasonable.” As this Court has indicated time and again, counsel will not be found ineffective for decisions that “in hindsight, did not work to the defendant’s advantage.” See Souffrant v. State, 994 So.2d 407, 410-11 (Fla. 3d DCA 2008) (citing Mansfield v. State, 911 So.2d 1160, 1174 (Fla.2005)); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Mendoza v. State, 87 So.3d 644, 655 (Fla.2011); Everett v. State, 54 So.3d 464, 478 (Fla.2010); Anderson v. State, 18 So.3d 501, 509 (Fla.2009).

Review of ineffective assistance of counsel claims must be from the perspective of defense counsel at the time of trial rather than with the “heightened perspective of hindsight.” See Patton v. State, 784 So.2d 380, 391 (Fla.2000). Indeed, “£j]udi-cial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689,104 S.Ct. 2052. Reynolds may have benefitted from testifying, but the record indicates that during the trial Reynolds decided against that approach. This decision does not render his trial counsel ineffective.

Third, Reynolds claims that the trial court failed to ask him whether his decision not to testify was voluntary and knowing. When the time arrived for Reynolds to testify, the following colloquy occurred: THE COURT: [Defense counsel], have you figured out what the order of trial is gonna be for this afternoon, sir? DEFENSE: Judge, we’re gonna rest at this time. THE COURT: Okay. Mr. Reynolds, like I said before, this would be the time when in the trial if you wanted to testify where you would be able to testify.

If you want to testify, that’s fine, your testimony is considered by the same standard as any other witness. If you don’t want to testify, that’s fine, it can’t be held against you. As I said before, you should naturally listen very carefully to your attorneys whenever they advise you as far as this particular matter, but again, this is your case, your life, so to speak, you make the final decision. REYNOLDS: Yes, sir. THE COURT: Knowing that — You’ve spoken to your attorneys about this; is that correct? REYNOLDS: Yes, sir, I have.

THE COURT: And have you reached a decision whether you want to testify or not testify? REYNOLDS: Yes, sir. THE COURT: And what is your decision, sir? REYNOLDS: No, I don’t want to testify- The Court: And you understand that this is the one time of the trial where basically you’d be able to if you wanted to? REYNOLDS: Right. THE COURT: And is this your personal decision? REYNOLDS: Yes, sir. THE COURT: Then well abide by that. So you’re gonna rest at this time? DEFENSE: Yes, sir.

This evidences that indeed a colloquy was conducted, and Reynolds is essentially arguing that the trial court should have engaged in a more detailed discussion than that which actually occurred during the quoted exchange. Reynolds contends that his counsel were ineffective because they misadvised him with regard to testifying, and in doing so, coerced him into silence. Reynolds also asserts that he is entitled to an evidentiary hearing to further investigate this claim. The right to testify is a “fundamental right[ ] under our state and federal constitutions.” See Deaton v.

Dugger, 635 So.2d 4, 8 (Fla.1993). “[T]he record must support a finding that such a waiver was knowingly, voluntarily, and intelligently made.” Id.; see also State v. Lewis, 838 So.2d 1102, 1112 (Fla.2002). In Gonzalez v. State, this Court held that the defendant had knowingly, voluntarily, and intelligently waived his right to testify. See 990 So.2d 1017, 1031 (Fla.2008).

After counsel had informed the trial judge that the defendant would not be testifying, the trial court conducted a colloquy with the defendant which addressed that he understood that he had a constitutional right to testify even if his counsel believed that he should not[,] ... that he was going to follow his counsel’s advice to not testify, ... that it was his personal decision not to testify, and counsel did not promise him anything or force him into not testifying. See id. at 1031-32.

The Gonzalez Court noted that [although this Court has held that “a trial court does not have an affirmative duty to make a record inquiry concerning a defendant’s waiver of the right to testify,” this Court has stated that ... “it would be advisable for the trial court ... to make a record inquiry as to whether the defendant understands he has a right to testify.... ” Id. at 1031 (quoting Torres-Arboledo v. State, 524 So.2d 403, 411 n. 2 (Fla.1988)).

