IN THE SUPREME COURT OF FLORIDA MICHAEL BERNARD BELL, Appellant, v. CASE NO. SC02-1765 STATE OF FLORIDA, Appellee. _________________________/

ON APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT

IN AND FOR DUVAL COUNTY, STATE OF FLORIDA

ANSWER BRIEF OF THE APPELLEE

CHARLES J. CRIST, JR. ATTORNEY GENERAL MEREDITH CHARBULA Assistant Attorney General Florida Bar No. 0708399 DEPARTMENT OF LEGAL AFFAIRS THE CAPITOL Tallahassee, Florida (850) 414-3300, Ext. 3583 (850) 487-0997 (Fax) COUNSEL FOR APPELLEE

TABLE OF CONTENTS TABLE OF CONTENTS ........................................... i TABLE OF AUTHORITIES ....................................... ii PRELIMINARY STATEMENT ....................................... 1 STATEMENT OF THE CASE AND FACTS ............................. 2 SUMMARY OF THE ARGUMENT ..................................... 5 ARGUMENT .................................................... 9

I. Whether trial counsel was ineffective during the guilt phase and penalty phase of Bell’s capital trial................................................... 9

II. Whether trial counsel was ineffective for failing to object to the prosecutor’s remarks to the jurors................................................. 55

IV. Whether trial counsel was ineffective for failing to object and request a curative instruction when the State discussed the weighing process with the jury during the penalty phase of Bell’s capital trial.................................................. 60

VI. Whether trial counsel was ineffective for failing to object when the prosecutor’s comments and trial judge’s instructions diminished the jury’s sense of responsibility toward sentencing in violation of Caldwell v. Mississippi................... 63

VII. Whether trial counsel was ineffective for failing to object when the State exercised a peremptory strike against a juror who had conscientious scruples against the death penalty....... 69

VIII. Whether the State violated the dictates of Brady v. Maryland by not disclosing prison and law enforcement records relating to victim, Jimmy West..... 72

XI . Whether trial counsel was ineffective for failing to investigate and prepare for the testimony

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of state witnesses, Mark Richardson, Charles Jones, Dale Jones and Ericka Williams......................... 78

XII. Whether trial counsel was ineffective for failing to object when the record did not reflect the venire was sworn................................... 88 XIV. Whether cumulative error in Bell’s capital trial deprived Kormondy of a fair trial................ 93

XV. Whether the trial court erred in ruling that certain claims Bell raised in his motion for post-conviction relief were procedurally barred............. 94

CONCLUSION ................................................ 100 CERTIFICATE OF SERVICE .................................... 100 CERTIFICATE OF FONT COMPLIANCE ............................ 101

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TABLE OF AUTHORITIES TABLE OF AUTHORITIES Allen v. State, 854 So. 2d 1255 (Fla. 2003) ................................ 63 Asay v. State, 769 So. 2d 974 (Fla. 2000) ................................. 10 Bell v. Florida, 521 U.S. 1123 (1998) ........................................ 4 Bell v. State, 491 So. 2d 537 (Fla. 1986) .............................. 13,16 Bell v. State, 491 So. 2d 537 (Fla. 1986) ................................. 16 Bell v. State, 699 So. 2d 674 (Fla. 1997) ............................. passim Bell v. State, 790 So. 2d 1101 (Fla. 2001) ................................. 4 Bolin v. State, 869 So. 2d 1196 (Fla. 2004) ............................. 89,92 Brady v. Maryland, 373 U.S. 83 (1963) ..................................... passim Brookings v. State, 495 So. 2d 135 (Fla. 1986) ................................. 13 Brooks v. State, 762 So. 2d 879 (Fla. 2000) .............................. 23,59 Brown v. State, 846 So. 2d 1114 (Fla. 2003) ............................. 30,40 Bryan v. State, 748 So. 2d 1003 (Fla. 1999) ................................ 93 Caldwell v. Mississippi, 472 U.S.320 (1985) .................................... 1,63,97

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Combs v. State, 525 So. 2d 853 (Fla. 1988) .............................. 65,97 Davis v. Alaska, 415 U.S. 308 (1974) ........................................ 13 Davis v. State, 848 So. 2d 418 (Fla. 2d DCA, 2003) ......................... 92 Dobbert v. State, 409 So. 2d 1053 (Fla. 1982) ................................ 71 Dougan v. State, 470 So. 2d 697 (Fla. 1986) ................................. 72 Downs v. State, 740 So. 2d 506 (Fla. 1999) ................................. 93 Dufour v. State, 905 So. 2d 42 (Fla. 2005) ............................... 47,55 Faretta v. California, 422 U.S. 806 (1975) ......................................... 4 Floyd v. State, 808 So. 2d 175 (Fla. 2002) ................................. 96 Gaskin v. State, 822 So. 2d 1243 (Fla. 2002) ................................ 10 Gorby v. State, 819 So. 2d 664 (Fla. 2002) .............................. 11,87 Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995) ................................. 47 Holland v. State, 916 So. 2d 750 (Fla. 2004) .............................. 75,84 Jennings v. State, 782 So. 2d 853 (Fla. 2001) ................................. 74 Kimbrough v. State, 886 So. 2d 965 (Fla. 2004) ............................... 9,70

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Knight v. State, 923 So. 2d 387 (Fla. 2005) ........................ 65,66,67,97 Lawrence v. State, 831 So. 2d 121 (Fla. 2002) ................................. 50 Lott v. State, 826 So. 2d 457 (Fla. 1st DCA 2003) ...................... 91,92 Lott v. State, 31 Fla. L. Weekly S 222 (Fla. April 13, 2006) .............. 22 Maharaj v. State, 778 So. 2d 944 (Fla. 2000) ................................. 76 Marshall v. State, 854 So. 2d 1235 (Fla. 2003) ................................ 95 Miller v. State, 926 So. 2d 1243 (Fla. 2006) ................................ 56 Mungin v. State, 31 Fla. L. Weekly S 215 (Fla. April 6, 2006) ................ 9 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973) .......................... 4 Orme v. State, 896 So. 2d 725 (Fla. 2005) ................................. 93 Owen v. State, 773 So. 2d 510 (Fla. 2000) ................................. 97 Perkins v. State, 576 So. 2d 1310 (Fla. 1991) ................................ 35 Pietri v. State, 885 So. 2d 245 (Fla., 2004) ................................. 9 Porter v. State, 788 So. 2d 917 (Fla. 2001) ................................. 95 Reed v. State, 875 So. 2d 415 (Fla. 2004) .............................. 47,93 Rose v. State,

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675 So. 2d 567 (Fla. 1996) ................................. 47 Rutherford v. State, 727 So. 2d 216 (Fla. 1998) .............................. 10,92 Shere v. State, 742 So. 2d 215 (Fla. 1999) ................................. 22 Sireci v. Moore, 825 So. 2d 882 (Fla. 2002) ................................. 42 Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992) ......................... 75 Smith v. State, 866 So. 2d 51 (Fla. 2004) ............................... 89,92 Spencer v. State, 842 So. 2d 52 (Fla. 2003) .............................. passim Strickland v. Washington, 466 U.S. 668 (1984) .................................... passim Thomas v. State, 748 So. 2d 970 (Fla. 1999) .............................. 61,69 Thompson v. State, 740 So. 2d 506 (Fla. 1999) ................................. 96 Turner v. Dugger, 614 So. 2d 1075 (Fla. 1992) ................................ 96 United States v. Bagley, 473 U.S. 667 (1985) ........................................ 74 Walls v. State, 926 So. 2d 1156 (Fla. 2006) 58,68 Waterhouse v. State, 792 So. 2d 1176 (Fla. 2001) ................................ 10 Witherspoon v. Illinois, 391 U.S. 510 (1986) ........................................ 71 Wright v. State, 586 So. 2d 1024 (Fla. 1991) ................................ 99

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Wright v. State, 857 So. 2d 861 (Fla. 2003) ................................. 74

STATUTES AND RULES Section 776.041(2), Florida Statutes .................... 35 Section 90.608, Florida Statutes ........................... 80 Section 776, Florida Statutes .......................... 34 Section 776.012, Florida Statutes .......................... 32 Section 782.02, Florida Statutes .......................... 36 Rule 3.150(a), Florida Rules of Criminal Procedure ......... 99 Rule 3.211, Florida Rules of Criminal Procedure ....... 43 Rule 3.300 (a), Florida Rules of Criminal Procedure ....... 91 Rule 3.850, Florida Rules of Criminal Procedure ........ 4

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I. PRELIMINARY STATEMENT Appellant, MICHAEL BERNARD BELL raises nine issues in

this appeal from the denial of his motion for post-conviction

relief. They do not appear in the initial brief as Issues One

through Nine.

Instead, Bell numbers his claims and sub-claims non-

sequentially. Bell explains he does so to comport with the

numbering system used by Bell in his pro se motion for post-

conviction relief and the trial judge’s order ruling on Bell's

pro-se motion for post-conviction relief. (IB “i”, 2). In

order to prevent confusion, the State will use the same

numbering system.

References to the appellant will be to “Bell” or

“Appellant”. References to the appellee will be to the

“State” or “Appellee”.

The nine volume record on appeal in the instant case will

be referenced as “PCR” followed by the appropriate volume

number and page number. References from Bell’s direct appeal

will be referred to as “TR” followed by the appropriate volume

and page number. References to Bell’s initial brief will be

to “IB” followed by the appropriate page number.

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STATEMENT OF THE CASE AND FACTS Michael Bell, born November 24, 1970, was 23 years old

when he murdered Jimmy West and Tamecka Smith. The relevant

facts surrounding the December 9, 1993 murders are set forth

in this court’s opinion on direct appeal as follows:

...On December 9, 1993, appellant Michael Bell shot to death Jimmy West and Tamecka Smith as they entered a car outside a liquor lounge in Jacksonville. Three eyewitnesses testified regarding the murders, which the trial court described in the sentencing order as follows. In June 1993, Theodore Wright killed Lamar Bell in a shoot-out which was found to be justifiable homicide committed in self-defense.

Michael Bell then swore to get revenge for the murder of his brother, Lamar Bell. During the five months following Lamar Bell's death, Michael Bell repeatedly told friends and relatives he planned to kill Wright. On December 8, 1993, Michael Bell, through a girlfriend, purchased an AK-47 assault rifle, a thirty-round magazine, and 160 bullets. The next night, Bell saw Theodore Wright's car, a yellow Plymouth. Bell left the area and shortly returned with two friends and his rifle loaded with thirty bullets.

After a short search, he saw the yellow car in the parking lot of a liquor lounge. Bell did not know that Wright had sold the car to Wright's half-brother, Jimmy West, and that West had parked it and had gone into the lounge. Bell waited in the parking lot until West left the lounge with Tamecka Smith and another female. Bell picked up the loaded AK-47 and approached the car as West got into the driver's seat and Smith began to enter on the passenger's side. Bell approached the open door on the driver's side and at point-blank range fired twelve bullets into West and four into Smith. The other female ducked and escaped injury. After shooting West and

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Smith, Bell riddled with bullets the front of the lounge where about a dozen people were waiting to go inside. Bell then drove to his aunt's house and said to her, "Theodore got my brother and now I got his brother." Bell v. State, 699 So.2d 674 (Fla. 1997).

Bell was charged by indictment with two counts of first-

degree murder. (TR Vol. I 8, 28). Bell pled not guilty and was

represented at trial by Richard Nichols. 1

Contrary to his pleas, Bell was convicted of the first-

degree murders of Smith and West. (TR Vol. I 76). During the

penalty phase, a lounge security guard testified that he and

seven or eight other people were in the line of fire and hit

the ground when appellant sprayed bullets in the parking lot

of the lounge. He also testified that appellant shot four or

five bullets into a house next door in which three children

were residing at the time. The State also introduced a copy

of a record showing that appellant was convicted of armed

robbery in 1990.

Bell called one witness at the penalty phase, his mother.

Mrs. Bell testified that, prior to the murders, both she and

her son had received death threats from Wright and West. She

testified that appellant was in good mental health and was

gainfully employed. She did not believe that her son murdered

1 Mr. Nichols is now deceased.

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West and Smith. Bell v. State, 699 So.2d at 675-676.

The jury unanimously recommended Bell be sentenced to

death for both murders. (TR Vol. I 90-91). The trial judge

found three aggravating factors: (1) Bell had been previously

convicted of a violent felony, (2) Bell knowingly created a

great risk of death to many persons; and (3) the murders were

committed in cold, calculated, and premeditated manner. The

trial judge found in marginal mitigation, that at the time of

the murder, Bell was acting under an extreme mental or

emotional disturbance because of the death of his brother five

months prior to the murders. The trial judge followed the

recommendation of the jury and sentenced Bell to death for

both murders. (TR Vol. I 100-115).

Appellant raised four issues in his direct appeal. Bell

claimed the trial court erred: (1) in failing to conduct

proper inquiries under Nelson v. State, 274 So.2d 256 (Fla.

4th DCA 1973) and Faretta v. California, 422 U.S. 806 (1975);

(2) in finding the murders were CCP; (3) in instructing the

jury on the CCP aggravator; (4) in failing to properly

consider and find mitigating circumstances.

On July 17, 1997, this Court affirmed Bell's convictions

and sentences to death. Bell v. State, 699 So.2d 674, 679

(Fla. 1997). Bell's motion for rehearing was denied on

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September 17, 1997 and mandate issued on October 17, 1997.

The United States Supreme Court denied review on February 23,

1998, in Bell v. Florida, 521 U.S. 1123 (1998).

On June 1, 1999, Bell filed his first motion pursuant to

Rule 3.850, Florida Rules of Criminal Procedure. The trial

court summarily denied the motion on January 13, 2000. Bell

appealed and on April 26, 2001, the Florida Supreme Court

reversed and remanded with instructions to allow Bell to file

an amended motion. Bell v. State, 790 So.2d 1101 (Fla. 2001).

Bell sought and was granted permission to represent himself

during post-conviction proceedings. Collateral court judge,

Charles Arnold, appointed Bell stand-by counsel for the

“purpose of assisting the defendant in the subpoenaing of

witnesses and the filing of papers with the Court. (PCR Vol.

I 108-110).

On October 3, 2001, Bell filed a pro se amended motion

for post-conviction relief. (PCR Vol. I 111-200, PCR Vol. II

201-232) Bell raised numerous claims and sub-claims in his

motion. The State filed a response. The collateral court

granted Bell an evidentiary hearing on thirteen sub-claims

within Issue I and on issues II, XI, and XII. The evidentiary

hearing was held from April 8-10, 2002. Over thirty witnesses

testified.

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III. SUMMARY OF THE ARGUMENT

In his first issue, Bell raises a variety of claims of

ineffective assistance of counsel. Evidence adduced at the

evidentiary hearing demonstrated trial counsel, Richard

Nichols, was an experienced attorney who fully investigated

the case and formulated a reasonable strategy under the

circumstances.

Many of Bell’s complaints center on trial counsel’s

failure to object to various comments made by the prosecutor.

Bell failed to demonstrate that trial counsel performed

deficiently and has failed, in any event, to demonstrate

prejudice. The record of both the trial and evidentiary

hearing demonstrate either the prosecutor’s comments were not

objectionable or trial counsel made a decision not to object

as part of a reasoned trial strategy. Even if counsel should

have objected to some of the prosecutor’s comments, Bell can

show no prejudice because none of the objectionable comments,

even when viewed together, deprived Bell of a fair trial.

Bell also complains trial counsel was ineffective for

failing to object to the standard jury instructions and in

failing to renew his motion to strike the venire after the

parties observed a friend of Tamecka Smith wearing a T-shirt

that depicted Ms. Smith as well as her date of birth and date

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of death. None of the jury instructions about which Bell

complains had been invalidated at the time of Bell’s trial.

Additionally, the trial judge inquired of the venire whether

anyone had seen the T-shirt. Of the seven members of the

venire who saw the shirt, none recognized the face on the

shirt, and all agreed their observations of the T-shirt would

not interfere with their ability to act as a fair and

impartial juror. Bell failed to show counsel’s performance

was deficient.

Bell also complains that trial counsel advised him

against testifying at trial. The record of trial and the

evidence adduced at the evidentiary hearing demonstrate that

Bell knowingly and voluntarily waived his right to testify.

In light of Bell’s chosen “reasonable doubt” defense and his

own evaluation of his client’s demeanor, Mr. Nichols counseled

Bell his testimony may do more harm than good. Trial counsel

is not ineffective when he brings to bear his best advice on

the issue of whether a defendant should testify at trial, and

after considering that advice, the defendant knowingly and

voluntarily chooses not to testify.

Bell did not testify at the evidentiary hearing or

present any evidence to rebut Mr. Nichols’ testimony that

Bell knowingly and voluntarily waived his right to testify.

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Accordingly, Bell failed to demonstrate that, at the time of

trial, Mr. Nichols’ advice was not sound reasoned legal

strategy.

Most of Bell’s claims of ineffective assistance of

counsel center on his claim that trial counsel was ineffective

for failing to aggressively pursue a credible defense. To

this day, Bell has failed to produce a single witnesses who

might have refuted the State’s case, which overwhelmingly

established that Bell murdered Jimmy West and Tamecka Smith,

the former out of revenge, and the latter because she got in

the way. Although Bell now claims that trial counsel should

have more fully pursued a claim of self defense, Bell failed

to given any information to his trial counsel to assist him in

crafting a credible self-defense theory. Apart from Bell’s

lack of forthrightness with his lawyer, Bell refused to allow

trial counsel to pursue a self-defense theory, claiming

throughout he was not the shooter. Moreover, when, just

before the charge conference, Bell suggested Jimmy West

“might” have been going for a gun and insisted that counsel

argue self defense, trial counsel asked for and received the

self-defense instruction and made as cogent an argument as

could be made under the circumstances as they existed then or

now.

