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FLORIDA COLLEGE OF
ADVANCED JUDICIAL STUDIES
CONDUCTING THE PENALTY PHASE OF A CAPITAL CASE
O. H. Eaton, Jr.
Eighteenth Judicial Circuit of Florida
Includes selected cases through March 31, 2005
TABLE OF CONTENTS
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Florida Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Georgia Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Texas Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Understanding the Three Death Penalty Schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Ring and the "Flight to Apprendi-Land" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Impact of Ring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Retroactive Effect of Supreme Court Cases Under
the Analysis of Teague v. Lane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Federal Death Penalty Act (FDPA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
IS THE DEFENDANT INELIGIBLE TO BE SENTENCED
TO DEATH ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Age of the Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
The Enmund/Tison Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Defendant is Mentally Retarded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The More Culpable Codefendant Received a Life Sentence . . . . . . . . . . . . . . . . . . . 20
No Aggravating Factors are Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The State Does Not Seek the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
DEATH IS DIFFERENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Higher (Sometimes Called "Super") Due Process Standards . . . . . . . . . . . . . . . . . . 22
Different Evidentiary Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Intense and Multiple Scrutiny of the Court's Rulings
and Counsel's Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Opening Statements and Closing Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SUBSTANTIVE AND PROCEDURAL MATTERS . . . . . . . . . . . . . . . . . . . . . . 28
Right to Jury Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Waiver of Jury Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Use of Shackles and Restraints on the Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
JUDGE'S PRELIMINARY COMMENTS TO THE JURY . . . . . . . . . . . . . . . . 32
OPENING STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
STATE'S EVIDENCE IN SUPPORT OF THE DEATH PENALTY . . . . . . . . 32
Aggravating Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Prior Violent Felony or Under Sentence of Imprisonment . . . . . . . . . . . . . . . . . . . . 34
Previous Conviction of Capital or Violent Felony . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Great Risk to Many Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Felony Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Avoiding Arrest or Escaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Pecuniary Gain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Disrupt or Hinder Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Heinous, Atrocious, or Cruel (HAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Cold, Calculated, and Premeditated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Victim a Law Enforcement Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Victim a Public Official . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Victim Less Than 12 Years of Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Victim Particularly Vulnerable Due to Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Defendant a Member of a Street Gang . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Proof Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Victim-Impact Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
DEFENDANT'S EVIDENCE IN SUPPORT OF A
LIFE SENTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Statutory Mitigating Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
No Significant Prior Criminal History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Extreme Mental or Emotional Disturbance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Victim Participated or Consented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Victim was an Accomplice or Minor Participation by Defendant . . . . . . . . . . . . . . . 65
Defendant Under Extreme Duress or Domination by Another . . . . . . . . . . . . . . . . . 66
Capacity to Appreciate Conduct Substantially Impaired . . . . . . . . . . . . . . . . . . . . . . 66
Age of the Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Other Statutory Mitigating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
NONSTATUTORY MITIGATING CIRCUMSTANCES . . . . . . . . . . . . . . . . . . 72
Defendant's Remorse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Defendant's Potential for Rehabilitation (Lack of Future Dangerousness) . . . . . . . . 73
Sentence of Codefendant to Life or Some Lesser Term . . . . . . . . . . . . . . . . . . . . . . 74
Good Jail Conduct Including Conduct on Death Row . . . . . . . . . . . . . . . . . . . . . . . . 74
Voluntary Confession/Cooperation with Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Defendant's Lack of Intent to Kill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
The Length of the Defendant's Potential Mandatory Sentence . . . . . . . . . . . . . . . . . 80
The Defendant has the Support of Friends and Family . . . . . . . . . . . . . . . . . . . . . . . 80
The Defendant has Artistic Ability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
CIRCUMSTANCES NOT CONSIDERED MITIGATING . . . . . . . . . . . . . . . . 81
Residual or Lingering Doubt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Extraneous Emotional Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Descriptions of Executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Evidence of the Church's Opposition to the Death Penalty . . . . . . . . . . . . . . . . . . . . 86
Evidence that the Death Penalty is not a Deterrent; Cost of Executions
Compared to Cost of Imprisonment; Offer of Life Sentence for
Guilty Plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Testimony of Relatives of the Victim Requesting the Death Penalty Not
be Imposed; Testimony the Victim was Opposed to the Death Penalty . . . . . . . . . . 86
Miscellaneous - Unusual Facts of the Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
PROOF PROBLEMS WITH MITIGATING CIRCUMSTANCES . . . . . . . . . . 87
Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Expert Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Irrelevant Mitigating Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Weight to be Given to Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Hearsay Allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Discovery Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
THE DEFENDANT WHO WANTS THE DEATH PENALTY
OR INSISTS THAT NO MITIGATION BE PRESENTED . . . . . . . . . . . . . . . . 89
THE DEFENDANT WHO WANTS TO DISMISS DEFENSE
COUNSEL AFTER THE GUILTY PHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
CLOSING ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Appropriate Argument by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Inappropriate Argument by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Denigration of the Role of the Jury Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Arguing Aggravating Factors not Listed in the Statute . . . . . . . . . . . . . . . . . . . . . . . 94
Arguing the Deterrent Effect of the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Send a Message to the Community/ "Conscience of the Community"
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Personal Opinions, Expertise, or Selective Requests of the Prosecutor
as to Which Cases Deserve the Death Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Calling the Defendant a Liar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Arguments that Appeal to Sympathy, Emotions, or Fear . . . . . . . . . . . . . . . . . . . . . 95
Life is not Life Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Arguing that the Jury must Return a Recommendation of Death
if the Aggravating Circumstances Outweigh the Mitigating
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Cost of Life Imprisonment vs. Death Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Religious Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Show the Defendant No Mercy Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
The Golden Rule Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Argument that Prosecutor has Evidence not Produced . . . . . . . . . . . . . . . . . . . . . . . 98
Arguing Facts not in Evidence (Except Facts Within
Common Knowledge) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Appropriate Argument by the Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Inappropriate Argument by the Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Arguments Designed to Set Up Ineffective Assistance . . . . . . . . . . . . . . . . . . . . . . . 99
Residual or Lingering Doubt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Arguing the Aggravating Circumstances Laundry List . . . . . . . . . . . . . . . . . . . . . . 100
Compare the Defendant to Worse Killers Argument . . . . . . . . . . . . . . . . . . . . . . . . 100
JURY INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Caldwell Problem - Denigrating the Role of the Jury . . . . . . . . . . . . . . . . . . . . . . . 101
Shifting the Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Define Vague Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Aggravating and Mitigating Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Anti-Sympathy Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Jury Pardons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Term of a Life Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Victim-Impact Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
JUDGE'S ROLE AFTER RECEIVING THE JURY'S
RECOMMENDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Conduct a Spencer Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Sentencing Memoranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Trial Judge Must Personally Prepare the Sentencing Order . . . . . . . . . . . . . . . . . . 107
Weight to be Given to Jury Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Weight to be Given to Aggravating and Mitigating Circumstances . . . . . . . . . . . . 110
The Written Order Must be Prepared Prior to and Filed
Contemporaneous with the Oral Pronouncement of the
Death Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Set the Sentencing Date after the Spencer Hearing . . . . . . . . . . . . . . . . . . . . . . . . . 113
Content of the Sentencing Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
RESENTENCINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
State v. Chandler - Sentencing Order
APPENDIX B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
State v. Franqui - Sentencing Order
APPENDIX C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
State v. Gonzalez - Sentencing Order
APPENDIX D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
State v. Lynch - Sentencing Order
These materials were originally authored by Judge Susan Schaeffer of St. Petersburg,
Florida. Judge Schaeffer taught the Penalty Phase portion of the Handling Capital Cases course
at the Florida College of Advanced Judicial Studies and the National Judicial College, University
of Nevada, Reno, for several years. I have been privileged to take her place at both institutions.
I am indebted to Judge Schaeffer for the format and organization of these materials.
However, the materials have been substantially edited, updated, and expanded over the past
several years to bring them current and include more materials. My goal is to turn what was
really an outline into a source book for Florida judges and lawyers to use as a ready reference.
These materials are not the last word on this important subject. They are at best a bench
book that can be used as a starting point by judges assigned to a capital case. The law in capital
litigation is constantly changing. Both state and federal courts review these cases regularly and it
is not unusual for the law to change during the pendency of a capital case. Accordingly, judges
assigned to these cases need to be ever mindful of the need to keep current on state and federal
decisions in their jurisdictions and elsewhere.
These materials are periodically updated. The updates, the materials used at the National
Judicial College, and other materials on the subject of the trial of capital cases can be found on
the Internet at jud18.flcourts.org/18th_stuff/seminole/eaton/index.html
This year I have been fortunate to have editing assistance from Mary Jean Hinson of the
Commission on Capital Cases in Tallahassee. The result is a much better product. I have also
had the assistance of Yalena Antropova, Laurie-Ann Sharpe, and Jennifer Morris, who are law
students at Stetson University, College of Law. The students made a substantial contribution to
the improvements of the citations contained in the footnotes. These materials have grown
significantly over the last few years and the assistance I received this year made these materials
much more useful.
Comments, criticisms, and suggestions on how to improve these materials are most welcome.
O. H. Eaton, Jr.
101 Bush Boulevard
Sanford, Florida 32773
March 31, 2005
Thirty-eight states have capital punishment as a possible penalty for the most serious
homicides. All of them have some sort of post-verdict hearing to determine whether the death
penalty should be imposed. These hearings are sometimes referred to as the "penalty phase" or
There must be a finding (verdict) of guilt by the Court or jury before the penalty is considered
in a capital case. While the procedure used to determine the penalty differs from state to state,
arriving at that decision is the most difficult task presented to a judge or jury. And, due to the
finality and severity of the death penalty, there is no decision that will receive more judicial scrutiny.
Judicial review will take place in both state and federal courts, and it is not unusual for these courts
to review a single case a number of times. More death penalty cases are reversed in the United
States than any other type of case in criminal law.
For instance, nationally, only about 23 percent of these appeals were affirmed as to judgment
and sentence in 1998 and 1999. In 2000, the Supreme Court of Florida reversed 42 percent of the
death penalty cases it decided on plenary appeal. The statistics for 2001 improved. Twenty-two
plenary appeals were decided in 2001. Of that number, 63 percent were affirmed. From 2002
through 2004 the percentage of cases affirmed on direct appeal has been between 79 percent and 80
It is not possible to pin point the reason or reasons for the improved statistics involving death
penalty appeals in Florida in the past few years because of the many variables involved. These
variables include the county in which the murder occurred, the facts of the particular cases,
developments in the law and changes in judicial personnel on the Supreme Court. However, the
Supreme Court of Florida has required trial judges to attend intense continuing judicial education
programs involving the trial of capital cases since Rule 2.050(b)(10) was enacted in 1997 and this
requirement may account for some of the improvement.
There are three basic schemes used to impose the death penalty in the United States. Each
state has its own variations, but these schemes can be categorized as the Florida scheme,2 the
Georgia scheme,3 and the Texas scheme.4 Every state follows one of these schemes.
THE FLORIDA SCHEME
Florida was the first state to reenact the death penalty after the dust settled from the
constitutional crisis caused by the United States Supreme Court in Furman v. Georgia.5
Three states, Alabama, Delaware and Florida, follow the Florida scheme. Indiana was a
Florida-scheme state, but the Indiana Legislature rewrote that state's statute to make Indiana a
Georgia-scheme state in 2002.6 The Florida scheme requires the jury to unanimously find a
defendant guilty of first degree murder. Then, the same jury (unless the defendant waives a jury)
hears evidence to establish statutory aggravating factors and statutory or nonstatutory mitigating
circumstances. The aggravating factors must be established beyond a reasonable doubt. The fact-
1Data provided by the Office of the State Courts Administrator.
2FLA. STAT. 921. 141 (2004).
3GA. CODE ANN. '' 10, -17, -30 et seq.
4Vernon's Ann. Texas C.C.P. Art. 37-3071.
5Furman v. Ga., 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
6IN ST 35-50-2-9 (2002).
finder must only be "reasonably convinced" as to the existence of mitigating factors. While the jury
is not required to recommend the death penalty in any case, if the jury finds one or more aggravating
circumstances, and determines these circumstances sufficient to recommend the death penalty, it
must determine whether sufficient mitigating circumstances exist that outweigh the aggravating
circumstances. Based upon these considerations, the jury then recommends whether the defendant
should be sentenced to life imprisonment or death. A simple majority of the jury is necessary for the
recommendation to be for the death penalty. Florida and Delaware are the only states that allow the
jury to recommend the death penalty by simple majority.7 Alabama requires at least 10 jurors to
recommend the death penalty.8 Most states require unanimity. With rare exceptions, the judge must
give the jury recommendation "great weight," but the final decision as to the penalty is made by the
judge. After the jury renders its recommendation, the judge must give both sides an opportunity to
present additional evidence or argument. A comprehensive sentencing order, complete with findings
and conclusions of law, is required if the death penalty is imposed.
THE GEORGIA SCHEME
The Georgia scheme is similar to the Florida scheme.9 The two schemes differ in that the
prosecutor is not limited to presentation of evidence establishing statutory aggravating factors. After
one statutory aggravating factor has been established, the prosecutor may present all relevant
evidence of aggravation. The jury must state in its verdict the aggravating factors found beyond a
reasonable doubt and, if the death penalty is unanimously recommended, the Court must impose the
death penalty. The fact that the jury determines the sentence instead of the judge is another
difference between the Florida and Georgia schemes.
THE TEXAS SCHEME
The Texas scheme has a different approach than the Florida and Georgia schemes.10 In
Texas, the jury is required to answer three interrogatories. The interrogatories must be answered
either "yes" or "no." The first two interrogatories must be answered "yes" unanimously or "no" by
a vote of at least ten to two. The last interrogatory must be answered "no" unanimously or "yes" by
a vote of at least ten to two. The interrogatories are as follows:
1. Whether there is a probability that the defendant would commit criminal acts of violence
that would constitute a continuing threat to society?
2. Whether the defendant actually caused the death of the deceased or did not actually cause
the death of the deceased but intended to kill the deceased or another or anticipated that
a human life would be taken?
3. Whether, taking into consideration all of the evidence, including the circumstances of the
offense, the defendant's character and background, and the personal moral culpability of
the defendant, there is a sufficient mitigating circumstance or circumstances to warrant
that a sentence of life imprisonment rather than a death sentence be imposed?
Texas is the only state that uses the Texas scheme.
7DE ST TI 11 sec. 4209.
8AL ST sec 13A-5-45.
9GA. CODE ANN. § 10, -17, -30 et seq.
10Vernon's Ann. Texas C.C.P. Art. 37.071.
These three schemes were originally approved on Eighth and Fourteenth Amendment
grounds by the U.S. Supreme Court in the 1976 trilogy of cases: Gregg v. Georgia, Proffitt v.
Florida, and Jurek v. Texas.11
UNDERSTANDING THE THREE DEATH PENALTY SCHEMES
The Eighth and Fourteenth Amendments to the United States Constitution require the judge
or jury not be precluded from considering any aspect of the defendant's character or record and any
of the circumstances of the offense that the defendant proffers as a mitigating circumstance as a basis
for a sentence less than death.12 The judge must instruct the jury that mitigating factors may not be
limited by statute.13
The Supreme Court of Florida and the federal courts regularly render decisions involving
death penalty cases. The decisions have an effect on the way these cases are tried. Some of the
decisions invoke major changes in procedure.14 Others affect a broad category of cases on
constitutional grounds, such as an Eighth Amendment ban on the execution of the mentally retarded
or juveniles.15 Still others substantially affect the way capital cases are tried.16 Trial judges assigned
to capital cases must be familiar with the latest decisions in order to keep up with the changes that
Federal decisions do not always apply to Florida cases. Cases involving Texas or any of the
numerous Georgia-scheme states may not affect the law in Florida. Additionally, it is important to
remember it is not unusual for a state legislature to enact variations that differ from the general
scheme that state has chosen to follow. For instance, two Florida-scheme states, Alabama and
Delaware, allow nonstatutory aggravating circumstances to be presented to the jury. Cases from
other states must be read carefully.
The United States Supreme Court has rendered a number of decisions that add both
substantive and procedural requirements to death penalty cases. For instance, the sentencing court
cannot be given unbridled discretion to impose the death penalty,17 nor can the sentencing court be
11Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v.
Texas, 428 U.S. 262 (1976).
12Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982).
13Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).
14Spencer v. State, 615 So. 2d 688 (Fla. 1993). (Separate hearing required before the judge for
additional matters to be presented.)
15Atkins v. Va, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (mental retardation);
Roper v. Simmons, 125 S. Ct. 1183 (2005) (Juveniles).
16Ring v. Ariz, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). (aggravating
circumstances must be determined by the jury and established beyond a reasonable doubt).
17Furman, 408 U.S. at 285.
given no discretion.18 The death penalty cannot be imposed for "ordinary" murder,19 for the rape of
an adult woman,20 or for a felony murder unless the defendant possessed a sufficiently culpable state
of mind.21 Additionally, the Supreme Court has prohibited the execution of an insane person,22 a
person who is mentally retarded,23 or a juvenile who is under the age of 18 years.24 The Supreme
Court has also required the sentencing court to consider all mitigating circumstances.25 Recently,
the United States Supreme Court held in Ring v. Arizona, that the decision in Apprendi v. New
Jersey,26 applies to capital cases (other than fact of prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven
beyond a reasonable doubt). This decision has had far-reaching effects on states that allow a judge
or a panel of judges (Arizona, Colorado, Nebraska, Nevada) to determine the existence of
aggravating factors. The decision may ultimately be the undoing of the Florida scheme and deserves
RING AND THE "FLIGHT TO APPRENDI-LAND"27
The original trilogy of cases that approved the new capital punishment schemes, Gregg v.
Georgia, Proffitt v. Florida, and Jurek v. Texas,28 were all decided on strictly Eighth and Fourteenth
Amendment grounds. All three cases held that capital punishment is not cruel and unusual for
Eighth Amendment purposes and the procedures devised under the three schemes passed
Constitutional muster under the due-process provision of the Fourteenth Amendment. There was
no Sixth Amendment (right to jury trial) claim presented in Proffitt and, since the jury determines
the sentence under the Georgia and Texas schemes, there was no Sixth Amendment challenge in
Gregg or Jurek.
The United States Supreme Court did consider Sixth Amendment challenges to the Florida
18Woodson v. N. C., 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); Sumner v. Shuman,
483 U.S. 66, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987).
19Godfrey v. Ga, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).
20Coker v. Ga, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).
21Enmund v. Fla, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982).
22Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986).
23Atkins, 536 U.S. at 321. .
24Roper, 125 S. Ct. at 1196.
25Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).
26Ring, 536 U.S. at 584; Apprendi v. N.J., 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
27This curious phrase was coined by Justice Scalia in his concurring opinion in Ring v. Arizona.
28Gregg, 428 U.S. at 169; Proffitt, 428 U.S. at 247; Jurek, 428 U.S. at 268.
scheme in Spaziano v. Florida,29 and in Hildwin v. Florida.30
In Spaziano, the issue presented was whether the trial judge had the power to override a jury
recommendation of life imprisonment.
In its opinion, the Court did not decide if jury sentencing is required in capital cases and only
addressed the question of whether, given a jury recommendation of life, the trial court could override
that recommendation and impose a death sentence.31
The Court recognized that a capital sentencing proceeding is very much like a trial on the
issue of guilt or innocence because of the "embarrassment, expense and ordeal . . . faced by a
defendant which are at least equivalent to that faced by any defendant in the guilt phase of a criminal
trial."32 Accordingly, the Court has held that the Double Jeopardy Clause prohibits the prosecution
from "repeated efforts to persuade a sentencer to impose the death penalty."33
However, the Court held that while the penalty phase of a capital trial may be like a trial for
double jeopardy purposes, it is not like a trial for purposes of the Sixth Amendment right to jury
trial.34 The jury override in Spaziano was approved.
In Hildwin, the issue was more focused. The per curiam opinion opens with the statement,
"This case presents us once again with the question whether the Sixth Amendment requires a jury
to specify the aggravating factors that permit the imposition of capital punishment in Florida."35
The Court noted that in Spaziano it had rejected the claim that a jury trial was required on
the sentencing issue of life or death. The Court stated, "If the Sixth Amendment permits a judge to
impose a sentence of death when the jury recommends life imprisonment, however, it follows that
it does not forbid the judge to make the written findings that authorize imposition of a death sentence
when the jury unanimously recommends a death sentence."36 Citing McMillan v. Pennsylvania,37
the Court reiterated the fact that findings made by a judge rather than a jury do not violate the Sixth
Amendment's guarantee of right to trial by jury. A plain reading of Spaziano and Hildwin leads to
the inescapable conclusion that the Florida scheme is constitutionally valid on Sixth, Eighth, and
Fourteenth Amendment grounds, and that a jury need take no part in determining whether to impose
a death sentence. The state of Arizona took comfort in these rulings and confidently defended its
capital punishment statute before the Court in 1990, one year after the decision in Hildwin.
29Spaziano v. Fla., 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984).
30Hildwin v. Fla, 490 U.S. 638, 109 S. Ct. 2055, 104 L. Ed. 2d 728 (1989).
31In fact, the Petitioner in Spaziano did not argue that the penalty phase of a capital case is "so
much like a trial" it is controlled by Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L.
Ed. 2d 91 (1968) which recognized the right to jury trial is applicable to the states through the
32Spaziano, 468 U.S. at 458.
33Id.; Bullington v. Mo, 451 U.S. 430, 444, 101 S. Ct. 1852, 1861, 68 L. Ed. 2d 278 (1981).
34Spaziano, 468 U.S. at 459.
35Spaziano, 490 U.S. at 638.
37McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).
Walton v. Arizona38
Until recently, the state of Arizona followed the Georgia scheme with one important variation
- - the trial judge presided over the penalty phase without a jury and made the findings determining
whether to impose the death penalty. Walton made a direct Sixth Amendment challenge to this
procedure before the Supreme Court. He lost.
First, Walden argued that every finding of fact underlying a sentencing decision must be
made by a jury and not a judge. The Court rejected that argument and, citing Clemons v.
Mississippi,39 held that the argument had been previously soundly rejected. The Court went on to
analogize the Arizona scheme with the Florida scheme. Having approved the Florida scheme in
Hildwin, the Court observed that "A Florida trial court no more has the assistance of a jury's findings
of fact with respect to sentencing issues than does a trial judge in Arizona."40
Walden also argued, unsuccessfully, that, while in Florida, aggravating circumstances are
only "sentencing considerations," in Arizona they are elements of the offense. The court rejected
this argument stating that aggravating circumstances are only "standards to guide the making of the
choice between the alternative verdicts of death or life imprisonment." The Court rejected the notion
that "a state must denominate aggravating circumstances `elements' of the offense or permit only
a jury to determine the existence of such circumstances."
After Walden, all seemed well and stable in the capital punishment arena. But a surprise
attack was looming on the far right flank.
Alamendarez-Torres v. United States
In Almendarez-Tores v. United States,41 the Court addressed the problem of enhanced penalty
due to prior conduct: a deportation. Almendarez-Tores was an illegal alien who had been previously
deported. He illegally returned to the United States and was convicted of an aggravated felony. The
statute in question allowed for an enhanced sentence due to the prior deportation. The Court ruled
that prior record or recidivism is a "sentencing factor" and not an element of the offense charged.
This seemly innocuous statement came back the next year in a different context.
Jones v. United States
In Jones v. United States,42 the court was faced with a federal statute that defined carjacking
and provided separate maximum penalties if, at the time of the crime, (1) the person was in
possession of a firearm (penalty of not more than 15 years) or (2) serious injury resulted (penalty
of not more than 25 years) or (3) death resulted (penalty of any number of years up to life.) The
Court held that the statute established three separate offenses and the facts (elements) that enhanced
the penalties had to be alleged in the indictment and proven beyond a reasonable doubt. Id., at 243,
Then came Apprendi.
38 497 U.S. 639 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990).
39494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990).
40Walton, 497 U.S. at 648.
41 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
42 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).
Apprendi v. New Jersey43
In New Jersey, the legislature decided to increase the maximum penalty for certain offenses
if they qualified as "hate crimes." Possession of a firearm for an "unlawful purpose" is a second-
degree offense punishable by "between five and 10 years."44 However, a separate statute provides
for an "extended term" of imprisonment if the trial judge finds, by a preponderance of the evidence,
that "the defendant in committing the crime acted with a purpose to intimidate an individual or group
of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity."45
The "extended term" authorized is between 10 and 20 years.
Charles C. Apprendi, Jr., was prosecuted under this statute after he admittedly fired several
.22-caliber bullets into the home of an African-American family that had recently moved into his
neighborhood. The indictment did not mention the hate crimes statute. Apprendi entered into a plea
bargain in which the State reserved the right to request the Court to impose the higher "enhanced"
sentence. Apprendi reserved the right to challenge the hate crimes sentence on the ground that it
violated the United States Constitution. The trial judge imposed a 12-year sentence--two years more
than the maximum allowed without the "enhancement."
On appeal, Apprendi argued the Due Process Clause of the United States Constitution
required that the finding of bias upon which his hate crime sentence was based had to be proved to
a jury beyond a reasonable doubt. The Appellate Division of the Superior Court of New Jersey
upheld the statute relying upon the decision of McMillan v. Pennsylvania.46 The court ruled the hate
crime enhancement was merely a "sentencing factor" rather than an element of the underlying
offense.47 The New Jersey Supreme Court affirmed. The Court reasoned that "due process only
requires the State to prove the `elements' of an offense beyond a reasonable doubt."48 The Court
stated: "The Legislature simply took one factor that has always been considered by sentencing courts
to bear on punishment and dictated the weight to be given that factor."49 There was a dissent. The
dissent believed that the case turned on two critical characteristics: (1) "a defendant's mental state
in committing the subject offense . . . necessarily involves a finding so integral to the charged offense
that it must be characterized an element thereof" and, (2) "the significantly increased sentencing
range triggered by . . . the finding of a purpose to intimidate" means that the purpose "must be
treated as a material element that must be found by a jury beyond a reasonable doubt."50
The United States Supreme Court reversed. The Court noted,
"(t)he historic link between verdict and judgment and the consistent limitation on
judges' discretion to operate within the limits of the legal penalties provided
43 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
44N.J. STAT. ANN. § 2C:39-4(a) and 2C-43-6(a)(2).
45N.J. STAT. ANN. § 2C:39-4(a), 2C-43-6(a)(2).
46McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).
47 State v. Apprendi, 698 A.2d 1265 (1997).
48State v. Apprendi, 731 A.2d 485, 492 (1999).
49 Id. at 494-495.
50Id., 731 at 498.
highlight the novelty of a legislative scheme that removes from the jury the
determination of a fact that, if found, exposes the criminal defendant to a penalty
exceeding the maximum he would receive if punished according to the facts reflected
in the jury verdict alone."
Thus, the Court held, "Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt."51 Justice Thomas filed a concurring opinion suggesting the continued validity
of Walton v. Arizona, supra, could be called into question by the Apprendi decision.
Most state courts, post-Apprendi, took the position that the decision did not pertain to capital
cases because the maximum penalty in these cases already is death and, therefore, it is unnecessary
for the jury to make findings of aggravation and mitigation beyond a reasonable doubt.52 The
Supreme Court of Florida ruled that Apprendi does not apply to the Florida scheme on numerous
occasions.53 Not long after publication of the Borchardt case, the Supreme Court accepted certiorari
in Ring v. Arizona.54 The Court also stayed executions for two Florida death-row inmates, Bottoson
Ring v. Arizona55
On November 28, 1994, Timothy Ring and two others robbed a Wells Fargo van in Glendale,
Arizona, and killed the driver. The evidence at the guilt phase of the trial failed to prove that Ring
was a major participant in the armed robbery or that he actually murdered the victim. However,
between Ring's trial and sentencing hearing, one of the codefendants accepted a second-degree plea
and agreed to cooperate with the prosecution against Ring. The codefendant testified that Ring
actually killed the victim and was the leader in the escapade. The trial judge entered the "Special
Verdict" required by Arizona law and sentenced Ring to death.
In an opinion by Justice Ginsberg, the Court noted that, under Arizona law, "a defendant
cannot be sentenced to death unless a judge makes the factual determination that a statutory
aggravating factor exists. Without that critical finding, the maximum sentence to which the
defendant is exposed is life imprisonment and not the death penalty." Accepting that proposition
to be the law in Arizona, the Court concluded, "we are persuaded that Walton, in relevant part,
cannot survive the reasoning of Apprendi."
Justice Scalia, joined by Justice Thomas, filed a concurring opinion. This opinion may be
more important than the majority opinion.
Justice Scalia would overrule Furman v. Georgia, but he does not have the votes. He agrees
with Justice Rhenquist's dissenting opinion in Garner v. Florida,56 where it was stated, "The
51Apprendi, 530 U.S. at 490.
52See Borchardt v. State, 786 A.2d 631 (Md. 2001) for an excellent review of these cases and this
53See Hurst v. State, 819 So. 2d 689 (Fla. 2002); Mills v. Moore, 786 So. 2d 532, 536-37 (Fla.
54Ring v. Ariz., 534 U.S. 1103 (2002).
55Ring v. Ariz., 536 U.S. 584 (2002).
56Garner v. Fla., 430 U.S. 349, 371, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).
prohibition of the Eighth Amendment relates to the character of the punishment, and not the process
by which it is imposed."
He is apparently of the opinion that jury verdicts finding aggravating circumstances must be
unanimous. He stated, "I believe that the fundamental meaning of the jury-trial guarantee of the
Sixth Amendment is that all facts essential to imposition of the level of punishment the defendant
receives--whether the statute calls them elements of the offense, sentencing factors or Mary Jane--
must be found by the jury beyond a reasonable doubt." Proof beyond a reasonable doubt traditionally
requires a unanimous verdict.57 The Court, in Patton, held that "(a) jury trial under the Sixth
Amendment must contain the following elements: (1) That the jury should consist of twelve men,
neither more nor less; (2) that the trial should be in the presence and under the superintendence of
a judge having power to instruct them as to the law and advise them in respect of the facts; and (3)
that the verdict should be unanimous." The Court has upheld state statutes that authorize less-than-
unanimous verdicts.58 And Patton was "abrogated" when the Court approved the six-person jury
used in Florida.59 Patton was recognized as being overruled in U. S. v. Spiegel,60 when the court
ruled that defense counsel could not later complain when he agreed to excuse a juror and proceed
with the remaining eleven. Patton is cited because Justice Sutherland's vision of the Sixth
Amendment jury is still the vision seen by most federal judges because unanimous verdicts are
required in federal courts. The validity of the less-than-unanimous verdict cases may be in doubt
Justice Scalia admitted the Sixth Amendment claim in Walton "was not put with the clarity
it obtained in Almendarez-Tores and Apprendi." However, if the issue had been "better put" at the
time Walton was decided, he still "would have approved the Arizona scheme--I would have favored
the State's freedom to develop their own capital sentencing procedures (already erroneously abridged
by Furman) over the logic of the Apprendi principle."
Since Walden, Justice Scalia says he has "acquired new wisdom." He now realizes two
things: "First, that it is impossible to identify with certainty those aggravating factors whose adoption
has been wrongfully coerced by Furman, as opposed to those that the State would have adopted in
any event." Second, "our people's traditional belief in the right of trial by jury is in perilous decline.
That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man's
going to his death because a judge found that an aggravating factor existed. We cannot preserve our
veneration for the protection of the jury in criminal cases if we render ourselves callous to the need
for that protection by regularly imposing the death penalty without it."
Finally, Justice Scalia decided to take a barb at Justice Breyer to make the most important
point of his opinion and, perhaps, the most important point in the entire case. Justice Breyer believes
the Sixth Amendment requires jury sentencing in capital cases. Justice Scalia disagrees. He stated,
Today's judgment has nothing to do with jury sentencing. What today's decision
says is that the jury must find the existence of the fact that an aggravating factor
existed. Those States that leave the ultimate life-or-death decision to the judge may
continue to do so - by requiring a prior jury finding of aggravating factor in the
57Patton v. U. S., 281 U. S. 276, 50 S. Ct.253, 74 L. Ed. 854 (1930).
58See Apodaca v. Or, 406 U.S. 404 (1972), (a 5-4 decision that involved several opinions by
some Justices who are no longer on the Court.) See also, Johnson v. La, 406 U.S. 356 (1972),
(which approved a statute that allowed a less than unanimous (9-3) verdict in criminal cases.)
59Williams v. Fla., 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (970).
60 U. S. v. Spiegel, 604 F. 2d 961 (5th Cir.1979).
sentencing phase or, more simply, by placing the aggravating-factor determination
(where it logically belongs anyway) in the guilt phase. There is really no way in
which JUSTICE BREYER can travel with the happy band that reaches today's result
unless he says yes to Apprendi. Concisely put, JUSTICE BREYER is on the wrong
flight; he should either get off before the doors close, or buy a ticket to Apprendi-
Justice Scalia believes a bifurcated trial with a penalty phase is not necessary to a capital
punishment scheme. As long as the jury finds an aggravating factor, the states are free to devise
procedures (possibly post-verdict by judge alone) to determine whether the death penalty is
appropriate. All of the aggravating factors listed in the Florida statute, except two, are developed
during the guilt phase of the trial. The exceptions are the aggravators involving the existence of a
prior felony. However, as is plainly stated in Almendarez-Tores, the fact of prior record does not
need to be submitted to the jury. The presence or absence of prior record can be considered by the
Court. Under Justice Scalia's view, matters of mitigation could be considered by the Court without
further jury involvement in determining the ultimate sentence.
The Ring decision was released on June 24, 2002. The 2002 term ended on June 30, 2002.
The stay of execution for the two Florida death-row inmates (Bottoson and King) was lifted on June
28, 2002, just before the term ended. Governor Bush signed new death warrants on July 1, 2002,
and set the first execution on July 8, 2002, a week away. On July 8, 2002, the Supreme Court of
Florida stayed the executions and set oral argument in the cases for August 21, 2002.
Ring is probably the most significant death penalty case decided by the United States
Supreme Court in 30 years.62 The decision will certainly affect the way capital cases are tried in
IMPACT OF RING
What is the impact of Ring and Apprendi on the Florida death penalty scheme? The U. S.
Supreme Court did not provide any hints. In fact, Florida's scheme was only mentioned in the
context of Walton in the Ring opinion. Proffitt v. Florida, Spaziano v. Florida, and Hildwin v.
Florida are still the law of the land, but there is no doubt the validity of the Florida death penalty
statute has been called into question. The following defects in the Florida scheme will be argued
based upon Ring and Apprendi:
(1) The penalty phase jury verdict assumes at least one aggravating factor has been found
beyond a reasonable doubt, but that finding is advisory only and not binding upon the Court.
(2) Unlike most Georgia-scheme states, the jury verdict does not contain interrogatories
requiring a unanimous finding of at least one aggravating circumstance. (In fact, in Florida,
assuming there are several available aggravating factors, seven jurors could each individually believe
a different aggravating factor exists to the exclusion of all others and recommend a death sentence.
Thus, theoretically, it is possible for only one juror in twelve to believe a particular aggravating
(3) Unlike many states, the aggravating circumstances are not required to be set forth in the
indictment. [For years, prosecutors in Florida have made a cruel game out of keeping the aggravating
factors to be relied upon secret until the last possible moment. Ruffin v. State, 397 So. 2d 277 (Fla.
61Ring, 536 U. S. at 613.
62See, Duest v. State, 855 So. 2d 33 (Fla. 2003), Anstead, J. (concurring in the result only.)
(4) The trial judge has the authority, limited as it may be, to override the jury
recommendation for life imprisonment.
Assuming Florida's death penalty statute will not pass all of the Sixth Amendment tests
required by Apprendi and Ring, what are trial judges to do, pending further direction by the United
States Supreme Court?
Some of the problems with Florida's death-penalty scheme raised by Ring and Apprendi are
substantive and not procedural. And, of course, courts "are not at liberty to add words to statutes that
were not placed there by the Legislature."63 Therefore, anticipating a Supreme Court ruling by
instructing jurors that their verdict is binding and not advisory, or their verdict must be unanimous,
is not the substantive law of this state and is error.
The Supreme Court of Florida has taken the position (less than unanimously) that since the
Florida scheme was not specifically invalidated by Ring, no problem exists. This position is a
proper course to follow under our federal system, particularly under the Supremacy Clause contained
in Article VI of the Constitution of the United States. The Supreme Court of Florida has stated,
The Supremacy Clause of the Constitution of the United States provides that
document is the Supreme Law of the Land. Upon the State courts, equally with the
courts of the Federal system, rests the obligation to guard, enforce, and protect every
right granted or secured by the Constitution of the United States, whenever those
rights are involved in any suit or proceedings before them. Consequently, it is the
duty of State Supreme Courts to follow the guidelines announced by the Supreme
Court of the United States in construing Federal Constitutional rights.64
Obviously, if the State Supreme Courts are bound by United States Supreme Court precedent,
trial courts are also bound by it.
Recently, Justice Scalia took the Supreme Court of Missouri to task for failing to follow
precedent and reminded the state courts that only the United States Supreme Court can overrule its
precedents, even when there has been a change in judicial doctrine or when the prior holding
"appears to rest on reasons rejected in some other line of decisions."65
The Ring decision was released on June 24, 2002. The 2002 term ended on June 30, 2002.
The stay of execution for Bottoson and King was lifted by the United States Supreme Court on June
28, 2002, just before the term ended. Florida's Governor signed new death warrants on July 1, 2002,
and set the first execution on July 8, 2002, a week away. On July 8, 2002, the Supreme Court of
Florida stayed the executions and set oral argument in the cases for August 21, 2002.
Justice Wells, in his dissenting opinions to the orders staying the executions, pointed out the
likely confusion among Florida's trial judges as a result of the stay. He was concerned trial judges
would be left with the impression the Ring case has affected the Supreme Court's prior rulings
upholding the Florida death penalty statute. He pointed out Ring did not disturb the 25 years of
63Hayes v. State, 750 So. 2d 1, 4 (Fla.1999).
64State v. Dixon, 283 So. 2d 1, 24 (Fla. 1973) [citing Irvin v. Dowd, 359 U.S. 394, 79 S. Ct. 825,
3 L. Ed. 2d 900(1959); Smith v. O'Grady, 312 U.S. 329, 61 S. Ct. 572, 85 L.Ed.859 (1941);
United States v. Bank of New York and Trust Company, 296 U.S. 463, 56 S. Ct. 343, 80 L.Ed.
331 (1936); Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L.Ed. 791 (1935)].
65Roper v. Simmons, 2005 WL 464890 (March 1, 2005) at p. 35.
precedent in those cases.66 His concerns proved to be justified because there was some confusion
about the application of Ring to Florida procedure. But Proffitt v. Florida, Spaziano v. Florida, and
Hildwin v. Florida, have not been overturned by the United States Supreme Court and, the Supreme
Court of Florida has not determined the Florida capital punishment scheme is invalid on independent
grounds under the Constitution of the State of Florida. Unless and until a different ruling comes
from Tallahassee or Washington, D.C., the sworn duty of a trial judge is to follow precedent.67
The justices released their opinions on the cases on October 24, 2002.68 The seven justices
issued eight opinions.
All of the justices agreed that the Supreme Court of Florida is bound by principles of stare
decisis to deny relief to Bottoson and King. The United States Supreme Court declined to intervene,
and they were subsequently executed.
RETROACTIVE EFFECT OF SUPREME COURT CASES UNDER THE
ANALYSIS OF TEAGUE v.LANE
Some lawyers and legal scholars believe that, because the United States Supreme Court lifted
the stay in those cases and allowed the executions, there was a signal that the Court approved of the
Florida scheme. They are mistaken. Both Bottoson and King were on certiorari from postconviction
relief proceedings. The United States Supreme Court has held that, with rare exceptions, decisions
making constitutional changes in procedure will be applied retroactively only to cases on direct
review and not on collateral review.69 The reasons for this policy are not readily apparent and
deserve further discussion.