The colloquy that occurred between Reynolds and the trial court did not specifically address two elements that were present in Gonzalez: whether counsel promised anything or forced the defendant not to testify, and whether the defendant knew that he had a constitutional right to testify. Despite these omissions, we are satisfied that the trial court obtained a knowing, voluntary, and intelligent waiver from Reynolds of his right to testify as demonstrated by the quoted exchange.

Moreover, there is no mandate that a trial court conduct a “Faretto-type inquiry” to accept a defendant’s decision to waive his Fifth Amendment right to testify. In Faretta v. California, 422 U.S. 806, 809-10, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), despite a particularly searching inquiry, the trial court did not accept the decision of the defendant to conduct his own defense and waive his right to counsel. The United States Supreme Court vacated the judgment of the trial court and held that the defendant had been deprived of his constitutional right to self-representation. See id. at 836, 95 S.Ct. 2525.

Since Faretta, courts have interpreted the case to require that they conduct a sufficiently searching inquiry when evaluating whether a defendant has knowingly, voluntarily, and intelligently waived his right to counsel. With regard to the right to testify, however, this inquiry need not rise to the Faretta level; it must only indicate that the defendant knowingly, voluntarily, and intelligently waived his right. See Deaton, 635 So.2d at 8. The waiver by Reynolds was expressed on the record even though this Court has held that it is not necessary to do so. See Lawrence v.

State, 881 So.2d 121,132 (Fla. 2002) (holding that the trial court need not obtain defendant’s waiver of his right to testify on the record to ensure that his waiver was knowing and intelligent). Reynolds confirmed with the trial court that his decision not to testify was his own, that he understood now was the time to testify if he so desired, that he discussed his decision with his attorneys, and that he personally decided against it. This claim that the trial court did not question Reynolds regarding his decision not to testify is conclusively refuted by the record.

We agree with the denial of this claim by the postconviction court. Fourth, Reynolds alleges that defense counsel failed to effectively challenge the jailhouse witnesses and that, if he had testified, he could have explained the situation with regard to these witnesses. Reynolds does not provide any insight as to what information could have been discovered by counsel, or the manner in which this evidence could have helped his defense. Additionally, this claim is not specifically alleged, and thus was properly summarily denied. See Troy v.

State, 57 So.3d 828, 834 (Fla.2011) (“A court may summarily deny a postconviction claim when the claim is legally insufficient, pro-eedurally barred, or refuted by the record.”); Franqui, 59 So.3d at 95-96. Reynolds alleges, in passing, that the trial court did not perform a sufficiently searching inquiry with regard to his decision to waive mitigation. There is no argument, analysis, or elaboration with regard to this issue. Reynolds has, consequently, waived this claim. See Duest v.

Dugger, 555 So.2d 849, 851-52 (Fla.1990) (The defendant “seeks to raise eleven other claims by simply referring to arguments presented in his motion for postconviction relief. The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived.”). Furthermore, this claim also fails on the merits and was properly summarily denied.

The record demonstrates that Reynolds filed, and the court granted, a Waiver of Right to Present Mitigation Evidence. The trial transcript demonstrates that the court engaged in a colloquy with Reynolds with regard to his decision to waive the presentation of mitigation evidence. Before the penalty phase, the court verified with Reynolds that he did not want to present mitigation.

Reynolds stated that he had been in prison all his life, and “[m]y mitigating is not nothing compared to the aggravators that the State is gonna bring in here against me.” Reynolds stated that he did not want to present mitigation evidence and wanted to proceed as quickly as possible to the Spencer hearing “because there’s no such thing.... It’s a waste of time because I have none. I’ve been locked up all my life.” After the State presented evidence during the penalty phase, the trial court again questioned Reynolds with respect to his decision not to present mitigating evidence.

The court then recessed, instructing Reynolds to again consider his decision overnight. The next day, the court asked Reynolds again if he wanted to present mitigating evidence. Reynolds responded that he only wanted to address the court and the victims’ families, to which the court explained that Reynolds could express such sentiments at the Spencer hearing, not the penalty phase. Reynolds thereafter reconfirmed his decision not to present mitigating evidence.

