BENJAMIN DAVIS SMILEY, JR.

v.

STATE OF FLORIDA & BENJAMIN DAVIS SMILEY, JR. V. SECRETARY, DEPARTMENT OF CORRECTIONS

Supreme Court of Florida

No. SC2024-1361 BENJAMIN DAVIS SMILEY, JR., Appellant, vs. STATE OF FLORIDA, Appellee.

No. SC2025-0250 BENJAMIN DAVIS SMILEY, JR., Petitioner, vs. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

September 17, 2026

GROSSHANS, J.

Benjamin Davis Smiley, Jr., appeals the circuit court's order denying his initial motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court's order and deny Smiley's habeas petition.

I

Mark Wilkerson lived in a home in Lakeland with his brother, Mario, his mother, and his stepfather, Clifford Drake. On the night of April 15, 2013, Wilkerson saw two men whom he did not recognize standing near his home. He asked what they were doing. Smiley, who was the shorter of the two men, pointed a gun at Wilkerson and demanded to know where Drake kept his safe. Wilkerson denied knowing about the safe and pled for his life. In response, Smiley took various items from Wilkerson, including a cell phone and cash.

Smiley then forced Wilkerson inside the home and instructed Wilkerson to lead them to Drake's bedroom. At that time, Drake was asleep on the bed. Smiley entered the darkened bedroom alone but ordered Wilkerson to turn on the lights when he was unable to find the safe. Smiley then struck Drake on his head with the gun, startling him awake. Smiley pointed the gun at Drake and demanded to know where he kept his money, but Drake denied having any. Smiley reacted by shooting Drake in the hip and then in the chest. The second shot was fatal.

Returning his attention to Wilkerson, Smiley demanded that he look for Drake's money. Complying with Smiley's demands, Wilkerson ransacked the bedroom, but to no avail. Eventually, the taller man, Casey Bisbee, warned Smiley that someone was coming. After ordering Wilkerson to get on the ground, Smiley and Bisbee ran from the home, leaving behind a backpack one of them had brought.

Law enforcement promptly began investigating Drake's murder. Although the murder weapon was never found, the police recovered bullets from the crime scene. Testing later revealed that these bullets had markings identical to bullets recovered about a month earlier at the scene of another murder in the same neighborhood. Despite these leads, the case went cold.

A breakthrough in the investigation came when, almost two years after the murder, the police discovered that DNA recovered from both the backpack and a sweatshirt discarded near the Drake home matched Smiley's DNA. Subsequently, the police presented Wilkerson with a photographic lineup, which included a picture of

Smiley. Wilkerson identified Smiley as the shooter.

At this point, the police took a fresh look at records obtained from Wilkerson's stolen cell phone. Those records showed that just minutes after Drake was murdered, someone used Wilkerson's cell phone in a three-way call with Smiley's cousin, John McDonald, and his aunt, Samantha Lee.

Later, McDonald confirmed to law enforcement that Smiley was the third participant in the three-way call. According to McDonald, Mario Wilkerson had previously bragged that Drake kept money in a safe. With this information, McDonald, Lee, and Smiley formed a plan to rob Drake. Carrying out this plan, McDonald picked up Smiley and Bisbee from Lee's house and drove them to a parking lot behind the Drake home. The plan was for McDonald to pick up Smiley and Bisbee after the pair had carried out the robbery.

McDonald further indicated that, after having driven away from the scene, he got a phone call from Lee, who added Smiley to the call so that he and McDonald could find each other. Upon locating McDonald and getting in his car, Smiley angrily told him that the only proceeds of the robbery were Wilkerson's cell phone

and a small bag of marijuana. Smiley said he could not find the safe, and he told McDonald that “the dude that was asleep looked like he was reaching for something and he [Smiley] shot him."

The State charged Smiley with the first-degree murder of Drake, among other factually related crimes, and indicated its intent to seek the death penalty. Before trial, the State filed a notice of intent, later amended, to offer evidence regarding the murder of Carmen Riley. Smiley had also been charged with this murder, which occurred about a month before Drake's and involved similar circumstances.¹ For instance, as alluded to earlier, a ballistics analyst had determined that the bullets recovered from the Drake and Riley crime scenes were fired from the same gun. The trial court ruled that the Riley murder evidence was admissible because it was “inextricably intertwined” with the Drake murder, but the court imposed significant limitations on its admissibility. Namely, the State could only put on evidence that the bullets recovered from the Drake crime scene matched those recovered at a

1. As with the Drake murder, John McDonald drove Smiley to

Riley's home and picked him up afterward. Smiley then told McDonald that he had shot Riley, whom he was attempting to rob, because she refused to cooperate.

prior “incident” at which Smiley was seen in possession of the gun.

At trial, the State introduced this ballistics evidence as well as the DNA and testimonial evidence outlined above. It also presented testimony from Lee corroborating McDonald's account of the threeway phone call. Ultimately, the jury found Smiley guilty of the firstdegree murder of Drake and the following crimes: robbery with a firearm, aggravated assault with a firearm, and burglary of a dwelling with an assault or battery while armed with a firearm.

The penalty phase was conducted before a different jury. The State introduced evidence that Smiley had since been convicted of the first-degree murder of Carmen Riley.

The defense called several witnesses to present mitigating evidence, including Dr. Alan Waldman. He testified as to the effects of two ruptured brain aneurysms Smiley suffered less than a year before the Drake murder. Dr. Waldman opined that the aneurysms had damaged the parts of Smiley's brain that affect rage control. Dr. Waldman further testified that he diagnosed Smiley with a disorder called anosognosia, which prevented him from being aware of his neurological deficit. The defense also called Smiley's mother, mentor, and aunt, who each testified that he developed a bad

temper and mood swings after the aneurysms.

The State then called Dr. Tracy Hartig as a rebuttal witness. She testified that although Smiley's ruptured aneurysms caused severe brain trauma, he performed well on the personality and IQ tests she administered.