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Likewise, Bell has failed to show trial counsel was

ineffective for failing to present more evidence in

mitigation. The record establishes that Bell affirmatively

resisted presenting additional witnesses in mitigation, and

may not complain now that trial counsel did not override his

wishes. At the evidentiary hearing, Bell failed to present

new mitigation sufficiently compelling to demonstrate that had

trial counsel presented such evidence, the jury probably would

have recommended a life sentence. Although the evidence

demonstrates Bell's mother left his father when he was very

young, his childhood was neither morally nor materially

impoverished. Bell has no mental disease or disability, other

than antisocial personality disorder, a condition viewed by

both trial counsel and Bell's mental health expert as more

aggravating than mitigating.

At the evidentiary hearing, Bell presented “character”

witnesses not called to testify at trial. Most these

witnesses could say little more than Bell was a “nice guy”.

Although obviously close to him at one time, none of Bell’s

witnesses could say anything especially positive about him; in

fact they seemed to know very little about who he really was.

For the most part, these witnesses were unaware of Bell’s

prior violent criminal history. In light of Bell’s violent

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criminal history and the premeditated murders of Jimmy West

and Tamecka Smith, there is no reasonable possibility that

presentation of these witnesses would have resulted in a life

sentence.

IV. ARGUMENT

ISSUE ONE

WHETHER TRIAL COUNSEL WAS INEFFECTIVE DURING THE GUILT PHASE AND PENALTY PHASE OF BELL’S CAPITAL TRIAL

To establish a claim of ineffective assistance of

counsel, two elements must be proven. First, the defendant

must show that trial counsel's performance was deficient.

This requires a showing that counsel made errors so serious

that counsel was not functioning as the "counsel" guaranteed

the defendant by the Sixth Amendment. Kimbrough v. State, 886

So.2d 965, 978 (Fla. 2004).

In order to meet this first element, a convicted

defendant must first identify, with specificity, the acts or

omissions of counsel that are alleged not to have been the

result of reasonable professional judgment. The court must

then determine whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of

professionally competent assistance. Pietri v. State, 885

So.2d 245 (Fla., 2004).

In reviewing counsel's performance, the court must

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indulge a strong presumption that trial counsel's conduct

falls within the wide range of reasonable professional

assistance. It is the defendant's burden to overcome this

presumption. Mungin v. State, 31 Fla. L. Weekly S 215 (Fla.

April 6, 2006). In this case, the presumption that Mr.

Nichols’ conduct fell within the wide range of professional

assistance includes, within it, the presumption that under the

circumstances, the challenged action might be considered sound

trial strategy. Asay v. State, 769 So. 2d 974, 984 (Fla. 2000)

(ruling the defendant bears the burden of proving that

counsel's representation was unreasonable under prevailing

professional standards and was not a matter of sound trial

strategy).

If the defendant successfully demonstrates trial

counsel’s performance was deficient, the defendant must then

show this deficient performance prejudiced the defense.2 In

order to demonstrate prejudice, the defendant must show there

is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

2 If a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong. Waterhouse v. State, 792 So.2d 1176, 1182 (Fla. 2001).

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sufficient to undermine confidence in the outcome. Rutherford

v. State, 727 So.2d 216, 219 (Fla. 1998).

Where Bell alleges his counsel was ineffective during the

penalty phase for failing to adequately investigate and

present evidence in mitigation, Bell must show that, but for

trial counsel's alleged errors, he probably would have

received a life sentence. Gaskin v. State, 822 So.2d 1243

(Fla. 2002). Unless a defendant can show both deficient

performance and prejudice, it cannot be said the conviction or

death sentence resulted from a breakdown in the adversary

process that renders the result unreliable. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Gorby v. State, 819

So.2d 664,674 (Fla. 2002).

Bell raises thirteen issues under the general rubric of

his claim that trial counsel was ineffective at both the

guilt and penalty phase claim:

a. Whether trial counsel was ineffective for failing to object to the prosecutor’s comments that co-defendant Dale George pled guilty. Bell claims that trial counsel was ineffective for

failing to object when the prosecutor revealed to the jury

during opening statement and closing argument that state

witness Dale George had been charged and pled guilty to

accessory after the fact in connection with West and Smith’s

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murders. Bell further claims trial counsel was ineffective

for failing to object when the prosecutor elicited testimony

from Mr. George, on direct examination, he had pled guilty as

an accessory after the fact because of his role as Bell’s get-

away driver. (IB 6).

In his opening statement, the prosecutor outlined the

testimony that would be presented by the various witnesses.

Among the state witnesses was Bell’s get-away driver, Dale

George. The prosecutor told the jury that Dale George was a

"three-time convicted felon, who had been arrested and charged

with being an accessory to the murders of Jimmy West and

Tamecka Smith. The prosecutor informed the jury that Mr.

George initially denied all knowledge of the murder but

changed his story after being arrested, and pled guilty

pursuant to a negotiated agreement. The plea agreement

required Dale George to testify truthfully in Michael Bell’s

trial. (TR Vol. IX 272-73).

During direct examination, George acknowledged having

three prior felony convictions. He testified he was in jail

awaiting sentencing for his role in the murders of Jimmy West

and Tamecka Smith. (TR Vol. X 462-463). His plea agreement

provided he would "get no more than five years in the State

Prison" and would not be "habitualized" as a habitual

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offender. (TR Vol. X 463).

In his closing argument, the prosecutor touched on Dale

George’s credibility. The prosecutor argued that, in

evaluating George’s credibility, the jury should consider

George acknowledged being his role in the murders and pled

guilty to being an accessory after the fact. (TR Vol. X 585-

586).

Bell contends trial counsel was ineffective for failing

to object when the prosecutor commented on, and presented

testimony about, Dale George's guilty plea. Bell claims such

comment is improper because mention of George’s guilty plea

implies Bell is guilty by association. The collateral court

properly denied this claim.

Dale George was not simply Bell’s co-defendant. He was

also a state witness, subject to impeachment, who testified

about both his and Bell’s role in the murder of Jimmy West and

Tamecka Smith. As a witness, his credibility in general, and

his motive for testifying for the state, were at issue, and

his plea agreement was clearly a proper matter for defense

cross-examination. Davis v. Alaska, 415 U.S. 308 (1974).

Generally, the State need not wait for the defense to

impeach a state witness with prior convictions or allegations

of bias, but may attempt to "soften the blow" of anticipated

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impeachment by questioning its witnesses on direct examination

about their prior convictions, pending charges, and plea

agreements. 3 See Brookings v. State, 495 So.2d 135, 141 (Fla.

1986) (on direct examination of witness, prosecutor entitled

to address prior inconsistent statement and perjury charge

that resulted); Bell v. State, 491 So.2d 537, 538 (Fla. 1986)

(credibility of witness is always an issue, and rule against

impeaching one's own witness had not been interpreted to

"forbid counsel from asking his own witness on direct

examination about prior inconsistent statements or prior

convictions when done in an attempt to 'soften the blow' or

reduce the harmful consequences"). The record reflects this

is precisely what occurred here.

As the State had anticipated, trial counsel cross-

examined Dale George about his initial reluctance to

acknowledge his involvement to police, his "deal" with the

State, and the fact he potentially faced a charge of first

degree murder and a death sentence. (TR Vol. X 477-480). Even

if trial counsel could have objected to the State's

examination about the plea agreement, he had no reason to.

3 Logic and common sense dictate that if the prosecution may soften the blow on direct examination by bringing out facts relevant to potential areas of impeachment, the prosecutor may also touch on these same facts during opening statement.

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The record reflects that trial counsel capitalized on the

plea agreement in an attempt to discredit George's testimony.

Accordingly, Bell has failed to demonstrate that trial

counsel's decision to use George's negotiated plea against him

rather than to attempt to exclude it was somehow

constitutionally unreasonable.

The record also refutes Bell’s claim the prosecutor’s

revelation about Dale George implied Bell’s “guilt by

association”. Bell points to nothing in the record in support

of the notion the prosecutor argued, or even implied, George’s

guilty plea should impute any guilt to Bell. Instead, the

record shows only the prosecutor pointed to the plea only as

matter for consideration in the jury’s determination of

George’s credibility.

Bell has failed to demonstrate the prosecutor’s comments

were objectionable. Likewise, Bell failed to show there is a

reasonable probability of a different verdict had trial

counsel had objected to any mention of George's plea

agreement. The trial court properly rejected this claim of

ineffective assistance of counsel and this Court should

affirm.

c. Whether trial counsel was ineffective in his direct examination of Bell’s mother during the penalty phase of Bell’s capital trial.

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Bell claims trial counsel was ineffective for questioning

his mother at the penalty phase of his trial about Bell’s

prior robbery conviction and sentence. Bell complains his

trial counsel asked his mother during direct examination “You

were aware that your son had gone to prison for a period of

time because of a robbery”? Mrs. Bell answered “Correct”.

Bell alleges his mother’s testimony was limited to

threats made by Jimmy West and Theodore Wright against Bell’s

family and, as such, the prosecutor would not have been able

to explore Bell’s robbery conviction on cross-examination.

(IB 9). Bell also points out that the State had already

introduced a certified copy of Bell’s judgment and conviction

for armed robbery and published it to the jury. (TR Vol. XI

660-661). Bell claims if trial counsel had not inquired

about the conviction, any attempt by the prosecutor to

question Mrs. Bell about her son’s conviction would have been

subject to an objection as “impermissible cumulative

evidence.” 4

During the evidentiary hearing, Bell asked trial counsel

why he had asked his mother about Bell's prior armed robbery

4 During the prosecutor’s cross-examination, trial counsel objected when the prosecutor attempted to go into details about how much time Bell served. This objection was sustained. (TR Vol. XI 673-674).

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conviction. Mr. Nichols testified he believed the prosecutor

could have explored this issue during cross-examination.

According to Mr. Nichols, it often “behooves the defense when

something damaging is going to come up to reveal it on their

own behalf.” (PCR Vol. VIII 1497). Mr. Nichols explained it

was a tactical decision to minimize the impact of the

prosecutor’s cross-examination. (PCR Vol. VIII 1497).

The collateral court denied this claim, ruling that trial

counsel’s decision to minimize the damage by bringing out Ms.

Bell’s knowledge of her son’s prior conviction was a reasoned

tactical decision with the best interest of his client in

mind. (PCR Vol. IV 720). The collateral court correctly

denied this claim.

This Court has recognized that anticipatory

rehabilitation is a technique often used to take the wind out

of the sails of an attack on credibility or to "soften the

blow" of anticipated inquiries. Bell v. State, 491 So.2d 537,

538 (Fla. 1986)(approving the use of "anticipatory

rehabilitation" to "take the wind out of the sails" of an

attack on credibility or to "soften the blow" of anticipated

inquiries or revelations expected to be damaging to the

credibility of the witness). Trial counsel’s initial

questioning was clearly designed to establish Ms. Bell’s

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credibility and to ensure the jury knew Ms. Bell was not in

the dark about her son’s criminal history. Additionally,

trial counsel’s question ensured the jury did not first hear

of Ms. Bell’s knowledge about her son’s criminal history from

the prosecutor. Even if trial counsel should not have asked

Bell’s mother about the robbery conviction, Bell cannot

prevail because Bell cannot show a reasonable likelihood he

would have received a life sentence if trial counsel had

refrained from asking about Bell’s robbery conviction. As

Bell pointed out in his initial brief, the jury was already

well aware Bell had been convicted and sentenced to prison for

armed robbery. (IB 9). Given the fact the conviction and

sentence were already in evidence, there is no reasonable

possibility that, absent trial counsel’s inquiry, the results

of the proceeding would be different.

d. Whether trial counsel was ineffective for advising Bell not to testify. Bell makes a claim counsel interfered with his right to

testify by advising Bell not to testify during the guilt phase

of his trial.5 The collateral court granted Bell an

5

-20-

evidentiary hearing on this claim.

At trial, after the State rested its case, the court

inquired of Mr. Nichols whether he had discussed with Bell his

right to testify. Trial counsel assured the court he had

indeed discussed the matter with his client and Bell had

indicated he did not want to take the stand. (TR Vol. X 527).

When the court inquired of Mr. Bell personally, Bell stated it

was his decision not to testify. (TR Vol. X 527).

During the evidentiary hearing, Mr. Nichols explained he

and Bell discussed whether Bell should testify during the

guilt phase of his trial. Mr. Nichols advised Bell he did not

believe that Bell’s personal testimony would have any

beneficial effect on the case and that the jury would probably

not have a positive reaction to Bell’s testimony. (PCR Vol.

VIII 1498). Mr. Nichols testified he also advised Bell that

if he took the stand he would be subject to impeachment on his

prior felonies. (PCR Vol. VIII 1499).

When asked about his reasoning for his advice to Bell,

Mr. Nichols told the collateral court that based on Bell’s

general demeanor and style of communication, he believed the

jury would react poorly to Bell’s testimony. (PCR Vol. IX

Though the heading of this claim does not limit this claim specifically to the guilt phase, Bell presents argument only as to the guilt phase.

-21-

1654). Mr. Nichols explained that, in his view, if a

defendant does poorly on the witness stand, juries tend to

fill in the blanks for the State and the impact of the

defendant’s testimony may make the State’s weak points

stronger. (PCR Vol. IX 1654). Mr. Nichols testified he

believed generally that a jury, who does not believe the

defendant when he takes the stand or reacts badly to him for

some reason, tends to conclude, “well, if the defendant is

lying, the State must be telling the truth.” (TR Vol. IX

1654).

Mr. Nichols testified that Bell made the decision not to

testify in both phases of his trial. (PCR Vol. IX 1654,

1656). Mr. Nichols was satisfied his client understood the

responsibilities that went with testifying and the

consequences of both testifying and not testifying. (PCR Vol.

IX 1655). Mr. Nichols never perceived that Bell was suffering

from any sort of diminished capacity or diminished ability to

understand what was going on. Bell was bright and articulate

and trial counsel saw nothing indicating Bell had any

diminished understanding of the process. (PCR Vol. IX 1654-

1655).

The collateral court denied Bell’s claim because Bell did

not present any evidence to support it. (PCR Vol. IV 720).

-22-

The collateral court ruled Bell could not seek, in post-

conviction proceedings, to go behind his sworn representations

in court because the trial record contained a colloquy with

Bell during which he personally stated his decision not to

testify. (PCR Vol. IV 720).

The court also concluded that because trial counsel

explained Bell’s right to testify and rendered advice, based

on his professional judgment that it would not be in Bell’s

interest to testify, Bell failed to demonstrate counsel’s

performance was deficient. (PCR Vol. IV 721-722). The

collateral court found Mr. Nichol’s testimony on the claim to

be “more credible and more persuasive that the Defendant’s

allegations.” (PCR Vol. IV 722). In order to prevail on a

claim trial counsel interfered with his right to testify,

Bell must meet both prongs of Strickland. Oisorio v. State,

676 So. 2d 1363, 1364-65 (Fla. 1996) (holding that to succeed

in an ineffectiveness claim that trial counsel interfered with

defendant's right to testify, defendant must meet both prongs

of Strickland). Bell has failed as to both.

The underlying premise on which Bell bases this claim is

that he relied on a claim of self-defense. Bell argues his

prior criminal record (three prior felony convictions and five

or six prior misdemeanors, involving dishonesty and false

-23-

statement), would not have “hurt him much” because all but one

of the eyewitnesses to the shooting also had criminal

convictions. (IB 11). Bell alleges that, in view of his

claim of self-defense, it was “nonsensical to dissuade the

Defendant from taking the stand and telling the jurors of both

the past threats and the imminent harm he perceived.” (IB 12).

The rub with Bell’s argument is that throughout the

trial, Bell did not claim self-defense. During the

evidentiary hearing, trial counsel testified that when he and

Bell discussed the evidence, Bell would tell him nothing to

assist in presenting any defense at all. (PCR Vol. VIII 1517).

Trial counsel told the collateral court Bell simply demanded,

over and over, that the State “bring it to [him] in the

courtroom.” (PCR Vol. VIII 1518). Trial counsel testified

he could not pursue a self-defense theory without

acknowledging Bell had done the killing and Bell would not

permit him to do so. (PCR Volume IX 1587). Trial counsel

testified that Bell never told him he shot West and Smith in

self-defense and had said throughout he did not commit this

crime. (PCR Vol. VIII 1525).

Mr. Nichols explained that never in the conversations he

had with Bell or with anyone else did he ever think self-

defense was a viable defense. (TR Vol. IX 1659). According

-24-

to trial counsel, Bell maintained he was not the shooter until

the guilt phase charge conference. Only then did Bell made

some vague reference to the fact that “maybe” West went for a

gun or that “maybe” I shot him thinking he was going to shoot

me because there had been a feud between the Bell family and

West family. (PCR Vol. VIII 1525).

As a result, trial counsel asked for a self-defense

instruction and Judge Olliff agreed to give it. At no time

prior to trial, or during the presentation of evidence, had

Bell provided any information to support self-defense. (PCR

Vol. VIII 1525).

Bell did not testify at the evidentiary hearing to refute

trial counsel’s testimony that Bell refused to allow him to

pursue a self-defense theory. Further, because Bell did not

testify during the evidentiary hearing in support of a self-

defense theory, Bell presented no evidence to demonstrate his

trial testimony would have resulted in his acquittal, or even

improved his chances of a conviction of a lesser charge.

In any event, the evidence supports a conclusion that

Bell’s decision not to testify was knowing and voluntary. It

also supports a conclusion that counsel’s advice to his client

was grounded in sound trial strategy.

