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Ronnie [Heath] was older than Kenny. He [Heath] was physically larger. He [Heath] appeared to be mentally quicker, more secure.


Based upon my interactions with Ronnie [Heath], my interactions with Kenny, the way they both presented themselves, and then Kenny recounting some abuse that he claimed, there wasn't evidence [that Kenneth dominated Heath].


Given the lack of evidence offered during the evidentiary hearing that Kenneth dominated Heath, the fact that Heath physically and ***ually abused Kenneth as a child, and Kenneth's testimony during the evidentiary hearing that "[m]y brother's the only person I ever feared," trial counsel was not ineffective for failing to raise as a mitigating circumstance that Kenneth exercised substantial domination over Heath. See Holland, 916 So. 2d at 757.


Unconstitutional "Doubler"- Under this claim, Heath contends that the "committed in the course of a felony" aggravator acts as an unconstitutional "doubler"--i.e., the same set of facts that support the felony-murder conviction also support application of this aggravating circumstance. This Court has repeatedly rejected claims that the "committed in the course of a felony" aggravating circumstance constitutes an unconstitutional automatic aggravator (or a "doubler"). See Owen v. State, 862 So. 2d 687, 704 (Fla. 2003) (citing Johnson




v. Moore, 837 So. 2d 343, 348 (Fla. 2002); Blanco v. State, 706 So. 2d 7, 11 (Fla. 1997)).11 Trial counsel is not ineffective for failing to raise a meritless challenge,








11. See also Pooler v. State, 980 So. 2d 460, 470 (Fla.) ("[C]laims that could have been raised on direct appeal cannot be relitigated under the guise of







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see Vining v. State, 827 So. 2d 201, 213 (Fla. 2002), and Heath is not entitled to relief on this claim.


Cause of Death- As previously noted, "counsel cannot be deemed deficient for failing to investigate or present mitigation evidence unless the defendant establishes that mitigation exists." Holland, 916 So. 2d at 757. During the evidentiary hearing, trial counsel testified that the first time he received evidence that Heath stabbed Sheridan in the throat postmortem was in a affidavit signed by Kenneth Heath during February 2005, more than fourteen years after Heath's trial occurred. According to counsel, Kenneth never reported this fact in any of the interviews that he conducted with Kenneth during Heath's trial. Since Heath offered no evidence during the evidentiary hearing to demonstrate that this evidence was available at the time of Heath's trial--other than Kenneth's dubious assertion that his version of the murder has always been the same, but someone has altered the trial court records--Heath cannot demonstrate that his counsel was ineffective for failing to present it.


***ual Assaults in Prison- Both Dr. Krop and trial counsel testified that they were aware Heath had been the victim of ***ual assaults while in prison. His trial attorney testified that he and cocounsel considered offering this evidence during


ineffective assistance of counsel." (citing Freeman v. State, 761 So. 2d 1055, 1067 (Fla. 2000))), cert. denied, 129 S. Ct. 255 (2008).








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the penalty phase in mitigation; however, Heath did not wish for this evidence to be presented. Heath failed to offer any testimony or evidence during the evidentiary hearing to repudiate the attorney's testimony that Heath did not want trial counsel to present evidence of ***ual abuse. Counsel is not ineffective for complying with the requests of the defendant. See Grim, 971 So. 2d at 97; Cummings-El, 863 So. 2d at 266. Accordingly, Heath has failed to demonstrate that he is entitled to relief on this claim.


Miscellaneous claims- The remaining three mitigating circumstances that Heath claims counsel should have offered during the penalty phase are: (1) Heath was emotionally abused and neglected as a child; (2) Heath was a slow learner; and




(3) Heath was suffering from extreme emotional distress at the time of the murder due to a breakup with his girlfriend, Penny Powell. However, during the evidentiary hearing, Heath failed to offer any solid evidence to support any of these contentions. Neither Dr. Rothschild nor Dr. Krop testified that Heath suffered from emotional abuse or neglect during his youth. Neither of Heath's parents testified that Heath was emotionally abused or deprived. Instead, Heath's father testified that when the school district planned to bus Heath to a school across town, the parents placed him in a private school so that Heath would not arrive home late in the afternoon or be forced to leave for school before daylight.


Heath's mother testified that the family was "constantly doing family things. We







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had a boat and . . . we would go fishing and haul our dog along, and it was just normal."


Similarly, there was no evidence offered to demonstrate that Heath was a slow learner. Instead, Dr. Krop testified that Heath's prior IQ testing placed him in the bright/normal range. Further, all of Heath's neurological screening tests were within the normal limits and there was no evidence that Heath had suffered a head injury. William Heath testified that prior to the sixth grade, Heath was a good student and "[u]p till about that time he was as close to a perfect child as you could want." Vivian Heath testified that he "was actually an exemplary student up until the sixth grade, and that's when things started to change with him."