After considering this evidence, the jury unanimously found that the State had proven several aggravating factors beyond a reasonable doubt, including that Smiley had previously been convicted of first-degree murder and other violent felonies and that he murdered Drake during the commission of a robbery. By contrast, the jury found very few mitigating circumstances. Ultimately, after weighing all this evidence, the jury unanimously recommended that the trial court sentence Smiley to death.

The court then held a Spencer² hearing, at which Dr. Hartig again testified, though this time for the defense. In its sentencing order, the court found that the State had proven eight aggravating factors beyond a reasonable doubt.³ It further found that that the

2. Spencer v. State, 615 So. 2d 688 (Fla. 1993). 3. These were as follows: (1) Smiley was previously convicted of another capital felony (the murder of Carmen Riley) and (2) he

defense had established five mitigating circumstances.⁴ Finding that the aggravators “far outweigh[ed]" the mitigators, the court sentenced Smiley to death.⁵ was previously convicted of a felony involving the use or threat of violence to the person (robbery with a firearm involving Riley) (merged, great weight); (3) he was previously convicted of a felony involving the use or threat of violence to the person (robbery with a firearm involving Mark Wilkerson) and (6) he committed the firstdegree murder while engaged in a robbery (of Wilkerson) (merged, great weight); (4) he was previously convicted of a felony involving the use or threat of violence to the person (aggravated assault of Wilkerson) (no weight); (5) he was previously convicted of a felony involving the use or threat of violence to the person (burglary with an assault or battery while armed involving Clifford Drake and Wilkerson) and (7) he committed the first-degree murder while engaged in a burglary of a dwelling with an assault or battery while armed with a firearm (involving Drake and Wilkerson) (merged, moderate weight); and (8) the first-degree murder was committed for pecuniary gain (substantial weight). 4. These were as follows: (1) Smiley has no significant history of prior criminal activity (moderate weight); (2) he committed the first-degree murder while under the influence of extreme mental or emotional disturbance (little weight); (3) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (little weight); (4) his age at the time of the crime (little weight); and (5) the existence of any other factor(s) in his character, background, life, or the circumstances of the offense that would mitigate against the imposition of the death penalty (moderate weight).

5. On direct appeal, Smiley claimed that the trial court overcounted the number of aggravators when conducting its merger analysis. Smiley v. State, 295 So. 3d 156, 175-76 (Fla. 2020). This Court found “that any error in the trial court's merger analysis was

Smiley appealed, raising nine claims for reversal. Smiley v. State, 295 So. 3d 156, 165 (Fla. 2020). We rejected each claim and affirmed his conviction and death sentence. Id. at 161, 179.6 He then filed a petition for a writ of certiorari with the United States Supreme Court, which was denied. Smiley v. Florida, 592 U.S. 1181 (2021).

Subsequently, Smiley filed in circuit court his initial rule 3.851 motion for postconviction relief, which he later amended three times. In total, he raised seventeen numbered claims, some with subclaims. The circuit court determined that an evidentiary hearing was appropriate for roughly half the claims. During that hearing, which spanned several days, Smiley called eighteen witnesses, whereas the State called one witness in rebuttal. Thereafter, the court denied all of Smiley's claims.

harmless,” emphasizing that “this was a highly aggravated murder, given both the contemporaneous crimes committed against Mark Wilkerson and, most importantly, Smiley's previous conviction for the Riley murder.” Id. at 176. Moreover, “balanced against this aggravation, the trial court found very little mitigation.” Id.

6. Although Smiley did not challenge the sufficiency of the evidence, we also concluded that sufficient evidence supported his first-degree murder conviction. Id. at 178.

Smiley now appeals the denial of most of his claims and has filed an accompanying habeas petition, in which he raises one additional claim for relief.

II

Smiley raises numerous issues in his appeal of the circuit court's denial of his postconviction motion. In all but one of his claims, he alleges ineffective assistance of trial counsel. We therefore begin with a summary of the standards governing ineffective assistance claims.

As interpreted by the U.S. Supreme Court, the Sixth Amendment to the U.S. Constitution guarantees the right to effective assistance of counsel during all critical phases of a criminal case. State v. Mullens, 352 So. 3d 1229, 1236 (Fla. 2022). To bring a successful ineffectiveness claim, a criminal defendant must show (1) that counsel's performance was deficient and (2) that such deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Under the deficiency prong, the defendant must show that counsel's performance fell below “a minimum standard of objective reasonableness—a standard informed by all the circumstances at

the time counsel made the challenged decision.” State v. Kaczmar, 431 So. 3d 212, 228 (Fla. 2026) (citing Strickland, 466 U.S. at 688). “[T]here is a ‘strong presumption' that trial counsel's performance 'falls within the wide range of reasonable professional assistance.' ” Brown v. State (Tina Brown), 304 So. 3d 243, 257 (Fla. 2020) (quoting Strickland, 466 U.S. at 689). “Mere dissatisfaction with trial counsel's strategy is not enough to satisfy Strickland's deficiency prong where the strategy was reasonable.” Sheppard v. State, 338 So. 3d 803, 823 (Fla. 2022) (citing Johnston v. State, 63 So. 3d 730, 737 (Fla. 2011)).

As for the prejudice prong, 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.' ” Bradley v. State, 33 So. 3d 664, 672 (Fla. 2010) (quoting Strickland, 466 U.S. at 694). “A reasonable probability,” moreover, “is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “This does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters ‘only in the rarest

case.'” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (quoting Strickland, 466 U.S. at 693, 697).

When reviewing a circuit court's ruling on an ineffective assistance claim, we “defer[] to findings of fact based on competent, substantial evidence” but “independently review[]” the ultimate conclusions of “deficiency and prejudice as mixed questions of law and fact." State v. Davis, 872 So. 2d 250, 253 (Fla. 2004) (citing Gore v. State, 846 So. 2d 461, 468 (Fla. 2003)). If we determine that the defendant has failed to satisfy either of the two prongs, then we need not address the other one. Strickland, 466 U.S. at 697.

