`
`Supreme Court of Florida
`
`
`
`____________
`
`No. SC15-258
`____________
`
`NELSON SERRANO,
`Appellant,
`
`vs.
`
`STATE OF FLORIDA,
`Appellee.
`
`____________
`
`No. SC15-2005
`____________
`
`NELSON SERRANO,
`Petitioner,
`
`vs.
`
`JULIE L. JONES, etc.,
`Respondent.
`
`[May 11, 2017]
`
`
`PER CURIAM.
`
`
`
`Nelson Serrano appeals the denial of his postconviction motion filed under
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`Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of
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`
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`

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`habeas corpus.1 For the following reasons, we affirm the denial of his guilt phase
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`postconviction claims, deny his habeas petition, but vacate his sentences, and
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`remand for a new penalty phase.
`
`I. BACKGROUND
`
`In 2011, this Court affirmed Serrano’s four convictions for first-degree
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`murder and his four death sentences. Serrano v. State, 64 So. 3d 93 (Fla. 2011).
`
`This Court explained the background of the case and murders as follows:
`
`On May 17, 2001, Nelson Serrano was indicted under seal on
`four counts of first-degree murder for the deaths of George Gonsalves,
`Frank Dosso, Diane Patisso, and George Patisso. The murders
`occurred on December 3, 1997, at Erie Manufacturing and Garment
`Conveyor Systems in Bartow. George Gonsalves was one of
`Serrano’s business partners. And Frank Dosso, Diane Patisso, and
`George Patisso were respectively the son, daughter, and son-in-law of
`Serrano’s other business partner, Felice (Phil) Dosso. Serrano, a dual
`citizen of the United States and Ecuador, was arrested in Ecuador on
`August 31, 2002, and brought to the United States.
`At the guilt phase, which occurred in 2006, the State presented
`the following evidence. In the 1960s, Phil Dosso and George
`Gonsalves started a tool and die business, Erie Manufacturing
`Cooperative, in New York. Their business provided parts to support
`the garment industry. In the 1980s, Phil Dosso and George Gonsalves
`met Nelson Serrano, who was working for a New Jersey company
`selling slick rail systems for the garment industry. In the middle of
`the 1980s, the three men created a separate company, Garment
`Conveyor Systems. Serrano was responsible for designing, selling,
`and installing slick rail systems, while Dosso and Gonsalves built the
`parts.
`
`
`
`1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Because we
`are remanding for a new penalty phase, we do not address Serrano’s penalty phase
`claims.
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`In the late 1980s, the partners moved the business to Bartow,
`Florida. At that time, they closed Erie Manufacturing Cooperative
`and transferred all the assets to Erie Manufacturing, Inc. As part of
`their oral agreement, Serrano bought into the Erie partnership and
`agreed to pay Phil Dosso and George Gonsalves $75,000 each.
`Therefore, all three men were equal partners in both Garment
`Conveyor Systems and Erie Manufacturing. Garment moved to
`Bartow as well. Serrano’s son, Francisco Serrano, began working at
`the business soon after they relocated to Bartow, and Phil Dosso’s
`son, Frank Dosso, began working there at a later date. Phil Dosso’s
`son-in-law, George Patisso, was also an employee of the business.
`By the early 1990s, the business was doing well. However,
`friction between the three partners had developed. Nelson Serrano
`had failed to pay the $75,000 to each of his partners. Further, there
`were disagreements about the distribution of assets and accusations
`that there were two sets of books. Then, in the summer of 1997, Phil
`Dosso and George Gonsalves fired Francisco Serrano. Also in the
`summer of 1997, Nelson Serrano opened a separate business checking
`account with a different bank and deposited two Erie checks totaling
`over $200,000. And Serrano instituted a civil suit against his partners.
`Ultimately, Serrano was removed as president by a vote of the other
`two partners, and the locks were changed on the building.
`Numerous Erie employees testified to the strained relations
`between Serrano and the other two partners, particularly Serrano’s
`dislike of Gonsalves. Serrano made statements indicating that he
`wished Gonsalves were deceased. Additionally, Phil Dosso testified
`to hearing Serrano state that he felt like killing Gonsalves.
`On the evening of the murders, most Erie employees left work
`at 5 p.m. or shortly thereafter. However, as was his usual practice,
`George Gonsalves worked late. David Catalan, an employee at Erie,
`testified that when he left with another employee shortly after 5 p.m.