Teague, a black man, was convicted in Illinois by an all-white jury and his conviction was
affirmed on appeal. He sought collateral review complaining the jury was not composed of a fair
cross section of the community. He was convicted before Batson v. Kentucky70 was decided, and
he sought that case to be applied retroactively to his case.
The United States Supreme Court noted it had often applied a new constitutional rule of
criminal procedure to the defendant in the case announcing the new rule. The question of whether
the new rule should be applied retroactively was left for the next case. The Court decided that
"retroactivity is properly treated as a threshold question, for, once a new rule is applied to the
defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively
to all who are similarly situated."71
66Bottoson v. Moore, 824 So. 2d 115 (Fla. 2002), Wells, J., dissenting.
67There has been some movement to try to correct some of the perceived problems with the
Florida scheme by trial judges who are now requiring interrogatory verdicts for the penalty phase
that include the number of jurors finding each aggravating and mitigating circumstance. See,
Huggins v. State, 889 So. 2d 743, 776-777 (Fla. 2004) (Pariente, J., dissenting). This movement,
while commendable, is unlikely to correct the constitutional deficiencies in the Florida scheme.
Of course, this is just the author's opinion.
68Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002); King v. Moore, 831 So. 2d 143 (Fla. 2002).
69Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
70Batson v. Ky., 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Batson stands for the
proposition that potential jurors cannot be peremptorily challenged on account of their race.
71Teague, 489 U.S. at 300.
The Court admitted it is difficult to determine when a case announces a new rule and no
attempt was made to "define the spectrum of what may or may not constitute a new rule for
retroactivity purposes." The Court then went on to explain, "In general, however, a case announces
a new rule when it breaks new ground or imposes a new obligation on the States or the Federal
Government." "To put it differently, a case announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became final."72
The Court adopted Justice Harland's view that new rules should always be applied
retroactively to cases on direct review, but that, generally, they should not be applied retroactively
to criminal cases on collateral review. This policy is justified on several grounds:
(1) "(F)ailure to apply a newly declared constitutional rule to criminal cases pending on
direct review violates basic norms of constitutional adjudication." There are two reasons for that:
a. The Court can only promulgate new rules in specific cases and cannot possibly decide
all cases in which review is sought. Accordingly, "the integrity of judicial review" requires the
application of the new rule to "all similar cases pending on direct review."
b. Selective application of new rules violates the principle of treating similarly situated
defendants the same.
(2) Habeas Corpus has always been a collateral remedy not designed to be used as a
substitute for direct review. "The interest in leaving concluded litigation in a state of repose, that
is, reducing the controversy to a final judgment not subject to further judicial revision, may quite
legitimately be found by those responsible for defining the scope of the writ to outweigh in some,
many, or most instances the competing interest in readjudicating convictions according to all legal
standards in effect when a habeas petition is filed."
(3) Given the "broad scope" of constitutional issues reviewable on Habeas Corpus, "it is
sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a
conviction became final than it is to seek to dispose of habeas cases on the basis of intervening
changes in constitutional interpretation." This is so because "the threat of habeas serves as a
necessary additional incentive for trial and appellate courts throughout the land to conduct their
proceedings in a manner consistent with established constitutional standards. In order to perform
this deterrence function, . . . the habeas court need only to apply the constitutional standards that
prevailed at the time the original proceedings took place."
(4) "The costs imposed upon the States by retroactive application of new rules of
constitutional law on habeas corpus . . . generally outweighs the benefits of this application."
(5) State courts are understandably frustrated when they faithfully apply existing
constitutional law only to have a federal court discover, during habeas proceeding, a new
The Court adopted Justice Harland's view that there exists only two exceptions to the rule.
First, a new rule should be applied retroactively on habeas if it places "certain kinds of primary,
private individual conduct beyond the power of the criminal law-making authority to proscribe."
Second, a new rule should be applied retroactively if it requires the observance of "those procedures
that . . . are implicit in the concept of ordered liberty." This second exception involves bedrock
procedural elements, e.g., the right to counsel, necessary to obtain a valid conviction. This exception
is also illustrated by recalling the classic grounds for habeas relief: "that the proceeding was
dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that
the conviction was based upon a confession extorted from the defendant by brutal methods." Teague
will foreclose relief to death-row inmates like Bottoson and King whose cases are in postconviction
relief or in federal habeas proceedings because the United States Supreme Court has ruled that Ring
72Id. at 301.
is not retroactive under the Teague analysis.73
However, blindly following the precedent in Spaziano and Hildwin is not the only approach
courts are taking in applying Ring. The Supreme Court of Nevada invalidated the part of that state's
death penalty statute that allowed a three-judge panel to find the aggravating circumstances in the
event the jury was unable to reach a unanimous penalty decision.74
The Supreme Courts of Colorado and Nebraska followed Nevada's lead. In the case of Wolt
v. People,75 the Colorado Supreme Court declared the Colorado statute requiring a three-judge panel
to find the facts to establish aggravating circumstances to be unconstitutional under the Ring
decision.76 The Nebraska Supreme Court issued a similar ruling.77 However, the legislature
amended Nebraska's death penalty statute in anticipation of the ruling. The Nebraska Supreme
Court ruled the amendment to be procedural and remanded the case for a new penalty phase under
the new statute. Of course, these western states are Georgia-scheme states and Spaziano and Hildwin
do not apply to them.
Some of the justices (a slim majority) on the Supreme Court of Florida have taken the view
that, so long as "past record" or some aggravating circumstance inherent in the guilt phase verdict
is present, Ring does not apply.78 Justice Shaw was one of those justices, and he is no longer on the
Court. This approach ignores several real problems, including the fact that the jury recommendation
does not have to be unanimous, the statutory scheme is not set up that way and the trial judge still
finds the existence of other aggravating circumstances without assistance from the jury. In one
recent case, the only aggravating circumstance involved was heinous, atrocious and cruel (HAC).79
Justice Pariente pointed out that the jury did not make a specific finding of the existence of that
aggravating circumstance and expressed her concern.
There have been other assaults on death penalty procedures that have thus far met with no
73Schriro v. Summerlin, U.S. , 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). [Justice Scalia is
of the opinion there never has been an exception that would survive Teague analysis. He stated,
"This class of rules is extremely narrow and `it is unlikely that any . . . ha(s) yet to emerge.'"
Tyler v. Cain, 533 U.S. 656, 667, n.7, 121 S. Ct.2478, 150 L. Ed. 2d 632 (2001) (quoting Sawyer
v. Smith, 497 U.S. 227, 243, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990)).]
74Johnson v. State, 59 P.3d 450 (Nev. 2002).
75Woldt v. People, 64 P.3d 256 (Colo. 2003).
76Interestingly, the Colorado statute provided that life imprisonment should be imposed in the
event the Colorado death penalty scheme was declared unconstitutional. The Supreme Court of
Colorado declined to order new sentencing hearings because "we would have to (1) ignore the
mandatory provision of section 18-1.3-401(5) directing resentencing to life imprisonment
without the possibility of parole, in the event the death penalty statute is held unconstitutional."
Florida Statute 775.082(2) provides as follows: "In the event the death penalty in a capital felony
is held to be unconstitutional by the Supreme Court of Florida or the United States Supreme
Court, the court having jurisdiction over a person previously sentenced to death for a capital
felony shall cause such person to be brought before the court, and the court shall sentence such
person to life imprisonment as provided in subsection (1)."
77State v. Gales, 658 N.W.2d 604 (Neb. 2003).
78Duest, 855 So. 2d at 49 (Fla. 2000).
79Butler v. State, 842 So. 2d 817 (Fla. 2003).
success. Two Federal District Court cases have recently found fault with the Federal Death Penalty
THE FEDERAL DEATH PENALTY ACT (FDPA)
The FDPA is basically a Georgia-scheme statute. It provides that the prosecution must notify
the defendant "a reasonable time before trial or before acceptance by the Court of a plea of guilty"
that it intends to seek the death penalty. The notice must contain all of the aggravating factors the
prosecution intends to prove to justify the death sentence. The jury, in a separate sentencing hearing,
must make three separate determinations. First, the jury must find beyond a reasonable doubt that
the defendant acted with one of four mental culpability factors, ranging from an intentional killing
to intentionally engaging in violence "knowing that the act created a grave risk of death," with the
victim's death as a direct result. Next, the jury must consider whether the existence of at least one
statutory aggravating factor has been proven beyond a reasonable doubt. Third, the jury must
consider whether all the aggravating factors, both statutory and nonstatutory, found to exist outweigh
all mitigating factors beyond a reasonable doubt. The jury's finding must be unanimous. Mitigating
factors may be proven by a preponderance of the information and may be found by just one or more
members of the jury. Information relevant to the sentence, including any mitigating or aggravating
factors, "is admissible regardless of its admissibility under the rules governing admission of evidence
at criminal trials except that information may be excluded if its probative value is outweighed by the
danger of creating unfair prejudice, confusing the issues or misleading the jury." Both the
Government and the defendant have an opportunity to rebut any information and present argument
as to the sentence.80
United States v. Fell81
Fell challenged the constitutionality of the FDPA on two grounds--failure of the FDPA to
require aggravating circumstances to be submitted to the Grand Jury and included in the indictment
upon probable cause and failure of the FDPA to comply with the requirements of Sixth Amendment
due process by allowing otherwise inadmissible evidence (hearsay) to be considered in determining
whether an aggravating circumstance has been proven beyond a reasonable doubt.
In his opinion, Judge Sessions acknowledged that Ring did not discuss the question of
whether the facts to be relied upon in securing the death penalty had to be included in the indictment.
He believes "the clear implication of the decision, resting squarely as it does on Jones, is that in a
federal capital case, the Fifth Amendment right to grand jury indictment will apply." Unfortunately
for Fell, the government saw this one coming and amended the indictment.
Judge Sessions also found fault with the "relaxed evidentiary standard" included in the FDPA
during the penalty phase of the proceedings. He does not believe this standard can "withstand due
process and Sixth Amendment scrutiny, given the Supreme Court's concern for heightened reliability
and procedural safeguards in capital cases." In Fell's case, the prosecutor intended to introduce into
evidence a statement made by a deceased codefendant. This statement would not be admissible
under the Federal Rules of Evidence. In discussing the background of the Due Process Clause, Judge
"[A]s assurance against ancient evils, our country, in order to preserve 'the blessings
of liberty', wrote into its basic law the requirement, among others, that the forfeiture
of the lives . . .of people accused of crime can only follow if procedural safeguards
8018 U.S.C.A. 3591.
81217 F. Supp.2d 469 (D. Vermont 2002).
of due process have been obeyed." Chambers v. Florida, 309 U.S. 227, 237, 60 S. Ct.
472, 84 L.Ed. 716 (1940). Although the rights of an accused to confront and
cross-examine witnesses are set forth in the Sixth, not the Fifth Amendment, "[t]he
rights to confront and cross-examine witnesses . . . have long been recognized as
essential to due process." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct.
1038, 35 L. Ed. 2d 297 (1973). Indeed, "the absence of proper confrontation at trial
'calls into question the ultimate integrity of the fact-finding process.' " Ohio v.
Roberts, 448 U.S. 56, 64, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) (quoting
Chambers, 410 U.S. at 295, 93 S. Ct. 1038) (internal quotation omitted).82
Thus, he reasoned, since the text of the Sixth Amendment's Confrontation Clause refers to
"all criminal prosecutions," the rights enumerated there are not confined to trial. The Sixth
Amendment does not operate to exclude all hearsay. But, in order for hearsay to be admissible, the
proponent must demonstrate necessity (such as the unavailability of the declarant) and
trustworthiness. Since "an accomplice's confession that implicates a defendant does not fall within
a firmly rooted hearsay exception, it is presumably unreliable."83
Judge Sessions concluded his opinion as follows:
If the death penalty is to be part of our system of justice, due process of law and
the fair-trial guarantees of the Sixth Amendment require that standards and
safeguards governing the kinds of evidence juries may consider must be rigorous, and
constitutional rights and liberties scrupulously protected. To relax those standards
invites abuse, and significantly undermines the reliability of decisions to impose the
217 F.Supp.2d at 489.
The Fell case was ultimately reversed by the United States Court of Appeals for the Second
Circuit. The Court held that the relaxed standard allowing hearsay to be admitted in the penalty
phase was permissible.84
Subsequently, in Crawford v. Washington,85 the United States Supreme Court addressed the
admissibility of hearsay testimony. The Court held that the confrontation clause of the Sixth
Amendment precludes the admission of out-of-court statements that are "testimonial" in nature
unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the
witness. While the Court did not provide an inclusive list of "testimonial" statements, they include,
at a minimum, prior testimony at a preliminary hearing; testimony before a grand jury, or at a former
trial; and testimony elicited during police interrogations. The only exceptions to the rule are those
firmly rooted exceptions known to the common law when the Constitution was adopted in 1791.86
82Id. at 485-486.
83Id. at 486.
84U. S. v. Fell, 360 F.3d 135 (2d Cir. 2004); cert. den., U.S. , 125 S. Ct. 369, 160 L. Ed. 2d
85Crawford v. Wash., 531 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)
86Justice Scalia wrote the opinion for the Court and cited Professor Wigmore's 1940 edition of
his work on evidence as authority. The author found the edition cited and, after deleting
exceptions that are archaic, concluded the following statements to have been admissible in
United States v. Quinones87
The ruling in Quinones is not an attack on the death penalty from the right--it comes from
the other direction. The issue presented to Judge Rakoff was stated as follows: "[w]hether the death
penalty violate(s) due process, and is therefore unconstitutional, because, by its very nature, it cuts
off a defendant's ability to establish his actual innocence." He determined that it was. Judge
Rakoff's opinion points out some very disturbing aspects of death penalty litigation.
Judge Rakoff expressed concern about the real possibility of an innocent person being
executed. He then relied upon cases and studies that show through new technology, such as DNA
testing, that a number of defendants on death rows across the country have been proven innocent,
sometimes hours before their scheduled executions. He was unwilling to accept that considerations
of deterrence and retribution can constitutionally justify the knowing execution of innocent persons.
He pointed out several pitfalls in federal practice that can result in unreliable death sentences such
as, unlike many states, federal practice allows conviction upon the uncorroborated testimony of an
accomplice and circumstantial evidence does not have to exclude to a moral certainty other
reasonable inferences except guilt. He also noted that it is "reasonably well established that the
single most common cause of mistaken convictions is inaccurate eye-witness testimony."
He concluded that execution, "by cutting off the opportunity for exoneration, denies due
process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human
Quinones was reversed by the Second Circuit on the grounds that the FDPA does not violate
Cases such as Fell and Quinones point out the difficulties that federal trial judges have with
the reliability of judgments in capital trials. Trial judges across the country have similar concerns.
The United States Supreme Court did not mention in Crawford whether hearsay is admissible
in the penalty phase of a capital trial. Many jurisdictions require the rules of evidence to be
followed, at least by the prosecutor, during the penalty phase.90 The question of how to prove a fact
beyond a reasonable doubt with hearsay testimony is still difficult to answer. The application of
Crawford to the penalty phase will be argued in the future, and wise prosecutors will avoid using
hearsay to prove aggravating circumstances.
IS THE DEFENDANT INELIGIBLE TO BE SENTENCED TO DEATH?
evidence at common law in 1791: (1) Declarant unavailable - dying declarations, statements of
facts against interest, declarations of family history (pedigree), attestation of a subscribing
witness, entries made in the regular course of business, recitals in deeds and ancient documents
and reputation; (2) Availability of declarant immaterial - official statements in public records,
sundry exceptions such as learned treatises, reports of foreign courts, commercial price lists, etc.
and spontaneous statements.
87U. S. v. Quinones, 196 F. Supp.2d 416 (S.D.N.Y 2002.); 205 F.Supp.2d 256 (S D N Y 2002)
88205 F. Supp.2d at 268.
89U. S. v. Quinones, 313 F. 3d 49 (2d Cir. 2002).
90AR ST S 5-4-602 (Arkansas); CT ST S 53a-46a (Connecticut); LA C.Cr.P. Art. 905.2
(Louisiana); NJ ST 2C: 11-3 (New Jersey); OH ST S 2929.03 (Ohio). This list is not exhaustive.
Before beginning to prepare for the sentencing phase (and in most cases, prior to the trial
itself), there should be a determination of whether the defendant is ineligible for the death penalty
under the law of Florida or the case law of the United States Supreme Court. The Florida Rules of
Criminal Procedure provide that authority.91 If the defendant is ineligible to receive the death
penalty, there is no need to conduct a penalty phase trial. Six categories of prohibition exist in
THE AGE OF THE DEFENDANT
The United States Supreme Court has ruled that execution of juvenile offenders under the age
of 18 at the time the murder was committed violates the Eighth Amendment.92 The decision was a
5-4 decision, with Justice Kennedy writing the majority opinion. Justice Scalia wrote a well reasoned,
strongly-worded dissent for the minority.
Previously, the Court stated, in a plurality opinion, that it is unconstitutional to execute a
defendant who is 15 years old (or younger) when the murder is committed.93 However, the Court
decided it was not cruel and unusual punishment to execute a defendant who was 16 or 17 when the
murder was committed.94
In 2002, the Florida Constitution was amended to include the following provisions in Article
I, Sec. 17:
Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate,
indefinite imprisonment, and unreasonable detention of witnesses are
forbidden. The death penalty is an authorized punishment for capital crimes
designated by the legislature. The prohibition against cruel or unusual
punishment, and the prohibition against cruel and unusual punishment, shall
be construed in conformity with decisions of the United States Supreme Court
which interpret the prohibition against cruel and unusual punishment
provided in the Eighth Amendment to the United States Constitution. Any
method of execution shall be allowed, unless prohibited by the United States
Constitution. Methods of execution may be designated by the legislature, and
a change in any method of execution may be applied retroactively. A sentence
of death shall not be reduced on the basis that a method of execution is
invalid. In any case in which an execution method is declared invalid, the
death sentence shall remain in force until the sentence can be lawfully
executed by any valid method. This section shall apply retroactively.
This amendment was probably enacted to prohibit the Supreme Court of Florida from
declaring the death penalty unconstitutional as cruel or unusual punishment under the Florida
Constitution. It also has had the effect of abdicating part of state sovereignty to five justices on the
United States Supreme Court. The age, under consideration here is the chronological age of the
91 Fla. R. Crim. P. 3.910.
92Roper, 125 S. Ct. at 1196.
93Thompson v. Okla., 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1988).
94Stanford v. Ky., 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989).
defendant, not the defendant's mental or emotional age.95
THE ENMUND/TISON EXCLUSION
Enmund v. Florida,96 held that the Eighth Amendment does not permit a defendant to be
sentenced to death who aids and abets a felony (in Enmund, a robbery) in the course of which a
murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing
take place, or that lethal force be employed. Tison v. Arizona97 held that major participation in a
felony that resulted in murder, even if the defendant is not the killer, combined with defendant's
reckless indifference to human life are sufficient to satisfy the Enmund culpability requirement. For
instance, in Lugo v. State,98 a codefendant who was not "the hands-on killer" was held equally as
culpable as his codefendant. That case involved organized racketeering that started with abduction
and ended with murder.
The Supreme Court of Florida has suggested that, in an armed robbery committed by two (or
more) codefendants, where there are no eyewitnesses, the evidence is circumstantial, and the killer
is not clearly identified, the Enmund/Tison culpability requirement cannot be met.99
The United States Supreme Court has stated the Enmund/Tison decision can be made by a
jury, the trial judge, or an appellate court, even a federal habeas court.100 The Supreme Court of
Florida has held that, if an Enmund/Tison issue exists, it must be addressed in the sentencing order
with findings supporting the Enmund/Tison culpability requirement, especially if the facts of the case
make the issue at least arguable.101 But, if the trial judge is satisfied the Enmund/Tison culpability
requirement cannot be met, there is no reason to allow the death penalty to become an issue at trial.
THE DEFENDANT IS MENTALLY RETARDED
Florida Statute, sec. 921.137, prohibits the execution of a mentally retarded defendant. The
statute contains a complicated definition of "mentally retarded." More perplexing is the procedure
provided in the statute. The defendant is required to file a notice that mental retardation is going to
be relied upon as a defense to the death penalty at least 20 days prior to trial, but the issue is not set
for hearing until after the jury recommends the death sentence. The procedure provided for by the
95Alston v. State, 723 So. 2d 148 (Fla. 1998). See also, Nelson v. State, 748 So. 2d 237 (Fla.
2000) where the defendant was 18 years at the time he committed the crime, but had the
emotional maturity of a 12- or 13-year-old.
96458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982).
97481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987).
98845 So. 2d 74 (Fla. 2003).
99Jackson v. State, 575 So. 2d 181 (Fla. 1991); Benedith v. State, 717 So. 2d 472 (Fla. 1998).
Another case discussing the Enmund/Tison issue is Fernandez v. State, 730 So. 2d 277
(Fla.1999)(getaway driver who did not participate in the killing was ineligible for the death
penalty under Edmund).
100Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704 (1986).
101Benedith, 717 So. 2d at 477.
statute will result in an unnecessary waste of time and resources since the defense will have to spend
the time preparing mitigation for the penalty phase rather than focusing on the mental retardation
issue. And, doubtless, the defendant will want the penalty phase jury to hear evidence of mental
retardation as a bar to execution. Since the statute does not provide for bifurcation of the mental
retardation issue from mitigating circumstances, it would be most awkward for there to be a judicial
determination of whether the defendant is mentally retarded after the sentencing recommendation is
returned by the jury. There is no compelling reason to require this issue to be determined post-trial.
The Supreme Court of Florida had the opportunity to address the cumbersome procedure
provided by the statue and, under the Court's authority to promulgate rules of practice and procedure
in the courts, adopted a procedure that allows for the determination of mental retardation pretrial102.
The test for mental retardation in Adkins placed the ceiling of mental retardation at an I.Q. of
70. Seventy is the generally accepted ceiling throughout the country, and it is the ceiling under the
THE MORE CULPABLE CODEFENDANT RECEIVED A LIFE SENTENCE.
The Supreme Court of Florida has held that the death penalty is disproportional if it is
imposed upon a defendant who is not at least equally as culpable as the codefendant.103 Thus, the
sentence imposed on an equally or more culpable codefendant's sentence is relevant to a
proportionality analysis.104 Disparate treatment of a codefendant, however, is justified when the
defendant is the more culpable participant in the crime.105
While determining proportionality is the Supreme Court of Florida's responsibility, it is a
waste of time and resources to conduct a penalty phase hearing in an obvious case when the defendant
is less culpable than the codefendant who received a lesser sentence.106 "A trial court's determination
concerning the relative culpability of the co-perpetrators in a first-degree murder case is a finding of
102Amendments to Floridal Rules of Criminal Procedure and Florida Rules of Appellate
Procedure, 875 So. 2d 563 (Fla. 2004). See Fla. R. Crim. P. 3.203. The enactment of this rule
caused much criticism and dismay among several members of the legislature. Legislators should
stay out of the rule making arena. They have no expertise there. Determining the difference
between substantive and procedural rules is usually not a difficult task. In Schriro v. Summerlin,
U.S. , 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004) , Justice Scalia stated, "A rule is substantive
rather than procedural if it alters the range of conduct or the class of persons that the law
punishes." See Bousley, supra at 620-621, 118 S. Ct. 1604 (rule "hold[s] that a . . . statute does
not reach certain conduct" or "make[s] conduct criminal"); Saffle, supra, at 495, 110 S. Ct. 1257
(rule "decriminalize[s] a class of conduct [or] prohibit[s] the imposition of ... punishment on a
particular class of persons"). In contrast, rules that regulate only the manner of determining the
defendant's culpability are procedural. See Bousley, supra, at 620, 118 S. Ct. 1604."
103Downs v. State, 572 So. 2d 895 (Fla.1990), cert. denied, 502 U.S. 829, 112 S. Ct. 101, 116 L.
Ed. 2d 72 (1991); Slater v. State, 316 So. 2d 539 (Fla.1975).
104Cardona v. State, 641 So. 2d 361 (Fla.1994), cert. denied, 513 U.S. 1160, 115 S. Ct. 1122,
130 L. Ed. 2d 1085 (1995).
105Hayes v. State, 581 So. 2d 121 (Fla.), cert. denied, 502 U.S. 972, 112 S. Ct. 450, 116 L. Ed. 2d
468 (1991). Larzelere v. State, 676 So. 2d 394 (Fla. 1996). See also, Hazen v. State, 700 So. 2d
1207 (Fla. 1997); Evans v. State, 808 So. 2d 92 (Fla. 2002).
106Ray v. State, 755 So. 2d 604 (Fla. 2000).
fact and will be sustained on review if supported by competent substantial evidence."107
One problem that occurs fairly regularly is the situation where a codefendant is found guilty
of a lesser offense, or allowed to plea to a lesser offense as part of a plea bargain. The Supreme Court
of Florida "performs an analysis of relative culpability" to ensure that equally culpable codefendants
are treated alike and receive equal punishment.108 However, this type of analysis cannot be made
when one codefendant is found guilty of a lesser offense. The Court has stated, " . . . it is not this
Court's role to consider or re-weigh the evidence" that led to the codefendant's conviction." Instead,
the Court simply accepts the conviction of the lesser offense and determines that the codefendants are
not equally culpable.109 In other words, when a codefendant is convicted of a lesser offense, his
sentence for that offense is not relevant to the claim that the sentence is disproportionate.110
6.2.5. NO AGGRAVATING FACTORS ARE PRESENT
Florida law requires at least one aggravating factor be present before a defendant may be
sentenced to death. If it is clear no aggravating factors exist, there would appear to be no reason to
hold a penalty phase. So, if there are no aggravating factors, there will be nothing to give the jury to
consider, and there would be no need to go through the penalty phase. The death penalty is simply
impermissible without an aggravating factor.111
The Furman112 case held that the aggravating or "special" circumstances in a statute must
significantly "narrow" the class of cases that are eligible for the death penalty. And the Supreme
Court of Florida has stated that the Florida statute, with its 14 aggravating circumstances, does just
that.113 But saying it doesn't make it so. It is difficult to imagine any but the most unlikely facts that
would support a first-degree murder charge that does not have at least one aggravating circumstance.
This problem is likely to continue to be the subject of argument in the future just as in the past. In
felony murder cases, the problem is most apparent. The felony that raises the homicide from some
lesser offense to first-degree murder is automatically used to create an aggravating circumstance.114
107Sexton v. State, 775 So. 2d 923, 935 (Fla. 2000) (quoting Puccio v. State, 701 So. 2d 858, 860
(Fla. 1997); Hertz v. State, 803 So. 2d 629, 652 (Fla. 2001); White v. State, 817 So. 2d 799 (Fla.
108See, Shere v. Moore, 830 So. 2d 56, 60 (Fla. 2002).
109See, Jennings v. State, 718 So. 2d 144,153 (Fla. 1998).
110Steinhorst v. Singletary, 638 So. 2d 33,35 (Fla. 1994); Caballero v. State, 851 So. 2d 655 (Fla.
111Banda v. State, 536 So. 2d 221 (Fla. 1988); Elam v. State, 636 So. 2d 1312 (Fla. 1994).
112Furman v. Ga., 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
113Douglas v. State, 878 So. 2d 1246 (Fla. 2004).
114Albelaez v. State, 2005 WL 168570 (Jan. 27, 2005), So. 2d (Fla. 2005); Ault v. State, 866
So. 2d 674 (Fla. 2003); Walton v. State, 847 So. 2d 438 (Fla. 2003); Card v. State, 803 So. 2d
613 (Fla. 2001); Blanco v. State, 706 So. 2d 7 (Fla. 1997).
6.2.6 THE STATE DOES NOT SEEK THE DEATH PENALTY
The death penalty may not be imposed if the prosecutor does not seek it.115 If the prosecutor
does not seek the death penalty, the jury should be instructed prior to beginning voir dire in the guilt
phase as follows:
"The penalty for first-degree murder in this state is death or life imprisonment
without the possibility of parole. However, not every first degree murder case
involves the death penalty. This is one of those cases. The death penalty is not an
issue in this case."
6.3.0. DEATH IS DIFFERENT
One phrase often repeated in death penalty cases is that DEATH IS DIFFERENT. Death
penalty trials cannot be treated like every other kind of criminal trial. Judges who make this mistake
invite almost sure reversal. Consider what Justice Stewart said in his concurring opinion in Furman
. . . [T]he penalty of death differs from all other forms of criminal
punishment, not in degrees but in kind. It is unique in its total irrevocability.
It is unique in its rejection of rehabilitation of the convict as a basic purpose
of criminal justice, and it is unique, finally, in its absolute renunciation of all
that is embodied in our concept of humanity.
The principal differences in death-penalty proceedings from all others can be broken down
into three main categories:
HIGHER (SOMETIMES CALLED "SUPER") DUE PROCESS STANDARDS
Consider the case of Gardner v. Florida.117 For many years it was customary in Florida for
a judge to order a presentence investigation (PSI) prior to sentencing a defendant in many cases. It
was customary for the probation officer to include a confidential section in the PSI for the judge only.
In Gardner, the judge asked for a PSI. The customary confidential section was included in it. Neither
the state attorney nor the defense attorney requested to read the confidential section, nor was there any
evidence anything in the confidential section was used to the detriment of the defendant. However,
since death is different, the Court held the defendant was denied due process because the trial judge
read confidential material without giving the defendant and his attorney a chance to read and respond
The Supreme Court of Florida has determined that "henceforth" a hearing must be held to
determine whether to hold an evidentiary hearing and to hear legal argument relating to the motion
when a motion for postconviction relief is filed in a death case. This hearing is not required when
115Lankfield v. Idaho, 500 U.S. 110, 111 S. Ct. 1723, 114 L. Ed. 2d 173 (1990).
116408 U.S. at 306.
117430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).
such a motion is filed in any other criminal case--only a death case.118 In the Huff case, the Supreme
Court held Huff's due process rights were violated and established the above procedure because "of
the severity of punishment at issue in a death penalty postconviction case." In other words, death is
Trial judges are all familiar with the vast body of case law that holds the granting or denying
of a motion to continue rests within the sound discretion of the trial court and will not be disturbed
on appeal unless an abuse of discretion is found.119 In a regular trial, trial judges are rarely reversed
for failing to grant a continuance. But, in a death penalty trial, including the penalty phase itself,
judges are required to bend a little and be overly cautious in denying the defense a continuance,
especially if it appears the death penalty is likely. This need for caution does not mean the Court
should grant an unreasonable request. But, if the request is reasonable, and was not brought on by
the defendant's own dilatory conduct, a better practice is to allow the continuance. "Super" due
process means continuances must be allowed that would normally be denied.
For some cases discussing penalty phase continuances, see the following:
1. Scull v. State, 569 So. 2d 1251 (Fla. 1990) (resentencing defendant one day after receipt
of the mandate and three days after defense counsel returned from vacation violated due process.)
2. Espinosa v. State, 589 So. 2d 887 (Fla. 1991), rev'd on other grounds, Espinosa v.
Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992). (Refusal of trial judge to allow
defendant time and money to fly family members in for penalty phase was not an abuse of discretion
when the motion was not made until the penalty phase was scheduled to begin.)
3. Wyatt v. State, 641 So. 2d 1336 (Fla. 1994). (Defendant waived right to present witnesses
in the penalty phase of the trial when he insisted all during the trial that no witnesses were to be called
and then, on the day of the penalty phase, changed his mind, knowing the witnesses were
4. Sliney v. State, 699 So. 2d 662 (Fla. 1997). (Trial court did not abuse discretion in a capital
murder case by not allowing a continuance after defendant fired his own attorney and asked for public
defender at close of guilt phase, and by not appointing investigator to research mitigating evidence.
The penalty phase was scheduled to begin one month after appointment of counsel who had worked
on case in its earlier stages, and more than a year had passed since the indictment was filed.)
5. Manso v. State, 704 So. 2d 516 (Fla. 1997). (Abuse of discretion not to allow a
continuance for competency exam of the defendant who showed signs of being incompetent in court,
and experts who examined him believed he needed hospitalization and evaluation.)
DIFFERENT EVIDENTIARY STANDARDS
Consider the case of Green v. Georgia.120 In that case the defendant and a codefendant raped
and killed the victim. In the penalty phase of Green's trial, Green attempted to introduce a cell mate's
testimony that the codefendant told him that he killed the victim after telling Green to go on an
errand. There was nothing in Georgia's law that allowed this hearsay testimony, so the trial judge
excluded it. The Georgia Supreme Court affirmed the death sentence and Green petitioned for
certiorari, assigning as error the trial court's refusal to allow the hearsay testimony. In a short, two-
page opinion, including Justice Rehnquist's dissent, the U.S. Supreme Court reversed Green's death
118Huff v. State, 622 So. 2d 982 (Fla. 1993); Mordenti v. State, 711 So. 2d 30 (Fla. 1998); Fla. R.
Crim. P. 3.851 .
119State v. Charles, 827 So. 2d 1107 (Fla. 2002).
120442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979).
sentence. The per curiam opinion held that the hearsay testimony was relevant to Green's punishment
and stated: "In these unique circumstances, the hearsay rule may not be applied mechanistically to
defeat the ends of justice."121 There was no analysis in the opinion suggesting the testimony was not
hearsay, nor was there any suggestion that the testimony was admissible as an exception to the
hearsay rule under Georgia's rules of evidence. The Court simply found death to be different and,
therefore, fairness required the proffered testimony to be admitted. The Green decision would clearly
have been different if Green had not been sentenced to die. The strict evidentiary standards that apply
to other cases cannot be blindly followed in a penalty phase if a defendant may be sentenced to death.
INTENSE AND MULTIPLE SCRUTINY OF THE COURT'S RULINGS AND
No case will be reviewed as meticulously as a death case, or by so many courts, often more
than once per court. And it is clear that what today may be a death case may not be one tomorrow.
Consider the case of Charles William Proffitt. Proffitt broke into his victim's house in 1973. While
inside, he was surprised by the victim. Proffitt stabbed him and he died. His wife was awakened,
and she was beaten by Proffitt, although she survived. The jury recommended the death penalty, and
the trial judge sentenced Profitt to death. The Supreme Court of Florida affirmed Proffitt's death
sentence in 1975.122 In 1976, the United States Supreme Court decided Proffitt's case in the now
famous trilogy of Gregg, Proffitt, and Jurek, which upheld the three different death penalty schemes
of Georgia, Florida, and Texas.123 The following courts reviewed (or refused to review) Proffitt's case
the listed number of times:
1. Florida Circuit Court
2. Supreme Court of Florida
3. United States District Court
4. Eleventh Circuit Court of Appeals
5. United States Supreme Court
On two occasions, the Supreme Court of Florida called Proffitt's appeals from denials of his
postconviction relief motions "legally frivolous" and dismissed them. These "legally frivolous"
dismissals are interesting only because of Proffitt's last appeal to the Supreme Court of Florida. In
this last appeal in 1987, some 14 years after Proffitt's crime, the Supreme Court of Florida stated,
"[O]ur present capital sentencing law mandates that we reduce Proffitt's sentence to life imprisonment
without possibility of parole for twenty-five years."124 Thus, it can readily be seen that long delays
contribute to the reason why defense counsel file so many appeals. The passage of time and the
development of a state's body of death penalty law may make death sentences that were appropriate
when originally imposed disproportionate or otherwise inapplicable. Charles William Proffitt is a
perfect example of this. He no longer sits on Florida's death row.
The adequacy of defense counsel's representation and performance is usually reviewed in
postconviction proceedings. However, every defense counsel who undertakes a death penalty case
and loses it will find his performance scrutinized for effectiveness from Tallahassee to Washington,
121Id. at 97.
122Proffitt v. State, 315 So. 2d 461 (Fla. 1975).
123Proffitt, 428 U.S. at 260.
124Proffitt v. State, 510 So. 2d 896, 897 (Fla. 1987).
D.C. It is the trial judge's responsibility to monitor counsel's performance in the guilt phase and the
penalty phase of the trial.
OPENING STATEMENTS AND CLOSING ARGUMENTS
Opening statements and closing arguments are fertile grounds for error. For instance, in the
case of Nixon v. Crosby,125 the Supreme Court of Florida ordered a new trial after nearly 20 years of
litigation. The facts of the case were particularly disgusting. The defendant kidnapped the victim,
took her to some woods, tied her to a tree, poured gasoline on her, and burned her alive. Court-
appointed counsel had a most difficult and uncooperative client. Since the defendant had confessed
to the murder, counsel decided to use a version of Clarence Darrow's defense of Leopold and Loeb
and admitted to the jury the State would prove the facts of the murder beyond a reasonable doubt.
In this case, there will be no question that Jeannie [sic] Bickner died a horrible,
horrible death. Surely she did and that will be shown to you. In fact, that horrible
tragedy will be proved to your satisfaction beyond any reasonable doubt. In this case,
there won't be any question, none whatsoever, that my client, Joe Elton Nixon, caused
Jeannie [sic] Bickner's death. Likewise, that fact will be proved to your satisfaction
beyond any reasonable doubt. This case is about the death of Joe Elton Nixon and
whether it should occur within the next few years by electrocution or maybe its natural
expiration after a lifetime of confinement.
On postconviction relief, the Supreme Court remanded the case to the trial court after
determining that this tactic was "the functional equivalent to a guilty plea"126 and ordered a hearing
to determine if the defendant agreed to it. The Court stated,"Nixon's claim must prevail at the
evidentiary hearing below if the testimony establishes that there was not an affirmative, explicit
acceptance by Nixon of counsel's strategy. Silent acquiescence is not enough."
Furthermore, the Supreme Court warned trial judges as follows:
[W]e hold that if a trial judge ever suspects that a similar strategy is being
attempted by counsel for the defense, the judge should stop the proceedings and
question the defendant on the record as to whether or not he or she consents to
counsel's strategy. This will ensure that the defendant has in fact intelligently and
voluntarily consented to counsel's strategy of conceding guilt.127
At the hearing on remand, the defendant did not testify. In fact, apparently, he never
communicated agreement or disagreement to trial counsel on any subject.
The following discussion occurred at the hearing between postconviction counsel and
Nixon's trial counsel:
Q: Did you discuss the strategy of not contesting guilt with the defendant?
A: I thought I answered it. But if I didn't answer it, then yes, he was advised as to that, yes.
Q: And how did he respond?
125Nixon v. Crosby, 857 So. 2d 172 (Fla. 2003).
126Nixon v. Singletary, 758 So. 2d 618, 625 (Fla. 2000)(Nixon II).
A: To the best of my knowledge, again he did nothing, except after it occurred that he was
not real pleased. And I think I answered that before also.
Q: Now what do you mean by he did nothing?
A: He did nothing. I don't know. I don't know what else I can say, Mr. Evans. I have said it
The Supreme Court ordered a new trial and the State petitioned the United States Supreme
Court for certiorari.
Justice Ginsberg, writing for the Court, reversed the holding of the Supreme Court of
Florida.128 In her opinion, Justice Ginsberg observed that "when a defendant, informed by
counsel, neither consents nor objects to the course counsel describes as the most promising means
to avert a sentence of death, counsel is not automatically barred from pursuing that course."129 In
such cases, counsel must be judged by the same standard as in other ineffective assistance of
counsel claims, which is: "Did counsel's representation `fall below an objective standard of
reasonableness?'"130 Accordingly, the Supreme Court of Florida applied the wrong standard that
of a presumption of deficient performance and a presumption of prejudice, as described in United
States v. Chronic.131 The Chronic test is reserved for cases wherein counsel fails to meaningfully
oppose the prosecution's case.132 In Nixon's case, the record showed that defense counsel cross-
examined witnesses when he thought their statements needed clarification, objected to the
introduction of crime scene photographs and challenged certain jury instructions.
The Court noted that a "guilty plea cannot be inferred by silence."133 Conceding guilt in
the opening statement does not carry with it the waiver of constitutional rights as does a guilty
plea. For instance, the state was required to present evidence establishing the elements of the
offense, the right of cross-examination was preserved, and objections to evidence could be made.
Additionally, the right to appeal was preserved.
