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intoxication defense. Heath presented no evidence during the evidentiary hearing to negate trial counsel's testimony that a voluntary intoxication defense was considered, but ultimately rejected, or to dispute that Heath agreed with his attorney's decision to pursue the alibi defense. Since Heath never admitted being at the crime scene, it would have been inconsistent for trial counsel to argue that he was present and assisted in the murder of Sheridan, but was too intoxicated to know what he was doing. Further, the decision to not present inconsistent defenses for fear of harming credibility with the jury was a matter of trial strategy. See Remeta v. Dugger, 622 So. 2d 452, 455 (Fla. 1993) (trial counsel not ineffective for making a tactical decision not to present a voluntary intoxication defense where the theory of the defense was that an accomplice was "the primary perpetrator and trigger man in the killing [and a]n intoxication defense would be inconsistent with Remeta's contention that he did not commit the crime")(quoting trial court's order)). Moreover, witnesses were available who could (and did) testify in favor of Heath's alibi defense. Cf. id. at 455 ("The decision not to present a voluntary intoxication defense was a tactical one based on what Remeta's counsel felt the facts of the case supported."). The fact that this defense strategy was ultimately unsuccessful with the jury does not render counsel's performance deficient. See Johnson v. State, 769 So. 2d 990, 1001 (Fla. 2000) ("Simply because the . . .







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defense did not work, it does not mean that the theory of the defense was flawed." (quoting trial court's order)).




In light of the foregoing, we affirm the holding of the postconviction court that trial counsel was not ineffective for failing to present a voluntary intoxication defense.


Ineffective Assistance--Mitigation



Heath next asserts that trial counsel was ineffective during the penalty phase for the failure to investigate and present a number of mitigating circumstances.8


We address each alleged basis for mitigation separately.


Antisocial Personality Disorder- During the evidentiary hearing, Dr. Rothschild testified that Heath satisfied the criteria for a diagnosis of antisocial personality disorder (APD). Dr. Rothschild testified that APD is characterized by a pervasive pattern of behavior that involves disregard for others and the law, and the pattern must have commenced prior to the age of fifteen. According to Dr. Rothschild, when the pattern emerges before the age of fifteen it is termed a











8. We have considered Heath's assertion that trial counsel improperly relied upon residual doubt during the penalty phase and reject this claim without further discussion. Further, we conclude that Heath has waived his cumulative-error claim because his brief includes no argument whatsoever and instead consists of a one- sentence heading in his brief. Vague and conclusory allegations on appeal are insufficient to warrant relief. See Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008).









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conduct disorder, which is characterized by aggression, property destruction, deceitfulness, theft, and serious rule violations. Dr. Rothschild testified that Heath met the criteria for conduct disorder because he had been physically cruel to others, he had broken into homes on a number of occasions and lied to cover it up, and he had ignited multiple fires. Dr. Rothschild testified that a person with APD can control his or her behavior, but chooses not to, and disregards the consequences of his or her actions.




Dr. Krop testified that when he evaluated Heath during trial preparation, he too reached a diagnosis of APD. Dr. Krop explained his view with regard to offering testimony that Heath met the criteria for an APD diagnosis: [A]lthough I could try and soften that to some degree by saying things like a person's not born with [APD], its traits that are resultant to the environment that he is brought up in, my experience has been in talking to jurors after cases that [APD is] essentially viewed in a very negative manner.


. . . .



So depending on what I was asked upon cross-examination, certainly I felt that I might present Mr. Heath in a negative manner.


Krop eventually wrote a letter to counsel that memorialized their collective decision with regard to his testimony: "As a result of our mutual concerns that Mr. Heath's psychological profile might be damaging to his case, you have agreed that I not testify during his sentencing." During the evidentiary hearing, trial counsel recalled that both defense counsel and Dr. Krop agreed that he should not testify during the penalty phase.








