FRED LEWIS WAY, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

PER CURIAM.

Fred Lewis Way appeals a sentence imposing the death penalty following a resentencing proceeding and the trial court’s denial of post-conviction relief following an evidentiary hearing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. The facts of this ease are set forth in our previous opinions. See Way v. Dugger, 568 So. 2d 1263 (Fla.1990) (Way II); Way v. State, 496 So. 2d 126 (Fla.1986) (Way I). On July 11, 1983, a fire occurred in the garage of the home occupied by the defendant, Fred Lewis Way, and his family. Both his fifteen-year-old daughter, Adrienne Way, and his wife, Carol Way, were found dead in the garage.

The state presented evidence that Way, who was having marital difficulties, argued with his wife in the garage of their Tampa home, ultimately striking her in the head with a hammer. He called Adrienne into the garage and also struck her in the head with a hammer. He then set both mother and daughter, and the garage, on fire.

Way II, 568 So. 2d at 1264.

At trial, the medical examiner testified that Carol had suffered twelve traumas to the skull that had been caused by a blunt instrument, such as a hammer. Adrienne had suffered two similar blows to the head, the second of which was severe enough to crack her skull. Expert witnesses for the State testified at trial that the fire was intentionally set and gasoline had been used as the primary accelerant. See id. The cause of death for both victims was blunt trauma and 100% body burns, either of which could have caused their deaths. See Way I, 496 So. 2d at 127.

At trial, Way’s surviving daughter Tiffany testified that her mother and father had been in the garage together when Way called Adrienne into the garage. Moments later, Tiffany heard Adrienne screaming in the garage. When Tiffany looked out her bedroom window, she saw a fire in the garage. However, her father did not respond when Tiffany asked whether she should call the fire department.1 Witnesses to the fire also testified that Way did not respond to questions concerning whether anyone was in the burning garage. After hearing screams from inside the garage, Way answered that his daughter was in the garage. A witness also saw a body2 engulfed in flames attempting to rise up on all fours as if to crawl out of the burning garage and then finally collapsing. See Way II, 568 So. 2d at 1265. The jury, rejecting Way’s defense that the mother and daughter were killed while engaged in mutual combat, found Way guilty of second-degree murder in the killing of Carol Way, but guilty of first-degree murder for the killing of Adrienne as well as first-degree arson. In accordance with the jury’s seven to five recommendation, the trial court imposed the death penalty for the murder of Adrienne Way. The trial court also imposed a sentence of ninety-nine years’ imprisonment for the second-degree murder conviction and a thirty-year sentence for the first-degree arson conviction. This Court affirmed the convictions and sentences on direct appeal. See Way I, 496 So. 2d at 129.

The trial court denied Way’s first motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850,3 which this Court affirmed on appeal. See Way II, 568 So. 2d at 1266-67. However, we granted a writ of habeas corpus, vacated the death sentence and remanded for resentencing as required by Hitchcock v. Dugger, 481 U.S1 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), because the error that occurred when the jury was not instructed that it could consider nonstatutory mitigation was not harmless beyond a reasonable doubt.4 See Way II, 568 So. 2d at 1266-67.

Prior to the resentencing proceeding, Way filed an emergency 3.850 motion in the trial court alleging that photographs withheld from the defense showed that the fire had been started by an “accidental propane gas explosion” instead of having been intentionally set by Way using gasoline. Way v. State, 630 So. 2d 177, 178 (Fla.1993) (Way III). The trial court summarily denied relief on the 3.850 motion and proceeded with the resentencing.

The jury again recommended the imposition of the death penalty by a vote of seven to five. The trial court imposed the death penalty after finding that the applicable statutory aggravating circumstances5 outweighed the statutory mitigating6 and nonstatutory mitigating7 circumstances. On appeal of the resentencing proceedings and the summary denial of the postconviction motion, we remanded for an evidentiary hearing to determine whether there was an improper withholding of the photographs and whether, even if there was, it would have affected the outcome of Way’s trial. We are unable to conclusively determine from the record that this “new” evidence could not support an alternative theory of the deaths of his wife and daughter and provide a basis on which a jury could find him innocent.