`George Gonsalves’ car was the only car in the parking lot. Although
`George Patisso and Frank Dosso remained at Erie with Gonsalves,
`they did not have a car parked in front because George Patisso’s wife,
`Diane Patisso, had plans to pick them up and take them to Frank
`Dosso’s home for a family birthday party.
`When family members began calling Frank Dosso and could
`not get an answer, Phil Dosso and his wife decided to drive to Erie.
`As Phil and Nicoletta Dosso entered Erie’s unlocked front door, they
`discovered the deceased body of their daughter, Diane Patisso. Phil
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`Dosso called 911 and ran to Frank Dosso’s office, where he
`discovered the bodies of George Gonsalves, George Patisso, and
`Frank Dosso.
`When the first law enforcement officers arrived at the scene at
`7:36 p.m., there were only three cars parked in front of the entrance:
`Phil Dosso’s car, Diane Patisso’s car, and George Gonsalves’ car.
`Inside Erie, law enforcement discovered twelve shell casings, eleven
`from a .22 and one from a .32. All of the victims had been shot in the
`head with .22 bullets, and Diane Patisso was also shot once with a .32
`bullet. The three men were shot execution-style. While neither
`murder weapon was ever located, the State introduced evidence that
`Serrano possessed and owned multiple .22 and .32 caliber firearms.
`In the office containing the three male victims, officers
`discovered a blue vinyl chair with shoe impressions on the seat.
`Directly above the chair, a ceiling tile had been dislodged. Although
`this office was Frank Dosso’s office at the time of the murders, it had
`been Nelson Serrano’s office when he worked at Erie. David Catalan
`testified that on one occasion, he saw Serrano in his office with a gun.
`Serrano was standing on a chair, moving a ceiling tile, and taking
`papers out of the ceiling. Further, Erie employee Velma Ellis testified
`that the blue chair in Frank Dosso’s office was never used and always
`remained under a desk in the office and that there were papers and a
`box piled on top of the chair’s seat. Ellis testified that the chair was in
`its usual position under the desk when she left work on December 3,
`1997, at 5 p.m. Crime analysts tested the shoe impressions on the
`dusty seat of the blue vinyl chair and found that the class
`characteristics and wear pattern were consistent with a pair of shoes
`Serrano owned and later loaned to a nephew.
`The State’s theory at trial was that Serrano kept a .32 caliber
`firearm hidden in the ceiling of his office. Once he was ousted from
`the company and the locks were changed he was unable to retrieve the
`gun until the night of the murders. After Serrano had shot the three
`male victims in his former office and was leaving the scene, Diane
`Patisso entered the building and was shot with both a .22 and the
`retrieved .32. An FDLE agent testified that Serrano told the agent that
`he would hide a gun in the ceiling of his office when he was out of
`town on business. However, Serrano’s fingerprints and DNA were
`not discovered at the crime scene.
`When officers first discovered the four victims at Erie, their
`investigation immediately focused on Serrano. As soon as Serrano
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`returned to his home from a business trip to Atlanta on December 4,
`1997, detectives requested that he come to the police station for an
`interview. At the police station, Serrano told law enforcement about
`his problems with his partners and explained to the detective that he
`had learned of the murders the previous evening when he had called
`his wife from his Atlanta hotel.
`During his interview with law enforcement, Serrano detailed his
`business trip itinerary, which included leaving Lakeland early on the
`morning of December 2, flying from Orlando to Washington, D.C.,
`and, on the evening of December 2, flying from Washington to
`Atlanta. Serrano indicated that he remained in Atlanta until
`December 4, 1997. When asked by the detective what he thought may
`have happened at Erie, Serrano replied that “somebody is getting
`even; somebody they cheated, and George is capable of that.”
`Thereafter, the detective took Serrano’s taped statement, which was
`played for the jury. During his taped statement, Serrano stated that
`maybe Diane Patisso “walked in the middle of something.”