Bell’s conduct throughout these proceedings, including

-25-

his pro se pleadings before this court, indicate Bell has no

difficulty speaking his mind or taking a position contrary to

that taken by appointed counsel. The trial record reflects

Mr. Nichols informed the trial court that Bell indicated to

him he did not want to testify. The trial judge inquired of

Bell whether it was his decision not to testify and Bell

answered it was. (TR Vol. X 527). While counsel advised

Bell it was not in his best interest to testify, the record

establishes Bell personally made the decision not to take the

witness stand. Though given the opportunity, Bell adduced no

evidence at the evidentiary hearing that counsel “dissuaded”

him from testifying, that his decision to testify was not

freely and voluntarily made, or that he even wanted to testify

at all. Bell has failed to show counsel interfered in his

right to testify.

Moreover, trial counsel was an experienced trial counsel.

At the time of the evidentiary hearing Mr. Nichols had been a

defense attorney for some twenty-five years and a member of

the bar for twenty-nine years. (PCR Vol. VIII 1494, IX 1644).

He had been both a prosecutor and a defense counsel and tried

his first capital murder case in 1978. (PCR Vol. IX 1645).

Based on his experience, Mr. Nichols believed Bell’s

testimony would do him more harm than good and he told him so.

-26-

The record supports the trial judge’s findings Mr. Nichols’

advice was due to reasonable, strategic considerations and the

claim should be denied. Lott v. State, 31 Fla. L. Weekly S

222 (Fla. April 13, 2006); Shere v. State, 742 So. 2d 215, 222

(Fla. 1999)(rejecting a similar ineffective assistance of

counsel claim in light of trial counsel’s concern his client

would not be credible because he kept changing his story).

This court should deny this claim.

f. Whether trial counsel was ineffective in failing to object to the prosecutor’s comments that the State does not seek death in every case. Bell argues that trial counsel was ineffective for

failing to object when the prosecutor, during his guilt phase

closing argument, told the jury the State does not seek the

death penalty in every case, but when the facts surrounding a

murder demand that the death penalty be imposed, the State

does seek the death penalty. (IB 13). Bell cites to Brooks

v. State, 762 So.2d 879 (Fla. 2000) in support of his claim.

Bell is mistaken when he alleges this particular comment

occurred in the guilt phase of his trial. Instead, the

comment was made in the penalty phase. (TR Vol. XI 683-684).

Bell also mistakenly asserts he was denied an evidentiary

hearing on this claim. (IB 13). At the evidentiary hearing,

Bell requested, and the court permitted, Bell to inquire into

-27-

trial counsel’s reasoning for not objecting to this particular

comment. (PCR Vol. VIII 1494).

This claim should be denied because Bell cannot show any

prejudice from trial counsel’s failure to object to this brief

comment. While it may have been improper for the State to

imply Bell’s case was inherently cloaked with legitimacy as a

“death penalty case” simply because the State decided to seek

the death penalty, Bell failed to demonstrate he probably

would have

received a life sentence had counsel objected to the comment

and the jury been given a curative instruction.

The trial judge properly instructed the jury on its

responsibilities during the penalty phase. It is unlikely any

reasonable juror would be swayed by this brief comment or be

unduly influenced by the State’s decision to seek the death

penalty, a decision made obvious by the fact jurors were

serving in a capital case. Bell has failed to demonstrate he

was prejudiced by trial counsel’s failure to object to this

comment.

h. Whether trial counsel was ineffective for failing to investigate and obtain the recorded statement of State witness, Ericka Williams. Bell alleges trial counsel was ineffective for failing to

-28-

acquire an audio-taped interview (hereinafter the “Williams

tape”) between state witness Ericka Williams and attorney

Rodney Gregory. According to Bell, Ms. Williams confessed to

Mr. Gregory the State had coerced her into testifying falsely

at trial that she gave Bell the murder weapon (an AK-47

assault rifle). Bell alleges that, in reality, Williams gave

the rifle to his driver, Dale George. Bell did not offer the

Williams tape into evidence at the evidentiary hearing, nor

did he offer any evidence the Williams tape ever existed at

all.

At the evidentiary hearing, Ms. Williams testified that

her trial testimony was true and that no one threatened or

coerced her in any way to testify. (PCR Vol. VII 1344). While

she recalled having some conversation with Rodney Gregory, at

Bell’s request, she could not recall the substance of the

conversation. (PCR Vol. VII 1339). She reaffirmed it was

Bell who took possession of the AK-47 after she purchased the

weapon. (PCR Vol. VII 1346). Ms. Williams provided no

testimony establishing she ever taped an interview with Rodney

Gregory. Rodney Gregory did not testify at the evidentiary

hearing.

Mr. Nichols testified at the evidentiary hearing on this

issue. Mr. Nichols received information the Williams tape

-29-

might exist. Mr. Nichols dispatched his investigator to go

get the tape from Gregory and instructed him if he had it, but

was not willing to turn it over, that they would do whatever

we could to get the tape. (PCR Vol. VIII 1515). He told the

court that when he learned of the possible existence of the

Williams tape, he asked his investigator to follow-up and go

get it and the investigator reported there was no tape to be

found. (PCR Vol. VIII 1515). While Bell claims in this brief

the defense investigator “admitted” he did not investigate or

follow up on the tape, the record does not support his

allegation. (IB 17, PCR Vol. VIII 1431).

The collateral court found that Bell presented no

evidence in support of his claim. The court found that

contrary to Bell’s assertions, trial counsel investigated the

possibility the Williams tape existed yet found no evidence it

existed. The collateral court found Mr. Nichol’s

investigation sufficient and denied Bell’s claim. (PCR Vol.

IV 725-727).

Bell can show no deficient performance because trial

counsel conducted a reasonable investigation into allegations

the Williams tape existed. He dispatched his investigator to

find the tape but no tape could be found. At the evidentiary

hearing, Bell failed to produce the Williams tape.

-30-

Accordingly, because trial counsel investigated this possible

lead, and because there is no evidence the Williams tape even

existed, Bell can show no deficient performance. This Court

should deny this claim.

i. Whether trial counsel was ineffective for failing to call Andre Mayes as a witness for the defense at the guilt phase of Bell’s capital trial for the purpose of impeaching State witness, Charles Jones. Bell claims trial counsel was ineffective for failing to

call Andre Mayes (Abdul Wilson) at the guilt phase of his

capital trial for the purpose of impeaching Charles Jones.

Bell claims that Mayes could have testified that Jones

received certain inducements to testify for the State.

At trial, Jones testified that around the middle of

December 1993, Bell tried to sell him an AK-47. Bell was

asking $400 for the weapon. He had known Bell about 10 years.

Jones told the jury Bell seemed very anxious to sell the

weapon. Bell was having difficulty selling it and dropped the

price to $300. No one bought the weapon. (TR Vol. X 488).

In January 1994, Jones saw Bell at the Moncrief Liquor

Game Room.6 Jones asked Bell why he had killed Jimmy West

6 Jones did not testify they were in the game room at the time he talked with Bell, only that they were “at” the game room.

-31-

when there was no right to kill his brother. Bell told him

that “he [Theodore Wright] killed my brother and that was the

closest thing to me and I kill his.” Jones then asked Bell

why did he kill the innocent girl that was in the car. Jones

told the jury that Bell responded “fuck that shit” and that

“bullets don’t know nobody, she was at the wrong place at the

wrong time.” Bell told Jones West was also in the wrong

place at the wrong time and Theodore Wright was the one that

killed his brother and he never could catch him so he said

‘fuck it’ and “just took him (West) out.” (TR Vol. 489-490).

Jones admitted he was a three-time convicted felon and

was currently waiting to be sentenced on a robbery charge in

federal court. Mr. Jones was looking at 15-19 years. Jones

told the jury he was not testifying as a result of any plea

bargain but hoped his cooperation would be favorably

considered by the federal judge. (TR Vol. X 486-487).

During cross-examination, trial counsel elicited

testimony from Jones that he did not like Michael Bell and

they had quarreled in the past. He denied ever shooting at

Bell. (TR Vol. X 492).

Bell called Mr. Mayes to testify at the evidentiary

hearing in support of his claim trial counsel was ineffective

-32-

for calling Mayes to impeach Jones’s trial testimony. Mayes

testified Charles Jones got a lot of visits when he was in

jail. According to Mayes, Jones came back to the cell after

one visit with his hair braided. (PCR Vol. VI 999).

Mayes testified that Jones would go to the Police

Memorial Building for police interviews. According to Mayes,

when Jones would come back to jail, he bragged about getting

to visit with his family. Mayes testified he saw Jones’

family going into the Police Memorial Building, once, and one

of them were carrying a brown bag. He assumed the bag

contained food because Jones reported he had eaten good that

day. According to Mayes, Jones told him he had sex with his

wife on one of their visits and he once saw Jones in the jail

with some cigarettes and marijuana. Mayes testified Jones

told him a detective was arranging the visits. (PCR Vol. VI

1001-1004, 1008).

Mr. Jones also testified at the evidentiary hearing.

Jones testified he spoke to Detective Bolena once but was

never checked out to go to the Memorial Building. (PCR Vol. VI

1065). Jones told the collateral court his trial testimony

was true and was not the product of any coercion or

enticement. (PCR Vol. VI 1067-68). Mr. Jones testified he

never had any special visits with his family while awaiting

-33-

trial nor had any conjugal visits with his wife. (PCR Vol. VI

1068). No one supplied special food, cigarettes, or

marijuana. (PCR Vol. VI 1069). He did know Andre Mayes, but

never talked to him about Michael Bell. (PCR Vol. VI 1069-70).

He told the collateral court that Mayes tried to recruit him

to testify on his behalf in Mayes' federal case, and was not

happy with Jones' refusal. (PCR Vol. VI 1070-71). He also

acknowledged, as he did at trial, that he did not like Bell.

(TR Vol. X 492, PCR Vol. VI 1074).

Lisa Jones also testified at the evidentiary hearing.

Ms. Jones is married to Charles Jones (PCR Vol. VIII 1416).

She testified that, while she visited her husband at the jail

as part of regular visitation, she had no special or conjugal

visits with him. (PCR Vol. VIII 1417-1418). She never visited

him in the Police Memorial Building. (PCR Vol. VIII 1417).

Jones never discussed this case with her. (PCR Vol. VIII

1418).

In denying Bell’s claim, the collateral court found

Jones’ testimony was more credible than Mayes’ testimony.7

The court also found Bell had not demonstrated sufficient

7 The collateral court mistakenly referred to Lisa Jones as Cathy Jones in his order on post-conviction relief. He correctly summarized Lisa’s testimony however in deciding this claim. (PCR Vol. IV 728).

-34-

evidence to support his claim for relief. The Court concluded

that Bell had wholly failed to support his assertions. (PCR

Vol. IV 728).

The collateral court correctly denied Bell’s claim. In

finding the Jones’ testimony more credible than Mayes’

testimony, the trial court found that Bell failed to show

counsel was ineffective for failing to call Mayes to testify

at trial. Even so, Bell can show no prejudice because the

jury was well aware that Jones was testifying for the State in

hopes that his testimony would be favorably considered by the

federal sentencing judge when sentencing Jones for robbery.

The jury was also aware that Jones had been convicted of a

felony three times and did not like Bell. Given the ample

impeachment evidence brought before the jury, there is no

reasonable probability the outcome of the trial would have

been different had trial counsel called Mayes to testify that

Jones seemed to be getting police perquisites as a result of

his cooperation in the Bell case. Additionally, because the

state could have rebutted Mayes’ testimony with the testimony

of Charles and Lisa Jones and the collateral court found

Mayes’ version of events not credible, Bell failed to show

calling Mayes probably would have affected the outcome of his

-35-

trial. 8 Brown v. State, 846 So.2d 1114,1122 (Fla. 2003)

(noting that Brown’s claim that collateral counsel was

ineffective for failing to impeach a witness on certain issues

is essentially a hindsight analysis).

j. Whether trial counsel was ineffective for failing to investigate and present a credible defense theory to the jury. Bell argues that trial counsel was ineffective for

failing to present a viable defense. He contends that

evidence existed to support arguments for (1) self defense,

(2) reasonable doubt, (3) justifiable homicide, or (4)

manslaughter.

(1) Self-defense

Bell is mistaken when he claims trial counsel was

ineffective for failing to present a credible self-defense

theory to the jury. Bell would not permit trial counsel to

pursue self-defense. At the evidentiary hearing, trial

counsel testified he could not argue self-defense without

acknowledging that Bell had done the killing (PCR Vol. IX

1587). Bell would not allow trial counsel to do that. Bell's

8 Any prudent defense counsel may choose not to call a witness of questionable veracity or one whose testimony the State can easily contradict.

-36-

choice of strategy was to deny that he had been the shooter

and to require the State to prove to the contrary. (Vol. VIII

1518).

Trial counsel testified that Bell never told him he shot

West and Smith in self-defense and said throughout he did not

commit this crime. (PCR Vol. VIII 1525). Never in the

conversations he had with Bell or with anyone else did trial

counsel ever think self-defense was a viable defense. (PCR

Vol. VIII 1521, Vol. IX 1659). Only during the charge

conference did Bell make some vague reference to the fact that

“maybe” West went for a gun or that “maybe” I shot him

thinking he was going to

shoot me because there and been a feud between the Bell family

and West family. (PCR Vol. VIII 1525).

Assuming there had been some plausible evidence to

support a self-defense theory, trial counsel cannot be deemed

constitutionally ineffective for acceding to Bell’s refusal to

allow trial counsel to concede Bell was the shooter and argue

the shooting was in self-defense. As noted by the United

States Supreme Court:

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and

-37-

on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.

Strickland v. Washington, 466 U.S. 668, 695-96 (1984).

Even if trial counsel's failure to investigate or present

a self-defense theory, despite Bell's rejection of such a

defense, could be deemed constitutionally deficient, Bell

cannot prevail without demonstrating actual prejudice as

defined in Strickland.

Under Florida law, deadly force may be used in self-defense if

a person reasonably believes that such force is necessary to

prevent imminent death or great bodily harm. Section 776.012,

Florida Statutes (1995) provides, in pertinent part, that a

person is justified in the use of deadly force only if he

reasonably believes that such force is necessary to prevent

imminent death or great bodily harm to himself or another or

to prevent the imminent commission of a forcible felony.

In support of his allegation that trial counsel should

have pursued a claim of self-defense, Bell points to evidence

-38-

that there was a running feud between Jimmy West and the Bell

family and that Bell and his family lived in fear of West

because West and his brother had shot at Bell and his brother

on multiple occasions. He also claims that ammunition was

found in West’s car after the murder. (IB 22-23).

No one disputed that Bell was feuding with Jimmy West and

his brother Theodore Wright. However, no matter how strongly

Bell himself may believe that he had the right to seek

vengeance, the mere existence of such a feud fails to support

a theory of self- defense. Evidence of the feud failed to

establish an "imminent" threat.9

While Bell did suggest to trial counsel at the charge

conference that West might have been reaching for a gun, Bell

presented no evidence that West was reaching for a gun or even

appeared to reach for a gun in the moments before Bell sprayed

West’s car with automatic weapons fire. (PCR Vol. VIII 1524).

9 The only “evidence” even hinting at a claim of self-defense came from state witness Paula Goins who had no personal knowledge of the events at Moncrief Liquor Stores but was allowed to testify about Bell’s self-serving statement. MS. Goins testified very vaguely that Bell told her that when West got into the car after leaving Moncrief’s, Bell saw him reach down. Bell felt like he was going to rearm himself because he was known to carry a weapon. He had to rearm himself because patrons at Moncrief Liquors were not allowed to carry guns inside (patrons were screened by a metal detector). Bell did not tell Ms. Goins that West reached for a gun in response to Bell’s armed approach to his car. (TR Vol. X 508)

-39-

Bell did not testify at the evidentiary hearing and presented

no witness to support a credible self-defense claim.

Additionally, there was substantial evidence presented to the

jury which invalidated this defense, specifically that Bell

had carefully planned the murder.

Although masked, Bell was identified as the shooter by

Henry Edwards. Edwards saw Bell don a mask, walk up to West’s

car and start shooting. (TR Vol. IX 308-309). Ned Pryor saw

Bell carrying an AK-47 toward the victim's car just before he

heard the shooting start. (TR Vol. IX 441-442).

Ericka Williams testified that prior to the murder, Bell

told her he would "even the score" even if innocent people got

hurt, because "sometimes the good have to suffer with the bad"

(TR Vol. IX 402). At Bell’s request, one day before the

murders, Ms. Williams purchased an AK-47 automatic weapon and

gave it to Bell. Ned Pryor testified at trial that Bell

planned to get even with Wright for killing his brother. (TR

Vol. IX 440-441). Bell’s aunt, Paula Goins, encouraged Bell

to go to the police because of the feud. Bell told her that

"prison was too good for [Wright], he needs to be in a morgue

like [Bell's] brother". (TR Vol. IX 499). After the murder,

Bell confessed to Ned Pryor (TR Vol. IX 447), Ericka Williams

(TR Vol. IX 412), and Charles Jones (TR Vol. X 489). He told

-40-

Jones he had killed West because he couldn't catch West's

brother Theo (TR Vol. IX 490). Bell failed to show that

evidence supporting a credible self-defense argument exists.

As such, Bell can show no prejudice from trial counsel’s

failure to discover and present non-existent evidence.

Bell also can show no prejudice because self-defense is

not ordinarily available to the initial aggressor. Section

776. 041(2), Florida Statutes (1987). In precluding a claim

of self-defense for an initial aggressor the legislature

clearly recognized the state’s compelling interest in

disallowing the use of self defense when a person's own

unprovoked, aggressive, and felonious acts set in motion an

unbroken chain of events leading to a killing or other injury.

Perkins v. State, 576 So. 2d 1310, 1314 (Fla. 1991)(Justice

Kogan specially concurring).