There are certain duties defense counsel have in representing a client in a death penalty
case. Defense counsel must consult with the client about "important decisions" including
"overarching defense strategy." But that obligation does not require counsel to obtain the client's
consent for "every tactical decision." The defendant has the ultimate authority (1) to plead guilty,
(2) to waive a jury, (3) to testify in his or her own behalf, and (4) to take an appeal.134 Otherwise,
counsel's performance must be governed by the Strickland standard of whether counsel's
representation fell below an objective standard of reasonableness.135
The opinion in the Nixon case gives defense counsel the authority to exercise professional
judgment in cases rather than more narrowly defining counsel's role in the defense. That does not
128Florida v. Nixon, U.S. , 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004).
129Id. at 555.
131466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).
133Id. at 559.
134Id. at 560.
135Strickland v. Wash., 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
mean counsel's performance will not be closely scrutinized when trial tactics fail. Trial judges
should be aware defense counsel's performance deserves attention and seeking the consent of the
defendant before making concessions or waivers is still preferable because it will save time in the
The Supreme Court of Florida followed its holding in Nixon in Harvey v. State.136
However, that opinion has not been released for publication, apparently because the Court was
awaiting the ruling in Florida v. Nixon.
One would think that the days of racial stereotyping and bigotry would be over in court
proceedings. That was not the case in State v. Davis.137
Davis, who was black, was represented by a white lawyer who addressed racial prejudice
during voir dire to the all-white jury panel by stating:
Now, Henry Davis is my client and he's a black man, and he's charged with
killing Joyce Ezell who was a white lady, lived in Lake Wales. Now, all of us that
are talking now, myself and all of y'all, are all white.
There is something about myself that I'd like to tell you, and then I'd like to ask
you a question. Sometimes I just don't like black people. Sometimes black people
make me mad just because they're black. And, you know, I don't like that about
myself. It makes me feel ashamed. But, you know, sometimes if this was a
thermometer of my feelings, and if you took it all the way up to the top, and this
was one, this was five, all the way up here was ten, you know, my feelings would
sometimes start to boil and I get so mad towards black people because they're
black that it might go all the way up to the top of that scale. And, you know, I'm
not proud of that and it embarrasses me to tell y'all that, to say it in public.
During final argument, counsel reminded the jury of his voir dire questioning by
Henry is a black man, Mrs. Ezell was a white woman. We are all of us white.
I'm a white southerner. You have told me and the court that you would disregard
and not base your verdict on the question of race. I will believe you, I will trust you
on that. It is hard for me to talk to you, my friends and neighbors, about something
like this. I will not believe that race will be a factor in your decision, but I will ask
you to be especially vigilant, because being a white southerner, I know where I
come from. And I told you a little bit when we were questioning you as to potential
jurors about some feelings that I have, and maybe very deep down y'all have them
The case reached the Supreme Court on postconviction relief because the trial judge
granted a new penalty phase hearing due to other deficiencies in presentation of mitigation and the
state appealed. Davis cross-appealed for a new trial. The Supreme Court ordered a new trial and,
among other things, stated, "Initially, we strongly reaffirm the principle that racial prejudice has
no place in our justice system." The Court held that expressions of racial prejudice during voir
dire amounted to ineffective assistance of counsel.
136Harvey v. State, So. 2d (Fla. 2003); 2003 WL 21511339 (Fla., Jul 03, 2003).
137State v. Davis, 872 So. 2d 250 (Fla. 2004).
6.4.0. SUBSTANTIVE AND PROCEDURAL MATTERS
There are a number of substantive and procedural matters that are unique to capital trials.
The following sections identify and discuss some of them.
RIGHT TO JURY RECOMMENDATION
The defendant has an absolute right to a jury advisory recommendation of life or death.138
However, a sentence of death is not constitutionally required to be imposed upon the recommendation
of a jury.139 The death penalty can be constitutionally imposed by a judge if the defendant waives a
jury,140 without running afoul of the ruling in Ring v. Arizona, which requires a jury to determine
6.4.2. WAIVER OF JURY RECOMMENDATION
The defendant may waive his right to a jury recommendation without the consent of the
state.142 But the judge has the absolute discretion to accept or reject the defendant's purported
waiver.143 Even if both the defendant and the state request a jury waiver, the judge can require a jury
recommendation.144 But, there are several good reasons to allow the jury to be waived:
(1) The "guilt phase" jury would not have to be "death qualified" other than to inquire
whether the jurors could return a guilty verdict knowing the death penalty is a possible penalty.
This waiver saves time (sometimes days or weeks) on voir dire and eliminates many of the errors
that occur during voir dire and final arguments in death penalty cases.
(2) A jury recommendation to impose the death penalty may be an emotional response
to the offense and the defendant and not founded upon sound legal principles. The possibility of
an emotional verdict that will have to be given "great weight" is eliminated.
(3) The penalty phase can be scheduled at the convenience of the parties and the court
without concern about a jury wandering around the community being influenced by outside
(4) There is a better opportunity for the litigants and the witnesses to interact directly
with the ultimate sentencer (the judge) when a jury is not involved.
(5) There is less chance of reversible error in a non-jury trial.
Prior to 1994, there was disagreement among the District Courts over whether the State had
to agree to the defendant's waiver before the Court could dispense with the jury's recommendation.
138FLA. STAT. § 921.141 (1) (West 1994).
139Spaziano, 468 U.S. 447.
140Lynch v. State, 841 So. 2d 362 (Fla. 2003)
141Ring, 536 U.S. 584.
142FLA. STAT § 921.141 (1) (West 1994).
143State v. Carr, 336 So. 2d 358 (Fla. 1976); Sireci v. State, 587 So. 2d 450 (Fla. 1991).
144Muhammad v. State, 782 So. 2d 343 (Fla. 2001).
The Second District and Fourth District Courts held the State had to concur with the waiver. The
Fifth District did not agree and certified the question to the Supreme Court of Florida. In State v.
Hernandez,145 the Supreme Court held that the defendant could waive a jury's recommendation, with
or without the State's concurrence. Although Hernandez involved a plea of guilty, the rationale of
the case implies the defendant could also waive the jury recommendation after a finding of guilt by
a jury. Of course, the judge still has to agree.
A knowing and voluntary waiver must be supported by the record. 146 The waiver must be by
the defendant and not through representations of counsel.147
USE OF SHACKLES AND RESTRAINTS ON THE DEFENDANT
In Illinois v. Allen,148 the Supreme Court held that it was permissible to bind and gag an
"obstreperous defendant" in order to maintain courtroom decorum, but only as a last resort.
In Holbrrok v. Flynn,149 the Court held that shackling, unlike other security precautions, such
as additional law enforcement presence in the courtroom, should be permitted only where justified
by an essential state interest specific to each trial. While an accused is entitled to have his guilt or
innocence determined solely on the basis of evidence introduced at the trial, and not on grounds of
official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial,
that principle does not mean that every practice tending to single out an accused from everyone else
in the courtroom must be struck down.
As a general rule, a defendant has the right to appear before a jury free from physical
restraints.150 However, restraints "may be necessary to prevent the defendant form disrupting the trial
. . . and to protect the physical well being of the jury, lawyers, judge and other trial participants."151
Florida acknowledges that restraints may adversely interfere with the defendant's case.152
While the state courts have not required a formal hearing on the issue of whether the defendant should
be restrained, the federal courts have considered it a claim for ineffective assistance of counsel if no
hearing is requested.153 While this case gives good guidance, it was decided before Teague v. Lane,154
145State v. Hernandez, 645 So. 2d 432 (Fla. 1994).
146Lamadline v. State, 303 So. 2d 17 (Fla. 1990); Griffin v. State,820 So. 2d 906 (Fla. 2002).
147Thibault v. State, 850 So. 2d 485 (Fla. 2002).
148Ill. v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
149Holbrrok v. Flynn, 475 U.S. 460, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986).
150 Ill. v. Allen, 397 U.S. at 341-344.
151Isreal v. State, 837 So. 2d 381, 390 (Fla. 2002).
152McCoy v. State, 503 So. 2d 371 (Fla. 5th DCA 1987).
153Ellege v. Dugger, 823 F. 2d 1439, rehearing granted in part, 833 F. 2d 250 (11th Cir. 1987).
154Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). See § 6.1.7 for a
discussion on the retroactive application of Supreme Court decisions announcing new procedural
and it is doubtful that the Circuit Court of Appeals would hear such a claim today. The unreported
case of Chavez v. Cockrell155 contains an excellent discussion of how Teague applies to cases
involving physical restraint situations.
A separate hearing, even if it is informal, must be conducted to determine the necessity for
using shackles, or any other such restraint.156 The trial court should make every effort to conceal
restraints from the jury, but a brief exposure of a defendant to the jury while wearing prison garb or
in restraints is not per se prejudicial.157 No reported capital case has been reversed solely because the
jury briefly observed the defendant in shackles.
Recently, security personnel have been provided with a new form of restraint called a "stun
belt." Law enforcement believed that placing a "stun belt" on a defendant in lieu of shackles would
be preferable. Trial judges tended to agree. In United States v. Gray,158 the trial judge noted that
"there is a significant difference between the use of shackles--a heavy, loud and obvious form of
restraint--and the use of stun belts, which may be worn unobtrusively beneath clothing." The "stun
belt" can be activated by a security officer and delivers a 50,000 volt shock when activated, which
temporarily immobilizes the wearer. The "stun belt" is unobtrusive, can be worn under clothing and
is not apparent to the jury. One would think defendants would welcome the "stun belt" as an
alternative to shackles, but, of course, that is not the case.159 One trial judge has suggested the
following factors be considered before using the "stun belt":
(1) the seriousness of the crime charged and the severity of the potential sentences;
(2) the threats of violence made by the defendant against witnesses;
(3) prior record of the defendant for acts of violence or escape;
(4) allegations of gang activity and the likelihood that associates of the defendant will attend
(5) the opinion of the courthouse security officer;
(6) potential prejudice to the defendant for wearing the "stun gun" belt;
(7) the likelihood of accidental activation of the device;
(8) potential physical danger to the defendant if the device is activated;
(9) the availability and viability of other means to ensure courtroom security;
(10) the potential danger to the defendant and others present in the courtroom if other means
are used to secure the courtroom; and
(11) the existence of a clear, written policy governing the activation of the device.160
The "clear written policy" in place in the Gray case was to activate the belt only if the prisoner
(1) tampered with the belt, (2) failed to comply with orders to stop movement, (3) attempted to
escape, (4) took any action to inflict bodily harm upon any person, and (5) made any intentional
attempt to avoid constant visual contact with the court deputy.
Naturally, not everything always goes as planned. Sometimes the "stun belt" is activated
155Chavez v. Cockrell, 2001 WL 1609347 (N. D. Tex. December 12, 2001).
156Bello v. State, 547 So. 2d 914 (Fla. 1989); Bryant v. State, 785 So. 2d 422 (Fla. 2001).
157Sireci, at 888.
158U. S. v. Gray, 254 F. Supp. 2d 1 (D.C. D. C. 2002).
159See the unpublished opinion in U. S. v. Davis, 2003 WL 210889017 (E.D. La. May 9, 2003).
accidentally. This occurred in Chavez v. Cockrell,161 in the presence of the jury. On the following
day, the trial court questioned each juror separately. Four jurors assumed the defendant had been
shocked by some type of electronic device, four thought he had been shocked but did not know why
and four knew there had been some commotion in the court room but did not know why. Each juror
advised the trial judge that the juror could remain fair and impartial, and the trial judge determined
what the jurors had observed and heard would not affect their impartiality and the defendant's
presumption of innocence was not infringed.
The trial judge made the best of a bad situation and the Texas Criminal Court of Appeals
approved the procedure and the trial judge's findings in an unpublished opinion.
In United States v. Durham,162 the court vacated convictions for three counts of armed bank
robbery because the trial judge did not make a sufficient record to justify the use of the "stun belt."
Upon remand, the trial judge, obviously frustrated with the ruling, went to great lengths to provide
justification for the use of the device.163 The trial judge found Durham to "possess a rare combination
of skill, ingenuity, cunning and fearlessness. These characteristics, in conjunction with the challenge
he appears to relish in attempting to escape, make this defendant one of the most dangerous and one
of the highest escape risks of any defendant to come before this court." He then proceeded to list
numerous incidents involving the defendant's unacceptable behavior, including the fact that he had
successfully slipped out of leg irons while being watched by a guard and almost succeeded in
escaping from the Hillsborough County Jail. He plotted a detailed escape plan while in the Escambia
County Jail and threatened to kill the prosecutor in his case. While on 15-minute surveillance and
in solitary confinement, he broke his cell's floor grate and used it as a tool to remove material around
the cell window so that it was easily removable. Additionally, due to a prior escape attempt at the
maximum security prison at Leavenworth, the Bureau of Prisons had determined that he should be
confined in the super-maximum security prison underground in Florence, Colorado.
There is a Florida case involving the use of the stun belt and the test to be used when deciding
to use it. In Weaver v. State,164 the defendant fired his lawyer and proceeded to trial pro se. He
received the death penalty and complained on appeal about the use of the stun belt during his trial.
The trial judge held an "informal" hearing on the stun belt issue (the sheriff was not under oath). The
trial judge considered the fact that the defendant's pro se status required him to move about the
courtroom during the trial, including side-bar conferences, and access to witnesses and jurors.
Additionally, the State intended to introduce firearms and ammunition in evidence during the trial.
The Supreme Court of Florida upheld the trial judge's decision to use the stun belt under the
circumstances. The use of restraints is within the sound discretion of the trial court.165
Of course, during Weaver's trial, the stun belt was accidentally discharged during voir dire,
but outside the presence of the jurors. The trial judge inquired of the defendant if he was "okay" and
the defendant replied that he was "just shaken up a bit." A brief recess was held and the trial
resumed. On appeal, Weaver claimed after the electric shock "he became meek and subdued" and
was no longer a "zealous advocate for himself."
The Court noted this issue to be one of first impression in Florida but considered cases from
161Chavez, 2001 WL 1609347 at 1.
162U. S. v. Durham, 287 F.3d 1297 (11th Cir. 2002).
163U. S. v. Durham, 219 F.Supp.2d 1234 (N. D. Fla. 2002).
164Weaver v. State, 2004 WL 2922143 (Fla. Dec. 16, 2004).
165Elledge v. State, 408 So. 2d 1021, 1023 (Fla. 1981).
other states where accidental discharges have occurred outside the presence of the jury.166 The Court
held that the accidental discharge did not prejudice the defendant. Prejudice to the defendant is the
test to use in these cases.
Another new weapon used as a form of restraint is the "tazer." This device projects an electric
charge in a trajectory like a firearm for up to 20 feet. It has the advantage of not causing permanent
injury, or at least it is not supposed to, but other than that, it has all of the disadvantages of using a
firearm because the person activating the device may miss the target and hit another person, or the
target may obtain cover behind an object or another person.
It is advisable to know what devices security has in the courthouse and which devices are
being used during a trial.
Trial judges must make the record clear in order to justify the use of restraints, including
JUDGE'S PRELIMINARY COMMENTS TO THE JURY
A judge must give preliminary comments to the jury prior to the introduction of any evidence
by the State or defense.167 If the case is before the Court for resentencing, additional instruction will
have to be given.168 The Standard Jury Instructions are not always current, especially in capital cases,
and a set of Model Penalty Phase Jury Instructions is included in these materials.
Opening statements are permissible if either side requests to give one. Defense counsel may
waive opening until after the State has presented its evidence. It is advisable to have a hearing before
opening statements to ascertain whether defense counsel is going to concede the existence of any
aggravating circumstance. If so, the consent of the defendant should be obtained in order to avoid
future claims of ineffective assistance of counsel.
STATE'S EVIDENCE IN SUPPORT OF THE DEATH PENALTY
The State is limited to the aggravating circumstances listed in the statute. Aggravating
circumstances must be proven beyond a reasonable doubt.169 Allowing the State to introduce
aggravating circumstances not listed, such as the defendant's hatred for homosexual men, is error.170
So is allowing testimony by the defendant's wife concerning various unrelated acts of domestic
166 State v. Wachholtz, 131 Idaho 74, 952 P.2d 396, 398 (Ct.App.1998); Hawkins v.
Comparet-Cassani, 251 F.3d 1230, 1239 (9th Cir.2001) (noting at least nine accidental
activations nationwide in initial years of stun belt's use).
167See Florida Standard Jury Instructions in Criminal Cases.
168See sec. 6.17.0.
169Ford v. Strickland, 696 F. 2d 804 (Cir. 1983); Card v. State, 453 So. 2d 17 (Fla. 1984);
Johnson v. State, 438 So. 2d 774 (Fla. 1983); Williams v. State, 386 So. 2d 538 (Fla. 1980);
Alford v. State, 307 So. 2d 433 (Fla. 1975).
170Bowles v. State, 716 So. 2d 769, 773 (Fla. 1998).
violence.171 Nonstatutory aggravating circumstances, such as "lack of remorse," are not admissible.172
However, a brief mention of lack of remorse does not always require a mistrial.173 In Butler v.
State,174 the Supreme Court remarked, "Butler was also unfazed by the presence of the victim's
children in the apartment at the time. The totality of the circumstances in this case, which includes
this indifference, combined with the brutality of the murder, supports imposition of the death
penalty."175 This unfortunate remark was made in the context of justifying the existence of the HAC
aggravator and not for the purpose of creating a new aggravating circumstance.
A defendant has no right to a statement of particulars listing the aggravating circumstances
the State will rely upon during the penalty phase trial.176 This limitation is seldom a real problem
since most aggravating circumstances arise out of the facts of the case. However, many states require
some sort of pretrial disclosure (e.g.,Colorado,177 Pennsylvania,178 South Carolina,179 and
Washington180) and some states even require the aggravating circumstances, or, in Georgia-scheme
states, at least one of them, to be listed in the indictment itself (California,181 Indiana182 and Ohio183).
The failure to disclose the aggravating (and mitigating) circumstances prior to opening statements
during the penalty phase can put the trial judge at a real disadvantage when called upon to make
evidentiary rulings. And keeping the list a secret can contribute to the Supreme Court of Florida
ordering a new penalty phase.184 Trial judges should hold a pretrial conference prior to the beginning
171Perry v. State, 801 So. 2d 78 (Fla. 2001).
172Valle v. State, 581 So. 2d 40 (Fla. 1991); Robinson v. State, 520 So. 2d 1 (Fla. 1988);
Patterson v. State, 513 So. 2d 1263 (Fla. 1987); Pope v. State, 441 So. 2d 1073 (Fla. 1983);
Walton v. State, 547 So. 2d 622 (Fla. 1981).
173Smithers v. State, 826 So. 2d 916 (Fla. 2002); Shellito v. State, 701 So. 2d 837 (Fla. 1997).
174Butler v. State, 842 So. 2d 817 (Fla. 2003)
175Id. at 834.
176Riffin v. State, 397 So. 2d 277 (Fla. 1981); Clark v. State, 379 So. 2d 97 (Fla. 1979).
177C.R.S. 18-1.3-1201(3)(b). (Within 20 days after the filing of the notice of intent to seek the
178PA ST RCRP Rule 801. (At or before the time of arraignment.)
179SC ST S 16-3-20(B) (Before trial.)
180WA ST 10.95.040(2). (Within 30 days after arraignment.)
181CA PENAL S 190.1(b).
182IN ST 35-50-2-9(a).
183OH ST S 2929.03(B).
184Perry v. State, 801 So. 2d 78 (Fla. 2001)(State's argument that inadmissible evidence of prior
incidents of domestic violence constituted `anticipatory rebuttal' failed because penalty phase
jury instructions were not yet resolved, and the mitigating circumstances were not finalized.)
of the penalty phase, if not before, and insist that counsel provide a written list of aggravating and
mitigating circumstances to the Court in order to avoid surprise and error in making evidentiary
The State has the right to present aggravating circumstances and is not required to accept an
offer to stipulate to the aggravators. It has been unsuccessfully argued that refusal on the part of the
State to stipulate to an aggravator, such as prior violent felonies, violates the decision in Old Chief
v. United States,185 which held it to be an abuse of discretion for the trial court not to require the
prosecutor to accept a stipulation in certain circumstances. However, that case only applies to matters
involving a defendant's "legal status," such as in a case involving a felon in possession of a firearm
and the Supreme Court of Florida has limited its application to those cases.186
6.7.1. AGGRAVATING CIRCUMSTANCES
Aggravating circumstances that may be considered in determining the sentence in a capital
case in Florida are limited to the list contained in F.S. 921.141 (5). These circumstances are
discussed below in the order they appear in the statute.
PRIOR VIOLENT FELONY OR UNDER SENTENCE OF IMPRISONMENT
The capital felony was committed by a person previously convicted of a felony and
under sentence of imprisonment, or placed on community control, or on felony
This aggravator includes: (a) persons incarcerated under a sentence for a specific or
indeterminate term of years; ( b) persons incarcerated under a (felony) order of probation; ( c) persons
under either (a) or (b) who have escaped from incarceration; and (d) persons who are under sentence
for a specific or indeterminate term of years and who have been placed on parole. 187 It does not
include a person confined to a juvenile detention facility or a person who has escaped from a juvenile
detention facility.188 It also includes someone who had been placed on mandatory conditional release
before the offense was committed.189 It includes someone on control release.190 The statute originally
did not specifically include a defendant on community control. The Supreme Court of Florida held
that someone on community control was not under a sentence of imprisonment for this aggravating
factor.191 The legislature amended the statute in 1991 to specifically include the defendant on
community control. Likewise, the statute originally did not include a defendant on probation. The
Supreme Court of Florida held that a defendant who was on probation was not under a sentence of
185Old Chief v. U.S., 519 U.S.172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
186Brown v. State, 719 So. 2d 882 (Fla. 1998).
187Peek v. State, 395 So. 2d 492 (Fla. 1981).
188William's v. State, 707 So. 2d 683 (Fla. 1998). This situation will likely not arise in the future
because juvenile offenders are no longer eligible for the death penalty.
189Haliburton v. State, 561 So. 2d 248 (Fla. 1990).
190Davis v. State, 698 So. 2d 1182 (Fla. 1997).
191Trotter v. State, 576 So. 2d 691 (Fla. 1991).
imprisonment.192 The legislature amended the statute in 1996 to include the defendant who is on
Ex Post Facto Application
What effect is there upon a defendant who was on community control for a felony offense
or probation for a felony when the murder was committed, but was tried or retried afer the legislature
amended the statute to include a person on community control? Would it be a violation of the ex post
facto provisions of the United States and Florida's constitutions to apply these amended provisions
of the statute when they did not exist at the time of the murder? The Supreme Court of Florida has
answered the question in the negative as to the community control amendment. In Trotter v. State,193
the Court held it was not an ex post facto violation to include a defendant's being on community
control as an aggravating factor, even though the original Trotter case was reversed for the exact same
reason. The amendment occurred after the original Trotter opinion, but prior to the resentencing.
However, the Court has held it would be an ex post facto violation to apply the fact that the defendant
was on felony probation as an aggravating factor if the crime occurred prior to the time the statute was
amended.194 The distinction appears to be that community control is a refinement of the sentence of
imprisonment factor, but probation is not. The Court reasoned community control is a sentence of
imprisonment, but probation is not.
PREVIOUS CONVICTION OF CAPITAL OR VIOLENT FELONY
The defendant was previously convicted of another capital felony or of a felony
involving the use or threat of violence to the person.
This aggravator generally requires a prior conviction.195 Previous felonies involving violence
or the threat of violence are fairly obvious (murder, kidnapping, rape, aggravated battery, aggravated
assault, etc.) However, if the judgment and sentence are not for a crime of violence per se, such as
burglary, or lewd and lascivious assault, there may be problems on appeal, unless the judgment of
conviction shows the crime involved violence.196 The Court has also determined, as a matter of law,
a conviction for accessory after the fact to a crime of violence may not be used to find this
While it is not improper to consider a conviction that is on appeal,198 the imposition of the
192Ferguson v. State, 417 So. 2d 631 (Fla. 1982).
193Trotter v. State, 690 So. 2d 1234 (Fla. 1996).
194Merck v. State, 763 So. 2d 295 (Fla. 2000); Lukehart v. State, 776 So. 2d 906 (Fla. 2000);
Zack v. State, 753 So. 2d 9 (Fla. 2000); Lebron v. State, 799 So. 2d 997 (Fla. 2001).
195Donaldson v. State, 722 So. 2d 177 (1998).
196See Mann v. State, 420 So. 2d 578 (Fla. 1982); Mann v. State, 453 So. 2d 784 (Fla. 1984);
Hess v. State, 794 So. 2d 1249 (Fla. 2001).
197Donaldson, 722 So. 2d at 184-185.
198Peek, 395 So. 2d at 499.
death penalty may violate the Eighth Amendment if the conviction is reversed.199 This rule applies
to cases reversed after postconviction relief unless, of course, the defendant is retried and convicted
If one of several prior crimes of violence used to establish this circumstance is later reversed,
the Supreme Court of Florida may find the error to be harmless.200 A contemporaneous conviction
for a violent crime against the victim that occurred at the time of the killing cannot be used to support
this circumstance.201 But, improper consideration of a contemporaneous crime, such as when the
crime occurred after the murder, is subject to harmless error analysis. Thus, reversal may not be
necessary if there are other violent crimes in the defendant's record that would justify finding this
aggravator.202 However, if two or more victims are involved, and a violent crime occurred against
a separate victim, a contemporaneous conviction can be used.203
A violent felony that is committed after the murder, but before the penalty phase, may be used
as an aggravating circumstance if the defendant has been convicted prior to sentencing.204 A prior
adjudication of delinquency for a violent felony may not be used to support this circumstance.205
In a case of first impression, the Supreme Court of Florida, in a 4-3 decision, decided that a
conviction for an out-of-state "gross" misdemeanor, of "battery causing substantial harm," which is
equivalent to Florida's felony of aggravated battery, cannot be used to support this aggravator.206
If the prior crime(s) of violence is quite old, and the defendant has led a "comparatively crime-
free" life in the interim, this aggravator will not carry the same weight with the Supreme Court of
Florida when it conducts its proportionality review.207 Trial judges should consider this point when
weighing old prior convictions.
The State may establish and introduce details of a prior conviction in the form of hearsay
testimony so long as the defendant has the opportunity to rebut.208 Affidavits of deceased witnesses
or witnesses who are otherwise unavailable are not allowed because there is no opportunity to rebut
199Johnson v. Miss., 486 U. S. 578, (1988); Preston v. State, 564 So. 2d 120 (Fla. 1990); Rivera
v. Dugger, 629 So. 2d 105 (Fla. 1993).
200Stano v. State, 708 So. 2d 271 (Fla. 1998); Buenoano v. State, 708 So. 2d 941 (Fla. 1998);
Rivera v. State, 717 So. 2d 477 (Fla. 1998).
201Holton v. State, 573 So. 2d 284 (Fla. 1990); Bruno v. State, 574 So. 2d 76 (Fla. 1991); Elledge
v. State, 613 So. 2d 434 (Fla. 1993).
202Holton, 573 So. 2d at 291.
203King v. State, 390 So. 2d 315 (Fla. 1980); Pardo v. State, 563 So. 2d 77 (Fla. 1990); Stein v.
State, 632 So. 2d 1361 (Fla. 1994); Francis v. State, 808 So. 2d 110 (Fla. 2002).
204Brown v. State, 473 So. 2d 1260 (1985).
205Merck, 664 So. 2d at 944 ;Henyard v. State, 689 So. 2d 239 (Fla. 1996).
206Carpenter v. State, 785 So. 2d 1182 (Fla. 2001).
207Larkins v. State, 739 So. 2d 90 (Fla. 1999).
208Hudson v. State, 708 So. 2d 256 (Fla. 1998).
the statements contained in them.209 The witness must be a "neutral" witness.210 A police
officer/investigator can provide the testimony from documents.211 Live testimony from prior victims
is also admissible.212 In one case, it was held to be permissible to allow the victim of a prior violent
felony, whose arms had been cut off by the defendant, to testify and show her prosthetics.213
One problem that occurs with some frequency is whether to consider prior capital felonies or
felonies involving violence when the convictions for those crimes occur after the death sentence is
originally imposed. This problem arises when the defendant is sentenced to death and, while the
appeal is pending, convictions are obtained for other crimes. If the appeal is successful and the case
is remanded for a new penalty phase, the resentencing court may find aggravators not found in the
original sentencing proceeding. The new aggravators may be found because resentencing is a de novo
proceeding, and Court can consider all issues bearing on proper sentence.214
A prior conviction for a violent felony is a "strong" aggravator. The death sentence has been
upheld when this aggravator is the only one present.215 This aggravator is among "the most weighty
in Florida's sentencing calculus."216
It is not doubling for the trial court to find "a capital felony committed by a person under
sentence of imprisonment" and "a previous conviction of another capital felony" when an inmate
serving a term for a previous murder conviction murders a fellow inmate.217 Similarly, if a defendant
is on parole for a prior murder and commits another murder, the "prior violent felony" aggravator may
be found as well as the "capital felony committed by a person under sentence of imprisonment"
aggravator. These aggravators are two separate and distinct characteristics not based upon the same
evidence and same essential facts.218
GREAT RISK TO MANY PERSONS
The defendant knowingly created a great risk of death to many persons.
209Parker v. State, 873 So. 2d 270 (Fla. 2004).
210Rodriguez v. State, 753 So. 2d 29 (Fla. 2000).
211Bowles v. State, 804 So. 2d 1173 (Fla. 2002).
212Stewart v. State, 558 So. 2d 416 (1990).
213 Singleton v. State, 783 So. 2d 970 (Fla. 2001)
214Preston, 607 So. 2d at 407-409; Castro v. State, 644 So. 2d 987 (1994); Bowles, 804 So. 2d at
215Ferrell v. State, 680 So. 2d 390 (Fla. 1996); Duncan v. State, 619 So. 2d 279 (Fla. 1993).
216Sireci v. Moore, 825 So. 2d 882 (Fla. 2002).
217Lusk v. State, 446 So. 2d 1038 (Fla. 1984).
218Waterhouse v. State, 429 So. 2d 301 (Fla. 1983)[receded from on other grounds, State v.
Owen, 696 So. 2d 725 (Fla. 1997)].
"Many persons" is not a few people.219 In Johnson v. State,220 the Supreme Court of Florida
held there must be four or more persons, other than the victim, threatened with a great risk of death
for this circumstance to apply. The Court had previously stated that three persons plus the victim
were not insufficient to invoke this aggravating circumstance.221
"Great Risk" is not a mere possibility, but a likelihood or high probability.222 The doctrine of
"transferred intent" may apply to this circumstance.223
The capital felony was committed while the defendant was engaged, or was an accomplice,
in the commission of, or an attempt to commit, or flight after committing or attempting to commit,
any robbery, sexual battery, aggravated child abuse, abuse of an elderly person or disabled adult
resulting in great bodily harm, permanent disability, or permanent disfigurement, arson, burglary,
kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device
This circumstance adds an aggravating circumstance to many felony-murder cases. However,
eligibility for this aggravating circumstance is not automatic. The list of enumerated felonies in F.S.
782.04 (the felony-murder rule) is slightly different from the list contained in F.S. 921.141 (5)(d).
In fact, the list of felony-murder aggravators contains an aggravator that is not listed in the felony-
murder rule and is not a separate crime--"abuse of an elderly person or disabled adult resulting in
great bodily harm, permanent disability or permanent disfigurement." The Supreme Court of Florida
has relied upon the difference in the two lists to justify the constitutionality of this aggravating
circumstance.224 However, this circumstance will probably exist in most felony-murder cases and
may be found whether the designated underlying felony is charged.225
There is some controversy around the country as to whether allowing this circumstance as an
aggravating factor, as well as a basis for a first-degree murder conviction, properly narrows the
persons eligible for the death penalty. Several courts have declared the aggravator to be
unconstitutional.226 The Supreme Court of Florida has held this aggravating circumstance to be
219Kampff v. State, 371 So. 2d 1007 (Fla. 1979).
220Johnson v. State, 696 So. 2d 317 (Fla. 1997); See also, Johnson v. State, 696 So. 2d 326 (Fla.
221Bello v. State, 547 So. 2d 914 (Fla. 1989); Alvin v. State, 548 So. 2d 1112 (Fla. 1989).
222Johnson, 696 So. 2d at 324-325; Kampff, 371 So. 2d at 1009-1010. See also, Trepal v. State,
621 So. 2d 1361 (Fla. 1993).
223Howell v. State, 707 So. 2d 674 (Fla. 1993).
224Francis, 808 So. 2d at 136; Blanco v. State, 706 So. 2d 7, 11 (Fla. 1997).
225Rivera v. State, 717 So. 2d 477 (Fla. 1998); Sochor v. State, 619 So. 2d 285 (Fla. 1993).
226See Tennessee v. Middlebrooks, 840 S.W. 2d 317 (Tenn. 1992); Enberg v. Meyer, 820 P.2d 70
(Wyo. 1991); State v. Cherry, 257 S.E. 2d 551 (N.C. 1979).
constitutional.227 However, there is not a single Florida case upholding the death penalty when
felony-murder has been the only aggravating factor.228 The United States Supreme Court has upheld
a case in which the only aggravator was the felony-murder rule, but the validity of the aggravator was
not an issue before the Court.229
The Supreme Court of Florida's rulings put the trial judge in quite a dilemma when the only
aggravating circumstance is the felony-murder aggravator. The trial judge has to death-qualify the
jury and receive the jury's recommendation. If it is a death recommendation and entitled to "great
weight," the trial judge is in the position of sentencing the defendant to death knowing the sentence
will be reversed on the Supreme Court's proportionality review, or not following the recommendation
because the death sentence will be reversed.
For further information on the application of the felony-murder rule, see §. 9.9.6 in these
materials on lack of intent to kill under nonstatutory mitigating circumstances.
Ex post facto Application
Some of the felony-murder crimes were added after the statute was originally enacted.
Aggravated child abuse was added to F.S. §921.141(5)(d) effective October 1, 1995. Aggravated
abuse of an elderly or disabled person was added effective October 1, 1996. Can these aggravators
be applied to the murder of a child under the age of 18, or of an elderly person or disabled adult, as
defined by F.S. §825.101, if the murder occurred prior to the time the statute was amended, but the
penalty phase trial or resentencing occurs after the amendment date? Would applying these
aggravators violate the ex post facto provisions of the United States and Florida Constitutions? Using
the analysis of Trotter v. State,230 it could be argued, as it was by the majority of the Court in Trotter,
that these additions were mere "refinements" to the felony-murder aggravator, and therefore did not
constitute a "substantive change" in the aggravating factor. However, the better argument is that it
would be an ex post facto violation to apply this aggravator to murders that occurred prior to their
being included as felony crimes permitting first-degree murder convictions pursuant to F.S.§782.04.
The jury must be instructed on the elements of the underlying felony. The instruction must
include necessary definitions (such as elderly person or disabled adult). The instructions must also
be given if the case is before the Court for a new penalty phase trial, and the underlying felony was
either not charged in the indictment or the original jury did not unanimously find felony murder by
There are cases in which the facts may or may not support both felony-murder and the cold,
calculated and premeditated (CCP) aggravator. It may be helpful to ask the jury to return a special
verdict to determine the existence of one or both theories in the guilt phase of the case. The special
verdict can then be used to justify findings as to the felony-murder and CCP aggravators.231
227See Taylor v. State, 638 So. 2d 30 (Fla. 1994) and cases cited therein. See also, Blanco v.
State, 706 So. 2d 7 (Fla. 1997), where both the majority opinion and the specially-concurring
opinion discuss this problem and illustrates the differences of opinions among Florida's Justices.
228See, for example, Sinclair v. State, 657 So. 2d 1138 (Fla. 1995); Terrt v, State, 668 So. 2d 954
(Fla. 1996); Jones v. State, 705 So. 2d 1364 (Fla. 1998), Williams v. State, 707 So. 2d 683 (Fla.
1998), and cases cited therein.
229Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct. 1078, 108 L. Ed. 2d 253 (1990).
230Trotter, 690 So. 2d at 1234.
231See Perry v. State, 801 So. 2d 78 (Fla. 2001).
AVOIDING ARREST OR ESCAPING
The capital felony was committed for the purpose of avoiding or preventing a lawful
arrest or effecting an escape from custody.
There is no presumption of the existence of this circumstance. The supporting evidence must
be "very strong" to permit a finding of this circumstance.232 In cases where the victim is not a law
enforcement officer, the State must prove that "the sole or dominant motive for the murder was the
elimination of the witness."233 Mere speculation by the State cannot support this aggravating
circumstance.234 The case of Urbin v. State,235 contains a listing of the many cases that discuss the
"sole or dominant" requirement to find this circumstance.
In Urbin, the Court would not allow this circumstance even though the defendant disclosed
that one of the motives for the murder of the victim was because the victim "saw his face." The Court
said the facts showed this motive was a "corollary, or secondary motive, not the dominant one.236 The
defendant's statement that he had killed the victim because "he didn't want the woman to see his
face" provided only one of numerous motives for the murder of the victim in Hurst v. State.237 In
Hurst, the Court cited Consalvo and stated, "The mere fact that the victim knew and could identify
the defendant, without more, is insufficient to prove this aggravator." 238
The mere fact that the victim had known the defendant for a long period of time (and,
therefore, would be able to identify him) is insufficient to establish this circumstance absent strong
proof of intent.239 However, evidence that the defendant, who was known to the blind robbery victim,
shot and killed the victim, after the accomplice spoke the defendant's name, was sufficient to establish
this aggravating factor.240
This circumstance is allowed most often in cases where the victim is abducted from the scene
of one crime, perhaps a robbery, and taken to a remote area and killed for no other apparent
232Riley v. State, 366 So. 2d 19, 22 (Fla.1978); Rodriguez, 753 So. 2d at 47-48.
233Zack, 753 So. 2d at 20; Consalvo v. State, 697 So. 2d 805, 819 (Fla. 1996) (speculation not
enough); Preston, 607 So. 2d at 409. (the fact that it may have been one of the motives is not
enough.) Davis v. State, 604 So. 2d 794 (Fla. 1992); Connor v. State, 803 So. 2d 598 (Fla.
234Connor, 803 So. 2d at 610.
235Urbin v. State, 714 So. 2d 411 (Fla. 1998).
236Id. at 416.
237Hurst, 819 So. 2d at 696.
238Id. at 696.
239Caruthers v. State, 465 So. 2d 496 (Fla. 1985); Consalvo, 697 So. 2d at 819; Zack, 753 So. 2d
240Harmon v. State, 527 So. 2d 183 (Fla. 1988).
motive.241 It is not allowed when the defendant panics during a robbery and starts shooting.242
Proof of this aggravator often comes from the defendant's statements to the police or some
other person and is sufficient to find this aggravating factor.243 In Willacy v. State,244 there were no
reported statements made by the defendant, who was the next door neighbor of the victim, but the
only apparent motive for the killing appeared to be the elimination of a witness who could identify
the defendant. The Court upheld the trial court's finding of this aggravating factor. However, in a
later case where the defendant and victim knew each other, the Court did not allow this aggravating
factor because the defendant's premeditated plan was to kill the victim and steal her property.245
The doctrine of "transferred intent" can apply to this aggravating factor if the evidence
supports it. When the defendant does not select the victim, the explosion of a bomb in an automobile
can be an example of the application of transferred intent to this aggravating circumstance.246
In cases where the victim is not a police officer, the defendant may be entitled to a special jury
instruction that the primary or dominant motive for the murder must have been to eliminate the
witness. However, the defendant must specifically request this instruction.247
It is impermissible doubling to find this aggravating circumstance and the circumstance the
victim was a law enforcement officer.248
There is no per se prohibition to finding the avoiding-arrest aggravator and CCP provided the
evidence is separate as to each. For instance, the avoid-arrest aggravator may focus on the motive for
the killing, and CCP may focus upon the manner in which the killing took place.249
It is permissible to consider the avoid-arrest aggravator along with the pecuniary-gain
aggravator if the evidence supports each aggravator.250
241See cases discussed in Preston v. State, 607 So. 2d 404, 409 (Fla. 1992). See Hall v. State, 614
So. 2d 473, 477 (Fla. 1993) and cases cited therein where the Supreme Court stated " . . . we
have uniformly upheld finding this aggravator when the victim is transported to another location
and then killed." See also Routly v. State, 440 So. 2d 1257 (Fla. 1983); Davis v. State, 698 So.