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The record reflects that trial counsel was aware of the APD diagnosis but chose not to present this evidence to the jury. This was a reasonable strategic decision based upon a belief that such evidence would harm rather than help Heath's penalty phase presentation. See Asay v. State, 769 So. 2d 974, 985 (Fla. 2000) ("[I]n those cases where counsel did conduct a reasonable investigation of mental health mitigation prior to trial and then made a strategic decision not to present this information, we have affirmed the trial court's findings that counsel's performance was not deficient."); Freeman v. State, 858 So. 2d 319, 327 (Fla. 2003) (concluding that APD is "a trait most jurors tend to look disfavorably upon"). We conclude that the decision of trial counsel not to introduce Heath's APD diagnosis into evidence during the penalty phase did not constitute deficient performance. Accordingly, Heath's allegation of ineffectiveness fails on this basis.


Alcohol Abuse- Contrary to Heath's assertion, Dr. Rothschild did not provide a substance-abuse diagnosis. Instead, Rothschild testified that Heath had a history of substance abuse, but a diagnosis would be difficult because of his lengthy incarceration for many years immediately prior to this crime. Dr. Rothschild also stated that he believed Heath had minimized his reported alcohol use. Dr. Rothschild ultimately concluded that Heath did not have diminished capacity to appreciate the criminality of his conduct at the time of the murder.


However, he qualified this statement, opining that the mitigator was not applicable







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according to the account of the crime that Heath provided to him.9 During the evidentiary hearing, Dr. Krop stated that he and defense counsel had discussed the fact that Heath had been drinking on the night of the murder and that Heath's judgment may have been compromised. However, Krop was uncertain if Heath had a substance-abuse problem that rose to the level of a clinical diagnosis.




We conclude that no deficiency in representation occurred on this asserted basis. None of the experts diagnosed Heath as suffering from a substance abuse disorder because, of significant note, Heath had been incarcerated for the murder of Michael Green from the age of sixteen for a period of twelve years and was only released from prison a matter of months before the murder occurred in this case.


Nonetheless, during the penalty phase, trial counsel offered evidence of Heath's substance use both on the night of the murder and prior to his first incarceration.


During the penalty phase, Heath's parents testified that Heath used drugs on at least one occasion prior to his arrest for the murder of Green.


Additionally, during closing statements, trial counsel specifically asserted in mitigation that Heath was highly intoxicated on that night:











9. Heath told Rothschild that he had "passed out" in the back seat of the car and, when he awoke, Kenneth was pointing the gun at Sheridan. He exited the car in an attempt to defuse the situation but Sheridan lunged at Kenneth, and Kenneth shot him. According to Rothschild, Heath stated that Kenneth had told him to take Sheridan's wallet and to cut his throat, apparently because Kenneth wanted to ensure that Heath was somehow involved in the murder.








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"Substantial impairment of reasoning abilities due to use of alcohol or drugs may constitute commission of a crime under the influence of extreme mental or emotional disturbance."


Well, does that apply? Sure does. What did these guys have that night? Well, Ronald Heath had about two pitchers of beer to drink, and some kind of a drink, two drinks: something called a Long Island iced tea.


. . . .


And marijuana--Jennifer Berquist . . . says "Well, they were going in and out [of the Purple Porpoise] all night, smoking marijuana; their eyes were red and you could tell they were not so good." And apparently they were smoking marijuana in the car on the way out to the crime scene.


Substantial impairment? Decide for yourself . . . whether that constitutes substantial impairment due to alcohol or drugs.


Thus, trial counsel clearly presented Heath's drug and alcohol use to the jury.


Moreover, the trial court found in mitigation that Heath was under an extreme emotional or mental disturbance at the time of the crime due to the use of alcohol and marijuana, but gave the mitigator little weight because there did not appear to be a nexus between the consumption and the crime:


From the description of the criminal activities, the Court can assume that Ronald Heath may have been influenced by alcohol or marijuana, but the consumption of alcohol and marijuana does not automatically lead to violence. Indeed, there is no evidence that alcohol or marijuana had any particular effect on the mental or emotional facilities of Ronald Heath, and the similarities between the killing of Michael Sheridan and the killing of Michael Green lead the Court to believe that Ronald Heath's propensity to violence was not substantially enhanced by his consumption of alcohol or marijuana. The Court gave this mitigating circumstance weight but not great weight.