Only in limited circumstances may the initial aggressor

defend on the basis of self-defense. For instance, self-

defense may be available to the initial aggressor if the

killing does not occur in the same sequence of events that

flows from that aggressor's own violence, or if the aggressor

has attempted to withdraw and has indicated this intention

before the victim counterattacks. An initial aggressor may

also be entitled to claim self-defense if the victim responds

-41-

with extreme force and the aggressor then attempts to flee and

exhausts all means of escape before killing the victim. §

776.041(2)(a), Fla. Stat. (1987); Perkins at 1315. None of

these exceptions applied in Bell’s case.

Bell clearly was the initial aggressor. His well-planned

actions of donning a mask and approaching West’s car with a

fully loaded AK-47, set in motion an unbroken chain of events

leading to the deaths of Jimmy West and Tamecka Smith. Under

these circumstances, Bell could not claim self-defense. As

such, Bell can show no prejudice from trial counsel’s failure

to present a self-defense theory to the jury at trial.

(2) Reasonable doubt

As trial counsel defended on the basis of reasonable

doubt, Bell’s real complaint is that trial counsel did not do

more to convince the jury the State had failed to prove its

case beyond a reasonable doubt. Bell makes two points that

trial counsel failed to exploit. First, that eyewitnesses

were unsure about the color of mask Bell wore to conceal his

identity and second, that all the witnesses had credibility

problems because they all were convicted felons. (IB 24).

The difficulty in this argument, however, is that the

jury heard the testimony of each witness as to both points.

As pointed out by Bell, the jury heard that witnesses

-42-

Richardson and George differed on the color of the mask and

that Ned Pryor could not tell if the shooter was wearing a

mask because he was too far away. (TR Vol. X 456). During

closing argument, trial counsel reminded the jury how the

witnesses gave varying accounts about the color of the mask.

(TR Vol. X 599).

Additionally, each of the witnesses was questioned on

their prior felony convictions and admitted them before the

jury. Bell presented no new evidence at the evidentiary

hearing which cast doubt on the jury’s conclusion that Bell

murdered West and Smith on December 9, 1993. Accordingly, the

collateral court properly denied this claim.

(3) Justifiable homicide

The State concurs with Bell that his allegation that

trial counsel was ineffective for failing to claim the murders

were justifiable homicide is preposterous. (IB 25). Section

782.02, Florida Statutes (1995) provides that the use of

deadly force is justifiable when a person is resisting any

attempt to murder such person or to commit any felony upon him

or her or upon or in any dwelling house in which such person

shall be. Bell presented no evidence that either West or

Smith was attempting to murder him or commit any felony upon

him at the time he sprayed West and Smith with 30 rounds from

-43-

an AK-47.

While trial counsel testified that for the first time,

during the charge conference, Bell suggested that West “might”

have been going for a gun, Bell has not presented one shred of

evidence this is the case. No weapon was found in West’s car

or on his person. Bell has never testified he killed West in

self-defense or presented any evidence to support that theory.

Bell avers that it is entirely possible that he may have

actually walked up to West’s car with a view toward “talking

softly and carrying a big stick”. (IB 25). All of the

evidence adduced at trial, including testimony Bell donned a

mask to hide his identity, retrieved an AK-47 assault rifle

from his own car, walked up to West’s car, and opened fire on

its occupants, belies any notion that “talking softly” was any

part of Bell’s plan. There is no evidence to support Bell’s

claim that counsel should have defended on the grounds the

killings were justifiable homicides and this court should deny

his claim.

(4) Manslaughter

In this claim, Bell alleges trial counsel was ineffective

for failing to use available evidence of self-defense to argue

that Bell should only be convicted of manslaughter. Bell

-44-

fails to allege specifically how any available evidence

supported conviction of this lesser included offense.

Additionally, he fails to present any argument to support a

finding that if this lesser included offense had been argued

more vigorously, there is a reasonable probability the jury

would have convicted Bell of manslaughter. The jury was

instructed on the lesser included offense of manslaughter, as

well as justifiable and excusable homicide. The jury rejected

all three. (TR Vol. X 615-616, 618-619). Bell failed to show

trial counsel was ineffective for failing to present evidence

supporting a manslaughter conviction.

l. Whether trial counsel was ineffective during closing arguments in both phases of Bell’s capital trial. In this claim, Bell alleges his trial counsel was

ineffective during his own closing argument. Bell, first,

alleges that during his guilt phase closing argument, defense

counsel made disparaging remarks about Bell’s neighborhood

which painted Bell’s neighborhood as a dangerous place. Bell

claims that trial counsel should not have argued that Bell

lived in a different world than that of the jurors. Bell also

complains that trial counsel depicted the murder as some sort

of Wild West shoot-out.10

10 Many of the arguments that Bell claims trial counsel made in the guilt phase were actually made in the penalty

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Somewhat ironically, Bell faults counsel for not

presenting evidence that Bell lived in fear of imminent harm

from Jimmy West and his family, yet complains here that trial

counsel attempted to paint a picture for the jury that might

lend some support for Bell’s fear. During his closing

argument, trial counsel told jurors that in order for them to

understand the events of December 9, 1993, they would have to

understand the environment in which Michael Bell lived and in

which Jimmy West and Tamecka Smith died.

During the evidentiary hearing, trial counsel testified

that his strategy during closing argument in both phases was

to avoid the death penalty. Mr. Nichols testified that, for

tactical reasons, he wanted the jury to understand the

environment in which Bell lived. His purpose was to point out

that the existence of West in the community presented an

imminent danger to Bell’s safety whether West was actively

pursing Bell or not. He also wanted to ensure that jurors did

not impose their own standards of daily life to Bell because

Bell lived in a community far different from their own. (PCR

Vol. IX 1584). The collateral court found Mr. Nichols’

approach with the jury to be reasoned trial strategy not

constituting ineffective assistance of counsel. (PCR Vol. IV

phase after Bell had been convicted of first degree murder. (IB 30).

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732). A review of trial counsel’s entire closing argument

during the guilt phase reveals that trial counsel’s strategy

was designed to evoke jurors’ empathy with Bell even though

they did not live in, or even understand, the world Bell lived

in. Trial counsel argued that in considering whether Bell

acted in self-defense, jurors had to consider the environment

in which Bell existed, and apply a standard of reasonableness

from a person in Michael Bell’s shoes. (TR Vol. 595-608).

The evidence heard by the jury at trial, undisputedly

painted a picture of Bell’s neighborhood as a dangerous place

to be, a place full of random acts of violence and blood

feuds. As Bell does here, one can always speculate that a

different argument may have been more effective. Such

speculation does not give rise to a finding of deficient

performance simply because it ultimately failed to persuade

the jury. Brown v. State, 846 So. 2d 1114, 1126 (Fla. 2003).

This Court should affirm the trial court’s ruling on this

claim.

Bell complains as well that trial counsel was ineffective

during the penalty phase because he conceded the murder was

CCP. Bell claims that trial counsel conceded the murder was

CCP when he stated to the jury that while there was no moral

or legal justification for the murders, this was not case that

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required the death penalty. In context, trial counsel’s

penalty phase argument, much like his guilt phase argument,

focused on the fact that there was no dispute that Bell lived

in an environment in which violence was an every-day

occurrence. The jury had already rejected any notion the

murders were committed with some moral or legal justification

and trial counsel’s sole aim was to save Bell’s life. The

fact trial counsel was ultimately unsuccessful does not

constitute evidence he rendered ineffective assistance of

counsel. Even if trial counsel should not have argued

this point, Bell made no showing of prejudice. The evidence

overwhelmingly demonstrated Bell planned the murder and

executed his plan with execution-like precision. On direct

appeal, this Court concluded, there was competent substantial

evidence the murders were cold, calculated, and premeditated.

This Court also rejected any notion Bell shot in self-defense

and thus had a pretense of moral or legal justification for

the shooting. Bell v. State, 699 So.2d 674, 677 (Fla.

1997)(noting the motive for the murders was revenge). As Bell

did not show that, but for trial counsel’s alleged improper

argument, he likely would have gotten a life sentence, this

Court should deny this claim.

m. Whether trial counsel was ineffective for failing to object when Bell was shackled during his trial.

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This claim may be denied because Bell presented no

evidence he was shackled in the presence of the jury or that

he was even shackled at all at either the guilt or penalty

phase of his capital trial. No witness presented at the

evidentiary hearing supported Bell’s claim he was shackled

before the jury. While Bell’s mother and Dale George

testified that, at some point, Bell was in chains, neither

could remember at what point they saw the restraints. George

was not certain that Bell had shackles on his feet at trial.

(PCR Vol. VI 1156, PCR Vol. VII 1320).

Neither Dale George nor Mrs. Bell provided any evidence

that Bell appeared in restraints while the jury was present.

Detective Bolena did not see any shackles on Bell during the

couple of hours he was present at trial (PCR Vol. VIII 1410-

1411).

Mr. Nichols testified he did not recall that Bell was in

shackles at trial. (PCR Vol. IX 1662). Mr. Nichols testified

that if Bell had been shackled so that the jury could have

seen them, he would have objected. (PCR Vol. IX 1663). While

Mr. Nichols was unaware of the criteria for shackling, it

never became an issue because if Bell was shackled, he was

certain it was never done in a way the jury would have

observed it. (PCR Vol. IX 1601). Bell did not testify at the

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evidentiary hearing he was shackled at all, let alone in a

manner which the jury could observe.

Bell cannot show counsel was ineffective for failing to

object to his shackling because there is no evidence to

support a conclusion he was shackled during trial when the

jury was present and there is absolutely no evidence Bell’s

jury ever saw him in restraints. Sireci v. Moore, 825 So. 2d

882, 887-888 (Fla. 2002) (noting the defendant showed no

prejudice from his shackling when there was no evidence the

jury saw the defendant in shackles).11 This court should deny

this claim.

n. Whether trial counsel was ineffective for failing to address all mental competency considerations of Rule 3.211(a), Florida Rules of Criminal Procedure and for failing to present

11 In his initial brief, Bell makes reference to a video tape mailed to this Court showing him in shackles and jail attire. (IB 32). The videotape was not produced at the evidentiary hearing; it was not produced before the trial court issued its order denying relief; and was not produced before the trial court denied Bell's motion for rehearing. Clearly, the videotape is not an item of evidence, was not considered by the trial court in reviewing Bell's claim, and should not be considered on this appeal. Nevertheless, the videotape fails to undermine the trial court's ruling. Someone (we have no idea who) apparently recorded several hours worth of television shows having nothing to do with Bell or his trial, plus about five minutes worth of television news clips reporting that Judge Olliff had given Bell a death sentence. These news clips show Bell sitting in what appears to be a jury box in handcuffs awaiting sentencing by the court. The jury is nowhere to be seen. This tape gives no support to Bell's claim he was shackled during trial in the presence of the jury.

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evidence to establish the presence of mental health mitigation. Bell claims that first that trial counsel was ineffective

for failing to ensure Dr. Miller made, and included in his

report, all of competency findings required by Rule 3.211,

Florida Rules of Criminal Procedure. Bell claims that

because due process is violated when a incompetent person is

made to stand trial, counsel was ineffective for failing to

ensure strict compliance with Rule 3.211. This claim is

without merit.

Bell does not claim he was incompetent to stand trial.

Nor does he claim now that Dr. Miller conducted an inadequate

competency evaluation or incorrectly found him to be

competent. Rather, his only claim seems to be that Dr.

Miller’s report was “short and shallow”. (IB 38). By

focusing on the report, Bell ignores Dr. Miller’s testimony at

the evidentiary hearing.

At the evidentiary hearing, Dr. Miller testified he

considered each of the criteria for competency as required by

Rule 3.211. He made actual findings on the required

criteria. For instance, Dr. Miller noted that he evaluated

Bell’s capacity to disclose to his attorney the pertinent

facts of the case. Bell told him he had not committed the

murders (PCR Vol. VII 1277). When asked whether Dr. Miller

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evaluated Bell’s ability to relate to his attorney, Dr. Miller

told the collateral court that Bell was able to relate to

anyone, was lucid, his speech was easily understood, he was

able to form concepts, his reasoning was intact, he was above

average intelligence and not suffering from any delusions or

distractions that would lead Bell astray in his thinking.

(PCR Vol. VII 1278). When Bell asked Dr. Miller whether he

evaluated Bell’s ability to plan a defense, Dr. Miller

testified that he concluded he was and that Bell’s ability to

understand and conceptualize was good. (PCR Vol. VII 1279).

During cross-examination, Dr. Miller testified that he

evaluated Bell’s capacity to disclose facts to his attorney

and whether he had the capacity to manifest appropriate

courtroom behavior. Dr. Miller testified he evaluated every

criteria for competency set forth in Judge Olliff’s order.

(PCR Vol. VII 1282). He testified he believed he had

sufficient information in which to conduct an adequate

evaluation and did not feel the need to request additional

information. (PCR Vol. VII 1282). It was Dr. Miller’s

opinion, Bell was competent. (PCR Vol. VII 1286).

Mr. Nichols testified at the evidentiary hearing he never

had any reason to believe his client was suffering from any

sort of diminished capacity or diminished ability to

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understand what was going on. According to Mr. Nichols, Bell

was bright and articulate and there was nothing that indicated

Bell had any diminished understanding of the process. (PCR

Vol IX 1654-1655).

Bell has failed to show trial counsel’s performance was

deficient for failing to ensure he had an adequate competency

evaluation. Likewise, Bell has failed to show any prejudice

because he makes no allegation, and presented no proof, he was

not competent at the time of trial. To the contrary, the

evidence at the evidentiary hearing demonstrated Bell was

competent. (PCR Vol. VII 1286).

Bell next complains that trial counsel was ineffective

for failing to call an expert witness to present evidence in

support of the two statutory mental mitigators. However, the

evidence refutes Bell’s claim that trial counsel was

ineffective for failing to call Dr. Miller to testify at

trial.

Dr. Miller testified at the evidentiary hearing that

trial counsel contacted him and asked him to consider whether

anything about Bell's mental condition might provide

mitigation (PCR Vol. VII 1273). Dr. Miller reported to trial

counsel that he "could not dredge anything from the content of

Miss Shadden's and my examination that would serve in the

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interest of mitigation" (PCR Vol. VII 1273).

Dr. Miller testified he discovered no helpful mitigation

in his examination of Bell. (PCR Vol. VII 1273). Dr. Miller

opined that Bell had an adjustment disorder with depressed and

anxious mood, which Dr. Miller described as a mental state

deriving from stress or stress orders in one's life, including

facing a death sentence. (PCR Vol. VII 1275, 1283). His

evaluation also indicated that Bell had antisocial personality

disorder with narcissistic traits. He did not include these

findings in his written report to the court because they were

gratuitous to his determination of competence to stand trial

and would have hurt Bell. (PCR Vol. VII 1285-86). Dr. Miller,

who has testified numerous times with regard to statutory and

nonstatutory mitigating circumstances, saw no evidence that

would have supported either of the mental mitgators or any

other significant mitigation. (PCR Vol. VII 1287).

Mr. Nichols testified that, in his view, Dr. Miller was

one of the "most experienced" and "highly respected" experts

in the country. (PCR Vol. IX 1607). Dr. Miller reported to

Nichols after his evaluation of Bell that his testimony would

hurt more than help, because Bell was "sociopathic and

narcissistic." (PCR Vol. IX 1607). Dr. Miller saw no

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"evidence of any emotional disease that would serve as

mitigation." (Vol. IX 1607-08). Trial counsel testified he

questioned Dr. Miller about the diagnosis of adjustment

disorder with depressed mood, and Dr. Miller told him the

condition "was probably due to the fact that he was in jail

waiting trial and not something that could ever be used as

mitigation for the crime." (PCR Vol. IX 1664). Trial counsel

agreed with Dr. Miller that a jury would not find antisocial

personality disorder with narcissistic tendencies as

"something mitigating." (9TR 1665).

Bell has not demonstrated that trial counsel was

deficient in his investigation of possible mental health

mitigation. This court has found deficient performance when

(1) trial counsel never attempted to meaningfully investigate

mitigation, and (2) when evidence presented at an evidentiary

hearing reveals substantial mental mitigation could have been

presented. Rose v. State, 675 So. 2d 567, 572 (Fla. 1996);

Hildwin v. Dugger, 654 So. 2d 107, 109 (Fla. 1995) (finding

that a woefully inadequate investigation failed to reveal a

large amount of mitigating evidence such as prior psychiatric

hospitalizations and statutory mental health mitigators).

Here, the evidence demonstrates that counsel conducted a

reasonable investigation into Bell’s mental health background

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with a view toward both competency and mental mitigation. In

conducting his investigation, he consulted an expert, who

trial counsel viewed as one of the best and most experienced

in the country. Dr. Miller advised Mr. Nichols that Bell was

"sociopathic and narcissistic" and he saw no evidence of any

"emotional disease that would serve as mitigation". 12

Any reasonable trial counsel could have concluded that

juries do not view sociopaths favorably, and made a strategic

decision not to put Dr. Miller on the witness stand. Dufour

v. State, 905 So. 2d 42, 57-58 (Fla. 2005) (holding that

defense counsel made a reasonable strategic decision not to

present mental health mitigation testimony at the penalty

phase because it would have opened the door to mental health

expert's finding that defendant was a sociopath); Reed v.

State, 875 So. 2d 415, 437 (Fla. 2004) (noting that this Court

has previously concluded that antisocial personality disorder

is a trait most jurors tend to look disfavorably upon). As

Bell has failed to show that trial counsel was ineffective for

failing to present available mental health mitigation, this

claim should be denied.