`Officers traveled to Atlanta to investigate Serrano’s alibi and
`met with Larry Heflin of Astechnologies regarding his business
`meeting with Serrano. Heflin testified that he met Serrano in Atlanta
`on December 3 at about 9:45 a.m., and the meeting lasted
`approximately one hour. Investigators also obtained the La Quinta
`Inn airport hotel’s surveillance videotapes. The video showed Serrano
`in the Atlanta hotel lobby at 12:19 p.m. on December 3. Ten hours
`later, at 10:17 p.m., Serrano was again seen on the video, entering the
`hotel lobby from the outside, wearing the same sweater and jacket as
`earlier in the afternoon.
`Alvaro Penaherrera, Serrano’s nephew, testified that on two
`separate occasions Serrano asked Penaherrera to rent a car for him so
`that Serrano’s wife would not find out about the rentals. On October
`29, 1997, Serrano drove Penaherrera to the Orlando airport, where
`Penaherrera picked up a rental car. Penaherrera then drove the car
`and left it at a nearby valet lot. Thereafter, Serrano drove Penaherrera
`back to his apartment. Penaherrera had no further contact with the
`rental car and did not know who returned it on October 31, 1997, at
`7:30 p.m.
`Around Thanksgiving 1997, Serrano again asked Penaherrera to
`rent a car for him under Penaherrera’s name because Serrano had a
`girlfriend from Brazil coming into town. On November 23, 1997,
`Penaherrera made a telephone reservation for a rental car for
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`December 3, 1997. On December 3, 1997, at 7:53 a.m., Serrano
`called Penaherrera from Atlanta and asked him to call to confirm the
`rental car reservation. Serrano called Penaherrera back at 8:06 a.m. to
`verify that the rental car would be ready. Penaherrera then drove to
`Orlando’s airport and parked his car in the parking garage, rented the
`car from the terminal dealership, and drove the rental car back to the
`Orlando airport parking garage, where he left it as his uncle requested.
`Later that day, Serrano called Penaherrera, and Penaherrera told
`Serrano where the car was located and where the keys were hidden.
`As on the previous occasion in October, Penaherrera did not
`expect to have any further involvement with the rental car after he left
`it at the Orlando airport parking garage on December 3. However,
`Serrano called Penaherrera the next day, December 4, to tell
`Penaherrera that the rental car was in Tampa, not Orlando, and that
`Penaherrera needed to drive to Tampa and return the car there.
`Serrano told Penaherrera if he went to Tampa and returned the car,
`Serrano would pay off Penaherrera’s credit card bill and Penaherrera
`could pay him back without interest. Penaherrera agreed to this
`arrangement and returned the rental car in Tampa at 2:10 p.m. on
`December 4, 1997. Gustavo Concha, Serrano’s friend and
`Penaherrera’s godfather, subsequently paid Penaherrera’s Visa bill.
`Penaherrera next saw Serrano when he was visiting relatives in
`Ecuador for Christmas of 1997. Serrano informed Penaherrera of the
`murders at Erie and told Penaherrera that he could not say anything
`about the rental cars because it would jeopardize his marriage and the
`police would frame him for the murders.
`In June 2000, Penaherrera, his girlfriend, and his brother were
`subpoenaed to testify before the grand jury. The three spent the night
`at Serrano’s house the night before their testimony. That night
`Serrano asked Penaherrera to tell the grand jury that he had rented the
`car for a friend with whom he had subsequently lost contact. Serrano
`also gave Penaherrera and his brother suits and dress shoes to wear to
`court. The pair of shoes that Serrano gave Penaherrera were seized by
`law enforcement, and subsequent testing indicated that the right shoe
`was consistent with the impression on the seat of the blue chair at the
`murder scene.
`Also in June 2000, Penaherrera spoke for the first time with law
`enforcement regarding the December 1997 rental car transaction. And
`after his testimony and discussions with law enforcement, Penaherrera
`returned home to Orlando, where Serrano contacted him to find out
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`what information he had given to the grand jury and law enforcement.
`After Penaherrera testified before the grand jury, Serrano sold his
`home, car, and other assets and moved to Ecuador.
`The State introduced evidence regarding Serrano’s air travel for
`his December 1997 business trip. As explained previously, Serrano
`flew from Orlando to Washington, D.C., and then to Atlanta, on
`December 2, 1997. However, contrary to his statements to law
`enforcement, the State also introduced evidence that Serrano traveled
`back to Florida on the day of the murders using two aliases. The State
`theorized that on the day of the murders Serrano flew from Atlanta to
`Orlando under the name Juan Agacio. Serrano then drove the car
`rented by Penaherrera on December 3 from the Orlando airport to
`Bartow, where he killed the four victims. Thereafter, he immediately
`drove the rental car to the Tampa airport, where he departed on a
`flight back to Atlanta using the alias John White.