2d 1182 (Fla. 1997); Alston v. State, 723 So. 2d 148 (Fla. 1998); Jones v. State, 748 So. 2d 1012
(Fla. 1999); Card v. State, 803 So. 2d 613 (Fla. 2001).
242Caruthers, 465 So. 2d at 498.
243Derrick v. State, 641 So. 2d 378 (Fla. 1994); Trease v. State, 768 So. 2d 1050 (Fla. 2000).
244Willacy v. State, 696 So. 2d 693 (Fla. 1997)
245Zack, 753 So. 2d at 14.
246Howell, 707 So. 2d. at 678.
247Nelson v. State, 850 So. 2d 514 (Fla. 2003).
248Kearse v. State, 662 So. 2d 677 (Fla. 1995).
249Morton v. State, 689 So. 2d 259 (Fla. 1997).
250Hertz v. State, 803 So. 2d 629, 652 (Fla. 2001); Thompson v. State, 648 So. 2d 692, 695 (Fla.
While the avoid-arrest aggravator must be shown to be the sole or dominant motive for the
killing, the pecuniary-gain aggravator does not have to reach that level of proof. It is sufficient if the
evidence shows the murder was motivated, at least in part, by a desire to obtain money, property or
other pecuniary gain.251
The capital felony was committed for pecuniary gain.
This factor has been held to apply only where the "murder is an integral step in obtaining some
sought-after specific gain."252 If the theft of money or other property is completed, and the murder
was not committed to facilitate it, this factor does not apply.253 Likewise, if the murder is completed,
and a theft of property is an afterthought, this aggravator does not apply. There must be "a pecuniary
motivation for the murder itself."254
There is a group of cases involving defendants who stole an automobile after a murder. In
some of the cases, the defendants abandon the automobile shortly after the murder. In those cases,
the Court has held this aggravating circumstance not to have been proven beyond a reasonable doubt.
Rather, the car was more likely to have been stolen to facilitate an escape from the scene. But, if the
murder was committed during the forcible taking of an automobile, or, if the automobile is not
abandoned, but continued to be used, improvement of the defendant's financial worth was the
motivation for murder and the pecuniary-gain aggravator applies.255
Unlike the avoid-arrest aggravator, pecuniary gain does not have to be the sole or dominant
motive for the killing. It is sufficient if the evidence shows the murder was motivated, at least in part,
by a desire to obtain money, property or other pecuniary gain.256
How to weigh this aggravating factor depends upon the facts of the case. If the theft occurred
during the course of a robbery, the state may very well think the felony-murder aggravator is more
weighty. That belief may be misplaced. (See the discussion on lack of intent to kill in §. 9.9.6.) On
the other hand, if the murder occurred over a dispute in the proceeds of a poker game by a couple of
drunks, the aggravator may deserve little weight.
When a homicide occurs during the course of a robbery, the felony-murder aggravator and the
pecuniary-gain aggravator cannot both apply.257 But, if two or more enumerated felonies were
committed during the course of a homicide, one of which does not include obtaining money, (e.g.,
251Hildwin v. State, 727 So. 2d 193, 195 (Fla. 2003).
252Hardwick v. State, 521 So. 2d 1071, 1076 (Fla. 1988).
253Elam v. State, 636 So. 2d 1312, 1314 (Fla. 1994).
254Bowles v. State, 804 So. 2d 1173, 1179-1180 (Fla. 2002) (rejecting afterthought argument
under the facts); Simmons v. State, 419 So. 2d 316, 318 (Fla. 1982).
255See Rogers v. State, 783 So. 2d 980, 993 (Fla. 2001), and authority cited therein.
256Hildwin, 727 So. 2d at 195..
257Francis v. State, 808 So. 2d 110, 136-137 (Fla. 2001).
sexual battery) and one of which does (e.g., robbery), both aggravating factors may be found.258 It
is permissible to consider the pecuniary-gain aggravator and the avoid-arrest aggravator.259 (See the
section XII.D.2. on page 97 for jury instructions to help in dealing with doubling problems.)
DISRUPT OR HINDER LAW ENFORCEMENT
The capital felony was committed to disrupt or hinder the lawful exercise of any
governmental function or the enforcement of laws.
This circumstance applies in very few cases and under unique circumstances. This
circumstance has been sustained, for example, when a witness was killed to prevent him from
testifying before the grand jury. It has also been applied in a case in which the defendant killed a key
prosecution witness before the witness could testify against him.260
It is not permissible to find this factor and the avoiding-arrest or effecting-escape aggravator
when they are based upon a single aspect of the case.261 In the Bello case, the defendant killed a
police officer who was attempting to enter his house and arrest him during a drug raid. The
motivation for the murder was both to hinder law enforcement and to avoid arrest. The two
aggravators merged and only one could be considered.
HEINOUS, ATROCIOUS OR CRUEL (HAC)
The capital felony was especially heinous, atrocious, or cruel.
There has been much activity about the constitutionality of this aggravating factor, and
aggravating factors similarly worded from other states. The following U. S. Supreme Court cases need
to be read to fully understand the problems with this factor:
Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990).
Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511
Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992).
Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114, 119 L. Ed. 2d 326 (1992).
Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976).
Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).
258Spann v. State, 857 So. 2d 845, 856 (Fla. 2003); Griffin v. State, 820 So. 2d 906, 914-916 (Fla.
2002); Willacy v. State, 696 So. 2d 693, 696 (Fla. 1997); Green v. State, 641 So. 2d 391, 395
(Fla. 1994); Castro v. State, 597 So. 2d 259, 261 (Fla. 1992); Routly v. State, 440 So. 2d 1257,
1264-1265 (Fla. 1983); Provence v. State, 337 So. 2d 783, 786 (Fla. 1976).
259Hertz v. State, 803 So. 2d 629, 652 (Fla. 2001).
260Koon v. State, 513 So. 2d 1253, 1256-1257 (Fla. 1987).
261Bello v. State, 547 So. 2d 914, 917 (Fla. 1989).
Arave v. Creech, 507 U.S. 463, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993).
Stringer v. Black, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992).
Shell v. Mississippi, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990).
Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725
Maynard v. Cartwright, 401 U.S. 667, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1988).
The issue presented in these cases is whether the words selected in the statute can withstand
a vagueness challenge. The aggravating circumstance must narrow the class of cases eligible for the
The Supreme Court of Florida thought this vagueness challenge was solved when the Standard
Jury Instruction was amended to include the entire Dixon262 instruction the Court believed had been
approved in the Proffitt263 case along with Florida's present Standard Jury Instruction defining
heinous, atrocious or cruel.264 However, a careful reading of the United States Supreme Court cases
suggests the entire Dixon instruction is not acceptable. The definitions in Florida's jury instruction
have been previously struck down by the United States Supreme Court as vague.265 Proffitt approved
only this part of the Dixon instruction: ". . . the conscienceless or pitiless crime which is unnecessarily
torturous to the victim."266 The following statement in Sochor v. Florida,267 appears to support the
argument that the United States Supreme Court does not approve of the entire Dixon instruction:
Sochor contends, however, that the State Supreme Court's post Proffitt cases
have not adhered to Dixon's limitation as stated in Proffitt, but instead evince
inconsistent and over broad constructions that leave a trial court without
sufficient guidance. And we may well agree with him that the Supreme Court
of Florida has not confined its discussions on the matter to the Dixon language
we approved in Proffitt, but has on occasion continued to invoke the entire
Dixon statement, quoted above (which as "quoted above" is the present Florida
Standard Jury Instruction), perhaps thinking that Proffitt approved it all.268
The Supreme Court of Florida has not interpreted Sochor to require elimination of the vague
262Dixon v. State, 283 So. 2d 1 (Fla. 1973).
263Proffit v. Fla., 428 U.S. 242, 259-260 (1976).
264The previous Florida Jury Instruction defining heinous, atrocious or cruel as "especially
wicked, evil, atrocious and cruel" was declared unconstitutionally vague in Espinosa v. Florida,
505 U.S. 1079, 1082 (1992).
265Shell v. Miss., 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990).
266Proffit, 428 U.S. at 255.
267Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114, 119 L. Ed. 2d 326 (1992), rev'd on other
grounds, 504 U.S. 527 (1992).
268Id. at 536 (material in parenthesis supplied).
definitions in its jury instructions, but seems to believe that, as long as the whole instruction is given,
it will pass constitutional muster.269 The United States Supreme Court may or may not agree.
The possibility of error will be eliminated if the defense requests a particular HAC instruction
and it is given.270 If the defense objects to the vagueness of the present Standard Instruction, the entire
Standard Instruction can be given and get past the Supreme Court of Florida, or the portion approved
by Proffitt (quoted above) can be given and get past the Federal Courts. But trial judges are required
to read the entire standard instruction. In fact, trial judges have been directed to read fully all
applicable Standard Jury Instructions, unless a legal justification exists to modify the instruction.271
Getting beyond the constitutional problems, what types of cases will and will not allow a finding of
The Supreme Court of Florida has held this circumstance would apply "only in torturous
murders--those that evince extreme and outrageous depravity as exemplified either by the desire to
inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another."272 But
the Court has upheld death sentences where the victim was conscious for merely seconds.273
After Sochor, the Supreme Court of Florida has held that, for this factor to apply, the crime must be
both conscienceless or pitiless and unnecessarily torturous to the victim.274 Interestingly, the Supreme
Court of Florida has held that it is not necessary to establish the element of "intent" before finding
the HAC aggravating circumstance. It is enough if the killer is utterly indifferent to the suffering of
another.275 This "blanket statement" is by no means accepted by all of the justices.276
HAC is among "the most weighty in Florida's sentencing calculus."277 In Butler v. State,278
HAC was the only aggravator, and the death penalty was approved.
General Applicable to All Type Homicides
HAC does not apply to most instantaneous deaths, or deaths that occur fairly quickly. But
269See Francis v. State, 808 So. 2d 110 (Fla. 2001); Nelson v. State, 748 So. 2d 237 (Fla. 1999);
Hall v. State, 614 So. 2d 473 (Fla. 1993); Preston v. State, 607 So. 2d 404 (Fla. 1992).
270McDonald v. State, 743 So. 2d 501, 503-504 (Fla. 1999).
271Guzman v. State, 644 So. 2d 996, 999-1000 (Fla. 1994).
272Cheshire v. State, 568 So. 2d 908, 912 (Fla. 1990).
273Rolling v. State, 695 So. 2d 278, 296 (Fla. 1997).
274Nelson v. State, 748 So. 2d 237, 245 (Fla. 1999); Knight v. State, 746 So. 2d 423, 438-439
(Fla. 1998); Zakrzewski v. State, 717 So. 2d 488, 492 (Fla. 1998); Hartley v. State, 686 So. 2d
1316, 1323 (Fla. 1996); Richardson v. State, 604 So. 2d 1107, 1109 (Fla. 1992).
275Francis, 808 So. 2d at 110; Bowles v. State, 804 So. 2d 1173, 1177 (Fla. 2002); Guzman, 721
So. 2d at 1160.
276Francis, 808 So. 2d at 142, (Pariente, J., concurring). See also Morrison v. State, 818 So. 2d
432 (Fla. 2002).
277Sireci v. State, 825 So. 2d 882, 887 (Fla. 2002).
278Butler v. State, 842 So. 2d 817 (Fla. 2003).
fear, emotional strain, and terror of the victim during events leading up to the murder may allow an
otherwise quick death to become heinous, atrocious or cruel.279 The Court has held that HAC can
only be found in torturous murders--those that evince extreme and outrageous depravity as
exemplified either by the desire to inflict a high degree of pain or the utter indifference to or
enjoyment of the suffering of another.280
Like other aggravating circumstances, HAC must be proven beyond a reasonable doubt and
cannot be left to conjecture or speculation. There must be evidence in the record that establishes the
facts that justify a finding of HAC.281
It is important to note that nothing done to a victim after the victim is dead or
unconsciousness, including that which would otherwise qualify as heinous, atrocious or cruel, can be
used to support this circumstance.282 This is not universally true. At least one state, Tennessee, makes
mutilating a dead body an aggravating factor.283
HAC cannot be applied vicariously. This aggravator cannot be applied to a defendant, who
contracted with another to commit murder, even though the murder was committed in a heinous,
atrocious, or cruel manner, if the evidence does not establish that the defendant knew how the third
person would carry out the murder, especially where the evidence indicated the third person was
supposed to use a gun rather than stabbing the victim.284
The Supreme Court of Florida has allowed the HAC aggravator to be included in the
sentencing order if the facts justify it even if it was not submitted to the jury.285 But this type of
finding may no longer be constitutionally permissible after Ring v. Arizona.286
Both the Supreme Court of Florida and the United States Supreme Court agree the
"strangulation of a conscious victim involves foreknowledge of death, extreme anxiety, and fear, and
this method of killing is one to which the factor of heinousness is applicable.287 Strangulation deaths
279Lynch v. State, 841 So.2d 362, 369 (Fla. 2003); Henyard v. State, 689 So. 2d 239, 253 (Fla.
1996); Wyatt v. State, 641 So.2d 1336, 1340-1341 (Fla. 1994); Preston v. State, 607 So.2d 404,
409-410 (Fla. 1992).
280Robertson v. State, 611 So. 2d 1228, 1232 (Fla. 1993); Cheshire, 568 So. 2d at 912.
281Knight, 746 So. 2d at 435.
282Zakrzewski, 717 So. 2d at 493; Jones v. State, 569 So. 2d 1234, 1239 (Fla. 1990); Jackson v.
State, 451 So. 2d 458, 463 (Fla. 1984); Herzog v. State, 439 So. 2d 1372, 1379-1380 (Fla. 1983).
283TENN. CODE ANN. § 39-13-204 (2004).
284 Omelus v. State, 584 So. 2d 563, 567 (Fla. 1991). See also Archer v. State, 613 So. 2d 446,
448 (Fla. 1993).
285Davis v. State, 703 So. 2d 1055, 1061 (Fla. 1997).
286Ring, 536 U.S. 584, 609 (2002).
287Sochor, 580 So.2d at 609.
create a prima facie case for HAC.288
Multiple Stab Wound Deaths/Slitting the Victim's Throat
HAC will apply to cases involving multiple stab wounds if the victim was alive and conscious
when these multiple wounds were inflicted.289 If there are defensive wounds, it may be assumed the
victim was alive, unless the evidence clearly shows otherwise. Slitting the victim's throat after
kidnapping the victim and further traumatizing her has been held to be HAC.290 In Butler v. State,291
the defendant's former girl friend was stabbed so many times the medical examiner said she had run
out of words to describe them. Several of the wounds were defensive wounds, which showed the
victim was alive for a substantial portion of the attack. The attack occurred in the victim's apartment
in the presence of the victim's children. HAC was the only aggravating circumstance in the Butler
This circumstance applies when the victim was beaten to death.292 One issue that regularly
comes up in beating deaths is whether the victim was killed or lost consciousness early in the attack.
The testimony of the medical examiner may establish the chain of events one way or the other, but
often it is necessary to look at circumstantial evidence such as whether there were defensive wounds
or evidence that the beating took place in an area large enough to show that the victim was retreating
or fighting back. As previously stated, nothing done to the victim after death or loss of consciousness
can be used as evidence of HAC.
This circumstance applies when the victim is set on fire, unless the burning occurred after
Most deaths caused by gunshot do not qualify as being heinous, atrocious, or cruel. Death by
gunshot is generally instantaneous, or nearly so, and the Supreme Court of Florida has consistently
288Orme v. State, 677 So. 2d 258 (Fla. 1996). See also Bowles, 804 So. 2d at 1178; Blackwood v.
State, 777 So. 2d 399, 409 (Fla. 2000); Overton v. State, 801 So. 2d 877, 901 (Fla. 2001).
289Cox v. State, 819 So. 2d 705, 720 (Fla. 2002); Francis, 808 So. 2d at 134-135; Pittman v.
State, 646 So. 2d 167, 172-173 (Fla. 1994) see also cases cited therein; Davis v. State, 620 So. 2d
152, 152-153 (Fla. 1993).
290Card v. State, 803 So. 2d 613, 624-625 (Fla. 2001).
291Butler v. State, 842 So. 2d 817 (Fla. 2003).
292Lawrence v. State, 698 So. 2d 1219, 1221-1222 (Fla. 1997); Whitton v. State, 649 So. 2d 861,
867 (Fla. 1994).
293Henry v. State, 613 So. 2d 429 (Fla. 1992); Willacy v. State, 696 So. 2d 693 (Fla. 1997); Way
v. State, 760 So. 2d 903, 919 (Fla. 2000); Nixon v. Singletary, 758 So. 2d 618 (Fla. 2000), rev'd
on other grounds, 857 So. 2d 172 (Fla. 2003), rev'd, 540 U. S. 1217 (2004).
held HAC does not apply in these cases, unless the shooting is accompanied by additional acts
resulting in mental or physical torture to the victim.294
Cases in which the Court has disapproved the trial court's finding of HAC in shooting deaths
include the following examples: forcing the victims into a house at gunpoint, and, along with
accomplices, interrogating them for several hours before handing a gun to an accomplice to shoot the
victims;295 "execution style killings,"296 including cases where the victim is shot several times and
begs for his life;297 shooting a police officer who is acting in the line of duty;298 and murders that are
cold, calculated, and premeditated and carried out stealthily.299
There are instances in which gunshot murders involve HAC. For instance, a finding of HAC
was approved where the nine-year-old victim suffered substantial mental anguish by witnessing the
defendant murder his mother and two siblings and was then shot with a shotgun, survived the initial
shot, and was shot again.300 Additionally, HAC has been held to apply when the defendant fired
several non-lethal shots into the first victim's legs, then shot her in the head and dragged her
screaming into an apartment where she was dispatched with a coup de grace. HAC was upheld as to
the second victim because the first victim was the second victim's mother and the second victim had
been confined in the apartment with the defendant, who terrified her for over 30 minutes with his gun
and, after shooting her mother, made a phone call and then shot the second victim.301
One factor that can be taken into consideration in determining if HAC applies in a particular
case is whether the victim was kidnapped or confined before being put to death. Kidnappings almost
always involve CCP or HAC or both.302
In Parker v. State,303 the defendants kidnapped the 18-year-old-female victim from the
convenience store where she worked and transported her by automobile some 13 miles away. They
removed her from the car, stabbed her in the stomach with a fishing knife and shot her in the back of
294Diaz v. State, 860 So. 2d 960, 966-967 (Fla. 2003); Rimmer v. State, 825 So. 2d 304, 327-328
(Fla. 2002); Robertson, 611 So. 2d at 1228.
295Ferrell v. State, 686 So. 2d 1324, 1330 (Fla. 1996).
296Hartley v. State, 686 So. 2d 1316, 1323 (Fla. 1997); Robinson, 574 So. 2d at 112.
297Bonifay v. State, 626 So. 2d 1310, 1311 (Fla. 1993).
298Kearse v. State, 662 So. 2d 677, 686 (Fla. 1995); Street v. State, 636 So. 2d 1297, 1303 (Fla.
1994); Brown v. State, 526 So. 2d 903, 906-907 (Fla. 1988).
299Lewis v. State, 398 So. 2d 432, 438 (Fla. 1981).
300Hutchinson v. State, 882 So.2d 943 (Fla. 2004).
301Lynch, 841 So.2d at 369-370.
302See, e.g., Boyd v. State, 2005 WL 318568 (Fla. Feb. 10, 2005); Crain v. State, 894 So. 2d 59
(Fla. 2004); Huggins v. State, 889 So.2d 743 (Fla. 2004); Pearce v. State, 880 So.2d 561 (Fla.
303Parker v. State, 873 So. 2d 270 (Fla. 2004).
the head. There was evidence of a defensive wound and evidence in the automobile that some of her
hair had been pulled out before she exited the automobile. The medical examiner testified that her
bladder was completely voided prior to her death, which indicated either fear or pain from being
Cases involving kidnapping usually include other forms of mistreatment to the victim such
as stabbing and sexual battery. But kidnapping itself is a good indicator that HAC may be an
appropriate aggravating factor in the case.304
6.7.10 COLD, CALCULATED AND PREMEDITATED
The capital felony was a homicide and was committed in a cold, calculated, and
premeditated manner without any pretense of moral or legal justification (CCP).
This circumstance is as confusing as it is subjective. In 1994, the Supreme Court of Florida
declared the Standard Jury Instruction defining this aggravating factor to be unconstitutionally
vague.305 The Jackson case requires a definition of terms to be read to the jury and used by the judge
in applying this factor. These definitions are now part of the Standard Jury Instructions and have been
held sufficient to withstand constitutional attack.306 Some definitions that may be helpful to
understand this aggravator are:
"Cold" means "calm, cool reflection, and not an act prompted by emotional frenzy,
panic, or a fit of rage."307
"Calculated" means the defendant had a "careful plan or prearranged design to
commit the murder." A careful plan or prearranged design to kill is required--not a
careful plan to commit another crime and a killing also takes place.308
"Premeditated" is more than that required to prove first-degree, premeditated
murder. It is "heightened premeditation."309 "Heightened premeditation" is defined
as "deliberate ruthlessness."310 This definition is dangerous to use because it sounds
like HAC, and the Supreme Court did not use it in the newly adopted Standard Jury
304See Boyd, 2005 WL 318568.
305Jackson v. State, 648 So. 2d 85, 87 (Fla. 1994).
306Donaldson v. State, 722 So. 2d 177, 187 n.12 (Fla. 1998); Bowles v. State, 804 So. 2d 1173,
1177 (Fla. 2002).
307Jackson, 648 So. 2d at 89; Richardson v. State, 604 So. 2d 1107, 1109 (Fla. 1992).
308Pomeranz v. State, 703 So.2d 465, 471 (Fla. 1997); Jackson, 648 So.2d at 89-90; Valdes v.
State, 626 So.2d 1316, 1323 (Fla. 1993); Rogers v. State, 511 So.2d 526, 533 (Fla. 1987);
Hardwick v. State, 461 So.2d 79, 81 (Fla. 1984).
309Jackson, 648 So. 2d at 88.
310Fennie v. State, 648 So. 2d 95, 99 (Fla. 1994); Walls v. State, 641 So. 2d 381, 388 (Fla. 1994).
"Pretense of moral or legal justification" means "Any claim of justification or
excuse (such as self-defense) that, though insufficient to reduce the degree of
homicide, nevertheless rebuts the otherwise cold and calculating nature of the
A defendant who is "emotionally and mentally disturbed, or even mentally ill, can still have
the ability to experience cool, and calm reflection, make a careful plan or prearranged design to
commit murder, and exhibit heightened premeditation."312
There have been a number of cases in which the defendant has challenged the CCP aggravator
on the basis of "pretense of moral justification."
In Hill v. State,313 the defendant was convicted of murdering a physician who performed
abortions at an abortion clinic. He claimed he had a pretense of moral justification for the murder.
Surprisingly, there are a number of cases involving this situation that have been reported in the United
States.314 Many of them involve the "necessity" defense and involve trespass on abortion clinic
property. In the Hill opinion, the Supreme Court of Florida cited the City of Witchita case and quoted
the Kansas Supreme Court, which said, "Regardless of what name is attached to the defense (and for
the sake of simplicity we will refer to it as the necessity defense) one thing is clear: The harm or evil
which a defendant, who asserts the necessity defense, seeks to prevent must be a legal harm or evil
as opposed to a moral or ethical belief of the individual defendant."315
The Court went on to observe that "permitting a defendant to vindicate his or her criminal
activity in such a manner would be an invitation for lawlessness." Quoting Commonwealth v. Wall,316
the Court stated, "To accept appellant's argument would be tantamount to judicially sanctioning
vigilantism. If every person were to act upon his or her personal beliefs in this manner, and we were
to sanction the act, the result would be utter chaos."
The Supreme Court of Florida has rejected the "pretense of moral justification" argument in
a case in which the female defendant shot a police officer in the head as he bent down to pick up some
car keys she had dropped.317 The defendant claimed the officer was going to try to rape her. The
court reasoned that was a "purely subjective" belief. Nor was the court impressed with a defendant's
claim that he massacred his wife and two children with a machete to save them from going through
311Christian v. State, 550 So. 2d 450, 451-452 (Fla. 1989); Banda v. State, 536 So. 2d 221, 225
312Evans v. State, 800 So. 2d 182, 193 (Fla. 2001).
313Hill v. State, 688 So. 2d 901 (Fla. 1997).
314See U.S. v. Turner, 44 F.3d 900 (10th Cir. 1995); N.E. Women's Ctr., Inc. v. McMonagle, 868
F. 2d 1342 (3d Cir. 1989); City of Missoula v. Asbury, 873 P.2d 936 (Mont. 1994); City of
Witchita v. Tilson, 855 P.2d 911 (Kan. 1993); Jones v. City of Tulsa, 857 P.2d 814 (Okla. Crim.
App. 1993); State v. Rein, 477 N. W.2d 716 (Minn. Ct. App. 1991); State v. Horn, 377 N.W.2d
176 (Wis. Ct. App. 1985), aff'd, 407 N.W.2d 854 (Wis. 1987).
315City of Witchita, 855 P.2d at 914-916.
316 Commonwealth v. Wall, 539 A.2d 1325 (Pa. Super. Ct. 1988), appeal denied, 555 A.2d 114
317Jackson, 704 So. 2d at 505.
There are several cases that have disallowed CCP as an aggravator on "pretense of moral
justification" grounds. These cases involve prior difficulties with the victim who threatened violence
against the defendant such as "jumping at him"319 or a fellow inmate who "was a violent man who
had previously attacked the defendant in a homicidal rage and had continued to make threats against
the defendant up until the time he was killed."320
How do the definitions that are included in the Standard Jury Instructions apply to this
aggravating circumstance? The easiest cases are those involving contract murders, or execution-style
killings. The factor clearly applies to these type cases.321 Beyond these cases, determining the
application of CCP is not easy. All of the cases are fact-specific.
For instance, CCP is proven when the killing is a product of a careful plan or prearranged
design to commit murder before the fatal incident.322 Obtaining a weapon that cannot be traced to the
defendant shortly before the murder is evidence of CCP.323
In Almeida v. State,324 the defendant established both statutory mental mitigating
circumstances, and there was evidence he committed the murder after getting drunk and on impulse.
The court held the facts to be legally insufficient to support a finding of CCP.
The CCP factor did not generally apply to a "domestic" killing prior to 1996. The Supreme
Court did not view these cases as reflecting "calm, cool reflection," but "mad acts prompted by wild
emotion."325 Justice Anstead's dissent in Lawrence reviews all the "domestic" cases where CCP was
not allowed and questions how they can be distinguished from the present case. In 1998, the Supreme
Court allowed the CCP aggravator in two domestic murders: one a murder of a former girlfriend and
the defendant's child and one where the defendant murdered his wife and two children with a
The Court will now allow the CCP aggravator in "domestic murders" if the facts warrant it.
318Zakrewski v. State, 717 So. 2d 488, 492 (Fla. 1998).
319Cannaday v. State, 427 So. 2d 723, 730-731 (Fla. 1983).
320Christian v. State, 550 So. 2d 450, 452 (Fla. 1989).
321Gordon v. State, 704 So. 2d 107, 114 (Fla. 1997); McCray v. State, 416 So. 2d 804, 807 (Fla.
322Walls v. State, 641 So. 2d 381 (Fla. 1994).
323Dennis v. State, 817 So. 2d 741 (Fla. 2002).
324Almeida v. State, 748 So. 2d 922 (Fla. 1999).
325Santos v. State, 591 So. 2d 160 (Fla. 1991); Douglas v. State, 575 So. 2d 165 (Fla. 1991);
Richardson v. State, 604 So. 2d 1107 (Fla. 1992); Maulden v. State, 617 So. 2d 298 (Fla. 1993);
Spencer v. State, 645 So. 2d 377 (Fla. 1994). But see Cummings-El v. State, 684 So. 2d 729
(Fla. 1996) where the CCP factor was upheld in a domestic murder. See also, Lawrence v. State,
698 So. 2d 1219 (Fla. 1997) where the CCP factor was upheld.
326Walker v. State, 707 So. 2d 300 (Fla. 1998); Zakrzewski v. State, 717 So. 2d 488 (Fla. 1998).
Several of the earlier cases cited above would probably be decided differently today. Domestic
violence awareness, being the hot topic it is, has caused the Supreme Court of Florida to reassess their
position on this aggravator in domestic murders. The Court has recently stated that domestic
situations are evaluated the same way as other cases in determining whether the death penalty is
Unlike HAC, this factor can be applied vicariously.328 The heightened premeditation "does
not have to be directed toward the specific victim. It is the manner of killing, not the target which is
the focus of this aggravator."329
It is not considered doubling of aggravating circumstances to find that the homicide was both
HAC and CCP.330
Ex Post Facto Application
The CCP aggravator was enacted in 1979. However, murders occurring prior to this date can
be considered to be CCP if the sentencing or resentencing takes place after the CCP factor was
enacted without violating the ex post facto clauses of the United States or Florida Constitutions. The
Supreme Court of Florida has held that CCP does not add an entirely new factor as an aggravating
circumstance, but only reiterates in part what is already present in the elements of premeditated
6.7.11 VICTIM A LAW ENFORCEMENT OFFICER
The victim of the capital felony was a law enforcement officer engaged in the
performance of his official duties.
What if the murder victim is a police officer, but the defendant does not know it? What if he
did not know it, but should have known it? These questions have not been answered by the Supreme
Court of Florida. However, eight states have statutes that specifically require knowledge. States like
Florida, with no mention of knowledge in the statute, are divided on the issue.
For example, neither the Indiana nor New Mexico statutes specifically mention knowledge.
The Indiana Supreme Court has held that the defendant must know (not should have known) the
327Butler v. State, 842 So. 2d 817 (Fla. 2003).
328Howell v. State, 707 So. 2d 674, 682 (Fla. 1998); Sweet v. State, 624 So. 2d 1138, 1142 (Fla.
1993); Provanzano v. State, 497 So. 2d 1177, 1183 (Fla. 1986).
329Doorbal v. State, 837 So. 2d 940, 961 (Fla. 2003); Bell v. State, 699 So. 2d 674, 677-678 (Fla.
1997); Sweet v. State, 624 So. 2d 1138, 1142 (Fla. 1993).
330Jackson, 530 So. 2d at 273.
331Zeigler v. State, 580 So. 2d 1127 (Fla. 1991); Combs v. State, 403 So. 2d 418 (Fla. 1981).
victim was a police officer for this aggravating factor to apply.332 New Mexico has held that the
defendant need not know the victim was a police officer for its aggravating factor to apply.333
Until the Supreme Court of Florida specifically answers this question, it is safest to require
proof the defendant knew, or at least reasonably should have known, the victim was a police officer.
One case that may be of some assistance is Howell v. State.334 In that case, the Court found
the defendant "knew or could have reasonably foreseen" that law enforcement would search a vehicle
containing a bomb and thus rejected defendant's claim he did not knowingly kill a law enforcement
officer. Howell did not present a clear situation where the defendant did not know the victim was a
law enforcement officer, so that issue was not squarely before the Court.
The Court did determine the defendant must know the victim is a law enforcement officer as
an element of attempted murder of a law enforcement officer under Fla. Stat. §784.07(3), but that
statute seems to have a knowledge requirement.335
This aggravating circumstance almost always involves a "doubling" or "merger" problem.
Doubling occurs if this aggravating factor is combined with the avoiding arrest aggravator,
and the disrupting or hindering a law enforcement officer aggravator 336
Ex Post Facto Application
This aggravating factor was added in 1987. However, it can be applied to a murder of a law
enforcement officer occurring prior to the enactment of the aggravator without violating the ex post
facto clauses of the United States and Florida Constitutions. The Supreme Court of Florida has held
that this application is not an entirely new circumstance because "murder to prevent lawful arrest"
and "murder to hinder the lawful exercise of any governmental function or the enforcement of laws"
existed at the time of the murder, and the defendant was not prejudiced.337
6.7.12 VICTIM A PUBLIC OFFICIAL
The victim of the capital felony was an elected or appointed public official engaged
in the performance of his official duties, if the motive for the capital felony was
related, in whole or in part, to the victim's official capacity.
There are no reported cases involving this aggravating factor. However, it appears to be
relatively self-explanatory. The "knowledge" discussion under section (j) above is a consideration
332 Castor v. State, 587 N.E.2d 1281, 1290 (Ind. 1992).
333State v. Compton, 726 P.2d 837, 846-847 (N.M. 1986).
334Howell v. State, 707 So. 2d 674 (Fla. 1998).
335See Thompson v. State, 695 So. 2d 691 (Fla. 1997).
336Weaver v. State, 894 So. 2d 178 (Fla. 2004); Kearse v. State, 662 So. 2d 677 (Fla. 1995);
Armstrong v. State, 642 So. 2d 730 (Fla. 1994).
337Jackson, 648 So.2d 85, 92 (Fla. 1994); Valle v. State, 581 So.2d 40, 47 (Fla. 1991).
Ex Post Facto Application
See the discussion under section 6.7.14 below.
6.7.13 VICTIM LESS THAN 12 YEARS OF AGE
The victim of the capital felony was a person less than twelve years of age.
This aggravating circumstance was enacted in 1997 and is self-explanatory.
Ex Post Facto Application
In Rose v. State,338 the Court discussed the Ex Post Facto application of this aggravator and
determined that considering it was harmless error under the circumstances.339
Applying this aggravator to murders that occurred prior to the enactment date would probably
violate the ex post facto prohibition. In order for a law to fall within the ex post facto prohibition, it
must be "retrospective"; that is, it must apply to events occurring before its enactment, and it must
disadvantage the offender affected by it by altering the definition of criminal conduct or increasing
punishment for the crime. A law is "retrospective" for purposes of the ex post facto prohibition if it
changes the legal consequences of acts completed before its effective date. A law violates the Ex Post
Facto Clause, even where it merely alters penal provisions accorded by the grace of the legislature,
if it is both retrospective and more onerous than the law in effect on the date of the offense.340
It is improper doubling to find this circumstance and that the defendant was engaged in
aggravated child abuse at the time of the murder.341
6.7.14 VICTIM PARTICULARLY VULNERABLE DUE TO AGE
The victim of the capital felony was particularly vulnerable due to advanced age or
disability, or because the defendant stood in a position of familial or custodial
authority over the victim.
In Francis v. State,342 the Supreme Court of Florida rejected the finding of this aggravating
circumstance for the first time. The Court noted that aggravating circumstances must "not apply to
every defendant convicted of murder, but must apply only to a subclass of defendants convicted of
murder," The Court agreed that not every murder victim would fall into this category and found it
not to be unconstitutionally vague. A similar statute ("particularly vulnerable due to youth") has been
338Rose v. State, 787 So. 2d 786 (Fla. 2001).
339Lukehart v. State, 762 So. 2d 482 (Fla. 2000), withdrawn.
340State v. Hootman, 709 So. 2d 1357, 1358-1359 (Fla. 1998).
341Lukehart v. State, 776 So. 2d 906, 925 (Fla. 2000) .
342Francis v. State, 808 So.2d 110 (Fla. 2002) (citing Tuilaepa v. Cal., 512 U.S. 967 (1994)).
approved by a federal court.343 The issue the Court resolved in Francis is the application of the terms
"particularly vulnerable" and "advanced age."
In Francis, the two victims were twin sisters, 66 years of age. They appeared to be in
reasonable health for their age. No particular disability was shown. The Court resorted to statutory
construction to define "words of common usage" and, reading Webster's Dictionary, determined that
"particularly" means "to an unusual degree," "vulnerable" means "open to attack or damage,"
"advanced" means "far on in time or course," and "age" means "the length of an existence extending
from the beginning to any given time." Armed with these revelations, the Court held that "These are
words clearly comprehended by the average citizen." The victims in Francis were active 66-year-olds
who drove around in their vehicle and often attended garage sales. There was no evidence the women
required any assistance to attend to their daily needs. They were in good health. The Court held this
aggravator does not apply under those circumstances.
One of the reasons the trial judge believed this aggravator should apply was the "manner of
death and the nature of the wounds inflicted upon them." The Court held these factors to have "very
little relationship to the vulnerability of the victims. If that were the case, every murder victim would
The trial judge also found the victims to be within the class to which this aggravator applies
because they were 66 years old. The Court pointed out "that the statute clearly reads that the person
must not only be of `advanced age' but must instead be "particularly vulnerable due to advanced
age."345 The Court noted that the legislature did not establish a particular age for this aggravator and,
therefore, it does not apply unless the victim was "particularly vulnerable due to advanced age."
In Woodel v. State,346 the Supreme Court of Florida held that the finding of this aggravator is
not dependent on the defendant targeting his or her victim on account of the victim's age or disability.
In Woodel, the victims were husband and wife, ages 74 and 79. The husband "led a sedentary lifestyle
resulting from a triple bypass surgery. He previously had both knees replaced and walked with an
uneven gait." The wife suffered from arthritis and had lost partial use of her arm. Defensive wounds
were found on her other arm. The Court approved the finding of this aggravator under the
In Morrison v. State,347the defendant claimed on appeal that this aggravator is
unconstitutionally vague. Morrison's victim was 82 years old and had been totally disabled since
childhood. However, the court declined to rule on this issue because it was not preserved for review.
There is now a ready-made issue for postconviction relief if the issue is not presented earlier.
Ex Post Facto Application
The Supreme Court of Florida has determined the addition of this subsection was neither a
refinement of an existing aggravating circumstance nor a reiteration of an existing element of the
crime of first-degree murder, and thus, this aggravating factor cannot be applied to a murder that
343U.S. v. Pretlow, 779 F. Supp. 758, 774 (D.N.J. 1991).
344Francis, 808 So. 2d at 139.
346Woodel v. State, 804 So. 2d 316 (Fla. 2001).
347Morrison v. State, 818 So. 2d 432 (Fla. 2002).
occurred prior to the enactment of the subsection without violating ex post facto laws.348 The
subsection became law on May 30, 1996.
6.7.15 DEFENDANT A MEMBER OF A STREET GANG
The capital felony was committed by a criminal street gang member, as defined in F.S.
This aggravating factor will be problematical for at least two reasons:
The statute is very confusing.
2. It would probably be unconstitutional to apply this aggravating factor if the defendant's
being a street gang member was unrelated to the murder.349
Ex Post Facto Application
See the discussion above in 6.7.13 and 6.7.14 above
6.7.16 PROOF PROBLEMS
(a) Burden of proof.
Each aggravating circumstance must be proven beyond a reasonable doubt. Inferences,
speculation and probabilities are not enough.350
(b) Additional proof.
Most aggravating circumstances will not require additional proof in the sentencing phase, but
will have been established or not at the guilt stage of the trial. Aggravating circumstances involving
prior criminal history will require additional proof in the penalty phase. Evidence to prove these
factors is usually offered in the form of stipulations, certified copies of judgments and sentences (or
live testimony) and business records.
Live testimony by the victim is allowed to prove a prior crime of violence.351 In the Singleton
case, the Supreme Court of Florida approved the victim of the defendant's prior crime using her
prosthetic arm to be sworn in and to point to defendant, even though the defendant's earlier crime had
involved cutting off the victim's arms. However, the Court has discouraged the use of photos of the
348Hootman, 709 So. 2d at 1358-1360 (Fla. 1998), rev'd on other grounds by State v. Matute-
Chirinos, 713 So. 2d 1006 (Fla. 1998).
349Dawson v. Del., 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992).
350Knight v. State, 746 So. 2d 423, 435 (Fla. 1998).
351Singleton v. State, 783 So. 2d 970, 977-978 (Fla. 2001); Stewart v. State, 558 So. 2d 416, 419
prior crime.352 It is error to introduce a blowup of a photo used in the guilt phase of the trial in the
penalty phase.353 The use of an autopsy report of the prior crime of violence is also discouraged.354
(c) Admissibility of evidence.