Id. at 178-79. We withheld ruling on the issues raised in Way’s direct appeal of the resentencing proceedings. See id. at 179. After holding an evidentiary hearing, the trial court denied relief on the Brady8 claim and this appeal follows.

In the present appeal, Way raises three issues on appeal from the denial of post-conviction relief9 and eight issues remain outstanding from his appeal of the imposition of the death penalty in the resentencing proceedings.10 We first address the trial court’s denial of Way’s Brady claim.

BRADY CLAIM

The evidence presented at the evidentiary hearing centered on two photographs that Way asserted had been suppressed by the State in violation of Brady. One photograph showed the condition of the circuit breaker box following the fire. A number of circuit breakers had been tripped and black lines radiated out of the panel. The second photograph of the garage after the fire showed a weight bench with a broken leg extension bar. The photographs had been taken by Henry Regalado, an arson investigator who had conducted an arson investigation the day following the fire for a private company. The defense claimed that the photograph of the circuit breaker box would have supported a defense that the fire was accidentally started and the photograph of the weight bench would have provided an explanation of Adrienne’s head wounds.

In order to support the Brady claim, the defense presented the testimony of Eleanor Posey, an expert in electrical engineering and forensic fire examination, who testified that in her opinion the photograph of the electrical panel when viewed in conjunction with the other evidence at the scene refuted the State’s theory that the fire had been intentionally set by Way. Instead, according to Posey, a spark from an open circuit breaker ignited flammable vapors present from chemicals used to refinish furniture. This explosion would have been sufficient to hurl a person to the ground.

As to the significance of the photograph of the weight bench, the defense also presented the expert testimony of Dr. Feegel, a medical pathologist, who testified that in his opinion, one of the wounds on the heads of Adrienne and Carol could have occurred when their heads hit a round object, such as the weight extension bar, during an explosion. However, in Dr. Feegel’s opinion, it was unlikely that the remaining wound on Adrienne’s head or the remaining eleven wounds on Carol’s head were caused by mutual combat between the victims.

In response to the defense testimony, the State presented expert testimony explaining that based on all of the physical evidence at the scene, the fire had been intentionally set and gasoline had been used as an accelerant. The State’s experts testified that the burn patterns in the garage were inconsistent with an explosion, but consistent with the fire starting when a pile of combustibles had been soaked with gasoline and set using a trail of gasoline. The most intense burns surrounded the bodies, and little combustible materials were close to the bodies. This indicated to the State’s experts that the bodies had been doused with gasoline. After the fire, gasoline had accumulated in pools, and tests conducted demonstrated that the gasoline would not have flowed to these areas had it not been intentionally poured.

The trial court denied the Brady claim, finding that the photographs had been disclosed to Way because the arson investigator referenced them in his report and brought the photographs to his deposition prior to trial. The trial court further found that the photographs were not exculpatory and “the suggested alternative theory of the defense is incredible.” Specifically, the trial court found that:

The victim of the capital murder suffered two (2) severe, one probably even lethal, blows to her skull. According to the alternative theory these wounds occurred when she was knocked down against a weight-lifting bench by the force of an explosion which occurred when unknown flammable vapors were ignited by some unknown malfunction of the circuit breaker box. Incredibly, according to the alternative theory, this occurred a moment after the victim had inflicted about a dozen severe wounds, identical to her own and again probably even lethal, to the skull of her mother. Then, according to the alternative theory, the force of the explosion caused gasoline to spill on the victim, her mother, a TV set and a box of books and then ignite.

... The opinion of fire expert Eleanor Posey defies logic, is inconsistent with the physical evidence at the fire scene and is refuted by the testimony of on-scene fire investigators and an electrical engineer. The testimony of Petitioner’s expert in forensic pathology, Dr. Feegel, merely reiterated expert testimony presented by defense expert Dr. William Gibson during trial. Viewed in the light most favorable to Petitioner, the defense theory that an accidental fire occurred simultaneous with the victim’s mutual combat is implausible. No rational juror could have found a reasonable doubt based upon the testimony adduced by Petitioner at the evidentiary hearing.