This in-depth exchange between the trial court and Reynolds conclusively refutes the claim that trial counsel were somehow ineffective for not presenting mitigation evidence. The postconviction court properly summarily denied this claim. Lethal Injection This Court has consistently rejected constitutional challenges to lethal injection. See, e.g., Valle v. State, 70 So.3d 580, 541 (Fla.2011), cert. denied, — U.S. -, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011); Mosley v. State, 46 So.3d 510 (Fla.2009), cert. denied, — U.S. -, 131 S.Ct. 219, 178 L.Ed.2d 132 (2010); Ventura v.

State, 2 So.3d 194 (Fla.2009), cert. denied, — U.S. -, 129 S.Ct. 2839, 174 L.Ed.2d 562 (2009); Tompkins v. State, 994 So.2d 1072 (Fla.2008), cert. denied, 555 U.S. 1161, 129 S.Ct. 1305, 173 L.Ed.2d 483 (2009); Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), cert. denied, 553 U.S. 1059, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008). This claim, therefore, has no merit, and we affirm the denial of the request for an evidentiary hearing.

Claims Denied After the Evidentiary Hearing In reviewing a decision of the postcon-viction court to deny claims after an evi-dentiary hearing we review the trial court’s findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence. See, e.g., Hurst v. State, 18 So.3d 975, 993 (Fla.2009); Green v. State, 975 So.2d 1090, 1100 (Fla.2008); Melendez v. State, 718 So.2d 746, 747-48 (Fla.1998). We review the trial court’s application of the law to the facts de novo. See Green, 975 So.2d at 1100; Arbelaez v. State, 898 So.2d 25, 32 (Fla.2005).

Closing Statement: Attempted Sexual Battery Reynolds contends that his trial counsel were ineffective for failing to object to the State’s remark during closing statements that “Reynolds’ motive was the attempted sexual battery of an 11-year old.” The denial of this claim by the post-conviction court is supported by competent, substantial evidence. Thus, we affirm its ruling. The following evidence was presented during the trial: Christina’s grandmother testified that Christina usually slept with her underwear on and identified a Rugrats sleeping bag as belonging to Christina.

Another witness, and friend of the three victims, testified that she too recognized the Rugrats item as something Christina slept with every night. During trial, a DNA lab analyst testified that he analyzed the underwear recovered from the crime scene and found blood from Christina on them. A medical examiner testified that Christina was found not wearing any underwear. In closing, the State asserted the following: Christina always slept with her panties ... and always slept with this Ru-grats blanket.

However, when the investigators came inside, they found her panties were removed and panties on the floor and the Rugrats blanket removed from her....

Christina’s panties were removed, indicative that the perpetrator had other things on his mind other than just killing Christina.... [T]here’s several stains found on these panties.... [A]s you might expect, a bloodstain of Christina, one was a bloodstain of Robin, and the other was a mixture ... a mixture of that of Christina and the Defendant, Michael Gordon Reynolds. [W]e know that Christina’s panties were removed, no sperm found on her, but we know, from the evidence, the evidence certainly is suggestive that the Defendant had other thoughts in mind, you might look for some evidence that the Defendant went beyond just thinking about this, and you might look for pubic hair, and, indeed, the hairs were found, collected, and as we talked earlier, whose pubic hair was found right near the little girl, right near the panties, that of the Defendant, matched to the Defendant with DNA.... [T]he perpetrator in this case, the Defendant, didn’t follow through, as evidenced by the fact there was no sperm, no semen found on or about this little girl’s body, is indicative of the fact that something caused him to want to leave quick.

He was spooked. In support of his claim, Reynolds relies on the Second District Court of Appeal’s decision in Coverdale v. State, 940 So.2d 558, 560 (Fla. 2d DCA 2006), in which that court held the trial court abused its discretion in denying a motion for mistrial when a witness, in response to a question regarding a friend’s feelings, stated that the friend “was okay with [the defendant] until he tried to molest her daughter.” The Coverdale court held that the trial court should have declared a mistrial because “[f]ew criminal allegations would be more prejudicial to a defendant than molesting a child.