With these principles in mind, we proceed to Smiley's claims, beginning with those addressing trial counsel's performance during the guilt phase.

A

Smiley's initial pair of ineffectiveness claims relates to the ballistics evidence offered by the State. For the reasons given below, each lacks merit.

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State to admit limited evidence of the Riley murder, for which he had also been charged. The State's ballistics expert testified that the bullets recovered from the Drake crime scene matched those recovered from the scene of a prior “incident" at which Smiley was seen in possession of a gun.⁷ Smiley chose to appear pro se at the hearing at which this issue was argued, and he continued to represent himself through entry of the order deciding this issue. However, he contends that counsel, upon being later appointed to represent him, should have moved for reconsideration of this order. In postconviction proceedings, the circuit court agreed with Smiley that counsel was deficient for failing to seek reconsideration but ruled that such deficiency did not prejudice him. We disagree with the court's finding of deficiency.

Counsel is not deficient for failing to move for reconsideration when doing so would have been futile. See Covington v. State, 348 So. 3d 456, 471 (Fla. 2022). If counsel is aware of the judge's rationale and has no reason to think the judge will alter the initial

7. John McDonald testified that Smiley previously possessed and discharged the murder weapon at this “incident.”

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ruling, then counsel is not deficient for failing to seek reconsideration of that ruling absent an argument on totally different legal or factual grounds. Cf. id.

Here, trial counsel was not deficient for failing to seek reconsideration of the trial court's order allowing the State to admit the Riley firearm evidence. There are no exceptional circumstances to suggest that counsel's decision to forgo requesting reconsideration was unreasonable. Instead, even assuming that the order was erroneous in some respect, such a motion would have been futile. See id.

For one, counsel's arguments in support of a motion for reconsideration would have been largely cumulative to those that Smiley made when representing himself. At the hearing on the admissibility of the firearm evidence, Smiley argued that the Riley firearm evidence was inadmissible on the grounds that it was unfairly prejudicial; that the State had not proven that he possessed the firearm (because none was recovered); and that the witnesses who allegedly saw him with the firearm, John McDonald and Samantha Lee, had questionable credibility. But, as we have noted, counsel cannot be deemed deficient for failing to repeat these

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arguments in a motion for reconsideration, absent circumstances indicating judicial receptiveness to reevaluating the merits of a prior ruling. We are aware of no such circumstances here.

Granted, Smiley did not explicitly say that the Riley and Drake murders were not “inextricably intertwined,” as the State contended and the court ultimately found. But Smiley clearly took issue with the State's position. Counsel likely could have offered a more refined argument via a reconsideration motion. Even so, counsel reasonably believed that the trial judge was resolute in his ruling allowing admission of the Riley firearm evidence under the inextricably intertwined theory, regardless of any arguments counsel might have made to the contrary. That the trial court rejected the State's own motion for reconsideration lends support to counsel's belief that the court likely would not have revised its evidentiary ruling.

Moreover, counsel voiced a timely objection during trial to the admission of the Riley firearm evidence, which was overruled. Counsel's motion for mistrial upon the State's purported violation of the amended order's limitations on the use of that evidence was also denied. By renewing Smiley's objections and moving for

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mistrial, counsel provided the trial judge with additional opportunities to consider this evidentiary issue while still respecting Smiley's autonomy in initially proceeding pro se. That approach was reasonable.

Because trial counsel was not deficient for failing to seek reconsideration of the trial court's order regarding the Riley firearm evidence, we deny this claim of ineffectiveness.

As a general matter, “counsel does not necessarily perform deficiently by failing to retain an expert witness to rebut the State's expert testimony at trial.” King v. State, 260 So. 3d 985, 1000-01 (Fla. 2018) (citing Crain v. State, 78 So. 3d 1025, 1041 (Fla. 2011)). “Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense.” Harrington, 562 U.S. at 111.

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Thus, a defendant “cannot establish deficient performance for failure to retain an expert witness when trial counsel made a reasonable decision to confront and challenge the State's own witness at trial through cross-examination.” Crain, 78 So. 3d at 1040. Oftentimes, “cross-examination will be sufficient to expose defects in an expert's presentation.” Harrington, 562 U.S. at 111.

In line with these principles, we have rejected similar ballistics-related ineffectiveness claims. For instance, in Sheppard, we reasoned that ballistics evidence identifying shell casings from two locations as having originated from the same firearm is so widely accepted that it was reasonable for counsel to believe that challenging such evidence would hurt the defense's credibility before the jury. 338 So. 3d at 823-24. The reasonableness of this decision was bolstered by counsel's theory of defense, which was that the defendant did not discharge the firearm at either location. Id. at 824.

Here, trial counsel was not deficient for failing to hire a ballistics expert to rebut the State's expert. Like in Sheppard, the State's ballistics expert testified that projectiles found at two locations (the Drake and Riley murder scenes) came from the same

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firearm. See id. at 823. Counsel reasonably believed that hiring a rebuttal expert to challenge these findings would hurt the defense's credibility in front of the jury. See id. at 824. Thus, counsel made the reasonable strategic decision to cross-examine the State's expert, see Crain, 78 So. 3d at 1040, who admitted that she could not determine who fired the weapon. This strategy was consistent with the defense's theory that Smiley did not discharge the firearm on either occasion. See Sheppard, 338 So. 3d at 824.

Accordingly, we reject this claim of ineffectiveness.

B

Next, Smiley argues that trial counsel was ineffective for failing to challenge whether the sweatshirt found near the Drake murder scene was worn by the shooter. He notes that although the sweatshirt contained some of his DNA, it was destroyed by law enforcement before it could be tested for gunshot residue. Smiley also vaguely contends that counsel should have moved to suppress the DNA evidence recovered from the sweatshirt that, in his view, was destroyed in bad faith. These arguments lack merit.