`To support its theory and timeline of Serrano’s activities on the
`day of the murders, the State introduced the videotape evidence
`demonstrating that Serrano was in the La Quinta Inn’s lobby in
`Atlanta shortly after noon on December 3, 1997. According to
`Serrano, he returned to his hotel room for the next ten hours because
`he was suffering from a migraine headache. However, the State
`introduced evidence that at 1:36 p.m. on December 3 a passenger
`calling himself Juan Agacio boarded Delta flight 1807 in Atlanta,
`scheduled to depart at 1:41 p.m. for Orlando. At 3:05 p.m., the
`passenger purporting to be Juan Agacio arrived in Orlando on flight
`1807, and at 3:49 p.m., the rental car that Penaherrera had rented
`exited the Orlando parking garage.
`Serrano’s fingerprint was located on the parking garage ticket,
`indicating that Serrano departed from the Orlando airport garage at
`3:49 p.m. on December 3, 1997. And Serrano has a son, who was
`named Juan Carlos Serrano at birth and whose mother’s maiden name
`is Gladys Agacio. Additionally, the round-trip ticket for the Atlanta–
`to–Orlando flight of the passenger flying under the name Juan Agacio
`was purchased with cash at the Orlando airport on November 23,
`1997, which is the same date that Penaherrera reserved the rental car
`for December 3, 1997. The State also introduced evidence that
`Serrano’s vehicle left the Orlando airport’s parking garage about
`twenty minutes after the passenger traveling under the name Juan
`Agacio purchased his ticket. The return portion of the flight was
`never used.
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`At approximately 5:30 p.m. on December 3, 1997, a person was
`seen standing off the side of the road near Erie’s building. When John
`Purvis left work on December 3, 1997, he noticed the man wearing a
`suit standing in the grassy area with no car in the vicinity. The man
`was holding his coat and hands in front of his face as if he were
`lighting a cigarette. Both Alvaro Penaherrera and Maureen Serrano
`testified that Serrano smoked, but they did not testify that he
`specifically smoked cigarettes. Purvis described the man, and law
`enforcement made a composite sketch that was shown to the jury.
`Approximately two hours after the murders, at 7:28 p.m., the
`passenger flying under the name John White arrived at Tampa
`International Airport and checked into Delta Airlines for flight 1272
`to Atlanta. Similar to the purchasing process for the ticket in the
`name of Juan Agacio, the purchaser paid for a round-trip ticket at
`Tampa International Airport on November 23, 1997, and never used
`the return portion of the ticket. Flight 1272 was scheduled to arrive in
`Atlanta at 9:41 p.m.
`At 10:17 p.m., Serrano was observed in Atlanta on videotape
`walking into the La Quinta Inn airport hotel lobby from the outside,
`wearing the same clothes he had been wearing ten hours earlier. After
`being observed in the hotel lobby, Serrano used his cell phone to call
`various individuals, including his wife. The next morning he made
`multiple calls to Alvaro Penaherrera telling him he had to return the
`rental car that was now located at Tampa airport.
`Furthermore, the State presented evidence that the car rented by
`Penaherrera on December 3 had been driven 139 miles. The distance
`from the Orlando airport to Erie is eighty miles, and the distance from
`Erie to the Tampa airport is fifty miles, totaling 130 miles.
`While incarcerated awaiting trial, Serrano spoke to fellow
`inmate and “jailhouse lawyer,” Leslie Todd Jones, about his case.
`Serrano denied any involvement in the murders, telling Jones that he
`believed a mafia hitman may have committed the murders, or
`alternatively, that Frank Dosso wanted to take over the business from
`George Gonsalves. The main theory Serrano described involved a
`hitman Serrano knew only as John, who was owed a substantial
`amount of money by the Dosso and Gonsalves families. Serrano
`explained to Jones that he and the hitman drove to the airports in
`Tampa and Orlando and that John purchased tickets under the names
`of Todd White and Juan Agacio. Serrano told Jones that the hitman
`had planned to approach the business partners on Halloween night,
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`but it was raining and the business was closed. Serrano also told
`Jones about his fingerprint being found on a parking ticket in Orlando,
`but Serrano claimed that an FDLE agent had planted his fingerprint.