(Emphasis supplied.) Thus, the trial court concluded that the Brady claim was without merit because there was no reasonable probability of a different outcome had the photographs been used by the defense at trial.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The prosecutor’s obligation under Brady extends to the disclosure of evidence that could be used for impeachment, as well as exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “In order to comply with Brady, ... The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in [the] case, including the police.’ ” Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Whether the prosecutor succeeds or fails in meeting this obligation to learn of any favorable evidence known to others acting on the State’s behalf in the case, “the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.” Kyles, 514 U.S. at 438, 115 S.Ct. 1555.

In accordance with Brady, Bagley and Kyles, the United States Supreme Court in Strickler enunciated the three significant elements of a Brady claim as follows:

There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

Strickler, 119 S.Ct. at 1948. Accordingly, we review each of these elements.

A. Were the Photographs Favorable to Way?

As to the first prong, the trial court made a statement in its order denying relief because it was “not convinced that the photos were exculpatory,” while acknowledging that the photographs could have been used in support of an alternative defense theory. Under Brady, evidence is considered exculpatory merely if it is “favorable to the accused, either because it is exculpatory, or because it is impeaching.” Strickler, 119 S.Ct. at 1948.

During the guilt phase of the trial, William Myers, an expert witness called by the State, testified that the fire had not been caused by an electrical shortage. Concerning the circuit breaker, Myers testified that:

Q. Did you make a check in that garage area for any electrical shortages?

A. Yes, sir, I did.

Q. How did you do that?

A. [I] went to the electrical breaker panel that was located on the north wall and checked to see if there had been any indications of localized heat or if any of the breakers had been tripped indicating that there had been a short.

Q. What conclusions did you make?

A. There was no electrical fire in the garage.

Although the expert never affirmatively testified as to whether he had found the breakers tripped, his testimony could lead the jury to conclude that he had examined the circuit breakers and found that they had not been tripped. The photograph of the electrical panel would have shown that the breakers were tripped after the fire. At the very least, it appears that this photograph could have been used to impeach the State’s witness as to the condition of the breakers after the fire.

In addition, this photograph could have been used to support the alternative defense theory that the fire had been started accidentally by a spark from an open circuit breaker igniting furniture refinishing chemicals. Likewise, the photograph of the weight bench could have also been used to support this alternative theory that Adrienne’s head wounds had not been caused by Way. Thus, we conclude that the photographs were exculpatory evidence under Brady and Bagley.

B. Were the Photographs Suppressed?

Way’s resentencing counsel testified at the evidentiary hearing that the photographs were first found by the defense when preparing for the resentencing proceedings. Resentencing counsel testified that he asked Michael Benito, who was the trial prosecutor in this case, if that was “all the evidence.” In response, Benito showed resentencing counsel a box full of photographs that had been in Benito’s desk rather than with the rest of the file. Resentencing counsel further testified that Benito stated the box was full of photographs that “essentially we never used, we never showed to anybody. If you want them take a look at them.” The photographs at issue were in that box.

Benito testified he did not recall whether this conversation occurred or when these specific photographs had been disclosed to the defense. However, Benito testified that at all times he had maintained an “open file” policy.

The trial court found that “trial counsel did not have possession of the disputed photos at trial.” The trial court further found that the photographs were part of the file of an expert witness, Henry Rega-lado, who testified at trial on behalf of the State and who also gave a deposition prior to trial. In finding that the photographs had been “disclosed,” even though trial counsel did not have possession of the photographs, the trial court relied on the expert witness’s testimony that he had brought the photographs to the deposition and his report that stated that “photographs were also taken by Mr. Regalado, some of which are included in this report, with the remainder being on file” at Rega-lado’s office. There was no testimony at the evidentiary hearing as to whether the defense knew of the presence of the photographs at the deposition. However, the trial court found, “This report was provided to trial counsel and was used by him during his deposition of Mr. Regalado. Mr. Regalado had the photos with him at the deposition, available for viewing and/or copying.”

A trial court’s finding after evaluating conflicting evidence that Brady material had been disclosed is a factual finding. See United States v. Willis, 759 F. 2d 1486 (11th Cir.1985); Squires v. Dugger, 794 F.Supp. 1568 (M.D.Fla.1992). As a factual finding, the reviewing court should uphold the finding as long as it is supported by competent, substantial evidence in the record. See Stephens v. State, 748 So. 2d 1028 (Fla.1999).