“[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected

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and counsel's decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (citing Rutherford v. State, 727 So. 2d 216, 223 (Fla. 1998)). And it is well-accepted that counsel “cannot be constitutionally deficient by failing to file a meritless motion” to suppress evidence. Sanchez-Torres v. State, 322 So. 3d 15, 21-22 (Fla. 2020) (citing Johnston, 63 So. 3d at 740).

A court need only suppress test results from potentially exculpatory evidence later destroyed by the State if the destruction was done in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 57- 58 (1988). As we have explained, “bad faith exists only when law enforcement officers intentionally destroy evidence they believe would exonerate a defendant.” Guzman v. State, 868 So. 2d 498, 509 (Fla. 2003) (citing Youngblood, 488 U.S. at 57).

Here, trial counsel was not deficient for failing to challenge the State's argument that the sweatshirt was worn by the shooter. Counsel acted reasonably by portraying the sweatshirt's destruction as being indicative of both the police's poor investigation and the overall lack of evidence against Smiley. See Occhicone, 768 So. 2d at 1048. Specifically, counsel highlighted to the jury that the State

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failed to show them the physical sweatshirt. Counsel also elicited during cross-examination of one of the State's experts that law enforcement failed to test the sweatshirt for gunshot residue.

Nor was counsel deficient for failing to move to suppress the DNA evidence on the ground that law enforcement had destroyed the sweatshirt in bad faith. A motion to suppress would have been meritless, see Sanchez-Torres, 322 So. 3d at 21-22, because Smiley failed to show that the police destroyed the sweatshirt in bad faith— that is, to prevent him from accessing potentially exculpatory evidence, see Guzman, 868 So. 2d at 509. Instead, competent, substantial evidence shows that the police acted pursuant to the department's property-retention policy in disposing of the sweatshirt. This supports the circuit court's ruling.

Therefore, this claim of ineffectiveness fails.

C

Smiley's next claim relates to the safe he had intended to rob at the Drake home. At trial, the State inadvertently introduced into evidence the safe from the Riley crime scene instead of Drake's safe. While testifying, the State's crime scene technician misidentified the

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safe as the one recovered from the Drake murder scene.⁸ The trial court then admitted the safe into evidence without objection, even though trial counsel knew it was the wrong one.

Later, upon realizing its mistake, the State recalled the technician to testify that she had misidentified the safe. Trial counsel cross-examined the technician, portraying the State's introduction of the wrong safe as embarrassing and indicative of law enforcement's sloppiness in the case. The court granted the State's ensuing motion to withdraw the wrong safe from evidence. Counsel did not request a mistrial or a curative instruction, believing there was no implication that the wrong safe was at all related to Smiley. This failure to object or move for a mistrial, Smiley argues, amounted to ineffective representation. We disagree.

Counsel is not deficient for making a reasonable tactical decision not to object to certain evidence at trial. See King, 260 So.

8. The State noted that the safe being admitted was black,

while the safe that had been photographed at the Drake murder scene appeared tan. In response, the technician opined that “the flash" of the camera “may have . . . washed it out."

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3d at 999; see also Jones v. State, 949 So. 2d 1021, 1031 (Fla. 2006). Nor is counsel deficient for not objecting to properly admitted evidence. Putting these two principles together, to establish deficiency, a defendant must show that the admission of evidence was “improper or objectionable and that there was no tactical reason for failing to object." Stephens v. State, 975 So. 2d 405, 420 (Fla. 2007); see also Suggs v. State, 923 So. 2d 419, 430 (Fla. 2005); Goforth v. State, 15 So. 3d 786, 789 (Fla. 5th DCA 2009) ("[T]he failure to move for a mistrial may constitute a reasonable trial tactic that does not justify a finding of ineffective assistance of counsel.").

Here, counsel made the reasonable tactical decision simply to cross-examine the crime scene technician, during which counsel, consistent with the theory of defense, portrayed the State's introduction of the wrong safe as another example of law enforcement's incompetence in Smiley's case. Cf. King, 260 So. 3d at 999; Suggs, 923 So. 2d at 430. Moreover, it was reasonable for counsel to conclude the jury would not infer that the wrongly admitted safe was evidence that Smiley had committed another robbery. Thus, we affirm the circuit court's denial of this claim.

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D

Smiley contends that trial counsel was ineffective for failing to move to suppress Wilkerson's out-of-court identification of him as the shooter. We conclude that the circuit court's summary denial of this claim was proper.

"An evidentiary hearing must be held on an initial [rule] 3.851 motion whenever the movant makes a facially sufficient claim that requires a factual determination.” Truehill v. State, 358 So. 3d 1167, 1185 (Fla. 2022) (citing Seibert v. State, 64 So. 3d 67, 75 (Fla. 2010)). However, we will affirm the summary denial of a postconviction claim that “is positively refuted by the record." Doty v. State, 403 So. 3d 209, 214 (Fla. 2025) (quoting Kocaker v. State, 311 So. 3d 814, 821 (Fla. 2020)).