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Heath has failed to demonstrate any deficiency by trial counsel on this basis.


Counsel presented Heath's drug and alcohol use during the penalty phase and was successful in establishing the "extreme emotional distress" mitigating circumstance based upon this use.


Physical Abuse-As with the antisocial-personality mitigating circumstance, Heath's trial attorneys were aware that Heath's father had disciplined Heath with corporal punishment. However, during the evidentiary hearing, trial counsel testified that Heath did not want any evidence to be presented during the penalty phase with regard to his childhood, his education, or his family relationships. We have held that counsel is not ineffective for complying with the requests of the defendant. See Cummings-El v. State, 863 So. 2d 246, 266 (Fla. 2003); see also Grim v. State, 971 So. 2d 85, 97 (Fla. 2007) (counsel not ineffective for failing to argue for lesser-included offenses where the defendant instructed counsel not to do so). Counsel testified that the strategy during the penalty phase was to present Heath's parents in a positive light that would reflect well on Heath. Indeed, during the trial, both parents testified that when Heath started to get into trouble (e.g., stealing, skipping school), they obtained the assistance of a psychiatrist based on a concern for his actions. Further, William Heath testified that when Heath went to prison for the murder of Green, he attempted to secure psychological assistance for







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his son. William also testified that while Heath was incarcerated in Arcadia, Florida, at least once a month, the parents would drive seven hours to visit him.


Thus, during the penalty phase, the Heaths were portrayed as concerned and loving parents who sought help for their son on more than one occasion for the psychological issues he faced. It would have been inconsistent for defense counsel to then undermine the credibility of those parents by introducing evidence that Heath's father used corporal punishment. Accordingly, even if Heath had permitted counsel to introduce evidence of corporal punishment, the decision not to introduce this evidence would constitute a reasonable trial strategy, and Heath has failed to demonstrate that his counsel was deficient during the penalty phase.


See Gore v. State, 964 So. 2d 1257, 1269 (Fla. 2007) ("[S]trategic 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." (quoting Occhicone, 768 So. 2d at 1048)).


Substantial Domination-This Court has held that "counsel cannot be deemed deficient for failing to investigate or present mitigation evidence unless the defendant establishes that mitigation exists." Holland v. State, 916 So. 2d 750, 757 (Fla. 2005) (citing Gore v. State, 846 So. 2d 461, 469-70 (Fla. 2003)). Heath failed to offer any evidence during the evidentiary hearing to demonstrate that Kenneth dominated Heath. Heath argues that Rothschild was of the opinion that, based on







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the family background and the relationship between Heath and Kenneth, it is unlikely that Kenneth acted pursuant to the direction of Heath. However, Rothschild actually testified that he could not formulate an opinion with regard to whether one brother dominated the other because of the discrepancies in their respective versions of the events on the night of the murder. Instead, Rothschild testified that Heath's parents gave no indication that Kenneth dominated Heath.


During cross-examination, Rothschild testified that he did not reach a conclusion that Kenneth controlled Heath at any time before the murder, or that Heath was a man who was easily led by others. Vivian Heath could not say whether one brother dominated over the other. William Heath testified that he never saw any evidence that Kenneth dominated Heath. Corrections officer Sheila Short said that the brothers were not incarcerated together, so she never had an opportunity to see if one brother dominated the other, if one was subservient to the other, or if Kenneth feared Heath.10 Finally, trial counsel testified that there was no evidence that Kenneth dominated Heath, but evidence existed that Heath dominated Kenneth:







10. Short testified with regard to one incident where she heard Kenneth say while in the jail, "Ha, ha, I fixed his ass this time, didn't I." When Short asked about whom he was speaking, Kenneth said "My brother," and he did not behave as if he was afraid of Heath. However, during cross-examination, Short admitted that she was unsure of the context in which Kenneth made the statement.
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