Lastly, Dr. Krop testified that although Heath was upset about the breakup with Powell, he did not believe that it contributed to the murder. Dr. Krop testified that in his opinion, Heath was not under the influence of an extreme mental or emotional disturbance on the night of the murder. Moreover, trial counsel testified during the evidentiary hearing that when Heath discussed the breakup with Powell, he did not portray it as an extreme event. Further, counsel questioned the seriousness and permanency of the breakup because Powell was very helpful in Heath's defense and was willing to come to Florida to testify on his behalf.


Heath failed to offer any evidence during the evidentiary hearing to establish the existence of these potential mitigating circumstances. We conclude that Heath







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has failed to establish that his counsel was ineffective on these bases. See Holland, 916 So. 2d at 757 ("[C]ounsel cannot be deemed deficient for failing to investigate or present mitigation evidence unless the defendant establishes that mitigation exists.") .


Ineffective Assistance--Special Verdict Form



Heath next contends that he received ineffective assistance during the penalty phase due to the failure to request a special verdict form with regard to the specific aggravating factors found by the jury. However, this Court has previously rejected the contention that Florida's capital sentencing structure is unconstitutional because it does not require a special verdict form that indicates the aggravating circumstances found by the jury. See Kormondy v. State, 845 So. 2d 41, 54 (Fla. 2003). Additionally, in 2005 we held that it constitutes a departure from the essential requirements of law for a trial court in a death-penalty proceeding to utilize a penalty-phase special verdict form that details the findings of the jurors with regard to aggravating circumstances. See State v. Steele, 921 So. 2d 538, 550 (Fla. 2005). Hence, had trial counsel presented this challenge during the trial proceedings, it would have been rejected. Trial counsel is not ineffective for failing to raise a meritless challenge, see Vining, 827 So. 2d at 213, and Heath is not entitled to relief on this claim.


Ineffective Assistance--Insufficiency of the Indictment







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In his next claim, Heath contends that he received ineffective assistance of counsel during the guilt phase based on a failure to challenge the indictment as insufficient because it did not allege the aggravating circumstances upon which the State intended to rely, in violation of the Supreme Court's decisions in Ring and Blakely. However, we have held that Ring does not apply retroactively. See Johnson v. State, 904 So. 2d 400, 405 (Fla. 2005) ("Ring does not apply retroactively in Florida to defendants whose convictions already were final when that decision was rendered."). Since Heath's conviction became final in 1995, these decisions do not apply to him.


Moreover, this Court has held that capital defendants are "not entitled to notice of every aggravator in the indictment because the aggravators are clearly listed in the statutes." England v. State, 940 So. 2d 389, 407 (Fla. 2006) (citing Lynch v. State, 841 So. 2d 362, 378 (Fla. 2003)). Thus trial counsel was not ineffective for failing to raise this meritless claim. See Vining, 827 So. 2d at 213.


Unanimous Jury


Heath next contends that Florida's sentencing structure is unconstitutional in violation of Ring because it does not require a unanimous jury to recommend a sentence of death. However, this Court has repeatedly held that Florida's capital sentencing scheme does not violate the United States Constitution under Ring. See







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Jones v. State, 845 So. 2d 55, 74 (Fla. 2003). Further, as previously noted, Ring does not apply retroactively. See Johnson, 904 So. 2d at 405.


Accordingly, this claim is without merit.


Jury Instruction In this claim, Heath appears to assert that because it was Kenneth who fatally shot Sheridan, the trial court improperly instructed the jury that Heath killed Sheridan. We conclude that this claim is procedurally barred. Heath is challenging a jury instruction, and this Court has explained that "[c]laims regarding the adequacy or constitutionality of jury instructions should be raised on direct appeal." Israel v. State, 985 So. 2d 510, 520 (Fla. 2008) (citing Thompson




v. State, 759 So. 2d 650, 665 (Fla. 2000)). Further, jury instructions "are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred." Garzon v. State, 980 So. 2d 1038, 1042 (Fla. 2008) (quoting State v. Delva, 575 So. 2d 643, 644 (Fla. 1991)).


The record reflects that trial counsel did not object to the relevant instruction during the charge conference or when the trial court read the instruction to the jury, and Heath further did not challenge this instruction on direct appeal.








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Consequently, Heath's jury-instruction claim is procedurally barred in this collateral context.12


III. CONCLUSION


For the foregoing reasons, we affirm the denial of the rule 3.851 motion by the postconviction court.


It is so ordered.


QUINCE, C.J., WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., and ANSTEAD, Senior Justice, concur.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.


An Appeal from the Circuit Court in and for Alachua County,


Robert P. Cates, Judge ­ Case No. 01CFA


Robert Augustus Harper, Jr. and Robert Augustus Harper, III of Harper and Harper Law Firm, P.A., Tallahassee, Florida, for Appellant


Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, Florida, for Appellee












12. Similarly, Heath's claim that his death sentence is disproportionate is procedurally barred because this Court evaluated the proportionality of the sentence on direct appeal. Moreover, Heath did not raise the instant challenge before the postconviction court and, accordingly, this challenge will not be heard for the first time on appeal. See generally Connor v. State, 979 So. 2d 852, 866 (Fla. 2007).
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