Trial counsel is not deficient for failing to file a meritless motion to suppress eyewitness identifications. Wilson v. State, 271 So. 3d 1237, 1238 (Fla. 1st DCA 2019) (citing Johnston, 63 So. 3d at 740). When ruling on a motion to suppress an out-of-court identification, a trial court must first ask whether the police employed an “unnecessarily suggestive procedure” in obtaining the

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identification. Alahad v. State, 362 So. 3d 190, 198 (Fla. 2023) (quoting Grant v. State, 390 So. 2d 341, 343 (Fla. 1980)).⁹

A photograph lineup is not unnecessarily suggestive if it “include[s] a reasonable number of persons similar to any person then suspected whose likeness is included in the array.” Valentine v. State, 307 So. 3d 726, 733 (Fla. 4th DCA 2020) (internal quotation marks omitted) (quoting State v. Francois, 863 So. 2d 1288, 1289 (Fla. 4th DCA 2004)). Minor differences in the appearances of the persons depicted in the photographs do not render the lineup unnecessarily suggestive. See Fearon v. State,¹⁰ So. 3d 146, 148 (Fla. 4th DCA 2009) (explaining that a photograph lineup is "not unduly suggestive if the suspect's picture does not stand out more than those of the others” (quoting Francois, 863 So. 2d at 1289-90)); see also, e.g., Johnson v. State, 438 So. 2d 774, 777 (Fla. 1983) (holding that a photo lineup was not unnecessarily suggestive even though the suspect's photograph was the only one

9. If the court answers this question in the affirmative, it must then determine, based on a consideration of “all the circumstances,” whether “the suggestive procedure g[a]ve rise to a substantial likelihood of irreparable misidentification." Id. (quoting Grant, 390 So. 2d at 343).

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depicting a person with a suntan and blonde hair and wearing an inmate uniform that was a lighter shade of blue), vacated on other grounds, 205 So. 3d 1285 (Fla. 2016).

Conversely, it is unnecessarily suggestive for police repeatedly to draw an eyewitness's attention to a particular photograph in a lineup. See Walton v. State, 208 So. 3d 60, 65-66 (Fla. 2016), abrogated on other grounds, Alahad, 362 So. 3d 190; see also Green v. State, 641 So. 2d 391, 394 (Fla. 1994).

Here, the record refutes Smiley's assertion that trial counsel was deficient for failing to move to suppress Wilkerson's identifications of Smiley. For one, the photograph lineup Wilkerson was shown was not unduly suggestive. All of the photographs depicted men of around the same age as Smiley with similar physical features and facial expressions. That Smiley's photograph was the only one depicting a man wearing a white tank top amounts to a minor variation that does not render the lineup unnecessarily suggestive. Cf. Johnson, 438 So. 2d at 777.

Nor do we find anything suggestive in the conduct by the police detective who presented the lineup to Wilkerson. The detective did not do or say anything to draw Wilkerson's attention to

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Smiley's photograph. See Walton, 208 So. 3d at 65-66. Instead, the detective randomly shuffled the photographs and told Wilkerson the suspect may or may not be in the lineup. And the detective did not mention any names of the persons depicted in the lineup.

Importantly, after Wilkerson selected Smiley's photograph from the lineup, it was not unnecessarily suggestive for the detective to begin to ask whether that photograph “looks just” like Smiley to clarify Wilkerson's selection. That Wilkerson immediately interrupted the detective to confirm that Smiley's photograph looked “[m]ore like him” indicates that the detective's clarifying question did not influence the identification.

Because neither the photograph lineup nor the detective's conduct was unnecessarily suggestive, counsel was not deficient for failing to move to suppress Wilkerson's out-of-court, and subsequent in-court, identification. Smiley's claim to the contrary is refuted by the record, so the circuit court's summary denial was proper. See Doty, 403 So. 3d at 214 (quoting Kocaker, 311 So. 3d at 821).

E

Smiley argues trial counsel was ineffective for failing to

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address law enforcement's investigative lapses and violations of police department rules.¹⁰ These claims are conclusory and purely speculative, and the circuit court was correct to summarily deny them. See Anderson v. State, 220 So. 3d 1133, 1142 (Fla. 2017) (explaining that an ineffectiveness claim based on “[m]ere conclusory allegations” is properly subject to summary denial).

F

Smiley contends that trial counsel was ineffective for failing to characterize Mark Wilkerson as a suspect or co-conspirator. The circuit court concluded that counsel was deficient for failing to portray Wilkerson in this light but determined that such deficiency did not prejudice Smiley. We disagree with the court's deficiency finding.

We have recognized that counsel is not deficient for strategically opting not to characterize another individual as a suspect in the crime for which the defendant has been charged. See Beasley v. State, 18 So. 3d 473, 498-99 (Fla. 2009). In Beasley,

10. The only specific example Smiley discusses in his briefs with respect to these claims is the State's admission of the wrong safe, which is the subject of the claim we have just rejected.

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the defendant in a murder case argued that counsel was deficient for failing to present an alternative theory implicating another person as a suspect. Id. at 497. We rejected that claim, holding that counsel had made a reasonable strategic decision not to implicate the alternative suspect, and thus counsel was not deficient. Id. at 499. In reaching that conclusion, we found it significant that although “there were several factors that made the alternative suspect appear suspicious, . . . there was no definitive proof to tie him to the murder." Id. We also noted that counsel, “as part of their overall strategy," had already “attempted to implicate other individuals as possible perpetrators during the trial.” Id.

Here, trial counsel was not deficient for failing to characterize Wilkerson as a suspect or co-conspirator. As an initial matter, counsel did, in fact, imply in their closing argument that Wilkerson may have participated in the murder. Nevertheless, counsel's strategy while Wilkerson was on the stand was not to portray him as a suspect but to undermine his credibility by attacking the apparent inconsistencies in his testimony through crossexamination. That approach was objectively reasonable.

We add that trial counsel determined that they lacked

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sufficient evidence of Wilkerson's alleged involvement in the murder to portray him as a suspect. See id. Notably, Wilkerson tested negative for gunshot residue, his polygraph results were nondeceptive, and his phone was stolen. Further, neither John McDonald nor Samantha Lee implicated him in the murder.

Accordingly, we reject this claim of ineffectiveness.

G

Smiley argues that trial counsel was ineffective for failing to object when the State asked him during cross-examination whether other witnesses were lying. We find that counsel was not deficient for failing to object to this questioning.

The State does not dispute that a witness is not competent to testify about another witness's state of mind except when privy to the latter's thought processes. See Knowles v. State, 632 So. 2d 62, 66 (Fla. 1993). Thus, asking a witness whether other witnesses are lying is generally improper because doing so “may lead the jury to conclude that the witness being questioned is actually lying." Id.