Evidence is admissible in the penalty phase if it is probative. The strict evidentiary rules are
relaxed, at least to some extent. Evidence obtained in violation of a defendant's Fourth or Fifth
Amendment rights is generally inadmissible. The United States Supreme Court has recognized that
evidence that violates defendant's First Amendment right of association is generally inadmissible.355
The Florida death penalty scheme allows "any such evidence which the Court deems to have
probative value" to be received in the penalty phase of a capital trial "regardless of its admissibility
under the exclusionary rules of evidence provided the defendant is accorded a fair opportunity to rebut
any hearsay statements."356 Thus, hearsay is admissible to prove both statutory and nonstatutory
mitigating circumstances. Not all states allow this relaxed standard of evidence but the Supreme
Court of the United States has held in one case that hearsay should at least be allowed to prove
mitigation.357 Admitting hearsay in the penalty phase has caused more problems than it has solved.
In Garcia v. State,358 the Court held the fact the defendant's counsel did not know hearsay
was admissible in the penalty phase constituted ineffective assistance of counsel, and the defendant
won a new sentencing hearing before a new jury, in part, because of this oversight.
Other rules of evidence may have to be complied with before the hearsay is admissible. For
instance, the state may have to show a witness is unavailable before admitting a hearsay statement.359
However, a showing of witness unavailability is not always required. In Lawrence v. State,360, a
majority of the Court allowed a transcript from the original trial to be read even though the State
could not prove the unavailability of the witness. Additionally, before hearsay is admissible, the
352Elledge v. State, 613 So. 2d 434, 436 (Fla. 1993); Duncan v. State, 619 So. 2d 279, 282 (Fla.
1993); contra Lockhart v. State, 655 So. 2d 69, 72-73 (Fla. 1995).
353Ruiz v. State, 743 So. 2d 1, 8 (Fla. 1999).
354Henry v. State, 649 So. 2d 1366, 1369 (Fla. 1994).
355Dawson v. Del., 503 U.S. 159, 164-165 (1992).
356FLA. STAT. § 921.141; Cannady v. State, 620 So. 2d 165, 169 (Fla. 1993).
357Green v. Ga., 442 U.S. 95, 99 (1979).
358Garcia v. State, 622 So. 2d 1325, 1327 (Fla. 1993).
359Hitchcock v. State, 578 So.2d 685, 690 (Fla. 1990), rev'd on other grounds, 505 U.S. 1215
360Lawrence v. State, 691 So. 2d 1068 (Fla. 1997).
State, like the defendant must have a fair opportunity to rebut the hearsay evidence.361
The Supreme Court of Florida has held the mere fact a defendant has an opportunity to
cross-examine the witness who is testifying to the hearsay does not alone constitute a fair opportunity
to rebut the hearsay statement for purposes of admissibility of evidence during the penalty phase of
capital murder trial. Accordingly, the State may not use a police officer to testify to hearsay statements
of a jailhouse informant whose statement negates a mitigating circumstance.362
Another limitation excludes hearsay statements from a non-testifying codefendant who
implicates the defendant, and establishes aggravating circumstances.363 Furthermore, a defendant is
not allowed to present hearsay from witnesses who are unavailable because of death, incompetency
through mental illness such as Alzheimer's or disappearance.364
At least one federal court has questioned how any fact can be proven beyond a reasonable
doubt through hearsay evidence.365 A number of states, e.g., Louisiana, require the rules of evidence
to apply during the penalty phase.366 Other states, e.g., Arizona and Connecticut,367 require the
prosecution to follow the rules of evidence and allow the defendant to use hearsay. There are other
variations as well. Since the issue being proven is truly a matter of life or death, the argument against
hearsay is persuasive since proof of aggravating circumstances must be made beyond a reasonable
doubt. Wise prosecutors will avoid the use of hearsay testimony during the penalty phase.
The United States Supreme Court has recently restricted the use of hearsay testimony under
the Confrontation Clause of the Sixth Amendment.368
In an opinion by Justice Scalia, the Court stated, "We once again reject the view that the
Confrontation Clause applies of its own force only to in-court testimony, and that its application to
out-of-court testimony statements introduced at trial depends upon `the law of Evidence for the time
being.' Leaving the regulation of out-of-court statements to the law of evidence would render the
Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." The Court
went on to hold that out-of-court statements that are "testimonial" in nature such as ex parte in-court
testimony or its equivalent such as affidavits, custodial examinations, and prior testimony that the
defendant did not have the opportunity to cross-examine are not admissible. The testimony of an
"unavailable witness" is only admissible if there has been a prior opportunity to cross-examine. The
Court looked to the common law in 1791 and explained that exceptions to the rule included business
records and statements in furtherance of a conspiracy, neither of which are testimonial in nature. The
Court declined to generally define which statements it might consider to be "testimonial." However,
the Court mentioned "affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be
361Blackwood v. State, 777 So. 2d 399, 411-412 (Fla. 2000).
362Rodriquez v. State, 753 So. 2d 29, 45 (Fla. 2000).
363Ramirez v. State, 739 So. 2d 568, 581 (Fla. 1999); Franqui v. State, 699 So.2d 1332, 1336
364Parker v. State, 873 So. 2d 270, 282 (Fla. 2004).
365U.S. v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002).
366State v. English, 367 So. 2d 815, 817 (La 1979).
367ARIZ. REV. STAT. § 13-703 (2002); CONN. GEN. STAT. § 53a-46a.
368Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The Court receded from its holding in Ohio v. Roberts370 to the extent it allowed judges to
determine the "adequate indicia of reliability" of an out-of-court statement.
The holding in Crawford will probably restrict the presentation of hearsay in Florida and
elsewhere from the penalty phase of a capital case, at least by the prosecution. However, most of the
aggravating circumstances available to the state are proven during the course of the guilt phase of the
trial, and Crawford will not have any bearing on that proof.
The State is not required under present law to give notice of which aggravating circumstances
will be relied upon.371 However, the regular criminal rules of discovery require the State to disclose
a broad range of documents, statements and tangible evidence that will be used in both the guilt and
penalty phase of the trial. The defense must do likewise if the defendant elects to participate in
discovery, so both sides should be able to determine the aggravating and mitigating factors to be
relied upon in the penalty phase.372 It is likely, given the rulings in Ring373 and Apprendi,374 the United
States Supreme Court will eventually require aggravating circumstances to be included in the
6.7.17 VICTIM-IMPACT EVIDENCE
Prior to Payne v. Tennessee,375 the United States Supreme Court had held the Eighth
Amendment, per se, prohibited victim-impact statements from being admitted in a capital sentencing
procedure.376 The case of So. Carolina v. Gathers377 extended Booth to prohibit prosecutorial
comment on the victim's personal characteristics. Payne overruled Booth and Gathers to allow this
type of testimony and argument. However, this evidence is admissible only if state law permits it.
Further, Payne does not affect Booth's additional holding that the Eighth Amendment bars
admissions of opinions of the victim's family about the crime, the defendant, and the appropriate
penalty for the defendant. Trial judges should preclude members of the victim's family from
recommending a sentence, whether it is life or death.378
369Crawford, 541 U.S. at 50-51.
370Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
371Mines v. State, 390 So. 2d 332, 336 (Fla. 1980).
372FLA. R. CRIM. P. 3.220.
373Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
374Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
375Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).
376Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987).
377South Carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989).
378Floyd v. State, 569 So. 2d 1225, 1231 (Fla. 1990).
Florida has passed legislation that allows victim-impact testimony.379 There are many
Supreme Court of Florida cases that permit victim-impact testimony.380 Victim-impact testimony
causes problems because it does not relate to any aggravating circumstance and thus appears to be
irrelevant to the sentencing process. However, in light of the many cases that permit it, this evidence
should be allowed if the State offers to present it.
Some trial judges encourage the state attorney to resist the significant chance of error in the
presentation of this evidence before the jury. It can more safely be presented at the Spencer hearing
after the jury makes its recommendation. This procedure is the wisest course to follow. If necessary,
in a proper case, ordering victim-impact evidence to be presented at the Spencer hearing can be
justified due to its prejudicial effect.
The cases of Burns v. State,381 and Looney v. State,382 discuss all the challenges made to
victim-impact evidence and rejects them all. In Looney, the defendant argued that the victim-impact
statute was unconstitutional because the court has ruled it to be "procedural" and an infringement on
the Court's rule-making authority. The Court rejected that argument by stating that "such a violation
occurs when the `legislatively imposed procedure' conflicts with this Court's own rule regulating the
In Sexton v. State,384 the Court discussed proper and improper victim-impact testimony. In
Sexton, the Court stated, ". . . we caution that any victim-impact evidence must conform strictly to the
parameters of the statute and our prior case law in order to avoid any potential danger of the testimony
exceeding the purposes for which it is admissible." The victim-impact statute [F.S.921.141(7)]
specifically regulates the content of victim-impact statements:
Once the prosecution has provided evidence of the existence of one or more
aggravating circumstances as described in subsection (5), the prosecution may
introduce, and subsequently argue, victim-impact evidence. Such evidence
shall be designed to demonstrate the victim's uniqueness as an individual
human being and the resultant loss to the community's members by the
victim's death. Characterizations and opinions about the crime, the defendant,
and the appropriate sentence shall not be permitted as a part of victim-impact
It is not unusual for the family of a murder victim to want to put on a show for sympathy in
order to encourage the jury to return a recommendation for the death penalty. Trial judges have an
affirmative duty not to allow this to happen. Victims demanding an apology from the defendant or
expressing a preference for the death penalty are often seen on television. That is not the purpose of
victim-impact testimony, and these comments should not be allowed.
379FLA. STAT. § 921.141(7).
380Bonifay v. State, 680 So. 2d 413, 419-420 (Fla. 1996); Branch v. State, 685 So. 2d 1250, 1253
(Fla. 1996); Farina v. State, 680 So. 2d 392, 399 (Fla. 1996); Allen v. State, 662 So. 2d 323 (Fla.
1995); Windom v. State, 656 So. 2d 432, 438 (Fla. 1995).
381Burns v. State, 699 So. 2d 646 (Fla. 1997).
382Looney v. State, 803 So. 2d 656 (Fla. 2001).
383Id. at 676; See also Jackson v. Fla. Dep't of Corr., 790 So. 2d 381, 385 (Fla. 2000).
384Sexton v. State, 775 So. 2d 923 (Fla. 2000).
In Scott Peterson's recent murder trial in California, the parents of the victim (Peterson's
pregnant wife) were allowed to make victim-impact statements. They "ripped into Peterson and
begged for answers." They characterized the defendant as "selfish, arrogant, heartless and cowardly."
The victim's brother asked, "You have no idea of what we've gone through . . . Did you really hate
Luci and Conner that much?" He blasted Peterson for his "rich kid" persona that he said he adopted
to make himself feel better. This outburst caused a member of the defendant's family to shout "Liar!"
and be escorted from the courtroom by deputy sheriffs. The victim's mother called the defendant an
"evil murderer."385 This is precisely the type of "impact evidence" that is forbidden by both the
United States Supreme Court and the Supreme Court of Florida. All trials, especially death penalty
trials, are solemn, dignified proceedings. This type of insulting, vindictive outburst may be
appropriate in courts in Third World countries but it cannot be tolerated here.
The Supreme Court of Florida has not reversed a penalty phase trial because of improper
victim impact evidence. However, the Court has ruled this testimony has specific limits and has
cautioned trial judges to require victim-impact evidence to conform strictly to the parameters of the
statute and prior case law in order to avoid any potential danger of the testimony exceeding the
purposes for which it is admissible.386
In addition to testimony with traditional questions and answers, the Court has approved
allowing prepared statements by the victim's family members to be read to the jury.387 The fact that
family members read from a prepared statement does not diminish the defendant's right to cross-
examine the witness.
Even though victim-impact evidence is admissible, the question of whether the prejudice
outweighs the probative value of this type of testimony must be answered. Limiting the number of
witnesses to one or two will assist in solving this problem.
DEFENDANT'S EVIDENCE IN SUPPORT OF A LIFE SENTENCE
In the penalty phase of a capital case, mitigating circumstances are defined as "factors that,
in fairness or in totality of defendant's life or character, may be considered as extenuating or reducing
degree of moral culpability for crimes committed."388 Mitigating circumstances also include "any
other aspect of the defendant's character or record, [and] any other circumstances of the offense."389
There are two types of mitigating circumstances; statutory and non-statutory. The fact that
a mitigating circumstance is listed in the statute does not, by itself, mean it should be given any
greater weight than a non-statutory mitigating circumstance. However, there are differences between
the two. Proof of a statutory circumstance requires the trial judge to give it the weight it deserves.
There does not have to be a "nexus" between the statutory mitigating circumstance and the crime
itself before it can be assigned weight.390 And, while non-statutory mitigation requires no "nexus'
either, it is subject to the test of (1) whether the circumstance is truly mitigating, and (2) whether it
385Contra Costa (Cal.)Times.
386Sexton, 775 So. 2d 931, 933.
387Damren v. State, 696 So. 2d 709, 712-713 (Fla. 1997); Davis v. State, 703 So. 2d 1055, 1060
(Fla. 1997); Sexton, 775 So. 2d at 931-932 (Fla. 2000).
388Consalvo v. State, 697 So. 2d 805, 818-819 (Fla. 1996).
389Jones v. State, 652 So. 2d 346, 351 (Fla. 1995).
390Cox v. State, 819 So. 2d 705, 718 (Fla. 2002).
is mitigating in the case at hand.391 A lack of a "nexus" can justify reducing the weight assigned to
a particular mitigating circumstance.392
Under the Florida death penalty scheme, the trial judge is required to consider all mitigating
evidence presented by the defendant and supported by the evidence. The trial court "must expressly
evaluate in its written order each mitigating circumstance proposed by the defendant to determine
whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly
mitigating in nature."393
Mitigating circumstances do not have to be proven beyond a reasonable doubt. It is sufficient
if the Court or the jury is "reasonably convinced" that a mitigating circumstance has been
established.394 Occasionally, individual justices slip and refer to the burden of proof to establish
mitigating circumstances to be the "preponderance of the evidence."395 Sometimes the error occurs
within the Court's opinion.396 Other states, e.g., Nebraska, have the preponderance of the evidence
standard, but that is not the case in Florida. Franqui v. State, 804 So. 2d 1185 (Fla. 2001).
STATUTORY MITIGATING CIRCUMSTANCES
The statute contains a list of certain mitigating circumstances that must be considered if the
Court is "reasonably convinced" they are established by the evidence . The defense is not limited,
however, to these statutory mitigating circumstances.
NO SIGNIFICANT PRIOR CRIMINAL HISTORY
The defendant has no significant history of prior criminal activity.
Prior criminal activity means prior to the murder. A defendant is entitled to have the jury
consider this mitigating circumstance if his only criminal activity occurred after the murder but prior
Prior criminal history is not limited to violent felonies, as in the prior capital or violent-felony,
aggravating circumstance. Therefore, if the defendant intends to rely on this mitigating circumstance,
the State may rebut it by showing prior convictions for nonviolent felonies, misdemeanors, and even
juvenile records of delinquent acts.398 Furthermore, the State "is not limited to convictions when
391Knight v. State, 726 So. 2d 423, 426 (Fla. 1998).
392Cox, 819 So. 2d at 718.
393Walker v. State, 707 So. 2d 300, 318 (Fla. 1997).
394Bottoson v. State, 833 So.2d 693, 695 (Fla. 2002); Ford v. State, 802 So.2d 1121, 1133-1134
(Fla. 2001); Rivera v. State, 717 So.2d , 484-485 (Fla. 1998). See also Fla. Standard Jury
Instructions in Criminal Cases, 7.11.
395Ford, 802 So. 2d at 1136, Pariente, J., concurring in the result.
396Weaver v. State, 894 So. 2d 178, 197 (Fla. 2004); Bryant v. State, 785 So. 2d 422, 431 (Fla.
397Hess v. State, 794 So. 2d 1249, 1265 (Fla. 2001).
398Booker v. State, 397 So.2d 910 (Fla. 1981); Quince v. State, 414 So. 2d 185, 188 (Fla. 1982).
rebutting this mitigator."399 "Arrests and other evidence of criminal activity, without convictions, may
be `significant' and may rebut this mitigator."400
In Walton v. State,401 the defendant presented as mitigation that he had never been convicted
of a crime; he was a quiet, kind, considerate and nonviolent person; he had adjusted to prison life and
was not a threat to others; he had an honorable discharge from the army; and he had a normal
childhood. In rebuttal, the prosecutor presented evidence that Walton had purchased marijuana on
three occasions, he sold marijuana and that a person had been seen carrying a 50-pound bag of
marijuana towards Walton's house.402
However, the Court has held it to be an abuse of discretion for the trial judge to find that a
17-year-old defendant's arrest for stealing a $10 bill from the dashboard of a truck through an open
window militated against giving this factor significant weight. The Court noted adjudication was
withheld, and the defendant had successfully completed an alternative program.403
If the defendant announces this mitigating circumstance will not be relied upon, no evidence
of nonviolent prior criminal activity can be elicited or introduced by the State. Neither should this
circumstance be read to jury or argued by either side.404 The word "prior" in considering this
circumstance means prior to the commission of the murder rather than prior to the defendant's
sentencing.405 The United States Supreme Court has held that, if the record is silent on this factor,
no jury instruction need be given.406 In other words, the defendant must either get a stipulation from
the State that this factor exists or present some evidence to support it in order to be entitled to a jury
instruction. Oral testimony by the defendant, or a family member, is sufficient.
When a defendant has no significant prior criminal history, it is error not to find this
EXTREME MENTAL OR EMOTIONAL DISTURBANCE
The capital felony was committed while the defendant was under the influence of
extreme mental or emotional disturbance.
This mitigating circumstance does not require the establishment of insanity, or lack of legal
399Lucas v. State, 568 So. 2d 18, 22 n.6 (Fla. 1990).
400Walton v. State, 547 So. 2d 622, 625 (Fla. 1989); Dennis v. State, 817 So. 2d 741, 763 (Fla.
401Walton, 547 So. 2d at 625.
403Ramirez v. State, 739 So. 2d 568 (Fla. 1999).
404Maggard v. State, 399 So. 2d 973 (Fla. 1981).
405Scull v. State, 533 So. 2d 1137 (Fla. 1988); Harvey v. Dugger, 650 So. 2d (Fla. 1995).
406Delo v. Lashley, 507 U.S. 272, 113 S. Ct. 1222, 122 L. Ed. 2d 620 (1993).
407Hess, 794 So. 2d at 1265.
responsibility.408 It can be argued to the jury and the Court, with or without expert testimony, if the
facts of the defendant's behavior show his mental condition contributed to his criminal behavior. For
example, the fact that the defendant was intoxicated or under the influence of narcotics can support
establishment of this factor.409
When experts testify as to this mitigating factor, and their opinions conflict, the jury, and
ultimately the sentencing judge, must reconcile these conflicts. If, after considering the conflicting
testimony, the trial judge determines this mitigating factor does not exist, that finding will not
generally be disturbed on appeal.410 If the testimony is not in conflict, it may be error for the trial
judge not to find this mitigating factor.411 However, in a more recent opinion, the Supreme Court of
Florida held, "Even uncontroverted opinion testimony can be rejected, especially when it is hard to
reconcile with the other evidence presented in the case."412 But there must be "other evidence" in the
case that makes reconciliation "hard." In Crook v. State,413 the uncontroverted evidence established
the defendant had a well-documented head injury at age five when he was hit in the head with a pipe.
After that time, he exhibited signs of neurological damage because he switched from being right-
handed to being left-handed and was found not to be tracking visually. Testimony established that
the defendant had frontal lobe brain damage which caused "difficulty in controlling his behavior and
was prone to impulsive and aggressive behavior including rage.'" One expert opined that the
defendant's brain was "broken." The trial court rejected the brain-damage testimony. The Court
disagreed stating, "Whenever a reasonable quantum of competent, uncontroverted evidence has been
presented, the trial court must find that the mitigation has been proved. All `believable and
uncontroverted mitigating evidence contained in the record must be considered and weighed in the
sentencing process.' A trial court, however, may reject proffered mitigation if the record provides
competent substantial evidence to support the trial court's decision."414 The Court considers "brain
damage" to be "a significant mitigating factor."415
In the Crook case, the defendant was also borderline mentally retarded. The decision in Crook
predated the United States Supreme Court's decision finding it unconstitutional to execute a mentally
retarded defendant. It also predated the recently enacted Florida Statute that deals with the subject.416
However, since Crook's I.Q. was around 70, he might not have met the requirements under Florida's
408Francis v. State, 808 So. 2d 110, 140 (Fla. 2002); Morgan v. State, 639 So. 2d 6, 13 (Fla.
1994); Knowles v. State, 632 So. 2d 62, 67 (Fla. 1993); Huckaby v. State, 343 So. 2d 29, 33-34
409See, Holsworth v. State, 522 So. 2d 348 (1988).
410Martin v. State, 420 So. 2d 583 (Fla. 1982); Walker v. State, 707 So. 2d 300 (Fla. 1998).
411Mann v. State, 420 So. 2d 578 (Fla. 1982); Nibert v. State, 574 So. 2d 1059 (Fla. 1990);
Knowles v. State, 632 So. 2d 62 (Fla. 1993).
412Foster v. State, 679 So. 2d 747, 755 (Fla. 1996). See also Holland v. State, 773 So. 2d 1065
(Fla. 2000); Wuornos v. State, 676 So. 2d 972 (Fla. 1996).
413Crook v. State, 813 So. 2d 68 (Fla. 2002).
414Id. at 76.
415Id. at 77.
416FLA .STAT. § 921.137, superceded by Fla. R. Crim. P.3.202.
statute. Interestingly, a Social Security evaluation established Crook was incapable "of maintaining
employment within a competitive work setting due to his severe cognitive, emotional and behavioral
defects." The trial court erred in failing to consider Crook's borderline mental retardation.
The weight to be given this circumstance is up to the jury and the sentencing judge.
VICTIM PARTICIPATED OR CONSENTED
The victim was a participant in the defendant's conduct or consented to the act.
This mitigating circumstance is most often used in cases of self-defense. Even if the jury
rejects the defense in the guilt phase, the jury or the sentencing judge may consider the victim's
participation in mitigating the defendant's sentence.417 In Chambers, the victim and the defendant
voluntarily shared a long-standing, sado-masochistic relationship, which included severe and
disabling beatings. The jury recommended a life sentence, but the trial judge sentenced the defendant
to death. The Court reversed on Tedder grounds. Had the jury recommended a death sentence today,
the result in Chambers may have had a different focus. "Domestic violence" is less tolerated today.
In Wuornos v. State,418 the defendant, a prostitute, murdered one of her customers and
attempted to invoke this mitigating circumstance because the victim "assumed the risk of bodily
harm" when he sought the services of a prostitute. The Court stated:
It would be absurd to construe this language as applying whenever victims have
engaged in some unlawful or even dangerous transaction that merely provided the
killer a better opportunity to commit murder, which the victim did not intend. What
the language plainly means is that the victim has knowingly and voluntarily
participated with the killer in some transaction that in and of itself would be likely to
result in the victim's death, viewed from the perspective of a reasonable person. An
example would be two persons participating in a duel, with one being killed as a
result. The statute does not encompass situations in which the killer surprises the
victim with deadly force, as happened here under any construction of the facts.419
This mitigator also applies in mercy killings if the victim asked to be killed.
VICTIM WAS AN ACCOMPLICE OR MINOR PARTICIPATION BY DEFENDANT
The defendant was an accomplice in the capital felony committed by another person, and his
participation was relatively minor.
If there is any evidence to support this mitigating factor, it must be given to the jury to
consider the appropriate weight.420
This circumstance is not applicable to a defendant who hires another person to commit the
murder, even if the defendant is not present at the time of the homicide and does not participate in
417See Chambers v. State, 339 So. 2d 204 (Fla. 1976).
418Wuornos, 676 So. 2d at 975.
420Robinson v. State, 487 So. 2d 1040 (Fla. 1986).
It is important to note this is different from the Enmund situation where the defendant is not
eligible for the death penalty but it would be appropriate in a case like Tison, because, while the
defendant may be death-eligible, he or she may have been a minor participant in the homicide. In
such a case, the jury should be instructed on this mitigating circumstance, and it should be included
in the sentencing order.
DEFENDANT UNDER EXTREME DURESS OR DOMINATION BY ANOTHER
The defendant acted under extreme duress or under the substantial domination of
This circumstance occurs most often when one codefendant is significantly younger than
another and under the domination of the older person422. It could also apply in a mercy killing if the
victim begs a defendant to kill him.
Generally, duress "refers not to internal pressures but rather to external provocations such as
imprisonment or the use of force or threats." 423
Failure to give this instruction has been held to be error in light of testimony that defendant
suffered from pyromania, was borderline retarded, suffered from personality disorder, and at the time
of the fire was overwhelmingly taken by impulse.424
When a defendant is committing a burglary and is "surprised" by the victim, the fact that the
defendant "lost control" is not the type of duress this mitigating circumstance was designed to
Likewise, this mitigator does not apply if, during a burglary, the victim gets loose from his
bindings and attacks the defendant.426
CAPACITY TO APPRECIATE CONDUCT SUBSTANTIALLY IMPAIRED
The capacity of the defendant to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was substantially impaired.
Evidence of this circumstance is usually introduced when a defendant is not legally insane,
but has mental problems that limit the capacity to conform conduct to the requirements of law. If
the trial judge does not recognize the distinction, the case will likely be sent back for
reconsideration.427 If there is any evidence to support this circumstance, the jury must be informed
421Atone v. State, 382 So. 2d 1205 (Fla. 1980).
422Witt v. State, 342 So. 2d 497 (Fla. 1977)
423Toole v. State, 479 So. 2d 731, 733 (Fla. 1985).
424Id. at 734.
425Blanco v. State, 706 So. 2d 7 (Fla. 1997).
426Walls v. State, 641 So. 2d 381 (Fla. 1994).
427Ferguson v. State, 417 So. 2d 631 (Fla. 1982).
of it, and the judge must consider it in the sentencing order.428 Gudinas v. State429 is a case in which
the Supreme Court of Florida sustained a judge's rejection of this mitigator, even when a doctor
testified it existed. The doctor's opinion was based upon unsupported facts. So long as the
sentencing court recognizes and considers this mitigating factor, the weight it is given will generally
not be disturbed.430 The Supreme Court has held evidence the defendant consumed alcoholic
beverages, without more, does not require a jury instruction on the statutory mitigating circumstance
of impaired capacity.431
AGE OF THE DEFENDANT
The age of the defendant at the time of the crime.
This mitigating circumstance does not apply to a defendant who is 17 years old or younger
at the time of the murder. Those defendants are ineligible for the death penalty as a matter of law.432
It applies to defendants who are death-eligible (over 18 years old).
It has been said that there is one thing about age: everybody has one. The age of a defendant,
whether youthful, middle-aged, or aged, is a relevant factor to consider in determining whether to
mitigate the defendant's punishment. The jury should be instructed on this mitigating circumstance
any time it is requested by the defense.433 In Blackwood v. State,434 the defendant was 37 years of age
and the defendant did not request his age to be considered by the jury. The Court suggested it may
have been error not to consider the defendant's age if he had requested it, but the error would have
been harmless under the facts of that case. A clear reading of this case suggests, if the age mitigator
is requested, it would be prudent for the trial judge to give it and weigh it in the sentencing order.435
In the case of Caballero v. State,436 the Court stated:
The determination of whether age is a mitigating factor depends on the
circumstances of each case, and is within the trial court's discretion. Scull v. State, 533
So. 2d 1137, 1143 (Fla.1988). Under our review for abuse of discretion, we will
uphold the trial court's determination unless it is "arbitrary, fanciful, or unreasonable,"
428Knowles, 632 So. 2d at 67 (Fla. 1993); Stewart v. State, 558 So. 2d 416 (Fla. 1990); Mann,
420 So. 2d at 581; Huckaby, 343 So. 2d at 33.
429Gudinas v. State, 693 So. 2d 953 (Fla. 1997).
430Quince v. State, 414 So.2d 185 (Fla. 1982); Campbell v. State, 571 So.2d 415 (Fla. 1990);
Gudinas, 693 So.2d at 966.
431Duest v. State, 855 So. 2d 33 (Fla. 2003).
432Roper v. Simmons, 125 S. Ct. 1183, 1195-1196 (2005).
433Archer v. State, 673 So. 2d 17 (Fla. 1996); Campbell, 679 So. 2d at 725-726.
434Blackwood v. State, 777 So. 2d 399, 410 (Fla. 2000)
435See also Mahn v. State, 714 So.2d 391 (Fla. 1998); Gudinas, 693 So.2d at 967 (Fla. 1997);
Smith v. State, 492 So.2d 1063 (Fla. 1986).
436Caballero v. State, 855 So. 2d 655 (Fla. 2003).
so that no reasonable person would adopt the trial court's view. Canakaris v.
Canakaris, 382 So. 2d 1197, 1203 (Fla .1980). This Court has frequently held that a
sentencing court may decline to find age as a mitigating factor in cases where the
defendants were twenty to twenty-five years old at the time their offenses were
committed. See Garcia v. State, 492 So. 2d 360, 367 (Fla.1986); Mills v. State, 476
So. 2d 172, 179 (Fla.1985).
Caballero was 20 when he murdered his victim. The trial court considered his age "in light
of the evidence presented" and rejected age as a mitigating factor because Caballero did not
demonstrate a lack of mental or emotional maturity, nor did he demonstrate that he was unable to take
responsibility for or appreciate the consequences of his acts. The Court agreed. The Court has held
that the age-mitigating factor must be found if the defendant is 17. Presumably, that decision now
applies to defendants who are 18. It is the weight that can be diminished by evidence showing
unusual mental or emotional maturity .437 But, it is also clear "the closer the defendant is to the age
where the death penalty is constitutionally barred, the weightier this statutory mitigator becomes."438
In Ramirez v. State,439 the Court held the lower court abused its discretion in giving "little weight"
to the defendant's age at the time of the crime (one month over 17) when there was uncontroverted
testimony the defendant was emotionally, intellectually, and behaviorally immature.
The Court has recently stated that "(f)or a court to give a non-minor defendant's age
significant weight as a mitigating circumstance at sentencing phase of capital murder case, the
defendant's age must be linked with some other characteristic of the defendant or the crime, such as
significant emotional immaturity or mental problems."440 For instance, while the age of 21
chronological years is of little import by itself, if it is linked to "some other relevant characteristic of
the defendant or the crime," such as significant emotional immaturity, it can become significant
In Thompson v. State,442 the trial judge gave "considerable weight" to the defendant's
intellectual deficit and mild mental retardation. This case was decided long before the United States
Supreme Court declared the execution of mentally retarded persons to violate the Eighth
Amendment.443 The opinion in Thompson does not focus on the extent of the defendant's mental
retardation but, assuming it is not severe enough to avoid the death penalty altogether, it should be
considered with the age mitigator if the defendant is relatively young.
The "aging defendant" presents another problem. When is "advanced age" a mitigating
circumstance? The Supreme Court of Florida has held age 54 not to be mitigating because age 54 is
437Ellis v. State, 622 So. 2d 991 (Fla. 1993); Morgan v. State, 639 So. 2d 6 (Fla. 1994); Shellito
v. State, 701 So. 2d 837 (Fla. 1997).
438Urbin v. State, 714 So. 2d 411, 418 (Fla. 1998).
439Ramirez v. State, 739 So. 2d 568 (Fla. 1999).
440Hurst v. State, 819 So. 2d 689 (Fla. 2002).
441Campbell v. State, 679 So. 2d 720 (Fla. 1996); Fitzpatrick v. State, 527 So. 2d 809 (Fla. 1988).
442Thompson v. State, 648 So. 2d 692 (Fla. 1994).
443Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
not "advanced enough to require special consideration."444 The age of 58 years has also been held to
lack mitigating significance.445
OTHER STATUTORY MITIGATING FACTORS
The existence of any other factors in the defendant's background that would mitigate
against imposition of the death penalty.
In 1996, the Florida Legislature added two entirely new aggravating circumstances.446 It
amended two other aggravators.447 It also added this new mitigating factor.448 This addition really
did not add anything to Florida's body of case law, except that many mitigating circumstances that
were previously classified as non-statutory mitigating circumstances will now be classified as
statutory mitigating circumstances. No reported Florida case suggests that nonstatutory mitigating
circumstances should be given different weight than statutory mitigating circumstances. The United
States Supreme Court requires the jury and the judge to consider and weigh any aspect of the
defendant's character or record, and any aspect of the offense that was mitigating.449 The legislature
simply reclassified recognized nonstatutory "background" mitigating circumstances to be included
as statutory mitigating circumstances. Among those included in the new statute are:
(1) Family background
Generally, family background problems can be considered as a mitigating circumstance.450
Usually this mitigating circumstance becomes an issue worthy of significant weight when the
defendant has a "troubled background with a family history of instability, poverty or abuse."451 While
it is unclear how much weight a "good family background" should be given, it is error to completely
reject this mitigator as worthy of no weight.452
444Agan v. State, 445 So. 2d 326 (Fla. 1984).
445Echols v. State, 484 So. 2d 568 (Fla. 1986).
446FLA. STAT. § 921.141 (5)(m)-(n).
447Id. at (5)(a), (d).
448Id. at (6)(h).
449Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989); Eddings v.
Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586,
98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).
450Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987); Brown v. State,
526 So. 2d 903 (Fla. 1988); Boyett v. State, 688 So. 2d 308 (Fla. 1996); Wuornos v. State, 676
So. 2d 972 (Fla. 1996).
451See Parker v. State, 643 So. 2d 1032, 1035 (Fla. 1994); Besaraba v. State, 656 So. 2d 441, 446
(Fla. 1995); Blanco, 706 So. 2d at 7.
452Hurst v. State, 819 So. 2d 689 (Fla. 2002).
(2) Employment background
The fact the defendant was "a willing worker and a good employee" has been held to be
mitigating.453 So has the fact the defendant was a "thoughtful friend and employer."454 A finding that
the defendant is "a contributing member of society, a good employee, and a good and caring husband
and father to his four children." has also been held to be mitigating.455 In one case, a witness testified
that the defendant's employers " reported that he was a good employee, a good kid, always respectful;
never showed any signs of behavioral problems. . . . He had started to turn his life around. He
obtained his GED and enrolled in the community college." 456 This mitigating circumstance is
difficult to evaluate unless the defendant's employment is somehow connected with the murder.
However, the Court has held employment background to be mitigating, and trial judges must consider
it and discuss it in the sentencing order.
(3) Alcoholism, drug use/dependency
Alcoholism or drug abuse can be a mitigating factor.457 But this mitigator is subject to the test
of (1) whether the circumstance is truly mitigating, and (2) whether it is mitigating in the case at
hand.458 The Supreme Court of Florida has held the evidence that the defendant consumed alcoholic
beverages, without more, does not require a jury instruction on the statutory mitigating circumstance
of impaired capacity.459 Questions that should be considered in weighing this mitigator are as follows:
whether the defendant was under the influence of alcohol or drugs at the time of the murder and, this
fact somehow lessened the defendant's moral culpability; whether the defendant's addiction to
alcohol or drugs is in the remote past and had nothing to do with the murder; and whether past
alcohol or drug abuse have caused mental difficulties that would tend to mitigate the murder.
(4) Military Service
The fact the defendant has military service in his background is mitigating.460 However, a
discharge under less than honorable conditions may make counsel decide not to pursue this
mitigator.461 The Eleventh Circuit Court of Appeals has held military service to be a "significant"
453Smalley v. State, 546 So. 2d 720 (Fla. 1989).
454Mordenti v. State, 2004 WL 2922134 (Fla. Dec. 16, 2004).
455Hodges v. State, 885 So. 2d 338 (Fla. 2004).
456Chamberlain v. State, 881 So. 2d 1087 (Fla. 2004).
457Demps v. Dugger, 874 F. 2d 1385 (11th Cir. 1989); Miller v. State, 770 So. 2d 1144 (Fla.
2000); Merck v. State, 763 So. 2d 295 (Fla. 2000); Boyett v. State, 688 So. 2d 308 (Fla. 1996);
Hall v. State, 541 So. 2d 1125 (Fla. 1989).
458Knight, 726 So. 2d at 423.
459Duest v. State, 855 So. 2d 33 (Fla. 2003).
460See Demps, 874 F. 2d at 1385; Card v. State, 803 So. 2d 613 (Fla. 2001).
461Peterka v. State, 890 So. 2d 219 (Fla. 2004).
(5) Mental problems that do not qualify under other statutory mitigating circumstances
This mitigating circumstance covers a variety of different situations. It has been applied in
a case where a psychologist referred to the defendant as an "emotional cripple" who was brought up
in a negative family setting.463 It applies in a case involving post traumatic stress disorder as a result
of extended sexual abuse by the defendant's step father.464
Usually, the testimony or other evidence establishing this mitigating circumstance does not
rise to the level of "extreme" mental or emotional disturbance, or "substantial" incapacity. It is
something less than "extreme" or "substantial." However, the evidence must still be considered by
the jury and the judge as a mitigating circumstance. The trial judge must allow the evidence to be
presented, and it must be considered in the sentencing order.465 In Stewart v. State,466 the Court stated
that it was not error for the judge to find the statutory mental mitigators did not exist, but it was error
for the judge not to find the same evidence as nonstatutory mitigation. Depending upon the facts,
it would generally be appropriate to give less weight to mental problems that do not rise to the level
of "extreme" or "substantial."
(6) Abuse of defendant by parents (physical, mental, or sexual)
It is well established that a disadvantaged childhood, abusive parents, and lack of education
and training, are mitigating in nature. Although in some cases family background and personal
history may be given little weight, such evidence must be considered by the Court and discussed in
the sentencing order. Mitigating evidence is not limited to the facts surrounding the crime but can
be anything in the life of a defendant that might militate against the appropriateness of the death
penalty for that defendant.467 The nonstatutory mitigator of defendant's abusive childhood should not
be rejected, even if the defendant demonstrated good behavior in adult life.468
(7) Contribution to community or society; charitable or humanitarian deeds:
The Florida Supreme Court has held these circumstances to be mitigating.469 In Campbell,
the Court reminded trial judges to discuss and consider each mitigating circumstance in the sentencing
462Jackson v. Dugger, 931 F. 2d 712 (llth Cir.1991).
463Amazon v. State, 487 So. 2d 8 (Fla. 1986).
464Jackson v. State, 704 So. 2d 500 (Fla. 1997).
465See Booker v. Dugger, 922 F. 2d 633 (llth Cir.1991); See also Merck v. State, 763 So. 2d 295
466Stewart v. State, 620 So. 2d 177 (Fla. 1993).
467Boyett, 688 So. 2d at 310; Brown, 526 So. 2d at 908.
468Walker v. State, 707 So. 2d 300 (Fla. 1998).
469Campbell, 571 So. 2d at 420. See also Franklin v. Lynaugh, 487 U.S. 164 (1988) (O'Connor,
order. The opinion requires the Court to give a mitigating circumstance some weight if the Court
finds it to exist. However, the Court later receded from that position.470 Generally, the relative weight
to be given to a mitigating factor is the "province of the sentencing court."
(8) The quality of being a caring parent
The fact that a defendant is the father of two children and cared for them may be a mitigating
factor, but it is probably not significant enough to justify a new penalty phase hearing due to the
failure of counsel to present this fact to the jury.471 And the fact the defendant is a drug addict with
two children does not provide sufficient mitigation to outweigh three valid aggravating
(9) Defendant's regular church attendance; Defendant's religious devotion; Defendant's
position of being a deacon in the church:
This type of evidence has been held to be a non-statutory mitigating circumstance. If
presented, it should be considered and discussed in the sentencing order.473
NONSTATUTORY MITIGATING CIRCUMSTANCES
The Eighth and Fourteenth Amendments to the Constitution require the sentencing judge to
consider as mitigating any aspect of a defendant's character or record and any of the circumstances
of the offense the defendant proffers as a basis for a sentence less than death.474
The sentencing judge must instruct the jury that mitigating factors are not limited by statute.