12 As Bell points out, in addition to Dr. Miller, Ms. Beth Shadden, a licensed therapist, also examined the defendant.

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o. Whether trial counsel was ineffective for conceding Bell’s guilt to first degree murder as well as conceding the presence of the CCP aggravator. Bell complains about three comments that trial counsel

made to the jury during the guilt and penalty phase of Bell’s

capital trial. Bell alleges these comments effectively

conceded both his

guilt to first degree murder and that the murders were CCP.

The State disagrees.

Bell points, first, to trial counsel’s guilt phase

closing argument wherein trial counsel described the murders

as a “senseless jungle-like barbaric killing.” (TR Vol. X

606). At the evidentiary hearing, trial counsel testified

he never conceded Bell’s guilt. (PCR Vol. IX 1662).

Bell isolates this one comment and pulls it out of

context. Trial counsel actually told the jury:

... There is a story that I heard just recently have repeated several times that I will repeat to you now that I think fairly explains how reasonable doubt works in these kind of cases. The story is about a man who had two young boys, one was about ten and one was about two. The man was a psychologist or something or another and the ten year old had the habit of going around slamming doors. The man was concerned that his two-year old might get a finger or toe or arm or leg caught in one of these slammed doors and told his ten year old over and over about not doing this. And it continued. So one day the psychologist decided he was going to make it real clear to this boy what was going to happen to him if he continued with it. So he sat him downstairs in

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the living room and told him how he shouldn’t do this and what the problems were and what the penalties were going to be and the little boy said yes, sir, and thank you and walked up the stairs and just that time he turned the corner when his father heard the door slam. Well, you know you can imagine the kind of adrenaline that shot through him. He’s been defied within seconds of this warning, ran upstairs and started getting ready to give out this punishment and right as he approached the little boy said, wait a second, I didn’t slam the door, the wind blew it shut. Well you can also imagine the kind of frustration at being confronted with that right as he is getting ready to give out this punishment that he thought was deserved but he pauses and opens the door and looks across the room to an open window and sees the wind. He still believes in his gut that this little boy slammed the door, but there’s a problem because there are facts that create some doubt about that.

And it seems to me that oft juries and certainly you are in a situation where you see senseless jungle-like barbaric killing but you’re confronted with the situation where the witnesses for the state tell a number of different stories. ... The most important credible witness is Paula Goins ... [a]nd Paula Goins is telling you that she recalls Michael Bell saying he did not know it was Jimmy West until he looked at me. He moved as though he were going for his weapon so I shot him. If that’s what happened this is within the law of self-defense and certainly creates a reasonable doubt within the law of self-defense which causes you to conclude this cannot be a first degree murder ... (TR Vol. X 606).

The record belies any notion that trial counsel conceded

Bell’s guilt to first degree murder. To the contrary, trial

counsel was seeking to show the jury that, even in the face of

apparent overwhelming evidence, there was a reasonable doubt

that Bell was guilty of first degree murder.

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Trial counsel's performance at closing argument was

supported by reasonable and tenable strategy. Other attorneys

might have proceeded differently, but Bell cannot demonstrate

that trial counsel made inappropriate concessions or that his

analysis of the case or approach to the jury during closing

argument "fell below an objective standard of reasonableness."

Strickland, 466 U.S. at 688, 694. Lawrence v. State, 831 So.

2d 121, 130-131 (Fla. 2002).

Bell claims, next, that trial counsel’s penalty phase

argument conceded the murder was CCP. Bell points to trial

counsel’s comment that “the cold, deliberate, calculated, and

intentional killing of a human being in an unacceptable act.

It should be utterly and completely unacceptable in a

civilized society” conceded the murder was CCP.(TR Vol. XI

705). Again, Bell pulls an isolated comment out of context in

support of his argument. The argument, about which Bell takes

issue, occurred during trial counsel’s opening remarks to the

jury during the penalty phase:

... Ladies and gentlemen, whether you recommend a life sentence or a death sentence for Mr. Bell you need to understand clearly this is not an accounting problem. It is not a matter of taking a number of aggravating circumstances and putting them in one column and mitigating in another and somehow relieving yourselves of responsibility for this act through some mathematical formula. Make no mistake about it, no one and nothing can compel you to recommend the State of Florida kill Michael Bell except your own conscience. And you have to look at

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that as you examine what we have before us today.

The cold, deliberate, calculated, intentional killing of a human being in an unacceptable act. It should be utterly and completely unacceptable in a civilized society. It is just as unacceptable, it is just as much a tragic act of violent when its done by a masked gunman in a parking lot or whether its done by a hooded anonymous executioner at Florida State prison. Its unacceptable and its tragic. (TR Vol. XI 706).

It is clear trial counsel was not conceding the CCP

aggravator but attempting to persuade the jury that justice

would not be served if the killing continued, albeit it at the

hands of the State. The jury had already rejected any notion

the murders were done in self-defense or that Michael Bell was

not the killer. The evidence adduced at trial overwhelmingly

supported a conclusion Bell carefully planned the murder and

executed his plan with cold efficiency. Even if other

attorneys would have made a different closing argument, Bell

cannot show Mr. Nichols’ performance fell below an objective

standard of reasonableness.

Finally, Bell alleges trial counsel was ineffective, when

trial counsel argued “You’ll see that although there is no

justification, moral or legal, for the acts that were

committed at Moncrief Liquors....It is an outrage to come here

in this courtroom ans ask you to sink to the levels of moral

bankruptcy that were displayed out there at Moncrief Liquors.”

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(IB 44). Bell alleges this argument conceded the murder was

CCP.

While Bell depicts this argument as one flowing argument,

it was actually portions of two separate points made by trial

counsel during his closing penalty phase argument. (IB 44)

(TR Vol. XI 710). In his final comments to the jury, trial

counsel argued:

... This is not the nature-- and Mr. Bateh and I have great respect for Mr. Bateh, he analyzes this in some methodical accounting balance sheet kind of aptitude that that’s the way we should handle these matters and we should let computers do it. But if you look at this you’ll see that although there is no justification, moral or legal for the acts that were committed at Moncrief Liquors, that neither is this the kind of case that requires a death penalty as asked for by the State.

I’ve heard the state say things like this before, show the same kind of mercy to this defendant as he showed. And that’s with all sincere respect for Mr. Bateh, that is an absolute outrage. It is an outrage to come in here to this courtroom and ask you to sink to the levels of moral bankruptcy that were displayed out there at Moncrief Liquors and displayed every day in communities in pockets of our community. He asked you to come here and do that. And in a sense he really is asking you to do what you have concluded Michael Bell did. And that’s an outrage. (TR Vol. XI 710).

Trial counsel went on to argue the jury should reject the

prosecutor’s suggestion it should authorize the cold,

calculated killing of Michael Bell in retaliation and

retribution for the murder of Jimmy West and Tamecka Smith.

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(TR. Vol. XI 712). A fair reading of this argument reveals

trial counsel’s strategy.

Saving Bell’s life was a daunting task for anyone. In

light of the overwhelming evidence the murders were committed

with cold, calculated, and premeditated precision, trial

counsel’s entire closing argument was aimed at convincing the

jury that Bell was a product of the environment in which he

lived. Trial counsel argued that, under the circumstances,

recommending Bell die was not the right thing to do.

For all three comments about which Bell takes issue, Bell

failed to show Mr. Nichols’s performance fell below an

objective standard of reasonableness. Additionally, Bell can

show no prejudice. On direct appeal, this court concluded

there was competent, substantial evidence the murders were

cold, calculated, and premeditated without any pretense of

moral or legal justification. Bell v. State, 699 S0.2d 674,

678 (Fla. 1997). This court should deny this claim.

q. Whether trial counsel was ineffective by failing to renew his motion to strike the panel when seven members of the venire observed a spectator in the hallway wearing a T-shirt with the victim’s picture, date of birth and date of death displayed on the shirt.

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Bell alleges that trial counsel was ineffective for

failing to renew his motion to strike the panel when a

spectator wore a memorial T-shirt to Tamecka Smith in full

view of the venire. Bell cannot show any prejudice because

the court properly inquired into any potential prejudice.

After members of the venire were called, preliminary

instructions were given, and potential jurors introduced

themselves using a script provided by the trial court, the

court dismissed the venire for lunch. (TR Vol. VIII 97). The

trial court summoned a spectator, Ms. Harris, who was wearing

a shirt displaying a picture of Tamecka Smith. The court

instructed Ms. Harris she was not permitted to wear the shirt

to court. Judge Olliff informed Ms. Harris she could return

to court if she wished, but she would have to be attired in

another shirt. (TR Vol. VIII 98).

Mr. Nichols insisted on seeing the shirt. He noted the

shirt contained a large photograph, the words “well remembered

in the record in memory of our beloved Tamecka Smith” and Ms.

Smith’s birth date and date of death. (PCR Vol. VIII 99). Ms.

Harris also had a framed picture of Ms. Smith with her in

court. Mr. Nichols told the court that Ms. Harris had been

present all morning and he was concerned how many jurors may

have seen the picture. (PCR Vol. VIII 99). Trial counsel

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asked the judge to strike the entire panel. (TR Vol. VIII 99).

After further discussion, the trial court declined to

strike the panel but agreed to inquire of the venire once it

returned from lunch. Upon its return to the courtroom, the

court inquired whether any member of the venire had seen a

woman wearing a T- shirt with a picture on it or holding a

picture in a frame. Seven members of the venire raised their

hands.

The trial judge next asked whether any member of the

venire knew who the person was that was depicted on the T-

shirt and in the picture frame. No one did. Next, the court

asked whether seeing the pictures would affect any potential

juror’s ability to be fair and impartial if they were

selected. The court again received a negative response.

Trial counsel posed no further objection.(TR Vol. VIII 109-

110).

Bell has not demonstrated he was prejudiced by trial

counsel’s failure to renew a motion to strike the venire.

Only seven potential jurors saw the picture and none

recognized the person depicted on the shirt. The record

reflects the shirt contained no hostility toward, or

condemnation of, Michael Bell nor displayed any opinions or

declarations about the duty of the jury or the outcome of the

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case. Additionally, there is nothing in the record to

suggest the atmosphere in the courtroom was tainted by

excessive emotion or appeals for sympathy for the murder

victims and their families.

The test for determining juror competency is whether the

juror can lay aside any bias or prejudice and render his

verdict solely upon the evidence presented and the

instructions on the law given to him by the court. Dufour v.

State, 905 So.2d 42, 54 n.10 (Fla. 2005). Bell has failed to

show that any of the seven members of the venire who saw, but

did not recognize, the picture was not competent to serve as a

juror in his case. This claim should be denied.

ISSUE TWO

WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE PROSECUTORS COMMENTS TO THE JURORS13

Bell alleges that trial counsel was ineffective for

failing to object to several of the prosecutor’s comments

during his closing argument in both the guilt and penalty

13 In Bell’s standard of review, Bell implies he is presenting a substantive claim of fundamental error along with a claim of ineffective assistance of counsel. Any substantive claim is procedurally barred because it could have been and should have been raised on direct appeal. Spencer v. State, 842 So.22d 52,60-61 (Fla. 2003)(ruling substantive claims of prosecutorial misconduct could and should have been raised on direct appeal and thus are procedurally barred from consideration in a postconviction motion).

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phase of Bell’s capital trial.

A. Guilt Phase

The first comments about which Bell complains occurred

near the end of the prosecutor’s closing argument during the

guilt phase. Bell alleges it was improper for the prosecutor

to tell the jurors that “the blood of Tamecka Smith and the

blood of Jimmy West spilled in the parking lot, that cold

pavement of that Moncrief Liquor parking lot, their blood

cries out for justice.” (IB 49). Bell also claims that trial

counsel should have objected when the prosecutor told the

jury, three times, that the Defendant lived his life by the

“law of the jungle.” (IB 49).

The comments about which Bell complains were made during

the prosecutor’s closing argument. (TR Vol. X 592-593). In

reality, Bell’s complaint is that the prosecutor argued the

facts of this case in a way other than in a cold sterile

recitation of the witnesses’ testimony. The role of the

prosecutor in closing argument is to assist the jury in

analyzing, evaluating and applying the evidence. It is

permissible for the prosecutor to include, in his argument,

his contention as to the conclusions that the jury should draw

from the evidence. Miller v. State, 926 So.2d 1243 (Fla.

2006).

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Just before closing argument, the defense requested, and

was granted, an instruction on self-defense. (TR Vol. X 558).

In context, the prosecutor’s closing argument was aimed at

demonstrating to the jury that the evidence did not support a

claim of self-defense. For instance, the prosecutor argued

Bell’s motive to kill stemmed from Theodore Wright’s killing

of Bell’s brother, Lamar, even though Wright killed Lamar in

self-defense. The prosecutor also pointed to evidence

refuting any claim of self-defense including Bell’s refusal to

accede to his aunt’s wishes to take the matter to the police,

statements made by Bell both before and after the murder

indicating his plan for revenge, his careful planning of the

murder including buying an assault rifle the day before the

murder, and laying in wait for Jimmy West to come out of

Moncrief’s Liquor Store.

Additionally, the prosecutor pointed to evidence that Ms.

Smith had nothing to do with the feud and in no way could have

been anything other than an innocent victim of Michael Bell’s

self-proclaimed war. Finally, the prosecutor argued,

consistent with the evidence, that the murder was a horrendous

and bloody scene as Bell sprayed West and Smith with some 30

rounds of automatic weapon’s fire. While the prosecutor’s

arguments had a slight emotional flow, none of the comments

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were outside the evidence or its reasonable inferences.

Even if this court were to conclude that some of the

prosecutor’s comments crossed the line of propriety and trial

counsel should have objected, Bell has still failed to

demonstrate he is entitled to a new trial. In order to

require a new trial based on improper prosecutorial comments,

the prosecutor's comments must either deprive the defendant of

a fair and impartial trial, materially contribute to the

conviction, be so harmful or fundamentally tainted as to

require a new trial, or be so inflammatory that they might

have influenced the jury to reach a more severe verdict than

that it would have otherwise. Walls v. State, 926 So. 2d

1156 (Fla. 2006). Given the overwhelming evidence supporting

Bell’s guilt and the fact that none of the prosecutor’s

comments strayed beyond the evidence adduced at trial, Bell

has failed to show the comments deprived Bell of a fair and

impartial trial or could have influenced the jury to reach a

more severe verdict than that it would have otherwise. This

Court should deny this claim.

B. Penalty Phase

Bell alleges trial counsel was ineffective for failing to

object when the prosecutor made various arguments during

closing argument, which he claims were inflammatory. (IB 49).

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Bell also

alleges trial counsel was ineffective for failing to object

when the prosecutor told the jury the State does not seek the

death penalty on all first degree murders, that Bell did not

show any mercy for anyone’s life but wants the jury to look

favorably on him, and that he deprived the victims of a trial

that he got before murdering them. Bell also alleges the

prosecutor improperly made the “same mercy” argument. (TR

Vol. XI 683-684, 695-696, 703).

At the evidentiary hearing, trial counsel was questioned

about his failure to object to many of the prosecutor’s

closing arguments. Mr. Nichols testified that:

...Even if it were something appellate courts said, described as being improper, not every improper argument is something that [a] defense lawyer wants to object to because sometimes when a prosecutor makes what would otherwise be an improper comment, it essentially opens the door for the defense to attack that strategy in rebuttal. And I have many times let prosecutors, without objection, say things I thought were objectionable but did it so I could make a comment on it when I got my chance to speak. (PCR Vol. VIII 1504-1505).

When Bell asked him whether he recalled that he actually

objected to the same comments in the Brooks case, trial

counsel replied that if he did, he must have thought it was

proper to object to it based on the total environment that

were in at the case at the time that was made. (PCR Vol. VIII

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1505).

When Bell confronted trial counsel again with all of the

comments about which Bell complained in his motion for post-

conviction relief, trial counsel testified that the

prosecutor’s comments were either, in his opinion, “fair

comment on the evidence or comments ... are ones that I didn’t

think tactically I should object to so I could respond to them

in rebuttal.” (PCR Vol. IX 1638).

Later, Mr. Nichols testified that

[y]ou have to sort of gauge the pace of the trial and make a decision whether these comments that taken out of context sound like damaging comments and make a decision whether they truly are in the flow of things either significant or damaging.

You have to guard your own credibility with the jury with regard to just hopping up and down out of your chair and making objections when things are happening that the jury really doesn't see as having very much meaning. Some times improper - some times comments that might genuinely be labeled as miss - as improper are [ones] that open the door for me to make a response that I want to have an opportunity to make and so I'll allow the comment to go forward. (TR Vol. IX 1669-1670).

The collateral court denied Bell’s claim. The court

found that Mr. Nichols elucidated a tactical reason for not

objecting and that Bell failed to demonstrate Mr. Nichol’s

decision was not a reasonable tactical decision. (PCR Vol. IV

742).

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The trial court properly rejected Bell's claim that trial

counsel was ineffective for failing to object. Bell makes no

showing the prosecutor attempted to dehumanize him, misstated

the law, or misled the jury into believing it was “required”

to recommend a death sentence. Neither did Bell allege the

prosecutor denigrated any mitigation evidence or made any

personal attacks on his trial counsel.

In this case, trial counsel’s credibility and ability to

persuade the jury to empathize with Bell was of paramount

importance if he were to have any chance at a life

recommendation. In Mr. Nichols’ view, a view enlightened by

nearly two decades of trial experience, “hopping up and down

out of your chair and making objections” would not have

contributed to his credibility. (TR Vol. IX 1669-1670).

Additionally, consistent with his testimony at the evidentiary

hearing, Mr. Nichols exploited the prosecutor’s “same mercy”

argument and used it in attempt to persuade the jury it should

not buy into the State’s overreaching.