Nevertheless, counsel is not deficient for declining to object to impermissible questioning when that decision is reasonably strategic. See Jackson v. State, 127 So. 3d 447, 471-72 (Fla. 2013)

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(holding that counsel was not deficient for reasonably deciding not to object to the State's “allegedly argumentative and speculative witness questions"). Thus, counsel is only deficient if the questioning was “improper or objectionable” and there was no reasonable tactical reason for failing to object. Stephens, 975 So. 2d at 420.

Here, trial counsel was not deficient for failing to object when the State asked Smiley whether other witnesses were lying. Although these questions were improper, see Knowles, 632 So. 2d at 66, counsel's strategic decision not to object was reasonable, see Jackson, 127 So. 3d at 471-72. By letting Smiley answer these questions, counsel sought to have him discredit the other witnesses' testimony. This strategy was consistent with counsel's theory that two of those witnesses, Lee and McDonald, were lying to escape punishment for their involvement in the robbery. Accordingly, counsel was not ineffective in this regard.

Smiley also contends that trial counsel was ineffective for failing to object on relevance grounds to the admission of a photograph depicting Smiley with Casey Bisbee, the other man who took part in the Wilkerson robbery. This contention is without

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merit.

Generally, relevant evidence is admissible at trial. See § 90.402, Fla. Stat. (2016). Evidence is relevant if it “tend[s] to prove or disprove a material fact,” § 90.401, Fla. Stat. (2016), such as the identity of the shooter in a murder case, Smith v. State, 866 So. 2d 51, 62 (Fla. 2004). And, of course, counsel is not deficient for failing to object on relevance grounds to evidence that is, in fact, relevant. See Dennis v. State, 109 So. 3d 680, 693 (Fla. 2012).

Here, trial counsel was not deficient for failing to assert an objection to the admission of the photograph of Smiley with Bisbee. Contrary to Smiley's argument, that photograph is relevant because it tends to identify Smiley as the shooter. See Smith, 866 So. 2d at 62. That is, the photograph showed that Smiley was shorter than Bisbee, which was consistent with Mark Wilkerson's testimony that it was the shorter of the two assailants who shot Drake.

Therefore, we reject this claim of ineffectiveness.

H

Smiley asserts that cumulative prejudice from multiple instances of trial counsel's deficient performance during the guilt phase deprived him of a fundamentally fair trial. Because we have

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found no deficiency in counsel's performance during that phase, this claim necessarily fails. See Morris v. State, 317 So. 3d 1054, 1070-71 (Fla. 2021) (“[W]here there is no deficient performance [by trial counsel], there is no need to consider cumulative prejudice." (citing Tina Brown, 304 So. 3d at 271)).

I

Smiley's next series of ineffectiveness claims concern trial counsel's performance during the penalty phase. His initial claim is that trial counsel was ineffective for failing to investigate and present mitigating evidence on a variety of subjects. We disagree.

In preparing for a penalty phase, trial counsel must “conduct a reasonable investigation of a defendant's background for possible mitigating evidence.” Mullens, 352 So. 3d at 1237 (quoting Valentine v. State, 98 So. 3d 44, 53 (Fla. 2012)). However, counsel may strategically decide not to present certain mitigating evidence, especially to avoid “open[ing] the door to more damaging evidence.” Hilton v. State, 326 So. 3d 640, 649 (Fla. 2021) (citing Douglas v. State, 141 So. 3d 107, 123 (Fla. 2012)). Additionally, trial counsel is not deficient for declining to present cumulative mitigation evidence. See Darling v. State, 966 So. 2d 366, 378 (Fla. 2007)

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(citing Gudinas v. State, 816 So. 2d 1095, 1106 (Fla. 2002)).

Furthermore, “the reasonableness of counsel's actions" during the penalty phase “may be determined or substantially influenced by the defendant's own statements or actions.” Cherry v. State, 781 So. 2d 1040, 1050 (Fla. 2000) (quoting Strickland, 466 U.S. at 691). That means counsel “will not be deemed ineffective for honoring his client's wishes.” Brown v. State (George Brown), 894 So. 2d 137, 146 (Fla. 2004) (citing Waterhouse v. State, 792 So. 2d 1176, 1183 (Fla. 2001)). Accordingly, if the defendant directs counsel not to present specific pieces of mitigation evidence, counsel cannot be deemed deficient for failing to present such evidence. See id. (citing Waterhouse, 792 So. 2d at 1183). Therefore, counsel is generally not deficient for “failing to call the [defendant's] family members as witnesses" during the penalty phase if the defendant has told counsel "that he does not want his family members to testify on his behalf." Arbelaez v. State, 898 So. 2d 25, 38-39 (Fla. 2005) (citing Rutherford, 727 So. 2d at 220).

We also emphasize that “the presentation of more favorable testimony in postconviction proceedings does not render counsel's investigation into mitigation deficient.” Valentine, 98 So. 3d at 53

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(citing Davis v. State, 875 So. 2d 359, 372 (Fla. 2003)). Relatedly, “counsel is entitled to rely on a qualified expert's opinion, and . . . such reliance is not rendered unreasonable just because a new expert in postconviction proceedings disagrees with trial counsel's expert." Mullens, 352 So. 3d at 1237 (citing Brant v. State, 197 So. 3d 1051, 1069 (Fla. 2016)).

Here, Smiley contends that trial counsel was ineffective for failing to investigate and present mitigating evidence related to his (1) childhood and religious environment; (2) period of homelessness; (3) relationship with his aunt; (4) mental health problems; and (5) medical recovery from his ruptured aneurysms. As explained below, we conclude that counsel did not perform deficiently with respect to any of these five categories of mitigation.

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Academy, where he was a student. Smiley further argues that counsel should have obtained records of the corporal punishment he received at Bible Truth Academy. This argument falls short.