A new sentencing hearing will likely be ordered if the instruction is not given.475 The error in failing
to give the instruction is subject to harmless error analysis.476 However, the Eleventh Circuit Court
of Appeals generally applies harmless error to cases in which a strategic decision was made not to
present mitigating evidence or where no mitigating evidence could have been produced.477 Florida's
Standard Jury Instructions are adequate to satisfy this requirement.
A wide variety of circumstances have been held to be mitigating under this category. The list
470Trease v. State, 768 So. 2d 1050 (Fla. 2000). See sec. 6.16.9 which discusses the content of
471Tafero v. Wainwright, 796 F. 2d 1314 (llth Cir.1986)
472Holton v. State, 573 So. 2d 284 (Fla. 1991).
473Walker, 707 So. 2d at 318.
474Lockett, 438 U.S. at 604-605; Eddings, 455 U.S. at 112.
475Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987);Penry v.
Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989); White v. State, 729 So. 2d
909 (Fla. 1999).
476Hitchcock, supra, note 437; Bottoson v. State, 674 So. 2d 621 (Fla 1996).
477Booker v. Dugger, 922 F. 2d 633 (11th Cir. 1991).
is limited only by the imagination of counsel. There is often an overlap on circumstances involving
"background." Sometimes these circumstances could be either statutory or nonstatutory.
The following circumstances have been held to be nonstatutory mitigating circumstances:
The fact the defendant has expressed remorse is a mitigating circumstance.478 The remorse
must be genuine. Merely expressing "sorrow" for the victim is not the same as remorse and is not
mitigating.479 The State can rebut this mitigating circumstance by showing lack of remorse.480 In
Agan v. State,481 the trial judge mentioned lack of remorse in his sentencing order. The Supreme Court
of Florida held this unfortunate statement was made "not in connection with aggravating factors but
rather in connection with the finding that there were no mitigating circumstances. The judge referred
to the absence of remorse in support of his rejection of defense counsel's arguments for mitigation on
the ground of mental or emotional disturbance and on the ground of appellant's prompt confession
and plea of guilty. Thus, the evidence was used not in aggravation but only to negate mitigation."482
DEFENDANT'S POTENTIAL FOR REHABILITATION (LACK OF FUTURE
Three states, Colorado,483 Maryland484 and New Mexico,485 include lack-of-future-
dangerousness as a statutory mitigating circumstance. The Texas statute requires the jury to find
future dangerousness before considering the death penalty as a possible penalty. These states have
substantial case law explaining how to prove or disprove future dangerousness or the lack of it.
Looking at the defendant's past record is one method and expert testimony is another. Expert
testimony in this area is not very reliable. Courts in two states, California486 and Nevada,487 have
rejected such testimony. The United States Supreme Court has held that the use of this type of
testimony does not violate the Constitution.488
478Boyett, 688 So.2d at 310; Smalley, 546 So.2d at 723.
479Beasley v. State, 774 So. 2d 649 (Fla. 2000)
480Walton v. State, 547 So. 2d 622 (Fla. 1989).
481Agan v. State, 445 So. 2d at 328.
483COLO. REV. STAT. § 18-1.3-1201(4)(k).
484MD. CODE ANN. art. 27 § 413 (1957).
485N.M. Stat. Ann. § 31-20A-6 (Michie 1978)
486People v. Lucerno, 750 P.2d 1342 (Cal. 1988). (Lucerno also holds if the defense introduces
such expert testimony, the state may introduce experts in rebuttal.)
487Redmen v. Nevada, 828 P.2d 395 (Nev. 1992).
488Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).
The lack of future dangerousness is a nonstatutory mitigating factor in Florida.489 Care should
be used in allowing evidence on this issue in light of the difficulty in predicting future conduct and
the temptation on the part of the prosecution to overplay rebuttal evidence.
SENTENCE OF CODEFENDANT TO LIFE OR SOME LESSER TERM
This mitigating circumstance should be submitted to the jury only when there is an issue of
fact as to which codefendant is the most culpable. If the question is--"Who actually killed the
decedent?--it may be possible to resolve the question by a special verdict during the guilt phase. If
it is unclear which codefendant is the most culpable, it is unlikely that the death penalty will
ultimately be carried out.490
The defendant raised this issue in Demps v. Dugger.491 In that case there were three
codefendants. The other two were sentenced to life in prison but Demps was sentenced to death. In
observing the differences in the defendants, the Court noted that ". . . only Demps had the loathsome
distinction of having been previously convicted of the first-degree murder of two persons and the
attempted murder of another, escaping the gallows only through the intervention of Furman v.
This mitigating circumstance constitutes "newly discovered evidence" if an equally culpable
codefendant is sentenced to life after the defendant is sentenced. In fact, if a codefendant receives
a life sentence, it may be impossible to give a death sentence to an equally culpable, or less culpable,
codefendant regardless of the aggravation and mitigation.493 If the defendant is more culpable than
a codefendant who gets a life sentence or the codefendant pled to a lesser sentence, the codefendant's
life sentence should be discussed as a mitigating factor in the sentencing order.494 If the codefendant
is allowed to plea to a lesser offense in return for giving testimony, the defendant and the codefendant
have not been convicted of the same offense and the death sentence cannot be disparate.495
GOOD JAIL CONDUCT INCLUDING CONDUCT ON DEATH ROW
Good jail conduct can be a mitigating factor. The weight to be given this factor depends upon
489Hitchcock, 481 U.S. at 396; Lockett, 438 U.S. at 604-605; Delap v. Dugger, 890 F. 2d 285
(11th Cir. 1989); Valle v. State, 502 So.2d 1225 (Fla. 1987).
490State v. Mills, 788 So. 2d 249 (Fla. 2001); Mills v. State, 786 So. 2d 547 (Fla. 2001), Anstead,
491Demps, 514 So.2d at 1093, 1094.
492Id. at 1093.
493Scott v. Dugger, 604 So. 2d 465 (Fla. 1992); Puccio v. State, 701 So. 2d 858 (Fla. 1997);
Hazen v. State, 700 So. 2d 1207 (Fla. 1997); Fernandez v. State, 730 So. 2d 277 (Fla. 1999); Ray
v. State, 755 So. 2d 604 (Fla. 2000).
494Evans v. State, 808 So. 2d 92 (Fla. 2002); Sexton v. State, 775 So. 2d 923 (Fla. 2000); Gordon
v. State, 704 So. 2d 107 (Fla. 1997).
495Knight v. State, 784 So. 2d 396 (Fla. 2001).
just how "good" the conduct has been. In Skipper v. South Carolina,496 the United States Supreme
Court reversed a death sentence because the trial judge failed to allow testimony of jailers and a
regular visitor regarding petitioner's good behavior during the seven months he spent in jail awaiting
trial. This testimony deprived the defendant of his right to place before the sentencer relevant
evidence in mitigation of punishment.
VOLUNTARY CONFESSION/COOPERATION WITH POLICE
In Wilkerson v. Collins,497 the defendant took the police to the crime scene and confessed to
the crime. He contended that such acceptance of responsibility for one's criminal conduct and
cooperation with police historically had been treated as character evidence which is entitled to
consideration in mitigation. He was permitted to argue this mitigation before the jury, but the trial
court refused to instruct the jury that he was entitled to have his conduct considered as mitigating.
If this case had been tried in Florida, it would have been error not to instruct the jury as requested.
But Wilkerson is a Texas case, and the odd result is the product of the Texas death penalty scheme.
Usually, this mitigating circumstance acts in combination with other nonstatutory mitigating
circumstances to overcome the aggravating circumstances. In Caruthers v. State,498 the Supreme
Court of Florida disallowed two of the three aggravating circumstances. The disallowance left only
the felony-murder aggravator. The Court determined the death penalty to be disproportionate and
ordered the trial court to impose a life sentence. The court found the evidence established "one
statutory mitigating circumstance, no significant history of prior criminal activity, and the
nonstatutory circumstances of his voluntary confession, his conditional guilty plea subject to a life
sentence, mutual love and affection of family and friends, his remorse, and his encouragement of his
younger brother to do well and avoid violating the law." 499
Boyett v. State,500 was a jury override case. The judge found two aggravating factors, cold,
calculated and premeditated and felony-murder. The jury recommended a life sentence. The trial
judge sentenced Boyett to death. The Supreme Court of Florida reversed observing that the evidence
of mitigation "includes Boyett's age (18 at the time of the incident); past history of sexual abuse;
ongoing, significant emotional and psychological problems; traumatic family life; history of drug
abuse; past relationship with the victim; remorse; and cooperation with law enforcement officials."
DEFENDANT'S LACK OF INTENT TO KILL
This mitigating circumstance usually applies to a codefendant accused of felony-murder who
did not actually kill the victim but who is not excluded by Enmund/Tison. However, it can easily
apply to a case where an armed robbery goes bad, and the defendant accidentally or purposely kills
someone without premeditation. Because of its ongoing controversy and general disrepute among
legal scholars, trial judges need to be aware of the problems and limitations of the felony-murder rule.
496Skipper v. S.C., 476 U.S. 1 (1986). See also Demps v. Dugger, 874 F. 2d 1385 (11th Cir.
497Wilkerson v. Collins, 950 F. 2d 1054 (5th Cir.1992).
498Caruthers v. State, 465 So. 2d 496 (Fla. 1985).
499Id. at 498.
500Boyett, 688 So. 2d at 310.
The case of Aaron v. State501 traces the unfortunate historical events that created the artificial
concept that has been known for centuries as the felony-murder rule. The felony-murder rule is a
harsh rule that requires a presumption of premeditation if a homicide occurs during the course of
certain felonies. Application of the rule automatically raises a homicide that would otherwise be
second-degree murder or manslaughter to first-degree murder. In Florida, the felony-murder rule has
been taken to its outermost limits. The Florida Legislature has enhanced criminal responsibility
through the use of the rule in second-degree murder and third-degree murder cases as well as first-
degree murder.502 There is even a "felony-causing-injury" statute that criminalizes "attempted felony-
murder," a nonsensical, illogical crime.503
The felony-murder rule has questionable origins and has certainly outlasted its usefulness.
Many courts have condemned it as an outmoded throwback to medieval times. The English
Parliament abolished it in that country in 1957.504
Courts and commentators in this country have also taken the felony-murder rule to task. For
Felony-murder has never been a static, well-defined rule at common law, but
throughout its history has been characterized by judicial reinterpretation to
limit the harshness of the application of the rule. Historians and commentators
have concluded that the rule is of questionable origin and that the reasons for
the rule no longer exist, making it an anachronistic remnant, "a historic
survivor for which there is no logical or practical basis for existence in modern
People v. Phillips,506 the Court stated:
We have thus recognized that the felony-murder doctrine expresses a highly
artificial concept that deserves no extension beyond its required application.
Indeed, the rule itself has been abandoned by the courts of England, where it
had its inception. It has been subjected to severe and sweeping criticism.
The use of the felony-murder rule as an aggravating factor in capital murder cases is discussed
in sec. 6.7.5 of these materials. However, balancing this aggravator against the mitigating
circumstance of "lack of intent to kill" continues to be a problem for trial judges as well as for the
The fact that a homicide occurred during the commission of certain felonies automatically
establishes an aggravating circumstance. This, of course, is not necessarily true in cases of
501Aaron v. State, 299 N.W.2d 304 (Mich. 1980).
502FLA STAT. § 782.04
503FLA. STAT. § 782.051.
504England's Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11, § 1
505Moreland, Kentucky Homicide Law With Recommendations, 51 Ky. L.J. 59, 82 (1962). See
also, Fletcher, Reflections on Felony-murder, 12 Sw. U. L. Rev. 413 (1980-1981); Gegan,
Criminal Homicide in the Revised New York Penal Law, 12 N. Y. L. Forum 565, 586 (1966).
506People v. Phillips, 64 Cal.2d 574, 582-583, 51 Cal.Rptr. 225, 415 P.2d 353, 360 (1966)
premeditated murder. Not all premeditated murders meet the test of being cold, calculated and
premeditated. Nevertheless, the Supreme Court of Florida has upheld the constitutionality of the
felony-murder aggravator.507 Courts in other states do not agree.508
One of the obvious problems in applying the felony-murder rule as an aggravating
circumstance is the fact it often can be countered with the mitigating circumstance of "lack of
intent to kill." Normally, one would think these two factors would cancel each other out since the
felony-murder rule has already raised the homicide from a lesser offense to first-degree murder. But
that is not always the case. Emotional reaction to some of these cases tends to cloud the judicial
First-degree murder cases are not pretty. There is at least one dead body in every case, usually
accompanied by gory details of a senseless killing. It is hard to remain objective when the facts are
horrendous, as they usually are. Child killings are particularly troublesome because of the loss of
innocent life and the fact the felony-murder rule applies to every killing involving aggravated child
abuse. The Supreme Court of Florida has provided a curious analysis of the weight to be given when
aggravated child abuse is the felony that must be balanced against "lack of intent to kill."
In Lukehart v. State,510 the defendant killed a five-month-old child while living with the
child's mother. The circumstances surrounding the death are somewhat obscure, but the evidence did
not establish the defendant intended the death of the child. The felony-murder aggravator was
established during the penalty phase as well as the prior violent felony of aggravated child abuse of
a former girl friend's baby and the fact the defendant was on probation for that offense at the time of
the homicide.511 The trial court imposed the death sentence.
On appeal, Lukehart argued the death penalty was disproportionate because most child
murder cases in which the death penalty has been imposed included either sexual battery or were
heinous, atrocious or cruel. However, the Court reasoned that "this case is significantly aggravated
by the existence of the prior conviction for felony-child abuse" and affirmed.512
Justice Anstead dissented and pointed out the Court's proportionality review requires a
determination of whether a case is among the most aggravated and least mitigated of murder cases.
He went on to state, "A review of the majority opinion reflects that it has erroneously focused only
on the first prong of this analysis. Further, it appears that based solely upon the fact that the victim
in this case was a five-month-old child, the majority has established a rule that death is automatically
that appropriate penalty without regard to the balance of aggravation and mitigation that is
507Atwater v. State, 788 So. 2d 223 (Fla. 2001).
508Tennessee v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992); Enberg v. Meyer, 820 P.2d 70
(Wyo. 1991); State v. Cherry, 257 S.E.2d 551 (N.C. 1979).
509Thus the inflamed emotions of jurors can no longer sentence a man to die; the sentence is
viewed in the light of judicial experience. State v. Dixon, 283 So. 2d 1, 8 (Fla. 1973). (Emphasis
510Lukehart v. State, 776 So. 2d 906 (Fla. 2001).
511The "felony probation" aggravator was stricken on appeal as being applied ex post facto, but
the Supreme Court found its consideration by the trial court to be harmless error in light of the
fact it was merged with the prior violent felony aggravator.
512Lukehart, supra note 510, at 926
A couple of months after Lukehart was decided, the Court was called upon to review the death
sentence in another case involving a child victim. In Stephens v. State,514 the defendant and other
unknown individuals broke into a house in the afternoon while a number of people were present. The
defendant was armed with a 9-mm automatic pistol. He stood near the three-year-old victim and,
upon seeing the weapon, the child's mother physically confronted him. The defendant struck the
victim's mother on the bridge of the nose and demanded "money and weed" from the others present.
After the occupants of the house were robbed, they were placed in the bathroom while the defendant
and his companions made their escape in an automobile stolen from one of the victims. The child
victim was taken along as "insurance." The automobile was a Kia with roll-down windows and pull-
up locks on the doors. The Kia was abandoned some distance from the crime scene in the sunshine,
with the windows rolled up and the doors closed, but unlocked. The temperature was in the low 80's.
The child victim died in the automobile of asphyxiation or hyperthermia. The trial judge imposed
the death penalty and the Supreme Court, in a 4-3 decision, affirmed.
Justice Anstead, joined by Justices Shaw and Pariente, dissented. Justice Anstead pointed
out that, but for the felony-murder rule, the defendant would have probably been guilty of
manslaughter.515 He stated:
Importantly, it is undisputed here that neither the jury nor the trial judge
could conclude that the defendant intended to kill the child. Indeed, in an
unusual, but significant gesture, the State agreed that the trial court could
consider in mitigation statements made by the jury foreman "that the jury
generally did not believe that the Defendant intended to kill." In addition to
recording this agreement in its sentencing order the trial court also concluded
under its analysis of "Nonstatutory Mitigating Factors" that because "the Court
cannot, beyond a reasonable doubt, find that the defendant intended to kill,
requires the Court to give this factor significant weight, which it has done."
However, the majority has chosen to ignore this critical factor of lack of
an intent to kill even while relying solely on a theory of felony-murder to
sustain the conviction for first-degree murder. While the legal fiction of
substituting the commission of a felony in place of intent may technically
qualify this case as a first-degree murder case, it still leaves us with a death
under circumstances that Florida courts have consistently treated as
manslaughter or some other lesser degree of homicide. See, Mudd. We
should hesitate before making such a giant leap and elevating a crime
ordinarily characterized as culpable negligence and prosecuted as
manslaughter, to one deserving of the death penalty. Having done so, for
example, we will be hard pressed in the future not to extend this reasoning to
other comparable circumstances, such as reckless driving in flight from a
513Id. at 928.
514Stephens v. State, 787 So. 2d 747 (Fla. 2001).
515Cf. Mudd v. State, 638 So. 2d 124.
516Stephens, 787 So. 2d at 763.
The fact the defendant did not intend to kill is probably the underlying basis for disapproving
death sentences when the facts only support the felony-murder aggravator. But even when there are
other aggravating circumstances present, the lack of intent to kill should be discussed in the
sentencing order and given appropriate weight. Trial judges should be prepared to justify it in the
sentencing order if more weight is given to the felony-murder aggravator than to the "lack of intent
to kill" mitigator.
The felony-murder rule controversy has recently caused legislative displeasure. The subject
was the definition of burglary.
At common law, Burglary was defined as "breaking and entering the dwelling house of
another at night with the intent to commit a felony therein."517 The Florida Legislature has, over the
years, broadened the definition of burglary to encompass numerous property crimes. Until recently,
the definition of burglary in Florida was "entering or remaining in a dwelling, a structure, or a
conveyance with the intent to commit an offense therein unless the premises are at the time open to
the public or the defendant is licensed or invited to enter or remain."518 The definition has now been
expanded to clarify what the legislature meant by the phrase "licensed or invited to enter or
On August 24, 2000, the Supreme Court issued an opinion in Delgado v. State.520 Delgado
and a business partner named Lamellas bought a dry-cleaning business from Thomas and Violetta
Rodriguez. Delgado became dissatisfied with the transaction and went to the Rodriguez' home to
discuss the matter. He was invited into the home where an altercation occurred that resulted in the
death of both Mr. and Mrs. Rodriguez. The state prosecuted on the basis of felony-murder, the
underlying felony being burglary, theorizing that Delgado had "remained" in the dwelling after
permission had been withdrawn expressly or by implication. The jury convicted Delgado, and the
trial judge sentenced him to death.
The Supreme Court reviewed the history of the crime of burglary, considered the effect of the
"remaining in" language in other jurisdictions, including the Model Penal Code, and receded from
several reported cases. The Court held that before "remaining in" can become burglary, it must be
done "surreptitiously." This perfectly reasonable interpretation has the effect of excluding many
minor altercations between neighbors or intoxicated guests and their hosts and recognizes the narrow
construction the felony-murder rule deserves.
The Florida Legislature immediately took steps to specifically over-rule Delgado. During the
2001 Legislative Session, the statute was amended as follows:
Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 810.015, Florida Statutes, is created to read:
810.015. Legislative findings and intent; burglary
(1) The Legislature finds that the case of Delgado v. State, Slip Opinion No.
SC88638 (Fla. 2000) was decided contrary to legislative intent and the case
law of this state relating to burglary prior to Delgado v. State. The Legislature
finds that in order for a burglary to occur, it is not necessary for the licensed
517Drew v. State, 773 So. 2d 46. (Fla. 2000); See 2 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law, § 8.13, at 464 (1986).
518Fla. Stat. ch. 810.02 (1999).
519Id. ch. 810.015.
520Delgado v. State, 776 So. 2d 233 (Fla. 2000).
or invited person to remain in the dwelling, structure, or conveyance
(2) It is the intent of the Legislature that the holding in Delgado v. State, Slip
Opinion No. SC88638 be nullified. It is further the intent of the Legislature
that s. 810.02 (1)(a) be construed in conformity with Raleigh v. State, 705 So.
2d 1324(Fla. 1997); Jimenez v. State, 703 So. 2d 437(Fla. 1997); Robertson
v. State, 699 So. 2d 1343(Fla. 1997); Routly v. State, 440 So. 2d 1257(Fla.
1983); and Ray v. State, 522 So. 2d 963(Fla. 3rd DCA, 1988). This
subsection shall operate retroactively to February 1, 2000.
(3) It is further the intent of the Legislature that consent remain an affirmative
defense to burglary and that the lack of consent may be proven by
So, now that the legislature has decided to show it intends for some of the most minor conduct
to become serious felonies, what are trial judges to do about it? Trial judges are supposed to follow
the law, including legislation, wise or otherwise. But the Supreme Court of Florida has ruled the
language of the statute means something different than the Legislature says it means.
This problem was addressed by the Court in State v. Ruiz.522 The court held that, by its terms,
the amended statute does not apply to cases arising prior to February 1, 2000. However, the Court
declined to recede from Delgado and held that "a crime committed inside a dwelling, structure or
conveyance of another cannot, in and of itself, establish the crime of burglary." Stated differently,
the State cannot use "the criminal act to prove both intent and revocation of the consent to enter."523
This holding avoids absurd results such as charging someone with burglary for smoking
marijuana, gambling, or writing a bad check while an invitee within a residence. It also restricts the
opportunity to expand the use of the felony-murder rule to an invitee who commits second-degree
THE LENGTH OF THE DEFENDANT'S POTENTIAL MANDATORY SENTENCE
In a double homicide, it is error not to allow the defendant to argue that he could receive a 50-
year minimum mandatory sentence.524 This mitigator may be stronger today since "life" now means
"life without the possibility of parole."
THE DEFENDANT HAS THE SUPPORT OF FRIENDS AND FAMILY
Evidence of positive "family relationships and the support (the defendant) provided his family
are admissible as nonstatutory mitigation."525 It is error not to consider this mitigation, but the error
521Fla. Stat. ch. 810.015.
522State v. Ruiz, 863 So. 2d 1205 (Fla. 2003).
523Id. at 1211.
524Jones v. State, 569 So. 2d 1234 (Fla. 1990); Turner v. State, 645 So. 2d 444 (Fla. 1994).
525Brown v. State, 755 So. 2d 616, 637 (Fla. 2000).
may be harmless if these factors are otherwise considered.526 The reverse, negative family relations
such as abandonment as a child, are not always mitigating.527
THE DEFENDANT HAS ARTISTIC ABILITY
While this has been recognized as a nonstatutory mitigating factor, it is not "compelling" and
may receive little weight.528
6.10.0 CIRCUMSTANCES NOT CONSIDERED MITIGATING
The following factors have been determined not to constitute mitigating factors:
6.10.1 RESIDUAL OR LINGERING DOUBT
The Supreme Court of Florida has repeatedly held that "lingering doubt" is not a mitigating
factor.529 A jury instruction on lingering doubt is not allowed.530
This position is by no means unanimous. Some states, notably Tennessee, include lingering
doubt among nonstatutory mitigating circumstances.531 In Way v. State,532 Justice Pariente stated,
I write separately to address Way's point on appeal that this Court should recede
from its prior decisions that preclude the consideration of "lingering" or "residual"
doubt as a nonstatutory mitigator--especially because this was a resentencing
proceeding in which the jury did not decide the issue of guilt.
Many of the concerns over the death penalty have focused on the possibility of
executing an innocent person--a spectre that runs contrary to the interests of justice.
Although the United States Supreme Court has rejected the argument that the Eighth
Amendment requires that a capital sentencing jury be instructed that it can consider
lingering doubt evidence in mitigation, see Franklin v. Lynaugh, 487 U.S. 164,
173-74, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988), in view of the finality of the death
penalty, there are some important reasons why our responsibility to independently
review death sentences might extend to an evaluation of the evidence supporting guilt.
As then-Justice Barkett noted in her specially concurring opinion in Melendez v.
State, 498 So. 2d 1258, 1262 (Fla.1986), While a jury verdict of guilt based on
526Card v. State, 803 So. 2d 613 (Fla. 2001).
527See Franqui v. State, 804 So. 2d 1185, 1196 (Fla. 2001).
528Evans v. State, 808 So. 2d 92 (Fla. 2002).
529Franklin v. Lynaugh, 487 U.S. 164 , 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988); King v. State,
514 So. 2d 354 (Fla. 1987); Way v. State, 760 So. 2d 903 (Fla. 2000); Darling v. State, 808 So.
2d 145 (Fla. 2002); Duest v. State, 855 So. 2d 33 (Fla. 2003).
530Franklin v. Lynaugh, 487 U.S. 164 , 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988); Duest v. State,
855 So. 2d 33 (Fla. 2003).
531Hartman v. State, 42 S.W.3d 44 (Tenn. 2001).
532Way v. State, 760 So. 2d 903 (Fla. 2001).
competent substantial evidence is sufficient for upholding convictions and prison
sentences, I do not believe it is always enough for upholding a death sentence. There
are cases, albeit not many, when a review of the evidence in the record leaves one with
the fear that an execution would perhaps be terminating the life of an innocent
Earlier, Justice Thurgood Marshall made similar observations:
There is certainly nothing irrational--indeed, there is nothing novel--about the idea
of mitigating a death sentence because of lingering doubts as to guilt. It has often been
noted that one of the most fearful aspects of the death penalty is its finality. There is
simply no possibility of correcting a mistake. The horror of sending an innocent
defendant to death is thus qualitatively different from the horror of falsely imprisoning
that defendant. The belief that such an ultimate and final penalty is inappropriate
where there are doubts as to guilt, even if they do not rise to the level necessary for
acquittal, is a feeling that stems from common sense and fundamental notions of
justice. As such it has been raised as a valid basis for mitigation by a variety of
Actually, the Supreme Court of Florida has tacitly recognized the "lingering doubt" concept
on several occasions by calling it "newly discovered evidence." Usually, "newly discovered
evidence" issues are brought in postconviction relief proceedings.
The state attorneys wish that every homicide would occur in the presence of two innocent,
uninterested eyewitnesses who are the pillars of the community. Unfortunately, it never happens that
way. Often the quality of the evidence rather than the quantity of it hinders making a case. For
instance, forensic evidence may become less than trustworthy due to mistake, fraud or unavailability.
Witnesses die or disappear and memories fade over time. When this happens, prosecutors have to
make concessions or use evidence that has questionable reliability. Accomplices are given plea
bargains in return for their testimony, confessions taken under less than ideal circumstances are
introduced and jailhouse snitches save their skins by testifying.535
Consider the case of Gregory Mills who was convicted of a murder that occurred during a
residential burglary. His accomplice was Ashley. The state attorney gave Ashley complete immunity
to testify against Mills. Ashley testified that Mills crawled into the window of the residence while
he remained outside as a lookout. Ashley had serious credibility problems and the jury recommended
a life sentence. The trial judge overrode the jury and sentenced Mills to death536 The critical question
in the case was, "Who did the shooting?" It took over 20 years to decide that no one would ever
know. But Ashley's statement ultimately came to be questioned by another witness who heard him
state the opposite. Mills ultimately received a life sentence.537 Mills' case was reviewed by the
Supreme Court of Florida four times, the Eleventh Circuit Court of Appeals twice and by the United
533Id. at 922.
534Heiney v. Florida, 469 U.S. 920, 921-22, 105 S. Ct. 303, 83 L. Ed.2d 237(1984) (dissenting
from denial of certiorari).
535See, e.g., Morris v. State, 811 So. 2d 661 (Fla. 2002).
536Mills v. State, 476 So. 2d 172 (Fla. 1985).
537State v. Mills, 788 So. 2d 249 (Fla. 2001).
States Supreme Court twice. It was the quality of the evidence that doomed the State's case.
Newly discovered evidence usually comes in two forms: recanted testimony and testimony
or other evidence that was unknown at the time and could not reasonably have been discovered.
The seminal Florida case that explains recanted testimony is Armstrong v. State,538 In
Armstrong, the Court explained:
Recantation by a witness called on behalf of the prosecution does not necessarily
entitle a defendant to a new trial. In determining whether a new trial is warranted due
to recantation of a witness's testimony, a trial judge is to examine all the
circumstances of the case, including the testimony of the witnesses submitted on the
motion for the new trial. "Moreover, recanting testimony is exceedingly unreliable,
and it is the duty of the court to deny a new trial where it is not satisfied that such
testimony is true. Especially is this true where the recantation involves a confession
of perjury." Only when it appears that, on a new trial, the witness's testimony will
change to such an extent as to render probable a different verdict will a new trial be
Recanted testimony becomes an issue in death penalty cases with surprising regularity.
Usually it involves jailhouse snitches or other state witnesses who had credibility problems to begin
The type of newly discovered evidence most frequently encountered involves the discovery
of a new witness or a new exhibit. This evidence usually comes up as a result of additional post
judgment investigation. But newly discovered evidence of this sort must be more than just new. The
evidence must also be "of such nature that it would probably produce an acquittal on retrial."541
Brady violations are different. In Strickler v. Greene,542 the Court summarized the important
constitutional principles arising from the State's failure to disclose material evidence to the defendant:
In Brady, this Court held "that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution." We have since held that the duty to disclose such evidence is
applicable even though there has been no request by the accused, and that the duty
encompasses impeachment evidence as well as exculpatory evidence. . . . In order to
comply with Brady, therefore, "the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's behalf in this case,
538Armstrong v. State, 642 So. 2d 730 (Fla. 1994).
539Id. at 735.
540Sweet v. State, 810 So. 2d 854 (Fla. 2000); Brooks v. State, 787 So. 2d 765 (Fla. 2001) (snitch
and a second state witness recanted.); Knight v. State, 784 So. 2d 396 (Fla. 2001) (snitch
recanted and claimed the State Attorney knew the testimony was false.); Johnson v. State, 769
So. 2d 990 (Fla. 2000); Robinson v. State, 707 So. 2d 688 (Fla. 1998); Spaziano v. State, 692 So.
2d 174 (Fla. 1997) (only witness who could connect the defendant to the crime recanted).
541Jones v. State, 709 So. 2d 512, 521 (Fla.1998). See, Vining v. State, 827 So. 2d 201(Fla.
2002); Johnson v. State, 804 So. 2d 1218 (Fla. 2001).
542Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).
including the police."
These cases, together with earlier cases condemning the knowing use of perjured
testimony, illustrate the special role played by the American prosecutor in the search
for truth in criminal trials. Within the federal system, for example, we have said that
the United States Attorney is "the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done."543
The principle necessitating reversal when the State fails to disclose to the defense material favorable
evidence was espoused in Brady itself:
The principle . . . is not punishment of society for misdeeds of a prosecutor but
avoidance of an unfair trial to the accused. Society wins not only when the guilty are
convicted but when criminal trials are fair; our system of the administration of justice
suffers when any accused is treated unfairly. . . . A prosecution that withholds
evidence on demand of an accused which, if made available, would tend to exculpate
him or reduce the penalty helps shape a trial that bears heavily on the defendant. That
casts the prosecutor in the role of an architect of a proceeding that does not comport
with standards of justice . . . .544
As was stated in Rogers v. State,545 "errors involving the suppression of evidence in violation
of Brady raise issues of constitutional magnitude." In order to establish a Brady violation, a
defendant must prove:
(1) The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; (2) that evidence must have been suppressed
by the State, either willfully or inadvertently; and, (3) prejudice must have ensued.546
Not every instance where the State withholds favorable evidence will rise to the level of a
Brady violation necessitating the granting of a new trial, but only those where there is a determination
the favorable evidence that was withheld resulted in prejudice. In Kyles v. Whitley, the Court stated:
"The materiality of the inquiry is not just a matter of determining whether, after
discounting the inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury's conclusions. Rather, the
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.'"547
543Id. at 527 U.S. at 280-81 (citations and footnote omitted).
544Brady v. Maryland, 373 U.S. 83 at 87-88, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
545Rogers v. State, 782 So. 2d 373, 376-77 (Fla. 2003).
546Rogers v. State, 782 So. 2d 373, 376-77 (Fla. 2001); See Way v. State, 760 So. 2d 903, 910
(Fla. 2000) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)); Butler v. State, 842 So.
2d 817 (Fla. 2003).
547Kyles v. Whitley, 514 U.S. 419 at 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
The determination of whether a Brady violation has occurred is subject to independent
appellate review.548 Further, the cumulative effect of the suppressed evidence must be considered
when determining materiality.549 The fact that a witness is discredited or impeached on one matter
does not necessarily render additional impeachment cumulative.550 The case of State v. Cardona551
involved the prolonged depravation and torture of an innocent three-year-old boy by his mother
(Cardona) and her female roommate (Gonzalez). Gonzalez was given a plea to second-degree murder
in exchange for her testimony against Cardona in which she painted Cardona as the more culpable
of the two. The state attorney failed to disclose reports of interviews of Gonzalez that contained
"material inconsistencies on several key points not addressed at trial that could have seriously
undermined Gonzalez' credibility." They also disclosed that Gonzalez had been "coached" to make
her testimony more probative.
In its opinion, the majority stated, "If the jury had disbelieved Gonzalez, this would have
affected not only the jury's evaluation of guilt, but also its recommendation of death. Even without
this devastating impeachment evidence, the vote was only eight to four in favor of death. Further,
the trial court's assessment of the weight to be given HAC in relation to the mitigators could have
been affected by serious doubt as to Gonzalez' veracity."552 Is this statement anything other than a
recognition of the existence of "lingering doubt"?
The Supreme Court, in a 4-3 opinion, ordered a new trial. The Cardona case is worth reading
to see how much easier it is for the defendant to receive a new trial as a result of a Brady violation
as opposed to newly discovered evidence.
6.10.2 EXTRANEOUS EMOTIONAL FACTORS
The United States Supreme Court has stated that "mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling," are not mitigating factors for the jury to
6.10.3 DESCRIPTIONS OF EXECUTIONS
In Johnson v. Thigpen,554 the Court held that the description of an execution and the issue of
whether imposing a sentence of death is morally equivalent to killing did not bear on petitioner's
character, prior record, or circumstances of his offense, and petitioner could not have presented
evidence to jury on such issues.
548See Rogers v. State, 782 So. 2d 373 at 377 (Fla. 2001); Way v. State, 760 So. 2d 903 at 913
549Way, 760 So. 2d 903.
550Brown v. Wainwright, 785 F. 2d 1457, 1466 (11 Cir. 1986); United States v. Rivera Pedin, 861
F. 2d 1522, 1530 (11th Cir. 1988).
551State v. Cardona, 826 So. 2d 968 (Fla 2002).
552826 So. 2d 968 at 981.
553California v. Brown, 479 U.S. 538 at 543, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987)
554Johnson v. Thigpen, 806 F. 2d 1243 (5th Cir.1986).
6.10.4 EVIDENCE OF THE CHURCH'S OPPOSITION TO THE DEATH PENALTY
In Glass v. Butler,555 a Louisiana case, the defendant presented testimony from an Episcopal
priest who was called to testify, among other things, that the "mainline" churches oppose the death
penalty, alluding to a difference in the Old Testament and New Testament in that regard. The trial
court excluded that testimony, apparently on relevancy grounds, and the court affirmed.
6.10.5 EVIDENCE THAT THE DEATH PENALTY IS NOT A DETERRENT; COST OF
EXECUTIONS COMPARED TO COST OF IMPRISONMENT; OFFER OF LIFE
SENTENCE FOR GUILTY PLEA
In Hitchcock v. State, the defendant sought to present the testimony of a sociologist. The
sociologist wanted to present theories that (a) Hitchcock's execution would not deter others from
committing murder, (b) it would cost less to imprison Hitchcock for life than to execute him, (c)
lingering doubt as to Hitchcock's confession, (d) the conditions Hitchcock would face under a
sentence of life imprisonment, and (e) the level of premeditation in the murder in light of Hitchcock's
educational level.556 The Court held this evidence to be irrelevant. The Eleventh Circuit Court of
Appeals has held that exclusion of this type of evidence does not violate the Eighth Amendment.557
Hitchcock also wanted to let the jury know he had been offered a life sentence in return for a plea of
guilty. The Court held that information to be irrelevant because the offer was rejected and was
therefore a nullity.
6.10.6 TESTIMONY OF RELATIVES OF THE VICTIM REQUESTING THE DEATH
PENALTY NOT BE IMPOSED; TESTIMONY THE VICTIM WAS OPPOSED TO
THE DEATH PENALTY
In Robinson v. Maryland, the defendant contended,
. . . that one of the reasons underlying imposition of the death penalty is the
sanction of retribution. Assuming the validity of that contention, Petitioner argues
testimony of a family member of the victim urging the jury to reject the death penalty
would have been strong evidence mitigating that sanction.
In our view, the answer to this issue turns upon the relevancy of the evidence in
the context in which it would have been presented. Additionally, we are disinclined
towards Petitioner's argument because the obvious consequence of allowing this kind
of testimony by the defense would be to permit the State to present witnesses who
would testify the penalty should be imposed, thus reducing the trial to a contest of
Florida cases have held it either not to be an abuse of discretion to exclude this testimony or
555Glass v. Butler, 820 F. 2d 112 (5th Cir. 1987)
556Hitchcock v. State, 578 So. 2d 685, 690 (Fla. 1990), rev'd on other grounds, 505 U.S. 1215
557Martin v. Wainwright, 770 F. 2d 918 (llth Cir. 1985).
558Robinson v. Maryland, 829 F. 2d 1501, 1503 (l0th Cir. 1987).
that the testimony was irrelevant because it had nothing to do with defendant's character or record or
circumstances of crime.559
6.10.7 MISCELLANEOUS - UNUSUAL FACTS OF THE CRIME
The fact the defendant did not know the victim was still alive when he left the scene, coupled
with the fact the victim died from complications during recovery from surgery required by the wounds
inflicted by the defendant, has been held not to be mitigating.560
6.11.0 PROOF PROBLEMS WITH MITIGATING CIRCUMSTANCES
Mitigating circumstance present their own problems when it comes to proof.
6.11.1 BURDEN OF PROOF
There is no requirement that mitigating factors be proven beyond a reasonable doubt. Florida's
jury instruction provides if the jury is "reasonably convinced" of a mitigating circumstance, they may
consider it as established. The United States Supreme Court addressed a claim that the defendant had
to prove a mitigating circumstance by a preponderance of the evidence and found no constitutional
infirmity to this Arizona requirement.561 Unfortunately, the Supreme Court of Florida often refers to
the burden of proof to prove mitigating circumstances as "greater weight of the evidence."562 This
is not the standard unless being "reasonably convinced" is synonymous with "greater weight of the
evidence." The Court has used the terms interchangeably.563 However, it is safe to assume that being
"reasonably convinced" is a lesser burden of proof than "greater weight of the evidence."
6.11.2 EXPERT TESTIMONY
Several of Florida's statutory mitigating factors and a host of nonstatutory mitigating factors
require expert assistance. If defense counsel properly requests a psychologist or psychiatrist or special
testing to determine brain damage to assist him or her in the sentencing stage, it is error not to grant
The State may also call experts to rebut mitigating circumstances testified to by defendant's
experts.565 The Rules of Criminal Procedure contain notice requirements for the examination of the
559Floyd v. State, 569 So. 2d 1225 (Fla. 1990); Campbell v. State, 679 So. 2d 720 (Fla. 1996)
560Pope v. State, 679 So. 2d 710 (Fla. 1996).
561Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990).
562Weaver v. State, 2004 WL 292243 (Fla. Dec. 16, 2004).
563Ford v. State, 802 So. 2d 1121 (Fla. 2001).
564Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985); Hoskins v. State, 702
So. 2d 202 (Fla. 1997); Hoskins v. State, 735 So. 2d 1281 (Fla. 1999).