While some of the prosecutor’s comments were specifically

found to be objectionable in cases decided subsequent to

Bell’s trial, nothing in the record, when viewed against the

backdrop of a 12-0 recommendation of death and the aggravators

found to exist in this case demonstrates that counsel’s

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failure to object fell below prevailing professional norms.

The decision not to object is a tactical decision and as the

prosecutor’s comments were not of such a nature as to deprive

Bell of a fair trial, Bell has failed to show trial counsel’s

performance was deficient.

Even if this court finds that trial counsel should have

objected, Bell still may not prevail. In order to establish

the prejudice during the penalty phase, the defendant must

show that the death penalty would not have been applied in the

absence of such comments or that confidence in the death

penalty is appreciably lessened because of counsel’s deficient

performance. Thomas v. State, 748 So. 2d 970, 984 (Fla.

1999)(new trial is warranted only when the prosecutor’s

comments may have improperly influenced the jury to reach a

more severe verdict of guilt than it would have rendered

without the remarks). Nothing the prosecutor said during

closing argument even touched upon any aggravator not already

firmly established by the evidence. Moreover, unlike comments

involving a close 7-5, or even 8-4 jury recommendation,

confidence in the 12-0 jury recommendation for both murders is

not lessened by any of the prosecutor’s comments. This court

should deny this claim.

ISSUE FOUR

WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO

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AND REQUEST A CURATIVE INSTRUCTION FOR THE STATE’S INCORRECT STATEMENT OF THE ADVISORY SENTENCE PROCEDURE

Bell alleges that trial counsel was ineffective for

failing to object when the State misstated the law during the

penalty phase of Bell’s capital trial. Bell claims trial

counsel was ineffective when the prosecutor argued.

... Under the death penalty weighing test there are basically two parts to it, you are first to determine if there are aggravating factors that have been proven that justify a death recommendation. Then, you are to determine if there are mitigating circumstances which outweigh the aggravating circumstances. If sufficient aggravating circumstances have been proved beyond a reasonable doubt you must recommend a death penalty unless the mitigating circumstances outweigh those aggravating circumstances. (TR Vol. XI 685).

Bell claims this argument improperly skipped the step of

requiring the jury to conclude aggravating circumstances alone

are of sufficient magnitude to justify death. This argument

is clearly refuted by the record. The prosecutor informed

the jury they must first determine if there are aggravating

factors that have been proven that justify a death

recommendation. (TR Vol. XI 685). Bell has failed to show

trial counsel’s failure to object fell below reasonable

professional norms.

Even if trial counsel should have objected, Bell can show

no prejudice. The trial judge properly instructed jurors that

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if they found that aggravating circumstances do not justify

the death penalty, then their advisory sentence should be life

imprisonment. (TR Vol. XI 715). The court also instructed

jurors that if they found that sufficient aggravating

circumstances exist to justify the death penalty, then it will

be their duty to determine whether mitigating circumstances do

exist that outweigh the aggravating circumstances. (TR Vol.

XI 715).

The prosecutor, as did the trial judge, made clear to the

jury the first step in considering its advisory sentence was

to determine whether there was sufficient aggravators to

warrant the death penalty. Even if the prosecutor’s comments

were not verbatim from the standard instructions, the trial

judge cured any error and prevented any prejudice to the

defendant by properly instructing the jury on its

responsibility in rendering an advisory sentence. This claim

should be denied.

ISSUE SIX

WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL JUDGE AND PROSECUTOR’S COMMENTS THAT DIMINISHED THE JURY’S SENSE OF RESPONSIBILITY AND DISCRETION IN VIOLATION OF

CALDWELL V. MISSISSIPPI

Bell alleges that comments made by the prosecutor and

trial judge which advised the jury its role was advisory ran

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afoul of the United States Supreme Court’s decision in

Caldwell v. Mississippi,472 U.S.320 (1985).14 This claim

should be denied.

a. The trial judge’s instructions

Bell points to three places in the record where the trial

judge’s instructions purportedly diminished the jury’s sense

of responsibility for sentencing. Bell isolates only small

portions of the trial judge’s instructions in order to bolster

his allegation of impropriety. A review of his entire

instruction regarding the jury’s role in sentencing, however,

discloses the trial judge accurately described the role of the

jury in a capital trial.

The first instruction about which Bell takes issue

occurred when the trial judge gave the preliminary

instructions to the venire before voir dire. The judge

instructed the venire as follows:

14 Any substantive claim is procedurally barred. Allen v. State, 854 So.2d 1255, 1258 (Fla. 2003) (noting that challenges to comments on the ground they dilute the jury's sense of responsibility in sentencing should be raised on direct appeal). Likewise, any substantive claim regarding the prosecutor’s closing argument is procedurally barred as they could have and should have been raised on direct appeal. Spencer v. State, 842 So.2d 52,60-61 (Fla. 2003)(ruling Spencer's substantive claims of prosecutorial misconduct could and should have been raised on direct appeal and thus are procedurally barred from consideration in a postconviction motion).

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... Now if the jury finds the defendant guilty of murder in the first degree, then as soon after trial as practical, evidence would be presented to that same jury as to any matters relevant to the sentence including aggravating and mitigating circumstances and at that time the state and defense would present arguments for and against the sentence of death. Then after hearing such mitigating and aggravating circumstances the jury will render an advisory sentence as to whether the defendant should be sentenced to life imprisonment or death.

Now that advisory sentence by the jury may be by a majority vote of the jury. And then the Judge will sentence the defendant either life imprisonment or death. But the Judge is not required to follow the advisory sentence of the jury. Thus, the jury does not impose punishment if the defendant is found guilty of murder in the first degree. However the Judge is required to give great weight to the jury’s recommendation.

Now the sentence is the function of the judge and not the function of the jury, however, because a guilty verdict could lead to a sentence of death, your qualifications to serve as jurors in this case depends upon your attitude toward rendering a verdict that possibly could result in the death penalty. The attorneys and I will ask you questions to determine your qualifications to serve on this jury. (TR Vol. VIII 69-70).

The purported improper instructions given by the trial

judge and the comments by the prosecutor were consistent with

Florida's statutory scheme in which the jury "renders an

advisory sentence to the court" and the trial court,

"notwithstanding the recommendation of a majority of the

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jury," enters the sentence. 15 This Court has recognized the

jury's penalty phase decision is advisory and the judge makes

the final sentencing decision. Combs v. State, 525 So. 2d 853,

855-58 (Fla. 1988). Trial counsel cannot be deemed

ineffective for failing to object to instructions or comments

that comport with Florida law. Knight v. State, 923 So.2d

387, 410 (Fla. 2005).

The second and third comments about which Bell complains

were made by the trial judge in his preliminary instructions

and then in his final instructions to the jury before the

penalty phase commenced. In his preliminary instructions,

the judge instructed the jury as follows:

... You have previously found the defendant guilty of two counts of murder in the first degree. The punishment for these crimes is either death or life imprisonment without the possibility of parole for 25 years. The final decision as to what punishment shall be imposed rests solely with the Judge of this court, however, the law requires that you, the jury, render to the court advisory sentences as to what punishment you think should be imposed on the defendant. (TR Vol. X 647).

During his final instructions, the trial judge instructed

the jury:

... Members of the jury, you have previously found the defendant guilty of two counts of murder in the first degree, the punishment for those crimes is

15 Section 921.141(2), (3), Fla. Statutes.

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either death or life imprisonment without the possibility of parole for 25 years, the final decision as to what punishment shall be imposed rests solely with the Judge of this court, however, the law requires that you, the jury, render to the court advisory sentences as to what punishment you think should be imposed on the defendant.

The State and Defense have presented their arguments for and against the death penalty. It is now your duty to advise the court as to the punishment you think should be imposed. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of this court. But it is your duty to follow the law that will be given to you and render to the court an advisory sentence based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist. (TR Vol. XI 712-713).

Both of these standard jury instructions accurately

described the role of both the judge and the jury under

Florida’s capital sentencing scheme. Trial counsel cannot be

deemed ineffective for failing to object to instructions or

comments that comport with Florida law. Knight v. State, 923

So.2d at 410.

b. The prosecutor’s comments

Bell alleges trial counsel was ineffective for failing to

object to the following comments by the prosecution. All of

the comments about which Bell complains were made during the

prosecutor’s closing argument during the penalty phase of

Bell’s capital trial. The first comments about which Bell

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takes issue are as follows:

We’re here to day, you are here today to consider what punishment to recommend to Judge Olliff, that the defendant should get for executing Jimmy West and Tamecka Smith.

The final decision is not made by you but by Judge Olliff. It’s not a difficult process, the jury makes a recommendation that is given great weight, must be given great weight by the Judge, but the Judge will then take that recommendation and he will decide the final sentence. (TR Vol. XI 683).

The prosecutor’s comments, in context, did not act to

diminish the role of the jury in sentencing. Instead, the

prosecutor’s remarks informed the jury that its role was to

render an advisory sentence to the trial judge who would give

its recommendation great weight in performing his role in

actually sentencing the defendant. These comments accurately

described the roles of a judge and a jury in Florida’s capital

sentencing scheme. Accordingly, trial counsel cannot be

ineffective for failing to object. Knight v. State, 923 So.2d

387, 410 (Fla. 2005).

Bell next alleges another portion of the prosecutor’s

closing argument diminished the jury’s sense of responsibility

because the prosecutor told the jury it had “no choice” but to

recommend death. Bell points to a portion of the prosecutor’s

argument in which he argued:

If you weigh out all the aggravating circumstances and compare them to the absence of these mitigating circumstances, the only recommendation you can come

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to if you follow the law is a recommendation of death.

I am concerned though that some of you may be tempted to take the easy way out, and that is not weigh out all the aggravating and mitigating circumstances and not want to fully carry out your responsibility under the law but just vote for life. If you--I ask you to resist that temptation because if you weigh out all of the aggravating and mitigating circumstances, weigh out all the evidence, if you apply the law that the Judge will explain to you, you will see that the aggravating circumstances clearly outweigh the mitigating circumstances. The mitigating circumstances haven’t been established. And under the law and under the evidence, death is the only proper recommendation for you all to make to Judge Olliff for him to decide what the final sentence will be. (TR Vol. XI 702-703).

Bell can show no prejudice by trial counsel’s failure to

object to this portion of the prosecutor’s closing argument.

In order to show prejudice for failing to object, the

prosecutor’s comments must either deprive the defendant of a

fair and impartial trial, materially contribute to the

conviction, be so harmful or fundamentally tainted as to

require a new trial, or be so inflammatory that they might

have influenced the jury to reach a more severe verdict than

that it would have otherwise. Walls v. State, 926 So.2d 1156

(Fla. 2006).

Even if some of the prosecutor’s comments came close or

even crossed the line of fair comment; in context, any

reasonable juror would recognize the prosecutor was advocating

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death was appropriate under the circumstances of this double

murder, not instructing them the law actually required a

recommendation of death. The prosecutor did not imply the

weighing process was a counting process, attack trial

counsel’s credibility or personal integrity or present

argument on any non-statutory aggravators. Bell’s claim fails

because he failed to demonstrate the failure to object

deprived him of a fair and impartial trial. Thomas v. State,

748 So. 2d 970, 984 (Fla. 1999)(new trial is warranted only

when the prosecutor’s comments may have improperly influenced

the jury to reach a more severe verdict of guilt than it would

have rendered without the remarks).

The evidence at trial established this double murder was

a cold, calculated, well-planned execution-style, revenge

killing committed by a man with a violent criminal history.

Bell offered little in mitigation. The jurors recommended

unanimously that Bell be sentenced to death for both murders.

Even assuming trial counsel should have objected to some of

the remarks made by the prosecution during closing arguments,

Bell failed to meet Strickland’s prejudice prong and his claim

should be denied.

ISSUE SEVEN

WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S PEREMPTORY STRIKE OF A PROSPECTIVE JUROR WHO

HAD CONSCIENTIOUS SCRUPLES AGAINST THE DEATH PENALTY

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Bell claims his constitutional rights were violated when

the State exercised a peremptory strike to remove a juror who

had conscientious scruples against the death penalty.16 Bell

alleges that counsel was ineffective for failing to object

when the State used a peremptory strike to remove prospective

juror, Charles Gardenhire. This Court should deny his claim.

During voir dire, Mr. Gardenhire told the court that his

father had been murdered in 1976. Mr. Gardenhire stated the

man who murdered his father was tried and was sentenced to

life in prison. At the time, his father’s murderer went to

trial, he and his family were for the death penalty. Shortly

after that trial, he and his family thought about it more and

concluded their beliefs about the death penalty were not so

strong as they used to be. When queried whether he believed

the death penalty has a place in the criminal justice system,

he answered “in a sense, yes”. (TR Vol. VIII 139-141).

The prosecutor exercised a peremptory strike against Mr.

Gardenhire because his father had been murdered and because

16 Insofar as Bell seeks review of a substantive claim challenging the strike, his argument is procedurally barred. Kimbrough v. State, 886 So. 2d 965, 983 (Fla. 2004) (concluding that to the extent the defendant seeks review of the substantive issue underlying his ineffective assistance of counsel claim, the claim is procedurally barred because it could have been raised on direct appeal).

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his views on the death penalty had changed. Trial counsel

posed no objection. (TR Vol. VIII 231).

In denying Bell’s post-conviction claim that trial

counsel was ineffective for failing to pose an objection to

the State’s exercise of a peremptory challenge, the collateral

court determined that Bell offered no legal basis upon which

relief could be granted. The court concluded that Bell could

not establish prejudice because Bell provided no support for

the notion the court would have been obligated to sustain any

objection offered by trial counsel. (PCR Vol. IV 744).

Bell provides no legal support for his argument a

prosecutor may not exercise a peremptory strike to remove a

prospective juror who expresses reservations about the death

penalty. While Bell cites to Witherspoon v. Illinois, 391

U.S. 510, 519 (1986), Witherspoon has no application to the

issue raises here. In Witherspoon, the United States Supreme

Court considered the

standard for dismissing jurors for cause based on their

beliefs concerning the death penalty.17

17 In Witherspoon, the United States Supreme Court determined that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by

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The State did not exercise a challenge for cause against

Mr. Gardenhire. Rather, the State use one of its limited

number of peremptory strikes to challenge Mr. Gardenhire.

This Court has already ruled such a strike does not run afoul

of a defendant’s constitutional rights.

In Dobbert v. State, 409 So.2d 1053, 1055-1058 (Fla.

1982), this Court rejected Dobbert’s claim he was denied his

right to due process of law when the State exercised its

peremptory challenges against death scrupled jurors.

Likewise, in Dougan v. State, 470 So.2d 697, 700 (Fla. 1986)

this Court observed that both the Florida Supreme Court and

11th Circuit Court of Appeals have rejected claims that

peremptory challenges may not be used to challenge death-

scrupled prospective jurors.

Not only does Bell fail to demonstrate any constitutional

violation by the state’s use of a peremptory strike against

Mr. Gardenhire, Bell failed to demonstrate that counsel’s

failure to object resulted in a biased juror being seated on

his jury or denied him a fair trial. This Court should deny

this claim.

excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

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ISSUE EIGHT

WHETHER THE TRIAL COURT ERRED IN DENYING BELL’S BRADY CLAIM WHEN THE STATE FAILED TO DISCLOSE THE PRISON AND LAW

ENFORCEMENT RECORDS OF VICTIM, JIMMY WEST18

18 Bell claims he was denied an evidentiary hearing on this claim. However, Bell was allowed to fully explore trial counsel’s reasoning for not aggressively pursuing a self-defense theory at trial and to question counsel about his failure to investigate West’s acts of violence against Bell and his brother. (PCR Vol. VIII 1537-1538). He was also allowed to explore with his brother, two alleged acts of violence on the part of West. (PCR Vol. VI 1124 et seq).

Bell claims the State committed a Brady violation by

failing to disclose certain police reports and record relating

to victim, Jimmy West. These records, according to Bell,

would have either supported his claim of self-defense or

softened the impact of the evidence and argument presented in

aggravation.

On appeal, Bell limits his Brady claim to the penalty

phase. Bell alleges these records would have been helpful in

showing the killings were not revenge killings, in showing the

defendant’s life was not less worthy than the victim’s life,

and to rebut the prosecutor’s argument the victim was a young

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man in the prime of his life who had nothing to do with Bell’s

brothers death.

In his amended motion for post-conviction relief, Bell

claimed the state withheld: (1) five police reports

documenting instances when West fired bullets at Bell, (2) one

police report documenting an instance where West fired bullets

at his brother, Gregory Bell, (3) one police report indicating

West was under investigation by the Secret Service and (4)

West’s prison record for possession of fully automatic

weapons. With the exception of one police report which

allegedly documents an incident, the day before Bell murdered

Jimmy West, when West fired bullets at Bell’s brother, Bell

did not allege when these reports were generated or when these

incidents occurred. (PCR Vol. II 223-224).

The collateral court denied this claim. The court ruled

that none of the alleged information withheld fell within the

parameters of Brady. Specifically, the court noted that

Bell’s defense at trial was reasonable doubt. Accordingly,

the collateral court found that any evidence of West’s

criminal history would have been irrelevant to the defense

theory at trial. Additionally, the court found that Bell was

well aware of West’s criminal history and could have disclosed

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it himself to trial counsel. The collateral court found Bell

failed to demonstrate any prejudice as a result of the State’s

alleged failure to turn these reports over to trial defense

counsel. (PCR Vol. IV 744).

To establish a Brady violation, a defendant must show:

(1) evidence favorable to the accused, because it is either

exculpatory or impeaching; (2) the evidence was suppressed by

the State, either willfully or inadvertently; and (3)

prejudice ensued. Wright v. State, 857 So.2d 861, 870 (Fla.