If the jury believed the statement that [the defendant] was a child molester, this gratuitous statement would deny him a fair trial on the aggravated stalking charge, and no curative instruction” would rectify that situation. Id. at 561. However, the Coverdale opinion did not identify any evidence presented during the trial that would have supported an assertion that the defendant actually molested children. In the present case, in contrast, the State provided facts in evidence to support its inference.

During the evidentiary hearing, defense counsel testified that he did not object to the contested closing remark because he regarded it as a permissible inference based on the evidence presented. To find the performance of trial counsel deficient, Reynolds must have established that counsel’s assessment was so unreasonable that he essentially was not functioning as counsel, thus satisfying the first prong of Strickland. See Strickland, 466 U.S. at 700, 104 S.Ct. 2052; see also Occhicone, 768 So.2d at 1048.

Based on the evidence presented, we conclude that the statements from the State in closing were not unreasonable or without support in the evidence, and counsel, therefore, were not deficient for failing to object. Reynolds also fails to satisfy the second prong of Strickland by demonstrating that, had defense counsel objected, the trial court would have sustained any objection. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Given that the State presented evidence supporting an inference of attempted sexual battery, including DNA evidence on Christina’s underwear, our confidence in the outcome of the proceeding is not undermined. Reynolds, therefore, fails to meet either prong of Strickland. The postconviction court correctly found that trial counsel were not ineffective and its conclusion is supported by competent, substantial evidence. Therefore, we affirm the denial of this claim. Sexual Battery Motive and HAC Reynolds claims that defense counsel were ineffective during the penalty phase for three reasons.

First, he contends they were ineffective because they did not object to the sexual battery motive argument presented by the State in closing, and because they failed to effectively rebut this theory during closing statements. Second, Reynolds contends that his counsel were ineffective because they did not address the claim that Christina’s death was heinous, atrocious, or cruel (HAC). The only argument advanced was that the sexual battery motive did not support the aggra-vator that the murders were committed to avoid arrest.

Third, Reynolds contends that the failure to rebut the testimony of forensic analyst Badger regarding the identification of the DNA profile found on the vaginal swab from Christina prejudiced him during the penalty phase. Reynolds fails to identify any objectionable statements in the record. Reynolds also does not explain the manner in which a failure to object prejudiced his case except to reiterate the statement in Cover-dale from the Second District that allegations of child molestation are amongst the most prejudicial comments that can be stated. See 940 So.2d at 561.

Regardless, the conclusion from the postconviction court that trial counsel did not perform ineffectively because the State’s closing remarks were a fair comment on the evidence, as addressed in the prior claim, is supported by competent, substantial evidence.

With regard to the HAC claim, the State suggests that Reynolds’ allegation may be directed to closing argument when the State commented that Christina suffered defensive wounds, contusions to her face, injuries to her mouth, and also stated: You couple that with the removal of her panties and we know the last few moments of Christina’s life, first with the realization that her mother was being brutally attacked by this Defendant, and then the last few moments of her life were really indescribable. On direct appeal, this Court held that the HAC aggravator was supported by competent, substantial evidence.

We stated that: With regard to Christina Razor, the trial court made the following findings: a. Dr. Sarah Irrgang, the medical examiner, testified that the victim Christina Razor, suffered two stab wounds to the neck and shoulder area, contusions to her face, and injuries to her mouth. It was Dr. Irrgang’s testimony that Christina Razor also suffered an abrasion on the back of one of her hands which was characterized as being consistent with a defensive wound. b. The presence of defensive wounds allows the assumption to be made that the victim was alive unless shown otherwise by the evidence. c.

The existence of a defensive wound demonstrates that the victim was aware of her plight and was [resisting]. The stab wounds suffered by the victim, Christina Razor, are consistent with having been made with a weapon such as a knife. d.At the moment that the victim, Christina Razor, was being attacked, it is not known whether or not her mother was still alive and conscious or unconscious or had been murdered. Regardless, in the close confines of that cramped camping tra

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