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even before they left the bar, and the murder of Sheridan was premeditated. See Perry v. State, 801 So. 2d 78, 84 (Fla. 2001) (" `Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.' This purpose to kill must exist for such a time before the homicide `to permit reflection as to the nature of the act to be committed and the probable result of that act.' " (quoting Green v. State, 715 So. 2d 940, 943-44 (Fla. 1998))). Further, the death of Sheridan occurred during the course of an armed robbery, thereby rendering the crime felony murder. See § 782.04(1)(a), Fla. Stat. (1989).


The record here demonstrates that Heath spearheaded the events that led to the murder of Sheridan. While at the Purple Porpoise, Heath suggested that he and Kenneth rob Sheridan. Once they were at the remote site, Heath told Kenneth to retrieve a gun from the vehicle. Once Kenneth shot Sheridan in the chest, Heath removed Sheridan's jewelry, wallet, and watch. When Sheridan failed to respond to inquiries by Heath, he kicked Sheridan. Heath then urged Kenneth to shoot Sheridan to make sure he was dead. After Kenneth shot Sheridan in the head, Heath urged, "Shoot him again, shoot him again." After Sheridan was dead, Heath and Kenneth moved the body further into the woods so that it could not be discovered. Heath unquestionably aided, abetted, and procured the murder of Sheridan. We conclude that even if Heath received a new trial, Kenneth's recanted







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testimony is not of such nature that it would probably produce an acquittal of Heath or even a conviction on a lesser charge.




We further conclude that Kenneth's testimony is not of such a nature that it would probably produce a life sentence recommendation. The two aggravators found by the trial court in the sentencing order were (1) Heath had been convicted of a prior violent felony (second-degree murder), and (2) the murder was committed during the course of an armed robbery. See Heath, 648 So. 2d at 663.


With regard to Heath's prior murder conviction, Detective Gerald Parker testified during the trial about the injuries sustained by the victim, Michael Lee Green.


Green's body was found approximately 250 feet from a severely burned vehicle.


Green had sustained twenty-three stab wounds and his skull was crushed. The apparent weapon used to inflict the damage to Green's skull was a burned tree stump which was covered with dried blood and matted hair.


The sworn statement of Heath with regard to the murder of Green was read to the jury. In that statement, Heath testified that he stabbed Green because Green made unwelcome ***ual advances toward him. When Green asked for help after the stabbing, Heath told him to get in his (Green's) car and Heath would drive him to the hospital. However, Heath instead drove the car around and eventually returned to the site where the stabbing occurred. Heath then set the car on fire while Green was inside and leaned on the door to prevent Green from escaping.








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However, Green did manage to exit from the other side of the vehicle. While Green sat on the ground, watching his car burn, Heath started kicking him. The two struggled, and Heath proceeded to stab Green in the chest and in the back.


When Green grasped Heath's leg, Heath grabbed the stump and struck Green with it three times. Heath then dragged Green's body into the bushes.




Kenneth's recanted testimony does not disprove either of the aggravators found by the trial court in its sentencing order. Indeed, as noted in the order denying postconviction relief, the recanted testimony actually establishes two additional statutory aggravating circumstances: the murder was committed to eliminate a witness and was cold, calculated, and premeditated. Given the disturbing facts of the Green murder, which was committed by Heath when he was sixteen years old, and the additional evidence that (1) Heath and Kenneth discussed killing Sheridan even before they left the Purple Porpoise, and (2) Heath appeared to be "in ecstasy" when he sawed at the throat of Sheridan's dead body, we conclude that Kenneth's recanted testimony is not of such a nature that it would probably produce a life-sentence recommendation for Heath.




Accordingly, we affirm the trial court's denial of this claim.


Ineffective Assistance--Voluntary Intoxication Defense Heath next claims ineffective assistance of counsel during the guilt phase of his trial due to the failure to investigate and consider a defense of voluntary







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intoxication. After the decision in Strickland v. Washington, 466 U.S. 668 (1984), was issued by the United States Supreme Court, this Court explained that to establish an ineffective assistance of counsel claim, two requirements must be satisfied:


First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.


Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.


Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted). Both prongs of the Strickland test present mixed questions of law and fact, and, therefore, this Court employs a mixed standard of review. We defer to the circuit court's factual findings that are supported by competent, substantial evidence, but review the legal conclusions of the circuit court de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).




There is a strong presumption that the performance of trial counsel was not ineffective. See Strickland, 466 U.S. at 690. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. The







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defendant bears the burden to "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' "


Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). We have held that "strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).


We conclude that Heath has failed to demonstrate ineffective assistance on this claim. During the evidentiary hearing, trial counsel testified that he and Heath met numerous times when formulating his defense. His attorney testified that they specifically discussed a voluntary intoxication defense. Counsel stated that he felt the alibi defense was much stronger than an intoxication defense for two reasons.


First, Heath never once acknowledged to counsel that he was present at the crime scene. Instead, Heath consistently insisted that he was not culpable because he was not there. Moreover, there were witnesses whose testimony supported this defense. During trial, one inmate testified that Kenneth informed him that he (Kenneth) had killed Sheridan, and Heath was not present. A second inmate testified that Kenneth stated he shot Sheridan a couple of times and then cut his throat because "he pissed me off, he wouldn't die." Finally, a third inmate







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testified that when Kenneth returned from a meeting with his lawyer, he was very angry because he said that Heath would not lie for him.




Second, counsel testified that he did not believe an intoxication defense was viable because "it's a very difficult defense for a jury to accept, particularly in serious--when serious criminal activity is alleged. . . . It's just been my experience that people do not accept someone not taking responsibility due to voluntary intoxication." The attorney also explained that he does not believe in presenting multiple inconsistent defenses because he feels it harms the credibility of the defense team: "You can't take one position and then say, well, if you don't believe that, here's my second argument. It just does not work. You lose credibility. And in my experience, every jury trial is a battle, at least in part, for credibility."


Finally, counsel testified that he did not feel an intoxication defense was viable because evidence reflected that, around the time of the murder, Heath and Kenneth were making decisions and driving an automobile.7














7. Dr. Krop similarly did not believe that Heath's alcohol and drug use on the night of the murder rose to the level for a defense of intoxication to have been viable:


I can say my opinion was that it would not have, given Mr. Heath's very explicit, detailed account as to what happened. He--


Again, I'm not talking about the veracity, necessarily, of what he told me, but he was able to give me specific directions and which way--which way someone turned and--just a very detailed account as to the events in question. And I did not feel that he was that significantly intoxicated.








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Based on these two factors, trial counsel chose to exclusively pursue an alibi defense and contend that Kenneth was implicating Heath solely to obtain the benefit of a plea bargain that spared him from the death penalty. A review of the closing statements during trial reflects this defense strategy:


You know, one thing that [Kenneth] said, too, sums up the whole case. If he would have gotten on that stand and told you, "Ronnie wasn't there," he knew he would face the possibility of the death penalty then, if he said that. So could he [say] it--would he say it? Could this thief, liar, and murderer say that? He's doing it to save himself.


Before there was any plea-deal, what did he say? He told the police, "Ronnie wasn't there." He told Wilbur Johnson, "Ronnie was there at the bar; he didn't go with me; I was alone when I committed the crime."



And what changed? The plea-deal? And the story changed.


Just enough to shift some blame: "Ronnie told me to do it. Ronnie told me to do it."


. . . .




So can you be so sure of Kenny's testimony to bet a human life on it? Did he not have the greatest reason to lie? Self-preservation? Self-preservation--just shift the blame a little bit; he didn't like Ronnie anyway. That's reasonable doubt.


No evidence, not one bit of evidence given to you supports Kenny's story. Not one. There is no physical evidence. None.


Trial counsel testified during the evidentiary hearing that Heath agreed with a defense that he was not present during the murder, that Kenneth only told him about the killing after it occurred, and that Kenneth was lying because he had arranged a plea bargain with the State.



In light of the evidence offered during the evidentiary hearing, we conclude that trial counsel's performance was not deficient for the failure to present an
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