2003); Jennings v. State, 782 So. 2d 853, 856 (Fla. 2001);

Brady v. Maryland, 373 U.S. 83, 87 (1963). The burden is on

the defendant to demonstrate the evidence he claims as Brady

material satisfies each of these elements. Wright v. State,

857 So.2d 861, 870 (Fla. 2003).

The prejudice prong is not satisfied unless the defendant

shows the withheld evidence is material. Under Brady, the

undisclosed evidence is material "if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. A ‘reasonable probability' is a probability

sufficient to undermine confidence in the outcome." United

States v. Bagley, 473 U.S. 667, 682 (1985). The mere

possibility that undisclosed items of information may have

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been helpful to the defense in its own investigation does not

establish the materiality of the information. Wright v.

State, 857 So.2d 861, 870 (Fla. 2003).

Bell’s allegation fails to establish a Brady violation

and the collateral court properly denied this claim. 19

19 In his motion for post-conviction relief, Bell also raised a Brady claim as to the guilt phase claiming they were relevant to his “defense” of self-defense. These records do not constitute Brady material. When self-defense is raised, evidence of prior specific acts of violence by the victim is admissible to reveal the reasonableness of the defendant's apprehension at the time of the incident. Before a defendant may offer specific acts of violence, however, he must lay a proper predicate demonstrating some overt act by the victim at or about the time of the incident which reasonably indicated to the defendant a need for action in self-defense. Holland v. State, 916 So.2d 750, 760 (Fla. 2004) Smith v. State, 606 So. 2d 641, 643 (Fla. 1st DCA 1992). These reports did not constitute Brady material in Bell’s case. Bell did not present a self-defense claim at trial. As trial counsel testified, at the evidentiary hearing, Bell would not permit him to concede Bell was the shooter but present a claim the shooting was in self-defense. Because Bell’s defense at trial was a “reasonable doubt” defense none of these reports or records would have assisted trial counsel in presenting Bell’s defense at trial. Additionally, Bell failed to show these materials fell within the ambit of Brady because he failed to adduce any evidence at the evidentiary hearing demonstrating some overt act by Jimmy West and Tamecka Smith which reasonably indicated to Bell that he needed to spray West and Smith with automatic weapons fire in self-defense. Accordingly, Bell failed to show that a proper predicate could have been laid to support the admissibility of West’s prior violent acts. Holland v. State, 916 So.2d 750, 760 (Fla. 2004).

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Clearly, none of the evidence could have been used to impeach

Mr. West on the witness stand, as Mr. West was dead by Mr.

Bell’s hand at the time of trial.

As to the five police reports reporting West shot at

Bell, Bell cannot establish the reports were suppressed. As

Bell was the alleged victim, or intended victim of the

shootings, the underlying facts contained within these reports

were matters about which, at the time of trial, Bell had

intimate knowledge. As such, even assuming the State did not

provide copies of these police reports to trial counsel, the

underlying facts contained in the police reports could not

have been “suppressed”. Maharaj v. State, 778 So. 2d 944, 954

(Fla. 2000)(the State is not considered to have suppressed

evidence if such evidence was already known to the defense).

Likewise, Bell did not demonstrate the State suppressed

any police report detailing an incident when Jimmy West shot

at Gregory Bell. Gregory Bell testified at the evidentiary

hearing but provided no support for Bell’s claim Jimmy West

shot at him the day before the murders. Instead, Gregory Bell

recalled only an incident some five years before the murders

when some unknown persons attempted to lure him from his place

of employment to a house on Dunn Avenue. He declined to go

and later discovered that four men had been standing in the

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area waiting for him to show up. (PCR Vol. VI 1124). He had

no personal knowledge that Jimmy West had been behind the call

to Dunn Avenue. (PCR Vol. VI 1132). Contrary to Bell’s motion

for post-conviction relief, Gregory Bell’s affidavit provided

no support for the notion that West shot at him the on

December 8, 1993 or that he made a police report to that

effect. (PCR Vol. II 224, 256). As the evidence does not

support a conclusion the State suppressed any police reports

involving Gregory Bell, Bell’s Brady allegation as to this

report must fail.

Finally, Bell’s claim must fail because Bell cannot show

a reasonable probability that if all of the records been

disclosed to the defense, the result of the proceeding would

have been different. Bell presented evidence during the

penalty phase of his capital trial that Jimmy West and his

brother had threatened, and committed acts of violence

against, Bell and his mother. (TR Vol. XI 663). The State

called no witness to rebut her testimony.

Ms. Bell testified before the jury that both Theodore

Wright and Jimmy West had made threats to her son and to her

as well. She testified that the environment was so bad, she

couldn’t even walk to the grocery store to get a pack of

cigarettes or anything. She was aware that Jimmy West had

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tried to shoot Michael on several occasions and somebody else

was killed by accident. She testified that with one son dead

and now Bell in prison, she has been terrified that she may be

next. (TR Vol. XI 663-668).

The jury had first hand testimony from Ms. Bell about

West’s violent character, including specific bad acts. Given

the overwhelming evidence that West and Smith did nothing to

provoke their deaths, and absent any evidence that Bell acted

in self-defense, Bell has failed to show the alleged

suppression of these police reports had any impact on his

death sentence. This claim should be denied.

ISSUE ELEVEN

WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE AND PREPARE FOR THE TESTIMONY OF THREE STATE WITNESSES AND TO CALL A WITNESS WHO COULD IMPEACH STATE WITNESS CHARLES JONES.

Bell raises four sub-claims in this claim of ineffective

assistance of counsel. In his third sub-claim, Bell merely

repeats a claim already raised in Issue One (i). In the

others, Bell claims trial counsel was ineffective for failing

to investigate and prepare for three state witnesses.

c. Whether trial counsel was ineffective for failing to investigate and prepare for the testimony of state witness Mark Richardson.

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In his motion for post-conviction relief, Bell alleged

that trial counsel was ineffective for failing to discover why

Mark Richardson did not tell his girlfriend, Thosa Mingo, he

had taken the gun out of West’s car after the shooting. (PCR

Vol. III 445). On appeal, Bell claims that trial counsel was

ineffective for failing to present evidence, or perhaps only

imply, that because Mark Richardson touched the victim’s body

immediately after the shooting, it is possible he took and

disposed of a gun. (IB 71). Bell fails to explain what

evidence supports a conclusion Richardson took a gun from

West’s car or on what good faith basis trial counsel could

have accused Mark Richardson of evidence tampering. Certainly

he presented none at the evidentiary hearing. At trial,

Richardson testified that he had known West for ten years and

they were friends. He witnessed the shooting. Richardson

yelled at West after Bell started shooting into West’s car and

had to leap behind a van in the parking lot when Bell turned

and shot at him. (TR Vol. IX 329). After the gunman fled

the scene, Richardson went over to check on his friend. He

saw West was dead but Smith was still alive. (TR Vol. IX 331-

332).

At the evidentiary hearing Mr. Richardson testified he is

a close friend of Theodore Wright. (PCR Vol. VIII 1452).

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After the shooting, he went to Jimmy West's mother's house.

(PCR Vol. VIII 1454). He denied giving West's mother or

stepfather a gun. (PCR Vol. VIII 1454). He reaffirmed his

trial testimony was the truth. (PCR Vol. VIII 1458). He did

not see a gun in the victim's car or touch anything in the

car. (PCR Vol. VIII 1459).

As to Bell’s allegation that trial counsel was

ineffective for failing to discover why Richardson did not

confide in his girlfriend, Thosa Mingo, about taking the gun

from West’s car, Mr. Richardson denied even knowing Thosa

Mingo. (PCR Vol. VIII 1459). Ms. Mingo testified at the

evidentiary hearing on this issue as well. Asked by Bell if

she had dated Mark Richardson, who had testified as a state's

witness at trial, Mingo testified that she did not know Mark

Richardson. (PCR Vol. VII 1180-81).

Bell cannot demonstrate trial counsel was ineffective for

failing to suggest to the jury that Richardson took the gun

from West’s car after the murder. This is true both because

there is no evidence this was the case and because Bell did

not defend on

the grounds the shooting was self-defense. This claim should

be denied.

d. Whether trial counsel was ineffective for failing to

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investigate and prepare for the testimony of state witness Charles Jones. Bell alleges that trial counsel was ineffective for

failing to impeach Charles Jones who testified at trial that

Bell tried to sell an AK-47 on Yulee Street sometime after the

murders. (TR Vol. X 488). Bell alleges the AK-47 he bought

was black but in an earlier sworn statement or deposition,

Jones claimed the AK-47 was chrome.

Bell claims trial counsel was ineffective for failing to

bring this discrepancy to the jury’s attention. Bell has two

problems with his argument. First, Bell fails to outline how

trial counsel could have impeached Jones with his prior sworn

statement. Jones did not testify at trial about the color of

the AK-47 that Bell tried to sell. (TR Vol. X 488).

Accordingly, Jones could not be impeached on a prior

inconsistent statement because his trial testimony was not

inconsistent with his earlier description of the weapon.

Section 90.608, Florida Statutes (outlining that a party may

attack the credibility of a witness by, inter alia,

introducing statements of the witness which are inconsistent

with the witness's present testimony). As Bell has failed to

explain how Jones could be “impeached”, his claim should be

denied.

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Bell’s claim may also be denied because Bell has failed

to demonstrate how Jones’ statement about the color of the

weapon probably affected the jury’s verdict. Ericka Williams

testified at trial that on December 8, 1993, she went out with

Bell to purchase an AK-47 assault rifle for Bell. Bell wanted

her to buy it in her name. They first went to one gun store

but the store had no AK- 47's. They next went to the Gun

Gallery and Bell found the one he wanted. Ms. Williams

purchased the weapon. Ms. Williams filled out the paperwork

to buy the weapon. She also purchased a 75 round drum, a 30

round magazine, and eight boxes of bullets. (TR Vol. X 403-

407). Bell paid for it, in cash. Bell took the weapon from

the store. He also took the drum, the magazine, and the

bullets. She never saw them again after that day. (TR Vol.

X 407-408). After the murders, Bell told her he needed to

stay with his aunt for a couple of days to “hide out”. Bell

told her that it took 72 hours for gun powder to wear off.

(TR Vol. 413). Subsequently, Bell instructed Williams to

report the AK-47 they purchased to the police as stolen. (TR

Vol. X 414). She did as he requested. Williams also did not

testify about the color of the weapon. An employee of the

“Gun Gallery” also testified that Bell and Williams bought an

AK-47. He remembered it because it was unusual for a woman to

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buy an assault rifle. He also did not testify about the color

of the weapon. (TR Vol. X 423).

The evidence adduced at trial established that Michael

Bell bought an AK-47 the day before the murder and fired 30

rounds from his newly purchased AK-47 assault rifle into

West’s car, killing Jimmy West and Tamecka Smith. The

evidence also demonstrated he tried to sell an AK-47 after the

murder and instructed Ms. Williams to report the weapon they

had bought stolen. Accordingly, whether Jones was mistaken

as to the weapons’s color would not likely have affected the

verdict. This claim should be denied.

e. Whether trial counsel was ineffective for failing to call Andre Mays for the purpose of impeaching Charles Jones. This is the same claim Bell made in Claim One (i). The

State argued this issue in its answer to Bell’s arguments in

Claim One (i) and will not repeat the argument here. As

outlined in its previous argument, trial counsel was not

ineffective for failing to call Andre Mayes.

g. Whether trial counsel was ineffective for failing to prepare for the testimony of state witnesses Dale George and Ericka Williams. Bell alleges trial counsel was ineffective for failing to

exploit the fact that Dale George and Ericka Williams were

upset at Bell because Bell video taped himself having sex with

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Dale George’s girlfriend. Bell also claims that trial counsel

was ineffective for failing to cross-examine George on the

fact he had seen West shoot at Bell in the past.

(1) The videotape

The videotape is a tape depicting Bell and Marcine Cofer

having sex. Marcine Cofer was co-defendant, Dale George’s

girlfriend. Julian George testified he took the videotape and

played it for his brother. According to Julian, Dale's

relationship with Bell "turned sour" when he discovered that

Bell had "slept with his old lady" (PCR Vol. VI 980). Dale

also played the videotape for Bell's girlfriend Ericka

Williams, who "was upset" (PCR Vol. VI 980-81).

Dale George testified that he and Bell were still good

friends. (PCR Vol. VII 1321). "At first," he was upset about

the sex video, but he "just went ahead and let it go" (PCR

Vol. VII 1323). George had initially denied knowing anything

about the murders to protect his good friend. (PCR Vol. VII

1321). When confronted about his motive to lie against Bell,

George testified that if he had been so angry about the video

to lie against Bell, he would not have first sat in jail for

six months without saying anything. (PCR Vol. VII 1323).

George testified his trial testimony was the truth. (PCR Vol.

VII 1322, 1329).

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Ms. Williams testified that once she became aware of the

sex video, she confronted Bell with it; he just laughed. (PCR

Vol. VII 1345). She was upset. She testified she was not

motivated to testify falsely because of the video. (PCR Vol.

VII 1345-46). It did motivate her to drop him as a boyfriend.

(PCR Vol. VII 1346). Bell began stalking her after she ended

the relationship. (PCR Vol. VII 1346).

Bell failed to demonstrate that had trial counsel

confronted Williams and George with the videotape, the results

of his trial probably would have been different. This is not

a case where the State’s entire case rests on Williams’ or

George’s credibility. While the State does not dispute their

testimony was important, Williams and George’s testimony were

just two small pieces of the state’s case. Bell has failed to

demonstrate that had trial counsel cross-examined Williams or

George on this evidence, he likely would have not been

convicted of first degree murder. This court should deny

this claim.

(2) Prior shooting

Bell alleges trial counsel should have questioned Dale

George about his knowledge of an incident when West or

Theodore Wright shot at Michael Bell. Bell claims that George

observed Jimmy West or his brother shooting at Bell and that

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trial counsel should have explored the incident with him on

cross-examination. (IB 78).

Bell’s claim must fail because George refuted Bell’s

claim he was present when West shot at Bell. At the

evidentiary hearing, George testified he was not around when

“the guy” allegedly shot at Bell. (PCR Vol. VII 1317).

George could not recall an incident where West had shot at him

and Bell when they were standing together. (PCR Vol. VII 7R

1315). He had heard about shootings, but he had never been

present. (PCR Vol. VII 1315). Trial counsel cannot be

ineffective for failing to exploit evidence that did not

exist.

Further, Bell can show no prejudice because Bell has

failed to establish he defended on a theory of self-defense or

that he established any predicate, at the evidentiary hearing,

for the admissibility of West’s prior bad acts. Holland v.

State, 916 So.2d 750, 760 (Fla. 2004) (when self-defense is

raised, evidence of prior specific acts of violence by the

victim is admissible to reveal the reasonableness of the

defendant's apprehension at the time of the incident. Before

a defendant may offer specific acts of violence, however, he

must lay a proper predicate demonstrating some overt act by

the victim at or about the time of the incident which

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reasonably indicated to the defendant a need for action in

self-defense). Bell’s claim should be denied.

i. Counsel was ineffective for failing to present additional evidence at the penalty phase. Bell argues that his trial counsel was ineffective for

failing to call additional witnesses at the penalty phase to

testify about non-statutory mitigation. The only defense

witness at the penalty phase was Bell's mother. Following her

testimony, and a brief discussion at sidebar (TR Vol. XI 678),

the following transpired:

THE COURT: Let the record show the jury is out of the courtroom. And just a moment ago at side-bar Mr. Nichols [trial counsel] advised us of certain things that he had conferred with his client about. Mr. Nichols, for the sake of the record would you state that again so we can get the acquiescence of your client?

MR. NICHOLS: Mr. Bell and I have discussed calling two other witnesses to provide factual matters at this hearing. I have told him I thought the testimony of his mother covered the subjects that would be covered by those others and it would not be prudent to do it again. And he has agreed with me that we will not call any further witnesses.

I have also advised him that he would have the right to take the stand to testify about background matters concerning this feud between himself and Theodore Wright and Jimmy West and other things leading up to the time of this crime, that he could invoke the fifth amendment if he chose to, refuse to answer any questions concerning the day of this crime but that he would be otherwise subject to cross examination concerning his background and any other matter that would be proper cross examination. And he has advised me he would elect not to take the

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stand at this time.

THE COURT: Mr. Bell, you've heard what your attorney Mr. Nichols said that you have agreed and asked not to call any additional witnesses to testify in your behalf, and that you have made the decision not to testify, not to take the stand and testify, is that correct?

MICHAEL BELL: Yes, sir.

THE COURT: That's your decision?

MICHAEL BELL: Yes, sir. (TR Vol. XI 679-80).

At the Spencer hearing, Bell once again confirmed he was

"comfortable" with the presentation already made, and, despite

the presence of family members, did not wish to present their

testimony or call any other witnesses in his behalf. (TR Vol.

XIII 735-736). Bell cannot complain about his own decision not

to call additional witnesses in mitigation absent some

demonstration that trial counsel's advise to him was

deficient. Bell has not attempted to do so. The trial court

correctly determined that Bell was bound by his

representations to the court at trial. (PCR Vol. IV 751).

Even if he were not so bound, Bell has failed to

demonstrate deficient attorney performance with regard to

trial counsel's investigation or presentation of additional

mitigation. At the evidentiary hearing, trial counsel

testified that he did not think that the available additional

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mitigation would have been helpful to Bell. (PCR Vol. IX

1667). In particular, he testified that he saw no point in

bringing in former girlfriends or people who Bell had grown

up with to say he was a person of good character or was loyal.

He testified:

As a matter of fact, I see it as harmful to say to a jury here is a person who everyone says is - all his friends say he's a decent fellow, and that they were overwhelmingly convinced that he had committed this crime. I think it paints a picture of somebody who is more dangerous in general than if you had somebody who had some emotional or psychological problems in their past. (PCR Vol. IX 1667).