Importantly, Smiley directed counsel not to involve his extended family during the penalty phase, and it was reasonable for counsel to honor this directive. See Arbelaez, 898 So. 2d at 38-39. Without the testimony of Smiley's family members, counsel had essentially no means to present evidence of his upbringing.¹¹ Although counsel was able to convince Smiley to agree to have his mother testify,12 she was still aligned with Bible Truth at the time of trial. Smiley has given us no reason to believe that Smiley's mother

11. As for Smiley's argument that he was entitled to an inquiry pursuant to Koon v. Dugger, 619 So. 2d 246 (Fla. 1993), he was not because he did not waive all mitigation evidence; rather, he merely directed counsel not to involve his family and, consequently, not to present certain pieces of mitigation evidence. See Grim v. State, 971 So. 2d 85, 100 (Fla. 2007). Moreover, to the extent Smiley is arguing error by the trial court in failing to hold a Koon hearing, that argument is procedurally barred as he could have raised it on direct appeal. See Lott v. State, 303 So. 3d 165, 166 (Fla. 2020).

12. Counsel also convinced Smiley to let his aunt, Samantha

Lee, testify during the penalty phase. However, Smiley does not argue that Lee would have offered relevant testimony about his religious upbringing and education.

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would have portrayed Bible Truth in a negative light. Finally, the school records to which Smiley refers recount that he was punished on significantly fewer occasions than he now alleges.

Counsel made a reasonable strategic decision not to present this evidence, which would have opened the door for the State to ask potentially harmful questions about Smiley's motive for leaving his parents' home. See Hilton, 326 So. 3d at 649. In line with counsel's concern, evidence suggests that Smiley left home because he no longer wanted to live under his family's rules. Additionally, this period of homelessness preceded his aneurysms. Avoiding this evidence, thus, facilitated counsel's strategy of highlighting the “bright line” between Smiley's pre- and post-aneurysm behavior.

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counsel should have presented evidence of Lee's negative influence on him, given her reputation of engaging in criminal endeavors. Trial counsel was not deficient in this regard.

Presenting this evidence likely would have required calling additional members of Smiley's family to testify, and, as we have explained, counsel was not deficient for honoring Smiley's directive in this regard. See Arbelaez, 898 So. 2d at 38-39. Offering this testimony also would have opened the door to potentially damaging evidence. See Hilton, 326 So. 3d at 649. Namely, introducing evidence that Smiley had often visited Lee prior to his aneurysms would suggest that he was already criminally inclined, which was inconsistent with counsel's “bright line” theory of mitigation.

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Smiley told counsel that he did not want to be portrayed as having mental health problems. Counsel cannot be faulted for complying with this directive. See George Brown, 894 So. 2d at 146 (citing Waterhouse, 792 So. 3d at 1183). In any event, counsel made a reasonable strategic decision not to present this evidence, because the Gracepoint records contain information potentially harmful to the defense's mitigation theory. See Hilton, 326 So. 3d at 649. For instance, the records show that Smiley denied having any issues with substance abuse, which conflicts with his admitted use of marijuana and alcohol.

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differently than Dr. Waldman does not undermine this conclusion. See Mullens, 352 So. 3d at 1237. Trial counsel was entitled to rely on Dr. Waldman's expert opinion even if other experts, retained during postconviction proceedings, later disagreed. See id.

Accordingly, we conclude that Smiley has failed to demonstrate that his counsel's investigation into and presentation of mitigation fell below objective standards of reasonableness.

J

Next, Smiley argues that trial counsel was ineffective for retaining and relying on Dr. Waldman as a medical expert during the penalty phase. Smiley contends that counsel should have hired a neurologist or a neuropsychologist instead of Dr. Waldman, who was a neuropsychiatrist. Further, Smiley asserts that counsel should have known Dr. Waldman was unqualified as an expert because he failed to consider how Smiley's age and ADHD might exacerbate the effect of his aneurysms. Finally, Smiley challenges Dr. Waldman's qualifications based on two errors he made while testifying at the penalty phase. Each of these arguments is unavailing.

We have repeatedly held “that defense counsel is entitled to

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rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.” Reese v. State, 14 So. 3d 913, 918 (Fla. 2009) (quoting Darling, 966 So. 2d at 377). In other words, counsel is not deficient for relying on an expert opinion that, with hindsight, “is less than perfect." Looney v. State, 941 So. 2d 1017, 1027 (Fla. 2006) (citing State v. Sireci, 502 So. 2d 1221, 1223 (Fla. 1987)). That a defendant is able to secure more favorable expert testimony during postconviction proceedings does not render trial counsel's reliance on its chosen expert unreasonable. See Floyd v. State, 18 So. 3d 432, 454 (Fla. 2009) (quoting Asay v. State, 769 So. 2d 974, 986 (Fla. 2000)).

Here, trial counsel was not deficient for retaining and relying on Dr. Waldman. The fact that Dr. Waldman is a neuropsychiatrist, and not a neurologist or neuropsychologist, does not render him unqualified as a medical expert. As the circuit court recognized, none of Smiley's postconviction experts disagreed with Dr. Waldman's description of the effects of Smiley's ruptured aneurysms. Nor did any of them disagree with Dr. Waldman's diagnosis of anosognosia.

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Furthermore, counsel was entitled to rely on Dr. Waldman's opinion, even though Smiley now questions his thoroughness. See Reese, 14 So. 3d at 918 (quoting Darling, 966 So. 2d at 377). Smiley's postconviction experts suggest that they would have emphasized how his young age and ADHD might have exacerbated the effect of his ruptured aneurysms on his behavior. That these experts have offered testimony arguably more favorable to Smiley does not mean counsel was deficient for relying on Dr. Waldman. See Floyd, 18 So. 3d at 454 (quoting Asay, 769 So. 2d at 986).