In previous cases, this Court has broadly stated that evidence was not “suppressed” where it was equally available to the State and the defense. See Roberts v. State, 568 So. 2d 1255, 1260 (Fla.1990); James v. State, 453 So. 2d 786, 790 (Fla.1984). However, in those cases, the defendant was aware of the exculpatory information. See Roberts, 568 So. 2d at 1260 (defendant aware of evidence that would show he was under the influence of drugs or alcohol during the crime); James, 453 So. 2d at 790 (defendant was aware of existence of photographs contained in confidential juvenile records). This case is also unlike Provenzano v. State, 616 So. 2d 428 (Fla.1993), where the defendant claimed that the State had suppressed the notes taken by the State’s expert witness. The Court found that these notes had not been suppressed because the expert used the notes while testifying at trial, and the defendant could have obtained them at that time. See id. Thus, the defendant in Provenzano should have been actually aware of the expert’s notes.

However, in this case, there is no evidence that the expert witness referred to the disputed photographs during his deposition or his trial testimony. Indeed, none of Regalado’s deposition or trial testimony discussed the electrical panel. Further, and most significantly, at a pretrial hearing occurring after Regalado’s deposition, the prosecutor affirmatively assured the defense that all photographs of the crime scene had already been produced.11 In light of these representations, the State may have unintentionally caused the defense lawyer to assume that all of the photographs of the crime scene had been produced, including those in the expert witness’s report. Cf. Bagley, 473 U.S. at 683, 105 S.Ct. 3375 (finding that prosecutor’s response to discovery request may have “misleadingly induced” defense counsel to believe that impeachment evidence did not exist). Therefore, as a matter of law, we find that a finding of disclosure would be inconsistent with Brady where, as here, the State affirmatively represented that all the photographs of the crime scene had been produced.

As to the issue of whether trial counsel should have been aware of the photographs because all photographs were referenced generally in the report, in Young v. State, 739 So. 2d 553 (Fla.1999), this Court observed that under the rules of discovery there is an obligation upon the defendant to exercise due diligence pretrial to obtain information. However, we have also recognized ... that the focus in postconviction Brady-Bagley analysis is ultimately the nature and weight of undisclosed information. The ultimate test in backward-looking postconviction analysis is whether information which the State possessed and did not reveal to the defendant and which information was thereby unavailable to the defendant for trial, is of such a nature and weight that confidence in the outcome of the trial is undermined to the extent that there is a reasonable probability that had the information been disclosed to the defendant, the result of the proceeding would have been different.

Id. at 559 (emphasis supplied). Thus, while the discovery rules impose an obligation upon defendants to obtain exculpatory materials through the exercise of due diligence, the “ultimate test” in determining if a Brady violation occurred is whether “confidence in the outcome of the trial is undermined to the extent that there is a reasonable probability that had the information been disclosed to the defendant, the result of the proceeding would have been different.” Id.

C. Prejudice

As explained by the United States Supreme Court in Kyles, a “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more.” Kyles, 514 U.S. at 437, 115 S.Ct. 1555; see Strickler, 119 S.Ct. at 1948; Bagley, 473 U.S. at 675, 105 S.Ct. 3375. In addition, the defendant must establish that the defense was prejudiced by the State’s suppression of evidence, in other words, that the evidence was material. See Strickler, 119 S.Ct. at 1948-49. The United States Supreme Court articulated the specific test for determining the materiality of evidence in order to meet the prejudice prong of Brady:

[Ejvidence is material only 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.

Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (plurality opinion) (emphasis supplied); see Strickler, 119 S.Ct. at 1952.

A showing of materiality “does not require demonstration by a preponderance that disclosure of the suppressed evidence would have ultimately resulted in the defendant’s acquittal.” Kyles, 514 U.S. at 434, 115 S.Ct. 1555. As the United States Supreme Court recently explained:

[T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, ' the remaining evidence is sufficient to support the jury’s conclusions. Rather, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”

Strickler, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555) (emphasis supplied) (citations omitted).12 The cumulative effect of the suppressed evidence must be considered when determining materiality. See Kyles, 514 U.S. at 436 & n. 10, 115 S.Ct. 1555. “It is the net effect of the evidence that must be assessed.” Jones v. State, 709 So. 2d 512, 521 (Fla.1998); see Kyles, 514 U.S. at 436 & n. 10, 115 S.Ct. 1555.