565Davis v. State, 698 So. 2d 1182 (Fla. 1997).
defendant by State experts and contain sanctions for the defendant's refusal to cooperate.566
The defendant is not entitled to a blanket request for appointment of experts. For instance,
the Court does not have to provide the defendant with a jury-selection expert.567 Nor does the Court
have to provide the defendant with a PET-Scan.568 The Court has established a two-part test to
determine whether the refusal to grant funds for the appointment of an expert to an indigent defendant
is an abuse of discretion. The test is as follows: (1) whether the defendant made a particularized
showing of need, and (2) whether the defendant was prejudiced by the Court's denial of the motion
requesting expert assistance.569
6.11.3 IRRELEVANT MITIGATING CIRCUMSTANCES
If the defendant does not intend to rely upon a certain mitigating circumstance, neither the
state nor defendant may present any evidence about it.570 However, evidence of that circumstance
may become admissible as impeachment.571 But the evidence must be proper impeachment. In
Gerald v. State,572 the defendant promised not to rely upon absence of a significant prior record as a
mitigating circumstance. A defense witness testified that the defendant had played with witness's
children, and the witness and the defendant had never had a confrontation. The prosecutor seized this
as an opportunity to bring out the defendant's criminal record, including the defendant's eight
nonviolent prior felonies. The Court held that the defendant had not "opened the door" and reversed
for a new penalty phase proceeding.
6.11.4 WEIGHT TO BE GIVEN TO MITIGATION
Unless there is an abuse of discretion, the trial judge may determine the weight to be given
to relevant mitigating evidence. A number of Florida cases hold that, once a mitigating factor is
found, it must be given at least some weight.573
The following cases hold that, if a mitigating circumstance is found to exist, it must be given
some weight. However, in Trease v. State,574 the Court receded from prior decisions and approved
assigning no weight to a mitigating circumstance. Still, it is better practice for the trial judge to
assign appropriate weight to each mitigator and avoid an "abuse of discretion" review. In one case,
the Court found the sentencing judge abused his discretion by assigning "little weight" to two
566Fla.R. Crim. P. 3.202.
567San Martin v. State, 705 So. 2d 1337 (Fla. 1998).
568Rogers v. State, 783 So. 2d 980 (Fla. 2001).
569Id.; Martin, 705 So. 2d 1337
570Fitzpatrick v. Wainwright, 490 So. 2d 938 (Fla. 1986).
571Smith v. State, 515 So. 2d 182 (Fla. 1987); Bonifay v. State, 626 So. 2d 1310 (1993).
572Gerald v. State, 601 So. 2d 1157 (Fla. 1992).
573Knowles v. State, 632 So. 2d 62 (Fla. 1993); Campbell v. State, 571 So. 2d 415 (Fla. 1990).
574Trease v. State. 768 So. 2d 1050 (Fla. 2000).
statutory mitigating circumstances.575
6.11.5 HEARSAY ALLOWED
See §§ 6.1.8, 6.7.3, and 6.7.16.
6.11.6 DISCOVERY PROBLEMS
The Supreme Court of Florida adopted Fla. R. Crim. P. 3.202, which governs the procedure
to be followed when the defendant plans to rely on testimony from mental health experts in the
penalty phase of the trial. The rule will, of necessity, cause some delay in the penalty phase of the
trial. The Supreme Court of Florida rejected a rule that would require the State and defense to
disclose the aggravating and mitigating circumstances relied upon; but, in light of the regular
discovery rule, which, among other things, requires disclosure of all witnesses, tangible evidence and
statements of the defendant -- both the state and defense should be prepared for the penalty phase
either immediately after, or very soon after, the guilt phase of the trial.
6.12.0 THE DEFENDANT WHO WANTS THE DEATH PENALTY OR
INSISTS THAT NO MITIGATION BE PRESENTED
Usually, the defendant will want to escape the death penalty. But what if the defendant wants
to be executed or insists on presenting no mitigating evidence and no closing argument? These cases
are more numerous than might be expected, and they provide instructions to trial judges on how to
deal with this problem.
An early case is Hamblen v. State,576 in which the Court ruled the defendant had the right to
represent himself and control his own destiny. In Anderson v. State,577 the defendant had counsel but
directed him to present no testimony at the penalty phase. His death penalty was upheld.
In Klokoc v. State,578 the defendant refused to allow his attorney to participate in the penalty
phase, indicating he wanted to die. The trial court appointed special counsel to represent the "public
interest" in bringing forth mitigating factors to be considered by the Court. Even though the trial
court sentenced the defendant to die, the Supreme Court of Florida, after rejecting defendant's request
to dismiss the appeal, reduced the death sentence to life imprisonment based on the mitigation
presented by the special counsel. Appointment of special counsel is not yet required.579 However,
the Court may be heading in that direction.580
575Ramirez v. State, 739 So. 2d 568 (Fla. 1999).
576Hamblen v. State, 527 So. 2d 800 (Fla. 1988).
577Anderson v. State, 574 So. 2d 87 (Fla. 1991).
578Klokoc v. State, 589 So. 2d 219 (Fla. 1991).
579Farr v. State, 621 So. 2d 1368 (Fla. 1993); Durocher v. State, 604 So. 2d 810 (Fla. 1992); Farr
v. State, 656 So. 2d 448 (Fla. 1995).
580Houser v. State, 701 So. 2d 329 (Fla. 1997); Muhammad v. State, 782 So. 2d 343, 368, (Fla.
2001), Pariente, J., specially concurring.
In Muhammad v. State,581 the Court stated that the trial court could call mitigation witnesses
as its own witnesses, appoint counsel for that purpose, or if standby counsel has been appointed when
the defendant is representing himself, use standby counsel for this purpose. A presentence
investigation (PSI) is now required to be ordered in these cases to assist the judge in discovering
mitigation.582 In fact, four justices suggest the Court consider a uniform rule requiring presentence
investigation reports in all cases involving the death penalty.583 If a presentence investigation report
is ordered, the entire contents of the report must be disclosed to the defendant.584
There is no doubt the Court must consider all mitigation in the record, including that in the
presentence investigation report, even if no mitigation is presented to the jury, and the defendant asks
the judge not to consider any mitigation. Failure to do so will result in a new penalty phase being
ordered.585 Proffered mitigation that counsel suggests could be proved, if the defendant allowed it,
is not evidence and need not be considered by the trial court.586 "Proffered evidence" by counsel is
merely a representation of what evidence the defendant proposes to present and is not actual
When the defendant presents no mitigation to the jury and the jury recommends a death
sentence, it is reversible error for the judge to give the recommendation great weight. The fact the
recommendation is given less weight should be clearly stated in the sentencing order.588
The Supreme Court of Florida now has a rule governing the procedure to be followed when
the defendant wants to waive mitigation.589 The procedure is as follows:
(1) Defendant's counsel must inform the Court the defendant is requesting to waive
(2) Defendant's counsel must inform the Court what mitigation could be presented; and
(3) The trial court must have the defendant knowingly and voluntarily waive the presentation
of this mitigation.
Before the trial court may waive a defendant's right to present mitigation evidence, the trial
court is obligated to ensure the defendant's waiver is knowing, uncoerced, and not due to defense
581Muhammad, 782 So. 2d 343.
582Id. at 364.
583Nelson v. State, 748 So. 2d 237 (Fla. 1999) (Pariente, J., specially concurring).
584Garner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).
585Farr v. State, 621 So. 2d 1368 (Fla. 1993); Robinson v. State, 684 So. 2d 175 (Fla. 1996);
Muhammad v. State, 782 So. 2d 343 (Fla. 2001).
586Lamarca v. State, 785 So. 2d 1209 (Fla. 2001).
587Grim v. State, 841 So. 2d 455 (Fla. 2003).
588Muhammad v. State, 782 So. 2d 343, 361 (Fla. 2001).
589Koon v. Duggar, 619 So. 2d 246 (Fla. 1993); Spann v. State, 857 So. 2d 845 (Fla. 2003).
counsel's failure to fully investigate for mitigating evidence.590
Florida has not yet allowed a defendant to forego a direct appeal, even when the defendant
In Overton v. State,592 the trial judge followed the procedure outlined above and, in addition,
conducted a hearing during which the defendant was advised to present mitigation. After the
defendant declined, the trial judge went on to other matters and came back and advised the defendant
again. At the Spencer hearing, the judge again advised the defendant to present mitigation and he
declined. A presentence investigation report was ordered although the defendant refused to cooperate
with the Department of Corrections. The judge addressed the statutory and nonstatutory mitigating
circumstances known, including the defendant's demeanor in the courtroom. The sentencing order
is set out in part in the opinion.
Forcing a defendant to present mitigating circumstances is error, and a new penalty phase trial
will likely be ordered.593
6.13.0 THE DEFENDANT WHO WANTS TO DISMISS DEFENSE COUNSEL AFTER THE
If the defendant insists on self-representation after the guilt phase of the trial, or wants to fire
defense counsel, the same procedure must be followed as if this request had occurred before or during
trial. Before allowing a defendant to represent himself, assuming he has no grounds to have other
counsel appointed, the following action must be taken:594
(1) Conduct a Faretta inquiry (There is an extensive model dialog contained in the
committee notes to Rule 3.111.);
(2) Give defendant some time to prepare (10 minutes is not enough); and
(3) Appoint stand-by counsel to be available for the
remainder of the penalty phase.
A defendant does not have the right to "hybrid representation" by acting as co-counsel.595
However, the trial judge has the discretion to allow the defendant to be co-counsel and even address
the jury during final argument. This decision will not be disturbed absent an abuse of discretion.596
590Spann, 857 So. 2d 845.
591Klokoc v. State, 589 So. 2d 219 (Fla. 1991); Farr v. State, 656 So. 2d 448 (Fla. 1995).
592Overton v. State, 801 So. 2d 877 (Fla. 2001).
593Mora v. State, 814 So. 2d 322 (Fla. 2002).
594Amos v. State, 618 So. 2d 157 (Fla. 1993):
595McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); State v. Tait,
387 So. 2d 338, 340 (Fla.1980).
596Bell v. State, 699 So. 2d 674, 677 (Fla.1997).
Experienced trial judges will likely not allow defendants to be co-counsel.597
6.14.0 CLOSING ARGUMENTS
Both the state and defense have the right to make a closing argument. Each side is entitled
to one argument.598 The State argues first. Failure to give the defendant the final closing argument
is fundamental error and will cause the case to be reversed. It does not matter if the defendant
presents witnesses or not. The defendant always has the right of last closing in the penalty phase.599
Improper closing arguments have presented an enormous amount of issues on appeal in death
cases. Why is this so? The State usually has a dead body with accompanying gory photographs,
witnesses who at least place the defendant on the scene, forensic evidence that stacks the cards
conclusively against the defendant, a jail house snitch and, last but not least, a confession.
Additionally, during the guilt and penalty phases of the trial, the defendant usually declines to testify.
With all of this evidence and testimony, why do prosecutors insist on jeopardizing a sure conviction
with a reversal years later because of some unnecessary, vindictive or otherwise unprofessional
argument? Immaturity? Lack of training? It is hard to tell. However, trial judges have an
affirmative responsibility to insist on final arguments remaining within ethical and evidentiary limits
and--they risk reversal if they fail.
Unfortunately, defense lawyers are not much better. Because the defense lawyer has the final
argument in penalty phase hearings, it is often too great a temptation to interject an improper
argument that cannot be rebutted. Trial judges need to watch for these defense arguments as carefully
as they watch the State's argument in order to preserve a fair trial for both sides.
6.14.1 APPROPRIATE ARGUMENT BY STATE
The State may argue the evidence that tends to prove a statutory aggravating circumstance or
that tends to disprove a statutory or nonstatutory mitigating circumstance. Argument dealing with
the weighing of the circumstances or other aspects of the law the jury will be given, is also
appropriate. For instance, it is proper to argue that a mitigating circumstance such as a traumatic
childhood can be put in proper context if it occurred years ago. This argument conveys the concept
that, while the mitigator may be valid, its weight should be lessened.600
In Brooks v. Kemp,601 the Court went to great lengths to explain proper and improper
prosecutorial arguments. The Brooks case is a Georgia case, so some of the information in the case
does not apply to Florida. However, a great deal of it does. In Brooks, the Court pointed out the
dangers of prosecutorial argument by stating:
It has long been recognized that misconduct by a prosecuting attorney in closing
argument may be grounds for reversing a conviction. Berger v. United States, 295
U.S. 78, 55 S. Ct. 629, 79 L.Ed. 1314 (1934). Part of this recognition stems from a
597See, Mora v. State, 814 So. 2d 322 (Fla. 2002).
598Fla. R. of Crim. P. 3.780.
599Wike v. State, 648 So. 2d 683 (Fla. 1994).
600Cox v. State, 819 So. 2d 705 (Fla. 2002).
601Brooks v. Kemp, 762 F. 2d 1383 (llth Cir. 1985), opinion reinstated after remand, 809 F. 2d
700 (llth Cir. 1987)
systemic belief that a prosecutor, while an advocate, is also a public servant "whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that
justice shall be done." 295 U.S. at 88, 55 S. Ct. at 633.
Beyond a concern with the inherent role of the prosecuting attorney, courts have
also noted that prosecutorial misconduct is particularly dangerous because of its likely
influence on the jury. Speaking of the prosecutor's duty to seek justice, the Berger
It is fair to say that the average jury, in a greater or less degree, has confidence that
these obligations, which so plainly rest upon the prosecuting attorney, will be
faithfully observed. Consequently, improper suggestions, insinuations, and, especially,
assertions of personal knowledge, are apt to carry much weight against the accused
when they should properly carry none.602
Of course, as is stated in Brooks, information about the defendant and the circumstances of
the offense made known to the jury are proper subjects for final argument. The defendant's character
is a proper subject in a penalty phase final argument so long as the defendant's character has been
made an issue by evidence.
6.14.2 INAPPROPRIATE ARGUMENT BY STATE
Rule 4-3.4. of the Code of Professional Conduct provides,
A lawyer shall not:
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant
or that will not be supported by admissible evidence, assert personal knowledge of
facts in issue except when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a civil litigant or the
guilt or innocence of an accused.
The rule has been repeatedly cited in improper final argument cases.603
Most prosecutors have never read Rule 4-3.4. When they read it, they invariably wonder what
is left to argue. For some reason, the idea about arguing the facts and the law escapes them. So, they
argue other things that are inappropriate. Examples of inappropriate arguments are as follows:
6.14.3 DENIGRATION OF THE ROLE OF THE JURY ARGUMENT
The prosecutor may not tell the jury in a jurisdiction where the judge makes the sentencing
decision that the jury's recommendation is a recommendation only which the judge can accept or
reject. The jury is entitled to know the recommendation must be given great weight and their
recommendation can be overturned only in very limited circumstances. Neither can the prosecutor
minimize the jury's role by arguing the appellate courts will review the sentence and can overturn it
602762 F. 2d at 1399.
603Grant v. State, 171 So. 2d 361 (Fla. 1965); Coleman v. State, 215 So. 2d 96 (Fla 4th DCA
1968); Riley v. State, 560 So. 2d 279 (3d DCA 1990); Pacifico v. State, 642 So. 2d 1178 (Fla. 1st
DCA 1994); Kelly v. State, 842 So. 2d 223 (1st DCA 2003).
if it is incorrect.604
6.14.4 ARGUING AGGRAVATING FACTORS NOT LISTED IN THE STATUTE
A good example of this improper argument is a defendant's lack of remorse. Lack of remorse
cannot be considered in aggravation.605 Prosecutors should not argue this or any other non-listed
aggravating factor in their closing. They can argue against a mitigating factor. So, if the defendant
is going to argue remorse as a mitigating factor, the prosecutor can argue against remorse being
considered in mitigation, but the argument cannot suggest aggravation. One situation that has been
reported is the case where the prosecutor argued that mental mitigation was actually aggravation.606
This argument was clearly improper and contributed to the reversal of the death penalty. In the same
case, the prosecutor improperly attempted to interject "future dangerousness" as an aggravating
circumstance in the evidence.
Victim-impact evidence is not considered an aggravating factor, and it is improper argument
to suggest the jury can consider it as such.607 If victim-impact evidence has been presented to the jury,
the prosecutor should not mention it in final argument.
6.14.5 ARGUING THE DETERRENT EFFECT OF THE DEATH PENALTY
There is no aggravating factor dealing with the deterrent effect of the death penalty. (Neither
is there any concrete statistical evidence of this.) Accordingly, it cannot be argued, except as it might
relate in an appropriate case to a particular defendant, such as one who had previously been convicted
6.14.6 SEND A MESSAGE TO THE COMMUNITY/"CONSCIENCE OF THE
It is improper for the prosecutor to ask the jury to "send a message" or to recommend the
death penalty as the "conscience of the community."608 The prosecutor's statement "I stand before
you again today on behalf of the decent law-abiding people of this community and this state, whom
I represent" is on the edge of impropriety but does not cross over. This statement is only to show who
the prosecutor represents, "albeit in a somewhat grandiose manner."609
604Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1988); Mann v.
Dugger, 844 F. 2d 1446 (llth Cir. 1988); compare, Harich v. Dugger, 844 F. 2d 1464 (llth Cir.
605Pope v. State, 441 So. 2d 1073 (Fla. 1983), and Shellito v. State, 701 So. 2d 837 (Fla. 1997)
606Walker v. State, 707 So. 2d 300 (Fla. 1997).
607Card v. State, 803 So. 2d 613 (Fla. 2001).
608Bertolotti v. State, 476 So. 2d 130 (Fla. 1985); Campbell v. State, 679 So. 2d 720 (Fla. 1996);
Urbin v. State, 714 So. 2d 411 (Fla. 1998); Hawk v. State, 718 So. 2d 159 (Fla. 1998); Card v.
State, 803 So. 2d 613 (Fla. 2001) (harmless error where argument was isolated and prosecutor
did not continue it after objection).
609Cox v. State, 819 So. 2d 705 (Fla. 2003).
6.14.7 PERSONAL OPINIONS, EXPERTISE, OR SELECTIVE REQUESTS OF THE
PROSECUTOR AS TO WHICH CASES DESERVE THE DEATH PENALTY
In Brooks v. Kemp,610 ( a case that was tried in Georgia) the prosecutor expressed his personal
belief in capital punishment, his policy of rarely seeking the death penalty (the prosecutor's expertise
argument), claimed sentencing the defendant to death would save the tax-payers money and gave the
jury a "war-on-crime speech." All of these arguments were improper.
The Eleventh Circuit Court of Appeals will not reverse a death sentence because of improper
final argument unless (1) the argument must have encouraged the jury to take into account matters
that are not legitimate sentencing considerations and (2) the argument must have been so prejudicial,
when viewed in the context of the entire sentencing proceeding, as to have rendered that proceeding
6.14.8 CALLING THE DEFENDANT A LIAR
Generally, it is improper for counsel to disparage an opponent by calling the opponent a liar.612
There is an exception to that rule that counsel should use cautiously. "When it is understood from
the context of the argument that the charge [of untruthfulness] is made with reference to the evidence,
the prosecutor is merely submitting to the jury a conclusion that he or she is arguing can be drawn
from the evidence."613
6.14.9 ARGUMENTS THAT APPEAL TO SYMPATHY, EMOTIONS OR FEAR
The prosecutor may not appeal to sympathy, emotions, or fear. Telling jurors they will be "as
evil as the defendant" if they fail to vote in accordance with the State's view of the evidence is
improper.614 And the prosecutor may not use scare tactics by asking the jury, "Do you want to give
this man less than first-degree murder and the electric chair and have him get out and come back and
kill somebody else, maybe you?"615
In Pait v. State616 the prosecutor made the comment that, although the defendant had a right
to appeal the jury's decision, the State was unable to do so, and that the prosecutor and his staff
considered the death penalty appropriate. This comment was held to be reversible error.
A number of improper final arguments have been held to be fundamental error. In most of
610Brooks v. Kemp, 762 F. 2d 1383 (llth Cir. 1985), opinion reinstated after remand, 809 F. 2d
700 (llth Cir. 1987).
611Johnson v. Wainwright, 778 F. 2d 623 (llth Cir. 1985).
612Rule 4-3.4. A lawyer shall not: . . . (e) in trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by admissible evidence, assert
personal knowledge of the facts in issue except when testifying as a witness, or state a personal
opinion as to the justice of the cause, the credibility of a witness, the culpability of a civil litigant
or the guilt or innocence of an accused.
613Lugo v. State, 845 So. 2d 74 (Fla. 2003); Davis v. State, 698 So. 2d 1182 (Fla. 1997).
614King v. State, 623 So. 2d 486 (Fla. 1993).
615Grant v. State, 194 So. 2d 612, 613 (Fla.1967)
616Pait v. State, 112 So. 2d 380(Fla.1959).
these examples, the trial court was found to have erred for not granting a mistrial. For instance,
prosecutors are not allowed to disparage a legitimate defense, such as insanity;617 they are not allowed
to argue that the people of the State have determined the death penalty is necessary to deter people
from walking down the streets gunning other people down;618 they are not allowed to ask the jury to
imagine the pain the victim suffered;619 they are not allowed to argue that, when the number of
aggravators outnumber the number of mitigators, the death penalty is appropriate;620 they are not
allowed to speculate on what punishment the victim would want if he or she were here;621 they are
not allowed to ask the jury to listen to the screams of the victim and to his or her desires for
punishment;622 nor can they ask the jury to "bring back a recommendation that will tell the people of
Florida, that will deter people from permitting (lawlessness, murder, etc.)"623
Prosecutors may not make an "emotional portrayal of the victim's agony" to the jury unless
the portrayal is supported by the evidence.624 Nor may the prosecutor characterize defendants as
persons of "true deep-seated, violent character;" "people of longstanding violence;" "they commit
violent, brutal crimes of violence;" "it's a character of violence;" "both of these defendants are men
of longstanding violence, deep-seated violence, vicious violence, brutal violence, hard violence . . .
those defendants are violent to the core, violent in every atom of their body."625
LIFE IS NOT LIFE ARGUMENT
The argument that the jury should not recommend a life sentence because there is no
guarantee the defendant will actually be imprisoned for life is improper. The error may be harmless
error if strong curative instructions are given to the jury.626
ARGUING THAT THE JURY MUST RETURN A RECOMMENDATION OF
DEATH IF THE AGGRAVATING CIRCUMSTANCES OUTWEIGH
THE MITIGATING CIRCUMSTANCES
This argument is a gross misstatement of the law. The Supreme Court of Florida has
617Rosso v. State, 505 So. 2d 611 (Fla. 3d DCA1987).
618Urbin v. State, 714 So. 2d 411 (Fla. 1998).
624Brooks v. State, 762 So. 2d 879 (Fla. 2000).
625Id. See also, two other cases where the Court took prosecutors to task for prosecutorial
misconduct in their penalty closing argument. Hawk v. State, 718 So. 2d 159 (Fla. 1998); Ruiz v.
State, 743 So. 2d 1 (Fla. 1999).
626Card v. State, 803 So. 2d 613 (Fla. 2001)
"declared many times that `a jury is neither compelled nor required to recommend death where the
aggravating factors outweigh the mitigating factors.'"627 The standard instruction in effect on the date
of these materials is insufficient. A model set of penalty phase instructions is included with these
COST OF LIFE IMPRISONMENT vs. DEATH ARGUMENT
The argument that a death sentence costs less than a life sentence is both inaccurate and
irrelevant to any issue before the court or the jury.628
Religious arguments have no place in a criminal trial, much less in the penalty phase of a
capital trial. It has been held to be fundamental error for a prosecutor to argue, "There, ladies and
gentlemen, is a man who forgot the fifth commandment, which was codified in the laws of the State
of Florida against murder: Thou shalt not kill."629
Not all cases involving religious arguments rise to the level of fundamental error.630 However,
the Supreme Court of Florida has admonished prosecutors from using these arguments and
dehumanizing the defendant. The Court has stated, "We do, however, caution against the use or
approval of arguments which use references to divine law because argument which invokes religion
can easily cross the boundary of proper argument and become prejudicial argument. Further, we do
find that the use of the word "exterminate" or any similar term which tends to dehumanize a capital
defendant to be improper. We condemn such argument and caution prosecutors against arguments
using such terms."631
In Ferrell v. State,632 the Court discussed the problem with a prosecutor quoting the
commandment "Thou Shalt Not Kill." It also discusses error being committed when a judge
discusses religious philosophy, or quotes from the Bible. The Court warned that, without question,
trial judges and attorneys should refrain from discussing religious philosophy in Court proceedings.
The court then quoted as follows:
This is precisely the sort of appeal to religious principles that we have repeatedly held
to be improper. As we explained recently in [People v. Sandoval, 4 Cal.4th 155, 14
Cal.Rptr.2d 342, 362-64, 841 P.2d 862, 883-84 (1992), affirmed sub nom. Victor v.
Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994) ]: "What is
objectionable is reliance on religious authority as supporting or opposing the death
penalty. The penalty determination is to be made by reliance on the legal instructions
627Henyard v. State, 689 So. 2d 239, 249-50 (Fla. 1996); Franqui v. State, 804 So. 2d 1185, 1194
(Fla. 2001); Cox v. State, 819 So. 2d 705 (Fla. 2002).
628Brooks, 762 F. 2d 1383.
629Meade v. State, 431 So. 2d 1031, 1031 (Fla. 4th DCA), (finding reversible error despite
defense's failure to object immediately to prosecutor's argument), review denied, 441 So. 2d 633
630Lugo v. State, 845 So. 2d 74 (Fla. 2003).
631Bonifay v. State, 680 So. 2d 413 (Fla. 1996)
632Ferrell v. State, 686 So. 2d 1324 (Fla. 1996).
given by the court, not by recourse to extraneous authority."
. . . The primary vice in referring to the Bible and other religious authority is that such
argument may "diminish the jury's sense of responsibility for its verdict and ... imply
that another, higher law should be applied in capital cases, displacing the law in the
court's instructions." [People v. Wrest, 3 Cal.4th 1088, 13 Cal.Rptr.2d 511, 519, 839
P.2d 1020, 1028 (1992), cert. denied, 510 U.S. 848, 114 S. Ct. 144, 126 L. Ed. 2d 106
(1993) ]. The prosecutor here invoked the Bible to demonstrate the legitimacy of
capital punishment, and even implied that defendant deserved death under God's law:
"God recognized there'd be people like Mr. Wash . . . Who must be punished for what
they have done . . . must forfeit their lives for what he's done." This was improper.
SHOW THE DEFENDANT NO MERCY ARGUMENT
The Court will not tolerate the State's argument that suggests the defendant should be shown
the same mercy that was shown the victim of the murder.633
THE GOLDEN RULE ARGUMENT
While we deny relief based upon the remarks which were made without objection,
we would be remiss if we did not again remind officers of the State that we will not
condone improper closing arguments. Here, there was absolutely no need for
experienced counsel to walk the line of reversible error by flirting with a "Golden
Rule" argument. Even first-year trial attorneys know better than to engage in such
behavior, yet a significant case involving enormous judicial and state resources was
jeopardized by such foolish remarks. The evidence here was overwhelming but a
prosecutor unnecessarily elected to walk a thin line.634
ARGUMENT THAT PROSECUTOR HAS EVIDENCE NOT PRODUCED
The prosecutor's closing argument expressing his view as to the credibility of two government
witnesses and implying the prosecution would not have been commenced unless it had already been
determined that defendant was guilty amounted to plain error.635
ARGUING FACTS NOT IN EVIDENCE (EXCEPT FACTS WITHIN
Portions of a prosecutor's argument, in which he referred to his prior criminal experience,
were improper comments on facts not in evidence.636
APPROPRIATE ARGUMENT BY THE DEFENSE
Any argument that shows the lack of an aggravating circumstance or the existence of a
statutory or nonstatutory mitigating circumstance is appropriate. Any argument that deals with the
633Urbin v. State, 714 So. 2d 411 (Fla. 1998); Brooks v. State, 762 So. 2d 879 (Fla. 2000).
634Lugo v. State, 845 So. 2d 74 (Fla. 2003).
635United States v. Garza, 608 F. 2d 659 (5th Cir.1979).
636Conner v. State, 303 S.E.2d 266, cert. den., 464 U.S. 865 (1983).
law the jury will be given is also appropriate. Suggestions as to the weighing process and the
suggested weight to be given to aggravating and mitigating circumstances is allowed.
INAPPROPRIATE ARGUMENT BY THE DEFENSE
Rule 4-3.4 of the Code of Professional Conduct applies to defense counsel as well as to the
ARGUMENTS DESIGNED TO SET UP INEFFECTIVE ASSISTANCE
Judges must be careful that defense attorneys do not make comments in their arguments that
will be so prejudicial to the defendant that counsel will be deemed to be ineffective at a later collateral
proceeding.637 A recent Supreme Court of Florida case lists nine excerpts from counsel's closing
argument that constituted ineffective assistance of defense counsel at the penalty phase trial and these
comments resulted in a reversal for a new penalty phase 16 years after the original crime.638 The nine
excerpts are as follows:
 I[n] the years I have been practicing law in Florida, this is the fourth time I have argued
for a person's life. I must confess to you, this is the most difficult case that I have ever had in terms
of making the argument on the death penalty.
 Now, in arguing the death penalty in this fashion, as I am required to do, sometimes I just
speak about subjects which I wouldn't normally speak about.
 Now, I hope I do not seem to you to be a gouhl [sic], but I have no choice.
 [Clark] therefore is far from being a good person, and, therefore, must be classified as a
bad person . . .
 [Clark] is one of those people from the underbelly of society who, for whatever reason of
background and upbringing, is unable to fully abide by the laws that the rest of us abide by.
 We have a crime problem in this country, and perhaps Mr. Clark comes from that group
of people who create that problem.
 I agree that people like Mr. Clark should be stopped.
 I am not condoning Mr. Clark's activities or actions. I, myself, certainly appreciate the
seriousness of this offense, and I, myself, certainly feel the horror that a death has occurred.
 Don't ask me, because I have no answer. What possesses anyone to go into a place of
business with a firearm to steal one hundred dollars, and apparently to be prepared to use the firearms
to steal one hundred dollars. I don't know the answer . . . The problem is that it happens all the time
with these type of people. . .
The Court stated:
Prejudice is established here because Clark's counsel essentially offered the jury
no alternative but to impose a sentence of death. In fact, we find that portions of
counsel's argument had the effect of encouraging the jury to impose the death penalty.
See Horton v. Zant, 941 F. 2d 1449, 1463 (11th Cir.1991). Additionally, counsel's
637See Osborne v. Shillinger, 861 F. 2d 612 (10th Cir. 1988). See also King v. Strickland, 714 F.
2d 1481 (11th Cir. 1983), cert. granted and judgment vacated, 467 U.S. 1211 (1984), on remand,
748 F. 2d 1492 (llth Cir. 1984); Horton v. Zant, 941 F. 2d 1449 (11th Cir. 1991). See Douglas v.
Wainwright, 714 F. 2d 1532 (llth Cir. 1983)(defense counsel's comments to the Court prior to a
sentencing hearing rendered counsel ineffective even where the jury recommended life).
638 Clark v. State, 690 So. 2d 1280 (Fla. 1997).
attacks on Clark's character and counsel's attempts to distance himself from his client
could only have hurt Clark's cause. Id. We find that counsel's deficiencies during the
sentencing caused an unreliable result, and therefore counsel's deficient performance
was prejudicial to Clark.639
RESIDUAL OR LINGERING DOUBT
The defendant may not argue there is residual or lingering doubt about the guilt of the
defendant.640 The United States Supreme Court has held, in a plurality opinion, there was no
constitutional right to have residual doubt considered in mitigation.641 However, in that case, the
Court was dealing specifically with the failure to give a requested jury instruction and noted the trial
court placed "no limitation whatsoever on petitioner's opportunity to press the 'residual doubts'
question with the sentencing jury."
ARGUING THE AGGRAVATING CIRCUMSTANCES LAUNDRY LIST
The trial judge does not have to inform the jury of aggravating circumstances that are not
applicable to the evidence at trial. Defense counsel is not permitted to argue to the jury that the crime
is not worthy of the death penalty because only two or three of the fourteen potential aggravating
The opposite is also be true. The State may not the review all of the possible mitigating
factors during closing argument to show the case lacks mitigation. Argument should be limited to
aggravating and mitigating factors for which some evidence has been presented and that are contained
in the jury instructions.
COMPARE THE DEFENDANT TO WORSE KILLERS ARGUMENT
It is inappropriate for a defendant to argue that his murder is not so bad if compared to those
of Ted Bundy, Jeffrey Dahmer, Charles Manson, or some other notorious killer. The Court has stated,
". . . defense counsel's argument to the jury regarding the sentences of specifically identified killers
in other capital cases was not relevant to the determination of the appropriate sentence for appellant's
role in the instant murder."643
Unique problems arise in providing accurate jury instructions for the penalty phase of a capital
case. The Standard Jury Instructions are generally accurate, but there are gaps and problems here and
there with them. A set of Model Penalty Phase Instructions is provided with these materials. These
instructions have not been approved by the Supreme Court of Florida as of this writing, but they
include instructions contemplated by recent decisions not covered in the Standard Jury Instructions.
639690 So. 2d at 1282.
640King v. State, 514 So. 2d 354 (Fla. 1987).
641Franklin v. Lynaugh, 487 U.S. 164 , 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988).
642Floyd v. State, 569 So. 2d 1225 (Fla. 1990).
643Hess v. State, 794 So. 2d 1249 (Fla. 2001).
CALDWELL PROBLEM--DENIGRATING THE ROLE OF THE JURY
Neither the Court nor counsel may minimize the role of the jury.644 Florida's jury instructions
have been upheld by the Supreme Court of Florida and the United States Supreme Court many times.
However, challenges to Florida's present jury instructions may be sucessfully made in the future.645
But a clear reading of Adams and Caldwell can leave little doubt that any instructions that "minimizes
the jury's sense of responsibility for determining the appropriateness of death" may require a new
sentencing proceeding. The Supreme Court of Florida does not believe Caldwell applies to Florida.646
But both the Eleventh Circuit and the United States Supreme Court may disagree. Until this issue
is finally decided, it is far better to be safe than sorry.
The Standard Jury Instruction on this subject could be improved upon. A better instruction
is as follows:
"Your advisory sentence as to what sentence should be imposed on this defendant is
entitled by law and will be given great weight by this court in determining what
sentence to impose in this case. It is only under rare circumstances that this court
could impose a sentence other than what you recommend."
SHIFTING THE BURDEN OF PROOF
There has been considerable litigation involving "mandatory" death instructions and
"weighing" of aggravating and mitigating jury instructions.647 Florida's Standard Jury Instructions
direct the jury to determine if the mitigating factors outweigh the aggravating factors. The United
States Supreme Court has not addressed the exact language of this instruction. Shifting the burden
of proof to the defendant is dangerous.648 The Eleventh Circuit Court of Appeals reviewed this
instruction and found that not to be offensive.649 The Supreme Court of Florida has also addressed
this insturction and has approved it.650 However, until the burden shifting problem with this
instruction is resolved, or the instruction is changed, trial judges should be aware of this issue while
ruling on requested jury instructions and during arguments of counsel. The safe course to take,
644Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1988); Mann v.
Dugger, 844 F. 2d 1446 (llth Cir. 1988).
645See also Dugger v. Adams, 489 U.S. 401 (1989). (procedural default precluded consideration
of the issue).
646Combs v. State, 525 So. 2d (Fla. 1988); King v. State, 555 So. 2d 355 (Fla. 1990).
647 See Sumner v. Shuman, 483 U.S. 66 (1987); Penry v. Lynaugh, 492 U.S. 302 (1989);
Blystone v. Pennsylvania, 494 U.S. 299 (1990); Boyde v. California, 494 U.S. 370 (1990);
Walton v. Arizona, 497 U.S. 639 (1990).
648Jackson v. Dugger, 837 F. 2d 1469 (11th Cir. 1988).
649Bertolotti v. Dugger, 883 F. 2d 1503 (11th Cir. 1989).
650Stewart v. State, 549 So. 2d 171 (Fla. 1989); Shellito v. State, 701 So. 2d 837 (Fla. 1997); San
Martin v. State, 717 So. 2d 462 (Fla. 1998).
whether the defendant requests it or not, is to instruct the jury that they must determine if the
aggravating circumstances outweigh the mitigating circumstances instead of visa versa.
DEFINE VAGUE TERMS
Ordinarily, the jury-sentencing recommendation must be given great weight by the sentencing
judge. Vague terms such as heinous, atrocious, cruel and cold, calculated, and premeditated without
any pretense of moral or legal justification need to be defined.651
The current Standard Jury Instruction defining "especially heinous, atrocious, or cruel" may
not satisfy the United States Supreme Court, although it has been approved by the Supreme Court of
The Supreme Court of Florida has recognized that the pre-1995 Standard Instruction on CCP
is unconstitutionally vague.653 The terms "cold, calculated and premeditated" and "without any
pretense of moral or legal justification" also need to be defined. The current Standard Jury Instruction
on CCP has been approved and should be read to the jury in its entirety.654
There are other vague terms in the current instructions, such as "elderly person" and
"advanced age." In Francis v. State,655 the Court had the opportunity to review the "particularly
vulnerable victim aggravator." The case involved twin sisters who were 66 years of age. They
appeared to be in reasonable health for their age with no disabilities. The Court ruled that these terms
were terms of common usage and need no definition. However, the Court quoted several authorities
for the definition of these common terms, and judges should exercise their discretion to define them
if this aggravating circumstance is an issue in a trial.656
AGGRAVATING AND MITIGATING CIRCUMSTANCES
1. The Court should allow the jury to only consider the aggravating circumstances for
which evidence has been presented in the guilt or penalty phases.657 The United States Supreme Court
has not held the Sixth Amendment to require a jury in Florida to specify which aggravating factors
have been found beyond a reasonable doubt.658 Giving the jury aggravating factors to consider that
do not apply in a case may result in a new sentencing hearing before a new jury, especially if the
651Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992).
652Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114, 119 L. Ed. 2d 326 (1992); Preston v. State,
607 So. 2d 404 (Fla. 1992).
653 Jackson, 648 So. 2d 85.
654Francis v. State, 808 So. 2d 10 (Fla. 2001).
656See § 6.7.14.
657Stewart v. State, 549 So. 2d 171 (Fla.1989).
658Hildwin v. Florida, 490 U.S. 638, 109 S. Ct. 2055, 104 L. Ed. 2d 728 (1989).
aggravating circumstances are HAC or CCP.659
2. The Court should not give the jury two aggravating circumstances that would
constitute doubling (i.e., homicide committed during course of a robbery and pecuniary gain) without
an appropriate instruction. In one case, the Court reversed a death sentence when the defense
requested a "doubling instruction" that was refused.660 One way to solve this problem is to give the
prosecutor the choice and read only one of the cumulative aggravating circumstances to the jury. The
Florida Standard Jury Instructions now include a "doubling" instruction that should be given if
3. The jury must be instructed that, in addition to the mitigating circumstances urged by
the defendant, they may consider "all other evidence presented during the trial or the penalty phase
proceeding which you find mitigating."661 The Standard Jury Instructions appear to be sufficient to
satisfy this requirement.
4. Statutory mitigating circumstances must be read to the jury to consider if any evidence
regarding them is in the record. It is reversible error not to do so. In Robinson v. State,662 the Court
Regarding mitigating evidence and instructions, we encourage the trial court to err
on the side of caution and to permit the jury to receive such rather than being too
5. The trial judge should give the "age" instruction if the defendant requests it.663 The
lawyers will know how to put the defendant's age in perspective. In Smith v. State,664 the Court held
it was error not to give the age instruction when requested. In Smith, the defendant was 20 years of
6. The instructions must not suggest that all the jurors must find a mitigating
circumstance unanimously before it can be considered. This implication is error that will require a
new penalty phase hearing.665
7. Mitigating circumstances dealing with the defendant's character, record, or
background, and any circumstances of the offense do not have to be individually listed for the jury.666
659Omelus v. State, 584 So. 2d 563 (Fla. 1991); Bonifay v. State, 626 So. 2d 1310 (Fla. 1993);
Padilla v. State, 618 So. 2d 165 (Fla. 1993).