`After law enforcement learned about the Halloween incident
`from inmate Jones, they began investigating and discovered almost an
`identical pattern of travel as the travel surrounding the December 3,
`1997, murders. Serrano once again was traveling on a business trip
`from Orlando to Charlotte from October 30 to November 2, 1997.
`And as previously discussed, on October 29, Serrano took Alvaro
`Penaherrera to the Orlando airport, where Penaherrera rented a car for
`Serrano and left it at a nearby valet lot. The next morning, October
`30, 1997, Serrano flew from Orlando to Charlotte with his flight
`arriving in Charlotte at 8:34 a.m. The following day, Halloween,
`someone traveling under the name Juan Agacio took a flight departing
`from Charlotte at 1:40 p.m. and arriving in Orlando at 3:07 p.m. At
`7:30 p.m., a passenger identified as John White was scheduled to
`depart on a flight from Tampa to Charlotte.
`During the guilt phase, the defense maintained that Serrano had
`been in an Atlanta hotel room with a migraine at the time of the
`murders. The defense emphasized that no forensic evidence linked
`Serrano to the scene of the crimes. The defense also pointed out that
`there was evidence of robbery at the scene as several offices were in
`disarray, Frank Dosso’s Rolex watch was missing, and George
`Patisso’s gold chain was missing. However, the jury returned a
`verdict finding Serrano guilty on four counts of first-degree murder.
`At the penalty phase, the State presented victim impact
`statements, and the parties stipulated that Serrano was fifty-nine years
`of age at the time of the murders and that Serrano had no prior
`criminal history. The defense presented evidence that Serrano never
`received any disciplinary reports while incarcerated awaiting trial.
`The jury recommended a sentence of death by a vote of nine to three
`for each of the four murder counts.
`At the Spencer hearing, Serrano presented numerous witnesses,
`some of whom testified by videotape from Ecuador. Then, on June
`26, 2007, the trial court sentenced Serrano to death for each of the
`four murders.
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`Id. at 98-103 (footnote omitted).2
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`On direct appeal, this Court affirmed Serrano’s convictions and sentences,
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`rejecting the nine issues raised by Serrano and finding the death sentences
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`proportionate.3
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`2. “The trial court found the following aggravators in regards to all four
`murders: (1) the murders were committed in a cold, calculated, and premeditated
`manner (great weight); and (2) Serrano was convicted of other capital felonies (the
`contemporaneous murders) (great weight). The trial court also found that the
`murder of Diane Patisso was committed for the purpose of avoiding arrest (great
`weight). Additionally, the trial court found the following mitigators: (1) Serrano
`had no significant history of prior criminal activity (great weight); (2) Serrano was
`in his late fifties at the time of the crimes (some moderate weight); (3) Serrano
`performed well in school (moderate weight); (4) Serrano has a good social history
`(moderate weight); (5) Serrano had no history of drug or alcohol abuse (some
`weight); (6) Serrano was a successful Hispanic immigrant (moderate weight); (7)
`Serrano displayed positive behavior during his pretrial incarceration (some
`weight); (8) Serrano displayed positive behavior during his court appearances
`(some weight); (9) Serrano expressed remorse regarding the death of Diane Patisso
`(slight weight); (10) Serrano had a good employment history (some weight); (11)
`Serrano was a good husband (some weight); (12) he was a good father (some
`weight); (13) Serrano was positively involved in his religion (some weight); and
`(14) he had a significant history of good works (moderate weight).” Serrano, 64
`So. 3d at 103.
`
`3. Serrano raised the following on direct appeal: “(1) whether the
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`circumstantial evidence is sufficient to support his convictions; (2) whether
`Serrano’s statements to FDLE Agent Tommy Ray were admissible; (3) whether the
`trial court properly denied Serrano’s motions to dismiss the indictment and divest
`itself of jurisdiction; (4) whether the prosecutor engaged in misconduct that entitles
`Serrano to relief; (5) whether the trial court properly denied Serrano’s motion for a
`change of venue; (6) whether the testimony of the State’s bloodstain pattern expert
`was admissible; (7) whether the State improperly cross-examined Serrano’s
`character witnesses about collateral crimes at the Spencer hearing; (8) whether the
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`Thereafter, Serrano filed a motion for postconviction relief and several
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`amendments. During postconviction proceedings, Serrano obtained STR DNA
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`testing of a plastic glove discovered at the crime scene under Diane Patisso’s body
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`as well as STR DNA testing of two cigarette butts located in Erie’s parking lot.