Although reviewing courts must give deference to the trial court’s findings of historical fact, the ultimate question of whether evidence was material resulting in a due process violation is a mixed question of law and fact subject to independent appellate review. See Hays v. Alabama, 85 F. 3d 1492, 1498 (11th Cir.1996), cert. denied, 520 U.S. 1123, 117 S.Ct. 1262, 137 L.Ed.2d 341 (1997); Kennedy v. Herring, 54 F. 3d 678 (11th Cir.1995); see also Stephens v. State, 748 So. 2d 1028 (Fla.1999) (concluding that,.appellate courts should defer to the findings of historical fact with regard to a claim of ineffectiveness of trial counsel but that the ultimate question of ineffectiveness is a mixed question , of law and fact' subject to. independent appellate review). In-its order denying relief,-the trial court concluded that:

[T]he overwhelming circumstantial evidence admitted at trial supports the conclusion that no reasonable probability exists that possession of the photographs by Petitioner prior to trial would have resulted in a different outcome. These photographs and the expert opinions drawn therefrom are not of such a nature that they would probably produce an acquittal on retrial. The opinion of fire expert Eleanor Posey defies logic, is inconsistent with the physical evidence at the fire scene and is refuted by the testimony of on-scene fire investigators and an electrical engineer. The testimony of Petitioner’s expert in forensic pathology, Dr, Feegel, merely reiterated expert -testimony presented by defense, expert Dr. William Gibson during trial. Viewed in the light most favorable to Petitioner, the defense theory that-an--accidental fire occurred simultaneous[ly] with the victim’s mutual combat is implausible. No rational juror. could have found a reasonable doubt' based upon the testimony ad duced by Petitioner at the evidentiary hearing.

(Emphasis supplied.)

Way asserts that the trial court applied the wrong legal standard when it stated that the photographs were not material because “they are not of such a nature that they would probably produce an acquittal on retrial.” Way is correct that “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Kyles, 514 U.S. at 434, 115 S.Ct. 1555. Instead, the proper inquiry is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435, 115 S.Ct. 1555.

Although the trial court in this case may have used an incorrect standard when it tied the materiality inquiry to whether the photographs would result in an acquittal on retrial, it is clear from the entire order that the trial court was in fact assessing whether confidence in the verdict was undermined under the Kyles standard and was not utilizing a sufficiency of the evidence test. Significantly, the trial court’s order assesses the credibility of the defense expert witnesses and the impact their testimony would have had if presented during trial in light of the evidence presented at the evidentiary hearing, the trial, and the resentencing proceeding.

In evaluating the impact this evidence had on the reliability of the trial, the trial court found that the testimony of defense expert Posey as to the source of the fire was contrary to the physical evidence at the scene and refuted by the. testimony of the State’s expert witnesses. The trial court concluded that the alternative defense theory was so implausible that “[n]o rational juror could have found a reasonable doubt based upon the testimony adduced by Petitioner at the evidentiary hearing.” The trial court’s finding that Way’s alternative theory is rebutted by the State’s expert witnesses and contrary to the physical evidence at the scene of the crime is supported by competent, substantial evidence based on the evidence presented at the evidentiary hearing and at trial.

The real problem with the alternative defense theory is that it is not only substantially contradicted by the physical evidence, but it also fails to explain the majority of the victims’ head wounds. Carol suffered multiple blunt traumas to her head and Adrienne suffered two severe head wounds. In fact, one of the lacerations suffered by Adrienne was so severe that it cracked her skull and went into the brain tissue. According to Posey, the force of the explosion would have been sufficient to hurl a person to the ground. However, as Posey acknowledged, the explosion could only account for one head injury per victim, leaving eleven significant wounds on Carol and one significant wound on Adrienne unexplained. In defense expert Dr. Feegel’s opinion, it is unlikely that the remaining injuries were caused by mutual combat. The State’s expert pathologist, Dr. Diggs, had testified at trial that the similarity between the wounds on the two victims’ heads made it much more likely that the victims had been injured by a third party rather than through mutual combat.13 Further, according to Dr. Diggs, the severity of the wounds would make it difficult for the victims to continue battering each other. Each individual wound would have caused severe dizziness, and the wound that cracked Adrienne’s skull would have rendered her unconscious immediately. Also unexplained by the defense theory is that the blood splatter evidence entered at trial showed that both women received many of the wounds while in a low-lying position.