Smiley also points to two errors Dr. Waldman made while testifying: (1) his mistaken reference to a nonexistent MRI of Smiley's brain, and (2) his misattribution of some observations of Smiley's post-aneurysm behavior to Smiley's mother. Yet, Smiley fails to cite any authority holding that an expert's minor issues could render counsel's reliance on that expert categorically unreasonable. We decline to adopt such a rule.

Accordingly, this claim of ineffectiveness fails.

K

Smiley contends that the circuit court erred in denying his newly discovered evidence claim under Jones v. State, 709 So. 2d

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512 (Fla. 1998). He argues that newly discovered evidence of Dr. Waldman's issues with prescription opiates deprived him of competent expert testimony and that, if this evidence was known at trial, he would have received a less severe sentence. We affirm the circuit court's denial of this claim.

To set aside Smiley's death sentence based on newly discovered evidence, he must show (1) that the evidence was unknown by the trial court, himself, or counsel at the time of trial, and that he or his counsel could not have known of it through the exercise of diligence; and (2) that the evidence would probably yield a less severe sentence. See Davis v. State, 26 So. 3d 519, 526 (Fla. 2009) (citing Jones, 709 So. 2d at 521).

As a general matter, “[p]ostconviction relief cannot be based on speculation or possibility.” Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000). This principle applies to newly discovered evidence claims. See Rivera v. State, 837 So. 2d 613, 614 (Fla. 2d DCA 2003) ("Relief [based on newly discovered evidence] is not warranted when the allegations are based on ‘tenuous speculation.'” (quoting Davis v. State, 736 So. 2d 1156, 1159 (Fla. 1999))); Johnson v. State, 904 So. 2d 400, 404 (Fla. 2005) (rejecting a claim based on newly

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discovered records because it was “sheer speculation” that the "records concern[ed] criminal activity by the jurors in Johnson's case").

Here, evidence of Dr. Waldman's issues with prescription opiates, which came to light years later, qualifies as “newly discovered" under Jones' first prong, as the State concedes. Nevertheless, Smiley cannot satisfy Jones' second prong, as his argument relies on an impermissible chain of speculation. He contends that if evidence of Dr. Waldman's opiate dependency were known during the penalty phase, counsel would have hired a replacement medical expert, who would have presented more favorable testimony, which would have convinced the jury to recommend a lesser sentence. This is pure speculation, which cannot be the basis for postconviction relief. Rivera, 837 So. 2d at 614 (quoting Davis, 736 So. 2d at 1159).

Accordingly, we reject this Jones claim.

L

Smiley's final claim on appeal is that he suffered cumulative prejudice due to the numerous instances of deficient performance by counsel during the penalty phase. As detailed above, Smiley has

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failed to prove any deficient performance at all. Therefore, this claim fails for the same reason as Smiley's guilt-phase cumulative prejudice claim. See Morris, 317 So. 3d at 1070-71 (citing Tina Brown, 304 So. 3d at 271).

III

In his petition for a writ of habeas corpus, Smiley raises a single claim of ineffective assistance of appellate counsel. He contends that appellate counsel was ineffective for failing to argue that the trial court improperly admitted evidence of the Riley murder pursuant to its amended order.¹³ State, 289 So. 3d

13. We note that this issue was preserved by trial counsel,

who renewed Smiley's objections to the admission of this evidence at the appropriate junctures during trial. 14. Williams v. State, 110 So. 2d 654 (Fla. 1959); see also § 90.404(2), Fla. Stat. (2016) (codifying the principles discussed in Williams).

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839, 854 (Fla. 2019). Furthermore, the standard for ineffective assistance of appellate counsel mirrors the two-pronged Strickland standard for ineffective assistance of trial counsel. Id. (quoting England v. State, 151 So. 3d 1132, 1140 (Fla. 2014)).

Regarding the prejudice prong, Smiley must show “that any deficiency 'compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.'” Bright v. State, 432 So. 3d 485, 502 (Fla. 2026) (quoting Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986)). Put differently, appellate counsel's deficient performance “must concern an issue which is error affecting the outcome, not simply harmless error.” Id. (quoting Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)).

Here, assuming deficiency, Smiley cannot establish prejudice. Any potential trial court error in admitting the Riley firearm evidence would have been harmless. We say this for two reasons. First, even if this evidence were excluded, the case against Smiley for the Drake murder remained strong. As described above, multiple pieces of DNA and testimonial evidence implicated Smiley as the murderer. In fact, our opinion on direct appeal recounted the evidence to support Smiley's conviction without even

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referencing the Riley firearm evidence. See Smiley, 295 So. 3d at 161-62.15

Second, the trial court ensured that the Riley firearm evidence was not a feature of the State's case through the limitations placed on the scope of this evidence. See supra pp. 5-6. The trial court prevented the State from informing the jury that Smiley had been charged with another robbery homicide, and the court instructed the jury that this evidence was to be considered only as it related to proof of identity.

Because we would have still affirmed on direct appeal had appellate counsel briefed this evidentiary issue, Smiley cannot show prejudice. Accordingly, we reject this ineffectiveness claim and deny Smiley's habeas petition.

15. See id. at 178 (“The predicate felonies underlying the felony murder charge were robbery and burglary. Mark Wilkerson testified that Smiley shot and killed Drake and that Smiley stole Wilkerson's cell phone and forced his way into the Drake home. John McDonald testified that the criminal episode had the goal of stealing money from a safe in the Drake home and that Smiley confessed to the Drake murder. This testimony was corroborated by DNA evidence linking Smiley to the backpack found at the crime scene and by the cell phone records showing that Wilkerson's stolen phone was used in a three-way call with McDonald and Samantha Lee shortly after the murder.").

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IV

For the foregoing reasons, we affirm the circuit court's denial of Smiley's initial rule 3.851 motion and deny his habeas petition.

It is so ordered.

COURIEL, C.J., and LABARGA, MUÑIZ, FRANCIS, BARRIOS, and TANENBAUM, JJ., concur.