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`Serrano also obtained a postconviction order requiring fingerprint comparisons of
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`several unknown fingerprints discovered at the crime scene, but the postconviction
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`claim relating to the fingerprints was withdrawn after Serrano’s fingerprint was
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`subsequently identified on a piece of paper that had been discovered near one of
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`the victim’s body.
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`After holding an evidentiary hearing in May 2014, the trial court denied
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`Serrano’s motion for postconviction relief. This appeal and habeas petition
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`followed.
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`A. Letters
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`I. ANALYSIS
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`Serrano alleges that the State violated Brady v. Maryland, 373 U.S. 83
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`(1963), by failing to disclose a cover letter accompanying the United States’
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`extradition request, which indicated that the death penalty would not be sought if
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`Serrano were extradited from Ecuador, and by failing to disclose a letter received
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`avoid arrest aggravator was properly submitted to the jury and found by the trial
`court; and (9) whether Serrano’s death sentence is constitutional.” Id. at 104.
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`by the state attorney from the Ecuadorian Consul, which expressed Ecuador’s
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`displeasure with the potential imposition of the death penalty. However, we affirm
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`the denial of this claim.
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`“Under Brady, the State must disclose to the defense knowledge of material
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`exculpatory or impeachment evidence.” Jones v. State, 998 So. 2d 573, 579 (Fla.
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`2008). As this Court has explained,
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`[t]o demonstrate a Brady violation the defendant must prove that (1)
`the evidence is favorable to him, either because it is exculpatory or
`because it is impeaching; (2) the State willfully or inadvertently
`suppressed it; and (3) that the suppression resulted in prejudice.
`Evidence is prejudicial or material under Brady if there is a reasonable
`probability that had the evidence been disclosed, the result of the trial
`would have been different. United States v. Bagley, 473 U.S. 667,
`678 (1985). Thus, the critical question is whether the favorable
`evidence could reasonably be taken to put the whole case in such a
`different light as to undermine confidence in the verdict. Strickler v.
`Greene, 527 U.S. 263, 290 (1999) (quoting Kyles[ v. Whitley, 514
`U.S. 419, 435 (1995)]).
`
`Id. at 579-80. “Questions of whether evidence is exculpatory or impeaching and
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`whether the State suppressed evidence are questions of fact, and the trial court’s
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`determinations of such questions will not be disturbed if they are supported by
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`competent, substantial evidence.” Taylor v. State, 62 So. 3d 1101, 1114 (Fla.
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`2011). For Brady claims, “the defendant ultimately carries the burden of
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`establishing a prima facie case based upon a legally valid claim.” Id. at 1115.
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`Here, Serrano failed to demonstrate that the extradition packet cover letter
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`and the Ecuadorian Consul’s letter constitute Brady material. The promise that the
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`death penalty would not be sought if Ecuador extradited Serrano, which Ecuador
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`did not do, is not favorable to Serrano as exculpatory or impeachment evidence.
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`The Ecuadorian Consul’s letter expressing Ecuador’s opposition to the death
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`penalty also does not constitute exculpatory or impeachment evidence. As such,
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`Serrano’s Brady claim is without merit. See Hurst v. State, 18 So. 3d 975, 1003
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`(Fla. 2009) (“The State’s failure to disclose the notes regarding Hess is not a Brady
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`violation because the notes are not exculpatory or impeaching and do not provide
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`any basis to undermine our confidence in the verdict.”).
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`B. Closing Argument
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`Next, Serrano claims that trial counsel was ineffective for failing to object to
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`portions of the State’s closing argument in the guilt phase, namely the State’s
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`description of Serrano as diabolical and a liar, the State’s comments that allegedly
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`shifted the burden of proof, and the State’s discussion of the presumption of
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`innocence. However, because Serrano failed to establish prejudice, this Court
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`affirms the denial of relief.
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`Following the United State Supreme Court’s decision in Strickland v.