660Castro v. State, 597 So. 2d 259 (Fla.1992. See also, Monlyn v. State, 705 So. 2d 1 (Fla. 1997).
661Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987); Floyd v. State,
497 So. 2d 1211 (Fla. 1986).
662Robinson v. State, 487 So. 2d 1040, 1043 (Fla. 1986). See also Smith v. State, 492 So. 2d
1063 (Fla. 1986); Stewart V. State, 558 So. 2d 416 (Fla. 1990).
663Archer v. State, 673 So. 2d 17 (Fla. 1996), Campbell v. State, 679 So. 2d 720 (Fla. 1996), and
Blackwood v. State, 777 So. 2d 399 (Fla. 2000).
665Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988); McKoy v. North
Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990).
666Jackson, 530 So. 2d 269; Jones v. State, 612 So. 2d 1370 (Fla. 1992); Ferrell v. State, 653 So.
2d 367 (Fla. 1995); James v. State, 695 So. 2d 1229 (Fla. 1997); Zakrzewski v. State, 717 So. 2d
488 (Fla. 1998); Franqui v. State, 804 So. 2d 1185, 1196 (Fla. 2002).
There is nothing to prohibit the trial judge from listing the nonstatutory mitigating circumstances in
the jury instructions. Listing them will assist the jury in making sure each of them is considered. The
case law simply does not require each mitigator to be listed.
8. Read all of the Standard Jury Instructions that are applicable. At least one copy of the
written instructions must be given to the jury.667 It is permissible to give each juror a copy.
In Guzman v. State,668 trial judges were instructed by the Supreme Court of Florida as follows:
By this opinion we direct that trial judges fully instruct death penalty juries on
all applicable jury instructions set forth in the Florida Standard Jury
Instructions unless a legal justification exists to modify an instruction. If a
legal need to modify an instruction exists, that need should be fully reflected
in the record in accordance with Florida Rules of Criminal Procedure 3.985.
The Standard Jury Instructions on mitigation have been held to be sufficient.669
A legal justification to modify the standard instructions was discovered in Franqui v. State.670
In Franqui, the trial judge initially instructed the jury, "If you believe that the aggravating factors
outweigh the mitigating factors, then the law requires that you recommend a sentence of death." This
misstatement of the law caused the Court to remind trial judges that "a jury is neither compelled nor
required to recommend death where aggravating factors outweigh mitigating factors."671 The Court
referred to the pattern instruction used by the Eleventh Circuit Court of Appeals and requested the
Committee on Standard Jury Instructions in Criminal Cases consider whether changes should be made
to the Standard Jury Instructions. The changes are suggested in the Model Penalty Phase Instructions
included with these materials. The Franqui case contains several other examples of instructions from
other jurisdictions such as California, Nevada, New York, New Hampshire and Missouri.
Anti-sympathy instructions can cause problems.672 The problem can occur during a
resentencing when various standard jury instructions are given in addition to the standard penalty
phase instructions. (e.g., the "prejudice, bias, and sympathy" instruction.) In the penalty phase, the
"verdict" is the advisory sentence and many of the mitigating circumstances typically offered call for
"sympathy." Care must be taken not to give instructions that devaluate mitigating circumstances.
The Model Penalty Phase Instructions leave out the word "sympathy" in order to avoid this confusion.
667 Fla. R. Crim. P. 3.400(b).
668Guzman v. State, 644 So. 2d 996 (Fla. 1994).
669See Davis v. State, 698 So. 2d 1182, 1192 (Fla. 1997); Bowles v. State, 804 So. 2d 1173, 1177
670Franqui v. State, 804 So. 2d 1185 (Fla. 2002).
671Henyard v. State, 689 So. 2d 239, 249-250 (Fla. 1996).
672California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987); Saffle v. Parks,
494 U.S. 484, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990).
The jury need not be instructed on a "jury pardon" in the penalty phase.673 While this general
rule is true, it is not totally accurate. In Franqui v. State,674 the Court repeated the rule that "a jury is
neither compelled nor required to recommend death where the aggravating factors outweigh the
mitigating factors." The Model Penalty Phase Instructions contain the instruction required by
Franqui. An earlier case, Dougan v. State,675 does not reflect the current law on this subject and
should not be relied upon.
TERM OF A LIFE SENTENCE
If a murder was committed after May 25, 1994, the jury must be instructed that a life sentence
means life without possibility of parole. If the jury asks a question about whether the defendant will
be eligible for parole in such a case, repeating the Standard Jury Instruction informing the jury that
the punishment is "either death or life imprisonment without the possibility of parole," is sufficient.676
The prosecutor is not allowed to argue that life without parole means something less than what it says,
or that the law may change some day.677 This, of course, is mere fiction since the Governor, with the
consent of the Cabinet, has the power to commute a death sentence, reduce a death sentence to a term
of years or pardon the defendant completely. The legislature also has the power to provide for the
release of prisoners serving life sentences. Ignoring the obvious and hoping no juror has read the
Constitution of the State of Florida is one of many problems with the current law.
If the jury has received victim-impact evidence, and the defendant requests the jury to be
instructed on the use of such evidence, an instruction should be given. In Alston v. State,678 the
Supreme Court of Florida approved the following instruction:
You shall not consider the victim-impact evidence as an aggravating circumstance, but
the victim-impact evidence may be considered by you in making your decision.
Another instruction used by the trial court was approved by the Court in Kearse State:679
Now you have heard evidence that concerns the uniqueness of (victim) as an
individual human being and the resultant loss to the community's members by the
victim's death. Family members are unique to each other by reason of the relationship
673Mendyk v. State, 545 So. 2d 846 (Fla. 1989).
674Franqui v. State, 804 So. 2d 1185, 1192 (Fla. 2002).
675Dougan v. State, 595 So. 2d 1 (Fla. 1992).
676Whitfield v. State, 706 So. 2d 1 (Fla. 1997).
677Urbin v. State, 714 So. 2d 411, 420 (Fla. 1998).
678Alston v. State, 723 So. 2d 148, 160 (Fla. 1998).
679Kearse State, 770 So. 2d 1119 (Fla. 2000).
and role each has in the family. A loss to the family is a loss to both the community
of the family and to the larger community outside the family. While such evidence is
not to be considered as establishing either an aggravating or mitigating circumstance,
you may still consider it as evidence in the case.
"So why," the jury may ask, "were we given this evidence in the first place? And how are we
to `consider' it?" These are very difficult questions to answer and provide a perfect example of why
victim-impact evidence should not be allowed in the first place. But, if the trial judge allows victim-
impact evidence, there is a better instruction that has been used by several trial judges, although it has
not been approved by the Supreme Court:
You have heard evidence about the impact of this homicide on the (family),
(friends), (community), of (victim). This evidence may be considered by you to
determine the victim's uniqueness as an individual human being and the resultant loss
to the community's members by the victim's death. However, the law does not allow
you to weigh this evidence as an aggravating circumstance. Your recommendation
to the Court must be based on the aggravating circumstances and the mitigating
circumstances about which I have instructed you.
This instruction is contained in the Model Penalty Phase Instructions.
JUDGE'S ROLE AFTER RECEIVING THE JURY'S RECOMMENDATION
The judge has several duties that must be discharged after receiving the jury's
recommendation to impose the death penalty. First, there must be a Spencer hearing. Second, the
attorneys must submit written memoranda of law. Third, the trial judge must prepare the sentencing
order. Finally, the judge must impose the sentence.
CONDUCT A SPENCER HEARING
There is nothing in Florida law that suggests the attorneys cannot present additional evidence
to the judge alone that has not been presented to the jury. Accordingly, a separate hearing must be
conducted prior to pronouncing sentence. This hearing is mandatory.680 Clever defense counsel will
hold back one or more strong mitigating circumstances for presentation at the Spencer hearing. This
tactic gives the defense two chances for a life sentence. If the jury returns a life recommendation, the
defense wins. If the judge is swayed because of the additional mitigation presented, the defense wins.
Both sides must be allowed to present additional evidence and argument at this hearing.
However, the trial judge should not allow the State to present evidence of an aggravating
circumstance that has not previously been argued to the jury.681 When this hearing has been
concluded, the trial judge should recess to prepare the sentencing order. A separate date should be
scheduled for the hearing during which sentence will be pronounced.
The trial judge should request sentencing memoranda from each side to be delivered prior to
the sentencing date. The memorandum is not required, but it is helpful to use as an outline to cover
680Spencer v. State, 615 So. 2d 688 (Fla. 1993); Phillips v. State, 705 So. 2d 1320 (Fla. 1997).
681Ring, 536 U.S. 584.
each aggravating and mitigating circumstance, including circumstances not presented to the jury. The
trial judge should not have either side prepare the sentencing order.
Both the prosecutor and defense counsel should be required to list all the circumstances relied
upon in the case and the reasons why the opponent's circumstances have not been established or the
weight that should be given to them.682 Both counsel should be encouraged to provide authority for
their positions and justify the weight suggested to each aggravating and mitigating circumstance.
Trial judges are required to address all aggravation presented by the prosecutor and all
mitigation presented by the defendant. Although the aggravating circumstances may be fairly
obvious, the mitigators are less so and the listed mitigators are the only ones that need to be addressed
in the sentencing order.683 There is authority for the trial judge to find an aggravating circumstance
that was not argued to the jury or in the sentencing memorandum.684 This authority is no longer valid
because of the requirement that the jury find aggravating circumstances.685 The decision in Ring does
not preclude the trial judge from finding mitigating circumstances that were not argued or presented
to the jury.686
There are additional problems whether the Court finds an aggravating circumstance that was
not argued to the jury or if the State argues for one in the sentencing memorandum. The defendant
will immediately move to reopen the case in order to rebut the new aggravating circumstance. It is
not permissible to reopen the case after it has been submitted to the trier of fact.687 Trial judges
should not consider additional aggravating circumstances that have not been argued to the jury (or
to the court if a jury has been waived). If the State suggests a new aggravating circumstance in the
sentencing memorandum, the trial judge should either enter an order striking it from the memorandum
or clearly state that it has not been considered in the sentencing order
TRIAL JUDGE MUST PERSONALLY PREPARE THE SENTENCING
The findings of the trial judge (not the state attorney) of aggravation and mitigation must be
in writing, and the order must be prepared by the judge. It is error to request the state attorney to
prepare the order. The request itself is an improper ex parte communication.688
v. State,689 the Court held that it is improper for the trial judge to ask the parties to submit proposed
682Lucas v. State, 568 So. 2d 18 (Fla. 1990); Hodges v. State, 595 So. 2d 929 (Fla. 1992), rev'd on
other grounds, Hodges v. Florida, 113 S. Ct. 33 (1992); Consalvo v. State, 697 So. 2d 805 (Fla.
683Consalvo v. State, 697 So. 2d 805 (Fla. 1996); Nelson v. State, 748 So. 2d 237 (Fla. 1999);
Holland v. State, 773 So. 2d 1065, 1076 (Fla. 2000).
684Davis v. State, 703 So. 2d 1055 (Fla. 1997).
685Ring, 536 U.S. 584.
686Lugo v. State, 845 So. 2d 74 (Fla. 2003).
687Fla. R. Crim. P. 3.430.
688Spencer v. State, 615 So. 2d 688 (Fla. 1993); State vs. Riechmann, 777 So. 2d 342 (Fla. 2000).
689Blackwelder v. State, 851 So. 2d 650 (Fla. 2003). See also, Valle v. State, 778 So. 2d 960, 965
and Spencer v. State, 625 So. 2d 688 (Fla. 1993).
orders and adopt one verbatim without a showing that the trial court independently weighed the
aggravating and mitigating circumstances. The Court stated:
However, we remind judges of their duty to independently weigh aggravating and
mitigating circumstances. A sentencing order should reflect the trial judge's
independent judgment about the existence of aggravating and mitigating factors and
the weight each should receive. When a judge simply copies verbatim the State's
submission, whether it is designated a "sentencing order" or a "sentencing
memorandum," the judge abdicates that responsibility. Moreover, such verbatim
copying renders more difficult, if not impossible, our own duty to determine whether
the trial court fulfilled its sentencing responsibility. Therefore, we warn trial judges
that they should avoid copying verbatim a State's sentencing memorandum. While we
recognize the efficiency modern computer technology affords in drafting orders,
efficiency cannot substitute for independent consideration of the evidence.
In Card v. State,690 a motion for post-conviction relief was returned for an evidentiary hearing
to determine possible improprieties regarding the sentencing order that was prepared for the judge
by the state attorney. The death penalty was originally affirmed in 1984. After the evidentiary
hearing was concluded, the trial court ordered a new penalty phase hearing, and the defendant was
again sentenced to death. The Supreme Court affirmed this sentence in 2001.691 This waste of time
and resources would have been avoided if the judge had prepared the sentencing order.
In Smith v. State,692 the death sentence was affirmed by the Court in 1987. The case was
remanded for a new evidentiary hearing on postconviction relief in 1998 when the Court decided the
judge had entered into three improper ex parte communications with the State when he asked the
State to prepare his order denying relief of a 3.850 motion.
Error is invited when a successor judge adopts a substantial portion of a prior judge's
sentencing order. The sentencing order must be the product of the author, so the Supreme Court of
Florida can review the author's thought processes.693
WEIGHT TO BE GIVEN TO JURY RECOMMENDATION
1. Life Recommendation and Jury Overrides
The Supreme Court of Florida will overturn a death sentence imposed after the jury
recommends a life sentence except under the most unusual of circumstances. In Tedder v. State,694
the Court stated, "In order to sustain a sentence of death following a jury recommendation of life, the
facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable
people could differ."
690Card v. State, 652 So. 2d 344 (Fla. 1995).
691Card v. State, 803 So. 2d 613 (Fla. 2001).
692Smith v. State, 708 So. 2d 253 (Fla. 1998).
693Morton v. State, 789 So. 2d 324 (Fla. 2001).
694Tedder v. State, 322 So. 2d 908 (Fla. 1975).
Over 90 percent of the cases involving jury overrides have been reversed.695 Before overriding
a jury recommendation, the trial judge should consider the logic behind believing the jury is
composed of people who are reasonable enough to return a verdict of first-degree murder but have
somehow become unreasonable when rendering a sentencing recommendation. Except in the most
unusual circumstances, the only question that should be in the trial judge's mind after receiving a life
recommendation is "What is the credit for time served?"
2. Appellate Review by the Supreme Court of Florida
The Supreme Court of Florida's function in providing appellate review of death sentences is
to (1) determine if the jury and judge acted with procedural rectitude in applying section 921.141 and
the applicable case law, and (2) to ensure relative proportionality among death sentences, which have
been approved statewide.696 It is not the Supreme Court's function to reweigh the evidence to
determine whether the State proved each aggravating circumstance beyond a reasonable doubt--that
is the trial court's job.697 The Supreme Court applies the "abuse of discretion" standard of review.698
The questions to be answered when trial judges are tempted to override a jury
recommendation for a life sentence are these: Are there any statutory mitigating circumstances? If
so, an override will probably not be sustained. Are there nonstatutory mitigating circumstances that
are more than inconsequential? If so, an override will probably not be sustained. However, if there
are valid aggravating factors, and no statutory mitigating circumstances and either no nonstatutory
mitigating circumstances, or only inconsequential ones, the override may be affirmed.
A jury override was sustained in Zakrzewski v. State.699 There was extensive mitigation in
that case, and it is probably an aberration of the Court's previous and numerous decisions reversing
overrides. The dissenting opinion has an excellent discussion of this issue. This case should be
considered to be fact-specific and not reliable as precedent. In a later case, Keen v. State,700 the Court
reversed an override citing all the other cases forbidding overrides, but Zakrzewski was not
695Amazon v. State, 487 So. 2d 8 (Fla. 1986); Ferry v. State, 507 So. 2d 1373 (Fla.1987);
Hegwood v. State, 575 So. 2d 170 (Fla. 1991); Stein v. State, 632 So. 2d 1361 (Fla. 1994); Esty
v. State, 642 So. 2d 1074 (Fla. 1980); Parker v. State, 643 So. 2d 1032, (Fla. 1994); Caruso v.
State, 645 So. 2d 389 (Fla.1994); Strausser v. State, 682 So. 2d 539 (Fla. 1996); Boyett v. State,
688 So. 2d 308 (Fla. 1996); Jenkins v. State, 692 So. 2d 893 (Fla. 1997); Pomeranz v. State, 703
So. 2d 465 (Fla. 1997); San Martin v. State 717 So. 2d 462 (Fla. 1998); Keen v. State, 775 So.
2d 263 (Fla. 2000 0; and Weaver v. State, 2004 WL 2922143 (Fla. Dec. 16, 2004).
696Brown v. Wainwright, 392 So. 2d 1327 (Fla. 1981). The origins of this case do not provide a
glimpse of the Supreme Court of Florida's finest hour. The court was accused of having access
to ex parte psychological reports on death sentenced inmates. Von Drehle, Among the Lowest of
the Dead, 167-187.
697Owen v. State, 862 So. 2d 687 (Fla. 2003).
698Blanco v. State, 706 So. 2d 7 (Fla. 1998); Caballero v. State, 851 So. 2d 655 (Fla. 2003). The
correctness of the "abuse of discretion" standard could be debated. There is either competent,
substantial evidence in the record to support the trial court's finding or there is error.
699Zakrzewski v. State, 717 So. 2d 488 (Fla. 1998).
700Keen v. State, 775 So. 2d 263, 282 (Fla. 2000).
In reversing an override in one case, a justice was critical of the trial judge's decision, calling
it "a case that should never have reached this Court."701
2. Death Recommendation
Normally, the trial judge must give the jury recommendation "great weight." However,
additional evidence introduced at the Spencer hearing may reduce the weight to be given to the
recommendation, and it may be appropriate to give the recommendation little, if any, weight if the
defendant has refused to allow the presentation of mitigating evidence to the jury and mitigation has
been developed subsequent to the recommendation.702 The weight given to the jury's
recommendation should be stated in the sentencing order and fully justified.
WEIGHT TO BE GIVEN TO AGGRAVATING AND MITIGATING
In Ford v. State,703 the Court explained how to weigh aggravating and mitigating
circumstances. The Court stated:
(W)hen a court is confronted with a factor that is proposed as a mitigating
circumstance, the court first must determine whether the factor is mitigating in nature.
A factor is mitigating in nature if it falls within a statutory category or otherwise meets
the definition of a mitigating circumstance. The court next must determine whether
the factor is mitigating under the facts in the case at hand. If a proposed factor falls
within a statutory category, it necessarily is mitigating in any case in which it is
present. If a factor does not fall within a statutory category but nevertheless meets the
definition of mitigating circumstance, it must be shown to be mitigating in each case,
not merely present. If a proposed factor is mitigating under the facts in the case at
hand, it must be accorded some weight; the amount of weight is within the trial court's
discretion. (Footnotes omitted.) (Emphasis supplied.)
Among other definitions, the Supreme Court of Florida has defined "mitigating circumstance"
to be "(A)ny aspect of a defendant's character or record and any of the circumstances of the offense
that reasonably may serve as a basis for imposing a sentence less than death."704
In 2000, the Court receded from Campbell to the extent that there may be situations where a
mitigating circumstance may be found, but accorded no weight.705 This holding in no way minimizes
the importance of following the dictates of Campbell in analyzing mitigation. In fact, despite Trease
and Bowles, it is too dangerous for a trial judge to fail to give a mitigating circumstance at least some
weight. Assigning some weight to the mitigating circumstance eliminates the issue of whether the
701Pomeranz v. State, 703 So. 2d 465, 472 (Fla. 1997).
702Muhammad v. State, 782 So. 2d 343 (Fla. 2001).
703Ford v. State, 802 So. 2d 1121 (Fla. 2001).
704Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990).
705Trease v. State. 768 So. 2d 1050 (Fla. 2000). See also Bowles v. State, 804 So. 2d 1173 (Fla.
circumstance is truly mitigating on appeal.706
In the Ford case, the Court held it to be error not to consider the following as mitigating
circumstances: (a) a family history of alcoholism; (b) a medical history of diabetes; (c) the lack of
sociopathic or psychopathic tendencies, and (d) the absence of antisocial tendencies. Each of these
was held to be mitigating in nature in that each relates to a defendant's character or record or the
circumstances of the offense and reasonably may serve as a basis for imposing a sentence less than
death. While these factors are mitigating in nature, they may or may not be mitigating under the facts
in the case at hand (that is for the trial court to determine.)707
The Court also held it to be error for the trial judge not to consider as mitigating the fact that
the alternative punishment is life imprisonment without parole. The Court stated that parole
ineligibility is mitigating in nature because it relates to the circumstances of the offense and
reasonably may serve as a basis for imposing a sentence less than death.708 At first glance, this last
statement is difficult to understand. However, its application to particular facts makes it more
apparent. For instance, in a felony-murder case that has little other aggravation, the homicide is
already raised from manslaughter or second-degree murder to first-degree murder and that
"circumstance of the offense" requires serious consideration and significant weight considering that
no death sentence has been upheld in Florida with only the felony-murder aggravator present.
The weight to be given aggravating and mitigating factors is within the discretion of the trial
court subject only to the "abuse of discretion standard" (no reasonable judge could have assigned the
weight given.) The Supreme Court of Florida will not second-guess the trial judge absent an abuse
of discretion.709 The Court has held it to be an abuse of discretion to assign "little weight" to the age
mitigator, and in diminishing the "significant weight" the Court obviously felt should be given to the
defendant's lack of significant history of prior criminal activity.710
The Court has expressed its views on the weight that should be given various aggravating and
mitigating factors upon occasion. Some examples are as follows:
(1) No significant history of prior criminal activity
This mitigating circumstance should be given careful consideration and, because the defendant
has had a crime-free past, given significant weight. It is error not to find the existence of this
circumstance if the evidence supports it.711 Crimes committed contemporaneous with or after the
commission of the capital felony cannot be considered in determining the existence of this mitigating
(2) Disparate sentences
706See, Ford v. State, 802 So. 2d 1121, 1136, Pariente, J., concurring in the result only.
707Id. at 1135-36
708Id. at 1136.
709Blanco v. State, 706 So. 2d 7 (Fla. 1998); Kearse v. State, 770 So. 2d 1119 (Fla.2000); Cox v.
State, 819 So. 2d 705 (Fla. 2002).
710Ramirez v. State, 739 So. 2d 568 (Fla. 1999).
711Hess v. State, 794 So. 2d 1249 (Fla. 2001).
When the evidence shows the more culpable codefendant received a life sentence, the least
culpable codefendant should receive the same sentence.713
This aggravator is so "strong" that a death sentence can be upheld on it alone.714
(4) Prior violent felony
This is a "strong" aggravator. The death sentence has been upheld when this aggravator is the
only one present.715
The felony-murder aggravator, when combined with the prior-violent-felony aggravator, is
not as weighty when the defendant receives a separate sentence for the underlying felony, the violent
felonies occurred after the murder, and the defendant was sentenced for them. This case may
encourage prosecutors to resist charging the felony involved in the homicide to avoid it receiving less
If the prior violent felony relied upon is quite old, and the defendant has led a "comparatively
crime free" life in the interim, this aggravator does not carry the same weight as it would otherwise.717
"For a court to give a non-minor defendant's age significant weight as a mitigating
circumstance at the sentencing phase of a capital murder case, the defendant's age must be linked with
some other characteristic of the defendant or the crime, such as significant emotional immaturity or
mental problems."718 But the closer the defendant is to age 16, the weightier this mitigator
(6) Brain damage is a "significant" mitigating circumstance.720
(7) Defendant's artistic ability. This circumstance has been recognized as mitigating, but it
is not "compelling."721
713Ray v. State, 775 So. 2d 604 (Fla. 2000).
714Blackwood v. State, 777 So. 2d 399 (Fla. 2000); Butler v. State, 842 So. 2d 817 (Fla. 2003).
715Ferrell v. State, 680 So. 2d 390 (Fla. 1996); Duncan v. State, 619 So. 2d 279 (Fla. 1993);
Lamarca v. State, 785 So. 2d 1209 (Fla. 2001).
716Hess, 794 So. 2d 1249.
717Larkins v. State, 739 So. 2d 90 (Fla. 1999).
718Hurst v. State, 819 So. 2d 689 (Fla. 2002).
719Urbin v. State, 739 So. 2d 568 (Fla. 1999). The age is probably 18 now.
720Crook v. State, 813 So. 2d 68 (Fla. 2002).
721Evans v. State, 808 So. 2d 92 (Fla. 2002).
THE WRITTEN ORDER MUST BE PREPARED PRIOR TO AND FILED
CONTEMPORANEOUS WITH THE ORAL PRONOUNCEMENT OF THE
The sentencing order must be in writing and prepared prior to and filed contemporaneously
with the orally pronounced death sentence.722 The Court has made it clear that failure to provide
timely written findings in a sentencing proceeding will result in a remand for the imposition of a life
sentence.723 In Perez v. State,724 the trial judge directed the court reporter to transcribe his oral
findings and submit them for inclusion in the court file instead of doing a written order,. The Court
held this did not satisfy the required contemporaneous written order requirement and remanded for
a life sentence. One justice has gone so far as to suggest that judges who ignore this requirement
should be disciplined.725
The 1996 Legislature tried to give trial judges some extra time to prepare the sentencing order
by amending the statute to allow the judge's written order supporting the death sentence to be filed
within 30 days after the rendition of the judgment and sentence.726
A danger exists here. In Grossman v. State,727 the Court has stated it was establishing a
"procedural rule" requiring all written orders imposing a death sentence be prepared prior to the actual
sentencing, and be filed contemporaneously. In Perez v. State,728 the Court stated the purpose of the
contemporaneous filing requirement is ". . . to reinforce the Court's obligation to think through its
sentencing decision and to ensure that written reasons are not merely an after-the-fact rationalization
for a hastily reasoned initial decision imposing death."
The legislature can repeal a rule of criminal procedure but cannot amend one.729 An
unanswered question is whether the 1996 Legislature "amended" or "repealed" a "rule," or whether
the Court's "rule" reflected the law at the time it was enacted. Until the Court answers this question,
trial judges should file written sentencing orders contemporaneously with the oral pronouncement of
SET THE SENTENCING DATE AFTER THE SPENCER HEARING.
Since both the state attorney and defense counsel may make an oral presentation to the judge
before sentencing (at the Spencer hearing), it is proper procedure to hear oral arguments and then set
the sentencing later--on a different date--where the only order of business is the judge's
722Grossman v. State, 525 So. 2d 833 (Fla. 1988).
723Stewart v. State, 549 So. 2d 171 (Fla. 1989); Christopher v. State, 583 So. 2d 643 (Fla. 1991);
Hernandez v. State, 621 So. 2d 1353 (Fla. 1993).
724Perez v. State, 648 So. 2d 715 (Fla. 1995).
725Gibson v. State, 661 So. 2d 288 (Fla. 1995); Landry v. State, 666 So. 2d 121(Fla. 1995).
726Fla. Stat. ch. 921.141(3)
727Grossman, 525 So. 2d 833 (Fla. 1988).
728Perez v. State, 648 So. 2d 715, 720 (Fla. 1995),
729In re Clarification of Fla. Rules of Practice and Procedure (Fla. Constitution, Article V, section
2(a), 281 So. 2d 204 (Fla. 1973).
pronouncement of sentence and the reading and filing of the sentencing order, if the sentence is one
of death. This procedure is mandatory.730 The entire order does not have to be read, but at least the
basis for the decision to impose the death sentence should be announced. Of course, it is proper to
read the entire order for the benefit of the defendant and others who are present.
CONTENT OF THE SENTENCING ORDER
The sentencing order should not include aggravating circumstances that are not listed in the
statute as justification for imposing a death sentence. The sentencing order should not include any
information outside of the record of the trial, unless the defendant is advised in advance and given
an opportunity to rebut it.731
Present law allows an aggravating factor that has not submitted to the jury to be included in
the sentencing order.732 This procedure is likely to not pass Sixth Amendment scrutiny after Ring v.
The sentencing order should not include findings that are not supported by the record. Trial
judges who make improper findings will read about it when the case is reviewed on appeal.734
All statutory and nonstatutory mitigating circumstances presented by the defense must be
considered and weighed by the trial judge in the sentencing order. Failure to adequately consider and
weigh mitigating circumstances can result in the imposition of a life sentence by the Supreme Court
Campbell v. State735 is the landmark case from the Supreme Court of Florida on how to
address mitigating circumstances in the sentencing order. It is extremely important that the
requirements of Campbell are followed in addressing mitigation in the sentencing order.
In Ferrell v. State,736 the Court spelled out the requirements of an acceptable sentencing order
The sentencing judge must expressly evaluate in his or her written sentencing
order each statutory and non-statutory mitigating circumstance proposed by the
defendant. This evaluation must determine if the statutory mitigating circumstance is
supported by the evidence and if the non-statutory mitigating circumstance is truly of
a mitigating nature. A mitigator is supported by evidence if it is mitigating in nature
and reasonably established by the greater weight of the evidence. Once established,
the mitigator is weighed against any aggravating circumstances. It is within the
sentencing judge's discretion to determine the relative weight given to each established
mitigator; however, some weight must be given to all established mitigators. The
result of this weighing process must be detailed in the written sentencing order and
supported by sufficient competent evidence in the record. The absence of any of the
730Spencer v. State, 615 So. 2d 688 (Fla. 1993).
731Porter v. State, 400 So. 2d 5 (Fla. 1981); Consalvo v. State, 697 So. 2d 805 (Fla. 1996).
732Davis v. State, 703 So. 2d 1055 (Fla. 1997).
733Ring, 536 U.S. 584.
734Dennis v. State, 690 So. 2d 1280 (Fla. 1997).
735Campbell v. State, 571 So. 2d 415 (Fla. 1990).
736Ferrell v. State, 653 So. 2d 367 (Fla.1995).
enumerated requirements deprives this Court of the opportunity for meaningful
In the Ferrell case, the Court determined the order was inadequate and remanded for a new sentencing
order.737 The full text of the inadequate sentencing order is set out in the opinion.
The Court is getting annoyed with sentencing orders that fail to measure up to the clear
requirements announced in Campbell. In one case, the Court remanded a death sentence for a new
sentencing order because the order failed "to expressly evaluate each mitigating circumstance, fail(ed)
to determine whether these mitigators are truly mitigating, and fail(ed) to provide a detailed
explanation of the result of the weighing process."738
In 2000, the Court receded from Campbell to the extent that there may be rare circumstances
where a mitigating circumstance may be found, but accorded no weight.739 This holding in no way
minimizes the importance of following the requirements of Campbell in analyzing mitigation. The
instance of affording a mitigating circumstance no weight should be rare, and it is better practice for
the trial judge to give each mitigating factor appropriate weight.
If the case is remanded for a new sentencing order due to a Campbell error in analyzing
mitigating circumstances, the proper procedure to follow on remand is to conduct a new hearing,
giving both parties an opportunity to present argument and submit sentencing memoranda before the
trial court determines the appropriate sentence. No new evidence need be introduced at the hearing.740
The defendant must be present at the hearing.741
Several sentencing orders that have been discussed by the Supreme Court of Florida are
included with these materials.
Appendix A is an Order prepared in State of Florida v. Oba Chandler. The Supreme Court
of Florida stated in part, "Contrary to Chandler's assertion, the sentencing order in this case not only
complies with the approved procedure, but is, indeed, a textbook example of how thoughtful,
deliberative sentencing orders should be written."742
Appendix B is a sentencing order prepared in the case of State of Florida v. Leonardo
Franqui. The Supreme Court of Florida complimented this order by stating, "In this case we note that
the trial court's detailed sentencing order stands as a model of compliance with the Campbell
requirement. In short, it is the epitome of what should be done by a trial court in order to determine
an appropriate sentence."743
Appendix C is a sentencing order prepared in the case of State of Florida vs. Ricardo
Gonzalez. The trial judge conducted a lengthy analysis of the mitigator of the defendant being under
737See also, Reese v. State, 694 So. 2d 678 (Fla. 1997); Crump v. State, 697 So. 2d 1211 (Fla.
1997); Walker v. State, 707 So. 2d 2300 (Fla. 1997); Jackson, 704 So. 2d 500; Hudson v. State,
708 So. 2d 256 (Fla. 1998); Merck v. State, 763 So. 2d 295 (Fla. 2000).
738Woodel v. State, 804 So. 2d 316 (Fla. 2001).
739Trease v. State. 768 So. 2d 1050 (Fla. 2000). See also, Bowles v. State, 804 So. 2d 1173 (Fla.
740Reese v. State, 728 So. 2d 727 (Fla. 1999).
741Jackson v. State, 767 So. 2d 1156 (Fla. 2000).
742Chandler v. State, 702 So. 2d 186, 200 (Fla. 1997).
743Franqui v. State, 699 So. 2d 1312, 1328 (Fla. 1997).
the influence of "extreme mental or emotional disturbance." The judge rejected the mitigator and the
Court agreed. Justice Pariente commended the judge's "comprehensive and well-reasoned sentencing
order." She also stated that his "detailed evaluation of the evidence related to statutory mitigation and
his explanation as to why he did not find the testimony established the mitigating circumstance . .
. greatly assisted this Court in our review of the death sentence in this case."744 If the analysis in any
of these orders is followed, a sentencing order should pass the review of the Supreme Court of
Appendix D is a sentencing order prepared in the case of State of Florida v. Richard Lynch.
The order discusses HAC in a double homicide involving shootings and has an extensive discussion
of weighing the felony-murder rule when CCP is an aggravating circumstance. The order was
approved by the Court.745 (The report of the case also contains a plea colloquy for a guilty plea to first-
If the case has an Enmund/Tison issue, the sentencing order must address and make findings
supporting the Enmund/Tison culpability requirement.746
New problems are presented when a new penalty phase trial is ordered.
A. No Mention of Prior Death Sentence.
The jury will be instructed that the defendant has already been convicted of murder in the first
degree, so their responsibility is not to determine the issue of guilt. However, neither the trial judge
nor the prosecutor may tell the jury the defendant was previously sentenced to death. The Standard
Jury Instructions adequately cover this subject. The Model Penalty Phase Jury Instructions contain
an explanation for the delay involved between verdict and sentencing.
B. Preliminary Jury Instructions.
The jury should receive preliminary instructions after being sworn and before opening
statements are made. Copies of the instructions can be given to each of the jurors for reference during
C. State's Evidence to be Admitted.
The prosecutor is not permitted to retry the entire guilt phase of the case. The only evidence
that should be offered is that which is necessary to prove aggravating circumstances, to familiarize
the jury with the facts of the case and to present victim-impact evidence.747 Permitting the State to
introduce other evidence invites reversal.748
744Gonzalez v. State, 786 So. 2d 559, 570 (Fla. 2001), Pariente, J. concurring.
745Lynch v. State, 841 So. 2d 362 (Fla. 2003).
746Benedith v. State, 717 So. 2d 472 (Fla. 1998); See, sec. 6.2.2.
747Floyd v. State, 569 So. 2d 1225 (Fla. 1990); Bonifay v. State, 680 So. 2d 413, 419 (Fla. 1996);
Teffeteller v. State, 495 So. 2d 744 (Fla. 1986); Windom v. State, 656 So. 2d 432 (Fla. 1995).
748Hitchcock v. State, 673 So .2d 859 (Fla. 1996)
D. New Aggravating Factors.
With the exception explained below, the prosecutor is entitled to introduce evidence of new
aggravating factors to the jury during a new penalty phase trial. Offering new aggravating factors is
not a violation of the Double Jeopardy Clause of the Constitution.749 The new aggravating factors
should be given to the jury if sufficient evidence is presented and, if the death sentence is to be
imposed, discussed in the sentencing order.
Newly enacted aggravating factors may be pursued by the prosecutor unless there is a violation
of the Ex Post Facto clause of the Constitution. Ex Post Facto problems are discussed above in the
sections on each aggravating factor. The trial judge can determine an aggravating factor exists at a
new penalty phase trial, even if it was not found to exist at the original trial.750 However, after Ring
v. Arizona, it is error to find the existence of an aggravating circumstance that has not been submitted
to the jury.751
There is an exception to the rule allowing new aggravating circumstances. If the original jury
recommended life, and the case is remanded for resentencing, the trial judge cannot consider any
additional aggravating circumstances the original jury did not consider (unless the original jury did
not consider an aggravator due to legal error.)752
E. New Mitigating Factors.
The Double Jeopardy Clause and the Ex Post Facto Clause are for the benefit of the defendant.
Therefore, during a new penalty phase trial the defendant may present all mitigation that exists
whether it existed at the time of the original penalty phase trial (such as good jail conduct, a
codefendant sentenced to life subsequent to the original sentence, etc.) and the jury and the trial judge
must consider all of it in determining the appropriate sentence.753 If a mitigating circumstance has
been changed from a nonstatutory one to a statutory one, such as the defendant's background was in
1966, the judge should give the mitigation its new classification in the sentencing order.
F. Additional Closing Argument Problem.
The Supreme Court of Florida has prohibited the prosecutor from suggesting during closing
argument that, if the jury recommends life, the defendant will be eligible for parole after 25 years.754
This situation will only occur in very old cases.
G. Jury Instructions.
At least one copy of the written instructions must be given to the jury during deliberations.
749Poland v. Arizona, 476 U.S. 147, 106 S. Ct. 1749, 90 L. Ed. 2d 123 (1986); Preston v. State,
607 So. 2d 404 (Fla. 1992).
750Phillips v. State, 705 So. 2d 1320 (Fla. 1997).
751Ring, 536 U.S. 584.
752Craig v. State, 685 So. 2d 1230 (Fla. 1996).
753Id.; Clark v. State, 690 So. 2d 1280 (Fla. 1997).
754Hitchcock v. State, 673 So. 2d 859, 863 (Fla. 1996).
It is permissible to give each juror a copy.
Trial judges need to remember that the jury has not had the benefit of the Standard Instructions
that would normally have been given at the end of the guilt phase of a trial.
The jury should be instructed on credibility of witnesses, expert witnesses, the defendant
testifying or not, and other instructions that may be appropriate.755 It is error not to give the
"defendant not testifying" instruction if the defendant requests it.
The jury should also be instructed that the State must prove aggravating circumstances beyond
a reasonable doubt, while the jury need only be reasonably convinced that mitigating circumstances
exist. Reasonable doubt should be defined.
Two recent cases have rejected the defendant's claim that failure to instruct the jury on
reasonable doubt was fundamental error.756 These decisions probably mean that it is the defendant's
burden to request an instruction. In Lawrence, the Supreme Court of Florida recommended that the
Supreme Court Committee on Standard Jury Instructions in Criminal Cases "consider, and, if it finds
necessary, propose a new sentencing-phase instruction which defines this term."757 The new
instruction must now be given to the jury.
The trial court should review the instructions carefully to make sure they are accurate and
complete. Every effort should be made to ensure a jury instruction issue does not find its way into
H. Resentencing Order.
The trial judge must prepare a new sentencing order. The new order must not use substantial
portions of the previous sentencing order. The resentencing is a new proceeding, and it requires a
new order that is an original work.758
I. Resentencing Without a Jury.
The trial judge should follow the specific directions of the Court if a case is remanded for
resentencing, but additional evidence is not to be presented. The Court has given specific directions
about the type and number of hearings that must be conducted and what issues are to be considered.
The defendant must be present at any hearings.759
J. Disqualification of Judge.
The trial judge is not automatically disqualified simply because the same judge originally
imposed the death sentence.760
755Burns v. State, 699 So. 2d 646 (Fla. 1997).
756Archer v. State, 673 So. 2d 17 (Fla. 1996); Lawrence v. State, 691 So. 2d 1068 (Fla. 1997).
757691 So. 2d at 1072, fn 5.
758Morton v. State, 789 So. 2d 324 (Fla. 2001).
759Reese v. State, 728 So. 2d 727, 728 (Fla. 1999); Jackson, 767 So. 2d 1156.
760Willacy v. State, 696 So. 2d 693 (Fla. 1997).
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