This strategic decision, made by an experienced attorney

after investigation and consideration of alternatives, is

virtually unassailable. Spencer v. State, 842 So.2d at 62

("defense counsel's strategic choices do not constitute

deficient conduct if alternative courses of action have been

considered and rejected"); Gorby v. State, 819 So.2d 664, 675

(Fla. 2002)("attorney's reasoned tactical decision not to

present evidence of dubious mitigating value does not

constitute ineffective assistance"). Furthermore, even

assuming some deficiency in trial counsel's performance, Bell

has not demonstrated prejudice.

The character witness presented by Bell at the

evidentiary hearing were, for the most part, former

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girlfriends who, despite their close relationship with Bell,

could say virtually nothing favorable about Bell's character,

and were unaware of his criminal record. Ericka Williams, in

particular, would have been a damaging character witness, to

say the least, when she described how Bell had stalked her,

tried to run over her, threatened her and even kidnapped her

after she ended her relationship with him because of the sex

video.

The aggravators in this case included CCP, prior violent

felony and great risk of death to many persons. Bell v.

State, supra, 699 So.2d at 676 (fn. 1). After serving time

for robbery, Bell coldly murdered two people and intentionally

endangered many others. Against this seriously aggravated

double murder, Bell now proffers as nonstatutory mitigation

the testimony of a second cousin and former friends and

girlfriends to testify that Bell had changed since his

brother's death and now realized "how precious life is"

(Anthony Ammons); that Bell was "respectful and generous" and

had not shown his bad side to a former girlfriend (Thosa

Mingo); that Bell was "loyal, dependable and honest" (Amy

Blount); that Bell was "very nice and loving" but had never

helped anyone (Charae Davis); that Bell was nice, outgoing and

"freestyle" but his only help to anyone had been to give

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someone "advice" (Denise Brisbane); that Bell had been nice to

a girlfriend before his arrest, but his violent nature

seriously frightened her afterward (Ericka Williams); or that

Bell's reputation was at "the highest level" because no one

had the nerve to "look down" on him and he did not "have to

prove nothing to no one" (Dale George). Bell has failed to

show a reasonable probability that a different sentence would

have been imposed if only trial counsel had presented this

testimony in mitigation.

ISSUE TWELVE

WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR ENSURING THE VENIRE WAS SWORN

Bell claims his constitutional rights were violated

because he was not present when the venire was sworn and

because the record is devoid of evidence the venire was sworn.

The only oath at issue, however, is the preliminary oath that

prospective jurors are required to take to ensure they will

give truthful answers to questions regarding their

qualifications. The record reflects the twelve jurors and two

alternate jurors actually selected to sit on Bell's jury were

sworn prior to preliminary instructions. (TR Vol. VIII 241).

Bell also claims trial counsel was ineffective for

failing to ensure the venire was sworn. Bell alleges trial

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counsel was ineffective, as well, for failing to object when

no record was made of whether the venire was sworn prior to

jury selection. (IB 90).

Any substantive constitutional claim is procedurally

barred. A claim the venire was unsworn can, and should, be

raised on direct appeal. Failure to do so acts as a

procedural bar to Bell’s substantive claim. Bolin v. State,

869 So.2d 1196, 1202 (Fla. 2004); Smith v. State, 866 So. 2d

51, 64 (Fla. 2004).

Bell’s allegation the venire was unsworn is refuted by

the evidence at the evidentiary hearing. At the evidentiary

hearing, Assistant Clerk of the Court Mike Riley testified

that, as a matter of course, prospective jurors are gathered

in a courtroom (jury assembly area) each Monday of trial week.

(PCR Vol. VIII 1447). Potential jurors are then qualified and

prepared for disbursement to the courtrooms.

Mr. Riley testified it is the deputy clerk who

administers the oath to prospective jurors and, in March 1995,

he was the deputy clerk. (PCR Vol. VIII 1449). The oath

requires potential jurors to swear or affirm they will answer

truthfully the questions posed to them during the jury

selection process. (PCR Vol. VIII 1447).

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Mr. Riley testified this standard process was in effect

in 1995. Unsurprisingly, Mr. Riley did not have specific

recollection about the venire assembled for Bell’s trial.

However, Mr. Riley told the collateral court there was not a

single time in the entire 9 ½ years he has been at the court

that the oath was not given to prospective jurors. (PCR Vol.

VIII 1448). Mr. Riley testified there is no reason to believe

that prospective jurors who eventually became Bell’s venire

would not have been sworn. (PCR Vol. VIII 1448).

Trial counsel, Richard Nichols, testified he did not pose

any objection to the failure of the deputy clerk to administer

the oath to the venire because he believed the oath was given.

(PCR Vol. IX 679). Mr. Nichols told the collateral court he

had tried many cases in front of trial judge, R. Hudson

Olliff. Trial counsel testified that Judge Olliff “makes a

great deal of certain formalities, one of them is swearing in

the jury”. Mr. Nichols described Judge Olliff as “meticulous

to a fault” about procedural things and formalities. Mr.

Nichols testified it was inconceivable that “we started

talking to that jury without their first having been sworn.”

(PCR Vol. IX 1642).

Bell failed to demonstrate trial counsel’s performance

was deficient. Rule 3.300 (a), Florida Rules of Criminal

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Procedure permits prospective jurors to be sworn collectively

or individually, as the court may decide. In Lott v. State,

826 So.2d 457 (Fla. 1st DCA 2003), the First District Court of

Appeal observed that, in many Florida Courts, the preliminary

oath is administered to the venire in a jury assembly room,

before the jurors are questioned about their legal

qualifications and before they are divided into smaller groups

for questioning in individual cases. The Court concluded that

Rule 3.300(a) does not require the preliminary oath to be

given at a particular time or that it be given more than once.

The Court ruled that if prospective jurors have taken the oath

in the jury assembly room, they need not take it again in the

courtroom. Lott v. State, 826 So.2d at 458.

In this case, Mr. Riley’s and Mr. Nichol’s testimony at

the evidentiary hearing support a finding that members of

Bell’s venire were administered an oath, in the jury assembly

room, before being dispatched to Judge Olliff’s courtroom for

voir dire. As Rule 3.300(a) does not require the oath be

given again once prospective jurors arrive in Judge Olliff’s

courtroom and because the evidence adduced at the evidentiary

hearing supports a conclusion the oath was actually given,

Bell cannot show counsel’s performance was deficient.

Bell also failed to prove trial counsel’s failure to

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object resulted in any prejudice. In order to prevail on a

claim of ineffective assistance of counsel, Bell must allege,

and then prove, that trial counsel’s act or omission was

prejudicial. To show prejudice, Bell must show that as a

result of trial counsel’s omission, there is a reasonable

probability the results of his capital trial would have been

different. Rutherford v. State, 727 So.2d 216, 219 (Fla.

1998)(ruling that in order to meet the prejudice prong of

Strickland, a defendant must show there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different). Even if

trial counsel did not do enough to ensure the record reflected

the venire was sworn, Bell has not, and cannot, demonstrate a

reasonable probability of a different verdict. 20 Bell did not

demonstrate, or even allege, an unsworn juror provided false

information or that there is a reasonably probability he would

have prevailed at trial with a different juror. Davis v.

State, 848 So.2d 418, 419-420 (Fla. 2d DCA, 2003); Lott v.

State, 826 So.2d 457 (Fla. 1st DCA 2003). Bell has failed to

20 The failure to give this oath is not fundamental error. Bolin v. State, 869 So.2d 1196, 1202 (Fla. 2004). Smith v. State, 866 So. 2d 51,64 (Fla. 2004)(where the record does not indicate whether or not the venire was sworn, no fundamental error was demonstrated).

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show that trial counsel’s performance was deficient or that he

suffered any prejudice because of the general jury

qualification process. He is not entitled to the relief he

seeks and this Court should deny his claim. 21

ISSUE FOURTEEN

WHETHER CUMULATIVE ERRORS OF TRIAL COUNSEL DEPRIVED BELL OF A FAIR TRIAL GUARANTEED BY THE SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION In this claim, Bell alleges cumulative error deprived him

of a fair trial. (IB 90). When a defendant fails to

demonstrate any individual error in his motion for post-

conviction relief, it is axiomatic his cumulative error claim

must fail. Downs v. State, 740 So.2d 506, 509 (Fla. 1999);

Bryan v. State, 748 So.2d 1003, 1008 (Fla. 1999) (concluding

that the defendant's cumulative effect claim was properly

denied where individual allegations of error were found to be

without merit). In this case, the collateral court ruled Bell

failed to demonstrate trial counsel was ineffective in either

the guilt or penalty phase of Bell’s capital trial. (PCR Vol.

IV 716-763). As such, Bell failed to demonstrate any

individual error and any cumulative error must fail. Reed v.

21 This Court has previously ruled the general qualification procedure is not a critical stage of trial at which a defendant must be present. Orme v. State, 896 So.2d 725, 737 (Fla. 2005).

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State, 875 So.2d 415, 438 (Fla. 2004).

ISSUE FIFTEEN

WHETHER THE TRIAL JUDGE ERRED IN RULING THAT MANY OF THE ISSUES RAISED IN BELL’S MOTION FOR POST-CONVICTION RELIEF WERE

PROCEDURALLY BARRED

Bell claims, in less than two pages of his brief, that

the trial judge erred in ruling that several of his claims

were procedurally barred. Bell’s real complaint is that

these claims were denied without an evidentiary hearing.

Bell identifies several claims by number about which he

takes issue but presents no argument to support a conclusion

the collateral court improperly disposed of his claims without

an evidentiary hearing. For instance, Bell claims the trial

court improperly denied an evidentiary hearing on Claim One

(K). In this claim, Bell alleged trial counsel was

ineffective for failing to request an instruction on the

statutory mitigator that the murder was committed while the

defendant was under an extreme mental or emotional

disturbance. The collateral court denied this claim because

the jury was instructed on this mitigator and the trial court

found it to apply. (PCR Vol. IV 730). As the record refuted

Bell’s claim, the trial court properly denied it.

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Bell alleges the collateral court improperly denied him

an evidentiary hearing on his Claim One (N) wherein Bell

claimed he received an improper competency evaluation (an Ake

claim) and trial counsel was ineffective for failing to

present available mental health mitigation. The collateral

court properly ruled the substantive Ake claim was

procedurally barred. Marshall v. State, 854 So. 2d 1235, 1248

(Fla. 2003) (holding an Ake claim contained within an

ineffective assistance of counsel claim was procedurally

barred because it could have been raised on direct appeal).

The collateral court allowed Bell an evidentiary hearing on

his claim trial counsel was ineffective in his handling of

mental mitigation. Bell also claims the collateral court

improperly denied claims 3-9. In support, Bell argues only

that claims of ineffective assistance of counsel are not

procedurally barred. However, claims three and four are not

ineffective assistance of counsel claims.

In claim three, Bell alleged the trial court improperly

found that Bell knowingly created great risk of death to many

persons. The trial court properly denied this claim without

an evidentiary hearing. Bell could have raised this claim on

direct appeal. On direct appeal, Bell challenged the CCP

aggravator but did not claim the trial court erred in finding

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the “great risk of death to many persons” aggravator.

Challenges to the sufficiency of the evidence to support an

aggravator can and should be raised on direct appeal. Failure

to do so, acts as a procedural bar in post-conviction

proceedings. Porter v. State, 788 So.2d 917, 919 (Fla. 2001).

As Bell failed to raise this claim on direct appeal, the

collateral court properly ruled this claim was procedurally

barred.

Claim Four is likewise not purely a claim of ineffective

assistance of counsel. Instead, Bell makes a substantive

“burden shifting” claim then alleges trial counsel was

ineffective for failing to object. The collateral court

properly denied this claim. Bell’s substantive burden

shifting claim is procedurally barred because it should have

been raised on direct appeal. Turner v. Dugger, 614 So. 2d

1075, 1079 (Fla. 1992). Further the collateral court properly

denied this claim because this Court has consistently rejected

the notion the standard jury instructions improperly shift the

burden to prove a life sentence is appropriate. Floyd v.

State, 808 So. 2d 175, 186 (Fla. 2002). Trial counsel cannot

be ineffective for failing to object to instructions which had

not been invalidated at the time of the defendant’s

sentencing. Thompson v. State, 740 So.2d 506, 517 (Fla.

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1999).

In Claim Five, Bell claimed the prosecutor improperly

instructed the jury the Court could override a jury

recommendation of life and that a life sentence carried the

possibility of parole after twenty-five years. These comments

accurately depicted the state of the law at the time Bell was

tried. The collateral court correctly concluded that

substantive claims of prosecutorial misconduct are

procedurally barred in post-conviction proceedings as they can

and should be raised on direct appeal. Spencer v. State, 842

So.2d 52, 60-61 (Fla. 2003) (substantive claims of

prosecutorial misconduct could and should have been raised on

direct appeal and thus are procedurally barred from

consideration in a postconviction motion). Additionally

because the alleged violations are readily apparent in the

record of trial, the trial court could properly conclude,

without an evidentiary hearing, that Bell failed to

demonstrate trial counsel was ineffective for failing to

object when the prosecutor made an accurate statement of the

law.

In Claim Six, Bell alleged a Caldwell violation. Bell

raised the substantive issue in this appeal and this is a mere

duplicate of an issue raised in this appeal. (IB 58). As

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this claim could and should have been raised on direct appeal,

the trial court properly ruled it was procedurally barred.

Owen v. State, 773 So.2d 510, 515 n. 11 (Fla. 2000) (ruling

Owen’s Caldwell claim was procedurally barred since this Court

repeatedly has held that Caldwell errors cannot be raised on

collateral review).

The purported improper instructions given by the trial

judge and the comments by the prosecutor were consistent with

Florida's statutory scheme in which the jury "renders an

advisory sentence to the court" and the trial court,

"notwithstanding the recommendation of a majority of the

jury," enters the sentence. This Court has recognized the

jury's penalty phase decision is advisory and that the judge

makes the final sentencing decision. Combs v. State, 525 So.

2d 853, 855-58 (Fla. 1988). Trial counsel cannot be deemed

ineffective for failing to object to instructions or comments

that comport with Florida law. Knight v. State, 923 So.2d

387, 410 (Fla. 2005).

In Claim Seven, Bell claimed trial counsel was

ineffective for failing to object to the State’s exercise of a

peremptory challenge against Mr. Gardenhire. Bell raised

this same claim in Claim 7 of his appeal. (IB 62). Any

alleged violation of trial counsel’s duty to object to the

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State’s challenge of Mr. Gardenhire was apparent on the

record. Accordingly, Bell cannot demonstrate any error on the

part of the collateral court in summarily disposing of this

claim.

In Claim Eight, Bell claims the trial court erred in

denying an evidentiary hearing on his Brady claim. Bell

raised this as a substantive claim in Claim 8 of this appeal.

(IB 66).

Bell is not entitled to relief. At the evidentiary

hearing, Bell was allowed to explore his Brady claim by

questioning trial counsel’s reasoning for not aggressively

pursuing a self-defense theory at trial and about his failure

to investigate West’s acts of violence against Bell and his

brother. (PCR Vol. VIII 1537-1538). He was also allowed to

explore, with his brother, two alleged acts of violence on the

part of West. (PCR Vol. VI 1124 et seq).

While the court did rule the claim was procedurally

barred, the collateral court ruled on the claim on the merits,

as well. (PCR Vol. IV 744). As West’s prior acts of violence

were the subjects of the alleged Brady material withheld by

the State and Bell was allowed to explore the gravamen of this

claim during the evidentiary hearing, the record does not

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support Bell’s allegation he was denied an evidentiary hearing

on this claim.

Finally, as to Claim Nine, Bell claims the collateral

court erred in denying his claim trial counsel was ineffective

for failing to object to the State trying both murders in a

single trial with a single indictment. The collateral court

properly ruled these claims were procedurally barred. Any

challenge to an improper joinder could and should have been

raised on direct appeal.

Additionally, the record refutes any claim trial counsel

was ineffective in failing to object to an improper joinder of

offenses. Pursuant to Rule 3.150(a), Florida Rules of

Criminal Procedure, two or more offenses which are triable in

the same court may be charged in the same indictment or

information in a separate count for each offense, when the

offenses are based on the same act or transaction or on 2 or

more connected acts or transactions. Offenses are "connected

acts or transactions” within the meaning of rule 3.150(a) if

they occurred within a

single episode. Wright v. State, 586 So. 2d 1024, 1029-30

(Fla. 1991).

In this case, the murders of Jimmy West and Tamecka Smith

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undisputedly occurred in one hail of bullets from a 30 round

magazine. The record of trial refuted Bell’s claim trial

counsel was ineffective for failing to object to the State’s

decision to try Bell for both murders before the same jury and

upon the same indictment. Accordingly, the collateral court

properly denied Bell’s Claim Nine without an evidentiary

hearing and Bell’s claim here should be denied.

CONCLUSION

Based upon the foregoing, the State requests respectfully

that this Court affirm the summary denial of Moore's

successive motion for post-conviction relief.

Respectfully submitted,

CHARLES J. CRIST, JR. ATTORNEY GENERAL MEREDITH CHARBULA Assistant Attorney General Florida Bar No. 0708399 Department of Legal Affairs The Capitol (850) 414-3583 Phone (850) 487-0997 Fax Attorney for the Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

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foregoing has been furnished by U.S. Mail to Christopher J.

Anderson, 645 Mayport Road, Suite 4-G, Atlantic Beach, Florida

32233 this 5th day of July 2006.

__________________

MEREDITH CHARBULA

Assistant Attorney General

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the instant brief has been prepared

with 12 point Courier New type, a font that is not spaced

proportionately.

___________________

MEREDITH CHARBULA