Before accepting this alternative defense theory, a juror would have had to .accept that after being called out to the garage, Adrienne and her mother severely bludgeoned each other, and that thereafter, coincidentally and accidentally an electrical spark from an open circuit breaker started a fire. We agree with the trial court that this is contrary to the physical evidence at trial and defies logic when considered in totality with all the evidence presented at trial, the resentencing and the evidentiary hearing.

Thus, we agree with the conclusion of the trial court that even if these photographs had been disclosed by the State, Way has not demonstrated that he was prejudiced thereby pursuant to the Brady, Kyles, and Strickler standard. Under these cases, Way must show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict,” Strickler, 119 S.Ct. at 1952 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555), had the defense been able to use the photographs at trial. We affirm the denial of postconviction relief by the trial court because the photographic evidence does not put this case in such a different light as to undermine confidence in the verdict.14

Way further asserts that the cumulative effect of this evidence should be considered in conjunction with the previous claims raised on direct appeal and during his first motion for postconviction relief. However, Way’s written closing arguments following the evidentiary hearing, which purported to inform the trial court of the correct legal standard to apply to the Brady claim, did not assert that the materiality of the photographs should be considered in conjunction with any other previous claims. Thus, we find that the claim that the cumulative impact should have been considered when determining materiality has not been preserved for review because it was not raised in the trial court. However, even if we were to engage in a cumulative analysis, we do not find that our conclusion as to prejudice would change. Cf. Lightbourne v. State, 742 So. 2d 238, 249 (Fla.1999)..

We also reject Way’s related claim that the trial court erred in limiting the testimony of Way’s son, Fred Way, Jr., and excluding the testimony of Betty Slan-ton and Sean Rooker. The trial court allowed Fred Way, Jr., to testify that the weight bench in the garage had been in working order before the fire and that his mother stored furniture refinishing chemicals in the garage. The defense also proffered testimony that Fred Way, Jr., would testify that he recanted his trial testimony that he had seen his father throw a hammer over the backyard fence after the fire.15 The trial court sustained the State’s objection to this testimony as beyond the scope of the remand for the evidentiary hearing on the Brady claim.

In addition, the trial court sustained the State’s objection to the testimony of Sean Rooker. An eyewitness to the fire, Rook-er initially told police that he had observed Adrienne and Carol having an argument prior to the trial. Rooker later told police that this statement was a he. At the evidentiary hearing, collateral counsel proffered the testimony of Rooker that he had never told the police that he lied when he said that he had heard Adrienne and Carol arguing prior to the fire. The trial court sustained the State’s objection to this testimony because it was unrelated to the issue of whether the photographs had been withheld from the defense.

In addition, the trial court sustained the State’s objection to the testimony of Betty Slanton, who collateral counsel claimed was a newly discovered witness who would testify that at the time of the fire Way was visibly upset. The trial court ruled that this evidence was also irrelevant to the Brady claim, because this testimony would have been used by the defense to rebut the State’s evidence that Way was unnaturally calm and unemotional at the scene of the fire regardless of whether the defense had access to the photographs.

We find that the trial court did not abuse its discretion in concluding that the testimony of these witnesses was beyond the scope of the remand to determine whether a Brady violation occurred. See Mendyk v. State, 707 So. 2d 320 (Fla.1997). Further, Way never attempted to amend his postconviction motion to include additional claims that the testimony of these three witnesses constituted newly discovered evidence and he does not make that claim on appeal. For these reasons, we affirm the trial court’s denial of relief on Way’s postconviction motion.

WELLS, J.,

concurring.