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`Washington, 466 U.S. 668 (1984), this Court has explained that for ineffective
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`assistance of counsel claims to be successful, two requirements must be satisfied:
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`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
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`demonstrated to have so affected the fairness and reliability of the
`proceeding that confidence in the outcome is undermined.
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`Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,
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`490 So. 2d 927, 932 (Fla. 1986)).
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`Regarding the deficiency prong of Strickland, there is a strong presumption
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`that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690.
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`Moreover, “[a] fair assessment of attorney performance requires that every effort
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`be made to eliminate the distorting effects of hindsight, to reconstruct the
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`circumstances of counsel’s challenged conduct, and to evaluate the conduct from
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`counsel’s perspective at the time.” Id. at 689. Further, the defendant carries the
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`burden to “overcome the presumption that, under the circumstances, the challenged
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`action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v.
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`Louisiana, 350 U.S. 91, 101 (1955)). And counsel cannot be deemed ineffective
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`for failing to make a meritless argument. Melendez v. State, 612 So. 2d 1366,
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`1369 (Fla. 1992), abrogated on other grounds by Deren v. State, 985 So. 2d 1087
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`(Fla. 2008).
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`“Regarding the prejudice prong of Strickland, the defendant must show that
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`there is a reasonable probability that, ‘absent the [deficient performance], the
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`factfinder would have [had] a reasonable doubt respecting guilt.’ ” Dennis v.
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`State, 109 So. 3d 680, 690 (Fla. 2012) (quoting Strickland, 466 U.S. at 695). “A
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`reasonable probability is a ‘probability sufficient to undermine confidence in the
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`outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).
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`“Because both prongs of Strickland present mixed questions of law and fact,
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`this Court employs a mixed standard of review, deferring to the trial court’s factual
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`findings that are supported by competent, substantial evidence, but reviewing the
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`trial court’s legal conclusions de novo.” Dennis, 109 So. 3d at 690.
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`On direct appeal, “Serrano allege[d] that the State improperly called Serrano
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`diabolical and a liar during closing arguments.” Serrano, 64 So. 3d at 111.
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`Serrano also alleged on direct appeal “that the State improperly shifted the burden
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`of proof by stating the following during closing arguments: (1) ‘You can’t come
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`up with any other theory that fits that anybody else would have done it;’ (2) ‘He
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`talks about this being a professional hit. There is no evidence. There is no
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`evidence that these crimes are any kind of professional hit.’ ” Id. This Court
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`rejected both claims, explaining that they were not preserved for appellate review
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`by contemporaneous objections. Id. Additionally, with both claims, this Court
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`concluded that, if there was error, the error did not constitute fundamental error.
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`Id. Therefore, “[b]ecause [Serrano] could not show the comments were
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`fundamental error on direct appeal, he likewise cannot show that trial counsel’s
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`failure to object to the comments resulted in prejudice sufficient to undermine the
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`outcome of the case under the prejudice prong of the Strickland test.” Chandler v.
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`State, 848 So. 2d 1031, 1046 (Fla. 2003); see also Thompson v. State, 759 So. 2d
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`650, 664 (Fla. 2000) (“Because none of these prosecutorial comments would have
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`constituted reversible error had they been objected to at trial, we affirm the trial
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`court ruling summarily denying this claim.”).
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`Regarding the State’s discussion of the presumption of innocence during
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`closing argument, Serrano also cannot demonstrate prejudice. Even if the State’s
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`brief discussion was erroneous, the jury was properly instructed about the
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`presumption of innocence by the trial judge. And the trial judge instructed the jury
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`that it must follow the law as set out in the jury instructions. Moreover, as the
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`postconviction court explained in its order denying relief, the State’s comments
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`when read in their entirety appear to be an attempt to argue that the State had met
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`its burden of proof in the case through the presentation of evidence. Cf. Taylor v.
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`State, 62 So. 3d at 1113 (concluding that comments “the presumption of innocence
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`does not leave the defendant until evidence has been presented that wipes away
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`that presumption” and that “[t]here is no longer a presumption of innocence as
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`evidence has been presented” were not improper but were an attempt to state the
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`belief that the State satisfied the burden of proof). As a result, there is not a
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`reasonable probability of a different result. In other words, our confidence in the
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`outcome is not undermined.
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