I concur in the affirmance of the trial court’s orders. I concur in result only as to the majority’s Brady19 claim analysis. I find that the Brady claim analysis is unnecessarily complicated and that it omits the second part of the analysis, which has four components, not three. This requires a showing of due diligence by the defendant. A four-part analysis is consistent with this Court’s precedent in Robinson v. State, 707 So. 2d 688, 693 (Fla.1998), and Hegwood v. State, 575 So. 2d 170 (Fla. 1991), and the analysis of the Eleventh Circuit in Wright v. Hopper, 169 F. 3d 695, 701 (11th Cir.1999), and Sims v. Singletary, 155 F. 3d 1297, 1310 (11th Cir.1998). Wright and Sims are post-Kyles v. Whitley decisions.

Further, I am concerned that the majority’s Brady analysis in stating what are factual questions to which deference ,is owed to the trial court and what are questions of mixed law and fact subject to de novo review reaches too far, and claims de novo review of issues which are actually questions of inferences drawn from facts. An example of this is the discussion on page 16 in respect to the “finding of disclosures.” I believe reviewing courts must avoid complex analysis which constructs a basis iipon which to label something a mixed question of law and fact in order to afford a premise upon which to then exercise appellate court judgment in place of the judgment which has been made by the trial court. It is vital that we respect the time-honored discretion of trial courts and not remake decisions which, because of the trial court’s superior vantage point, should be within the purview of the trial court and are presumed correct.

. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

PARIENTE, J.,

concurring.

I concur in the denial of the Brady claim and the affirmance of the death sentence. I write separately to address Way’s point on appeal that this Court should recede from its prior decisions that preclude the consideration of “lingering” or “residual” doubt as a nonstatutory mitigator — especially because this was a resentencing proceeding in which the jury did not decide the issue of guilt.

Many of the concerns over the death penalty have focused on the possibility of executing an innocent person — a spectre that runs contrary to the interests of justice. Although the United States Supreme Court has rejected the argument that the Eighth Amendment requires that a capital sentencing jury be instructed that it can consider lingering doubt evidence in mitigation, see Franklin v. Lynaugh, 487 U.S. 164, 173-74, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), in view of the finality of the death penalty, there are some important reasons why our responsibility to independently review death sentences might extend to an evaluation of the evidence supporting guilt.

As then-Justice Barkett noted in her specially concurring opinion in Melendez v. State, 498 So. 2d 1258, 1262 (Fla.1986),

While a jury verdict of guilt based on competent substantial evidence is sufficient for upholding convictions and prison sentences, I do not believe it is always enough for upholding a death sentence. There are cases, albeit not many, when a review of the evidence in the record leaves one with the fear that an execution would perhaps be terminating the life of an innocent person.

Earlier, Justice Thurgood Marshall made similar observations:

There is certainly nothing irrational— indeed, there is nothing novel — about the idea of mitigating a death sentence because of lingering doubts as to guilt. It has often been noted that one of the most fearful aspects of the death penalty is its finality. There is simply no possibility of correcting a mistake. The horror of sending an innocent defendant to death is thus qualitatively different from the horror of falsely imprisoning that defendant. The belief that such an ultimate and final 'penalty is inappropriate where there are doubts as to guilt, even if they do not rise to the level necessary for acquittal, is a feeling that stems from common sense and fundamental notions of justice. As such it has been raised as a valid basis for mitigation by a variety of authorities.

Heiney v. Florida, 469 U.S. 920, 921-22, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984) (dissenting from denial of certiorari) (emphasis supplied).

Addressing concerns such as these, the drafters of the Model Penal Code included the consideration of lingering doubts of guilt in their model death penalty statute as not just a mitigating factor, but as a factor that excludes the possibility of a death sentence as a matter of law:

Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree [i.e., a non-capital offense] if it is satisfied that:

(f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant’s guilt.

Model Penal Code § 210.6(1) (1962).

The fact that a jury or judge may not decide to impose the death penalty because of concerns over the defendant’s guilt is a reality acknowledged by the Eleventh Circuit Court of Appeals in Smith v. Wainwright, 741 F. 2d 1248 (11th Cir.1984).20 In the course of deciding whether trial counsel was ineffective for failing to impeach the State’s key witnesses with prior inconsistent statements, the Eleventh Circuit observed that the failure of counsel to use the statements not only may have affected the outcome of the guilt phase of the trial, but may have also changed the outcome of the penalty phase of the trial. See id. at 1255. The Eleventh Circuit reasoned that the outcome of the penalty phase may have been affected because “jurors may well vote against the imposition of the death penalty due to the existence of ‘whimsical doubt.’ ” Id.

Because a lingering doubt of the defendant’s guilt appears to be an actual factor that sentencing phase juries and judges consider when making the sentencing recommendation, I conclude that the introduction of this type of evidence is especially important during resentencing proceedings. In resentencing proceedings, the jurors do not have the benefit of hearing evidence presented in the guilt phase that might have cast a doubt on the defendant’s guilt.

A good example of why it is important to allow the presentation of lingering doubt evidence during resentencing proceedings is set forth in Justice Barkett’s dissenting opinion in King v. State, 514 So. 2d 354 (Fla.1987). In King’s case, the Eleventh Circuit had previously found that defense counsel was constitutionally ineffective because

[the defendant] was convicted on circumstantial evidence which however strong leaves room for doubt that a skilled attorney might raise to a sufficient level that, though not enough to defeat conviction, might convince a jury and a court that the ultimate penalty should not be exacted, lest a mistake may have been made.

See id. at 361 (quoting King v. Strickland, 748 F. 2d 1462, 1464 (11th Cir.1984)) (emphasis supplied). Justice Barkett observed that the defendant should not lose the benefit of this lingering doubt argument during the resentencing proceeding. See id. Accordingly, Justice Barkett concluded that the defendant should have been allowed to present evidence during the resentencing proceeding that would place a lingering doubt of the defendant’s guilt in the jurors’ minds. See id.

The protection of allowing the consideration of lingering doubt evidence is even more important where the death penalty may be imposed by a vote of seven to five, a bare majority of the jurors, as occurred in this case. In fact, Florida is in a small minority of jurisdictions with a statute that allows the imposition of the death penalty even though the-jurors’ vote is less than unanimous.21

In summary, I believe that the nature and strength of the evidence of guilt should be considered in deciding whether to impose the death sentence and in whether to uphold a death sentence. I urge the Legislature consider including evidence of residual doubt as a statutory mitigating factor that could be considered by juries in making a sentencing recommendation, the trial court in imposing the death sentence, and this Court in determining whether the death penalty should be affirmed. Alternatively, I urge the Legislature consider requiring a unanimous jury verdict, or at the minimum a vote of ten-to-two, for a jury recommendation of death.

My view of this issue, however, does not alter my conclusion regarding the propriety of the imposition of the death penalty in the present case. Indeed, after careful review of the record, I believe that the evidence of guilt rises to the level of certainty that supports the imposition of the death penalty.

ANSTEAD, J., concurs.

. In fact, authors of a law review article examining the factors influencing juries to recommend the imposition of a life versus a death sentence in Florida concluded that the "existence of some degree of doubt about the guilt of the accused was the most often recurring explanatory factor" in those cases studied where the jury recommended a life sentence. See William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J.Crim. L. 1, 28 (1988).

. In many jurisdictions that have the death penalty, a vote of more than a bare majority of the jurors is required before the death penalty may be imposed. See Geimer & Amsterdam, supra, at 13 n. 49. In fact, as of 1988, twenty-five out of the thirty states requiring a jury verdict to support the death penalty explicitly required a unanimous jury verdict. Id. At the present time, Virginia, New York, Illinois and California are among the states that require a unanimous jury verdict. See Cal.Penal Code § 190.4(b) (West. 1999); 720 Ill. Comp. Stat. Ann. 5/9 — 1(g) (West.Supp.1999); N.Y.Crim. Proc. Law § 400.27(1 l)(a) (McKinney Supp.1999); Va. Code Ann. § 19.2-264.4(D)(1) (Michie Supp. 1999). Similarly, the Texas statute provides that a death sentence may not be imposed unless the jurors unanimously find that there are not "sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed,” while a life sentence requires the agreement of ten jurors. Tex.Crim. P.Code Ann. § 37.071 (West Supp.2000); see Prystash v. State, 3 S.W. 3d 522, 537 (Tex.Crim.App.1999), petition for cert. filed (U.S. Dec. 14, 1999) (No. 99-8503).